Connect with us

Southeast Asia

Will ASEAN member states united behind the South China Sea Arbitration award?

Published

on

On December 12th, 2019, Malaysia submitted a proposal to the Commission on the Limits of the Continental Shelf (CLCS) concerning the limits of its continental shelf beyond 200 nautical miles. The continental shelf submission lies from Malaysia’s baseline towards the South China Sea. The submission its accordance with article 76, paragraph 8 of the United Nations Convention on the Law of the Sea.

Malaysia submission to the CLCS has triggered a note-verbale from the concerned parties of the South China Sea Dispute. Nearly all concerned parties to the dispute sent their note-verbale to emphasize each of their state position towards the submission.

Countries that have submitted a note-verbale in responding to Malaysia’s submission are China, ThePhilippines, Vietnam, and Indonesia. Other than China, each state has similar positions invoking the PCA’s 2016 South China Sea arbitration ruling, emphasizing the importance of dispute resolution following international law.

China’s note-verbale to the United Nations

China was the first country to respond to Malaysia’s submission; on a note verbal to the United Nations Secretary-General CML/14/2019 dated 12 December 2019, China argued that Malaysia’s submission would seriously infringe China’s sovereignty, sovereign rights and jurisdiction in the South China Sea. The Chinese government, therefore, requests the Commission not to consider Malaysia’s submission in accordance with article 5(a) of Annex I to the Rules of Procedure of the Commission on the Limits of Continental Shelf.

As is commonly known, China made a unilateral claim over the islands in the South China Sea with the “Nine-dash line.” In their note-verbale again China emphasizes that they have the rights under a historical basis therefore China has sovereignty over the South China Sea. Even though the 2016 tribunal on the South China Sea ruled that China’s historical claim does not have any legal basis in international law.

Philippines note-verbale to the United Nations

On March 6th, 2020, The Philippines submit their note-verbale to the United Nations responding to the Chinas note-verbale. In the note-verbale, The Philippines argues that China’s positions inconsistent with international law, including the United Nations Convention on the Law of the Sea.

Moreover, the Philippines ’ note-verbale also invoked the 2016 South China Sea tribunal award against China which settled the issue of historic rights and maritime entitlements. The tribunal ruled that any claims based on historic rights, or other sovereign rights or jurisdiction that exceed the geographic and substantive limits of maritime entitlements under UNCLOS, without lawful effect.

Vietnam note-verbale to the United Nations

Following the Philippines note-verbale, On March 23rd, 2020, Vietnam also submits a note-verbale to the United Nations in responding to Malaysia’s extended continental shelf submission. Vietnam has a firm and consistent position in the dispute. In their note-verbale, there are at least four points that Vietnam emphasizes. First, Vietnam protest China’s claims as contained in the Chinas note verbale. Vietnam argued that it was a serious violation of Vietnam’s sovereignty, sovereign rights, and jurisdictions in the East China Sea (South China Sea).

Secondly, Vietnam argues that they have ample historical evidence and legal basis to assert its sovereignty over the Hoang Sa (Parcel Islands) and the Truong Sa (Spratly) Islands in accordance with international law. Thirdly, Vietnam reiterates that UNCLOS shall be the sole legal basis for any dispute between Vietnam and China. Therefore Vietnam against all arguments that not adhere to UNCLOS.

Even though Vietnam note-verbale has not explicitly cited the South China Sea tribunal award, Vietnam’s position has and always consistent with all documents that Vietnam has circulated at the United Nations and submitted to relevant international bodies.

Indonesia’s note-verbale to the United Nations

Earlier this month, Indonesia also submits a note-verbale to the United Nations, in regards to Malaysia’s extended continental shelf submission. In the note-verbale Indonesia submit to the UN, it is for the first time since the South China Sea tribunal ruling in 2016, Indonesia invokes the arbitration ruling in a formal submission to the United Nations. In the document, Indonesia invokes China’s Nine-dash line as illegal under international law.

Even though Indonesia is not a claimant in the South China Sea disputes, this is not the first time Indonesia object to China’s Nine-dash line and invoke the South China Sea tribunal award. Indonesia always has a firm position in objecting to the Nine-dash line. In 2016, after the tribunal ruling, there was an accident where a Chinese fishing vessel illegally fishing in the Indonesian exclusive economic zone, Indonesia sent a diplomatic protest to Beijing arguing the Nine-dash line illegal under international law.

