2022/32 “Enabling Domestic Data Flows for E-Commerce in ASEAN Countries” by Sithanonxay Suvannaphakdy
EXECUTIVE SUMMARY
- Establishing a comprehensive regulatory framework to build trust in data sharing between stakeholders and to enhance domestic data flows in ASEAN countries are urgent concerns. This is a precondition for enhancing cross-border data flows and promoting e-commerce in the region.
- An analysis of 14 regulatory elements using data from the World Bank’s Global Data Regulation Diagnostic Survey in 2021 reveals that regulatory frameworks to enable domestic data flows are unevenly developed across different enablers and ASEAN countries. These divergences may be exacerbated by different degrees of enforcement of laws and regulations.
- E-commerce and e-transactions-related laws and regulations are the only area in which all ASEAN countries are doing relatively well. Enabling reuse of public intent data is moderately developed, while enabling reuse of private intent data is the weakest area of performance in most ASEAN countries.
- Limited reuse of public and private intent data means that e-commerce firms and consumers in ASEAN have not yet reaped the full benefits of data flows. Unlocking domestic data flows requires a two-pronged approach, i.e. enabling reuse of public intent data and enabling reuse of private intent data.
- The reuse of public intent data should be enhanced by adopting regulatory frameworks of common technical standards and open licensing regime for data; allowing individuals and firms to access public sector data that have not been published on an open data platform; and establishing policies on open data and data classification.
- The reuse of private intent data should be enhanced by encouraging open data licenses among private firms, promoting data portability right for individuals, and strengthening public-private partnership to utilize the digital identification system.
* Sithanonxay Suvannaphakdy is Lead Researcher at the ASEAN Studies Centre, ISEAS – Yusof Ishak Institute, where he undertakes policy-oriented research on ASEAN’s economic integration. He is grateful to valuable comments and suggestions from Tham Siew Yean and Sharon Seah. All remaining errors are his own.
ISEAS Perspective 2022/32, 4 April 2022
* Sithanonxay Suvannaphakdy is Lead Researcher at the ASEAN Studies Centre, ISEAS – Yusof Ishak Institute, where he undertakes policy-oriented research on ASEAN’s economic integration. He is grateful to valuable comments and suggestions from Tham Siew Yean and Sharon Seah. All remaining errors are his own.
INTRODUCTION
The rapid growth of electronic commerce (e-commerce) and availability of digital platforms (e.g. social networks, e-commerce marketplaces) present an opportunity for small and medium-sized enterprises (SMEs) in ASEAN to increase their participation in domestic and international markets. E-commerce is defined as the sale or purchase of goods or services, conducted over computer networks by methods specifically designed for the purpose of receiving or placing of orders.[1] Global retail e-commerce sales have been estimated to grow by 14.3 percent, from US$4.28 trillion in 2020 to about US$4.89 trillion in 2021.[2] About 50 million SMEs use Facebook to find customers; 70 percent of their fans are domestic, and 30 percent are from outside the country.[3] Retail e-commerce sales in ASEAN are estimated to grow faster than those in the world, with a growth rate of 26.1 percent from US$59 billion in 2020 to US$74.4 billion in 2021.[4]
One key towards enabling e-commerce is the enhancement of data flows. The free flow of data reduces transaction costs, accelerates the spread of ideas, and allows users to make use of new research and technologies. This is particularly important for ASEAN, where the e-commerce chapter under the Regional Comprehensive Economic Partnership (RCEP) Agreement aims to create a conducive environment for e-commerce through protection of online consumers and online personal data as well as facilitating cross-border data flows. However, ASEAN countries tend to allow different degrees of domestic data flows, which restrict cross-border data flows in the region. Data flow restrictions can impose costs on local firms as they are not free to use the most convenient data processing provider, and may have to pay for more expensive services when transferring data.
The present study investigates the extent to which regulatory frameworks in ASEAN countries have allowed the use, reuse or sharing of domestic data by the government, e-commerce firms, and e-commerce consumers. Domestic regulatory frameworks serve as a basis to promote regional regulatory cooperation on data. The RCEP provisions on e-commerce may offer an important signal to ASEAN’s e-commerce markets on the future of cross-border data flows. Yet, until policy makers have the confidence that allowing data to leave their borders will not undermine domestic regulatory goals, there will remain a strong incentive to restrict cross-border data flows.
Following the World Bank (2021),[5] regulatory frameworks for data sharing are assessed against three enablers, namely electronic transactions (e-transactions), public intent data, and private intent data. Public intent data refers to data collected with the intent of serving the public good by informing the design, execution, monitoring, and evaluation of public programmes and policies. Such data include administrative, census and survey data produced by government agencies, citizen-generated data produced by individuals, and machine-generated data produced without human interactions.[6] Private intent data refers to data collected by the private sector as part of routine business processes. Such data include transaction and browsing histories, mode of payments, internet protocol (IP) addresses, and smartphone app logs. These three enablers aim to capture policies, laws, regulations, and standards that facilitate the use, reuse, and sharing of data within and between stakeholder groups through openness, interoperability, and portability.
The enablers of domestic data flows are further broken down into 14 regulatory elements. Enabling e-transactions involves four elements, namely legal basis for e-commerce or e-transactions, legal equivalence, legal recognition of electronic signatures, and digital identification (ID) system for online service access. Enabling public intent data consists of six elements, namely mandatory use of common technical standards for data, open data policies, data classification policy, mandatory use of common data classification, individuals’ right to access government data, and adoption of open licensing regime. Enabling private intent data consists of four elements, namely individuals’ right for data portability, individuals’ right to obtain machine-readable data, private sector’s ability to digitally verify ID, and mandatory licensing of essential data.
This study focuses on nine ASEAN countries, namely Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand, and Vietnam, and utilizes the World Bank’s Global Data Regulation Diagnostic Survey in 2021.[7] The survey collected information on attributes of the regulatory framework in 80 countries, which provides details on regulatory status of data-related laws and regulations in sample countries as of June 1, 2020. This study does not include Brunei because of data unavailability; that country was not included in the survey.
Findings in this study reveal that regulatory frameworks to enable data flows in ASEAN are unevenly developed across different enablers and countries. These divergences may be exacerbated by different degrees of enforcement of laws and regulations. E-commerce and e-transactions-related laws and regulations are the only area in which all ASEAN countries are doing relatively well. Enabling reuse of public intent data is moderately developed. Enabling reuse of private intent data is the weakest area of performance in ASEAN countries, except in Malaysia and the Philippines (Table 1).
ENABLING ELECTRONIC TRANSACTIONS
Data are used or transferred via electronic transactions. Laws and regulations governing e-commerce and e-transactions create trust in both public and private sectors that engage in online data transactions. Adoption of e-commerce and related legislation is widespread across ASEAN countries. Indonesia, Malaysia, Singapore and Thailand have constituted all e-commerce and related legislation. Cambodia, Laos, Myanmar, and Vietnam have not yet established government-recognized digital ID systems that enable people to remotely authenticate themselves to access online services. The Philippines have not yet established the government-recognized digital ID system and legal recognition of e-signatures (Table 2).
Establishing e-commerce laws and legal equivalence of paper-based and electronic communications
All nine ASEAN countries in this study have constituted their e-commerce laws, which is an essential condition to enable e-commerce. They have also established legal equivalence of paper-based and electronic communications (Table 2). Such legal equivalence allows the online transaction, contract, or communication to have the same legal value to physical transactions such as a signature on a paper contract or physical evidence.
Establishing legal recognition of electronic signatures
E-signatures are signatures that are expressed in an electronic form. Fully recognized and enforced e-signatures are essential to allow for remote electronic contracts and transactions as businesses engaged in e-commerce expand their network of clients and suppliers both within and across borders. Some examples of e-signatures include clicking the ‘Agree’ button of a website’s Terms and Conditions, a scanned image of a handwritten signature, a tick-box at the end of an online form, and a drawn signature using mobile device.[8] Except for the Philippines, ASEAN countries have established the legal recognition of e-signatures (Table 2).
Introducing digital identification system
The digital ID system provides reliable authentication and enables delivery of a range of services via web or mobile applications that require proof of identity. It collects and validates attributes to establish a person’s identity, which can be used by identity-holders to prove their identity, for example to employers, financial institutions or government agencies.
Four of nine ASEAN countries included in the survey have established government-recognized digital ID systems that enable people to remotely authenticate themselves to access online services. They are Indonesia, Malaysia, Singapore, and Thailand. The remaining five countries, namely Cambodia, Laos, Myanmar, the Philippines, and Vietnam, do not have such systems (Table 2).
In e-commerce, the use of digital ID reduces time and costs for business transactions by securing digital payments and streamlining processes of registration, authentication, corporate registrations, permits, and authorizations. An empirical study by McKinsey Global Institute[9] reveals that countries implementing full digital ID coverage, namely Brazil, China, Ethiopia, India, Nigeria, the United Kingdom and the United States, could create economic value equivalent to 3 to 6 percent of GDP by 2030. ASEAN countries should also gain from the digital ID system if they fully implement and interoperate it across private and public service providers both within and across countries.
ENABLING REUSE OF PUBLIC INTENT DATA
Regulations enabling access and reuse of public intent data are unevenly developed across ASEAN countries. Indonesia and Thailand have established all necessary regulations to enhance access and reuse of public intent data, while Cambodia and Laos have not yet established any of them. The Philippines needs to constitute the mandatory use of common technical standards for exchanging data across governments’ entities. Malaysia needs to introduce regulatory frameworks on the mandatory use of common data classification and individuals’ right to access government data. Singapore needs to establish regulatory frameworks on data classification, mandatory use of common technical standards, and individuals’ right to access government data. Vietnam needs to constitute regulatory frameworks on open data, mandatory use of common technical standards, and open licensing regime for data (Table 3).
Establishing open data policies
A country’s public sector data being prepared for publication can be classified on a spectrum from closed to open. The degree of data openness depends on four factors, namely accessibility, machine readability, cost and rights for reuse and redistribution.[10] According to Open Knowledge Foundation,[11] a piece of data is open if anyone is free to use, reuse, or redistribute it – subject only, at most, to the requirement to attribute and share-alike. Using this definition, five out of nine ASEAN countries have established an open data act or open data policy applicable across the entire public sector. They are Indonesia, Malaysia, the Philippines, Singapore, and Thailand. The remaining four countries, namely Cambodia, Laos, Myanmar, and Vietnam, have not yet done so (Table 3).
Establishing open data policies serve as a stepping stone to enable value creation for boosting economic growth. Such value benefits governments, firms and consumers in three channels, including decision making, new products and services, and transparency. Open data enables decision makers to use a fact base for making more informed and objective choices using information that is often available in real time. It also enables firms to better understand potential markets and to design new data-driven products. Moreover, it enables citizens to monitor government activities such as tracking public expenditures and impacts. An empirical study by McKinsey Global Institute[12] reveals that the combination of three value channels of open data – decision making, new products and services, and transparency – can generate more than US$3 trillion annually for the global economy.
Ensuring unified data classification standards
Data classification policies typically require the classification of data based on their sensitivity such as classified, confidential, or business use only. In ASEAN, six out of nine countries have established policies or directives on government data classification. These include Indonesia, Malaysia, Myanmar, the Philippines, Thailand, and Vietnam. The practical effect of data classification policies in some countries such as Malaysia tends to be limited because it is not mandatory to use the common data classification categories across all government database applications or document management systems. The remaining three countries, namely Cambodia, Laos and Singapore, have not yet established data classification policies (Table 3).
Allowing access to information
Access to information (ATI) legislation enables individuals or firms to access public sector data that have not been published on an open data platform. The degree of the ATI legislation for enabling public data access depends on the scope of the exemption categories for disclosure. Greater scope of the exemption categories reduces the degree of public data access.
In ASEAN, four out of nine countries have established ATI legislation that grants individuals the right to access government records or data. These include Indonesia, the Philippines, Thailand, and Vietnam. However, these countries have placed significant exceptions on an individual’s rights to access public information under such legislation. These exceptions include sensitive information on national security, defence, or foreign policy grounds; trade secrets or other commercial interests; personal data; law enforcement; and privileged information. The remaining five countries, namely Cambodia, Laos, Malaysia, Myanmar, and Singapore, have not yet established ATI legislation to allow public data access (Table 3).
Adopting an open licensing regime for data
An open license for data grants rights to anyone and is subject to certain minimal conditions like attribution of the data’s owner. If data is not licensed legally, it cannot be used by anyone else. In ASEAN, five out of nine countries have adopted some forms of open licensing regime for public intent data. They are Indonesia, Malaysia, the Philippines, Singapore, and Thailand (Table 3).
The Government of Singapore, for example, launched the one-stop portal called ‘data.gov.sg’ in 2011 to communicate government data and analysis through visualizations and articles, and to facilitate analysis and research. Such a portal contains publicly-available datasets from 70 public agencies and more than 100 apps created by the use of government’s open data.[13] By accepting the license, users can use, access, download, copy, distribute, transmit, modify and adapt the datasets, or any derived analyses or applications.
Adopting a legal framework of common technical standards for data
According to the Federal Enterprise Data Resources of the United States,[14] a technical standard for data refers to a specification that describes the way in which data should be stored or exchanged for the consistent collection and interoperability of that data across different systems, sources and users. The legal framework of common technical standards for data aims to ensure that all government entities connect to and use the government’s interoperability platform as a vehicle for exchanging data.
In ASEAN, three out of nine countries have adopted a full range of common technical standards, such as the principles of FAIR (findable, accessible, interoperable, and reusable), that enable the interoperability of systems, registries, and databases. These include Indonesia, Malaysia, and Thailand (Table 3). Malaysia and Thailand have established standards for open application programming interfaces (APIs) for government to government (G2G), government to business (G2B), and government to consumer (G2C) services; standardized communications protocols for accessing metadata; and developed semantic catalogues for data and metadata. Indonesia has standardized communications protocols for accessing metadata; and developed semantic catalogues for data and metadata.
ENABLING REUSE OF PRIVATE INTENT DATA
Regulations enabling access and reuse of private intent data are lagging those for public intent data across ASEAN countries. Four out of nine ASEAN countries have not yet established any necessary regulations to enable access and reuse of private intent data. These include Cambodia, Laos, Myanmar, and Thailand. Malaysia has not yet established a regulatory framework to allow individuals to access data portability, while the Philippines needs to constitute a regulatory framework on mandatory licensing of essential data. Indonesia, Singapore and Vietnam need to establish regulatory frameworks on mandatory licensing of essential data, individuals’ right for data portability, and individuals’ right to obtain portable data in a machine-readable format (Table 4).
Mandatory licensing of essential data
Open data licenses allow users to freely share, modify, and use a database without regard to copyright or other intellectual property rights (IPR) or limitations around data ownership. Open licenses of non-personal data could be done voluntarily by IPR holders, or implemented on a compulsory basis by regulators to avoid market distortions. In ASEAN, only Malaysia (e.g. standard-setting organizations) has mandated IPR holders to provide voluntary licensing access to critical data or applications based on FRAND (fair, reasonable, and non-discriminatory) terms. Other ASEAN countries have not yet done so (Table 4).
Promoting open data licenses based on FRAND terms can be a useful mechanism in enhancing technological innovation such as development of e-commerce platforms or websites in ASEAN. IPR holders do not necessarily share their data or applications for free, but they should offer them on reasonable and non-discriminatory terms. This means that they can control access to licensed products and receive returns on their investments. This should reduce costs of access to licensed products of dominant platforms incurred by micro, small, and medium-sized enterprises (MSMEs), and hence promote more inclusive growth of e-commerce in the region.
Promoting data portability right for individuals
According to the Information Commissioner’s Office of the United Kingdom,[15] the right to data portability allows individuals to obtain and reuse their personal data provided to data controllers (e.g. e-commerce stores) for their own purposes across different services. This facilitates the movement or transfer of personal data from one e-commerce store to another in a safe and secure way. In ASEAN, only the Philippines has allowed individuals to request the transfer of their personal data from one data controller to another service or product provider. The remaining ASEAN countries have not yet done so (Table 4).
Accessing a machine-readable format of data portability
Transferring personal or nonpersonal data from one e-commerce firm to another requires the use of a standard machine-readable format. In ASEAN, only Malaysia and the Philippines have granted the right of individuals to access their data processed by data controllers in a machine-readable format. The remaining seven ASEAN countries have not yet done so (Table 4). The lack of standard data format restricts the potential benefits of data portability right for individuals as data provided in one e-commerce firm may not be compatible with those of other firms.
Strengthening public-private partnership to utilize the digital ID system
Digital ID systems play an important role in promoting e-commerce development. Firms — including banking and financial services, mobile operators and e-commerce platforms — must verify and authenticate the identities of their users at various points in the customer lifecycle. The key data source to validate customer identity is typically a government-provided or recognized credential, such as national ID or passport. Lack of authoritative proof of identity reduces customer pools and increases administrative overhead and risks of fraud for e-commerce firms.
In ASEAN, only four out of nine countries have allowed private sector service providers to digitally verify or authenticate the identity of a person against data stored in the ID system. These include Indonesia, Malaysia, Singapore, and Vietnam. The remaining five countries have not yet done so (Table 4).
CONCLUSION AND POLICY IMPLICATIONS
The findings in this study confirm that establishing a comprehensive regulatory framework to increase trust on data sharing between stakeholders is an urgent priority to enhance domestic data flows in ASEAN countries. This is a precondition to enhance cross-border data flows and to promote e-commerce in the region. Regulatory frameworks to enable data flows are unevenly developed across different enablers and countries. These divergences may be exacerbated by different degrees of enforcement of laws and regulations. E-commerce and e-transactions-related laws and regulations are the only area in which all ASEAN countries are doing relatively well. Enabling reuse of public intent data is moderately developed, while enabling reuse of private intent data is the weakest area of performance in most ASEAN countries.
At the domestic level, limited reuse of public and private intent data means that e-commerce firms and consumers in ASEAN countries have not yet reaped full benefits of data flows. Unlocking potential benefits of data flows requires a two-pronged approach, including enabling reuse of public intent data on the one hand and enabling reuse of private intent data on the other. Reuse of public intent data should be enhanced by adopting a legal framework of common technical standards and an open licensing regime for data; allowing individuals or firms access to public sector data that have not been published on an open data platform; and establishing open data policies as well as policies or directives on government data classification. Reuse of private intent data should be improved by encouraging open data licenses between private firms, promoting data portability right for individuals, and strengthening public-private partnership to utilize the digital ID system.
At the regional level, there are a number of multilateral arrangements to facilitate cross-border data flows. These include the RCEP provisions on e-commerce and the ASEAN e-Commerce Agreement. The effectiveness of these arrangements depends on the extent to which regulatory frameworks on data sharing are coherent across countries. Regulatory divergence reduces cross-border data flows, while regulatory convergence increases them. Since ASEAN countries are in the early stage of developing their regulatory frameworks for sharing public and private intent data, policymakers and regulators should embed international best practices into their domestic rule-making procedures and prevent regulations creating unnecessary barriers to cross-border data flows in the future. Meanwhile, ASEAN countries should explore the possibility to establish mutual recognition arrangements and/or harmonize their data-related regulations both within and outside the region. Greater coherent data-related policies should boost e-commerce in regional and international markets.
A key limitation in the present study is that it focuses only on the regulatory frameworks of data enablers to promote trust on data sharing between stakeholders. There are other factors that affect trust on data sharing such as regulatory frameworks of data safeguards. Data safeguards promote trust in the data governance and data management ecosystem by avoiding and limiting harm arising from the misuse of data or breaches affecting their security and integrity. Building safeguards for trusted data use in ASEAN will be a subject for future research.
ENDNOTES
[1] OECD, Glossary of Statistical Terms: https://bit.ly/3qZZRQF. Accessed February 25, 2022.
[2] eMarketer, Global E-commerce Update 2021: https://www.emarketer.com/content/global-ecommerce-update-2021. Accessed February 25, 2022.
[3] McKinsey Global Institute. 2016. Digital Globalization: The New Era of Global Flows. McKinsey & Company.
[4] eMarketer: https://www.emarketer.com/content/southeast-asia-ecommerce-forecast-2022. Accessed March 3, 2022.
[5] World Development Report. 2021. World Development Report 2021: Data for Better Lives. Washington, DC: World Bank.
[6] World Bank, Data as a Force for Public Good: https://wdr2021.worldbank.org/stories/data-as-a-force-for-public-good. Accessed March 6, 2022.
[7] World Bank, Global Data Regulation Diagnostic Survey Dataset 2021: https://microdata.worldbank.org/index.php/catalog/3866. Accessed February 20, 2022.
[8] Sleek: https://sleek.com/sg/resources/electronic-signatures-are-legal-in-singapore. Accessed February 20, 2022.
[9] McKinsey Global Institute. 2019. Digital Identification: A Key to Inclusive Growth. https://www.mckinsey.com/~/media/mckinsey/business%20functions/mckinsey%20digital/our%20insights/digital%20identification%20a%20key%20to%20inclusive%20growth/mgi-digital-identification-executive-summary.pdf
[10] Chui, M., Farrell, D., Jackson, K. 2014. How Government Can Promote Open Data. McKinsey Global Institute. https://www.mckinsey.com/~/media/mckinsey/industries/public%20and%20social%20sector/our%20insights/how%20government%20can%20promote%20open%20data/how_govt_can_promote_open_data_and_help_unleash_over_$3_trillion_in_economic_value.pdf
[11] Open Knowledge Foundation, Open Data Handbook: http://opendatahandbook.org/guide/en/what-is-open-data. Accessed February 20, 2022.
[12] Chui, M., Farrell, D., Jackson, K. 2014. How Government Can Promote Open Data. McKinsey Global Institute. https://www.mckinsey.com/~/media/mckinsey/industries/public%20and%20social%20sector/our%20insights/how%20government%20can%20promote%20open%20data/how_govt_can_promote_open_data_and_help_unleash_over_$3_trillion_in_economic_value.pdf
[13] Government of Singapore: https://data.gov.sg/about. Accessed February 20, 2022.
[14] Federal Enterprise Data Resources of the United States: https://resources.data.gov/standards/concepts/. Accessed on February 23, 2022.
[15] Information Commissioner’s Office of the United Kingdom, Right to Data Portability: https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/individual-rights/right-to-data-portability. Accessed on February 23, 2022.
