PUBLICATIONS
OCCASIONAL
PAPER
JANUARY 2020
ISSUE 13.1
THE ASEAN’S
DIVIDED RESISTANCE:
DUTERTE, CHINA AND
THE QUEST FOR
RULE
OF
LAW
IN THE SOUTH CHINA SEA
OCCASIONAL PAPER JANUARY 2020
02
THE ASEAN’S DIVIDED RESISTANCE:
DUTERTE, CHINA AND THE QUEST FOR
RULE OF LAW IN THE SOUTH CHINA SEA
THE ASEAN'S STANCE
Hamstrung by its de facto unanimity-based decision-making process, the ASEAN has failed to forge robust resistance to aggression of external powers,
especially China's in the South China Sea. Moreover, strategic acquiescence of key countries, especially the Philippines under Beijing-friendly President Rodrigo
Dutetre, has further weakened the ASEAN's hand, risking the prospect of ASEAN peripherality, rather than centrality, in shaping the security architecture.
Nonetheless, resistance by and minilateral cooperation among three key Southeast Asian powers of Indonesia, Malaysia, and Vietnam, the current
ASEAN chair, portends increasing resistance to, albiet in a divided fashion, Chinese revanchist ambitions in the South China Sea.
The China Challenge
Contemplating on the emerging security architecture in Asia, the
late Singaporean Prime Minister Lee Kuan Yew warned, “The size
of China’s displacement of the world balance is such that the world
must find a new balance. It is not possible to pretend that this is
just another big player. This is the biggest player in the history of
the world.”1 The implication was clear: given its sheer size and vast
potentials, as well as the world-historical breadth of its ambitions,
China’s re-emergence as a global power will upend the very
international system itself. Thus, business-as-usual tactical ‘balanceof-power’ readjustment2 won’t cut it, since what China portends is a
strategic revolution, and it’s in East and Southeast Asia, where this
tectonic geopolitical shift is most poignant. Nonetheless, he viewed
the necessity for continued American presence in Asia, precisely
because of the widely “held consensus that the U.S. presence in
the region should be sustained” in order to check China’s worst
instincts, and that “military presence does not need to be used to
be useful”, since American “presence [alone] makes a difference
and makes for peace and stability in the region.” Lee’s theory of
America’s indispensability as the ‘onshore balancer’3 par excellence
Image Credit:nytismes.com/2016/07/13/opinion/testing-the-rule-of-law-in-the-south-china-sea.html
C 2020 STRATBASE ADR INSTITUTE for Strategic and International Studies. All rights reserved.
is most pertinent in the context of the South China Sea, because,
as he correctly foresaw, “China will not let an international court
arbitrate territorial disputes in the South China Sea”. In fact, this was
exactly the case years after the death of the former Singaporean
leader when Beijing categorically rejected the Philippine-initiated
Arbitral Tribunal award at The Hague, constituted under the aegis of
the United Nations Convention on the Law of the Sea (UNCLOS), as
a piece of ‘trash paper.’4 China even had the audacity to codify its
defiance of international law by unabashedly adopting the ‘three nos’
policy of non-participation, non-recognition, and non-compliance
with respect to even a final and binding tribunal ruling.5 As the late
Singaporean leader correctly underscored, “the [continued] presence
of U.S. firepower in the Asia-Pacific” is crucial so that the “[United
Nations] Law of the Sea [will] prevail.” In short, even the fiercely
independent-minded Lee, who served as the gateway between
China’s top leadership (from Deng Xiaping to Xi Jinping)
and the West, saw American military power as
essential to peace and prosperity in Asia.
* The views and opinions expressed in this Paper are those of the author and do not necessarily reflect those of the Institute.
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His wisdom still echoes across Southeast Asia, as evident in the
Association of Southeast Asian Nations’ (ASEAN) inaugural ASEANUS Maritime Exercise (AUMX)6 last year. During the joint exercises,
the US Navy and key regional partners conducted five-day-long drills,
stretching from the Sattahip naval base in Chonburi province in Gulf
of Tonkin to Cape Cà Mau on the Cà Mau Peninsula in Vietnam. In
addition, there were also non-drill activities in archipelagic Southeast
Asian nations of Brunei and Singapore, which permanently hosts
American Littoral Combat Ships (LTC). Crucially, the geographical pivot
of the exercises was the South China Sea, where both sides have a
shared interest in keeping Chinese ambitions at stake. Interestingly,
however, the AUMX took place not long after the ASEAN conducted
its own first-ever joint drills with China. The message was clear: We
are open to work with the new major power in Asia, but will continue
to engage and welcome external powers such as America. This
reflects the ASEAN’s long-standing policy of omni-balancing – namely,
preserving maximum strategic autonomy through sustained, noncommittal engagement with (competing) major powers.7 This way,
the ASEAN aims to constrain a rising power’s (China) aggression
through flexible cooperation with the status quo power (America). In
short, Southeast Asian nations prefer to outsource ‘hard balancing’
to external powers in order to strengthen their bargaining chip when
dealing with China. This is an essential element of the ASEAN’s
struggle for autonomy within a competitive security environment.8
As a new bipartisan consensus against China takes shape,9 the
United States has also regularized10 its increasingly daring Freedom of
Navigation Operations (FONOPs) against Beijing, frequently deploying
multiple warships well into the 12 nautical miles of Chinese-occupied
islands in the area.11 Meanwhile, the US Navy has also warned of a
“more muscular”12 response to China’s usage of para-military forces in
the South China Sea, while reiterating its commitment to aid regional
allies, especially the Philippines, in an event of conflict (with China) in
the area.13 To top it all, the US Coast Guard (USCG), for the first time
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since the end of Cold War, has joined the scramble in the Western
Pacific, now participating in the Pentagon’s FONOPs operations
against China,14 contributing to maritime defense aid across
Southeast Asia,15 and expanding expeditionary
deployments and joint drills with East Asian partners.16
Nonetheless, it hasn’t been an all-smooth ride for Southeast
Asian nations, which are grappling with diminishing ‘ASEAN centrality’
(AC) in shaping regional security dynamics. In fact, there is also a
lingering, if not profound, anxiety among regional states over the
Trump administration’s Free and Open Indo-Pacific (FOIP) doctrine,
which is often perceived, whether legitimately or not, as a thinlyveiled containment strategy by the US -- along with regional powers
of Australia, Japan and India -- against China.17,18 After all, both the
National Security Strategy (NSS)19 and National Defense Strategy
(NDS) papers20 of the Trump administration have made it clear that
‘great power competition’, especially with China, will be the defining
priority of the world’s superpower for the foreseeable future.21 In
response, Southeast Asian countries have adopted the ASEAN
Outlook on the Indo-Pacific (AOIP),22 which insists, rather proves,
the regional body’s commitment to “continue to maintain its central
role in the evolving regional architecture in Southeast Asia and its
surrounding regions” and remain as “an honest broker within the
strategic environment of competing interests”, promoting an “open”,
“transparent”, “inclusive”, “rules-based” order based on “respect for
international law.”23 And calls on the ASEAN to “lead the shaping
of their economic and security architecture and ensure that such
dynamics will continue to bring about peace, security, stability and
prosperity for the peoples in the Southeast Asia as well as in the
wider Asia-Pacific and Indian Ocean regions or the Indo-Pacific.”
The document, however, is more defensive, betraying ASEAN
insecurity, than providing a proper blueprint for reassertion of ASEAN
Centrality in shaping the 21st century strategic environment.
The ASEAN’s Peripherality
More fundamentally, the ASEAN itself suffers from what can be
termed as “middle institutionalization trap,”24 namely the institutional
structure, and corresponding decision-making processes, which
allowed the regional body to establish a robust security community in
the twentieth century, is now painfully insufficient to address the new
challenges of the twenty-first century. This institutional malady has
been most acutely observed in terms of the ASEAN’s often perverse
operationalization of the principles of consultation (Mushawara) and
consensus (Muafakat).25 In practice, consensus has been equated
to unanimity, a practice that has been a recipe for disaster when the
region needed to stand up to external powers on sensitive geopolitical
issues, namely the South China Sea. As the veteran Singaporean
diplomat Barry Desker rightly points out, the current decision-making
configuration reinforces the “ability of external parties to shape the
positions of ASEAN members on regional issues,” especially when
“China exerts its influence on ASEAN members to prevent any
decisions which could affect its preference…”26 No wonder then, even
prominent ASEAN experts such as Amitav Acharya have wondered
if “ASEAN centrality is as much a product of external players in
Southeast Asia as it is of the ASEAN members themselves,” since
“one suspects that its emergence had more to do with the
dynamics of Great Power relationships than with any
projection of ASEAN’s internal unity or identity.”27
Interestingly, the ASEAN has often employed an alternative
operationalization of the consensus principle, namely the majoritybased “ASEAN Minus X” decision-making formula,28 which facilitated
rapid intra-regional economic integration. Other regional bodies
such as the European Union (EU), meanwhile, have relied on
weighted qualified majority voting modality,29 where geopolitical heft
and population density of member-states are properly taken into
consideration, as the expression of consensus-based decision-making
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with historic success. In simplest terms, unanimity-based decisionmaking virtually gives veto-power to each and every ASEAN member
regardless of their interest, size, and contribution. Under this setup,
the ASEAN can be hamstrung and internally sabotaged by its
‘weak links’, namely regional members and leaders
most vulnerable to external coercion.30
Often, Cambodia, which heavily relies31 on Chinese largesse, has
been blamed for the ASEAN’s lackluster response to Chinese
aggression in the South China Sea. After all, the Cambodian Prime
Minister Hun Sen, under immense pressure from Beijing, tried to
block32 even the discussion of the South China Sea disputes. Amid
the columniation of the Philippines’ arbitration case against China, the
Cambodian strongman lamented:33 “It is very unjust for Cambodia,
using Cambodia to counter China. They use us and curse us…this
is not about laws, it is totally about politics…” Yet, one can’t blame
Cambodia for taking this stance, when the unanimity-based decision
-making tradition makes the China-dependent nation a de facto
veto player. In effect, Cambodia is expected to sabotage
the ASEAN’s efforts lest it invites Beijing’s wrath.
Image Credit:intpolicydigest.org/2015/04/28/the-rule-of-law-is-china-s-challenge-in-the-south-china-sea
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Moreover, what critics of the ASEAN also often miss is the
deleterious role of other regional members, most especially the US’
oldest Asian ally, the Philippines, under President Rodrigo Duterte.
The China-friendly president has done significant damage to ASEAN
centrality by effectively toeing Beijing’s line on the South China
Sea disputes. During his chairmanship of the ASEAN in 2017, he
maintained, with often blunt language,34 that the situation in the South
China Sea is generally stable, thus external powers such as the US,
Australia and Japan should keep out of the disputes, which are
“better left untouched.” When external powers called for rule of
law in the South China Sea, and pressured China to respect the
landmark arbitration award in 2016, the Duterte administration
effectively insisted that it’s the Philippines’ sovereign right
not to assert its sovereign rights against Beijing.35
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Not only has the Filipino president declared that he will ‘set aside’
the 2016 arbitral tribunal ruling, but his endorsement of joint
development agreements (JDA) within China’s nine-dashed-line area
of claim could set a dangerous precedence. Duterte’s pro-JDA
position potentially violates the Philippines’ own constitution as
legitimizing China’s expansive claims in the area, which was ruled
as incompatible with modern international law.36 Even worse, the
Philippines’ strategic acquiescence has emboldened China, which
has controversially demanded37 for de facto veto power over the
prerogative of Southeast Asian states to seek resource-development
investments as well as conduct joint military exercises with external
powers, especially the US under the South China Sea Code of
Conduct (COC) negotiations. In effect, Duterte has become the
pivot of Chinese dive-and-conquer strategy within the ASEAN, with
the Southeast Asian leader shielding the Asian juggernaut against
external criticism and counter-measures by concerned powers. The
Philippines’ position is even more crucial given its role as the ASEANChina Country Coordinator from 2019 to 2021. The upshot of the
Philippines’ radical policy shift, if not outright strategic subservience,
is further heightening fears of ASEAN peripherality, rather than
centrality, in shaping regional strategic environment.
The South China Sea, however, is a matter for global concern. And
crucially, as the Singaporean diplomat, Bilahari Kausikan, memorably
remarked, the South China Sea disputes is “where the parameters of
U.S.-China competition and their interests are most clearly defined.”38
In fact, as Harvard University’s Graham Allison put it in starker terms,
it’s the locus of the “Thucydides trap”39 of a potential superpower
conflict in the 21st century.40 But not all is lost. In contrast to the
Philippines and Cambodia, historically non-aligned Muslim nations of
Malaysia and Indonesia have begun to step up their resistance
to Chinese maritime intrusions like never before.
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The Minilateral Pushback
Malaysia’s Legal Warfare
Already boasting the world’s largest naval fleet,41 Chinese President
Xi Jinping sought to end the year in style with formally launching the
country’s first domestically built aircraft carrier, Shandong, in southern
island of Hainan.42 But Malaysia’s bolt from the blue submission of its
extended continental shelf claims to the United Nations43 immediately
chipped away at the festive mood surrounding Xi’s formal launching
of the Chinese-built carrier.44 In a furiously-worded response, Beijing
accused its neighbor of “seriously infring[ing] on China’s sovereignty,
sovereign rights and jurisdiction in the South China Sea,” where “China
has historic rights” beyond dispute.45 The Southeast Asian country’s
surprising decision to seek third party assistance to reinforce its claims
in the South China Sea portends hardening stance among smaller
claimant states, especially Vietnam and the Philippines. Despite its
growing naval might, China faces stormy waters ahead as the
United States and its regional partners seek to constrain
its maritime ambitions in the Western Pacific.
Throughout the past year, one leader has emerged as the most vocal
critic of China’s rising power. The Malaysian Prime Minister Mahathir
Mohamad, who pulled off an electoral tsunami by largely tapping
into anti-China sentiments at home,46 has openly criticized47 China’s
overseas infrastructure projects.”[If we] borrow huge sums of money,
if you cannot pay money, you’ll under the influence or the direction of
the lender [China]... If you cannot pay your debt, you [will] find yourself
subservient to the lender,” the Malaysian prime minister told this author
earlier this year, when asked about the perils of welcoming large-scale
Chinese investments.48 “If you have the capacity to borrow, it must be
because we can repay. But when you borrow money which we cannot
repay, you are endangering your own freedom,” he added.
Following a year of intensive negotiations, he managed to not only
secure large discounts and adjustments49 in big-ticket Chinese
infrastructure investments in Malaysia, but also compelled China to
reexamine its Belt and Road Initiative (BRI) altogether.
Amid a gathering storm of global criticism, partly roused by
Mahathir’s complaints, China announced a new approach50 to the
BRI, with greater emphasis on environmental and debt sustainability.
In response, Mahathir immediately recalibrated his rhetoric on China,
reiterating longstanding friendship between the two countries.51
“Malaysia is a friend of China. We believe in being business friendly
to all countries in the world,” the Malaysian leader said, adopting
a completely different tone during the Belt and Road Forum for
International Cooperation (BRF) in Beijing in mid-2019.52 “We are a
friendly country, a friend of China, and see a great future for
Malaysia-China relations,” he added. As soon as Mahathir secured
his objectives on the economic front, however, he has shifted
his focus to geopolitics, namely in the South China Sea.
Malaysia’ submission of extended continental shelf claims to the
United Nations Commission on the Limits of the Continental Shelf
(CLCS) is curiously dated 2017, meaning it was prepared years earlier
but not filed for certain reasons by the previous administration.53 It
also means that the submission was prepared only months following
the Permanent Court of Arbitration (PCA)’s announcement of the
Philippines’s compulsory arbitration award against China.54 The final
ruling nullified much of China’s expansive claims in adjacent waters,
including its doctrine of ‘historic rights.’55 And even more interestingly,
the submission proper took place only weeks after Vietnam threatened
third party arbitration against China following a month-long naval
standoff over the Vanguard Bank in the South China Sea.56
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Thus, Malaysia’s latest submission should be viewed within the context
of a more concerted pushback by the US and regional partners against
an ascendant China. Legally, it builds on an earlier joint submission57 with
Vietnam in 2009 -- a controversial move that provoked China into adopting
a tougher stance in the South China Sea,58 starting with the first formal
announcement of its ‘nine-dashed-line’ claims in the contested waters.59
While the previous submission sought to reinforce Malaysia’s claims in the
southwestern regions of the South China Sea, its latest submission, in
turn, pushes the country’s claims northward into the heart of the strategic
basin. “When we come against a very powerful [force] we need to find
other ways of dealing with the problem rather just open confrontation,”60
Mahathir told me earlier this year, signaling his multi-faceted strategy
in dealing with the rise of China. “It is important for China to
take notice of other views and perceptions.”
Indonesia Progressive Resistance
Confronting expanding Chinese incursions into its waters, Jakarta has
gradually abandoned its ‘quiet diplomacy’ in favor of a more proactive
resistance against an assertive Beijing. In particular, the growing presence
of Chinese para-military vessels off the coast of Natuna Islands, an area
rich in fisheries and energy resources, which overlaps with outer layers of
China’s expansive, ‘nine-dashed-line’ claim across the South China Sea
basin. Following the recent intrusion of dozens of Chinese boats, including
two coast guard vessels, into Indonesia waters, Jakarta filed (late December)
a “strong protest” to Beijing and summoned the Chinese ambassador
Xiao Qian to express its displeasure. Southeast Asia’s largest nation is
also perturbed by Beijing’s claims of traditional rights well into Indonesia’s
exclusive economic zone and continental shelf. Indonesia’s foreign ministry
has accused China of “violation of [its] sovereignty”61 and openly questioned
China’s claims of traditional rights in the area as having “no legal basis” and
“never recognized under UNCLOS 1982” as affirmed by the 2016 arbitral
tribunal ruling at The Hague initiated by neighboring Philippines.
