The legally binding document is expected to address reducing the risk of clashes in one of the world’s most strategic maritime territories, writes Rajaram Panda
The oceanic space of the South China Sea (SCS) has emerged as a major flashpoint in the Asia Pacific region as there are several claimants to this disputed maritime territory. Several smaller nations of the ASEAN grouping claim to some parts of the SCS which are in their exclusive economic zones. On the other hand, China claims its sovereignty over this maritime space almost in its entirety. It even rejected the ruling in July 2016 of the international tribunal which ruled that China’s claims lack any historical validity. It has declared the SCS as one of its core interests, along with Tibet and Taiwan.
Over the years, China has been engaged in various activities such as island building, making new fishing zone, even trying to build a nuclear reactor in the SCS with the aim to take control of this ocean space to the exclusion of other claimants.
When the Hague tribunal invalidated in July 2016 most of its claim over the SCS in a case brought by the Philippines, China was enraged. Philippine President Rodrigo Duterte, who had taken office a month before the ruling, downplayed the ruling with a view to improve his country’s relations with China. Despite Duterte’s attempt to mollycoddle ties with China, it protested when Philippines’s defence and military chiefs visited a disputed island in the SCS. The Philippine Government maintained that it owns the territory where Filipino troops and villagers have lived for decades.
In order to achieve its objectives, China has tried and at times succeeded, in creating disunity amongst the ASEAN states. At other times, it has used economic diplomacy to get a certain member state of the grouping into its fold. For example, China took maximum advantage of the Philippines when controversial Duterte took power and willingly tried to reach out to Beijing. According to a recent report, China had even installed rocket launchers on the disputed Fiery Cross Reef in the SCS, though it claims that the facilities would be limited to defensive requirements.
This waterway has enormous strategic significance for many countries. Besides being home to rich fishing grounds and a potential wealth of oil, gas and other natural resources beneath the ocean floor, an estimated $5 trillion in global trade annually passes through the SCS. Besides China, Brunei, Malaysia, Vietnam, the Philippines, Taiwan also have claims. Issues involved in the dispute are freedom of navigation, maritime security, rules of law, global norms governing international trade and Code of Conduct (COD).
In a major development, China and Southeast Asian countries agreed on May 18 to a draft framework on the rough outline of a legally binding COD designed to prevent clashes in the strategic maritime territory.
Fifteen years ago, China and the members of the ASEAN grouping had committed to draft the COD but were unable to do so because of differences. Having committed to the draft, there are concerns within the ASEAN about whether China is expected to be sincere, or whether ASEAN has enough leverage to get Beijing to commit to a set of rules. Though mid-2017 was the timeline set by China and the leaders of the ASEAN, the draft framework was agreed upon before that date, though details have not been revealed yet.
A joint press statement issued at the end of the one-day meeting of representatives of China and 10 members of the ASEAN at Guiyang in Guizhou province stated that all parties “uphold using the framework of regional rules to manage and control disputes, to deepen practical maritime cooperation, to promote consultation on the code and jointly maintain peace and stability of the South China Sea”. Now the draft framework shall be submitted to the Southeast Asian foreign ministers meeting in Manila in August for its consideration.
The COD is a document that is expected to address reducing the risk of clashes in one of the world’s heaviest waterways. liu Zhenmin, Deputy Foreign Minister of China, observed: “The draft framework contains only the elements and is not the final rules, but the conclusion of the framework is a milestone in the process and is significant. It will provide a good foundation for the next round of consultations.” Till its final approval, the draft document shall remain as an internal document and confidential. Therefore, its details shall remain unknown for some time.
With China on board, in theory the ASEAN nations could expect to tame it and ensure it behaves responsibly but it would remain an open question whether Beijing will be willing to halt its activities of constructing artificial islands and loosen its pursuit of effectively controlling the disputed territory. Given China’s obstinate stance on the SCS, the ASEAN states are unlikely to have much leverage in asking Beijing to respect the rules.
The Philippines chairs this year’s ASEAN meetings and started first bilateral consultations with Beijing over the SCS issue. The framework on the COD was co-chaired by China’s liu and Singapore’s Permanent Secretary for Foreign Affairs, Chee Wee Kiong. Neither revealed what transpired in the meeting, preferring to keep it confidential for the time being. No date was also given for the adoption of a full COD.
It is a positive sign that the Philippines chose a pro-active stance after initially cozying with Beijing. In April 2017, the Philippines hosted the 30th ASEAN summit. It highlighted a watered-down communiqué that evaded reference to China’s maritime encroachment in the SCS. Analysts expressed disappointment that ASEAN states have rather been soft on China’s aggressive activities in the sea. They fear that Beijing might be emboldened to step up its incursion in the area and this in turn could undermine ASEAN’s centrality. The non-issuance of a joint statement in the June 2016 meeting of ASEAN leaders and China at Kunming is cited as the result of the kind of pressure China applied on ASEAN leaders.
Since the time of The Hague ruling in July 2016, dialogue and consultations with China by the ASEAN grouping have restored some of the confidence, if not “turned a new page” on dealing with the SCS issue. With the Philippine fishermen regaining access to Scarborough Shoal after years of being blocked by Chinese ships, tension between the Philippines and China eased to some extent. But distrust has not disappeared.
It took 15 years to reach at a draft on the COD, which is yet to be finalised, leading to expansion of differences as China toughened its aggressive stance. In the absence of such an agreement, the parties followed a separate document called the Declaration on the Conduct of Parties or DOC, which among other provisions, commits the parties to “exploring ways for building trust and confidence... on the basis of equality and mutual respect”. When the member states and China signed the DOC in November 2002 in Cambodia after several years of prolonged negotiations, it was hailed as a milestone document. Though it did not fulfill its mission to build greater trust between the claimant states and prevent the dispute from escalating, it played the role of imposing moral constraints on relevant parties. It was seen as a compromise between the two positions of doing nothing and having a legally-binding agreement. It served as a reference point when problems and tensions emerged and the grounds for negotiations of a formal COD.
The Philippines is going to host another second leaders-level meeting in November together with ASEAN’s dialogue partners such as Australia, China, India, Japan, New Zealand, South Korea, Russia, and the United States. It is to be seen if some sort of consensus is reached and a new direction is found to resolve the contentious SCS issue.
Though the draft for the COD has been kept confidential, it is to be seen if the three purposes contained in the text of the DOC of 2002 — promoting confidence-building measures, engaging in practical maritime cooperation, and setting the stage for the discussion and conclusion of a formal and binding COD — are adopted and implemented in letter and spirit when Manila hosts the ASEAN foreign ministers in August 2017.
Professor (Dr) Panda is the Indian Council for Cultural Relations India Chair Visiting Professor at Reitaku University, Japan. The views expressed are his own and do not represent either of the ICCR or Government of India. rajaram.panda@gmail.com