The ASEAN Crisis, Part 3: What Should ASEAN Do About the South China Sea Dispute?

From The Diplomat (Dec 23): The ASEAN Crisis, Part 3: What Should ASEAN Do About the South China Sea Dispute? (By Linh Tong)

Three ways ASEAN can improve its ability to mediate in the South China Sea disputes.

This is the third and final entry in a series addressing how the South China Sea dispute caused a crisis for ASEAN. Part 1 explained why and how the South China Sea dispute poses a critical test for ASEAN as a regional organization. Part 2 continued the discussion by answering the question of why ASEAN failed to reach agreement on the South China Sea issue. Part 2 discussed factors at three levels – state level, international level, and organizational level – hindering ASEAN unity on this issue. Consequently, Part 3 will further the debate by offering three recommendations on how to revitalize ASEAN: strengthen cooperation and development inside ASEAN so as to reduce the gap of interests among members; redefine the terms “consultation” and “consensus”; to empower the ASEAN High Council.

Strengthening Cooperation and Development

As discussed in Part 2, state-level factors are the biggest challenges for developing ASEAN unity in the South China Sea. The root cause is the discrepancy among ASEAN countries in their economic and social developments and the subsequent distrust among the countries, which leads to different foreign policy orientations.

To address this issue, ASEAN should look to the EU as an example. Even though the EU is not a perfect organization, it is one of the most advanced and effective regional organizations in the world. The key to the success of the EU is that the organization has been persistent in promoting its high standards of liberal democracy. As a result, countries have to go through myriad reforms to meet EU standards, which considerably reduces the gaps among EU countries, especially with regard to political language and economic orientation. It is, therefore, easier for EU members to reach a consensus in comparison with the diverse community of ASEAN states.

The fact that ASEAN, like other regional organizations such as the Shanghai Cooperation Organization, African Union, Organization of Islamic Cooperation, and South Asian Association for Regional Cooperation, offers states flexibility in their political and economic systems when joining the organization serves as a convenient gateway for individual states at the initial stage. However, in the long run, such flexibility creates disparities that will become an impediment to the success of the organization.

Therefore, in order to achieve unity on the South China Sea dispute, ASEAN should temporarily focus on developing individual states’ economies, lending necessary support to less developed countries to ensure the success of the ASEAN Economic Community and ASEAN Social-Cultural Community. Only after that, as neo-functionalism dictates, will the ASEAN Political-Security Community eventually succeed as a result of the spill-over impact from the economic and social fields. By the time ASEAN members manage to narrow down the gap among themselves, a common consensus will be easier to reach on the South China Sea dispute.

Redefine Consultation and Consensus

In the meantime, ASEAN does not have any code of conduct for its decision-making process, resulting in bureaucracy and difficulty in reaching agreements. Thus, there is a need for ASEAN to implement such a code of conduct.

ASEAN has already modified the Treaty of Amity and Cooperation three times in 1987, 1998, and 2010, adding rules concerning the membership and the roles of the High Council. ASEAN could also improve its decision-making process by amending the Charter with the provision of new protocols. One suggestion, from the Australian College of Defense, is to amend the definition of consensus, which is rather vague, by adding “a mixed process of achieving consensus (or unanimity) and a voting system (with a majority-rule outcome).”

However, because consultation and consensus are highly embedded in ASEAN’s culture, the new code of conduct in decision-making should offer a number of levels or phases so as to give choices to individual states. The levels or phases can range from majority-based to consensus-based decision-making mechanisms, including in between some mixed levels of these processes. Furthermore, it is also important for the new code of conduct to clarify which type of decision-making mechanism should be applied on which occasions. One suggestion could be that the unanimity-based mechanism should apply when the issue concerns 50 percent or more of member states while majority-rule decisions should be sufficient in cases concerning less than 50 percent of member states. By making these distinctions, it will be easier for ASEAN countries to reach agreement in issues like the South China Sea dispute, in which ASEAN has failed to make a joint statement because of one or two states’ objections.