Image Credit: news.abs-cbn.com/overseas/12/19/18/indonesia-opens-military-base-near-disputed-south-china-sea
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Though short of confrontational, Indonesia’s hardening stance will likely
strengthen the hands of other regional actors, which have been at the
receiving end of China’s maritime aggression in recent years. Building
on the Philippines’ 2016 landmark arbitration award at The Hague,
which nullified bulk of China’s claims in the area, both Vietnam
and Malaysia have recently threatened to take China to
international court over the festering maritime disputes.
According to Indonesian authorities, at least 63 Chinese fishing vessels
and two coast guard ships unilaterally entered Indonesia’s territorial
waters off the Natuna islands through late-December. According to
the UNCLOS, foreign vessels, including fishing and armed vessels,
can’t enter territorial sea of a coastal state unless exercising innocent
passage sans hostile and stationary activities in the area.62 The
Natunas island are located about 1,100km (684 miles) south of the
Spratly Islands, which are actively contested by the Philippines,
Malaysia, Taiwan, Vietnam and China. Instead of de-escalating
tensions, however, Beijing doubled down on its claims in the area,
defending the continued and growing presence of Chinese vessels
within Indonesia waters. According to Chinese Foreign Ministry
spokesman Geng Shuang, “[China’s] position and propositions comply
with international law, including UNCLOS. So whether the Indonesian
side accepts it or not, nothing will change the objective fact that China
has rights and interests over the relevant waters….The China Coast
Guard were performing their duty by carrying out routine patrols to
maintain maritime order and protect our people’s legitimate
rights and interests in the relevant waters,” he added.63
The Chinese foreign ministry official was also quick to question the
validity of the 2016 arbitral tribunal ruling at The Hague, which rejected
Beijing’s claims of ‘historic rights’ to exploit resources across adjacent
waters. “The so-called award of the South China Sea arbitration is
illegal, null and void and we have long made it clear that China neither
accepts nor recognizes it. The Chinese side firmly opposes any
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country, organization or individual using the invalid arbitration award to
hurt China’s interests.” Only days later, the Indonesian Foreign Ministry
issued an uncharacteristically tough language, lambasting China’s
claims of traditional rights within Indonesia’s exclusive economic zone.”
China’s claims to the exclusive economic zone on the grounds that
its fishermen have long been active there...have no legal basis and
have never been recognized by the UNCLOS 1982,” the Indonesian
foreign ministry said. In recent years, Indonesia has expressly avoided
alignment with the United States by advocating for its own vision of
a regional security architecture, where China is a major stakeholder.
Thus, the Southeast Asian country’s tough diplomatic language
represents a significant departure from its longtime policy of avoiding
conflict with great powers such as China under what Indonesia expert
Evan Laksamana calls the ‘pragmatic equidistance’ approach.64 At the
same time, however, China’s unabated maritime expansionism has
forced Indonesia’s hand. In response, Jakarta has sought to draw the
line in its adjacent waters. According to Indonesian authorities, illegal,
unregulated and unreported (IUU) fishing has severely affected the
country’s 2.4 million-strong fishing community,65 driving almost
half of them (45%) out of their jobs, with the United
Nations putting the annual cost at $1 billion.66
In response, Indonesia adopted, under Minister of Maritime Affairs
and Fisheries, Susi Pudjiastuti, an aggressive “Sink the Vessels” policy,
which led to the impoundment and blowing up of hundreds of illegal
fishing vessels, including from China.67 “What they [China] are doing
is not fishing, it is transnational organized crime,” the outspoken
Indonesian minister said in late-2018 , months ahead of stepping
down.68 “We have had several disagreements [with China] on issues
of illegal, unregulated and unreported fishing, they still disagree
that it classifies as transnational crime. But mostly these
are China-origin vessels [with] multinational crews.”
The upshot69 of the tough policy was the more than doubling of
declining fishing stock within years and significant reduction in
number of illegal fishing vessels in previous years. by a staggering 14%
in 2014,70 with the country’s armed forces exploring the deployment
of advanced aircraft to the area as well as stepping up71 joint naval
exercises with the US in the waters off the Natuna Islands. Amid
altercations72 with Chinese coast guard vessels protecting illegal
fishing activities,73 Jakarta even dispatched a warship to apprehend
illegal Chinese fishing vessels few years ago.
In 2017, Indonesia renamed the areas as “North Natuna Sea” to assert
its claims against Chinese intrusion and claims to “traditional fishing
grounds” in the area.74 Though technically ‘neutral’ and a non-claimant
state in the South China Sea, as the de facto leader in Southeast Asia
Indonesia’s stance carries great implications for broader strategic
alignments in the region. Indonesia, under the guidance of legendary
diplomats such as Hasjim Djalal, has been acutely sensitive to China’s
expansive claims in apparent contradiction of the UNCLOS. Among
the key nations, which negotiated the UNCLOS, Indonesia was
the first regional state to push for extended continental shelf claims
beyond its 200 nautical miles EEZ in the northwest area of Sumatra
Island back in 2008.75 The following year, both Vietnam and Malaysia
made a joint submission to assert their extended continental shelf in
the South China Sea, legally challenging China’s claims at the UN.
Beginning in 2015, Indonesia has pressured China76 to clarify the
precise legal basis and parameters of its nine-dashed-line claims, while
advocating for respect of international law following the Philippines’
arbitration award victory the following year.77 During the 2018 ASEANAustralia summit, Indonesia went so far as calling for joint patrols by
ASEAN states in the South China Sea to help de-escalate tensions.78
It’s toughening criticism of China will likely embolden Vietnam, the
current ASEAN chair, and Malaysia, which recently submitted an
additional extended continental shelf claim in the South China Sea
at the UN, to also up the ante in the South China Sea this year.
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While Jakarta will likely avoid direct confrontation, it is set to bolster
its strategic presence in the contested area while stepping up its
diplomatic criticism were China to continue its current course.
Vietnam’s Brave Stand
Ahead of its much-anticipated chairmanship of the Association of
Southeast Asian Nations (ASEAN) next year, and amid a months-long
naval showdown in the South China Sea, Vietnam has hinted at legal
warfare against China. Vietnamese Deputy Foreign Minister Le Hoai
Trung openly warned in early-November that diplomacy isn’t the only
tool at Hanoi’s disposal. Emphasizing the need for exploring alternative
strategies, he cited “fact-finding, mediation, conciliation, negotiation,
arbitration and litigation measures” as potential countermeasures
against China’s maritime assertiveness. Looking at the Philippines’
precedence, lawfare (‘legal warfare’) seems a risky, yet potentially viable
option for Vietnam. After all, the 2016 arbitration award at The Hague
proved the viability of compulsory arbitration, under the UNCLOS,79
to address disputes over maritime entitlement claims as well
as censure China’s excessive, anachronistic claims
and multifarious maritime aggression.
What’s clear is that in the absence of international law, Southeast Asian
claimant states are largely at the mercy of China’s behemoth naval
capabilities. Thus, lawfare, and the threat of its use, provides unique
leverage for smaller states confronting desperate asymmetry of power
vis-à-vis Beijing. In recent months, top Vietnamese officials and experts
have repeatedly underscored the centrality of the UNCLOS in resolution
of South China Sea disputes. Vietnamese Deputy Foreign Minister
Le Hoai Trung emphasized how “The UN Charter and UNCLOS have
sufficient mechanisms for us to apply those [legal] measures.”80
Meanwhile, an influential Vietnamese think tank held a high-profile
public forum in October,81 whereby leading experts advocated
for lawfare against China, based on the relevant provisons of the
UNCLOS, in order to “identify who is right and who is wrong in this
matter.” China, however, has characteristically shot back, warning
Vietnam against ‘complicating’ the dispute.82 Geng Shuang, a
spokesperson for the Chinese Ministry of Foreign Affairs threatened
Vietnam against “actions that may complicate matters or undermine
peace and stability in the South China Sea as well as our bilateral
relations.” China has reasons to worry, in as much as Vietnam has
grounds for optimism. In 2013, the Philippines, against all odds and
despite open misgivings by a lot of its own lawyers and officials,
successfully advocated for the creation of a special tribunal (under
Art. 287, Annex VII, UNCLOS)83 to arbitrate its disputes with China,
which heavily relied on a combination of active boycott, systematic
smearing, and diplomatic intimidation to forestall a legal setback.84
The Tribunal, however, rejected85 Beijing’s invocation of exemption
clauses (see Art. 298, Section 2, Part XV ).86 In its final award, the
Tribunal at The Hague87 even defied the Philippines’ own wildest
expectation by not only invalidating China’s ‘nine-dash-line’ claim,
but also censuring its harassment of Filipino fishermen as well as
ecologically-disastrous reclamation activities in disputed areas.88 By
ruling out the existence of any fully-fledged ‘island’ (see Art. 121, Par
3, UNCLOS),89 the award also affirmed the Philippines’ sovereign
rights within its own Exclusive Economic Zone (EEZ). Adopting the
so-called ‘three nos’ policy90 of non-participation, non-recognition,
and non-compliance, Beijing dismissed the final award as a ‘piece of
trash paper’, while few of its sympathizers also questioned the validity
of the tribunal’s jurisdiction and merits of its final ruling. Yet, the award
had a major impact on China’s position in the South China Sea.91
Contrary to the rhetoric of China and its sympathizers in the
C 2020 STRATBASE ADR INSTITUTE for Strategic and International Studies. All rights reserved.
Philippines,92 the arbitration award had a perceptible effect. While it’s
true that China formally rejected the arbitration outcome, as most
great powers do, effectively taking exception to international law, there
was a major shift in its strategy.93 Crucially, Beijing started to shun the
invalidated ‘nine-dashed-line’ claim in its formal statements. China’s
scramble for legal cover was evident in its push for the much-ridiculed
“four sha”94 (Chinese for sand) doctrine, which effectively accepted the
Tribunal’s ruling on the nature of disputed land features – namely, the
absence of a full-fledged ‘island’ -- in the Spratlys.
Now, China began arguing that the island groups as a whole
constituted a collective land feature entitled to its own EEZ, which
would, in turn, extend Beijing’s sovereign rights well into the waters
of the Philippines, Malaysia and even Vietnam. This supplementary
doctrine, however, is yet to be seriously endorsed by any leading
legal export, never mind an international legal body. The following
year, China desperately devised an alternative position, claiming to
have ‘discovered’ a map, which validates its expansive claims across
the South China Sea basin.95 Per international law, the Philippines’
arbitration award remains final and binding (see Article 296 as well as
Article 11 of Annex VII of the UNCLOS), especially since the
Southeast Asian country has not formally rejected it.96
The implication for Vietnam, which opportunistically refused to join
along the Philippines by filing a parallel arbitration case against China
earlier this decade, is clear. It has the option of using compulsory
arbitration to reaffirm its sovereign rights within its own EEZ and
continental shelf, including in the Vanguard Bank, which has been a site
of naval showdown with China in recent months. Similar to the 2016
arbitral tribunal ruling, Vietnam can also use compulsory arbitration to
censure China’s aggressive action within its own waters and against its
fishermen roaming the area. Vietnam’s sovereignty claims over disputed
land features, including in both Paracels and Spratlys, however, would
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OCCASIONAL PAPER
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09
likely require mutual consent.97 Nonetheless, the UNCLOS also
provides the option of conciliation commission98 (Article 298 and
Annex V, UNCLOS) to manage overlapping claims in the South China
Sea. Either way, the UNCLOS provides sufficient mechanisms for
Vietnam to assert and even affirm its sovereign rights.
More fundamentally, Vietnam’s emphasis on lawfare strengthens not
only its own position, but also that of the Philippines, where majority
of the population (87 percent) wants the Beijing-leaning government
to assert The Hague ruling.99 Moreover, it also puts pressure on the
Philippines to ensure that its proposed joint exploration agreement100
with China is consistent with the UNCLOS and the Tribunal’s ruling
as well as shape the worrying direction of the Code of Conduct
(COC) negotiated between the ASEAN and China.101
Joko Widodo’s call for joint patrols102 in disputed waters by nonclaimant states as well as Malaysian Prime Minister Mahathir
Mohamad’s call for demilitarization103 and multilateral rather than
bilateral settlement of the disputes with China.104 It should also support
calls by Malaysia, Indonesia, and other major ASEAN members for
clarification of China’s precise claims105 in the disputed areas to avoid
further elastic expansionism. In the years and decades to come, the
ASEAN should also revisit its current unanimity-based decision-making
process and even consider associate membership arrangements with
capable and increasingly like-minded greater Southeast Asia neighbors
of Australia and New Zealand.106 Otherwise, the ASEAN fade into
irrelevance, and the South China Sea could end up as a Chinese lake.
As a great power-seeking trust and respect of its neighbors, China
is well aware that lawfare by smaller countries chip away at its
quest for authoritative leadership in Asia. Thus, Vietnam has all the
reason to seriously consider legal countermeasures against China.
Moving forward, the challenge for Vietnam, as the ASEAN’s current
chairman, is to harmonize regional anxieties into a coherent response
against China. So far, instead of a multilateral resistance, we have
seen minilateral coordination and pushback against an expansionist
Beijing. It’s important for key ASEAN members such as Vietnam,
Indonesia and Malaysia to prevent a South China Sea COC that
undermines the interest of smaller states. They should also ensure
that the Philippines, currently the ASEAN-China Country coordinator
until 2021, when the COC negotiations are expected to finalize,
will responsibly protect interest of smaller claimant states
during the ongoing negotiations with China.
Meanwhile, the ASEAN should also seriously consider various
proposals by key regional leaders, including Indonesian President
Image Credit: ictsi.com
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10
endnotes
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
Allison and Blackwill (2013).
Nexon (2009).
Lons (2019).
Torres (2019).
Heydarian (2016).
Agence France-Presse (2019a).
Goh (2008).
Weatherbee (2010).
Campbell and Ratner (2018).
Lubold and Page (2017)
Panda (2019b).
Erickson (2018).
Ranada (2019).
Lu (2019).
Agence France-Presse (2019b).
Doornbos (2019).
Acharya (2017).
Amcham (2018).
Trump (2017a).
U.S. Department of Defense (2018).
The International Institute for Strategic Studies (2018b).
ASEAN.org (2019).
Hoang (2019)
Heydarian (2017b)
Severino (2001).
Desker (2015).
Acharya (2017).
Emmers (2017).
European Council: Council of the European Union (l.a. 2019).
Tann (2019).
Nem (2019).
AFP, Baliga and Sokheng (2016).
Agence France Pressee (2016).
Shi and Liu (2017).
Mogato (2017b).
Heydarian (2018c)
Thayer (2018).
Bilahari Kausikan, “Pavlovian conditioning and ‘correct thinking’ on the South
China Sea”, The StraitsTimes, April 1, 2016, accessed April 4, 2016, wwws.straitstimes.
com/opinion/pavlovian-conditioningand-correct-thinking-on-the-south-china-sea
38
C 2020 STRATBASE ADR INSTITUTE for Strategic and International Studies. All rights reserved.
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
Allison (2017).
Allison (2017).
Mizokami (2019).
Myers (2019).
United Nations (2017).
The author was in Hainan, Sanya at the time.
Reuters (2019).
Bloomberg (2018).
Venzon (2019).
Bajo (2019).
Today (2019).
Sun (2019).
Chok (2019).
Ibid.
United Nations (2017).
Batongbacal (2015).
Permanent Court of Arbitration (2016).
Pearson and Vu (2019).
Oceans & Law of the Sea (2011).
Heydarian (2015a).
Rajagobal (2016).
GMA News (2019).
Lo (2020).
See UNCLOS ‘right of innocent passage’ https://www.un.org/Depts/los/con
vention_agreements/texts/unclos/part2.htm
BenarNews (2020).
Laksmana (2017).
Beech and Suhartono (2018).
Ibid.
Ibid.
Rose (2018).
Beech and Suhartono (2018).
Grevatt and Caffrey (2014).
Panda (2015).
Beech and Suhartono (2018).
Cochrane (2017).
Ibid.
Nguyen, H. (2019).
Tiezzi (2015).
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
106
Yosephine (2016).
Jensen (2018).
Pemmaraju (2016).
Pearson and Vu (2019).
RFA (2019).
Panda (2019a).
Burke (2013).
Allen-Ebrahimian (2016).
Permanent Court of Arbitration (2016).
United Nations Convention on the Law of the Sea. (l.a. 2020).
Permanent Court of Arbitration (2016).
Heaver (2018).
Gau (2019).
Heydarian (2016)
Mollman (2016).
Lopez (2018).
Wilkinson (2018).
Viray (2017).
Jennings (2018).
Roderos (2018).
International Court of Justice (l.a. 2020).
Permanent Court of Arbitration (2018).
Tomacruz (2019).
Heydarian (2018f).
Nguyen, M (2019).
Today Online (2017).
Sukumaran (2019).
Wong (2019).
Gomez (2019).
Dobell (2018).
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REFERENCES
Acharya, Amitav. “The Myth of ASEAN Centrality?.” Contemporary Southeast Asia: A Journal of International and Strategic
Affairs 39, no. 2 (2017): pp.273-279. https://muse.jhu.edu /article/667776/pdf.
Desker, Barry. “ASEAN integration remains an illusion.” East Asia Forum. April 2, 2015. https://www.eastasiaforum.
org/2015/04/02/asean-integration-remains-an-illusion/.