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2022/31 “Greenwashing: A Market Distortion Needing Serious Attention in Southeast Asia” by Michael T. Schaper and Ryan Wong Yee Yang
EXECUTIVE SUMMARY
- “Greenwashing” refers to the practice of falsely claiming that a product, service or business activity is environmentally-friendly, or reduces greenhouse gas emissions, when it does not.
- It distorts consumer patterns of purchasing; penalises legitimate eco-friendly businesses who are bringing real and meaningful innovations to the marketplace; and creates a risk that new, more sustainable products and services will fail, allowing unsustainable business practices to continue to thrive.
- Current examples in Southeast Asia include questionable net emissions claims for electrical vehicles manufactured in the region; mistakenly labelling carbon capture as “clean coal”; and claims about financial investments.
- Possible steps to reduce greenwashing can include increasing the level of knowledge about environmental matters amongst firm employees, managers and company directors; educating marketing professionals about the issues; applying greater scrutiny of advertising claims by competition and consumer protection regulators; implementing standardised financial taxonomies for investors; and encouraging civil society to be more active in the area.
* Michael Schaper is Visiting Senior Fellow with the ISEAS – Yusof Ishak Institute, and an Adjunct Professor with the John Curtin Institute of Public Policy, Curtin University, Western Australia. Email: michael.schaper@gmail.com. Ryan Wong was previously Lead Researcher at the Climate Change in Southeast Asia Programme, ISEAS – Yusof Ishak Institute. Email: ryanwongyeeyang@gmail.com.
ISEAS Perspective 2022/31, 1 April 2022
INTRODUCTION
Consumers and businesses are increasingly making a conscious effort to buy products and services that help promote ecological sustainability, assist the environment, and reduce the impact of climate change. But are they always getting what they expect when they buy such commodities?
In many cases, they are not, and this is due to the process of greenwashing.
“Greenwashing” is the process of labelling or marketing something as sustainable, green, or eco-friendly when that is not the case. It is the making of superficial statements, pledges or claims which have not been backed by transparent and verifiable data, and is commonly designed to lure purchasers into falsely believing that a commodity is more environmentally beneficial than it actually is (Timmins 2021; Ramakrishnan 2022). Whilst the full extent of this practice is difficult to measure, the European Commission recently found that more than 40% of the ‘seemingly dubious’ green claims made on business websites were incorrect or misleading (European Commission 2021). And a recent study of multinational corporations found that up to 30% of such firms often provide incorrect data about their emissions levels, with the biggest anomalies occurring in fossil fuel industries and involving major global entities such as Exxon Mobil, Imperial Oil and Shell (Kishan 2022).
The practice of greenwashing is already found in businesses in many parts of Southeast Asia, and poses a risk to the successful emergence of bona fide green enterprises. What forms does it take, and what practical steps can consumers, governments, regulators and other businesses take to reduce it?
THE NATURE OF GREENWASHING
A number of characteristics are typical of greenwashing practices. Many claims about particular products are presented in vague, nebulous terms which are hard to quantify, measure or empirically validate. Commonly-used descriptors are words such as “natural,” “organic”, “eco-friendly,” “save the planet,” “sustainable,” “green”, or such similar terms. They are often accompanied by pictures or graphics evoking green sentiments. Together, these terms and images work to imply a sense of environmental responsibility without actually delivering in any real or meaningful way (Timmins 2021). Whilst these claims usually occur in relation to representations made to the general public and consumers, they can also occur within a firm when companies incorrectly make claims to their own staff, shareholders, investors and directors (Oliver 2022).
A less obvious form of greenwashing, but one which is particularly relevant to multinational corporations and large enterprises, is a failure to provide a holistic view of the firm’s overall environmental impact. A business may sell “eco-friendly” products under one label but at the same time continue to engage in high levels of fossil fuel consumption, production of greenhouse gas emissions, or environmental damage through other brands or firms which are ultimately owned by the same corporate parent (Timmins 2021).
Greenwashing poses a number of real and present risks. In the first place, it allows misleading and deceptive conduct to distort consumer patterns of purchasing. Secondly, it penalises legitimate eco-friendly businesses that are bringing real and meaningful innovations to the marketplace. If consumers cannot form an accurate understanding of what truly is a sustainable commodity, then they will often be misled into bypassing genuine offerings and purchasing false ones instead. Green businesses often thus find themselves competing on an unfair basis with firms that have not borne the cost of becoming more sustainable. Both of these factors combine to present a third risk: that new, more sustainable products and services fail to succeed in the marketplace, and are instead replaced by unsustainable rival offerings.
Why do consumers fall for greenwashing? Information asymmetry lies at the heart of the phenomenon. There is a significant imbalance in what different parties know about a firm’s environmental practices, and in their capacity to find out more. Individual purchasers of products rarely know the full background about how an item is produced and do not have the capacity to fully research this, thus relying on the assurances and claims made by the vendor. In effect, they take a business’s claims and advertising at face value.
Complexity is a second but equally important factor. There are many different ways in which a business can act in a greener fashion but what constitutes a green, eco-friendly, or sustainable product is not a straightforward matter. For instance, is the determining factor its level of greenhouse gas emissions? Is it sustainable use and protection of land or water? Is it participation in the circular economy? Is it pollution prevention and control? Or restoration of biodiversity, plant and animal species, and ecosystems? Many different variables are at play, and it is possible for a firm to have strong environmental credentials in one domain whilst simultaneously delivering a poor performance in another (Lucarelli, Mazzoli, Rancan & Severini 2020). Validating claims to greater sustainability is often a complex assessment process beyond the capacity of consumers to make.
There is also the question as to why firms engage in the practice of greenwashing. A principal cause can be businesses seeking to benefit from the increasing number of consumers wanting and being prepared to pay a premium for green products. Another driver may be the competitive advantage of portraying a more environmentally-conscious image (Ramakrishnan 2022). A third factor may be the wish to secure a social license to operate from the community and regulators, especially in industries whose environmental record to date has been questionable. Sometimes greenwashing can occur through inadvertent mistakes, such as those made by firms who genuinely believe their data are correct when they are not, or when an unsustainable supplier or a unit of the company has not been fully compliant with the broader climate strategy of a firm (Pizzetti, Gatti & Seele 2019).
Greenwashing is not a new phenomenon. Almost a decade ago, for example, business press stories in the Asia Pacific were already running about dubious carbon tax claims (Eco-Business 2012). However, many of these were drawn from countries outside of Southeast Asia, such as Australia, the United States, the United Kingdom and the European Union, where green issues had come to public and regulatory prominence far sooner than in this region. Today, though, greenwashing is as much a problem in Southeast Asia as it is anywhere else.
GREENWASHING: UBIQUITUOUS IN MANY INDUSTRIES
A number of greenwashing problems have already surfaced in Southeast Asia.
One sector is in automotive manufacturing, where several Thai, Vietnamese and Indonesian companies are poised to ride the new wave of electric vehicle production. Indeed, electric vehicles on the streets of Southeast Asia often conjure a green image that may, in fact, be misleading. While the electrification of automobiles may reduce carbon emissions, the generation of hydrogen fuel for these electric vehicles often relies heavily on the use of dirty coal. Unless this form of power generation capacity in future is drawn from renewable sources, the use of electric vehicles will remain carbon-intensive and claims made about their contribution to environmental sustainability will likewise remain questionable.
Another problematic area is the use of carbon capture and storage as a way to produce so-called “clean coal.” An intensive producer of greenhouse gas emissions, coal remains a major energy source throughout the region. The effectiveness of carbon capture technology in remediating the overall level of greenhouse emission is still uncertain at best and often highly contested at worst, especially at an industrial scale (Garcia Freites & Jones 2021). Despite this, energy companies – both state-owned and private – rarely acknowledge this in their strategic plans or marketing.
Numerous smaller-scale greenwashing practices can also be found amongst other businesses. These have included cases of manufacturing companies mixing plastics into paper bottles; the use of scientifically unsupported claims about aluminium being greener than plastic; and ambiguous marketing slogans about recycling (Hicks 2021b). Some issues are also cultural: many small-scale retailers in the region profess to subscribe to sustainability, but often wrap consumer products in substantial amounts of plastic and other packaging, a practice which is still usually expected of them by purchasers (Bassett 2019).
Environmental claims in the financial services sector are becoming increasingly significant. Many firms are now pursuing investor funds with bold claims as to their environmental and sustainability credentials, but on a number of occasions, these have been proven to be dubious (Teh 2021). There are also numerous different rating systems claiming to impartially evaluate the environmental, sustainability and governance (ESG) impact of various investment products for investors in Southeast Asia, but they often operate using quite different metrics and are difficult to compare. A number of financial service regulators have become increasingly focused on this area; in November 2021, the Monetary Authority of Singapore announced that it would begin a series of detailed stress tests and impose mandatory sustainability disclosure requirements on banks and firms listed on the Singapore Stock Exchange (Chanjaroen & Amin 2021).
The role of policy and regulation is one area that is developing quickly. Litigation over spurious environmental claims is becoming increasingly common, using not only national laws, but also decisions now provided by multilateral bodies. BP, for example, was obliged to withdraw a major advertising campaign in 2020 after a public interest law firm complained that it breached the OECD’s Guidelines for Multinational Enterprises, creating a misleading impression about its move to renewable energy and away from fossil fuels (Barker & Worthington 2021).
Consumer protection laws in this area, however, are sometimes weak. One examination of the Thai regulatory framework, for example, concluded that “… this study finds that the consumer protection law of Thailand is inadequate to resolve the disputes which may arise over the issue of sustainability claims and labelling” (Tongsup 2016: 1). Other commentators have made similar claims (Hannon 2021).
WHERE NEXT?
Reducing or removing the incidence of greenwashing is important if market dynamics and consumer action are to effectively drive demand for cleaner, greener, more environmentally friendly products and services. To do this, a number of steps are still needed.
At the individual firm level, businesses need to ensure they have the requisite technical and environmental knowledge needed to ensure they genuinely are operating in a green manner. This means investing in staff training, reviewing inhouse processes, and ensuring boards include directors with specialist skills in sustainability, climate change and environmental matters. For smaller firms with limited resources, governments can play a role by providing access to advice and certification schemes which might allow businesses to ensure that their processes and products are operating in a sustainable manner.
The marketing industry also needs to be involved in efforts to deal with this problem. As the enabling mechanism through which businesses typically channel green claims out into public messages, the advertising and promotions profession can play a role in checking and validating claims before they are presented to consumers. Encouragingly, the Public Relations & Communications Association of Southeast Asia announced in June last year that it was establishing a working party to look into the issue, set standards, and raise industry awareness (Hicks 2021a). This is a welcome and positive first step for the industry.
Governments should also encourage their national competition and consumer protection agencies to crack down on misleading and deceptive greenwashing claims. Indeed, a number of competition regulators in the region are already showing an interest in the topic. In late 2021, for example, the Competition and Consumer Commission of Singapore invited researchers to bid for grants investigating sustainability-related issues, including greenwashing. It will be interesting to see what emerges from these studies over time. A more proactive approach might be to adopt the approach taken by regulators in nations such as the Australia and the UK, where clear guidance is often provided and greenwashing claims are frequently prosecuted (Competition and Markets Authority 2021).
In the financial services sector, there is a growing awareness that a consistent set of financial taxonomies (definitions) is required to ensure that all investment products are judged on an equal basis. The current absence of clarity in definitions has been frequently cited by commentators as providing “wiggle room” that allows unsustainable financing ventures to be presented as green ones (European Commission 2019). The use of common definitions and categories, labels and standards will help investors make more informed decisions about where, and to whom, they entrust their money. ASEAN has started to make some initial steps in this direction (including the first iteration of its proposed taxonomic system in November 2021), which is to be encouraged.
Company directors have to be more vigilant in policing their own firms’ claims about environmental impacts, especially those relating to climate change. This is already starting to occur, with a number of national director associations now actively engaging on a range of environmental issues. The Singapore Institute of Directors, for example, has already published articles on greenwashing (Ramakrishnan 2022) and, in February 2022, the ASEAN Climate Governance Network was launched, with the support of the national director associations in each country. As the level of director awareness about sustainability increases, there should be a commensurate raising of corporate standards in their public messaging.
Consumer groups and civil society also have a role to play. Individual customers may not be in a position to call out greenwashing claims, but bodies such as national consumer associations, environmental advocacy bodies and public interest law groups have a greater capacity to do so; they should be encouraged to speak out when they can identify examples of corporate greenwashing. Advertising agencies could also be encouraged to exercise their conscience and decline potential work with business clients that are not offering genuinely green products or services; this is already increasingly becoming a common professional practice in nations such as the UK (Watson 2021).
Finally, industry associations and business groups should also be encouraged to consider developing their own eco-friendly certification systems. If done accurately, they can allow the public to easily identify greener products and services, whilst also encouraging various business sectors to improve their environmental performance. Green standards already exist in numerous industries, but there are many more that could also benefit from such programmes.
CONCLUSION
Markets can be a powerful force for generating social, cultural, economic and environmental reform. Properly informed consumers and investors can, and often do, drive change through the astute use of their purchasing and spending power. However, to be successful, it requires a marketplace in which honest and accurate information is made freely available, and in which decisions are made on a properly informed basis.
Greenwashing is more than just a quirky marketing practice; it has the potential to seriously distort the effective expression of consumer and social concerns about environmental issues. As the push for greater sustainability and climate-friendly practices gathers pace across society, we can expect this topic to become more, not less, important in Southeast Asia.
REFERENCES
Barker, Sarah & Worthington, Donna (2021) “The Third Wave of Climate Litigation: Greenwashing,” Minter Ellison Insight, 7October [online] The ‘third wave’ of climate litigation: greenwashing – Insight – MinterEllison, <https://www.minterellison.com/articles/the-third-wave-of-climate-litigation-greenwashing>
Bassett, Peta (2019) “The Great Greenwash” Nikkei Asia, 1 May [online] The great ‘greenwash’ – Nikkei Asia (accessed 15 February 2022). <https://asia.nikkei.com/Editor-s-Picks/Tea-Leaves/The-great-greenwash>
Chanjaroen, Chanyaporn & Amin, Haslinda (2021) “Singapore to Curb Greenwashing With Stress Tests, Technology” Bloomberg, 8 November [online] Singapore to Curb Greenwashing With Stress Tests, Technology – Bloomberg (accessed 15 February 2022). <https://www.bloomberg.com/news/articles/2021-11-07/singapore-aims-to-curb-greenwashing-via-stress-tests-technology>
Competition and Markets Authority (2021) “CMA Welcomes Government Proposals on New Powers” Gov.uk, 4 October [online] Press Release (accessed 8 March 2022) <https://www.gov.uk/government/news/cma-welcomes-government-proposals-on-new-powers#full-publication-update-history>
Eco-Business (2012) “Warning on Carbon Tax Rorts” Eco-Business, 28May [online] Warning on carbon tax rorts | News | Eco-Business | Asia Pacific (accessed 7 February 2022). <https://www.eco-business.com/news/warning-on-carbon-tax-rorts/>
European Commission (2019) “Financing Sustainable Growth” European Commission, 20 January [online] Sustainable Finance EU (accessed 1 March 2022). <https://ec.europa.eu/info/sites/default/files/business_economy_euro/banking_and_finance/documents/200108-financing-sustainable-growth-factsheet_en.pdf>
European Commission (2021) “Screening of Websites for ‘Greenwashing’: Half of Green Claims Lack Evidence” European Commission, 28 Jan [online] Screening of Websites (accessed 8 March 2022). <https://ec.europa.eu/commission/presscorner/detail/en/ip_21_269>
Garcia Freites, Samira, & Jones, Christopher (2021). A Review of the Role of Fossil Fuel-Based Carbon Capture and Storage in the Energy System. Manchester: Tyndall Centre, University of Manchester.
Hannon, Brian (2021) “The Great Effects Excites Activists, But Can’t Stop Corporate Greenwashing”, Globe, 10 November [online] The Greta Effect excites activists, but can’t stop corporate greenwashing (southeastasiaglobe.com) (accessed 10 February 2022). <https://southeastasiaglobe.com/greta-thunberg-businesses-greenwashing/>
Hicks, Robin (2021a) “Southeast Asia PR Industry Launches Working Group To Combat Greenwashing” Eco-Business, 24 June [online] https://www.eco-business.com/news/southeast-asia-pr-industry-launches-working-group-to-curb-greenwashing/ (accessed 10 February 2022). <https://southeastasiaglobe.com/greta-thunberg-businesses-greenwashing/>
Hicks, Robin (2021b) “11 Brands Called Out for Greenwashing in 2021” Eco-Business, 7 December [online] https://www.eco-business.com/news/11-brands-called-out-for-greenwashing-in-2021/ (accessed 10 February 2022). <https://www.eco-business.com/news/11-brands-called-out-for-greenwashing-in-2021/>
Kishan, Saijel (2022) “Polluters’ Greenhouse Gas Number Don’t Always Add Up: Study” Australian Financial Review, 14 January, p.30.
Lucarelli, Caterina; Mazzoli, Camilla; Rancan, Michaela & Severini, Sabrina (2020) “Classification of Sustainable Activities: EU Taxonomy and Scientific Literature” Sustainability, No.12, pp. 6460.
Oliver, Matt (2022) “Investors Query Sustainability” Australian Financial Review, 14 January, p.37.
Pizzetti, Marta, Gatti, Lucia & Seele, Peter (2019). “Firms Talk, Suppliers Talk: Analysing the Locus of Greenwashing in the Blame Game and Introducing ‘Vicarious Greenwashing’” Journal of Business Ethics, 170, pp. 21-38.
Ramakrishnan, Seeram (2022) “Fifty Shades of Greenwashing” SID Directors Bulletin, Quarter 1, pp. 78-81.
Teh, Shi Ning (2021) “Greenwashing Threat Grows With Rise of Sustainable Investing” Straits Times, 24 October [online] https://www.straitstimes.com/business/invest/greenwashing-threat-grows-with-rise-of-sustainable-investing (accessed 08 February 2022). <https://www.straitstimes.com/business/invest/greenwashing-threat-grows-with-rise-of-sustainable-investing>
Timmins, Beth (2021) “Climate Change: Seven Ways to Spot Businesses Greenwashing” BBC News, 8th November [online] https://www.bbc.com/news/business-59119693.amp (accessed 08 February 2022). <https://www.bbc.com/news/business-59119693.amp>
Tongsup, Wongploi (2016) “Sustainability Claims and Labelling in Thailand”, Masters thesis, Thammasat University, Bangkok.
Watson, Imogen (2021) “Boycott or Not To Boycott: How Agencies Should Work With High-Carbon Clients” Campaign Asia, 2nd November [online] Boycott or not (accessed 08 March 2022). <https://www.campaignasia.com/article/boycott-or-not-to-boycott-how-agencies-should-work-with-high-carbon-clients/473678>
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2022/30 “New Chinese Migrants in Chiang Mai: Parallel Paths for Social Interaction and Cultural Adjustment” by Aranya Siriphon, Fanzura Banu and Pagon Gatchalee
EXECUTIVE SUMMARY
- New Chinese Migrants (often called xin yimin, 新移民) refer to recent waves of Chinese who move overseas in search of education and business opportunities. Others pursue personal dreams and better quality of life without the intention of settling permanently.
- While descendants of older Chinese migrants in Thailand consider themselves Thai, hold Thai citizenship, and speak the language, new Chinese migrants tend to struggle when interacting with the locals due to the language barrier and negative stereotypes about foreign Chinese held by the locals.
- Their inability to integrate has led to the growth of a parallel community, where these new Chinese migrants seek each other out for their social needs, instead of mingling with Thais.
- Based on qualitative interviews with new Chinese migrants in Chiang Mai, two social groups are prominent within this parallel community: guardian parent groups and religion-based groups.
- The former consists of guardians to Chinese students, and their purpose is to respond to issues and queries relating to enrolment in Thai international schools. They also act as support groups for other newcomers into Thai society.
- Religion-based groups such as Chinese-language Christian churches and Buddhist spirituality groups provide material and emotional support to new Chinese migrants. These organize bonding activities that facilitate networking and provide social support. They also offer courses to help new Chinese migrants adjust through language classes and lessons on local manners.
*Aranya Siriphon is Visiting Fellow at the Regional Social and Cultural Studies Programme at ISEAS – Yusof Ishak Institute. She is also Associate Professor at the Department of Sociology and Anthropology, Faculty of Social Sciences, Chiang Mai University. Fanzura Banu is Research Officer at the Institute, while Pagon Gatchalee is Lecturer at the Department of Marketing at Chiang Mai University Business School.
ISEAS Perspective 2022/30, 23 March 2022
INTRODUCTION
Chinese immigration to Thailand has a long history, and until the mid-twentieth century,[1] they left their motherland in search of greener pastures and survival.[2] The descendants of these previous waves of migrants can be differentiated by their spoken dialects,[3] having moved from the southern provinces of China before the 1980s. The total population of Thailand’s Chinese migrants and their descendants today is approximately 7.1 million.[4] The Chinese settlers in Thailand form the oldest and most significant ethnic Chinese community settled in Southeast Asia.
Many studies have been undertaken on how they have been settling in Thailand and merging into Thai society.[5] While those who took Skinner’s assimilation approach illustrated the success of Chinese assimilation through the adopting of Thai ways of life, and integrating into Thai society and identifying themselves as Thai,[6] several scholars have recently argued against what they see as an overemphasis on the degree of Chinese assimilation, and instead propose that more attention be paid to the multiple ways in which ethnic Chinese adapt to changing contexts while retaining their Chineseness.[7]
The world today has seen the dynamic rise of China since the introduction of Deng Xiaoping’s open-door economic policy in 1978. One consequence of China’s economic success is the rise of Chinese emigration, with the migrants being collectively called xin yimin 新移民. Since the 1980s, China has strategically encouraged its citizens to explore opportunities overseas, by creating a “xin yimin” official discourse.[8] Some are encouraged by the state’s call, while others simply wish to pursue their personal dreams. However, the new Chinese migrants do not necessarily aim to settle in the host countries; and may be mainly searching for business opportunities, and to pursue a better quality of life. Thailand became a prime destination for many of them, and since the 2000s, they have moved to its big cities in substantial numbers. By 2020, the number of Chinese migrants in Thailand had reached 77,000, and they can be classified into four clusters: business migrants; education migrants; lifestyle and long-term leisure migrants; and a combination of lifestyle and business migrants.[9] All four received ‘non-immigrant visas’ arranged in several types, such as B, O, A, and ED.[10] Some would have arrived on tourist visas first, and then changed their status after having stayed longer in the country.
