Asia and International Law

Law of the sea, law of the jungle

Two boundary disputes creating tension in Southeast Asia are potential flashpoints for localized and in one case, even global conflict. While the former is credible and the latter far less so, the two cases reveal both entrenched and emerging attitudes within Asia that point to more insidious political risks than a brief naval engagement or sporadic skirmishing in a remote forest.

The re-ignition of Beijing’s claim to sovereignty over much of the South China Sea has largely focused on the potential military risks involved in the dispute moving from heated rhetoric to kinetic action. The multilayered legal, political and economic issues involved in the dispute are complex and almost infinitely debatable, but the core point is that China views the huge maritime area as mare nostrum and has indicated that it has no intention of amending this position.

The other point of border friction involves Thailand and Cambodia in a dispute over a number of kinks and detours along their frontier that divide ancient Hindu temple sites. These disputes have led to sporadic clashes and the loss of life over the past few years, often coinciding with heightened domestic tensions and the corresponding advantages of seeking unity through emphasising a traditional external threat.

Thailand, in the throes of what may well be most important general election in a generation, chose to leave UNESCO’s World Heritage Convention, a key international cultural agency, rather than submit to the agency’s ruling regarding the ownership of territory around the Preah Vihear temple.

What links these two cases is how an interpretation and acceptance of international law and arbitration is at variance to what may be considered as both countries’ wider economic and diplomatic interests. What separates them is that in China’s case this is unlikely to have any significant domestic impact – at least in the medium term – while the opposite may be the case in Thailand.

Beijing’s South China Sea claim, which stretches like a vast tongue from the southern tip of Taiwan in the east and the Sino-Vietnam land border in the west to brush past Palawan, East Malaysia and Brunei in the south, is based on archaeological and documentary evidence reaching back to 200 BCE. The significance of this date is that it corresponds with the reign of China’s first emperor Qin Shi Huangdi, and therefore in Beijing’s views the origin of country as a unified and sovereign state.

Very few other countries base their present territorial claims on similar historical metrics – Israel being an obvious exception – and international order would be greatly compromised if they did so.

China’s position as a signatory to the highly technical and closely-argued UN Convention of the Law of the Sea (UNCLOS), while declining to accept its basic tenets of defining maritime territoriality, is a puzzle.

The United States, by contrast, has not ratified UNCLOS and follows a general policy in not entering into treaties or conventions that it views as inimical to its wider interests. While such powerful countries can engage or stand back from international efforts to impose order on contentious boundary and territorial disputes, smaller nations have less leeway.

Thailand’s decision to ignore convention and declaring unilateral rights over a fragment of border determined by international legal, antiquarian and geographical specialists to fall within Cambodia’s sovereign territory is unlikely to be treated as circumspectly as China’s robust defence of what it insists is within its national realm.

In late June a Thai delegation, seemingly on its own volition, walked out of negotiations at the World Heritage Convention in Paris because it realized its efforts to overturn an earlier decision by the world body that decreed Cambodia was the legitimate custodian of much of the Preah Vihear temple site had failed.

While the Thai example is complicated by the need of the present government to placate nationalist opinion – and perhaps seek a unifying external threat – ahead of the hotly contested 3 July elections, its actions exhibit a lack of awareness as to how such behavior is perceived beyond Bangkok’s often insular political and cultural elite.

The conduct of China and Thailand also stand out in marked contrast to how other countries in the region have responded to contentious and often highly emotive boundary disputes. For example, when the International Court of Justice (ICJ) awarded Malaysia the contested Ligitan and Sipadan islands that lie off the coast of Sabah and Indonesia’s East Kalimantan in 2002, Jakarta seethed at the outcome but accepted the legal basis on which the verdict was made.

Similarly, when the ICJ ruled in 2008 that the islet of Pedra Branca/Pulau Batu Puteh and some associated rocks were within Singapore’s sovereign jurisdiction, Putrajaya and many Malaysian politicians fulminated over the ruling but took the dispute no further.

One explanation for this apparent dichotomy is that neither Thailand nor China has any direct historical exposure to the Common or Roman law principals imposed by the British, Dutch and French colonial powers on their various regional conquests or acquisitions. These ‘European’ laws were readily maintained after independence by many of the new leaders, not least because a great many were lawyers and recognised the value - and legitimacy - such instruments offered the emerging elites. This is notably the case in commerce, where contractual obligations and remedies are crucial to attract and retain foreign capital.

While China can, with confidence, choose to pursue its own agenda without conceding any core interests to outsiders, Thailand is on far less certain ground. China’s influence is waxing, supported by its ability to spread vast amounts of money around the world where it believes it will reap commercial and political gains. Thailand’s naturally far lesser influence is waning as seemingly interminable domestic divisions and the prospect of further volatility - and perhaps even violence – begin to erode the commitment of even the most patient and steadfast foreign patrons and investors to the country.

Thailand’s departure from the WHC – and probable return within a decent interval – is certain to be viewed by many foreign observers as demonstrating a combination of petulance, a lack of respect for international norms and a refusal to deal with problems and issues pragmatically. More importantly for Thailand’s longer-term interests, at least outside Asia, is that the walkout may well serve to remind foreign investors and corporations of how often hard- won legal obligations and understandings may be readily jettisoned in the interests of domestic advantage.

By Gavin M. Greenwood consultant with the Hong Kong-based Allan & Associates security and crisis management firm.