Heydarian, Richard Javad. “Genealogy of Conflict.” In The Routledge Handbook of Asian Security Studies, edited by Sumit
Ganguly, Andrew Scobell and Joseph Chinyong Liow (Abingdon: Routledge, 27 Oct 2017c).
AFP, Ananth Baliga and Vong Sokheng. “Cambodia again blocks ASEAN statement on South China Sea.” The Phnom Penh
Post. July 25, 2016. https://www.phnompenhpost.com/national/cambodia-again-blocks-asean-statement-south-chinasea.
Dobell, Graeme. “Australia as an ASEAN community partner.” Australian Strategic Policy Institute. February20, 2018.
https://www.aspi.org.au/report/australia-asean-community-partner.
Heydarian, Richard Javad. “Perils for Southeast Asia in Beijing’s Belt and Road Scheme.” Nikkei Asia Review. May 16, 2017d.
https://asia.nikkei.com/Politics/Perils-for-Southeast-Asia-in-Beijing-s- Belt-and-Road-scheme.
Agence France-Presse. “ASEAN, U.S. to hold first ever joint maritime drill.” Rappler. August 24, 2019a. https://www.rappler.
com/world/regions/asia-pacific/238469-asean-united-states-hold-firstever-joint-maritime-drill.
Doornbos, Caitlin. “Coast Guard planning to base three fast-response cutters on Guam, commandant says.” Stars and Stripes.
October 22, 2019. https://www.stripes.com/news/pacific/coast-guard-planning-to-base-three-fast-response-cutters-onguam-commandant-says-1.604094.
Heydarian, Richard Javad. “The day after: Enforcing the Hague verdict in the South China Sea.” Brookings. July 25, 2016.
https://www.brookings.edu/opinions/the-day-after-enforcing-the-hague-verdict-in-the-south-china-sea/.
Agence France-Presse. “US gifts new security vessel to Vietnam, vows S. China Sea presence.” Politiko. November
2019b. https://politics.com.ph/us-gifts-new-security-vessel-to-vietnam-vows-schina-sea-presence.
20,
Emmers, Ralf. “ASEAN minus X: Should This Formula Be Extended?.” RSiS. October 24, 2017. https://www.rsis.edu.sg/rsispublication/cms/co17199-asean-minus-x-should-this-formula-be-extended/#.XNEWoo4zbIU.
Agence France-Presse. “Furious Cambodian premier Hun Sen highlights ASEAN splits over South China Sea disputes.” South
China Morning Post. June 20, 2016. https://www.scmp.com/news/asia/east-asia/article/1978092/furious-cambodianpremier-hunsen-highlights-asean-splits-over.
Erickson, Andrew. “SECDEF Mattis calls for “PRC Maritime Militia to operate in a safe and professional manner in accordance
with international law…” Andrew S. Erickson: China analysis from original sources. November 9, 2018. http://www.
andrewerickson.com/2018/11/secdef-mattis-calls-for-prc-maritime-militia-to-operate-in-a-safe-and-professionalmanner-in-accordance-with-international-law/.
Allen-Ebrahimian, Bethany. “Beijing: Japanese Judge Means South China Sea Tribunal Is Biased.” Foreign Policy. June 21,
2016.
https://foreignpolicy.com/2016/06/21/beijing-japanese-judge-means-south-china-sea-tribunal-is-biased-chinaphilippines-maritime-claims/.
Allison, Graham and Robert Blackwill. “Interview: Lee Kuan Yew on the Future of U.S.- China Relations.” The Atlantic. March
5, 2013. https://www.theatlantic.com/china/archive/2013/03/interviewlee-kuan-yew-on-the-future-of-uschina-relations/273657/.
Allison, Graham. “The Thucydides Trap.” Foreign Policy. June 9, 2017.https://foreignpolicy.com/2017/06/09/the-thucydidestrap/.
Anya, Agnes. “East Asia to hear about Indo-Pacific idea.” The Jakarta Post. May 9, 2018. https://www.thejakartapost.com/
news/2018/05/09/east-asia-hear-about-indo-pacific idea.html.
Bajo, Anna Felicia. “Mahathir warns PHL: If you can’t pay debt, you’re endangering your own freedom.” GMA News. March
8, 2019. https://www.gmanetwork.com/news/news/nation/687298/mahathir-warns-phl-if-you-can-t-pay-debt-you-reendangering-your-own-freedom/story/.
Fayez, Abdel Salam. “What’s left of the Qatar siege.” Middle East Monitor. February 21, 2019. https://www.
middleeastmonitor.com/20190221-whats-left-of-the-qatar-siege/.
Ford, Lindsey. “Does ASEAN Matter?.” Asia Society Policy Institute. November 12, 2018. https://asiasociety.org/policy-institute/
does-asean-matter.
Gau, Michael Sheng-ti. “The Interpretation of Article 121(3) of UNCLOS by the Tribunal for the South China
Sea
Arbitration.” Ocean Development & International Law 50 no. 1 (2010): 49-69. https://doi.org/10.1080/00908320.2018.15
11083.
Ger, Yeong-Kuang. “From Congagement to Engagement: TheChanging American China Policy and Its Impact on Regional
Security.” American Journal of Chinese Studies 11, no. 2 (2004): 159-80. Accessed January 21, 2020. www.jstor.org/
stable/26393637.
GMA News. “REPLAY: FYI with Richard Heydarian: interview with Malaysian Prime Minister Mahathir Bin Mohamad.” Youtube
video, 32:31. March 8, 2019. https://www.youtube.com/watch?v=PSvBTKbpPRM&t=929s.
Batongbacal, Jay. “Arbitration 101: Philippines v China.” Asia Maritime Transparency Initiative. January 21, 2015. https://amti.
csis.org/arbitration-101-philippines-v-china/.
Goh, Evelyn. “Great Powers and Hierarchical Order in Southeast Asia: Analyzing Regional Security Strategies.” International
Security 32, no. 3 (2007): 113-57. Accessed January 19, 2020. www.jstor.org/stable/30130520.
Beech, Hannah and Muktita Suhartono. “A ‘Little Bit of a Nutcase’ Who’s Taking on China.” The New York Times.
June 8, 2018. https://www.nytimes.com/2018/06/08/world/asia/indonesia-fishing-boats-china-poaching.html.
Gomez, Jim. “Mahatir: China should define claims in South China Sea.” Arab News. March 8, 2019. https://www.arabnews.
com/node/1463326/world.
BenarNews. “China Has Right to Sail Near Indonesia’s Natuna Islands, Beijing Says.” RFA.org. January 2, 2020. https://www.
rfa.org/english/news/china/indonesia-natuna-01022020165115.html.
Grevatt, Jon and Craig Caffrey. “Indonesia increases defence budget 14%.” Janes.com. August 18, 2014. https://www.janes.
com/article/42069/indonesia-increases-defence-budget-14.
Birtles, Bill. “China mocks Australia over ‘Indo-Pacific’ concept it says will ‘dissipate.’” ABC News. March 8, 2018. https://www.
abc.net.au/news/2018-03-08/china-mocks-australia-over-indo-pacific-concept/9529548.
Heaver, Stuart. “Scientists fear land reclamation will harm ecology of South China waters and survival of iconic white dolphin.”
South China Morning Post. July 18, 2018. https://www.scmp.com/lifestyle/article/2155660/scientists-fear-harmreclamation-will-do-ecology-south-china-waters-and.
Bloomberg. “Mahathir vows to review China investments.” The Straits Times. April 10, 2018. https://www.straitstimes.com/asia/
se-asia/mahathir-vows-to-review-china-investments.
Burke, Naomi. “UNCLOS Annex VII Arbitration – Who, What, Where, When?.” Cambridge International Law Journal. March 25,
2013. http://cilj.co.uk/2013/03/25/unclos-annex-vii-arbitration-who-what-where-when-2/.
Campbell, Kurt and Ely Ratner. “The China Reckoning.” Foreign Affairs. March/April 2018. https://www.foreignaffairs.com/
articles/china/2018-02-13/china-reckoning.
Chakrabarty, Malancha. “India and CLMV countries: Investments, development cooperation and
sustainable
development.” Observer Research Foundation. June 4, 2019. https://www.orfonline.org/research/india-and-clmvcountries-investments-development-cooperation-and-sustainable-development-51608/.
Chandran, Nyshka. “As Pence kicks off his Asia tour, other countries have their own ideas for the ‘Indo-Pacific’.” CNBC.
November 11, 2018. https://www.cnbc.com/2018/11/12/us-japan-and-indonesia-set-their-sights-on-the-indo-pacificregion.html.
Chen Yifel. “China to launch ‘world’s largest’ coastguard patrol vessel.” South China Morning Post. December 16, 2014.https://
www.scmp.com/news/china-insider/article/1663219/china-coastguard-poised-take-delivery-over-worlds-largest-patrol.
Chok Suat Ling. “PM: Malaysia is a friend of China.” New Straits Times. April 25, 2019. https://www.nst.com.my/news/
nation/2019/04/482920/pm-malaysia-friend-china.
Cochrane, Joe. “Indonesia, Long on Sidelines, Starts to Confront China’s Territorial Claims.” The New York Times. September
10, 2017. https://www.nytimes.com/2017/09/10/world/asia/Indonesia south-china-sea-military-buildup.html.
C 2020 STRATBASE ADR INSTITUTE for Strategic and International Studies. All rights reserved.
Heydarian, Richard Javad. Asia’s New Battlefield: US, China, and the Struggle for Western Pacific. London: Zed,
2015a.
Heydarian, Richard Javad. “Is ASEAN Still Relevant.” The Diplomat. March 26, 2015b. https://thediplomat.com/2015/03/isasean-still-relevant/.
Hoang Thi Ha. “ASEAN Outlook on the Indo-Pacific: Old Wine in New Bottle?.” ISEAS Yusof Ishak Institute. June 25, 2019.
https://www.iseas.edu.sg/images/pdf/ISEAS_Perspective_2019_51.pdf.
Jensen, Fergus. “Indonesia pushes for Southeast Asian patrols of disputed waters.” Reuters. March 16, 2018. https://www.
reuters.com/article/us-australia-indonesia-politics/indonesia-pushes-forsoutheast-asian-patrols-ofdisputed-waters-idUSKCN1GS0CL.
Jennings, Ralph. “Map Discovery Gives China New Tool to Control a Disputed Sea.” VOA. April 27, 2018. https://www.voanews.
com/east-asia-pacific/map-discovery-gives-china-new-tool-control-disputed-sea.
Kennan, George. “The Sources of Soviet Conduct.” Foreign Affairs. July 1, 1947. https://www.foreignaffairs.com/articles/
russian-federation/1947-07-01/sources-soviet-conduct
Laksmana, Evan. “An Indo-Pacific construct with ‘Indonesian characteristics’.” Australian Strategic Policy Institute. February 6, 2018.
https://www.aspistrategist.org.au/indo-pacific-construct-indonesian-characteristics/.
Laksmana, Evan. “Pragmatic Equidistance: How Indonesia Manages Its Great Power Relations.” In China, The United States, and
the Future of Southeast Asia, edited by David Denoon, pp 113-135. New York: New York University Press, 2017.
Leong Kok Wey, Adam. “The War That Gave Birth to ASEAN.” The Diplomat. September 9, 2016. https://thediplomat.
com/2016/09/the-war-that-gave-birth-to-asean/.
Liu Zhen. “Five things to know about China’s home-built Type 055 destroyer, guardian of the next-generation aircraft carrier.”
South China Morning Post. August 5, 2018. https://www.scmp.com/news/china/diplomacy-defence/article/2158059/
five-things-know-about-home-built-destroyer-will-guard.
Lo, Kinling. “How Indonesia’s South China Sea dispute with Beijing could lead to a tough ASEAN stance on code of conduct.”
South China Morning Post. January 2, 2020. https://www.scmp.com/news/chinadiplomacy/article/3044374/howindonesias-south-china-sea-dispute-beijing-could-lead.
Lons, Camille. “Onshore balancing: The threat to Oman’s neutrality.” European Council on Foreign Relations. April 3, 2019.
https://www.ecfr.eu/article/commentary_onshore_balancing_the_threat_to_omans_neutrality.
Heydarian, Richard Javad. “ASEAN Chooses to Focus on Chinese Money Over Missiles.” China-US Focus. May 9, 2018a.
https://www.chinausfocus.com/foreign-policy/asean-chooses-to-focus-on-chinese-money-over-missiles.
Lopez, Virgil. “Duterte considers setting aside arbitral ruling for economic gain.” GMA News. September 11, 2019. https://www.
gmanetwork.com/news/news/nation/707643/duterte-considers-setting-aside-arbitral-ruling-for-economic-gain/story/.
Heydarian, Richard Javad. “Australia right to huddle closer to Southeast Asia.” Nikkei Asian Review. March 20, 2018b. https://
asia.nikkei.com/Politics/International-relations/Australia-right-to-huddle-closer-to-Southeast-Asia.
Lopez, Virgil. “Palace: Arbitral ruling ‘useless’ for now due to lack of enforcement.” GMA News Online.
November
20,
2018. https://www.gmanetwork.com/news/news/nation/675433/palace-arbitral-ruling-useless-for-now-due-to-lack-ofenforcement/story/
Heydarian, Richard Javad. “Crossing the Rubicon: Duterte, China and Resource-Sharing in the South China Sea.” Maritime
Issues. October 23, 2018c. http://www.maritimeissues.com/politics/crossing-the-rubicon-duterte- c h i n a - a n d resourcesharing-in-the-south-china-sea.html.
Heydarian, Richard Javad. “Indonesia’s Tough Balancing Act in the Indo-Pacific.” China-US Focus. November 26, 2018d.
https://www.chinausfocus.com/foreign-policy/indonesias-tough-balancing-act-in-the-indo-pacific.
Heydarian, Richard Javad. “The Economic Showdown in the South China Sea.” The National Interest. August 28, 2018e. https://
nationalinterest.org/feature/economic-showdown-south-china-sea-29917.
Heydarian, Richard Javad. “The Perils of a Philippine-China Joint Development in South China Sea.” Asia Maritime Transparency
Initiative. April 27, 2018f. https://amti.csis.org/perils-philippine-china-joint-development-scs/.
Heydarian, Richard Javad. “Asean-China Code of Conduct: Never-ending negotiations.” The Straits Times. March 9, 2017a.
https://www.straitstimes.com/opinion/asean-china-code-of-conduct-never-ending-negotiations.
Heydarian, Richard Javad. “ASEAN needs to move to minilateralism.” East Asia Forum. December 5, 2017b. https://www.
eastasiaforum.org/2017/12/05/asean-needs-to-move-to-minilateralism/.
Lubold, Gordon and Jeremy Page. “U.S. to Challenge China With More Patrols in Disputed Waters.” Wall Street
Journal.
September 1, 2017. https://www.wsj.com/articles/u-s-readies-plan-to-increase-patrols-in-south-china-sea-1504299067
Lu, Zhenhua. “US coastguard cutter takes part in ‘freedom of navigation’ in Taiwan Strait for the first time.” South China Morning
Post. March 25, 2019. https://www.scmp.com/news/china/diplomacy/article/3003105/us-freedom-navigationoperation-through-taiwan-strait-involves.
Madan, Tanvi. “The Rise, Fall, and Rebirth of the ‘Quad’.” War on the Rocks. November 16, 2017. https://warontherocks.
com/2017/11/rise-fall-rebirth-quad/.
Mizokami, Kyle. “China Now Has More Warships Than the U.S.” Popular Mechanics. May 20, 2019. https://www.
popularmechanics.com/military/navy-ships/a27532437/china-now-has-more-warships-than-the-us/.
Modi, Narendra. “Prime Minister’s Keynote Address at Shangri La Dialogue (June 01, 2018).” Speech, Shangri La Dialogue,
Singapore. Ministry of External Affairs, Government of India. June 1, 2018. https://www.mea.gov.in/SpeechesStatements.
htm?dtl/29943/Prime+Ministers+Keynote+Address+at+Shangri+La+Dialogue+June+01+2018.
www.adrinstitute.org
OCCASIONAL PAPER
JANUARY 2020
12
Mogato, Manuel. “Duterte says China’s Xi threatened war if Philippines drills for oil.” Reuters. Ma 19, 2017a. https://www.
reuters.com/article/us-southchinasea-philippines-china/duterte-says-chinas-xi-threatened-war-if-philippines-drills-for-oilidUSKCN18F1DJ.
Mogato, Manuel. “Philippines says China wanted non-legally binding South China Sea code.” Reuters. August 8, 2017b. https://
www.reuters.com/article/us-asean-philippines-southchinaseaidUSKBN1AO1LW.
Mollman, Steve. “Choice insults Beijing has hurled at the international tribunal about to rule on the South China Sea.” Quartz.
July 7, 2016. https://qz.com/724288/choice-insults-beijing-has-hurled-at-the-international-tribunal-about-to-rule-on-thesouth-china-sea/.
Myers, Steven Lee. “China Commissions 2nd Aircraft Carrier, Challenging U.S. Dominance.” The New York Times. December
17, 2019. https://www.nytimes.com/2019/12/17/world/asia/china-aircraft-carrier.html.
Nem Sopheakpanha. “China Pledges $10 Billion in Support to Cambodia as Relations With West Deteriorate.” VOA. January
23, 2019. https://www.voacambodia.com/a/china-pledges-10-billion-in-support-to-cambodia-as-relations-with-westdeteriorate/4755548.html.
Nexon, Daniel H. “The Balance of Power in the Balance.” World Politics 61, no. 2 (2009): 330-59. Accessed January 19, 2020.
www.jstor.org/stable/40263485.
Nguyen Hong Thao. “Malaysia’s New Game in the South China Sea.” The Diplomat. December 21, 2019. https://thediplomat.
com/2019/12/malaysias-new-game-in-the-south-china-sea/.
