Can Asean overcome its deadlock over S China Sea?

As the Association of South-east Asian Nations (Asean) celebrates its 50th anniversary next year, it may be the right time now for it to do some soul-searching about its future. One key question is how the grouping is to become more effective in addressing emerging security challenges such as its inability to present a common position on the South China Sea disputes. This weakness is due to the association’s long-held principle of consensus.

Due to their extremely diverse national backgrounds, Asean nations adopt consultation and consensus as a key principle in their operations. Officially enshrined in Article 20 of the Asean Charter, the principle ensures equality among member states and prevents the marginalisation of any member in major decisions.

Although the principle helps Asean maintain unity and makes member states feel comfortable about their participation in the association, it also weakens Asean’s capacity to act effectively on certain security issues.

For example, Asean failed to forge a united response to the 9/11 terrorist attacks on the United States and the subsequent US-led war on terror.

Similarly, Asean’s response to North Korea’s nuclear tests is also typically weak.

For example, in early 2016 when North Korea detonated a hydrogen bomb, Asean foreign ministers did not even condemn nor express concern over North Korea’s action in their joint statement. In most of these cases, the sympathy that some Asean members had for North Korea explained why the association could not have stronger reactions against Pyongyang.

Asean’s difficulty in reaching consensus seemed to become increasingly acute after the association expanded its membership from six to 10. The larger membership makes it harder for the association to find a common denominator among its members.

Moreover, Asean’s expanded membership also facilitates the interference of external powers in the grouping’s decision-making process.

As the consensus principle effectively gives any member the power to veto any decision, an external power can easily make use of its influence over an Asean member to block decisions it considers harmful to its interests.

SPLITS OVER THE SOUTH CHINA SEA

Dealing with the South China Sea disputes and with China’s increasing assertiveness there have divided Asean.

At the 45th Asean Ministerial Meeting (AMM) hosted by Cambodia in July 2012, for example, Cambodia refused to accommodate other members’ request to include references to incidents in the South China Sea in the final communique. Consequently, AMM failed for the first time in its history to issue a joint statement.

More recently, at their 49th annual meeting in July 2016, Asean foreign ministers also failed to reach a consensus on mentioning in their joint communique the landmark ruling issued just two weeks before by an international tribunal on the Philippines versus China case on the South China Sea disputes.

China’s ambition to exert its control over the whole strategic waterway by building and gradually militarising massive artificial islands is unnerving not only most Asean members but also other countries that rely on this vital waterway for trade and military operations. Asean’s failure to have a common voice on the South China Sea disputes is therefore particularly worrying.

Should it continue to fail in addressing the intensifying tensions in the South China Sea, its ability to maintain and enhance peace will be questioned.

More importantly, some Asean members will be encouraged to seek arrangements with external partners to address the issue. This will ultimately jeopardise the association’s unity and centrality.

It is therefore essential for the association to discuss how to reframe and better implement the principle so that national interests can harmonise with regional ones.

This urgent need has been recognised recently. At the 38th Singapore Lecture in late August 2016, Vietnamese President Tran Dai Quang stated that although consensus is a fundamental principle for Asean, “newly emerging issues” have made it necessary for Asean to establish “supplementary mechanisms” to allow for flexibility in managing these challenges.

HOW ELSE CAN ASEAN REACH POSITIONS?

Some analysts have suggested that Asean must reassess its consensus-based decision-making by removing the power of veto by any one member state, and instead consider extending the application of the “Asean Minus X” principle — which allows for flexible participation in cases where a member state is not yet ready to commit to a specific initiative — to political issues.

Others, including the Eminent Persons Group on the Asean Charter, have suggested adopting majority-vote decision-making.

The problem is how the mechanism is to be designed to appeal to all member countries. There are three considerations here.

First, a voting mechanism based on a supermajority of two-thirds is a reasonable starting point to consider. Accordingly, each member should be entitled to one vote of equal weight, and any decision to be adopted should be endorsed by at least seven out of the 10 members.

In case the two-thirds majority is deemed too low a bar, Asean may consider a higher threshold.

For example, a majority of three-quarters may be applied in issues of critical significance, in which decisions should be endorsed by at least eight members.

Second, if certain countries may at some point view the majority vote rule as an unacceptable liability to their national interests, the Asean Charter should therefore provide for a member country’s exit from the association as well.

Currently, the Charter lacks such provisions. It is unlikely that any Asean member will ever invoke such provisions, but the Charter — as the basic law of Asean — should comprehensively address its membership issue.

Third, where consensus is impossible, there should be a clear distinction between two types of issues: Those that have obvious implications for the sovereignty, territorial integrity and domestic autonomy of a given member; and those that have obvious implications for regional peace and security.

In the former case, Asean members must seek consensus on their decisions, unless the country involved decides otherwise. In the latter case, however, majority vote decision-making should be applied.

In case Asean members are unable to agree to a majority-vote decision-making mechanism, it may become necessary for them to seek new institutional arrangements to circumvent the deadlock caused by the consensus principle, especially in dealing with the South China Sea disputes.

First, Asean should consider establishing a permanent Asean Commission for the Management of the South China Sea Disputes.

This should consist of the four Asean claimant states and other Asean members who are interested in the issue.

The primary purpose of the Commission is to coordinate Asean’s position on the South China Sea, and act as the contact point for Asean in coordinating with China regarding the management of the disputes. It should be entrusted with the task of shaping Asean’s common responses to South China Sea incidents and drafting the section on the disputes in Asean’s joint statements and other relevant documents.

If established, the Commission will represent a major institutional breakthrough towards more effective management by Asean of the disputes.

Second, if the proposed Commission cannot be established, Asean claimant states may want to revive their caucus on the South China Sea, which used to be a venue for Brunei, Malaysia, the Philippines and Vietnam to exchange views and formulate a common position on the South China Sea disputes ahead of Asean meetings.

If the caucus is revived, and especially if it is institutionalised and expanded to include interested Asean non-claimant states as well, it could serve as yet another relevant, though less formal, venue for Asean countries to address the South China Sea disputes.

Finally, in case all the above options cannot materialise, like-minded countries in the region, regardless of whether or not they are claimant states or Asean members, should form a regional caucus on the disputes.

This caucus, acting outside the framework of Asean, may help coordinate its members’ position on the disputes, especially in region-wide platforms such as the East Asia Summit.

In the long run, where circumstances allow, the caucus may also evolve into a regional security arrangement to supplement Asean-led mechanisms.

All these innovations aside, it is still in Asean’s best interests to maintain the consensus principle in as many important issues as possible, and if the South China Sea disputes cease to present themselves as a serious threat to regional peace.

Towards this end, there should be more trust-building, cooperation and dialogue among Asean members as well as between Asean and China.

While China should be more sensitive to security concerns of Asean states, Asean members themselves should try to strike a balance between national interests and the broader interests of the region.

ABOUT THE AUTHOR:

Le Hong Hiep is a Fellow at the ISEAS – Yusof Ishak Institute. This is adapted from a longer piece in ISEAS Perspective.