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THE ASEAN AND THE SOUTH CHINA SEA ISSUE

THE ASEAN AND THE SOUTH CHINA SEA ISSUE. EDGARDO E. DAGDAG Professor and Assistant to the Dean for Academic Affairs, Asian Center University of the Philippines-Diliman. OUTLINE OF PRESENTATION. 1. ASEAN’s vision of Southeast Asia

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THE ASEAN AND THE SOUTH CHINA SEA ISSUE

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  1. THE ASEAN AND THE SOUTH CHINA SEA ISSUE EDGARDO E. DAGDAG Professor and Assistant to the Dean for Academic Affairs, Asian Center University of the Philippines-Diliman

  2. OUTLINE OF PRESENTATION • 1. ASEAN’s vision of Southeast Asia • 2. Selected ASEAN guiding principles relevant to the South China Sea (SCS) issue) • 3. The SCS issue: why a flashpoint • 4. Past ASEAN pronouncements on the SCS issue • 5. Recent ASEAN pronouncements on the SCS issue • 6. Other recent SCS-related developments • 7. Conclusions and forecast

  3. ASEAN’S VISION OFSOUTHEAST ASIA • “. . . A region of lasting peace, security and stability, sustained economic growth, shared prosperity and social progress.” Preamble, ASEAN Charter • . . . A concert of Southeast Asian nations, outward looking, living in peace, stability and prosperity; and bonded together in partnership in dynamic development and in a community of caring societies. ASEAN Vision 2020

  4. SELECTED ASEANGUIDING PRINCIPLES Principles relevant to the SCS Issue • 1. Renunciation of aggression or the threat or use of force or other acts in any manner inconsistent with international law. • 2. Reliance on peaceful settlement of international disputes. • 3. Enhanced consultations on matters seriously affecting the interests of the ASEAN. • 4. Upholding the UN charter and international law.

  5. THE SOUTH CHINA SEA (SCS) ISSUE Why a flashpoint? • 1. Strategic value of the SCS: vital sealane and trade route; with abundant marine resources, oil and natural gas. • 2. US pronouncement that “it will maintain its presence in the South China sea” and that the peaceful resolution of the SCS issue is in its national interests. US position on the SCS is regarded by China as an act of provocation. • 3. Difficulty in resolving the conflicting positions of the claimant countries in resolving the SCS issue: bilateral negotiation as favored by China versus multilateral negotiation as favored by claimants belonging to the ASEAN. The US is supporting the position taken by the ASEAN.

  6. THE SOUTH CHINA SEA ISSUE Why a flashpoint? • 4. Four of the six claimant countries (Philippines, Malaysia, Brunei and Vietnam) are ASEAN member countries; one affected non-claimant country is also an ASEAN member - -Indonesia. The Philippines has brought to the International Tribunal on the Law of the Sea (ITLOS) its complaints against the aggressive behavior of China • 5. The dominating claimant country is China - - a potential global power and an acknowledged regional power with a modernizing military force; perceived to be resorting to all means to defend its publicly stated position that “its sovereignty in the Spratly is non-negotiable.”

  7. PAST ASEAN PRONOUNCEMENTS AND AGREEMENTS ON THE SCS • The 1992 ASEAN Declaration on the SCS • 1. Emphasized the necessity to resolve all sovereignty and jurisdictional issues by peaceful means, without resort to force. • 2. Urged all parties to exercise restraint with the view to creating a positive climate for the eventual resolution of all disputes. • 3. Asked all parties to explore the possibility of cooperation in the SCS relating to the safety of maritime navigation and communication, protection against pollution of maritime environment, coordination of search and rescue operations, efforts towards combating piracy and armed robbery as well as collaboration in the campaign against illicit trafficking in drugs. • 4. Urged all parties to apply the principles contained in the ASEAN Treaty of Amity and Cooperation in Southeast Asia as the basis for establishing a code of international conduct over the SCS.

  8. PAST ASEAN PRONOUNCEMENTS AND AGREEMENTS ON THE SCS ISSUE • The 2002 ASEAN-China Declaration on the Conduct of Parties in the South China Sea (often referred to as 2002 DOC) • 1. Parties reaffirmed their respect to the freedom of navigation in and overflight above the SCS, as provided for by universally recognized principles of international law and the UNCLOS. • 2. Parties resolved to address their territorial and jurisdictional disputes by peaceful means, in accordance with universally recognized principles of international law, including the 1982 UNCLOS. • 3. Parties undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes including refraining from action of inhabiting on the uninhabited islands, reefs, etc and to handle their differences in a constructive manner.