A similar accident happened again earlier this year, where there was an escalation between Indonesia law enforcement with the illegal Chinese fishing vessels escorted by the Chinese coast guard entering the Indonesian exclusive economic zone in the North Natuna Sea where China consider it inside their Nine-dash line. Again Indonesia consistently objects China by sending a diplomatic note to Beijing and increases a military patrol in the area.

Does ASEAN member states stand behind the South China Sea arbitration award matters in International law?

Indeed, from the international law point of view, any member countries invoke the tribunal even in a formal note-verbale to the United Nations will not give any legal implications to the tribunal rulings. However, it could be argued that it could give influence and political pressure to any parties to the dispute to uphold international law.

Theoretically, the tribunal ruling will only bound to the parties of the tribunal, which are the Philippine and China, even though China did not participate in the tribunal. The tribunal ruling will not bound other claimant states in the disputes. 

Moreover, the tribunal also doesn’t have any binding precedent to any case after the ruling; it only might have an influential to the case after. However this article argues that if more claimant states of the dispute invoke the South China Sea arbitration ruling, at least it will give a political pressure to China to behave in accordance with international law, and further to avoid any unlawful act which might create a tension in the region 

Therefore, ASEAN member states, which mostly are parties to the South China Sea dispute, namely, Vietnam, Philippines, Malaysia, Brunei, have to firmly stand behind the tribunal award to assure that international law will be the only framework in resolving the dispute.

Continue Reading
Comments

Southeast Asia

US Secretary of State Pompeo set to boost Indonesian religious reform efforts

Published

on

State Department photo by Ron Przysucha/ Public Domain

US Secretary of State Mike Pompeo is set to boost efforts by the world’s largest Muslim movement to recontextualize Islam during a forthcoming visit to Indonesia as part of a three-nation Asian tour. The tour is likely to be the secretary’s last official trip prior to next month’s US presidential election.

Mr. Pompeo’s engagement with Nahdlatul Ulama, a powerful Islamic grouping in Indonesia, with an estimated following of 50 million people, takes on added significance against the backdrop of the Trump administration’s push for a definition of human rights that redefines notions of freedom of religion at the expense of other basic rights in advance of a hard fought election that Donald J. Trump could lose.

It also comes as French President Emmanuel Macron kicked into high gear his self-declared mission of reforming what he has termed an Islam that “is a religion that is in crisis all over the world” in the wake of the gruesome murder of Samuel Paty, a 47-year old teacher.

Mr. Paty was killed by an 18-year old youth of Chechen descent after he used cartoons depicting the Prophet Mohammed in a class about freedom of expression.

The Indonesia-leg at the end of Mr. Pompeo’s tour, which is first taking him to India and Sri Lanka, similarly comes as Nahdlatul Ulama, an independent civil society movement, competes globally with Saudi, United Arab Emirates, and Turkish state-backed efforts to garner religious soft power and shape the definition of what constitutes moderate Islam.

Nahdlatul Ulama was founded almost a century ago in opposition to Wahhabism, the austere interpretation of Islam, that has largely guided Saudi Arabia since its founding in 1932.

Mr. Pompeo and his top aides are scheduled to participate in two days of events in the Indonesian capital organized by Nahdlatul Ulama to nurture “the shared civilizational aspirations” of Indonesia, the United States and Islam, defined by the group with the Qur’anic phrase that the faith is “a source of universal love and compassion.”

By giving Nahdlatul Ulama the State Department’s seal of approval, Mr. Pompeo is implicitly acknowledging the fact that the group unlike its rivals in the quest for religious soft power has started to put its money where its mouth is.

Unlike its soft power rivals, Nahdlatul Ulama has spelt out its definition of moderate Islam with its adoption in 2015 of the concept of Nusantara (Archipelago) or humanitarian Islam that calls for a full embrace of the United Nations Declaration of Human Rights (UNHDR).

Countries like Saudi Arabia and the UAE project themselves as models of undefined forms of moderate Islam manifested by engagement in inter-faith dialogue and varying degrees of religious tolerance.

They have, however, stopped short of addressing theologically problematic concepts like that of kafirs or infidels, the Muslim reference to non-Muslims, slavery, dhimmis, people of the book that Islam recognizes but accords a lesser status than Muslims, apostasy, and blasphemy.

They have also manoeuvred in inter-faith gatherings to evade unrestricted support of the UN human rights declaration.

By contrast, Nahdlatul Ulama has taken initial steps in that direction even if it still has a ways to go. Thousands of the group’s religious scholars issued a fatwa or religious opinion that eliminated the notion of infidels, effectively removing one pillar of Muslim perceptions of religious supremacy.

