NEGOTIATIONS for the Code of Conduct (CoC) in the South China Sea have stalled, thanks to the Covid-19 pandemic.
The 2021 conclusion target anticipated by Premier Li Keqiang appears increasingly unlikely. Some stakeholders have proposed negotiations via video-conferencing, while others insist on face-to-face meetings.
That aside, questions remain on the final output, quality and effective implementation of the CoC. Statements by Asean officials and their Chinese counterparts often brim with confidence. The reality is somewhat less encouraging.
The following four issues demand consideration.
FIRST — the final outcome of the CoC negotiations, the quality of the document and what it will then entail for signatories.
Are all parties prepared to accept a document that everyone will strictly abide by? If so, will there be effective monitoring, de-escalation and corrective mechanisms? Or could we end up
with another non-binding agreement that has very little substance beyond aspirational declarations — a hallmark of sorts for Asean.
SECOND — while the CoC aims to govern the behaviour of conduct by conflicting parties in the South China Sea and minimise risks, most of the "conduct" since negotiations began left much to be desired. This year alone has seen a now familiar script of ramming and other aggressive behaviour at sea by both state and hybrid actors, and interference with fishing and hydrocarbon exploration. China has a hand in almost all of these. Other claimants simply lack the resources to counter them.
In response, the United States has stepped up its naval presence. In a sign of what could be a new normal, every major Chinese maritime action could see a corresponding and almost immediate response. In case anyone hasn't noticed, major power competition is now at Malaysia's very doorstep. Our options and strategic wiggle room, continue to narrow.
There is a clear divergence between what happens on the negotiating table, and on the bridge of vessels facing off against each other on the high seas. Additionally, almost all claimant states have further entrenched their holdings and military presence in the South China Sea. It's either the height of optimism, or the fringe of delusion to think that another piece of paper can change this emerging pattern.
THIRD — given its tremendous bargaining power, negotiations will progress at a pace that China dictates, and unless Asean gets its act together, on China's terms. The Declaration on the Conduct of Parties, which was agreed on in 2002, did not see further traction until 2011, when China decided to proceed.
I'm not taking anything away from some Asean negotiators, who have pushed back hard on the more overbearing demands of their Chinese counterparts. But make no mistake — China controls the tempo of negotiations.
FOURTH — the South China Sea isn't just utilised by its littoral states, it is a major artery of global shipping. How will these stakeholders view the CoC? It is unlikely that the CoC will get much international buy-in if it is perceived as being heavily biased in favour of any claimant, and not in line with international norms.
Tomorrow marks the fourth anniversary of the result of the arbitration case brought by the Philippines against China's claims in the South China Sea. Just after the third anniversary, I argued in an NST opinion (July 29, 2019) that the situation then seemed mired in even greater tension. The situation now, seems no different.
Nevertheless, there are bright spots. Under Vietnam's stewardship, the Asean chairman's statement this year outlined the Association's "serious concerns" and the need for a "conducive environment" for CoC negotiations. More importantly, it clearly highlighted the 1982 UNCLOS (United Nations Convention on the Law of the Sea) as legal basis for territorial disputes, "legitimate interests" and "all activities in the oceans and seas".
Global pandemic or not, the South China Sea dispute continues to be a major maritime strategic-security challenge for Southeast Asia. With the facts-on-the-ground getting more acute, rather than better, Asean needs to pay significant heed to the negotiations and outcomes of the CoC. It should ask itself if agreeing to a CoC for the sake of having an agreement would make things better or worse in the South China Sea.
The writer is senior analyst at Institute of Strategic and International Studies Malaysia