Time for ASEAN Minilateralism in the South China Sea

July 25,2016

Richard Javad Heydarian, author of “Asia’s New Battlefield: US, China and the Struggle for Western Pacific” (Zed, London), a regular contributor to the Asia Maritime Transparency Initiative of the Center for Strategic and International Studies (CSIS) and contributing Writer to the Stratbase-Albert del Rosario Institute

For four decades, the Association of Southeast Asian Nations (ASEAN) commendably established the foundations of a nascent security community in Southeast Asia, where the threat of war among neighboring states has teetered on the verge of impossibility. In the past two decades, the regional body has tirelessly sought to create a broadly peaceful, rule-based and inclusive regional security architecture.

Yet, the rise of China and its growing assertiveness isn’t only disturbing the regional security architecture, but also undermining the ASEAN’s internal cohesion and quest for centrality in East Asian affairs. The ‘ASEAN Way’, where consensus and consultation undergird decision-making regimes, is no longer up to the task. The regional body’s unanimity-based decision-making mechanism has unwittingly handed a de facto veto power to weaker links that are under the influence of external powers.

Moving forward, the body will either have to modify its institutional configuration, adopting an “Asean Minus X” or Qualified Majority (QM) voting modality, on politico-security affairs or fall into utter irrelevance. This has been poignantly evident when it comes to the South China Sea disputes. Failing to embrace wholesale institutional innovation, the only way forward is ‘ASEAN minilateralism’, where likeminded and influential countries in the region coordinate their diplomatic and strategic calculations vis-à-vis the South China Sea disputes.

High Hopes

Earlier this year, the leaders of ASEAN displayed encouraging unity – or at least a semblance of – during the Sunnylands Summit with American President Barack Obama. The high-profile, intimate meeting between American and Southeast Asian leaders came on the heels of extensive lobbying by Washington, with no less than Secretary of State John Kerry visiting Laos and Cambodia weeks earlier, Laos promised to act as a responsible chairman of the regional body.

At the end of the meeting, the two sides released a joint statement, which called for shared “commitment to peaceful resolution of disputes, including full respect for legal and diplomatic processes, [author’s emphasis] without resorting to threat or use of force, in accordance with universally recognised principles of international law and the 1982 United Nations Convention of the Law of the Sea”

So both sides agreed that not only should UNCLOS be a basis for resolution of the disputes, but also mentioned “legal processes”, which could be interpreted as an implicit statement of support for the Philippines’ decision to resort to compulsory arbitration, in accordance to Article 287, Annex VII of UNCLOS, against China.

Both sides also emphasized the necessity for “non-militarisation and self-restraint”, which was particularly salient in light of China’s worrying deployment of surface-to-air-missile (SAM) systems, high-frequency radars, and fighter jets to contested land features in the Paracels and newly-built facilities across artificial islands the Spratlys.

During the subsequent ASEAN Foreign Minister Meeting (FMM) members states “reaffirmed the importance of maintaining peace, security, stability and freedom of navigation in and over-flight above the South China Sea.” They also expressed concerns over the maritime disputes, stating how they “remained seriously concerned [author’s emphasis] over the recent and ongoing developments [in the South China Sea] and took note of the concern expressed by some ministers on the land reclamations and escalation of activities in the area.”

Limits of Cooperation

But as the Philippines’ arbitration case reached its final stages, the ASEAN suddenly began to lose steam. Things came to head during the special foreign ministers meeting between ASEAN and China in Kunming, when the Southeast Asian countries failed to release a joint statement, forcing frustrated officials in the Malaysian Foreign Minister, which initiated the high-level meeting, to release a draft joint statement.

The leaked joint statement, which was later retracted due to opposition by certain members, “expressed (Asean’s) serious concerns” over the South China Sea disputes, because they “have eroded trust and confidence, increased tensions and which may have the potential to undermine peace, security and stability” in the region. It also emphasised the “importance of non-militarisation and self-restraint in the conduct of all activities, including land reclamation”, calling upon claimant states to maintain “full respect for legal and diplomatic processes”, shun “the threat or use of force”, and act in accordance with “universally recognised principles of international law, including the [United Nations Convention on the Law of the Sea] and the UN Charter”.

In an explicit rebuff to China, which vainly pushed for a ‘ten-point consensus’ to sideline the maritime issues, the draft statement mentioned how members states “cannot ignore what is happening in the South China Sea as it is an important issue in the relations and cooperation between ASEAN and China”.

It didn’t take long, however, for some ASEAN countries to shut down any hope of ASEAN centrality on the South China Sea disputes, particularly after The Hague arbitration case. Cambodian Prime Minister Hun Sen openly criticized the Philippines’ compulsory arbitration against China, dismissing it as a provocative act that is “not about laws” and instead a “political conspiracy between some countries and the court”.

More disappointingly, when it became clear that the Philippines scored a clean sweep victory against China – with the court nullifying China’s historic rights doctrine and much of its nine-dashed line – ASEAN countries immediately called for patience and calm rather than compliance to a binding decision by claimant states. The very fact that the Philippine government itself adopted a measured language added impetus to a more sober response to the historic legal verdict.

It is highly unlikely that the ASEAN will find a consensus or adopt a robust statement on the South China Sea as well as the Philippine arbitration case. At best, there could be reiteration of certain aspects of the Sunnylands statement but at most a tepid call for restraint and dialogue rather than any censure of China and pressure on it to comply with the Hague verdict.

Key ASEAN countries like the Philippines, Vietnam, Singapore, Malaysia, and Indonesia though can, on a bilateral basis and on individual basis, release statements that communicate their disappointment with China’s activities in the area and communicate their willingness to step up their ‘minilateral’ cooperation if China doesn’t relent and respect the spirit, if not the letter, of the verdict.

Instead of vacuously calling for continuation of talks on DOC and negotiation of COC, which have been going nowhere, it is important to call for immediate freeze on reclamation activities, construction of military facilities, deployment of military assets, and expansive illegal fishing in the area.

 

Remarks delivered during the ADRi forum entitled, “Renewing the Multilateral Response: Building an ASEAN Coalition”, held on July 19, 2016 at the Asian Institute of Management.

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