i
THESIS
Maritime Diplomacy by Indonesia:
Governing the South China Sea dispute Muhammad Dedy Yanuar MSc of International Development Studies Public Administration and Policy Group Wageningen University and Research August 2019
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Exploring the maneuvers of the Government of Indonesia with regard to the various and
overlapping claims to territorial sovereignty over the South China Sea
M.Sc. THESIS
Muhammad Dedy Yanuar
STUDY PROGRAM: M.Sc. International Development Studies (MID)
Specialization on Politics and Governance of Development Group of Public Administration and Policy (PAP)
Wageningen University and Research (WUR)
STUDENT NUMBER: 940130585030
SUPERVISOR: Dr. Otto Hospes
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Table of Contents Listofabbreviation_______________________________________________________________________________1Acknowledgements_______________________________________________________________________________3Abstract_____________________________________________________________________________________________41. INTRODUCTION_______________________________________________________________________________5
1.1ProblemStatement ____________________________________________________________________________51.2ResearchObjectives ___________________________________________________________________________81.3ResearchQuestions____________________________________________________________________________81.4StudyOutline____________________________________________________________________________________9
2. THEORETICALFRAMEWORK_____________________________________________________________10
2.1Sovereigntygames____________________________________________________________________________112.2Tracktwodiplomacy_________________________________________________________________________12
3. METHODOLOGY_____________________________________________________________________________15
3.1TypeofResearch______________________________________________________________________________153.2MethodsUsed__________________________________________________________________________________163.2.1DocumentAnalysis__________________________________________________________________________________163.2.2Semi-StructuredInterview ________________________________________________________________________18
4. FINDINGS_____________________________________________________________________________________21
4.1ResultsofDocumentAnalysis_______________________________________________________________224.1.1ActorsandmovesintheSouthChinaSeadispute______________________________________________224.1.2InterpretationofSovereignty_____________________________________________________________________304.1.3TrackOneandTrackTwoDiplomacy____________________________________________________________374.1.4Conclusion____________________________________________________________________________________________42
4.2ResultsofInterviews_________________________________________________________________________444.2.1Actors,Moves,andRulesintheSouthChinaSeaWorkshop _________________________________444.2.2ViewsonSovereigntybyInterviewees___________________________________________________________534.2.3IndonesiandiplomaticskillsintheSouthChinaSeadispute_________________________________604.2.4Conclusion____________________________________________________________________________________________66
5. DISCUSSION__________________________________________________________________________________68
5.1SouthChinaSeaWorkshopasanArenaofDialogue_____________________________________685.2SovereigntyandTrackTwoDiplomacy____________________________________________________715.3Indonesia’sroleasabrokerintheconflict________________________________________________755.4Futureresearch________________________________________________________________________________77
6. CONCLUSION________________________________________________________________________________79REFERENCES______________________________________________________________________________________80
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List of abbreviation
ARF ASEAN Regional Forum
ASEAN Association of Southeast Asian Nations
CBM Confidence Building Measure
COC Code of Conduct
CUES Code of Unplanned Encounters at Sea
DOC Declaration on the Conduct
EEZ Exclusive Economic Zone
FMPRC Foreign Ministry of People’s Republic of China
GE Group of Expert
GMF Global Maritime Forum
ICJ International Court of Justice
ITLS International Tribunal for the Law of the Sea
JSTOR Journal Storage
MoFA Ministry of Foreign Affairs
NATO North Atlantic Treaty Organization
NGO Non-Governmental Organization
PCA Permanent Court of Arbitration
PRC People’s Republic of China
SCS South China Sea
SCSW South China Sea Workshop
SDNT Single Draft Negotiating Text
SEA-NET South East Asia Network for Education and Training
SOM Senior Officials Meeting
T1 Track One
T2 Track Two
TAC Treaty of Amity and Cooperation
TWG Technical Working Group
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UN United Nations
UNCLCS United Nations Commission on the Limits of the Continental Shelf
UNCLOS United Nations Law of the Sea Convention
UNSC United Nations Security Council
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Acknowledgements
After having a quite long time, yet intensive, thesis period within 12 months, I
eventually finished my master thesis as the main requirement to graduate at the
University. During the process, I obtained a lot of invaluable academic experience
and skills. Not to mention, conducting interviews with several government officials of
Indonesia has been widening my networks, which would be an important asset for
my professional career in the future. The process of writing master thesis has also
been forging me to be not only a tough master student, but also an individual who
has a persistent and robust character, which played a pivotal role in developing my
leadership. Therefore, I would like to thank several people who were involved and
significantly contributed to the accomplishment of my thesis.
First of all, I would like to express my heartfelt thanks to my family who became a
tireless supporter for me and who were always available when I needed their
support. Secondly, I am extremely thankful to my academic supervisor, Dr. Otto
Hospes, for his extraordinary support and for constantly supervising me so that I
could eventually improve the quality of my master thesis.
Thirdly, I would like to express my deepest gratitude to the Nuffic Neso Indonesia for
rendering me the financial assistance through its StuNed (Studeren in Nederland)
scholarship program, which covered all expenses of my master’s degree program at
the Wageningen University and Research, the Netherlands. Finally, I would also like
to convey my deepest appreciation to all interviewees, for their significant
contribution in providing me a lot of necessary information and knowledge as an
important data for my thesis.
Above all, praise be to Allah SWT, the Almighty God who has always been guarding
and guiding every single process of my life. Alhamdulillah!
Muhammad Dedy Yanuar
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Abstract
Since the territorial disputes over the South China Sea have been acknowledged as
a major problem in the international politics, a number of efforts have been
attempted to resolve this particular conflict. However, none of the formal,
international institutions and meetings did work effectively: the official meetings of
UNCLOS and ARF failed to directly resolve the conflict. Noticing this failure,
Indonesia offered an alternative solution to mediate the SCS dispute: informal
workshops. This thesis addresses the role of the Government of Indonesia in using
the informal workshops to mediate in the international conflict on the South China
Sea and how the Government copes with different sovereignty claims in this conflict.
As such, this thesis seeks to answer the following main research question: How has
the Government of Indonesia maneuvered among the various and overlapping
claims to territorial sovereignty of the claimants in the South China Sea dispute? In
order to answer the main research question and also to get better understanding of
the players, moves, and rules in the informal workshops, this thesis uses two
concepts: sovereignty games and track two diplomacy. Document analysis and
semi-structured interviews with several Indonesian government officials, scientists
and experts, have been conducted as research methods to generate data. My major
finding is that the most important way in which Indonesia used the informal
workshops to maneuver over the territorial and maritime disputes of the claimant
states in the South China Sea was to depoliticize the issues, to build trust and to
focus on technical discussions. Three main arguments have been addressed: Firstly,
the informal workshops as an arena of dialogue have been effective to build trust
and mutual understanding amongst the conflicting parties in the South China Sea.
Secondly, given the track two diplomacy is the backbone for any kind of progress,
the informal politics is the most important in dealing with the international dispute.
Lastly, Indonesia as a sovereign state needs to keep its independency in terms of its
sovereignty and importance, however, at the same time Indonesia as a mediator has
to keep maintaining its diplomatic relationship with the claimant states at the bilateral
level, in order to make all of them remained on board.
Keywords: South China Sea disputes, Indonesia, informal workshop, sovereignty,
track two diplomacy.
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1. INTRODUCTION
1.1 Problem Statement
The dispute of South China Sea (SCS) has been recognized as an endless big issue
in the international politics (Sempa, 2018). According to Sempa (2018), due to the
Chinese claims towards the territorial sovereignty over SCS identified as the so-
called the nine-dash line policy, these claims certainly overlapped several countries’
maritime sovereignty mostly situated in the South East Asia such as Philippines,
Vietnam, Malaysia and Brunei. Meanwhile, the United States, albeit not a claimant,
has also attempted to interfere in this regional dispute by whistleblowing the issue of
freedom of navigation with the purpose to confine the Chinese hegemony of claiming
islands mostly situated over SCS.
In 2016, the Philippines won a decisive victory on a high-tension debate against
China regarding the China’s historic rights and nine-dash line in the Permanent
Court of Arbitration (PCA) under the United Nations Law of the Sea Convention
(UNCLOS) at The Hague, the Netherlands (Almond, 2016). However, according to
Panaligan (2018), China did not accept the decision of the court as China perceived
that the court lacked the jurisdiction or legal position over the dispute. China also
argued that her territorial sovereignty in the SCS could not be intervened by any
means; only China can deal with its maritime delimitation rights, and consequently,
the outcome of arbitration will not affect China’s sovereignty over the SCS
(Chaudhury, 2018). For that matter, China eventually perceived this result as a fatal
jurisdictional flaw and would never recognize the arbitration process and the
credibility of the PCA (Almond, 2016).
The maritime and territorial dispute in the SCS has been occurring for decades
involving six countries; Brunei, China, Malaysia, Philippines, Taiwan, and Vietnam
(BBC, 2016b). Since 1952, China has claimed SCS with the so-called nine-dash line
policy which occupied several islands that were included in the territorial sovereignty
of those countries (Beech, 2016). According to Gao and Jia (2013), there are three
meanings of the nine-dash line policy. First, it serves as a line which preserves both
its title to territory and its historic rights. Second, it represents the title to the island
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groups that it encloses. Within the nine-dash line, China has claimed sovereignty
and jurisdiction over the islands in SCS where China presumes that this claim is
relevant with the UNCLOS principles which are waters, seabed, and subsoil are
adjacent to those claimed islands and insular features. Third, it claims to be based
on Chinese historic rights in fishing, navigation, and other marine activities such as
oil and gas development in the waters and on the continental shelf surrounded by
the line.
Interestingly, Chen (2018) argued that while China is a legitimate member of
UNCLOS, China seemed unwilling to abide by the UNCLOS stipulations and never
defined the legal meaning of the nine-dash line policy. According to the Article 57 of
UNCLOS, every unknown object (land and water) orbiting around 200 miles from a
legitimate territorial area or Exclusive Economic Zone of a country belongs to that
particular country (UNCLOS, n.d.). However, Beijing has been constructing the
reclamation of small islands and building military settlement in the areas which are
not recognized as a sovereign territory by UNCLOS (Chellaney, 2018; France-
Presse, 2017). Accordingly, it seems that UNCLOS has not been working effectively
to halt Beijing in claiming the islands situated in the SCS, that according to UNCLOS
standards falls under the territorial sovereignty of another country.
Since UNCLOS could not serve as a podium to resolve the dispute, the claimants
turned to ASEAN as a regional platform because most of the disputants are included
as ASEAN member states such as Malaysia, Philippines, Brunei, and Vietnam.
ASEAN started to view the security situation in the SCS, and particularly the
perceived Chinese expansion southwards, as critical after the end of Cold War. The
need to be able to solve the conflicts became alarming and ASEAN jointly declared
the following in Singapore in January 1992:
ASEAN could use established fora to promote external security dialogues on
enhancing security as well as intra-ASEAN dialogues on ASEAN security
cooperation (ASEAN, 2012).
This indicates that ASEAN sees for itself the new great ambition as a security
creating body in the region. As a reaction to China’s increased presence in the
region, the Foreign Ministers met in Manila, June 1992. This led to the ASEAN
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Declaration on the South China Sea that points out the importance of peaceful
cooperation. The declaration spells out the fundament for resolving maritime
disputes with multilateral negotiations. This is the first formal declaration directed
towards the SCS dispute, and primarily towards China. This treaty is a formalization
of the multilateral negotiation process (Swanström, 1999).
Subsequently, ASEAN established an instrument in July 1994 to discuss this security
issue over SCS, namely the ASEAN Regional Forum (ARF) which aims to act as a
forum that includes all regional actors and the most important external actors to
handle the conflicts, prevent tension, and potential conflicts from becoming
militarized (Swanström, 1999). This particular way can be seen as the ’first track
diplomacy’ (track one diplomacy) that Diamond and McDonald (1996) described it as
an official government diplomacy whereby communication and interaction are
between governments. Likewise, Nan (2003) reiterates the implementation of the
first track diplomacy in conflict resolution is highly influenced by the interwoven web
of international relations amongst relevant governments. In this context, the
establishment of the ARF serves as a platform for ASEAN to intensely negotiate over
this maritime delimitation problem with the government of China.
Nonetheless, according to Swanström (1999), China refused to accept ARF as an
alternative solution because the issue of SCS would be internationalized by the
Philippines through promoting the objection of Spratly islands that were claimed by
China at the ARF-Intercessional Support Group on Confidence-Building Measures in
Bangkok, March 3-5 in 1999. China did not want this issue to be discussed through
ARF. Instead, China preferred to resolve this case through bilateral meetings.
Consequently, the platform of ARF within ASEAN supervision was not working
successfully to acquire Chinese commitment, let alone agreement, over disputed
islands in the SCS.
Considering the urgency of this security situation over SCS, some other ASEAN
member states such as Singapore, Indonesia, and Thailand offered to mediate the
conflict. However, due to the inadequacy of the first track diplomacy, “only ‘second
track diplomacy’ (track two diplomacy) which is a diplomacy in the form of informal
consultations, conferences, and research projects facilitated by Indonesia has been
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effective in getting China around the table with other claimants” (Swanström, 1999,
p. 119).
Since the beginning of the 1990s, Indonesia has organized the informal workshop on
managing potential conflicts in the South China Sea which is globally known as the
South China Sea (SCS) Workshop. It was initiated by Indonesian former diplomat,
Prof. Dr. Hasyim Djalal, “a leading authority on ocean law and policy and one of the
most influential participants at the Third United Nations Conference on the Law of
the Sea” (Song, 2010, p. 256). This workshop serves as an arena of dialogue aiming
to manage potential conflicts by exploring areas of cooperation among the littoral
states in the SCS area (Song, 2010). Considering the failure of UNCLOS and ARF to
solve the SCS dispute, it is interesting and relevant to investigate whether this
informal workshop has accommodated dialogue and been effective in addressing the
sovereignty dispute in the SCS.
1.2 Research Objectives
This thesis report is about the role of the Government of Indonesia in using
workshops to mediate in an international conflict on the South China Sea and how
the Government copes with different sovereignty claims in this conflict. The objective
is threefold: Firstly, to contribute to the debate on whether the SCS workshops as an
arena of dialogue can contribute to a lasting solution in the conflict over the SCS.
Secondly, to contribute to the debate on sovereignty and the role of track two
diplomacy in it, using the concept of sovereignty games. Thirdly and related to this,
the objective is to characterize the role and diplomatic skills of Indonesia in the SCS
conflict as a broker, mediator and/or negotiator in the conflict.
1.3 Research Questions
Based on the problem statement and objectives above, my research question is; How has the government of Indonesia maneuvered among the various and
overlapping claims to territorial sovereignty of the claimants in the South China Sea dispute?
To answer this question specifically, this research will address the following sub-
questions, as follows:
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Sub-questions: 1. How can the talks and negotiations be characterized at the SCS workshops in
terms of actors, moves, and players?
2. What different notions of sovereignty have been used by countries in the SCS
workshops? Have the workshops and particularly the role of Indonesia
changed the ways in which sovereignty has been used by the different
claimants? If so, in what way and with what result for the negotiation process
and outcome?
3. What kind of diplomatic skills have been used by the Indonesian Ministry of
Foreign Affairs before, during, and after the SCS workshops?
a. What skills have been used by the Indonesian MoFA to get different
players around the table?
b. What skills have been used by the Indonesian MoFA to set the
agenda?
c. What skills have been used by the Indonesian MoFA to reach
consensual decisions at the SCS workshops?
1.4 Study Outline
Chapter 2 will explain about the main key concepts used to answer the main
research question. The conceptual framework consists of sovereignty games by
Hansen and Nissen (2016) and track two diplomacy by Montville (1991). The
concept of sovereignty games will provide explanation about the players, moves, and
rules in the informal workshops, as the non-official arena exercised to mediate the
SCS issue. The track two diplomacy concept will help to further explain how the
informal workshops as form of the informal politics could be effective in addressing
the SCS dispute. Then, chapter 3 briefly describes about the methodology and the
research methods used in this study. Chapter 4 provides the main findings based on
the document analysis and the result of interviews. Here, the documents obtained in
the fieldwork and the interview transcripts will be processed to generate data based
on the research questions. Chapter 5 discusses about the implications of the findings
on several major issues, which are in line with the research objectives. Chapter 6
provides general conclusion regarding the essence of informal workshops in
gathering the claimant states to reduce the tension over the dispute in the SCS.
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2. THEORETICAL FRAMEWORK
During the last decades, there has been repeated discussion on state sovereignty in
many debates in the field of international relations and politics. Most literatures on
sovereignty generically explain that sovereignty is a contested concept in which it
provides different interpretation for different situation. According to Wallach (2018),
there are two types of sovereignty; conventional and contemporary. Conventional
sovereignty is about the role of the state as a dictator because it has absolute power
over its supremacy in ruling the society. Meanwhile, Contemporary sovereignty
refuses the idea of dictatorship and supports the idea of democratic system, which is
the state legitimized society to exercise their power within state sovereignty.
However, Krasner (2004) argues that the conventional sovereignty is not only talking
about the dictatorship or hegemonic structure in the political system. Instead, it has
been turned into well-recognized structure whereby state has full authority to control
domestic domain and incorporate other powerful states to intervene in formulating
foreign policy since the nineteenth century.
Other than that, Maftei (2015) divides sovereignty based upon two scales in the
context of international politics: internal law and international law. He argues that
sovereignty within internal law makes states serve as a sovereign power and as
political authorities that control the legislative, executive, and jurisdictional powers.
