Two significant announcements by the US may have emboldened the ASEAN Member States to be more vocal about their concerns against China. In July 2020, the US unveiled its Position Paper titled “U.S. Position on Maritime Claims in the South China Sea” that challenges China’s “claims to offshore resources across most of the South China Sea are completely unlawful, as is its campaign of bullying to control them,” It is a departure from the earlier US policy on South China Sea of not taking “sides on the competing territorial disputes over land features in the South China Sea, we believe claimants should pursue their territorial claims and accompanying rights to maritime space in accordance with the UN convention on the law of the sea”.

A few weeks later, the US announced ‘sanctions and restrictions’ on 24 state-owned firms linked to the reclamation and building the artificial islands in the South China Sea. Secretary of State Mike Pompeo drew attention to the “trampling” of the “sovereign rights of its neighbors” and “destabilizing the region” as also causing “untold environmental devastation” of 3,000 acres of the sea space in the South China Sea; Furthermore, “The United States will act until we see Beijing discontinue its coercive behavior in the South China Sea, and we will continue to stand with allies and partners in resisting this destabilizing activity.”

The Position Paper is a useful pressure point not only for the US but also for the ASEAN against China. First, the ASEAN Member States are visibly disappointed over the slow and tardy progress on the Declaration on the Conduct of Parties in the South China Sea (DOC) and it has been languishing for nearly two decades now. The Member states had been pushing China to accelerate consultations for a quick conclusion of Code of Conduct (CoC) for which the first reading of the Single Draft COC Negotiating Text has already been completed. Perhaps the most concrete outcome of the US Position Paper is that China has offered to resume discussion on the CoC. Chinese State Councilor and Foreign Minister Wang Yi, while blaming the US of disturbing the negotiations for a Code of Conduct in the South China Sea, has called for the resumption of talks as early as possible for “maintaining long-term peace and stability in the region,”

Second, the US Position Paper is a powerful trigger for ASEAN claimant States to pursue globally accepted dispute resolution mechanism through the International Tribunal for the Law of the Sea (ITLOS) or the Permanent Court of Arbitration (PCA) given that repeated efforts to convince China to resolve contentious issues through bilateral mechanism have eluded them. There is heightened anxiety among ASEAN Member States over Chinese disregard for the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and have impressed on Beijing to adhere to its commitments contained in the Treaty of Amity and Cooperation (TAC) to resolve disputes related to the East Sea with Southeast Asian countries in a peaceful manner,

Third, through the Position Paper, the US has overtly lent support to ASEAN countries against any Chinese aggression. US Secretary of State Michael R. Pompeo has categorically stated that the US is willing to stand with its “Southeast Asian allies and partners in protecting their sovereign rights to offshore resources, consistent with their rights and obligations under international law.” In this context, Philippines has stated that it would “continue air patrols over the South China Sea despite Beijing’s calls to halt what it described as “illegal provocations”; “[But if] something happens that is beyond incursion but is in fact an attack on say a Filipino naval vessel … [that] means then I call up Washington DC,” clearly threatening to invoke the US-Philippines Mutual Defense Treaty (MDT).  

Fourth, the US’ new position on South China Sea is also a catalyst and potentially opens prospects for ASEAN and its Member States to pursue resource development in South China Sea. The claimant States had been losing critical revenues due to Chinese coercion and military interferences and in the case of Vietnam, it may have lost nearly one US billion dollars.

Although ASEAN should have much to celebrate over US’ new position on the South China Sea, particularly the claimant States i.e. Brunei, Malaysia, Philippines and Vietnam, but would still prefer diplomacy as the only tool for engagement with China.

Dr Vijay Sakhuja is a Consultant with Kalinga International Foundation, New Delhi.