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Proposed Solution to South China Sea Disputes is Unrealistic

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Modern Diplomacy published a proposed solution to the South China Sea disputes. The proposal suggests that the ASEAN claimant states – Indonesia (which claims it is not a party to the dispute), Malaysia, the Philippines and Vietnam form a united front that makes a joint declaration on issues they agree on and then issues a joint proposal for resolving the disputes.  (It is unclear why the proposal excludes Brunei – another claimant heavily dependent economically on China). Such attempts to find a solution to these seemingly intractable and dangerous disputes is a welcome respite from the usual China-bashing and calls for more US military intervention. But unfortunately it is unrealistic. While it is true that some of the elements of the proposed joint statement have been expressed individually and buried in ASEAN statements, a claimants’ joint statement against China regarding its claims would be a significant next level political statement that would provoke blowback from China.  International law does not exist in a political vacuum nor does it implement itself.

Indeed, the major flaw in this proposal is that it ignores the fundamental interests and influence of China, the region’s dominant indigenous power.  In brief, China believes that the former Western colonies are stealing its fish and petroleum in collaboration with outside Western companies and powers.  Worse, it thinks that the U.S. is using the disputes and the claimants to contain and constrain what it sees as its rightful rise to regional domination. 

The point is that China would not sit idly by if these claimants try to implement a proposal that treats China’s claims as invalid and denies any share in the resources in the disputed area.   These claimants all want China’s continued economic largesse and each has their own political/military reasons for not wanting to fall out of its favor. China will likely use their individual needs as leverage to prevent such unity against it.

Indonesia’s principle security concern is internal stability.  To maintain that stability it needs rapid economic growth and China provides significant economic assistance and investment. Despite its differences with China in the South China Sea, it has so far preserved its national interests without endangering its Chinese investment or providing sufficient fodder for its domestic anti- China nationalists. Unless China loses patience and does something really foolish to upset the relations applecart, Indonesia is unlikely to abandon this “delicate equilibrium”. (see Prashanth Parameswaran, “Delicate Equilibrium: Indonesia’s Approach to the South China Sea”.

 Malaysia as its then Prime Minister Mahathir Mohammad said, is simply “too small to face up to China.”  Moreover, China and Malaysia have agreed to a joint dialogue mechanism to search for solutions to their  South China Sea disputes.

The Philippines will not join such a ‘front’—at least under President Rodrigo Duterte. He has made his own political accommodation with China.

But issuing a joint statement is only the first hurdle in the proposal. If these claimants were to issue such a statement, the proposal then encourages them to define their EEZs and to provisionally share the resources in disputed areas. Versions of this temporary solution have been proposed before but to little avail.

It also suggests “all of the coastal states _ _ could expressly consent to submit all remaining legal issues to the International Court of Justice (ICJ) as a multi party, consolidated case.” But for the ICJ to entertain a case, both or all parties must agree to submit to its authority. None of these countries are likely to agree to do so.  They have had bitter experiences with international adjudication —  Malaysia with its loss to Singapore over Pulau Batu Puteh Indonesia o with its loss to Malaysia of Sipandan/Ligatan and of course China’s loss to the Philippines (an arbitration it refused to participate in or recognize).

Moreover settlement of these disputes through the ICJ would raise sovereignty issues including over Sabah (Malaysia/Philippines) and over the Paracel Islands (China/Vietnam), the latter because of China’s possible claim from them to part of Vietnam’s claimed EEZ and continental shelf. Agreeing to share resources in areas of overlapping EEZs based on disputed territory could imply recognition of the validity of the opposing sovereignty claim and thus claimants will be reluctant to do that.

The Sabah dispute is particularly sensitive. The Philippines objected to the 2009 Malaysia-Vietnam joint extended continental shelf claim because part of it was based on Malaysia’s state of Sabah.  Malaysia’s 2019 extended continental shelf claim is also partially based on Sabah. The Philippines’ objection is not likely to change because the Philippines claim to Sabah is part of its constitution.

When Malaysia and Vietnam were preparing their joint submission to the UN Commission on the Limits of the Continental Shelf, the Philippines was asked if it wanted to join as it would strengthen their individual positions against China’s sweeping claims. The Philippines replied that Malaysia  could make almost the same claim from Sarawak and the Peninsula and that if it dropped Sabah as a base point for an extended continental shelf, it would not object to the submission.   Malaysia did not do so — perhaps because it intended to eventually make its more recent claim also from Sabah. So the Philippines formally objected.  It stated that it was “requesting the Commission to refrain from considering the submissions unless and until the parties had discussed and resolved their disputes.” 

