While many have put their faith in a Code of Conduct some wonder if China
is stalling for time. A real solution may take years, if ever.
The South China Sea is often presented as one of the world’s thorniest territorial
disputes. A group of objective, completely disinterested observers, however,
would likely find this characterization peculiar.
Indeed, to these hypothetical
people, it would seem painfully obvious what needed to be done to at least
significantly reduce the tensions in the South China Sea. Such a plan would likely start with four simple steps:
Step 1: Put sovereignty issues to one side. These are
too complex and too emotive to be solved in the foreseeable future.
Step 2: Establish who claims what. China, for example,
is extremely protective of its sovereignty, but it has never made a precise
declaration about which areas of the South China Sea it actually owns (vaguely
drawing dashes on a map doesn’t count). Claims should be filed with the UN’s
International Court of Justice by a certain date – complete with latitude or longitude
coordinates – or be considered frivolous by the rest of the world.
Step 3: Use UNCLOS wherever possible. Here’s a happy
coincidence: all South China Sea claimants have ratified the United Nations
Convention on the Law of the Sea. That should make this situation so much
easier to handle. For areas that are not contested, UNCLOS clearly lays out the rights of the claimant state and also of
non-claimant states in territorial waters and exclusive economic zones. Any
problems and the Convention (Article 279 ff.) also has a detailed
dispute-resolution mechanism.
Step 4: Neutralize the contested areas. If the disputants
really want to maintain peace and stability in the South China Sea – and they
all say that they do – then they obviously need to draw up a
set of rules governing what is and is not allowed in disputed zones. They could
call it a Code of Conduct, or some something of the sort. Likely rules would
include: the demilitarization of disputed areas; refraining from any
provocative rhetoric or action, such as new construction projects on contested
islands; no exploration for, or exploitation of, marine resources, unless the
claimants agree to do it jointly; and the establishment of a dispute resolution
mechanism, probably under the auspices of the ICJ.
It all sounds so simple. But
beyond the realms of this “Fantasy Dispute Resolution” and back in the messy
world of international politics, this tidy plan is a complete non-starter. The
underlying reason for this is that different countries diagnose the South China
Sea problem differently. Some think the situation is dangerous and needs
fixing. Others, notably China, are actually quite comfortable with the
status-quo.
For many observers, the recent
disputes over Scarborough Shoal and other island territories have become a matter of great concern. Beijing is less disturbed, however. In fact, China’s
strategy is to maintain this sometimes messy status-quo, while making outward
demonstrations of being cooperative about seeking a lasting solution so as to
guard against accusations that it is the problem. It calculates that these
tensions are unlikely to lead to conflict, and that they are an acceptable
price to pay for its continued ability to act with relative impunity in
disputed areas. At the same time, Beijing doesn’t want to overstep the mark,
which would harm its standing in Southeast Asia (many parts of which are
pro-China), and invite greater U.S. involvement in the region.
Beijing’s grandest cooperative
gesture to date was its establishment of the 3 billion yuan ($473 billion USD) China-ASEAN Maritime Cooperation Fund in 2011. Discussions are now underway about how
this money can be spent in order to help implement the 2002 Declaration of Conduct (DOC) in the South China Sea. According to Ian Storey, a senior fellow at the Institute of Southeast Asian Studies in
Singapore, this is all building up to a tenth anniversary communiqué to mark
the original signing of the DOC. But is this really anything to celebrate? The
DOC is a failed protocol that was never properly implemented – which is why
momentum has built up behind the formulation of a new Code of Conduct.
“China’s view is that some ASEAN
members have repeatedly violated the DOC; that’s also the view of some of the
ASEAN countries about China,” Storey remarks.
“But is China serious about an
effective Code of Conduct?” he asks. “I think the answer is no. A really
effective code would constrain China’s freedom of manoeuver in the South China
Sea, and big countries don’t like that.”
The Philippines, Vietnam, and
other interested parties have doubtless reached the same conclusion about
China’s commitment to crafting a meaningful COC. Filipino proposals backed by
Hanoi for a robust COC have already been diluted by other ASEAN members, for
fear of antagonizing China. More recently, the July ASEAN Foreign Ministers
Meeting held in Phnom Penh descended into a farce, with Cambodia, the current Chair, blocking
constructive debate about the South China Sea dispute in defense of China’s
interests. Cambodia has sold ASEAN out: in doing so, it has facilitated a
Chinese policy of extraterritorial interference in Southeast Asia’s key
institution. For China, it’s been a foreign-policy coup.
Indonesia – doing the job that
Cambodia failed to do – subsequently showed ASEAN some leadership after the Phnom Penh fiasco, cobbling together a
common position called the “Six-Point Principles on the South China Sea”.
Though better than the Cambodian no-show, it’s a lax document that goes no further than calling for “an early conclusion” to the
COC drafting process.
That won’t happen. China has
already begun soft-pedaling on talks, which are now unlikely to happen until
2013 (the upcoming leadership handover in Beijing all but rules out near-term
movement on what has become such a contentious issue). A new code is therefore
unlikely to emerge before 2014 at the earliest.
It would be worth the wait, of
course, if it was a business-like code that really sought to regulate the
behavior of claimant states. But nobody expects it to be. “China will not
accept anything that is mandatory,” concludes Carlyle Thayer, an emeritus professor at the Australian Defence Force Academy.
Strangely enough, China could
gain a great deal from backing the formulation of an effective COC. Its image in the region would receive a considerable boost; calls for greater U.S. involvement in the region would diminish; and the chances of conflict over some
tiny island would recede.
However, these attractive aspects
of cooperative diplomacy are outweighed by Beijing’s instinct not to give any
ground where sovereignty issues are concerned. “When it comes to high-stake,
high-politics issues, such as territorial disputes and strategic rivalries,
international agreements have limited impact,” suggests Zhang Baohui, an
associate professor at Lingnan University in Hong Kong. “Overall I think China
is a status quo power on the South China Sea issues,” Zhang but observes that
upholding the status quo cuts both ways: China won’t facilitate a lasting
solution, but it won’t be the one to provoke a confrontation either. It will
only react forcefully to perceived provocations on the part of others, as in
its recent dispute with Manila. At the same time, it will not hold back from
pushing the envelope of acceptable behavior, such as upgrading Sansha to
city status, for example, or granting new drilling rights to Chinese oil companies.
But what is China’s ultimate
objective in all of this? “They just want to play for time, and to drag it out
as long as possible,” argues Storey. “What is China’s end game? I don’t think
they know themselves.”
Sadly, there is no Plan B for the
South China Sea. China and ASEAN appear locked into the futile process of formulating a Code of Conduct that won’t address the types of conduct that
actually need addressing. Pity the poor diplomats who will be spending the next
two years working on it. The COC is another fantasy – only one that won’t sound
good either in theory or in practice.
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