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Ten years since a tribunal in The Hague ruled China’s claims in South China Sea as illegal, has it changed realities in the disputed waters? Nailah Huda speaks with Dr Hoo Chiew-Ping to discuss the lessons learned from the past decade and potential implications from increased militarization.
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00:07This is Awani Global with me, Naila Huda.
00:09And last week, 14 nations issued a joint statement reasserting that China's expansive claims in the South China Sea as
00:17illegal based on a ruling in 2016.
00:20The statement said they rejected, quote, destabilizing actions in the disputed waters that threaten regional stability.
00:28And this collective effort also commemorated the arbitration ruling on July 12, 2016 by a tribunal established in The Hague
00:36under the United Nations Convention on the Law of the Sea, declaring the landmark decision as final and legally binding.
00:44Last Sunday, however, after the joint statement, China reiterated that the ruling was null and void and has no binding
00:51force and that Beijing neither accepts nor recognizes it.
00:55And at this hour, we want to revisit the topic of the disputed waters of South China Sea, 10 years
01:01after the ruling and where governments in Southeast Asia currently stand on the issue.
01:07And joining us at this hour to unpack, we have Dr. Hu Chiu-Ping, co-founder and senior fellow of
01:12the East Asian International Relations EAIR Caucus.
01:15Thank you so much, Dr. Hu, for joining us on Awani Global, 10 years since the tribunal ruled in favor
01:21of the Philippines.
01:22But looking back, how, in your opinion, significant was that decision, looking at a legal and geopolitical standpoint?
01:31Thank you so much, Naila.
01:32So the Philippines brought China to the Permanent Court of Arbitration to rule on the historical rights and source of
01:39maritime entitlements by both sides in the South China Sea.
01:43And whether China's actions in the disputed area are lawful or not.
01:48So in 2016, the ruling provides a legal basis to the Philippines to defend their claims in the South China
01:55Sea.
01:56And the ruling also practically rejects China's extensive historical claim in the region.
02:01So, and this outcome is also beneficial to other claimant states like Vietnam, Malaysia and Brunei to reject China's historical
02:09claim to our declared exclusive economic zones.
02:13However, it also drives China to invest greatly in building up their legal ground for their historical claims, which remains
02:21a gray area in international law.
02:24Unclosed, the law of the sea does mention historical rights, but without specification on how to define them.
02:31So China is trying their best to make their claims and arguments a success by filling in the gap of
02:37this particular international law definition on the historical rights.
02:43So geopolitically, the tribunal ruling has affected how each claimant state devolves our resources to militarize the South China Sea
02:52features and to strengthen our respective positions.
02:56And this also means a potential clash if militarization is on the rise, and not just exclusively between China and
03:04the Philippines.
03:06I mean, as you said, and as we've seen consistently since the past 10 years, China has rejected the ruling
03:12and reasserted this position again.
03:14Do you think this award, this ruling has changed, if anything at all, reality on the water, or has it
03:23remained largely symbolic?
03:24So the award has actually strengthened China's resolve in defending its historical claims and becoming even more assertive at sea.
03:36China's legal team studies all positions carefully and tries to counter argue from the legal perspective as well.
03:43For example, for the ruling to be eligible, the party that was being brought to the dispute has to agree
03:51to it, and China never agrees to it.
03:53So this is one of the basis for the argument that the ruling is not eligible.
03:59So the other claimant states, the tribunal award is crucial for our respective claim.
04:07And our country legal team also needs to study the case more carefully, because after all, this is the case
04:13of Philippines versus China.
04:15So the award is issued to the Philippines, and it may actually contradict with Malaysia's overlapping clan with Philippines in
04:24the South China Sea.
04:25So, and therefore, the tribunal ruling is definitely not symbolic, but has practical implications over each country's behavior in the
04:35South China Sea.
04:37It's interesting to look at this dispute as being the Philippines versus China, when in reality, it involves a lot
04:44more countries, of course, in Southeast Asia.