Nguyen Minh Quang. “Saving the China-ASEAN South China Sea Code of Conduct.” The Diplomat. June 29, 2019. https://
thediplomat.com/2019/06/saving-the-china-asean-south-china-sea-code-of-conduct/.
Oceans & Law of the Sea. “Commission on the Limits of the Continental Shelf (CLCS) Outer limits of the continental shelf
beyond 200 nautical miles from the baselines: Submissions to the Commission: Joint submission by Malaysia and the
Socialist Republic of Viet Nam.” United Nations. May 3, 2011. https://www.un.org/Depts/los/clcs_new/submissions_files/
submission_mysvnm_33_2009.htm.
Office of the Spokesperson. “Indo-Pacific Transparency Initiative.” U.S. Department of State. November 3, 2019. https://www.
state.gov/indo-pacific-transparency-initiative/.
Panda, Ankit. “China Warns Vietnam to Not ‘Complicate’ South China Sea Dispute By Seeking Legal Arbitration.” The Diplomat.
November 9, 2019a. https://thediplomat.com/2019/11/china-warns- vietnam-to-not-complicate-south-china-seadispute-by-seeking-legal-arbitration/.
Panda, Ankit. “South China Sea: 2 US Navy Destroyers Conduct Freedom of Navigation Operation in Spratlys.” The Diplomat.
May 6, 2019b. https://thediplomat.com/2019/05/south-china-sea-2-us-navy-destroyers-conduct-freedom-of-navigationoperation-in-spratlys/.
Reuters. “China ‘objects’ to Malaysia’s UN submission on S.China Sea.” Bangkok Post. December 17, 2019. https://www.
bangkokpost.com/world/1818179/china-objects-to-malaysias-un-submission-on-s-china-sea.
Weatherbee, Donald. International Relations in Southeast Asia: The Struggle for Autonomy (Second Edition). Lanham: Rowman
& Littlefield Publishers Inc, 2010.
Reuters and Tracy You for MailOnline. “Satellite images reveal China’s first full-sized aircraft carrier being built at the country’s
‘warship factory’ outside Shanghai.” Daily Mail. October 17, 2019. https://www.dailymail.co.uk/news/article-7583271/
Chinas-aircraft-carrier-Satellite-images-Beijings-sized-carrier-built.html.
Westbrook, Tom. “Australia, ASEAN agree to start regional infrastructure cooperation.” Reuters. March 19, 2018. https://www.
reuters.com/article/us-asean-australia-infrastructure/australia-asean-agree-to-start-regional-infrastructure-cooperationidUSKBN1GV09V.
Roderos, Elijah. “Carpio reveals DFA’s timely clarification on Duterte’s 2016 statement saved PH Arbitral Tribunal win.” Vera Files.
November 27, 2018. https://verafiles.org/articles/carpio-reveals-dfas-timely-clarification-dutertes-2016-state.
Wilkinson, Tracy. “U.S. rejects international court order to ease some sanctions on Iran.” Los Angeles Times. October 3, 2018.
https://www.latimes.com/nation/la-na-pol-us-iran-court-20181003-story.html.
Rose, David. “’China calls it fishing, Indonesia calls it crime’: Pudjiastuti finds her target for Oceans summit.” South China
Morning Post. October 18, 2018. https://www.scmp.com/week-asia/geopolitics/article/2169153/china-calls-it-fishingindonesia-calls-it-crime-pudjiastuti.
Wong, Catherine. “’Divide and conquer Asean’: China tries to go one on one with Mahatir to settle South China Sea dispute.”
South China Morning Post. May 18, 2019. https://www.scmp.com/news/china/diplomacy/article/3010790/divide-andconquer-asean-china-tries-go-one-one-malaysia.
Segal, Gerald. “East Asia and the “Constrainment” of China.” International Security 20, no. 4 (1996): 107-35 doi:10.2307/2539044.
Yosephine, Liza. “Indonesia urges parties to respect laws following South China Sea ruling.” The Jakarta Post.
July
22,
2016.https://www.thejakartapost.com/seasia/2016/07/12/indonesia-urges-parties-to-respect-laws-following-southchina-sea-ruling.html.
Sempa, Francis. “Nicholas Spykman and the Struggle for the Asiatic Mediterranean.” The Diplomat. January 9, 2015. https://
thediplomat.com/2015/01/nicholas-spykman-and-the-struggle-for-the-asiatic-mediterranean/.
Severino, Rodolfo. “The ASEAN Way and the Rule of Law.” Speech, University of Malaysia, Kuala Lumpur, September 3, 2001.
ASEAN.org. https://asean.org/?static_post=the-asean-way-and-the-rule-of-law.
Shi JIangtao and Liu Zhen. “’Better left untouched’: Philippines and Vietnam wary of Trump offer to mediate South China
Sea disputes.” South China Morning Post. November 12, 2017. https://www.scmp.com/news/china/diplomacy-defence/
article/2119551/better-left-untouched-philippines-and-vietnam-wary.
Smith, Jeff. “Unpacking the Free and Open Indo-Pacific.” War on the Rocks. March 14, 2018. https://warontherocks.
com/2018/03/unpacking-the-free-and-open-indo-pacific/.
Stewart, Cameron. “US tells Australia to take on China over disputed islands.” The Australian. July 24, 2018. https://www.
theaustralian.com.au/nation/foreign-affairs/us-tells-australia-to-take-onchina-over-disputed-islands/news-story/
f3905d87f899ef5a91482f7ca5750f04.
Sukumaran, Tashny. “Mahatir to update Malaysia’s foreign policy, including on South China Sea and international Muslim
cooperation.” South China Morning Post. September 18, 2019. https://www.scmp.com/week-asia/politics/
article/3027949/mahathir-update-malaysias-foreign-policy-including-south-china.
Sun, Nikki. “Xi pledges Belt and Road reboot amid rising ‘debt trap’ concerns.” Nikkei Asian Review. April 27, 2019. https://asia.
nikkei.com/Spotlight/Belt-and-Road/Xi-pledges-Belt-and-Road-reboot-amid-rising-debt-trap-concerns.
Sunaga, Kazuo. “Japan’s assistance to ASEAN Connectivity in line with MPAC2025.” Mission of Japan to ASEAN. October
2016. https://www.asean.emb-japan.go.jp/documents/20161102.pdf.
“Accession criteria.” European Commission. Accessed on January 19, 2020. https://ec.europa.eu/neighbourhood-enlargement/
policy/glossary/terms/accession-criteria_en
“Aristotle’s Political Theory.” Stanford Encyclopedia of Philosophy. July 1, 1998. Last date accessed January 19, 2020. https://
plato.stanford.edu/entries/aristotle-politics/.
“ASEAN Outlook on the Indo-Pacific.” ASEAN.org. June 22, 2019. https://asean.org/storage/2019/06/ASEAN-Outlook-on-theIndo-Pacific_FINAL_22062019.pdf
“Basis of the Court’s jurisdiction.” International Court of Justice. Last date accessed January 22, 2020. https://www.icj-cij.org/
en/basis-of-jurisdiction.
“China Commissions its First Domestically-Built Aircraft Carrier.” The Maritime Executive. December 17,
maritime-executive.com/article/china-commissions-its-first-domestically-built-aircraft-carrier.
2019. https://www.
“Experts Call For Vietnam to Sue China in International Court Over South China Sea Incursions.” RFA.org. October 9, 2019.
https://www.rfa.org/english/news/vietnam/lawsuit-10092019152725.html/.
“India as a “Global Swing State.”” The National Bureau of Asian Research. July 22, 2013. https://www.nbr.org/publication/indiaas-a-global-swing-state-a-new-framework-for-u-s-engagement-with-india/.
“”Jaw to Jaw versus “Jaw, Jaw”.” Richard M. Langworth. December 14, 2010. https://richardlangworth.com/jaw-jaw.
“Jokowi to discuss S China Sea joint patrols with Turnbull.” Today Online. February 25, 2017. https://www.todayonline.com/
world/asia/jokowi-discuss-s-china-sea-joint-patrols-turnbull.
Panda, Ankit. “US, Indonesian Navies Conduct Air Patrol Exercise in South China Sea.” The Diplomat. April 11, 2015. https://
thediplomat.com/2015/04/us-indonesian-navies-conduct-air-patrol-exercise-in-south-china-sea/.
Tann, Somothea. “How Chinese money is changing Cambodia.” Deutsche Welle. August 22, 2019. https://www.dw.com/en/
how-chinese-money-is-changing-cambodia/a-50130240.
Page, Jeremy. “Deep Threat | China’s Submarines Add Nuclear-Strike Capability, Altering Strategic Balance.” Wall Street Journal.
October 24, 2014. https://www.wsj.com/articles/chinas-submarine-fleet-adds-nuclear-strike-capability-altering-strategicbalance-undersea-1414164738.
Thayer, Carl. “A Closer Look at the ASEAN-China Single Draft South China Sea Code of Conduct.” The Diplomat. August
3,
2018.
https://thediplomat.com/2018/08/a-closer-look-at-the-asean-china-single-draft-south-china-sea-code-ofconduct/
Pearson, James and Khanh Vu. “Vietnam mulls legal action over South China Sea dispute.” Reuters. November 6, 2019.
https://www.reuters.com/article/us-vietnam-southchinasea/vietnam-mulls-legal-action-over-south-china-sea-disputeidUSKBN1XG1D6.
Tiezzi, Shannon. “Would Indonesia Actually Challenge China’s Nine-Dash Line in International Court?.” The Diplomat. November
13, 2015. https://thediplomat.com/2015/11/would-indonesia-actually-challenge-chinas-nine-dash-line-in-internationalcourt/.
Pemmaraju, Sreenivasa Rao. “The South China Sea Arbitration (The Philippines v. China): Assessment of the Award on
Jurisdiction and Admissibility.” Journal of International Law 15 no. 2 (2016): 265-307.https://doi.org/10.1093/chinesejil/
jmw019.
Tomacruz, Sofia. “3 years later, 87% of Filipinos want gov’t to assert Hague ruling.” Rappler. July 12, 2019. https://www.rappler.
com/nation/235259-filipinos-want-government-assert-hague-ruling-sws-survey-2019.
“Riding the ASEAN elephant: How business is responding to an unusual animal.” The Economist. February 2013. http://ftp01.
economist.com.hk/ECN_papers/ridingASEAN.pdf.
Torres, Sherrie Ann. “China still rejects PH arbitral win in South China Sea case.” ABS-CBN News. August 9, 2019. https://news.
abs-cbn.com/news/08/09/19/china-still-rejects-ph-arbitral-win-says-envoy.
“Shangri-La Dialogue 2018 highlights: Day Two.” The International Institute for Strategic Studies. June 2, 2018. https://www.iiss.
org/blogs/analysis/2018/06/shangri-la-dialogue-2018-day-two-highlights.
Trump, Donald. National Security Strategy of the United States of America. 2017. https://www.whitehouse.gov/wp-content/
uploads/2017/12/NSS-Final-12-18-2017-0905.pdf.
“Slavoj Zizek: Far Right and Anti-Immigrant Politicians on the Rise in Europe.” Democracynow.org. Last date modified October
18, 2010. https://www.democracynow.org/2010/10/18/slavoj_zizek_far_right_and_anti.
Ulusoy, Hasan. “Revisiting Security Communities After the Cold War: The Constructive Perspective.” System for Award
Management. January 2012. http://sam.gov.tr/wp-content/uploads/2012/01/Hasan-Ulusoy3.pdf.
“South China Sea: What Australia Might Do.” Australia-China Relations Institute. March 2016. https://www.australiachinarelations.
org/content/south-china-sea-what-australia-might-do/
United Nations Convention on the Law of the Seas. “Part XV: Settlement of Disputes.” UN.org. Last date accessed January 22,
2020. https://www.un.org/depts/los/convention_agreements/texts/unclos/part15.htm.
“Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia).” International Court of Justice. Last date accessed:
January 19, 2020a. https://www.icj-cij.org/en/case/102/summaries
U.S. Department of Defense. Summary of the 2018 National Defense Strategy of The United States of America. 2018. https://
dod.defense.gov/Portals/1/Documents/pubs/2018-National-Defense- Strategy-Summary.pdf.
“Temple of Prea Vihear (Cambodia v Thailand). International Court of Justice. Last date accessed: Janiary 19, 2020b. https://
www.icj-cij.org/en/case/45.
Venzon, Cliff. “Mahathir warns Philippines about China loans.” Nikkei Asian Review. March 7, 2019. https://asia.nikkei.com/
Politics/International-relations/Mahathir-warns-Philippines-about-China-loans.
“The perils of China’s “debt-trap diplomacy”” The Economist. September 6, 2018. https://www.economist.com/asia/2018/09/06/
the-perils-of-chinas-debt-trap-diplomacy.
Viray, Patricia Lourdes. “Shifting tactics: China advances ‘four sha’ claim in South China Sea.” Philippine Star Global. September
27, 2017. https://www.philstar.com/headlines/2017/09/27/1742870/shifting-tactics-china-advances-four-sha-claimsouth-china-sea.
“Voting system: Qualified majority.” European Council: Council of the European Union. Last date accessed May,6,2019. https://
www.consilium.europa.eu/en/council-eu/voting-system/qualified-majority/.
Pence, Mike. “Mike Pence: The United States seeks collaboration, not control, in the Indo-Pacific.” The Washington Post.
November 9, 2018. https://www.washingtonpost.com/opinions/mike-pence-the-united-states-seeks-collaboration-notcontrol-in-the-indo-pacific.
Permanent Court of Arbitration. Conciliation between The Democratic Republic of Timor-Leste and The Commonwealth of
Australia. PCA Case No. 2016-10. The Hague, Netherlands. May 9, 2018. https://pca-cpa.org/en/cases/132/.
Permanent Court of Arbitration. In the matter of the South China Sea Arbitration. PCA Case No 2013-19. The Hague, Netherlands.
July 12, 2016. https://pca-cpa.org/wp-content/uploads/sites/6/2016/07/PH-CN-20160712-Award.pdf.
Poling, Gregory. “China’s Hidden Navy.” Foreign Policy. June 25, 2019. https://foreignpolicy.com/2019/06/25/chinas-secretnavy-spratlys-southchinasea-chinesenavy-maritimemilitia/.
Punongbayan, JC. “[ANALYSIS] Is Duterte selling out the Philippines to China?.” Rappler. November 23, 2018. https://www.
rappler.com/thought-leaders/217353-is-duterte-selling-out-philippines-to-china.
Rajagobal, Navin. “The 2009 claims that changed the dynamics in the South China Sea.” The Straits Times. July 12, 2016.
https://www.straitstimes.com/opinion/the-2009-claims-that-changed-dynamics-in-the-s-china-sea.
Rajya Sabha TV. “PM Modi attacks former PM Jawaharlal Nehru for the stampede in Kumbh during his tenure.” Youtube video,
2:04. Posted [May 2019]. https://www.youtube.com/watch?v=IQNRDgXtlFQ.
Ranada, Pia. “South China Sea covered by PH-U.S. Mutual Defense Treaty – Pompeo.” Rappler. March 1, 2019. https://www.
rappler.com/nation/224668-pompeo-says-south-china-sea-covered-philippines-us-mutual-defense-treaty
C 2020 STRATBASE ADR INSTITUTE for Strategic and International Studies. All rights reserved.
Walker, Christopher. “What is “Sharp Power?.” Journal of Democracy 29 No. 3 (2018):9-23. https://www.journalofdemocracy.
org/articles/what-is-sharp-power/.
“Malaysia Partial Submission to the Commission on the Limits of the Continental Shelf pursuant to Article 76, paragraph 8 of
the United Nations Convention on the Law of the Sea 1982 in the South China Sea.” United Nations. November 2017.
https://www.un.org/Depts/los/clcs_new/submissions_files/mys85_2019/20171128_MYS_ES_DOC_001_secured.pdf
“Malaysia to stay friendly with China despite territorial dispute: Mahathir.” Today. September 26, 2019. https://www.todayonline.
com/world/malaysia-stay-friendly-china-despite-territorial-dispute-mahathir.
“Quotable Quote by Arthur Miller.” Goodreads. Last date accessed January 20, 2020. https://www.goodreads.com/
quotes/6489596-an-era-can-be-considered-over-when-its-basic-illusions
“VP Pence will flesh out the Indo-Pacific Economic Vision.” Am Cham Vietnam. October 11, 2018. https://www.amchamvietnam.
com/vp-pence-will-flesh-out-the-indo-pacific-economic-vision/
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13.1
VOLUME
ABOUT
Richard Javad Heydarian
is a non-resident fellow at Stratbase ADR Institute, and a columnist for
the Philippine Daily Inquirer, and a resident political analyst at GMA
Network. He has authored close to 1000 articles on regional security
issues, three authored books on geopolitics, and writes widely for
regional and international publications. Parts of this paper were drawn
from his earlier works for the US-China Focus and Straits Times, where
he is a regular contributor.
Stratbase ADR Institute
is an independent international and strategic research
organization with the principal goal of addressing the
issues affecting the Philippines and East Asia
9F 6780 Ayala Avenue, Makati City
Philippines 1200
V 8921751
F 8921754
www.stratbase.ph
C 2019 STRATBASE ADRiNSTITUTE for Strategic and International Studies. All rights reserved.
