Can Malaysia Lead Asean To A South China Sea Breakthrough

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From Lauren Lopez
The South China Sea has been a hotbed of territorial disputes, its vast resources and strategic location making it a focal point of regional tensions.
Countries like Vietnam, the Philippines and Malaysia have competing claims, while China’s sweeping assertions, backed by military might, have raised alarms across the globe. The ongoing Asean-led negotiations for a code of conduct (COC) aim to manage these disputes peacefully, but progress has been notoriously slow.
This dispute is difficult to resolve because it involves so many moving parts. The South China Sea dispute has six claimants, all of whom have complex and overlapping claims over groups of features rather than simple border disputes.
Vietnam lays claim to 30 features in the South China Sea, the Philippines lays claim to nine, Malaysia to six, China to seven and Brunei to one. All of these claimants, barring Brunei, have built or claimed existing outposts on these features, but China’s efforts have outpaced all its Asean contemporaries combined.
The South China Sea dispute has also become a hot topic in the Sino-American rivalry. Despite not being a claimant, the US has argued that the South China Sea is vital to its goal of a free and open Indo-Pacific region.
As a result, it has conducted several “freedom of navigation” operations and naval drills, and promoted at least the perception that Asean claimants reflect its position.
The quickest and easiest way for Asean and China to come to a legal solution is for all parties involved to agree to either the jurisdiction of a tribunal, or the utilisation of Asean-oriented minilateral frameworks. In the case of Asean claimants, promising precedence has been set for resolving similar disputes before an international tribunal.
However, this approach requires the cooperation of all claimant states to be effective. Malaysia has an opportunity to show its leadership of the region where others have failed by using its special relationship with China to bring them to the negotiating table.
In the meantime, confidence-building measures can be taken between claimants in the South China Sea dispute. Confidence building measures include, but are not limited to, a firm commitment to finalising and implementing the South China Sea COC.
While China has indicated an initial willingness to negotiate the COC, talks have stalled and been derailed for years now. A commitment to this approach by Asean and China is a commitment to cooperation and understanding among themselves in order to avoid conflict.
Ultimately, de-escalation of the situation in the South China Sea while allowing for the creation and execution of a two-track approach to the issue is the goal.
The two-track approach was initially suggested by Brunei, where claimants work directly to solve sovereign and maritime disputes while jointly maintaining peace in the South China Sea. Further confidence can also be built by facilitating joint development in contested areas by contesting parties pending negotiation and arbitration outcomes.
Confidence-building measures achieved, it becomes possible to consider Asean-China cooperation in the actual resolution of the dispute. The most widely accepted solution is that all claims need to be disaggregated.
Indeed, the International Court of Justice’s arbitration award rejecting Malaysia’s claim of Pedra Branca while making reference to it as belonging to Johor “since time immemorial” should comfort most state parties involved, as it establishes that history is not the sole determinant in determining sovereignty in the South China Sea, but rather that effective occupation should be the deciding factor.
However, while a resolution is theoretically possible, this requires states to abandon the current mindset of a zero-sum game in the South China Sea.
There is no state that can realistically claim all the features in the disputed regions, and claimants must face that reality to resolve the dispute with minimal disruption to the rules-based international system.
The basis for compromise can and must be uti possidetis, ita possideatis – what you have, you may keep – but states must abandon all other claims in the disputed region.
Underpinning this compromise is the assumption that the current pattern of occupation in the South China Sea is legitimate, which is supported by the fact that the vast majority of contested features are not doubly occupied.
Ultimately, Malaysia’s potential to lead Asean to a South China Sea breakthrough hinges on its ability to balance national interests with regional stability.
Asean-centrality is the only thing that will put them in a stronger position to engage China as they approach the negotiating table. To break this deadlock, Malaysia must lead Asean to cooperate within itself to work out a disaggregation of the claims.
By championing dialogue and cooperation, Malaysia might not only advance the COC negotiations but also strengthen Asean’s role as a key player in regional security. - FMT
Lauren Lopez is an FMT reader.
The views expressed are those of the writer and do not necessarily reflect those of MMKtT.

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