  9. PAST ASEAN PRONOUNCEMENTS AND AGREEMENTS ON THE SCS ISSUE The 2002 ASEAN-China DOC (cont’d) Pending the peaceful settlement of disputes , the parties shall intensify efforts to seek ways to build mutual trust and confidence: • 1. Hold dialogues and exchange views between their defense and military officials. • 2. Ensure just and humane treatment of all persons who are either in danger or in distress. • 3. Notifying on a voluntary basis other parties concerned of any impending joint/combined military exercise; and • 4. Exchanging on a voluntary basis, relevant information

  10. PAST ASEAN PRONOUNCEMENTS AND AGREEMENTS ON THE SCS ISSUE. • The 2002 ASEAN-China DOC (cont’d) • Pending a comprehensive and durable settlement of the disputes, the parties concerned may explore or undertake cooperative activities such as: (a) marine environmental protection; (b) marine scientific research; (c) safety of navigation and communication at sea; (d) search and rescue operation; and (e) combating transnational crime, including but not limited to trafficking in illicit drugs, piracy and armed robbery at sea, and illegal traffic in arms. • 4. Parties shall continue their consultations and dialogues concerning relevant issues for the purpose of promoting good neighborliness and transparency, establishing harmony, mutual understanding and cooperation and facilitating peaceful resolution of disputes among them.

  11. PAST ASEAN PRONOUNCEMENTS AND AGREEMENTS ON THE SCS ISSUE • ASEAN-China Plan of Action to implement the 8 Oct 2003 Joint Declaration on ASEAN-China strategic partnership for peace and prosperity (excerpts related to the SCS issue) • 1. Convene regular ASEAN-China Senior Officials Meeting (SOM) on the realization of the DoC to provide guidance for and review the implementation of the DoC. • 2. Establish a working group to draw up the guidelines for the implementation of the DoC. • 3. Promote joint cooperation and dialogue in areas such as marine scientific research, protection of the marine environment, safety of navigation and communication at sea, search and rescue operation, humane treatment of all persons in danger or distress, fight against transnational crimes as well as cooperation among military officials.

  12. PAST ASEAN PRONOUNCEMENTS AND AGREEMENTS ON THE SCS ISSUE • ASEAN-China Plan of Action to implement the 8 Oct 2003 ASEAN-China Strategic Partnership for Peace and Prosperity - excerpts relating to the SCS issue (cont’d) • 4. Promote trust and confidence building through cooperative activities pending the peaceful settlement of the territorial and jurisdictional issues as stated in the DoC. • 5. Affirm the vision of the DoC state parties to work, on the basis of consensus, on the eventual adoption of a code of conduct in the South China sea.

  13. RECENT ASEAN PRONOUNCEMENTS ON THE SCS ISSUE • Joint Communique of the 14th ASEAN Foreign Ministers Meeting (excerpts relating to the SCS issue), 19 JULY 2011 (Bali, Indonesia) • 1. Expressed serious concern over recent incidents • 2. Stressed the importance of maintaining peace and stability in the SCS, the continued exercise of self-restraint by all parties concerned, and the promotion of CBMs in the area. • 3. Reaffirmed the importance and continued relevance of the 2002 ASEAN-China DOC as a milestone document. • 4. Called on all parties to respect the freedom of navigation in and overflight above the SCS.

  14. RECENT ASEAN PRONOUNCEMENTS ON THE SCS ISSUE • Joint Communique of the14th ASEAN Foreign Ministers Meeting (excerpts relating to the SCS), 19 July 2011 (cont’d) • 5. Stressed the importance of continued constructive dialogue between the ASEAN and China • 6. Need for intensive discussion in the ASEAN on a regional code of conduct (COC); tasked the ASEAN SOM to work on the development of a COC and submit a progress report to the 19th ASEAN Summit that will meet this Nov 2011. • 7. Need to optimize ongoing Track 2 mechanisms on the SCS including the regular workshops on managing potential conflicts in the SCS organized by Indonesia. • 8. Tasked the ASEAN SOM, with the assistance of the ASEAN legal experts to study the proposal of the Phil on the SCS as a Zone of Peace, Freedom, Friendship and Cooperation.

