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Law Not War in the South China Sea

The Diplomat, Nov 23, 2011

Years of school-taught nationalism has complicated efforts to find a peaceful resolution to the South China Sea dispute. Time to try the legal route.

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The recent APEC and ASEAN summits in Honolulu and Bali, respectively, saw renewed efforts to solve the South China Sea issue using a regional diplomacy-based approach. Tensions around the conflicting claims over various islands and maritime space have grown since 2009, when China, Vietnam and Malaysia formally submitted their claims under the UN Convention on the Law of the Sea (UNCLOS).

China’s apparent willingness last year to use new naval and air assets to demonstrate support for its claims – and the reaction this sparked from claimants Vietnam and the Philippines – has pushed regional tensions to new heights. Yet the limited diplomatic gains of the Asia-Pacific Economic Co-operation and Association of Southeast Asian Nations summits in tackling this issue underscore the shortcomings of the strategies employed by regional states.

Broadly speaking, there have been four main strategies:

The first has been to attempt to negotiate at the bilateral level. China has repeatedly indicated its preference for this method, but disparities in size and economic influence mean that this approach is widely seen as heavily weighted in Beijing’s favor by the other claimants. Furthermore, there are suspicions that China’s intention is merely to negotiate a freeze on resource development in contested oil fields, rather than to compromise on sovereignty issues. On the other hand, the bilateral channel has been used to good effect to reduce bilateral tensions, as seen by Vietnam’s recent six-point agreement with China, which established a few new mechanisms for consulting on border issues.

The second strategy has been to try take the issue to a variety of regional fora and solve it at a multilateral level, where states feel China’s advantages of scale are more muted. ASEAN has been the main organization chosen, and for many in the region, this is one of its most formidable tests of whether it can handle regional security issues. But the diversity of interests, the strength of the ASEAN way, and the fact that only four ASEAN states out of ten are involved in the South China Sea issue has meant that an ASEAN solution remains – as yet – out of reach. China’s ability to detach Burma, Laos, and at times, Indonesia from Vietnamese and Philippine positions reveals the weakness of such an approach.

A third strategy has been to develop closer diplomatic and military relations with the United States. With 36 attack submarines and six carrier groups in the Pacific, the United States remains the predominant military force in the region, and states like Vietnam and the Philippines have sought strategic reassurance through new or renewed military agreements with Washington. Vietnam’s nuclear and military medical agreements are largely seen in this light, as is Clinton’s visit to Manila following the APEC summit, where she reaffirmed the U.S. defense commitment to the Philippines in the Manila Declaration and announced the delivery of another coast guard cutter to the Philippine navy.

Moving away from its previous position of non-involvement over the issue, the United States has increased engagement with both states, for a number of reasons. First, the U.S. is concerned with the larger implications on international maritime law of China’s claims, particularly the “U-shaped line.” Second, the prospect of potential Chinese control over these vital sea lanes of communication (SLOC) for North East Asian allies like Taiwan, Japan and South Korea makes U.S. policy makers uneasy. China’s willingness toblock resources as part of political pressure has already been demonstrated during the Senkaku fishing boat incident in September 2010. For Manila and Hanoi, these new ties with the United States are simultaneously a hedge against Chinese military assertiveness as well as a form of pressure on Beijing to compromise at the diplomatic fora.

But as Chinese Premier Wen Jiabao’s speech to ASEAN leaders at Bali indicates, China has recently adopted a softer tone, indicating that it’s willing to seek a peaceful resolution to the disputes, promising massive investment to the region. Still, Wen also warned against involving foreign powers in the disputes. While this is widely read to mean the United States, it’s also meant to include other powers.

For ASEAN powers have also used a fourth strategy – internationalizing the issue by involving non-regional states like India and European powers in the exploitation of carbon energy resources in disputed waters. India’s recent agreement with Vietnam to carry out joint development of a gas field in Chinese-Vietnamese disputed waters falls into this category, and India’s state owned ONGC joins a number of other foreign companies already involved in Vietnam including Chevron, Exxon Mobil, BP and Zarubezhneft.

All this means that the only strategy that hasn’t really been seriously tried by any of the claimants is to utilize the various international legal mechanisms that have been developed for precisely these types of disputes – the arbitral tribunals under the jurisdiction of the UN Convention on the Law of the Sea, the International Court of Justice or the International Tribunal for the Law of the Sea (ITLOS). China has, of course, repeatedly rejected efforts to legalize the disputes, recently dismissing a Philippine request to take their disputes to ITLOS. This fact is often cited by regional experts as the reason why there’s a preference for attempting an ASEAN-based diplomatic solution.

