Territorial disputes: South China Sea (Part 14) [Post 129]

South China Sea and Australia

The South China Sea disputes have entered a dangerous new phase in the last several years. Alongside China’s unprecedented construction and fortification of artificial features, incidents at sea involving clashes between various combinations of fishermen, coast guards and, occasionally, naval assets, are occurring on a routine basis. With the nationalist credentials of authoritarian and democratically-elected claimant governments at stake, the potential for miscalculation and escalation (whether inadvertent or intended) is growing. 

Australia’s aspirations for a viable ‘rules-based’ strategic order in the Indo-Pacific are under significant pressure as regional powers contest the very nature and scope of these rules via the disputes. Key Australian interests and relationships are being tested.  

Approximately two thirds of Australia’s exports pass through the South China Sea and the island corridors north of Australia. Any internal or external conflicts between countries can directly impact upon the prosperity of Australia.

Australia’s position on the South China Sea remains pragmatic, unchanged over the last few years.

Australia’s position adheres to the same oft-repeated formulation: Australia urges claimants to act in accordance with international law, to avoid coercive behaviour and unilateral actions, to engage in dialogue and to reach a resolution through peaceful means. Australia has also been consistent in asserting support for states’ rights under international law to freedom of navigation and freedom of overflight. 

Australia itself remains committed to regularly conducting maritime surveillance patrols of the South China Sea, as it has done for over 30 years as part of Operation Gateway, despite being routinely challenged by the Chinese Navy.

The argument as to whether Australia needs to make a choice between its major economic partner, China, and its primary security partner, the US, has been central to discussions about Australia’s security and economic interests in recent years.

Australia’s national interests in the South China Sea are defined as primarily economic and security related, that is, economic in terms of Australian trade passing through the South China Sea, and security related in terms of supporting a continued US presence in the Asia Pacific as a stabilising influence representing the existing, rules-based global order.

The prospects for the future development of economic relations between Australia and ASEAN are very substantial but their realisation will depend crucially on the maintenance of stability and security in Southeast Asia and in Asia more widely. Two issues in political and security relations have recently been of particular concern for ASEAN and Australia—the contest for influence in the South China Sea and the ongoing dangers from terrorism, highlighted in 2017 by the five-month-long conflict in the Philippine city of Marawi.

In relation to the South China Sea, the Australian Government has consistently noted that Australia is not a claimant state and does not take sides in relation to claims. Australia has emphasised the desirability of dialogue and negotiation; opposes artificial modifications or militarisation of islands or features in the Sea; supports freedom of navigation and over-flight; and supports a legally-binding code of conduct. Australia has reiterated its approach at recent meetings of ASEAN and the East Asia Summit. The Australian Government’s position was reaffirmed in its 2017 Foreign Policy White Paper (released in November 2017).

Australia and the South China Sea: debates and dilemmas

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Australian Foreign Policy White Paper

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Australia and the South China Sea

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Australia’s National Interest

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ASEAN-Australia (Special Summit, March 2018)

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NOTE:  

This post is based on Jorge Emilio Núñez, Territorial Disputes and State Sovereignty. International Law and Politics (Routledge 2020).

Previous published research monograph about territorial disputes and sovereignty by the author, Jorge Emilio Núñez, Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue London and New York: Routledge, Taylor and Francis Group, 2017.

NEXT POST:

South China Sea and the United States

Thursday 10th September 2020

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World

https://drjorge.world

Territorial disputes: South China Sea (Part 13) [Post 128]

South China Sea and Japan

In relation to the South China Sea issue, although Japan is not a claimant country, it fears that China’s attempts to assert sovereignty over the South China Sea will embolden Beijing in its dispute with Japan over the Senkakus (Diaoyu Islands). Tokyo hopes to strengthen ASEAN unity on its policy with China over the South China Sea.

After the judgment of the Permanent Court of Arbitration (PCA) regarding the South China Sea dispute in July 2016, Cambodia became a major supporter for Beijing by blocking mention of the international tribunal ruling within the consensus-based ASEAN. Japan tried to change Cambodia’s position through infrastructure support commitments.

