Why US should move beyond ASEAN in the South China Sea

COMMENTARY Global Politics

Why US should move beyond ASEAN in the South China Sea

Mar 10, 2015 5 min read

Former Director, Asian Studies Center

As director of The Heritage Foundation’s Asian Studies Center, Walter Lohman oversaw the think tank’s oldest research center.

At a hearing of the U.S. Senate Armed Services Committee in late February, its new chairman, John McCain asked Director of Intelligence James Clapper about what he called "dramatic" satellite photos demonstrating Chinese construction in the disputed Spratly Islands in the South China Sea. Clapper, in response, acknowledged the problem of China's "aggressive" pursuit of their "exorbitant claims."  He also described regional concerns as a "good thing because, in the end, the regional countries' strength is if they can act collectively."

Clapper was only reflecting conventional wisdom of the last several years. Much of Washington, including key officials in the Obama administration, has supported a diplomatic approach to the crisis in the South China Sea that depends on regional processes. This is not unreasonable. Ideally, Southeast Asia would "act collectively" to frame the dispute, and the U.S. could slip in behind to reinforce it.

The problem is that Southeast Asia's traditional vehicle for collective action, the Association of Southeast Asian Nations, has proven irrelevant to the search for a solution. The photos of China's ambitious extraterritorial land reclamations -- and the implications for China's projection of force to press its claims -- are only the most recent evidence.

Time for a rethink

It is high time for Washington to find new avenues of approach. The U.S. has critical interests at stake. They include naval access to sea lanes necessary to keeping the peace in the Taiwan Strait and Northeast Asia; the secure, long-term, uninhibited flow of seaborne trade; and the security of the Philippines, an American treaty ally. ASEAN, the organization, is also concerned with these things. Its own unity, however, is of higher priority. To the extent that the implications of American interests -- challenging China's concept of its rights in international waters, for instance -- threatens that unity, ASEAN defaults to inaction. As a result, ASEAN's divisions have led to decades of failed diplomacy in the South China Sea.

In 1992, ASEAN's foreign ministers first declared the goal of establishing "an international code of conduct over the South China Sea." Twenty years later, their negotiations with China resulted not in a binding code, but in a "declaration of conduct." ASEAN had missed the mark. It missed again in 2011, when the intervening nine years produced a slender 274-word set of guidelines for implementation of the declaration -- again, not a code.

That all of ASEAN's diplomatic activity over the years was "motion without movement" became evident in its high-level collapse over the issue at an ASEAN summit in Cambodia in 2012. Emblematic of the challenge of working with ASEAN, its inability that year to issue a consensus statement summarizing the summer meeting of its foreign ministers competes with another narrative from this period. This revolves around the shuttle diplomacy of then Indonesian Foreign Minister Marty Natalegawa, who repaired the damage. He did so, not by effectively addressing the dispute, but by gaining the assent of foreign ministers to an innocuous restatement of positions predating the impasse -- including yet another commitment to "the early conclusion of a Regional Code of Conduct in the South China Sea."

Then, in September 2013, ASEAN welcomed what it characterized as the "first formal consultations" with China on the code -- as if the more than 20 years of discussion that preceded this had been something other than formal consultations. In fact, two sets of "consultations" predate this supposed breakthrough by many years. Last October, one meeting in this process came to the astounding conclusion that "the process of consultation between ASEAN and China [has] been as important as the substance [of] the COC (Code of Conduct) itself."

The division in ASEAN is more than one simply between claimants in the South China Sea and nonclaimants. Among both camps are old-line members, like Singapore, Indonesia and Malaysia, which are more concerned about ASEAN's long-term viability than  about territorial disputes with China. There is also a class of newer members, like Cambodia, which have a very narrow understanding of ASEAN's strategic value that struggles to rise above direct financial gain. Members are also internally divided.

Vietnam consistently toggles between confronting China on its claims and courting it. Even in the Philippines, which has been the most confrontational in defending its territorial claims, the foreign policy establishment has deep regard for ASEAN's historic mission of ensuring the region's autonomy.

This mix of interests combines to create a consensus favoring process over results. Indeed, for older members like Thailand, which hosted the October talks, process is result, because they -- as well as the Chinese -- see stretching the problem out indefinitely as an acceptable outcome. That is not an acceptable outcome for the U.S.

Next steps

So what is to be done?

First, the U.S. must give up on ASEAN's central role in managing the problem. The U.S. president and his cabinet officials should continue to attend ASEAN meetings and table the South China Sea issue as they see fit. But attendance at these meetings should be seen as a failsafe against the unlikely event of ASEAN taking action without American involvement, not as a necessary diplomatic precursor for effective action.

Second, the dispute should be "internationalized." That is, the locus of diplomatic activity should be moved out of Southeast Asia and ASEAN's relationship with China. As happened with the war in Cambodia in 1978-1991, and again with the East Timor crisis in 1999, only the vigorous involvement of powers outside ASEAN can provide the weight necessary to change the calculations of the players. In the case of the South China Sea, the U.S. and key partners should initiate an international conference involving Japan, Australia, South Korea, India, Indonesia, Singapore, the chair of ASEAN (currently, Malaysia), and the parties to the territorial dispute. It is possible that, as occurred with the internationalization of the earlier Cambodia conflict, some parties may choose not to participate. Not all of them need to for the conference to create effective leverage.

Third, the U.S. should consider changing its non-committal position on the territorial dispute. The U.S. has long held that disputed territory in the South China Sea does not fall under the purview of its security treaty with the Philippines. It could move to a position similar to that regarding Japan and the Senkaku Islands: For the purposes of its security treaty, it could recognize features in the South China Sea currently occupied by the Philippines as "under its jurisdiction" (wording from the 1951 treaty) and thereby subject to protection. Such clarification of jurisdiction would be accompanied by all the legal caveats concerning consultations and constitutional processes that apply to the treaty generally and which prevent the U.S. from being dragged into conflict against its better judgment.

The U.S. could offer similar assurances to Taiwan -- in keeping with its legal obligations, with all their nuances -- under the Taiwan Relations Act. As with the Senkakus, the U.S. need not express itself on the ultimate disposition of sovereignty in either of these cases, leaving that to future diplomacy.

Fourth, the U.S. could explore with the Philippines and Taiwan the prospects for helping fortify the features, or territory in the disputed region, they currently hold.

As discussed in the Senate Armed Services Committee, China's land reclamation and construction in the South China Sea so far from its shores is indeed "dramatic." It should serve to move the U.S. beyond its ASEAN-centered diplomatic approach to addressing the problem. America's interests are too great to rely on a divided and ineffective ASEAN to provide any basis for effective, peaceful management.

 - Walter Lohman is director of the Heritage Foundation's Asian Studies Center.

Originally appeared in Nikkei Asian Review