This paper addresses how these new Chinese migrants are being socially and culturally integrated, and how they are different from the descendants of earlier Chinese settlers. Under what conditions do the new Chinese migrants engage with Thai communities; and are new Chinese communities being formed? This paper is part of a larger research project utilizing qualitative research methods. It is based on fieldwork conducted in 2019 and interviews done in 2020 with Chinese residents in Chiang Mai.
We argue that these new migrants, who are more transient than the earlier Chinese settlers, consider their social interaction with the local Thais challenging. They cite language barriers and lack of social communication skills on their part as the main reasons, plus the negative stereotypes about foreign Chinese held by the locals. Using case studies of guardian-parent support groups and religion-based communities in Chiang Mai, this paper reveals that new Chinese migrants in Thailand have formed what can be considered ‘parallel communities’.[11] These social groups can be categorized based on their objectives, such as business, religion, parent support, and student affairs. They are organized to support new Chinese members materially and emotionally and create a sense of community via “Chinese-based activities”.
THAI PERSPECTIVES ABOUT NEW CHINESE MIGRANTS
Historically, Thai society’s portrayal of China—through the Jin Thai Pi Nong Kan, or Sino-Thai brotherhood narrative—can be seen from the top-down and ground-up perspectives.[12] The Thai diplomatic discourse utilized the top-down perspective, referring to the deep, historical, and cultural ties both countries had fostered for decades. China was portrayed as a generous big brother. However, this brotherhood narrative is slowly changing, as Thailand gets caught in contemporary China-US rivalries.
Between the 1950s and 1970s, China-Thailandrelations were in fact tense. The Thais suspected China of supporting Thai communist insurgencies. By the late-1970s, the Thai government ended hostility and moved towards peace, in line with the US forging cordial relations with China. The Thai government, including the Thai Royal House, found valid reasons to appease Thai citizens by shifting to a Sino-Thai brotherhood narrative, in order to downplay previous antagonistic connotations. Recently, the Sino-Thai brotherhood narrative has been revived to serve official Thai interests in developing China-Thailand ties, to boost the security of the Mekong region, and to improve Thailand’s economic standing in the region. As China downplays the ‘red threat’ image by developing an image of a ‘good neighbour’ and a ‘responsible leader’, the Thai government seized the opportunity to broaden its engagement with China in trade, economy, military and education.[13] This has heightened scrutiny from among Thailand’s traditional allies in the West.
The ground-up perspective, a multi-layered response to the Sino-Thai brotherhood narrative, is demonstrated by ordinary Thais. On the one hand, Thais welcome China for its economic and humanitarian aid to Thailand, and they consider China one of Thai’s Pi Nong (Pi, the ‘elder brother’ country that helps the Nong, the ‘younger brother’ country). On the other hand, recent negative media reporting and social media comments about Chinese tourism in Thailand and elsewhere have led to negative stereotypes growing about how badly Chinese citizens behave when travelling overseas. In short, Thai sentiments on the ground towards the Chinese is conflicted.
While the initial response was favourable to the inflow of Chinese into Thailand which generates revenue and boosts the Thai economy, negative attitudes have followed, which amplify the stereotyping of Chinese tourists and travellers as ‘fools but rich’[14] and ‘those with uncivilized manners.’[15] These negative portrayals have impacted Chinese tourists and new Chinese migrants residing in Thailand and their interactions with local Thais. Economic partnerships between the Chinese and Thais have also been hit, with potential resident Chinese business partners being perceived as ‘threats’ for Thai business partners. Some Thai businessmen consider the Chinese to be unfaithful business partners due to their ‘selfish’ and ‘cheating’ nature. This image is fuelled by certain incidences of fraud and scams, though most cases are gossip circulated among the locals.
The impact of negative stereotypes has led to new Chinese migrants suffering social ostracization in Thai public spaces, such as international schools and local markets. To illustrate, excluding behaviours occur during social events in schools when Chinese parents interact with both foreign and Thai families. Some Chinese families share that Thai families tend to provide differential treatment to Euro-American families, explicitly and purposefully showing their admiration towards them over the Chinese.[16]
OLD AND NEW CHINESE MIGRANTS IN THAILAND
Under the conditions mentioned above, new Chinese migrants maintain a range of enhanced and distinct social relations. Among Thai locals, they have experienced both being included and excluded. Based on recent migration studies, today’s migration is much more complex where the notion of transience is concerned.[17] Theoretically and empirically, its emphasis has shifted from transnational practices and cross-border network-building to the importance of temporalities and spatialities.[18] Xiang contends that a temporary migrant may settle in a locality, but a transient one does not necessarily do so.[19] The migrant only passes through purposively. Therefore, the subject of contemporary migration should not be limited to the following forms and patterns: permanent rupture, uprooting, and local settlement from a transnational perspective. Rather, the study of international migration should now consider transient migration’s temporariness, ongoing movements and the mechanisms and strategies practised. The behaviours found among the new Chinese migrants in Chiang Mai[20] provide empirical support this new approach. While their social lifestyle in big cities such as Chiang Mai and Bangkok does not necessarily need much any interaction with local Thais, these new migrants have their own longer-term struggles, stemming largely from their inability to freely engage with Thai locals due to language barriers and lack of social communication skills.
Compared to well-established ethnic Chinese communities across Thailand that adopt Thai ways of life and identify themselves as Thai citizens, it is worth considering that for new Chinese migrants, assimilation into Thai society in all its elements is not mandatory. New Chinese migrants are not required to apply for Thai citizenship as they do not aim for permanent residency in Thailand. New Chinese migrants identify themselves as Chinese citizens, Zhongguo ren, 中国人, contrasting themselves from the ethnic Chinese and their descendants residing in Thailand, who consider themselves as Huaren, 華人.
FORMING PARALLEL COMMUNITY: SOCIAL NETWORKS AND ITS FACILITATION
Given the circumstances facing the new Chinese migrants in Thailand, they are selective in their online and offline public participation, and sensitive about where they can best fit in and get emotional and material support. As a result, new social groups have appeared within this transient migration. These social groups that actively engage with the new Chinese migrants reflect the existence of ‘parallel communities’. In Chiang Mai, it is guardian-parent groups and religious-based groups which are an attraction for new Chinese residents of all types, ranging from employees of large and small-scale enterprises to individual entrepreneurs, governmental staff and experts, international students and accompanying family members, and long-term stay residents (Chinese seniors, retirees, political refugees etc.).
Guardian-Parent Groups
In Chiang Mai, informal Chinese guardian-parent clubs that connect Chinese families with children attending international schools and universities exemplify a parallel community. The largest informal guardian-parent group in Chiang Mai is the ‘Studying in Thailand Consultation Group’ (泰国留学咨询群), a nonprofit counselling platform initiated in 2016 by a “Mr. Potato”. The founder is a Chinese father who worked in a transnational computer company. He speaks fluent English, and approximately 1,000 members are registered and connected via a WeChat group, from which they acquire information and social interactions as well.
Chinese guardian-parent groups do tend to utilize WeChat platforms. The daily discussions in this WeChat group include issues on non-ED, accompanying visa, and retirement visa, educational choices, guidance for living, driver’s licenses, international hospitals, bank accounts, international logistic services, shopping, and other survival skills. Moreover, blogs, essays, instructions, official files, and others are used and shared to help group members have a smoother lifestyle in Chiang Mai.
Chinese families, especially newcomers, rely on such online platforms to overcome challenges in their new living environment. These mutual assistance communities naturally offer the possibility of conversations continuing offline whenever actual assistance is needed. For example, the group has taken on a major role in negotiating with international schools, helping to organize a committee to solve conflicts between students.
However, by utilizing WeChat, new Chinese residents tend to sidestep the need to interact with local Thais, or parents of other foreign nationalities.
Religious-based Groups
Religious organizations (e.g., temples or churches) provide another social space where new Chinese migrants are able to congregate around their sense of identity. These groups also fulfill their religious needs in some cases, which could not be easily done in China due to strict regime control over religious issues. The two religion-based organizations in Chiang Mai—the two Chinese Christian churches, and the Buddhism-styled spiritual place—are prime examples of this.
The Chinese Christian church named ‘Home of Love’ (爱之家), was established in 2009 by American-Chinese Christian leaders and pastors from Singapore. Approximately 150 Chinese members, including students, parents and businesspeople, regularly visit the church. The second such church is the Chiang Mai Chinese Christian Church (CMCCC, 清迈华人基督教), established in 2015 as a Chinese branch of the Chiang Mai Grace Church. Approximately 100 Chinese members attend the church, primarily students. It was this fast increase in the number of attendees that prompted its leaders to identify a new location in Hang Dong district and to set up a separate church there in 2017.[21]
The two Chinese Christian churches operate all their activities in the Chinese language, and provide newcomers with a sense of home and belonging. Apart from bible study, they organize social activities related to Chinese culture (e.g., Chinese food and joint cooking, singing worship songs in Chinese, and throwing parties during Chinese festivals such as Spring holiday, Mid-Autumn Festival and the dragon boat festival). Sometimes, these churches modify bible stories to closely mirror Chinese life and teach them how to find peace and comfort in a strange place and battle loneliness and homesickness.
Although most activities are geared towards supporting members spiritually, the churches have also helped those facing monetary difficulties. This assistance includes picking new migrants up from the airport, finding accommodation, and warmly welcoming new students at the church. Some courses are also taught: such as learning the English language, understanding Western-style manners, and being acquainted with Thai cultures and taboos. These are meant to assist Chinese students and parents adjusting to Thailand.
Chinese parents and families also visit these churches every Sunday and during their free time on weekdays when their children are at school or when they themselves are not working. Bible courses for children are taught in Chinese by volunteer mothers or fathers. Some Chinese families also attend prayer meetings, consultations or group meetings before having lunch together at the church.
Various groups of new Chinese migrants rely on these churches as a good default venue for their own aims. For example, businesspeople attend church for business networking and information sharing. In the same vein, students come to the churches to meet new Chinese friends and absorb new moral knowledge. Whether conversion subsequently happens or not, the churches provide a common space where these migrants can experience the comfort of Chinese identity.
Anotherexample is the Buddhist spirituality group in Chiang Mai city, named ‘Compassion Foundation’, 妙觉寺, or Miaojuesi for short. It was established in 2016 by a Shifu, 师父, a leading Taiwanese Buddhist monk. This group is financially supported by a wealthy Thai-Yunnanese leader in Chiang Mai, who donated land for the building, and it was the Taiwanese philanthropy network that then continued to donate to the organization.
After setting up the organization, the Shifu met with a pioneer guardian mother from China who bemoaned the difficulties of residing in a foreign land as a newcomer. Thus, he ensured that the Miaojuesi provided free Thai language classes to Chinese residents. Soon, hundreds of Chinese newcomers were attended these classes, and other social and cultural courses, including flower decoration classes or food-making courses. At Miaojuesi, Chinese mothers and children could now find a calm and relaxed place to participate in spiritual, cultural and linguistic learning activities. Before the courses begin, everyone is required to chant ‘The Heart Sutra’, 心经, xīn jīng.
Miaojuesi is neither a traditional Buddhism temple that practices and spreads Mahayana Buddhism (大乘佛教), nor simply an overseas Chinese association. As the founder is a Taiwanese foreign monk, Miaojuesi could not register according to Thai Buddhism laws. By registering the organization as a foreign charity, it becomes a cosmopolitan Buddhist education and charity association that connects new Chinese migrants to other Chinese-cultural circles, either those from Taiwan or Thailand.
Alongside its spiritual and worldly activities, Miaojuesi also organizes a dharma assembly, operating offline and online (WeChat account). Some participants make large donations. For example, a mother donated US$ 2,500 to eliminate her sin felt from an abortion she went through several years back. In 2019, Miaojuesi raised enough money to purchase 24,749 square meters of land for US$ 1.8 million on which to build a larger meditation centre.
CONCLUSION
It is worth noting that new Chinese migrants in general, while residing in Thailand, tend to be do so within Chinese-associated circles consisting of both ethnic Chinese and new Chinese migrants. The variety of social groups reflects the emergence of a parallel community that does not necessarily intersect with local Thai communities. The lack of a need to apply for Thai citizenship compared to Sino-Thais means that new Chinese migrants do not have to sink their roots. At the same time, negative myths and stereotypes about Chinese people held by the locals dilute friendly interaction and partnership between the two sides. Under such circumstances, new Chinese migrants have been prone to seek connections with fellow Chinese.
More cultural education and opportunities for interaction between new Chinese migrants and Thai locals are needed, to dispel negativity and reverse this social division.
ENDNOTES
[1] Phuwadol Songprasert. Chin Phon Thale Samai Mai. (The Overseas Chinese Today). Bangkok: Higher Press, 2004.
[2] Kuhn, P. Chinese Among others: Emigration in Modern Times. (Singapore: NUS Press, 2008), pp. 321–33.
[3] Chinese who migrated into Thailand and their descendants can be classified into five main groups based on their dialects: Teochew, Hakka, Hainanese, Cantonese, and Hokkien. Teochew is the largest ethnic Chinese group in Thailand and has played a significant role in political and economic life, and mostly live in Bangkok and urban cities along the Thai coast. Hakka is the second largest group to be engaged in trade and politics. The Hainanese, Cantonese and Hokkien play less important role, and usually follow the lead of the Teochew group. The relationship between the Chinese and the Thais gradually shifted from exclusion of the Chinese from the Thai social structure in the early Bangkok period to inclusion via intermarriages and the incorporation of the Chinese into the Thai school system and government offices that were traditionally dominated by Thais. For more details, see Amara Pongsapich’s Chinese Settlers and Their Role in Modern Thailand. Asian Journal of Social Science 23, pp. 13–28, 1995.
[4] The figures are published by the Overseas Community Affairs Council (OCAC), Taiwan, and include first and second generation migrants, as well as the latter-generations born in the host country, who identify as Chinese. Noticably, the given figures are higher than figures published by other sources such as the UN and OECD. Please see more details at the data source https://www.statista.com/statistics/279530/countries-with-the-largest-number-of-overseas-chinese/ (retrieved on 2 December 2021).
[5] See the central argument in Kornphanat Tungkeunkunt. Report on Major English- and Thai- Language scholarship on Thailand’s ethnic Chinese in the post-1945 Era: Themes, Approaches, and Shortcomings. The Thai Journal of East Asian Studies (TJEAS), 14, (2), pp.74-95,2010.
[6] See Skinner, William. Chinese society in Thailand: an Analytical History (Ithaca, N.Y.:Cornell University Press, 1957), Guskin, Alan. Changing Identity: the Assimilation of Chinese in Thailand. Ph.D. dissertation, University of Michigan,1968, Galaska, Chester. Continuity and Change in Dalat Plu: a Chinese Middle Class Business Community in Thailand. Ph.D. dissertation, Syracuse University, 1969, Boonsanong Punyodyana. Chinese-Thai Differential Assimilation in Bangkok: an Exploratory Study. (Ithaca: Cornell University, 1971), Disaphol Chansiri. The Chinese émigrés of Thailand in the Twentieth Century (Youngstown,N.Y. : Cambria Press, 2008).
[7] For example, Cushman, Jennifer. The Chinese in Thailand. In Suryadinata, Leo. (ed.) The ethnic Chinese in the ASEAN states: Bibliographical Essays, pp. 221-259. (Singapore: ISEAS, 1989), Tong Chee Kiong and Chan Kwok Bun. (eds.). Alternate Identities: The Chinese of Contemporary Thailand. (Leiden: Brill Academic Publishers, 2001), Montesano, Michael. Beyond the Assimilation Fixation: Skinner and the Possibility of a Spatial Approach to Twentieth-Century Thai History. Journal of Chinese Overseas, 1 (2), 184-216, 2005, Callahan, William. Beyond Cosmopolitanism and Nationalism: Diasporic Chinese and Neo-Nationalism in China and Thailand. International Organization, 57, 481-517, 2003)
[8] Nyiri, Pal, and Saveliev, Igor (eds). Globalizing Chinese Migration: Trends in Europe and Asia (Burlington: Ashgate, 2002)
[9]Aranya Siriphon and Banu, Fanzura. The Nature of Recent Chinese Migration to Thailand. Perspective, 168, pp. 1-11, 2021.
[10] Royal Thai Embassies and Royal Thai Consulates-General may issue the following types of visas regarding their objective of arrival: Transit Visa, Tourist Visa, Non-Immigrant Visa, Diplomatic Visa, Official Visa,and Courtesy Visa. Non-Immigrant Visa B refers to business and work, O means visiting friends and family, O-A refers to Long-stay visitation, and ED means visitation for study. https://consular.mfa.go.th/th/page/cate-7393-general-information?menu=5d68c88b15e39c160c0081e0
[11] The notion of ‘parallel communities’ is coined by the sociologist Wilhelm Heitmeyer with respect to the integration deficits of immigrants in Germany. It has then been applied in other West-European countries with immigration. Please see more debate in Gorchakova, Nadezda. The Concept of Parallel Societies and its Use in the Immigration and Multiculturalism Discourse. (MA. University of Helsinki, 2011); Gomes, C., Leong, S., Yang, P. Editorial: Why Transitions? Transitions: Journal of Transient Migration, 1 (1), pp. 7-11, 2017.
[12] Cited in Kornphanat Tungkeunkunt and Kanya Phuphakdi. Blood Is Thicker Than Water: A History of the Diplomatic Discourse “China and Thailand Are Brothers”. Asian Perspective 42, (4), pp. 597-621, 2018.
[13] Chulacheep Chinwanno. Thai-Chinese Relation: Security and Strategic Partnership: Working paper. (Singapore: S. Rajaratnam School of International Studies, 2008); Kornphanat Tungkeunkunt and Kanya Phuphakdi. Blood Is Thicker Than Water: A History of the Diplomatic Discourse “China and Thailand Are Brothers”. Asian Perspective 42, (4), pp. 597-621, 2018.
[14] Chinese consumers who could make casual purchases of extremely expensive items or some materialistic Chinese who attach the meaning of life to material possessions.
[15] Uncivilized manners” refer to those Chinese who adopt unruly behaviours, for example, breaking legal and civil regulations, littering, queue-jumping, and flouting traffic laws. This stereotype also includes narratives claimed by Thai commoners depicting Chinese as acting violently, committing offensive acts, speaking loudly, and displaying fussy and highly demanding personalities. The two negative portrayals have impacted Chinese tourists and Chinese residents when interacting in Thai locales.
[16] Information gathered from online survey and interviewed 3 Chinese guardians during fieldwork (interviewed May 1, 2019)
[17] Please see Gomes, C. Negotiating Everyday Life in Australia: Unpacking the Parallel Society Inhabited by Asian International Students through their Social Networks and Entertainment Media Use. Journal of Youth Studies 18 (4), pp. 515-536, 2015.
[18] Yeoh, B.S.A. Afterword: Transient Migrations: Intersectionalities, Mobilities and Temporalities. Transitions: Journal of Transient Migration 1, (1), pp. 143-146, 2017.
[19] Xiang, B. Preface: Hundreds of Millions in Suspension. Transitions: Journal of Transient Migration 1, (1), 3-5, 2017.
[20] Cited in Aranya Siriphon and Li Jiangyu. Final Report on Chinese Diaspora and Transnational Mobile Practices in Chiang Mai, Thailand (Thailand: Chiang Mai University and Thailand Research Fund, 2020).
[21] Lan, Xiaoxia. New Chinese Mobility and Religious Enchantment: Case study in Chiang Mai Province. Asian Review, 33 (1), pp. 24-55, 2020; Ping, Yanqing. The Social Life of the Mobility of the Chinese Family and their Children for Education. MA. Thesis, Faculty of Social Sciences, Chiang Mai University, 2020.
| ISEAS Perspective is published electronically by: ISEAS – Yusof Ishak Institute 30 Heng Mui Keng Terrace Singapore 119614 Main Tel: (65) 6778 0955 Main Fax: (65) 6778 1735 Get Involved with ISEAS. Please click here: /support | ISEAS – Yusof Ishak Institute accepts no responsibility for facts presented and views expressed. Responsibility rests exclusively with the individual author or authors. No part of this publication may be reproduced in any form without permission. © Copyright is held by the author or authors of each article. | Editorial Chairman: Choi Shing Kwok Editorial Advisor: Tan Chin Tiong Managing Editor: Ooi Kee Beng Editors: William Choong, Lee Poh Onn, Lee Sue-Ann, and Ng Kah Meng Comments are welcome and may be sent to the author(s). |
Temasek Working Paper No. 4: 2022 – The Temasek Wreck (mid-14th Century), Singapore. Preliminary Report by Michael Flecker
2022/29 “The Race to Produce Covid-19 Vaccines in Southeast Asia” by Tham Siew Yean
EXECUTIVE SUMMARY
- The race to produce Covid-19 vaccines in SEA is triggered by a general reluctance to be dependent on the vagaries of global supply, imports and donations as well as uncertainty over the duration of the pandemic.
- Joining the exclusive vaccine production club will require Southeast Asian countries to enter the vaccine value chain of one of the key producers as contract manufacturers. Indonesia and Malaysia have collaborated with Sinovac, while Thailand has teamed up with AstraZeneca, with more partnerships in the offing.
- Some Southeast Asian countries such as Indonesia, Singapore, Thailand and Vietnam are also venturing into the production of home-made vaccines and these have already advanced to clinical trials with plans for these vaccines to be rolled out in 2022.
- But, there are numerous other vaccines that are being developed around the world that are also undergoing clinical trials. It remains to be seen whether Southeast Asia’s home-made vaccines can compete with the new vaccines that are also coming on board as well as established vaccines, especially when trust in home-made vaccines remains low.
- It also remains an open question whether the future course of the pandemic may render vaccination and the use of home-made vaccines in Southeast Asia redundant or if the vaccines made in the region can combat new variants effectively.
- Be that as it may, the technology acquired in the vaccine development process in Southeast Asia can be used to prepare these countries for future pandemics.
* Tham Siew Yean is Visiting Senior Fellow at ISEAS – Yusof Ishak Institute and Emeritus Professor, Universiti Kebangsaan Malaysia. She thanks Siwage D. Negara and Jayant Menon for useful comments. The usual caveat remains.