Meanwhile, within the scale of international law, sovereignty is interpreted as a way
of states negotiate with other states, on the principle of sovereign equality in the
international relations. For this reason, Hansen & Nissen (2016) perceived that while
sovereignty constitutes a struggle over different claims to authority which who comes
most to the fore, states are very important actors to understand the sovereignty per
se. Therefore, the sovereignty remains an essential political tool in constituting the
functional national and international legal orders, in which power politics are played
out.
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2.1 Sovereignty games
This research is about international politics focusing on negotiations on territorial
sovereignty in the conflict over the SCS. The concept of sovereignty games will be
utilized to investigate the role of perceptions on sovereignty in understanding the
international politics. The concept of sovereignty games introduced by Thomas
Gammeltoft-Hansen and Rebecca Adler-Nissen generically aims to explain that
sovereignty fundamentally constitutes a claim to authority which means that
sovereignty is not given, but contested and constant subject of negotiations and
power struggles. This concept basically refers to the ability of different state actors to
successfully maneuver among the varying and the overlapping claims to sovereignty
(Hansen & Nissen, 2016). The concept of sovereignty remains decisive in political
and legal sphere. Therefore, Hansen and Nissen (2016) emphasized that more
attention should be given in research on international relations and politics.
There are three core elements of sovereignty games; players, rules and moves.
Firstly, according to Hansen and Nissen (2016), the players in the concept of
Sovereignty Games are the actors (state and non-state) who try to keep their
sovereignty state system and also involved in claiming the sovereignty. Secondly,
Hansen and Nissen (2016) described the rules in the state sovereignty as a
shorthand for a definite set of claims over certain territories based on stipulations of
the international law. Thirdly, Hansen and Nissen (2016) explains that the emphasis
of moves for the actors involved is placed on how it is used, or being played out, as
legal and political practices. Furthermore, there are two dimensions in the
sovereignty games: vertical dimension and horizontal dimension. “In vertical
dimension, political and administrative elites are playing on the different legal and
symbolic structures related to sovereignty to enhance their autonomy in both
domestic and international arena. Meanwhile, horizontal dimension is characterized
by the conceptual stretching of sovereignty to cover activities outside the area
traditionally reserved for exercises of ultimate authority-the national territory”
(Hansen & Nissen, 2016, p. 12).
Since each country has its own interest respectively and due to the conflict of
interests, the SCS dispute becomes problematic. Through this conceptual framework
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of seeing sovereignty as a game, I could analyze who are the actors involved in the
dispute over SCS. The concept also helps me to further analyze the role of
Indonesia as a non-claimant state and also as a broker/mediator in the SCS dispute
through the informal workshop; why Indonesia initiated the informal SCS workshop,
why all the conflicting parties are willing to assemble in the workshop, how the
workshop could make the representatives from the conflicting parties talk honestly
and openly, and how the workshop rules could reduce the situational tension
amongst the claimant states over the SCS dispute.
2.2 Track two diplomacy
Besides, when state sovereignty has been considerably acknowledged as state
negotiations among each other, it mainly requires diplomatic skills during the
negotiation process. Diplomatic skills are basically emanating from the concept of
diplomacy in the international relations. According to Bahles (2014), diplomacy is
essentially a capacity to adjust with diverse circumstances. Indeed, Akin and Brahm
(2005) said that diplomacy serves as an art in which it is basically a technique to
negotiate specific issues incorporating the elements of persuasion, empathy, and
appreciation with certain circumstances to acquire the reciprocal results among the
negotiators. Diplomacy is also commonly perceived as a means to achieve the
national interests (Zhao, 2017). Accordingly, diplomacy serves as a state’s
instrument to negotiate with other states to reach their interests.
In general, there are two different ways in conducting diplomacy, it could be formally
with the so-called the first track diplomacy or informally with the second track
diplomacy. The First Track diplomacy or widely known as Track One (T1) diplomacy
is an ‘official governmental diplomacy’ that includes several head of states to directly
conduct official meetings and communications which take place bilaterally or
multilaterally (Nan, 2003). Similarly, Mapendere (2007) emphasized that T1
diplomacy mainly features the official interactions at the level of state to state in
which the result of this formalistic discussion will be taken into consideration of
state’s foreign policy with the purpose to promote states’ interests. The themes of
agenda discussions in the T1 diplomacy are mostly associated with state policies,
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reports Salawu and Akinboye (2014). As such, the T1 diplomacy is frequently carried
out by diplomats as the official state representatives that participate in the debates
and discussions over certain issues in order to finally reach the common agreement
(Akin & Brahm, 2005). However, Mapendere (2007) argues that T1 diplomacy has
several critical weaknesses in conducting negotiation such as; powerful states tend
to undermine weaker states, lack of communication in the conflicting situation, and
inability of diplomats to speak against their own government.
Meanwhile, if the T1 diplomacy is perceived as an official diplomacy, the Track Two
(T2) diplomacy is a way more complementary in terms of covering limitation from T1
diplomacy. According to Mapendere (2007), T2 diplomacy also serves as a platform
to empowers the socially, economically, and politically disenfranchised groups by
giving them a platform from which they can air their views on how peace can be
achieved in their own communities or nations. T2 diplomacy is concentrated to be a
bridge or complement for the formal negotiation of T1 diplomacy. “T2 parties are not
inhibited by political or constitutional power; therefore, they can express their own
viewpoints on issues that directly affect their communities and families. T2 officials
do not have the fear of losing constituencies because they are the constituency”
(Mapendere, 2007, p. 68).
The T2 diplomacy is originally invented by Joseph V. Montville in which he proclaims
that; “The Track Two diplomacy is an unofficial, informal interaction amongst
members of adversary groups that aim to develop strategies, influence public
opinion, and organize human and material resources in ways that might help resolve
their conflict” (Montville, 1991, p. 162). Montville (1991) points out that there are
three important processes in the T2 diplomacy: problem-solving workshops,
influencing public opinion, and cooperative economic development. First of all, he
identifies problem-solving workshops as the first process, which consists of small,
facilitated problem-solving workshops or seminars, that include the involved actors to
conduct dialogue and discussion regarding certain issues, in order to discover a
mutual outcome through collegial endeavors.
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In the second process, Montville (1991) pinpoints that the T2 diplomacy has the duty
to alter the mainstream discourse that could drive any political leader, which is
perceived as agitators in the workshop, to make positive decisions for solving the
problem. The T2 unofficial actors, which could be scientists or experts, could give a
significant influence towards the decision-making process conducted by the
government officials. Thirdly, cooperative economic development which serves as
the third process contributes through incentives, institutional support and providing
the prospect of economic growth for communities or nations that could affect the
psychological aspect of the parties involved during negotiation process in the
workshop.
In addition, Salawu and Akinboye (2014) said that due to the informal situation in the
T2 diplomacy, it can afford the ‘freedom of interaction’ which is improbable in T1
diplomacy since the official governments are frequently undermined by certain
consideration of their domestic concern and suspicion issues of government track
records of presumably conducting corruption and oppressive behaviors in the past.
As such in this research, T2 diplomacy will be used to portray SCS workshop as an
arena of dialogue to reduce the tension of the territorial sovereignty dispute over the
SCS, using the concept of sovereignty games.
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3. METHODOLOGY
3.1 Type of Research
The methodology of this thesis can be categorized in three ways: First, the
methodology can be characterized as a case study of a specific arena, in which an
international conflict is being addressed, namely the SCS informal workshop when
the formal international arenas like UNCLOS and ARF have not been able to get the
claimants around the table.
Secondly, since I used discourse analysis for a qualitative assessment of both
interviews and written documents, I used the terms like claims and sovereignty.
These terms were frequently used by the claimant states in the government official
meetings and/or the non-official meetings to negotiate the issue of overlapping
territorial and maritime claims to sovereignty in the SCS. Besides, I also looked at
different maps and names of disputed islands to get the general idea of different
claims to water and islands in area of the SCS. The maps give an idea about the
different notions of sovereignty or different claims to sovereignty and I think it is
crucial in this matter.
Thirdly, I also implemented interpretative methodology in which I obtained data
through talking to the relevant people and observed how they interpret the
sovereignty and the strategies used by Indonesia during the negotiation process.
Since this thesis topic is extremely complexed and also related to sensitive issues,
high level politics, the things I wanted to know are clearly unwritten in books. So, I
had to have a strong emphasis on the interviews. As such, the interviews were very
important to generate data. Again, one of the reasons why I heavily relied on the
interviews was because of complexity and sensitivity. It was also not possible to do a
survey to get information on a sensitive topic like sovereignty, in which Indonesia
and participants would emphasize that if the word sovereignty would be used, the
discussion stops. By having a lot of discussion with the relevant people, it gave me
some insights over the things that I researched such as territorial sovereignty, SCS
workshops, and yet diplomatic skills used by the Government of Indonesia to
mediate the SCS dispute. Therefore, this methodology has been very qualitative and
16
is about approaching people, winning their confidence, which interviewees have
been participating in the workshop themselves.
3.2 Methods Used
To answer my research questions, I collected different types of information. Firstly, I
collected the information of the overview of South China Sea (SCS) Workshop
established by the government of Indonesia and its progress in possibly resolving
the dispute. Secondly, I collected specific information about the formal and informal
rules of SCS Workshop, UNCLOS and ASEAN in dealing so far with the case.
The first strategy to gain such data within the limited time available was to find and
review data related to SCS Workshop, Nine Dash Line, UNCLOS, and ASEAN,
obtained from books, government, and or academic websites such as Chinese
government website, Indonesian government website, United Nations website,
ASEAN Website, JSTOR, Google Scholar, news websites, and et cetera.
Afterwards, I did document analysis by analyzing and extracting information from the
documents I gained during the fieldwork. My second strategy was conducting
interviews with relevant Indonesian government officials, NGOs, think tanks, and
experts in order to deeply dig the information of how Indonesia maneuvered within
this particular territorial sovereignty dispute over the South China Sea. Lastly, I went
to Indonesia to conduct interviews because all interviewees were situated in Jakarta,
Indonesia, and also to collect data through formal (procedural activity) and informal
approach (using networking or contacting my personal colleagues who worked inside
the government or NGO institutions), taking place in several related government and
NGO institutions regarding how the informal workshop and Indonesia’s role
attempted to mediate the territorial sovereignty dispute over the South China Sea.
3.2.1 Document Analysis
There are some policies of the Indonesian government that are important to
understand the role of Indonesia in possibly resolving the South China Sea dispute
such as; Indonesian diplomatic actions, Indonesian initiative of SCS Workshop,
17
Indonesian foreign policy, Indonesian bilateral policy to China, Chinese
government’s policy, ASEAN policy, UN policy, and etc. It is part of qualitative
analysis where literature review will be included in the process of data collection.
This document analysis aims to gain background and an overview of the dispute on
the SCS and how it was handled in different arenas in a comprehensive way.
In the fieldwork, I obtained various documents derived from books and websites in
which I have been studied: the official document of United Nations Convention on
Law of the Sea (UNCLOS), the document of ASEAN declaration regarding the issue
of SCS, and books and articles related to the South China Sea Workshop as one of
Indonesian original initiatives in dealing with this sovereignty issues. Concerning on
the informal workshop, I realized that there must be the minutes or detailed notes
stored at the office of Indonesian MoFA. However, I could not get the workshop
minutes as they are not publicly accessible. Accordingly, I made my analysis based
on journal and articles available online and trusted websites such as JSTOR, Google
Scholar, ASEAN websites, etc.
During the process of selecting relevant documents, I used the research questions
as a guidance to discover relevant information. Afterwards, I conducted document
analysis for structuring ideas that I would like to explore by quoting the materials
dealt with the same way and used discourse analysis, in which I incorporated some
words, such as overlapping claims, sovereignty, Nine-dash line, technical discussion,
to get the relevant information. I also implemented identification of key incidents to
get more insights related to the discursive dynamics in the informal workshop. The
word Nine-dash line, for instance, has been constantly debated by all the conflicting
parties of the SCS dispute. All claimant states, except China, have firmly refused this
policy as it is not based on international law. However, China constantly defended its
policy and justified the reason of historical rights principles should be acceptable
because it is related to China’s sovereignty; and China’s sovereignty is absolutely
indisputable. Accordingly, discourse analysis has been employed as a means to
further draw important information related to the thesis.
18
3.2.2 Semi-Structured Interview The interviews have been conducted with several relevant stakeholders over the
case of South China Sea dispute. Below is the list of interviewees that I interviewed:
Interviewees Affiliation Date of interview Type of
Interview
Interviewee A De La Salle University 20 October 2018 Face-to-Face
Interviewee B Indonesia CSIS 02 November 2018 Face-to-Face
Interviewee C Habibie Center 06 November 2018 Face-to-Face
Interviewee D Indonesian Coordinating
Ministry of Political, Legal,
and Security Affairs
08 November 2018 Face-to-Face
Interviewee E Indonesian Coordinating
Ministry for Maritime Affairs
11 November 2018 Face-to-Face
Interviewee F Indonesian Ministry of
Foreign Affairs
16 November 2018 Face-to-Face
Interviewee G Gadjah Mada University 20 November 2018 Skype
Interviewee H Indonesian Ministry of
Foreign Affairs
21 November 2018 Face-to-Face
Interviewee I Habibie Center 28 November 2018 Face-to-Face
Interviewee J Indonesian Ministry of
Defense
29 November 2018 Face-to-Face
Interviewee K Indonesian Ministry of
Defense
30 November 2018 Face-to-Face
Interviewee L Australian National
University
02 December 2018 Skype
Interviewee M Indonesian Ministry of
Marines Affairs and
Fisheries
07 December 2018 Face-to-Face
Interviewee N Indonesian Ministry of
Foreign Affairs
13 December 2018 Face-to-Face
All these interviews were nearly conducted in the office of interviewee in Jakarta,
Republic of Indonesia. Only two interviews were held through Skype since they were
19
not in their office at that time. Due to the confidentiality, all interviewees’ names have
been concealed and coded with a letter of the font alphabet. Of all interviewees, only
interviewee E, G, and H have been participating in the informal workshops; the
others were observers.
Besides, it was not possible to approach more workshop participants due to the lack
of accessibility and availability of their time. I already tried to contract the Professor
Hasyim Djalal as the initiator of the informal workshop. However, he did not give me
any response until the last minute of my fieldwork time. Yet, I utilized the snow ball
method to gain more information and contacts from one interviewee to other
interviewees about the observers and the other people that have been involved in
the informal workshop. The method of interviews with key player was also used to
interview scientist or observer or government official representatives in their personal
title who experienced direct participation in the informal workshop. As such, I
successfully conducted interviews with 14 relevant interviewees, in which 3 of them
were scientist (Interviewee E), expert (Interviewee G), and representative of the
Government of Indonesia as a non-claimant state, attending the informal workshop
but in his personal capacity (interviewee H).
Since the participants of the informal workshop consisting of scientists, experts, and
also representatives from the claimant states and non-claimant states in their
personal title, I was not able to contact the representatives of the claimant states as
their contacts were not publicly accessible and let alone, their location was not in
Indonesia. During the process of interviews, some were using English and others
were using ‘Bahasa’ (the official language of Indonesia). The interview questions
were made based on the main research question and sub-questions. After
conducting the interviews, I made the transcripts.
From the interview transcripts, I used the method of interpretation as a basis to
analyze and interpret the information they gave me. In structuring and analyzing my
data, I also used three specific sub-questions as a guidance. The information on
players, moves, rules, I put together. The information on sovereignty and sovereignty
claims I put together and anything emphasizing on the role of Indonesia I also put
together. These have served to structure my findings where in the findings I store
20
and provide more detailed information on players, moves, and rules, sovereignty
claims, and the role of Indonesia in brokering the issue of SCS. During the process
of analyzing the interview transcripts, if the transcript was in Bahasa, I took its
important information, analyzed it and wrote in English. Since the information I
obtained from the interviews was abundant, I also used discourse analysis, in which
the terms like SCS informal workshop, claims, territorial sovereignty were utilized as
my analytical frames to sort out the relevant information derived from the interview
transcripts and processed them to generate data. To strengthen my findings, in
particular result of interviews, I sometimes directly quoted their words to showcase
the relevance of their original thoughts with the issues that I am currently concerned,
such as China’s Nine-dash line policy, scientific projects and technical cooperation in
the informal workshop, etc.
21
4. FINDINGS
This chapter is structured as follows. Chapter 4.1 will explain about the results of
document analysis, divided into three sub-chapters. Paragraph 4.1.1 will describe
about the parties involved in the dispute and how they took part in some tables of
negotiations over the SCS, notably on SCS Informal Workshop. Afterwards, it will
showcase how the Informal workshop led all claimant states in the current
development of SCS negotiations; Declaration on the Conduct (DOC) 2002 and
Code of Conduct (COC) 2018. Paragraph 4.1.2 elaborates on how the countries
involved interpret their sovereignty over the SCS upon the debate of sovereignty in
the SCS, such as how Chinese Nine-dash line policy is argued by the other claimant
states and rejected by PCA decisions; and how China completely disagreed and
never recognized the validity of these international law decisions. Paragraph 4.1.3
will further explain about arenas in the Track-One (T1) and Track-Two (T2)
Diplomacy; how T1 as a formal way is not enough to address issues of sovereignty
in the SCS and how T2 as an informal approach could address the interests of
parties concerned in the SCS while accommodating the insufficiency of formal
platforms which have been used, such as ASEAN-China Dialogue and ASEAN
Regional Forum (ARF).