Tokyo’s own security interests and geopolitical considerations for its position within the Asian security order—in particular, its competition with a rising China—drive its approach toward the South China Sea. Furthermore, Japan’s perspective toward the South China Sea, through which $5 trillion in maritime trade traverses annually, is informed by the overall importance of the region for global commerce. In particular, as a net importer of energy, Japan’s energy security is highly dependent on commercial sea lanes crossing the South China Sea.

Keeping sea lanes open to free navigation and overflight is thus central to Japan’s grand strategic thinking about the South China Sea. Following China, Japan is the world’s largest net importer of fossil fuels. Notably, 83 percent of Japan’s energy imports originate in the Middle East and pass through the strategically pivotal Malacca Strait before making their way through the South China Sea to access the waters of the western Pacific, between the First and Second Island Chains, on their way to Japanese ports.

The Government of Japan believes that the South China Sea issue is directly related to peace and stability of the region. More importantly, however, Japan recognizes the possibility of conflict in the region as a threat to the integrity of the international maritime order as a whole.

Japan’s policy towards the South China Sea is likely to have a considerable bearing on the future shape of the regional order in this region although ultimately US-China competition and the reaction of the other countries around the SCS will have a more decisive bearing.

Important economic interests are related to Japan’s involvement in the off-shore (as well as onshore) prospection and extraction of oil and gas resources in the South China Sea region in order to pursue the goal of diversification of supply of hydrocarbon as well as the marketing of Japan’s high technology services in the energy sector.

But not only economic interests but also geostrategic concerns have made the stability of the ASEAN member states of central importance to Japan. Next to Japan’s dependence on the freedom of navigation through the South China Sea, it is the nexus of its security alliance with the US and the interdependence of the security in the East China Sea and the South China Sea. Standing up to Chinese assertiveness in the South China Sea and supporting in some way the other littoral states of the SCS is perceived as necessary to maintain US support against Chinese policies in the East China Sea.

Until recently, Japan mostly contributed to stability of the region through economic means. The Japanese government has started helping the more vocal SCS littoral states with their coast guard and military capacity. The increased Japanese involvement in the security of the SCS has been very much promoted by the US through various new bilateral defence policy agreements.

In contrast to its reticence and hesitant attitude in the 1990s, Japan’s current approach to the South China Sea has been much more active and multi-dimensional. The Japanese government has been eager to actively participate in ASEAN-centered security dialogues. The basic strategy Tokyo has employed in multilateral arenas is to include the concept of maritime security on the agenda, emphasizing the importance of resolving territorial disputes in a peaceful manner and securing freedom of navigation.

Chinese and Japanese infrastructure investment in Southeast Asia: from rivalry to cooperation?

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Japan’s Grand Strategy in the South China Sea

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Japan’s Policy towards the South China Sea 

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The South China Sea: A View from Japan

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NOTE:  

This post is based on Jorge Emilio Núñez, Territorial Disputes and State Sovereignty. International Law and Politics (Routledge 2020).

Previous published research monograph about territorial disputes and sovereignty by the author, Jorge Emilio Núñez, Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue London and New York: Routledge, Taylor and Francis Group, 2017.

NEXT POST:

South China Sea and Australia

Wednesday 09th September 2020

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World

https://drjorge.world

Territorial disputes: South China Sea (Part 12) [Post 127]

South China Sea and ASEAN

The South China Sea is unquestionably one of the busiest international sea lanes in the world. However, activities within the South China Sea are not only about seaborne trade and navigation; there is also considerable exploitation and exploration of natural resources, such as natural gas, oil and fish stocks. 

The littoral states with a particular interest in these natural resources are Indonesia, Vietnam, The Philippines, China, Taiwan, Brunei and Malaysia, while several international companies from countries such as the US, UK, Canada, India, Russia and Australia are also involved in commercial activities.

Several of these states, namely Vietnam, The Philippines, Malaysia and Brunei, are members of ASEAN. Indonesia, which is also an ASEAN member, has an exclusive economic zone (EEZ) generated from the Natuna Islands, overlapping China’s so-called ‘nine-dash-line claim’ in the South China Sea. Indonesia officially insists that it is not a claimant.

ASEAN, which has tried to manage the dispute multilaterally through dialogue and consultation with China, has not yet been successful in playing a mediating role due to a lack of consensus among its member states on how to address sovereignty disputes.