Based on statements by Nahdlatul Ulama leaders, the group’s scholars are likely to next do away with the legal concept of slavery.

The group’s litmus test will be if and when it takes on apostasy and blasphemy, concepts that are certain to be far more emotive and controversial. Nahdlatul Ulama officials say the group has long accepted in practice conversion away from Islam.

Mr. Pompeo’s acknowledgement of Nahdlatul Ulama further suggests that the State Department recognizes that religious reform is more likely to successfully be enacted by independent civil society actors with proper religious credentials and a significant following rather than states.

It is a recognition that by implication highlights the limitations of efforts by states, including Saudi Arabia, the UAE and Turkey, to define the essence of Islam as well as Mr. Macron’s ambition to solve the faith’s problems for it.

Mr. Pompeo lands in Jakarta shortly after signing the Geneva Consensus Declaration alongside a host of countries that propagate conservative values and rank low on Georgetown University’s Women, Peace and Security Index.

The declaration seeks to promote women’s rights and health and strengthen the family but emphasizes that “in no case should abortion be promoted as a method of family planning.”

It stipulates that there is “no international right to abortion, nor any international obligation on the part of States to finance or facilitate abortion.”

The declaration’s signatories include Saudi Arabia, Bahrain, the UAE, Iraq, Sudan, South Sudan, Libya, Egypt, Belarus, Hungary, and Indonesia.

Many of the signatories are members of the Group of Friends, a block of 25 nations in the United Nations that seeks to pre-empt any expansion of rights for girls, women, and LGBT people and weaken international support for the Beijing Declaration, a landmark 1995 agreement that stands as an internationally recognized progressive blueprint for women’s rights.

Much of the group’s positions are coordinated by the Center for Family and Human Rights, or C-Fam, a small but influential far-right group that focuses on abortion, sexual orientation and gender identity. C-Fam has worked closely with the State Department dating back to the administration of US President George W. Bush.

Accompanied by among others Mary Ann Glendon, the head of the State Department’s Commission on Unalienable Rights, Mr. Pompeo’s arrival in Jakarta also comes after the centre-right Centrist Democrat International (IDC-CDI), the world’s largest alliance of political parties, acknowledged the Commission’s report as “a re-affirmation of the spirit and substance of fundamental human rights.”

Indonesia’s National Awakening Party (PKB), which has five seats in President Joko Widodo’s cabinet and is an influential member of IDC-CDI, is closely associated with Nahdlatul Ulama.

Critics have charged that the Commission’s report fuels assertions that there are too many human rights and prioritizes religious liberty and property rights at the expense of protections against discrimination particularly on the basis of gender.

As a result, Mr. Pompeo’s endorsement of Nahdlatul Ulama could prove to be a double-edged sword. It strengthens the group’s proposition, yet also identifies it with one faction in a global battle that not only seeks to define the soul of Islam but also fundamentally shape what constitutes a human right.

Continue Reading

Southeast Asia

Lessons from Cambodia and the way ahead- quest for peace and reconciliation

Published

on

Khieu Samphan (left) and Nuon Chea in the Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC). File photo. Photo: ECCC

Victims are Cambodians, the criminals are Cambodians, and the crimes were committed on Cambodian soil!

This was the justification given by the Cambodian Government under Hun Sen to establish the Cambodian Khmer Rouge Tribunal (KRT) formally known as the Extraordinary Chambers in the Courts of Cambodia (ECCC) – a hybrid Cambodian-International Court in conjunction with the International Community in 2006 under the Cambodian law to try leaders most responsible for perpetrating gross violations of human rights during the Pol Pot and Khmer Rouge period from 1975 to 1978. However, even before the establishment of the Tribunal, the members of the International Community in the panel was reduced in compliance with the request made by Cambodia at the UN General Assembly moreover with its implementation the Tribunal witnessed an increased political interference diluting the whole process. Thus the success of any such program will depend on the commitments and cooperation from the Government

Compromise made over justice for Peace and Reconciliation and its worth

With its 16 years of work in the country, the court is now coming to close with sentencing just three of the perpetrators for life imprisonment – despite the heavy investments made by external actors and of the struggles and the criticisms faced, as a result of adhering to the Cambodian Government’s request pointing to a renewed civil war within the country- destabilizing peace, economic growth, social order, and political stability, if the court moved ahead with its trials.

