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The 2020 ˋBattleˊ of Diplomatic Notes Opens the Door to a Possible Solution for the South China Sea Disputes

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Exactly one year ago [December 12, 2019], the government of Malaysia submitted part of its continental shelf claim in the South China Sea to an international commission, pursuant to its rights as a coastal state under international law.  Over the past year, that submission has led to a flurry of 25 diplomatic notes exchanged by 10 sovereign states.  These states have included claimants (i.e., China, Indonesia, Malaysia, Philippines, and Vietnam) and non-claimants (i.e., Australia, France, Germany, United Kingdom and United States).  Together, they represent four of the five permanent members of the U.N. Security Council, three non-permanent members of the Security Council, three of the four largest economies of the world, seven of the 20 largest economies of the world, and four of the 10 most powerful navies in the world.  A global spotlight is now shining on this international situation.

Some observers have colorfully described this 2020 exchange of diplomatic notes as a “battle,” but this development has been positive in a several ways.  First, this behavior among states is peaceful in nature.  Diplomats exchanging letters is better than soldiers and sailorsexchanging bullets.  Second, these notes are official in nature.  This helps reduce confusion as to whether a speaker or publication is representing a government’s actual position.  Third, these diplomatic notes provide some transparency, as they have been shared with the world and are now a matter of public record.  Thus, states can identify where they share common ground on their national perspectives. 

Unfortunately, this exchange of notes also shows that it will be impossible for the smaller claimant states to resolve their disputes with China solely through negotiations. Contemporary negotiating theory says that parties to a negotiation can “get to yes” and reach an agreement only if there is a zone of possible agreement (or “ZOPA”) of options that are acceptable to all of the parties.  Given China’s refusal to abandon its invalidated nine-dash line claim that overlaps with the legitimate maritime zones of every other claimant state, there is no ZOPA among the claimant states.  Is there anything that Hanoi, Jakarta, Kuala Lumpur, or Manila could say across a negotiating table to Beijing that would convince them that their claims are superior?  Is there anything that Beijing could say to those capitals that would convince them that China’s claims are superior?  If the answer to both of these questions is No, then the reality is that these claimants will never be able to “get to yes” and resolve these disputes with China solely at a negotiating table.

Fortunately, however,the 2020 exchange of diplomatic notes has opened the door to a potential solution for the South China Sea disputes.  The commonalities in some of these diplomatic notes suggest that the smaller claimant states could collectively develop and pursue an alternative way to resolve the South China Sea disputes peacefully.  This approach which would involve a combination of more diplomatic notes, followed by the use of a bargaining table, and concluding in an international courtroom.

First, the smaller claimant states could coalesce around a consensus position.  More specifically, the governments of Indonesia, Malaysia, Philippines, and Vietnam could each issue a diplomatic note with an attached joint statement.  Their collective declaration in this joint statement could include the following four elements:

(1) China’s nine-dash line and “historic rights” are invalid as maritime claims;

(2) None of the geographic features in the South China Sea is entitled to a 200 nautical mile exclusive economic zone (EEZ);

(3) No naturally-submerged feature or stand-alone low-tide elevation in the South China Sea may be upgraded by reclamation activities to an island entitled to a territorial sea; and

(4) Only archipelagic states may lawfully draw straight baselines around a group of off-shore islands. 

Each of these elements of the joint statement is not far-fetched, but rather has already been expressed in one or more of the diplomatic notes unilaterally tendered by one or more of these four states in 2020.  Through this consolidated position, these smaller claimant states could find bargaining power in numbers.

Second, these four smaller claimant states could then collectively propose the following way-ahead to China for resolving the South China Sea disputes:

(1) Each claimant state surrounding the South China Sea could draw a 200 nautical mile belt of EEZ from its mainland coast;

(2) For each area where two coastal states would have overlapping belts of EEZ, those two states could adopt “provisional arrangements” (i.e., temporary measures) until the boundary dispute is resolved, under which both states may exploit natural resources in the overlapping areaand both states may enforce their national laws to police resource-related activities by third parties;

(3) States could draw a 12 mile “enclave” around each naturally-formed high-tide elevation in the South China Sea.  For those located within 200 miles of a claimant state’s coastline and currently unoccupied, the coastal state could administer that enclave as a provisional arrangement as part of its EEZ.  For those located within 200 miles of a claimant state’s coastline and currently occupied by another claimant state, the occupying state could administer that enclave as a provisional arrangement.

