I REFER to Dr Huang Huikang’s “The way of amicable consultations” about China and Malaysia’s approach to the South China Sea (SCS) disputes (The Star, June 13 2016).
The author has described Malaysia-China relations as a model to argue his case on the SCS. In the last decade or so, China’s role and profile in international politics have been dramatically increasing in tandem with the growth of its economy.
As indicated by China’s leadership, the Asia Pacific has the highest concentration of Chinese interests and has been a top priority for China’s diplomacy.
Peace and stability in the Asia Pacific should be paramount in the agendas of countries in and outside the region.
The main challenges in this regard are the disputes in the SCS and the role of external players and their interests. While this point is well captured by Huang, it must be taken in the context of actual developments on the ground.
Destabilising developments since the Declaration on the Conduct of Parties in the South China Sea (DOC) in 2002 include land reclamation activities by China, the Philippines’ legal case against China at the Permanent Court of Arbitration, the United States Navy actions aimed at upholding the principles of freedom of navigation, and the presence of outside powers such as Japan, Australia and France in the SCS.
Asean has consistently advocated that parties to disputes avoid the use of force, intimidation or coercion, and exercise self-restraint.
Malaysia has continuously called for the full implementation of the DOC and the expeditious conclusion of a Code of Conduct in the South China Sea (COC) as the way forward.
The article noted that “Prime Minister Datuk Seri Najib Razak revisited China to celebrate the 40th anniversary of the establishment of diplomatic relation” when the “Philippine was unilaterally pursuing the South China Sea arbitration case in May 2014”.
In my view, the timing of the visit was purely coincidental and should not be construed as taking a position on the case.
Malaysia has always maintained a balance between protecting its own interests with that of not antagonising its neighbours as well the powers outside the region.
For example, in April 2014, Najib and US President Barack Obama made a joint statement that the “two leaders underscored the importance of all parties concerned resolving their territorial and maritime disputes through peaceful means, including international arbitration, as warranted, and in accordance with universally recognised principles of international law, including the United Nations Convention on the Law of the Sea (UNCLOS)”.
Malaysia does not have to choose between the US and China in any maritime disputes. Ideally, Malaysia wants to remain positive to the US re-balancing towards Asia as well be supportive of China’s policies such as the One Belt One Road and Maritime Silk Road Initiatives.
As for the dispute in the SCS, Malaysia stands by the importance of the Asean-led process as the primary forum for addressing political and security issues of common interest.
In the DOC, Asean and China reaffirmed their commitment to consolidate and develop the friendship and cooperation, partnership of good neighbourliness and mutual trust; recognised the need to promote a peaceful, friendly and harmonious environment in the SCS; agreed to enhance the principles and objectives of the 1997 Joint Statement regarding Asean-China Cooperation Towards The 21st Century; and the desire to enhance favourable conditions for a peaceful and durable solution and pledged to the full and effective implementation of the DOC.
Despite the DOC, there has been significant tension in recent years in the SCS which may rise in view of the existing disputes among the claimants. The major concern is slow progress on adopting a code of conduct in the SCS and the lack of functional cooperation.
The 26th Asean Summit statement, when Malaysia was Asean Chair, clearly shows Asean is serious in achieving a peaceful settlement of disputes in the SCS, and showcases the unified position of its members.
Malaysia’s efforts and approach towards SCS disputes and the role of good diplomatic office in not reacting in the Philippines’ arbitration case against China, demonstrates a reinforcement of the concept of Asean centrality and non-interference.
UNCLOS provides that parties can institute compulsory dispute resolution procedures against others concerning disputes over the interpretation or application of the Convention.
Arbitration is a mechanism for dispute settlement although there are others such as consultation and negotiation.
UNCLOS also allows a party to the Convention to exclude itself from the compulsory dispute resolution procedures. In my view, legitimacy of the arbitration is based on the interpretation by opposite parties regarding the meaning of provisions under UNCLOS.
Malaysia’s policy planners recognise that parties have differing opinions and have refrained from interfering as it would only further complicate the process.
While we appreciate Huang’s depiction of Malaysia-China as a paradigm of good neighbours, it is important to keep in mind the real geopolitics of the situation in the region and the commitment that Malaysia has to international conventions and strengthening the Asean approach in addressing issues as they arise, and above all ensuring that Malaysia’s interests are well-protected and strengthened.
Maritime Institute of Malaysia