  15. RECENT ASEAN PRONOUNCEMENTS ON THE SCS • July 2011 Guidelines for the Implementation of the 2002 ASEAN-China DOC (Adopted at Bali, Indonesia) • 1. The implementation of the DOC should be carried out in a step-by-step approach. • 2. The Parties will continue to promote dialogue and consultation. • 3. The implementation of activities or projects as provided for in the 2002 DOC should be clearly defined. • 4. The participation in the activities or projects should be carried out on a voluntary basis. • 5. Initial activities should be confidence building measures (CBMs).

  16. RECENT ASEAN PRONOUNCEMENTS ON THE SCS ISSUE • 2011 Guidelines for the implementation of the 2002 ASEAN-China DOC (cont’d) • 6. The decision to implement concrete measures and activities should be based on consensus among the parties concerned, and lead to the eventual realization of a Code of Conduct (COC) • 7. In the implementation of the agreed projects under the DOC, the services of the experts and eminent persons will be sought to provide specific inputs on the project concerned. • 8. Progress of the implementation of the agreed activities and projects shall be reported annually to the ASEAN-China Ministerial meeting.

  17. RECENT ASEAN PRONOUNCEMENTS ON THE SCS ISSUE Chairman’s Statement on the ASEAN’s PMC +1 session (excerpts related to the SCS), Bali, Indonesia, 21-22 July 2011 • 1. Reaffirmed the importance of the DOC in promoting peace, stability and mutual trust and in ensuring the peaceful resolution of disputes in the SCS. • 2. Endorsed the guidelines on the implementation of the DOC and considered it as a significant outcome and a step forward in the implementation of the DOC>

  18. RECENT ASEAN PRONOUNCEMENTS ON THE SCS • Chairman’s Statement , 18th ASEAN Regional Forum (excerpts relating to the SCS), 23 July 2011 (Bali, Indonesia) • 1. Reaffirmed the importance and continued relevance of the 2002 DOC as a milestone document between ASEAN and China embodying their collective commitment to promote peace and stability and mutual trust and ensure the peaceful resolution of disputes in the area, in accordance with universally recognized principles of international law, including the 1982 UNCLOS. • 2. Reaffirmed the importance of maritime security and safety in the SCS: (a) called on all parties to exercise restraint and to promote CBMs in the SCS; and (b) encouraged the need to move towards the eventual establishment of a regional code of conduct (COC) in the SCS, as provided in the 2002 DOC.

  19. RECENT SCS-RELATED DEVELOPMENTS SINGAPORE It called on China to clarify its claims in the SCS with more precision since the current ambiguity as to their extent has caused serious concerns in the international maritime community (June 2011) TAIWAN: It has made known its plan to deploy an advanced air defense missile system (Tien Chien I missiles) in its occupied islets in the SCS (Itu Aba and Pratas islands).

  20. RECENT SCS-RELATED DEVELOPMENTS VIETNAM President Truong Tan Sang of Vietnam expressed his desire to see the Phil proposal for a Zone of Peace, Freedom, Friendship and Cooperation materialize in ASEAN. He said: “Vietnam and the Phil share a lot of things in common, even with our views on how to tackle issues in the East Sea.” (15 Oct 2011) UNITED STATES “We encourage all claimants to resolve their disputes through peaceful means, in accordance with international law and without resorting to the threat or use of force.” (15 Oct 2011)

  21. RECENT SCS RELATED DEVELOPMENTS UNITED STATES • Hillary Clinton: “The US has a national interest in the freedom mof navigation, open access to Asia’s maritime commons, and respect for international law in the SCS. We oppose the use or threat of force by any claimant.” • Clinton brings up the SCS dispute at the ARF meeting in Hano and this angered China (23 July 2010) • The US called on China to cool tensions over the disputed territory and reiterated its commitment to defend its longtime ally, the Philippines (25 June 2011) • The US Senate unanimously passed a resolution condemning China’s use of force in the SCS; urged a peaceful and multilateral solution to the SCS dispute. (27 June 2011)

