Synergy or Neutrality? Time for US and Indonesia to
Clarify Positions on the South China Sea


by Jared Scott Bentley

Jared Scott Bentley (Scott.Bentley@student.adfa.edu.au) is an
American PhD candidate at the Australian Defence Force
Academy.

Amidst recent debate about Indonesia’s policy in the
South China Sea, late last month Commander of the
Indonesian Armed Forces (TNI) Gen. Moeldoko published an
op-ed in the Wall Street Journal addressing this issue head on.
Moeldoko reiterated Indonesia’s current ‘free and active’
(bebas aktif) foreign policy, while clarifying that it is not a
claimant in any of the disputes in the area. He also however
expressed frustration with China’s claims in the area, stating
that Indonesia was “dismayed” that China had included waters
around the Natuna islands within its nine dash line map.
Like ASEAN as a whole, the crux of Indonesia’s position
is that disputes between China and other claimants should be
resolved peacefully and in accordance with international law.
The preference within ASEAN for promoting a regional order
based on rules and norms is longstanding, but the question
then arises—exactly what norms are we talking about?
Given recent developments, there is a need for countries
to more clearly articulate precisely what rules and norms they
are referring to, to more effectively reinforce their foreign
policy goals.

There is a great amount of synergy between
Indonesia’s position and that of the US, more than is generally
recognized, and diplomatic coordination between the two
could hold the key to supporting a stable regional order.
While the relationship between international law and
norms is often asserted as a given, this fails to take into
account that norms embodied in international law are
dynamic, and evolve in accordance with state practice. An
important example of this is the United Nations Convention
on the Law of the Sea (UNCLOS), which codified a number
of norms that had been evolving throughout the 20th century,
and was in fact the third convention of the same name.
The core of that agreement, the pivotal norm that all
maritime claims must be generated from land-based features,
is being held at risk by excessive claims to parts of the South
China Sea. While China continues to promote a purposeful
ambiguity regarding the scope and definition of its claims
outlined under the ‘nine dash line’ map, actions over the last
several years by its official maritime organizations have
removed doubt about the extent of the claim.

These actions have included the enforcement of China’s
rights and interests in areas nearly 1,000 kilometers from the
Chinese mainland, including in waters that comprise
Indonesia’s EEZ off the Natuna islands. Taken together, these
actions suggest that a decision has been reached within the
Chinese government to enforce the entirety of China’s claims
in the South China Sea, a development likely to lead to further
frustration in the region, elements of which are already evident
in comments from leaders including General Moeldoko.
While there is room for debate regarding the legal basis
for various claims to sovereignty over certain features in the
Spratly islands, nowhere in UNCLOS can a norm be found to
support China’s apparent maritime claims off of Natuna
island. The closest claimed features, James Shoal and
Vanguard bank, are submerged, meaning that not only can
there be no real dispute about sovereignty over them, but that
they are incapable of generating maritime boundaries at all.
As a result, China is attempting to justify its claims to
maritime areas outside the scope of the convention through
what it refers to as its “historic rights,” a concept that has no
basis under international law. If China were to continue not
only asserting but now actively enforcing its “historic rights”
in the South China Sea, this would constitute an effort at
normative revolution, striking at the very heart of UNCLOS.
The implications of this have long been recognized by
Indonesia, which articulated a similar notion in a 2010 note to
the UN secretary general, when it declared that China’s nine
dash line map “lacks a basis under international law and is
tantamount to upset the UNCLOS.” China’s attempt to
promote a new maritime norm based on a vague notion of
“historic rights” unrelated to land based features, not only flies
in the face of the last several hundred years of international
legal opinion, but threatens to upend the core principles of the
agreement reached at UNCLOS III several decades ago.
Any attempt to upend this crucial piece of international
legislation would indirectly threaten Indonesia’s national
interests, as well as the ability of ASEAN to effectively
promote a rules-based regional order. There could also be a
direct effect on Indonesia’s national security. If China were
allowed to continue enforcing these “historic rights,”
Indonesia may by default find itself with a new maritime
neighbor, one intent on limiting its access to vital resources in
disputed areas.

There have been a number of incidents over the last
several years whereby Chinese maritime agencies prevented
their Indonesian counterparts from enforcing their jurisdiction
in areas claimed by China. While these incidents could be said
to stem from illegal fishing, they are about much more than
fishing. At their core, they are about the future of the regional
and even international order: whether it will be based on rules
and norms, or some vague notion of historical entitlement
enforced through military power and coercive diplomacy.
Like Indonesia, the US has been clear that while it is not
itself a territorial claimant to the disputes in the South China
, it does have a strong national interest in how disputes are
settled, preferably in accordance with international law. When
discussing the recent defense agreement with the Philippines,
President Barack Obama stated the goal of the agreement was
“to make sure that international rules and norms are
respected.” The president mentioned specifically that this
included international norms in relation to maritime disputes
in the region.

After noting that the US does not itself have territorial
claims in the area, Obama reiterated US policy that the
disputes should be settled peacefully in accordance with
international law, without the use of coercion or intimidation.
To the extent it would fulfill those objectives, the foreign
policy objectives of the new defense agreement are largely
congruent with those of ASEAN and Indonesia.
Like Indonesia, the US has been at pains to demonstrate
its neutrality in the dispute. During the same press conference
in the Philippines, Obama also stated that “we don’t even take
a position on the disputes between nations.” This pretense
toward neutrality is misplaced in the case of both the US and
Indonesia, however. The stakes are far too high in these
disputes to sit idly by while Chinese actions threaten to upend
pivotal international legal norms embodied in UNCLOS.
In other words, the US and Indonesia should take a
position on the disputes, not on territorial sovereignty, but on
the legal basis of the maritime claims involved. This would be
a principled position in support of international law, not
against China, and would be in keeping with wider US efforts
to oppose excessive maritime claims anywhere they exist.
Therefore, such a move would be more a clarification of
existing policy than it would a policy shift, making explicit
what is currently implicit in their official positions.

Both countries should more clearly articulate the potential
threat to international norms posed by enforcement of ‘historic
rights’ at sea, while privately articulating that there will be
costs imposed in response to acts further undermining those
norms. They need to clarify that while not territorial claimants
themselves, they do have a strong national interest in seeing
that any maritime claims are generated from land based
features in accordance with UNCLOS.
This synergy in the US and Indonesian positions could
allow them to make clear to China that, while not attempting
to contain China’s rise, they have a strong preference that
China’s rise be in accordance with key international rules and
norms. This will enable not only China, but the rest of the
region, to rise with China toward greater prosperity under an
effective regional normative order.

http://csis.org/publication/pacnet-3...outh-china-sea