HOPEFULLY, the formulation of a Code of Conduct (COC) in the South China Sea will come up for more than a mere ‘standard practice airing’ at the Association of Southeast Asian Nations (Asean) and the East Asia Summits in Kuala Lumpur, from Nov 18 to 22.
Leaders of the 10 Asean members plus eight non-Asean nations – Australia, China, India, Japan, New Zealand, South Korea, Russia and the US – will meet to resurrect moribund efforts in another push to hammer out a hitherto elusive agreement to regulate the behaviour of maritime powers in the region.
Given the complex and arduous nature of the dispute – with the claimants pressing for unqualified sovereignty over the disputed islands – both summits are not likely to be any more fruitful than previous ones in attaining a COC.
In the past couple of years, two official committees from China and Asean had been working on a COC – without any substantive progress to show for. And recently, Indonesia’s Centre for Security and International Studies made an ‘unofficial Track 2’ bid to keep negotiations on track, but the outcome was inconsequential, stymied by stumbling blocks that had frustrated early deliberations.
The COC is aimed primarily at promoting ‘a peaceful, friendly and harmonious environment in the South China Sea between Asean and China for the enhancement of peace, stability, economic growth and prosperity in the region’.
A successfully negotiated COC is crucial in light of the multiple claims on the rocky outcrops scattered around the resource-rich contested waters. But it’s far from plain sailing and experts say recent contretemps in the South China Sea will be the ‘elephant in the room’ at the Summits – if not directly on the table.
“A Code of Conduct has, indeed, become ‘a Holy Grail’ of diplomacy in Southeast Asia – idealised and striven for, but perhaps never to be attained,” said Mark J Valencia, an adjunct senior scholar at the National Institute for South China Sea Studies, Haikou, China.
The COC was first mandated by the 2002 China-Asean Declaration on Conduct of the Parties in the South China Sea. But there have been repeated infringements by most parties on this non-binding document, advocating self-restraint and settling disputes through direct negotiations.
In July 2012, Asean foreign ministers agreed on the early conclusion of a COC, vowing ‘renewed commitment’ to achieve it. However, as Valencia noted, the best they had been able to agree on was a set of ambiguous parameters that had frequently been violated or disregarded.
As complete accord among the claimants is compulsory before a COC is possible, it’s small wonder that thus far, getting all the parties involved – each with its own interests to advance and protect – on the same page looks increasingly like trying ‘to harpoon the white whale in the South China Sea’.
Valencia explained: “First and foremost, all Asean members have to agree, meaning one stubborn holdout can prevent agreement. Only four Asean members are claimants. Two are hard-line – the Philippines and Vietnam – while two others, Brunei and Malaysia, seem more willing to compromise with China.” Malaysia has urged Asean to work towards a peaceful resolution to the deadlock.
Prime Minister Datuk Seri Najib Tun Razak has expressed the hope that Asean would come up with a COC for the South China Sea as soon as possible to maintain cohesion in the developing region.
In a keynote opening address to the 30th Asia-Pacific Roundtable in Kuala Lumpur on May 31, he called for recommitment from Asean to ‘fully and effectively’ implement the Declaration on the Conduct of Parties in the South China Sea.
“Moving forward, we will continue to rely on diplomacy and dialogue to peacefully resolve differences and disputes. We will do so in accordance with and in adherence to the norms, customs and principles of international law,” he said.
Echoing Najib’s view on the necessity to expeditiously wrap up a COC is Dr Carla Park Freeman, executive director of School of Advanced International Studies (SAIS), John Hopkins University, Washington DC.
She said claimant states – Brunei, Malaysia, the Philippines, Vietnam, China and Taiwan – should set a firm timeframe to complete the COC, although an inconclusive outcome looks inevitable as there are divergent interests at play.
As Dr Freeman, whose specialty is China studies, pointed out, the Philippines’ decision to pursue its claims against China at the Arbitrary Tribunal had further complicated the matter. China might even abort the COC negotiation process as objection to the arbitration, she added during a working visit to Malaysia.
“The worry I have is if you have this arbitration, China will basically stop the movement of talks and development of the COC. China will not participate in that any longer,” she cautioned.
On the position of the US, Dr Freeman said it was to ensure a peaceful resolution to the dispute and the preservation of freedom of navigation in the region.
