Thesis Abut Legaspi Dimaano Final

8/11/2019 Thesis Abut Legaspi Dimaano Final

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Chapter I

Problem and its Background

Introduction

International Law is well established to protect the territorial integrity and

sovereignty of states and their relations with each otherbut territorial disputes still exist.

This generation has bid its farewell to imperialism a long time before. It has been a

hundred years since Portugal and Spain divided the world for them to conquer territories

under the name of their monarch.

China, as an emerging military and economic super power of this generation is

indulging on territorial expansions by claiming islands on East China Sea (Senkaku,

dispute with Japan) and even island outside the Chinese shoresthe South China Sea (De

Souza, 2010)

South China Sea is a peripheral sea which is part of the Pacific Ocean. The area's

prominence results from one-third of the world's shipping lanes pass through its waters.

Moreover, it is proven to have huge oil and gas reserves below its sea bed. It is located

south ofmainland China and theisland of Taiwan,west of thePhilippines,north west of

Sabah (Malaysia), Sarawak (Malaysia) andBrunei,north ofIndonesia,north east of the

Malay peninsula (Malaysia) andSingapore, and east ofVietnam (International Crisis

Group, 2012)

South China Sea is labelled as the mother of territorial disputes because of the

competing state claimants. The United States Department of State considers it as a

flashpoint that may trigger or start a shooting war among the claimants. China is the most
http://en.wikipedia.org/wiki/Mainland_Chinahttp://en.wikipedia.org/wiki/Island_of_Taiwanhttp://en.wikipedia.org/wiki/Philippineshttp://en.wikipedia.org/wiki/Malaysiahttp://en.wikipedia.org/wiki/Bruneihttp://en.wikipedia.org/wiki/Indonesiahttp://en.wikipedia.org/wiki/Singaporehttp://en.wikipedia.org/wiki/Vietnamhttp://en.wikipedia.org/wiki/Vietnamhttp://en.wikipedia.org/wiki/Singaporehttp://en.wikipedia.org/wiki/Indonesiahttp://en.wikipedia.org/wiki/Bruneihttp://en.wikipedia.org/wiki/Malaysiahttp://en.wikipedia.org/wiki/Philippineshttp://en.wikipedia.org/wiki/Island_of_Taiwanhttp://en.wikipedia.org/wiki/Mainland_China


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powerful claimant state and it asserts sovereignty over the entire SCS (Jensen, 2011)

through demarcating their claims within what is known as the nine-dotted line, which

claims overlap with virtually every other country in the region. Indonesia, China, and

Taiwan disputed over waters north east of theNatuna Islands. The Philippines, China,

and Taiwan claimsScarborough Shoal.Vietnam, China, and Taiwan asserts over waters

west of theSpratly Islands. TheParacel Islands are disputed between the Peoples

Republic of China, Taiwan and Vietnam. Some or all of the islands themselves are also

disputed between Vietnam, China, Taiwan, Brunei, Malaysia, and the Philippines

(International Crisis Group, 2010).

Hydrocarbon reserves, commercial fishing, declining fish stocks, nationalism,

military expansion and law enforcement capabilities of claimant countries are the

potential reasons of the existing conflict over South China Sea. The oil reserves could be

a big contribution to economic development of the claimant states. Appellant states

correspondingly intensifies the existence of their maritime and law enforcement vessels

in the disputed areas as tensions rise and further increasing the occurrence of maritime

incidents. Vietnam has had to take courageous efforts on defending its sovereignty claims

in response to historical claims of China. But in spite of the disputed claims and risk of

possible conflict, there was no major encounters occurred since 2011(International Crisis

Group, 2012). Bilateral tensions between some claimant states caused negotiations

between the claimants, but are unsuccessful to produce major development.

Specifically, disputes over the Spratly Islands in the South China Sea have

become a threat for mutual security arrangements. China, Taiwan, Vietnam, Brunei,

Malaysia and Philippines claim the Spratly Islands and the nautical area surrounding it.
http://en.wikipedia.org/wiki/Nine-dotted_linehttp://en.wikipedia.org/wiki/Natuna_Islandshttp://en.wikipedia.org/wiki/Scarborough_Shoalhttp://en.wikipedia.org/wiki/Spratly_Islandshttp://en.wikipedia.org/wiki/Paracel_Islandshttp://en.wikipedia.org/wiki/Paracel_Islandshttp://en.wikipedia.org/wiki/Spratly_Islandshttp://en.wikipedia.org/wiki/Scarborough_Shoalhttp://en.wikipedia.org/wiki/Natuna_Islandshttp://en.wikipedia.org/wiki/Nine-dotted_line


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The area is a rich fishing grounds and the seabed encloses oil and gas. Military forces

from claimants occupy the islands and reefs which exacerbates the struggle of finding a

solution. In line with this dispute, the United Nations on Laws of Sea (UNCLOS) was

held. This event gave another new dimension on the dispute in South China Sea.

Claimant states used their own interpretation of the UNCLOS to justify their claim,

extension of exclusive economic zones and occupation (De Souza, 2010).

The claimant states, Philippines, Malaysia, Vietnam, and Brunei Darussalam are

members of the Association of South East Nations. The regional organization does not

have a unified stand regarding the disputed South China Sea because of the territorial

brawl between its member states. ASEAN and China went through series of negotiation

and talks since 1992. The July 2011 agreement between the Association of Southeast

Asian Nations and China over guidelines for implementing the 2002 Declaration on the

Conduct of Parties in the South China Sea has formed, to reduce tensions, a diplomatic

space that can be exploited. Cooperative initiatives could reduce future competition over

maritime rights but will require political will and diplomatic creativity to move forward

(Fravel, 2011). For each new diplomatic effort, new conflicts will arise and this gives

China a chance for assertion (De Souza, 2010). The absence of the unification of the

stand of ASEAN and the weakness of its multilateral framework has troubled the pursuit

for a solution (International Crisis Group, 2012).


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Statement of the Problem

1. Why is the ASEAN unable to have a unified stand on the territorial dispute in

South China Sea between member states and Peoples Republic of China?

2. How will a unified stand of ASEAN affect the resolution of territorial dispute

on South China Sea?

3. How will the institutions of ASEAN affect the individual member states in the

conduct of their foreign relations in times of conflicts?

Assumptions

1.

The ASEAN is unable to have a unified stand regarding the territorial dispute on

South China Sea between member states and Peoples Republic of China because

of its weak structure and the overlapping of claims of the member states of

ASEAN (Philippines, Malaysia, Vietnam and Brunei)

2. A unified stand of the ASEAN regarding the territorial dispute can repel the claim

of China on the entire South China Sea.

3. As ASEAN is mostly inter-governmental and it has not yet combined to

consolidate national foreign policy to one solid foreign policy, the ASEAN

institutions will affect the individual member states in the conduct of their foreign

relations through diplomacy or soft power politics.


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Conceptual Framework

International Relations

Realist TheoryState Relations

Functionalist Theory

ASEANCHINA

Historical claim

over the South

China Sea.

Factors of

disunity of

ASEAN

countries

regarding the

South China

Sea dispute

Aggressive stand

on claiming thewhole South China

Sea by deploying

military bases on

the disputed

territories

Member states

have also

territorial

disputes with

one another

TERRITORIAL

DISPUTE over

South China Sea


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Theoretical Framework

The illustration shows the theoretical paradigm of the study. It plots the

international relations of China and ASEAN member states regarding the territorial

dispute on South China Sea. China supports its claim with a historical title and has a

strong assertion of their claim of the entire South China Sea by occupying it and

deploying military bases in the area. Whereas, the member states of ASEANPhilippines,

Malaysia, Brunei and Vietnam have overlapping claims on the islands on South China

Sea that created a dispute with each other as well. In spite of their regional integration

through ASEAN, the organization does not have a unified stand over the issue.

This study used two perspectives of international relations: Realism and

Functionalism.

