No ASEAN Consensus on the South China Sea

 
 

What to expect at the upcoming 49th ASEAN Foreign Ministers Meeting (AMM) in Vientiane, Laos next week?

Judging from the  disjointed and extremely cautious individual responses of the 10 ASEAN members to the ruling of the arbitral tribunal on the South China Sea case, we can  expect to see more of the same incoherence in ASEAN on the South China Sea.

However, if ASEAN is to be taken more seriously, the ASEAN Foreign Ministers can take a united stand and defend ASEAN’s credibility and centrality with a show of renewed unity.

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No ASEAN Consensus

ASEAN members couldn’t issue a joint statement in response to the ruling because, once again, there was no consensus.

Cambodia let the air out of ASEAN tires  by issuing a statement on July 9, three days ahead of the announcement of the ruling, to break the news that Cambodia  “will not join in expressing any common position on the dispute between the Philippines and China.”

Laos, the ASEAN chairman of 2016, was then spared the tremendous headache of otherwise having to coordinate the drafting and revising of such a difficult joint statement. Laos  has not made any public statement of its own about the ruling, either.

Other ASEAN members that responded to the ruling did so with extreme care not to touch any sensitive Chinese nerves.

Indonesia chose not to mention the ruling at all. Instead, its statement, released a few hours after the ruling, “calls on all parties to exercise self-restraint and to refrain from any actions that could escalate tensions, as well as to protect Southeast Asia region particularly from any military activity that could pose a threat to peace and stability, and to respect international law including UNCLOS 1982.”

Thailand, likewise, made no reference to the ruling. The “Statement of Thailand” was  released three hours ahead of the announcement of the ruling from The Hague; it therefore didn’t refer to the ruling. Instead, it waxed philosophical, highlighting the Thai belief that  the “ultimate goal for all” parties concerned that “would benefit the peoples” is to “render the South China Sea a Sea of Peace, Stability, and Sustainable Development.”

In Singapore, a spokesman for the Ministry of Foreign Affairs, in response to media queries, mentioned that Singapore  “has taken note of the Award made by the Arbitral Tribunal… We are studying the Award and its implications on Singapore and the wider region.”

Intentionally or not, the spokesman urged “all parties to fully respect legal and diplomatic processes, exercise self-restraint, and avoid conducting any activities that may raise tensions in the region.” The phrase “legal and diplomatic processes” is understood within ASEAN to include the arbitration under Annex VII of UNCLOS. It was used in the Joint Statement of the U.S.-ASEAN Special Leaders Summit in Sunnylands last February, to overcome the insistence of some ASEAN members not to mention the South China Sea disputes, China, and the arbitration case in the Sunnylands statement.

Similarly, Myanmar  took note of the Award. “We are now studying the impact of the Award and its possible repercussions within our region and beyond,” said the statement of the Ministry of Foreign Affairs released on July 13.

Myanmar, Singapore, and Thailand mentioned their common hope to see the full and effective implementation of the 2002 ASEAN-China Declaration on the Conduct of Parties in the South China Sea (DOC), and the early conclusion of ASEAN-China talks on a Code of Conduct in the South China Sea (COC), which the ASEAN side wants to make a legally binding international agreement.

Indonesia omitted any reference to the DOC and the COC, but instead brought up the 1971 ASEAN vision of creating in Southeast Asia a “zone of peace, freedom, and neutrality” (ZOPFAN).

The Four Claimants in ASEAN

Brunei Darussalam is the only one of the four claimants on the ASEAN side which has not issued any public statement on the ruling. The smallest ASEAN member has no claim in any of the disputed areas in the Spratly Islands. It has been counted as one of the claimants only because its 200-nautical mile EEZ was overlapped by China’s infamous nine-dash line. Now that the arbitral tribunal has ruled against China’s claim of historic rights to resources encompassed by the nine-dash line, Brunei Darussalam’s EEZ is, at least in the eyes of the international community, safe from China’s competing claim.

Malaysia’s Ministry of Foreign Affairs noted the issuance of the ruling without disclosing how it feels about it. It held out the belief that “China and all relevant parties can find constructive ways to develop healthy dialogues, negotiations, and consultations while upholding the supremacy of the rule of law for the peace, safety, and security for the region.”

