While Malaysia’s foreign minister, Anifah Aman — who had been expected at the AMM until as late as 24 July — was ultimately absent, both Aung San Suu Kyi and Perfecto Yasay, Jr participated in their first AMM as Myanmar’s minister of foreign affairs and the Philippines’ secretary of foreign affairs, respectively. Both attended amid uncertain expectations surrounding not only their official positions, but also how they would navigate discussions on the South China Sea dispute, just two weeks after the Permanent Court of Arbitration (PCA) ruled heavily in favour of the Philippines.
As it turned out, both Suu Kyi and Yasay proved able debutants, balancing national and regional interests with the typically understated nuance of seasoned ASEAN diplomats. Suu Kyi and Chinese Foreign Minister, Wang Yi, met on the sidelines of the AMM to affirm both countries’ desire to cooperate while shelving talk of contentious bilateral and regional issues. There was no discussion of the South China Sea dispute, as Myanmar is not a party to it. Yet, among ASEAN counterparts, Suu Kyi reportedly stressed a defence of ASEAN credibility and international law in line with, but also going slightly further than, her government’s take on the PCA award.
Although Yasay faced domestic criticism — including from his predecessor, Albert Del Rosario, who felt that Yasay should have pushed harder for explicit mention of the PCA ruling in the AMM joint communique — the Philippines still got effectively what it wanted. Claimants recommitted to the peaceful processes of dispute resolution, in accordance with universally agreed principles of international law, including the 1982 United Nations Convention on the Law of the Sea (UNCLOS). All this was achieved without naming or shaming any one country and without deviating from the language of previous ASEAN statements.
The PCA ruling of course provided an opportunity for ASEAN claimants — through the Philippines — to push back with a brand new stamp of legal authority against China. So when the AMM eventually decided to remain silent on the ruling, it signalled to critics yet another example of an increasingly divided ASEAN soon after the debacle of the Special ASEAN–China Foreign Ministers’ Meeting in Kunming in June. After all, there had been earlier reports of obstruction to any reference of the ruling even prior to the AMM. This legitimately gave rise to concerns that the long shadow of the stalemate during Cambodia’s chairmanship of ASEAN in 2012 would similarly eclipse Laos.
In reality, ASEAN unity on the South China Sea, which was at risk of fraying even further, may have just been salvaged, albeit in characteristically banal ASEAN fashion. Twenty pages into the AMM joint communique, the ministers referred, without a hint of irony, to the affirmation of international law including the United Nations Charter, the Treaty of Amity and Cooperation (TAC), the Declaration on the Conduct of Parties in the South China Sea (DOC), and ‘other relevant international laws, treaties and conventions’ pledged during the Kunming meeting.
The ministers then devoted eight paragraphs just to the South China Sea — the longest section in its consideration of regional and international issues. The meeting noted the concerns of only ‘some Ministers’ regarding land reclamation and escalation of activities. But otherwise, in all other matters, all the ministers agreed on the procedures that needed to be taken to restore trust and confidence towards the peaceful resolution of the dispute ‘in accordance with international law’, including UNCLOS.
The 49th AMM joint communique goes further than the 48th one, mentioning non-militarisation and self-restraint (twice), as well as to emphasise the need for ‘substantive’ progress (twice) in the context of implementation of the DOC and negotiations for the early conclusion of the Code of Conduct (COC).
As if to distance and distinguish itself from the Cambodian chairmanship of ASEAN just a few years prior, the Lao chair went on to discuss the South China Sea in all but one of its chairman’s statements: on the ASEAN Post Ministerial Conference (PMC) 10+1 Sessions with the Dialogue Partners, the sixth East Asia Summit Foreign Ministers’ Meeting, and the 23rd ASEAN Regional Forum.
The Joint Statement of the Foreign Ministers of ASEAN Member States and China on the Full and Effective Implementation of the Declaration on the Conduct of Parties in the South China Sea could have been stronger in explicitly listing international law processes as a form of peaceful dispute resolution. But that version would probably not have been released.
The endless chimes of unity and centrality that ASEAN tries to peal to itself often screech hollow. But in this instance and with regard to the difficult issue of the South China Sea, there was indeed a return to harmony among all 10 ASEAN member-states. The refrain was not of the PCA ruling, as some had hoped. But the deft leadership of the Lao chair ensured that there was a distinct undertone of agreement on the way forward for the dispute.
Elina Noor is Director of Foreign Policy and Security Studies at the Institute of Strategic and International Studies, Malaysia.
The author of this post, a talented ice hockey player, should perhaps have taken more time to recognise the opposing team’s advantages,. China has not moderated its stance one iota in response to the July arbitral ruling. The status quo, strengthened by a little military reinforcement, suits China perfectly.
There should be a united ASEAN position on the South China Sea ice hockey court. That position should be that China not be allowed to take over any islands or rocks claimed by ASEAN member states.
It is up to ASEAN member states to ensure that the South China Sea does not become a conflict zone between China and Hillary Clinton’s United States. Only ASEAN can do this. It is therefore unconvincing to say that Myanmar is ‘not a party to the dispute’. If Myanmar values its membership of ASEAN, it should be on the side of ASEAN claimants.
