Asean can no longer afford to be subtle over the South China Sea

For a regional bloc well known for subtlety and nuance in its dealings, the chairman's statement from last week's 36th Asean Summit might have churned out some small surprises.

Buried in the middle of two paragraphs, in wording not unfamiliar to keen watchers of past statements about the South China Sea disputes, is this line: "We reaffirmed that the 1982 Unclos [United Nations Convention on the Law of the Sea] is the basis for determining maritime entitlements, sovereign rights, jurisdiction and legitimate interests over maritime zones, and the 1982 Unclos sets out the legal framework within which all activities in the oceans and seas must be carried out."

While much credit for this ought to go to Vietnam's stewardship in its capacity as the Association of Southeast Asian Nations' chair, it is by no means radically new, beyond a stronger emphasis on what has customarily been incorporated in past statements " in particular, to "pursue peaceful resolution of disputes in accordance with universally recognised principles of international law, including the 1982 Unclos".

While observers either rejoice in the statement or agonise over whether it is stronger than in previous years, one should recall that we have been through this stage before.

The chairman's statement from the 32nd Asean Summit in April 2018 included the mention that "land reclamations and activities in the area ... have eroded trust and confidence, increased tensions and may undermine peace, security and stability in the region" " which was touted by some commentators back then as the "strongest" stance on the dispute so far.

By not openly naming and shaming anybody " in this case Beijing over the South China Sea " Asean seeks to balance competing region-wide interests with those of its member states.

The questions are whether this level of nuance and subtlety convey the correct signal, and how much longer Asean can continue this way when the South China Sea situation shows signs of worsening " with the supposedly "strong" wording of those statements not appearing to have an ameliorating effect on Beijing's continued coercion of its Southeast Asian rivals over the disputed waters.

What if this year's "strong" Asean statement on the South China Sea is considered alongside the open expression of concerns made by policy elites from the bloc's member states?

For example, in their addresses to this year's summit, the Philippines' President Rodrigo Duterte cited "alarming incidents" in the sea, while Vietnamese Prime Minister Nguyen Xuan Phuc spoke of "irresponsible acts and acts in violation of international law" in apparent reference to China's activities there.

And what about adding the Philippine Sea operation conducted by the Nimitz and Ronald Reagan carrier strike groups from the United States, which came on the heels of the summit? Will China sit up and take notice?

Vietnamese Prime Minister Nguyen Xuan Phuc speaks at the opening ceremony of the 36th Asean Summit in Hanoi on June 26. Photo: Xinhua

Chances are, quite unlikely.

This has more to do with Asean's inherent, intramural structural challenges than anything else. It has been taken for granted that diverse and often divergent interests and priorities inevitably hold the association back from undertaking a more cohesive and robust position on the South China Sea.

For statements and other public expressions of concern to make a real difference, Asean needs to fundamentally change its long-term approach to the issue.

First, Asean needs to collectively and unambiguously communicate its concerns on the SCS, without necessarily naming or shaming anyone else. Instead of over-emphasising the generalities of the Unclos, it is timely to revisit and consider the long-term merits of the Permanent Court of Arbitration award on the South China Sea handed down in 2016.

This is all the more important when Beijing continues to militarise its holdings in the waterway, along with establishing new administrative districts and naming undersea features.

Second, the Covid-19 pandemic may have put a damper on negotiations between Asean and China over the proposed Code of Conduct in the South China Sea even as all parties reaffirm their commitment to talks, but it does provide a timely opening for the bloc to revisit its approach.

At present, the format of the talks is 10 Asean member states versus China. This has to fundamentally change with an eye towards a common Asean position vis-a-vis Beijing.

Finally, Asean parties in the South China Sea have to iron out their outstanding bilateral differences. In particular, the Indonesia-Vietnam maritime boundary disputes, which have given rise to some recent close encounters between their forces and fishermen at sea, have to finally be addressed.

Likewise, Malaysia and Vietnam need to tackle their differences over illegal fishing. Removing these thorns may potentially facilitate greater intramural convergences on the disputed waterway.

By no means will the aforementioned suggestions guarantee a fundamental change for the better. At the very least, Asean may be better off recognising that strategic hubris over the South China Sea no longer serves the bloc's interests in the long run.

This article originally appeared on the South China Morning Post (SCMP).

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