Image Credit: blogs.wsj.com/briefly/2015/05/13/5-things-about-the-south-china-sea-dispute
PUBLICATIONS
OCCASIONAL
PAPER
JANUARY 2020
ISSUE 13.1
THE ASEAN’S
DIVIDED RESISTANCE:
DUTERTE, CHINA AND
THE QUEST FOR
RULE
OF
LAW
IN THE SOUTH CHINA SEA
OCCASIONAL PAPER JANUARY 2020
02
THE ASEAN’S DIVIDED RESISTANCE:
DUTERTE, CHINA AND THE QUEST FOR
RULE OF LAW IN THE SOUTH CHINA SEA
THE ASEAN'S STANCE
Hamstrung by its de facto unanimity-based decision-making process, the ASEAN has failed to forge robust resistance to aggression of external powers,
especially China's in the South China Sea. Moreover, strategic acquiescence of key countries, especially the Philippines under Beijing-friendly President Rodrigo
Dutetre, has further weakened the ASEAN's hand, risking the prospect of ASEAN peripherality, rather than centrality, in shaping the security architecture.
Nonetheless, resistance by and minilateral cooperation among three key Southeast Asian powers of Indonesia, Malaysia, and Vietnam, the current
ASEAN chair, portends increasing resistance to, albiet in a divided fashion, Chinese revanchist ambitions in the South China Sea.
The China Challenge
Contemplating on the emerging security architecture in Asia, the
late Singaporean Prime Minister Lee Kuan Yew warned, “The size
of China’s displacement of the world balance is such that the world
must find a new balance. It is not possible to pretend that this is
just another big player. This is the biggest player in the history of
the world.”1 The implication was clear: given its sheer size and vast
potentials, as well as the world-historical breadth of its ambitions,
China’s re-emergence as a global power will upend the very
international system itself. Thus, business-as-usual tactical ‘balanceof-power’ readjustment2 won’t cut it, since what China portends is a
strategic revolution, and it’s in East and Southeast Asia, where this
tectonic geopolitical shift is most poignant. Nonetheless, he viewed
the necessity for continued American presence in Asia, precisely
because of the widely “held consensus that the U.S. presence in
the region should be sustained” in order to check China’s worst
instincts, and that “military presence does not need to be used to
be useful”, since American “presence [alone] makes a difference
and makes for peace and stability in the region.” Lee’s theory of
America’s indispensability as the ‘onshore balancer’3 par excellence
Image Credit:nytismes.com/2016/07/13/opinion/testing-the-rule-of-law-in-the-south-china-sea.html
C 2020 STRATBASE ADR INSTITUTE for Strategic and International Studies. All rights reserved.
is most pertinent in the context of the South China Sea, because,
as he correctly foresaw, “China will not let an international court
arbitrate territorial disputes in the South China Sea”. In fact, this was
exactly the case years after the death of the former Singaporean
leader when Beijing categorically rejected the Philippine-initiated
Arbitral Tribunal award at The Hague, constituted under the aegis of
the United Nations Convention on the Law of the Sea (UNCLOS), as
a piece of ‘trash paper.’4 China even had the audacity to codify its
defiance of international law by unabashedly adopting the ‘three nos’
policy of non-participation, non-recognition, and non-compliance
with respect to even a final and binding tribunal ruling.5 As the late
Singaporean leader correctly underscored, “the [continued] presence
of U.S. firepower in the Asia-Pacific” is crucial so that the “[United
Nations] Law of the Sea [will] prevail.” In short, even the fiercely
independent-minded Lee, who served as the gateway between
China’s top leadership (from Deng Xiaping to Xi Jinping)
and the West, saw American military power as
essential to peace and prosperity in Asia.
* The views and opinions expressed in this Paper are those of the author and do not necessarily reflect those of the Institute.
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OCCASIONAL PAPER JANUARY 2020
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His wisdom still echoes across Southeast Asia, as evident in the
Association of Southeast Asian Nations’ (ASEAN) inaugural ASEANUS Maritime Exercise (AUMX)6 last year. During the joint exercises,
the US Navy and key regional partners conducted five-day-long drills,
stretching from the Sattahip naval base in Chonburi province in Gulf
of Tonkin to Cape Cà Mau on the Cà Mau Peninsula in Vietnam. In
addition, there were also non-drill activities in archipelagic Southeast
Asian nations of Brunei and Singapore, which permanently hosts
American Littoral Combat Ships (LTC). Crucially, the geographical pivot
of the exercises was the South China Sea, where both sides have a
shared interest in keeping Chinese ambitions at stake. Interestingly,
however, the AUMX took place not long after the ASEAN conducted
its own first-ever joint drills with China. The message was clear: We
are open to work with the new major power in Asia, but will continue
to engage and welcome external powers such as America. This
reflects the ASEAN’s long-standing policy of omni-balancing – namely,
preserving maximum strategic autonomy through sustained, noncommittal engagement with (competing) major powers.7 This way,
the ASEAN aims to constrain a rising power’s (China) aggression
through flexible cooperation with the status quo power (America). In
short, Southeast Asian nations prefer to outsource ‘hard balancing’
to external powers in order to strengthen their bargaining chip when
dealing with China. This is an essential element of the ASEAN’s
struggle for autonomy within a competitive security environment.8
As a new bipartisan consensus against China takes shape,9 the
United States has also regularized10 its increasingly daring Freedom of
Navigation Operations (FONOPs) against Beijing, frequently deploying
multiple warships well into the 12 nautical miles of Chinese-occupied
islands in the area.11 Meanwhile, the US Navy has also warned of a
“more muscular”12 response to China’s usage of para-military forces in
the South China Sea, while reiterating its commitment to aid regional
allies, especially the Philippines, in an event of conflict (with China) in
the area.13 To top it all, the US Coast Guard (USCG), for the first time
C 2020 STRATBASE ADR INSTITUTE for Strategic and International Studies. All rights reserved.
since the end of Cold War, has joined the scramble in the Western
Pacific, now participating in the Pentagon’s FONOPs operations
against China,14 contributing to maritime defense aid across
Southeast Asia,15 and expanding expeditionary
deployments and joint drills with East Asian partners.16
Nonetheless, it hasn’t been an all-smooth ride for Southeast
Asian nations, which are grappling with diminishing ‘ASEAN centrality’
(AC) in shaping regional security dynamics. In fact, there is also a
lingering, if not profound, anxiety among regional states over the
Trump administration’s Free and Open Indo-Pacific (FOIP) doctrine,
which is often perceived, whether legitimately or not, as a thinlyveiled containment strategy by the US -- along with regional powers
of Australia, Japan and India -- against China.17,18 After all, both the
National Security Strategy (NSS)19 and National Defense Strategy
(NDS) papers20 of the Trump administration have made it clear that
‘great power competition’, especially with China, will be the defining
priority of the world’s superpower for the foreseeable future.21 In
response, Southeast Asian countries have adopted the ASEAN
Outlook on the Indo-Pacific (AOIP),22 which insists, rather proves,
the regional body’s commitment to “continue to maintain its central
role in the evolving regional architecture in Southeast Asia and its
surrounding regions” and remain as “an honest broker within the
strategic environment of competing interests”, promoting an “open”,
“transparent”, “inclusive”, “rules-based” order based on “respect for
international law.”23 And calls on the ASEAN to “lead the shaping
of their economic and security architecture and ensure that such
dynamics will continue to bring about peace, security, stability and
prosperity for the peoples in the Southeast Asia as well as in the
wider Asia-Pacific and Indian Ocean regions or the Indo-Pacific.”
The document, however, is more defensive, betraying ASEAN
insecurity, than providing a proper blueprint for reassertion of ASEAN
Centrality in shaping the 21st century strategic environment.
The ASEAN’s Peripherality
More fundamentally, the ASEAN itself suffers from what can be
termed as “middle institutionalization trap,”24 namely the institutional
structure, and corresponding decision-making processes, which
allowed the regional body to establish a robust security community in
the twentieth century, is now painfully insufficient to address the new
challenges of the twenty-first century. This institutional malady has
been most acutely observed in terms of the ASEAN’s often perverse
operationalization of the principles of consultation (Mushawara) and
consensus (Muafakat).25 In practice, consensus has been equated
to unanimity, a practice that has been a recipe for disaster when the
region needed to stand up to external powers on sensitive geopolitical
issues, namely the South China Sea. As the veteran Singaporean
diplomat Barry Desker rightly points out, the current decision-making
configuration reinforces the “ability of external parties to shape the
positions of ASEAN members on regional issues,” especially when
“China exerts its influence on ASEAN members to prevent any
decisions which could affect its preference…”26 No wonder then, even
prominent ASEAN experts such as Amitav Acharya have wondered
if “ASEAN centrality is as much a product of external players in
Southeast Asia as it is of the ASEAN members themselves,” since
“one suspects that its emergence had more to do with the
dynamics of Great Power relationships than with any
projection of ASEAN’s internal unity or identity.”27
Interestingly, the ASEAN has often employed an alternative
operationalization of the consensus principle, namely the majoritybased “ASEAN Minus X” decision-making formula,28 which facilitated
rapid intra-regional economic integration. Other regional bodies
such as the European Union (EU), meanwhile, have relied on
weighted qualified majority voting modality,29 where geopolitical heft
and population density of member-states are properly taken into
consideration, as the expression of consensus-based decision-making
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OCCASIONAL PAPER JANUARY 2020
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with historic success. In simplest terms, unanimity-based decisionmaking virtually gives veto-power to each and every ASEAN member
regardless of their interest, size, and contribution. Under this setup,
the ASEAN can be hamstrung and internally sabotaged by its
‘weak links’, namely regional members and leaders
most vulnerable to external coercion.30
Often, Cambodia, which heavily relies31 on Chinese largesse, has
been blamed for the ASEAN’s lackluster response to Chinese
aggression in the South China Sea. After all, the Cambodian Prime
Minister Hun Sen, under immense pressure from Beijing, tried to
block32 even the discussion of the South China Sea disputes. Amid
the columniation of the Philippines’ arbitration case against China, the
Cambodian strongman lamented:33 “It is very unjust for Cambodia,
using Cambodia to counter China. They use us and curse us…this
is not about laws, it is totally about politics…” Yet, one can’t blame
Cambodia for taking this stance, when the unanimity-based decision
-making tradition makes the China-dependent nation a de facto
veto player. In effect, Cambodia is expected to sabotage
the ASEAN’s efforts lest it invites Beijing’s wrath.
Image Credit:intpolicydigest.org/2015/04/28/the-rule-of-law-is-china-s-challenge-in-the-south-china-sea
C 2020 STRATBASE ADR INSTITUTE for Strategic and International Studies. All rights reserved.
Moreover, what critics of the ASEAN also often miss is the
deleterious role of other regional members, most especially the US’
oldest Asian ally, the Philippines, under President Rodrigo Duterte.
The China-friendly president has done significant damage to ASEAN
centrality by effectively toeing Beijing’s line on the South China
Sea disputes. During his chairmanship of the ASEAN in 2017, he
maintained, with often blunt language,34 that the situation in the South
China Sea is generally stable, thus external powers such as the US,
Australia and Japan should keep out of the disputes, which are
“better left untouched.” When external powers called for rule of
law in the South China Sea, and pressured China to respect the
landmark arbitration award in 2016, the Duterte administration
effectively insisted that it’s the Philippines’ sovereign right
not to assert its sovereign rights against Beijing.35
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Not only has the Filipino president declared that he will ‘set aside’
the 2016 arbitral tribunal ruling, but his endorsement of joint
development agreements (JDA) within China’s nine-dashed-line area
of claim could set a dangerous precedence. Duterte’s pro-JDA
position potentially violates the Philippines’ own constitution as
legitimizing China’s expansive claims in the area, which was ruled
as incompatible with modern international law.36 Even worse, the
Philippines’ strategic acquiescence has emboldened China, which
has controversially demanded37 for de facto veto power over the
prerogative of Southeast Asian states to seek resource-development
investments as well as conduct joint military exercises with external
powers, especially the US under the South China Sea Code of
Conduct (COC) negotiations. In effect, Duterte has become the
pivot of Chinese dive-and-conquer strategy within the ASEAN, with
the Southeast Asian leader shielding the Asian juggernaut against
external criticism and counter-measures by concerned powers. The
Philippines’ position is even more crucial given its role as the ASEANChina Country Coordinator from 2019 to 2021. The upshot of the
Philippines’ radical policy shift, if not outright strategic subservience,
is further heightening fears of ASEAN peripherality, rather than
centrality, in shaping regional strategic environment.
The South China Sea, however, is a matter for global concern. And
crucially, as the Singaporean diplomat, Bilahari Kausikan, memorably
remarked, the South China Sea disputes is “where the parameters of
U.S.-China competition and their interests are most clearly defined.”38
In fact, as Harvard University’s Graham Allison put it in starker terms,
it’s the locus of the “Thucydides trap”39 of a potential superpower
conflict in the 21st century.40 But not all is lost. In contrast to the
Philippines and Cambodia, historically non-aligned Muslim nations of
Malaysia and Indonesia have begun to step up their resistance
to Chinese maritime intrusions like never before.
C 2020 STRATBASE ADR INSTITUTE for Strategic and International Studies. All rights reserved.
The Minilateral Pushback
Malaysia’s Legal Warfare
Already boasting the world’s largest naval fleet,41 Chinese President
Xi Jinping sought to end the year in style with formally launching the
country’s first domestically built aircraft carrier, Shandong, in southern
island of Hainan.42 But Malaysia’s bolt from the blue submission of its
extended continental shelf claims to the United Nations43 immediately
chipped away at the festive mood surrounding Xi’s formal launching
of the Chinese-built carrier.44 In a furiously-worded response, Beijing
accused its neighbor of “seriously infring[ing] on China’s sovereignty,
sovereign rights and jurisdiction in the South China Sea,” where “China
has historic rights” beyond dispute.45 The Southeast Asian country’s
surprising decision to seek third party assistance to reinforce its claims
in the South China Sea portends hardening stance among smaller
claimant states, especially Vietnam and the Philippines. Despite its
growing naval might, China faces stormy waters ahead as the
United States and its regional partners seek to constrain
its maritime ambitions in the Western Pacific.
Throughout the past year, one leader has emerged as the most vocal
critic of China’s rising power. The Malaysian Prime Minister Mahathir
Mohamad, who pulled off an electoral tsunami by largely tapping
into anti-China sentiments at home,46 has openly criticized47 China’s
overseas infrastructure projects.”[If we] borrow huge sums of money,
if you cannot pay money, you’ll under the influence or the direction of
the lender [China]... If you cannot pay your debt, you [will] find yourself
subservient to the lender,” the Malaysian prime minister told this author
earlier this year, when asked about the perils of welcoming large-scale
Chinese investments.48 “If you have the capacity to borrow, it must be
because we can repay. But when you borrow money which we cannot
repay, you are endangering your own freedom,” he added.
Following a year of intensive negotiations, he managed to not only
secure large discounts and adjustments49 in big-ticket Chinese
infrastructure investments in Malaysia, but also compelled China to
reexamine its Belt and Road Initiative (BRI) altogether.
Amid a gathering storm of global criticism, partly roused by
Mahathir’s complaints, China announced a new approach50 to the
BRI, with greater emphasis on environmental and debt sustainability.
In response, Mahathir immediately recalibrated his rhetoric on China,
reiterating longstanding friendship between the two countries.51
“Malaysia is a friend of China. We believe in being business friendly
to all countries in the world,” the Malaysian leader said, adopting
a completely different tone during the Belt and Road Forum for
International Cooperation (BRF) in Beijing in mid-2019.52 “We are a
friendly country, a friend of China, and see a great future for
Malaysia-China relations,” he added. As soon as Mahathir secured
his objectives on the economic front, however, he has shifted
his focus to geopolitics, namely in the South China Sea.
Malaysia’ submission of extended continental shelf claims to the
United Nations Commission on the Limits of the Continental Shelf
(CLCS) is curiously dated 2017, meaning it was prepared years earlier
but not filed for certain reasons by the previous administration.53 It
also means that the submission was prepared only months following
the Permanent Court of Arbitration (PCA)’s announcement of the
Philippines’s compulsory arbitration award against China.54 The final
ruling nullified much of China’s expansive claims in adjacent waters,
including its doctrine of ‘historic rights.’55 And even more interestingly,
the submission proper took place only weeks after Vietnam threatened
third party arbitration against China following a month-long naval
standoff over the Vanguard Bank in the South China Sea.56
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Thus, Malaysia’s latest submission should be viewed within the context
of a more concerted pushback by the US and regional partners against
an ascendant China. Legally, it builds on an earlier joint submission57 with
Vietnam in 2009 -- a controversial move that provoked China into adopting
a tougher stance in the South China Sea,58 starting with the first formal
announcement of its ‘nine-dashed-line’ claims in the contested waters.59
While the previous submission sought to reinforce Malaysia’s claims in the
southwestern regions of the South China Sea, its latest submission, in
turn, pushes the country’s claims northward into the heart of the strategic
basin. “When we come against a very powerful [force] we need to find
other ways of dealing with the problem rather just open confrontation,”60
Mahathir told me earlier this year, signaling his multi-faceted strategy
in dealing with the rise of China. “It is important for China to
take notice of other views and perceptions.”
Indonesia Progressive Resistance
Confronting expanding Chinese incursions into its waters, Jakarta has
gradually abandoned its ‘quiet diplomacy’ in favor of a more proactive
resistance against an assertive Beijing. In particular, the growing presence
of Chinese para-military vessels off the coast of Natuna Islands, an area
rich in fisheries and energy resources, which overlaps with outer layers of
China’s expansive, ‘nine-dashed-line’ claim across the South China Sea
basin. Following the recent intrusion of dozens of Chinese boats, including
two coast guard vessels, into Indonesia waters, Jakarta filed (late December)
a “strong protest” to Beijing and summoned the Chinese ambassador
Xiao Qian to express its displeasure. Southeast Asia’s largest nation is
also perturbed by Beijing’s claims of traditional rights well into Indonesia’s
exclusive economic zone and continental shelf. Indonesia’s foreign ministry
has accused China of “violation of [its] sovereignty”61 and openly questioned
China’s claims of traditional rights in the area as having “no legal basis” and
“never recognized under UNCLOS 1982” as affirmed by the 2016 arbitral
tribunal ruling at The Hague initiated by neighboring Philippines.