As some American commentators are beginning to suggest, there has perhaps never been an American presidential candidate as hawkish as Ms Clinton has been before winning the presidency. She, or her supporters, have out-hawked Goldwater, Johnson, Nixon and whomever else one wants to mention.
When she inevitably triumphs in November and takes office in January, it is surely very likely that she will ‘reset’ relations with China, but in a negative way. If ever there was to be an American president capable of declaring war against China, I would look to Hillary Clinton, not her buffoonish rival, Donald Trump.
The South China Sea question has limelighted ASEAN’s weakness in strategic analysis. It should be obvious that it is not in the interest of ASEAN states for the vast area of the South China Sea to be owned by China.
1″(C)hina not be allowed to take over any islands or rocks claimed by ASEAN member states.”
Asean is not a military alliance like Nato. It should adhere to the 2002 DOC, to promote peace and stability in the South China Sea and to settle disputes between sovereign states by peaceful means.
2 China had indisputable sovereignty over the Spratly islands, even at the time when all the Asean nations (except Thailand) were colonies of either the British, French, Dutch or American colonial powers.
According to Professor John Anthony Carty “British record proves there is no dispute regarding the Nansha (Spratly) Islands and that China is the sole titleholder.”
This is the Timeline of History that cannot be changed:
a) In the 1887 Sino-Franco Convention, France agreed that all the isles, east of the Treaty delimitation line, were assigned to China. That included the Spratly and Paracel Islands.
b) The 1898 Treaty of Paris, signed when Spain handed the Philippines as a colony to the United States, Article III described the western limit of the Philippines as 118 degrees East longitude.
China’s Territories such as the Spratly and Paracel Islands and Scarborough Shoal are all located west of that.
c)In fact, as early as 1933 the Philippines (then a US colony) had wanted to annex the Spratly Island but on 20 August that year, the US Secretary of State, Cordell Hull wrote that, “the islands of the Philippine group which the United States acquired from Spain by the treaty of 1898, were only those within the limits described in Article III”, and “It may be observed that no mention has been found of Spain having exercised sovereignty over, or having laid claim to, any of these (Spratly) islands”.
d) France invaded and occupied China’s Spratly and Paracel Islands in 1938 and in 1939 the French were evicted by Japan, which then colonized these two island groups.
e) After WW2, Formosa (Taiwan) and the Pescadores, as well as the Spratly & Paracel Islands were returned to the Republic of China (ROC) on 28 April 1952, under Article 2 of the Treaty of Peace that Japan signed with the ROC, in accordance with the Potsdam Declaration and Cairo Conference Statement.
Please don’t claim that the SFPT and the Treaty of Peace did not mention who Formosa as well as the Spratly and Paracel were returned to. We have been there before.
f) On 4 September 1958, China declared that the breadth of its territorial sea was to be 12 nautical miles which applied to all territories of the PRC, including the Paracel and Spratly islands. Then on 14 September, North Vietnam’s Prime Minister Pham Van Dong wrote a letter to Premier Zhou Enlai to acknowledge that “the Government of the Democratic Republic of Vietnam recognizes and supports the declaration of the Government of the People’s Republic of China on China’s territorial sea made on 4 September 1958.”
g) The Philippines and the United States did not object to China’s Declaration of 4 Sept 1958. But under pretext of terra nullius, President Marcos annexed 8 features in the Spratlys on 11 June 1978, using Presidential Decree 1596, which also created the Kelayaan Islands Group (KIG).
PD 1596 was illegal under any international law and the UN Charter and its expansive boundary stretches over 200 nm from the Palawan Island to cover almost ALL the Spratly islands, ostensibly to be located inside the KIG.
Not satisfied with PD1596, President Marcos issued PD 1599 on the same date to declare a 200nm EEZ over the Philippines’ territories, 16 years before Unclos came into force. That too was illegal.
That the Tribunal did not challenge China’s sovereignty over the Spratly islands was significant.
3 “(i)t is not in the interest of ASEAN states for the vast area of the South China Sea to be owned by China.”
The Asean Declaration issued on 26 July in Vientiane is diametrically opposed to the writer’s view. Asean will adhere to the DOC, to settle disputes peacefully in accordance with the UN Charter and Unclos.
4 Kerry stated recently that the US does not take sides in the SCS disputes. Why should Hillary or Trump have a different view or even want to go to war with China, which is America’s banker?
Thanks for an interesting analysis. One must be aware of the subtleties of diplomacy, eh?
Will China listen to and seriously consider these “undertones?” Or will it use the subtle approach of ASEAN as a way to avoid changing its own preferred solutions to the SCS issues?
I look forward to reading the comments and questions of others.
Another interesting article though it has a factual error.
It will be appreciated if academics et al, commenting on the Philippines v China arbitration case, do their due diligence first please and note that it was NOT the Permanent Court of Arbitration (PCA) that made the ruling on 12 July 2016.
The PCA is not a court. It only provides a registry and secretarial assistance to “arbitral tribunals constituted to resolve specific disputes” for a large fee.
On 12 July Mr Stephane Dujarric, UN spokesman for Ban Ki Moon, confirmed that the PCA is only a “tenant” of the Peace Palace in the Hague, “but has nothing to do with the UN
The confusion arises because the ICJ, which is UN court, is also located at the Peace Palace at the Hague.