Chapter 4 analyses French sexuality-based asylum judgments. ‘Discretion’ reasoning emerges in the shape of a focus on behaviour: in French jurisprudence, claimants were traditionally protected only if they had sought to externally manifest their sexual orientation in their country of origin. Otherwise they were sent back to continued ‘discretion’. This ‘discretion’ reasoning ‘in reverse’ was barely affected by the three judgments on ‘discretion’. As the latter operated on a ‘discretion’ requirement, they appeared only marginally relevant to French jurisprudence, which undertook the opposite assessment of whether claimants had been open about their sexuality. The Qualification Directive in contrast has led to a reconceptualisation of the French social group definition. The public manifestation requirement was dropped, whereas under the new definition, claimants now need to ‘claim’ their sexual orientation and be perceived as a group by the surrounding society. Since claimants had been ‘outed’ in all reviewed judgments – and therefore presumably ‘claimed’ their sexual orientation, it is unclear how this definition plays out for claimants who have successfully concealed their sexual orientation in the past.

Research on the common law jurisdictions has described ‘discretion’ reasoning as an ‘adaptive phenomenon’, that is ‘extraordinarily widespread, resistant to challenge and strongly associated with high rejection rates’. Likewise, this is reflected in those high-level European judgments that rejected a ‘discretion’ requirement. They maintained ‘discretion’ logics by allowing for a ‘factual’ finding that a claimant ‘will’ maintain secrecy. This study of asylum judgments concerning sexuality-based claims in Germany, France and Spain suggests that the same conclusions are true of these three civil law jurisdictions.

Chapter 3 introduces the empirical Part I, which examines decision-making practice concerning sexuality-based claims in France, Germany and Spain in order to analyse the extent to which ‘discretion’ logics operate. The analysis of jurisprudence in these three countries is essentially longitudinal. It assesses jurisprudence in ‘time slices’ before and after the Europeanisation of asylum and the rejection of the ‘discretion’ requirement in three high-level judgments. Chapter 3 frames this analysis and lays out the legal and jurisprudential context with a view to ‘discretion’ reasoning. It takes a closer look at the EU Qualification Directive, as well as the UK Supreme Court’s 2010 judgment in HJ (Iran) and HT (Cameroon), and the Court of Justice of the European Union (CJEU) twin judgments Y and Z on religion from 2012 and X, Y and Z on sexual orientation in 2013, to explore the extent to which they reject ‘discretion’ reasoning. On this basis, and using the theoretical lens of the act/identity dichotomy, the guiding question for the subsequent three chapters is whether ‘discretion’ logics were apparent in jurisprudence prior to the Qualification Directive and the three judgments rejecting the duty to be ‘discreet’, and the ways in which they were affected by these developments.

Introduction

The South China Sea (SCS) has become the setting of one of the most intensive territorial and resource disputes in history. A myriad of small and medium states, together with the two greatest economic and military powers in the contemporary period, have laid claim to and contest states’ alternative claims to large sections of the SCS. China, as a revisionist power, has made the most sweeping claim of all states, designating nearly the entire sea as its own. In addition to its extensive resources, the SCS is a vital strategic waterway and a strategic locale critical for future power projection by existing great and rising powers. This chapter unpacks the central components of the conflict in the SCS that has been steadily intensifying since states began staking claims over islands and zones within the SCS in the 1970s. In doing so, we refer to the SCS as a “system of systems” involving multi-dimensional security overlay based on political, economic, and military interests as well as power projections. We argue that the central challenge facing would-be defenders of the status quo is their decentralized organization, with the US, the Philippines, and Vietnam intersecting in various subsystems though not forming a cohesive cooperative security system with a unified, cohesive purpose. Concurrently, China has seen much more success in marshalling a coherent, focused (Sinocentrist) stratagem for its salami-slicing approach in the region, much to the detriment of the region's status quo actors, even in spite of internal competition and rivalry regarding China's grand strategy and geopolitical trajectory as a state.