(4) All of the coastal states surrounding the South China Sea could expressly consent to submit all remaining legal issuesto the International Court of Justice (ICJ) as a multi-party, consolidated case.  Gradually, the ICJ could then determine feature-by-feature who has sovereignty of each of the high-tide elevations and its surrounding territorial sea, and also delineate “equitable solutions” for the maritime boundary in areas of overlapping EEZs between mainland coastlines.

This proposed way-ahead would fully comport with all applicable international law. Additionally, it would be the most equitable solution for all of the claimant states.  Each state would have a maximized EEZ along its mainland coast, where it could predictably enjoy and enforceitssovereign rights for fishing and exploiting other natural resources. Collectively, it would achieve a peaceful resolution to all of these territorial and maritime disputes in the South China Sea and enhance regional security and stability, which would benefit claimant states and non-claimant states.

The substantive elements of this potential solution are easy to understand.  The difficulty lies in the governments of the claimant states demonstrating the political will to pursue it.  Admittedly, this way-ahead would take years to complete.  But to paraphrase an ancient proverb in the region, the resolution of a thousand disputes could begin with a single diplomatic step.

The views expressed are those of the author and do not necessarily represent the views of the U.S. Department of Defense or its components.

Jonathan G. Odom is a judge advocate (licensed attorney) in the U.S. Navy. Currently, he serves as a Military Professor of International Law at the George C. Marshall European Center for Security Studies, located in Garmisch-Partenkirchen, Germany. Previously, he has served as the oceans policy adviser in the Office of the U.S. Secretary of Defense and as a Military Professor of law and Maritime Security at the Daniel K. Inouye Asia-Pacific Center for Security Studies. The views expressed are his own and do not necessarily reflect the positions of the U.S. Government, the U.S. Department of Defense or any of its components. He may be contacted at jonathan.odom[at]usa.com

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Southeast Asia

Learning to build a community from a ”Solok Literacy Community”in the West Sumatra

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Established on September 21, 2020 in Solok City, West Sumatra Province, Indonesia. Solok Literacy Community initiated by the young people of Solok City has grown rapidly into a community that has its own trendsetter among young people. Bringing narratives smelling of education, The Literacy Solok Community has a movement with measurable progressiveness that can be seen from its flagship programs.

Starting from the free reading stall movement that has been moving in various corners of Solok City over the past few months. The concept of film surgery that provides proactive discussion space for all segmentation in society. “Diskusi Ngopi” activities which in fact is the concept of FGD (Focus Group Discussion), run with interesting themes and issues so that it can be considered as one of the favorite programs that are often attended by many young people in Solok. Then a class of interests and talents aimed at reactivating the soft skills and great talents of the children of Solok City.

Solok Literacy Community has a long-term goal of making Solok City as a Literacy City in 2025. With these noble targets, of course we together need small steps in the form of programs that run consistently over time. Because after all, a long journey will always begin with small steps in the process of achieving it.

Many appreciations and positive impressions from the surrounding community continue to be received by the Solok Literacy Community. This is certainly a big responsibility for the Solok Literacy Community to continue to commit to grounding literacy in Solok City. Solok Literacy Community activities can be checked directly through instagram social media accounts @solok_literasi. Carrying the tagline #penetrategloomy or penetrating the gloom and #lawanpembodohan, members of the Solok Literacy Community or better known as Soliters, will always make innovative breakthroughs in completing the goal of making Solok City 2025 as a Literacy City.

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Southeast Asia

Indonesia Submit Extended Continental Shelf Proposal Amidst Pandemic: Why now is important?

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Authors: Aristyo Rizka Darmawan and Arie Afriansyah*

Indonesia’s active cases of coronavirus have been getting more worrying with more than 100.000 active cases. With nearly a year of pandemic, Indonesia’s not only facing a serious health crisis but also an economic catastrophe. People lose their jobs and GDP expected to shrink by 1.5 percent. Jakarta government therefore should work hard to anticipate the worst condition in 2021.

