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"Rule of Law in the South China Sea: Where does ASEAN Stand?", a Commentary of by Hoang Thi Ha

Commentary 2016/35, 26 July 2016

After the disappointment at ASEAN’s failure to issue its collective statement on the landmark arbitration ruling on the South China Sea (SCS), its hopes for a joint position hinged on the 49th ASEAN Foreign Minister Meeting (AMM) on 24 July in Vientiane. With the presence of the Foreign Ministers, it was hoped that the power of persuasion, peer pressure and the need to display some semblance of ASEAN unity would offer a face-saving remedy for the grouping. Such hope was not met as we read the Joint Communique (JC) of the AMM which was released today (25 July).

The SCS formulation in the Joint Communique is a standard ASEAN position that could be found in its previous statements. It has all the key elements of a textbook ASEAN response: concerns over the situation on the ground, importance of peace and freedom of navigation, a call for self-restraint, peaceful settlement of disputes in accordance with international law, implementation of the Declaration on the Conduct of Parties (DOC) and talks on a code of conduct (COC). The formulation would have been a mid-way solution in normal circumstances. However, this is an extraordinary time when the stakes are high for ASEAN unity and centrality as well as for peace and stability in the SCS in the wake of the arbitral tribunal ruling.

ASEAN has all the good reasons not to shy away from mentioning the ruling, not least because respect for justice and the rule of law in inter-state relations is a fundamental principle in the founding Bangkok Declaration and the ASEAN Charter. The ruling, which clarifies the interpretation and application of the provisions of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) regarding the status of features and maritime entitlements in the Spratlys, could also serve as an implicit yet useful reference for the DOC and COC process, especially in terms of the geographical scope of the disputes.

The reputational cost to its credibility would be high if ASEAN fails to be heard. However, as is often the case these days, ASEAN collective interest gave way to national imperatives of some ASEAN members that buckled under pressure from China. The ruling unsurprisingly failed to find its way into eight paragraphs on the SCS in the JC.

The issue of an ASEAN position on the ruling had been intensively debated among the member states long before the arbitral tribunal released the award. The Sunnylands Declaration of the ASEAN-US Special Leaders’ Summit and the Press Statement of an ASEAN foreign ministers retreat in February this year introduced a new element of “full respect for legal and diplomatic processes”. It is thus far the closest ASEAN can get to relate to the arbitration case. However, this important phrase was moved to another part in the JC to water down its significance in the SCS context – a delicate switch that betrays an arduous negotiating process under intense pressure.

Upholding international law can be claimed as a principle but cannot be clarified by ASEAN in specific manifestations. There is no question that the rule of law is most cherished by ASEAN, being a key component of its soft power. ASEAN has also been seeking to build a rules-based order to balance realpolitik in the region. And yet, ASEAN’s advocacy for the rule of law is under duress in the face of the rule of might.  

Hoang Thi Ha is Fellow at the ASEAN Studies Centre, ISEAS – Yusof Ishak Institute.

The facts and views expressed are solely that of the author/authors and do not necessarily reflect that of ISEAS – Yusof Ishak Institute.  No part of this publication may be reproduced in any form without permission.