ISEAS Perspective 2022/29, 21 March 2022
INTRODUCTION
Vaccine inequity and protectionism continue to prevail despite the World Health Organisation (WHO)’s calls to the contrary. While high income countries may have seen 73 percent of their population completing their first protocol, lower middle-income countries have only attained 46 percent.[1] Low-income countries have a mere 7.9 percent, which is a far cry from WHO’s targets of vaccinating 40 percent of the population of every country by the end of 2021 and 70 percent by the middle of 2022.[2]
One way of meeting vaccine inequity is to enable developing countries to produce their own vaccines. Sharing patented technology and knowledge with drug manufacturers can help to increase supply. However, this would require the current vaccine producers to temporarily waive their intellectual property right on the Covid-19 vaccines that they have developed. This has in fact been proposed by India and South Africa at a World Trade Organization meeting in October 2020, but unfortunately, action on this has since stalled.[3]
Nonetheless, the scramble for vaccines, in the face of uncertain supplies and uncertainty about the efficacy and longevity of current vaccines against new variants, has led some countries in Southeast Asia (SEA) to forge domestic production, be it with existing producers as sub-contractors, or independently. This is to ensure adequate supply for their own needs, reduce their dependency on imports as well as enhance their learning and capabilities to cope with future health pandemics.
PRODUCTION OF COVID-19 VACCINES IN SOUTHEAST ASIA
There are five stages in vaccine development and manufacturing (Table 1), with each step involving separate fixed costs. The exact cost of research and development (R&D) and the manufacture of vaccines are unknown due to lack of transparency among pharmaceutical companies.[4] The Coalition for Epidemic Preparedness Innovations, however, has estimated that the cost of developing a single epidemic infectious disease vaccine to be around USD 31 to 68 million, assuming no risk of failure.[5] Existing Covid-19 vaccine developers such as Pfizer/BioNTech and Moderna have reportedly received USD8.25 million in support in the form of public funding as well as guaranteed government pre-orders.
Besides funding, vaccine development and manufacturing also require R&D capabilities and capacities to develop vaccines from scratch. Thus, most developing countries may not have the research capacities as well as public/private financial support needed for Stage 1 of vaccine development.
The vaccines are then tested in three separate phases in clinical trials to ensure that they are safe and effective.
Manufacturing production is divided into three other stages, from drug substance and drug product formulation, to fill and finish, and later to distribution. Pharmaceutical companies have been shifting towards fragmentation due to the separability of fixed costs in each stage of vaccine development and manufacturing. Developing countries without R&D capabilities can therefore participate in vaccine manufacturing through contract manufacturing for Stages 3 to 5. In particular, scaling up production to meet with demands during the Covid-19 pandemic has led to the outsourcing of production in these three stages. For developing countries, manufacturing can facilitate technology transfer because the technology involved is not confined to the R&D stage alone but includes management of the entire production process. Manufacturing vaccines, including Covid-19 vaccines, require stringent regulatory oversight in the manufacturing process for safety reasons since these vaccines are provided for healthy individuals. Manufacturers have to demonstrate the ability to manufacture according to clear and documented procedures with reliable equipment and personnel, for an extended period of time, without failure or interruptions.
Table 1. Five Stages of Vaccine Development and Manufacturing
| Stages | Requirements | |
| 1 | Research and Development (R&D) | R&D Capabilities |
| 2 | Clinical Trials | National Regulatory Agencies with approved protocols and ethics committee |
| 3 | Drug Substance and Formulation | Capital equipment, raw and single-use materials, and other pharmaceutical ingredients |
| 4 | Fill and Finish | Capital equipment and other inputs |
| 5 | Distribution | Range of equipment |
Source: Adapted from Bown and Bollyky, 2021[6]
SEA Countries with Existing Vaccine Production Facilities
The ASEAN Vaccine Baseline Survey (AVBS) was conducted as part of the ASEAN Vaccine Security and Self-Reliance (AVSSR) initiative.[7] The Survey aimed to describe the current capacity, gap and/or challenges in relation to the whole vaccine value chain, i.e. research and development (R&D), production, regulation and immunisation, at regional and country levels within ASEAN.[8]
The Survey results were published in 2019, just before the onset of the Covid-19 pandemic and serve as a useful guide on the capacity of SEA countries in vaccine production in general. Based on the survey, SEA can be divided into two groups, namely vaccine-producing countries and non-vaccine producing countries. The former includes Indonesia, Myanmar, Thailand and Vietnam (Table 2), thereby indicating the possibility of these countries venturing into the production of Covid-19 vaccines.
Table 2. Current capacity on vaccine research and development in vaccine-producing AMS, as at 2019
| Country | Capacity on R&D Research | Research Institute/Organisations |
| Indonesia | Yes | PT BioFarma |
| Myanmar | Yes | Department of Medical Research, Ministry of Health |
| Thailand | Yes | Government Pharmaceutical Organisation (GPO); Centre for Vaccine Development (CVD), Mahidol University Chiangmai University Vaccine Research Center, Chulalongkorn University National Science and Technology Development Agency (NSTA), Ministry of Science and Technology BioNet ASIA CVD and GPO Department of Medical Science (DOMS), Ministry of Public Health Siridhorn Institute of Technology (SIIT) National Biopharmaceutical Facility (NBF) and DOMS |
| Vietnam | Yes | VABIOTECH* The Centre for Research and Production of Vaccines and Biologicals (POLYVAC) Institute of Vaccines and Biological Medical (IVAC) |
Note: * Name of State-Owned Company which used to belong to The National Institute of Hygiene and Epidemiology (NIHE);
Source: https://asean.org/wp-content/uploads/2021/10/Agd-6.3.a.i_AVBS_Final_23082019.pdf
Production with Existing Vaccine Producers
Given the facilities available for vaccine production as shown in Table 2, it is not surprising that Indonesia and Thailand moved quickly to collaborate with existing Covid-19 vaccine developers when the pandemic broke out in early 2020.[9] The Indonesian embassy in Beijing had sought to establish contact with Sinovac in March 2020. Three months after that, Sinovac agreed to cooperate with Bio Farma in conducting clinical trials as well as vaccine manufacturing. In August 2020, a phase-three clinical trial was carried out for Sinovac’s vaccine. Under the agreement with China, Bio Farma of Indonesia acquired the license to produce CoronaVac and has been designated a production hub for the region. The company started to “fill and finish” 15 million CoronaVac doses for distribution from mid-January 2021, while Brazil is the other production site for the vaccine.
Thailand also negotiated for vaccine production, signing an advance agreement in November of 2020 to secure an undisclosed number of doses of the AstraZeneca/Oxford vaccine and authorization for local production by the Thai drug manufacturer Siam Bioscience, which had no prior experience in vaccine production.[10] It was then considered to be strategically important for Thailand to gain from technology transfer and to make the country self-reliant in vaccine production besides promoting and pushing the Thai pharmaceutical industry to the forefront in ASEAN.[11]
The deal was for Thailand to produce up to 200 million doses a year as the sole SEA production hub for this vaccine.[12] The Thai government had reserved about a third of those doses, with the rest bound for export to Indonesia, the Philippines, Vietnam and other neighbours.[13]
In June 2021, Siam Bioscience started the country’s first production of a COVID-19 vaccine, using AstraZeneca’s technology. However, teething problems led to a shortfall in the projected production, which affected the projected number of doses available for Thailand as well as the country’s exports. The country has since emerged as a major manufacturer of the Oxford/AstraZeneca vaccine, producing 52.5 million doses in September 2021, compared with just 8.4 million in August of the same year.[14]
Malaysia also signed a deal in January 2021 with Sinovac to “fill and finish” the vaccines in Malaysia with Pharmaniaga, a government-linked pharmaceutical company.[15] Pharmaniaga imports the bulk material from Sinovac and performs the fill and finish process at the Pharmaniaga LifeScience plant. This also involves transfer of technology and required testing. Subsequently, Pharmaniaga reported that it had supplied 12 million doses of the vaccine to the National COVID-19 Immunisation Programme (PICK) and with the final batch supplied on 21 July 2021. There are subsequently two media reports of further collaboration with China on vaccine R&D and production, although the partners are not named. Moderna is reportedly moving into vaccine production in Malaysia in 2022.
Vietnamese conglomerate Vingroup has teamed up with a US vaccine maker to begin production of its COVID-19 vaccine in Vietnam early next year. On 2 Aug 2021, it was reported that Vingroup began Phase 1 trials of a vaccine developed by Arcturus Therapeutics Holdings, based in the US city of San Diego.[16] Arcturus has agreed to provide the Vietnamese company with an exclusive license to make its mRNA COVID-19 vaccine candidate — the same type as those developed by Pfizer and Moderna — solely for sale and use in the country. Arcturus is preparing to start production in March 2022 with a production facility in Hanoi which is capable of producing 200 million doses annually.[17]
Producing Home-Made Covid-19 Vaccines
The desire to produce home-made vaccines is to achieve self-sufficiency, improve coordination among research and development agencies and enhance national capability in Covid-19 vaccine production. There are four countries in SEA that are actively developing home-made vaccines.
Table 3 shows the home-made vaccines that have advanced to clinical trials. Vietnam’s Nanocovax, that is being developed by the Nanogen Pharmaceutical Biology Joint Stock Company in cooperation with Military Medical Academy has progressed to Phase 3 trial. But the debut of the first Vietnamese vaccine has been pushed back to 2022, with health authorities taking extra care to ensure the safety and effectiveness of the vaccines.[18]
The ART-021 vaccine that is being developed in Singapore, and the Merah-Putih vaccine in Indonesia are both at Phase 2 trials. Indonesia is pressing to launch the latter’s vaccine in the third quarter of 2022.[19] The Nusantara vaccine is however mired in domestic debates as it is being developed by an American company, Aivita Bio Medical Inc., and its choice of vaccine technology is based on dendritic cells, which are components of blood cells that are a part of the immune system. But there are as yet no dendritic cell-based Covid-19 vaccines that have entered Phase 3 clinical trials in the world, or any that have been approved by any drug regulatory authority.[20]
Thailand’s two home-grown vaccines are still in Phase 2 trials, with the Chula-Baiya vaccine being plant-based, while its developer Baiya is the first Thai company to enter the university’s CU Innovation Hub, a research centre for start-ups, to develop the technology to manufacture recombinant proteins that can produce medicines and vaccines. Mass production of the vaccine Chula Cov-19 is estimated to be in June-September 2022, while the Chula-Baiya vaccine is also expected to be approved for use in the 3rd or 4th quarter of 2022.[21]
Table 3. Vaccine candidates in development in Southeast Asia, as at 26 February 2022
| Candidate | Mechanism | Sponsor | Trial Phase | Institution | |
| 1 | Nanocovax | Recombinant vaccine (Spike protein) | Nanogen Biopharmacuetical | 3 | Military Medical Academy, (Vietnam) |
| 2 | ART-021 | RNA vaccine | Artucus Therapeutics and Duke Medical School | 2 | Duke-NUS Medical School, Singapore |
| 3 | Merah-Putih | Inactivated Vaccine | Indonesia-MoH; Airlangga University; Biotis Pharmaceuticals | 2 | Dr. Soetomo General Hospital, Indonesia |
| 4 | Nusantara* | Dendritic cell vaccine, AV Covid-19 | Aivita Bio Medical Inc. | 2 | National Institute of Health and Development, Ministry of Health, Republic of Indonesia |
| 5 | ChulaCov19 | mRNA-based vaccine | Chulalongkorn University’s Center of Excellence in Vaccine Research and Development | 2 | Chula Vaccine Research Center (ChulaCRC), Faculty of Tropical Medicine, Mahidol University |
| 6 | Chula-Baiya | Protein sub-unit | Baiya Phytopharm Co. Ltd., National Vaccine Institute, Thailand | 2 | Chula Clinical Research Center; Queen Saovabha Memorial Institute |
Source: https://www.raps.org/news-and-articles/news-articles/2020/3/covid-19-vaccine-tracker, * https://www.who.int/publications/m/item/draft-landscape-of-covid-19-candidate-vaccines
In January 2022, it was announced that two types of Covid-19 vaccines are being developed in Malaysia. The Institute of Medical Research (IMR), a biomedical research arm of the Ministry of Health, Universiti Putra Malaysia, and the Veterinary Research Institute are collaborating for the development of the first vaccine.[22] This is an inactivated vaccine similar to the Sinovac-CoronaVac vaccine. The second is an mRNA (messenger RNA) vaccine, which is solely an IMR initiative for now. The latter is scheduled for clinical trials in 2024.
CHALLENGES GOING FORWARD
Competing New Vaccines
Home-made vaccines have to struggle to meet stringent regulatory requirements, as well as viable economies of scale for commercial production. The active ingredients needed for making the vaccines as well as other materials have to be imported. This means that new vaccine-producing countries are just shifting from importing final goods (or the vaccines itself) to importing intermediate goods.[23]
At the same time, according to WHO’s Covid-19 vaccine tracker, as at February 2022, globally, there are a total of 146 Covid-19 vaccines at the clinical development stage. There is therefore stiff competition with existing vaccines as well as next-generation vaccines that are being developed globally in other countries. In particular, Corbevax, a protein subunit that is being developed by Texas Children’s Hospital for Vaccine Development and Baylor College of Medicine in Houston, Texas and Dynavax technologies, is aimed at improving vaccine equity since it carries no patents and uses old recombinant technology for manufacture.[24] Other drug makers are free to use its formulation to reproduce the vaccine, without any payment or complex licensing arrangements. Corbevax is therefore much cheaper and more stable than mRNA vaccines, making it easier to manufacture and distribute on a large scale in developing nations. India has already granted approval for use on people who are above 12 years old and plans to co-produce with the vaccine developers for internal use as well as in the Quad countries.
Trust in Home-made Vaccines
ISEAS’s “The State of Southeast Asia’s 2022 Survey Report” indicates that trust in home-made vaccines is rather low.[25] The most trusted vaccine brands among Southeast Asians – selected by 54.8% of all respondents – are mRNA vaccines Pfizer and Moderna. Domestic vaccine brands are the second lowest to be trusted, at 0.9 %, which is only slightly higher than the Russian-made vaccine, Sputnik-V.
This implies that even if home-made brands are accepted by national regulatory authorities for emergency use in their own countries, they may not be popular and citizens may still prefer to use other established brands, unless these are prohibited from being imported or they are priced too high and made unaffordable, through some kind of domestic taxes imposed on imported drugs. The latter policy options even if enforced are highly distortionary and will lead to inefficient resource allocations in the vaccine-producing country. The lack of trust will also stand in the way of exports. Even if these new vaccine-producing countries are to temporarily waive their intellectual property rights to allow less developed countries to produce these vaccines for their own use, as attempted at the WTO level by India and other supporters, demand may again be limited by the lack of trust.
End of the Covid-19 Pandemic and the Need for Booster Shots
At time of writing, the most optimistic scenario is that the end of the current Omicron wave may lead to an end of the pandemic, with natural immunity emerging for a larger share of the population due to the higher numbers infected by this wave. The optimistic scenario renders the manufacturing of new vaccines redundant in the new vaccine-developing countries, unless it is for export to the low-income countries that still need vaccinations to achieve the WHO targets.
The less optimistic scenario is the emergence of new variants, after Omicron. Whether this will lead to a need for more doses of vaccination remains uncertain as there are also recent discussions that three doses of a Covid vaccine — or even just two — are enough to protect most people from serious illness and death for a long time, with diminishing returns on the number of additional doses.[26] Even if additional doses of vaccinations are required, will the newly developed vaccines in SEA be able to provide protection from these new variants? This remains an open question.
CONCLUSION
The race to produce Covid-19 vaccines in SEA is triggered by a general reluctance to be dependent on the vagaries of global supply, imports and donations, and uncertainty over the duration of the pandemic. Joining the exclusive vaccine production club will require SEA countries to enter the vaccine value chain of one of the key producers as a contract manufacturer. While Indonesia and Malaysia have established partnerships with Sinovac, Thailand has teamed up with Astrazeneca, with more partnerships in the offing.
Some SEA countries are also venturing into the production of home-made vaccines. Notably Indonesia, Singapore, Thailand and Vietnam have potential vaccines that have advanced to clinical trials, and they plan to roll out these vaccines in 2022. But, there are numerous other vaccines that are being developed around the world that are also undergoing clinical trials. In particular, Cobervax is touted to be a better candidate for vaccine equity because it carries no patents, relies on long-established recombinant technology for manufacture and has the support of the US and Indian governments.
It remains to be seen whether SEA’s home-made vaccines can compete with the new vaccines that are also coming on board as well as the established vaccines, especially when trust in home-made vaccines in SEA is low. It also remains an open question whether future developments in the pandemic may render vaccination and the use of home-made vaccines in SEA redundant or if the new vaccines can combat new variants effectively, given the efficacy record of current vaccines against new variants. Whichever the case, the technology acquired in the vaccine development process can be used to prepare these SEA countries for future pandemics.
ENDNOTES
[1] See https://ourworldindata.org/covid-vaccinations, as at 26 February 2022.
[2] See https://www.who.int/campaigns/vaccine-equity
[3] https://www.reuters.com/business/healthcare-pharmaceuticals/year-after-covid-vaccine-waiver-proposal-wto-talks-are-deadlocked-2021-10-04/
[4] https://www.oxfam.org/en/press-releases/vaccine-monopolies-make-cost-vaccinating-world-against-covid-least-5-times-more
[5] https://www.thelancet.com/journals/langlo/article/PIIS2214-109X(18)30346-2/fulltext
[6] Chad P. Bown and Thomas J. Bollyky, 2021. “How COVID-19 vaccine supply chains emerged in the midst of a pandemic”, Peterson Institute of International Economics, Working Paper 21-12, August. https://www.piie.com/sites/default/files/documents/wp21-12.pdf
[7] https://asean.org/wp-content/uploads/2021/10/Agd-6.3.a.i_AVBS_Final_23082019.pdf
[8] https://asean.org/wp-content/uploads/2021/10/Agd-6.3.a.i_AVBS_Final_23082019.pdf
[9] https://www.scmp.com/news/china/science/article/3116707/mass-sinovac-vaccination-programme-set-begin-indonesia-followed
[10] https://www.lexology.com/library/detail.aspx?g=b1b1e2ac-a0cf-4f8f-9a3a-8e212ba05279
[11] Somkid Puttasari 2021. “The failure of vaccine policy pushed Thailand from the best recovering country to the worst.” Observer Research Foundation (ORF), 19 August 2021. https://www.orfonline.org/expert-speak/failure-of-vaccine-policy-pushed-thailand/
[12] https://www.ft.com/content/aaa8b820-68c7-408d-9486-222fe2d65634
[14] https://globalcommissionforpostpandemicpolicy.org/covid-19-vaccine-production-to-september-30th-2021/
[15] http://www.insage.com.my/Upload/MediaNews/PHARMA/PHARMA-TheSunDaily-13012021.pdf
[16] https://www.biopharma-reporter.com/Article/2021/08/02/Arcturus-Therapeutics-lines-up-clinical-trials-for-next-generation-mRNA-vaccine
[18] https://asia.nikkei.com/Spotlight/Coronavirus/COVID-vaccines/Vietnam-s-homemade-vaccines-struggle-to-debut-as-COVID-rages2
[19] Indonesia seeks to launch home-grown Covid-19 vaccine in third quarter | The Star
[20] https://en.tempo.co/read/1441394/questioning-nusantara-vaccine
[21] https://www.newswise.com/coronavirus/chula-expects-the-chulacov19-mrna-vaccine-and-chula-baiya-protein-subunit-vaccine-to-be-ready-in-2022/?article_id=761704
[22] https://www.newswise.com/coronavirus/chula-expects-the-chulacov19-mrna-vaccine-and-chula-baiya-protein-subunit-vaccine-to-be-ready-in-2022/?article_id=761704
[23] https://www.oecd.org/coronavirus/policy-responses/using-trade-to-fight-covid-19-manufacturing-and-distributing-vaccines-dc0d37fc/
[25] /articles-commentaries/state-of-southeast-asia-survey/the-state-of-southeast-asia-2022-survey-report/
[26] Got a Covid booster? You probably won’t need another for a long time. – TODAY (todayonline.com)
| ISEAS Perspective is published electronically by: ISEAS – Yusof Ishak Institute 30 Heng Mui Keng Terrace Singapore 119614 Main Tel: (65) 6778 0955 Main Fax: (65) 6778 1735 Get Involved with ISEAS. Please click here: /support | ISEAS – Yusof Ishak Institute accepts no responsibility for facts presented and views expressed. Responsibility rests exclusively with the individual author or authors. No part of this publication may be reproduced in any form without permission. © Copyright is held by the author or authors of each article. | Editorial Chairman: Choi Shing Kwok Editorial Advisor: Tan Chin Tiong Managing Editor: Ooi Kee Beng Editors: William Choong, Lee Poh Onn, Lee Sue-Ann, and Ng Kah Meng Comments are welcome and may be sent to the author(s). |
“Cyber Troops, Online Manipulation of Public Opinion and Co-optation of Indonesia’s Cybersphere” by Yatun Sastramidjaja and Wijayanto
2022/28 “Myanmar’s Quest for a Federal and Democratic Future: Considerations, Constraints and Compromises” by Su Mon Thazin Aung
EXECUTIVE SUMMARY
- Political stakeholders tend to view the National Unity Consultative Council (NUCC) as key towards achieving a parallel governance system in the medium term, and as part of a solid foundation for a long-term federal democratic solution to Myanmar’s problems.
- The strong commitment shown by the NUCC stakeholders has allowed for compromises and incremental and workable solutions and for it to function as a unifying force to challenge the military.
- In principle, a qualitative and quantitative content analysis of Federal Democratic Charter I and II show that the NUCC has been able to reach a consensus in support of ethnic minorities’ struggle for equality and over identity issues.
- However, the sequencing problem in the NUCC stakeholder dialogue including the formation of NUG before the completion of FDC Part II, and the lack of clarity on the check-and-balance function of the NUCC, worry some stakeholders where the CRPH’s and NUG’s priorities are concerned.
- Going forward, stakeholders’ continuous strong commitment in the fight against the military, in building a solid foundation for a federal and democratic union, and in making incremental compromises would make political coalition long-lasting.
* Su Mon Thazin Aung is Associate Fellow with the Myanmar Studies Programme at the ISEAS – Yusof Ishak Institute. She also works as Director of Capacity-Building at the Institute for Strategy and Policy- Myanmar, an independent, non-partisan and non-governmental think tank in Myanmar.
