The following article was published in the May 2023 issue of the International Review of Contemporary Law, the journal of the IADL.
A FRAMEWORK PROPOSAL FOR MINILATERALISM IN THE SOUTH CHINA SEA
Frank Lloyd Tiongson*
The most recent Association of Southeast Asian Nations (ASEAN) Summit held from 10 November to 13 November 2022 came at the heels of the 20th anniversary of the signing by ASEAN member-states and China of the 2002 Declaration on the Conduct of Parties in the South China Sea (“2002 Declaration”). That the summit was held in Phnom Penh, Cambodia, where the 2002 Declaration was likewise signed, imbued the event with high expectations that negotiations for the Code of Conduct (“COC”) on the South China Sea (“SCS”) would gain substantial headway especially in the wake of the adoption of the Framework of the COC in 2017 and the Single Draft Negotiating Text (“SDNT”) in 2018.
The 2002 Declaration stipulated that the COC “would further promote peace and stability in the region” and that the parties agree to “work, on the basis of consensus, towards the eventual attainment of this objective”. The framework of the COC, endorsed by ASEAN and Chinese foreign ministers on 06 August 2017 in Manila, Philippines, delimited the objectives for the eventual crafting of the COC to: (a) establishing “a rules-based framework containing a set of norms to guide the conduct of parties and promote maritime cooperation in the South China Sea”; (b) promoting “mutual trust, cooperation and confidence, prevent incidents, manage incidents should they occur, and create a favorable environment for the peaceful settlement of the disputes”; and (c) ensuring “maritime security and safety and freedom of navigation and overflight”. The SDNT, meanwhile, streamlined the framework into the essential elements of the COC.
Expectations, however, were easily quashed as the parties failed to reach any consensus regarding the drafting of the COC. In the meantime, China continues to ramp up its reclamation activities in the SCS as old and new geopolitical tensions develop or escalate in the region, pointing to an enduring imperative for the crafting of a legally binding instrument governing the conduct of parties embroiled in the SCS dispute.
Languishing for more than 20 years now, the COC is caught in an institutional gridlock, according to observers. Philippine political observer Richard Heydarian remarked that the “ASEAN-way” of deciding on key regional issues on the basis of consensus, that is, a unanimity-based decision-making mechanism, is “no longer up to the task”. He noted the cited mechanism “unwittingly handed a de facto veto power to weaker links that are under the influence of external powers.”
The crafting of the COC does not only look bleak in the context of the mentioned institutional conundrum. Experts also doubt that it will eventually be reduced in a form of a legally binding instrument. As cited earlier, the salient objective of the COC framework states that the COC shall be envisioned to establish “a rules-based framework containing a set of norms to guide the conduct of parties and promote maritime cooperation in the South China Sea”. Heydarian underlines that the operative term in the specified objective is “norms”, “which denotes the absence of a legally binding nature”.
Owing to the continuing threat to regional peace and security of posed by the persistent dispute over the SCS, it can hardly be suggested that the situation over the volatile waters be left to fester for an indefinite time. As such, observers and commentators, skeptical that a binding COC is forthcoming in the near future, have trained their eyes towards an alternative mechanism that is unburdened by the constraints of ASEAN multilateralism – minilateralism.
Concept, constraints, and possibilities
In a seeming shift from the policy of appeasement generally adopted by the administration of former Philippine President Rodrigo Duterte, the current administration of President Ferdinand Marcos, Jr. appears to adopt a firmer stance in relation to the Philippine’s maritime dispute with China.
In the 2022 ASEAN Summit, Marcos, Jr. underlined, among others, that: “We regard as of primary import the Quadrilateral Security Dialogue’s, (Quad) assurance of unwavering support for ASEAN unity and Centrality with the view that such minilateral mechanisms should complement the ASEAN-centered regional security architecture.” Although referring to ASEAN’s collaboration with extra-regional parties, this is the first time that a Philippine high official articulated a concept that experts and observers have been advocating as a viable alternative to multilateral solutions to the SCS dispute, particularly in the form of the languishing COC.
In contrast to multilateralism, which is “a formal effort by three or more states to build trust and avoid conflict by identifying, institutionalizing and observing rules and norms for a common vision of regional or international order”, minilateralism refers to “informal and more targeted initiatives intended to address a specific threat, contingency or security issue with fewer states (usually three or four) sharing the same interest for resolving it within a finite period of time”.