“The US wants to make clear to China that South China Sea is an international water where the US will not only sail its commercial vessels but also its warships,” she added, apparently alluding to President Barack Obama’s Pivot to Asia strategy.
The South China Sea impasse is frequently viewed and debated with a heavy bias against China, portraying the rising superpower as the ‘big bully’ trying to bend nations littoral to the dispute waters to its will.
A former academic who writes on geo-political issues, has pointed out that the rhetoric from certain Western powers is “particularly heated and ill-informed, focusing mainly on alleged ‘aggression’ by the China in laying claim to a large expanse of water in the South China Sea well beyond its territorial limit (12 nautical miles) or any exclusive economic zone (200 nautical miles) recognised in international law.”
James O’Neill, an Australian-based Barrister at Law (Brisbane), argued that the overblown rhetoric from especially the US, had led at least one commentator to describe so-called ‘analyses’ of the South China Sea situation as “the biggest load of ‘analytical rubbish’ about South East Asia to emerge since the CIA mistook bee faeces for a Soviet-supplied biological weapon in 1981.”
Nine Dash Line
Most of the present-day arguments fall within the so-called ‘Nine Dash Line’. These are intermittent lines drawn on a map, stretching south from China’s Hainan Island parallel to the Vietnamese coast. Then they loop back northward to China, embracing parts of the exclusive economic zones of Vietnam, Malaysia, Brunei, the Philippines and Taiwan.
According to O’Neill, the first point to be made about the Nine Dash Line is that it was drawn by the Nationalist government of Chiang Kai-Shek in 1948 – two years before the People’s Republic of China into existence.
“After the Nationalists were expelled from the mainland in 1949 and set up in what is now called Taiwan, the Taiwanese government has maintained essentially the same claim to their ‘rights’ within the Nine Dash Line, as has China,” he said in an article for the online magazine ‘New Eastern Outlook’ under the heading “What is actually happening in the South China Sea.”
The Taiwanese claim remains to the present day. He said the Taiwanese maintained a military presence on Taiping (Itu Abu) Island, the largest of the Spratly Group, about 1,600km southwest of Taiwan, adding that another Taiwanese military presence is on Tungsha (Pratas) Island about 400km southwest of Taiwan.
“In February 2008, the Taiwanese built a 2,000m airstrip on Taiping Island and although both of these facilities were well outside any claimed Taiwanese exclusive economic zone, or any part thereof, no Western governments made any adverse comment about this military activity,” he noted.
The Spratlys is a grouping of 230 islands, reefs, cays and sand banks. Only 30 of them are above water at the high-tide mark.
O’Neill pointed out that of the six claimants, only Brunei had failed to construct structures, mostly on stilts, on more than 40 of these islets and reefs; yet, the Western media again focused exclusively on the China’s ‘aggressive’ reclamation and building activities.
Beyond South China Sea
O’Neill said this was not an activity restricted to the South China Sea as had Japan also laid claim to an uninhabited atoll called Okinotori-shima, about 1,700km south of Tokyo, again well outside anything remotely approaching Japanese territorial waters.
“The Japanese government has spent billions of dollars creating an artificial concrete ‘island’, about 1.5m above sea level, on which it has created a research station. The surrounding area is of considerable economic and military significance, which provides a clear insight into Japanese motives.
“The significance is that Japan’s activities, identical in nature to the activities of China in the South China Sea, have attracted no adverse comment from the US,” he observed.
O’Neill also pointed out that no Western mainstream commentators had asked the obvious question – what would the US response be if China (or Russia) were to set up similar bases or conduct similar military exercises in the same proximity to the US mainland?
The so-called ‘Cuban Missile Crisis’ of October 1962 provided at least one historical precedent, he said.
“Based on the overwhelming inference to be drawn on the evidence, it is no more than a smokescreen,” he contended in reference to the rhetoric on
freedom of navigation, peaceful resolution of disputes and operating within the framework of international law.
Negotiations to resolve the South China Sea dispute through a legitimised COC are continuing, but finding a solution to the satisfaction of all the claimants could turn out to be an act or plan whose ambition over-reaches its capability, resulting in or potentially leading to failure.
On this, Valencia rightfully noted: “There are other ‘interim’ proposals out there, but they all seem to be acknowledging that such a Code is a ‘bridge too far’. Perhaps we should all quit dreaming and wake up to reality.”
This has a resounding prophetic ring to it.