 It is simply unrealistic to leave China’s interest and influence out of the equation.  The only peaceful way out is compromise. The Philippines and China may be on the verge of showing the way. Now –after years of virulent criticism of Duterte’s policy regarding China’s South China Sea claims, retired Philippines Supreme Court Justice Antonio Carpio is praising its results. He says China has made a “soft admission” of the Philippines EEZ claim.  He says “The _ _ _ arrangement will satisfy the objective of the Philippines to preserve its sovereign rights in the EEZ in the West Philippine Sea [by retaining its Constitutionally -required 60 percent of the proceeds]. He says “it would also allow China, through its state-owned enterprise CNOOC and CNOOC’s partners, to get 40 percent of the net proceeds of the gas in Reed Bank.”  Another vociferous critic of Duterte’s policies former Secretary of Foreign Affairs Albert Del Rosario praised the tentative arrangement as a “constructive move”.

This praise may be premature.  The proof will be in the pudding.  But the agreement that appears to be taking shape is indeed promising.  Such an arrangement would ensure that the Philippines retains sovereignty over the resources. Indeed, it enabled Harry Roque, Duterte’s spokesman to say that allowing the exploration in the disputed area to proceed “was an exercise of the Philippines’ exclusive right in the area”. In other words it was an implementation of the Philippines’ arbitration victory.  On the other hand, assuming CNOOC is the minority partner, China’s leaders can argue to their people that the Philippines has tacitly acknowledged its claim to resources in the Philippines claimed EEZ by agreeing to give it a 40 percent share in the Reed Bank project.  Philippines Energy Secretary Alfonso Cuisi said “If they [ Philippines majority owned Forum Energy] can’t do it [by themselves –which they can not] and they need a partner, they have to [emphasis added] partner with China.”

Such an agreement—that implicitly gives China first refusal to participate in oil exploration projects in disputed areas– would also earn considerable and needed goodwill for China in the region and set a precedent for solutions to its disputes with its other rival claimants. By accepting this slight of hand, China would also be demonstrating that it can resolve its regional disputes to mutual satisfaction without the involvement of outside powers.

 China recognizes that its relationship with the Philippines regarding the South China Sea is being watched carefully by the other claimants and it seems to be trying to make it a “showcase of its peaceful dispute management and good neighbor policy.”

Similar arrangements with other claimants could be the way forward. But disputes involving maritime claims based on disputed territory are another matter and perhaps best left for future generations to resolve.

Dr. Mark J. Valencia is an internationally recognized maritime policy analyst, political commentator and consultant focused on Asia. Most recently he was a Visiting Senior Scholar at China’s National Institute for South China Sea Studies and continues to be an Adjunct Senior Scholar with the Institute. Dr. Valencia has published some 15 books and over 100 peer-reviewed journal articles and has been a frequent oped contributor to prominent public media. Selected major policy relevant works include The Proliferation Security Initiative : Making Waves in Asia (Adelphi Paper 376, International Institute for Strategic Studies, October 2005), Military and Intelligence Gathering Activities in the Exclusive Economic Zone : Consensus and Disagreement (co-editor, Marine Policy Special Issues, March 2005 and January 2004); Maritime Regime Building: Lessons Learned and Their Relevance for Northeast Asia (Martinus Nijhoff, 2002); Sharing the Resources of the South China Sea (with Jon Van Dyke and Noel Ludwig, Martinus Nijhoff, 1997); A Maritime Regime for Northeast Asia (Oxford University Press, 1996); China and the South China Sea Disputes (Adelphi Paper 298, Institute for International and Strategic Studies, 1995); Atlas for Marine Policy in East Asian Seas (with Joseph Morgan, University of California Press, Berkeley, 1992); and Pacific Ocean Boundary Problems: Status and Solutions (with Douglas Johnston, Martinus Nijhoff, 1991).

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Southeast Asia

Is Quad 2.0 transforming into a Pentad?