Tirkey summarizes the advantages of minilateralism, thus:
Such ad hoc approaches to international cooperation bring certain advantages, including speed, flexibility, modularity, and possibilities for experimentation. These arrangements are voluntary, and follow a bottom-up approach. With a smaller membership, they can expedite decision-making and facilitate policy coordination on important focus areas.
The approach, however, is not without its constraints:
However, minilateralism also presents dangers of forum-shopping, undermining critical international organizations, and reducing accountability in global governance. Minilaterals promote voluntary and non-binding targets commitments, and not legally binding ones. For countries that are increasingly showing a preference for “soft law” mechanisms which are easier to negotiate, minilaterals make for an attractive alternative to multilaterals. However, this gives rise to compliance and accountability issues, which can in turn frustrate the objectives of global governance and international cooperation.
Teo likewise warned of the possibility that minilateralism could prove to undermine states’ commitment to multilateralism. Moreover, she also noted the dangers posed by the exclusive nature of minilateralism, which means “that an initiative could be centered only on one major power that would have relatively free rein to assert its influence over the smaller participating countries.” Thus, in the context of the SCS dispute, “it is not too farfetched to argue that each major power could create its own sphere of influence in the Asia-Pacific and potentially side-line broad ASEAN-centric multilateralism”.
Nevertheless, Teo posited that a particular approach to minilateralism may serve to circumvent its pitfalls. This approach is grounded on assumptions that minilateral initiatives could serve as the “building blocks” of multilateralism and that it could supplement the inadequacies of existing multilateralism without delegitimizing it. “For instance, if minilateralism’s strengths lie in its ability to achieve concrete results in a more time-efficient manner, then it could act as a useful operationalization of multilateral-level dialogue,” she cited. Further: “Minilateralism and multilateralism could go hand-in-hand. The important thing would be to ensure that minilateralism is seen as part of and complementary with a broader multilateral process, not something that replaces it. In this way, minilateralism could help to fortify multilateralism in the Asia Pacific.”
The adoption of minilateralist approaches to regional security issues in the ASEAN is by no means new. An example of a minilateral agreement forged by a small group of ASEAN states in relation to issues of common concern is the 2016 Trilateral Cooperative Arrangement between Indonesia, Malaysia, and the Philippines in the Sulu-Sulawesi Sea, which featured joint patrols by the naval forces of the three countries in response to the increasing presence of Islamic extremist groups in the cited waters. Another example is the Malacca Straits Patrol between Indonesia, Malaysia, Singapore, and Thailand, which features a set of practical cooperative measures undertaken by the mentioned states to secure the Straits of Malacca and Singapore – where almost half of the world’s total annual seaborne trade tonnage and 70% of Asia’s oil imports pass – against piracy and sea robbery.
These experiences highlight the readiness of states within ASEAN to enter into partnerships aimed at addressing common concerns outside the ambit of glacial consensus building at the multilateral level. Heydarian notes, referring to much earlier minilateral efforts of ASEAN member states such as in the case of the International Force for East Timor and the United Nations Transitional Administration in East Timor peacekeeping operations:
If there is one thing that history teaches us, however, is that ASEAN is not a monolithic body. Time and again, the regional group has shown its ability to rise to the occasion and overcome the inherent dysfunctions of Asian-style multilateralism. And ASEAN is often at its best when it adopts “minilateralism,” namely flexible, ad hoc yet decisive intervention by core members on sensitive geopolitical issues.
What these minilateralist interventions clearly show is there is more to ASEAN than dysfunctional multilateralism. If anything, the regional body has proven even more effective when it doesn’t insist on artificial unanimity or snail’s paced consensus-building. This is especially the case when the issue at hand is so sensitive that achieving consensus is close to impossible.
Issues ripe for minilateralist resolutions
In the case of the SCS issue, what is often overlooked, at least in the broader discursive field, is the fact that the 2016 Hague Ruling in Philippines v. China, in which the Hague ruled in favor of the Philippines, determining that major elements of China’s claim were unlawful, hardly constituted an adjudication of territorial delimitations or sovereign claims. Often buried under more provocative issues are the findings of the Arbitral Tribunal on less polarizing issues concerning, for example, respect for and recognition of traditional fishing rights and preservation of marine environments.
