HERE are three significant ironies in the South China Sea arbitration award which have not been picked up in the already voluminous reviews of the ruling in the case between the Philippines and China.
If properly plucked, they could form the basis for moving forward in a situation which shows all the potential of turning ugly. The first is the distinction the arbitral tribunal under the United Nations Convention on the Law of the Sea (UNCLOS) highlights between “historic rights” and “historic title.” While China lost in its claim to historic rights to resources in the South China Sea – deemed extinguished when states acceded to the regime under UNCLOS – it is worth noting nonetheless China does not claim to any “historic title.”
Even if the tribunal observed “historic title” can only be claimed over bays and other near-shore waters under UNCLOS, the fact remains China claims historic rights to resources within the ninedash line but not historic title.
The negative irony – at least from China’s point of view – is that had Beijing claimed historic title, the case brought to the tribunal by the Philippines in January 2013, which China contends is outside its jurisdiction on so many other grounds, could have been exempted from that jurisdiction under Article 298 of UNCLOS as a dispute concerning “historic title”.
Whether or not someone blundered in the Chinese foreign ministry, a reflection on the South China Sea dispute from the time of Deng Xiaoping, when he wisely counselled the issue of sovereignty should be set aside in negotiation to forge collaboration, would show the predisposition, lost in recent years of raw emotion, had always been to work together in the South China Sea.
This is a positive irony that could be gleaned by involved parties from last Wednesday’s tribunal award, to move forward.
The second noteworthy point that could be positively constructed from the award is the passage on the Second Thomas Shoal in response to the request from the Philippines (the 14th of its 15 submissions) for tribunal adjudication. The tribunal ruled that compulsory settlement is excluded from a dispute where military activities are involved.
China has of course been vociferous on the tribunal not having jurisdiction to hear the case brought by the Philippines. But just imagine if China had not asserted that its South China Sea activities, like reclamation and even militarisation, were not peaceful in intent but military in nature to stake its claims. Quite conceivably the tribunal might have ruled it indeed did not have jurisdiction!
Be that as it may, China has been consistent about its peaceful intentions. The occasion of the tribunal’s award should be made the point from which to push hard, through negotiation, for peaceful ends.
The third irony that could be made to have a positive twist is yet another argument by China on exclusion of the tribunal’s jurisdiction, which was rejected – the Declaration on the Conduct of Parties (DOC) in 2002 between China and Asean.
The tribunal rightly found that the DOC was a political, not a legal, document. Therefore its invocation for negotiation does not preclude legal settlement under UNCLOS.
Actually, it was China itself (and Malaysia) that did not want the DOC to be legally binding. Instead of talking about the chicken coming home to roost however, might this not be the opportune time to push together – both China and Asean – for the legally binding Code of Conduct (COC) and even make the overarching DOC a legal agreement?
The Asean Foreign Minsters Meeting and the Post Ministerial Conference with Dialogue Partners, including China of course, take place in Vientiane on July 23-26. Asean foreign ministries should be working furiously with one another and with China to make something positive happen in Laos.
Construct the positives. Avoid the negatives. Drive the meetings in clear direction. Asean, do not be helpless and hopeless.
Do not allow anything to happen that is gloating, taunting and flaunting. Make sure words at the meetings like “rebuke”, “chastise” and “outlaw in unequivocal terms” – which have dominated commentaries in the West – are avoided. Ensure there is no attack on anybody, including the tribunal. Show China particularly all Asean is interested to do is to move forward with it on the South China Sea issue in good faith.
All this is not easy to achieve. But it is a facet of Asean centrality that is called for more than ever before. As Asean chairs these meetings, the preparation for these outcomes must be pursued vigorously NOW in a truly focused manner.
Asean should take the lead. Laos should be given full support in preparing for the meetings. And China should be engaged before the meetings begin.
If thorough preparation and discussion do not take place before hand, there is grave danger the meetings will end up in disarray, including – again – the Asean meeting. There is no point trying to come out with an Asean joint statement on the arbitration award at this stage, as there will be no long-distance consensus when one cannot be achieved even when sitting down together. A meaningless joint statement would be just that – meaningless.
Malaysia has come out with its own statement, which is fine. The Singapore foreign minister has made a carefully crafted statement in the island republic’s Parliament. The new Philippines government has also been circumspect, showing restraint and responsibility in its hour of “victory”. And will send no less than a former president for talks with China.
China had time to expect the ruling. After giving vent to its fury, China should also calm down and work with Asean, as it has always said it would, and has again said it would in the wake of the arbitral award.
But which Asean? Asean must form a consensus on how to move forward. Singapore, which represents Asean in relations with China, should take the lead. When Asean foreign ministers failed to come out with that joint statement in 2012, Marty Natalegawa of Indonesia – not a South China Sea claimant state – scrambled a sixpoint agreement with what he called a zero-draft COC.
At this time, in this hour of crisis, the need for such leadership has never been greater. It is critical that Asean plays its role if it is not to drop off the horizon.By Munir Majid comment Viewpoint
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