Geography and national security in the South China Sea

Situated at the nexus of the Western Pacific and the Indian Ocean, the SCS is one of the world's busiest bodies of water. More than half of the world's yearly shipping by tonnage passes through the various straits – Malacca, Sunda, Lombok, and Makassar – that feed into the SCS, with more than six times as much oil passing through these straits each year than through the Suez Canal. Beyond its importance as a shipping hub, the SCS itself is resource rich, with fisheries that provide a large portion of the nutrition for the inhabitants of the states around it and plentiful, largely untapped, hydrocarbon deposits under the seabed.

Introduction

It is important to note that the South China Sea (SCS) disputes are multidimensional and ASEAN is selectively involved in some aspects of these dimensions. There are at least four major dimensions that one can observe in the disputes. Setting the stage for the volume, Joshua Hastey and Scott N. Romaniuk, and then Romaniuk and Tobias Burgers address the major pillars of conflict and geostrategic interest in the SCS in this volume's introductory chapters. The first dimension is about territorial sovereignty disputes among claimant parties over various land features in the South China Sea. ASEAN has stated explicitly that it does not intend to get involved in determining whose sovereignty claim is more legitimate. The second dimension has to do with the maritime area claims and maritime rights claims by the disputant parties. Although ASEAN has made it clear that it does not want to be an arbiter for maritime boundary demarcations, many of its statements do suggest that ASEAN attempts to uphold certain principles on how a claimant should legally and legitimately claim maritime zones and rights, for instance by constantly referring to the United Nations Convention for the Law of the Sea (UNCLOS) in its numerous statements.

The third dimension pertaining to the maintenance of peace and security in the SCS includes many elements. Examples include proposing rules and norms to regulate various parties’ policies, urging all claimant parties to observe the overall status quo, keeping dialogue channels open, forging maritime cooperation, strengthening confidence-building measures, and even fostering limited preventive diplomacy. It is in the third dimension that ASEAN, together with China, has played the most salient role. The fourth dimension of the SCS disputes concerns the role of other external powers, especially the United States (US), in the disputes. ASEAN cannot dictate or significantly influence other major powers’ actions in the South China Sea disputes. ASEAN has, however, tacitly encouraged other powers to play an intervening role, and at the same time attempted to tamp down the escalations that these external players’ actions may cause in the SCS.

ASEAN's security management role in the disputes has been shaped by four main factors. First, the regional grouping's self-claimed institutional responsibility for maintaining regional peace and stability has made it inevitable that it has to be proactive in the disputes, otherwise its credibility of acting as a regional multilateral security platform would be severely undermined.

Introduction

In January 2016, Tsai Ing-wen, the candidate for the Democratic Progress Party (DPP), won in Taiwan's presidential election and was inaugurated as the 14th-term president of the Republic of China (“ROC”) in May of the same year. The new Tsai government adopted a foreign policy position of “cutting off Mainland China, following the United States [US] and Japan, and catering to ASEAN,” which affects the planning and development of Taiwan's South China Sea (SCS) policy under the Tsai administration. In July 2016, Taiwan announced that the award rendered by the Tribunal that heard the Philippines v. China SCS arbitration case is completely unacceptable because, inter alia, in the award, the ROC is referred to as the “Taiwan Authority of China.”

On July 19, 2016, President Tsai put forth four principles and five actions pertaining to the SCS issues. One of the policy principles is concerned about the obligation to uphold the freedom of navigation and overflight in the SCS region, which is also one of the main policy concerns of the US government. In January 2019, asked by The Sunday Telegraph if she would support a British presence in the SCS, President Tsai signalled that Taiwan would welcome: “any actions that will be helpful towards maintaining peace in the SCS, as well as maintaining freedom of passage.” The Tsai government is also taking actions to promote closer Taiwan–Japan security cooperation in line with the development of the US Indo-Pacific strategy. In March 2017, it was reported that Taiwan's Ministry of Defence was taking a very low-profile attitude in response to Japan's sending warships to the SCS.