Thus, there was a dilemma on how to balance the prospective and retrospective justice, most importantly the Tribunal has been a setback to scholars of Transitional Justice, who believed to achieve through the TJ mechanism, a strengthened rule of law, democratic transition, and fair and transparent political institutions that victims can trust, instead, the court helped in legitimizing the authoritarian regime. The failure was more associated with the political compromise allowed to be made respecting the sovereignty, thereby allowing the government to choose how to deal with its violent past, while the critics point out “whether there had been a better option”.

However citing the Cambodian case study, questions have been raised against the scholars who preferred the ‘maximalist approach’ emphasizing the justice, on whether it had been possible and was practical to carry out the trials for all perpetrators or for the criminals who conducted the gravest crime, to stop the elite from securing impunity, strengthen the democracy or to serve as a model contributing to a strong independent judicial system. Critics also pointed out the heavy expenditure incurred, pointless testimonies and documentaries submitted as evidence, against victim’s testimony censorship, and on the accessibility of the court system to the poor. Debates also brought in the need to consider the time factor for retributive justice, pointing the consequences associated with the delay made in taking action (by the time court decided to sentence criminals for life long sentences, they were suffering from old age diseases, and even some of the victims were suffering from amnesia).

Cambodian Dilemma and questions raised against Transitional Justice

The Cambodian case brought in new dilemmas for retributive justice supporters with the ‘Karmic justice’ belief by the victims, pointing out how cultural barriers can affect the Westernized Transitional Justice mechanisms and asking to what extent does Transitional Justice appear as ‘savior’ for the victims of Khmer regime and against the TJ’s employing of particular tool-kit without understanding society and of expecting the local populations to fit into their prescribed template and finally against the voices that speak for or represent the victim’s demands. The whole idea of the hybrid court thus gets questioned with Cambodians different understanding of justice. This understanding has also questioned whether the justice had contributed to reconciliation (which some scholars consider as complementary strands of peace-building), through the reparations, forgiveness, and apologies for historical injustices made to repair the relationships between victims and perpetrators.

Different voices have been raised- some claiming reconciliation remains elusive with many of the members involved in the violence still serving in the Government, thus questioning the Government’s legitimacy and on the interest of the International actors to entrust them to carry out the TJ mechanism, and against the resistance of some International actors and the Government to dig into the past and on fixing the time frame for transitional justice actors to look into, critics also points out the emotionless and insincere apology made by the perpetrators which revictimized the victims and on giving amnesty to perpetrators purely on regimes interest and finally on classifying the perpetrators as poor thus not allowing the victims to claim reparation.

Way Ahead

However, on a positive note, this partial retributive justice, empowered the victims after receiving acknowledgment from the Government, besides it paved the way for the current Cambodian generation to understand their past and gave voice to the victims by allowing them to share their stories. Above all, it helped construct history about the forgotten and erased atrocities done by the Khmer regime from school curriculums and minds of the larger public and finally contributed to the rise of civil society organizations, and helped preserve the crime sites, pressured authorities to construct the museums and library, and in fixing a national commemoration day. All these efforts have helped prevent relapsing into violence to date, thus behind the criticisms, this genuine accomplishment shouldn’t be ignored. It is now important to not let all these efforts go in vain, to not be a passive observer for the marginalization and disempowerment of victims to take place, to not let the society have a faded or distorted version of history. The Memories must be kept alive through all generations, the sites, rituals, ceremonies, must be preserved. Most of all, the victims must be provided with platforms to express their traumatic experience and it must be ensured that the regime doesn’t engage in acts that hurt the sentiments of the victims and the dead must be honored. Thus a culture that respects human rights can help in achieving sustainable peace and reconciliation and gradually reduce the mistrust between the State and the victims and help in healing the past trauma and restore the dignity of the victims. 

Moreover, it must be made clear to the regime that this retributive justice is the only first step to achieve reconciliation. Through the civil society the local reconciliation, documentation of victim’s concerns, and peace-building efforts must be supported. At the same time, it should also be ensured that these efforts get acknowledged at the national level. Further, the underlying causes of the conflict must be studied in detail, and failures from Cambodia should be taken as a reference by Transitional Justice scholars. Most importantly the concentration must shift to root causes through critical ethnographic studies, understanding how the cultural barriers can affect the Transitional justice mechanism and by taking note of the immediate needs of the victims ( the economic, social, and cultural rights), thus gradually helping the victims to integrate into the mainstream society. Failure to do so can make society relapse into violence moreover criticisms will arise against the external actor’s intervention and interest to create a stable market society.