Chapter 4.2 will provide the results of interviews, comprising three sub-chapters
referring to the sub-research questions. Paragraph 4.2.1 explains about the actors,
moves, and rules in the SCS informal workshop, which aims to characterize the talks
and negotiations in the informal workshop. Afterwards, Paragraph 4.2.2 will describe
the contribution of SCS workshop in reducing the SCS tension, which portrays the
debate of territorial sovereignty, how informal workshop mediates the debate through
inviting the claimant states assembled to talk and discuss the issue on the same
table, and how the sovereignty claims are interpreted claimant after the PCA
decisions 2016. Lastly, Paragraph 4.2.3 will further elaborate on how Indonesia
through its diplomatic skills as a non-claimant state, as well as an honest broker,
contributes to manage the tension over the dispute in the SCS. It also explains how
Indonesia could invite different players around the table, set the agenda and reached
consensual decisions in the SCS workshop.
22
4.1 Results of Document Analysis
4.1.1 Actors and moves in the South China Sea dispute
Claimant States
The dispute in the South China Sea (SCS) has been occurring for decades and
involved several states claiming islands and some maritime features there.
According to a report written by Gregory B. Poling in 2013 entitled “The South China
Sea in Focus; Clarifying the Limits of Maritime Dispute”, there are six countries
involved with the so-called the claimant states in the South China Sea, comprising
China, Philippines, Vietnam, Malaysia, Brunei, and Taiwan (Poling, 2013). This
report emphasized that the claimant states should make their claims based on
United Nations Convention on the Law of the Sea (UNCLOS) 1982 as international
law although it seemed that not all claimants followed the rules of UNCLOS. Since
SCS is a “semi-enclosed sea”, the coastal states bordering the area are obliged to
cooperate with one another in various areas, that fall under the Article 123 of
UNCLOS (Djalal, 2001). In fact, Djalal (2003) noted that there have been several
territorial disputes in the SCS; firstly, the disputes over rocks and islands in the
Spratly islands among China, Philippines, Vietnam, Malaysia, Taiwan, and Brunei.
He also noted that there have been some cases that led to armed conflicts, such as
between China and Vietnam over the Spratly Islands in 1988 and the Paracel Islands
in 1974. Even, there has been an increasing tension over the Scarborough Reefs
and Mischief Reefs in 1995 between the Philippines and China.
China’s Nine-dash line policy
Bill Hayton in his book entitled “The South China Sea: The Struggle for Power in
Asia” 2015 argued that apart of UNCLOS, the principle of historical claims to territory
or widely known as historical rights also became the factor that justified the claims
coming from one of the claimants, People’s Republic of China (PRC). China
introduced a specific policy based on the historical rights principle with the so-called
“U-shaped line” or best known as “Nine-dash line” policy overlapping almost the
23
entirety of South China Sea, officially submitted to the United Nations Commission
on the Limits of the Continental Shelf (UNCLCS) on 7 May 2009 (Hayton, 2015).
This action was China’s response to the Malaysia and Vietnam joint submission of
their continental shelf measurements on the southern part of the South China Sea to
the UNCLCS on 6 May 2009 and brought it in line with UNCLOS (Tonnesson, 2010).
China certainly felt geographically disadvantaged as China claimed those areas,
which both Malaysia and Vietnam claimed in their joint submission, belonging to
China. China then completely disagreed with this sort of joint submission through
officially declared a Nine-dash line map internationally and stated that, “China has
indisputable sovereignty over the islands in the South China Sea and the adjacent
waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well
as the seabed and subsoil thereof” (Rajagobal, 2016). However, this Nine-dash line
policy seemed to be exacerbating China’s image in the international level as the
historical claims principle is not relevant with the provisions of UNCLOS, meanwhile
China is one of signatories of UNCLOS 1982 (Simon, 2012).
Moves of Claimant States
Although UNCLOS is often referred as the basis for the claimants to claim, the other
claimants, not only China, often ignored and even politicized one of the stipulations
of UNCLOS, notably on Economic Exclusive Zone (EEZ); an island could extend its
territory up to 200 nautical miles radius if that island can sustain human habitation
and or economic life (Hayton, 2015). Therefore, Hayton (2015) noted that there are
at least three claimant states consisting of the Philippines, Vietnam, and Taiwan
which attempted to build civilian facilities such as houses and schools in the islands
they claimed with the purpose to compose human habitation, and also fishing depots
and tourism plans as part of economic life. China has also built new military facilities
in the Fiery Cross Reef, Mischief Reef and Subi Reef in the Spratly islands (Reuters,
2017). Even, some children are studying math in Thitu Island claimed by Philippines
and some monks are doing prayer in Spratly islands; All of these actions are aiming
to support and justify their country’s maritime claims in order to gain territorial
sovereignty situated in the SCS (Hayton, 2015).
24
Forum shopping and forum selection
Given the importance to prevent disputes escalating into the armed conflicts, there
have been some formal forums conducted such as multilateral dialogues (ASEAN-
China Dialogue, ASEAN Regional Forum), bilateral dialogues between the parties
concerned, and even the informal forum through the Indonesian-initiated Workshop
Process to manage the potential conflicts (Djalal, 2003). When Malaysia, Philippines,
Vietnam, and Brunei supported the ASEAN serving as a multilateral venue for SCS
negotiations, China firmly opposed that proposal and China always preferred
bilateral negotiations between the parties concerned (Simon, 2012). China is
absolutely reluctant to internationalize the dispute and thus China completely refused
the Philippines’s request to bring SCS issue on the table discussion in the ASEAN
Regional Forum (ARF) established in 1994 (Swanström, 1999). Swanström (1999)
argued that during the ARF, China consistently objected any ideas from the parties
to institutionalize the SCS issues, even China also denied Vietnam proposal to
declare each party’s EEZ because China was aware that disclosing EEZ to the
public would damage its historical rights principles over the islands it claimed in the
SCS. Prior to this, when ASEAN and China attended a joint summit in December
1997 to discuss SCS, China also expressed its reluctance to talk about the conflict
resolution in the multilateral platform.
The involvement of Indonesia as a non-claimant state and a neutral broker
Regarding bilateral meeting, China has been meeting with all claimant states,
including Taiwan to talk about the SCS issue. Yet, Swanström (1999) noted that
almost all bilateral negotiations conducted by China (China-Vietnam, China-
Philippines, China-Malaysia, China-Brunei, China-Taiwan) ended with failure and
produced nothing. Therefore, third party is required and Indonesia, as a leader of
ASEAN countries and as a non-claimant state, proposed to discuss this sensitive
matter in an informal way through the informal workshop since the formal fora, such
as ASEAN-China dialogue and ARF, are not sufficient to make the claimants
assembled in one place to discuss this issue (Djalal, 2003).
25
The initiator of SCS informal workshop
The Informal Workshop on Managing Potential Conflicts in the South China Sea,
widely known as the South China Sea Workshops (SCSW), was initiated by
Professor Hasyim Djalal in 1990, Indonesia’s ambassador and a leading authority on
ocean law and one of the most influential participants at the Third United Nations
Conference on the Law of the Sea (Song, 2010). Professor Hasyim Djalal was a
Director General of Treaty and Legal Affairs of Indonesian MoFA (1976-1979),
Ambassador/Deputy Permanent Representative of Indonesia to the United Nations
in New York (1981-1983), and also participated fully in the Third UN Law of the Sea
Conference (1973-1982) and in its implementation thereafter. Currently, he is a
member of Indonesian Maritime Council, Special Advisor to the Indonesian Minister
for Maritime Affairs and Fisheries, and Special Advisor to Indonesian Naval Chief of
Staff (CIL, n.d.).
There are several reasons why he was concerned about SCS; First, there were
already armed clashes between China and Vietnam in 1974 and 1988 situated in the
SCS. Second, the existence of multiple territorial claims to islands as well as national
jurisdictions in the SCS. Third, a long history of confrontation among the countries
around the SCS and very little of cooperation. Fourth, the importance of the SCS
sea-lines of communications and transportations for regional. Fifth, The increasing
problems of pollution and safety of navigation as well as the protection of marine
environment and ecosystem in the SCS (Djalal, 2003). Those reasons generally
portrayed why SCS has potentials of conflicts and development. As such, Djalal
initiated the SCS Workshop that aimed to manage those potential conflicts in the
SCS. According to Djalal’s book, entitled “Preventive Diplomacy in Southeast Asia:
Lessons Learned” 2003, there have been a series of informal workshops conducted
by Indonesia in which these workshops served as an arena of dialogue and as a
platform for policy-oriented discussion.
The SCS informal workshops
The First SCS Workshop was held in Bali in 1990 and financially assisted by Canada
focusing on confidence building measure and conflict management over maritime
26
issues (Emmers, 2007). However, the main support of this Informal Workshop was
from Indonesian Ministry of Foreign Affairs and the first workshop was only attended
by ASEAN countries, which means that China and Taiwan were not yet included at
that time (Djalal, 2003). Djalal (2003) noted that China was reluctant to join the
workshop because she was not in favor to make issues being internationalized; let
alone, China argued that its claims to sovereignty over the SCS islands were
undisputable. Since Djalal was aware over the difficulty to bring China on board, he
planned to invite China in the next workshop because he believed that problems
could be addressed if we are able to sit down together discussing the issue. The
Second SCS Workshop was held in Bandung in February 1991, in which he
successfully invited China and other ASEAN member states, even Taiwan to the
Workshop Process. However, all participants mostly discussed on more technical
discussions on the issues of marine scientific research, marine environmental
protection and safety of navigation instead of sovereignty claim problem over islands
in the SCS. Yet, some participants attempted to formalize the meeting through
establishing the secretariat, in which it was failed since the participants expressed
their unwillingness to institutionalize this informal process in the third workshop, held
in Yogyakarta 1992.
Nevertheless, Djalal (2003) noted that there were two important points to highlight in
the second workshop; first, all participants agreed that the use of force should be
avoided in addressing SCS dispute and thus should be settled peacefully. Second,
all participants should conduct self-restraint to reduce the tension and potential
conflicts. These two results would be the seed of fundamental principles to manage
potential conflicts in SCS through cooperation and the establishment of ASEAN
Declaration on the South China Sea in Manila in July 1992 or known as Manila
Declaration (Djalal, 2003). However, Emmers (2007) argued that that there are two
weakness in this Manila Declaration; one, the declaration only promoted an informal
code of conduct based on self-restraint, the non-use of force and the peaceful
resolution of disputes instead of promoting conflict resolution over the problem of
sovereign jurisdiction. Two, the declaration lacked external support as China still
seemed unwilling to accept this Manila declaration and did not follow its principles.
27
The connection between the informal workshop, DOC and COC
Nonetheless, Majumdar (2016) argued that the Second SCS Informal Workshop
initiated by Prof. Hasyim Djalal essentially played a pivotal role, which generated six
Bandung principles that would become the underlying foundation for the
establishment of the code of conduct in the SCS. In 2002, due to the Informal
Workshop, ASEAN-China Declaration on the Conduct of Parties in the South China
Sea (DOC) was established and it contained normative framework, albeit not binding
(Majumdar, 2016). Since the DOC did not act as final conflict resolution derived from
ASEAN-China negotiation, its values aimed to make the signatories committed to
preserving peace and stability in the SCS (Duong & Tuan, 2015). According to
Duong and Tuan (2015), the DOC has been recognized as one of the most crucial
political documents ASEAN ever generated because ten principles from the DOC
would enable ASEAN to deeply get involved to manage and observe the SCS
activities, as well as leading to a discussion to start drafting the Code of Conduct
(COC) as a legally binding agreement in 2013. Based on the official document of
DOC, there are some principles that are core to manage SCS issues (Duong &
Tuan, 2015). The Fourth Principle invited the claimant states to manage their
territorial sovereignty disputes by peaceful means instead of use of force, through
consultations and negotiations based on international law, including the 1982
UNCLOS. Meanwhile, the Fifth Principle cordially suggested the claimants to
conduct self-restraint to prevent dispute escalation and the Sixth Principle highly
recommended the parties to conduct bilateral and multilateral cooperation which are
quite technical, such as marine environmental protection, marine scientific research,
safety of navigation, and communication at sea, search and rescue operation, and
combating transnational crimes. Lastly, the Tenth Principle firmly suggested to
establish a legally binding code of conduct for the sake of peace and stability in SCS
(ASEAN Document, 2012).
However, Majumdar (2016) argued that the DOC failed and is not strong enough
because it is still a typical non-binding agreement. Whereas the 2002 DOC is not
working effectively, ASEAN started to discuss drafting COC in September 2013.
According to Duong and Tuan (2015), the first time ASEAN and China discuss COC
in formal meeting was during the 6th China-ASEAN Senior Officials Meeting (SOM) in
28
September 2013 in Suzhou, China, followed by the 9th China-ASEAN Joint Working
Group meeting. Even though the meeting did not produce a concrete specific
resolution, it posed an agreement on consultation and negotiation progress. The
COC was then encouraged in the 31st ASEAN Conference in Manila in November
2017, followed with the 20th ASEAN-China Summit; these meetings made ASEAN
and China ensured the commitment of parties to abide the values of DOC and Code
of Unplanned Encounters at Sea (CUES) aiming to prevent military incidents in the
SCS (Wicaksono, 2017). On 3 August 2018, ASEAN and China eventually
announced the agreement on a Single Draft South China Sea Code of Conduct
Negotiating Text (SDNT) serving as the fundamental basis for the adoption of a COC
in the SCS (Thayer, 2018). This announcement was conducted at the meeting
ASEAN Foreign Minister in Singapore in 2018 (Wong & Lo, 2018). According to
Thayer (2018), the SDNT document, comprising 19 pages long, reiterated the
previous Framework Code of Conduct, in which it is not orchestrated to be an
instrument to resolve territorial sovereignty and or maritime demarcation issues.
The proposal by Indonesia
Thayer (2018) noted that the SDNT document addressed five main issues;
geographic scope, dispute settlement, duty to cooperate, the role of third parties, and
the legal status of the final Code of Conduct in the SCS. Firstly, since the SDNT did
not clearly define the geographic scope of SCS, Malaysia proposed that the scope of
application/geographic scope of this Negotiating Text should be clearly defined.
Second, there were two proposals to settle the dispute; the first one is Indonesia and
the second is from Vietnam. Yet, the first option, proposed by Indonesia suggesting
that the parties concerned should settle their disputes through a proper mechanism
referred to international law and the Treaty of Amity and Cooperation in Southeast
Asia at the consent of the concerned parties, gained support from almost all
participants, including Brunei, Cambodia, Singapore, Malaysia and China. Third, the
SDNT document proposed duty to cooperate in five main areas; marine
environmental protection, marine scientific research, safety of navigation and
communication at sea, and combating transnational crimes. Fourth, while Brunei
proposed include third party, China proposed to limit and or exclude third party,
especially U.S involvement. Lastly, although the reference of the SDNT document is
29
international law, notably on UNCLOS, it still does not explicitly mention that the
claimants should completely comply with UNCLOS.
China’s move
Wong and Lo (2018) argued that the SDNT document essentially aimed to
considerably reduce the tension and cease the Chinese reclamation project of
building artificial islands, as well as military installations over the islands in the SCS,
containing abundant natural resource, such as gas and oil, claimed and disputed by
the Philippines, Vietnam, Brunei, and Malaysia. In China’s perspective, the SDNT
would serve as a way to streamline its free trade area in the SCS and China also
promised to conclude the negotiation of the SDNT document in three years’ time
(Nicolas, 2018). Besides, China’s State Councilor and Foreign Minister, Wang Yi, in
his meeting with other Foreign Minister in Singapore on 2 August, 2018, stated that
he highly appreciated and encouraged the agreement of SDNT as form of significant
development of COC negotiation in the SCS; he also officially told the public that
China already sent a few ships in some islands, notably on Spratly islands, islands
disputed by China, Vietnam, Philippines, and Malaysia for the purpose of providing
international public service such as Scientific Research and Meteorology for ASEAN
member states in the upcoming days (FMPRC, 2018).
30
4.1.2 Interpretation of Sovereignty
The geographical map of SCS
Figure 1. This map shows the overlapping territorial and maritime claims to sovereignty amongst the claimant states in the South China Sea. Image from Leslie Lopez, The Straits Times: The South China Sea – Part One: Fish Wars (Lopez, 2016), downloaded from https://www.straitstimes.com/asia/south-china-sea-fish-wars in July
2019.
In the Hayton’s book entitled, ‘The South China Sea: the struggle for power in Asia’
(2015), another South China map was also drawn by I Made Andi Arsana, Professor
of Geodetic and Geomatic Engineering at Gadjah Mada University, Indonesia,
assisting to understand the complexity of disputed islands in the SCS. The map
conveyed the information that the terms South China Sea geography has different
meanings to the other claimant states; Vietnam called it East Sea, the Philippines
called it the West Philippines Sea, China and the rest of the world called it South
China Sea. The map also described about maritime features occupied by the
claimant states. Despite many other disputes in the SCS, the map delineated that
31
there are two major disputes, in which the states are fighting over in the South China
Sea; Paracel Islands and Spratly Islands. Paracels are disputed by China and
Vietnam; China called them as the Xisha while Vietnam called them as the Hoang
Sa. There are some maritime features disputed in the Paracel Islands, such as North
Reef, Prattle Island, Tree Island, Money Island, Discovery Reef, Triton Island, and
many others.
The overlapping claims in the SCS
On the other hand, China called the Spratlys as the Nansha, Vietnam called them as
the Truong Sa, and the Philippines called them as the Kalayaan Island (Hayton,
2015). Based on the map, there have been a few maritime features disputed in the
Spratly Islands, such as Thitu Island, Mischief Reef, Fiery Cross Reef, West York
Island, Subi Reef, Johnson Reef, North Danger Reef, Investigator Shoal,
Scarborough Shoal, Bombay Castle, Louisa Reef, Itu Aba Island, and many others.
