Friday, July 15, 2016

Managing limitations of traditional sovereignty: Lessons for ASEAN from European Union over-reach & Brexit

As the  Association of Southeast Asian Nations tackles the implementation of its emerging  Economic Community while dealing with fragmented responses to external territorial challenges, the withdrawal of the United Kingdom from the European Union appears to inconveniently give "shared sovereignty" a bad name.  Eugene K B Tan, an associate professor of law at the School of Law, Singapore Management University, explains why effective action requires both collaboration of member states and domestic buy-in and legitimacy:

THE UNITED KINGDOM’S DIVORCE from the European Union (EU) may well be the tipping point for European regionalism. If the EU poorly manages the UK’s exit, or Brexit, it may presage the slow decline and growing irrelevance of the EU in the global political economy. The entire episode also holds lessons for the Association of Southeast Asian Nations (ASEAN).

The tragedy of Brexit is the profound misunderstanding of sovereignty. The concern now is the risk of populist exit contagion gaining traction in other EU member states, all in the name of sovereignty and democratic choice.

To further inter-state cooperation, the EU operates on pooled sovereignty, in which decision-making powers are shared among member states. This is to be contrasted with unanimous decision-making, which gives states the right to unilaterally veto decisions that they disagree with.

Despite the intrinsic appeal of unanimous decision-making, states may pool sovereignty to reduce the likelihood of gridlock. This does not detract from their remaining independent sovereign nations. Instead, they are able to collectively gain and exert influence that none of them could have had on their own.

'Taming' EU member states

On the value that EU provides to member states, Oxford University’s Jacques Delors Professor of European Law, Stephen Weatherill, puts it well: “States give up a degree of power to act unilaterally so that they may participate in the deployment of a collective problem-solving capacity that is a great deal more effective. Resources of power are not finite: Acting through the EU expands the sum of State powers so it becomes greater than its parts.”

Professor Weatherill adds that the EU also seeks to “tame” states’ historical capacity to cause harm to each other. The EU’s rules and institutions do not replace, still less suppress, the several different locations of political authority across Europe. Rather, they create “a credible set of reciprocally undertaken commitments designed to make real promises to solve problems their citizens expect to see solved, and by preventing them from inflicting external harm”.

The creation of a single EU market for goods and services is a good example. The single market demonstrates that EU member states value the benefits of the collective abolition of trade barriers in favour of competition and efficiencies. This is an integration model of sorts for ASEAN..

Not-so-successful initiatives are the free movement of EU nationals within the EU and the creation of a shared currency, the euro. They prematurely shifted regional integration from a free trade area to a broader social and economic union, which is an overreach given the disparities within the EU. In turn, this necessitated — in the name of legal harmonisation—instituting more regulations by an unpopular command-and-control bureaucracy in Brussels, and the making of a supra-national state with institutions such as a regional judiciary and legislature.

What can ASEAN learn from Brexit?

ASEAN is organised quite differently from the EU. For one, there is no pooling of sovereignty. Instead, the ASEAN Charter, the grouping’s constitutional text, speaks of a normative, desired state of inter-state governmentality and cooperation.

Despite its fair share of difficulties and disagreements, ASEAN is a fairly cohesive and successful regional grouping. Next year marks the golden jubilee of its founding in 1967. It has engendered intra-regional amity and comity within Southeast Asia by nurturing a culture of mutual respect and accommodation among member states. This has led to the self-congratulatory mantra that “no two ASEAN member states have ever gone to war with each other”.

However, the past is not a reliable guide to the future should ASEAN become increasingly fragmented, or if unilateral, self-interested assertions of sovereignty take on ascendency. This is not far-fetched in light of China’s rise as a regional hegemon that is keen on bilateral rather than multilateral arrangements, especially over territorial claims in the South China Sea. On another front, several Indonesian ministers have objected to Singapore’s transboundary haze pollution law on the grounds that it violates Indonesia’s sovereignty.

ASEAN has facilitated regional economic development by providing a stable regional security environment. ASEAN members are realistic that their community-building will not be as intensive and extensive as the EU’s. The diversity of history, culture, politics, language, religion and economic development constrains ASEAN from being integrated like the EU.

The abiding demand for and long-standing understanding of the sovereignty norm in ASEAN has resulted in a policy of non-interference and a consensual approach to decision-making. While this is pragmatic, the “ASEAN Way” has been criticised for its failure against recalcitrant member states, such as in Myanmar and the abuse of human rights there when it was under military rule.

Limitations of traditional sovereignty

However, ASEAN is coming to grips with the limitations of traditional sovereignty. The ASEAN Charter seeks to create a rules-based organisation. Increasingly, the principle of “responsible sovereignty”, which enjoins states to take responsibility for the external effects of their domestic actions, is gaining currency. This broader conception of sovereignty entails obligations and duties towards other sovereign states as well as to one’s own citizens.

Sovereignty recognises that states remain the primary actors in the international system. Responsibility, however, highlights the need for cooperation among states, rather than unilateral action, to better meet the most fundamental demands of sovereignty, which is the protection of their people and the advancement of their interests.

Brexit vividly demonstrates that deeper regional cooperation is only possible when there is domestic buy-in and legitimacy. Regional integration must ultimately benefit and be seen to benefit the masses.

As Singapore's Prime Minister Lee Hsien Loong said of Brexit: “The desire to disengage, to be less constrained by one’s partners, to be free to do things entirely as one chooses, is entirely understandable. And yet in reality for many countries disengaging and turning inwards will likely lead to less security, less prosperity and a dimmer future.”

Sovereignty is a double-edged sword. If misused, it would do more harm than good in our increasingly interdependent world. Unilateral state action is grossly inadequate in dealing with major issues such as climate change, financial market regulation, terrorism and migration. 