Image Credit: news.abs-cbn.com/overseas/12/19/18/indonesia-opens-military-base-near-disputed-south-china-sea
C 2020 STRATBASE ADR INSTITUTE for Strategic and International Studies. All rights reserved.
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Though short of confrontational, Indonesia’s hardening stance will likely
strengthen the hands of other regional actors, which have been at the
receiving end of China’s maritime aggression in recent years. Building
on the Philippines’ 2016 landmark arbitration award at The Hague,
which nullified bulk of China’s claims in the area, both Vietnam
and Malaysia have recently threatened to take China to
international court over the festering maritime disputes.
According to Indonesian authorities, at least 63 Chinese fishing vessels
and two coast guard ships unilaterally entered Indonesia’s territorial
waters off the Natuna islands through late-December. According to
the UNCLOS, foreign vessels, including fishing and armed vessels,
can’t enter territorial sea of a coastal state unless exercising innocent
passage sans hostile and stationary activities in the area.62 The
Natunas island are located about 1,100km (684 miles) south of the
Spratly Islands, which are actively contested by the Philippines,
Malaysia, Taiwan, Vietnam and China. Instead of de-escalating
tensions, however, Beijing doubled down on its claims in the area,
defending the continued and growing presence of Chinese vessels
within Indonesia waters. According to Chinese Foreign Ministry
spokesman Geng Shuang, “[China’s] position and propositions comply
with international law, including UNCLOS. So whether the Indonesian
side accepts it or not, nothing will change the objective fact that China
has rights and interests over the relevant waters….The China Coast
Guard were performing their duty by carrying out routine patrols to
maintain maritime order and protect our people’s legitimate
rights and interests in the relevant waters,” he added.63
The Chinese foreign ministry official was also quick to question the
validity of the 2016 arbitral tribunal ruling at The Hague, which rejected
Beijing’s claims of ‘historic rights’ to exploit resources across adjacent
waters. “The so-called award of the South China Sea arbitration is
illegal, null and void and we have long made it clear that China neither
accepts nor recognizes it. The Chinese side firmly opposes any
C 2020 STRATBASE ADR INSTITUTE for Strategic and International Studies. All rights reserved.
country, organization or individual using the invalid arbitration award to
hurt China’s interests.” Only days later, the Indonesian Foreign Ministry
issued an uncharacteristically tough language, lambasting China’s
claims of traditional rights within Indonesia’s exclusive economic zone.”
China’s claims to the exclusive economic zone on the grounds that
its fishermen have long been active there...have no legal basis and
have never been recognized by the UNCLOS 1982,” the Indonesian
foreign ministry said. In recent years, Indonesia has expressly avoided
alignment with the United States by advocating for its own vision of
a regional security architecture, where China is a major stakeholder.
Thus, the Southeast Asian country’s tough diplomatic language
represents a significant departure from its longtime policy of avoiding
conflict with great powers such as China under what Indonesia expert
Evan Laksamana calls the ‘pragmatic equidistance’ approach.64 At the
same time, however, China’s unabated maritime expansionism has
forced Indonesia’s hand. In response, Jakarta has sought to draw the
line in its adjacent waters. According to Indonesian authorities, illegal,
unregulated and unreported (IUU) fishing has severely affected the
country’s 2.4 million-strong fishing community,65 driving almost
half of them (45%) out of their jobs, with the United
Nations putting the annual cost at $1 billion.66
In response, Indonesia adopted, under Minister of Maritime Affairs
and Fisheries, Susi Pudjiastuti, an aggressive “Sink the Vessels” policy,
which led to the impoundment and blowing up of hundreds of illegal
fishing vessels, including from China.67 “What they [China] are doing
is not fishing, it is transnational organized crime,” the outspoken
Indonesian minister said in late-2018 , months ahead of stepping
down.68 “We have had several disagreements [with China] on issues
of illegal, unregulated and unreported fishing, they still disagree
that it classifies as transnational crime. But mostly these
are China-origin vessels [with] multinational crews.”
The upshot69 of the tough policy was the more than doubling of
declining fishing stock within years and significant reduction in
number of illegal fishing vessels in previous years. by a staggering 14%
in 2014,70 with the country’s armed forces exploring the deployment
of advanced aircraft to the area as well as stepping up71 joint naval
exercises with the US in the waters off the Natuna Islands. Amid
altercations72 with Chinese coast guard vessels protecting illegal
fishing activities,73 Jakarta even dispatched a warship to apprehend
illegal Chinese fishing vessels few years ago.
In 2017, Indonesia renamed the areas as “North Natuna Sea” to assert
its claims against Chinese intrusion and claims to “traditional fishing
grounds” in the area.74 Though technically ‘neutral’ and a non-claimant
state in the South China Sea, as the de facto leader in Southeast Asia
Indonesia’s stance carries great implications for broader strategic
alignments in the region. Indonesia, under the guidance of legendary
diplomats such as Hasjim Djalal, has been acutely sensitive to China’s
expansive claims in apparent contradiction of the UNCLOS. Among
the key nations, which negotiated the UNCLOS, Indonesia was
the first regional state to push for extended continental shelf claims
beyond its 200 nautical miles EEZ in the northwest area of Sumatra
Island back in 2008.75 The following year, both Vietnam and Malaysia
made a joint submission to assert their extended continental shelf in
the South China Sea, legally challenging China’s claims at the UN.
Beginning in 2015, Indonesia has pressured China76 to clarify the
precise legal basis and parameters of its nine-dashed-line claims, while
advocating for respect of international law following the Philippines’
arbitration award victory the following year.77 During the 2018 ASEANAustralia summit, Indonesia went so far as calling for joint patrols by
ASEAN states in the South China Sea to help de-escalate tensions.78
It’s toughening criticism of China will likely embolden Vietnam, the
current ASEAN chair, and Malaysia, which recently submitted an
additional extended continental shelf claim in the South China Sea
at the UN, to also up the ante in the South China Sea this year.
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While Jakarta will likely avoid direct confrontation, it is set to bolster
its strategic presence in the contested area while stepping up its
diplomatic criticism were China to continue its current course.
Vietnam’s Brave Stand
Ahead of its much-anticipated chairmanship of the Association of
Southeast Asian Nations (ASEAN) next year, and amid a months-long
naval showdown in the South China Sea, Vietnam has hinted at legal
warfare against China. Vietnamese Deputy Foreign Minister Le Hoai
Trung openly warned in early-November that diplomacy isn’t the only
tool at Hanoi’s disposal. Emphasizing the need for exploring alternative
strategies, he cited “fact-finding, mediation, conciliation, negotiation,
arbitration and litigation measures” as potential countermeasures
against China’s maritime assertiveness. Looking at the Philippines’
precedence, lawfare (‘legal warfare’) seems a risky, yet potentially viable
option for Vietnam. After all, the 2016 arbitration award at The Hague
proved the viability of compulsory arbitration, under the UNCLOS,79
to address disputes over maritime entitlement claims as well
as censure China’s excessive, anachronistic claims
and multifarious maritime aggression.
What’s clear is that in the absence of international law, Southeast Asian
claimant states are largely at the mercy of China’s behemoth naval
capabilities. Thus, lawfare, and the threat of its use, provides unique
leverage for smaller states confronting desperate asymmetry of power
vis-à-vis Beijing. In recent months, top Vietnamese officials and experts
have repeatedly underscored the centrality of the UNCLOS in resolution
of South China Sea disputes. Vietnamese Deputy Foreign Minister
Le Hoai Trung emphasized how “The UN Charter and UNCLOS have
sufficient mechanisms for us to apply those [legal] measures.”80
Meanwhile, an influential Vietnamese think tank held a high-profile
public forum in October,81 whereby leading experts advocated
for lawfare against China, based on the relevant provisons of the
UNCLOS, in order to “identify who is right and who is wrong in this
matter.” China, however, has characteristically shot back, warning
Vietnam against ‘complicating’ the dispute.82 Geng Shuang, a
spokesperson for the Chinese Ministry of Foreign Affairs threatened
Vietnam against “actions that may complicate matters or undermine
peace and stability in the South China Sea as well as our bilateral
relations.” China has reasons to worry, in as much as Vietnam has
grounds for optimism. In 2013, the Philippines, against all odds and
despite open misgivings by a lot of its own lawyers and officials,
successfully advocated for the creation of a special tribunal (under
Art. 287, Annex VII, UNCLOS)83 to arbitrate its disputes with China,
which heavily relied on a combination of active boycott, systematic
smearing, and diplomatic intimidation to forestall a legal setback.84
The Tribunal, however, rejected85 Beijing’s invocation of exemption
clauses (see Art. 298, Section 2, Part XV ).86 In its final award, the
Tribunal at The Hague87 even defied the Philippines’ own wildest
expectation by not only invalidating China’s ‘nine-dash-line’ claim,
but also censuring its harassment of Filipino fishermen as well as
ecologically-disastrous reclamation activities in disputed areas.88 By
ruling out the existence of any fully-fledged ‘island’ (see Art. 121, Par
3, UNCLOS),89 the award also affirmed the Philippines’ sovereign
rights within its own Exclusive Economic Zone (EEZ). Adopting the
so-called ‘three nos’ policy90 of non-participation, non-recognition,
and non-compliance, Beijing dismissed the final award as a ‘piece of
trash paper’, while few of its sympathizers also questioned the validity
of the tribunal’s jurisdiction and merits of its final ruling. Yet, the award
had a major impact on China’s position in the South China Sea.91
Contrary to the rhetoric of China and its sympathizers in the
C 2020 STRATBASE ADR INSTITUTE for Strategic and International Studies. All rights reserved.
Philippines,92 the arbitration award had a perceptible effect. While it’s
true that China formally rejected the arbitration outcome, as most
great powers do, effectively taking exception to international law, there
was a major shift in its strategy.93 Crucially, Beijing started to shun the
invalidated ‘nine-dashed-line’ claim in its formal statements. China’s
scramble for legal cover was evident in its push for the much-ridiculed
“four sha”94 (Chinese for sand) doctrine, which effectively accepted the
Tribunal’s ruling on the nature of disputed land features – namely, the
absence of a full-fledged ‘island’ -- in the Spratlys.
Now, China began arguing that the island groups as a whole
constituted a collective land feature entitled to its own EEZ, which
would, in turn, extend Beijing’s sovereign rights well into the waters
of the Philippines, Malaysia and even Vietnam. This supplementary
doctrine, however, is yet to be seriously endorsed by any leading
legal export, never mind an international legal body. The following
year, China desperately devised an alternative position, claiming to
have ‘discovered’ a map, which validates its expansive claims across
the South China Sea basin.95 Per international law, the Philippines’
arbitration award remains final and binding (see Article 296 as well as
Article 11 of Annex VII of the UNCLOS), especially since the
Southeast Asian country has not formally rejected it.96
The implication for Vietnam, which opportunistically refused to join
along the Philippines by filing a parallel arbitration case against China
earlier this decade, is clear. It has the option of using compulsory
arbitration to reaffirm its sovereign rights within its own EEZ and
continental shelf, including in the Vanguard Bank, which has been a site
of naval showdown with China in recent months. Similar to the 2016
arbitral tribunal ruling, Vietnam can also use compulsory arbitration to
censure China’s aggressive action within its own waters and against its
fishermen roaming the area. Vietnam’s sovereignty claims over disputed
land features, including in both Paracels and Spratlys, however, would
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likely require mutual consent.97 Nonetheless, the UNCLOS also
provides the option of conciliation commission98 (Article 298 and
Annex V, UNCLOS) to manage overlapping claims in the South China
Sea. Either way, the UNCLOS provides sufficient mechanisms for
Vietnam to assert and even affirm its sovereign rights.
More fundamentally, Vietnam’s emphasis on lawfare strengthens not
only its own position, but also that of the Philippines, where majority
of the population (87 percent) wants the Beijing-leaning government
to assert The Hague ruling.99 Moreover, it also puts pressure on the
Philippines to ensure that its proposed joint exploration agreement100
with China is consistent with the UNCLOS and the Tribunal’s ruling
as well as shape the worrying direction of the Code of Conduct
(COC) negotiated between the ASEAN and China.101
Joko Widodo’s call for joint patrols102 in disputed waters by nonclaimant states as well as Malaysian Prime Minister Mahathir
Mohamad’s call for demilitarization103 and multilateral rather than
bilateral settlement of the disputes with China.104 It should also support
calls by Malaysia, Indonesia, and other major ASEAN members for
clarification of China’s precise claims105 in the disputed areas to avoid
further elastic expansionism. In the years and decades to come, the
ASEAN should also revisit its current unanimity-based decision-making
process and even consider associate membership arrangements with
capable and increasingly like-minded greater Southeast Asia neighbors
of Australia and New Zealand.106 Otherwise, the ASEAN fade into
irrelevance, and the South China Sea could end up as a Chinese lake.
As a great power-seeking trust and respect of its neighbors, China
is well aware that lawfare by smaller countries chip away at its
quest for authoritative leadership in Asia. Thus, Vietnam has all the
reason to seriously consider legal countermeasures against China.
Moving forward, the challenge for Vietnam, as the ASEAN’s current
chairman, is to harmonize regional anxieties into a coherent response
against China. So far, instead of a multilateral resistance, we have
seen minilateral coordination and pushback against an expansionist
Beijing. It’s important for key ASEAN members such as Vietnam,
Indonesia and Malaysia to prevent a South China Sea COC that
undermines the interest of smaller states. They should also ensure
that the Philippines, currently the ASEAN-China Country coordinator
until 2021, when the COC negotiations are expected to finalize,
will responsibly protect interest of smaller claimant states
during the ongoing negotiations with China.
Meanwhile, the ASEAN should also seriously consider various
proposals by key regional leaders, including Indonesian President
Image Credit: ictsi.com
C 2020 STRATBASE ADR INSTITUTE for Strategic and International Studies. All rights reserved.
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endnotes
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
Allison and Blackwill (2013).
Nexon (2009).
Lons (2019).
Torres (2019).
Heydarian (2016).
Agence France-Presse (2019a).
Goh (2008).
Weatherbee (2010).
Campbell and Ratner (2018).
Lubold and Page (2017)
Panda (2019b).
Erickson (2018).
Ranada (2019).
Lu (2019).
Agence France-Presse (2019b).
Doornbos (2019).
Acharya (2017).
Amcham (2018).
Trump (2017a).
U.S. Department of Defense (2018).
The International Institute for Strategic Studies (2018b).
ASEAN.org (2019).
Hoang (2019)
Heydarian (2017b)
Severino (2001).
Desker (2015).
Acharya (2017).
Emmers (2017).
European Council: Council of the European Union (l.a. 2019).
Tann (2019).
Nem (2019).
AFP, Baliga and Sokheng (2016).
Agence France Pressee (2016).
Shi and Liu (2017).
Mogato (2017b).
Heydarian (2018c)
Thayer (2018).
Bilahari Kausikan, “Pavlovian conditioning and ‘correct thinking’ on the South
China Sea”, The StraitsTimes, April 1, 2016, accessed April 4, 2016, wwws.straitstimes.
com/opinion/pavlovian-conditioningand-correct-thinking-on-the-south-china-sea
38
C 2020 STRATBASE ADR INSTITUTE for Strategic and International Studies. All rights reserved.
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
Allison (2017).
Allison (2017).
Mizokami (2019).
Myers (2019).
United Nations (2017).
The author was in Hainan, Sanya at the time.
Reuters (2019).
Bloomberg (2018).
Venzon (2019).
Bajo (2019).
Today (2019).
Sun (2019).
Chok (2019).
Ibid.
United Nations (2017).
Batongbacal (2015).
Permanent Court of Arbitration (2016).
Pearson and Vu (2019).
Oceans & Law of the Sea (2011).
Heydarian (2015a).
Rajagobal (2016).
GMA News (2019).
Lo (2020).
See UNCLOS ‘right of innocent passage’ https://www.un.org/Depts/los/con
vention_agreements/texts/unclos/part2.htm
BenarNews (2020).
Laksmana (2017).
Beech and Suhartono (2018).
Ibid.
Ibid.
Rose (2018).
Beech and Suhartono (2018).
Grevatt and Caffrey (2014).
Panda (2015).
Beech and Suhartono (2018).
Cochrane (2017).
Ibid.
Nguyen, H. (2019).
Tiezzi (2015).
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
106
Yosephine (2016).
Jensen (2018).
Pemmaraju (2016).
Pearson and Vu (2019).
RFA (2019).
Panda (2019a).
Burke (2013).
Allen-Ebrahimian (2016).
Permanent Court of Arbitration (2016).
United Nations Convention on the Law of the Sea. (l.a. 2020).
Permanent Court of Arbitration (2016).
Heaver (2018).
Gau (2019).
Heydarian (2016)
Mollman (2016).
Lopez (2018).
Wilkinson (2018).
Viray (2017).
Jennings (2018).
Roderos (2018).
International Court of Justice (l.a. 2020).
Permanent Court of Arbitration (2018).
Tomacruz (2019).
Heydarian (2018f).
Nguyen, M (2019).
Today Online (2017).
Sukumaran (2019).
Wong (2019).
Gomez (2019).
Dobell (2018).