ASEAN and China signed the Declaration on the Conducts of Parties in the South China Sea (DOC) in November 2002 in Phnom Penh. ASEAN and China adopted the Guidelines to implement the DOC on 21 July 2011 in Bali, Indonesia. 

Further, the PMC Plus One Session with China held on 25 July 2016 in Vientiane endorsed the Joint Statement by Foreign Ministers of ASEAN Member States and China on the Full and Effective Implementation of the DOC which reflected its commitment to ensure the full and effective implementation of the DOC in its entirety.

At their meeting on 6 August 2017 in Manila, the Foreign Ministers of ASEAN Member States and China adopted the framework of the Code of Conduct. At the 20th ASEAN-China Summit in November 2017, ASEAN Member States and China officially announced the launch of the COC negotiations.

ASEAN and China agreed on a Single Draft Code of Conduct in the South China Sea (COC) Negotiating Text at the 15th ASEAN-China Senior Officials’ Meeting on the Implementation of the DOC (SOM-DOC) held in Changsha, China, on 27 June 2018, which will be the basis of COC negotiations.

Despite its shortcomings, ASEAN and China’s endorsement of the framework is a step forward in the two-decade long conflict management process for the South China Sea. Going forward, the framework will form the basis of negotiations between ASEAN and China on the COC.

The South China Sea Dispute (Indo-Pacific Strategic Papers)

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Overview of ASEAN-China Dialogue Relations (updated August 2018)

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Assessing the ASEAN-China Framework for the Code of Conduct for the South China Sea

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NOTE:  

This post is based on Jorge Emilio Núñez, Territorial Disputes and State Sovereignty. International Law and Politics (Routledge 2020).

Previous published research monograph about territorial disputes and sovereignty by the author, Jorge Emilio Núñez, Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue London and New York: Routledge, Taylor and Francis Group, 2017.

NEXT POST:

South China Sea and Japan

Tuesday 08th September 2020

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World

https://drjorge.world

Territorial disputes: South China Sea (Part 11) [Post 126]

South China Sea and Cambodia

The South China Sea constitutes today’s most difficult foreign policy dilemma for Cambodia since ASEAN and China are both crucially important for the kingdom’s security and economic development. Since becoming an ASEAN member in 1999, Phnom Penh has attached a great importance to the integration of Cambodia into the regional grouping. 

In fact, ASEAN has always been the cornerstone of Cambodian foreign policy. Cambodian policymakers were convinced that ASEAN would be a crucial platform through which their country could safeguard its sovereignty and territorial integrity as well as promote its strategic and economic interests.

Cambodia’s position on the South China Sea is aimed at: (1) continuing implementing the declaration of conduct (DOC); (2) urging ASEAN and China to make the utmost effort to finalize the code of conduct (COC); and (3) encouraging countries concerned to discuss and resolve their issue because ASEAN is not a court. Prime Minister Hun Sen stated that, “ASEAN cannot measure land for them…the South China Sea is not an issue between ASEAN and China.”

China has emerged as a major foreign player in Cambodia. Prime Minister Hun Sen once said Cambodia’s strong economic growth in past years has owed a great deal to China’s investment and steady technical and financial assistance. Since the ASEAN–China Free Trade Agreement was put into force in January 2010, China has become the biggest trading partner and the number-one export destination for ASEAN countries. 

China’s trade with

ASEAN jumped sevenfold between 2000 and 2010, to 232 billion USD (ASEAN 2012). The growth of trade between China and Cambodia is the highest vis-à-vis the bilateral trade between China and any given ASEAN country.

While Vietnam, Singapore, and the Philippines have a closer relationship with the US, China’s closest allies are Myanmar and Cambodia. China needs those two countries’ support in the wake of disputes (for example, the South China Sea dispute) and in order to maintain regional security in general.

Over half of all foreign direct investment in Cambodia in 2016 came from China. Much of Cambodia’s consistently strong economic growth (over 6 percent annually) is driven by Chinese in-vestments in infrastructure and industry as well by Chinese tourism. 

Beijing has also provided millions of dollars worth of military aid in recent years, donating military vehicles and uniforms, tanks, patrol boats, assault rifles and helping to build military training facilities. 

