Four ideas stand out from the news coverage of the ASEAN-related events. The heated debates and late-night meetings over the Foreign Ministers’ communiqué show the continuing divides within ASEAN. The communiqué, and more importantly the framework, do not specify that the eventual Code of Conduct will be binding. The much-anticipated framework on the Code, however, will be kept under wraps. Finally, there are still preconditions to negotiations that appear to keep the ball outside of ASEAN’s court.
DEBATING THE COMMUNIQUÉ
Every year, we reiterate the hope that ASEAN will find a strong voice on the South China Sea. Among the ASEAN members, Vietnam’s temperature is running the highest this year, and so the country has been the focus of most news reporting on the Foreign Ministers’ meeting. The sense is that Vietnam, which has had a recent tussle with China over oil-drilling, had been unhappy with the original language of the communiqué. Xinhua News ran a commentary on Monday telling Vietnam to “readjust its attitude.”
The final output is not too different from last year’s statement, with a few tweaks. It leaves out the region remaining “seriously concerned” about developments in the South China Sea and specifically calls on even non-claimants to exercise restraint. It does provide a contrast against the Philippines-drafted ASEAN Chairman’s statement earlier this year. Even with ten countries compromising, there is more specific language. The April Chairman’s statement had left out mentions of land reclamation, non-militarization, and even UNCLOS.
BINDING OR NOT BINDING
We had hoped for the communiqué, or the framework if it had been revealed, to say the ASEAN stand that the eventual Code of Conduct will be legally binding. The DFA spokesman clarified this point after the communiqué had been released, saying that this was the preference of the Foreign Ministers. If this had been a universal preference, it would have been nice to see this in the joint statement.
In any case, the legally binding character of the Code of Conduct is important, and we had hoped that this could be agreed upon even before the negotiations on substance begin. If the region is after a statement of principle, after all, it already has the 2002 Declaration on the Conduct of Parties to lean on. As the ASEAN secretary-general pointed out in an interview, “The DoC has never been fully and effectively implemented. The fact alone is it’s not a legally binding document. So… the new code of conduct, for it to have any significance or importance, it would have to be a legally binding document.”
SECRET AGREEMENTS REACHED IN SECRET
The foreign ministers adopted the framework agreement, but have decided to keep it under wraps. There is no way to assess the statements that have been made about the framework, some suggesting that it is a stabilizing text or even that it is a step forward, in context.
This development calls to mind former US President Woodrow Wilson’s 14 Points, laid out almost a hundred years ago before the conclusion of the First World War. Wilson’s first point for inter-state relations was “Open covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind but diplomacy shall proceed always frankly and in the public view.” Entirely coincidentally, Wilson’s second point was about freedom of navigation. Wilson became known as an idealist. Today, pragmatism is supposedly the name of the game.
THE ‘STAY OUT’ PRECONDITION
In the meantime, the US, Australia, and Japan came to a common position on the developments in the South China Sea. Their statement regards the 2016 Hague ruling as legally binding and also calls for a binding Code of Conduct in the South China Sea. These are not novel positions on the part of these countries, but the consonance of the three parties on these three points strikes an emphatic chord at a time when most ASEAN ministers are taking a more careful path.
The events of the last week drew more attention to the non-claimant states. In addition to the mention in the joint statement, Chinese Foreign Minister Wang Yi told reporters that China would agree to begin consultations “when the situation in the South China Sea is generally stable, if there is no major disruption from outside parties.” This is a one-sided precondition that removes ASEAN from the equation.
MOVING IN PLACE
The Philippines is trying to get things done as the chair of ASEAN this year, especially on a milestone anniversary like this one. At the same time, it will be difficult to tell whether its milestones have been reached for their own sake or because they represent the best path forward for the region. Despite all these meetings, the region might be moving in place instead of forward.
Angelica Mangahas is Deputy Executive Director for Research of the Stratbase ADR Institute.