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The Asean conundrum

The recently concluded Regional Forum of Asean Foreign Ministers seems to have wrapped up, on the surface, a way of moving toward a Code of Conduct for China and Asean member countries staking their claims on the South China Sea.

Behind the scene, however, are concerns that will be difficult to resolve.

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One is China’s obvious intent to sidestep the Hague arbitral ruling that its nine-dash-line territorial claim is a historical fiction. Its adamant insistence on bilateral agreements with the 10 member states—particularly the Philippines, Malaysia, Vietnam and Brunei—is a way of pushing its claims outside of the United Nations Convention on the Law of the Sea to which it was a signatory, and browbeat these small countries into signing away their rights under this treaty.

The incontrovertible fact is that China is bent on pressing its case regardless of legal constraints in the global system. Some time back, China’s officials reportedly told their counterparts in the United States that the South China Sea is “an area of ‘core interest’ that is as nonnegotiable” and on par with Taiwan and Tibet on the national agenda. More recently, China published a defense paper declaring that the South China Sea was an “inalienable” part of its territory, and that China “exercises its national sovereignty to build infrastructure and deploy necessary defensive capabilities on the islands and reefs in the South China Sea.”

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This intransigence bodes ill for Asean, which traditionally has tried to create a single community that speaks with one voice. “China’s behaviour and unbending assertion of its position on the South China Sea disputes show a different side of China that is worrisome for Asean,” said Singapore analyst Siew Mun Tang. Post-arbitration, the Asean’s “failure to affirm the primacy of international law in international affairs can be seen as a sign of the regional organisation’s fraying unity. At the same time, China’s ‘Trojan Horse’ tactics to break Asean consensus on the South China Sea is evidence of Beijing’s disregard for Asean centrality in managing Southeast Asian diplomatic and security issues.”

Another major obstacle is China’s demand to keep out extraregional powers. In an obvious reference to the US-Philippines defense treaty, China insists that joint military exercises with countries external to the region must have the prior consent of all parties to the agreement. Further, that in developing the sea’s resources, no country outside the region can be involved.

These arrogant demands, meant to establish China’s economic and political hegemony in the region, has posed a dilemma to Asean, particularly to its more active claimants.

For not only the Philippines, but the whole of Asean has so far been content to depend on the United States for their military security. In the meantime, trade ties with China have exponentially increased. China is now the largest foreign investor in Vietnam and Malaysia, and the third largest trading partner of this country. The Asean as a region is now the third largest trade partner of China.

This economic dependence now enables China to flex its muscles.

China in 2018 unilaterally set a three-year deadline to finalize the Code, apparently while the Philippines holds the chairmanship of Asean, which expires in 2021. It was this country that spearheaded the crafting of a Code of Conduct in 1992. China refused to make it legally binding and had the language changed to a “declaration,” and not a “code,” hence the “Asean Declaration on the South China Sea,” which was more a political rather than a legal document. A Chinese analyst explains China’s recalcitrance at the time: “Aware of its market size and bargaining power vis-à-vis Asean neighbors and oil companies, China refuses any cooperative arrangements whose terms it cannot dictate.”

With Asean now tightly in its grip, presided over by a country whose leadership is completely under its thumb, China wants to fast-track the final draft of the Code.

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In the face of such imperiousness, Asean now has to grow some institutional muscle if it is to chart a truly independent course. An unintended consequence of China’s maneuverings has been to put to question the “Asean way” of making decisions by consensus. This has proved to be problematic in light of Cambodia’s pronounced leaning toward China’s position.

Asean’s rather spineless policy of accommodation now needs to harden into a regime of rules and agreements that should bind even the big elephant in the room.

Melba Padilla Maggay, Ph.D., is president of the Institute for Studies in Asian Church and Culture.

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TAGS: China, Regional Forum of Asean Foreign Ministers, Unclos, United Nations Convention on the Law of the Sea
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