04:46But again, we're seeing this with the recent joint statement reaffirming the ruling from 14 countries and the European Union.
04:57What message do you think this new coordinated statement sends to Beijing?
05:03And what does it say, especially when we're seeing the Philippines being the only Southeast Asian government to sign this
05:10statement?
05:10So because this ruling award is specifically to the Philippines, so of course, they have to have the greatest stake
05:19in defending it and also continue to supporting it.
05:22For countries like the USA, UK, Japan, Australia, New Zealand, and the other European countries, they want to support a
05:32rules-based order.
05:33So they have a stake in affirming the international legal institution, and especially a ruling that rules against China's extensive
05:40claim.
05:41So this is a coordinated joint statement, so which means they consulted each other.
05:47And together on 12th July, they issued, amidst the ruling's 10th anniversary, EU actually issued a separate statement on the
05:56same day as well.
05:57For the other Southeast Asian countries, as I mentioned earlier, so Malaysia has to be careful with the wording of
06:02it and whether it would be in our favor if we want to argue for our claim in the area.
06:11So on the other layer, we may also be reluctant to put our stance together with the other Western countries
06:20or coalition, so that we can still continue to assert our neutrality and non-alignment principle, which is very crucial
06:28for us as a Southeast Asian bloc.
06:31Earlier, you mentioned the potential risk of increasing militarization or a clash.
06:39Is this one of the trends that we're seeing in South China Sea in the past 10 years?
06:46Maybe what kind of developments or trends that you've seen over the years that has concerned you the most?
06:51Indeed, even at this moment as we speak, militarization continues to take place.
06:57So among those who are most invested, sites from China is actually Vietnam.
07:04So the Philippines, who used to lack resources, now receiving many assistance to build up their capacity at sea.
07:13For Malaysia, we also become even more cautious.
07:18So some of our features used to be opened up for international tourism, but now we have to carefully vetted
07:25every foreigners before we open them to visit some of our occupied features, which is the diving paradise.
07:33So all of the regional navies actually also try to strengthen our outposts in this area as well.
07:44So for the past decade, it is very obvious that what used to be hope when we decided to build
07:55consensus over DOC, which is the Declaration on the Conduct of Parties in the South China Sea between ASEAN and
08:01China.
08:01So with the tacit understanding that all of us will not occupy new feature, new islands in the South China
08:10Sea.
08:11However, when the Philippines began operation in Scarborough Show, which is, of course, their claim effectively there's in 2012, China
08:20took that as breaking the spirit of DOC.
08:23So this is why the confrontation between them escalated and they began to assertively and aggressively trying to take control
08:35of the Scarborough Show feature.
08:37And for the other claimant states, including Malaysia, Vietnam, so we continue to strengthen our position.
08:44And Vietnam especially has been building cities, runways on their occupied feature, which also presents in Spreadley Island, where Malaysia
08:56has a stake.
08:58When we're talking about the ruling, some analysts also view it through the lens of comparing it with the Code
09:04of Conduct, which some say China is more favourable towards this mechanism at least.
09:12And negotiations on the ASEAN-China Code of Conduct, this has dragged on for years now.
09:17How do you think should we view the relationship between the two mechanisms, the Code of Conduct and the ruling
09:24on the other hand?
09:24Do you think the 2016 ruling remains the stronger legal foundation for managing the South China Sea?
09:32And where does the Code of Conduct stand here in this position?
09:36Yeah, so the 2016 ruling is the international court ruling.
09:40So, of course, if we more countries support it, so it will be more legally binding to strengthen our legal
09:47claim over this disputed area.
09:50Because the name of the arbitration case is named PCA, a ruling on the South China Sea arbitration.
09:56So it applies to the entire area.
09:59So to collectively manage the South China Sea dispute, though, so if each of us interpret the ruling differently,
10:07for example, Philippine would wholeheartedly using the 2016 ruling, but the rest of us have reservation over it.
