A lack of consensus meant a muted response to Chinese aggression at the ASEAN summit

Asean National Flags in JakartaAsean National Flags in Jakarta. Photo courtesy Wikimedia user Gunawan Kartapranata

The ASEAN Summit in Singapore did little to progress the South China Sea dispute. A solution agreeable to both parties must come in the near future.

Editorial

The South China Sea dispute looked set to feature prominently in the 32nd ASEAN Leaders Summit in Singapore. The world watched, expecting ASEAN to outline its formal position. But when the Chairman’s Statement came, it offered little in the way of progress.

On April 20th, ASEAN officials created a Zero Draft Statement on the dispute. The statement included seven points for a possible ASEAN response to Chinese aggression. They included reaffirming the commitment to freedom of navigation and conducting “candid discussions”. The Zero Draft Statement called for the “full respect for legal and diplomatic processes”.

However, six of the seven points were deleted

The wording of the Zero Draft Statement received 16 interventions from ASEAN members. Cambodia lodged the most complaints with the draft, filing seven interventions. The Philippines lodged three. Vietnam and Malaysia filed two each.

Only one point from the Zero Draft Statement featured in the summit’s Chairman’s Statement. There was no mention to the Arbitral Tribunal or the pursuit of legal proceedings. The deletion of the six points was in the interest of consensus. But in seeking a consensus, ASEAN stripped away at the potency of the message. The result was a subdued response to aggressive Chinese militarisation.

Beijing is increasing its military presence in the region

China’s militarisation of the Spratly and Paracel Islands has been relentless. It created seven man-made, heavily fortified islands. The islands feature defence measures including deep-water piers and military-grade airfields. The most recent addition to the defences was state-of-the-art communications jamming equipment.

Beijing is also in the midst of a campaign of military modernisation. It is in the process of integrating stealth fighters into its air fleet. It is also constructing a second aircraft carrier. In March, Beijing sent fighter jets, with bombers, on training exercises over the South China Sea. A spokesman for the Chinese government labelled the exercises, “rehearsals for future wars”.

Another recent military exercise saw 40 ships carry out naval drills in the South China Sea. This is a significant escalation. The scale of the drills was a signal that Beijing was not only using its fleet of ships garrisoned in the East. China brought vessels in from the north and south to join the exercise.

There are also signs of further militarisation in the future. China has installed positions for surface-to-air missiles and anti-ship missiles. Beijing has not deployed the missiles to the Spratly Islands yet, but the facilities are now in place.

China’s military build-up in the South China Sea violates international law

China’s military presence on the islands is in direct violation of international law. In 2013, the Permanent Court of Arbitration (PCA) declared that Beijing cannot claim sovereignty over the disputed region. It stated that China’s military build-up was in breach of the sovereign rights of the Philippines. As both the Philippines and China are signatories to the United Nations Convention on the Law of the Sea Treaty (UNCLoS), the PCA ruling is legally binding. China’s military constructions in the Spratly Islands are illegal under international law.

However, there are no enforcement mechanisms in place for the PCA ruling. The US and Russia have ignored the UNCLoS in the past. There is no enthusiasm to press China’s compliance from the global superpowers.

ASEAN has a troubling question at hand. It must find a solution to prevent further Chinese military aggression. But how can it do that when Beijing has already expressed contempt for international law?

A legally binding Code of Conduct would be a solid foundation

ASEAN leaders have agreed to work together to devise a Code of Conduct (CoC) regarding the South China Sea. Singapore’s Prime Minister Lee Hsien Loong reported that the CoC negotiations started in March.

If the CoC is legally binding, it could provide a set of regulations to dictate marine conduct in the region. China has often declared it does not honour the PCA ruling. The CoC must devise another set of legal boundaries for its foundation.

The code’s objective should be clear: to de-escalate tensions. This is the only way all parties could agree to its content and find common ground. A CoC cannot include territorial disputes within its scope. It should only pertain to maritime conduct. It must also clearly define militarisation and the CoC’s geographical boundaries. Finally, there must be a mechanism for enforcement. This was where the PCA ruling fell. It had no scope for enforcement and allowed China to disregard the ruling.

The enforcement of the ruling could be the largest source of disagreement. To make the agreement enforceable, ASEAN will likely have to involve third parties. The bloc does not have the military might to deter Chinese militarisation alone. The inclusion of the international community could occur as an enforcement mechanism. This will be difficult for China to accept.

But it is in both parties’ interests to find common ground and devise a CoC. Neither China nor ASEAN wants to see international players involved in the dispute. For China, it runs the risk of military confrontation with the US. For ASEAN, its inability to solve a dispute in its waters would undermine its relevance.

The road to a Code of Conduct will be long. A rushed and incomplete document would be ineffective. It will also undermine ASEAN’s relevance. The door would then be open to foreign interference, which would benefit nobody.

Meticulous rounds of negotiation and carefully worded clauses will take time. But both parties have a common objective: to keep the dispute confined to ASEAN and China. This will be a starting point down the road to stability.