The Spratly Islands (南沙群島) once again dominated the agenda during the recent ASEAN leaders’ summit in Phnom Penh, but the member states failed to reach an agreement on the wording of a code of conduct on the issue in preparation for talks with China.
According to media reports, the Philippines proposed during the summit that a legally binding code of conduct be drawn up, clearly stating the borders of the disputed waters of the South China Sea. The Philippines was joined by Vietnam and Thailand in calling for a consensus on the issue to be hammered out before it was taken to the table with China, but the proposal failed to win the agreement of other member nations. It is right that ASEAN does not have a consensus on this issue, and it shows that several member countries are viewing the nature of the Spratlys’ issue in the correct way.
Ever since ASEAN came up with the Declaration on the South China Sea in 1992, a small number of member states have been trying to form a collective position on this issue with which they can approach China. Whether these countries are trying to get this consensus before taking the discussion to China for strategic reasons or based on considerations of unity between member states, the methodology is flawed, for two reasons: The first error relates to the ideals upon which ASEAN is founded, as a regional international organization aimed at securing the interests of its member states and maintaining regional peace and stability. However, with the Spratlys issue, ASEAN has conveniently forgotten, or chosen not to, question some of its member states — including Vietnam, the Philippines and Malaysia — about the legality of their claims to the Spratly Islands. For ASEAN to adopt a collective approach to the Spratlys issue, it would essentially be supporting its member states, from the background, vis-a-vis the legality of their incursions into the islands. This would be injurious to ASEAN’s international standing and credibility.
ASEAN’s second error is seeking to negotiate with China and disregarding Taiwan’s rights. Historically, the Republic of China (ROC) on Taiwan has had jurisdiction over the Spratlys since the end of World War II. The ROC government has never relinquished its claim over the islands. This fact has not prevented other countries from attempting to invade the islands: Vietnam in the late 1960s, the Philippines in the early 1970s, Malaysia in 1983 and China in 1988. All of these countries have attempted to take the islands by force, at a time when these islands were already owned by the ROC government.
Taiwan protested those countries’ incursions, but lacked the military capability to oppose them, and its protests weren’t given the consideration or respect they were due. Now these countries that have no legal justification for invading the islands are meeting to discuss ways to address the conflict of interests between them, completely ignoring the one country with the strongest claim to sovereignty over the islands: Taiwan. This behavior, which is totally inconsistent with the established practices of the international community, is not becoming in an organization founded on lofty ideals.
At present, ASEAN does not have any established conventions on how to deal with intraregional territorial disputes. This is regrettable. In the last few years, intraregional territorial disputes between ASEAN member states have been referred to the International Court of Justice (ICJ) for mediation. This is how the organization dealt with disputes between Indonesia and Malaysia over Sipatan and between Singapore and Malaysia over Pedra Branca. Other member nations have expressed their approval of this arrangement — but why hasn’t this been used in the case of the Spratlys? Could it be that China objected to the issue being referred to the ICJ? Why hasn’t ASEAN admitted that Taiwan also has a claim, or invited us to join in the negotiations? Is this another instance of ASEAN being wary that China might object? If this is the case, then as a regional organization, and in view of its own Regional Forum, ASEAN cannot be expected to be able to deal with this issue with any degree of impartiality.