Toward a code of conduct for the South China Sea

Brunei Darussalam reportedly wants to pursue a binding code of conduct (COC) in the South China Sea as a priority during its chairmanship of Asean this year. The new Asean secretary-general, former deputy foreign minister Le Luong Minh of Vietnam, said in his inaugural speech at the transfer-of-office ceremony at the Asean Secretariat on January 9 that "Asean should speed up efforts towards an early start to negotiations with China, with a view to achieving an early conclusion of a code of conduct on the South China Sea."

What can the Asean side do when China is not ready for any formal discussion on the drafting of a COC?

This is part two of a three-part article on this question.

While waiting for the transition of the Chinese leadership to take full effect, what can be done by the Asean side without complicating the situation? Perhaps the Philippines can convene a special meeting of Asean senior officials to listen to the exposition by Brunei, Malaysia, the Philippines and Vietnam on their claims in disputed areas in the South China Sea

Late last year the Philippines invited senior officials of Brunei, Malaysia, Vietnam and China to a special meeting to discuss their respective South China Sea claims. Initially the meeting was scheduled in Manila for December 12, but China declined the invitation. Subsequently, the meeting was postponed indefinitely. If such a meeting is to take place, it should involve all Asean member states, so that they are all on the same page with the same common understanding of what the disputes are really about.

China cites historical rights to justify its "indisputable sovereignty" over all islands, rocks and other geological features behind the nine-dash line of its claimed maritime boundary in the South China Sea. China has chosen to leave the nine-dash line ambiguous (with no map coordinates), because the ambiguity gives greater room for manoeuvre.

International legal experts say the nine-dash line is unjustifiable under the 1982 UN Convention on the Law of the Sea (UNCLOS). Neighbours who want to know more details of the Chinese claims will have to go to Beijing. China holds out the possibility of a bilateral dialogue with each of the other claimants in the South China Sea. But never any negotiation, because the Chinese sovereignty is "non-negotiable".

What then is the main basis behind the claims of Brunei, Malaysia, the Philippines and Vietnam. The first three seem to base their claims chiefly on the UNCLOS, whereas Vietnam relies both on the UNCLOS and historical "rights", dating back to the French colonial administration, over both the Paracels and the Spratlys.

Therefore, for the sake of transparency, it will be useful if the four claimants in Asean can clarify where their claims are, why, and what they are claiming. Are the disputed islands capable of sustaining human habitation and economic life, and thus be entitled to exclusive economic zone (EEZ) status and other maritime rights under UNCLOS. Or they are rocks or low-tide elevations with lesser maritime rights.

Brunei's claims, for example, are modest and less controversial. The country claims only Louisa Reef and Rifleman Bank, both of them under water most of the time. They are also outside of the main group of Spratly islands, where Malaysia, the Philippines, Vietnam and China have overlapping claims in whole or in part, and where Taiwan's troops are holding Itu Aba or Taiping, which is the largest and the only island with its own natural source of fresh water.

Brunei's EEZ slightly overlaps with the joint Malaysian-Vietnamese claim of an extended continental shelf. This is not serious and can be settled in the UN Commission on the Limits of Continental Shelves, in accordance with the UNCLOS, or by consultations among the countries directly concerned.

The more serious overlapping claim is with China's nine-dash line, which comes to about 40-60 nautical miles off the shoreline of Brunei and all other coastal states in the South China Sea, including Indonesia. All the coastal states have questioned the legality of the Chinese use of the nine-dash line as China's maritime boundary, and have sought, but failed, to obtain definite official Chinese clarification. One exception was when Indonesia's then foreign minister Ali Alatas enquired in Beijing in 1995, because the nine-dash line appears to cut into Indonesia's EEZ off the Natuna Islands. His Chinese counterpart Qian Qichen reportedly assured him that China had no quarrel with Indonesia in the South China Sea. Indonesia has, since then, been exploiting the Natuna gas fields without any Chinese objection.

As the Asean chair in 2013, Brunei faces no serious domestic pressure from its tiny population of 300,000 to "do something" about the South China Sea disputes, unlike Vietnam (with its 90 million population), which chaired Asean in 2010. Brunei sees no urgent issues to warrant convening the customary "retreat" or informal meeting of Asean foreign ministers in the first quarter of this year. It did host a "retreat" of Asean senior officials at the Ulu Ulu resort in early January. However, there has been no big breaking news about the South China Sea from Brunei. This means Asean will be content with the status quo for the time being and wait until after the completion of the Chinese leadership transition.

In the meantime, one important event to watch is the Second Asean Defence Ministers Meeting (ADMM) Plus in Bandar Seri Begawan, scheduled on May 7. Asean defence ministers will first meet among themselves for the 7th ADMM on May 6; after that, they will meet their counterparts from eight dialogue partners: Australia, China, India, Japan, South Korea, New Zealand, Russia and the US. Some defence ministers might bring up South China Sea issues; then anything could happen.

Dipetik dari - The Nation