ISEAS Perspective 2022/28, 18 March 2022
INTRODUCTION
A week before the one-year mark of the 1 February 2021 military coup in Myanmar, the National Unity Consultative Council (NUCC) organized an online “People’s Assembly”. The NUCC is a political alliance of pro-democracy forces and ethnic armed organizations serving as a decision-making body in the parallel governance system. Joined by nearly 400 representatives from different political groups, the assembly ratified the Federal Democracy Charter (FDC), reaffirmed the formation of the interim National Unity Government (NUG), and rejected military rule in Myanmar. This assembly thus ushered in a new era of unchallenged political legitimacy for the NUCC and NUG and accepted federal democracy as a foundational principle for the country’s future.
Myanmar’s real struggle, however, is not what international media commonly portrays as the story of fighting between the military and anti-military forces. The conflicts are more than that, and are instead reflective not merely of state-society democratic contention but also of nation-building failure. In one of the world’s most ethnically diverse countries since its independence, minority groups in Myanmar have since its independence in 1948 suffered from suppression of their participation in (1) the political process (and even large-scale disenfranchisement in the 2020 elections), (2) the distribution of resources and economic goods, and (3) their social, cultural, and religious rights under Bamar majoritarian rule. The Bamar-dominated autocratic state and nation-building failure are persistent reasons for ethnic groups to take up arms against the central government and seek greater autonomy.[1] Therefore, viewing the emergence of the NUCC as a mere attempt to topple the junta falls short of appreciating the underlying cause of Myanmar’s crisis. Moreover, this snapshot view discounts the struggles and challenges that have been occurring within the NUCC in its effort to create a federal and democratic future. The road to the federal democratic vision of NUCC is not without its challenges. While most of the political forces within the NUCC share similar sentiments about the country’s federal and democratic values and goals, they face a number of serious challenges. Nonetheless, stakeholders have demonstrated their strong commitment to fight against the military through their incremental solutions to resolve such constraints and avoid the potential pitfalls from practical constraints.
THE EMERGENCE OF A MULTI-ETHNIC PARALLEL GOVERNANCE SYSTEM
The origin of NUCC can be traced to the days following the 2021 military coup. Representatives who had won seats in the November 2020 election formed the Committee Representing Pyidaungsu Hluttaw (CRPH) on 5 February 2021 to serve as an elected legislative body.[2] It then quickly established an interim government with four acting ministers [3] and an acting vice-president.[4] The CRPH then abolished the military-drafted 2008 Constitution and published the first part of the Federal Democratic Charter (FDC) on 31 March 2021.[5] This part of the FDC spells out shared values and principles, the formation of the interim NUG, and the establishment of the NUCC to coordinate different political forces and to work with the NUG. As declared in FDC I, the NUG was formed on 16 April 2021 with one vice president, one prime minister and 11 cabinet ministers.[6]
Though formed in early March 2021, the NUCC was officially launched only in November 2021.[7] FDC I indicates that NUCC members include CRPH representatives who are overwhelmingly from the NLD, ethnic armed organizations (EAOs), civil society organizations and groups affiliated with the Civil Disobedience Movement[8] and ethnic resistance organizations, and ethnic political parties—many of which had had troublesome relations with the NLD while the latter was in power. NUCC members went through different rounds of discussions over the contents of FDC II, which serve as the basis for the formation of the Interim NUG, and lays out the political road map outlined in FDC I. The People’s Assembly in January 2021 ratified FDC I and II, and formalized the NUCC as a multi-ethnic and pro-democratic alliance to govern the country’s political transition, while recognizing the NUG as the interim government.
In Myanmar’s history of resistance, the alliance of EAOs and pro-democratic forces is not unusual. The Democratic Alliance of Burma (DAB)[9] and the National Council Union of Burma (NCUB)[10] are examples of such struggles against the military in the past. However, the multi-ethnic and pro-democracy forces alliance in the NUCC are significantly different. Support for ethnic minorities’ struggle for equality and identity issues, as well as the Bamar majority’s sensitivity to minority concerns are presently unprecedentedly high. The following section explains these issues as setting the federal democratic principles and discusses how the NUCC has managed to pull together diverse interests and to move forward despite practical constraints.
PRINCIPLE CONSIDERATIONS: FEDERAL AND DEMOCRATIC FUNDAMENTALS
This section of the paper employs content analysis to identify the outcomes of the NUCC’s discussions. Its primary focus is to identify the extent to which fundamentals of federal and democratic principles are reflected in FDC I and II against the backdrop of the military-drafted 2008 Constitution, and provides a better understanding of how NUCC’s stakeholders perceive federal and democratic principles against the military’s old textbook, the 2008 Constitution.
The analysis uses words and phrases as units of study. The quantitative content analysis first counts specific words in FDC I and II. It also examines these words in phrases, since understanding the significance of these words depends on their specific contexts. It particularly identifies words and phrases that fall under five categories of federal principles: (1) Federal and Democratic Visions, reflecting federal and democratic values; (2) Identity, Diversity and Inclusiveness Issues, or the degree of openness to and acceptance of the unique characters and identities of ethnic groups, diversity in religion, culture and language; (3) Shared Rule/ Self Rule, indicating shared rule and a high degree of autonomy for regional governments; (4) Separation of Powers, in which power is distributed among three branches of government to maintain checks and balances; and (5) Conflict Resolution, which focuses on the means to topple the military dictatorship while building a federal democratic union as the ultimate goal. These categories help interpret the NUCC’s application of federal principles in its discussions in order to produce FDC I and II. They also highlight the degree of difference these documents attempt to make in comparison with the 2008 Constitution.
Table 1. Words and Phrases in the Federal Democracy Charter
- The content analysis was performed on the Burmese text of the original documents since official English translations of FDC I and II are yet to be produced.
A quantitative content analysis of the documents reveals that the NUCC’s discussions, though contentious and heated, produced meaningful and fundamental sets of federal and democratic principles albeit that some elements reflected features of the 2008 Constitution. “Federal” is the most used term among those studied in both documents, 77 times in FDC I and 63 times in FDC II respectively. The second most frequent word is “democracy/democratic”, used 46 and 47 times in FDC I and II, respectively. Third most used word is “right(s)”, appearing 44 and 4 times in the respective documents. The words “Charter” and “NUCC” are the fourth and fifth words of highest use, appearing 50 and 46 times. In terms of individual documents, the word “rights” has the second-highest number of uses, 54 times, in Charter I; “NUCC” appears 46 times in FDC 2. The words, “self-determination” and “equality” appear 10 and 9 times in FDC I, but are mentioned only three times each in FDC II. The phrase, “eradicating military dictatorship” appears 8 and 13 times in FDC I and II, respectively. These are significant departures from the 2008 Constitution. Although that document used the word “democratic/democracy” 8 times in the entire document, there is nothing in its text that is fundamental to federal and democratic principles, as expressed through terms such as “federal”, “human rights”, “democratic rights”, “self-determination”, “minority”, or identity”.
The qualitative content analysis also offers a similar perspective to the quantitative content analysis. FDC I offers fundamentals of federal and democratic principles with the objectives of establishing a federal and democratic nation. It aims to implement four main processes: eradicate all kinds of dictatorship including military rule; abolish the 2008 Constitution; build a federal and democratic union; and call for the emergence of a civilian government. Part I differentiates itself from the 2008 Constitution by emphasizing its commitments to federalism in three components. It includes (1) the role of the state constitution in reflecting the shared rules/ shared sovereign aspects in federal principles, (2) the role of inter-governmental committees to settle disputes between states and between the federal government and the states, and (3) the relatively higher de jure power of state leaders, placed above union ministers in the official protocol.
FDC II also demonstrates considerable commitment to federal and democratic principles, highlighting the role of the NUCC and the People’s Assembly. It acknowledges the NUCC, composed of different political groups, as the body to provide policy leadership, and to oversee and coordinate different political groups in the period following the abolition of the 2008 Constitution. Where check-and-balance mechanisms are concerned, the NUCC is therefore accountable to the People’s Assembly. However, FDC II includes the role of a powerful state counsellor in the interim administration. The National League for Democracy (NLD) government first created this position to bypass the provision in the 2008 Constitution barring Daw Aung San Suu Kyi from becoming president of the country. Overall analysis of FDC I and II points to civilian authority over the military under a parliamentary system led by a prime minister. States are to enjoy significant powers and resources, shared with the union government.
PRACTICAL CONSTRAINTS: SEQUENCING PRIORITIES AND THE NATURE OF LEGITIMACY
Despite agreement on the fundamental federal and democratic values, there are different perceptions of how these values would translate into actual implementation plans. This section of the paper analyses two practical constraints faced in stakeholder dialogues within the NUCC.
Being a group with diverse stakeholders, the different sequencing priorities and different understandings of legitimacy in particular have slowed down the NUCC’s political development. As much as both parts of the FDC have become the backbone of the dialogue, they have also become the source of increasing disagreements. The rushed formation of the NUG before the completion of FDC II and the lack of clarity on the check-and-balance role of the NUCC caused concern in some stakeholders about the NLD-majority CRPH’s and NUG’s priorities for the NUCC.
In addition, some participants in the NUCC perceive legitimacy to be drawn from the landslide electoral victories gained by pro-democratic forces. These forces include representatives from the CRPH, the NUG, and the NLD and its supporters. At the same time, the long struggles for self-determination carried out by the ethnic resistance forces and ethnic political parties are considered by them to have won for them significant legitimacy from the ethnic communities they represent, as Finnigan (2019) once mentioned.[11] Other stakeholders, such as some leaders from civil society organizations and activist networks, who witnessed the conflicts between Bamar majority and ethnic minorities in the past decades tend to support such views.
Against this background, some stakeholders suggest that electoral representation be considered differently from political legitimacy, as some ethnic nationalities still support ethnic groups/leaders in their areas regardless of electoral representation. Likewise, there exists a strong view among NUCC stakeholders that the CRPH is made up of elected and legitimate representatives and should not be controlled by the NUCC.[12] These diverse perceptions of the nature of legitimacy complicate the discussion on the roles of the NUCC, the NLD-dominated CRPH and the NUG. Some view the NUCC dialogue process as being dominated by NLD members and their supporters rather than being an all-inclusive political dialogue and decision-making platform. These sequencing problems and different perceptions about legitimacy led to the withdrawal of some stakeholders from participation in the NUCC dialogue in October 2021. Although members have shared understandings of federal and democratic values, these setbacks became practical constraints hindering the NUCC dialogues from moving forward and putting these values into action for the interim governance arrangement.
SEEKING COMMON GROUND AND MAKING COMPROMISES
Despite hurdles, the NUCC has proven to be one of the significant achievements in the recent history of political alliances in Myanmar. Given the prolonged struggles against the military, failure by an emerging political platform such as the NUCC would cost the country its potential future political development. It is therefore a common understanding that preventing the NUCC from failing is critical.[13] In order to avoid the potential pitfalls arising from practical constraints, key stakeholders have demonstrated strong commitment to fight against the military through their incremental solutions. They have therefore reconsidered their approaches and revised their steps. In order to settle the issue of NLD overrepresentation in the NUCC, it has broadened its membership to include more political forces from diverse backgrounds[14] and limited the level of participation of the NUG in NUCC dialogues. It also seeks the role of providing policy guidance to the NUG as an attempt to solve the check-and-balance issue. These reforms within the NUCC have led to a gradual thaw in relations among its members.
CONCLUSION
Myanmar’s unpleasant history of incomplete nation- and state-building means that fighting the military and designing a federal and democratic system for Myanmar require tremendous efforts from all parties concerned. It is also a long-term undertaking. To be sure, just a year after the military coup, it is encouraging that shared values and visions have been established in principle by key stakeholders who enjoy political legitimacy and electoral representation within the NUCC. The newly released FDC I and II ratified by the NUCC reflect the commitment of stakeholders to federal and democratic principles, including acknowledging identity issues, shared rule, shared sovereign arrangements, separation of powers and the construction of a federal-based conflict management mechanism.
Nonetheless, it is at times worrisome to see that practical constraints often arise when it comes to implementing this federal and democratic vision within an interim governance arrangement. Indeed, building unity among stakeholders who share diverse interests and grievances is no easy task. The NUCC is currently drafting an interim constitution based on the FDC I and II. Stakeholders’ continuous strong commitment in the fight against the military in the immediate and mid-term and in building a solid foundation for a federal and democratic nation in the long term, and in making incremental compromises, would make this political coalition long-lasting.
ENDNOTES
[1] Bertil Lintner (1999). Burma in Revolt: Opium And Insurgency Since 1948, Routledge, pg. 210.
[2] As the NLD was the winning party, gaining 86% of civilian seats in both Pyithu Hluttaw and Amyotha Hluttaw, it representatives naturally holds the largest numbers in the CRPH. Likewise, three out of four ministers and an acting vice president of the interim government are NLD members.
[3] The Irrawaddy. (2 March 2021).Defying Military Regime, Myanmar’s CRPH Names Four Acting Ministers”, URL https://www.irrawaddy.com/news/defying-military-regime-myanmars-crph-names-four-acting-ministers.html.
[4] Reuters (13 March 2021). Vice-president of Myanmar civilian government vows resistance to junta rule. URL https://www.reuters.com/article/us-myanmar-politics-crph-idUSKBN2B50I0
[5] FDC 1 was drafted with reference to interim constitutional documents drafted in 1990 by NLD lawmakers and ethnic armed forces. FDC 2 was drafted in 2021 and ratified by the People’s Assembly in January 2022.
[6] Myanmar Now (16 April 2021). CRPH announces lineup of interim ‘national unity government’. URL https://www.myanmar-now.org/en/news/crph-announces-lineup-of-interim-national-unity-government
[7] Moe Thuzar & Htet Myet Min Tun (28 January 2022). “Myanmar’s National Unity Government: A Radical Arrangement to Counteract the Coup”. ISEAS Perspective 2022/8, URL /articles-commentaries/iseas-perspective/2022-8-myanmars-national-unity-government-a-radical-arrangement-to-counteract-the-coup-by-moe-thuzar-and-htet-myet-min-tun/
[8] CDM refers to a group of people who walked off their jobs to join the anti-junta movement.
[9] DAB is a multi-ethnic political alliance formed in border areas of the country in November 1988. It consists of most of the earlier alliance of EAOs, together with pro-democracy forces that took up arms against the military. This was one of the first alliances in which ethnic armed groups worked together with pro-democracy forces against military rule. Seekins, Donald M. Historical Dictionary of Burma (Myanmar). Rowman & Littlefield, 2017.
[10] NCUB is a group comprised of National Democratic Front (formed in 1976), DAB (1988), National League for Democracy Liberated Area (NLD-LA) (1991), and National Coalition Government of the Union of Burma -NCGUB (1996). Thawnghmung, Ardeth Maung. “The Karen Revolution in Burma: Diverse Voices.” In Uncertain Ends, Institute of Southeast Asian Studies, Singapore (2008).
[11] Finnigan, Christopher, 2019.Long Read: The politics of legitimacy in the Myanmar Peace Process, LSE South Asia Centre, URL: https://blogs.lse.ac.uk/southasia/2019/01/18/long-read-the-politics-of-legitimacy-in-the-myanmar-peace-process/
[12] Aye Chan, & Ford, B. (2021). A New Myanmar Forum Aims to Unite Democratic Forces. The USIP. URL https://www.usip.org/publications/2021/11/new-myanmar-forum-aims-unite-democratic-forces.
[13] Online Interviews with three individual members involved in NUCC stakeholder dialogue in different capacities (15-29 Janurary 2022).
[14] Nyan Hlaing Linn, (21, November, 2021). NUCC outlines goals as it seeks to widen membership, Myanmar Now, URL https://www.myanmar-now.org/en/news/nucc-outlines-goals-as-it-seeks-to-widen-membership
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2022/27 “Thai PM Must Act Sooner To Defend His Fragile Premiership” by Termsak Chalermpalanupap
EXECUTIVE SUMMARY
- Thai Prime Minister General Prayut Chan-ocha has until the third week of May to decide how to defend his fragile premiership.
- Once the parliament re-opens on 22 May, the opposition plans to submit a no-confidence motion to try once again to oust General Prayut.
- The ruling coalition shoring up General Prayut’s premiership is falling apart, with each government party trying to score political points in anticipation of an early general election.
- If General Prayut wishes only to complete his four-year term until March 2023, he can strengthen that possibility by reshuffling the cabinet in the near future to pacify and shore up the ruling coalition.
- But if he entertains thoughts of staying in power for another term after the next general election, he will have to do much more—including assuming the leadership of a political party.
- General Prayut cannot continue his precarious reliance on his “Big Brother” General Prawit Wongsuwan, leader of the Phalang Pracharat Party. This is partly because Prawit’s influence is waning and because his party, the largest in the governing coalition, is growing weaker.
* Termsak Chalermpalanupap is Visiting Fellow in the Thailand Studies Programme, ISEAS – Yusof Ishak Institute.
ISEAS Perspective 2022/27, 17 March 2022
INTRODUCTION
General Prayut Chan-ocha’s days as Thailand’s prime minister are clearly numbered. The premier has until the third week of May to decide what to do. Inaction is not a viable option—especially if he hopes to complete his four-year term until March 2023. And if he really wishes to stay in power after the country’s next general election, his options are diminishing and his time is running out.
By 22 May, the Thai parliament will re-open for its 2022-2023 session. At the first opportunity, the opposition plans to submit a motion of no-confidence against General Prayut.[1]
Once this is done, the prime minister cannot avoid a no-confidence debate by dissolving the House and calling an early general election. He could resign instead, but he has persistently ruled that out as an option.
RULING COALITION IN DISARRAY
When the parliament went into recess at the end of February, the 17 parties in the ruling coalition still had a comfortable majority of 257 MPs in the 487-member House of Representatives.[2] The seven parties in the opposition had only 212 MPs. In order to defeat General Prayut in a no-confidence vote, the opposition needs at least 244 MPs.
The Thai Economic Party accounts for 18 seats in the House. It is now under the leadership of Captain Thammanat Prompao, the former secretary-general of the Phalang Pracharat Party (PPP), the leading component of the coalition. Thammanat was expelled from the PPP on 19 January. As de facto leader of the Thai Economic Party, he has maintained that he and his party colleagues will stand for the people’s interest. And he has cautioned that nobody can assume that all of his new party’s MPs will blindly support General Prayut’s premiership.[3]
Captain Thammanat remains a serious threat to the prime minister. He has strong ties to a large number of MPs in the PPP and to the eight micro-parties, each with a single MP, in the ruling coalition. If he wishes to, the flamboyant MP from Phayao can try to instigate government MPs to join him in voting with the opposition to topple General Prayut in the next no-confidence debate, as he did last September. The secret scheme that he undertook at that time fell apart after his plans were leaked and General Prayut responded forcefully to save his premiership. Captain Thammanat, who was also a deputy agriculture minister, was quickly fired from the cabinet.[4]
Since the expulsion of Captain Thammanat and his faction from the PPP, the largest government party has suffered another serious setback in the unexpected defeat of Paiboon Nittitawan, its nominee for the chairmanship of the parliamentary ad hoc committee on amendment of the election law and the political party law. At first, there was a tacit agreement in the ruling coalition that Paiboon, a deputy leader of the PPP and a man well-versed in constitutional law, would be elected to chair the committee.[5]
However, when the committee convened for its first meeting on 1 March, an MP from the Bhumjaithai Party, the second largest in the ruling coalition, unexpectedly nominated Deputy Health Minister Satit Pitutacha, a deputy leader of the Democrat Party, to contest its chairmanship with Paiboon. The Democrats are the third largest party in the ruling coalition. While Satit failed to attend the committee’s meeting because he was at a cabinet meeting, he won the chairmanship with a vote of 22 versus 21. Although the voting was conducted in secret, it is widely believed that several opposition MPs voted for Satit.
Satit is considered a flexible politician, and his Democrat Party is an advocate for the amendment of Thailand’s 2017 Constitution to allow voters to cast separate ballots for constituency candidates and for party lists. In fact, the only one of 13 proposed draft bills on constitutional amendment to be adopted by the parliament last September was proposed by the Democrat Party, with the support of the Bhumjaithai Party and the Chatthai Phattana Party—the fourth largest party in the ruling coalition.
On the other hand, the PPP leadership seems to have second thoughts on restoring the two-ballot voting system. Paiboon was intended to serve as the “fixer”, whom the PPP leadership wanted to put in place to control the ad hoc committee in amending the election law. His mission was to steer the process to prevent Phuea Thai (PT), the largest opposition party, from winning a “landslide victory” in the next general election.[6] That election will see parties being allocated the 100 party-list House seats in proportion to the number of second ballot votes that each party wins. One of the crucial tasks of the ad hoc committee is to propose the formula to be used in the allocation of those seats.[7]
GEARING UP FOR AN EARLY ELECTION
The unexpected defeat of the PPP’s Paiboon can be considered a direct affront to PPP leader General Prawit, a deputy prime minister and the much-respected “Big Brother” of the prime minister. One conclusion is that without Captain Thammanat at his side, General Prawit’s influence is waning. This would explain the fact that the PPP’s three key allies in the ruling coalition dared to upset General Prawit by supporting the Democrat Party’s Satit in edging out Paiboon as the ad hoc committee’s chairman.
These government parties are already gearing up for an early general election. One of the Democrat Party’s key election promises in 2019 was to amend the 2017 Constitution. It therefore had no qualms about nominating Satit to compete with the PPP’s Paiboon. Unlike the latter party, the Democrats do not wish to sabotage amendment of the election law just to thwart a possible political windfall for the PT.
A more serious rift in the ruling coalition involves the Bhumjaithai Party. All of its seven ministers boycotted a cabinet meeting on 8 February to emphasise the party’s opposition to a proposal from Interior Minister General Anupong Paochinda to extend by 30 years the operating concession for the problematic “Green Line” of Bangkok’s mass transit rail service.[8] Consequently, the prime minister postponed further consideration of the proposal.
The Bhumjaithai Party dropped another bombshell on 20 February. A senior MP of the party, Second Deputy House Speaker Supachai Posu, openly threatened the party’s withdrawal from the ruling coalition if the prime minister did not more actively support the party’s draft bill to decriminalise marijuana.[9] The party had campaigned during the 2019 general election to remove marijuana from the coverage of the narcotic control law, and to allow households to grow up to six marijuana plants for medicinal and personal use.