Cambodia in turn has lent its support to various Chinese foreign policy initiatives, for example repeatedly watering down ASEAN communiqués ad-dressing China’s territorial ambitions in the South China Sea. Other ASEAN states have accused Cambodia of undermining regional cooperation on behalf of China.

For ASEAN, the challenge will be getting all 10 members to come to a unified viewpoint on the South China Sea issue; meanwhile, Beijing, which has been growing more assertive on maritime issues, is unlikely to step back over its sovereignty, which it calls a core national interest.

Cambodia has long argued that the maritime disputes in the South China Sea are not a matter for ASEAN because they are bilateral disputes. Cambodia has no direct interest in South China Sea issues yet it has repeatedly intervened to either water down or block any wording that China might object to.

The South China Sea and ASEAN Unity: A Cambodian Perspective

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Cambodia-China Relations: A Positive Sum Game?

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Cambodia: The Winner Takes It All

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The Diplomat

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NOTE:  

This post is based on Jorge Emilio Núñez, Territorial Disputes and State Sovereignty. International Law and Politics (Routledge 2020).

Previous published research monograph about territorial disputes and sovereignty by the author, Jorge Emilio Núñez, Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue London and New York: Routledge, Taylor and Francis Group, 2017.

 NEXT POST:

South China Sea and ASEAN

Monday 07th September 2020

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World

https://drjorge.world

Introduction to Law Series: John Finnis

John Finnis

Natural Law and Natural Rights

Methodology

·      Objective goods must be identified if we are to make human action intelligible.

·      Morality tells us how we should go about pursuing these objective goods (morality is part of what Finnis calls “natural law”).

·      Morality requires us to pursue the common good within our community.

·      Enabling people to pursue their own reasonable objectives requires some degree of collaboration and co-ordination of conduct (posited law).

Sources and content of natural law

·      The principles of natural law are:

a)        a set of basic practical principles used by everyone in deciding what to do;

b)        a set of basic methodological requirements of practical reasonableness used to distinguish sound from unsound practical thinking and which provide criteria for distinguishing between actions that are morally right and morally wrong;

c)         a set of general moral standards – (NLNR p. 23).

·      The relationship between positive and natural law:

The purpose of positive law is to supplement natural law by adding compulsion and forcing selfish people to act reasonably.

Although positive law is derived from natural law it is not entailed by it (it is open to very many choices in implementation).

But these choices must be consistent with the basic principles of practical reasonableness.

·      Positive law is legally binding (in the focal moral sense) only if

1)        the law originates in a way that is legally (in the strict legal sense) valid and

2)        the law is not materially unjust either in its content or in the circumstances of its positing

·      There may also be a moral obligation to obey even an unjust law if disobedience will undermine an otherwise moral system

Objective goods

·      There are seven basic objective goods:

1)        life

2)        knowledge

3)        play

4)        aesthetic experience (i.e. beauty)

5)        sociability (i.e. friendship and community)

6)        practical reasonableness

7)        religion

·      Objective goods are:  

a)             intrinsically good, not instrumentally good.

b)             self-evident.

c)             equally fundamental

Objective goods form the pre-moral "first principles of natural law" from which we can work out the moral natural law by applying the requirements of practical reasonableness, which tell us how to go about achieving these objective goods

The requirements of practical reasonableness

There are 9 requirements of practical reasonableness:

1)        a rational plan of life

2)        no arbitrary preferences among values

3)        no arbitrary preferences amongst persons

4)        detachment

5)        commitment

6)        efficiency

7)        respect for every basic value in every act

8)        the requirements of the common good

9)        following one's conscience

The requirements of practical reasonableness provide a method of moral reasoning.

By applying these requirements one arrives at the moral choice for action or inaction among competing alternatives

Community and the common good

Community is a form of sociability and therefore also one of the objective goods, and community consists in a shared purpose, which is the pursuit of the common good.

The common good is the set of conditions that enable members of a community to attain for themselves reasonable objectives

Law, justice, and rights are the conditions that enable the achievement of the common good.

Justice

·      The principles of justice are simply the concrete implications of the general requirement that one must foster the common good in one's community.

1)        it looks to the common good, as opposed to self-interest

2)        and to the common good, which entails reference to the 7 basic objective goods of human existence

·      There are two kinds of justice: distributive justice and commutative justice.

