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32nd Asean Summit: Any Progress on the South China Sea Issue?

The Summit

The 32nd ASEAN Summit held in Singapore (25 - 28/4/2018) to talk over regional and international issues successfully concluded. Though ASEAN consists of ten ASEAN Member States in a region of different cultures and backgrounds, it partakes in a common interest in promoting peace, stability and security for the advantages of the peoples of the region. The event known as the 32nd ASEAN Summit, was a special event that Singapore presented at Istana and Shangri-La Hotel to the world how the 10 member states with diverse cultures and different forms of governments are consolidated when regional matters are addressed.

Leaders from 10 ASEAN countries wave during a group photograph at the opening of the 32nd ASEAN Summit

Leaders from 10 ASEAN countries wave during a group photograph at the opening of the 32nd ASEAN Summit

Key takeaways of the Chairman's Statement

The issues discussed at ASEAN Summits can be sorted out under 3 broad themes – current issues, ASEAN Community agendas and the chairman’s ambitions.

Singapore’s theme of buoyancy and innovation captured these 3 overarches utterly. In terms of ongoing issues like trade war unease, denuclearisation of the Korean Peninsula and the South China Sea disputes, discussions were held in an informal scene during the heads of state and government retreat.

Relating to maintaining peace, security and stability in the area, the Summit concluded with a communiqué that calls for exercise of self-restraint in the disputed South China Sea.

The leaders reiterated the significance of maintaining peace, stability, security, safety and freedom of navigation in and overflight above the South China Sea, along with the need to exert self-restraint and refrain from unilateral actions that may further perplex the situation, and to pursue the amicable settlement of disputes with respect to international law and for diplomatic and legal processes.

They required the serious implementation of the Declaration on the Conduct of Parties in the South China Sea (DOC) and efforts to complete a Code of Conduct (COC), holding that an efficacious and binding COC will play an important part in securing a transparent and rule-based regional architecture and a peaceful and stable South China Sea.

ASEAN Leaders are concerned by China's land reclamation and activites in the SCS

"We discussed the matters relating to the South China Sea and took note of the concerns expressed by some Leaders on the land reclamations and activities in the area, which have eroded trust and confidence, increased tensions and may undermine peace, security and stability in the region".

The language in the joint statement didn’t come off as watered down as if to connote deference to Chinese assertiveness. Nevertheless, it was relatively positive about the future of the maritime controversy thanks to growing levels of collaboration between ASEAN and China. The only highlighted problem was land reclamation of which China and several ASEAN claimant states are guilty of. No strong language condemning Chinese militarisation was apparent. Non-militarisation was just emphasised so as to not sabotage the progress made with the Code of Conduct which is currently being negotiated.

Solution for this daunting dispute?

Since the 12/7/2016 Arbitral Award between the Philippines and China that found consentaneously in favor of the Philippines, little appears to have changed in the South China Sea. China has not withdrawn from the disputed islands and rocks and has persisted with its island-building activities, further boosting great concerns over its militarization of the islands.

China's expanding the construction of its facilities on Fiery Cross Reef. Provided by the Asia Maritime Transparency Initiative (AMTI)

China's expanding the construction of its facilities on Fiery Cross Reef. Provided by the Asia Maritime Transparency Initiative (AMTI)

ASEAN still couldnot see any way out of the dilemma. It repeatedly holds aloft a rules-based regional order and international law, including UNCLOS. Yet ASEAN is reluctant to take any action that would incur China’s wrath. The Award by the Arbitral Tribunal now constitutes a fundamental part of international case law. ASEAN has chosen to sit on the fence, thus fostering continued contention between maritime powers who accept the Award and China, which puts itself above international law.

For the arbitration case to meaningfully partake in the perpetuation of a rule - based order and international law, it is compulsory that all stakeholders – big or small states, parties and non-parties to the case, including non-state actors – manifest their firm engagement and support to it.

The South China Sea Arbitral Award

The South China Sea Arbitral Award

It is essential first of all to recognize the fact that the South China Sea conflict is very much unsymmetrical, and therefore cannot be dealt with in a symmetric way. China is irrefutablely a powerful nation in the region and the Philippines, Vietnam, and other claimants are just smaller states. Therefore, it is impractical to expect a fair solution that treats every participant equitabley. Everything should be in proportion. The ASEAN countries have to learn how to work with the regional hegemony, China, in a proportionately mutual beneficial way. Quoting international law or coercing China into agreeing with ASEAN’s proposal for a Code of Conduct is indeed nothing unfair to this superpower.

The only thing that ASEAN nations can do, should they really want to stand together against China, is to first try to facilitate developent on the individual countries’ economies and together progressively reduce their dependence upon Chinese products, markets, and aid. ASEAN should trim down competition between its members, escalate internal aid programs, and exchange technology and experiences. Only when each and every ASEAN nation is strong enough and really enjoys cooperation within the region, then can a common approach finally be acknowledged. But in the age of a booming ASEAN, there would no longer be a need to raise this hypersensitive issue against China. Seeing ASEAN growing stronger economically will coax China to behave moderately — to cooperate rather than launch the offensive in the South China Sea. This is the only peaceful and comprehensive solution to the conflict.

One note on the third party, the United States, as recent events have shown, has hardly made any notablely constructive contribution to solving the South China Sea Conflict. All this superpower has done so far is to compel China to comply with UNCLOS (which the United States is not even a party to), sponsor militarization in the region, and add aggression where necessary. It seems like the United States is planning for another proxy war against China in the South China Sea, which ASEAN states and China should be well aware of. Both sides should stay clear from falling into agressive conflict at all cost. If ASEAN states are willing to act as America’s “Tank Man”, trying to intensify the conflict with China, war will come as a result, doing away with the lives of innocent citizens.

Meanwhile, the purpose of the COC is to modulate the conduct of the parties so there will be no clashes or shooting war in the South China Sea. The COC is not intended to resolve the merits of the South China Sea dispute. The South China Sea dispute involves territorial and maritime disputes. There is already a dispute settlement structure for the merits of the maritime dispute, and that is found in UNCLOS to which all disputant states in the South China Sea are parties. The merits of the dispute should continue to be administered primarily by the UNCLOS dispute settlement mechanism. Thus, the COC regulates the conduct of parties to the dispute, while UNCLOS settles the merits of the dispute among the parties. Although related, these are essentially two different issues.

There is no world policeman or law enforcement officer to enforce the arbitral ruling. However, states that ratified UNCLOS expressly have to bind themselves to comply in good faith with decisions of arbitral tribunals created under UNCLOS.

Comments

Andy Woo on May 26, 2018:

Very useful and informative. Hopefully a legally-binding and effective Code of Conduct will be concluded soon so that the South China Sea issue can be resolved in a peaceful way for the sake of all nations in the region (stability, security, freedom of navigation and overflight, etc.)