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    Southeast Asia
     Jul 24, 2012




Indonesia saves ASEAN's face
By Donald K Emmerson

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.

Notes:
1. Prak Chan Thul and Olivia Rondonuwu, ASEAN urges South China Sea pact but consensus elusive, Reuters, 20 July 2012.
2. China to deploy military garrison in South China Sea, Xinhua, 20 July 2012.

Donald K Emmerson heads the Southeast Asia Forum at Stanford University.

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