ASEAN will bolster its reputation and status as an organizational unity in the international area should the organization manage to amend the code of conduct to speed up the decision-making process. By improving the decision-making mechanism, the ASEAN Community will also have a better chance for success since it will have dealt with the toughest challenge for all international organizations — the dilemma between a higher level of integration and the reservation of state sovereignty and national interests.

Empower ASEAN High Council

“A High Council … shall be the important component in the ASEAN Security Community since it reflects ASEAN’s commitment to resolve all differences, disputes and conflicts peacefully.” This was the conclusion of all parties to the Treaty of Amity and Cooperation in Southeast Asia at the Summit on October 7, 2003. This quote nicely emphasizes the importance of the High Council in maintaining peace and stability in the region.

In fact, the High Council appears to be a perfect mechanism to settle the South China Sea dispute since its composition, as coded in Rule 3 and Rule 4 of the Rules of Procedure, includes not only ASEAN members but also other contracting parties outside ASEAN. The High Council appears to be a good choice to pursue resolution, since China and the United States are both parties to the Treaty and the aim of the High Council is not to give the judgement on who is right or wrong in the dispute — like the Permanent Court of Arbitration in The Hague, whose tribunal’s judgment stumbled over China’s refusal to participate — but to settle the disputes peacefully. The High Council, if invigorated, can on one hand legally involve the United States and India and on the other hand establish a multilateral platform for negotiation with China.

Despite such potential, unfortunately, as yet the High Council mechanism has never been used even once, despite the rising tensions in the South China Sea. Therefore, the final recommendation for ASEAN is to empower the already existing mechanism of the High Council, which is authorized to settle disputes according to the Treat of Amity and Cooperation. In fact, the Treaty has been amended three times, expanding the scope of membership and responsibilities of the High Council. More modifications could, therefore, be adopted to enable the High Council to function as an effective authority managing all regional disputes and conflicts.

As indicated in Article 3 of the ASEAN Charter, ASEAN is already a legal personality in the international system. Therefore, ASEAN has the right and responsibility to establish a legal entity like the High Council and to produce legal judgments for the peaceful settlements of conflicts.
The world political environment is constantly changing. The original function of ASEAN as a consensus-based community representing diplomatic relations is no longer as suitable as it used to be at the initial stage during and shortly after the Cold War period. ASEAN needs to upgrade itself into a more effective regional organization with a more powerful High Council so as to ensure the legacy of its continuing existence. Without modifying its policies and bureaucratic procedures, ASEAN will fail not only in settling the South China Sea dispute, but also in future challenges.

Conclusion

The combination of the problems at three levels as illustrated in Part 2 prevents ASEAN from resolving the conflict. Until now, no further plan for specific actions has been made between China and ASEAN member states concerning the South China Sea dispute, apart from the six neutral points contained in the Joint Statement of the Foreign Ministers of ASEAN member states and China, published on July 25, 2016. ASEAN will have to pursue action to overcome the current deadlock should the organization want to achieve further integration for successful establishment of ASEAN Community.

The article made three recommendations to that end: narrow down the development gap among ASEAN members and build up mutual trust within the organization; improve the decision-making mechanism by modifying the definition of consensus and consultation; and empower the ASEAN High Council. However, it is obvious that the latter two recommendations are not feasible before the first succeeds. Easier said than done.

The latter two options might sound attractive, but they do not deal with the roots of disunity among ASEAN member states. Without closing gaps among the ASEAN members and enhancing mutual trust, it would be impossible to proceed to improve the decision-making mechanism and further integration. Therefore, it is important for ASEAN to start with the first step of developing the members’ economies and stability.

[Linh Tong is Editor for the East Asia region at Eurasia Diary and a Research Assistant at ADA University.]

http://thediplomat.com/2016/12/the-asean-crisis-part-3-what-should-asean-do-about-the-south-china-sea-dispute/

http://thediplomat.com/2016/12/the-asean-crisis-part-3-what-should-asean-do-about-the-south-china-sea-dispute/