No Sea-Change as ASEAN Turns 50

by Lucio Pitlo III / Aug 22, 2017

Originally Posted at China-US Focus

ASEAN meetings almost always generate expectations of raising the South China Sea (SCS) disputes to the point where the success of the meeting boils down to how tough the adopted language is in the final official statements. Considering the breadth and depth of issues covered by ASEAN in its annual meetings, such reduction is unfortunate and unfair.

This year, as the Philippines hosted the ASEAN meeting in its historic 50th anniversary, critics were quick to assail the Philippine leadership for failing to shepherd the 10-member association into issuing stronger language in relation to the SCS, especially in the traditional ASEAN Foreign Ministers Meeting Joint Communique (AFMM JC). However, a review of the evolution of SCS-related terms in AFMM JCs from 2011 (the year the Recto/Reed Bank incident between the Philippines and China took place) to 2017 reveals no major sea-change regarding the importance of the issue and how it is reflected in the official statements.

The SCS remains a critical, but not a determinant, variable in ASEAN-China relations. The jury is still out on whether this equation will sustain. So far, it appears that expanding and deepening economic ties are dampening the relevance of territorial and maritime disputes, especially if coupled with continuing efforts at dispute management and confidence building.

The Joint Communique (JC) provides ASEAN a platform to articulate a common position or consensus, if there is one, or at least reflect emerging concerns. The difference between a consensus and a reflection of concern (by some members) is apparent in the language. For instance, in the 2017 JC, the ASEAN Foreign Ministers stated, “We discussed extensively the matters relating to the South China Sea and took note of the concerns expressed by some Ministers on the land reclamations and activities in the area …” (emphasis my own). This suggests that concerns over SCS land reclamation are not expressed by all Ministers, thus even a claimant host member has his limitations (it must be noted that fellow SCS claimant state Malaysia played host to the 2015 ASEAN meeting).

The emphasis (“expressed by some Ministers”) was also present in the 2015 and 2016 JCs. This said, the fact that other Ministers allowed such concerns to be formally expressed in the final statement demonstrates affinity (passive or active) to the cause, despite not being directly affected by ASEAN members who do not border the SCS. Whether this affinity can graduate to unanimity within the bloc may be possible depending on the circumstances, although ASEAN’s nature and character may not make for a swift transition.

The 2017 JC was seen as softer for adopting the line “took note of the concerns” compared to previous years’ references on the same, notably 2011 JC’s “expressed serious concern over the recent incidents”, 2014’s “[w]e remained seriously concerned over recent developments”, and 2015 and 2016’s identical “remained seriously concerned over recent and ongoing developments”. No doubt that “serious concern/seriously concerned” are stronger than “took note of the concerns” and efforts to mitigate the latter’s deficiency, notably with the insertion of “[w]e discussed extensively the matters relating to South China Sea”, may not have achieved the desired results. This insertion, by the way, is an adoption from the 2015 JC, resonates with 2011’s “[w]e discussed in depth” and is certainly firmer than 2013’s “[w]e discussed the situation.”

However, aside from the weaker “took note of the concerns” line, the 2017 JC sustained all other elements from its predecessors. It also described the land reclamations and activities in the SCS as having “eroded trust and confidence, increased tensions and may undermine peace, security and stability in the region”, a passage which appeared in both the 2015 and 2016 JC iterations. Interestingly, landlocked Lao PDR – which has a high trade, investment and aid exposure to China – hosted last year’s ASEAN meeting. This meeting carried over the description from the previous year’s (2015) host, Malaysia, demonstrating that ASEAN host countries do their utmost to balance national interests and commitments with the Association, contrary to some sweeping misconceptions.

It was also in 2016 that “non-militarization” was emphasized, an obvious reference to the recent construction or installation of military facilities in the occupied features by claimants, notably China. This wording was repeated in this year’s JC.  Mention of the land reclamations first appeared in 2015, and it was sustained in the succeeding two years. This somehow corresponds to China’s massive land reclamations, which began in 2014 and proceeded until 2016. Moreover, the “reaffirmation of the importance of maintaining peace and stability,” “exercise of self-restraint,” and “peaceful resolution of disputes in accordance with universally recognized principles of international law, including UNCLOS,” were all sustained from 2011 to 2017 (except in 2012, the year no JC was released). The importance of “maintaining freedom of navigation and overflight” was also cited in 2011 and has since been repeated consistently from 2014 to 2017.

Notwithstanding, the evolution of the treatment of the SCS in AFMM JCs reveals an interesting mix of sustained increased vocal stance and reverses. For instance, reference to “avoiding actions that would complicate or escalate the situation” was absent in 2011 and 2013 but began to appear in 2014 and is reflected in subsequent JCs. However, reference to refrain from “resort to threat or use of force,” which appeared in 2013 to 2015, was omitted in 2016 and 2017. In 2014, there was also mention of “friendly dialogue, consultations and negotiations” as one of the peaceful approaches of settling the disputes, but this reference would get lost in succeeding JCs, where an apparent premium on a legalist approach (i.e. universally recognized principles of international law, including UNCLOS) began to take precedence.

This said, some notable consistencies can be gleaned: JCs from 2011-17 (except 2012, where no JC was released) seem to recognize the importance of ASEAN-China engagement in addressing the SCS dispute, notably through such mechanisms as the Declaration of Conduct of Parties in the SCS (DOC) and the Code of Conduct (COC) negotiations. The 2011 JC “reaffirmed the importance and continued relevance of” the DOC, “stressed the importance of … continued constructive dialogue between ASEAN and China,” and “look forward to intensive discussion of COC”.

Succeeding JCs underscored the importance of the “full and effective implementation of the DOC” in its entirety, a possible reference to some claimants’ selective compliance to the 2002 Declaration. All JCs surveyed also echoed the importance of the early conclusion and adoption of the COC, with the adjective “effective” being inserted in 2015 and carried over to 2016 and 2017. The insertion impresses ASEAN’s desire not only to have an understanding in principle or on paper, but an agreement that will be observed and enforced on the ground by all concerned parties.

However, the lack of reference to an “early conclusion” of the COC and its replacement by a “mutually-agreed timeline” in the 2017 JC iteration suggests a retreat from the fast pace by which the Association had pushed for this much-awaited Code. Whether longer negotiation time will make for a more effective Code remains to be seen. But critics will surely not fail to cite this slowdown in the intensity to push for the COC as one of the key shortcomings of this year’s host.

In sum, the SCS continues to be a major issue in ASEAN-China relations. Except possibly for Cambodia in 2012, much of the key terms in any treatment of the SCS by ASEAN are reflected and sustained in all JCs regardless of whether the host state is a claimant or not and irrespective of how close its relations is with China, as the 2016 hosting of Laos and this year’s hosting by the Philippines (given improving Philippines-China relations) show.

This does not necessarily attest to the strength of the host to resist pressure from multiple sides both at home and abroad, but rather exemplifies more of a growing demonstration among member states to give substance to ASEAN centrality and promotion of shared regional interests instead of just narrow and naked national interests. This is especially so in the context of great power contest or some members’ own differences with one power. As such, while the move was criticized by some, failure to reference the arbitral ruling in the 2017 Chairman’s Statement and AFMM JC may suggest Philippine desire to refrain from turning a bilateral matter into a regional issue involving ASEAN and one of its key dialogue partners, especially at a point where the Association has yet to come up with a solid position. How this decision will impact international law and regional geopolitics remains to be seen.

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