With respect to traditional fishing activities in Scarborough Shoal, the Arbitral Tribunal pronounced:
… the following discussion of fishing rights at Scarborough Shoal is not predicated on any assumption that one Party or the other is sovereign over the feature. Nor is there any need for such assumptions. The international law relevant to traditional fishing would apply equally to fishing by Chinese fishermen in the event that the Philippines were sovereign over Scarborough Shoal as to fishing by Filipino fishermen in the event that China were sovereign.
The Arbitral Tribunal explained that the legal basis for protecting artisanal fishing:
… stems from the notion of vested rights and the understanding that, having pursued a livelihood through artisanal fishing over an extended period, generations of fishermen have acquired a right, akin to property, in the ability to continue to fish in the manner of their forebears.
In the Tribunal’s view, it is not necessary to explore the limits on the protection due in customary international law to the acquired rights of individuals and communities engaged in traditional fishing. The Tribunal is satisfied that the complete prevention by China of fishing by Filipinos at Scarborough Shoal over significant periods of time after May 2012 is not compatible with the respect due under international law to the traditional fishing rights of Filipino fishermen. This is particularly the case given that China appears to have acted to prevent fishing by Filipinos, specifically, while permitting its own nationals to continue. The Tribunal is cognizant that April and May 2012 represented a period of heightened tensions between the Philippines and China at Scarborough Shoal. China’s dispute with the Philippines over sovereignty and law enforcement at Scarborough Shoal, however, was with the Philippine Government. The Tribunal does not see corresponding circumstances that would have justified taking action against Filipino fishermen engaged in their traditional livelihood or that would have warranted continuing to exclude Filipino fishermen from Scarborough Shoal for months after the Philippines had withdrawn its official vessels. The Tribunal notes, however, that it would have reached exactly the same conclusion had the Philippines established control over Scarborough Shoal and acted in a discriminatory manner to exclude Chinese fishermen engaged in traditional fishing.
Promoting and protecting the rights of artisanal fisherfolk especially from the concerned coastal states may be undertaken through minilateral mechanisms such as the establishment of a regional fisheries management regime in the waters of the SCS where around 55 percent of global marine fishing vessels and an industry employing at least 3.7 million people operate.
The same management regime may also be explored with respect to the preservation of marine environments in the SCS on the basis of the 2016 Arbitral Award, especially considering that polarizing questions of sovereignty are deemed “irrelevant” given that states have the “duty to cooperate” in the preservation of the marine environment pursuant to Part XII, Article 197 of the United Nations Convention on the Law of the Sea (“UNCLOS”). As suggested by the Center for Strategic and Environmental Studies’ Expert Working Group on the South China Sea, this may be undertaken through the establishment of a Fishery and Environmental Management Area in the SCS, which could very well be spearheaded by concerned coastal states through minilateral negotiations and arrangements.
The advantage of addressing these interim concerns, pending the resolution of more polarizing issues in the SCS, is that potential actors would be informed by two key instruments, namely, the UNCLOS and the 2016 Hague Arbitral Award. This has the potential of laying the groundwork for rules-based conduct stemming from specific concerns as opposed to broader contentious issues where dialogue is hard put to take off. Eventually, building on the relationships and confidence established, parties might be able to tackle even more contentious matters, including, for instance, the conduct of joint patrols by claimant states beyond territorial seas of the high-tide geologic features in the Spratlys or even pushing for a COC in accordance with UNCLOS among claimant states which respect the 2016 Hague Arbitral Award. Heydarian noted, “By enhancing their collective domain awareness and deterrence capabilities, ASEAN states will be in a better position to constrain China’s predatory behavior in adjacent waters, from the South China Sea to the North Natuna Sea and beyond.”
A framework proposal
In pushing for a minilateral approach to the SCS dispute, great care must be observed to circumvent the major pitfalls of minilateralism especially in relation to its tendency to undermine the work of multilateral institutions in establishing legally binding compliance and accountability mechanisms. Given this, it bears cautioning against overestimating minilateralism considering that minilateral opportunities “do not change the worrying structural dynamics that continue to be evident in the South China Sea today” including the inability to exact accountability for conduct violative of the UNCLOS from relevant parties.