Realism

Realism, with its focus on state sovereignty, military power and national interest

is embedded in the diplomatic and political practices of modern Europe up to 1945. The

dominant role of the actors is military security. States want to secure themselves and try

to get as much power as possible if there is no international order. Anarchy produces the

security dilemma since security can only be attained through power. They will claim a

right to be autonomous from other states, and claim a right to exercise complete authority

over their own territories. Military force and economic instruments are the mechanism of

state policy. Potential shifts in the balance of power and security threats are the forces

behind agenda formation. The role of international organizations is minimal and limited

by the state power and the importance of the military force (McCormick, 1999).


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Roots of Realism and its Application to the Study

Realist theory was rooted from three political philosophers of different era. This

theory was first introduced by Thucydides and emphasizes that the constraints imposed

on politics by the nature of human beings, whom they consider egoistic, and by the

absence of international government. These factors contribute to a conflict-based

paradigm of international relations, in which the key actors are states where power and

security become the main issues, and in which there is little place for morality. Realism is

concentrated to state actors, egoism, anarchy, power, security, and morality (Stanford,

2012). Thucydides theory on realism shed light to the existence of conflict in the South

China Sea since it is a conflict based hypothesis where the key actors are China,

Philippines, Malaysia, Brunei and Vietnam. These states are asserting their sovereignty

over specifies portions of South China Sea to assure power and maintain security. The

actions of China is a disregards morality since it exercises economic intimidation towards

involved ASEAN states and to further threaten those ASEAN states who are not involved

to be neutral and passive in the face of the issue.

Niccolo Machiavelli (14691527) delved on the one aspect of realism which is

the relevance of morality in politics.Machiavellianismis a radical type of political

realism that is applied to both domestic and international affairs. He stressed that there is

a tendency to accept any policy that can benefit the state at the expense of other states, no

matter how morally problematic the policy is (Stanford, 2013). Chinas nine-dash-line is

anchored on this interpretation of political realism because even if the claim is not in

accordance with the International law, China still asserts its control over the entire SCS at

the expense of the states who are have the legal rights to have mutual cooperation over


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the disputed territory. Moreover, this theory also illustrates a picture of China building

establishments and military presence in the SCS without a concrete proof that the area is

theirs.

Thomas Hobbes (15881683) argued that humans are extremely individualistic

rather than moral or social and are subject to a perpetual and restless desire of power

after power, that ceases only in death (Leviathan XI 2). This explains the anarchic state

of nature. It emphasizes that such a war as is of every man against every man (XII 8).

He derives his notion of the state of war from his views of both human nature and the

condition in which individuals exist. Since in the state of nature there is no government

and everyone enjoys equal status, every individual has a right to everything therefore

there are no constraints on an individual's behaviour. In connection with international

relations, the world has no single government and therefore, every state enjoys equal

status. In spite of the presence of International law through the United Nations, the world

is still anarchic.

Since realism limits the role of regional organization, its sheds light to the actions

of the individual member states on their bilateral negotiation with other member states

through Joint Bilateral Talks (enumerated and further discussed in Chapter 5).

Functionalism

Functionalism argues that the best people who build cooperation are technical

experts and not government representatives. Functionalists talk of the internal dynamic of

cooperation. It contends that if states work together in certain limited areas and create

new bodies to oversee that cooperation, they will work together in other areas through an


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invisible hand of integration (McCormick, 2007).The role of international

organizations is substantial. Functional international organizations will formulate policy

and become increasingly responsible for implementation (McCormick, 1999).

Roots of Functionalism and its Application to the study

David Mitrany(18881975) pioneered the theory of Functionalism in international

relations. Its basic principle maintains that international cooperation is the best means of

softening antagonism in the international environment. The main rationale behind it was

that peace is more than the absence of violence (Navari, 1995). ASEAN was founded

in 1967 as an economic cooperation among South East Asian states and since then it has

evolved to include a certain level of political cooperation among its member states. The

dominant goals of actors are prosperity and peace and achieve security through

collaboration more than military power. Economic and political acts of the state are the

instruments of state policy. It emphasizes on soft power politics, such as economic and

social issues. The agendas are formed through consensus and not assertions.

Scope and Delimitations

The study focused on the overlapping claims of islands on South China Sea

between Peoples Republic of China, Republic of the Philippines, Malaysia, Republic of

Vietnam and Brunei Darussalam. The study shed light to the actions of the involved

states in relation to their assertion to the disputed maritime areas. Furthermore, it delved

on the territorial disputes among ASEAN member states that hinder its full cooperation

over the territorial disputes with Peoples Republic of China.


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The study does not include the effects of the planned ASEAN constitution in the

future, nor will it provide for a solution on the territorial disputes with the Peoples

Republic of China.

Significance of the study

This study aims to determine the factors that hinder the ASEAN from having a

united stand over territorial disputes in South China Sea; furthermore, it seeks to

understand the ASEAN institutions in relation to its member states on having no common

stand and resolution over territorial disputes in South China Sea and among its member

states.

The study would benefit different stakeholders and shall be advantageous

particularly to the following:

Future Researchers.This study would provide a framework or basis and review

of related literatures to future researchers who want to have a further study about the

topic of this research.

Professors, especially those who are engaged in teaching International Law

and Foreign Relations.This study offers new contributions by assessing the structure of

regional arrangements (ASEAN in particular), factors revolving it that affects its decision

making and settlement of disputes.

Students of Political Science, Legal Management and Foreign Relations. This

study provides a material for deeper understanding on the overlapping claims of China,

Philippines, Malaysia, Vietnam and Brunei on South China Sea and an assessment of the

ability of ASEAN to settle the dispute.


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Government of the Philippines. This study suggests ideas to the government on

how the state can assert and defend our claim over the Scarborough Shoal and Spratlys

Island against China, Brunei and Vietnam.

Definition of Terms

To provide the readers with better understanding and appreciation of the study,

the following terms are hereby defined.

ASEAN - Also known as Association of South East Asian Nation. It was created for the

purpose of security. It was neither formed to integrate member economies nor to build a

supranational institution.

BRUNEI - This country claims the southern Spratly Island, the formation called Louisa

Reef and Rifleman Bank, and extends of the EZZ around the southern part of the South

China Sea.

DOC - Also known as the Declaration of the Conduct in the South China Sea this

refers to the guidelines of the implementation of DOC in the South China Sea. The

Declaration of guidelines had previously been negotiated between China and the ASEAN

countries.

EEZ - Also known as Exclusive Economic Zone. The concept of EEZ provides the

claimants a clear basis regarding their claims in the part of continental shelf. Territorial

waters and the 200 nautical miles exclusive economic zones (EEZ) extending from the

baseline they have drawn around the island and coastline territories to which they claim

sovereignty.


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ICJ - Also known as the International Court of Justice, this refers to the claims to the

islands represent a dispute of sovereignty over land territory and could be submitted to

the ICJ.

INTERNATIONAL RELATIONS - It is the relationships among nations; the sub-field

of political science devoted to the study of relationships between nations.

KALAYAAN ISLAND - It is located in the Spratly Archipelago. It is claimed by the

Peoples Republic of China, Republic of China (Taiwan), Vietnam and the Philippines.

MALAYSIA - This country also claims the southern Spratlys Island since 2009 and

among the features is the Swallow Reef.

NINE-DASHED LINE - Also known as the U-shaped map .This refers to outline claims

of China to the South China Sea. This provided that China has historical rights to

resources within the line.

PARACEL ISLAND - This Island is located in the South China Sea. The Chinese and

the Vietnamese both occupied the parts of this island.

PEOPLES REPUBLIC OF CHINA- This country stated that the Spratly and Paracel

Islands and maritime rights over related waters in the South China Sea are theirs. And

their claims are based on U shaped line or what is called the Nine-dashed line.

PHILIPPINES - This country essentially claims the eastern section of the Spratlys,

which is near to Palawan. They claim the Kalayaan Island which is located in the Spratly

Island.

SCARBOROUGH SHOAL - Also known as Scarborough Reef. It is located in the

South China Sea. It is described as a group of rocks or very small islands with reefs. It is

a disputed territory claim by the Peoples Republic of China, Republic of China


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(Taiwan), and the Philippines. The island has been controlled by the Peoples Republic of

China.

SOFT POWER POLITICS- It is a principle in international relations that state actors,

in order to influence other states through diplomacy utilizes the attractiveness of its

culture, values, political ideals, policies, economic strength and stability.