The problem with attempting a diplomatic solution is the reaction any concessions would prompt with the populations of various states. Take, for example, Chinese public opinion on the U-shaped line. According to public opinion polls, there’s near-universal support among China’s public for its claim over this large area, with little understanding of the principles of contemporary international law, continental shelves, or exclusive economic zones. Instead, Chinese public support for these claims has developed through the education system, where Chinese students are taught that Chinese authority over this area extends back to the Chin Dynasty. Despite the weakness of historical claims, they have a strong hold over the imagination of the public and this support makes it impossible for any Chinese government to make concessions on what are considered issues of sovereignty. Compromise in this situation would be perceived as a betrayal of national sovereignty, and this isn’t just a Chinese problem. The utilization of legal bodies, however, neatly sidesteps this problem, by placing the responsibility of the decision with a third party. Furthermore, legal decisions are made according to principle in an open and transparent way, unlike diplomatic maneuvering.

Throughout history, state-on-state disputes have traditionally had two potential solutions: military or diplomatic. The Melian Dialogue in Thucydides’ The Peloponnesian War states the infamous dictum that “the strong do what they can, and the weak suffer what they must.” While it remains true that global international relations are still fed by disparities in state size and power, the current global order seeks to assuage those disparities with different types of economic, political, and dispute settlement mechanisms.

While it’s true that China has refused to utilize these dispute settlement bodies, the simple fact of the matter is that they aren’t a popular option with the other claimants in the region. There is, for cases taken to the ITLOS, no right of appeal although in some cases, ITLOS will reconsider or revise findings). This means that once a case is decided, there is no recourse, and governments must accept the decision of the court. This is a singularly unappealing prospect to many of the governments in the region. However, it must be tried.

The current trend towards a Code of Conduct seems to be attempting to utilize the political, rather than the legal, but this is precisely why these mechanisms were created. It seems dangerous and pointless to continue pursuing diplomacy over an issue with such national sensitivities, in which movement is unlikely on either side. Diplomacy in this instance will only serve to freeze the conflict for a generation or more, making any possible chance at a legal solution a more and more distant possibility.

Given the high stakes, it’s imperative that the region collectively push for the legal route. While it’s true that China is initially unlikely to shift its opposition to using dispute settlement bodies, it may well do so if ASEAN pursues this policy with unity. Furthermore, ASEAN and Chinese leaders could provide funds for workshops and seminars on international law for both their diplomats and their universities, and attempt to soften public perceptions over the decade or so that the legal process would take.

A ruling by a neutral body, while unpopular, is less likely to cause problems between a state and its populace, which is certainly a major factor in state approaches to this issue. This approach would also make a significant impression on international society, and renew the legalization of international relations that seems to have been put on hold since 2001. It should be remembered why this process began in the first place. History teaches us that human political units unconstrained by law, traditionally resort to various applications of power, soft and hard. While the application of power is and will remain a central process in global politics, it’s not our only process.

The application of principle and the subordination of self-interest to legal principles are other newer options. In this case, they may be the only solution that has a chance of public acceptance. Leaders in the region would do well to note this.


South China Sea Tensions Rattle China’s Neighbours

BBC East Asia Editor, Charles Scanlon

A Chinese frigate sits berthed in Shanghai on September 22, 2011.

China’s growing naval power has encouraged it to be more assertive

Chinese leaders like to talk about their country’s “peaceful rise” – and Europe’s financial traumas are giving Beijing plenty of scope to assume the role of a benign new force on the world stage.

President Hu Jintao has presented himself as a “friend in need” during encounters with European supplicants while stopping short, for now, of committing China to a specific contribution.

But China has been showing a very different face to countries closer to home in an increasingly tense confrontation over rival claims to the resource-rich waters of the South China Sea.

It is a region where the peaceful nature of China’s rise is starting to be questioned as it pushes a long-standing maritime claim that stretches deep into South East Asia.

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If these countries do not want to change their ways with China, they will need to prepare for the sound of cannons”

Global Times

“China is becoming much more confident in the region and there are signs it is becoming giddy with success. It has become much more influential much more quickly than it expected,” says Dr Kerry Brown of the Asia Programme at Chatham House in London.

Vietnam and the Philippines in recent months have seen the snarl of a resurgent regional power that is fast losing patience with the gripes of smaller neighbours over maritime borders.