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The reinvigoration of Quad Security Dialogue as Quad 2.0 including US, Japan, and Australia along with India during the 12th East Asia Summit in November 2017 has been appreciated and acknowledged by several countries including Germany, France, and Britain. It has been expressed from these countries that such a concert of the major democracies would provide peace, security and help in maintaining order and harmony in the region. Quad 2.0 has been gaining strength with the Foreign ministers meeting in February 2021 followed with Summit level meeting (online) in March 2021 between the leaders of the four countries -India, US, Japan, and Australia.

In 2017, during the India-France Strategic Dialogue, the French senior officials have hinted that they would like to explore possibility regarding collaboration with the Quad members about joining the initiative. The French side has clearly mentioned that given the strength and the objective of the Quad, France would like to join the initiative with the common consensus of the other four partners.

Given the fact that India is averse to any idea of an Asian NATO, therefore France, India and Australia have created a new minilateral which would develop security structures and promote maritime cooperation in the Indian Ocean region. In September 2020 during the foreign Secretary level dialogue between three countries issues such as Maritime Security, Blue Economy, Humanitarian Assistance and Disaster Relief (HADR), and Protection of Marine Global Commons were discussed. The maritime global commons and the blue economy are the two things along with maritime security which allude to the fact that France wants Quad by its side to protect its resources. Deliberating on the objectives and agenda of the Quad, France recently concluded joint exercise with the Quad members in April 2021. The exercises were conducted in the eastern Indian Ocean and were held for three days.

 India has been operating Rafale fighter jets (14 are now in service with Indian air force) and plans to procure two squadrons (about 36) of these jets while the three Scorpene submarines have already been commissioned with the Indian navy. This structural defence cooperation between India and France has also been seen in the context of India’s’ entry into the Indian Ocean Commission (an intergovernmental group of island nations- Madagascar, Comoros, Reunion islands, Mauritius, and Seychelles, dealing with maritime governance) as an observer, and India and France maritime surveillance sorties from Reunion islands from Reunion Islands. India benefits from France entry into the Quad as it would enhance extensive naval presence and add more friendly ports into the Quad network. France has expressed concerns related to China’s search for marine resources and seabed minerals near its Indian Ocean territories.

France has been looking into an agreement with Quad members for regular joint exercises and entering into a logistics supply agreement that India has signed with US and both Japan and Australia already have the Logistics Support Agreement (LSA).India and France have signed reciprocal logistics support which is not comprehensive but compliments the requirements from both sides. During the visit of the French Foreign Minister Jean-Yves Le Drian to India in November 2017, the French Minister welcomed the “a free, open, prosperous and inclusive” Indo-Pacific and sated that it would servelong-term global interests but added that this concert of democracies should be open and inclusive citing that such an initiative should welcome other democracies.

Following the visit of the French Minister, it has been explored that given few Francophone countries in Eastern Africa, the logistics and other related support can be procured from the willing countries. India has set up a grid of coastal surveillance radars in Mauritius, Sri Lanka, Seychelles, and Madagascar. France has military assets in Mayotte, besides military bases in UAE and Djibouti, and it has proposed a wide network of radars which can be integrated with other coastal surveillance radars so that not only white shipping, but rogue ships can also be monitored.

France has expressed interest in developing synergies and cooperative structure which should assimilate itself with the larger objectives of the Quad and is looking for maintaining peace and security as well as protecting the marine resources in the Indian Ocean as China has also been exploring for seabed resources near the Madagascar region. The islands that are of interest and can benefit from the Pentad (with France as new entrant) as this would provide security to its islands namely Reunion, Mayotte, French Southern and Antarctic Lands which includes Île Amsterdam, Crozet Islands, Kerguelen Islands, Île Saint-Paul and other scattered Islands in the Indian Ocean, Bassas da India, Europa Island, Banc du Geyser, and Glorioso Islands, largely uninhabited islands.

Few of these islands can support military structures and Quad countries can use its facilities in and around the Indian Ocean as well as certain islands in the Pacific Ocean. In such a context, France has proposed in the past for holding bilateral and trilateral (with Australia and India) naval and coast guard exercises. The increasing bon homie between Quad members and France serves three basic purposes. Firstly, it involves the French navy in the Indian Ocean and helps in monitoring western Indian Ocean. Secondly, the number of island territories that France had both in the Indian Ocean and the Pacific provides unique coverage and support systems. Thirdly, the trilateral between Australia, India, and France (India and Australia are two Quad members) shows that even though it is not very profoundly expressed but the blueprint is already created for including France to make it a Pentad.

