ASEAN’s Failing Grade in the South China Sea

Since around 2008, a worrying disconnect has been readily apparent in the South China Sea. On the one hand, competing claims to ownership of disputed atolls and their adjacent maritime space has led to growing discord between China and several countries in Southeast Asia, especially Vietnam and the Philippines, and propelled the problem to the top of Southeast Asia’s security agenda. In the past two years alone, China’s assertive—some would say coercive or even aggressive— actions in the South China Sea have raised tensions to their highest point since the dispute first emerged as a major regional security issue in the late 1980s. In 2014, Beijing’s decision to plonk down a billion dollar drilling platform, Haiyang Shiyou 981 (HYSY-981), into Vietnam’s claimed 200 nautical mile exclusive economic zone (EEZ) triggered a severe crisis in bilateral relations, one which resulted in hundreds of dangerous skirmishes between the Chinese and Vietnamese coast guards, and anti-China riots in Vietnam that resulted in several fatalities. In 2015, detailed satellite imagery made regional states sit up and realize that the massive artificial island building in which China has been engaged in the Spratly Islands since late 2013 could eventually allow it to assert dominance in the very heart of maritime Southeast Asia. Yet, the ten-member Association of Southeast Asian Nations (ASEAN), which is often cast as the arbiter, or at least the moderator, of regional security has failed to substantively engage China on the problem and get it to agree to a set of concrete measures that would roll back interstate tensions.

Tensions in the South China Sea are serious but have not brought the countries in dispute to the brink of war (though the risk that one of the growing number of “incidents at sea” could blow-up into a bloody confrontation should give regional leaders pause for thought). Nor has increasing friction among the various parties hampered the huge volume of maritime traffic that flows through the South China Sea and which lubricates the global economy. Yet, the failure of ASEAN and China to arrest and turn about the deteriorating situation in the South China Sea has created a set of acute problems. First and foremost, it fuels enmity between China and the Southeast Asian claimants (who do not, as a general rule, squabble among themselves despite overlapping claims) as well as contention between China and the other major powers, especially the United States and Japan, which feel that China’s assertiveness undermines their national interests, including freedom of navigation. Indeed, it may not be an exaggeration to state that the South China Sea has quickly become the locus of geostrategic rivalry between Washington and Beijing. Second, and related, rising tensions among the principal players, and the lack of progress toward a resolution, generates nervousness, apprehension, and uncertainty about where the region is headed, and this, in turn, creates arms build-ups and security dilemmas. Third, the worsening dispute undermines ASEAN’s aspiration to retain centrality in the regional security architecture it has played the leading role in creating since the end of the Cold War.

Why has the two-decade long “conflict management” process between ASEAN and China in the South China Sea yielded such meager returns? The answer is due to a combination of ASEAN’s internal dynamics, and the growing conviction in China that its territorial and jurisdictional claims are superior to those of its neighbors, and that its birth right is to protect and advance them.

Flawed Declaration, Uncertain Code

The 2002 ASEAN-China Declaration on the Conduct of Parties in the South China Sea (DoC) was meant to prevent precisely the situation in which we find ourselves today. Signed with much fanfare, and hailed at the time as a major breakthrough in the long-running dispute, the DoC shows parties pledging to promote “good neighbourliness and mutual trust” so as to create a “peaceful, friendly and harmonious environment in the South China Sea.”¹ Yet, the agreement was fundamentally flawed. Due to objections from China (and Malaysia), the DoC was non-binding and, therefore, included no enforcement or dispute resolution mechanisms, and no sanctions against those deemed to have violated its provisions. It also excluded one of the six claimants, Taiwan. The language of its provisions was too vague, especially Article 5 which called for the signatories to “exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability.” Tensions in the South China Sea did drop significantly in the early 2000s, but the DoC was essentially a product of the prevailing climate of cooperation engendered by China’s regional “charm offensive” rather than a catalyst for it. When tensions began to escalate in the late 2000s, it proved singularly unsuited to driving them down.

