ASEAN Should Not Compromise On Rule Of Law And COC – Analysis

The leaders of the Association of Southeast Asian Nations (ASEAN) will face a fundamental test over how to deal with the ongoing strategic rivalry between two major powers – China and the United States – while maintaining peace in the region with a rules-based regional order when they gather for the 34th ASEAN Summit in Bangkok this weekend.

The ASEAN Summit, which will be held in the beautiful city of Bangkok from June 22-23, comes at a crucial time when the whole world is facing the consequences of a major strategic rivalry between the two global powers.

The world is changing fast with, according to US analysts, the world’s most populous nation with the second-biggest economy and military power China trying to establish hegemony, challenging the supremacy of the US.

The ongoing trade war between China and the US, which US President Donald Trump’s former aide Steve Bannon calls an “economic war”, the issues of unilateralism, protectionism and increasing tensions in the South China Sea (SCS) – a major strategic waterway and one of the world’s most unpredictable geopolitical fault lines – are affecting the whole world. These are the direct outcomes of a major strategic constellation or competition between the two great powers.

“As the Asia-Pacific ascends in geopolitical importance and gravity, the strategic-interest contest also becomes more and more intense,” Vietnam’s Defense Minister Gen. Ngo Xuan Lich said recently at this year’s Shangri-La Dialogue in Singapore (SLD), Asia’s premier defense summit.

“The fact is, competition is now developing with complexity and at a higher level, globally and regionally, expanding to numerous domains ranging from politics, diplomacy, economy, trade, resources, environment, sovereignty, territorial integrity including sea and island, cyberspace, national interest, religion, to name just a few – involving both traditional and non-traditional issues”.

What should ASEAN do to deal with this situation?

An Indonesian expert has called for immediate action from ASEAN leaders.

“Strategic changes in the region are taking place at an unprecedented speed. If not managed carefully, the implications of those changes could be devastating for the region. Indonesia and ASEAN need to work fast to find a common ground to address them,” Indonesia’s renowned analyst and ambassador to the United Kingdom, Rizal Sukma, wrote in an op-ed article in the English-language daily The Jakarta Post recently.

The tensions in the SCS ratcheted up again on June 9 when a Chinese fishing vessel sank a Philippine fishing boat – F/B Gem –Ver 1 – in a collision in the Reed Bank near the Recto Bank, an area that is located in the Philippines’ exclusive economic zone (EEZ) in the SCS. The sinking left 22 Filipino fishermen floating at sea until a Vietnamese fishing boat rescued them.

Instead of rescuing the fisherman, as per international maritime convention, the Chinese vessel simply left the scene, an act that was condemned by the Philippines.

ASEAN leaders must act swiftly to speed up the negotiations to create rule-based mechanisms to avoid this kind of incident in the waters of the SCS.

The biggest threat to ASEAN’s security and peace comes from the SCS conundrum and China’s assertive and unilateral actions in the contested waters of the SCS, a sea rich in energy and fishery resources. Around US$5 trillion worth of goods in some 100,000 vessels pass through this strategic waterway every year.

Based on a controversial nine-dash line on a map, China claims almost 90 percent of the 3.5 million square kilometers of SCS maritime area. Vietnam, the second-biggest claimant after China, claims the Paracel and Spratly islands, which are also claimed by both China and Taiwan. China claims certain areas located in the EEZs of Malaysia, the Philippines, Brunei Darussalam and Indonesia. All these countries have overlapping claims over other claimants.

The crux of the problem is that China, the major claimant and a signatory to the 1982 United Nations Convention on the Law of the Sea (UNCLOS), is claiming a huge portion of area not based on international law but on historical grounds.

The Philippines even took China to international arbitration over the Scarborough Shoal and won the case in 2016. The Hague-based Permanent Court of Arbitration (PCA), in a landmark ruling, rejected all the arguments of China based on the nine-dash line. It said all countries must uphold the provisions of the UNCLOS. China has chosen not to abide by the PCA ruling.

Given the unequal status among claimants, China’s building of artificial islands and militarization of the SCS as well as the entry of major powers to enforce freedom of navigation and free passage of overflight in the contested waters have caused the issue to become more complicated and globalized.

While claiming that the US is not an outsider but a resident power in the Indo-Pacific region, US Acting Secretary of Defense Patrick Michael Shanahan said that an Indo-Pacific region that is free and open figures high in the US strategic vision.

“Our geographical focus, the priority theater of our strategy is right here, in the Indo-Pacific,” Shanahan said at the Shangri-La Dialogue (SLD) recently in Singapore. He unveiled a new vision for the region.

He stated that “the Free and Open Indo-Pacific vision is an effective guide for regional contributions because it is based on enduring principles of international cooperation:

• Respect for sovereignty and independence of all nations, large and small;
• Peaceful resolution of disputes;
• Free, fair, and reciprocal trade and investment, which includes protections for intellectual property; and,
• Adherence to international rules and norms, including freedom of navigation and overflight.”

China suspects that the main purpose of the new US Indo-Pacific vision is to challenge Beijing’s maritime ambitions in the SCS and other geopolitical ambitions. The showdown between the two major powers is a major headache for ASEAN countries.

Finding an acceptable solution to a complicated issue like the SCS is very difficult. But what is most important is how to prevent unexpected and unilateral actions that may lead to conflict in the SCS.

After a lot of international pressure and criticism on one side and as a result of the growing strategic ties with ASEAN members, China agreed to a mechanism called the Declaration on the Conduct of Parties in the South China Sea (DOC) in 2002.

But the DOC is not effective as it is not a legally binding document. Several violations have occurred and nobody has been punished. That is why ASEAN wants a legally binding Code of Conduct (COC) in the South China Sea to prevent flare-ups. China and ASEAN have been negotiating the draft of the COC since March 2018.

The first and foremost duty of ASEAN leaders will be to maintain ASEAN unity and centrality. It should be in the driving seat in all regional initiatives.

ASEAN leaders must work hard to speed up the COC negotiations but should not compromise on the quality of such a document as the DOC.

“An early conclusion of a meaningful, substantive, abiding and effective COC would contribute significantly to preserving peace, stability, freedom, security, and safety of navigation and overflight in the East Sea [Vietnam calls the SCS the East Sea]. What we really want is concerned parties and stakeholders inside and outside the region to work to prevent risks and conflict,” minister Lich said.

ASEAN’s de-facto leader Indonesia, as well as Vietnam, Malaysia, Singapore and other ASEAN countries want the SCS issue to be resolved through peaceful negotiations and be based on international law, especially UNCLOS. Militarization and all provocative acts must be stopped immediately.

Indonesia, which seeks a stable and resilient regional architecture, says there is an urgent need for mutual trust among all stakeholders.

“Indonesia brings forward the concept of peacekeeping by building cooperation and mutual trust,” Indonesian Defense Minister Ramizard Ryacudu said at the SLD.

It is time for ASEAN leaders to speak with one voice about a rules-based regional order and a strong and effective COC to secure peace and prosperity in the region.