SOUTH CHINA SEA (SCS) - This refers to the disputed portion of waters that is North

of Malaysia and Brunei, South of China, East of Vietnam and West of Philippines.

SPRATLY ISLAND - It is a group of islands located in the South China Sea. The states

staking claims to various islands are: Brunei, Peoples Republic of China, Malaysia,

Republic of China (Taiwan), Philippines and Vietnam. All except Brunei does not

maintain any military presence in this island.

UNCLOS -Also known as the United Nation Conferences on the Law of the Sea. These

conferences dealt with controversial issues about the matters of territorial sea and

Maritime Zone generated by the islands. It allows for a maximum of 12 nautical miles

territorial water zone and a 200 nautical miles EEZ(possibly more, if continental shelf

claims are concerned)extending from the coast lines.

VIETNAM - This country claims in South China Sea include both the Spratly and

Paracel island chains


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Chapter II

Review of Related Literature

Foreign Literatures

Description of the South China Sea Dispute

Fravel (2012) stated that in 2009, the rivalry for maritime rights in the South

China Sea had emerged as important security issue in East Asia. In fact, it is even stated

recently that the South China Sea is the new central theater of conflict in the world.

Boonpriwan (2012) identified that the main idea of the South China Sea dispute is

a series of complex, legal, technical and geographic components critical to understanding

the dispute. Yet, the issues involving territory and sovereignty are the most pervasive

security problems facing the region especially after the cold war. It is considered to be a

major flashpoint for the conflict in East Asia as the significances is the assumed

presence of natural resources such as oil, hydrocarbon, manganese nodules and fish after

the cold war, its strategic location is straddling as the worlds second busiest international

sea lane in South East Asia. The same with Buszynski (2004) saying that South China

Sea has been described as rich in oil, gas reserves and fishing right, the reason why it was

described as the geo-political focus of South East Asia.

Two of the ASEAN members, the Philippines and Vietnam have territorial

disputes with China over the Spratly Islands and the Paracel Islands. Sanae (2012)

identified that the main reason is the abundance of natural resources supposed to exist in

the South China Sea. Claimant countries assert territorial rights by formulating various

domestic measures to secure their marine interests. Seizure of fishing boats and face-offs


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between patrol ships and the navies occur intermittently nowadays between China and the

Philippines and between China and Vietnam.

Description of Spratly Issue

C. Joyner (1998) stated that Spratly Island is a territory commonly called a

disputed area that is located in the South China Sea with a complex issue involving

numerous claimants. The Spratly Island comprises hundreds of small islets, coral reefs,

sandbars and atolls covering of 180, 000 square kilometers. Each states has its claiming

rights to all part of the Spratly and because of their overlapping claims it resulted to

gigantic tension in South China Sea.

O. Saleem (2000), Spratly Island refers by different names. For Vietnam they

named the islands as Truong Sa, for China they named the islands as Nansha and for

the Philippines they called the island as Kalayaan with this there is struggle among

various claimants states to name the Islands because there is challenge to establish and

solidify a perceptual transformation and example for vested property of interests or what

you called ownership of the islands. Aside from this there has been a continual political

tug-of-war between Brunei, China/Taiwan, Malaysia, Vietnam and Philippines.

Acharva (2007) stated that the Spratly dispute is widely viewed by ASEAN as the

main conflict in Southeast Asia. It also creates a serious test of ASEANs unity and to its

standard concerning the peaceful settlement of the dispute. Their significance is

magnified by the presence of natural resources in the area, as well as their strategic

location straddling some of the worlds most important sea lanes.


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Views of claimant states of the Spratly Island

Claim of China

International crisis group (2012) stated that Chinas claim on South China Sea is

based on the U shaped line or what is called the Nine-dashed line. On May 2009, China

submits to UN their map with Nine-Dashed line prior to that the interpretations of that is

China is claiming the entire body of water within the line.

Soleem (2000) noted that Chinas claims in Spratly Island is based on Historical

and it is rooted from the Chinese Dynasty whereby it stated that as early as there time

China is aware about the Spratly Island. The dynasty of Xia, Shang, Zhou, Qin, Han,

Tang, Song, Yuan , Ming and Qing each have knowledgeable and has a historical control

over the Spratly Island. Cossa (2001) stated that the first claim by China dates from an

1887 treaty with France dividing the Gulf of Tonkin at 1083E. It interprets this treaty as

extending south beyond the Tonkin Gulf to include all the islands of the South China Sea.

Claims of Vietnam

Soleem (2000) identified Vietnam claims is based on two theories and it is

similar to China First, way back in 1950- 1953 Vietnam has exercised historical rights

and dominion over the Spratly Island. Second, is because Spratly Island is part of the

continental shelf of Vietnam. Moreover, Cossa (2001) stated that when Vietnam gained

independence from France it gained sovereignty over the Spartlys and Paracel Island. The

French had administratively claimed Spratly Island in 1929 and the French Navy took

possession of it in 1930. In 1933, the French announced the formal occupation of the

Spratly islands.


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Claim of Malaysia

Soleem (2000) noted that the interest of Malaysia in claiming of Spratly Island is

based on geographical contiguity within the continental shelves and it is stated in the

Treaty of law and sea. They declared that it has discovered and currently subjugate the

island. Cossa (2001) stated that Malaysias claim is based on their continental shelf that

projects out from its coast and includes islands and atolls south and east of Spratly

islands. Based on Swallow Reef in 1983, Malaysia established a small military garrison

together with a fisheries control. In 1991, an airship was added and a small tourist center

and bird sanctuary have also established on the island in 1986.

Claim of Brunei

Cossa (2001) stated that Bruneis claim is based onto their extension of its coast-

line along its continental shelf. Its extent has varied from one established by the British in

1954 to a more recent claim issued in a map showing a longer extension that goes beyond

Rifleman Bank. Also, Bruneis claim is based on the interpretation of the UNCLOS

concerning the continental shelf. Soleem (2000) compared the claim of Brunei to be

similar to Malaysia which is based in geographical proximity that surrounded by the

continental shelves. It is stated under the treaty of law and sea that state territory

includes both a continental shelf allows for the exploitation of naturalresources and an

exclusive economic zone which can extend limitedsovereignty to a distance of

approximately 200 nautical miles fromthe coastline.


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Claim of Philippines

Soleem (2000) identified that the claim of the Philippines is based on economic

need, proximity and discovery because the abandonment of rights by other countries it

gives way to Philippines to claim and discover the strategic location of Spratly Island.

Cossa (2001) stated that Philippines based its claims to what it calls Kalayaan islands on

their proximity to Philippine territory and on the occupation and economic development

of these previously unused and unattached islands by the Filipino civilian settlers.

Description of Paracel Islands

The Central Intelligence Agency (2010) wrote that the Paracel Islands are

surrounded by productive fishing grounds and by potential oil and gas reserves. During

1932, French Indochina took over the islands and set up a weather station on Pattle

Island; maintenance was continued by its successor, Vietnam. China has occupied all the

Paracel Islands in 1974 when its troops seized a South Vietnamese garrison occupying

the western islands. China built a military installation on Woody Island with an airfield

and artificial harbor. The islands are also claimed by Republic of China (Taiwan) and

Vietnam.

Views of Claimant States of Paracel Islands

Claims of China

The Global Security (2010) positions that in the 19th and early 20th

century,

China asserted claims to the Spratly and Paracel islands. During World War II, the

islands were claimed by the Japanese. In 1947, China produced a map with 9 undefined


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dotted lines, and claimed all of the islands within those lines. A 1992 Chinese law

restated its claims in the region. China has occupied some of those islands and in 1976,

China enforced its claim upon the Paracel Islands by seizing them from Vietnam. China

refers to the Paracel Islands as the Xisha Islands, and includes them as part of its Hainan

Island province.

Claims of Vietnam

The Global Security (2010) also identified that Vietnamese claims were based

on history and the continental shelf principle. Vietnamese claim also covers an

extensive area of the South China Sea, although they are not clearly defined. The

Vietnamese have followed the Chinese example of using archaeological evidence to

bolster sovereignty claims. In the 1930's, France claimed the Spratly and Paracel

Islands on behalf of its then-colony Vietnam. Vietnam has occupied a number of the

Spratly Islands. In addition, Vietnam claims the Paracel Islands, although they were

seized by the Chinese in 1974.