Since then, as competition among the claimants to advance their claims has intensified—through national legislation, submissions to international bodies such as the United Nations, and attempts to enforce administrative control on or around the occupied atolls—the DoC has been disregarded and contravened to the point where the current ASEAN Secretary General Le Luong Minh has bemoaned, “We are seeing a widening gap between the political commitments and the actual actions, the real situation at sea.”² All of the claimants—with the possible exception of Brunei which plays a very low-key role in the dispute—have accused each other of violating the agreement, especially the self-restraint clause. But as the DoC does not define what self-restraint actually entails, almost any action undertaken by one of the claimants in the South China Sea could be interpreted as an infringement of Article 5, whether it involves a physical act at sea or a political gambit. Thus, China has fumed that the Philippines decision in January 2013 to seek legal arbitration over the two countries competing jurisdictional (but not sovereignty) claims at the International Tribunal of the Law of the Sea (ITLOS) violates the DoC because under Article 4 the parties undertake to resolve their disputes peacefully “through friendly consultations and negotiations by the sovereign states directly concerned”—in China’s view, the Philippines’ action is an unfriendly act, and ITLOS is not a direct party to the dispute. The Philippines, however, maintains that bilateral discussions over the past two decades have led nowhere, and that the DoC provides for the resolution of disputes “in accordance with universally recognized principles of international law, including the 1982 United Nations Convention on the Law of the Sea” (UNCLOS).

Some infringements of the DoC are arguably more flagrant than others. Many of China’s recent actions fall into this category, including: the severing of towed seismic arrays on Vietnamese-chartered survey vessels in 2011 and 2012; attempts by Chinese-flagged ships to prevent the resupply of Filipino Marines on Second Thomas Shoal in 2014; the deployment of HYSY-981 in 2014 (and again in July 2015, though further from Vietnam’s coast); and, since 2013, the transformation of seven submerged or semi-submerged features in the Spratlys into large man-made islands capable of hosting significant military facilities such as radars, harbors, and airstrips. None of these actions has promoted a “peaceful, friendly and harmonious” environment in the South China Sea, nor do they demonstrate even a modicum of self-restraint. The DoC also calls on the claimants not to occupy uninhabited features. For nearly a decade that prohibition was observed until 2012 when China took possession of Scarborough Shoal after a two-month long stand-off with the Philippines.

It is hardly surprising then that in this atmosphere of growing rancor and mistrust, of claim and counterclaim, action and reaction, the parties have failed to agree on a set of cooperative measures identified in the DoC in five areas: protection of the marine environment (China’s reclamation activities that have destroyed hundreds of acres of coral reefs are particularly egregious in this regard), marine scientific research, safety of navigation, search and rescue, and responses to transnational threats such as piracy. A joint ASEAN-China working group continues to discuss such measures, but it is doubtful whether cooperative initiatives in any of these five areas could substantially mitigate tensions generated by competition over resources, chest beating nationalism and geopolitical manoeuvring. Probably not.

In recognition that the provisions of the DoC were too flimsy to tamp down growing friction between China and the Southeast Asian claimants, in 2011 ASEAN leaders began pushing for a successor agreement that was envisaged in the DoC, and which would include binding obligations to prevent incidents from occurring. But China pushed back, arguing that the time was “not yet ripe” for a code of conduct for the South China Sea (CoC), especially as the DoC had not yet been fully implemented and because, in its view, Manila and Hanoi were continually violating it through unilateral actions. After much cajoling from ASEAN, two years later China grudgingly agreed to begin preliminary discussion for a code, though it cautioned the member states that it was in no hurry and that they should not have unrealistic expectations of a quick deal.³

Those preliminary discussions—or talks about talks—began in 2014 at the joint working group level and have continued into 2015. Progress has been imperceptible. ASEAN as an organization has repeatedly called for an “early conclusion” to the code, and in January 2015 the member states’ foreign ministers urged their senior officials to “work vigorously” to achieve that goal.⁴ That call has been echoed by individual ASEAN leaders, including Vietnamese prime minister Nguyen Tan Dung, Indonesian president Joko Widodo, and most recently by Singapore prime minister Lee Hsien Loong in his keynote speech at the 2015 Shangri-La Dialogue in which he stressed that the CoC was needed to “break the vicious cycle” of tensions.⁵ Other stakeholders in the South China Sea, such as the United States, Japan, Australia, and the European Union have also urged a speedy resolution to the talks.