Without support of the second largest government party, which has 64 MPs, the ruling coalition will lose its majority control of the House. Supachai’s threat thus worked like magic. Within two days, General Prayut gave his approval for formal submission to the House of the Bhumjaithai Party’s draft bill as a proposed new law from the cabinet.[10]
Consequently, Bhumjaithai party leader Anutin Charnvirakul quickly offered a climb-down from Supachai’s threat that the party would leave the ruling coalition, explaining that it reflected only a personal opinion offered in the heat of a public speech to the MP’s supporters.[11]
Nevertheless, Anutin offered a cryptic remark, saying that the most formidable threat to General Prayut’s premiership came from “those inside the government” – but not from his Bhumjaithai Party. His party, he said, wants to help General Prayut complete his four-year term.[12]
RESHUFFLING THE CABINET
How much longer can the prime minister rely on support from his “Big Brother”, whose influence seems to be waning, and from the ruling coalition, which seems to be falling apart?
If General Prayut just hopes to host the APEC Economic Leaders’ Meeting, bringing together heads of member governments in Thailand in November and to complete his four-year term ending in March 2023, he can reshuffle his cabinet by offering one or two ministerial posts to Captain Thammanat’s Thai Economic Party. This is a risk-free option for General Prayut to defend his premiership.
Captain Thammanat has dismissed any thought of rejoining the Prayut cabinet himself, but his party-mates, especially incoming party leader General Wich Thephassadin, may welcome the political advantage of belonging to the government side as the next general election approaches.
General Wich was the PPP’s chief strategist before his resignation to join Captain Thammanat’s Thai Economic Party. His close ties to General Prawit convinced the latter that Thai Economic Party will support General Prayut’s premiership.
In that case, the Thai Economic Party, with 18 MPs, deserves to have at least two cabinet posts in return for its support. After all, Chatthai Phattana, with only 12 MPs, has two cabinet posts.[13] Granting posts to the Thai Economic Party will allow General Prayut and his ministers to face the next no-confidence debate without any fear of scheming on the part of Captain Thammanat.
Another advantage to this option is that it will enable the Prayut cabinet to pass the next budget bill in the new parliamentary session without much trouble.
THE EIGHT-YEAR LIMIT
If General Prayut entertains thoughts of continuing his premiership beyond the next general election, he will have to do much more to improve his political standing. And crucially, he needs a favourable ruling from Thailand’s Constitutional Court that he can hold on to his premiership beyond 23 August.
On 24 August 2014, three months after seizing power in a coup, General Prayut became prime minister at the head of a military government. Under Section 158 of the 2017 Constitution drafted under the auspices of that government, no one can serve as Thailand’s premier for more than eight years in total, whether holding the office continuously or not.
Several opposition parties intend to request a Constitutional Court ruling on when General Prayut will have reached the eight-year limit.
Constitutional law experts in Thailand have different opinions on this question. Those who are close to General Prayut believe that the 2017 Constitution has no retroactive effect, and that General Prayut’s premiership under the current constitution started only in June 2019; this means he can serve a second four-year term after the next general election.[14]
TAKING OVER THE PPP
If the Constitutional Court clears General Prayut to move on, he can become a full-fledged politician by taking the leadership of a political party, the PPP, and actively leading it into the next general election. This will require the consent of his “Big Brother” General Prawit.
The 77-year-old incumbent PPP leader is frail and seems to have some health issues. He may welcome passing on the political baton to his beloved younger “brother”, General Prayut.
How successful General Prayut would be in managing MPs and other veteran politicians in the PPP’s different factions remains in doubt. He would not take kindly to being held hostage by self-centred politicians over whom he has little or no control. Moreover, he will have to compete head on with his nemesis Captain Thammanat in wooing veteran politicians whose support he will need to win the next general election.
Since the expulsion of Captain Thammanat, the PPP appears to have grown considerably weaker. Infighting has damaged its reputation. It failed to defend its House seat in the by-election in Bangkok’s Constituency No. 9, covering Laksi and Chatujak districts, on 30 January. And now even the influence of its leader, General Prawit, is waning.
Will General Prayut be able to do better than his “Big Brother” in rebranding and rebuilding the PPP? The thought of dealing with greedy and unruly politicians, which Captain Thammanat once compared to feeding monkeys with bananas, cannot fill General Prayut with enthusiasm. He has, after all, tried to stay away from MPs, including those in government parties.[15]
The PPP is scheduled to hold a party congress in Nakhon Ratchasima on 3 April. All eyes will be on the new leadership line-up. If it includes those who are pro-General Prayut, such as the influential Pirapan Salirathaviphag,[16] the likelihood that General Prayut helms the PPP as party leader will be strong.
GOING FOR A NEW PARTY
If he really wants to try his hand in parliamentary politics, another option for General Prayut is to head a new party of like-minded supporters. One such party, Ruamthai Sangchat (Uniting Thais in Nation Building), has been set up by one of General Prayut’s political aides in the Prime Minister’s Office, Dr Seksakon Atthawong.
With a professed mission to support General Prayut’s premiership, the new party has been recruiting members to join its growing ranks. Two notable new recruits are Porapol Adireksarn and his 80-year-old father Pongpol, who both formerly belonged to the PPP. Pongpol is a famous veteran politician whose father Pol Gen Pramarn Adireksarn was a brother-in-law of the late Prime Minister Chatchai Choonhavan and once led the now-defunct Chat Thai Party. The Adireksarn family is influential in Saraburi, a central province about 100 kms north of Bangkok.
However, Ruamthai Sangchat’s membership drive is facing stiff competition from several other new parties, notably the Thai Economic Party of Captain Thammanat; the Kla (Courage) Party of Korn Chatikavanij, a former finance minister and former deputy leader of the Democrat Party; the Thai Sang Thai (Thais Build Thailand) Party of Sudarat Keyuraphan, a former health minister who was PT’s lead nominee for the premiership in the 2019 general election; and the Sang Anakot Thai (Build the Thai Future) Party of Uttama Saowanayon and Sonthirat Sonthijirawong. Uttama is a former finance minister and a former leader of the PPP; while Sonthirat is a former energy minister and a former secretary-general of the PPP.
These new parties face an uphill struggle to find viable candidates to contest in 400 single-seat constituencies nationwide in the next general election. Moreover, their candidates will run into fierce competition from veteran incumbents from wealthy and well-established parties.
The chances of new parties winning sizeable numbers of House seats in the next general election are not good, especially if they cannot recruit veteran politicians. Will General Prayut take the risk of heading a new party and relying mostly on political greenhorns to combat influential veteran MPs at the polls?
DOING NOTHING?
General Prayut has so far maintained that he will neither reshuffle his cabinet nor call it quits any time soon. However, by doing nothing new or proactive, he remains on the defensive, waiting for his opponents to make their move and then respond. This is not a sustainable strategy. Sooner or later, some of his day-to-day responses will be ineffective, and his premiership will begin to crumble.
Without a political party of his own, General Prayut precariously relies on the goodwill of General Prawit and the PPP, and on the leaders of other government parties, to shore up his premiership and to defend him in the House.
Among those leaders, to date only General Prawit has pledged the PPP’s continuing support for General Prayut remaining in office not only until the end of his four-year term but also after in the next general election.[17]
The other parties in the ruling coalition have remained non-committal. By keeping their options open, they will have more room for manoeuvring after the next general election.
CONCLUSION
The PPP’s weakening has a direct adverse impact on the prime minister’s grip on power. If his ambition is merely to complete his four-year term in March 2023, then he can choose the easy solution of reshuffling the cabinet and offering two ministerial posts to the Thai Economic Party of his nemesis Captain Thammanat.
However, if he chooses to do nothing, then he will face yet another ordeal of a no-confidence debate in the House soon after the parliament reconvenes on 22 May. The position of Thammanat, his party and MPs over whom he has influence in the vote following that debate will be uncertain.
Even if General Prayut survives the no-confidence vote, he will still need to defend and pass the next budget bill. After that, he will in August face the Constitutional Court’s ruling on whether he is approaching the eight-year constitutional limit on holding the premiership.
Before he gets to host APEC leaders in Thailand in November, General Prayut will have to decide on his political future. If he wants to serve a second term after the next general election, he will need a party of his own. He cannot continue to rely on his “Big Brother” General Prawit and the weakened PPP much longer.
ENDNOTES
[1] This will be the fourth time that General Prayut faces grilling by the opposition in a no-confidence debate. He survived three earlier such ordeals during 31 August–3 September 2021 by winning with 264 votes versus 208 votes; 16-19 February 2021 by winning with 272 votes versus 206 votes; and 24-27 February 2020 by winning with 272 votes versus 49 votes.
[2] The House of Representatives originally had 500 MPs. But 13 MPs were subsequently disqualified from House membership, and their vacancies remain unfilled. The vacancies include those due to the disqualification of 11 MPs on the executive committee of the Future Forward Party, including party leader Thanathorn Juangroongruerngkit, as a result of the dissolution of their party in February 2020.
[3] “‘ธรรมนัส’ เย้ย 260 เสียงหนุน ‘บิ๊กตู่’ ฝันไปหรือเปล่า ลั่นไม่มีเศรษฐกิจไทยอยู่ในนั้นแน่” [“Thammanat” questions whether it is a dream that there are 260 votes in support of “Big Tu”, he insists that Thai Economic Party MPs are not part of that number], Thai Post, 1 March 2022 (www.thaipost.net/politics-news/95049, accessed 3 March 2022). “Big Tu” is the nickname of General Prayut used in the Thai media.
[4] See the author’s “Thai PM Remains Vulnerable Without a Party of His Own”, ISEAS Perspective 2021/127, 28 September 2021 (www. /wp-content/uploads/2021/09/ISEAS_Perspective_2021_127.pdf).
[5] The 49-member ad hoc committee consists of 14 MPs from government parties, 13 MPs from opposition parties, 14 senators, and 8 cabinet members. Selection of its chairman is done through a secret ballot.
[6] The Thai parliament already agreed in last September to increase the number of electoral constituencies from 350 to 400, and to reduce the number of party-list House seats from 150 to 100. In addition, it agreed to revert to using the two-ballot voting system in which each voter casts one ballot to choose a constituency candidate and another to choose a political party. The second ballot vote will go towards determining how many of the 100 party-list House seats a party shall have. The parliamentary ad hoc committee will propose a formula for the allocation of party-list House seats.
[7] Under the existing “mixed member proportional system”, the total number of votes that all constituency candidates of a party receive determines how many MPs the party “deserves” to have in the House of Representatives. In the March 2019 general election, the Phuea Thai Party’s candidates received about 7.881 million votes, or about 22.16 per cent of the total. With about 22 per cent of the votes, the PT “deserved” to have 111 MPs in the 500-member House. But, since the PT’s candidates had won in 136 constituencies, the party did not get any share of the 150 party-list House seats on top of its 136 elected House seats. If the next general election uses the two-ballot system, then the PT stands to gain the lion’s share of the party-list House seats – if the allocation is based on simple proportion, without taking into account how many MPs a party “deserves” to have.
[8] “ส.ส. ภูมิใจไทยหนุน 7 รมต. ของพรรคลาประชุม ครม. ค้านขยายสัมปทานรถไฟฟ้าสีเขียว รับไม่ได้ค่าโดยสารมหาโหด” [Bhumjaithai MPs support the party’s seven ministers in not attending a cabinet meeting to show opposition to any extension of the operating concession of the MRT Green Line, cannot accept cruel fare], Manager Online, 8 February 2022 (www.mgronline.com/politics/detail/9650000012861, accessed 5 March 2022).
[9] “ฟังชัดๆ ‘สหายแสง’ ประกาศภูมิใจไทยพร้อมถอนตัวออกจากการร่วมรัฐบาล…” [Listen clearly to “Comrade Saeng” declare: Bhumjaithai is ready to withdraw from the ruling coalition …]. Youtube, 20 February 2022, (https://www.youtube.com/watch?v=LTp3hniXsgY). “Comrade Saeng” was the code name of Supachai Posu, a senior MP of the Bhumjaithai Party from Nakhon Phanom, when he was a communist activist in the 1970s.
[10] “‘บิ๊กตู่’ เซ็นลงนามร่าง พ.ร.บ. กัญชา กัญชง ที่ ‘อนุทิน’ กับคณะ เสนอแล้ว” [“Big Tu” has already signed the draft bill on marijuana and hemp proposed by “Anutin” and his group], Thai Rat Online, 22 February 2022 (www.thairath.co.th/news/politic/2322715, accessed 5 March 2022). Anutin Charnvirakul is leader of the Bhumjaithai Party as well as deputy prime minister and minister of health.
[11] “อย่าคิดมาก! อนุทิน ลั่นท่าทีร่วมรัฐบาล ให้ฟังหัวหน้าพรรค … ” [Don’t think too much! Anutin says just listen to party leader on its stance in the ruling coalition …], Khaosod Online, 22 February 2022 ( www.khaosod.co.th/politics/news_6902144, accessed 5 March 2022).
[12] “‘อนุทิน’ ให้ข้อคิด คนทำร้ายรัฐบาลที่น่ากลัวที่สุด ก็คือ ‘คนในรัฐบาล’”[ “Anutin” offers his view that the ones who can hurt the government the most are “those inside the government”], Thai Post, 6 March 2022 (www.thaipost.net/hi-light/98450, accessed 6 March 2022).
[13] The two cabinet posts held by the Chatthai Phattana Party are those of minister of natural resources (Varawut Silapa-archa) and deputy minister of agriculture (Praphat Phothasoothon). The number of Thai cabinet members is limited to 36, including the prime minister. At present two seats are vacant following the dismissals last September of Captain Thammanat from the post of deputy minister of agriculture and Dr Narumon Pinyosinwat from the post of deputy labour minister.
[14] See author’s article “How Much Longer can Thailand’s Prime Minister Rule Before Reaching the Eight-Year Limit”, ISEAS Perspective 2021/139, 27 October 2021 (/articles-commentaries/iseas-perspective/2021-139, accessed 5 March 2022).
[15] One rare exception happened on 2 September 2021 in the parliament building, where General Prayut received a number of government MPs in person to accept their pledges of support before the vote in the no-confidence debate.
[16] Pirapan is officially an advisor to the prime minister. But he has joined the PPP and been given the titular post of an advisor to the party leader. One of his close friends is former Army chief General Apirat Kongsompong, who is now a deputy director of the Crown Property Bureau. During the Abhisit Vejjajiva premiership of 2011-2014, Pirapan—then a senior Democrat MP—served as justice minister.
[17] In the 2019 general election, the PPP nominated General Prayut for the premiership. Each party can nominate up to three individuals for the post, but each individual can be nominated by only one party.
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2022/26 “Malaysia’s Floods of December 2021: Can Future Disasters be Avoided?” by Serina Rahman
EXECUTIVE SUMMARY
- The floods of December 2021 in Malaysia left almost 50 dead, required the evacuation of about 400,000 people, and resulted in an overall estimate of RM6.1 billion in financial losses. Unprecedented volumes of rainfall left areas on the west coast of Peninsular Malaysia under almost four meters of water and turned roads into rivers.
- A study by the Institute of Geology, Malaysia, placed the source of disaster in thousands of landslides that occurred in the Titiwangsa Range as a result of heavy rains. This then led to debris flows chockfull with rock and forest fragments and wreckage surging downstream, wiping out riverine villages in its path.
- While government disaster response systems were overwhelmed by calls for help, citizens and civil society organisations mobilised aid. The army also moved to rescue stranded flood victims in the absence of an official directive from the National Disaster Management Agency (NADMA). Politicians were panned for their delayed response to the calamity and for ‘showboating’.
- As disasters like these are likely to recur, it is imperative that Malaysia acts to ensure the enforcement of town and city planning requirements, use modelling data to predict flood severity, and implement effective disaster mitigation and resilience plans.
- Aside from dealing with post-flood financial recovery, there is also a need to treat flood-induced trauma. The nation must build back better and incorporate river restoration, flood plain planning, sponge city approaches and community capacity-building to reduce the severity of future flooding disasters.
* Serina Rahman is Visiting Fellow at the Malaysia Programme, ISEAS – Yusof Ishak Institute. She is incredibly grateful for the map speedily created by Rebecca Neo Hui Yun, as well as the invaluable contributions of Christine Fletcher, Ili Nadiah Dzulfakar, Francis E. Hutchinson and Lee Poh Onn to this paper.
ISEAS Perspective 2022/26, 16 March 2022
INTRODUCTION
On 16 December 2021, MetMalaysia (Jabatan Meteorologi Malaysia) issued an orange alert for inclement weather in Kelantan and Terengganu. Most believed that this was the usual annual end-of-year monsoon event which often severely affects the east coast states. True to form, by 17 December, some parts of Kelantan and Terengganu began to flood. The states were well-prepared, however. This annual occurrence means that evacuation centres are ready as soon as MetMalaysia warnings are released and residents, as well as local agencies, know exactly what to do when waters begin to rise. However, this year, Tropical Depression 29W[1] took an unexpected turn, and also dumped unprecedented volumes of rainfall onto the west coast of Peninsular Malaysia.
On 17 December 2021, MetMalaysia issued an amber alert, which then swiftly rose to a red alert (the highest level) for the Klang Valley, Selangor and neighbouring states. It rained continuously for four days, a deluge equivalent to a month’s worth of rainfall in the area. Four rivers around Kuala Lumpur breached their banks, and by 18 December floods in Taman Sri Muda, Shah Alam had reached hip-level.
At the same time, a debris flow that gushed down rivers from the Titiwangsa Range wiped out homes in Kampung Sungai Lui, Hulu Langat, leaving barren patches of land, collapsed roads and destroyed bridges in its wake. Residents likened it to a tsunami.[2]
By 20 December, several highways across central Peninsular Malaysia had been inundated, leaving roads impassable. Many single-storey homes in Taman Sri Muda were flooded to their rooftops. Floodwaters reached a height of four meters in some places,[3] a deluge that left 95 percent of the area underwater.[4]
The state of Pahang was also flooded during this time, but received far less media coverage than areas in Selangor. Posts on social media often begged viewers to focus on Pahang too, regretting that much of the media presence was in the Klang Valley.[5]
However, on 18 December, just as waters in Taman Sri Muda were rising, Pahang registered the highest number of evacuees. Mudslides in Bentong on the same day dragged down a number of holiday chalets and three holiday-makers with it. After 48 hours of rain, Maran and Raub were the first districts to have people evacuated, and by 19 December, 19 rivers were at danger levels.
Figure 1 below illustrates the areas in Pahang and Selangor that were severely affected by the December 2021 floods.
While some of the floodwaters receded in Pahang and Selangor by Christmas day, and residents were able to return to their homes to begin clearing up the mess and count their losses, the storms moved eastwards to Sabah, flooding Kota Marudu. As rivers in Selangor overflowed, the floods spread downstream to Melaka, Johor and Negeri Sembilan over the new year. Kelantan and Terengganu’s floods also returned as the rainclouds moved east.
The weather-related problems did not end there. Sporadic cloudbursts continued until the end of January 2022 and included an unusual hailstorm and strong winds in Kuala Lumpur (24 January), and tornado-like winds that tore off roofs and felled trees in Ipoh (30 January).
Figure 1 – Map of flooded areas and townships in Pahang and Selangor states (December 2021)
The devastation as a result of these calamities came as a surprise to many. This paper attempts to summarise the possible issues behind the floods of December 2021, which have broadly been attributed to natural geological processes, unusually extreme rainfall, climate change, logging and over-development. The responses to the catastrophe are also examined, before the paper concludes with a number of possible mitigation and adaptation measures for these increasingly frequent ‘natural’ disasters.
FLOOD IMPACTS
The flooding and landslides across eight states in December 2021 left almost 50 people dead,[6] and displaced more than 40,000 people.[7] The Department of Statistics, Malaysia calculated that overall losses from the floods came to about RM6.1billion (USD1.46 billion).[8] This figure was based on assessments of public assets and infrastructure, living quarters, vehicles, manufacturing, business premises (mostly services) and agriculture. The breakdown is shown in Figure 2 below.
Figure 2 – Breakdown of overall losses as a result of the December 2021 floods (RM6.1 billion)
Source: Data taken from the Department of Statistics, Malaysia (Facebook infographic: https://www.facebook.com/photo/?fbid=302766295228528&set=pcb.302766691895155 (posted on 28 Jan 2022).
While 11 states suffered financial losses as a result of the floods, Klang, Petaling and Hulu Langat districts (all in Selangor state) suffered the most. This is probably due to its more dense, urbanised environment, as well as its lack of familiarity with severe flooding situations. This meant that residents were unaware and unprepared for the floods, let alone the extent of the severity of this particular season’s extreme precipitation and flooding event.
However, these are merely financial calculations. The intangible aftereffects in those who suffered cannot be quantitatively assessed. Losses such as areas or items of historic, cultural or sentimental value are irreplaceable, and with some of these, there is a subsequent diminishing or loss of identity. While agricultural impacts have been estimated, this may not include the value of arable land; most often damaged by debris, mud and landslides or from being water-logged in the floods.
Poorer communities suffer more than wealthier neighbourhoods, especially as work is disrupted while they try to repair and salvage what remains of their homes. Neighbourhood shops and related stock or equipment may be destroyed, leaving them with even more difficulty in rebuilding their lives when expenses are incurred at rebuilding homes and in the restoring of livelihood sources.[9]
There is also the possibility of water-borne diseases or other illnesses arising post-floods.[10] While many disagree with claims by NADMA that people were reluctant to evacuate,[11] it is undeniable that many feared exposure to Covid-19 at evacuation centres.[12]
The figures shown above are short-term material losses that do not take into account debilitating post-event manifestations such as trauma and a decline in mental health and general well-being. As the rains continued in January 2022, a survey of social media posts revealed that many in Selangor were afraid of being trapped in floods again.[13] Myriad posts reflected panic and worry about a rerun of the December 2021 disaster.
WHAT CAUSED THE FLOODS
Natural Geological Processes
A study by the Institute of Geology Malaysia, led by Professors Ibrahim Komoo and Che Aziz Ali, revealed that one of the direct causes of the destruction of a number of villages and holiday chalets along Selangor’s rivers were sudden mega debris flows (banjir puing).[14]
The unprecedented volume of rainfall was far more than the ground and soil could absorb. This resulted in more than a thousand landslides along the Titiwangsa range, which like an avalanche in temperate climes, tumbled downstream in more than a hundred debris flows. These immensely swift and powerful surges of water swept trees, rocks and other debris with it as rivers overflowed their banks. Anything in its path was slammed by this combination of fast-flowing water and its contents, and was hurled along with it.
