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South China Sea: ASEAN Adept at Conflict Avoidance; By Carlyle A. Thayer

Image Courtesy: GMA News Online

Article No. 39/2019

Courtesy: Carlyle A. Thayer, “South China Sea: ASEAN Adept at Conflict Avoidance,” Thayer Consultancy Background Brief, August 05, 2019

A report was prepared regarding ASEAN Foreign Ministers’ events of the past week. It seems there was a strong but optimistic South China Sea and Indo Pacific “outlook” language in their statement from the events. (Bied:

Q1. Would you be able to share your assessment? Basically, what’s new and/or remarkable when it comes to language on the South China Sea? ASEAN statement do not mention China or the U.S. Do you see any oblique references to them?

ANSWER: ASEAN is a creature of habit and follows a carefully scripted path when issuing a joint statement by the Chair after the annual meeting of Foreign Ministers. For example, ASEAN never refers to the Arbitral Tribunal Award by name in the case against China brought by the Philippines. ASEAN just does not want to weather the blast that would come from Beijing. ASEAN has developed the verbal circumlocution by referring to the Tribunal’s Award as “legal and diplomatic processes.” This phrase was taken out of the section on Regional and International Issues and Developments that appears towards the end of the Chairman’s Statement following a summit meeting, and moved forward to the very first section to emphasize its importance. The Chairman’s Statement following the 34th ASEAN Summit observed this convention in paragraph three:

We reaffirmed our shared commitment to maintaining and promoting peace, security and stability in the region, as well as to the peaceful resolution of disputes, including full respect for legal and diplomatic processes, without resorting to the threat or use of force, in accordance with universally recognized principles of international law, including the 1982 United Nations Convention on the Law of the Sea (UNCLOS).

The Chairman’s Statement follows precedent and includes two paragraphs on the South China Sea in the section headed Regional and International Issues and Developments. The first paragraph is invariably upbeat and positive about relations with China. The wording in this section is altered to reflect progress made since the last ASEAN Summit. For example, after reasserting “we warmly welcomed the continued improving cooperation between ASEAN and China…” the Chairman’s Statement included this update, “We welcomed efforts to complete the first reading of the Single Draft COC Negotiating Text by this year.”

The Joint Communique of the 51st ASEAN Foreign Ministers’ Meeting (AMM) held in Singapore on 2 August 2018 repeated the paragraph on “legal and diplomatic processes” in its third point.

The Joint Communique also included two paragraphs on the South China Sea in itssection headed Regional and International Issues.  This paragraph updated recent positive developments in ASEAN-China relations. For example, it took note that ASEAN members and China had reached agreement on a Single Draft COC Negotiating Text at the 15th Senior Officials’ Meeting on the Implementation of the Declaration on Conduct of Parties in the South China Sea held in Changsa on 27 June. The ASEAN Foreign Ministers approved the Single Draft COC Negotiating Text on 3 August.

The first paragraph also took note of the successful testing of the hotline between ministries of foreign affairs of China and ASEAN members to manage emergencies in the South China Sea. And the ministers took note of the operationalization of the Joint Statement    on the Application of the Code for Unplanned Encounters at Seas (CUES) in the South China Sea adopted on 7 September 2016.

The second paragraph of the Joint Communique repeated previous formulations that the ministers discussed the South China Sea “and took note of some concerns on the land reclamations and activities in the area, which have eroded trust and confidence, increased tensions and may under peace, security and stability in the region.”

Q2. What changed in the year following the 51st AMM?

The Joint Statement of the 52nd AMM repeated past practice and retained the paragraph on “legal and diplomatic processes” unchanged in point three.

Following past practice, the Joint Statement included the standard two paragraphs onthe South China Sea in the section on Regional and International Issues.

The first paragraph retained its upbeat assessment of ASEAN-China relations. There were subtle textual changes, however. These are highlighted in italics in the following passages: The ASEAN ministers welcomed “the early conclusions of an effective and substantive Code of Conduct in the South China Sea (COC) within a mutually-agreed timeline. We welcomed efforts to complete the first reading of the Single Draft COC Negotiating Text by this year. We emphasized the need to maintain and promote an environment conducive to the COC negotiations…”

Significantly, the Joint Communique attached the following to the last sentence of the first paragraph, “and we reaffirmed the importance of upholding international law, including the 1982 UNCLOS.”

The wording of the second paragraph was altered to reflect heightening concerns over China’s recent intrusion into Vietnam’s Vanguard Bank (and possibly concerns by Malaysia and the Philippines as well). The Joint Statement now read: “We discussed the situation in the South China Sea, during which concerns were expressed by some Ministers on the land reclamations, activities and serious incidents in the area.”

ASEAN does not call out the major powers by name, including China and the United States, in the Chairman’s Statement following a summit meeting or in its joint statements following its AMM. ASEAN does issue separate statements after bilateralmeetings with its various dialogue, sectoral and development partners.

ASEAN concerns on the South China Sea are muted but appear in subtle changes to the wording of its AMM joint statements. For example, the Joint Statement of the 52nd AMM called for a substantive COC and the promotion of an environment conducive to COC negotiations. This statement also took note of “serious incidents in the area.”

These alterations indicate ASEAN members’ concern that much work needs to be done on the Single Draft COC Negotiating Text after its first reading. More significantly, concerns about China’s recent behaviour were alluded to, indicating that China’s actions were not only undermining the environment for COC negotiations but China’s behaviour had caused serious incidents.

To the outside observer ASEAN’s response appears seriously wanting. It is no over exaggeration to point out China has put three ASEAN members under duress by using intimidation and “grey area tactics” against Vietnam, Malaysia and the Philippines. China has intruded into Vietnam’s Exclusive Economic Zone to illegally conduct seismic surveys, fired high-pressure water cannons at Vietnam Coast Guard ships and crossed their bows at high-speed, and harassed an oil exploration vessel. Chinese fishermen and maritime militia have swarmed around the Philippines’ Thitu island to prevent Filipinos from fishing in their own territorial sea. And a China Coast Guard vessel has harassed Malaysian service vessels at Luconia Shoal.

ASEAN may be adept at conflict avoidance but this comes at the cost of undermining international law, including UNCLOS, and the sovereign rights of ASEAN members to the marine resources in their lawful Exclusive Economic Zones and continental shelves.

[Carlyle A. Thayer is an Emeritus Professor at the University of New South Wales, Australian Defence Force Academy, Canberra. The views expressed are his own. Thayer Consultancy provides political analysis of current regional security issues and other research support to selected clients.]

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