“If these countries do not want to change their ways with China, they will need to prepare for the sound of cannons. It may be the only way for the dispute in the sea to be resolved,” said the state run newspaper, the Global Times, in a recent editorial.

Hard powerChinese officials have been more restrained in their comments, but foreign ministry spokesmen have issued a series of warnings about what they see as encroachments into Chinese waters.

Beijing says it does want a peaceful solution. But Vietnam and the Philippines say Chinese ships have stepped up harassment of vessels involved in oil exploration and fishing.

Vietnamese sailors patrolling on Phan Vinh Island in the Spratly archipelago June 14, 2011China’s stance on the South China Sea is making neighbours like Vietnam worried

“The growth of Chinese military spending is beginning to translate into hard power,” says John Hemmings, an analyst at the Royal United Services Institute.

“This is the first major sign that a more confident Chinese grand strategy is emerging. It is in the South China Sea that there is a real risk of discord between the US and China.”

The disputes are about oil and gas reserves, lucrative fisheries and sea lanes that are crucial to the giant industrial economies of East Asia. But they also point to a strategic contest with the United States, which has been the dominant military power in the western Pacific since 1945.

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China is driven by a nationalistic agenda – it won’t find it easy to make compromises over what are seen as crucial resources, such as energy in the South China Sea”

“China has a containment mindset,” says Kerry Brown. “It thought that the United States was ceding influence but it sees the US is still active all around its borders from Afghanistan to Japan.”

In the latest incident, Beijing responded sharply to an announcement by the American company, Exxon Mobil, of a new oil find off the coast of central Vietnam.

It appears to be well within Vietnam’s 200-nautical-mile exclusive economic zone. But China issued a now familiar warning that it has indisputable sovereignty to large parts of the sea.

“We hope foreign companies do not get involved in disputed waters for oil and gas exploration and development,” said a foreign ministry spokesman.

Vietnam vulnerableChina’s maritime claim is ill-defined but it resembles a giant U shape extending for more than 1,000km (621 miles) off its southern coast and reaching into what Vietnam, the Philippines, Malaysia and Brunei see as their own waters.

It recently warned Indian firms to stay away after they signed exploration agreements with Vietnam. India has nettled its giant neighbour by developing a “strategic partnership” with Vietnam – in China’s view an intrusion into its own backyard.

Vietnam appears most vulnerable. Its leaders have been stung into an unaccustomed flurry of foreign visits as they seek help from the region and beyond.

“Vietnam feels out on a limb,” says John Hemmings. “It understands that a naval conflict with China could be over very quickly. The Vietnamese are much more exposed than they first thought.”

Vietnamese anti-China protesters marching in Hanoi on 24 July 2011, remembering Vietnamese soldiers killed by the Chinese in the South China Sea.

The South China sea dispute raises intense passions in Vietnam. Some believe it will be very hard for China to back down.

“China is driven by a nationalistic agenda, It won’t find it easy to make compromises over what are seen as crucial resources, such as energy in the South China Sea,” says Kerry Brown.

Whatever its intention, China has succeeded in frightening traditional US allies such as Japan and South Korea firmly back into the American fold, along with a host of new suitors.

US officials have tried to underline their commitment to the region, at a time when some allies are questioning Washington’s staying power.

US naval mightIt will be years before China’s growing military power can challenge the overwhelming naval might of the United States, backed as it is by a network of military bases across Asia.

But China’s development of new land based missiles designed to target aircraft carriers is a sign of its fast-growing capabilities.

“I want to make very clear that the United States is going to remain a presence in the Pacific for a long time,” said the defence secretary, Leon Panetta, on an Asian visit late last month “If anything, we’re going to strengthen our presence in the Pacific.”

President Barack Obama is expected to underline this commitment when he hosts Asian leaders at the APEC conference in Hawaii this month.

China may have found in the South China Sea dispute an arena to test US resolve and attempt to nudge it out of the region.

If Washington fails to live up to its rhetoric, China’s smaller neighbours will have little choice but to accept the new realities of what the US itself is calling the “Pacific Century”

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An East Asian Community?

RUSI Newsbrief, 26th January, 2010

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In the run up to the September 2009 election, Japan’s new Prime Minister Yukio Hatoyama unveiled his vision for an East Asian Community (EAC) in a series of policy statements and speeches.1 It was to be, he asserted, a vision of regional co-operation based on the model of the European Union, underscored by principles of fidelity and brotherhood. While the idea for such a community has been promoted by various Asian leaders since the late 1990s, and has been considered rather pie-in-the-sky, this latest incarnation of the vision is interesting because of Japan’s weight as a regional leader.