The map also displayed that the dispute in the Spratlys is more complexed than in
the Paracels, which only involved Vietnam and China. For instance, Bombay Castle
is claimed by Vietnam and Brunei; Louisa Reef is disputed by Malaysia and Brunei;
Investigator Shoal is claimed by Malaysia; Scarborough Shoal is claimed by
Philippines; Itu Aba Island is claimed by Taiwan; and many others. The map then
portrayed that China’s Nine-Dash Line policy overlapped all maritime features
claimed by the involved parties; Vietnam, Philippines, Malaysia, Brunei, and even
Taiwan. Whereas Taiwan is a claimant in the Spratlys, it is not officially regarded as
an independent state (Anh & Tuan, 2016).
Maritime sovereignty disputes amongst the claimant states
Meanwhile, Anh and Tuan (2016) explained that the dispute between China and
Vietnam over the Paracel Islands has been taking place since 1954 when China for
the first time sent its armed forces into the Paracels and in 1974, China completely
conquered the whole Paracels archipelago through destroying Vietnamese naval
ships into pieces. Not to mention, in 1988 China successfully occupied 7 features in
the Spratlys and killed 70 soldiers in the Johnson Reef. One of the reasons Vietnam
maintained its claim in Paracels is because Vietnam already declared its sovereignty
32
over the Paracels archipelago in the 1951 San Francisco Conference right after the
Second World War, which was agreed by all delegation. However, China later
denied Vietnam by simply saying that that the Paracels were not part of the
conference (Anh & Tuan, 2016).
Ever since then, both countries are disputing until now. Not only with Vietnam, China
also had quarrel with Philippines over the Mischief Reef in the Spratly Islands
(Marshall, 2016). On the other hand in 1988, Brunei established its EEZ of 200
nautical miles that claimed the Louisa Reef which also overlapped with the southern
part of Spratly Islands (Emmers, 2007). Since Louisa Reef is situated on 408 miles
from Vietnam and 120 miles Northwest from Brunei coastline, Brunei was granted
rights over its claim through its continental shelf based on the international law,
UNCLOS. Since China officially declared its sovereignty claim with Nine-Dash Line
policy, it also overlapped Brunei’s maritime claims. Marshall (2016) argued that the
abundance of natural resources and energy supplies in the SCS served as a driving
force for China to claim the area; and China utilized land reclamation as a method to
turn reefs in disputed territory into an island, which projected to have an EEZ.
The recognition of China to Indonesian territory
Apart from this, the China’s Nine-Dash Line policy has ever overlapped the
Indonesian territorial sovereignty, in which China officially claimed Natuna water
within Indonesian EEZ (Hayton, 2015). While there is no territorial dispute between
China and Indonesia, there have been some incidents occurred between Chinese
and maritime security forces in Indonesian EEZ derived from the Natunas (Bentley,
2013). Consequently, Marty Natalegawa, Indonesian Foreign Minister 2009-2014,
protested China’s Nine-Dash Line policy’s claim over Natuna and told the public that
China and Indonesia have no any territorial dispute (Financial Times, 2013). In 2010,
Indonesia sent its protest to the UN Commission on the limits of the Continental
Shelf in accordance with the validity of Nine-Dash Lines (Banyan, 2010). Indonesian
MoFA later obviously stated that the position of Indonesia is clear that we do not
recognized the Nine-Dash Line because it is not relevant with the international law.
33
While Indonesia kept consistently asking for clarification about the Nine-Dash Line
map, China did not give any response (Fabi & Blanchard, 2015). On 12 November
2015, for the first time China’s Foreign Ministry publicly stated that Indonesian side
has no territorial claim to China and Chinese side has no objection to Indonesia’s
sovereignty over the Natuna Island (Yu, 2015). Indonesian current Foreign Minister,
Retno Marsudi, firmly expressed that China has been acknowledging Indonesian
maritime sovereignty or authority of sea territory over Natuna and China has no
issue with that (Brummitt, 2016).
PCA decisions
Furthermore, the Philippines also protested the China’s Nine-Dash Line policy and
instituted through legal proceedings against China to the Permanent Court of
Arbitration (PCA) on 22 January 2013, under the Annex VII of the UNCLOS
regarding China’s historical rights, the source of maritime entitlements in the SCS,
the status of certain maritime features in SCS, and the lawfulness of certain actions
by China in the SCS alleged to be in violation of the Convention. However, on 1
August 2013, China made a Note Verbale to the PCA that China does not accept the
arbitration initiated by the Philippine. Three years afterwards, exactly on 12 July
2016, the PCA gave its award in the arbitration instituted by the Philippines (PCA,
2016). Hereby, the brief description over the official result of PCA Award 2016 (PCA,
2016, p. 1):
No Result Explanation
1 HistoricRightsand
the‘Nine-DashLine’
The tribunal concluded that, to the extent China had
historic rights to resources in the waters of the South
China Sea, such rights were extinguished to the extent
theywereincompatiblewiththeexclusiveeconomiczones
provided for in the Convention. The Tribunal also noted
that,although Chinesenavigatorsand fishermen,aswell
as thoseofotherStates,hadhistoricallymadeuseof the
islandsintheSouthChinaSea,therewasnoevidencethat
Chinahadhistoricallyexercisedexclusivecontroloverthe
34
waters or their resources. The Tribunal concluded that
therewasnolegalbasisforChinatoclaimhistoricrights
toresourceswithintheseaareasfallingwithinthe‘nine-
dashline’.
2 StatusofFeatures TheTribunalconcludedthatnoneoftheSpratlyIslandsis
capable of generating extended maritime zones. The
Tribunal also held that the Spratly Islands cannot
generate maritime zones collectively as a unit. Having
found that none of the features claimed by China was
capable of generating an exclusive economic zone, the
Tribunal found that it could—without delimiting a
boundary—declare thatcertainseaareasarewithin the
exclusiveeconomiczoneofthePhilippines,becausethose
areas are not overlapped by any possible entitlement of
China.
3 Lawfulnessof
ChineseActions
The Tribunal next considered the lawfulness of Chinese
actionsintheSouthChinaSea.Havingfoundthatcertain
areas are within the exclusive economic zone of the
Philippines, the Tribunal found that China had violated
thePhilippines’sovereignrightsinitsexclusiveeconomic
zone by (a) interfering with Philippine fishing and
petroleum exploration, (b) constructing artificial islands
and(c) failingtopreventChinese fishermen fromfishing
inthezone.
4 HarmtoMarine
Environment
The Tribunal considered the effect on the marine
environment of China’s recent large-scale land
reclamationandconstructionofartificialislandsatseven
features in theSpratly Islandsand found thatChinahad
caused severe harm to the coral reef environment and
violated its obligation to preserve and protect fragile
35
ecosystems and the habitat of depleted, threatened, or
endangeredspecies.
5 Aggravationof
Dispute
The Tribunal found, however, that China’s recent large-
scale land reclamation and construction of artificial
islandswas incompatiblewith theobligationsonaState
during dispute resolution proceedings, insofar as China
hasinflictedirreparableharmtothemarineenvironment,
built a largeartificial island in thePhilippines’ exclusive
economic zone, and destroyed evidence of the natural
conditionof features in theSouthChinaSeathat formed
partoftheParties’dispute.
Based on Article 11 of Annex VII Arbitration and United Nations Agreement Article
296 of the Convention, the PCA Award 2016 is final and binding. Article 11 of Annex
VII Arbitration states: “The award shall be final and without appeal, unless the parties
to the dispute have agreed in advance to an appellate procedure. It shall be
complied with by the parties to the dispute”. Article 296 states: “Any decision
rendered by a court or tribunal having jurisdiction under this section shall be final and
shall be complied with by all the parties to the dispute; Any such decision shall have
no binding force except between the parties and in respect of that particular dispute”
(United Nations Agreement, n.d.).
China’s rejection over PCA decisions
Despite China’s assertiveness in the SCS, this is the first time China has been
dealing with International Justice System over its claims in the SCS. Although the
Tribunal conclusion is legally binding, there is no specific mechanism for compelling
it. China’s government emphasized that ‘the Tribunal decision is invalid and has no
binding force; thus China does not accept or recognize it’ (Perlez, 2016). The reason
why China does not embrace The Hague Tribunal’s result denying China’s Nine-
Dash Line policy is that because China still believes over its historical right based
claims, which are inherent with China’s sovereignty; and China has been building at
least fifteen constructions, building four lighthouses, and turning reefs into the
36
artificial islands, as well as developing military installations in some maritime features
it claimed in the SCS (France24, 2016).
Prior to this in 2004, China has officially released its position paper on the matter of
jurisdiction in the SCS Arbitration initiated by the Philippines. The China’s Foreign
Ministry through its position paper officially announced that China has indisputable
sovereignty over the SCS Islands included Paracels and Spratlys and the adjacent
waters; thus the request through legal proceeding instituted by the Philippines in the
Arbitral Tribunal does not have jurisdiction to intervene China’s sovereignty (FMPRC,
2014). However, when PCA conclusion obviously stated that China’s Nine-Dash Line
policy is invalid in a way that it exceeds the limits established by UNCLOS; China’s
military and artificial construction in the maritime features over the Spratlys are also
assessed as a violation of UNCLOS provisions on artificial islands and
environmental protection (Williams, 2016).
Interestingly, on 12 July 2016 China also released its position paper and stated that
‘China stands ready to continue to resolve the relevant disputes peacefully through
negotiation and consultation with the states directly concerned on the basis of
respecting historical facts and in accordance with international law’, which means
that China is still open for bilateral negotiation and complying with the international
law, including UNCLOS, while maintaining its absolute stance over historical claims
as part of its indisputable sovereignty (FMPRC, 2016). Glaser (2016) argued that if
China is still willing to preserve the existence of its Nine-Dash Line after the PCA
Awards, China should alter its strategy into a more accommodating approach to its
rival in the SCS and abide by the stipulations of international law. Even Taiwan also
refused PCA award which concluded that all maritime features in the Spratlys are not
able to generate Exclusive Economic Zone including Itu Aba Island, an Island that
Taiwan already occupied with a military garrison (Almond, 2016).
Meanwhile, Vietnam views this PCA as an important momentum and opportunity to
strengthen its claim in the Paracels, that is also disputed China. When the Arbitration
Tribunal gave its awards to the Philippines, China perceived that the Philippines is
attempting to violate the existing agreements made through negotiations on the SCS
with China, such as bilateral agreements and the DOC 2002; and China assumed
37
the Philippines’s intentions to put political pressure to China instead of seeking
peaceful way to resolve the SCS issues (Tiezzi, 2014). China’s government firmly
stated to the public that as being the first country to discover SCS, China is later
justified to establish the territorial sovereignty and interest over its claims (BBC,
2016a).
4.1.3 Track One and Track Two Diplomacy
China’s strategy in T1 diplomacy
The first formal meeting for discussing SCS issues was within the ASEAN Regional
Forum established in 1994 attended not only by ASEAN member states, but also
China. At that time, China invited all claimant states to discuss this issue in a
peaceful way instead of using the force as a means. However, China refused to
address SCS issues when Philippines attempted to bring the issue on the table,
notably on China’s maritime sovereignty claim in the SCS (Emmers, 2007). Emmers
(2007) argued that the reason China preferred to conduct bilateral meeting instead of
multilateral meeting with the parties concerned is because China could be dominant
during the bilateral negotiation process with the claimant states who are much
weaker than her.
Djalal (2003) noted that China was not intended to discuss the SCS issues in the
ARF even though China kept encouraging the ARF participants to maintain
cooperation, peace, and stability. At that time, China seemed quite unwilling to talk
about deep substantive jurisdiction and territorial issues and the other participants
were also reluctant to conduct bilateral meeting with China. Until the Fourth meeting
of ARF Senior Officials in Malaysia on May 1997, there was no any sign for China to
address the SCS issue although the other participants felt that ARF probably could
be an appropriate platform to internationalize the issues of state’s territorial
sovereignty in the SCS. This situation is similar with UNCLOS. According to Scott
(2016), UNCLOS 1982 established as an international law regulating about state’s
maritime territorial sovereignty is also unable to resolve the territorial disputes
because it does not have any binding enforcement features.
38
The failure of T1 diplomacy
Although the International Tribunal for the law of the Sea (ITLS) was also established
as an independent body under UNCLOS, it still did not work out to mediate the
claimant states. Therefore, in March 1999 the request of initiating SCS resolution in
the formal multilateral meeting was heavily rejected by the People’s Republic of
China. Moreover, on 25 August 2006 China made a Note Verbale to the Secretary
General of United Nations regarding a statutory declaration under Article 298,
explicitly stating that China would not accept and or recognize any decision made by
international court of arbitration in disputes over territorial disputes, maritime
demarcation, and military activities. In the regional level, many meetings have been
conducted between ASEAN-China; and China is consistent with its standing point to
guard its indisputable sovereignty and not profoundly bring SCS issues on the table.
T2 diplomacy as an alternative solution
Given the formal discussion of SCS issues seemed stagnant, Indonesia initiated an
Informal Workshop on Managing Potential Conflicts in the South China Sea in 1990
by Professor Hasyim Djalal, representing as individual to help mediate and reduce
the tension of SCS dispute. It is a series of workshop, serving as T2 informal level of
negotiation. Since the Second Workshop in 1991, China and Taiwan actively
involved in the Informal Workshop. China felt comfortable in joining the workshop
process because the result of workshop is not binding in a way that participants
could refuse any agreements or resolutions, in which other participants might accept
it as well (Lai, 1999).
Lai (1999) noted China consistently insist its claim as part of its indisputable
sovereignty over the Spratlys and Paracels at the Informal Workshop. The workshop
was then annually conducted and frequently talking about the technical projects in
the SCS such as marine scientific research, marine environmental protection, safety
of navigation, legal matters, shipping and communication, and even confidence
building measure. However, Djalal (2003) argued that the SCS Informal Workshop
aimed to not only talk about technical issues, but also served as a platform for policy
oriented discussion.
39
Rules of the informal workshop
Despite the sensitivity of discussing SCS claims on the Spratly Islands and the
Paracel Islands, the workshop still provided a space to talk about it in a very limited
time; for instance, the participants were respectively given five minutes to express
view without entering into discussion, so that the stability and tension could be
managed. On the Sixth Informal Workshop established in Balikpapan in 1995, the
participants already started to talk about the security of multiple claims of maritime
features in the Spratly Islands. The workshop suggested the countries involved to
create transparency of the activities in the disputed area and profoundly discussed
over the need to establish a Code of Conduct in the SCS, in line with the Six
Principles derived from the Second Informal Workshop in Bandung 1991.
The Informal Workshop was also supported by T1 formal institutions, such as
ASEAN, European Community, Non-Aligned Movement, ASEAN Regional Forum
(ARF), and Canada International Development Agency. Even, during the 27th
ASEAN Ministerial Meeting in Bangkok in July 1994, ASEAN officially appreciated
Indonesia for its initiative of establishing the Informal Workshop; ASEAN noted that
the parties concerned had already commenced bilateral dialogue, which could
elevate the spirit of cooperation and political will of the involved states so that the
regional peace and stability in the SCS could be preserved (Djalal, 2003).
Nevertheless, Lai (1999) argued that the Informal Workshop lacks strong
enforcement to legally bind the participants, in which the result of this workshop is
still non-binding and the discussion in the workshop is still difficult to be formalized
and or institutionalized. Since Taiwan also attended the workshop, China worried
that the formalization of workshop process would lead to the creation of two Chinas,
which infringed its sovereignty and One China policy. Yet, Swanstrom (1999) viewed
this informal workshop initiated by Indonesia is the most successful negotiations in
the second track diplomacy; the informal rules and procedures in the workshop are
key points which made the claimants able to have a dialogue and talk honestly about
the overlapping claims in the SCS. The SCS Informal workshop also served as a
regional mechanism where scholars and Government officials from China, Taiwan,
and ASEAN member states could meet to exchange views on SCS issues in their
40
personal capacity (Song, 2010). In addition, Djalal (2003) kept the workshop informal
to ensure the people could talk anything openly, otherwise the participants would be
constrained by their government’s policies in a formal meeting.
According to Song (2010), the Informal workshop is not aiming to directly resolve the
prolonged jurisdictional and territorial disputes in the SCS, instead, it attempted to
manage the potential conflicts, develop confidence building measure, and to
exchange views through dialogue on the SCS issues in order to build trust and
mutual understanding among the parties involved, as well as supporting them to
overcome the sovereignty disputes among themselves. Apart from this, Song (2010)
also noted that there are two major challenges in the SCS Workshop; Firstly, the
SCS Workshop lacks strong willingness to discuss non-traditional security issues,
which are relevant in the context of maintaining the stability in SCS, such as sea-
lanes of communication management, institutional mechanism for cooperation, etc.
Secondly, the SCS Workshop lacks intensive discussion over political issues and
current ocean law in order to seek a resolution to resolve the SCS issues.
