ASEAN and the South China Sea (SCS) has its own history of conflict which has intensified considerably. Concerns have been raised regarding ASEAN's ability to create a consensus among its member states, given their diverse perspectives and interests in this conflict.

Neither the escalating competition between the United States and China nor the activities of ASEAN's members fall inside the organisation's sphere of influence. The members of ASEAN are divided between those who have territorial claims in the SCS (Brunei, Indonesia, Malaysia, the Philippines and Vietnam) and those who do not (Cambodia, Laos, Myanmar and Thailand), with Singapore acting as a mediator. Most ASEAN member states (AMS) are heavily exposed to China's influence.

The most recent ASEAN summit, held in November 2022, contained a discussion of the SCS issue, demonstrating that ASEAN has regularly included a discussion of the SCS conflict at every ASEAN summit. The issue of land reclamations, activities that increased tensions, and the importance of non-militarisation and self-restraint in the conduct of activities and pursuit of peaceful resolution in accordance with international law, including UNCLOS 1982, were discussed at the ASEAN summit attended by the heads of state of ASEAN, who also acknowledged the Declaration of Conduct and the progress of the Code of Conduct (COC). The code established the parties' commitment to peacefully resolve territorial issues in conformity with international law, including UNCLOS.

Shifting status quo

The COC was intended to bind China to the status quo, but the status quo was constantly shifting as China seized further features in the SCS. Although the COC was not intended to be a mechanism for dispute resolution or a treaty under international law, ASEAN had no other method acceptable to all AMS in dealing with China. ASEAN prefers multilateral collaboration to prevent bullying, but China favours bilateral dialogues that are asymmetric to resolve disputes. However, if ASEAN agrees to bilateral negotiations with China, it loses credibility. Multilateral frameworks are necessary for ASEAN centrality.

In 2023, Indonesia will hold the ASEAN chairmanship. ‘ASEAN Matters: Epicentrum of Growth’ is the chairmanship theme. Under its leadership, Indonesia seeks to enhance ASEAN's institutional capacity and effectiveness to secure the region's fast growth, inclusiveness, and economic sustainability.

In addition, President Joko Widodo emphasised that Indonesia would continue to address issues in accordance with the ASEAN Way and the values of the ASEAN Charter. The impression given by Indonesia's administration of the G20 in 2022 is that it is more than qualified to head ASEAN in 2023.

Diplomacy and mutual respect

To prevent the SCS from becoming a source of conflict and regional instability, Indonesia must nonetheless emphasise diplomacy and mutual respect. To reinforce the centrality of ASEAN, the role of the ASEAN chairmanship must be highlighted and brought into sharper focus.

As stated in Article 32 of the ASEAN Charter, ‘The ASEAN Chairman shall actively promote and enhance the interests and well-being of ASEAN, including efforts to build an ASEAN Community through policy initiatives, coordination, consensus, and cooperation; ensure the centrality of ASEAN; ensure an effective and timely response to urgent issues or crisis situations affecting ASEAN, including providing its good offices and such other arrangements to immediately address these concerns; and represent ASEAN’.

Centrality of ASEAN

This illustrates that each AMS is responsible for the annual improvement of ASEAN. Even though the ASEAN way has always been embraced, Indonesia as Chairman should consider upgrading the ASEAN way to reflect current trends and needs.

ASEAN should adopt a course of action that can be legally weighted to some extent. Simply depending on consensus will have little or no impact on ASEAN, and the SCS issue will be viewed as just another annual item on the agenda of all ASEAN summits.

The delay in implementing the COC is making the situation harder for ASEAN, especially in the aftermath of COVID-19, when the majority of AMS is experiencing economic difficulties; China has a substantial advantage.

Therefore, the centrality of ASEAN is essential to accelerate the implementation of the COC.

-- BERNAMA

Dr Saidatul Nadia Abd Aziz is a Senior Lecturer in the Faculty of Law, Universiti Kebangsaan Malaysia.