Hatoyama’s proposal comes hot on the heels of a similar proposal made by Australian Premier Kevin Rudd, whose 2006 Asian-Pacific Community was met with withering criticism at home and deafening silence in Asia. Both proposals reveal the growing trend for integration in Asia and the obstacles facing that integration. The editor-in-chief of the Jakarta Post, Endy Bayuni, put it succinctly when he said, ‘While no one disputes the need for closer regional integration, the question always quickly gets bogged down by mechanism, about who is in and who is out, as well as what the most appropriate regional architecture might be.

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Understanding Hatoyama’s East Asian Community idea

East Asia Forum

January 2010

Hatoyama’s plan for an East Asian Community, first mentioned in a September 2009 op-ed in the New York Times, is an interesting symbol of the split personality in Japanese foreign policy. Almost from the first, the idea raised hackles in both Beijing and in Washington, who view Japanese leadership and independence in the region warily for different reasons. In the article, Hatoyama tied together two arguments: that Japan needed to redress the imbalance in its relationship with the United States, and that Japan was an Asian power and should contribute to any discussion of regional architecture. The first statement raised hackles in Washington while the second raised hackles in Beijing. Naturally, Hatoyama’s point that Japan’s ‘proper place of being’ is as an Asian power which should shape the destiny of one of world’s fastest growing regions makes perfect sense from a Japanese point of view.

How can Japan’s sudden support for regional integration be explained?

Hatoyama’s plan can be seen in the light of three factors: Japanese history as an ‘Asian outsider’, Japan’s current situation, and the current situation of the United States. In dealing with the first, it should be remembered that modern Japanese history is essentially one of coming from a position of weakness in its relationship with China and Korea to a position of dominance during the 20th century using the power, tools and technology of the West. This has created in Japanese policy-makers a tendancy to view foreign policy as a bipolar choice between the West and Asia. Adding to this historical dilemma has been the fact that Japan’s security has depended directly or indirectly on Western states while its economic security has depended on Asian markets. Indeed, it is a facet of Japan’s modern identity that it has tried and often failed to straddle both worlds. Following its victory over Tsarist Russia in 1905, Japanese thinkers promoted Koa-ron (Asian-facing policies); while simultaneously developing strong security ties with Great Britain.

During the Cold War, these two choices were synthesised as the US became both a security guarantor for Japan as well as its biggest export market. Only after the end of the Cold War did Japan have to face the future with renewed uncertainty. Its economic relationship with the US had become a long-running battle over protection of its homemarket, while the loss of the Soviet threat in the North Pacific emptied the meaning from the security relationship. While the US-Japanese military and economic relationship was repaired and renewed, Japan also began to reconsider its relationship with the region. In 1993, Japanese diplomats helped midwife the ASEAN Regional Forum (ARF), a security wing of ASEAN, and then in 1997-1998, Japan tried unsuccessfully  to create an Asian Monetary Fund to help deal with the Asian financial crisis. In all three instances, Tokyo realised that any chance of success depended on the acquiescence of either Beijing or Washington.

If history provides Japanese thinkers with the outlines of an Asian versus Western foreign policy, what pushed Hatoyama into supporting the former over the latter?

The obvious reason is the change of relative power that has taken place over the last decade between Japan, the US, and China. Japan is now speaking of lostdecades rather than a lost decade, and trying to balance a declining economic share of power in the region with an aging workforce. Its share of trade with ASEAN fell from 20.2 per cent in 1993 to just over 12 per cent in 2008, while conversely China’s share rose from 2.1 per cent to 11.3 per cent over the same time span. It is clear that China’s economic integration into the region is growing at a faster rate, while Japan’s is actually declining relative to China.

Hatoyama’s op-ed piece also talks of the end of the US-led globalism, spurred by the Iraq wars and financial crisis. Japan could keep its wagon hitched to the US, or it could begin to look to the rising star in the east. Since East Asia accounts for 25 per cent of the world’s GDP and is expected to reach 40 per cent by 2030, it has been clear what Hatoyama’s answer for Japan is. Furthermore, the sooner that Japan makes this move, the better since time only seems to favour China and hurt Japan.

But has Hatoyama moved Japan too soon? After all, this is not the first time that the US has been called a declining power. In the wake of Vietnam, Washington’s reputation was in tatters in the region, and more famously, Paul Kennedy predicted the end of US power in Rise and Fall of the Great Powers in 1987, just before it reached its great ascent to lone superpower status.  As always with these arguments, time will tell who was on the right side of history.

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