Claims of Taiwan

According to the Global Security (2010), Taiwan's claims are similar to those of

China, and are based upon the same principles. As with China, Taiwan's claims are also

not clearly defined.

The ASEAN and its ASEAN Way

According to Mattli (1999) and Webber (2001) ASEAN was born out of regional

conflict wherein the founding leaders have no agenda for integrating members

economies. According to Shaun (1966), the ASEANs founding purpose was to ensure

the survival of its members by promoting regional stability and limiting competition


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between them. When ASEAN was established, the greatest threats to the national security

of its individual states were insurgencies that potentially invited external intervention in

the region. Furthermore, Guan (2004) wrote that for the reason of security, ASEAN was

created. It was not formed either to integrate member economies or to build a

supranational institution. It was established to directly respond to intra-regional stimulus

of Sukarnos confrontation that might stand to destabilize the region. Stubs (2009)

branded ASEAN as a failure on providing a collective voice in the East Asian states and

also the important territorial issues such as the Spratlys Island and the jurisdiction over

South China Sea. Their role as a regional organization is in the stage of danger because

ASEAN is currently going through a crisis of identity.

Cossa (2001) stated that a conflict between ASEAN claimants could tear at the

fabric of this important sub regional grouping of nations and weaken the positive

economic and political leadership role it plays sub-regionally. The conflict over the

Spratlys by the two members of ASEAN would be clear violation of the 1992 ASEAN

Declaration on the South China Sea which highlightthe necessity to resolve all the

sovereignty and jurisdictional issues pertaining to the South China Sea by peaceful means

without resort to force, and all parties to exercise restraint and or else avoid provocative

actions.

Pitsuwan (2001) agreed that the ASEAN is not prepared to pool sovereignty in a

way that is beneficial for the entire region. The organization needs to integrate diverse

political cultures of its member states by having a super structure of politics if the

members states are able to change its different government structure into a more

homogenized form of political set-up. In connection with this, Guan (2004) wrote that the


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inability of ASEAN to have a successful integration is tied to a political culture which

holds sovereignty and non-interference sacred. The organization faces a tougher time to

create institutional structures that increases integration because it is covered within its

norms. The ASEAN lacks third party enforcement or commitment institutions. Member

states are not willing to shift any decision making authority to a higher supranational

bodies. Any bilateral disputes that arise between members are mostly handled through

quite diplomacy where the organization in not involved. ASEAN provided a channel to

manage and resolve territorial disputes among its members as a respond to its lack of

commitment institutions. ASEAN Troika was created in 2000 and was meant to deal with

sudden flare up of disputes. ASEAN high Council was created in 2001 and was meant to

deal with long-term disputes. According to Haacke (2003), The ASEAN Trioka failed to

materialize in the ministerial level and instead it ended up as an ad hoc body. It is not

allowed to make any decisions but only offer recommendations in assisting ASEAN

Foreign Minister. ASEAN High Council could only be invoked by the state involved in

the dispute and does not allow any member nation to call for a dispute for a dispute to be

brought up before a commission. Furthermore, TCJAS, (2004) wrote that treaty plays

important role in ASEAN, because ASEAN as a regional organization is unable to

formulate any kind of treaty like the 1957 Treaty of Rome establishing the EEC or also

known us European Economic Community. Because a treaty set clear rules and

procedures and ensure the commitment between its member states.

Conferring to Guan (2004), ASEAN diplomacy or the ASEAN way is built a set

of norms defining states behaviour that each member state is required to adhere to. It

provides a sense of regional identity only at the inter-governmental level. Haacke (2003)


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noted the ideas of conceptualization of the ASEAN way. It is an intramural approach to

dispute management to confidence building. It is a decision making based on the

principles of consultation and consensus that is originally a Javanese process to resolve

political and personal differences. In addition by Guan (2004), ASEAN way mainly

features respect for sovereignty, non-interference, non-use of force, quiet diplomacy,

non-involvement of the organizations in bilateral disputes and mutual respect, consensus-

building, discretion and conciliation. Consensus (mufakat) will be achieved when all the

members agreed to suggestions and the outcome is slow.

Guan (2004) stated that the Consensus norm in ASEAN is both the organizations

strong and weak point. The consensus allow smaller and weaker states to have their

voices heard and its non-binding nature allow members states to oppose an initiative that

run contrary to its national policies. It puts every member state in equal footing. On the

other hand, according to International Herald Tribune (1998) and Asiaweek (1998), since

the responsibility is spread among the group, no one member can be found accountable

for the consequences and it increases ASEANs political and economic diversity.

Consensus is unable to produce results on detrimental situations.

China and ASEAN Member States Discussions

Salleh, et. al (2009) presented an overview of Malaysia Singapore territorial

disputes over PedraBranca/PulauBatuPuteh, Middle Rocks and South Ledge. Both sides

claim that it is part of their territory. The Malaysian and Singapore governments both

agreed to settle the case under ICJ. In its Judgment, which is final, binding and without

appeal, by the ICJ the PedraBranca/PulauBatuPuteh belongs to Singapore, the Middle


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Rocks belongs to Malaysia and South Ledge belongs to the State in the territorial waters

of which it is located.

Wanandi (2001) quoted that the Indonesian foreign Minister during the 1995

ASEAN Regional Forum saying China gave the assurance that the Natuna Island is

Indonesias and any overlapping claims should be resolved in accordance with the

international law including the UN Convention on the Laws of the Sea. China also

reiterated that the South China Sea is not Chinas and it claims are only the Paracel and

the Spratly Islands.

Mak (2001) stated that China has its historical habit of dividing its foes and

picking them off one by one. In this case, it is necessary to view the South China Sea

dispute as an ASEAN problem rather than a bilateral issue. But thus proposal will not be

easily accepted by the present ASEAN leaders who prefer less formal approaches.

However, because the Spratlys issue involves nearly all members of ASEAN, a common

agenda would contribute to a better confidence and trust building. This common agenda

is important because the Spratlys issue is the biggest defense challenge of ASEAN

members involves in the South China Sea dispute.

Sulaiman (2012) contested that China does not need ASEAN to settle the dispute

on South China Sea as many analysts supporting its position have noted that for China,

the South China Sea dispute can only be solved bilaterally with the other claimants,

notably Vietnam and the Philippines. Philippines and Vietnam concluded they simply

cannot rely on ASEAN to back their claims inspite the organizations ongoing

discussions with Beijing on a code of conduct for the South China Sea. Philippines and


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Vietnam are courting the United States, another actor increasingly seen as a balancing

force against China in Southeast Asia. Furthermore, regarding the negotiations of China

to ASEAN member states, Crisis Group Asia Report N223 (2012) wrote that during the

July 2011 ASEAN Regional Forum, China agreed upon the guidelines of the

implementation of the Declaration of Parties in the South China Sea. This statement has

been already discussed between China and ASEAN countries. But in the view point of

ProfessorBuszynski (2004), the agreement of all parties to exercise self-restraint in the

conduct of the activities would complicate or escalate the disputes.

According to Mak (2001), the claimant states should compromise and adopt soft

approach towards China as the preferred option. But China is not using force and when

opportunity arises. Therefore, using soft approach towards China is not very effective

because China is known to be a political opportunistic and it will seize on any signs of

weakness. The ASEAN claimant states should also consider adopting hard-soft approach


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Foreign Studies


International Crisis group (2012) China described South China Sea disputes as

their Core interest, a term that usually reserved for the issues of national sovereignty like

in Taiwan, Tibet wherein it is clearly seen that China is unwilling to compromise its

position and would resort to force.

Description of the Spratlys Issue

Claim of Vietnam

International Crisis Group (2012) states that Vietnam claims both the Spratly and

Paracel island chains, they say that they are the one who first discovered and named

Spratly islands; the evidence is their Vietnamese maps and books as early as the 19th

century.