With this serious economic threat, Indonesia surely has to explore maximize its maritime geographic potential to pass this economic crisis and gain more national revenue to recover from the impact of the pandemic. And there where the Extended Continental Shelf submission should play an important role.

Recently this week, Indonesia submit a second proposal for the extended continental shelf in the southwest of the island of Sumatra to the United Nations Commission on the Limit of the Continental Shelf (CLCS). Continental shelf is that part of the seabed over which a coastal State exercises sovereign rights concerning the exploration and exploitation of natural resources including oil and gas deposits as well as other minerals and biological resources.

Therefore, this article argues that now is the right time for Indonesia to maximize its Continental Shelf claim under the law of the sea convention for at least three reasons.

First, one could not underestimate the economic potential of the Continental Shelf, since the US Truman Proclamation in 1945, countries have been aware of the economic potential from the oil and gas exploration in the continental shelf.

By being able to explore and exploit natural resources in the strategic continental shelf, at least Indonesia will gain more revenue to recover the economy. Even though indeed the oil and gas business is also hit by the pandemic, however, Indonesia’s extended continental shelf area might give a future potentials area for exploitation in long term. Therefore, it will help Indonesia prepare a long-term economic strategy to recover from the pandemic. After Indonesia can prove that there is a natural prolongation of the continental shelf.

Second, as the Indo-Pacific region is getting more significant in world affairs, it is strategic for Indonesia to have a more strategic presence in the region. This will make Indonesia not only an object of the geopolitical competition to utilize resources in the region, but also a player in getting the economic potential of the region.

And third, it is also showing that President Joko Widodo’s global maritime fulcrum agenda is not yet to perish. Even though in his second term of administration global maritime fulcrum has nearly never been discussed, this momentum could be a good time to prove that Indonesia are still committed to the Global maritime fulcrum by enhancing more maritime diplomacy.

Though this is not the first time Indonesia submit an extended Continental Shelf proposal to the CLCS, this time it is more likely to be accepted by the commission. Not to mention the geographical elements of natural prolongation of the continental shelf that has to be proved by geologist.

The fact that Indonesia has no maritime border with any neighboring states in the Southwest of Sumatra. Therefore, unlike Malaysia’s extended continental shelf proposal in the South China Sea that provoke many political responses from many states, it is less likely that Indonesia extended continental shelf proposal will raise protest from any states.

However, the most important thing to realize the potential benefit of the extended continental shelf as discussed earlier, Indonesia should have a strategy and road map how what to do after Indonesia gets the extended continental shelf.

*Arie Afriansyah is a Senior Lecturer in international law and Chairman of the Center for Sustainable Ocean Policy at University of Indonesia.

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Southeast Asia

The China factor in India’s recent engagement with Vietnam

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Photo courtesy - PTI

In its fourth year since the elevation of ties to a Comprehensive Strategic Partnership, December 2020 witnessed an enhanced cooperation between New Delhi and Hanoi, ranging from humanitarian assistance and disaster relief to defence and maritime cooperation, amid common concerns about China.

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In an effort to boost defence cooperation, the navies of India and Vietnam conducted atwo-day passage exercise (Passex) in the South China Sea on December 26 and 27, 2020, reinforcing interoperability and jointness in the maritime sphere. Two days before this exercise has begun, an Indian naval ship arrived at Nha Rong Port in Ho Chi Minh City to offer humanitarian assistance for the flood-affected parts of Central Vietnam.

Before this, in the same week, during a virtual summit between Indian Prime Minister Narendra Modi and his Vietnamese counterpart Nguyen Xuan Phuc on December 21, both countries inked seven agreements on miscellaneous areas of cooperation and jointly unveiled a vision and plan of action for the future, as both countries encounter the common Chinese threat in their respective neighbourhoods.

Vietnam’s disputes with China

India’s bone of contention with China ranges from the Himalayas to the Indian Ocean. Both Vietnam and India share territorial borders with China. Well, it seems odd that despite its common socialistic political backgrounds, China and Vietnam remains largely hostile. 

Having a 3,260 km coastline, covering much of the western part of South China Sea, Vietnam’s exclusive economic zone (EEZ) overlaps with Chinese claims based on the legally invalid and vaguely defined Nine-Dash Line concept, unacceptable for all the other countries in the region, including Vietnam, Philippines, Malaysia, and Brunei.