  22. RECENT SCS RELATED DEVELOPMENTS CHINA • It slams the US Senate resolution on the Spratly dispute saying: “The US resolution confuses right and wrong. It does not hold water.” • It is committed to a peaceful resolution of the SCS dispute through bilateral negotiation and friendly consultation with relevant countries on the basis of historical facts and international law. We believe that the most effective way to resolve the dispute is direct negotiation with the countries concerned. • China has indisputable sovereignty over the islands and the surrounding waters, based on historical and jurisprudential evidence. (Chinese Foreign Ministry spokesman Hong Lei, Sept 2011)

  23. RECENT SCS RELATED DEVELOPMENTS PHILIPPINES • Urged the ASEAN member states to take a common position and seek common approaches in the addressing the worrisome developments in the SCS. • It also lodged a diplomatic protest before the United Nations International Tribunal on the Law of the Sea (ITLOS) against China’s “9 dash line” territorial claim over the whole SCS. • Philippines tells China it would defend position in the SCS; it calls the SCS West Philippines Sea. • It made a proposal - - for the SCS to be converted into a Zone of Peace, Freedom, Friendship and Cooperation (ZPFF/C)

  24. RECENT SCS-RELATED DEVELOPMENTS PHILIPPINES: HIGHLIGHTS OF ITS ZPFF/C PROPOSAL • 1. The disputed areas in the SCS would be segregated from the non-disputed areas in accordance with the UNCLOS. • 2. Only the Spratly island and Paracels are considered the disputed areas. • 2. The disputed areas would be enclaved and designated as Joint Cooperation Areas (JCA). It would be managed by a Joint Permanent Working Committee (JPWC) composed of claimants from the ASEAN. The JPWC would report to the ASEAN-China Senior Officials Meeting (SOM). • 3. The JCA will be demilitarized. The military personnel will be replaced with police or coast guard personnel. • 4. The undisputed areas shall remain under the jurisdiction of those countries whose rights are protected by the UNCLOS.

  25. RECENT SCS-RELATED DEVELOPMENTS THE ZPFF/C PROPOSAL OF THE PHILIPPINES • A two-day meeting of the ASEAN maritime legal experts in Manila last Sept 2011 concluded that there is a legal basis for the Phil proposal. • ASEAN tasked its SOM to study further the Phil proposal and the results of the meeting of the ASEAN maritime legal experts and to submit its report to the Nov 2011 ASEAN summit meeting. • Sources from DFA Phil say that the Phil proposal has the support of Vietnam, Singapore and Indonesia. • China’s reaction (Ambassador Liu Jianchao, Chinese Ambassador to the Phil): (a) The meeting of the ASEAN maritime legal experts is not an effective way to deal with the dispute; and (b) The ZOPFF/C concept of segregation is not feasible at this stage due to the claimants’ overlapping claims.

  26. CONCLUSION AND FORECAST • 1. With the increasing interest shown by the US on the SCS issue, its peaceful resolution in the immediate future is not likely to happen. China opposes the internationalization of the dispute and the involvement of non-claimant countries like the US. • 2. China is not likely to give up its announced preferred position - - that of addressing the SCS issue through bilateral negotiations. This stance will prevent the immediate resolution of the SCS issue since the ASEAN prefers a multilateral approach. • 3. The ASEAN is likely to press for the adoption of a regional code of conduct to address the issue - - a stance not expressly supported by China but endorsed by the US.

  27. CONCLUSION AND FORECAST • 4. In a recent conference on the Spratly held in the Phil (Oct 2011), Chinese academics have declared that the UNCLOS can not address the Spratly issue. This gives us an inkling of the position of the Chinese government - knowing that in China, Chinese academics generally toe and articulate the “official line.” • The SCS issue will remain a big irritant in Philippines-China relations and will give the Philippines the reason to seek closer security relations with the US to protect itself and its Kalayaan Island group claim. • The non-resolution of the SCS dispute in the immediate future is most likely. Thus, status quo in the area is likely to prevail. This status quo will be most favorable to the country with the most dominating military force - - China.

  28. END OF PRESENTATION • Thank you very much for giving me the opportunity to share my views on the SCS issue. • I wish you all a good day. PROF EDGARDO E. DAGDAG Professor and Assistant to the Dean for Academic Affairs Asian Center, UP Diliman President, Philippines-Taiwan Friendship Society

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