Claim of Brunei

ICG (2012) stated that UNCLOS speaks that there are two features that Brunei

can claim on Spratlys island the formations Louisa Reef and Rifleman Bank, and the

extends of EEZ around the southern section of the South China Sea. Their maritime and

territorial claim extends with Malaysias, and into China, Taiwan, Vietnam and

Philippines. They are also the only one who does not occupy any of islands and does not

have any military/armed existence in South China Sea.


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Claim of Malaysia

ICG (2012) stated that the claim of Malaysia in the southern Spratlys was since

2009. Among the features is the Swallow Reef, which has airstrip, military equipment,

and diving resort. Their claims originated from 1979 map (Peta Baru), which located its

continental shelf claim off Sabah and Sarawak states. They also clarified their claims

with Vietnam-Malaysia dual submission to the Commission on the Limits of the

Continental Shelf, even if it has never specified the area its claims from the islands itself.

Claim of the Philippines

ICG (2012) specified that the claim of the Philippines in the Spratlys is over 50

features. The Kalayan Islands Group was claimed in 1956 by Tomas Cloma, a Filipino

citizen. And during 1974, he transferred it to the government and President Marcos

declared that it was part of Philippine territory in 1978. The congress passed legislation to

change the baselines to submit with international law, in 2009. The act states that, the

Scarborough Shoal and the Kalayaan Islands, which are a far from Philippines

archipelagic baselines, beneath the rule of islands doctrine in UNCLOS. In the same year,

both Malaysia and Vietnam made a dual submission to UN Commission on their Limits

in the Continental Shelf concerning the claims to some parts of South China Sea.

Description of Parcel Island Dispute

Claim of Vietnam

International Crisis Group (2012) stated its historical claims to Paracel are

supported by the Frances statement in the early 1930s assert sovereignty over the

islands. Also, Vietnam keeps that Japans rejection to South China Sea islands in San


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Francisco Treaty did not specifically return the territories to China. The control and

administration in Spratlys have sustained complete during the Nguyen Dynasty (French

colonial government and Republic of Vietnam)

The Copenhagen Journal of Asian Studies (2004) stated the factors of impeding

ASEAN and the reasons why ASEAN is not a successful regional institution based on

Mattli and Webber. First reason is low and non-complementary intra-regional trade.

Second is Lack of undisputed leaders. Third is no central monitoring or third- party

enforcement.

Local Literatures

The organization has two mechanisms on conflict management relevant to the

interstate conflict within the ASEAN. First is the Formal Mechanism that includes the

Institutionalized Framework of Consultative Mechanisms, Institutionalized Bilateral

Mechanisms and Processes and Legal Instruments. The second mechanism is the

Informal Mechanism of Conflict management (Cario, 2008).

Hernandez (2001) quoted Ambassador Li Luye who wrote a letter to express his

views on the conference theme. He wrote that Chinas stand on the South China Sea issue

is very clear and it has indisputable sovereign right over Nan Sha Island (conflict with

Japan) but China is open to put aside disputes and seek for joint development and as far

as the ambassador has understood, all other countries concerned have also proclaimed

that they would follow the line of peaceful settlement and therefore, the discussion about

security implications of conflict in the South China Sea will not help to promote

understanding and solve the issue.


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A. Baviera (2012) estimated that the statement of Chinas Foreign Minister Yang

Jiechi at the 17th Asean Regional Forum in July 2010China is a big country and other

countries are small countries, and thats just a fact, is a proclamation that people on the

Chinese side may regret, as it may be quoted as representing an imperious attitude by

China toward its smaller and weaker neighbours. It may also be a statement that the

neighbours dread because it emphasizes difficulties in their future relations with China,

notwithstanding decades of economic and political engagement and charm offensive by

the regions rising power.

M. Abuggao (2011) wrote that the Cambodian Prime Minister Hun Sen said

hammering out a code of conduct with China in the disputed waters was a chief goal for

the 10-member Association of Southeast Asian Nations (ASEAN) and urged delegates to

give emphasis to working towards a code of conduct in the sea, which will provide

guidelines to resolving disputes over a web of conflicting territorial claims involving

several member nations.


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Chapter III

Methodology

Research Method

The researchers used historical descriptive method. This method understands the

background and growth of an organization that offer insight into organizational culture,

current trends, and future possibilities. The historical analysis encompasses origins,

growth, theories, personalities and crisis (C. Busha, S. Harter, 1980). Historical research

is the process of systematically examining the past events to give an account of what has

happened in the past. It is a flowing dynamic account of past events that involves an

interpretation of the events in an attempt to recapture nuances, personalities, and ideas

that influenced these events. It is used to identify the relationship of the past to the

present and to evaluate the accomplishments of individuals, agencies, or institutions (M.

Rowilson). Primary sources are the most required after in historical research. Primary

resources are first-hand accounts of information including personal diaries, eyewitness

accounts of events, and oral histories. Secondary sources of information are records or

accounts prepared by someone other than the person, or persons, who participated in or

observed an event. (G. Tuchman). This study traced and analyzed the historical

background of ASEAN and the disputes over the South China Sea to see the possible

factors of the disputes and the disunity of ASEAN.

The researchers also used the Content Analysis method. This method is similar

with historical method for it also analyzes documents, events and issues. These methods

are different in the sense that Content analysis method analyzes current documents and


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events. It is also referred as documentary analysis (Ariola, 2006). The researchers aquired

information from current documents and events in line with the disunity of stand of the

ASEAN towards the dispute on South China Sea between its members and Peoples

Republic of China.

The descriptive method is a form of interpretation of information through

discovery of the nature and the description of facts (De la Cerna et al., 2005). The

researchers chose the proper descriptive method which involves the analysis of different

printed materials such as books, journals, and other related articles. Through these

sources, the researchers came up with such study and further helped towards the analysis

of the subject

Research Design

Qualitative research is concerned with developing explanations of social

phenomena. It is characterized by its aims, which relate to understanding some aspect of

social life, and its methods which (in general) generate words, rather than numbers, as

data for analysis. It is also concerned with finding the answers to questions which begin

with: What, why, how and in what way? Qualitative data are collected through direct

encounters with individuals, through one to one interviews or group interviews or by

observation. Common data collection methods used in qualitative research focused in

groups, triads, dyads, in-depth interviews, bulletin boards, and observation. (B. Hancock,

2002)


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Data Gathering Instruments

The researchers used legal documents and other pertinent data on the inability of

ASEAN towards a united stand in the territorial disputes on South China Sea involving

ASEAN and member states and Peoples Republic of China.Other printed materials that

are relevant and necessary for the completion of this study such as books, journals,

periodicals, e-books, use of internet and undergraduate theses are widely used as

instruments of this study.

Primary sources. To be able to gather first hand documents, the researchers sought

concepts and ideas through gathering documents from Agreements, Treaties, ASEAN

Charter, and Meetings of ASEAN head of state.

Interviews. The researcher used interviews to gather raw and reliable data direct

from the subjects. The researchers interviewed other researchers with a related study or

personalities with expertise on this topic. The researchers sought to interview the

following:

Manuel Enverga III, Ph.D. cand, is an instructor of European Studies Program in

Ateneo de Manila University from 2008-present, a Lecturer of Department of Sociology

and Anthropology in Ateneo de Manila University from 2010 to present.

Sylvio Mahiwo Ph.D is a professor in Asian Studies of University of the

Philippines who specialized in South East Asian Studies.

Emmanuel Nolasco, Edwin Padrilanan and Robert Medillo Jr. are Political

Science instructors in the Department of Social Science of Adamson University


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News clippings. Through news articles the researchers gathered facts about events

regarding the overlapping claims in South China sea involving ASEAN members states

and Peoples Republic of China.


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Chapter IV

Presentation, Interpretation and Analysis of Data

This study focused on the inability of ASEAN to have a unified stand regarding

the territorial disputes on South China Sea involving ASEAN member states and Peoples

Republic of China. In the researchers pursuit ofa substantial study about the said topic,

they gathered different data related therein, presented and interpreted them in the most

convenient way, and analyzed them to answer the problems in this study.



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In 2009, the rivalry for maritime rights in the South China Sea had emerged as an

important security issue in East Asia. In fact, it was stated that the South China Sea is the

new central theater of conflict in the world (Fravel 2012). The main idea of the South

China Sea dispute is a series of complex, legal, technical and geographic components.