The essence of technical discussions in the workshop
Nonetheless, Satyawan (2018) noted that since 1990 until 2015 the Informal
workshop has been composing Group of Expert (GE) and five Technical Working
Groups (TWG), consisting of experts responsible to organize joint activities after
gaining approval from their government, namely: TWG on Marine Scientific
Research, TWG on Resource Assessment and Ways of Development, TWG on
Legal Matters, TWG on Marine Environment Protection and TWG on Safety
Navigation, Shipping and Communication. These technical projects initiated by the
Informal Workshop succeeded to maintain stability in the SCS area and even a few
outcomes from the Workshop were transformed into track one diplomacy, DOC and
COC. Djalal (2003) depicted that the technical working groups were firstly
established during the Third Workshop which was conducted in Yogyakarta in 1992,
in which workshop participants put more attention on technical discussions on the
issues of marine scientific research, marine environmental protection and safety of
navigation instead of sovereignty claim problem over islands in the SCS. This is
41
Djalal’s strategy to depoliticize the situation and somehow depoliticization could be
important to reduce the situational tension over the disputes in the SCS.
Besides, Song (2010) highlighted 2 workshops, the 18th workshop and the 19th
workshop, as these showed a moment for the first time China and Taiwan agreed to
work together in managing the potential conflicts in the SCS. Over the past 18 years,
Taiwan’s participation in the SCS Workshop process has been limited mainly China’s
continuing adherence to the One-China principle. The Chinese participants
consistently expressed their opposition whenever they found a written statement, or
a remark made by other participants that implied the recognition of Taiwan as a
country (Song, 2010)
Song (2010) portrayed that there was still no consensus reached on either Taiwan’s
proposal or Chinese proposal at the 17th SCS Workshop. However, the 18th SCS
Workshop, which was conducted in Manado, Indonesia in November 2008,
showcased an unprecedented event, in which China and Taiwan for the first time
agreed to hold a strong cooperation during the workshop’s intersessional period and
later produced a joint proposal, which would be adopted as the China-Taiwan South-
East Asia Network for Education and Training (SEA-NET) joint project at the 19th
SCS Workshop in November 2009. The reasons behind the Chinese willingness to
cooperate with Taiwan was due to the return of the Nationalist Party (KMT) to the
Government in Taiwan in the March 2008 presidential election. Afterwards, the 19th
SCS Workshop, held in Makassar in November 2009, strengthened the willingness
of this cooperation in the workshop process. The SEA-NET project was adopted and
constituted on scientific programs, notably marine sciences, ocean and coastal
management, would be implemented within 2 years, one year in Taiwan (2010) and
the rest in China (2011). As a result, all participants in the workshop acknowledged
this adoption as a concrete result and a milestone in the workshop process. Song
(2010) believed that the adoption of the China-Taiwan SEA-NET joint project at the
nineteenth SCS Workshop could be considered as a big leap towards Taiwan’s
participation in the workshop process.
The latest workshop was the 28th informal SCS workshop conducted in Manado,
North Sulawesi, Indonesia, on 9 – 10 September 2018 (MIMA, 2018). It was
42
attended by 64 participants from ASEAN, China and Taiwan, assisted by the
Indonesian Ministry of Foreign Affairs and Centre for Southeast Asia Studies,
Indonesia. It focused on the importance to compose confidence building measure
through projects and technical cooperation to build trust amongst the parties involved
so that peace in the South China Sea region could be maintained. Interestingly, the
latest workshop was not funded by the Government of Indonesia solely, but it was
also funded by the Government of China, Vietnam, and Taiwan. This portrayed that
the informal workshop has been recognized by the claimant states as a trusted
platform to assemble and discuss about the SCS issues.
4.1.4 Conclusion
Based on the document analysis, I can draw the following conclusions with regard to
the sub-questions: Firstly, talks and negotiation can be characterized as the players
in the informal workshops are participants from the claimant states, consisting of
China, Philippines, Vietnam, Malaysia, Brunei, and Taiwan. Regarding the moves,
China as one of the participants in the informal workshop made its moves by
rejecting the Philippines proposal to internationalize the SCS issues. Meanwhile,
some participants denied the moves initiated by the other participants to formalize
the informal meeting through establishing the secretariat. However, outside the
workshop, China also made its moves by sending a few ships on Spratly Islands with
the reason of conducting scientific research. Related to the rules, the informal
workshop has rules to avoid the use of force in addressing the SCS issue and thus
should be settled peacefully.
Secondly, regarding notions of sovereignty, there is major distinction between sea
and territory. There are also different references to the notions of sovereignty, some
emphasize Exclusive Economic Zones (EEZ), China’s Nine-dash line. The EEZ is
about water territory, the Nine-dash line policy is about China’s basis to claim
disputed islands in the SCS in a way that is using its historical rights principles. That
is the first issue. The other is the reference to the normative framework and this has
been expressed by also giving different names to the region of South China and its
disputed islands. For instance, Vietnam called the South China Sea as East Sea in
43
Vietnam and the Philippines called it as the West Philippines Sea. China called the
Paracel Islands the ‘Xisha’ and Vietnam called them the ‘Hoang Sa’. China named
the Spratly Islands the ‘Nansha’, Vietnam named them the ‘Truoang Sa’ and the
Philippines named them the ‘Kalayaan Island Group’. From the aforementioned
above, there are two things related to the notions of sovereignty: one, water and
territory. Two, EEZ vs Nine-dash line. And related to that there are different ways to
call islands. That is a strategy from the claimant states in a way that they used their
own language to name the islands. These are the different claims and notions of
sovereignty.
Thirdly, talking about talk and negotiation, it is very difficult to see them apart from
the role of Indonesia. Because at the end of the day, the actor who established or
the initiator of the informal workshop was from Indonesia, Professor Hasyim Djalal.
Besides, the way Indonesia gathering different players around table was to persuade
them that the informal workshop would focus on more technical discussion and
scientific projects, especially China whereby it was absent in the first informal
workshop. Besides, it is also interesting to see how T1 and T2 diplomacy combined
at the informal workshop. At the workshop, the role of Indonesian MoFA was bigger
than the workshop as the discussion of the workshop was frequently led by the
representative of the Government of Indonesia. In addition, in political reality, when
there was a sovereignty problem between Indonesia and China, Indonesia simply
denied the problem or framed it like a minor problem. This is Indonesia’s strategy to
deal with the big problem.
44
4.2 Results of Interviews
4.2.1 Actors, Moves, and Rules in the South China Sea Workshop
The dispute in the SCS has been occurring for decades. In 1980s, the tension SCS
of dispute was increasing and people were silent to talk about it as it was a sensitive
topic, notably on sovereignty and territorial dispute (Interviewee E; Interviewee H).
According to Interviewee H, around 1970s and 1980s, nobody knew about the
territorial disputes in the SCS, in which there was no clear information about what
Malaysia claimed, what Philippines claimed, what China claimed, etc. Due to Asian
Culture, every state tried to put the claim under the carpet. The involved states
worried about the implication if they talked about that issue to the public; open
confrontation and open conflict would be occurred. Accordingly, the government
officials were silent and there was no any information regarding states’ maritime
delimitation and or maritime claims in the SCS.
Indonesian interests
Since the SCS dispute is situated in the region of Southeast Asia, it affected the
countries near the region, including Indonesia. Indonesia has interest to maintain the
stability in the region and thus offering the space for the claimant states to gather
and meet regularly to discuss something less controversial, yet still related to the
SCS (Interviewee E). Indonesia was the first country that put the issue of SCS on the
table through the establishment of the Managing Potential Conflict in the SCS
Workshop or widely known as the SCS Informal Workshop, initiated by Professor
Hasyim Djalal in 1990 (Interviewee H).
The informal workshops
Interviewee G noted that the reason of the workshop establishment was because
Prof. Hasyim Djalal believed that the workshop could be used as a platform for the
parties concerned to keep talking and communicating so that the tension could be
reduced. The workshop was financially assisted by CIDA (Canada’s Official
Development Assistance) (Interviewee B; Interviewee H). However, Interviewee B
45
noted that since 2000s Canada stop its funding because Canada changed its
interest to help NATO combating terrorism with the issue of post 9/11; and Canada
also felt that the informal workshop had been working well. Interviewee H also
argued that the informal workshop was not only funded by Canada, but also aided by
the Government of Indonesia, in particular Indonesian Ministry of Foreign Affairs
(Interviewee H).
Actors and their moves in the workshop
Nevertheless, Interviewee I stated that the SCS Workshop was a form of Track-Two
(T2) diplomacy, in which the workshop was attended by purely academics, scientists,
scholars, and experts discussing about the technical issues in the SCS. However,
now the SCS Informal Workshop is not purely T2 diplomacy anymore, instead it
slightly changed into Track-One and Half diplomacy, in which it indirectly involved
the government because the scientists who are attending the meeting, some of them
are also government officials (Interviewee C; Interviewee E; Interviewee G;
Interviewee H; Interviewee N).
Interviewee G reported that although the workshop he joined was certainly indicating
the T2 diplomacy comprising academics or expert or NGOs, he also found officials
within the same forum, in which these officials coming to the workshop declared
themselves not behalf of their country, but behalf of themselves or personal capacity.
Interviewee E emphasized that although the government were representing
themselves as personal individual, the government could not just take off their suit
and position. Therefore, the participants in the workshop still recognized some
participants as government officials.
Since the workshop is a Track One and Half diplomacy, it involves the government
and non-government participants from scholars, researchers, and experts
(Interviewee N). Interviewee N assumed that the workshop does not talk about the
political negotiation and delimitation issues. Instead, the workshop is more about
research and scientific oriented, in which the issues discussing are very technical,
such as marine desalination, marine environmental protections, etc. The workshop
helps people to share their knowledge, ideas, and discussion, as well as to serve as
46
Confidence Building Measure and Practical Maritime Cooperation in the areas of
SCS. However, the China’s academic says that the view of personal individual does
not reflect the position of Beijing (Interviewee I).
Interviewee I assumed that the scholars attending the workshop must have good
relationships with the government so the scholars have a good understanding of the
government position which enabled them to provide influence to the policymakers
and vice versa; the government is also heavily depended on the advice of academics
since this issue is too sensitive to be discussed on the Track One (T1) diplomacy or
government officials. Indeed, the selected group of people involved in the informal
talks is coming from different stakeholders.
However, Interviewee G felt that it was very hard to distinguish between officials and
non-officials because they cannot just open their attribute and declared that they are
in the workshop on behalf of themselves. So, the parties of the workshop are people
from all countries involved, but in their personal capacity, usually scholars and
NGOs. However, Interviewee B assumed that Track Two and Track One and Half
diplomacy are quite similar in terms of purpose because the outcomes of the
discussion would be meant to be provided to the stakeholders, notably on the
Ministry of Foreign Affairs of each and every stakeholder.
Indeed, they represent as individual capacity, but I understand that they are also
from the office. For example, at that time, I remember someone from the
Embassy of Brunei in Jakarta was there. I remember that. He actually introduced
himself as a diplomat even though once again, he always mentioned that I am
from the Embassy of Brunei, but I am here on my personal capacity.
(Interviewee G).
Rules of the workshop
Besides, Interviewee H noted that it was in the Informal workshop that people
eventually knew who claimed what and people started to clarify everything. China
suddenly endorsed the nine-dash line. It was in the workshop. Before, China never
exposed it. And then everybody knew about the nine-dash line. And people also
finally knew that Malaysia, Vietnam, Philippines, and Brunei were part of claimant
47
states. This is very important because if they sit together here and then talk, it would
be, at least they have already solved one problem, that is distrust and miscalculation.
If there is no meeting at that time, people cannot manage underground which is very
hot and vulnerable due to the distrust and miscalculation. The workshop participants
sit down together around the table to talk in very informal and peaceful way. There is
no legal consequence to them for saying anything. People in the workshop are free
to say anything.
In the workshop, they normally have reports which are distributed to all participants
and also other parties. The reports are not binding but certainly they will be very
important documents for everybody to refer to when it comes to the issue
(Interviewee G). The workshop starts the discussion from the non-sensitive issues,
technical issues, and then it becomes scientific. And then, during the workshop
process, there is a sort of ice breaking to stimulate the representative of the claimant
to talk (Interviewee H). Ever since then, Djalal kept trying to invite the claimants on
the table although China was reluctant to join at the first time; China preferred to use
the bilateral negotiation instead of multilateral meeting. Thus, China did not
participate in the first SCS workshop. Afterwards, Indonesia tried to convince China,
notably when Prof. Hasyim Djalal went to China to say that this is informal, and it
does not prejudice your claim, and finally China is willing to participate in the Second
SCS Workshop until now.
The maneuvering of the workshop
Interviewee B noted that currently, the SCS Workshop is managed by Indonesian
MoFA under the auspices of the Policy Research division, which actively invited the
different stakeholders discussing the issue of SCS. The stakeholders are invited to
set up join cooperation and or join exploration on natural resources in the SCS
among the claimant states in order to reduce the tension. Given that the government
officials were involved in the workshop, the issue of sovereignty is totally sensitive to
be discussed. However, when the sovereignty and territorial maritime topics were
being addressed, the workshop did not continue the discussion and changed into
another topic of discussion due to its sensitivity and volatility (Interviewee B).
Interviewee C noted that the Informal Workshop played an active role in influencing
48
the foreign policy of claimant states. However, it is acknowledged that there are a
few issues that are unlikely to be discussed in the forum. Interestingly, the Informal
Workshop is able to invite Taiwan as one of interested parties, but not as a state.
Interviewee H noted that Taiwan is not recognized as a state and invited to be one of
the participants which concerned over the issue of SCS.
During the workshop, Prof. Hasyim Djalal did not attach the official protocols which
enabled the participants to speak frankly and openly regarding the maritime features,
islands, and anything in the SCS (Interviewee C). Interviewee L noted that the
workshop was successful to make scientists and academics assembled in one place,
which generated some meaningful and positive outcomes such as the establishment
of fisheries and environmental management in 2000s, which was crucial in
influencing in the state cooperation in the SCS. It is aware that there are some
limitations such as military and bureaucracy interests that came took place in
managing the SCS disputes, but eventually the workshop played pivotal role in
providing the advice to the policymakers, which also made the scholars and experts
being respected. Although the workshop is not aiming to directly solve the dispute, it
is aiming to make its recommendations being considered in formal settings
(Interviewee E). Interviewee E reiterated that there is no sort of obligation for the
participants to implement the recommendations from the workshop. Nonetheless, the
gathering of participants in workshop is already a good sign as they still can
communicate and talk over the issues of SCS.
Interviewee G reported that when he joined one of series of workshops, he
discussed technical and scientific issues, such as maritime and marine scientific
research, and there was no any political issue discussed in the workshop. Not to
mention, the involvement of Indonesian MoFA is quite clear in the workshop, not on
behalf of the Ministry of Foreign Affairs, but as a committee. Besides, China also
participated in the informal talks and it was in the workshop when China for the first
time revealed its historical rights as the basis of its claims in the SCS. However,
there was no clarity whether China claims the entire water inside the nine-dash line
or it claims the features inside the nine-dash line and the surrounding waters which
eventually would make China as an archipelagic state (Interviewee C, 2018).
49
Interviewee C noted that China’s claims on nine-dash line are not made in reference
to the law of the sea UNCLOS 1982. Besides, he assumed that Declaration on Code
of Conduct (DOC) 2002 was one of the achievements of workshop because the
parties concerned brought home the outcomes generated from the workshop and
communicated these outcomes with their respective Ministry of Foreign Affairs.
Interviewee H noted that from the information gained the workshop, the parties could
make mapping over the positions of claimant states in the workshop. As solving the
territorial sovereignty dispute is beyond the mandate of the workshop, DOC was then
established to identify the root cause of problem. DOC is currently attempting to
promote self-restraint, confidence building measure, and preventive diplomacy. DOC
obtained lots of information from the workshop. Due to the workshop, DOC is able to
limit the scope of the problem. Most importantly, DOC tried to convince the claimant
states to resolve the dispute in a peaceful manner instead of using the force.
Indonesia’s strategy
Besides, when the Informal Workshop was conducted, Indonesia ensured that all
parties were involved and invited in their capacity, either as personal individual or
government officials. Afterwards, the report was made based on the activities
occurred in the workshop and then distributed to all parties (Interviewee G). The
workshop then served to build the same understanding and the Confidence Building
Measure among the claimant states so that they could work together to resolve the
dispute in the SCS since the SCS dispute was not only about territorial conflict, but
also containing crime and maritime security (Interviewee D). Interviewee C noted
that given that there were no direct consequences from the workshop, the parties felt
comfortable to express their view honestly regarding the SCS and the decisions
made in the workshop was based on consensus among all parties involved. In
addition, the workshop served as a platform of dialogue or a venue whereby people
could speak openly so that the issues in the SCS could be addressed and the
information in the workshop could be formulated as policy recommendations
although there was no any guarantee that those recommendation would be
completely adopted by their respective governments (Interviewee E).
50
The workshop as an arena of dialogue
According to Interviewee G, the objective of workshop is dealing with potential
conflict meaning that Indonesia or another participant does not want the conflict
emerged into bad interaction such as in war. Therefore, the workshop consistently
reaffirms that the parties concerned should treat this dispute and interact in a
peaceful way during the informal talks in the SCS workshop. Interviewee E described
that the technical agenda in the workshop could attract the claimant states to talk by
framing the technical issues relevant with claimants’ interests. For instance, the
issue of sea-level rise. Since all claimants were claiming small maritime features
either rocks or just small islands and believed that sea-level rise was happening,
those features could be literally drowning due to the sea-level rise. If those features
drowned, then the claimants would have no such claim. Therefore, they came to the
workshop to discuss about the sea-level rise, as well as marine protected areas in
the SCS. Since the workshop served as the informal talks, there was no any specific
rules. The workshop was dedicated to be a venue to make the parties concerned
meeting and discussing less controversial issues (Interviewee E). The reason why
Prof. Hasyim Djalal invited academics into the workshop was to hope that the
workshop could produce positive outcomes which provided benefits not only for the
claimants states, but also for all countries in the region of Southeast Asia
(Interviewee K).