As Philippine president Benigno Aquino said in late 2014, there is no need to “reinvent the wheel” when it comes to the CoC process because “we can source the elements of the proposed [code] from existing norms and international conventions that promote good conduct.”⁶ He was right. There are a number of conventions that codify maritime “rules of the road,” and which could be used as the basis for the CoC, including the 1972 International Regulations for Preventing Collisions at Sea (COLREGS), the 1972 US-USSR Incidents at Sea (INCSEA) agreement (and subsequent INCSEAs between the USSR/Russia and several European and Asian countries) and the Code for Unplanned Encounters at Sea (CUES) that was signed in April 2014 by the members of the Western Pacific Naval Symposium, which include China and seven ASEAN members (Brunei, Cambodia, Indonesia, Malaysia, Singapore, Thailand, and Vietnam).

Yet, as Secretary-General Minh laments, ASEAN has found it very difficult to engage China in “substantive discussions” on the CoC.⁷ Part of the reason is that ASEAN and China have very different expectations of when the code should be concluded, as noted by Singapore’s foreign minister K. Shanmugam: “The real problem is you need both sides to agree that the Code of Conduct is worth doing and should be done at a certain pace… There hasn’t been a clear agreement on the pace those negotiations should proceed.”⁸ So what explains China’s reluctance to hasten the talks and agree on a substantive code? Perhaps a more pertinent question to ask is why would China sign a credible, legally-binding, and effective code of conduct that ties its hands in the South China Sea when it increasingly possesses the naval and coast guard assets to pursue de facto control within the nine-dash line, and when the United States seems flummoxed about how to respond, and all ASEAN does is issue statements of concern (of which more later).

The CoC seems to have become an article of faith in Southeast Asia—especially for bureaucrats in the ASEAN secretariat in Jakarta—a magic bullet that will reduce the dispute to a minor irritation in ASEAN-China relations. Such hopes are unfounded. As many observers have noted, China’s CoC-strategy is to play for time by prolonging the talks for as long as possible while expanding and consolidating its presence within the nine-dash line. Perhaps one or two years from now, ASEAN and China will eventually issue a code of conduct for the South China Sea. But whether that agreement contains detailed provisions that proscribe the kinds of tension-generating activities we have been witnessing over the past few years, or whether it is largely composed of high-sounding platitudes, remains to be seen. This author’s bet is on the latter.

The Ebb and Flow of ASEAN Unity

ASEAN has had a bottom-line, lowest common denominator consensus on the South China Sea since 1992, when it issued its first statement on the dispute, the ASEAN Declaration.⁹ Put simply, the ASEAN members (six at that time) agreed that tension-generating incidents in the area “adversely affect regional peace and stability,” and that until the complex sovereignty disputes were resolved—peacefully, without the use of force, and through negotiations between the claimants themselves or in an international court—the parties directly concerned should cooperate to ensure safety of navigation, protect the environment and address transnational threats, as well as work towards a code of conduct. That consensus has remained essentially unchanged since 1992.

As the membership of ASEAN expanded from six to ten members between 1995 and 1999, the 1992 consensus on the South China Sea came under strain several times, but at the annual meeting of the organization’s foreign ministers in Phnom Penh in July 2012, it broke down spectacularly. During their discussions, the stand-off at Scarborough Shoal and the cable cutting incidents off the Vietnamese coast were raised. The normal practice would have been for the final statement to have reflected those discussions, but the then chair, Cambodia, refused because it argued that these were bilateral issues that did not affect ASEAN as a group; Vietnam and the Philippines protested. Cambodia’s stance was at odds with the organization’s three-decade consensus, given that both sets of incidents clearly adversely affected regional peace and stability. Yet, despite frantic efforts to find a set of words that everyone could agree on, Cambodia dug in its heels, and the ministers failed to issue a final statement for the first time in the organization’s history. Whether Cambodian foreign minister Hor Namhong was acting at his own behest, or at the behest of China in gratitude for, and in future expectation of, economic largesse, is still a matter of conjecture. But whatever the reason, the Phnom Penh summit was not ASEAN’s finest hour.

