The 2017 ASEAN Summit and Duterte’s missed opportunity

Duterte celebrated the success of the 2017 ASEAN Summit. He believed ASEAN was closer to a solution in the South China Sea. The reality was quite different.

By Oliver Ward

The Philippines hosted the ASEAN Summit on 13 and 14 November. In his address, Filipino President Rodrigo Duterte made a Chairman’s Statement. He announced that China representatives would negotiate for a Code of Conduct (COC). It is to settle the South China Sea territorial disputes. Beijing said it would begin negotiations in early 2018.

He called the COC framework “an important step toward the conclusion of an effective COC.” A COC will not be enough to deter Chinese construction in the disputed waters.

China made a similar promise last year

Four ASEAN nations have claims over the South China Sea. The nations include the Philippines, Brunei, Vietnam and Malaysia. For them, China’s promise of future COC negotiations does not represent progress in solving the South China Sea dispute. They have seen the same promise before.  At the 2016 ASEAN Summit, Chinese officials made the same assurance.

This year’s ASEAN Summit Statement represents a step backwards. For the first time in years, the statement did not express disapproval or concern over Chinese activities in the disputed regions.

Chinese officials have celebrated the statement. A Foreign Ministry Spokesman said Duterte’s statement “accurately portrayed the current situation.”

Why control of the South China Sea so valuable?

Source: Digital Trends

Duterte missed an opportunity

The 2017 ASEAN Summit was an opportunity to hold China accountable for its illegal construction projects. In 2016, The Hague rejected Beijing’s claims to the sea. It upholded the Philippines claims instead. As the hosts, the Philippines was also in a strong position to lead discussions on the issue.

Duterte took a step back. He did not raise the subject. He waited for China to lead the discussion. Duterte called discussing the issue at the ASEAN Summit “pointless”. Four of the 10 ASEAN nations hold claims to territory in the South China Sea. Indonesia also claims fishing rights in the disputed region.

An effective Code of Conduct must be legally binding

A Code of Conduct for the South China Sea would consist of a negotiated set of rules. These rules would regulate the conduct of all claimant states. ASEAN negotiated something similar in 2002. The Declaration on the Conduct of Parties in the South China Sea (DOC) called on parties to “exercise self-restraint” and “refrain from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features.”

Beijing ignored the DOC in 2002. China continued to construct on the disputed reefs and islands. This time around, there must be penalties for nations who ignore the COC. If there are no legal penalties, China will continue to construct military fortifications. It will increase inhabitation of the disputed regions.

Beijing would prefer the COC to have no legal underwriting. It wants to deal with claimants individually. That way, it can use economic incentives to soften the rival claims.

After the ASEAN Summit closed, China signed 14 new trade deals with the Philippines. It also donated P1.1 billion (US$21.6 million) for the reconstruction of Marawi. There are plenty of economic incentives for Duterte to soften the Philippines territorial claims. Malaysia has also adopted a quieter position. It stands to benefit from China’s One Belt One Road initiative.

Vietnam is one of the countries calling for a legal framework to the COC. Xi Jinping has already turned his attention to silencing Vietnam. Days before the ASEAN Summit, he called on Vietnam to work with China to find a solution to their competing claims.

The court arbitration from the Hague could form the legal underwriting

The 2016 court arbitration would offer a strong legal basis for a COC. It is unlikely to materialise. The arbitration is only between the Philippines and China. The rival claimants would also need to negotiate their own legal framework.

Duterte and the Philippines would need to press the issue. Duterte’s conduct at the ASEAN Summit indicates that he has no appetite for this. Currently, the Philippines is among the countries supporting a legally-binding COC. Whether Duterte holds this line in the face of Chinese resistance remains to be seen.

Any legal regulation that does not include the 2016 arbitration will bury the ruling under new regulation. This will severely mitigate the Filipino claims. It will also undermine the 2016 arbitration.

Beijing is employing delaying tactics

Beijing has its reasons for agreeing to open COC negotiations. It wants to show itself to be making concessions and smoothing over discontent in the region.

Beijing wants to keep the US government out of the South China Sea issue. The Chinese government is concerned by Donald Trump’s recent offer to mediate on the dispute. The US also deployed a destroyer near the Chinese-claimed Spratly Islands in May.

Beijing ended the fishing blockade around the disputed Scarborough Shoal after the 2016 arbitration. Now they are using the vague promise of COC negotiations to smooth over the situation in a similar way. China wants to maintain the status quo. It is hoping to avoid criticism from ASEAN, and prevent US intervention. Beijing hope to achieve these goals by hinting at imminent COC negotiations,

To find a lasting solution, ASEAN must use its collective bargaining power

It is essential ASEAN nations insist on a legally binding COC. It should explicitly define penalties for breaking its terms.

The Philippines, Malaysia and Brunei must harden their attitudes. They must join Vietnam in calling for a legally binding COC.  Together, ASEAN has a voice with economic and military clout. The Philippines missed an opportunity to present a tough, united front. Before any COC negotiations, ASEAN needs to formulate a cohesive negotiation strategy. Without one, the claimant nations risk being beguiled by Chinese charm.