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REFERENCES
Acharya, Amitav. “The Myth of ASEAN Centrality?.” Contemporary Southeast Asia: A Journal of International and Strategic
Affairs 39, no. 2 (2017): pp.273-279. https://muse.jhu.edu /article/667776/pdf.
Desker, Barry. “ASEAN integration remains an illusion.” East Asia Forum. April 2, 2015. https://www.eastasiaforum.
org/2015/04/02/asean-integration-remains-an-illusion/.
Heydarian, Richard Javad. “Genealogy of Conflict.” In The Routledge Handbook of Asian Security Studies, edited by Sumit
Ganguly, Andrew Scobell and Joseph Chinyong Liow (Abingdon: Routledge, 27 Oct 2017c).
AFP, Ananth Baliga and Vong Sokheng. “Cambodia again blocks ASEAN statement on South China Sea.” The Phnom Penh
Post. July 25, 2016. https://www.phnompenhpost.com/national/cambodia-again-blocks-asean-statement-south-chinasea.
Dobell, Graeme. “Australia as an ASEAN community partner.” Australian Strategic Policy Institute. February20, 2018.
https://www.aspi.org.au/report/australia-asean-community-partner.
Heydarian, Richard Javad. “Perils for Southeast Asia in Beijing’s Belt and Road Scheme.” Nikkei Asia Review. May 16, 2017d.
https://asia.nikkei.com/Politics/Perils-for-Southeast-Asia-in-Beijing-s- Belt-and-Road-scheme.
Agence France-Presse. “ASEAN, U.S. to hold first ever joint maritime drill.” Rappler. August 24, 2019a. https://www.rappler.
com/world/regions/asia-pacific/238469-asean-united-states-hold-firstever-joint-maritime-drill.
Doornbos, Caitlin. “Coast Guard planning to base three fast-response cutters on Guam, commandant says.” Stars and Stripes.
October 22, 2019. https://www.stripes.com/news/pacific/coast-guard-planning-to-base-three-fast-response-cutters-onguam-commandant-says-1.604094.
Heydarian, Richard Javad. “The day after: Enforcing the Hague verdict in the South China Sea.” Brookings. July 25, 2016.
https://www.brookings.edu/opinions/the-day-after-enforcing-the-hague-verdict-in-the-south-china-sea/.
Agence France-Presse. “US gifts new security vessel to Vietnam, vows S. China Sea presence.” Politiko. November
2019b. https://politics.com.ph/us-gifts-new-security-vessel-to-vietnam-vows-schina-sea-presence.
20,
Emmers, Ralf. “ASEAN minus X: Should This Formula Be Extended?.” RSiS. October 24, 2017. https://www.rsis.edu.sg/rsispublication/cms/co17199-asean-minus-x-should-this-formula-be-extended/#.XNEWoo4zbIU.
Agence France-Presse. “Furious Cambodian premier Hun Sen highlights ASEAN splits over South China Sea disputes.” South
China Morning Post. June 20, 2016. https://www.scmp.com/news/asia/east-asia/article/1978092/furious-cambodianpremier-hunsen-highlights-asean-splits-over.
Erickson, Andrew. “SECDEF Mattis calls for “PRC Maritime Militia to operate in a safe and professional manner in accordance
with international law…” Andrew S. Erickson: China analysis from original sources. November 9, 2018. http://www.
andrewerickson.com/2018/11/secdef-mattis-calls-for-prc-maritime-militia-to-operate-in-a-safe-and-professionalmanner-in-accordance-with-international-law/.
Allen-Ebrahimian, Bethany. “Beijing: Japanese Judge Means South China Sea Tribunal Is Biased.” Foreign Policy. June 21,
2016.
https://foreignpolicy.com/2016/06/21/beijing-japanese-judge-means-south-china-sea-tribunal-is-biased-chinaphilippines-maritime-claims/.
Allison, Graham and Robert Blackwill. “Interview: Lee Kuan Yew on the Future of U.S.- China Relations.” The Atlantic. March
5, 2013. https://www.theatlantic.com/china/archive/2013/03/interviewlee-kuan-yew-on-the-future-of-uschina-relations/273657/.
Allison, Graham. “The Thucydides Trap.” Foreign Policy. June 9, 2017.https://foreignpolicy.com/2017/06/09/the-thucydidestrap/.
Anya, Agnes. “East Asia to hear about Indo-Pacific idea.” The Jakarta Post. May 9, 2018. https://www.thejakartapost.com/
news/2018/05/09/east-asia-hear-about-indo-pacific idea.html.
Bajo, Anna Felicia. “Mahathir warns PHL: If you can’t pay debt, you’re endangering your own freedom.” GMA News. March
8, 2019. https://www.gmanetwork.com/news/news/nation/687298/mahathir-warns-phl-if-you-can-t-pay-debt-you-reendangering-your-own-freedom/story/.
Fayez, Abdel Salam. “What’s left of the Qatar siege.” Middle East Monitor. February 21, 2019. https://www.
middleeastmonitor.com/20190221-whats-left-of-the-qatar-siege/.
Ford, Lindsey. “Does ASEAN Matter?.” Asia Society Policy Institute. November 12, 2018. https://asiasociety.org/policy-institute/
does-asean-matter.
Gau, Michael Sheng-ti. “The Interpretation of Article 121(3) of UNCLOS by the Tribunal for the South China
Sea
Arbitration.” Ocean Development & International Law 50 no. 1 (2010): 49-69. https://doi.org/10.1080/00908320.2018.15
11083.
Ger, Yeong-Kuang. “From Congagement to Engagement: TheChanging American China Policy and Its Impact on Regional
Security.” American Journal of Chinese Studies 11, no. 2 (2004): 159-80. Accessed January 21, 2020. www.jstor.org/
stable/26393637.
GMA News. “REPLAY: FYI with Richard Heydarian: interview with Malaysian Prime Minister Mahathir Bin Mohamad.” Youtube
video, 32:31. March 8, 2019. https://www.youtube.com/watch?v=PSvBTKbpPRM&t=929s.
Batongbacal, Jay. “Arbitration 101: Philippines v China.” Asia Maritime Transparency Initiative. January 21, 2015. https://amti.
csis.org/arbitration-101-philippines-v-china/.
Goh, Evelyn. “Great Powers and Hierarchical Order in Southeast Asia: Analyzing Regional Security Strategies.” International
Security 32, no. 3 (2007): 113-57. Accessed January 19, 2020. www.jstor.org/stable/30130520.
Beech, Hannah and Muktita Suhartono. “A ‘Little Bit of a Nutcase’ Who’s Taking on China.” The New York Times.
June 8, 2018. https://www.nytimes.com/2018/06/08/world/asia/indonesia-fishing-boats-china-poaching.html.
Gomez, Jim. “Mahatir: China should define claims in South China Sea.” Arab News. March 8, 2019. https://www.arabnews.
com/node/1463326/world.
BenarNews. “China Has Right to Sail Near Indonesia’s Natuna Islands, Beijing Says.” RFA.org. January 2, 2020. https://www.
rfa.org/english/news/china/indonesia-natuna-01022020165115.html.
Grevatt, Jon and Craig Caffrey. “Indonesia increases defence budget 14%.” Janes.com. August 18, 2014. https://www.janes.
com/article/42069/indonesia-increases-defence-budget-14.
Birtles, Bill. “China mocks Australia over ‘Indo-Pacific’ concept it says will ‘dissipate.’” ABC News. March 8, 2018. https://www.
abc.net.au/news/2018-03-08/china-mocks-australia-over-indo-pacific-concept/9529548.
Heaver, Stuart. “Scientists fear land reclamation will harm ecology of South China waters and survival of iconic white dolphin.”
South China Morning Post. July 18, 2018. https://www.scmp.com/lifestyle/article/2155660/scientists-fear-harmreclamation-will-do-ecology-south-china-waters-and.
Bloomberg. “Mahathir vows to review China investments.” The Straits Times. April 10, 2018. https://www.straitstimes.com/asia/
se-asia/mahathir-vows-to-review-china-investments.
Burke, Naomi. “UNCLOS Annex VII Arbitration – Who, What, Where, When?.” Cambridge International Law Journal. March 25,
2013. http://cilj.co.uk/2013/03/25/unclos-annex-vii-arbitration-who-what-where-when-2/.
Campbell, Kurt and Ely Ratner. “The China Reckoning.” Foreign Affairs. March/April 2018. https://www.foreignaffairs.com/
articles/china/2018-02-13/china-reckoning.
Chakrabarty, Malancha. “India and CLMV countries: Investments, development cooperation and
sustainable
development.” Observer Research Foundation. June 4, 2019. https://www.orfonline.org/research/india-and-clmvcountries-investments-development-cooperation-and-sustainable-development-51608/.
Chandran, Nyshka. “As Pence kicks off his Asia tour, other countries have their own ideas for the ‘Indo-Pacific’.” CNBC.
November 11, 2018. https://www.cnbc.com/2018/11/12/us-japan-and-indonesia-set-their-sights-on-the-indo-pacificregion.html.
Chen Yifel. “China to launch ‘world’s largest’ coastguard patrol vessel.” South China Morning Post. December 16, 2014.https://
www.scmp.com/news/china-insider/article/1663219/china-coastguard-poised-take-delivery-over-worlds-largest-patrol.
Chok Suat Ling. “PM: Malaysia is a friend of China.” New Straits Times. April 25, 2019. https://www.nst.com.my/news/
nation/2019/04/482920/pm-malaysia-friend-china.
Cochrane, Joe. “Indonesia, Long on Sidelines, Starts to Confront China’s Territorial Claims.” The New York Times. September
10, 2017. https://www.nytimes.com/2017/09/10/world/asia/Indonesia south-china-sea-military-buildup.html.
C 2020 STRATBASE ADR INSTITUTE for Strategic and International Studies. All rights reserved.
Heydarian, Richard Javad. Asia’s New Battlefield: US, China, and the Struggle for Western Pacific. London: Zed,
2015a.
Heydarian, Richard Javad. “Is ASEAN Still Relevant.” The Diplomat. March 26, 2015b. https://thediplomat.com/2015/03/isasean-still-relevant/.
Hoang Thi Ha. “ASEAN Outlook on the Indo-Pacific: Old Wine in New Bottle?.” ISEAS Yusof Ishak Institute. June 25, 2019.
https://www.iseas.edu.sg/images/pdf/ISEAS_Perspective_2019_51.pdf.
Jensen, Fergus. “Indonesia pushes for Southeast Asian patrols of disputed waters.” Reuters. March 16, 2018. https://www.
reuters.com/article/us-australia-indonesia-politics/indonesia-pushes-forsoutheast-asian-patrols-ofdisputed-waters-idUSKCN1GS0CL.
Jennings, Ralph. “Map Discovery Gives China New Tool to Control a Disputed Sea.” VOA. April 27, 2018. https://www.voanews.
com/east-asia-pacific/map-discovery-gives-china-new-tool-control-disputed-sea.
Kennan, George. “The Sources of Soviet Conduct.” Foreign Affairs. July 1, 1947. https://www.foreignaffairs.com/articles/
russian-federation/1947-07-01/sources-soviet-conduct
Laksmana, Evan. “An Indo-Pacific construct with ‘Indonesian characteristics’.” Australian Strategic Policy Institute. February 6, 2018.
https://www.aspistrategist.org.au/indo-pacific-construct-indonesian-characteristics/.
Laksmana, Evan. “Pragmatic Equidistance: How Indonesia Manages Its Great Power Relations.” In China, The United States, and
the Future of Southeast Asia, edited by David Denoon, pp 113-135. New York: New York University Press, 2017.
Leong Kok Wey, Adam. “The War That Gave Birth to ASEAN.” The Diplomat. September 9, 2016. https://thediplomat.
com/2016/09/the-war-that-gave-birth-to-asean/.
Liu Zhen. “Five things to know about China’s home-built Type 055 destroyer, guardian of the next-generation aircraft carrier.”
South China Morning Post. August 5, 2018. https://www.scmp.com/news/china/diplomacy-defence/article/2158059/
five-things-know-about-home-built-destroyer-will-guard.
Lo, Kinling. “How Indonesia’s South China Sea dispute with Beijing could lead to a tough ASEAN stance on code of conduct.”
South China Morning Post. January 2, 2020. https://www.scmp.com/news/chinadiplomacy/article/3044374/howindonesias-south-china-sea-dispute-beijing-could-lead.
Lons, Camille. “Onshore balancing: The threat to Oman’s neutrality.” European Council on Foreign Relations. April 3, 2019.
https://www.ecfr.eu/article/commentary_onshore_balancing_the_threat_to_omans_neutrality.
Heydarian, Richard Javad. “ASEAN Chooses to Focus on Chinese Money Over Missiles.” China-US Focus. May 9, 2018a.
https://www.chinausfocus.com/foreign-policy/asean-chooses-to-focus-on-chinese-money-over-missiles.
Lopez, Virgil. “Duterte considers setting aside arbitral ruling for economic gain.” GMA News. September 11, 2019. https://www.
gmanetwork.com/news/news/nation/707643/duterte-considers-setting-aside-arbitral-ruling-for-economic-gain/story/.
Heydarian, Richard Javad. “Australia right to huddle closer to Southeast Asia.” Nikkei Asian Review. March 20, 2018b. https://
asia.nikkei.com/Politics/International-relations/Australia-right-to-huddle-closer-to-Southeast-Asia.
Lopez, Virgil. “Palace: Arbitral ruling ‘useless’ for now due to lack of enforcement.” GMA News Online.
November
20,
2018. https://www.gmanetwork.com/news/news/nation/675433/palace-arbitral-ruling-useless-for-now-due-to-lack-ofenforcement/story/
Heydarian, Richard Javad. “Crossing the Rubicon: Duterte, China and Resource-Sharing in the South China Sea.” Maritime
Issues. October 23, 2018c. http://www.maritimeissues.com/politics/crossing-the-rubicon-duterte- c h i n a - a n d resourcesharing-in-the-south-china-sea.html.
Heydarian, Richard Javad. “Indonesia’s Tough Balancing Act in the Indo-Pacific.” China-US Focus. November 26, 2018d.
https://www.chinausfocus.com/foreign-policy/indonesias-tough-balancing-act-in-the-indo-pacific.
Heydarian, Richard Javad. “The Economic Showdown in the South China Sea.” The National Interest. August 28, 2018e. https://
nationalinterest.org/feature/economic-showdown-south-china-sea-29917.
Heydarian, Richard Javad. “The Perils of a Philippine-China Joint Development in South China Sea.” Asia Maritime Transparency
Initiative. April 27, 2018f. https://amti.csis.org/perils-philippine-china-joint-development-scs/.
Heydarian, Richard Javad. “Asean-China Code of Conduct: Never-ending negotiations.” The Straits Times. March 9, 2017a.
https://www.straitstimes.com/opinion/asean-china-code-of-conduct-never-ending-negotiations.
Heydarian, Richard Javad. “ASEAN needs to move to minilateralism.” East Asia Forum. December 5, 2017b. https://www.
eastasiaforum.org/2017/12/05/asean-needs-to-move-to-minilateralism/.
Lubold, Gordon and Jeremy Page. “U.S. to Challenge China With More Patrols in Disputed Waters.” Wall Street
Journal.
September 1, 2017. https://www.wsj.com/articles/u-s-readies-plan-to-increase-patrols-in-south-china-sea-1504299067
Lu, Zhenhua. “US coastguard cutter takes part in ‘freedom of navigation’ in Taiwan Strait for the first time.” South China Morning
Post. March 25, 2019. https://www.scmp.com/news/china/diplomacy/article/3003105/us-freedom-navigationoperation-through-taiwan-strait-involves.
Madan, Tanvi. “The Rise, Fall, and Rebirth of the ‘Quad’.” War on the Rocks. November 16, 2017. https://warontherocks.
com/2017/11/rise-fall-rebirth-quad/.
Mizokami, Kyle. “China Now Has More Warships Than the U.S.” Popular Mechanics. May 20, 2019. https://www.
popularmechanics.com/military/navy-ships/a27532437/china-now-has-more-warships-than-the-us/.
Modi, Narendra. “Prime Minister’s Keynote Address at Shangri La Dialogue (June 01, 2018).” Speech, Shangri La Dialogue,
Singapore. Ministry of External Affairs, Government of India. June 1, 2018. https://www.mea.gov.in/SpeechesStatements.
htm?dtl/29943/Prime+Ministers+Keynote+Address+at+Shangri+La+Dialogue+June+01+2018.
www.adrinstitute.org
OCCASIONAL PAPER
JANUARY 2020
12
Mogato, Manuel. “Duterte says China’s Xi threatened war if Philippines drills for oil.” Reuters. Ma 19, 2017a. https://www.
reuters.com/article/us-southchinasea-philippines-china/duterte-says-chinas-xi-threatened-war-if-philippines-drills-for-oilidUSKCN18F1DJ.
Mogato, Manuel. “Philippines says China wanted non-legally binding South China Sea code.” Reuters. August 8, 2017b. https://
www.reuters.com/article/us-asean-philippines-southchinaseaidUSKBN1AO1LW.
Mollman, Steve. “Choice insults Beijing has hurled at the international tribunal about to rule on the South China Sea.” Quartz.
July 7, 2016. https://qz.com/724288/choice-insults-beijing-has-hurled-at-the-international-tribunal-about-to-rule-on-thesouth-china-sea/.
Myers, Steven Lee. “China Commissions 2nd Aircraft Carrier, Challenging U.S. Dominance.” The New York Times. December
17, 2019. https://www.nytimes.com/2019/12/17/world/asia/china-aircraft-carrier.html.
Nem Sopheakpanha. “China Pledges $10 Billion in Support to Cambodia as Relations With West Deteriorate.” VOA. January
23, 2019. https://www.voacambodia.com/a/china-pledges-10-billion-in-support-to-cambodia-as-relations-with-westdeteriorate/4755548.html.
