By Do Viet Cuong –

The unprecedented gathering in Sunnylands – the first hosted by U.S. president Barack Obama with the ASEAN leaders – signals the deepening engagement of the United States with ASEAN, and will further advance the Obama administration’s rebalance to the Asia-Pacific region. ASEAN’s role in the South China Sea (SCS) disputes, among other topics, featured high on the summit agenda as regional maritime security is increasingly becoming a global flashpoint.

During the two-day summit, a Joint Statement of the U.S.-ASEAN Special Leaders’ Summit: Sunnylands Declaration was concluded with the creation of a common set of principles to guide nations on a range of issues, including maritime disputes in the SCS, stating that the United States and ASEAN members can together advance a rules-based regional and international order that upholds and protects the rights and privileges of all states. In particular, this historic summit demonstrated the leaders’ shared commitment to peaceful resolution of disputes, including full respect for legal and diplomatic processes, without resorting to the threat or use of force in accordance with universally recognized principles of international law and the United Nations Convention on the Law of the Sea (UNCLOS).

Prior to the summit, on February 10, a U.S. congressional resolution was introduced in the Senate recognizing that for nearly 40 years, the United States and ASEAN have worked toward stability, prosperity, and peace in Southeast Asia. Accordingly, the Senate urged ASEAN to develop a common approach to reaffirm the decision of the Permanent Court of Arbitration on the pending case between the Philippines and China regarding China’s “nine-dash line” claims.

The centrality of international law in addressing the problems in the SCS is the focal point of U.S. policy. However, the United States also considers establishing rule-based stability in the SCS to be an important U.S. national interest. As a foundational principle of the U.S. rebalance to Asia, the United States aims to shape a regional order in which disputes and crises are managed by rules, norms and institutions, rather than coercion and the use of force.

China continues to insist that ASEAN is not the right platform to discuss territorial disputes over the SCS. Beijing’s long-held view is that disputes should be resolved bilaterally between it and claimant states, rather than with ASEAN as a whole. This view is opposed by the U.S. state department, which maintains that ASEAN is a forum in which critical security issues need to be raised and discussed.

Supporting the U.S. perspective, Singaporean foreign minister K. Shanmugam said at the 48^th ASEAN Foreign Ministers’ Meeting (AMM) in Kuala Lumpur in August 2015 that, “South China Sea is an issue. We cannot pretend that it’s not an issue.” Indonesian foreign minister Retno Marsudi agreed, spurning Chinese demands to sideline the issue. Meanwhile, in his opening remarks at the same meeting , Malaysian foreign minister Anifah Aman said that the sea dispute was a “prime example” of how ASEAN should play a “vital part in effecting an amicable settlement.”

Nonetheless, it should be noted that not all ASEAN nations are equally involved in the SCS disputes. Because each ASEAN member state pursues its policy with China individually depending on its own economic interests, the ASEAN countries are divided over the proper approach toward China’s aggressive territorial claims in the SCS.

With Laos as ASEAN chair this year, many observers worry about a repeat of the 45^th AMM in July 2012, when ASEAN, under Cambodia’s chairmanship, failed to issue a joint communiqué for the first time ever because of disagreement over language on the SCS. The absence of a communiqué demonstrated that the “ASEAN way” of consensus had failed miserably when it came to the SCS.

In this context, the U.S.–ASEAN Summit in Sunnylands was an ideal opportunity for President Obama and the ASEAN leaders to discuss the need for a united front within ASEAN after the tribunal makes its ruling on the nine-dash line case around May 2016. After the Sunnylands Declaration, it is reasonable to expect a statement at the ASEAN Summit 2016 in Laos, which will acknowledge the ruling, support the right of ASEAN states to resort to arbitration, and call on all parties to pursue legal and peaceful means in their search for a resolution.

The time is at hand to think about changing the ASEAN voting mechanism based on universal member consensus. In the SCS dispute, for example, ASEAN claimant states Brunei, Malaysia, the Philippines, and Vietnam, along with interested stakeholders like Indonesia and Singapore, could express public support for the tribunal’s ruling on the arbitration case. Cambodia, Laos, and Myanmar could opt out by abstaining from the voting process. A reasonable majority of member states should be able to make a decision without fear of a veto to prevent a single state from hijacking the entire agenda for its own interests.

It is obvious that the nine-dash line case will be a critical test of ASEAN’s willingness and ability to construct a rules-based regional order. As Secretary-General of ASEAN Le Luong Minh said, while not judging the merits of territorial claims in the SCS, ASEAN calls for supremacy of the rule of law in the search for a sustainable and comprehensive solution to the current disputes in the SCS. This position has been crystallized in ASEAN’s Six-Point Principles on the South China Sea adopted in 2012. ASEAN must not be held silent by a minority. It is time they speak with a shared, if not unanimous voice, in support for international law in maritime territorial disputes.

Mr. Do Viet Cuong is a PhD Researcher in International Law at the Graduate Institute of International and Development Studies (IHEID), and the University of Geneva, Switzerland, where he focuses on the law of the sea, environmental law, energy law, and the South China Sea. He is also a Research Associate at the Center for International Studies (SCIS) at the University of Social Sciences and Humanities in Ho Chi Minh City.