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Development and Settlement of Disputes

Key Issues and Dilemmas for Brunei and Malaysia in the South China Sea Dispute

Author: Elina Noor & Thomas Daniel

NASSP Issue Brief Series Issue 1, No. 2.1 (2016)

Overview and focus

In the wake of the tribunal constituted under Annex VII to the United Nations Convention on the Law of the Sea (UNCLOS) on the South China Sea dispute, there has been an increased – and some would argue more critical – focus on the Association of Southeast Asian Nations (ASEAN) and its four member states that are claimants in the dispute.[1] Their statements and responses have been the subject of much speculation, scrutiny, criticism and praise – with the latter two depending on which side of the fence one sits. The response of ASEAN in particular has received criticism as the organisation was unable to develop a seemingly strong and unified position on a dispute that not only impacted several of its member states, but a dispute that appears to be entering into a new paradigm – that of a clash between major powers and stakeholders alongside that between claimant and littoral states.

At the recent back-to-back ASEAN Summits held in Vientiane, the South China Sea was again high on the agenda. Some observers repeated earlier reproaches for the organisation not taking a critical stand against China in the dispute, and on failing to mention the Tribunal’s decision.[2] Nevertheless, examination of the Chairman’s statement indicates that the South China Sea did feature prominently and strongly relative to a number of framing issues and disagreements that preceded the final statement in previous ASEAN Summits; the realities and limitations faced by the regional organisation; and, in particular, the pressure and expectations on Laos, its current chair. The eight paragraphs referring to the South China Sea dispute expressed “serious concern over recent and on-going developments”, and took note of concerns expressed by some member states regarding the land reclamations and escalation of activities. The statement further called for the peaceful resolution of the dispute, “in accordance with international law.”[3]

Of the four ASEAN claimant states, Brunei and Malaysia present – and are faced – with their own unique and interesting challenges. Both, like all other ASEAN claimants, are in dispute not only with China, but also with each other. Unlike other claimants, however, both are located at the southernmost portion of China’s Nine-Dash Line or U-shaped claim. Both – especially Malaysia – have only recently begun to deal with the increased Chinese presence in their waters and exclusive economic zones, something that Vietnam and the Philippines have long experienced. The aim of this short paper is to highlight significant issues and dilemmas for Brunei and Malaysia concerning their response and management of the South China Sea dispute. In highlighting and understanding these issues and dilemmas, it is also imperative to understand why the South China Sea is of importance to both of these countries.

Notes:

[1] Prashanth Parameswaran, “Assessing ASEAN’s South China Sea Position in its Post-Ruling Statement”, The Diplomat, 25 July 2016, Available from: <http://thediplomat.com/2016/07/assessing-aseans-south-china-sea-position-in-its-post-ruling-statement/>

[2] Al-Jazeera English, “South China Sea row tops ASEAN summit agenda”, 9 September 2016, Available from: <http://www.aljazeera.com/news/2016/09/south-china-sea-row-tops-asean-summit-agenda-160908052213165.html>

[3] ASEAN, “Chairman’s Statement of the 28th & 29th ASEAN Summits”, 6-7 September, p.23, Available from: <https://www.asean2016.gov.la/kcfinder/upload/files/Chairman%27s%20Statement%20of%20the%2028th%20and%2029th%20ASEAN%20Summits_FINAL.pdf>

Download the full publication at https://www.unsw.adfa.edu.au [PDF]

Related articles: 

Development and Settlement of the Disputes: https://seasresearch.wordpress.com/category/development-and-settlement-of-disputes/

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