However, Interviewee I noted that since the workshop served as an avenue for
testing ideas, it also served as an avenue for asking difficult questions. In the SCS
Informal Workshop, there is a formal area of discussion and an informal area of
discussion. During the informal area of discussion, such as during coffee break or
during dinners, the parties used that moment to ask those difficult questions. Yet, the
participants are already aware that there are some lines that they cannot trespass,
including sovereignty issues. According to Interviewee H and Interviewee I, the best
outcome of this workshop is able to gather all parties involved together and sit
around the table to discuss the SCS issues, in which this was considerably unlikely
to be conducted through government meeting or T1 diplomacy due to the resistance
derived from claimant states. When Prof. Hasyim Djalal moderated the workshop, he
started the discussion from the non-sensitive issue and gave opportunity to all
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participants to talk freely without touching the sovereignty issue. However, the
people in the workshop preferred to be silent at the very beginning and Prof. Djalal
took initiative to break the ice and or to make the situation liquid and relaxed so that
it could be effective to stimulate the representative of claimant states to talk, albeit on
behalf of personal capacity (Interviewee H).
Nevertheless, Interviewee G felt that since the workshop is not a form of official
negotiation, there is neither such an agreement nor consensus in the workshop.
After scientists and experts presented their view, the other participants addressed
some questions to them; this question and answer session was then recorded and
documented. However, Interviewee H depicted that the decision-making process in
the workshop is based on consensus, if one disagrees then it cannot be decided. In
addition, when another participant unintentionally touches the issue of sovereignty
during the workshop, the moderator would try to skip the issue. Since it is very
informal talk, there is sort of self-restraint for delegates not too much talking about
the issue (Interviewee H). If disagreement happens in the workshop, it does not
become a problem because the parties concerned have already established
personal connections among each other and they could just talk to each other
directly in the informal session of discussion of the workshop (Interviewee I).
Interviewee I noted that the weakness of workshops is that the participants are not
decision-makers and or policy-makers, instead, they are just academics, experts
coming from think tanks, meaning that it is not legally binding. The involvement of
the navy, coast guards, local leaders in the coastal communities is necessary
because those affected by the dispute are those that would be able to make changes
over the SCS dispute.
Activities before, during and after the workshop
According to Interviewee E, there is a preparation before the workshop is being
conducted. The preparation is similar with another normal workshop. A team from
Indonesia is established to prepare what kind of topics to be incorporated in the
discussion. If one of participants has a new fact related to the SCS issues, such as
research on sea level rise, this person is then preparing the presentations for the
workshop. During the discussion, the participants present their research, followed
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with questions and answer sessions. Afterwards, the participants prepare a resume
or short conclusion of the workshop and they make sort of arrangement to meet
regularly in the next year.
After the workshop, the committee holds a small review on the result of workshop.
The review is very technical. For example, what is the activity to be done prior to
next workshop? As the workshop is going to be convened regularly, the committee is
preparing the substance for the next meeting and what kind of issues that should be
brought to support the discussion on the next meeting. Accordingly, the workshop is
very informal; it is a common second track workshop. Through the establishment of
informal workshop, Indonesia aimed to get participants from claimant states
assembled and then talk among themselves and tried to get information as much as
possible from one to the other (Interviewee E). Based on well-informed information
and data from the workshop, the parties could interpret what happened on the
ground. The informal talk process is conducted in a peaceful and conducive way.
This is the way on how the workshop can reduce the tension in the SCS dispute.
Trust building in the workshop
In addition, when Interviewee H joined one of the workshops, he found some
confusing lines in the map of SCS, such as a line claimed by Vietnam, Philippines.
When he directly checked the line with Vietnam and Philippines in the SCS
Workshop, both countries denied it and say that only this area is part of their claims,
meaning that the workshop gave opportunity for participants to identify and clarify
claims made by the claimant states. The best part of workshop is that the parties are
not discussing either territoriality or sovereignty. Instead, they are discussing
something that is correlated to every claimant but not the territoriality (Interviewee E).
Because once the sovereignty issue is addressed, the topic becomes controversial
and people will retreat. If participants leave the room, then there is no discussion in
the workshop. If there is no discussion, then there is no a trust building venue.
The trust should be constantly developed among the parties involved through having
less controversial discussions. Interviewee I noted that the lessons learned from the
workshop is that even though there are unresolved territorial waters and or disputed
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waters on the ground, the Informal workshop can still take place, meaning that trust
is the biggest achievement of the workshop. Therefore, the parties concerned
representing claimant states are still willing to sit around the table and meet regularly
to discuss the SCS issues, as well as to work together with the purpose to maintain
the regional stability, safety of the waters and freedom of trade routes (Interviewee
E; Interviewee I).
4.2.2 Views on Sovereignty by Interviewees
Distinction between maritime features and maritime boundaries
To understand the complexity of territorial sovereignty dispute in the SCS,
Interviewee H distinguished the problem into two categories; maritime features and
maritime boundaries. Maritime features are basically referring to islands or rocks or
any features, in which the problem constituted which countries owned which islands
or rocks or any features in the area of SCS. The notion of maritime features is well-
known as title to islands or title to rocks. Meanwhile, maritime boundaries are
attributing to waters and zones. For instance, if one claimant state claims a Spratly
Island or Paracel Island, the claimant will also claim how far the maritime zone of its
claim.
Interviewee B delineated that based on the convention of the law of the sea, there
are four areas of maritime sovereignty; 12 nautical miles boundary, 24 nautical miles,
200 Exclusive Economic Zone (EEZ), and High Seas. Firstly, 12 nautical miles
boundary is an area where states have jurisdiction and full control over their
territorial water. Small islands or rocks or low tide elevation in the SCS will have at
least 12 nautical miles of territorial sea (Interviewee G). Secondly, 24 nautical miles
boundary is an extension of zone where jurisdiction goes until customs, however,
states sometimes do not have full legal jurisdiction over that case. Thirdly, 200
Exclusive Economic Zone is a maritime zone in which states are permitted to exploit
and explore that natural resources there. Lastly, High Seas or known as international
waters are maritime zone determined by international regulations and not by national
jurisdiction.
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Difficulty of solving maritime sovereignty
Nevertheless, Interviewee H emphasized that the root cause of dispute lied in the
maritime features, who owned the islands or rocks or any features in the SCS. The
problem is getting more complexed when the maritime features are not solved yet,
but claimant states already projected the maritime zone from the title that they
claimed. The dispute in the SCS can only be resolved if the claimant states are
willing to settle the dispute amongst themselves. Before the establishment of United
Nations (UN), the territorial dispute was solved through conquering or occupation,
such as in the first world war or second world war. However, after the UN Charter,
the UN forbids the use of force for territorial acquisitions; thus, the use of force is no
longer valid. Currently, the UN regulates that the territorial disputes should be settled
through negotiations. Yet, territorial dispute is utterly hard to negotiate. Even, it is
completely impossible to compromise as the territorial dispute is about the absolute
position.
When a country attempts to compromise its national territory, its home parliament
will heavily reject that proposal since territory has been part of national sovereignty
(Interviewee H). Interviewee H argued that after the UN Charter is established, there
is no single territorial dispute in the world which is successfully resolved by bilateral
negotiation and hence, country always needs third party to get involved, such as
Timor Leste dispute (settled with third party, UN), Peda Branka dispute (settled with
third party, ICJ). However, no claimant state is willing to go to the third party until
now; therefore, if claimant states are still relied on having direct negotiation or
bilateral negotiation, then they will probably not acquire any progress over the
dispute settlement in the SCS.
Exclusion of Taiwan as a claimant state
According to Interviewee E, the maritime dispute in the SCS is not possible to be
overcome in the near future since there is no clarity over the dispute itself, which
countries claim which islands. Although there have been lots of articles and rumors,
there is no official statement from claimant states to clearly clarify their claims in the
SCS. Interviewee B and Interviewee M noted that there have been several countries
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involved in the dispute of SCS, such as the Philippines, Vietnam, Malaysia, Brunei,
and China. However, Taiwan should also be included as a party to the SCS dispute
since Taiwan has claimed some maritime features and conducted military operation
with their navy in the SCS (Interviewee I; Interviewee K). Interviewee I reported that
claimant states cannot just ignore Taiwan since a few years ago there was a fishing
dispute situated in the SCS between Taiwan and the Philippines, whereby Taiwan’s
navy eventually arrested and shot some Filipino fishermen.
This occurrence clearly led those two disputed countries to be party in the SCS
dispute. Interviewee I and Interviewee F contended that Taiwan is not recognized as
an independent state by United Nations and other claimants states due to the One
China policy. One China policy constitutes a policy which is only recognizing one
China in the world, the People’s Republic of China (Interviewee G). Accordingly, the
problem is getting more complexed when Taiwan is not included in the Track One
(T1) Negotiation regarding Code of Conduct (COC) whereas Taiwan has claimed a
few islands, which are disputed in the SCS (Interviewee I).
The implications of China’s Nine-dash line
Besides, while the other claimant states are only claiming some maritime features,
China claimed all maritime features in the whole SCS with its Nine-Dash Line policy
based on historical rights, overlapping with all claimant states. For instance,
Malaysia claimed some features which are also claimed by Brunei, and Philippines.
The Philippines could overlap with Malaysia and Vietnam. However, China’s claims
overlapped with all claimant states instead of one or two parties involved
(Interviewee H). The so-called Nine-Dash Line policy has been submitted for the first
time to the United Nations in 2009 (Interviewee G). Since China’s Nine-Dash Line
policy overlapped all maritime features in the SCS, it also overlapped Indonesian
sovereignty, Natuna Islands (Interviewee A).
When China submitted its Nine-Dash Line to the United Nations, Indonesia also
submitted a letter asking for clarification to the UN and China did not give any
respond over the letter (Interviewee I). Yet, Interviewee G assumed that there is a
potential overlapping claim or overlapping entitlement between China and Indonesia
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as a non-claimant state. While entitlement is defined as a space that a country is
entitled to, which is based on the law of the sea convention, claim means a country’s
unilateral action drawing the line up based on its entitlement. Although Indonesia has
no problem in terms of territory or land, Indonesia seems to have potential dispute
with Malaysia and China in the SCS. China perceived that its Nine-Dash Line EEZ
overlapped with Indonesia’s EEZ based on its historical claim (Interviewee G).
However, based on the international law, Indonesia has a clear position as a non-
claimant state and does not have any disputes with any claimant states in the area of
SCS (Interviewee C; Interviewee D; Interviewee E; Interviewee F; Interviewee H;
Interviewee J; Interviewee K). Interviewee C also noted that Indonesia does not
recognize China’s Nine-Dash Line policy as Indonesian territorial sovereignty is
based on the international law of the sea; and the law of the sea does not
acknowledge the China’s policy (Interviewee C).
Interviewee D emphasized that concerning territorial sovereignty, Indonesia based
its sovereignty to the UNCLOS as part of the international recognition of the law of
the sea; thus, Indonesia is firm that its sovereignty is non-negotiable. Meanwhile,
China’s claims with historical rights based are not acknowledged by the international
law, UNCLOS. Therefore, there is no overlapping claims between China and
Indonesia since China’s claims are not legitimate and rejected by the international
law (Interviewee E). Interviewee K reported that after Indonesian President Joko
Widodo conducted bilateral visit to China in 2015, a few days afterwards Chinese
Prime Minister Xi Jinping stated that China fully acknowledged that Natuna Islands
belong to Indonesian sovereignty.
Sovereignty claims by other claimant states
Apart from this, there have been some maritime features claimed by the claimant
states, including Scarborough reef claimed by the Philippines. Since the
Scarborough reef is situated within the territory of the Philippines, the Philippines
gained full control over its territory up to 12 nautical miles as part its territorial
sovereignty (Interviewee B). Due to the China’s Nine-Dash Line policy, China also
claimed Scarborough reef, in which it is clearly within the territory of the Philippines
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mainland. Hence, the Philippines put its military operation such as Naval vessel and
the Sierra vessel to maintain control over the Scarborough reef.
Meanwhile, Interviewee B noted that Vietnam also generated a counter policy to
China by deploying its oil rigs to conduct energy exploration in its claimed features
as Vietnam believed that those maritime features still belong to Vietnam. China then
protested Vietnam for that action as China perceived that Vietnam encroached
Chinese territorial waters. Interviewee K argued that China is getting more
aggressive through its action of conducting reclamation and military building in its
islands which are claimed in the SCS. China has been aware that SCS contained
enormous natural resources, notably mineral and gas as China needs those to
maintain its industrial and mining development. Interviewee L also noted that the
reason why China secured the sea lines of communication in the SCS is because
China is a country heavily relied on the energy, in which there are around 1.3 billion
people living in China; and thus, China requires more gas and oil to support its
industrial development to maintain its welfare.
UNCLOS and ARF
Since most of claimant of states are part of ASEAN, they are heavily relied to
ASEAN to resolve the dispute. Interviewee F and Interviewee K contended that
ASEAN is a multilateral organization which aimed to preserve the peace and stability
in the region and thus, it prevailed to prevent the conflict occurred in the region while
attempting to build the trust through consensus amongst the member states. ASEAN
has constantly been upholding the existing international order, notably UNCLOS
1982 and is actively involved in promoting SCS as ASEAN water with the purpose to
provide free, open, and safe access in the SCS (Interviewee B). Regarding the SCS
dispute, ASEAN has been established ASEAN Regional Forum (ARF) to help
overcome the dispute (Interviewee F). Still, ASEAN is not able to settle the dispute
as ASEAN is not built to be a dispute settlement body (Interviewee F; Interviewee H).
Interviewee G argued that the SCS conflict should be addressed by bilateral
negotiation between the parties involved.
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However, ASEAN is not strong enough to interfere the dispute and make a
resolution. ASEAN lacked power and influence to enforce the parties involved with a
binding agreement (Interviewee I). Interviewee A noted that although ASEAN has
recently generated Declaration on the Conduct (DOC) and Code of Conduct (COC),
there is still no any single concrete dispute settlement produced from the COC
negotiation. However, DOC and COC negotiation have successfully made the
claimant states conducting self-restraint and continuing negotiation among
themselves in order to maintain the regional stability (Interviewee C; Interviewee H).
DOC and COC
Interviewee J also portrayed that the COC agreement signed in August 2017 aimed
to make all parties concerned preserve the security and stability as it could also
possibly affect the economic stability for the states in the region of SCS. Since the
COC is one of the goals of DOC and has generated Single Draft Negotiating Text
(SDNT) in ASEAN Summit in November 2018, it needs to be well-implemented
through consensus at the Ministerial level meeting or at the working group level
(Interviewee K; Interviewee N). Interviewee L argued that China’s promise to
conclude the SDNT in 2021 is only a camouflage, in which President Xi Jinping could
claim that agreement as his diplomatic victory for China related to the dispute in the
SCS, so that he could have a great opportunity to be reelected as the China’s
President for the second term.
Nonetheless, ASEAN seems incapable to manage the dispute even though it is
already equipped with the SDNT from COC negotiation; and thus, External powers,
could possibly be involved in handling the dispute since ASEAN has completely
failed to deal with the maritime delimitation dispute in the SCS (Interviewee L).
However, Interviewee H argued that there is no any single claimant state willing to
involve third party since the dispute itself is fundamentally related to the national
sovereignty, and the claimant states never have an intention to compromise their
national jurisdiction and maritime territorial sovereignty.
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PCA Awards 2016
Nevertheless in 2016, the Philippines went to the Permanent Court of Arbitration
(PCA) in the Hague reporting its protest of overlapping claims with China in the SCS.
Interviewee A noted that after the Philippines gained the arbitration award by the
PCA against China, Malaysia and Vietnam could use the arbitration to negotiate their
maritime and delimitation claims against China policy. However, the PCA result
cannot be used to resolve the problem since it is addressing issues arising from
UNCLOS; and UNCLOS is not the convention that determines which island belonged
to which country.
While the issue of island ownership (which island belonged to which country) is
under the international law, UNCLOS is only addressing how long the nautical miles
a country can claim in terms of territorial sea, maritime zone, continental shelf, and
EEZ if that country owned an island or land that could sustain human habitation
(Interviewee H). Interviewee H argued that UNCLOS is not a body deciding which
islands belonged to which states, instead, it is only addressing maritime waters or
zones deriving from maritime features the claimant states claimed in the SCS.
Besides, Interviewee G reported that based on the valid decision of PCA, there are
no features over the SCS that are entitled to more than 12 nautical miles of territorial
sea, meaning that features claimed by the claimants are not considered as a full
island, and only considered as a merely rock or low tide elevation. One of the PCA
decisions is that the availability of natural resources within the island and external
support from the mainland should be able to support human habitation. Although the
claimants have built artificial islands and military buildings, those are not
acknowledged by the PCA decisions as an island having 200 nautical miles
Exclusive Economic Zone.
After the result of PCA, people started to talk about the disputes in the SCS more
intensively (Interviewee C). The PCA result postulated that it becomes a clear
message for China that its claims are not referring to the law of the sea, territorial
claims in the SCS should be solved immediately, and all conflicting parties should
respect the law of the sea. Even though the Philippines won the PCA arbitration
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awards, the Philippines has not taken any initiative to take advantage of its victory,
which is there has yet response from the Philippines related to the PCA conclusion
(Interviewee I). The PCA result also invalidated China’s Nine-Dash Line policy and
thus, China lowered its assertiveness to promote its policy (Interviewee H;
Interviewee I).
