The South China Sea and ASEAN’s 32nd Summit Meeting

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The South China Sea and ASEAN’s 32nd Summit Meeting

Will Cambodia once again undermine ASEAN’s position on the South China Sea?

The South China Sea and ASEAN’s 32nd Summit Meeting

Myanmar’s State Counsellor Aung San Suu Kyi, right, chats with Singapore’s Prime Minister Lee Hsien Loong as they arrive for a family photo before the 19th ASEAN Republic of Korea Summit in Manila, Philippines (Nov. 13, 2017).

Credit: AP Photo/Aaron Favila, Pool

The Association of Southeast Asian Nations (ASEAN) is set to convene its 32nd Summit in Singapore on April 28. The Diplomat has received draft copies of two important policy documents that are set to be released at the conclusion of the summit: the ASEAN Leaders’ Vision for A Resilient and Innovative ASEAN and the Zero Draft of the Chairman’s Statement of 32nd ASEAN Summit.

The Leaders’ Vision statement is a nine-page document divided into a preamble and five sections containing 37 points.

The preamble includes 10 key principles “that will underscore our collective vision and commitment to build a Resilient and Innovative ASEAN in 2018 and beyond.” Point two addresses a rule-based order and declares, “ASEAN shall promote the rule of law and uphold a rules-based regional order, anchored in respect for international laws and norms.”

Point three addresses peace and security in general terms and specifically focuses on nuclear weapons, noninterference in internal affairs of ASEAN member states, and maritime issues. Point three states “maritime cooperation are enhanced in accordance with internationally-accepted treaties and principles, including the 1982 United Nations Convention on the Law of the Sea (UNCLOS), which are binding upon its Member States (emphasis added).”

The South China Sea is mentioned after the preamble in the first section that deals with peace and security. Point 5, Code of Conduct in the South China Sea, reads: “Work actively towards the conclusion of an effective Code of Conduct in the South China Sea.” That is the only reference in the Leaders’ Statement to the South China Sea.

On the face of it the South China Sea is not a contentious or even pressing issue. But the Chairman’s Zero Draft Statement tells a different story and reveals internal ASEAN fissures.

The Zero Draft Statement is divided into four major sections, Key Deliverables, ASEAN’s External Relations, Regional and International Issues and Developments, and Other Matters. Of the 25 points in the Zero Draft, seven are devoted to the South China Sea.

The preamble touches indirectly on the South China Sea. Here the draft states that ASEAN leaders reaffirmed their “full respect for legal and diplomatic processes, without resorting to the threat or use of force, in accordance with universally recognized principles of international law” including the 1982 UNCLOS.

Since the 2016 Arbitral Tribunal Award in the case brought by the Philippines against China, ASEAN has used the circumlocution “legal and diplomatic processes” to refer to the Arbitral Tribunal. This expression was taken out of the section on the South China Sea and moved to the opening of the ASEAN Chair’s statement to emphasize its importance.

The Zero Draft of Chairman’s Statement reviewed by The Diplomat was annotated with the interventions by member states indicating their support, rejection, or other comments on the wording. The seven points related to the South China Sea, for example contain 17 annotations from six of ASEAN’s 10 members.

Cambodia tops the list with seven interventions or nearly 44 percent of the total followed by the Philippines with three interventions, Malaysia and Vietnam with two each, and Indonesia and Singapore only one intervention each. There were no comments by Brunei, Laos, Myanmar, or Thailand.

Of the seven South China Sea related-points, only three, points 14, 19 and 20, were left unchallenged.

Point 14, the longest to address the South China Sea, largely repeats past ASEAN policy. Point 14 reaffirmed the importance of freedom of navigation, the full implementation of the Declaration on Conduct of Parties in the South China Sea (DOC), and “warmly welcomed the improving cooperation between ASEAN and China, and were encouraged by the official commencement of the substantive negotiations towards the early conclusion of an effective COC (Code of Conduct) on a mutually-agreed timeline.”

It also welcomed practical measures such as the hotline between the foreign ministries of China and ASEAN members, and the operationalization of the Code for Unplanned Encounters at Sea (CUES).