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Southeast Asia

ASEAN’s Five Point Consensus: A Solution to Crisis in Myanmar?

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It is a glimmer of hope amidst an ongoing military crackdown in Myanmar that the member countries of ASEAN have been convened in Jakarta to discuss the potential of a resolution of the ongoing crisis in Myanmar. The meeting was conspicuous in its absence of any representative of Myanmar people. However, it has reached an interim five point consensus on how to resolve the impasse in Myanmar. This article assesses the efficacy of the consensus in ameliorating the ever deteriorating situation in Myanmar.

The Myanmar junta spearheaded by General Min Aung Hlaing   is nearing its 3 month hold of power amidst continuing backlash from citizens and civil societies alike. Using the irregularities and widespread voting fraud of November election as a pretext to usurp the power, the Myanmar junta has taken over the country which is reminiscent  of the country’s protracted military rule.

The junta has squelched all of the opposition in its bid to prolong the power hold. The junta has indiscriminately detained the protesters. The number of detainees climbed to 3,389. Security forces have deployed live ammunition to quell the uprising, killing more than 740 people in brutal crackdowns, according to local monitoring group Assistance Association for Political Prisoners. Besides, the junta has also halted communications across the country by imposing a nightly internet shutdown for 70 consecutive days.

Amidst this backdrop, the regional organization of south-east Asia, ASEAN has convened a meeting to resolve the situation in Myanmar. This is the first in-person meeting since the onset of covid-19 pandemic and this is also the first foreign visit of junta Chief General Min Aung Hlaing. The ASEAN Leaders’ Meeting was convened at the ASEAN Secretariat in Jakarta, and was chaired by the Sultan of Brunei, Sultan Hassanal Bolkiah. In a statement announced by ASEANs chair, the Sultan of Brunei, the leaders in their five-point consensus called for 1) the immediate cessation of violence in Myanmar; 2) constructive dialogue among all parties concerned to seek a peaceful solution in the interests of the people; 3) mediation to be facilitated by an envoy of ASEAN’s chair, with the assistance of the secretary-general; 4) humanitarian assistance provided by ASEAN’s AHA Centre and 5) a visit by the special envoy and delegation to Myanmar to meet all parties concerned

Although the statement by the ASEAN and its five point consensus is encouraging amidst such inflammatory situation in Myanmar, it leaves much to be desired. There are many blatant shortcomings of the meeting and the subsequent statement it put forth. Firstly, there was no mention of the prisoners both political and civilian which has been detained by the junta since February. While they had mentioned that the association has “heard the calls”, it is at best quite ambiguous selection of words in an attempt to evade the issue of political prisoners. Secondly, the meeting wasn’t representative enough. While chief of Myanmar military attended the meeting, there was no representative of Myanmar civilian of newly fashioned parallel government namely National Unity Government (NUG). Therefore, the decision that ASEAN reached run the risk of not reflecting the ground realities of Myanmar. Beside some doubts are being raised given ASEAN’s abysmal record of implementing such lofty goals. History abounds with numerous precedents where ASEAN purported to take firm actions but was futile due to its unique organizational structure and lack of good-will. It remains to be seen whether ASEAN can bring about any decisive solution to Myanmar impasse.

Although an epitome of regionalism as evidenced by deepening economic cooperation between the countries, ASEAN’s success in political stability is rather limited. Part of the reasons for lack of political involvement can be attributed to its cornerstone principle of non-interference which forbids any nation to interfere the internal affairs of other countries.

However, in a world marked by globalization where national, regional and global has been blurred and where any incidents in one nation can have spill over effect in other countries of the region. The potentiality of an essentially national incident to disrupt the stability of the region is well documented. Particularly, it requires no special mention that given the geopolitical importance of Myanmar, stability in the south-east Asian region hinges on the stability and good governance in Myanmar. Besides, economic cooperation presupposes a semblance of stability which is hindered if good governance can’t be assured.

Therefore, ASEAN shouldn’t remain aloof from its geopolitical calling since the situation in Myanmar isn’t an internal affair any more and has transcended Myanmar. The Rohingya refugee crisis which is the manifestation of Myanmar military hawkish posture serves as a shuddering reminder to world community. The inability to forestall any crisis can have devastating consequences for the whole region and can disrupt the security in the region.