The issues involving territory and sovereignty are the most pervasive security

problems the region faced especially after the cold war. South China Sea was considered

to be the major flashpoint of conflicts in East Asia. The significance of this specific

nautical area is the assumed presence of natural resources such as oil, hydrocarbon,

manganese nodules and fish after the cold war. It is reason why it was d escribed as the

geo-political focus of South East Asia and became a pivotal area of East Asia. Its

strategic location is straddling as the worlds second busiest international sea lane in

South East Asia (Boonpriwan, 2012).Two of the ASEAN members, the Philippines and

Vietnam have territorial disputes with China over the Spratly Islands and the Paracel

Islands. The main reason is the abundance of natural resources supposed to exist in the

South China Sea. Claimant countries assert territorial rights by formulating various

domestic measures to secure their marine interests. Seizure of fishing boats and face-offs

between patrol ships and the navies occur intermittently nowadays between China and the

Philippines and between China and Vietnam (Sanae, 2012).

ASEAN forms the basis of a regional community of Southeast Asian states. It

embodies fundamental norms, values, and practices that have socialized the ASEAN

states over time into adopting a shared regional identity. But it seems that ASEAN

identity is relatively weak in comparison to other identities (Narine, 1966).


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The issue of the South China Sea dispute between ASEAN claimant states and

China will not be resolved because ASEAN itself cannot have a firm stand on the issue.

ASEAN has no capacity to mediate and it is limited to remindingits member states to adhere to International law and how the International

law is observed in their respective claims in terms of security and military

force. Compared to North Atlantic Treaty Organization that has itsmember states direct involvement together with the attacking force of

United States of America, malakas ang loob nila at tsaka NATO was

organized for utonical purposes. Ito ang kaibahan ng NATO paramakontra ang maaring gawin na drastic forces ng USSR. Though wala na

iyon may role pa din ang NATO to maintain peace dahil may military

capacity sila unlike ASEAN na wala naman talaga , kung iti-trace mo ang

history ng ASEAN ang purpose naman nila ay economic and cultural,hindi sila nag-aaspire ng regional security by way of having a regional

course to maintain such a condition of peace. Wala silang intention naganun kasi nga during that time they were living in a relative harmony

wala silang iniisip na giyera after world war II (Edwin Padrilanan,

personal communication, august 22, 2013)

ASEAN is not working alone because South East Asia is not just about ASEAN.

It is also about United States, Japan and Australia coming in. It is not just the concern of

SEA and in general, ASEANs stability is affected by its heritage differences because

they see the world differently. SEA is made up of multiple civilizationsthe Chinese,

Islamic, Hindu and the western. Because they are different culturally, they have different

ways of understanding the world so they have different understandings of very basic

things. The inability to unify, in the phase of an external opposition they are not going to

have a solid clear voice. Another feature of ASEAN is the way of forming a decision is

through consensus. It means that every country has a veto and if any country disagrees,

the policy will not push through. Any policy that ASEAN make is weak. It is very neutral

and if compared to the decision making of European Union where the decision making is

through voting, the good of the majority will be the decision. In ASEAN, any member


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even it is a minority country can overrule the decision of the group. The unity is a lot

weaker in ASEAN compared to the EU and maybe even to other regional organization

(Manuel Enverga, personal communication, August 1, 2013).


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South China Sea and the involved member states using their claims

Table 1.1 shows the basis of claims, significance of the Paracel Island and theapplicable rules on the claims of Peoples Republic of China, Republic of China (Taiwan)

and the Republic of the Philippines.

An Overview on the Paracel IslandThe Paracel Island is surrounded by productive fishing grounds and by potential oil and

gas reserves.

Concern China Taiwan VietnamBasis of Claims

*China produced amap with nineundefined dotted lines

*It claimed all theislands within the

nine-dash line. A1992 Chinese law

restated its claims inthe region.

*China had occupied

some of those islands.And in 1976, China

enforced its claimupon the ParacelIslands by seizing

them from Vietnam.

* China refers to the

Paracel Islands as theXisha Islands, andincluded them as part

of its Hainan Islandprovince.

*Taiwan's claims aresimilar to those ofChina.

* Vietnamacknowledgeshistoricalclaims to Paracel. It is

supported by theFrances statement in

the early 1930s assertsovereignty over the

islands.

* Vietnam contendsthat Japans rejection

to South China Seaislands in San

Francisco Treaty didnot specifically meanto return the territories

to China.

* The control andadministration in

Spratlys have sustainedcomplete during the

Nguyen Dynasty(French colonialgovernment andRepublic of Vietnam)

Significance of the

Paracel Island*Hydrocarbon

*Fisheries

-----SAME------ -----SAME------

Applicable rules: *Historical claim, *Abandonement and Occupation, *Terrorium Nullius


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Table 3.1 shows the basis of claims, significance of the Spratly island group andthe applicable rules on the claims of Peoples Republic of China, Federation of Malaysia,

Socialist Republic of Vietnam and the Republic of the Philippines.

Overview on the Spratly Island Group

This Island consists large number of banks, reefs and cays. Spratly is considered importantbecause of the following (1) the land mass establish important sea lanes for commerce andtransport materials in the South China Sea. (2) the assumption that it seabed is holding the largestoil deposits in the world (3) it encompasses some of the richest living resources (4) controlling

this island means controlling the sea lanes from the Persian Gulf in the West to the South ChinaSea and the Pacific.

Concern China Vietnam Malaysia Philippines Brunei

Basis of

Claims

*Acknowledgesthe rule of

historicalwritings such as:

-Yuan dynastyproclamations

*Claiminghistoric title,

the claim ofVietnam overthe island istraced back in1927when the

government ofFrench sent

ship DeLanessan on

an expeditionto the island.

*1956,Vietnam sent

patrols to thearea.

*It is the recentactive claimant.

They issued anew officialmap in 1980which claimingcontinental

shelf in aportion of

Spratly group .

*Based on theright of coastalstate to

continentalshelf.

*Claimingtitle to the

occupationand

proclamationmade byThomas

Cloma.

*Using legalgrounds in

claiming theisland alsoknown as

Presidentialdecree

No.1596

Significanc

e of the

ParacelIsland

*Economic- thediscovery of Oil

became vital*Strategic- it isimportant

because of itslocation and the

sea lane whichused by all

---SAME---- -----SAME---- ---SAME--- --SAME-

--

Applicable Rules:*Historic Claim*Abandonment and Occupation , *Contiguity or PropinquityTheory, * Terrus Nullius


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This figure shows the manner of institutionalizing the territorial disputes in South China Seawherein Vietnam and Philippines is recognize the presence of United States particularly in

military presence this both countries involving other non-claimant states to discontinue theincrease pressure of China. They are focusing on their efforts to ensure that they have a strong

expanding and deepening relations with U.S and other concerned countries liked Japan, SouthKorea and Australia. With the tensions that rise on past few years Philippines eager to pursuemilitary cooperation with U.S and Vietnam is also strict to carefully

Sources: Stirring up the South China Sea (II): Regional Responses

Crisis Grou Asia Re ort N229, 24 Jul 2012

Institutionalizing

the Territorial

Disputes Issue

Role of

United

States

Chinasperspective

on US role

Involvement of

other non-

claimant

*The greater military

presence United States to

mitigate the increase

tensions of China in SCS.

Vietnam government

opened the door to

U.S presence in theAsian waters.

Philippines engaged to

U.S military to

enhance its control

over the disputes

China has threefold

goal:1. Deepening claimant

countries economic

dependence on China.

2. Continuousdevelopment on the

disputed areas.

3. Avoidingconfrontation with U.S

By encouraging other

countries to support like

Japan, South Korea and

Australia to counter

balance the disputes and

strengthening Vietnam

and Philippines.


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1. Specific Question No 1.Why is ASEAN unable to have a unified stand on the

territorial dispute in South China Sea between member states and Peoples Republic

of China?

