On July 20, the Association of Southeast
Asian Nations (ASEAN) replaced an embarrassing
silence with a six-point consensus. Cambodian
Foreign Minister Hor Namhong announced the six
points in Phnom Penh. Earlier in the week, as the
chair of an ASEAN foreign ministers' meeting, he
had failed to convey the usual joint statement
summarizing its deliberations. Instead he said
nothing at all.
The issue was whether and
how to mention the recent standoff between China
and the Philippines over Scarborough Shoal in the
South China Sea. Philippine
Foreign Minister Albert del Rosario blamed Hor
Namhong for a fit of pique in canceling the entire
statement. Hor Namhong blamed del Rosario for
insisting on citing the standoff. For whatever
reason, the Cambodian minister had been, to quote
an Indonesian saying, "silent in a thousand
languages" - mutely shouting to the world that
ASEAN could not even agree to disagree.
To
ASEAN's rescue came Marty Natalegawa, the foreign
minister of by far its largest member, Indonesia.
It took him just two days of emergency shuttle
diplomacy to hammer out the six points of
agreement that Hor Namhong would read out on
behalf of himself and his fellow ministers
regarding the South China Sea.
The six
points articulated by Hor Namhong in the Khmer
language and variously reported in English
translation can be summarized as a reaffirmation
of the ministers' desire: to observe the
Declaration on Conduct of the Parties in the South
China Sea and follow the guidelines for its
implementation; to work toward an early adoption
of a Code of Conduct (that would upgrade the
Declaration); to exercise self-restraint and avoid
threatening or using force; and to uphold the
peaceful settlement of disputes in keeping with
universally recognized principles of international
law, including the United Nations Convention on
the Law of the Sea (UNCLOS).
China's claim
to sovereignty over almost the entire South China
Sea places it squarely at odds with four other
claimants inside ASEAN - Brunei, Malaysia, the
Philippines, and Vietnam. To the extent that
Beijing wants to negotiate its self-described
"indisputable" claim at all, it wants to do so
only bilaterally with each rival, one on one.
The splits within ASEAN over the South
China Sea have been papered over not resolved.
Natalegawa was able to elicit agreement on the six
points and to persuade his Cambodian colleague to
read them out at a press conference for the world
to hear. But the Indonesian foreign minister could
not stop Hor Namhong from using that same occasion
to claim innocence and hurl guilt.
As a
multilateral actor, ASEAN has been pressured
relentlessly by China to say nothing about these
disputes. When Hor Namhong did exactly that at the
end of the foreign ministers' meeting, he was
accused of splitting ASEAN on Beijing's behalf.
But rather than strike a conciliatory note at his
press conference, the Cambodian blamed the failure
to agree on a communique on "two countries".
It is virtually certain that he meant the
Philippines and Vietnam, the two ASEAN states most
robustly opposed to China's claim. He himself
claimed authorship of the six points, as they had
all been "raised by me" at the foreign ministers'
meeting. "Why did the two countries keep opposing
[my points]? Probably, there was a plan behind the
scenes against Cambodia." [1]
So much for
reconciliation. Natalegawa must now have mixed
feelings: glad he could elicit a statement but
worried about what could happen back in Phnom Penh
this November when Cambodia will chair the ASEAN
summit in the presence of a dozen or more heads of
state from Asian and other countries.
The
six points did not mention the confrontation at
Scarborough Shoal. That was a necessary
compromise, made for the sake of consensus. But
the omission could be taken by Cambodia and others
in ASEAN as a precedent worth keeping: not even to
allude to instances of bad conduct in which China
is involved. Refusing to see, hear, and speak no
evil may buy time for a solution to be reached,
but it could also merely prolong the reaching.