Law

·      The purpose of law:

Law brings definition, specificity, and clarity and thus predictability into human interactions by way of a system of rules and institutions.

·      Five formal characteristics:

1)        rules of law regulate both human interactions and the institutions that create the rules and adjudicate disputes over the rules.

2)        rules validly created remain valid until validly changed or terminated

3)        rules establish how individuals may perform juridical acts

4)        rules provide a present reason for acting in accordance with a way previously provided for

5)        there are no gaps - where there are no rules there are procedures (other rules) for creating rules to fill these gaps

To these formal characteristics are added Fuller's 8 procedural desiderata.

Friday 24th July 2020

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World

https://drjorge.world

Territorial disputes: South China Sea (Part 10) [Post 125]

South China Sea and Indonesia

While Chinese claims and actions in the South China Sea have touched all of the sea’s littoral countries, the Chinese dispute with Indonesia is often overshadowed by more fraught disputes with countries closer to the Chinese mainland, in particular the Philippines and Vietnam.

Like many other territorial disputes in the South China Sea, the origin of the contemporary dispute between China and Indonesia can be found in the infamous 1947 map drawn by Nationalist Chinese diplomats featuring a dashed line encircling much of the South China Sea. 

The geography of the dashed line on Chinese maps varies; however, in every version, one of the dashes intersects the northern boundary of Indonesia’s declared EEZ north of the Natunas, around 1400 kilometres from the Chinese mainland. The waters in the disputed area are an important fishery and the seabed below is home to large natural gas reserves.

On 14 July 2017 Deputy Minister of Maritime Affairs Arif Havas Oegroseno officially launched the new map of the Republic of Indonesia, pointing out that the Natuna Exclusive Economic Zone (EEZ) has been renamed as “Laut Natuna Utara” (North Natuna Sea). The area is part of the South China Sea. Moreover, the Natuna EEZ lies partially within China’s “Nine-Dash Line”, which has not been recognized by Indonesia.

Natuna Regency has area size of 264,198.37 km2, consisting mostly of water area, with area of 262,197.07 km2, and the rest is islands, with area of 2001.3 km2. Population size of Natuna Regency in 2016 is 73.470 people. Natuna Regency is one of 183 regions in Indonesia categorized as UOF (Underdeveloped, Outermost, and Frontmost), where administratively this region shares borders with:

• North Side: Vietnam and Cambodia.
• South Side: Bintan Island.
• East Side: East Malaysia and West Kalimantan.
• West Side: Anambas Islands Regency.
• Natuna regency has 154 islands, with 27 islands (17.53%) are inhabited and the rests (127 islands) are not inhabited yet.

China, for its part, recognises that Indonesia is arguably the most important member of ASEAN. It has the largest economy of the group, is the sixteenth-largest economy in nominal GDP terms in the world, the seventh-largest in purchasing-power parity terms, is a member of the G-20 group and, geo-strategically, adjoins the Strait of Malacca, the waterway through which around 80 per cent of China’s energy imports are shipped.

Indonesia’s growing economy has made it a desirable destination for Chinese manufactured goods and an important market because it also has the world’s fourth-largest population. Its membership in ASEAN, additionally, makes it a desirable political associate and its geographic location could, if properly persuaded, ensure the security of China’s energy imports upon which it depends to keep its manufacturing base and economy moving forward.

Indonesia, moreover, overtook India as the world’s second-fastest growing economy in 2012 and although that ranking has since been reversed again, its economy continues to grow at around five per cent per annum.

Indonesia in the South China Sea

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What Does Indonesia’s Renaming of Part of the South China Sea Signify?

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Study on Development of Natuna Regency

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Indonesian Foreign Policy: The China Factor

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NOTE:  

This post is based on Jorge Emilio Núñez, Territorial Disputes and State Sovereignty. International Law and Politics (Routledge 2020).

Previous published research monograph about territorial disputes and sovereignty by the author, Jorge Emilio Núñez, Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue London and New York: Routledge, Taylor and Francis Group, 2017.

NEXT POST:

South China Sea and Cambodia (available on Monday 7th September 2020)

Friday 24th July 2020

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World

https://drjorge.world