In case the bilateral dispute settlement and negotiating process gets underway between China and other claimant states (in South China Sea), its utility and centrality would be under duress. ASEAN in the forthcoming organization’s summit meetings have to address these issues with diplomatic suave and firm outlook.
Dr. Pankaj Jha
Faculty, O P Jindal Global University
After long drawn negotiations and discussions for more than a decade, the single draft on the Code of Conduct(COC) on South China Sea has given a glimmer of hope. However, the biggest question is whether it would be compliance based or a DOC plus mechanism. In variably, it means that while the draft might be a work in progress but the biggest question is what would be dates on which acceptance of de facto control over the islands would be perceived as acceptable to all the claimants. While there has been increasing discourse about the islands which are controlled by different countries / territories including Taiwan but whether China would accept the norms applicable to Taiwan or there would be other structures which would be negotiated with respective claimant states. The other issue which is starkly in contrast to the starting document is the removal of the legally binding word from the draft COC. The PCA ruling which went in favour of Philippines in July 2016, failed in terms of setting up norms in the contested waters and it seems that the ‘new normal’ is that ‘legal’ is the irrelevant; not the preferred word in the Chinese lexicon.
Vietnam which has the largest number of islands under its control is the aggrieved nation which has suffered the most because of the Chinese belligerent actions in the past and more recently its assertive posture in the environmentally fragile region of South China Sea(SCS). It would be prudent to dissect the COC provision to do the crystal gazing with regard to the future of South China Sea. Philippines under Duterte has accepted the Chinese infused standard operating procedures in SCS but for Vietnam that sea is very important for its economy as it provides the most feasible route for international trade and also exploration of oil and gas in its Exclusive Economic Zone. Malaysia and Brunei which has very less number of islands under their control have accepted Chinese suzerainty in those waters. Indonesia which has not been a direct claimant to those waters was drawn into the dispute because of Chinese boat militia which have been encroaching in the Indonesian waters for fishing. South China Sea is the third largest fishing grounds in the world and has few exotic fishiness which are found in those contested waters. The issue that is being discussed after agreement among the claimant states with regard to the issue of acceptance, ratification and compliance through cooperation. However, Chinese insertion of the issues such as no joint military exercises with other parties in the SCS without the approval of the claimant states, Paracel issue as a bilateral issue between China and Vietnam, and the absence of any binding dispute settlement mechanism.
For countries like Vietnam it is important that the COC should be subject to domestic ratifications and it should be registered with ASEAN. The second aspect which is valid, and has been strongly raised by Vietnam is the fact that jurisdiction with regard to Exclusive Economic Zone would remain with the claimant states. In that case Chinese nine-dash line would be consigned into history. While there in general agreement with regard to the single draft for negotiation, but the problem is how to bring consensus assimilating aspirations and concerns of the multiple claimant states. However, the challenge is to accommodate the concerns of the outside countries which have seen tensions mounting in these waters in the recent past and how it would impact their maritime trade. The exploration of mineral resources and also freedom of navigation has been the critical issues among the other dialogue partners. One thing that each country would have to accept as per the PCA ruling that EEZ is not applicable to any of the South China Sea islands. The respect for this provision of PCA ruling would resolve a number of issues. Singapore which has been the coordinating country for facilitating dialogue between China and ASEAN since 2015 has handed over the role to Philippines in August 2018. Philippines being one of the claimant states would have to carefully use its diplomatic offices so that the harmony between claimant states and China is maintained. One such instrument which needs more elaboration is the adoption of the Code for Unplanned Encounter in SCS in 2016, hit line between maritime agencies as well as foreign ministries of the claimant states. These need to be carefully articulated in the China-ASEAN Strategic Partnership Vision 2030.
In the conclusion one can propose that while ASEAN has been claiming centrality in the regional security discourse it would have to work towards it so that nay dispute which germinates out of SCS should be addressed at the multilateral forum. In case the bilateral dispute settlement and negotiating process gets underway between China and other claimant states, its utility and centrality would be under duress. ASEAN in the forthcoming organization’s summit meetings have to address these issues with diplomatic suave and firm outlook. ASEAN need to consider the fact that its genesis was for the regional security of its members and must remain committed to its original objective without any fear or favour. The testing times for ASEAN has arrived, and it must pass academic and diplomatic scrutiny to stay relevant.
(Pankaj Jha is senior faculty with Jindal School of International Affairs, O P Jindal Global University, Sonepat. He can be reached at firstname.lastname@example.org)
Note: The views expressed are those of the author and may not necessarily reflect the opinion and editorial policy of National Defence.