If ASEAN’s firm action can’t be ensured, the present imbroglio can ensue more such refugee crisis given the assortment of ethnic communities that reside in Myanmar and their apparent hostility and protracted conflict with the junta. Therefore, ASEAN can’t trade the security and stability of broader region under the pretext of its provincial non-interference norm. A bold and effective action by ASEAN is the crying need of the time rather than lukewarm condemnations which doesn’t serve much purpose. Moreover, ASEAN should come out of its record of advancing platitudes and nostrums in response to pressing political issues and rather should take decisive action to solve the quagmire in Myanmar.

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Southeast Asia

Does ASEAN still play an important role?

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The five Association of Southeast Asian Nations (ASEAN) founders sought regional harmony in several dimensions, including economy, collaboration, prosperity, socio-cultural development, security concerns, and shared interests, in the early days of the organization. Many of ASEAN’s gains have been accomplished over time, along with the growth of the organization itself, one of which is how ASEAN has facilitated multilateralism in the Asia-Pacific region.

Furthermore, ASEAN has agreed to expand regional coordination in the face of the COVID-19 pandemic so that member countries can reduce health risks, assist with economic stimulus, and restore tourism by coordinated policies. As can be seen, the ASEAN debate does not only include Southeast Asia, but the impact is significant enough to hit a broader audience, including the international community.

ASEAN has evolved into a regional body with several agreements between member countries in terms of fiscal, social, and global contributions. While, in reality, ASEAN faces numerous challenges in order to maintain its strength. Internal and external problems continue to be major impediments to ASEAN’s achievement of all of its objectives. Nonetheless, member countries’ confidence, determination, and passion have made him relevant over the years.

The ASEAN Economic Community (AEC), which was adopted in 2015 in a blueprint and also approved by the AEC continuity strategy for 2025, exemplifies members’ hope, determination, and excitement. AEC clearly seeks to create a more cohesive and competitive ASEAN. high, diverse, yet increasingly people-oriented in order to achieve a global ASEAN.

When seen through the lens of how ASEAN ideals are geared toward national and common interests, ASEAN can still be regarded as important. ASEAN has succeeded in becoming a forum for its members to collaborate through mutually agreed-upon agreements that demonstrate that ASEAN can assist its members in achieving their respective national interests.

Furthermore, ASEAN’s centrality dynamic has offered a means for its member countries to compete for foreign cooperation while still forming an active and strong defense of the regional order. As a result, ASEAN has established itself as one of the regional organizations that has effectively demonstrated its ability to carry out regional and national interests in a united manner.

ASEAN has become an indirect reflection and performance of Indonesia’s foreign policy framework. Indonesia’s foreign policy is reflected in ASEAN’s neutrality. Indonesia has earned the right to be considered one of ASEAN’s founders. Indonesia gradually gained recognition in terms of its presence in the eyes of member countries and internationally as a result of its position as one of the founding members of ASEAN.

Indonesia plays an important role in the ASEAN structure, as shown by its success in establishing a channel of contact and diplomacy with the United States and Japan over the settlement of the South China Sea dispute. However, ASEAN is only just a strategy that promotes collaboration with other member countries, and it is no longer a cornerstone of its members’ foreign policy, since each member country must still recognize requirements and pursue its national interests. None of which could be accomplished by ASEAN.

In conclusion, ASEAN continues to have significant implications for its member countries. However, the concept of not interfering in the internal affairs of its member countries remains debatable, as it is also debatable to what degree ASEAN can assist, especially in issues and disputes involving two or more member countries. As a result, ASEAN can be defined as a platform for cooperation and diplomacy that is only used officially and ceremonially for regional participants when a serious problem involving several parties arises.

Because of its existence, ASEAN appears to serve only as a diplomatic intermediary, with no authority to intervene in the internal affairs of these countries. Even so, there is nothing wrong with ASEAN continuing to stand firm because it still plays a positive position with tangible benefits, especially in the regional context. Since, in the end, ASEAN also has the power to bring parties that have affairs with each other together on a formal negotiation agenda with a coordinated process to address these issues in the hopes of reaching a mutually beneficial agreement that takes into account each other’s interests as well as shared interests as a group.

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