As the great powers vie for influence in Southeast Asia and use economic and other levers of power to influence the foreign policy decision making of ASEAN member states, was this breakdown in unity a “harbinger of things to come,” as Barry Desker warned?¹⁰ Given that great power competition in Southeast Asia is likely to play out over the next few decades, Desker’s warning remains a distinct possibility. Yet, since 2012, China’s behavior in the South China Sea has not led to widening of divisions within ASEAN, but actually encouraged greater unity. That unity has been demonstrated on two occasions. In May 2014, barely a week after China had dispatched HYSY-981 into Vietnam’s EEZ, ASEAN foreign ministers met in Naypyidaw. At that meeting, Hanoi requested that in the face of this unprecedented provocation, ASEAN issue a stand-alone statement that would give vent to its and other members’ outrage. To the surprise of many observers, Vietnam’s ASEAN partners, including Cambodia, agreed. In the ensuing statement, the foreign ministers expressed “serious concern” at ongoing developments and reiterated their call for all parties to “work expeditiously” towards the “early conclusion” of a CoC.¹¹ The language was not very strong, and the statement did nothing to defuse the crisis, but at least the nine other members had closed ranks behind Vietnam.

The second display of unity occurred in April 2015. The Philippines, greatly alarmed by the scope and pace of China’s reclamation projects, three of which lie within its EEZ, called on fellow ASEAN members to take a firmer line with China. At the twenty-sixth ASEAN Summit in April, it did, at least by the standards of ASEAN. In the chairman’s statement, the members expressed “serious concerns” at the reclamations which had, in their view, “eroded trust and confidence and may undermine peace and stability in the South China Sea.”¹² This is ASEAN’s strongest statement to date on the dispute.

While ASEAN unity may have survived the stresses imposed on it by the oil rig incident and the reclamations, they also revealed the limits of that unity, for neither statement criticized China by name nor did they call for the removal of HYSY-981 or a halt to China’s artificial island-building. This problem of consensus of action is not, of course, unique to ASEAN, and many other international organizations are faced with it, to varying degrees. The EU and NATO, for instance, face a similar problem of consensus on how to respond to Russia’s annexation of Crimea in 2014 and revanchist policy in Europe; those countries closest to Russia’s borders, especially the Baltic states and Poland, are more nervous, and seek more resolute measures to deal with the perceived threat from Moscow than those countries that are geographically far removed and face more immediate crises, such as Greece. And so it is with ASEAN. Members who find themselves in direct confrontation with China, such as Vietnam and the Philippines, would like to see ASEAN get tough with Beijing, while states that do not have a direct stake in the dispute and do not want to rock the boat with their largest trading partner elicit much less concern. Differing perceptions, interests, and stakes, and the desire of some members to appear strictly neutral, have meant that ASEAN has been unable to build on its lowest-common denominator consensus and agree on a set of measures to advance the conflict management and conflict resolution processes. The Philippines in particular has found little support among its ASEAN partners for a number of its initiatives over the years, including a proposal in 2011 to “segregate” the disputed islands, demilitarize them, and establish a joint development authority, and its decision in 2013 to challenge the legal basis of China’s claims at ITLOS. Severe domestic political problems, of the kind currently faced by the leaders of Myanmar, Thailand, and Malaysia also distract attention away from the South China Sea.

Indonesia and Singapore: Non-claimants but Key Players

Other essays in this Special Forum examine the perceptions and policies of two Southeast Asian actors in the South China Sea dispute, the Philippines and Malaysia, and an article in the Open Forum focuses on the third main actor Vietnam. Two non-claimants, Indonesia and Singapore, play important roles in the management of regional security and should not be overlooked. As island states (albeit massively different in scale), both countries have vital economic and strategic interests in the area, were key players in the negotiations that led to UNCLOS in 1982 and, therefore, have an interest in seeing that its central tenets are upheld, and have been perturbed by negative developments in the South China Sea over the past few years.