10:14So this is why COC is still more viable, because it requires all claimant states, stakeholders,
10:21even non-claimant states like other Southeast Asian countries, to be part of this Code of Conduct,
10:26meaning all users of this body of water called South China Sea would agree to a set of norms, behaviour,
10:33how our coast guard should behave, how all the ships that trespass this body of water would react or respond
10:43to when something occurred in this maritime feature.
10:47So ASEAN claimant states, we cannot agree with China's historical claim because it's too extensive and encroached right inside our
10:58EEZ.
10:59So there is no way we can agree to that.
11:02And this is why it is very important for COC to have the regional governments and the maritime law enforcement
11:10agency
11:10to agree to a set of rules of engagement.
11:14So this is one of the original aim and objective for the COC to be started.
11:18So since China saw that no one agreed or wanted to accept that there are historical claims, historical rights,
11:28so that's why the negotiation has been stagnant for quite some time.
11:35Maybe to shift gears a little bit and to look at this within the ASEAN framework,
11:39with the Philippines as chair of ASEAN this year,
11:42do you think you're at least a bit hopeful or optimistic that there might be a bit of progress with
11:46the COC?
11:47Yeah, unfortunately, for the past few months, we still saw some constraint,
11:53but it does happen, the confrontation between China and the Philippines.
11:58So Philippines itself is quite hopeful they can finally produce a final version of the COC draft.
12:08Last year, Malaysia said the same thing, but we did not eventually achieve that.
12:13So that remains to be seen.
12:15Of course, if it can be finalised, it's good for everyone.
12:18At least a single draft, the final version can be agreed upon by all parties.
12:23But right now, what we need is perhaps another parallel effort among the COC in the region
12:31to agree to a set of call of conduct among themselves as well.
12:36That's an interesting point, but we also want to look at where each of the Southeast Asian government
12:41or actually, or most of the countries that are directly affected by the South China Sea dispute,
12:48maybe we can look at the Philippines first, becoming a lot more vocal, of course,
12:52under the current political leadership compared to previous years on this issue.
12:58Maybe looking at the past 10 years, do you think you've seen the Philippines changing much of their strategy towards
13:04the issue?
13:05Yes, indeed.
13:06So the Philippine cost guard used to have a much lower profile.
13:10So because most of the cost guard actually work in direction of their president's directive
13:16to ensure that the dispute will not affect economic or trade relations.
13:21So I think if Nam Nam is taken, China remains Philippines' top trade partner, for example.
13:27So, but when Bongbong Marcos took over as president, we saw that his state visit patterns revealed something quite interesting.
13:40So his first two state visits as a president was to Southeast Asian countries,
13:44followed by his state visit to the US, and then he visited China, and then to the US again.
13:49So we believe that their decision on adopting transparency initiative to reveal China's cost guard behavior in Filipino waters
14:03came out of this, the result of this meeting with the respective leaders.
14:09So the transparency initiative was launched to present a high profile presentation
14:16of how South China Sea dispute actually looked like.
14:20So we actually, each of the climate state managed our dispute, our displeasure with China differently.
14:28So, of course, for Malaysia, we also manage it as well.
14:32For example, when China's cost guard trying to ask Petronas oil platform to stop working
14:39because the water belonged to China, of course, we disagree with that.
14:42And we have enhanced our cost guard and Navy protection to our oil and gas operation in our EEZ.
14:50But we don't make it a transparency show, so to say.
14:56So when Philippines decided to adopt this quite transparent position,
15:02we saw that it actually caused Philippines to lose some of the grounding
15:08and facing more threat at sea as well as they are implementing their operations and such.
15:16So this is the first high profile spreadly dispute on the international stage
15:21that Malaysia and Brunei try to avoid.
15:24I think that's been an interesting development.
15:27What if we look at Vietnam now also becoming more active and more vocal in asserting its claims?
15:33Do you think this would maybe result in greater coordination, perhaps, in the claimants in Southeast Asia?