4.2.3 Indonesian diplomatic skills in the South China Sea dispute
According to Interviewee H, there are two ways to understand Indonesian position in
the South China Sea (SCS) dispute. In the first way, Indonesia is not a claimant
state, meaning that it does not claim any feature in the SCS. Indonesian features are
also not claimed by the other states. It is different with the other claimants who
competed to claim the Spratly or Paracel Islands in the SCS. The term claimant can
only be relevant if whether or not a state is claiming a feature in the SCS.
Accordingly, in the first cluster to territory or question of sovereignty, Indonesia is
officially not a claimant state.
Indonesia’s interests
However, in the second way, Indonesia is certainly an interested party. Based on the
preamble of the Indonesia’s constitution, Indonesia should create a peaceful
international order, in which Indonesia has responsibility to maintain the regional
stability in the South East Asia region. Therefore, Indonesia is willing to participate
and playing role as a mediator in the dispute over the SCS. Since the claimant states
acknowledged Indonesia as a country that has no interest on the question of
sovereignty, Indonesia played its role as an honest broker to reduce the tension in
the SCS dispute (Interviewee B; Interviewee C; Interviewee D; Interviewee E;
Interviewee G; Interviewee H; Interviewee K; Interviewee L). Interviewee C argued
the way Indonesia reducing the tension is through setting up the norms and rules in
the informal workshop of managing potential conflict in the SCS in the early 1990s,
followed with joint working group on the implementation of Declaration on Code of
Conduct (DOC). Although the territorial dispute is still difficult to be resolved,
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Indonesia attempted to exercise this diplomatic approach within the agreed norms
and rules, as a platform to engage China diplomatically.
As Indonesia also respects international rules and norms, Indonesia followed the
decision of the Permanent Court of Arbitration (PCA) in 2016 that the Chinese nine-
dash line policy is invalid the SCS (Interviewee B; Interviewee G). Since there is no
legality of the nine-dash line policy, Indonesia government thus does not recognize
it, in which it is also not in accordance with the law of the sea. Interviewee E believed
that Indonesia perceived the dispute as a threat to the stability of the region. That is
why, Indonesia has interest to ensure that the dispute will not be turning into
something bad. Therefore, Indonesia constantly encourages the parties of the
dispute to always sit down together, to talk regularly, and then to discuss something
less controversial or less disputable in the informal workshop (Interviewee E).
However, Interviewee A assumed that Indonesia must have an interest in the conflict
prevention over the dispute in the SCS. He further suggested that Indonesia should
maintain its neutrality by taking one side, not based on partisanship, but based on
the principle of international law, in which China essentially violated, such as Treaty
of Amity and Cooperation (TAC), DOC, the Reclamation and Militarization in the
SCS, etc. However, Interviewee B assumed that the interest of Indonesia to mediate
the dispute is not only about maintaining the stability of the region per se, Indonesia
also concerns the SCS as a principal of sea line of trade of communication and also
mobility of goods arriving in Indonesia.
If there is a disruption of sea line in the SCS, there will be an increase in prices and
scarcity of goods, in which it could affect the Indonesian economic indirectly. Since
the SCS has also been an important artery for the air travel, it could slow down the
movement of people if there is a blocking in the SCS due to the territorial dispute
amongst the claimant states. Interviewee B also criticized the current Indonesian
Minister of Foreign Affairs that her current focus is about the conflict in Palestine and
the Indonesian role in the United Nations Security Council (UNSC) instead of the
dispute in the SCS.
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Indonesia as a broker
However, Interviewee D rejected the assumption by saying that the SCS is still
Indonesian top priority concern as it is related to the Indonesian national interest.
Interviewee C emphasized that Indonesia has been very active in attempting to
reduce the tension of SCS dispute to maintain the regional stability. Being a non-
claimant state makes Indonesia obtaining both limitation and opportunity to resolve
the dispute. He further explained that since Indonesia is not a party to the dispute, it
limits Indonesia’s involvement in trying to resolve the territorial dispute itself as it
should be solved by the parties themselves. As Indonesia realized that there is no
dispute solved bilaterally, Indonesia takes position as a third party, in which it gives
Indonesia an opportunity to be a peace broker in trying to reduce the tension. As a
non-claimant state, Indonesia has more diplomatic space to gather all conflicting
parties to socialize norms, to set up rules, so that the conflicting parties in the SCS
would behave according to the agreed international law and norms.
Besides, Interviewee D asserted that Indonesia has been considered as an
important player by the claimants even though it is not a conflicting party in the SCS.
It was proven during the announcement of PCA decisions in 2016 in Den Haag.
Before the PCA awards were announced in the court, all countries participating the
PCA looked at Indonesia and were curious about Indonesian position. After the PCA
results were announced, all claimant states were waiting for the Indonesian
response over the PCA awards 2016. Afterwards, Indonesia responded the PCA
awards by uttering a statement that Indonesia is still neutral in responding to the
PCA decisions and still being a non-claimant state. This condition portrayed that
Indonesia played a pivotal role over the SCS dispute, in the perspective of claimant
states.
He further emphasized that there have been five points whereby Indonesia conveyed
those as a concrete form of its standing position in responding towards the PCA
awards 2016 in Den Haag; Being self-restraint, continue the negotiation among the
claimant states, implementation of DOC, continue the negotiation of COC, and
respect to the international law. He pointed out that self-restraint is very important
and should be applied for all the conflicting parties who have interests over the SCS.
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Indonesia has also conducted some programs and workshops as part of contribution
to the implementation of DOC. Indonesia has also ensured that the COC process is
running smoothly by proposing some ideas this year and it worked, as few years ago
the COC progress was quite stagnant.
Apart from this, there have been some assumptions that China has overlapping
claim with Indonesia. Interviewee H heavily rejected those claims by saying that
Indonesian position is clearly based on the international law, UNCLOS. Meanwhile,
China has made a unilateral claim which is based on the history. The China’s
historical claim, unfortunately, has no basis and is not related to the international law.
Even, the PCA decisions have announced that the China’s nine-dash line is invalid
policy in the SCS. When China officially declared its nine-dash line for the first time
in 2009, Indonesia sent a diplomatic note to United Nations in 2009, asking the
China’s clarification over the claim.
However, China never replied it, which eventually made Indonesia never recognized
the nine-dash line policy. Indonesia also applied the rules-based behavior, which
means that Indonesia based its policy based on the international law, while historical
claims were not in accordance with the international good order (Interviewee F).
Interviewee G also underpinned that according to the law of the sea convention,
China’s entitlement has no entitlement that is overlapped with Indonesian
entitlement. Therefore, it seemed that there is no maritime dispute and or maritime
boundary delimitation between Indonesia and China.
The maneuvers of Indonesia through the informal workshops
Since Indonesia has been entrusted to be an honest broker in SCS dispute,
Indonesia attempted to reduce the tension by building trust amongst the claimant
states through the establishment of informal workshop (Interviewee E). Interviewee
C highlighted that Indonesia exercised the informal workshop as a track two
diplomacy to deal with SCS dispute. He claimed that DOC is a concrete product of
the informal workshop. The way informal workshop worked was by involving not only
scholars and experts, but also senior officials or influential leaders from respective
countries during the discussion in the workshop. During the workshop, Indonesia
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along with other ASEAN member states set up the norms and the rules, so that the
participants attending the workshop could have a dialogue under the same agreed
norms and rules. The results of the workshop became more effective when they
brought the results to their home countries, communicating with their respective
Ministry of Foreign Affairs.
However, Interviewee G emphasized that although it is not allowed to talk about
sensitive issues in the workshop, participants sometimes cannot avoid talking about
sensitive issue, as the party involved in the workshop is from different countries with
different opinion. He further described that there was a moment where one or two
speakers touched upon the spot or sensitive issue even though they did not mean to
do it. The reaction coming from the other parties was that they raised a question or
clarification about their ownership in the SCS and some of them did not talk much
about that particular topic.
Afterwards, Indonesia as the moderator of the informal workshop would amicably
alter the direction of the conversation. Indonesia realized that the topic of ownership
or island is certainly about the sovereignty issue. Thus, Indonesia does not want the
conversation continued. Indonesia restrained itself from commenting the sovereignty
and reminded the participants that based on the agreed rules, it is not allowed to
further discuss the issue of sovereignty. That is how Indonesia dealt with the
sensitivities and substantive views on sovereignty. Indonesia also depoliticized the
informal workshop by allowing the parties to talk about scientific matters (Interviewee
G). If a participant tried to provoke the others by touching the sovereignty topic,
Indonesia would wisely remind them about the workshop rules, which do not allow
the parties to discuss sensitive and controversial issue, and kindly suggested the
participants to talk about technical issues and/or scientific issues. That is how
Indonesia conducted the preventive action. Apart of sovereignty topic, all parties
could have discussion about any topic related to the SCS issue during the informal
workshop. Therefore, Interviewee H assumed that Indonesia exerted a sort of
cocktail diplomacy, in which people could talk anything with anybody without any
restraint in the informal workshop of SCS.
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Besides, Indonesia has also played its track one diplomacy through the Indonesian
Policy of Global Maritime Fulcrum (GMF) (Interviewee E). The GMF was introduced
by the Indonesian President Joko Widodo during the presidential debate in 2014.
The GMF contained five pillars and was commenced with development of White
Paper on Indonesian Maritime diplomacy. Until now, the government is still finalizing
the document. He generally described that the document has a few main principles,
such as independent and proactive, development oriented, and rules-based
approach. It also contained substantive information related to Indonesian free and
active foreign policy, geographical situation of Indonesia, and challenges on maritime
issues.
There are four plans of Indonesia’s maritime diplomacy, such as; the protection of
Indonesian sovereignty and sovereign rights, ensuring the welfare of Indonesian
citizens and interconnection between regions in Indonesia, maintaining stability in
the region based on the international law, and increasing national capacity and
providing capacity building for the Indonesian partners and counterparts in the pacific
and Africa in maritime issues. The issue of SCS is related to one of these action
plans, maintaining the regional stability based on the international law. Therefore,
Indonesia is very active in encouraging the parties involved in the SCS dispute to
abide by the international law (Interviewee E).
Indonesia also further suggested that all parties to exercise self-restraint to refrain
from any action that could escalate the tension. The informal workshop aimed to
build the trust among the conflicting parties to cooperate together to resolve the
territorial dispute. The trust could make them realized that the instability will not
benefit any party. The trust that will lead them working together on the same page,
through the implementation of DOC and COC even though one of the parties, China,
preferred bilateral way to solve the dispute. Regarding the COC, Indonesia
highlighted the COC single draft negotiating text (SDNT) with the international
principles, UNCLOS principles, rules based and the peaceful settlement of the
dispute (Interviewee H). The COC should be amicable to all the conflicting parties in
the SCS and Indonesia thus promoted the COC to be designed as a platform to
accommodate and create a good atmosphere for the claimant states to negotiate
dispute between themselves.
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Besides, Indonesia has also established the CUSE (Counter for the Unplanned and
Encounter at Sea), in which it is a navy agreement among the ASEAN member
states and it serves as a platform for communicating each other for everything
happened in the SCS (Interviewee D). Since some claimant states have been
conducting reclamation and militarization in the SCS, it could create the instability in
the region if the claimants use military power in the SCS. Interviewee H assumed
that when an incident takes place on the ground, sometimes Indonesia and other
claimants are blank in information. When they have no information about what
happened, it could create more tension, more distrust and more misunderstanding.
As the CUSE served as submarine cables of hotline communication among MOFAs
in ASEAN member states including China which is a new initiative under ASEAN-
China agreement to communicate everything happened in the SCS, it could deprive
the unnecessary incident occurred in the SCS. CUSE is an agreement that makes
the claimant states talk and communicate if there is an incident occurred
unintentionally; and through these submarine cables, miscalculations could
eventually be avoided.
4.2.4 Conclusion
Based on the result of interviews, I can draw the following conclusions with regard to
the sub-questions: Firstly, the talks and negotiations can be characterized as the
players at the informal workshops consisted of the scientists, experts and the
representatives from the claimant states but in their personal capacity. As the
workshop was attended by the participants from the claimants, the results of the
informal workshop could potentially influence the claimants’ foreign policy related to
the SCS. The informal workshops focused on more technical cooperation and
scientific projects to depoliticize the issues and to build trust amongst the conflicting
parties. The results of the workshop were also not binding to the claimants, so that
they could express their views honestly and openly. That is the rule of the game of
the workshop. Yet China’s action of introducing its Nine-dash line policy to the
claimants in the informal workshop was also part of the moves of the claimant states,
which occurred in the informal politics.
67
Secondly, regarding the questions of notions of sovereignty, the parties involved in
the informal workshop mostly unwilling to discuss the sensitive topic like sovereignty.
The word sovereignty has been sort of forbidden to discuss in the workshop.
However, in the political reality outside the workshop, China, Vietnam, Philippines,
they continue with their sovereignty claims by constructing some infrastructures in
the disputed islands over the SCS. Even so, the informal workshop has been a place
where trust building is the main thing. The workshop has not changed the way
sovereignty being used, but it has led to a trust building and it is an arena in which
people from different countries are around the table. The answer to the question on
sovereignty is pretty clear that there are different notions of sovereignty or
presumably different claims to sovereignty being used by the claimant states in the
SCS dispute.
Thirdly, concerning the role of Indonesia, Indonesia played its T1 diplomacy as the
non-claimant state, but at the same time Indonesia put more focus on exercising its
T2 diplomacy as an honest broker with its informal workshop. At the workshop, the
way Indonesia gathered different players around the table was through directly
inviting them. At one occasion, Indonesian official representative went directly to the
Beijing to invite China in joining the informal workshop. Not to mention, the informal
workshop restrained the participants to discuss sensitive issues like sovereignty and
territoriality, in order to make all parties involved talk openly about their views related
to the SCS issues. If one party in the workshop intentionally or unintentionally
touched the sensitive issue, Indonesia would swiftly shift the conversation into
another topic. That is one of the reasons why Indonesia has been entrusted to be an
honest broker by the claimant states and only through this informal politics initiated
by Indonesia, the claimants felt more comfortable to conduct dialogue and exchange
of ideas among each other. As such, Indonesia was also succeeded in winning the
other participants’ confidence to actively get involved in the informal workshop.
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5. DISCUSSION In this chapter, I am going to reflect on the implications of my findings for three major
issues, which have also been mentioned in my research objectives: The first section
will focus to reflect the contribution to the debate on whether the SCS workshops as
an arena of dialogue can contribute to a lasting solution in the conflict over the SCS.
The second section reflects the contribution to the debate on sovereignty and the
role of T2 diplomacy in it, using the concept of sovereignty games. The third section
reflects the characterization on the role and diplomatic skills of Indonesia in the SCS
conflict as a broker, mediator and/or negotiator in the conflict. Lastly, this chapter is
concluded with the paragraph of future research, comprising the implications of bias
to my thesis findings and the other issues which are interesting to investigate in the
future.
5.1 South China Sea Workshop as an Arena of Dialogue
The main reason to establish the informal SCS workshop has been to reduce the
tension of the dispute over the SCS. Professor Djalal, the initiator of the workshop,
worried that this dispute would immediately turn into a war since there has been an
armed clash between China and Vietnam in 1974 and 1988 regarding the
overlapping claims in the SCS (Djalal, 2003). Not to mention, due to the ‘Asian
Culture’, the official governments of countries in the Southeast Asia tend to put the
problem under the carpet. Consequently, the serious problem like SCS dispute has
almost never been discussed or has a little discussion in the official meetings.
Therefore, the tension of the dispute over the conflicting parties (China, Philippines,
Brunei, Malaysia, and Vietnam) remained high until the informal SCS workshop was
established in 1990s by an Indonesian former leading authority, Professor Hasyim
Djalal.
Nevertheless, at that time, there had also been an official meeting established by
ASEAN with the so called ‘ASEAN Regional Forum (ARF)’, which attempted to
resolve the SCS dispute at the high-level meeting. However, ARF has been failed
since China refused Philippines’ proposal to internationalize the issue of overlapping
claims during the ARF meeting, which could potentially damage its historical
69
principle. As Swanström (1999) argued, China was unwilling to discuss the issue of
SCS in the multilateral forum and refused to acknowledge the ARF as an alternative
solution. Thus, ARF did not succeed in obtaining Chinese commitment to deal with
the SCS issue. China consistently uttered to the public that it preferred bilateral
meeting discussion to talk about sensitive issues like the claim to territoriality over
the SCS. However, there has been no single successful bilateral meeting conducted
by China to end this dispute so far.
Since China is also a signatory of UNCLOS, China had to abide by its stipulations.
However, China seemed unwilling to obey the UNCLOS regulations and its Nine-
dash line policy is a manifestation of its intention. The China’s Nine-dash line policy
is a policy which based on the historical rights principle instead of international law
principle. Consequently, its policy is not in line with the UNCLOS principles and has
overlapped all islands in the entirety of SCS. Not to mention, China has been
building military facilities and conducting reclamation of small islands in the areas
which are not recognized as a sovereign territory by UNCLOS (Chellaney, 2018;
France-Presse, 2017). Therefore, UNCLOS has not been effective to resolve the
SCS dispute.
Since those two arenas did not work effectively to overcome the conflict in the SCS, I
argue that the series of informal SCS workshops had been a successful arena and
effective in gathering all the conflicting parties to talk informally over the issue of
SCS. I think the informal workshop has become a trusted platform of dialogue
because it has been attended by many participants, consisting of scientists, experts
and or representatives from claimant states but in their personal capacity, to
exchange ideas and share their views towards the common problem they
encountered, in particular the SCS dispute. Also, the result of the workshop has
been made to be not legally binding for the parties involved so that they could speak
honestly and openly during the workshop. Therefore, trust building through this
intensive dialogue amongst the conflicting parties in the informal SCS workshop is a
concrete achievement of this particular platform.