Sovereignty must galvanise the human desire to cooperate in enlightened self-interest for the greater good.

Eugene K B Tan is associate professor of law at the School of Law, Singapore Management University. First published by TODAY.

Wednesday, July 13, 2016

Ruling the South China Sea: Key issues from the Arbitral Tribunal’s award

In 2015 the Republic of the Philippines applied for arbitration through the UN Convention on the Law of the Sea on historic rights and maritime entitlements in the South China Sea and the lawfulness of certain actions by the Peoples Republic of China. Marina Tsirbas, senior executive adviser for policy engagement at the National Security College, The Australian National University, analyses the findings announced at the Permanent Court of Arbitration on 12 July 2016, and highlights key impacts on future nation state behaviour.

THE LEGAL RULING in the South China Sea dispute, which saw the Philippines take a case against China to international arbitration under the UN Convention on the Law of the Sea (UNCLOS), has widespread implications both as a test case for the law of the sea specifically, and for a rules-based global order more broadly.  The diplomatic and geopolitical ripples from the ruling will be felt for some time.

The tribunal’s ruling that none of the Spratly features are islands generating a 200 nautical mile Exclusive Economic Zone (EEZ), and few are high tide elevations, is significant and about as good as could’ve been hoped for from the perspective of reinforcing global commons aspects of the South China Sea and freedom of navigation and over-flight. It flows from this that China could only claim an EEZ in disputed areas near the Philippines through a claim to Taiwan. (Incidentally, Taiwan won’t be happy about the finding that Itu Aba is not an island which generates an EEZ.)

China can still claim vast parts of the seabed of the South China Sea through its continental shelf under UNCLOS given its broad continental margin. But it would need to lodge papers with the UN to ensure international recognition of those rights. 

Violating Philippines' EEZ

It could also continue to claim title to the high tide elevations in the Spratly islands through the means by which sovereignty to land is acquired at international law (the tribunal found a number of features, including Scarborough Shoal were high tide elevations including some that the Philippines had argued were not). But at most, all these elevations would generate would be a 12 nautical mile territorial sea around them. The tribunal specifically did not rule on which country had sovereignty over the high tide elevations.

The consequent finding of violations of Philippine EEZ rights by China through its creation of an artificial installation on Mischief Reef, its fishing practices and interference with the Philippines’ exploitation of hydrocarbons are useful clarifications on the validity of Chinese island-building activities, fishing and other forms of unilateralism. 

The finding on Chinese destruction of the marine environment is a particularly useful clarification of states’ obligations to protect the marine environment. The principles entailed in these findings would have potential application in other parts of the South China Sea where claimants have built on features which are claimed by more than one state and more generally.

The tribunal denied any special category of “historical rights” exists in the South China Sea outside of what UNCLOS provides. This demystification, which I’ve previously advocated for, is a useful diplomatic tool going forward.

Significant maritime obligations

The finding of violations of the obligations under UNCLOS to preserve the marine environment are significant and potentially far reaching, with broader application for preservation of the marine environment beyond national jurisdiction and for fisheries management. 

It also potentially provides a hook for other nations to act. For example, in sanctioning behaviour by their own nationals which contributes to the destruction of the marine environment by claimants in the South China Sea, by prohibiting port entry for vessels involved in island building, or by refusing to import South China Sea fish illegally caught. The most pertinent analogy here is the response states take to Japanese whaling vessels, for example, not permitting them to enter Australian ports.

Even before the ruling was issued, China had flagged that it would not accept it, a position it has since reinforced. China’s withdrawal from UNCLOS is a possibility that would be a bad result for the international community, and middle powers in particular. 

Those of us who believe in a rules-based order, and not just the right of might or the ability to reinforce right with might, need to get behind the ruling (Australian Foreign Minister Julie Bishop’s response in her recent press release on the ruling is exactly on point here). As Bishop said, it is an opportunity for the region to come together, and for claimants to re-engage in dialogue with each other based on greater clarity around maritime rights.

Backing the ruling

More substantive actions to back the ruling, as I’ve hinted at above, could also be taken. Australia could also consider whether it is prepared to sanction its nationals involved in hydrocarbon exploitation in parts of the South China Sea which are claimed by more than one state and where there is no agreement for exploitation.

Conversely, the ruling may have reinforced the case for the United States to ratify UNCLOS. And the possibility of a Chinese withdrawal makes it all the more important for the US to show its support for the rules-based order by doing so.

China could now proceed to lodge its extended continental shelf claim to jurisdiction over the vast majority of the South China Sea seabed – a process involving lodging a document with a UN body to achieve international recognition of the rights, although here too, some of China’s claim would overlap with others.

In parallel they could bilaterally negotiate their seabed claims or provisional arrangements for hydrocarbon exploitation. China could also clarify what it means by the nine-dash line.

China is unlikely to wind back any of the build-up on its artificial features. It may, however, temper some of its behaviour around preserving the marine environment. This would also be in China’s interests given the size of its fishing industry and market.

China will be on the back foot over the Spratly Islands features but will probably harden its stance on its view of freedom of navigation in the areas of EEZ generated by the Chinese mainland and the Paracels including Woody Island.

The judgement is detailed and there are many aspects to be examined before the full implications are clear. The tribunal expressed the view that no bad faith should be assumed.

A few months before China’s hosting of the G20, the decision, and management of the next steps poses a challenge for President Xi and other world leaders. Triumphalism should not be the order of the day. It will be important for all nations to take a measured tone and approach going forward.

Marina Tsirbas is senior executive adviser for policy engagement at the National Security College, The Australian National University. First published in The Asia and the Pacific Policy Society Policy Forum. Read the orignal article