Late last month, David Carden presented his credentials as the United States’ first resident Ambassador to the Association of Southeast Asian Nations (ASEAN). Carden assumes his post amid a reported retrenchment on the South China Sea issue by China. Yet this ‘positive’ Chinese step follows about two years of escalation by China, including illegal harassment of an unarmed US ocean surveillance ship, detention of neighbouring fisherman, submission of the contentious ‘U-Shaped’ historical waters map to the United Nations, and alleged reference to the South China Sea as a ‘core interest.’
Unfortunately, China's ‘less assertive’ posture doesn’t reflect significant progress in resolving underlying territorial disputes between itself and other claimants, including four ASEAN members. Nor does it address China's challenge to the United States on free navigation in the South China Sea, particularly the conduct of military activities outside territorial waters. Instead, China's new approach seems almost certainly a response to growing regional discontent with its provocative actions. In the view of some analysts, China's tactical retreat merely sidesteps further internationalization and calls for multilateral resolution of key issues.
All this means that Carden is faced with a lingering issue that threatens long-term peace and stability in Southeast Asia, and means resolution of the South China Sea dispute is going to have to be one of his main diplomatic objectives.
On this, Carden will be compelled to maintain the longstanding US position to remain neutral on the claims themselves. At the same time, he’ll be charged with ensuring that China doesn’t wield disproportionate power to compel claimants to enter into any resolution that results in territorial claims exceeding international law. This will require a delicate diplomatic balancing act.
Over the next few months, Carden will have numerous opportunities to advance US interests in concert with ASEAN. His next tests will be supporting the United States around the ASEAN Regional Forum and East Asia Summit. To meet these challenges, he’ll require a set of established principles that advance US interests in the South China Sea.
Based on past US engagement on the issue, Carden should consider anchoring his outreach around three core principles:
1. Compliance with International Law: The United States must press for resolution of the dispute based upon international law. This expressly limits claims by any party, including China, to valid claims under the U.N. Convention on the Law of the Sea (UNCLOS)—as per the remarks made by Secretary of State Hillary Clinton in Hanoi last year. Carden could further strengthen this position by advancing the US Congress's ratification of UNCLOS.
2. Principle of Free Navigation: The US must preserve free navigation, including its right to conduct military activities in non-territorial waters without permission by coastal states. While scholars demonstrate such activities to be lawful, not all countries expressly accept the US interpretation. Carden should therefore work to secure immediate acknowledgment by ASEAN of this customary right.
3. Multilateral Resolution: Acknowledging China's disproportionate power vis–à–vis individual claimants, the United States should support Indonesian President Susilo Bambang Yudhoyono’s calls to bring China ‘into regional dialogue to ensure a peaceful resolution.’ Carden can do so by promoting referral to a regional body, such as ASEAN, where the dispute can be addressed in a constructive manner with the objective of a final resolution amenable to all parties.
If adopted, these principles provide a framework for direct resolution of the issue between ASEAN and China under terms that should be amenable not just to the United States, but also to the wider international community.