The study breaks down the components of the December 2021 calamity into four parts: upstream landslides and debris flows in the Titiwangsa range reserve forests, debris floods in highland agricultural areas, mud floods in the lowlands (affecting riverine villages such as those in Hulu Langat), and monsoonal floods at the estuaries (which affected urban areas such as Taman Sri Muda, Shah Alam and Kuala Lumpur).[15]
Their assessment deemed this a natural geological phenomenon, albeit exacerbated by human impacts in the highlands. While many on social media insisted that rampant logging in the Pahang and other highlands led to this catastrophe, the geologists report that the logs strewn across damaged homes and towns after the waters subsided were those that were ripped out of the ground by surging water rushing down the hillsides.
Anthropogenic Impacts
Deforestation is often cited as the direct cause of floods, but there are often many contributing factors to a disaster. A tropical rainforest is able to intercept and trap about 30 percent of rainfall in its canopy. Of the remaining percentage, much is usually absorbed by the soil and taken up by tree roots.[16] Thus when vast hillsides are clear-felled for agriculture, mining or development, or even when there is selective logging for timber, there is undoubtedly an impact on areas downstream as rainfall cannot be caught and absorbed as much as can be done by a fully intact primary forest.
There are undoubtedly myriad issues related to Malaysian land and forest management, regulation and enforcement, not least because of overlaps in jurisdiction between state and federal authorities.[17] The Rimba Disclosure Project, for example, alleges that vast tracts of forest lands are available for sale online.[18] These lands for sale could be private or state-owned forested land; not all forests are reserves under the jurisdiction of the Forestry Department. However, any forest clearing, even on state land, technically requires approval by the Forestry Department.
Development, urbanisation and related improprieties also add to the woes. While both federal and state regulations stipulate that riverbanks and coastal mangrove forests must have a minimum in untouched buffer zone, and there are myriad constraints listed under the National Land Code, villages invariably pop up too close to the water and some developers are able to find ways around minimum requirements.
Some of these buffer areas along rivers and coasts are not gazetted for protection, while others are within private land. This then makes it hard for the Drainage and Irrigation Department (JPS) and local council to enforce regulations. Some land owners do not take the necessary action to ensure that these buffer zones remain intact.
Urban areas that are expanded over time tend to channel drains and water overflow systems into shared retention ponds. This is a developer’s quick fix when an urban space is too crowded (or expensive) for them to build new drainage systems and runs counter to city and town plans, as well as the National Land Code.
In the case of Taman Sri Muda,[19] the sudden and rapid water level rise was due to the unusually high volumes of water flowing downstream, and the whole neighbourhood essentially became a water catchment basin. The situation was made worse as the king tide at the time impeded overflow channels. Dams could not be opened and sluice gates could not work fast enough to release rising waters.
Added to that were alleged irregularities in the conversion of retention ponds (in Kuala Lumpur) into development projects.[20] Taman Sri Muda is one such area initially marked out on the local plan as a flood plain meant to be used only as a retention pond.[21] Accusations have also arisen over poor maintenance of sluice gates and drainage systems, which have already periodically led to minor flash floods during heavy rainfall long before the December disaster.[22]
Climate change
Some quarters have blamed climate change as the key reason behind the floods and other recent weather-related events. Geologists note that many extreme weather phenomena attributed to climate change have always occurred periodically over millennia.[23] The difference between that and climate change is that the latter has human-related causes whereas geological processes occur naturally over a longer period of time. Human-induced climate change speeds up these processes, leading to increasingly frequent extreme weather phenomena that may or may not be the result of global warming and increasing temperatures.
Hence in December 2021, climate change may have exacerbated the situation through the intensity of 29W (essentially a mild typhoon) and the direction in which it traveled (to the west coast instead of settling on the east coast of Peninsular Malaysia as had always been the recent norm). However, it has yet be ascertained whether climate change (more specifically global warming due to increasing temperatures or greenhouse gases) was a main or direct cause of the floods.
RESPONSES ON THE GROUND
The government response
When waters began to rise, most politicians were involved in the UMNO and Bersatu general meetings,[24] or away on year-end holidays.[25] Flood-affected residents bemoaned the lack of organised aid and rescue by the government and other agencies, which left some of them stranded on rooftops for up to four days.[26]
The Malaysian Armed Forces (ATM) moved to begin relief efforts even without a directive from the National Disaster Management Agency (NADMA) as is the required protocol, after witnessing victims stranded on rooftops for hours. News reports indicated that the ATM had grown impatient with the lack of direction and decided to mobilise on its own.[27]
The Fire and Rescue Department were overwhelmed by calls for help, especially in Selangor where staff themselves were suffering from floods yet rushed to help others, and the severity of the deluge was ‘unexpected’.[28] Indeed, instead of acting in unison to help flood victims, the government seemed to be more intent on pushing blame between federal and state governments and agencies, and politicking between incumbent parties.[29]
While a few opposition politicians were shown to be on the ground and helping flood-stranded victims by 18 December,[30] many other political leaders and ministers only appeared after the water subsided.[31] Accusations of ‘showboating’ arose as politicians were seen posing on ‘rescue’ boats packed full of media personnel and their personal entourage,[32] as well as holding grand hotel ‘launch’ ceremonies to announce their aid distribution to the media.[33]
Others were panned for posing with water jets and shovels in places that were clearly already cleaned, and doing that in inappropriate footwear.[34] Prime Minister Ibrahim Sabri acknowledged there were shortfalls in the government response, and announced the immediate replacement of NADMA with the National Security Council (MKN) to deal with the disaster response.[35]
In the immediate aftermath of the floods, the government put out a call for donations to a flood relief fund, but netizens on Twitter responded with the hashtag #DoNotDonateToGovernment.[36] While there were then subsequent announcements of flood aid, the RM1000 (SGD322) per household disbursement[37] was roundly criticised by flood victims and opposition politicians as acutely insufficient given that the average estimated home repair cost was at least RM10,000. Others complained that there was too much bureaucracy to overcome in order to get the aid.[38]
The government subsequently announced a more comprehensive flood relief package worth a total of RM1.4 billion (SGD450 million), and a revision to previous restrictions.[39]
Civil society to the rescue
While the floods of December 2021 were a terrible experience for its victims and left the rest of the nation reeling in shock at the severity of the debris flows and floodwater depths, there was a silver lining to the episode.
As with any other disaster that occurs in Malaysia, the people rose to help themselves and each other when there seemed to be a lag in effective action by the government and local authorities or agencies.[40]
Social and mainstream media reports highlighted the efforts and kindness of resident groups, neighbours and random strangers (including migrant workers) who did their best to help the aged, children and disabled.[41] As residents sat stranded on rooftops, several youth swam through the floods to retrieve and rescue food and other needs, clambering across houses to deliver them to starving and thirsty families,[42] or to look for help.
Not only did NGOs and religious groups like the Malaysian Red Crescent Society and the Gurdwara Sahib Petaling Jaya immediately mobilise, so did concerned citizens from other states.
Fishermen of Kelantan, Kedah, Terengganu and Johor traveled to Selangor with their boats in tow to provide aid as roads turned into lakes and rivers.[43] Awan Omar, better known as ‘Abang Viva’, became a viral sensation and ‘flood hero’ for taking emergency leave to haul his boat on top of his Perodua Viva from Melaka to Shah Alam to help those in need.[44] Some provided heavy vehicles and 4WDs to send food and other supplies.
Those interviewed said that they were merely returning the kindness shown them when they too endured floods in the past. Others simply said they could not sit back and watch fellow Malaysians suffer.[45]
Volunteer doctors set up impromptu clinics and others focused on rescuing pets and providing veterinary care.[46] When the floods subsided, youth and countless other volunteers helped to clean homes and places of worship, as well as salvage and repair damaged appliances.[47]
MOVING FORWARD
Annual monsoonal floods in the east coast of Peninsular Malaysia, as well as in Sarawak and Sabah have become such a regular occurrence that action in response to inundation usually moves like clockwork. Ibrahim Komoo notes that it is important to prepare society to ‘live with disaster’. He emphasises the need for a better understanding of geological processes (earth sciences) and better public awareness on disaster response and SOPs.[48]
Ili Nadiah Dzulfakar, Founder of KLIMA Action Malaysia, notes that international efforts to combat climate change should not focus solely on over-ambitious and elitist aspects such as carbon credits and markets, but instead work on practical measures that will reach those who are on the frontlines of climate change-related disasters. She suggests that Malaysia take on an important role to strengthen Loss and Damage mechanisms for finance in the climate change Conference of Parties (COP), and also domestically refocus on actions that addresses Loss and Damage to ensure compensation, reparation and funds to rebuild lives.[49]
Environmentalists across Malaysia have called for a complete logging moratorium,[50] but this will have to overcome myriad overlaps in jurisdiction and loopholes such as the ability to log on private land; will require a lot of institutional transparency and integrity; and the unwavering recognition of indigenous land rights. Since the devastating floods, the Pahang state government has announced that it has launched a programme to plant a tree for every child born in the state.[51]
Nature-based solutions to climate change call for river restoration in place of hard engineering approaches to canals and drainage systems.[52] Good town and city planning documents and regulations that take into account future climate change scenarios should be strictly enforced, and incorporate approaches such as flood plains planning.
Zaki Zainudin, water quality and modelling specialist, notes that there is abundant data from climatology and hydraulic conveyance modelling tools that can be used to predict, plan for and mitigate flood severity.[53] New developments can consider the approach of China’s ‘sponge city’ projects in Gui’an New District.[54]
However, in an already urbanised, overly-dense older suburb such as Taman Sri Muda, this would call for a complete overhaul of existing drainage systems and may result in the loss of already limited fringing open spaces, require costly land acquisition and highly complicated construction.
It is clear that society must pay heed to these consistent warnings of increasingly regular disasters to come if nothing is done to prepare for them. Christine Fletcher stresses the need for Malaysia to not just mitigate for natural disasters and climate change impacts, but to adapt lives and livelihoods for better resilience. Only when communities and local districts are empowered to take immediate or early action in light of weather warnings or other directives, can they properly “build back better,” encompassing infrastructure, policies, planning and community capabilities.[55]
ENDNOTES
[1] A low-pressure area that generates unusually high volumes of rainfall, with the possibility of becoming a cyclone or typhoon.
[2] Aiman, A. 23 December 2021. “Total loss: Hulu Langat residents tell of ‘devastating’ floods,” Free Malaysia Today. https://www.freemalaysiatoday.com/category/nation/2021/12/23/total-loss-hulu-langat-residents-tell-of-devastating-floods/
[3] Ariff, I and Ramachandran, J. 1 January 2022. “How Taman Sri Muda ‘drowned’ in other people’s water,” Free Malaysia Today. https://www.freemalaysiatoday.com/category/nation/2022/01/01/how-taman-sri-muda-drowned-in-other-peoples-water/
[4] Chan, J. 24 December 2021. “Receding waters bring relief to Taman Sri Muda residents,” Star Online. https://www.thestar.com.my/metro/metro-news/2021/12/24/receding-waters-bring-relief-to-taman-sri-muda-residents
[5] For example, on Twitter: https://twitter.com/min_dy0/status/1472868053310328834
[6] Relief Web. 3 January 2022. Malaysia – Floods and landslides, update (NADMA, Met Malaysia, media) (ECHO Daily Flash of 3 January 2022). https://reliefweb.int/report/malaysia/malaysia-floods-and-landslides-update-nadma-met-malaysia-media-echo-daily-flash-3
[7] Davies, R. 20 December 2021. “Malaysia – Floods displace over 40,000,” Floodlist. https://floodlist.com/asia/malaysia-floods-december-2021
[8] Department of Statistics, Malaysia. 28 January 2022. Special Report on Impact of Floods in Malaysia 2021. https://www.dosm.gov.my/v1/index.php?r=column%2FcthemeByCat&cat=496&bul_id=ZlkxS0JnNThiRHk0ZllZajdyVm44UT09&menu_id=WjJGK0Z5bTk1ZElVT09yUW1tRG41Zz09&fbclid=IwAR16_ZcY6DlefMigXSq-IyJUJT4a_EbiUz_lBl_T76xYWXX7eeTd3gdomGY
[9] Gengathurai, V.D. 30 December 2021. “The far-reaching impact of floods,” New Straits Times. https://www.nst.com.my/opinion/letters/2021/12/758852/far-reaching-impact-floods
[10] Hilmy, I. 23 December 2021. “Diseases loom after floods,” Star Online. https://www.thestar.com.my/news/nation/2021/12/23/diseases-loom-after-floods
[11] Palansamy, Y. 20 December 2021. “NADMA DG: Many in Taman Sri Muda refused to evacuate when rain began, despite authorities stressing urgency of flood threat,” Malay Mail. https://www.malaymail.com/news/malaysia/2021/12/20/nadma-d-g-many-in-taman-sri-muda-refused-to-evacuate-when-rain-began-despit/2029875
[12] Yusry, M. 28 December 2021. “High risk of Covid-19 infection at flood relief centers,” The Sun Daily. https://www.thesundaily.my/local/high-risk-of-covid-19-infection-at-flood-relief-centres-NF8700690
[13] Azhar, D. 24 January 2022. “As waters rise, fear of another flood in Taman Sri Muda,” Free Malaysia Today. https://www.freemalaysiatoday.com/category/nation/2022/01/24/as-waters-rise-fear-of-another-flood-in-taman-sri-muda/
[14] Astro Awani. 23 January 2022. Laporan Khas: Hidup Bersama Bencana (Special Report: Living with Disaster). https://www.astroawani.com/video-malaysia/laporan-khas-hidup-bersama-bencana-1945286
[15] Ibrahim Komoo, 15 February 2022. Post on Facebook: Environment and Sustainability public group. https://www.facebook.com/groups/854661231714821
[16] Fletcher, C. 7 February 2022. Webinar: Peninsular Malaysia’s Floods of 2021 – Investigating the causes and possible solutions. ISEAS – Yusof Ishak Institute, Singapore. (Speaker’s comments used with permission)
[17] Refer to: Rahman, S. 2020. “The Struggle for Balance: Johor’s Environmental Issues, Overlaps and Future,” in Hutchinson, F.E. and Rahman S. (Eds). Johor: Abode of Development. ISEAS – Yusof Ishak Institute, Singapore. Pp 473-500.
[18] Rimba Disclosure Project. 3 February 2022. Press Release: “Stop Forests for Sale: Vast Tracts of Alleged Forests being Sold Online.” https://www.facebook.com/Rimba-Disclosure-Project-100439705669127
[19] Zulkifli A.M. 28 December 2021. “Behind Shah Alam’s perennial floods,” Malaysia Now. https://www.malaysianow.com/news/2021/12/28/behind-shah-alams-perennial-floods/
[20] Free Malaysia Today. 28 December 2021. “6 retention ponds in KL earmarked for development, says MP.” https://www.freemalaysiatoday.com/category/nation/2021/12/28/6-retention-ponds-in-kl-alienated-for-development-says-mp/; and Free Malaysia Today. 2 January 2022. “Act on conversion of flood ponds for development, UMNO man tells govt.” https://www.freemalaysiatoday.com/category/nation/2022/01/02/act-on-conversion-of-flood-ponds-for-development-umno-man-tells-govt/.
[21] Personal communication, Dr Christine Fletcher. 22 February 2022.
[22] Vinod, G. 20 December 2021. “Flood in Taman Sri Muda: This is why Ganabatirau chided JPS officials, netizens say,” Focus Malaysia. https://focusmalaysia.my/flood-in-taman-sri-muda-this-is-why-ganabatirau-chided-jps-officials-netizens-say. And Ariff, I. and Ramachandran, J. 1 January 2022. “Authorities knew Taman Sri Medan deluge was coming, say residents,” Free Malaysia Today. https://www.freemalaysiatoday.com/category/nation/2022/01/01/authorities-knew-taman-sri-muda-deluge-was-coming-say-residents/
[23] Lunt, D. 1 September 2021. “Climate change in the geological record,” Geoscientist. https://geoscientist.online/sections/unearthed/climate-change-in-the-geological-record/
[24] Azmi, H. 20 December 2021. “Malaysian PM Ismail Sabri Yaakob’s government under fire over slow response to worst floods in recent memory,” South China Morning Post. https://www.scmp.com/week-asia/health-environment/article/3160453/malaysian-pm-ismail-sabri-yaakobs-government-under
[25] Bernama. 24 December 2021. “Floods: Cabinet ministers told to cancel holidays, return to Malaysia immediately,” The Edge Markets. https://www.theedgemarkets.com/article/floods-cabinet-ministers-told-cancel-holiday-return-malaysia-immediately
[26] Palansamy, Y. 24 December 2021. “Disappointment over authorities’ delayed response stays with Taman Sri Muda survivors after flood waters recede,” Malay Mail. https://www.malaymail.com/news/malaysia/2021/12/24/disappointment-over-authorities-delayed-response-stays-with-taman-sri-muda/2030700
[27] Augustin, S. 21 December 2021. “Fed up of waiting, the military rolls into flood relief,” Free Malaysia Today. https://www.freemalaysiatoday.com/category/nation/2021/12/21/fed-up-of-waiting-the-military-rolls-into-flood-relief/; and Latiff, R. and Harris, E. 21 December 2021. “At least eight dead in Malaysia floods as rescue effort stumbles,” Reuters. https://www.reuters.com/markets/commodities/least-eight-dead-malaysia-floods-rescue-effort-stumbles-2021-12-20/
[28] Zolkepli, F. 23 December 2021. “Authorities did not expect severe flooding in Selangor, says Bomba DG,” Star Online. https://www.thestar.com.my/news/nation/2021/12/23/authorities-did-not-expect-the-severe-flooding-in-selangor-says-bomba-dg
[29] Zainuddin, A. 24 December 2021. “Frustration grows in Malaysia over government’s slow flood response,” The Diplomat. https://thediplomat.com/2021/12/frustration-grows-in-malaysia-over-governments-slow-flood-response/ and Free Malaysia Today. 26 December 2021. “Tense UMNO-Bersatu ties hit by flood of criticism.” https://www.freemalaysiatoday.com/category/nation/2021/12/26/tense-umno-bersatu-ties-hit-by-flood-of-criticism/
[30] Free Malaysia Today, 20 December 2021. “MP kayaks solo to rescue flood victims.” https://www.freemalaysiatoday.com/category/nation/2021/12/20/mp-kayaks-solo-to-rescue-flood-victims/ and Krishnan, D.B. 21 December 2021. “MPs use all available resources to help constituents,” New Straits Times. https://www.nst.com.my/news/nation/2021/12/756574/mps-use-all-available-resources-help-constituents
[31] Azmi, H. 20 December 2021. “Malaysian PM Ismail Sabri Yaakob’s government under fire over slow response to worst floods in recent memory,” South China Morning Post. https://www.scmp.com/week-asia/health-environment/article/3160453/malaysian-pm-ismail-sabri-yaakobs-government-under
[32] Chai, J. 21 December 2021. “We asked for boats, instead we got showboats,” Malaysiakini. https://www.malaysiakini.com/columns/603934 – james chai /
[33] Ramachandran, J. 20 December 2021. “Netizens tick off Faizal for standing on ceremony,” Free Malaysia Today. https://www.freemalaysiatoday.com/category/nation/2021/12/20/netizens-scold-faizal-for-standing-on-ceremony/ and Hassan, H. 21 December 2021. “Malaysians slam Rina Harun for allegedly organizing a grand ceremony for flood relief,” World of Buzz. https://worldofbuzz.com/malaysians-slam-rina-harun-for-allegedly-organising-a-grand-ceremony-for-flood-relief/
[34] Jamil, S. 26 December 2021. “Of high heels and water jets, Rina Harun gets roasted again on social media,” Star Online. https://www.thestar.com.my/news/nation/2021/12/26/of-high-heels-and-water-jets-rina-gets-roasted-again-in-social-media and Kaur, M. 29 December 2021. “Drop gimmicks, focus on policies to help flood victims, ministers told,” Free Malaysia Today. https://www.freemalaysiatoday.com/category/nation/2021/12/29/drop-gimmicks-focus-on-policies-to-help-flood-victims-ministers-told/
[35] Free Malaysia Today. 20 December 2021. “MKN put in charge of flood response, after flak over Nadma.” https://www.freemalaysiatoday.com/category/nation/2021/12/20/mkn-put-in-charge-of-flood-relief-after-flak-over-nadma/
[36] Shukry, A. 24 December 2021. “Malaysia Premier faces Twitter backlash over flood response,” Bloomberg. https://www.bloomberg.com/news/articles/2021-12-24/malaysian-pm-ismail-faces-twitter-backlash-over-flood-response
[37] Lim, I. 22 December 2021. “Nadma: RM1000 one-off flood aid only for Malaysian household head and per home: here’s how to apply,” Malay Mail. https://www.malaymail.com/news/malaysia/2021/12/22/nadma-rm1000-one-off-flood-aid-only-for-malaysian-household-head-and-per-ho/2030371
[38] The Vibes. 21 December. “Victims bemoan cumbersome red tape for RM1000 flood relief.” https://www.thevibes.com/articles/news/50186/victims-bemoan-cumbersome-red-tape-for-rm1000-flood-relief
[39] The Sun Daily. 29 December 2021. “Flood aid to be implemented in a comprehensive, effective manner: PM.” https://www.thesundaily.my/home/flood-aid-to-be-implemented-in-comprehensive-effective-manner-pm-updated-KY8706873
[40] Chan, J. 21 December 2021. “How Malaysians showed up for each other through #DaruratBanjir,” Malay Mail. https://www.malaymail.com/news/malaysia/2021/12/21/how-malaysians-showed-up-for-each-other-through-daruratbanjir/2029956 and Yusry, M. 28 December 2021. “Malaysians put differences aside to help one another during floods,” The Sun Daily. https://www.thesundaily.my/local/malaysians-put-differences-aside-to-help-one-another-during-floods-AF8700662
[41] Ahmad, S. 20 December 2021. “Man uses own kayak to rescue Dengkil flood victims,” New Straits Times. https://www.nst.com.my/news/nation/2021/12/756287/man-uses-own-kayak-rescue-dengkil-flood-victims; Malaysiakini. 19 December 2021. “Many residents stranded in Taman Sri Muda still not getting help.” https://www.malaysiakini.com/news/603751; and The Vibes. 22 December 2021. “Bangladeshis took food from Mydin for residents: flood victims.” https://www.thevibes.com/articles/news/50291/bangladeshis-took-food-from-mydin-for-trapped-starving-residents-flood-victims
[42] The Sun Daily. 23 December 2021. “Taman Sri Muda flooding: neighbour hails 4 young men as heroes.” https://www.thesundaily.my/local/taman-sri-muda-flooding-neighbour-hails-4-young-men-as-heroes-KE8688927
[43] Shu, I and Shuaib, A. 25 December 2021. “Konvoi bawa bot, barang keperluan dari Kedah bergegas ke lokasi banjir… tragedy Tsunami 2004 bakar semangat nelayan, mahu teruskan misi tanpa kenal erti penat,” MStar.Com (Convoy bringing boats and necessary aid from Kedah rushes to the location of the floods – the tsunami tragedy of 2004 is the fishermen’s inspiration. They want to continue their mission without thought of exhaustion.) https://www.mstar.com.my/lokal/viral/2021/12/25/konvoi-bawa-bot-barang-keperluan-dari-kedah-bergegas-ke-lokasi-banjir-tragedi-tsunami-2004-bakar-semangat-nelayan-mahu-teruskan-misi-tanpa-kenal-erti-penat and Tam, M. 20 December 2021. “Floods: Malaysians from outside Klang Valley bring boats to help,” Star Online. https://www.thestar.com.my/news/nation/2021/12/20/floods-malaysians-from-outside-klang-valley-bring-boats-to-help
[44] Izarul, M. 24 December 2021. “Sanggup ambil cuti dan berbekalan RM50, ‘Abang Viva’ bawa bot jadi ‘hero’ bantu mangsa banjir,” Funtasticko.Net. (Willing to take leave, and with only RM50 in his pocket, Abang Viva brought out his boat to become a flood hero.) https://www.funtasticko.net/sanggup-ambil-cuti-dan-berbekalkan-rm50-abang-viva-bawa-bot-jadi-hero-bantu-mangsa-banjir/
[45] Tang, A. 21 December 2021. “Malaysians raly to extend help,” Star Online. https://www.thestar.com.my/news/nation/2021/12/21/malaysians-rally-to-extend-help
[46] Sin Chew Daily. 2 February 2022. 2021 “Floods: rescuing stranded animals.” https://mysinchew.sinchew.com.my/20220202/2021-floods-rescuing-stranded-animals/; and The Vibes. 20 December 2021. “Malaysians rescue ‘forgotten’ cats, dogs amid worst floods in Klang Valley.” https://www.thevibes.com/articles/news/50056/msians-to-the-rescue-of-forgotten-cats-dogs-amid-worst-flood-in-klang-valley
[47] Savitha, A.G. 31 December 2021. “KakiRepair and team salvage over 230 household appliances in Taman Sri Muda to help reduce landfill waste,” Malay Mail. https://www.malaymail.com/news/life/2021/12/31/kakirepair-and-team-salvage-over-230-household-appliances-in-taman-sri-muda/2032221
[48] Komoo, I.B. 26 January 2021. “Memahami Bencana Alam” (Understanding Natural Disaster), DSSS Bikin Panas PahangKu Media. (Speaker’s comment during Facebook Live session: https://www.facebook.com/pahangkumedia/videos/363586405150562/) and Astro Awani. 23 January 2022. Laporan Khas: Hidup Bersama Bencana (Special Report: Living with Disaster). https://www.astroawani.com/video-malaysia/laporan-khas-hidup-bersama-bencana-1945286
[49] Dzulfakar, I.N. 7 February 2022. Webinar: Peninsular Malaysia’s Floods of 2021 – Investigating the causes and possible solutions. ISEAS – Yusof Ishak Institute, Singapore. (Speaker’s comments used with permission).
