Thu, Aug 22, 2024 page8

• A model of dismissive negotiation

  • By Gurjit Singh
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  The Philippines is fighting a tough battle against the China Coast Guard’s intrusions into its exclusive economic zone (EEZ). During ASEAN meetings, Chinese reduce the intensity of the restrictions on Philippine ships without withdrawing from the area.

  Thus, during last month’s ASEAN Foreign Ministers’ Meeting accompanied by meetings of foreign ministers at the ASEAN Regional Forum, the East Asia Summit and the China-ASEAN meeting, it seemed like an order of a ceasefire by the Chinese against Philippine efforts to replenish their small contingent stranded on a grounded ship at Second Thomas Shoal (Renai Shoal, 仁愛暗沙). No sooner are these meetings over than Chinese efforts to restrict movement of Philippine ships and assault them with non-lethal weapons recurred.

  Such Chinese aggression and the relative silence of ASEAN make Manila feel isolated. Consequently, the Philippines is seeking ASEAN Plus solutions by closely aligning itself with Quadrilateral Security Dialogue (Quad) countries, namely the US, Japan, Australia and India.

  While China seems to continue to engage ASEAN on developing a binding code of conduct in the South China Sea, its actions clearly appear to be that it owns the sea, which is covered by its new laws under which the China Coast Guard is empowered to deal with ‘intruders’ into its perceived area.

  ASEAN seems to be waiting for the code of conduct to come into play in the hope that it would restrict China, as it would be a binding agreement. This has been going on for two decades. In 2002, when negotiations began, ASEAN and China issued a Declaration on Conduct of Parties in the South China Sea. That was meant to be a precursor to the code of conduct, but has remained the only declaration.

  A recent commentary quotes Japanese academic Tsutomu Kikuchi of Aoyama Gakuin University as saying: “The ASEAN-China talks on the code of conduct have become a forum for mutual complacency, where both sides can pretend that progress is possible.”

  ISEAS-Yusof Ishak Institute fellow Sharon Seah Li-lian adds that the delay on the negotiations was caused by disagreements over the code of conduct’s enforceability, its geographical scope and activities it would proscribe.

  Before the COVID-19 pandemic, ASEAN achieved some understanding with China on the preamble to the code of conduct. Before 2017, China did not wish to discuss this with ASEAN, because it felt that problems in the South China Sea were with individual ASEAN members and needed to be settled bilaterally.

  Vietnam and the Philippines were in the front zone, and while Brunei and Malaysia adopted a quieter, non-confrontational view, Indonesia, which did not have a territorial dispute under the “nine-dash line,” found itself the victim of Chinese intrusions into its EEZ in the North Natuna Sea, thus bringing it into the matrix.

  Once China had got most of what it wanted in the South China Sea and passed its domestic legislation, it realized that the battle was won. It decided to engage ASEAN as a confidence-building measure on the code of conduct. For about three years, negotiators have met with a hiatus during the pandemic, because ASEAN negotiators felt that it was more important to deal face-to-face than virtually. In this time, China adopted the position that a code of conduct would be concluded on its terms, if at all.

  During this period, how much did ASEAN members collaborate to clarify their position? This is unclear. There are problematic areas in China’s negotiating style. First, China believes that the UN Convention on the Law of the Sea (UNCLOS), to which it is a signatory, should not apply to the South China Sea and therefore should not be a part of the code of conduct. If China agrees to honor the UNCLOS, then it has ramifications on the arbitral award which the Philippines won against Chinese claims on the “nine-dash line” in 2016. The “nine-dash line” would have no standing under the UNCLOS. Hence, China wants to evade the UNCLOS.

  Second, Beijing wishes to keep the South China Sea as its own internal sea, bounded by some ASEAN countries that must follow its rules. As per Chinese understanding, the kind of a standoff that the Philippines is undertaking should not recur.

  Finally, China believes that the code of conduct should restrict the role of non-ASEAN powers in the South China Sea. The Quad partners must be restrained and not allowed to function as if in international waters. If the South China Sea is recognized by ASEAN as a Chinese lake, they would also cede rights to resources of the seabed and could exploit them only with China.

  Chinese interlocutors are normally consistent, but ASEAN has difficulties within itself. There are ASEAN countries such as Myanmar, Cambodia and Laos, which have little interest in the South China Sea. Myanmar was for the last three years the ASEAN country coordinator for China. Laos is the current ASEAN chair, Malaysia is taking over for the next three years as the country coordinator for China, and would next year chair ASEAN. Would it be able to take the code of conduct forward in positive terms? It is setting high expectations.

  Besides the lack of interest of some ASEAN members, other members that are impacted by Chinese intrusions also react differently and do not want to challenge China. Earlier, when the Philippines challenged China, it lost its right to export bananas to China and to receive Chinese tourists. Now, even Vietnam, the earlier front in this effort, is unwilling to take such risks. Since 2020, China has become the largest trading partner for ASEAN and most of its member states.

  The problem is in ASEAN’s lap. It needs to better coordinate as to how it is going to deal with the Chinese diplomatic jugglery, because for years, it has been including references to the code of conduct along with the UNCLOS in its own statements, which China does not recognize.

  In September last year, ASEAN leaders were concerned with “the need to enhance mutual trust and confidence, exercise self-restraint in the conduct of activities” in the South China Sea. They welcomed “completion of the second reading of the single draft code of conduct negotiating text, and the adoption of the ‘Guidelines for Accelerating the Early Conclusion of an Effective and Substantive Code of Conduct in the South China Sea.’”

  However, they stepped beyond the South China Sea and spoke about “the need to maintain and further strengthen stability in the maritime sphere in our region,” and underlined “the importance of strengthening maritime cooperation, and recognize the need to explore new initiatives towards these ends.”

  This is an effort to better coordinate ASEAN on its issues of maritime cooperation and security. If this succeeds, then perhaps ASEAN would have a better negotiating strategy with China. It appears that ASEAN members, even those that are landlocked, are taking a more active role in engaging among themselves to work out norms under which they can associate with each other with regard to maritime matters.

  However, in this effort, some countries have a Chinese chip on their shoulder and want to negotiate ASEAN internal positions, while thinking of what Beijing prefers. This constrains ASEAN.

  Gurjit Singh is a former Indian ambassador to Germany, Indonesia, ASEAN, Ethiopia and the African Union.

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