Indonesia is invariably classed as a non-claimant (as I have done in this essay), but this is not really the case. In fact, its position is largely analogous to Brunei, which is always classed as a claimant. Although two geographical features belonging to the Spratlys group—Louisa Reef and Rifleman Bank—fall inside Brunei’s claimed EEZ, they are low-tide elevations or semi-submerged features and, therefore, not subject to a claim of sovereignty. In any case, Brunei has never formally made a claim to either. However, China’s U-shaped line encroaches to within 40 miles of the Brunei coast, and could cover as much as 12,600 square nautical miles of the country’s EEZ.¹³ Similarly, the nine-dash line overlaps with the EEZ generated by Indonesia’s Natuna Islands, whose adjacent waters hold significant deposits of natural gas. While China does not claim sovereignty of the Natunas themselves, it has, from time to time, suggested that the two countries have an unresolved maritime border.

Indonesia, however, categorically rejects the notion that it is a claimant country. Beginning in the early 1990s, Indonesian academics and officials quizzed their Chinese counterparts on the meaning of the nine-dash line and how they reckoned it was compatible with UNCLOS. It was not until nearly two decades later, however, that Jakarta put its position in writing. In May 2009, in reaction to submissions by Vietnam and Malaysia to a specialized UN body tasked with examining extended continental shelf claims, China had, for the first time, officially lodged a copy of the nine-dash line map attached to a note protesting the Vietnamese and Malaysian submissions. As one of the driving forces behind UNCLOS, Jakarta felt compelled to respond, and in July 2010 it sent a letter to the UN secretary-general asserting that the map had no basis in international law and was a violation of UNCLOS.¹⁴ This stance was reiterated by the Indonesian government in early 2014, when the South China Sea briefly popped up during the presidential elections.¹⁵ Having spurned the nine-dash line, Jakarta has cast itself as a neutral party in the dispute. Whether China sees it as such is open to question. However, a series of incidents since 2010 in which armed Chinese vessels have prevented Indonesian patrol boats from detaining Chinese fishermen operating illegally in the Natuna’s EEZ suggests Beijing does not see Jakarta as a neutral party.

Under President Susilo Bambang Yudhoyono, Indonesia was a keen advocate of the DoC/CoC process, and indeed it was his foreign minister, Marty Natalegawa, who was instrumental in shoring up ASEAN unity in the wake of the Phnom Penh fiasco in 2012. Yet, it was also under Yudhoyono that the armed forces began beefing up their presence on the Natunas in a sign, no doubt, of increasing concern at China’s behavior in the South China Sea. Yudhoyono’s successor, Joko Widodo, who prefers the moniker Jokowi, has hewn pretty much to the same line: Jokowi has stressed Indonesia’s neutral status, the government’s position that the U-shaped line does not comport with international law, and that, because it is a non-claimant, Indonesia can play the role of “honest broker.”¹⁶ Jokowi has also called for ASEAN and China to wrap up the CoC as soon as possible, and continued the military build-up on the Natunas.

Whether the new Indonesian administration can provide leadership on the South China Sea—something that would appear critical given Indonesia’s status as primes inter pares within ASEAN—is unclear, for several reasons. First, as Amitav Acharya and others have observed, Jokowi seems to have downgraded ASEAN’s importance in the conduct of its foreign policy.¹⁷ Second, Jokowi lacks interest and experience in foreign affairs.¹⁸ And third, Jokowi’s focus is on protecting the country’s maritime sovereign rights, including clamping down on illegal fishing in the country’s EEZ, as witnessed by the destruction of foreign boats deemed to have been undertaking such activities. So, even as Jokowi courts Chinese investment to help improve the country’s maritime infrastructure, his officials are blowing up Chinese fishing boats. If this policy continues, Indonesia’s relations with China are bound to suffer and throw into sharper relief the disconnect between Jakarta’s claim that it is a neutral party because it rejects the nine-dash line, and Beijing’s determination to uphold its so-called “historic rights” within that line, including in the waters off the Natuna Islands.