Currently, Taiwan's main SCS policy actions focus on the promotion of scientific collaboration and developing Taiping Island as a centre of humanitarian assistance and rescue as well as a base for logistic supply. In June 2019, an international conference on the Pratas Islands was organized by the newly established Ocean Affairs Council (OAC). International scholars were invited to visit the Pratas Islands and make presentations on a variety of issues regarding ocean law, policy, and security. However, it should be noted that President Tsai herself, as the head of the National Security Council (NSC), together with senior national security advisors of the Council, is in charge of the government's SCS policy making, not the OAC.

Introduction

The South China Sea has once again become a flashpoint for conflict between China and some ASEAN states, particularly the Philippines and Vietnam. It has also strained relations between China and the United States (US). China's recent position of growing more assertive in advancing its claims has raised tensions and risked the militarization of competing claims by other states including the US and its allies. The diplomatic impasse between China and the ASEAN claimant states, as well as within ASEAN has, furthermore, made the situation less predictable. Worse still, taking advantage of a world distracted by the current coronavirus (COVID-19) global pandemic, China took new and bolder actions, as evidenced through its declaration of the establishment of two new administrative districts in the Paracel and Spratly Islands.

China's growing assertiveness in the South China Sea has put ASEAN states, other actors, and Cambodia in a challenging strategic situation, seeking to balance with China and the US to further their strategic interests. Cambodia has decided to adopt a different policy approach from its ASEAN member states regarding China and the US. Some other states in the region chose to have engaged in a balanced strategy (that is, hedging or neutral) with both superpowers in order to gain benefits from both sides: economic interests from China and security interests from the US. In contrast, Cambodia has pursued a strategy of bandwagoning towards China to accrue economic interests.

Among the strategic challenges facing Cambodia, balancing between ASEAN, the West, and China on the contentious issue of the South China Sea is and continues to be the most significant to their foreign policy in the 21st century. Since 2012, the South China Sea has re-emerged as the most significant and challenging foreign policy dilemma for Cambodia. As a non-claimant state, the South China Sea is not of direct concern for Cambodia. However, it holds great relevance to Cambodia as a member of ASEAN and as a nation that is a significant beneficiary of Chinese aid and investment. While ASEAN has always been a cornerstone of Cambodia's foreign policy, the country has been accused of siding with China at the expense of ASEAN, and hence damaging the unity of ASEAN.

Drawing particularly upon interviews, observations and investigations, this chapter examines Cambodia's approach to the territorial disputes in the SCS.

Introduction

The South China Sea (SCS) – a semi-enclosed sea – is one of the world's key shipping routes and richest fishing grounds. Shared by China, Vietnam, Malaysia, Singapore, Indonesia, Brunei, and the Philippines, the SCS also sees one third of global trade pass through its waters. The SCS is also known for its high economic value. It is rich with high value marine life, particularly demersal fish and tuna, and significant deposits of hydrocarbons trapped beneath the Kalayaan Island Group's (KIG) seabed. The overarching maritime dispute in this highly strategic locale involves six claimant states including China, Taiwan, the Philippines, Vietnam, Malaysia, and Brunei, with China representing the strongest of these countries in terms of its military capabilities. Although Indonesia is not a claimant state, as one of the coastal states of the SCS Indonesia has played and will almost certainly continue to occupy a central role in efforts to manage the conflict. Through its ongoing efforts to diffuse the conflict, Indonesia has engaged parties to the disputes primarily through the ASEAN-China Joint Working Group on the Implementation of the Declaration on the Conduct of Parties in the South China Sea and the Track 2 approach, namely the Workshop on Managing Potential Conflict in the South China Sea that Jakarta has organized since 1990.

In recent years the development of the multi-faceted dispute in SCS has raised serious concern among states about the potential escalation of the conflict, with experts assessing the possibility and probability that the dispute could turn into a hot war. Zheng Hao expressed that, “[a] close look at recent US military activities and China-US military relations would indicate that the SCS situation is moving towards the brink of conflict.” Oliana Skylar Mastro asserts that, “[i]t would be wrong to assume that China is satisfied with the gains it has made or that it would refrain from using more aggressive tactics in the future.” Referring to the Cold War and the improbability of war between the two superpowers starting in Central Europe, John Mearsheimer explained, “contrast that with the situation in East Asia, which is the central flash point between United States and China, the three places where you could possibly have a war involve the South China Sea, Taiwan and the East China Sea.”