[50] The Malaysian Reserve. 3 February 2022. “Environmentalists call for logging moratorium.” https://themalaysianreserve.com/2022/02/03/environmentalists-call-for-logging-moratorium/?fbclid=IwAR20_S1C4iNBDYdlvQ16zfcuUXj3VcTrABOYZDt_DI1OEJRoWYT-tbhsgPw
[51] Shamsuddin, S. 26 January 2021. “Memahami Bencana Alam” (Understanding Natural Disaster), DSSS Bikin Panas PahangKu Media. (Moderator’s comment during Facebook Live session: https://www.facebook.com/pahangkumedia/videos/363586405150562/)
[52] Cui, M.; Ferreira, F.; Fung, T.K.; Matos, J.S. 2021. Tale of Two Cities: How Nature-based solutions help create adaptive and resilient urban water management practices in Singapore and Lisbon. Sustainability 13, 20427. https://doi.org/10.3990/.su131810427.
[53] Yusof, T.A. 23 December 2021. “Warning of clusters from shelters,” New Straits Times. https://www.nst.com.my/news/nation/2021/12/757142/warning-clusters-shelters
[54] Qi, Y.; Chan, F.K.S.; O’Donnel, E.C.; Feng, M.; Sang, Y.; Thorne, C.R.; Griffiths, J.; Liu, L.; Liu, S.; Zhang, C.; Li, L. and Thadani, D. 2021. Exploring the development of the Sponge City Program (SCP): The Case of Gui’an New District, Southwest China. Frontiers In Water. https://doi.org/10.3389/frwa.2021.676965
[55] Fletcher, C. 7 February 2022. Webinar: Peninsular Malaysia’s Floods of 2021 – Investigating the causes and possible solutions. ISEAS – Yusof Ishak Institute, Singapore (speaker’s comments used with permission). And personal communication with Christine Fletcher, 22 February 2022.
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2022/25 “How to Solve the South China Sea Disputes” by Bill Hayton
EXECUTIVE SUMMARY
- Researchers now know enough about the history of the South China Sea to resolve the competing territorial claims to the various rocks and reefs.
- Disaggregating claims, i.e. breaking down expansive claims to entire island groups into specific claims to named features, opens a route to compromise and the resolution of the disputes.
- With some states unwilling to make use of international law, there is a role for non-governmental organisations to create a ‘Track Two Tribunal’. They could collect rival pieces of evidence, test the claimants’ legal arguments, and present the likely outcomes of any future international court hearing to the claimants and their publics.
- The historical evidence of physical acts of administration on the disputed rocks and reefs suggests that – with some important exceptions – the current occupiers of each feature have the best claim to sovereignty over it.
- Southeast Asian states have an interest in recognising each other’s de facto occupation of specific features and then presenting a united position to China.
* Bill Hayton is Associate Fellow in the Asia-Pacific Programme at Chatham House, United Kingdom.
ISEAS Perspective 2022/25, 15 March 2022
INTRODUCTION
The disputes over the islets in the South China Sea are generally thought to be intractable. Six claimants, namely the People’s Republic of China (PRC or China), the Republic of China (ROC or Taiwan), Brunei, Malaysia, the Philippines and Vietnam, claim at least one of them, and a few islets are claimed by at least five states. These rival territorial claims are commonly thought to be the result of centuries of history, and most observers assume that unpicking, assessing and weighing the evidence for each claim would be impossible. None of this is true. We now know enough about the history of the South China Sea to resolve the competing claims.
THE PROBLEM
There are two main groups of disputed islets in the South China Sea: the Paracels (Hoang Sa in Vietnamese, Xisha in Chinese) in the north and the Spratlys (Truong Sa in Vietnamese, Nansha in Chinese) in the south. Scarborough Shoal, to the east, is disputed only between the Philippines, China and Taiwan while the fate of Pratas (Dongsha in Chinese), in the northeast, is an intra-Chinese question.[1] If these islands did not exist it would be a relatively simple matter to divide up the waters and resources of the South China Sea in the way that European countries have done in the North Sea, for example.[2] If the islands were larger, like those in the Mediterranean, they would have settled populations able to decide their own sovereignty on the basis of self-determination. We know that the Natuna Islands belong to Indonesia, for example, because the people who live on it say so. The tragedy of the South China Sea is that the disputed islets are just the right size to cause trouble.
The other problem is that China, Taiwan, Vietnam and the Philippines claim groups of islands in their entirety rather than specific features. China asserts a claim to the entire Nanhai Zhudao: every feature within the ‘U-shaped line’ drawn on Chinese maps of the South China Sea since 1948.[3] Taiwan claims each of the four ‘island groups’ separately as the Xisha, Nansha, Dongsha and Zhongsha (Zhongsha is actually a group of underwater features plus the Scarborough Shoal). Vietnam claims the Hoang Sa and the Truong Sa while the Philippines claims Scarborough Shoal and the ‘Kalayaan Island Group’ which contains all of the Spratlys except for Spratly Island itself.[4] As a result, these claimants are playing a zero-sum game. No compromise is possible: they either win sovereignty over every feature in the island group or nothing.
The result is Sturm und Drang (Storm and Stress) in the corridors of power and on the streets outside, massive spending on military hardware and a refusal to address the most pressing issues in the South China Sea, particularly the collapse of its fish stocks.
THE SOLUTION
Thankfully, there is a potential solution to this zero-sum game, and it is one that has already proved successful in Southeast Asia: the patient presentation of verifiable evidence to a neutral tribunal. Indonesia and Malaysia resolved their dispute over the islands of Ligitan and Sipadan through the International Court of Justice (ICJ) in 2002. More relevant to the South China Sea dispute was the ICJ’s resolution of the dispute between Malaysia and Singapore over three sets of uninhabited rocks in the Singapore Straits in 2008.[5] The ICJ was able to rule that Pedra Branca belonged to Singapore while Middle Rocks belonged to Malaysia even though the two are just a kilometre apart. It ruled in favour of Singapore over Pedra Branca mainly because Singapore had carried out acts of physical administration there, notably by building a lighthouse on the rock. The judges also specified a different fate for a third feature, South Ledge, because it is underwater at high tide and therefore not ‘territory’ as such. It ruled that sovereignty could only be settled later, once the two countries had agreed on a boundary between their territorial seas.
The ICJ rejected Malaysia’s vague claims that Pedra Branca had belonged to the Sultanate of Johor “from time immemorial” and instead examined the documented evidence of occupation and administration. It then reached a conclusion based on the international legal principle of à titre de souverain – asking which state could better demonstrate that it had exercised actual authority over the feature.While legal principles such as this have their origins in Medieval Europe, they can now be considered global. They have been used to adjudge disputes in contexts as diverse as the Red Sea and the Caribbean as well as in Southeast Asia. It would be quite possible to apply them to all the disputed islets in the South China Sea.
By ruling out vague claims to sovereignty “from time immemorial” and demanding specific evidence of physical acts of administration, the ICJ also gave the South China Sea claimants a route out of their impasse. Governments and their advisers do not need a comprehensive knowledge of every period of South China Sea history to reach conclusions about sovereignty. They simply need to examine the evidence for physical acts of occupation and administration by the different state authorities.
THE HISTORICAL EVIDENCE
The digitisation and opening of many national archives over the past two decades have allowed researchers to examine the history of claim-making in the South China Sea in much greater detail than was feasible during the twentieth century. It is now possible to make some authoritative statements about who did what and when.
The task has been made much easier by the rival claimants putting evidence to support their claims in the public domain. We can now assess whether certain documents are meaningful in the various sovereignty disputes.
Based on all this evidence, we can now say that no state made any physical act of sovereignty on any of the currently disputed islands before the nineteenth century. The archival evidence that is currently available suggests that the earliest acts of occupation in the Paracels were conducted by Dai Viet (Vietnam) in 1816, by the Qing Great State (China) in 1909 and by Japan in 1938. In the Spratlys, the first formal acts of administration were made by the UK in 1877, by France in 1933, by Japan in 1939, by the ROC in 1946, by the Republic of Vietnam (RVN or South Vietnam) in 1956, by the Republic of the Philippines in 1970 and by Malaysia in 1978. The first occupation by the PRC took place in 1988. Japanese claims were renounced in the 1951 Treaty of San Francisco and the claims by the UK and France have been allowed to lapse.[6]
The documentary evidence makes clear two important points. Firstly, it tells us that states occupied different features at different times in a haphazard manner. States installed people or structures on certain islets in competition with one another, but these were often transient affairs. Just because officials landed on a particular feature did not mean that they subsequently maintained effective occupation over it. Governments did not achieve complete control of the various features until the 1970s (in the Paracels) or the 1980s (in the Spratlys).
Secondly, it tells us that the various claimants never administered entire archipelagos or island groups, let alone the entire South China Sea. Just because an action was taken on one island did not mean that effective occupation was asserted over other features. Claimants often made rhetorical claims by publishing maps or issuing declarations, but this was quite different to establishing a real occupation.
Understanding this history in the light of the ICJ ruling on Pedra Branca opens a way forward to resolve the disputes. Rather than examining rival claims to entire archipelagos, the ICJ, or some other body agreed upon by the claimants, only needs to reach conclusions about physical acts of administration on each feature. Our knowledge of the archives tells us that these will only have taken place in the modern era.
DISAGGREGATION OF CLAIMS
The key is to disaggregate the claims. Just as in the Pedra Branca case, it is theoretically possible to examine claims to the sovereignty of each feature in the South China Sea separately. This will, admittedly, be easier in some cases than in others. Some features are completely isolated but at Tizard Bank, Union Reef and North Danger Reef, rival claimants occupy different islets atop the same large coral reef. Even here though, it should be possible to disentangle their histories.
Take the giant reef at Tizard Bank. France placed a sovereignty marker on its largest above-water feature, the islet of Itu Aba, in 1933. Japanese and French forces both occupied Itu Aba during the Second World War. France placed another sovereignty marker on Itu Aba
in October 1946 and a ROC expedition did the same in December 1946. The ROC maintained a physical presence on Itu Aba until May 1950. In May 1956, a Philippine businessman, Tomas Cloma, attempted to claim a group of islands for himself, prompting the ROC to reoccupy Itu Aba. France, which had just departed from its Indochina colonies, re-stated its earlier claim to the islet and then both the PRC and the newly independent RVN made rhetorical claims to sovereignty over all the Spratlys. In August 1956, the RVN landed on Spratly Island, 300 kilometres to the southwest. In 1962, RVN warships visited Namyit, another islet on Tizard Bank, across the lagoon from Itu Aba, and in 1972, RVN troops physically occupied it. In 1974 the RVN occupied Sand Cay on the same reef. In 1975, RVN troops were evicted from both these islets by forces from the Democratic Republic of Vietnam (DRV or North Vietnam). Days later, the RVN was extinguished as a state by the Revolutionary Government of Southern Vietnam, which merged with the DRV the following year. In 1988, the final claimant arrived when the PRC occupied Gaven Reefs at the western end of Tizard Bank.
Reaching a judgement on the sovereignty of these features will require detailed consideration of both the history of occupations and the inheritance of claims from one state to the next. Can the court accept that the histories of Namyit Island, Sand Cay and Gaven Reefs are separate from the history of Itu Aba? Does the ROC’s long occupation trump the shorter occupation by France? Did the RVN inherit the French claim? Did the DRV inherit it too? Does the PRC inherit the ROC claim or does that issue remain moot? These will be tricky questions to answer, but that is the purpose of international tribunals and the ICJ has tackled equally tricky questions in the past.
Thankfully, most of the disputed reefs currently have only one physical occupier, which should make assessing sovereignty claims simpler. That said, some have had other occupiers in the past and a tribunal would have to rule on the relative merits of rival claims. Each feature has a different history, but that history can be known and assessed.
A ROLE FOR OUTSIDERS
None of the claimant states has yet been willing to take its territorial claims to an independent tribunal. There are two main reasons for this. Firstly, all are uncertain about the strength of their claims and that of their rivals. Secondly, they fear the domestic political consequences of losing such a public argument. For instance, Malaysian politicians continue to argue about Pedra Branca more than a decade after the ICJ ruling.
There is a role here for outside bodies. Think-tanks, researchers, lawyers and foundations could act as a ‘virtual ICJ’ to rehearse the arguments that governments might present in a real hearing. Experts, whether independent or partisan, could assemble the evidence already placed in the public domain by governments and others and seek supplementary materials. This ‘Track Two Tribunal’ could invite governments to submit their evidence but could proceed whether they cooperated or not.
The result would be a matrix of evidence: a detailed history of the various acts of sovereignty made on each named feature. Expert jurists could be invited to debate the merits of the claims and offer advisory opinions about which is stronger. These would then be circulated to all the claimant states and publicised. The world would be able to understand what an evidenced and fair settlement of the South China Sea disputes might look like.
A LIKELY SOLUTION
Based on the historical evidence already in the public domain, it is likely that such a ‘Virtual ICJ’ would find that, with some significant exceptions, the current pattern of occupations in the South China Sea is the legitimate one, since that it is the only one that has ever existed. The two major exceptions to this are:
- The western half of the Paracel Islands (the ‘Crescent Group’): controlled by Vietnam until its forces were expelled by the PRC in 1974
- Southwest Cay in the Spratlys: occupied by the Philippines until its forces were expelled by the RVN in 1975
This then suggests the basis for a compromise solution to the South China Sea disputes: each claimant keeps what it currently occupies and drops its claims to the other features. There is a legal name for this principle: uti possidetis, ita possideatis – what you have is what you keep.
No state would have to suffer the indignity or strategic disadvantage of withdrawing from any feature that they currently occupy. Each state would simply have to acknowledge reality – that they are never going to acquire all the rocks and reefs they rhetorically claim. This is already implicit in the Declaration on the Conduct of Parties in the South China Sea (the DoC) adopted by ASEAN and the PRC in 2002. Under Article 5, all the signatories are committed to “self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features and to handle their differences in a constructive manner.”
The current commitments not to escalate the disputes and not to occupy any uninhabited features are, in effect, de facto recognitions of the other states’ occupations. States would not suffer any practical consequences by turning these implicit commitments into more formal declarations. Armed with the historical evidence to justify their decisions, the rival claimants could move ahead – either bilaterally or collectively. Brunei, Malaysia, the Philippines and Vietnam could recognise each other’s de facto positions and thereby resolve the Southeast Asian part of the puzzle. They would then seek the same de facto recognition from China and/or Taiwan.
Such recognition would end whatever dreams that Vietnam and the Philippines may have about one day recovering the Paracels and Southwest Cay respectively. But this would be a price worth paying if the quid pro quo is regional stability. For Vietnam, recognition of Chinese possession of the Paracels would be painful but it could unlock an agreement between Vietnam and China over the maritime boundary at the mouth of the Gulf of Tonkin and areas further south. This would, in effect, end China’s U-shaped line claim and open areas of the sea for Vietnamese energy exploration and fisheries.
OBSTACLES TO CONSIDER
There are, of course, many political and legal difficulties to consider. A knotty problem will be the fate of ‘low tide elevations’. The ICJ’s 2008 ruling on South Ledge will not be much help here. Malaysia, Vietnam and China have all constructed outposts on features that are below water at high tide and therefore not considered territory. The most egregious example is Mischief Reef, occupied by China since 1994. The 2016 ruling by the South China Sea arbitral tribunal concluded that the huge Chinese structures on Mischief Reef were constructed unlawfully inside the Philippines’ Exclusive Economic Zone (EEZ).[7] The implication of the ruling is that the structures should either be demolished or handed to the Philippines. In the meantime, no state should be expected to explicitly recognise other states’ sovereignty over low tide elevations, but they might recognise a de facto presence in the same spirit as the other commitments in the DoC.
More fundamentally, all the governments involved – whether authoritarian or democratic – will need to persuade their publics of the merits of compromise. Their strongest arguments will be that compromise is a necessary step in the pursuit of regional peace and prosperity. The contribution of a ‘Virtual ICJ’ or ‘Track Two Tribunal’ would reinforce these arguments with evidence for their historical legitimacy, leaving less room for diehard nationalists to huff and puff. Governments could then focus on the fate of fisheries and other offshore resources.
CONCLUSION
There can no longer be any pretense that the South China Sea disputes are too complex to resolve. The necessary evidence is publicly available, and the general legal principles are widely accepted. In the current geopolitical situation, there is a clear incentive for Southeast Asian governments to begin a process of formally recognising each other’s occupations in the Spratly Islands. Such mutual recognition would help solidify their own claims and facilitate the creation of a clearer negotiating position with China.
Some cases will be more difficult to resolve than others, and the sequencing of recognition will need to take this into account. Non-governmental organisations could play a key role in helping governments scope out likely obstacles and pitfalls and in generating support for the necessary political compromises.
ENDNOTES
[1] Pratas/Dongsha is claimed by both China and Taiwan but is currently occupied by Taiwan. It is an isolated feature mid-way between Hong Kong and Taiwan and no other state claims it.
[2] Interstate negotiations lead to bilateral treaties in the 1960s with the International Court of Justice ruling on a case involving the Netherlands, Germany and Denmark. See Yiallourides, Constantinos, “Continental Shelf Boundaries in the North Sea and the North Atlantic” in Greg Gordon, John Paterson and Emre Usenmez (eds) Oil and Gas Law – Current Practice and Emerging Trends: Vol I – Resource Management and Regulatory Issues (3rd Edn, EUP 2018), Available at SSRN: https://ssrn.com/abstract=2985968 or http://dx.doi.org/10.2139/ssrn.2985968.
[3] People’s Republic of China, White Paper: China Adheres to the Position of Settling Through Negotiation the Relevant Disputes Between China and the Philippines in the South China Sea, July 2016, https://www.fmprc.gov.cn/mfa_eng/wjdt_665385/2649_665393/201607/t20160713_679474.html.
[4] When the Philippines defined and claimed the Kalaayan Island Group (KIG) in the 1970s, it asserted that it was different from the Spratlys and deliberately omitted Spratly Island from its KIG claim. Spratly is currently occupied by Vietnam but also claimed by China and Taiwan.
[5] International Court of Justice, Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) Summary of the Judgment of 23 May 2008 https://www.icj-cij.org/en/case/130/summaries.
[6] For evidence regarding occupations, see the following. Hãn Nguyên Nguyễn Nhã (trans. Vinh-The Lam), Vietnam, Territoriality and the South China Sea, Paracel and Spratly Islands (Abingdon, UK: Routledge 2018); Ulises Granados, “As China Meets the Southern Sea Frontier: Ocean Identity in the Making, 1902-1937”, Pacific Affairs 78, No. 3(Fall 2005); Stein Tønnesson, “The South China Sea in the Age of European Decline”, Modern Asian Studies 40, 1 (2006):1–57; Gregory B. Poling, On Dangerous Ground: America in the South China Sea (Oxford, UK: Oxford University Press, forthcoming 2022); Geoffrey Marston, “Abandonment Of Territorial Claims: The Cases Of Bouvet And Spratly Islands”, British Yearbook of International Law 57, Issue 1 (1986): 337–356.
[7] Permanent Court of Arbitration, Award In The Matter Of The South China Sea Arbitration (Case No 2013-19), 12 July 2016 pp. 474-6, https://pca-cpa.org/en/cases/7/.
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