Singapore has no conflicting territorial or maritime boundary claims with China. However, since independence 50 years ago, the city-state has transformed itself into a global maritime trading hub, and has, therefore, been long concerned at any roiling of the waters in the South China Sea, which might disrupt the flow of shipping that is its life blood. Like Indonesia, Singapore has stressed its neutrality in the dispute, but unlike its southern neighbor it has not come out formally against the nine-dash line. It has, however, called on China to clarify its claims, and some of the country’s foremost legal experts, with close ties to the government, have questioned the legal basis of China’s maritime claims.¹⁹ Singapore’s leaders have called for the prompt implementation of the DoC, and a swift conclusion to the CoC. As a pragmatic country that thinks strategically and long-term, Singapore may not have much faith in the DoC/CoC process, and almost certainly places a good deal more emphasis on the importance of maintaining a stable balance of power in Asia undergirded by a strong US military presence, which Singapore enthusiastically facilitates at its ports and naval bases.

Upcoming Tests

It is hard to disagree with Philippine foreign minister Albert del Rosario when he argues that the failure by ASEAN to take action on the South China Sea undermines its centrality, unity, and credibility: “Is it not time for ASEAN to say to our northern neighbor that what it is doing is wrong and that the massive reclamation must be immediately stopped?”²⁰ Unfortunately, because of the organization’s internal dynamics, it seems unlikely that ASEAN will adopt language that directly criticizes China’s actions any time soon. But over the next year or so, several important issues will likely test ASEAN’s credibility in the South China Sea, and hence its ambitions to remain at the center of the region’s security architecture.

1. Code of Conduct: Events on the water increasingly make the CoC talks look irrelevant, especially the longer they drag on. ASEAN must make a concerted effort to persuade China that it is in everyone’s interests to hammer out a detailed code that prohibits dangerous behavior, freezes the status quo, and lowers tensions. If China’s preference is to create a symbolic code that lacks teeth, ASEAN members should refuse to sign it.

2. Freedom of Navigation and Overflight in the South China Sea: The construction of airstrips on Fiery Cross and Subi reefs, and their ability to accommodate fighter aircraft and surveillance planes, raises the prospect that Beijing might declare an Air Defense Identification Zone (ADIZ) over the Spratlys. When China controversially established an ADIZ over parts of the East China Sea in November 2013, a month later ASEAN—via a joint statement with Japan to commemorate 40 years of diplomatic engagement—issued a mild rebuke to China by underscoring the importance of enhancing cooperation to ensure “freedom of overflight.”²¹ ASEAN needs to go a step further and pre-empt a South China Sea ADIZ by telling Beijing that it would regard such a move as destabilizing and an infringement of freedom of navigation in Southeast Asia. If China goes ahead anyway, ASEAN should protest in the strongest possible terms. Similarly, if China declares 12 nautical mile territorial waters around 4 of the semi-submerged or submerged features it has reclaimed, ASEAN should reject it as in infringement of freedom of navigation.

3. The Philippine Arbitration Case: Although China has refused to participate officially (though it is participating unofficially by issuing a position paper in December 2014, and the PCA is treating it as a non-participating participant) in the arbitration case brought by the Philippines in 2013, the Permanent Court of Arbitration (PCA) is currently deliberating, and a judgement is expected in mid-to-late 2016 (though it is eminently possible that it will take the judges much longer to reach a decision). ASEAN has not supported the Philippines in its legal endeavor, but if the PCA rules that the nine-dash line is incompatible with UNCLOS, it must endorse this decision, given that the DoC calls on parties to resolve their jurisdictional disputes in the South China Sea in accordance with UNCLOS. ASEAN needs to show it is on the side of international law, not arbitrary lines drawn in the sea.

By pushing China on the CoC, opposing a Chinese ADIZ over the South China Sea, and supporting the decisions of the PCA, ASEAN would surely vex China. But if it does not, its credibility will be in tatters. After twenty years of wasted opportunities, ASEAN has a chance to redeem itself over the South China Sea. For its own sake, and the sake of regional stability, it should take this opportunity.