Asean Foreign Ministers Meeting July 23~26, last chance for peace in South China Sea?

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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Select head: Jin Liqun is the president-designate of the AIIB. – EPA pic >>

CHINA’S setting up of the AIIB (Asian Infrastructure Investment Bank) is a most significant event in contemporary history.

It represents another shift eastwards in the global balance of power, particularly from the US to China. However, other Asian – particularly Asean – countries have also to reflect on what it means to them.

The US AIIB dilemma is a useful point over which to ponder. It has very little to do with transparency, governance and environment. It has to do with the power equation with China. Predominance and control.

Clearly the US is struggling to come to terms with China’s rise. This is not to say America opposes it, but it is a hard thing for the US to swallow, to play second fiddle. And the AIIB is the first big test of that adjustment.

With the launch of the AIIB, China has also shown how it can make good things happen with support not just from Asia, but also beyond. It is becoming a global power with considerable reach and influence.

Controlling about 30% of the capital of the AIIB China, as the promoter, has shown itself as a leader that can control the future of other countries. How Beijing exercises that leadership remains to be seen, but insofar as member state expectations are concerned, they see Asian countries for the first time in living memory controlling an international institution of considerable weight - and with it their economic prospects.

To sustain Asian economic growth trajectory, US$8 trillion of national infrastructure development is needed up to 2020, not counting US$290bil in regional connectivity infrastructure. Indonesia alone needs US$230bil, Myanmar US$80bil. With the potential of the US$100bil AIIB, plus the US$40bil Silk Road Fund for “One Belt One Road”, there is for the first time some good hope of meeting this need.

The US, in its difficult adjustment, points to potential future problems rather than the promise of the AIIB. How “lean, clean and green” will the AIIB be? As if the US dominated Bretton Woods institutions have been pristine, but that does not mean it is a question that should not be asked about AIIB.

So, as the Asian countries get in line, eyes glued on the lolly, they should not hold back from asking questions and seeking answers on how the AIIB is going to operate.

Another issue raised primarily by the Americans is over procurement and personnel appointments. Again, as if the IMF, World Bank and ADB did not come with strings attached by largely senior Caucasian officials from the institutions. But, having suffered from such suppression in the past, Asian countries should want to know what the future holds with the AIIB on procurement and personnel.

With the AIIB headquartered in Beijing and China putting up most of the money, it is only to be expected there will be a Chinese bias on both scores. The president-designate Jin Liqun, however, is suave and affable, better than some of the boorish heads past and present of the Bretton Woods institutions. Nevertheless, it is not undignified to ask about other appointments and their distribution. This horse-trading occurs at international level.

On procurement, Chinese companies are already assuming they will have first-mover advantage contractual right – but this does not necessarily reflect what the Chinese government thinks or mean that the AIIB will be biased for them.

Indeed, Chinese Prime Minister Li Keqiang during his visit to France this week admitted China lacked advanced technologies and looked forward to “form joint ventures or cooperatives” with the developed world. This was stated on the occasion of a historic deal with France to carry out joint projects in Asian and African countries.

And it follows a considerable period during which China was intent on muscling out developed countries in its economic expansion to African and some Asian countries.

Thus, China’s tendency of blowing hot and cold has been a problem in gauging Beijing objectives and mode of operation.

A former US ambassador to the ADB recently related how the poorest Pacific countries failed to receive Chinese support at board level for projects as they had recognised Taiwan. Again, not that the US was ever reticent about such political power play.

Still, it would not be remiss to ask how far China would penalise countries on the wrong political wave-length, even if it would be too much to expect Beijing to support a state opposed to and in conflict with it.

How would the Philippines and Vietnam score in the AIIB on the Chinese political barometer given their adversarial position in the South China Sea dispute? Indeed, the other claimant states, such as Malaysia and Brunei. Of course, if they are willing to become vassals of the Chinese state in return for largesse, it is entirely up to them. But it is not to be expected the proud sovereign states of South-East Asia would stoop to this, but who knows.

In the AIIB, Asean states will each have a very small stake, even if Indonesia might be among the top ten shareholders. Together they might represent something a little more significant. Would they then not want to develop a common position in areas of infrastructure and connectivity development that would be of shared benefit?

Asean leaders do not seem to discuss strategic issues such as, now, the meaning and significance of the AIIB to future regional order. Generalised, but not inaccurate, assertions are made about its good in terms of infrastructure and economic development. But there is more to it than that.

When they meet, Asean leaders follow a well-scripted agenda that does not include a free flow of discussion. Foreign ministries often are hell-bent on avoiding this, because they think strategy and state secrets must at all cost be protected. They should give the leaders greater credit than assumed stupidity. These discussions must take place beyond other broad issues, such as the Middle East etc, or immediate issues, such as refugees and migrants.

Strategic issues are so critical to Asean’s future place in the regional order. Deficient discussion, or avoidance of it altogether, erodes Asean role in the evolving system. More time must be set aside at Asean summits for discussion on these issues.

The economic ministries too must not just look at issues and targets one by one and in a rush without presenting the bigger picture. There is great strategic content in the minutiae which is hardly highlighted or discoursed.

If Asean meetings and summits go on like this, community or no community, the region will miss the wood for the trees.

Comment by Munir Majid The Star/Asian News Network

Tan Sri Munir Majid, chairman of Bank Muamalat and visiting senior fellow at LSE Ideas (Centre for International Affairs, Diplomacy and Strategy), is also chairman of CIMB Asean Research Institute.


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