Meanwhile, lacking de jure recourse
to a settlement, claimants may increasingly make
unilateral moves to tilt de facto realities
in their favor, on the ground and in the water. On
July 20, the very day that Hor Namhong read out
ASEAN's peace-making points, China reported that
its Central Military Commission had authorized the
People's Liberation Army to form a Sansha Garrison
Command over the Paracel and Spratly islands and
the Macclesfield Bank - all in the South China
Sea. The new command's duties will include
"defense mobilization" and "carrying out military
activities." [2]
Law vs sovereignty
More encouraging is something the six
points do mention: the need to act in conformity
with international law, including the provisions
of UNCLOS.
The Law of the Sea prescribes
in detail the lines that can be drawn around rocks
and islands to distinguish territorial seas from
extended economic zones, respectively. The law
also defines the rights that are allowed in these
jurisdictions. But UNCLOS does not answer the
question of sovereignty - whose lines and rights
they are - and China has explicitly rejected the
dispute-settling provisions that the law does
contain. Nevertheless, the inclusion of recourse
to UNCLOS among the six points is encouraging as a
reminder to all of the claimants that they need to
specify, by latitude and longitude, exactly where
"their" lines lie.
In this legal context,
ambiguity is the enemy of progress, and of all the
claims, the most ambiguous is China's
self-assigned U-shaped nine-dash line. That
"tongue" spans nearly the full width of the South
China Sea while running the length of its waters
nearly to the shores of Indonesia's Natuna
islands.
One action that ASEAN could take
is to ask the International Tribunal on the Law of
the Sea for an opinion - not a settlement, not a
binding judgment, and not about sovereignty, just
an opinion about China's line: is the U-shaped
line compatible with the text of UNCLOS, or not?
Which of the land features encompassed by the line
are rocks, and which ones are islands? Can an EEZ
be drawn around a rock?
The tribunal could
decline to answer these questions, but that
silence of a thousand tongues would embarrass the
institution as unwilling or unable to uphold the
words that are the basis of its existence. If the
court did agree to issue an opinion, and the
answer were damaging to China's claim - the
likeliest outcome - Beijing could still stick out
its "tongue," but at the cost of confirming its
image as a rogue. Nor would China alone be
affected. The specification of rocks versus
islands, and the nautical mileage allowable around
each feature, would impact the claims of Southeast
Asian states as well.
If Cambodia were to
prevent ASEAN from asking the tribunal for such an
opinion, one or more ASEAN states could still do
so. If it were known in advance that the tribunal
as such would not answer, the questions could
still be asked of a single judge. If it were clear
that the judge could only answer in a personal
capacity, even those unofficial opinions might
help nudge the disputants away from demagoguery
toward cartography - toward a shared understanding
of what is in dispute, exactly where it lies, and
what might be done about it, including joint
exploration in contested areas.
Finally,
Foreign Minister Natalegawa's mission to rescue
ASEAN's face underscores the group's need to speak
in one voice, constructively at the right time and
consistently with the passage of time. If the
"ASEAN way" of consensus tends to limit what the
group can do to the willingness of its least
willing member, the "ASEAN way" of leadership from
year to year tends to privilege the likes and
dislikes of whichever member happens to be in the
chair.
An institutional solution would
involve upgrading the ASEAN secretariat, enlarging
its budget and authorizing its secretary general
to be less of a secretary and more of a general.
Incredibly, with only three years to go until the
planned declaration of an ASEAN Community in 2015,
each member state still contributes in annual dues
what the poorest among them, Laos, can afford to
pay. In the early years of the organization, it
made sense to enshrine national sovereignty in the
"ASEAN way". Today, the group needs a course
correction toward greater coherence as a regional
actor.
Institutional reform is unlikely
for the time being. That leaves the political
solution: that ASEAN be led quietly and ably "from
behind" by a member state with a sense of
responsibility, the asset of credibility, and a
preference for persuasion over confrontation.
Whether that country is Indonesia or not, its
foreign minister has at least shown his Southeast
Asian colleagues and the outside world that ASEAN
cannot lead without being led.
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