ASEAN is facing its failure to create a unified stand over the issue and it is

identified to be unsuccessful in controlling over the South China Sea. One of the major

reasons is the structure of the organization. The ASEAN Ministerial meeting is the

highest decision making body of the ASEAN and therefore this body creates the policies

and the course of actions taken by the organization. Given the reasons of cultural, social

and political difference of the states, the member states had led to a creation of a regional

organization that will protect their individuality through ASEAN way where a decision

making is based on the approval or disapproval of every state and not through the

affirmation of the majority.

The norms of non-interference cannot pursue other member state to follow.

However, the principle of non-interference ASEAN is strong since they can maintain and

keep their members in through not intervening with their domestic affairs. On the other

hand, ASEAN is weak because they cannot come up with concrete strong policies

regarding how to solve regional issues because it has an inability to face Peoples

Republic of China in terms of the controlling territorial dispute in the South China Sea.

The first reason is the members of the ASEAN are weak states since most of the South

East Asian countries were under a colonial rule. Furthermore, they did not fully

developed their bureaucracies which means they are still working on how they will

recover from the colonialist mentality and damages. By that they are really unable to

come up with a consensus policy that is applicable to all since politically, they cannot


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intervene with each other. ASEAN is existent only for economic and cultural integration.

However, in terms of political matters such as successful integration and pursuing

binding policies, ASEANs capability is meagre. Because territorial claims are of

political nature, having a single approach to solve the problem is formidable for the

regional organization. In other words, ASEAN member states have remained weak

because they have to solve their domestic problems and give less attention to

international problems such as territorial disputes. Second reason is in relation to the

continuous involvement of great power in the region especially the involvement of

United States. U.S. considers itself as the pivot in Asia. (Robert Joseph Medillo, personal

communication, August 22, 2013).

The consensus norm in ASEAN is both its strong and weak point. It allows

smaller and weaker states to have their voices heard and the non-binding nature allows

the members states to oppose an initiative that will appear to be contrary to its national

policies. ASEAN puts every member state equally (Guan 2004). Since the responsibility

is spread among others, no member state can be found accountable for the concerns and it

also increases the ASEANs political and economic diversity. The consensus is powerless

to produce or to come up results on the territorial disputes (International Herald Tribune

and Asiaweek 1998). In connection with this, the inability of ASEAN to have a unified

stand or to have a successful integration is tied to a political culture which holds

sovereignty and non-interference sacred. ASEAN faces a tougher time to create

institutional structures that increase integration because it is covered within its norms. It

lacks third party enforcement or commitment institutions. The member states are not

willing to shift towards any decision making authority to a higher supranational bodies.


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Any bilateral disputes that arise between the member states are mostly handled through

quite diplomacy where the organization is not involved. ASEAN provided a passage to

manage and resolve territorial disputes among its members as a respond to its lack of

commitment institutions. But in the end it cannot resolve the issues (Guan 2004).

Another reason why ASEAN does not have a unified stand on the territorial

dispute in the South China Sea between member states and Peoples Republic of China is

because four of the ASEAN member states have their own claims in territory of South

China Sea. In realist perspective involves a sovereignty or sovereign power over the

territory. The conflict here is about who has the right to the territory. There is ASEAN

nonetheless it is not for political entity that will dictate to each member states what they

will do. It is created because for economic cooperation, but one cannot expect that the

ASEAN will have a unified stand among the member states (Nolasco, personal

communication, August 22, 2013).

ASEAN will play a role to the solution of the problem however, it will take some

process because some other members of ASEAN are not convinced that they have to be

involved. ASEAN wants to be involved in the solution but repelling will only occur in the

involved countries. A member who is not a party to the dispute will give its stand it will

just invite trouble for them. So as an organization ASEAN, what is its role to settle the

dispute and coming up with an acceptable solution to this problem that is acceptable to

the claimants? If ASEAN says that it is a territorial dispute for ASEAN, they will have to

be involved but it is only within the four so it cannot be called as an ASEAN territorial

claim. ASEAN has an interest regarding peace, freedom of navigation in the South China

Sea so ASEAN should help to promote a situation when there is peace. It is up to the


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member countries to convince their fellow members to join. The claimant countries

should convince the other countries to side with them so they could have unity. This issue

is not an ASEAN dispute however, the organization is unified in terms of peaceful

settlements and human rights since these are for the benefit of all member states. The

ASEAN is not for a unified stand in the dispute but unified stand in the amicable and

peaceful settlements. The ASEAN way has both weakness and strength. It is weak

because the decision making is slow and they cannot come up with a common decision.

Its strength is because it keeps its member states in the organization. ASEAN way

respects sovereignty and non-interference (Sylvio Mahiwo, personal communication,

September 10, 2013).

ASEAN cannot come up with official stand or decision about the issue because

most of the member states have its own claim in the territory in South China Sea and

connect each of their position with the international body. Only the United Nations can

resolve the territorial dispute by way of having the use of policies that they formulate

prior to the emergence of the issue. ASEAN cannot come up with a single stance because

they know that the ASEAN itself cannot assert its will to the issue because a declaration

about the issue would be self-serving in a way that the member states will take their side

and they will use the organization to resolve the issue. ASEAN knows that they

themselves cannot resolve the issue because it is not simple regional dispute; the dispute

itself has an international character (Edwin Padrilanan, personal communication August

22, 2013).


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Specific question no. 2 How will a unified stand affect the resolution of the territorial

dispute between ASEAN member states and Peoples Republic of China?

Having a unified stand on the issue of South China Sea has its advantages and

disadvantages.

European Union is able to have a declaration regarding border disputes of their

member states between states of other regional blocs. The organization will release a

statement that the disputed territory is a possession of their member states. The statement

will serve as a strong voice to move the decision towards the resolution of the dispute on

their side. The statement is a helping hand in pursuing the interest of their member state

(Fravel, 2006)

A unified stand from a regional organization will create an impression to the

international community that the organization has its strong will and a manifestation of

the camaraderie of its member states. This way, a message is implied to the community

that any of the member states of this organization cannot be underestimated because the

union they are in is courageous enough to stand for its members.

A united stand on the issue of the South China Sea between the ASEAN member

states and the Peoples Republic of China is a significant however in a given parameter.

A unified stand may secure the involved states since the organization is their bedrock for

their claims in the disputed waters nonetheless it would not be the means to end the

dispute.

The disadvantage starts from the fact that ASEAN member state themselves have

overlapping claims. It is a historical habit of China to divide its foes and picking them off


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one by one and one possible strategy for ASEAN to resist the result of Chinas trap is to

be united rather than treating the conflict in the view point of bilateralism. The problem is

that the present ASEAN leaders prefer less formal approaches (Robert Joseph Medillo,

personal communication, August 22, 2013). The behaviour of ASEAN leaders is affected

by the binding norm of neutrality and non-interference. Passive states in the face of the

subject conflict is a manifestation of their fear of the trouble it will cause between them

and Peoples Republic of China in terms of security, economy and even the safety of their

citizens in mainland China.

The Philippines declared its assertion in the Scarborough Shoal against China

through State of the Nation Addresses of Philippine President Benigno Aquino III in

2011 and 2012. China in return, embargoed the bananas of the Philippines claiming that it

is infected by fruit flies. This situation is avoided by the non-involved states hence, they

stayed neutral in the SCS conflict.

If ASEAN in the future produce their declaration in the SCS conflict, it would be

effective only in asserting that China is not in accordance with the UNCLOS to acquire

any parcel or resources in South China Sea because of the defining Exclusive Economic

Zones stated in the aforementioned UN Convention law. But it will not be a cast-off to

settle the claims of the four member states. The involved states must convene that after a

united stand but it will not be admissible for them to plead another stand for their own

interest against any member state. Cooperation within the disputed waters by the

involved states would be a better decision.


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Evidently, with the norm of neutrality and non-interference, a unified stand is not

an end to the SCS conflict because it will not end the territorial conflict within member

states because the stand will not take side in the expense of other members. The stand is

intended for the benefit of the whole and not to take side whether one of the member

states will solely own a disputed territory. The SCS dispute is not a conflict between two

states of different regional bloc. It is a complex issue involving co-members states and a

distant neighbour. Reconciling its member states that has their own territorial dispute is

the toughest test of ASEAN as an organization

Because the Spratlys issue involves nearly all members of ASEAN, a common

agenda would contribute to a better confidence and trust building. This common agenda

is important because the Spratlys issue is the biggest defense challenge of ASEAN

members involves in the South China Sea dispute (Mak 2001). The unified stand of

ASEAN is not against its own member states, but to a third party state involved in the

conflict.

