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For the past two decades, the Association of Southeast Asian Nations (ASEAN) has played a vaguely relevant role in managing the South China Sea disputes. To this end, the regional body has consistently called for a peaceful resolution of maritime spats in accordance to international law, foundational regional principles, and a whole host of conciliatory accords between Beijing and its Southeast Asian rivals.
The only exception was under Cambodia’s chairmanship (2012), when the host member controversially blocked the discussion of the disputes to the chagrin of its neighbors. Nonetheless, the ASEAN’s crowning achievement was the Declaration of the Conduct (DOC) of Parties in the South China Sea in 2002, the upshot of five-years of negotiations following the 1997 Joint Statement of the Meeting of the Heads of State/Government of the Member States of ASEAN and President of the People’s Republic of China.
The DOC, however, was not legally-binding and only rhetorically encouraged parties to refrain from provocative and aggressive behavior. Thus, the ASEAN and China agreed to eventually move towards a legally-binding Code of Conduct (COC) to facilitate a more definitive resolution of the South China Sea disputes. And yet, the two parties are yet to agree on the precise details of the agreement beyond a generic draft riddled with semantics rather than specific legal principles.
As a result, many have questioned ‘ASEAN centrality’ in recent years. Rising maritime tensions in recent months, however, has encouraged the regional body to take a tougher stance on the disputes. This was most apparent in the ASEAN’s unprecedented statement regarding the precise legal basis for management and resolution of the South China Sea spats.
Inflection Point
Ahead of its ASEAN chairmanship this year, Vietnam signaled a tougher stance, including its increasingly public threat to take China to international courts. In particular, Vietnam’s Deputy Foreign Minister Le Hoai Trung raised the possibility of “arbitration and litigation measures” to settle maritime spats in the South China Sea, arguing “The UN Charter and UNCLOS [the United Nations Convention on the Law of the Sea] have sufficient mechanisms for us to apply those [legal] measures.”
During my visit to Hanoi earlier this year, top officials reassured me that the ASEAN will reassert its centrality on the region’s geopolitical concerns. For instance, Ambassador Pham Quang Vinh, former Vietnamese Ambassador to the United States and a key government advisor on ASEAN issues, told me[1] “We have to work with everybody [towards an optimal consensus],” including with countries such as Cambodia and Laos, which have no direct interest in the disputes and are economically dependent on China.
“We can ensure those countries [Cambodia and Laos] will participate to ensure peace and stability in the South China,” the top Vietnamese diplomat added. But the COVID-19 pandemic, which has disrupted international travel and forced regional states to impose various forms of lockdowns, scrambled Hanoi’s plans for the ASEAN this year.
The pandemic forced regional leaders to jettison in-person negotiations in favor of virtual meetings. But given the sensitivity of the South China Sea disputes, key member states, such as Indonesia, wondered about the efficacy of the summits. After all, major diplomatic breakthroughs have been a product of sustained and intimate high-level meetings, usually during informal retreats by heads of state and ministers, which are now close to impossible.
A string of incidents in the disputed waters, from China’s alleged sinking of a Vietnamese vessel to the intimidation of a Malaysian oil drillship and a Philippine warship earlier this year, seem to have galvanized key ASEAN members.
“While the entire world is stretched thin in the fight against the pandemic, irresponsible acts and acts in violation of international law are still taking place, affecting the environment of security and stability in certain regions, including our region,” Vietnam’s Prime Minister Nguyen Xuan Phuc said in his opening remarks at the 36th ASEAN Summit (June 26), standing as this year’s ASEAN chairman.
Even Philippine President Rodrigo Duterte, a leading advocate of warmer relations with China, echoed similar sentiments in his address. “Even as our region struggled to contain COVID-19, alarming incidents in the South China Sea occurred. We call on the parties to refrain from escalating tension, and abide by responsibilities under international law,” said the Philippine president.
Only weeks earlier, Duterte rescinded his earlier decision to nix a major defense agreement with the US. Top Philippine officials made it clear that the policy turnabout was driven by developments in the South China Sea. Likely inspired by Malaysia's example, the Philippines also signaled its willingness to unilaterally develop energy resources within the contested waters of the South China Sea.
Toughening Stance
Perhaps the most surprising development came from Indonesia, the ASEAN’s leading nation. Historically, Jakarta has claimed neutrality on the maritime disputes, while enthusiastically cultivating warmer economic ties with China. Amid rising maritime tensions in Natuna waters, however, the Southeast Asian powerhouse has sharpened its position in the South China Sea.
In its late-May note verbale to the United Nations, Indonesia directly rejected China’s nine-dashed line and historic rights claims in adjacent waters. “Indonesia reiterates that the Nine-Dash line map implying historic rights claim clearly lacks international legal basis and is tantamount to upset UNCLOS 1982,” said the Indonesian mission to the UN.
The Southeast Asian country upped the ante by invoking, for the very first time, the 2016 arbitral tribunal ruling at The Hague, which nullified China’s expansive claims in adjacent waters. Adding, "This view has also been affirmed by the Award of 12 July 2016 by the Tribunal that any historic rights that the People’s Republic of China may have had to the living and non-living resources were superseded by the limits of the maritime zones provided for by UNCLOS 1982.”
During the latest ASEAN summit, Indonesian Foreign Minister Retno Marsudi, reiterated urgency of finalizing the COC in accordance to the UNCLOS.
"Negotiation among claimant countries is key. Indonesia supports continuing the code of conduct negotiation that was halted due to the pandemic," said Indonesia’s diplomatic chief, calling on the ASEAN to “be solid in their resolve to respect international law, including the 1982 UNCLOS and the decisions made by the UN Permanent Court of Arbitration."
With key regional states adopting increasingly tough positions on the South China Sea disputes, the ASEAN followed suit. In a historic departure from its usually generic statements, the ASEAN has now “reaffirmed that the 1982 UNCLOS is the basis for determining maritime entitlements, sovereign rights, jurisdiction and legitimate interests over maritime zones.” This is the first time that the regional body has clarified the precise legal framework for settlement of maritime disputes in the South China Sea.
Previously, neither the ‘outline’ nor the ‘single draft’ of the COC contained this crucial specification. Given China’s categorical rejection of the 2016 arbitral award, and its insistence on having ‘historic rights’ across adjacent waters, it’s highly unlikely that the COC negotiations will be finalized by next year. What’s certain, however, is that the ASEAN is beginning to draw the line across the disputed waters in response to China’s maritime assertiveness amid a global pandemic.
