South China Sea: writing of rule book for disputed waterway delayed by lack of trust and momentum, says maritime expert
- Wu Shicun, founding president of China’s National Institute for South China Sea Studies, is pessimistic about progress towards agreeing a code of conduct
- ‘Now is the best time for some claimant states to take advantage of the window period and consolidate and expand their vested interests,’ he says
“There is no mutual trust in implementing the Declaration on the Conduct of Parties in the South China Sea, and insufficient momentum for consultation on the COC, which created unprecedented challenges for rule-making in the region,” Wu said. “Therefore, I am personally not optimistic about the agreement in a code of conduct.”
In 2002, Beijing and the bloc signed the declaration, a non-binding document that reaffirmed self-restraint in the conduct of activities, the need for maritime cooperation, the peaceful settlement of disputes and agreement on working towards the “eventual attainment” of a code of conduct.
According to Wu, the lack of mutual political trust among states has led to stalled progress on achieving substantial cooperation in five main areas covered by the declaration, including marine environmental protection, marine scientific research, the safety of navigation and communication at sea, search-and-rescue operations and combating transnational crime.
Asean and China announced the start of the third reading of the single draft negotiating text in October but observers warned there was an arduous “deepwater zone” ahead, as claimant states have vastly different expectations about what this maritime code of conduct should entail.
Wu said these differences among claimant states regarding the details of the guideline would further complicate the discussions.
At the centre of the debate is whether the document is legally binding, whether it is a dispute settlement mechanism or a crisis management mechanism, as well as its applied geopolitical scope, he said.
Beijing may only want the guideline to be applied to the Spratly Islands, while countries such as Vietnam or the Philippines may want it to be extended to the Paracel Islands or Scarborough Shoal, Wu added.
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Another hurdle is whether the code of conduct should include certain commitments from the 2002 Declaration on the Conduct of Parties in the South China Sea, in which Beijing declared its willingness to make the code of conduct an extension of the declaration.
“From the Chinese perspective, the code of conduct can only be an upgraded version of the declaration, rather than another set of rules,” Wu said. “[Beijing perceived that] countries’ commitment enshrined in the declaration should also be carried over to the COC, but some countries are dissatisfied with this idea.”
Some countries may disagree with a part of the declaration that could exclude their opportunity to send maritime disputes to any third-party mechanism.
“[The declaration] has clearly advised that the South China Sea territorial disputes shall be resolved by countries directly concerned through friendly consultations and negotiations, ruling out the option of initiating arbitration if this section was incorporated into the code document,” Wu said.
Countries could also diverge on whether extraterritorial nations could develop oil and gas resources and conduct military drills in the South China Sea, Wu said.
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Beijing maintains that maritime issues such as resource exploration should be properly handled between directly affected countries.
In response to a query about the Philippines’ growing willingness to develop oil and gas resources with the US, Japan and Australia, Beijing said: “The exploration of resources in the South China Sea should not harm China’s territorial sovereignty and maritime rights and interests and no one shall draw forces outside the region into the issues”.
Facing the flurry of issues concerning the code of conduct, Wu said China and Asean as a whole and individual member states would have disagreements during talks.
He also noted that the “shortening window” until the code of conduct was completed led to recent heightened tensions in the strategic waterway.
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“Before the COC guidelines are finalised, now is the best time for some claimant states to take advantage of the window period and consolidate and expand their vested interests in the South China Sea,” he said.
“Because after the deal is done, they have to bear the political cost for their current doings that might be in violation of the COC.”