China does not need ASEAN to settle the dispute on South China Sea as many

analysts supporting its position have noted that for China, the South China Sea dispute

can only be solved bilaterally with the other claimants, notably Vietnam and the

Philippines. Philippines and Vietnam concluded that they simply cannot rely on ASEAN

to back their claims inspite the organizations on-going discussions with Beijing on a

Code of Conduct for the South China Sea. The Philippines and Vietnam are courting the

United States as another actor increasingly seen as a balancing force against China in

Southeast Asia. Furthermore, regarding the negotiations of China to ASEAN member

states, during the July 2011 ASEAN Regional Forum, China agreed upon the guidelines


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of the implementation of the Declaration of Parties in the South China Sea. This

statement has been already discussed between China and ASEAN countries (Crisis Group

Asia Report N223, 2012). The agreement of all parties to exercise self-restraint in the

conduct of the activities would complicate or escalate the disputes (Sulaiman 2012)

The claimant states should compromise and adopt soft approach towards China as

the preferred option but China will exhibit offensive force when opportunity arises.

Therefore, using soft approach towards China is not very effective because it is known to

be a political opportunistic and it will seize on any signs of weakness. The ASEAN

claimant states should also consider adopting hard-soft approach (Mak 2001).

If the ASEAN convey to the international community that they are united on the

SCS issue, against the China, China will hesitate to use hard power to claim the whole

SCS.

Specific Question no. 3 How will ASEAN affect the individual member states in the

conduct of their foreign relations in time of disputes?

Nature of ASEAN and its Structure

Association of South East Asian Nation or (ASEAN) was established in August 8,

1967 in Bangkok, Thailand by the five original member states namely: Indonesia,

Malaysia, Philippines, Singapore and Thailand. The primary objectives of this regional

organization was stated in ASEAN Declaration that the association will accelerate

economic, social growth and cultural development among the region to ensure a peaceful

and prosperous community and also to promote regional stability through the attitude of

respecting the justice, the rule of law in their relationship with other countries members


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and adherence to the principle of the United Nations Charter.(ASEAN Regional Forum,

Annual Security Outlook 2001).

This photograph shows the ten official members of ASEANBrunei, Cambodia, East Timor,Indonesia, Malaysia, Myanmar, Laos, Philippines, Singapore, and Vietnam.

ASEAN aims to accelerate the economic growth, social progress and cultural

development in the region through joint endeavors and to promote regional peace and

stability through abiding respect for justice and the rule of law. Its vision is a concert of

Southeast Asian nations, outward looking, living in peace, stability and prosperity,

bonded together in partnership in dynamic development and in a community of caring

societies (Vannak, 2006).


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This table illustrates the organizational structure of the Association of South East AsianCountries. There are four main bodies in the organizationthe ASEAN Economic Ministers,ASEAN Ministerial Meeting, ASEAN Finance Ministers Meeting and others that hold controlsthe different committees regarding specific concerns for the betterment of the member states.Under the ASEAN Economic Ministers is the Senior Economic Officials Meeting. Under the

ASEAN Ministerial Meetings are ASEAN Standing Committee, ASEAN Secretariat and theSenior Officials Meeting. Under the ASEAN Finance Ministers Meeting is the ASEAN SeniorFinance Officials Meeting.

The manner of selection of the ASEAN Chair and Vice Chair is based on

alphabetical rotation of all ASEAN Member Countries. The Ministerial meetings deal

with different concerns that are within the interest of the ten member states. It focuses

mainly on agriculture and forestry, trade, energy, environment, finance, information,

investment, labor, law, regional haze, rural development and poverty alleviation, science

and technology, social welfare, transnational crime, transportation, tourism, youth, the

AIA Council and the AFTA Council. There are 29 committees of senior officials and

122 technical working groups supporting these ministerial bodies. The ASEAN Summit

is headed by a Joint Ministerial Meeting (JMM) that is composed of Foreign and

Economic Ministers. Under the Chairmanship of the Foreign Minister of the country-in-


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chair, the ASEAN Standing Committee is mandated to consolidate the work of the

Association in between the annual ASEAN Ministerial Meeting (AMM).

The ASEAN Secretariat

The ASEAN Secretariat is chaired by the Secretary-General of ASEAN. It is

mandated to initiate, advise, coordinate, and implement ASEAN activities. The

operational budget of the ASEAN Secretariat is prepared annually and funded through

equal contribution of all ASEAN Member Countries (Vannak, 2006).

Principles of ASEAN in Connection with ASEAN Decision Making

Conferring to the ASEAN Charter, the ASEAN is bound to respect the

fundamental importance of amity and cooperation, and the principles of sovereignty,

equality, territorial integrity, non-interference, consensus and unity in diversity. The

organization also adheres to the renunciation of aggression and of the threat or use of

force or other actions in any manner inconsistent with international law, reliance on

peaceful settlement of dispute, non-interference in the internal affairs of ASEAN Member

States and enhanced consultations on matters seriously affecting the common interest of

ASEAN. The integration of ASEAN would consider having a solid foundation through

supranational executive body anchored on treaties, intergovernmental legislative body

founded on treaties and a supranational court of justice. This model is being used by the

European Union and the rule of majority shall prevail and not consensus as a basis of a

decision.

The highest decision-making body in ASEAN is the annual meeting of the

ASEAN Heads of State and Government. ASEAN has eleven Dialogue Partners namely


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Australia, Canada, China, European Union, India, Japan, New Zealand, Republic of

Korea, the Russian Federation, the United States and the United Nations Development

Program.

Their integration is tied to a political culture which holds the principle of

sovereignty and non-interference vital (Guan, 2004). This is manifested through the

organizations way of decision makingthe ASEAN way. Compared to the European

Union where the organizationsdecision making is through voting and the majority will

decide for the good of all the members, ASEAN decides through consensus. All the ten

member states have their veto power. Any member, even a minority country can overrule

a decision. This kind of decision came from the principle of decision making from the

Javanese to resolve political and personal differences (Hacke, 2003).

The consensus allows smaller and a minority state to be considered and its non-

binding nature allow member-states to oppose an initiative that run contrary to its

national policies and customaries. It puts every member state in equal footing (Guan,

2004). The responsibility is spread among the group, no member can be found

accountable for the consequences and it increases ASEANs political and economic

diversity. This way of decision making of ASEAN provides and inter-governmental sense

of regional identity that the organization cannot pool a sovereignty in a way that is

beneficial for the entire region. The organization has not yet to integrate dissimilar

political cultures of its member states by having a super structure of politics. This

structure is only viable if the member states are able to change its different government

structure into a more homogenized form of political set-up (Pitsuwan, 2001). The

ASEAN way avoids bureaucratic and supra-national arrangements and re-affirms the


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principles of national sovereignty and non-interference in the domestic affairs of other

states. Hence, the Association offers a unique model of cooperation based on specific

cultural attributes. ASEAN way provides an informal process of interaction within the

ASEAN framework through which the member states communicate to each other and

reach out with the avoidance of common decisions. It has existed as an abstract of a

vague concept for it consists the features of high level of informality, the practice of

quiet diplomacy, the art of conflict avoidance, exercise of self-restraint, solidarity and the

practice of consensus (Emmers, 2003).

Despite the critics of the ASEAN way, it is considered by some academicians as

strength of the organization. Because it puts every member nation into equal footing

during decision making it keeps its member from withdrawing from the organization

(Mahiwo, personal communication, 2013). If compared to European Union members

culturally, ASEAN members are diverse. Europe is a very old region and it was perceived

as a region way back ancient Greece. They recognize that they are part of one region and

represent one cultural universe, one cultural heritage, one way of thinking about the

world, one set of symbols inspite of their different languages. Whereas in South East

Asia, a region that was invented by the British and the American is World War II to label

that part of the world for them to send their ships easily since these two nations have

colonies in Asia during pre and post-World War II. These states were not aware for a

long period of time that the region existed. Each state has a diff

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