Continue Reading

Southeast Asia

Yoshihide Suga’s Official Trip: What Does He Expect from Vietnam and Indonesia?

Published

on

Prime Minister Yoshihide Suga arriving in Indonesia. Image source: japan.kantei.go.jp

Prime Minister Yoshihide Suga’s certainly understands the political importance of continuity, especially in Southeast Asia. Suga making a first stop in Hanoi, Vietnam and his second visit in Jakarta, Indonesia. Southeast Asian countries as key to pursuing Japan’s “free and open Indo-Pacific,” strategy. There must be other reasons for Suga to visit these two countries, Vietnam is current ASEAN chair, while Indonesia as the only member of the Group of 20 major economies from Southeast Asia. Both of them have important roles to share historical, economic cooperation, and political ties. Are those the only reasons?

Katsunobu Kato, a cabinet secretary Japan, states that Indonesia and Vietnam as the partners to exchange opinions over how to handle the regional and global impeding agendas such cooperation for realizing a fee and open Indo-Pacific strategy, address South China Sea issues and North Korean Situations. hence, there are three keys Suga’s first foreign visit as Japan PM amid Chinese Aggression in South China Sea, Indo-Pacific Partnership and North Korea situation.

As one of the key strategic Japanese objective to expand Indo-Pacific Partnership by implementing an internal balancing that involves efforts to enhance the state’s power by increasing one’s economic resources and military strength in order to be able to rely on independent capabilities in response to a potential hegemon, in this case China, and be able to compete more effectively in the international system. Promoting coordination between partners like Indonesia and Vietnam and helping both countries to strengthen their economic and maritime capabilities to build up resilience in front of Chinese aggression and its influence.

During the pandemic, Japan economy has been hit harder by the crisis than the US or EU that 3.4% fall in growth domestic product (GDP) for the first three months of 2020. Since the Tokyo 2020 Olympic Games will be postponed until next year, due to the COVID-19 pandemic. As a result of this, Japan is set to suffer severe economic blows. Vietnam’s growth potential and low-cost labor supply continue to curry favor among Japanese companies, making Vietnam has been selected by Japanese firms as the most promising place in Asia to invest in 2020with 42.1 percent of the 820 valid responses. Previously, Japan has given ¥200 million in aid to help Vietnam fight the COVID-19 pandemic. On the other hands, Suga pledged low-interest loans of 50 billion yen ($473 million) to Indonesiato overcome with the economic fallout from the coronavirus pandemic. As the symbols of strong friendship ties between Indonesia and Japan, which support each other’s.

Japan also seek stronger security, Vietnam is critical to the balance of power in Asia and Indonesia faced off against China in the Natuna Sea. In order to response the Chinese Aggression in South China Sea, Japan seeks to strengthen ties with countries in the region amid growing tensions between its main security ally the United States and its biggest trading partner China, over trade, security. Japan hailed an agreement in principle to supply Vietnam and Indonesia with military gear and technology to response the China’s assertiveness in the region. China claims some part of Vietnam’s exclusive economic zone as well as the Paracel and Spratly Islands while Indonesia has been angered by Chinese coast guard intrusions into Natuna Islands. In this regard, Suga expect that both of Indonesia and Vietnam will agree to work together over a range of regional issues, including China’s growing maritime presence in South China Sea. Japan wanted to emphasize that the existence of Indonesia and Vietnam was very important in the eyes of Japan. In this context, Indonesia and Vietnam is expected not to rely only on one country, which is China, with its economic and technological strength. Meanwhile, Japan also wants to invite Indonesia and Vietnam to continue developing growth in the Indo Pacific region. Since Indonesia is currently pursuing stronger relations with countries in Africa through the Indonesia-Africa Infrastructure Dialogue. On the other hand, Vietnam has been making great strides in projecting itself as an effective leader, particularly with its proactive governance in handling the COVID-19 pandemic, climate change policy, and for its political stability.

Balancing encompasses the actions that a particular state or group of states take in order to equalize the odds against more powerful states. Prime Minister Yoshihide Suga is thus seeking to build a network and partners in the Indo-Pacific, both to strengthen the current alliance system but also to proactive in defending its own interests. Vietnam and Indonesia were key to pursuing multilateral economic and security cooperation to counter China’s growing power and protect sea lanes in disputed areas of the South China Sea.

Continue Reading

Publications

Latest

Trending