“The South China Sea is a major issue in the heart of ASEAN’s own region. For ASEAN not to address it would severely damage its credibility. ASEAN must not take sides on the various claims, but it has to take and state a position which is neutral, forward-looking, and encourages the peaceful resolution of issues.” – Singapore Prime Minister Lee Hsien Loong

The South China Sea territorial disputes are among the region’s most critical issues. The first clash occurred in 1974 between the People’s Republic of China and South Vietnam around the Paracel Islands. In 1988, another open conflict erupted between China and a now-unified Vietnam in the Spratly Islands. In 1995, a different conflict between China and the Philippines highlighted Chinese occupation of Mischief Reef, Kalayaan. What is the main reason for this territorial dispute? Scholars point to reasons such as natural resources, fisheries, sea lines of communication, and maritime strategy.

ASEAN member states push the South China Sea as one of the top agenda items because of Beijing’s aggressive efforts to enforce its claims. Although China clearly states that they prefer to discuss the dispute within a bilateral framework rather than multilateral, ASEAN as a regional organization continues to work with other organizations from the UN to resolve the dispute peacefully.

In 1976, ASEAN introduced the Treaty of Amity and Cooperation (TAC), the informal code of conduct for the South China Sea, based on notions of conflict avoidance. In 1990, Indonesia initiated an informal meeting, the Workshop Process on Managing Potential Conflicts in the South China Sea, which ended with the Declaration on Code of Conduct (DCOC). However, in early 1992, China passed the Law of the People’s Republic of China on the Territorial Waters and Contiguous Areas, reiterating China’s claims in the South China Sea and stipulating the right to use force to protect islands and their surrounding waters. Months later, in July 1992, ASEAN responded, with ASEAN’s foreign minister signing the ASEAN Declaration on the South China Sea to promote the informal code of conduct based on self-restraint, the non-use of force, and peaceful resolution of disputes.

It took years for ASEAN and China to commit to and sign the DCOC, which brings both parties to work towards a COC in line with the TAC and a Southeast Asia Nuclear Weapon-Free Zone. Both parties agreed to maintain the status quo over the islands and promote cooperation in the South China Sea. ASEAN and Beijing held a second meeting called the ASEAN-China Joint Working Group on the implementation of the Declaration on the Conduct of Parties in the South China Sea (DCOC). Both parties agreed on six projects scheduled to be implemented from 2006 with funding support from the ASEAN-China Cooperation Fund (ACCF). Despite having those projects together, China made a statutory declaration to the UN secretary-general that it would reject any arbitration over military activities, as well as sea and territorial disputes. Furthermore, in 2007, China conducted military exercises around the Paracel Islands, which raised strong protests from Vietnam. China has not only conducted military exercises but also established the Sansha administrative district in Hainan Island, responsible for managing the Paracel and Spratly islands.

In 2011, ASEAN and China adopted the Guidelines for the Implementation of the DOC, which enhanced the practical cooperation in the South China Sea. Months later, ASEAN and China issued a Joint Statement of the Fourteenth ASEAN-China Summit. China promised to work with ASEAN countries on the adoption of a consensus-based COC in the South China Sea to maintain peace, cooperation, security, and stability in the region. Chinese Primer Wen Jiabao also planned to establish ASEAN-China Maritime Corporation Fund. The National Institute for South China Sea Studies held a seminar on “Implementing DOC: Maintaining Freedom and Safety of Navigation in the South China Sea,” showing China’s willing to work together with ASEAN in developing the sea. During the ASEAN Regional Forum, ASEAN failed to issue the joint communique, yet Indonesia helped ASEAN with crafting ASEAN’s Six-Point Principles on the South China Seaand released it on July 20, 2012.

ASEAN had moved to keep its diplomacy focused on legally codifying the DOC in a binding COC. Initiated by Indonesia’s Foreign Minister Marty Natalegawa, ASEAN brought China to the diplomatic table to complete the COC agreement. Moreover, Natalegawa made a so-called “zero draft” for a COC with the DOC as its foundation, yet Beijing insisted that the drafting of COC had to start from scratch. The negotiation started in 2013 with the formation of a working group and, until 2015, the group had not moved beyond procedural issues. ASEAN gives China control of the timetable agreement, yet Beijing keeps mentioning that there can be no COC until the DOC is fully implemented. As China holds the DOC hostage by continuing to assault other claimants’ rights, it looks like China is using it as a delaying tactic to change the status quo of South China Sea disputes.

ASEAN keeps trying to clarify the status of the South China Sea dispute, yet Beijing has a different perspective and mentions that there is no sense of urgency over it. China’s delaying tactic has worked very well as it seeks to militarize its artificial islands in the Spratlys. With diplomacy stuck, it is better for ASEAN to maintain neutrality as its collective response and concentrate on promoting cooperation and joint development. For ASEAN member states, the most beneficial action to address China’s aggressive behavior in the South China Sea is acting like rationalists who combine the realist and liberalist approach. As a realist, it is important to show and maintain national security around the disputed islands by having good relations with other non-claimant great powers, such as the United States, Japan, Australia, or India. ASEAN member states also need to act like liberals by engaging in economic cooperation and join in the development of disputed areas with Beijing.

The Philippines case, which brought the South China Sea case against China to the Permanent Court of Arbitration (PCA), has shown that confrontation alone will produce no results. As Graham Allison argues, China, like all great powers, will ignore international legal verdicts. As Thucydides’ summarized in the Melian Dialogue: “The strong do what they can and the weak suffer what they must”—it is commonly understood that the PCA and the International Court of Justice, along with the International Criminal Court, only work for small powers.

Despite China’s disregard of international law, it is important for ASEAN to continue promoting the DOC and COC to keep ASEAN as a credible organization in the region.

Tenny Kristiana ([email protected]) is a member of Pacific Forum’s Young Leaders Program. She has achieved her second postgraduate degree in International Relations from Graduate School of Asia-Pacific Studies, Waseda University.

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