Based on the findings, I comprehend that when one party of the informal workshop
started to talk about the SCS issue, the moderator and the other parties frequently
70
deprive to discuss about sensitive issues, such as sovereignty and territoriality. I
think that is the weakness of the workshop, yet at the same time it becomes an
important thing for the informal workshop per se to make all the conflicting parties
remained on board, in which the parties involved feel more comfortable to discuss
about technical issues instead of controversial ones, such as overlapping claims,
maritime sovereignty, etc. In my view, this is also part of Indonesian maneuver in
depoliticizing the SCS issue through putting more attention over the technical
discussions and depoliticization sometimes could be effective to reduce the tension
of SCS dispute amongst the claimant states.
Since the informal workshop has a certain regulation that forbids the claimant states
to discuss over the territoriality or sovereignty issues, it prevents other participants
who tried to raise the queries over the sovereignty claims conducted by other
claimants. Consequently, the workshop is somehow not able to directly touch upon
the conflict of maritime claims, which are claimed based on a unilateral action
conducted by a country to claim a certain territory over the sea without following the
regulations of international order. For instance, China’s Nine dash line policy has
been recognized as a maritime claim because it is based on historical principle
instead of international law. However, Song (2010) argued that the informal
workshop never aimed to directly resolve the territorial disputes in the SCS, but it
tried to build trust and mutual understanding among the conflicting parties. I think
technical issues in the workshop are about trust building, everything is here towards
getting the conversation going, which is absolutely important to compose mutual
recognition among the parties involved.
Coming back to the question on whether the informal workshops can be a lasting
solution, I can say that the answer is presumably ‘no’ in a straight forward sense to a
lasting solution. However, the trust building derived from the informal workshops can
potentially be a stepping stone or some basis to a lasting solution and presumably
can be recognized as the best alternative solution so far in dealing with the
complexity and sensitivity of the SCS disputes, given the official meetings have failed
to address the issues.
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5.2 Sovereignty and Track Two Diplomacy
As Hansen and Nissen (2016) defined sovereignty in terms of games and a
contested and constant subject of negotiations and power struggles, the issue of
overlapping claims to territoriality over the SCS has been constantly negotiated in
the official meetings and/or unofficial meetings by the so-called ‘claimant states’,
consisting of China, Vietnam, Philippines, Malaysia, and Brunei. However, some
arenas in the track one (T1) diplomacy or government official meetings such as
UNCLOS and ARF have failed to solve the conflict. The track two diplomacy,
conversely, in terms of the series of informal SCS workshops have significantly
contributed to reduce the tension amongst the claimants over the SCS dispute.
Since the actor in the sovereignty games consists of state and non-state actor, I
think the non-state actor like scientists and experts have played important roles in
addressing the SCS dispute. Professor Hasyim Djalal, the initiator of the informal
workshop, was not a government official by the time he established the SCS
workshop and had succeeded in making the representatives from the conflicting
parties sitting around the table to discuss the SCS issue. This workshop has been
successful in composing trust building among the parties involved. Besides, all
claimant states know about the China’s Nine-dash line policy for the first time was
through the informal workshop. That is China’s move during the workshop meeting.
Consequently, rejection and asking for clarification by other parties appeared as a
reaction over the China’s action. Indonesia as a moderator always tried to remind
about the rules of the workshop not to continue the discussion over the sensitive
topic like sovereignty and claims to territoriality in the SCS. The workshop kept
reminding the participants to restrain themselves in proceeding the conversation.
Therefore, the SCS Informal workshop sometimes tries to keep the sovereignty issue
out of the game. Paradoxically, the sovereignty game was not to discuss
sovereignty.
Nevertheless, China, Philippines, and Vietnam have made their moves, such as
building military, schools, and place for worship in some disputed islands in the SCS.
As such, by building these things, they put a claim to territory. I think even though
within the workshop there was a depoliticization, but at the same in political reality,
72
outside the SCS workshops, these claims still exist. So, the notions with these
countries’ claims on sovereignty have not changed, in which there are still different
claims on territorial, water, historical basis, etc. and they are still clashing even more.
They continue with these claims. However, at the same time, there has been track
two diplomacy, where the informal workshop has led to a trust building and it is an
arena, in which people from different countries are around the table to discuss the
issues of SCS.
Regarding these actions of building military, schools, etc., I think they want to send a
message that they are willing to materialize their sovereignty claims, meaning that
they are planning to gain the recognition from international law over their territorial
and maritime claims to be an island because the status quo of their claims over
islands are now just as rocks, according to the result of the PCA 2016. In
accordance with the stipulation of UNCLOS, rocks are not able to have an extended
200 nautical miles of Exclusive Economic Zone (EEZ). Accordingly, the claimant
states are planning to fulfil the requirement to make their claims acknowledged by
the international law as an island, which enables the provision of human habitation
and external support. However, they still failed to actualize their plans since the
result of government official meetings seemed stagnant and did not support their
desire to claim the islands in the SCS. Therefore, the informal workshop established
by Indonesia seemed a quite promising avenue for the claimants to make their
moves in the T2 diplomacy.
As Montville (1991) noted that the process in T2 diplomacy constitutes a workshop
that includes the involved actors to conduct dialogue to discover mutual outcome,
the informal SCS workshop has fulfilled the criteria and been effective in addressing
the issue of SCS dispute. Given the T2 diplomacy is the backbone for any kind of
progress, the informal politics is the most important in dealing with the international
dispute. These informal workshops, they are the oil, they smoothen the negotiation,
and they have to remain like that. While the government has the role to formalize
and relationship with Indonesian authority, Professor Hasyim Djalal and other
scholars played the informal politics to mediate the SCS issues. As such, that
perfectly fits with the workshop and the track two diplomacy.
73
Here is the overview of sovereignty games in track two diplomacy.
Track two diplomacy
Actors § Scientists / scholars / academics
§ Experts
§ Representatives from claimant states in their personal capacity.
Rules § Rules of participation: The government officials from the claimant
states attended the workshop in their personal title.
§ Rules of discussion: There are no official protocols in the workshop.
The workshop restrained the participants to discuss sensitive issues
like sovereignty and territoriality; and the workshop discussion
focused on technical projects to build trust amongst the parties
involved, such as marine scientific research, marine environmental
protection and safety of navigation, etc.
§ Rules of framing issues: The workshop suggested the participants
to create transparency of the activities in the disputed area and to
profoundly discuss the need to establish a Code of Conduct (COC)
in the SCS, in line with the Six Principles derived from the Second
Informal Workshop in Bandung 1991. The workshop is also framing
the technical issues relevant with claimants’ interests.
§ Rules of procedures: During the informal workshop, the participants
were respectively given five minutes to express their view without
entering into discussion. In the workshop, they normally have
reports which are distributed to all participants and also other
parties.
§ Normative rules: The workshop participants agreed to avoid the use
of force in addressing the SCS dispute and thus should be settled
peacefully. Secondly, all participants should conduct self-restraint to
reduce the tension and potential conflicts. Thirdly, there are no legal
consequences for the participants which means that the workshop
results are not legally binding. Lastly, the workshop also served as a
platform for policy-oriented discussion although there is no
guarantee that the policy recommendations from the workshop
would be adopted by the participants’ respective governments.
74
Moves § Some participants attempted to formalize the workshop meeting
through proposing to establish an official secretariat.
§ Some other participants rejected that proposal as the others
showed their unwillingness to institutionalize this informal process.
§ China unofficially introduced its Nine-dash line policy for the first
time at the informal workshop.
§ China consistently insisted its claim as part of its indisputable
sovereignty over the Spratlys and Paracels at the informal
workshop.
§ During the workshop meeting, China’s representatives consistently
expressed their opposition whenever they found a written
statement, or a remark made by other participants that implied the
recognition of Taiwan as a country.
§ Indonesia through Professor Hasyim Djalal kept the workshop
informal to ensure that the people could talk anything openly,
otherwise the participants would be constrained by their government
policies in a formal meeting.
§ The latest informal workshop was not only funded the Government
of Indonesia, but also funded by the Government of China, Vietnam,
and Taiwan.
§ Indonesia gathered all players around the table by persuading them
that the workshop would focus on more technical discussion and
scientific projects.
§ Indonesia frequently became the moderator of the workshop.
§ When Indonesia moderated the workshop, Indonesia led the
discussion from non-sensitive issues to technical cooperation and
gave opportunity to all participants to talk freely without touching the
sovereignty issue.
§ If some participants intentionally or unintentionally touched the
sovereignty issues, Indonesia as the moderator would amicably
alter the direction of the conversation. Indonesia does not want the
conversation continued.
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The table above is about sovereignty games, but focusing on the workshop and
specifying actors, moves, and rules in T2 diplomacy, which means that I left out all
kinds of moves in bilateral relationships. The table provided information about actors,
rules, and moves in the informal workshop: actors constitute the participants of the
informal workshop, rules are referred to the rules of the workshop themselves and
moves are actions conducted by the participants in the informal workshop.
5.3 Indonesia’s role as a broker in the conflict
In discussing the role of Indonesia, I would like to make a distinction between T2 and
T1 diplomacy: how the Government of Indonesia operates this informal workshop as
a broker working together with scientist, but at the same time, Indonesia needs to
keep its identity as a sovereign state in T1 diplomacy. First of all, when Professor
Hasyim Djalal initiated the informal SCS workshop, it gives the impression that he is
an academic. The thing is that he was also an Indonesian Ambassador to the United
Nations until 1983. Afterwards, he started this informal workshop in kind of personal
capacity and with the financial support from Canada and Indonesian MoFA. So, the
role of Indonesia in this informal workshop is basically him. This is a strategy of
Indonesia, whereby the Indonesian MoFA allows him to maneuver with the informal
workshop.
Since the parties in the informal workshop consisted of non-state actors such as
scientists and experts, Indonesia worked together along with the scientists from the
claimant states to discuss about the SCS issue. Yet there were also official
representatives from the claimant states attended the workshop but in their personal
capacity. Although the claimant states are there, in the workshop on their personal
title, but of course in practice, it is more diffused, T1 or T2 diplomacy. It means that
some participants are actually government officials, but they are probably attending
the workshop in the optic look like individual. This is also rule of the game of the
workshop and this can be admitted as a technique to make the people talk in their
personal title. Otherwise, there would be no discussion in the workshop. Personal
title makes the parties able to talk honestly and openly in the workshop, as they
76
represented themselves as individuals and are not bound by the policy and rules
from their domestic government.
Whereas it is not allowed to talk about sensitive issues in the workshop, the
participants sometimes cannot avoid talking about the sensitive issue like
sovereignty. However, Indonesia does not want to proceed the conversation and
altered the focus of discussion into more technical discussion. This is also a quite
good technique to focus on technical discussion as a way to depoliticize the SCS
issue, which is somehow quite effective to reduce the situational tension amongst
the claimants over the issue of overlapping claims in the SCS.
Besides, I also argue that one of the main reasons why Indonesia is simply accepted
as a broker was because Indonesia is officially a non-claimant state. Indonesia has a
clear position as a non-claimant state and does not have any dispute with any
claimant state in the area of SCS. Indonesia benefits from this status to gain the
recognition to be a neutral party or honest broker from the claimants, and I think
Indonesia did pretty well in brokering the SCS dispute through its informal workshop.
Indonesia was successful in gathering all the claimant states altogether to sit around
the table to conduct dialogue and discussion, so that trust building could be
established amongst the conflicting parties through its T2 diplomacy in terms of the
informal workshop, which is unlikely to do it in the T1 diplomacy or government
official meetings. This sort of trust building is nonetheless an important asset to
smoothen the negotiation in the T1 diplomacy or government official meeting, as well
as to deprive misunderstanding and reduce the tension among the conflicting
parties.
Secondly, in the international relations or T1 diplomacy, Indonesia is a sovereign
state. As a broker, Indonesia did very well. However, at the same time, Indonesia as
a sovereign state in a sense of the government of Indonesia, needs to keep its
independency in terms of its sovereignty and importance. Indonesia is firm that its
sovereignty is non-negotiable. At the bilateral level, Indonesia did very well. When
Indonesia had a ‘minor’ problem with China, for instance; regarding the Natuna
island or the arresting of China’s illegal fishermen, Indonesian President directly
went to Beijing to negotiate; and after coming back from Beijing, everything was
77
clear. Indonesia and China solved the problem themselves. As an observer, I have
no idea what is being discussed, but the problem was solved. The result was great,
and I presume that something must have happened. I think Indonesia realized that if
they would become run into a conflict with China, the whole idea of this informal
workshop could go down the drain. In addition, when T1 diplomacy is problematic or
Indonesia has problem with China, it is time to activate T2 diplomacy. This is again
the maneuvering at the high-level, they were all kinds of tactics at the workshop
level, kind of T2 diplomacy, but Indonesia also had to remain its reputation as a non-
claimant and not have a conflict with China, and it did it very well. Accordingly, when
Indonesia had a problem with China, for instance, Indonesia simply denied that there
was a problem with China at the bilateral level. That was a mobilization of T1
diplomacy, very high level, which also saved the reputation of its informal workshop.
Therefore, Indonesia keeps maintaining its diplomatic relationship with all claimant
states at the bilateral level, in order to make all of them remained on board,
especially China. This is a very clever way of how Indonesia played its maneuvering
in the SCS dispute.
5.4 Future research
During the fieldwork, I have interviewed Indonesian officials or scholars, except one
which is from the Philippines. Of all interviewees, there were three main workshop
participants that I interviewed, and they were all from Indonesia. As such, this bias
has some implications to my thesis findings. In the findings, I obtained more positive
stories about Indonesia, portrayed as an honest broker. The interpretation could be
different if I interviewed China and other workshop participants, in which presumably
there would be more negative stories about Indonesia. The stories could be more
negatively critical. For instance, maybe the Philippines said that look, whereas
Indonesia was clearly a claimant around the island issues in the SCS, Indonesia still
tried to present itself as a non-claimant.
However, the implication could also be more appreciative. For example, perhaps the
Vietnam said that Indonesia is so clever that all participants could feel so freed to
express their views in the informal workshop. Indonesia would become qualified as a
78
claimant state as it has high potential to be overlapped with Malaysia claims and or
China’s Nine-dash line policy, but all the things would go down the drain. So, I do not
know, and I can go to both sides. Both are critical in a sense of critics could be made
to the role of Indonesia but could also be more appreciative ones that comment
could be based on the role of Indonesia.
Nevertheless, it would certainly be fantastic to have interviewed with Chinese
diplomats for further research. It is an effort to have a discussion with the Embassy
of China in Indonesia on this issue. As such, this requires so much effort to trace
these persons (Chinese diplomats participating the workshop), and on top of that I
also have to trace the diplomats from the Philippines, Vietnam, and Malaysia. I need
paper work to get acquainted. Since data collection was done in 2 months, I was
also facing difficulty to access data as some were not publicly accessible, or they
were not found in written documents. If I would have more time for further research,
there are a few issues that are interesting to investigate, such as how China has
maintained its Nine-dash line policy with its historical rights principles after PCA
decisions 2016, how the Philippines and other claimants have taken benefit of PCA
decisions to negotiate with China in the informal workshop, and how the workshop
has dealt with the claimant states’ assertiveness to build more infrastructures, in
particular reclamation and military facilities in the area of SCS. In addition, if I would
have more time, it would also be interested to get insights from none Indonesian
participants or actors, and I could have interviewed China’s Embassy in Jakarta for
further research. For time reason, it was not possible but of course it could have let
to new insights, both critical ones and maybe appreciative ones.
79
6. CONCLUSION
This thesis explored how the Government of Indonesia maneuvered in the SCS
dispute in a way that the informal SCS workshop provided a significant contribution
to reduce the tension among the claimant states regarding the issue of sovereignty
claims in the area of SCS. Basically, there are three major things why the informal
workshop successfully gathered all the conflicting parties to sit around the table to
discuss the issue of SCS:
Firstly, the workshop focused on trust building. As the initiator of the informal SCS
workshop, Indonesia realized that the root cause of the SCS dispute is
misunderstanding and miscalculation, which means that the value of distrust among
the claimants is very high. However, T1 diplomacy through government official
meetings have failed to create confidence building measure to the claimants. As
such, Indonesia established the informal SCS workshop with the purpose to make it
as a trust building platform oriented.
Secondly, the workshop emphasized that the results are not binding. As a concrete
product of T2 diplomacy, the workshop at first tried to gain the trust from the
participants. Afterwards, the workshop attempted to make the participants speak
honestly and openly so that the root cause of the problem could be clear; and the
way to do that is to make the results of the workshop itself not binding.
Thirdly, the workshop put more attention on technical discussion. Indonesia has
been aware that the issue of sovereignty is a sensitive topic. If the workshop keeps
discussing about this such sensitive topic, the discussion will stop, and the
participants will leave the room. As such, there will be no trust among the parties
involved and of course it is certainly contradictory with the nature of the informal
workshop per se, which aimed to build the trust. Therefore, as a moderator of the
workshop, Indonesia frequently drove the participants of the workshop, mostly
consisting of scientists and experts, to discuss more about scientific issues and
technical cooperation instead of sovereignty issues, with the purpose to depoliticize
the issues and eventually reduce the situational tension amongst the claimant states
over the sovereignty dispute in the SCS.
80
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