Wishful thinking on Code of Conduct for SCS

Rhetoric has come full circle in the dispute over the South China Sea—but can the Philippines, the current chair of Asean and a claimant state, deliver a peaceful solution for the area? So far, there is little to see apart from wishful thinking from Manila as it pledges to conclude the Code of Conduct for the South China Sea by the end of the year.

China and many countries in Southeast Asia have had territorial conflicts over the sea for several decades. But China asserted itself and occupied parts of the Paracel and Spratly archipelagos in the 1970s and 1980s. In addition to China, its rival Taiwan, as well as Asean countries Brunei, Malaysia, the Philippines and Vietnam, are also claimants.

After years of negotiations, Asean and China signed the Declaration on the Conduct of Parties in the South China Sea (DOC) in 2002.

The DOC clearly cited that the contracting parties should exercise restraint in the conduct of activities that may complicate or escalate the disputes. Article 5 of the DOC says countries should refrain from inhabiting presently uninhabited islands, reefs, shoals, cays, and other features, and handle their differences in a constructive manner.

The nonbinding DOC failed to prevent any of these activities.

In April 2012, the Philippine Navy seized eight Chinese fishing boats, accusing them of illegally operating off Scarborough Island, long claimed by the Philippines.

China began large-scale island building and reclamation in the Spratlys in 2013. China occupies many locations in the Spratlys and has reclaimed more than 3,200 acres of land there. Beijing controls the Cuarteron, Fiery Cross, Gaven, Hughes, Johnson South, Mischief and Subi reefs. At least three airfield and other military facilities were built on these features.

In December last year, Vietnam made significant progress in its land reclamation activities and upgraded its air force infrastructure in the Spratlys. Vietnam constructed an airfield in the Spratlys way back in 1977, but the recent development was in response to China’s move. Some of the islets and rocks that Vietnam keeps in the Spratlys include Amboyna Cay, Collins Reef, Ladd Reef, Namyit Island, Sand Cay, Sin Cowe Island and Southwest Cay.

While maintaining good terms with all claimants, notably China, Malaysia was the first to claim some of the Spratly Islands way back in 1979 in its exclusive economic zone. Malaysia lays claim to Ardasier Reef, Dallas Reef, Erica Reef, Investigator Shoal, Mariveles Reef and Swallow Reef.

Negotiations for the Code of Conduct finally began four years ago when Thailand was the Asean-China coordinator. A joint working group was set up to seek common ground for the code.

The efforts to have a Code of Conduct were made amid differences, if not disputes, among Asean members due to their respective interests with China. There were some changes along the way over the past year.

The Philippines secured a favorable verdict from the Permanent Court of Arbitration against China, but since then there has been a policy flip-flop under President Duterte.

The current Asean-China coordinator is Singapore, a nonclaimant state.

The aggressive rhetoric coming out of Washington and the reactions from Beijing have once again raised tensions in the South China Sea. These factors always cast a shadow over the efforts to create a Code of Conduct.

Furthermore, both Asean and China would not make the Code of Conduct a dispute settlement mechanism. Beijing has made it clear that it would resolve conflicts only on a bilateral basis. And while some Asean members prefer to speak in one voice, many of them—notably the claimants—remain unsure if any multilateral mechanism could help.

But the point is that the Code of Conduct will likely suffer the same fate as the DOC unless the issue of territorial conflict is seriously addressed. Otherwise, it will just be another well-intentioned but useless piece of paper.

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Supalak Ganjanakhundee is regional editor of the Nation, Thailand.