Thus, it is important at the outset to affirm the following assumptions as earlier discussed:
- Minilateralism should be pursued as a building block of multilateralism;
- Minilateralism could be pursued as a useful operationalization of multilateral-level dialogue;
- Minilateralism ought to be seen as part of and complementary with broader multilateral processes, not something that replaces them;
- In the case of the SCS dispute, the basis of minilateral dialogue must be centered on compliance with the UNCLOS and respect for the 2016 Hague Arbitral Award; and
- Regional stakeholders must take the lead in minilateral initiatives and great care must be taken in engaging with regional and extra-regional geopolitical powers.
Owing to the imperatives of peacefully resolving the SCS dispute, the institutional gridlock faced by the COC should not stymie the search for opportunities for dialogue over specific issues over the SCS. By carving out venues for negotiation and cooperation at every turn as opposed to being completely hampered by polarization in highly politically charged issues concerning the SCS, a peaceful and rules-based regime in the currently volatile waters may yet be realized.
* National Union of Peoples’ Lawyers (NUPL), The Philippines
 Declaration on the Conduct of Parties in the South China Sea (04 November 2002), available from: https://asean.org/declaration-on-the-conduct-of-parties-in-the-south-china-sea-2/
 Richard Javad Heydarian, ASEAN needs to move to minilateralism, East Asia Forum (05 December 2017), available from: https://www.eastasiaforum.org/2017/12/05/asean-needs-to-move-to-minilateralism/
 Supra Note 2.
The Quad, or Quadrilateral Security Dialogue, is an informal group focused on security that dates back to the early 2000s. It has become more active in recent years as part of efforts to counter China’s reach and territorial claims in the Indo-Pacific.
 Bea Cupin, SUMMARY: Marcos’ interventions at the ASEAN Summit in Cambodia, Rappler.com (12 November 2022), available from: https://www.rappler.com/nation/summary-marcos-interventions-2022-asean-summit-cambodia/?cx_testId=2&cx_testVariant=cx_1&cx_artPos=0&cx_experienceId=EX4CPN0G1RJL#cxrecs_s.
 Aarshi Tirkey, Minilateralism: Weighing the Prospects for Cooperation and Governance, Observer Research Foundation (01 September 2021), available from: https://www.orfonline.org/research/minilateralism-weighing-prospects-cooperation-governance/
 Supra Note 6.
 Sarah Teo, Could Minilateralism Be Multilateralism’s Best Hope in the Asia Pacific?, The Diplomat (15 December 2018), available from: https://thediplomat.com/2018/12/could-minilateralism-be-multilateralisms-best-hope-in-the-asia-pacific/.
 Fact Sheet: The Malacca Straits Patrol, Ministry of Defense Singapore (21 April 2015),
 Richard Javad Heydarian, Time for ASEAN minilateralism on Myanmar and territorial disputes in the South China Sea, The Japan Times (06 July 2021), available from: https://www.japantimes.co.jp/opinion/2021/07/06/commentary/world-commentary/asean-minilateralism-myanmar-territorial-disputes-south-china-sea/.
 Par. 793, Arbitral Award.
 Par. 798, id.
 Par. 812, id.
 Fish, not oil, at the heart of the South China Sea conflict, Fridtjof Nansens Institute (24 October 2017), available from: https://www.fni.no/news/fish-not-oil-at-the-heart-of-the-south-china-sea-conflict-article1556-330.html
 South China Sea Expert Working Group, A Blueprint for Fisheries Management and Environmental Cooperation in the South China Sea, Asia Maritime Transparency Initiative (13 September 2017), available from: https://amti.csis.org/coc-blueprint-fisheries-environment/
 Sofia Tomacruz, Carpio offers 5 ways ASEAN can counter Chinese intimidation in South China Sea, Rappler.com (28 October 2019), available from: https://www.rappler.com/nation/243570-carpio-ways-asean-counter-chinese-intimidation-south-china-sea/
 Richard Heydarian, Marcos, Jr. and ASEAN: Minilateralism in the South China Sea, Asia Maritime Transparency Initiative (18 October 2022), available from: https://amti.csis.org/marcos-jr-and-asean-minilateralism-in-the-south-china-sea/
All articles published in the International Review of Contemporary Law reflect only the position of their author and not the position of the journal, nor of the International Association of Democratic Lawyers.