Nexon, Daniel H. “The Balance of Power in the Balance.” World Politics 61, no. 2 (2009): 330-59. Accessed January 19, 2020.
www.jstor.org/stable/40263485.
Nguyen Hong Thao. “Malaysia’s New Game in the South China Sea.” The Diplomat. December 21, 2019. https://thediplomat.
com/2019/12/malaysias-new-game-in-the-south-china-sea/.
Nguyen Minh Quang. “Saving the China-ASEAN South China Sea Code of Conduct.” The Diplomat. June 29, 2019. https://
thediplomat.com/2019/06/saving-the-china-asean-south-china-sea-code-of-conduct/.
Oceans & Law of the Sea. “Commission on the Limits of the Continental Shelf (CLCS) Outer limits of the continental shelf
beyond 200 nautical miles from the baselines: Submissions to the Commission: Joint submission by Malaysia and the
Socialist Republic of Viet Nam.” United Nations. May 3, 2011. https://www.un.org/Depts/los/clcs_new/submissions_files/
submission_mysvnm_33_2009.htm.
Office of the Spokesperson. “Indo-Pacific Transparency Initiative.” U.S. Department of State. November 3, 2019. https://www.
state.gov/indo-pacific-transparency-initiative/.
Panda, Ankit. “China Warns Vietnam to Not ‘Complicate’ South China Sea Dispute By Seeking Legal Arbitration.” The Diplomat.
November 9, 2019a. https://thediplomat.com/2019/11/china-warns- vietnam-to-not-complicate-south-china-seadispute-by-seeking-legal-arbitration/.
Panda, Ankit. “South China Sea: 2 US Navy Destroyers Conduct Freedom of Navigation Operation in Spratlys.” The Diplomat.
May 6, 2019b. https://thediplomat.com/2019/05/south-china-sea-2-us-navy-destroyers-conduct-freedom-of-navigationoperation-in-spratlys/.
Reuters. “China ‘objects’ to Malaysia’s UN submission on S.China Sea.” Bangkok Post. December 17, 2019. https://www.
bangkokpost.com/world/1818179/china-objects-to-malaysias-un-submission-on-s-china-sea.
Weatherbee, Donald. International Relations in Southeast Asia: The Struggle for Autonomy (Second Edition). Lanham: Rowman
& Littlefield Publishers Inc, 2010.
Reuters and Tracy You for MailOnline. “Satellite images reveal China’s first full-sized aircraft carrier being built at the country’s
‘warship factory’ outside Shanghai.” Daily Mail. October 17, 2019. https://www.dailymail.co.uk/news/article-7583271/
Chinas-aircraft-carrier-Satellite-images-Beijings-sized-carrier-built.html.
Westbrook, Tom. “Australia, ASEAN agree to start regional infrastructure cooperation.” Reuters. March 19, 2018. https://www.
reuters.com/article/us-asean-australia-infrastructure/australia-asean-agree-to-start-regional-infrastructure-cooperationidUSKBN1GV09V.
Roderos, Elijah. “Carpio reveals DFA’s timely clarification on Duterte’s 2016 statement saved PH Arbitral Tribunal win.” Vera Files.
November 27, 2018. https://verafiles.org/articles/carpio-reveals-dfas-timely-clarification-dutertes-2016-state.
Wilkinson, Tracy. “U.S. rejects international court order to ease some sanctions on Iran.” Los Angeles Times. October 3, 2018.
https://www.latimes.com/nation/la-na-pol-us-iran-court-20181003-story.html.
Rose, David. “’China calls it fishing, Indonesia calls it crime’: Pudjiastuti finds her target for Oceans summit.” South China
Morning Post. October 18, 2018. https://www.scmp.com/week-asia/geopolitics/article/2169153/china-calls-it-fishingindonesia-calls-it-crime-pudjiastuti.
Wong, Catherine. “’Divide and conquer Asean’: China tries to go one on one with Mahatir to settle South China Sea dispute.”
South China Morning Post. May 18, 2019. https://www.scmp.com/news/china/diplomacy/article/3010790/divide-andconquer-asean-china-tries-go-one-one-malaysia.
Segal, Gerald. “East Asia and the “Constrainment” of China.” International Security 20, no. 4 (1996): 107-35 doi:10.2307/2539044.
Yosephine, Liza. “Indonesia urges parties to respect laws following South China Sea ruling.” The Jakarta Post.
July
22,
2016.https://www.thejakartapost.com/seasia/2016/07/12/indonesia-urges-parties-to-respect-laws-following-southchina-sea-ruling.html.
Sempa, Francis. “Nicholas Spykman and the Struggle for the Asiatic Mediterranean.” The Diplomat. January 9, 2015. https://
thediplomat.com/2015/01/nicholas-spykman-and-the-struggle-for-the-asiatic-mediterranean/.
Severino, Rodolfo. “The ASEAN Way and the Rule of Law.” Speech, University of Malaysia, Kuala Lumpur, September 3, 2001.
ASEAN.org. https://asean.org/?static_post=the-asean-way-and-the-rule-of-law.
Shi JIangtao and Liu Zhen. “’Better left untouched’: Philippines and Vietnam wary of Trump offer to mediate South China
Sea disputes.” South China Morning Post. November 12, 2017. https://www.scmp.com/news/china/diplomacy-defence/
article/2119551/better-left-untouched-philippines-and-vietnam-wary.
Smith, Jeff. “Unpacking the Free and Open Indo-Pacific.” War on the Rocks. March 14, 2018. https://warontherocks.
com/2018/03/unpacking-the-free-and-open-indo-pacific/.
Stewart, Cameron. “US tells Australia to take on China over disputed islands.” The Australian. July 24, 2018. https://www.
theaustralian.com.au/nation/foreign-affairs/us-tells-australia-to-take-onchina-over-disputed-islands/news-story/
f3905d87f899ef5a91482f7ca5750f04.
Sukumaran, Tashny. “Mahatir to update Malaysia’s foreign policy, including on South China Sea and international Muslim
cooperation.” South China Morning Post. September 18, 2019. https://www.scmp.com/week-asia/politics/
article/3027949/mahathir-update-malaysias-foreign-policy-including-south-china.
Sun, Nikki. “Xi pledges Belt and Road reboot amid rising ‘debt trap’ concerns.” Nikkei Asian Review. April 27, 2019. https://asia.
nikkei.com/Spotlight/Belt-and-Road/Xi-pledges-Belt-and-Road-reboot-amid-rising-debt-trap-concerns.
Sunaga, Kazuo. “Japan’s assistance to ASEAN Connectivity in line with MPAC2025.” Mission of Japan to ASEAN. October
2016. https://www.asean.emb-japan.go.jp/documents/20161102.pdf.
“Accession criteria.” European Commission. Accessed on January 19, 2020. https://ec.europa.eu/neighbourhood-enlargement/
policy/glossary/terms/accession-criteria_en
“Aristotle’s Political Theory.” Stanford Encyclopedia of Philosophy. July 1, 1998. Last date accessed January 19, 2020. https://
plato.stanford.edu/entries/aristotle-politics/.
“ASEAN Outlook on the Indo-Pacific.” ASEAN.org. June 22, 2019. https://asean.org/storage/2019/06/ASEAN-Outlook-on-theIndo-Pacific_FINAL_22062019.pdf
“Basis of the Court’s jurisdiction.” International Court of Justice. Last date accessed January 22, 2020. https://www.icj-cij.org/
en/basis-of-jurisdiction.
“China Commissions its First Domestically-Built Aircraft Carrier.” The Maritime Executive. December 17,
maritime-executive.com/article/china-commissions-its-first-domestically-built-aircraft-carrier.
2019. https://www.
“Experts Call For Vietnam to Sue China in International Court Over South China Sea Incursions.” RFA.org. October 9, 2019.
https://www.rfa.org/english/news/vietnam/lawsuit-10092019152725.html/.
“India as a “Global Swing State.”” The National Bureau of Asian Research. July 22, 2013. https://www.nbr.org/publication/indiaas-a-global-swing-state-a-new-framework-for-u-s-engagement-with-india/.
“”Jaw to Jaw versus “Jaw, Jaw”.” Richard M. Langworth. December 14, 2010. https://richardlangworth.com/jaw-jaw.
“Jokowi to discuss S China Sea joint patrols with Turnbull.” Today Online. February 25, 2017. https://www.todayonline.com/
world/asia/jokowi-discuss-s-china-sea-joint-patrols-turnbull.
Panda, Ankit. “US, Indonesian Navies Conduct Air Patrol Exercise in South China Sea.” The Diplomat. April 11, 2015. https://
thediplomat.com/2015/04/us-indonesian-navies-conduct-air-patrol-exercise-in-south-china-sea/.
Tann, Somothea. “How Chinese money is changing Cambodia.” Deutsche Welle. August 22, 2019. https://www.dw.com/en/
how-chinese-money-is-changing-cambodia/a-50130240.
Page, Jeremy. “Deep Threat | China’s Submarines Add Nuclear-Strike Capability, Altering Strategic Balance.” Wall Street Journal.
October 24, 2014. https://www.wsj.com/articles/chinas-submarine-fleet-adds-nuclear-strike-capability-altering-strategicbalance-undersea-1414164738.
Thayer, Carl. “A Closer Look at the ASEAN-China Single Draft South China Sea Code of Conduct.” The Diplomat. August
3,
2018.
https://thediplomat.com/2018/08/a-closer-look-at-the-asean-china-single-draft-south-china-sea-code-ofconduct/
Pearson, James and Khanh Vu. “Vietnam mulls legal action over South China Sea dispute.” Reuters. November 6, 2019.
https://www.reuters.com/article/us-vietnam-southchinasea/vietnam-mulls-legal-action-over-south-china-sea-disputeidUSKBN1XG1D6.
Tiezzi, Shannon. “Would Indonesia Actually Challenge China’s Nine-Dash Line in International Court?.” The Diplomat. November
13, 2015. https://thediplomat.com/2015/11/would-indonesia-actually-challenge-chinas-nine-dash-line-in-internationalcourt/.
Pemmaraju, Sreenivasa Rao. “The South China Sea Arbitration (The Philippines v. China): Assessment of the Award on
Jurisdiction and Admissibility.” Journal of International Law 15 no. 2 (2016): 265-307.https://doi.org/10.1093/chinesejil/
jmw019.
Tomacruz, Sofia. “3 years later, 87% of Filipinos want gov’t to assert Hague ruling.” Rappler. July 12, 2019. https://www.rappler.
com/nation/235259-filipinos-want-government-assert-hague-ruling-sws-survey-2019.
“Riding the ASEAN elephant: How business is responding to an unusual animal.” The Economist. February 2013. http://ftp01.
economist.com.hk/ECN_papers/ridingASEAN.pdf.
Torres, Sherrie Ann. “China still rejects PH arbitral win in South China Sea case.” ABS-CBN News. August 9, 2019. https://news.
abs-cbn.com/news/08/09/19/china-still-rejects-ph-arbitral-win-says-envoy.
“Shangri-La Dialogue 2018 highlights: Day Two.” The International Institute for Strategic Studies. June 2, 2018. https://www.iiss.
org/blogs/analysis/2018/06/shangri-la-dialogue-2018-day-two-highlights.
Trump, Donald. National Security Strategy of the United States of America. 2017. https://www.whitehouse.gov/wp-content/
uploads/2017/12/NSS-Final-12-18-2017-0905.pdf.
“Slavoj Zizek: Far Right and Anti-Immigrant Politicians on the Rise in Europe.” Democracynow.org. Last date modified October
18, 2010. https://www.democracynow.org/2010/10/18/slavoj_zizek_far_right_and_anti.
Ulusoy, Hasan. “Revisiting Security Communities After the Cold War: The Constructive Perspective.” System for Award
Management. January 2012. http://sam.gov.tr/wp-content/uploads/2012/01/Hasan-Ulusoy3.pdf.
“South China Sea: What Australia Might Do.” Australia-China Relations Institute. March 2016. https://www.australiachinarelations.
org/content/south-china-sea-what-australia-might-do/
United Nations Convention on the Law of the Seas. “Part XV: Settlement of Disputes.” UN.org. Last date accessed January 22,
2020. https://www.un.org/depts/los/convention_agreements/texts/unclos/part15.htm.
“Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia).” International Court of Justice. Last date accessed:
January 19, 2020a. https://www.icj-cij.org/en/case/102/summaries
U.S. Department of Defense. Summary of the 2018 National Defense Strategy of The United States of America. 2018. https://
dod.defense.gov/Portals/1/Documents/pubs/2018-National-Defense- Strategy-Summary.pdf.
“Temple of Prea Vihear (Cambodia v Thailand). International Court of Justice. Last date accessed: Janiary 19, 2020b. https://
www.icj-cij.org/en/case/45.
Venzon, Cliff. “Mahathir warns Philippines about China loans.” Nikkei Asian Review. March 7, 2019. https://asia.nikkei.com/
Politics/International-relations/Mahathir-warns-Philippines-about-China-loans.
“The perils of China’s “debt-trap diplomacy”” The Economist. September 6, 2018. https://www.economist.com/asia/2018/09/06/
the-perils-of-chinas-debt-trap-diplomacy.
Viray, Patricia Lourdes. “Shifting tactics: China advances ‘four sha’ claim in South China Sea.” Philippine Star Global. September
27, 2017. https://www.philstar.com/headlines/2017/09/27/1742870/shifting-tactics-china-advances-four-sha-claimsouth-china-sea.
“Voting system: Qualified majority.” European Council: Council of the European Union. Last date accessed May,6,2019. https://
www.consilium.europa.eu/en/council-eu/voting-system/qualified-majority/.
Pence, Mike. “Mike Pence: The United States seeks collaboration, not control, in the Indo-Pacific.” The Washington Post.
November 9, 2018. https://www.washingtonpost.com/opinions/mike-pence-the-united-states-seeks-collaboration-notcontrol-in-the-indo-pacific.
Permanent Court of Arbitration. Conciliation between The Democratic Republic of Timor-Leste and The Commonwealth of
Australia. PCA Case No. 2016-10. The Hague, Netherlands. May 9, 2018. https://pca-cpa.org/en/cases/132/.
Permanent Court of Arbitration. In the matter of the South China Sea Arbitration. PCA Case No 2013-19. The Hague, Netherlands.
July 12, 2016. https://pca-cpa.org/wp-content/uploads/sites/6/2016/07/PH-CN-20160712-Award.pdf.
Poling, Gregory. “China’s Hidden Navy.” Foreign Policy. June 25, 2019. https://foreignpolicy.com/2019/06/25/chinas-secretnavy-spratlys-southchinasea-chinesenavy-maritimemilitia/.
Punongbayan, JC. “[ANALYSIS] Is Duterte selling out the Philippines to China?.” Rappler. November 23, 2018. https://www.
rappler.com/thought-leaders/217353-is-duterte-selling-out-philippines-to-china.
Rajagobal, Navin. “The 2009 claims that changed the dynamics in the South China Sea.” The Straits Times. July 12, 2016.
https://www.straitstimes.com/opinion/the-2009-claims-that-changed-dynamics-in-the-s-china-sea.
Rajya Sabha TV. “PM Modi attacks former PM Jawaharlal Nehru for the stampede in Kumbh during his tenure.” Youtube video,
2:04. Posted [May 2019]. https://www.youtube.com/watch?v=IQNRDgXtlFQ.
Ranada, Pia. “South China Sea covered by PH-U.S. Mutual Defense Treaty – Pompeo.” Rappler. March 1, 2019. https://www.
rappler.com/nation/224668-pompeo-says-south-china-sea-covered-philippines-us-mutual-defense-treaty
C 2020 STRATBASE ADR INSTITUTE for Strategic and International Studies. All rights reserved.
Walker, Christopher. “What is “Sharp Power?.” Journal of Democracy 29 No. 3 (2018):9-23. https://www.journalofdemocracy.
org/articles/what-is-sharp-power/.
“Malaysia Partial Submission to the Commission on the Limits of the Continental Shelf pursuant to Article 76, paragraph 8 of
the United Nations Convention on the Law of the Sea 1982 in the South China Sea.” United Nations. November 2017.
https://www.un.org/Depts/los/clcs_new/submissions_files/mys85_2019/20171128_MYS_ES_DOC_001_secured.pdf
“Malaysia to stay friendly with China despite territorial dispute: Mahathir.” Today. September 26, 2019. https://www.todayonline.
com/world/malaysia-stay-friendly-china-despite-territorial-dispute-mahathir.
“Quotable Quote by Arthur Miller.” Goodreads. Last date accessed January 20, 2020. https://www.goodreads.com/
quotes/6489596-an-era-can-be-considered-over-when-its-basic-illusions
“VP Pence will flesh out the Indo-Pacific Economic Vision.” Am Cham Vietnam. October 11, 2018. https://www.amchamvietnam.
com/vp-pence-will-flesh-out-the-indo-pacific-economic-vision/
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ABOUT
Richard Javad Heydarian
is a non-resident fellow at Stratbase ADR Institute, and a columnist for
the Philippine Daily Inquirer, and a resident political analyst at GMA
Network. He has authored close to 1000 articles on regional security
issues, three authored books on geopolitics, and writes widely for
regional and international publications. Parts of this paper were drawn
from his earlier works for the US-China Focus and Straits Times, where
he is a regular contributor.
Stratbase ADR Institute
is an independent international and strategic research
organization with the principal goal of addressing the
issues affecting the Philippines and East Asia
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Image Credit: blogs.wsj.com/briefly/2015/05/13/5-things-about-the-south-china-sea-dispute