Collateral benefit and damage

31 July 2015

The ruling in the case between China and the Philippines over competing claims in the South China Sea will strain relations between Manila and Beijing, but it’ll also impact Vietnam, Taiwan, Indonesia and Malaysia, as well as threatening ASEAN unity, writes Malcolm Cook.

Looking back in the future, observers of the escalating tensions in the South China Sea will point to 2012 as the pivotal year for the maritime boundary disputes between China and Taiwan and five Southeast Asian states in the South China Sea. That was the year that China coercively gained control of Scarborough Shoal from the Philippines, and for the first time, ASEAN foreign ministers failed to issue a joint statement at the end of their meeting due to disuniting disagreements over whether the South China Sea should even be mentioned.

Now the dispute, which will soon be ruled on by the United Nations Arbitration Panel under the Convention on Law of the Sea (UNCLOS) threatens to not only exacerbate tensions between Manila and Beijing, but could also cause collateral benefit and damage to the other countries with competing maritime boundary and territorial claims.

Before the 2012 setbacks, the Aquino administration showed no signs of moving beyond the Philippines’ approach of being the loudest and most persistent voice in ASEAN for the Association to take a stronger line on these disputes and China’s actions in the South China Sea. In response to China’s growing assertiveness in the South China Sea and a loss of faith in the ASEAN-led process to moderate these disputes, in January 2013, the Aquino administration chose to exercise its legal right and challenge the legality of China’s nine-dash line claim to the majority of the South China Sea. The Philippine case against China’s expansive claim based on ‘historical rights’ does not only affect the Philippine and Chinese claims but the other five claimants and ASEAN. If the United Nations’ Arbitration Tribunal rules in favour of Manila, it likely will benefit the present Indonesian and Malaysian positions on their South China Sea claims, complicate Vietnam’s, and damage Taiwan’s present claim as well as ASEAN unity and centrality on this issue.

Indonesia’s position is that there is no maritime boundary dispute between Indonesia and China as China’s 9-dash line claim is without legal basis and Indonesia does not recognise China’s claim. Indonesia’s claim in the South China Sea is based upon its continental shelf, as is that of Malaysia. A ruling favourable to Manila would validate the present legal positions of Indonesia and Malaysia.

For Vietnam, a positive ruling for Manila also would support Vietnam’s rejection of China’s nine-dash line claim. However, Vietnam’s own expansive maritime boundary and territorial claim in the South China Sea does not rely solely on its continental shelf but, as with China, also on Vietnam’s historic rights. If the ruling on the Philippine case limits or discredits China’s historic rights basis for its nine-dash line claim, this could be problematic for Hanoi. Part of Vietnam’s rejection of China’s nine-dash line claim is that China’s historical rights are much less compelling than those of Vietnam.

A positive ruling for Manila could have the biggest impact on Taiwan’s expansive claim to the South China Sea. The People’s Republic of China’s nine-dash line claim is based on the 1947 claim by the Kuomintang government in China that is the basis of Taiwan’s claim. Hence a ruling against China’s claim would act as a ruling against Taiwan’s claim as well.

In Taiwan, there is a partisan debate over Taiwan’s expansive claim in the South China Sea with the present Kuomintang administration reiterating the claim and voices on the opposition Democratic Progressive Party side pondering a more limited claim around the main island Taiwan controls, Taiping island. If the DPP wins the January 2016 presidential election, a subsequent Tribunal ruling favourable to Manila may add to calls to reduce Taiwan’s South China Sea claim and further differentiate Taiwan’s approach to the South China Sea from that of China.

Finally, a positive ruling for Manila could stretch the already frayed elastic band of ASEAN unity on the South China Sea disputes. A positive ruling could encourage some of the five Southeast Asian states with disputes with China to push ASEAN, a consensus-based grouping, to take a firmer position against the Chinese claim. ASEAN, at the very least, would have to agree on its response to a positive ruling and what that means for the decades-long process of negotiating a South China Sea Code of Conduct with China. Some of the five Southeast Asian states without disputes with China in the South China Sea, as in 2012, likely would continue to oppose stronger ASEAN language and action.

China already has claimed that the Philippines decision to file a case against China runs contrary to this Code of Conduct process. A tribunal ruling unfavourable to China likely would inflame China’s ire towards the Philippines and provide Beijing, in its eyes, a reason to further delay Code of Conduct negotiations or even walk away from them. The Philippine case against China is definitely ground-breaking. A ruling in favour of Manila likely would be of collateral benefit to Indonesia and Malaysia and of collateral damage to Taiwan’s present claim and to ASEAN unity and centrality on this issue. Vietnam’s present claim could receive a bit of both.

Dr Malcolm Cook completed his PhD in the Department of International Relations at the ANU College of Asia and the Pacific. He is now a Senior Fellow at the Institute of Southeast Asian Studies in Singapore. This article was originally published on Policy Forum.

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