A spokesperson for the Ministry of Foreign Affairs of Vietnam “welcomed the fact that, on 12 July 2016, the Tribunal issued its Award in the arbitration between the Philippines and China. Viet Nam will make a statement on the content of this Award.” Vietnam was the only other claimant, besides the Philippines, which had publicly endorsed the jurisdiction of the arbitral tribunal to handle the Philippines’ case against China in the South China Sea.

The Philippines’ initial reaction was intentionally reserved, without any sign of jubilation for the arbitration triumph—which many in Manila would concede is beyond all expectations.

In his four-paragraph statement, Foreign Affairs Secretary Perfecto R. Yasay, Jr. stated that “The Philippines welcomes the issuance today, 12 July 2016, of the Award by the Arbitral Tribunal… Our experts are studying the Award with the care and thoroughness that this significant arbitral outcome deserves. In the meantime, we call on all those concerned to exercise restraint and sobriety.”

“The Philippines strongly affirms its respect for this milestone decision as an important contribution to ongoing efforts in addressing disputes in the South China Sea,” he added.

Subsequently, during his informal chat with Chinese Foreign Minister Wang Yi on the sidelines of the ASEM in Ulaanbaatar, the Philippine foreign affairs secretary reportedly declined Wang’s suggestion on disregarding the arbitral tribunal’s ruling in order to start a new bilateral dialogue on the South China Sea between China and the Philippines.

What Can ASEAN Foreign Ministers Say?

The 10 ASEAN foreign ministers going to the 49th AMM constitute a relatively inexperienced group. Only three of them (Retno Marsudi of Indonesia, Anifah Aman of Malaysia, and Pham Binh Minh of Vienam) attended the 48th AMM in Kuala Lumpur last August. Their interpersonal rapport has yet to develop. Their titular leader, Lao Foreign Minister Saleumxay Kommasith, is only in the fourth month of his ministerial job; he is a newcomer to the ASEAN scene.

Now there is no known core group of steady hands in the AMM. Neither is there a potential “quarterback,” like ex-Indonesian Foreign Minister Dr. Marty Natalegawa, to assist the ASEAN chairman and rally the troops or mend fences in time of crisis or political debacle, like what happened at the 45th AMM in Phnom Penh in July 2012.

Under these debilitating circumstances, ASEAN is vulnerable to interference and manipulation by external parties. The Lao foreign minister will face tremendous pressures from all sides, especially on what to say and what to omit about the South China Sea in the Joint Communique of the 49th AMM, and in the ASEAN Regional Forum (ARF) Chairman’s Statement.

The ASEAN foreign ministers have complete control of their own joint communique. They need not listen to any outsiders. They need not refer to the arbitral tribunal’s ruling, because there may be no consensus to touch it. The ruling is authoritative in itself and legally binding to all parties to UNCLOS—including China.

At the minimum, what the ASEAN foreign ministers can do is to  reiterate those well-known pro-peace principles on the South China Sea from the joint statement of July 20, 2012. They can voice support for a constructive dialogue between the Philippines and China. And they can also request support from all other external parties, especially those that are dialogue partners of ASEAN such as China, the United States, Japan, Russia, India, and the EU, to encourage peaceful settlement of disputes and the rule of law in the South China Sea. After all these are principles in the 1976 Treaty of Amity and Cooperation in Southeast Asia, a legally binding agreement to which all 27 members of the ARF are parties.

Drafting the ARF Chairman’s Statement will certainly be more difficult because of the inevitable clash between the United States and China. Big players in the ARF like to muscle in to air their views in the ARF Chairman’s Statement. This will be a good test on whether the United States and China can support ASEAN’s centrality and let the Lao foreign minister, with the support of his ASEAN colleagues, have the final say.

But first of all, the ASEAN foreign ministers must show they collectively have what it takes to defend ASEAN’s credibility and centrality.

Dr. Termsak Chalermpalanupap is a research fellow at the ASEAN Studies Centre of the ISEAS-Yusof Ishak Institute in Singapore.

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