The Influence of ASEAN Community on the Integration of South China Sea Policy and China's Countermeasures

• Author: Yang Li-yan
• Position: Ph.D., Professor of School of International Law of Southwest China University of Political Science and Law
• Pages: 65-83

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The Influence of ASEAN Community on the Integration of South

China Sea Policy and China’s Countermeasures

Yang Li-yan

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Abstract: In order to seek a long-term and stable solution to the South China Sea disputes

between China and claimants of ASEAN in the South China Sea, this paper analyses the

ASEAN CommuniParty, which is composed of the ASEAN Political Security Community

(APSC), the ASEAN Economic Community (AEC) and the ASEAN Social and Cultural

Community (ASCC) from a legal and historical perspective. In our argument, we emphasize

that the integration of ASEAN communities has made considerable progress under the

guidance of the ASEAN Charter and the series of legal documents of the three ASEAN

communities: in politics (including foreign relations), economy and society, and culture, among

others. The policies and laws concerning security integration of regions, including the South

China Sea, are included. These policies and laws highlight the integration characteristics of the

ASEAN Community’s institutions, legal documents and dispute settlement mechanisms on the

South China Sea issue. In this regard, China should attach importance to the integration of

ASEAN on the South China Sea issue, take the initiative to put forward proposals for

cooperation with the ASEAN community, set up an international mechanism for economic

cooperation in the South China Sea, or incorporate the South China Sea cooperation into the

construction of upgraded version of China-ASEAN FTA, and consider the cooperation of the

South China Sea in the light of the Belt and Road initiative. This will bring about long-term

regional securityand welfare benefits, as well as demonstrate China’s regional and

international governance capabilities.

Key Words: ASEAN Community; Regional Integration; South China Sea Disputes;

Marine Development; International Cooperation

1. Introduction

On January 22, 2013 the Philippines, invoking the provisions of Article 287 and Annex

VII of the United Nations Convention on the Law of the Sea (hereinafter referred to as the

Convention), unilaterally packaged the dispute between China and the Philippines over

territorial and maritime delimitation in the South China Sea as a number of separate issues

concerning the interpretation or application of the Convention and filed the arbitration.

Subsequently, on February 19, 2013, the Chinese Government explicitly rejected the Philippine

arbitration request. The arbitral tribunal (“arbitral tribunal”) established at the unilateral request

of the Philippines, despite the fact that there was no jurisdiction over disputes in the South

China Sea between China and the Philippines, insisted on advancing the arbitration and issued

an award on jurisdiction and admissibility on October 29, 2015 (“jurisdictional award”), and

another award on substantive issues as well as the issue of residual jurisdiction and

admissibility on July12, 2016 (“final award”).

Although only the Philippines initiated arbitration concerning the South China Sea, it has

aroused the common concern of ASEAN, including the claimants of the South China Sea. In

this concern, China insists that negotiation and consultation are the primary means of peaceful

1

Yang liyan, Ph.D., Professor of School of International Law of Southwest China University of Political Science

and Law. This work was supported by Southwest University of Political Science and Law under (No.

33113204002) & Ministry of Education under Grant (No. 15JZD036).

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settlement of disputes over territorial sovereignty and maritime delimitation. It adopts a dual-

track approach, on one hand, contacting with ASEAN members of the claimants of the South

China Sea, and on the other getting in touch with ASEAN. China’s contacts with ASEAN are

based on the situation that ASEAN is a regional organization that appears with one voice and

as one centre, which is different from China’s previous emphasis on negotiating only with

claimants. Nevertheless there are some shortcomings: for example, the deepening ASEAN will

be considered in cooperation negotiations so that to make full use of ASEAN’s own cooperation

foundation, which is also the reality suitable for the ASEAN integration; at the same time, it is

conducive to the deep cooperation between China and ASEAN, which is hold by the author as

quite necessary and important and can become a long-term mechanism of maintaining stability

in the South China Sea. The current situation, however, is that people are more concerned about

the basic cooperation on the South China Sea, such as regional security and freedom of

navigation.

Other deep-seated issues, such as marine resources, territorial boundaries, marine

environment and scientific research are the most controversial points in disputes and have not

yet been considered. The adoption of various deep cooperation mechanisms is also very

important. For these reasons, it is necessary to conduct research and write relevant papers in

this respect. In the research, the author studies and elaborates on ASEAN from the perspective

of history and treaty text. She believes that ASEAN has gradually deepened its integration since

its establishment in 1967, from regional security to regional economic cooperation and even

social and cultural integration. The use of the legal documents, hard law and soft law of

regional organizations together has enabled ASEAN to achieve its goal of opening up three

communities. The study of ASEAN’s integration process is worthy of attention. It will

contribute to the cooperation with China in the South China Sea negotiations and in other

interconnections and economic cooperation along maritime silk routes. This is because it saves

on the negotiation cost and energy and time, and the policy and law implementation cost of

cooperation, and jointly promote the in-depth cooperation between China and ASEAN.

Thereby achieving long-term stability in East Asia.

ASEAN began to establish the ASEAN Community at the end of 2015.

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Since then, the

ASEAN Community has initiated the process of deeper integration of ASEAN, and its

influence has gradually become more and more important to the surrounding areas, East Asia

and even Asia with the integration deepening. It is necessary to study its start-up, legal basis,

expected objectives and integration content because the interaction with a country and with a

closed regional international organization is totally different. China is not only a country

separated from ASEAN Community by a narrow strip of water, but also its close economic and

trade partner. The practical significance is extremely obvious and important.

2. The Establishment of ASEAN Community and the Development of

Its Integration

(a) The Establishment of ASEAN Community

The start-up of ASEAN Community is based on the legal and organizational foundation

of ASEAN. The Association of Southeast Asian Nations (or ASEAN) is a closed regional

organization. In 1967, with the efforts of five Southeast Asian countries, the signing of the

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Each pillar has its own Blueprint, and together with the Initiative for ASEAN Integration (IAI) Strategic

Framework and IAI Work Plan Phase II (2009-2015), they form the Roadmap for an ASEAN Community 2009-

2015, http://asean.org/asean-political-security-community/ (accessed on January 17, 2017).