15:40Yeah.
15:41So despite the fact that Philippines-China occupy a higher profile of the South China Sea dispute now,
15:48but in the past, it was between Vietnam and China.
15:51So it remained the two countries that go to war with each other over the South China Sea features in
15:57the Parasol Islands.
15:58So we can imagine how much Vietnam invested militarily in trying to strengthen their defense
16:06over their occupied features in the South China Sea, not only in the Parasol.
16:11So at the moment, if we look at the Asian Maritime Transparency Initiative by American think tank CSIS,
16:18you can see that the progress of militarization is ongoing by Vietnam in Spratly Islands as well.
16:24So this is why the Philippines is trying to reach out to the other claimant state to have greater coordination
16:32on the disputed waters.
16:34Malaysia and Brunei do not respond.
16:38So it was between Vietnam and the Philippines that there is an MOU and they actually established a joint Coast
16:46Guard Committee
16:46to have some form of maritime cooperation and coordination where they have overlapping claims as well.
16:52So ideally, Coast Guard cooperation should be coordinated among all the claimant states instead of just selected countries.
17:00What about Malaysia? Where do you think Malaysia currently stands on the issue?
17:04I think the dominant argument that always prevails when it comes to Malaysia is, of course,
17:09this need to balance protecting maritime interests while also maintaining the strong economic ties that we enjoy with China.
17:16But where do you think Malaysia stands now?
17:19So almost all claimant states, including Vietnam, the Philippines, Malaysia, China is our top trade partner.
17:27So because of that profile, we are often being criticized as too pro-China or does not defend our interest
17:36in South China enough.
17:37But that is not true because after witnessing the high profile confrontation between the Philippines and China,
17:45we believe that transparency initiative is not for us.
17:49We prefer to maintain, manage the dispute behind closed door.
17:55And Malaysia does draw a red line.
17:58As I said earlier, the oil and gas exploration within our EEZ and territorial waters.
18:03So as China Coast Guard vessels increasingly encroaching closer to our shorelines in Sarawak, especially,
18:10we have also opened up to more maritime security cooperation with other partners,
18:15including with the United States and Australia that provide us with a lot of not only military,
18:22but also maritime security assistance.
18:23So within the Ministry of Defence, MINDEF, they are also building up their capacity in safeguarding our territorial integrity
18:33and ensure the safety of our oil and gas operations by the Malaysian Maritime Enforcement Agency.
18:41If current trends continue, we were talking earlier about the risk of increased militarization,
18:47not a risk perhaps, I mean, that's already happening as we're speaking.
18:51But if we're looking at the current trends continuing,
18:54what do you expect the South China Sea to look like over the next decade?
18:59Yeah, the best case scenario would be a finalized COC with substantive guidance on how maritime actors,
19:07government, law enforcers and others behave in the disputed waters.
19:13So aside from the Philippine chairmanship, the next most probable country's chairmanship that can conclude the COC would be Vietnam
19:22two years later.
19:23So the worst case scenario would be a high level, even more militarization across all stakeholders in the region
19:30in the name of defending our respective claims, rather than having a common understanding over our navigation rights,
19:38rights to passage, conducting economic activities and such.
19:41So of course, we all opt for the best case scenario.
19:46You know, we were talking about military tensions, of course, but I think what's also important to take into account,
19:53especially what we're seeing now following the closure of the Strait of Hormuz with the war between the US and
19:58Iran,
19:59its impact on the global economy, of course, a far-reaching impact even in Southeast Asia itself.
20:06What are the implications, do you think, there could be also for global shipping, for energy security and supply chains?
20:13I mean, we're seeing with Malaysia the need for us to protect our oil and gas interests, it's been proven
20:20already.
20:20But do you think that this could become an even bigger factor or bigger cost to think about in the
20:27future?
20:27So the closure of the Strait of Hormuz serves as a reminder that all narrow passageway in international waters will
20:34have strategic implications for global trade.