Point 14 “took note of the concerns expressed by some Leaders on the land reclamations and activities in the region, which have eroded trust and confidence, increased tensions and may undermine peace, security and stability in the region.” This is a repeat of past ASEAN statements.

Finally, point 14 “emphasized the importance of non-militarization and self-restraint in the conduct of all activities by claimant and all other states, including those mentioned in the DOC that could further complicate the situation and escalate tensions in the South China Sea.” The DOC mentions ASEAN member states and China.

Point 15 refers to “candid discussions” on the South China Sea and expresses serious concern “over recent and ongoing developments, including large scale/all land reclamations and militarization in the area.” Cambodia and Malaysia requested that the words in italics be deleted.

In the following sentence the Philippines requested the insertion of the words in italics: “We took note of serious concerns expressed by some Ministers on land reclamations and escalation of activities in the area, massive island building, construction of outposts, and deployment of military assets in the disputed areas…” Cambodia moved to retain the original wording. In other words, Cambodia sought to water down the language.

Point 16 reaffirmed “the importance of maintaining and promoting peace, security, stability, safety and freedom of navigation in and over-flight above the South China Sea.” Cambodia queried the word safety and stated it would get back on that point.

Point 16 next called for “full respect for legal and diplomatic processes.” Cambodia called for this wording to be deleted, while Indonesia, Malaysia, Philippines, Singapore, and Vietnam called for its retention. If this wording is retained, it would represent a change in ASEAN policy and link the South China Sea disputes to the arbitral process, if only indirectly.

In point 17 Cambodia queried the following words in italics and stated it would get back: “We emphasized the importance of non-militarization and self-restraint in the conduct of activities, including land reclamation that could further complicate the situation and disputes or escalate tensions in the South China Sea.” Cambodia holds that ASEAN has no direct role and disputes should be settled bilaterally.

The Philippines and Vietnam requested that the words in italics be inserted in the text as follows: “We articulated ASEAN’s commitment to full respect for legal and diplomatic processes. In this regard, we welcomed the issuance of the 12 July award by the Arbitral Tribunal constituted under Annex VII to the UNCLOS.” The intervention by the Philippines is notable since President Duterte has declared he would not press China on the implementation of the Award. Vietnam’s support for the inclusion of this wording was characterized as contentious in a private communication to the author by a well-informed observer.

Finally, Cambodia queried point 18 in its entirety and stated it would get back. Point 18 in the draft reads, “We highlighted the urgency to intensify efforts to achieve further substantive progress in the implementation of the DOC in its entirety, particularly Articles 4 and 5 as well as substantive negotiations for the early conclusion of the COC including the outline and time line of the COC.”

Article 4 calls for the resolution of territorial disputes by peaceful means without the resort to the threat of force through consultations and negotiations by the parties directly concerned on the basis of international law and UNCLOS.

Article 5 calls for the parties to exercise self-restraint in activities “that would complicate or escalate disputes and affect peace and stability…”

Points 19 and 20 of the Zero Draft were uncontested. Point 19 stressed the importance of confidence building and preventive measures during the implementation of the DOC “in its entirety” and “early adoption of an effective COC.”

Point 20 reiterated the need to establish hotlines between ministries of foreign affairs to deal with maritime emergencies and welcomed the adoption of the joint statement on the observance of CUES.

Cambodia has long argued that the maritime disputes in the South China Sea are not a matter for ASEAN because they are bilateral disputes. Cambodia has no direct interest in South China Sea issues yet it has repeatedly intervened to either water down or block any wording that China might object to. Most notably in 2012 Cambodia prevented ASEAN from issuing a joint statement because of its objections to the wording of the section on the South China Sea.

The leak of the Zero Draft of Chairman’s Statement of 32nd ASEAN Summit provides a baseline to analyze the final ASEAN Chair’s Statement when it is issued on April 28 and determine the extent to which Cambodia has continued to act as a stocking horse for China.

ASEAN is still faced with a major dilemma. It repeatedly upholds a rules-based regional order and international law, including UNCLOS. Yet ASEAN is hesitant to take any action that would incur China’s wrath. The Award by the Arbitral Tribunal is now part of international case law. ASEAN has chosen to sit on the fence, thus encouraging continued contestation between maritime powers who accept the Award and China, which puts itself above international law.