ASEAN and the South China Sea

Tuesday, July 12, 2016, is an important day for ASEAN because the Permanent Court of Arbitration (PCA) issued a legal edict on the South China Sea. Why is this considered important? The solidity of ASEAN will be tested in responding to this most recent development in the South China Sea.

Facts show that ASEAN failed to issue a joint statement on the South China Sea at the ASEAN Summit in July 2012 in Phnom Penh. In this case, Cambodia, as the ASEAN chair and ASEAN Summit host, played an important role in this failure. This happened because of China's intensive approach toward Cambodia.

A similar incident happened again in the ASEAN-China Special Meeting in Yuxi, Junnan province, held from June 13 to 14. Laos, the new ASEAN chair, and Cambodia, objected to the content of the press communiqué on the South China Sea, thus the document was withdrawn again. This difference in attitude between ASEAN member countries could diminish the concept of ASEAN's centrality in the Southeast Asian region, which is positioned on the platform of the integrity of ASEAN's stance. Therefore, how Laos, as ASEAN chair, handles and manages the ASEAN position in response to the PCA decision, has attracted a lot of global attention.

PCA decision

Whatever decision arrived at by the PCA, presided over by Judge Thomas A Mensh and assisted by four other judges, would certainly be rejected by China. Since its inception, China has shown its basic stance. A verbal note sent by China to the PCA on Aug. 1, 2013, stated that the PCA did not have jurisdiction over problems in the South China Sea and China would reject its decision.

Ouyang Yujing, director general of border and maritime affairs issues, clarified and explained explicitly that Chinese sovereignty over the islands, coral reefs and marine areas in the South China Sea was not determined by an international organization. Therefore, according to Yujing, the PCA had no right to issue any legal edict on the issue of sovereignty and had no right to decide the extent of China's maritime rights.

Meanwhile, Western countries, such as the UK and the US, have urged China to respect and comply with the PCA ruling. China's rejection of the PCA's legal ruling is considered able to undermine the credibility of UNCLOS. Indeed, as admitted by Paul Reichler, a lawyer for the Philippines at the PCA, the PCA is not as strong as the International Court of Justice (ICJ), which has the authority to enforce its legal decisions.

Unlike the ICJ, the PCA does not have the authority set out in Article 94 of the UN Charter, which gives the right to the party being harmed by other parties that are not complying with the court's decision to take the matter to the UN Security Council (UNSC). In turn, the UNSC provides a recommendation or takes the steps necessary to ensure the implementation of the court's decision.

Paul Rechler believes that rising international pressure on China will be able to soften its very stiff stance. Therefore, the reactions of countries other than those in dispute are important because they can have a significant influence.

Meanwhile, the position of China in terms of the PCA is very firm and inflexible. China states that the PCA does not work in accordance with the law and is tarnished by illogical and erroneous matters in implementing evidence, law and procedures. In a telephone conversation with US Secretary of State John Kerry, which was leaked to Beijing People's Daily, Chinese Foreign Minister Wang Yi said that any PCA decision that disregarded the law and facts would itself be not legally binding.

Military exercises

While statements continue to be exchanged by the parties in dispute over the South China Sea, the US and the Philippines are conducting joint military exercises around the Spratly Islands. Several destroyers from the US Seventh Asia Pacific Fleet were moved closer to the Spratly Islands. The US-Philippine joint exercise has been criticized by the Chinese mass media as an effort to militarize the Southeast Asian region inspired by a Cold War mentality.

In response, China is also conducting war games around the Paracel Islands, deploying numbers of war ships to demonstrate its military strength. If this continues, it will exacerbate Sino-American rivalry in Asia, which would have a wider tactical and strategic impact. If this is not properly managed, the situation could change from a fight over legal arguments about the South China Sea into a calculation of military capabilities, which would be dangerous.

China could, at some time, announce an air defense identification zone (ADIZ) over the South China Sea, as has been carried out in the skies over the East China Sea. Or it could build a military base on one of the islands in the South China Sea, which would exacerbate the situation.

The potential tensions in Southeast Asia post-July 12, 2016, according to Hugh White from the Australian National University, would be determined by several things. First, China's willpower to exert its influence and to what extent China was willing to damage the political, security, social, cultural and military landscape that had been organized in Southeast Asia. Second, the willpower of the US in its response to China's determination to play in the Southeast Asian theater. And third, how ASEAN responded to the PCA's legal ruling.

For ASEAN, the problem of the South China Sea is not new. Fourteen years ago, ASEAN succeeded in announcing the ASEAN 2002 Declaration on the Conduct of Parties in the South China Sea (DOC). Despite many criticisms, the DOC has been binding on all parties involved in South China Sea issues, both ASEAN member countries and China, for a set of principles that have become a solid basis for future agreements, such as the willingness to negotiate the Code of Conducts in the South China Sea.

The role of ASEAN

For ASEAN, the South China Sea has a strategic factor. Aside from being a major global economy and energy shipping route, it also provides the sea lanes between the Southeast Asian islands. Therefore, the security and stability of the South China Sea not only constitutes a regional need but is also essential for sustainable development in the region.

The PCA decision to issue a legal ruling on the South China Sea is a challenge for ASEAN. Will ASEAN be able to mobilize its collective agreement to act firmly on the PCA decision? Can the collective agreement achieved in Sunnylands, in February 2016, be repeated as an assertive stance by ASEAN? Or will ASEAN need to move a step backward from an agreement that has already been achieved? Should ASEAN issue a collective statement in line with China's desires? Or is ASEAN ready to meet China's demand to issue no statement at all?

These questions need to be answered by ASEAN to eliminate doubts over its position on the South China Sea. Indeed, not all members of ASEAN are claimant states, only Vietnam, the Philippines, Malaysia and Brunei Darussalam. The other six countries can take the initiative to find solutions that emphasize a peaceful resolution. The responsibility of Laos as ASEAN chair is significant in leading to a collective agreement.

Nevertheless, there are specific factors about Laos. First, Laos is a land-locked state so its approach on maritime issues can be questioned. Second, China is the biggest foreign investment country in Laos and its major trading partner. Third, this year is the 25th anniversary of the ASEAN-China Partnership Dialogue. As ASEAN chair, Laos is trying to successfully commemorate this anniversary. And fourth, US President Barack Obama will hold a bilateral visit to Vientiane at the end of 2016. This will generate great interest in improving relations between the two countries.

The unity and integrity of ASEAN is a major key for ASEAN maneuvers post-July 12, 2016. ASEAN unity will more or less depend on the ability of Laos, as ASEAN chair, to maintain balance and negotiate the interests of big countries in the South China Sea. Nonetheless, there is still an opportunity for Indonesia, as the largest country in ASEAN, to play its role in encouraging the resurgence of ASEAN centrality. As there has been a change in the Philippine's national leadership, Indonesia has the opportunity to encourage a meeting between Chinese president Xi Jinping and the president of the Philippines, Rodrigo Duterte, to conduct a dialog in search of a deal. Rather than being actively involved in any confrontational conflict, it is better for ASEAN to encourage the parties in dispute to conduct a dialogue and cooperate so that it can guarantee the ongoing security and stability of Southeast Asia.

by Makarim Wibisono

source Kompas, Wednesday, July 13, 2016