20:37So the Strait of Melaka has been highlighted in particular as a dilemma for the Northeast Asian countries like Japan,
20:44Korea and China.
20:46So any countries in this region, actually, we need to have greater cooperation.
20:53So luckily for us in the Strait of Melaka, we already have a strong trilateral coordination and cooperation between Indonesia,
21:02Malaysia and Singapore.
21:03So we have a Melaka Strait Petrol mechanism.
21:07We also try to ensure order is in place via our maritime law and forces.
21:15Japan also regards Strait of Melaka highly as 80% of their oil import pass through the Strait of Melaka.
21:21And this is the same for China as well.
21:25South Korea is about 70%.
21:28So this means all users of the maritime routes need to ensure that order is in place.
21:37And preferably we don't want to see confrontation to take over the stability, which actually promised our economic growth for
21:47the past many decades.
21:50Just briefly, I think it was also interesting that you pointed out how the approach that the Philippines took, you
21:58know, that was more transparent in nature.
22:02That was something that Malaysia was not particularly interested in.
22:06What lessons do you think Malaysia can draw from the experience of the Philippines' legal strategy and perhaps the more
22:14assertive maritime position that Vietnam took?
22:18What lesson do you think Malaysia can take here?
22:20Or maybe a more sort of unique or individual approach that Malaysia can take?
22:27So I think bilateral, minilateral and multilateral platforms are very, very important to all countries' concerns.
22:37So for example, we have already have so many existing channels.
22:42Bilaterally, China-Philippines have a bilateral consultative mechanism.
22:47They are the only ones in this region that have that mechanism.
22:50And that's probably one of the reasons why the confrontation hasn't gotten out of control yet.
22:57So this is something that we need to bear in mind.
22:59Malaysia, I think we almost achieved something like that.
23:02But it is not to the institutionalized extent that what Philippines has with China.
23:10Minilaterally, so selected claimant states, including China, maybe we can sit down and talk together about how we should avoid
23:18future greater confrontation.
23:21And multilaterally, of course, it is the ASEAN-China platform.
23:25So we have ongoing COC negotiation and some experts even joke that maybe it's better for us to have that
23:35negotiation to continue for as long as possible, even without a conclusion, because that gets China involved and continue to
23:43talk to us.
23:44Lastly, just to wrap things up, what do you think genuine progress would look like in the South China Sea?
23:52If the COC negotiation remains stagnant until the end of this year, so I think the parallel progress should be
24:01started among the regional cost guard.
24:03So I thought it would be because we actually have an ASEAN cost guard forum.
24:08And I think we should leverage on that existing mechanism and platform to put forward something.
24:14ASEAN Secretariat should full-heartedly be supporting it.
24:18So next year, the chair will be Singapore, even though they are not a claimant state in South China Sea,
24:23but they should be supportive of it.
24:25So that when it is passed to Vietnam as the ASEAN chair a year after, then we can have something
24:30substantive to work on.
24:32And Singapore also stake its reputation as one of the rule-based order supporters.
24:39Legal regime is extremely important to all Southeast Asian countries.
24:44So if 10 or 11 of us can agree on a set of common guidelines among our maritime enforcement professionals,
24:52perhaps we can allow the technical experts in this area to take over the discussion and have less political intervention
25:00in the room to make something happen and to allow the trust-building process to take place.
25:06Plenty more.
25:07I'd like to ask you, but that is all the time that we have.
25:09Thank you so much, Dr. Hu, for sharing your insight on what the sort of trends we've seen in South
25:16China Sea for the past 10 years.
25:17And that might shed some light on how we can prepare for the next 10 years as the dispute prolongs.
25:24Thank you so much once again, Dr. Hu Chiu-Ping, co-founder and senior fellow of the East Asian International
25:29Relations Caucus for joining us on Awani Global this week.
25:32That is all on Awani Global with me.
25:34Nala Huda, we'll catch you next time.
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