Introduction

Australia is not an active participant in the South China Sea (SCS) dispute and at first sight its distance from the area may give the impression of irrelevance. However, the dispute has consequences for Australia's geopolitics in a way that is increasingly being recognized within government and the wider security community. In essence, the notion of geopolitics relates to the impact of geographic location on security and the formulation of policy, and how governments react to and devise policies towards their immediate security environment. The United States (US) may have a very clear understanding on its global geopolitics in terms of preventing one-state dominance of critical regions such as Western Europe or the Asia-Pacific region. However, because of its historical isolation, Australia's understanding of its geopolitics has been undeveloped, though largely framed in terms of ensuring the security of its northern approaches while maintaining alliance relationships with larger powers as protection. The SCS dispute, however, has had the effect of hastening the development of that understanding of geopolitics in the various debates and discussions about Australia's security. The SCS dispute involves China, which has been Australia's major trading partner and contributor to its economic growth over the past decades. However, China's regional ambitions both in Southeast Asia and the South Pacific have evoked apprehensions. Once a country that had a limited understanding of its immediate external environment, Australia has discovered that it cannot rely on its isolation, or on its alliance relationships alone to deal with this new and increasingly complicated scenario. China's activities in the SCS have quickened Australia's understanding of its geopolitical predicament and have compelled it to adjust to an uncertain security environment, which the country has avoided for too long.

Australia's geopolitics

What is geopolitics and what impact has it had on Australia? The classical geopolitics of Mackinder, Mahan and Spykman identified how geography impacted upon policy and how it shaped the great-power rivalry of the age. Its enduring legacy in the present era is the importance of the spatial dimension in security, and how governments take into account geographic location in policy making. In this sense, geopolitics is about how geography shapes and, in some cases, determines security responses including defence policies, the disposition of forces, and their deployment.

Introduction

The South China Sea (SCS) is one of the most geostrategically contested maritime spaces. The long-standing overlapping territorial disputes among claimants including Brunei, China, Malaysia, Philippines, Taiwan, and Vietnam are complicated by the added element of US-Sino relations and their respective policies and strategies. China's emergence as a major economic power, the growth in military spending by Asian countries led by China, and the increasing attention by European nations in the SCS present a volatile mix that provides opportunities as well as posing threats to be negotiated. The almost 4 million square kilometres of the SCS provides regional states and the international community with a strategically important maritime highway for the transportation of goods and energy supplies, and forms a critical link between trading hubs and ports in Europe, South and Southeast Asia, and Northeast Asia. The SCS figures prominently as a link in the management of the world's energy supply network of marine routes that facilitate the economic, commercial, and strategic interests of many nations.

Apart from shipping, the SCS also forms a large portion of the area where international communication traffic is routed to facilitate commerce and other activities so essential for the world today. The use of the sea for these purposes must be well managed to check any untoward impact on the environment, marine biodiversity, and ecosystems. There is much need for prudent conservation and protection of these systems to ensure sustainable management and use of the sea and its resources. The conventional hydrocarbons are located in undisputed areas while most of the discovered fields are clustered in the uncontested parts, close to the shorelines of various countries. Among the claimant countries, Vietnam, Malaysia, and Brunei Darussalam have the highest oil and gas reserves in the sea.

Background to states’ territorial and maritime claims

Malaysia's maritime area is supported by all rights as provided by international law, particularly as set out under the United Nations Convention on the Law of Sea (UNCLOS). Malaysia's geographical areas of interest, as encapsulated in the Peta Baru Malaysia 1979, include rights to internal waters, territorial sea, continental shelf, exclusive economic zone (EEZ), and the airspace over applicable maritime zones. The maritime areas of Malaysia feature busy shipping sea lines of communication, such as the Straits of Malacca (SOM), the South China Sea (SCS), Sulu Sea and the Celebes Sea, and the Andaman Sea.