In 2016, China lost a case brought out by the Philippines at the Permanent Court of Arbitration based in The Hague when the court ruled that Beijing’s had no legal basis to claim ‘historic rights’ as per the nine-dash line. China rejected the ruling and continued to build artificial islands in the South China Sea, which it has been doing since 2013, some of them later militarized to gain favourable strategic footholds in the sea and the entire region.

The Paracel and the Spratly Islands in the South China Sea has been historically considered part of Vietnam. The Geneva Accords of 1954, which ended the First Indochina War, gave the erstwhile South Vietnam control of territories south of the 17th Parallel, which included these island groups. But, China lays claims on all of these islands and occupies some of them, leading to an ongoing dispute with Vietnam.

China and Vietnam also fought a border war from 1979 to 1990. But today, the disputes largely remain in the maritime sphere, in the South China Sea.

China’s eyes on the Indian Ocean

The Indian Ocean has been long regarded as India’s sphere of influence. But with the Belt and Road Initiative, a trillion-dollar megaproject proposed by Chinese President Xi Jinping in 2013, and the Maritime Silk Road connecting three continents, which is part of it, China has grand ambitions in the Indian Ocean. Theories such as ‘String of Pearls’ shed light on an overambitious Beijing, whichattempts to encircle India with ports and bases operating under its control.

China has also opened a military base in Djibouti, overlooking the Indian Ocean, in 2017 and it has also gained control of the strategic port of Hambantota in the southern tip of the island of Sri Lanka, the same year.

Chinese presence in Gwadar in Pakistan, where the Maritime Silk Route meets the land route of BRI, is also a matter of concern for India. Moreover, the land route passes through the disputed Gilgit-Baltistan region, which is under Pakistani control, but is also claimed by India.  China has also been developing partnerships with Bangladesh and Myanmar to gain access to its ports in the Bay of Bengal.

Notwithstanding all this, India’s response has been robust and proactive. The Indian Navy has been building partnership with all the littoral states and small island states such as Mauritius and Seychelles to counter the Chinese threat.

India has also been engaged in humanitarian and developmental assistance in the Indian Ocean region, even much before the pandemic, to build mutual trust and cooperation among these countries. Last month, India’s National Security Adviser Ajit Doval visited Sri Lanka to revive a trilateral maritime security dialogue with India’s two most important South Asian maritime neighbours, the islands of Sri Lanka and the Maldives.

Foe’s foe is friend

The Indian Navy holding a Passex with Vietnam in the South China Sea, which is China’s backyard, is a clear message to Beijing. This means, if China ups the ante in the Indian Ocean or in the Tibetan border along the Himalayas, India will intensify its joint exercises and defence cooperation with Vietnam.

A permanent Indian presence in the South China Sea is something which Beijing’s never wish to see materialise in the new future. So, India’s engagement with Vietnam, which has a long coast in this sea, is a serious matter of concern for Beijing.

During this month’s virtual summit, Prime Minister Modi has also reiterated that Vietnam is a key partner of India in its Indo-Pacific vision, a term that Beijing vehemently opposes and considers as a containment strategy against its rise led by the United States.

Milestones in India-Vietnam ties – a quick look-back

There was a time when India supported Vietnam’s independence from France, and had opposed US-initiated war in the Southeast Asian country in the latter half of the previous century. Later, India hailed there-unification of North and South Vietnams.

Even though India maintained consulate-level relations with the then North and South Vietnams before the re-unification, it was elevated to ambassadorial level in 1972, thereby establishing full diplomatic ties that year.

During the Vietnam War, India supported the North, despite being a non-communist country, but without forging open hostilities with the South. Today, India partners with both France and the United States, Vietnam’s former colonizers, in its Indo-Pacific vision, comfortably along with Vietnam as geopolitical dynamics witnessed a sea change in the past few years and decades.

Way ahead

Today, these two civilizational states, sharing religio-cultural links dating many centuries back, is coming together again to ensure a favourable balance of power in Asia. Being a key part of India’s ‘Act East’ policy and ‘Quad Plus’ conceptualisation, Vietnam’s role is poised to increase in the years to come as China continues to project its power in Asia and beyond.

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