ASEAN at 50 Commentary South China Sea: Waters of Contention

A COC that would legitimize China’s artificial islands in the Spratlys

Chinese Foreign Minister Wang Yi and Philippine Foreign Secretary Alan Peter Cayetano at the gala dinner of the ASEAN and its dialogue partners. Photo from ASEAN website.

Chinese Foreign Minister Wang Yi said Sunday that he and the 10 foreign ministers of the Association of Southeast Asian Nations have approved the framework for the Code of Conduct in the South China Sea.

This is just a framework, not the long-desired COC. Nevertheless, it is a major step towards an agreement that hopefully would provide stability in the vast body of water disputed by China, Philippines, Vietnam, Malaysia, Brunei and Taiwan.

The substance of that framework will be discussed in the coming months, Wang said.

“Regarding what kind of COC will be produced, that is up to the discussion by the 11 parties, China and ASEAN countries. We don’t want to prejudge the result of that negotiation. Actually on some issues, the 10 ASEAN countries they don’t have a consensus yet on some of the issues. But one thing is clear, whether it is the 2002 DOC or the future COC all the 11 countries, once they put their signatures on the document, that’s what they will do. And they need to observe the document,” he said.

The joint communique by the 10-member ASEAN, underscored the importance of the full and effective implementation of the 2002 Declaration of the Code of Conduct in the South China Sea in its entirety.

“We warmly welcomed the improving cooperation between ASEAN and China and are encouraged by the conclusion and adoption of the framework of a Code of Conduct in the South China Sea, which will facilitate the work for the conclusion of an effective COC on a mutually-agreed timeline,” the ASEAN Foreign Ministers said.

They added: “In view of this positive momentum, we reaffirmed our readiness to begin the substantive negotiation on the COC and tasked our Senior Officials to start the negotiation on the COC with China. We recognized the benefits that would be gained from having the South China Sea as a sea of peace, stability and prosperity.”

In pursuit of the “full and effective implementation of the DOC in its entirety, and pending the early adoption of an effective COC, we stressed the importance of undertaking confidence building and preventive measures to enhance, among others, trust and confidence amongst parties,” the ministers’ statement said.

The nitty-gritty of COC would be crucial. But it can be said that China would be negotiating from a position of strength.

The framework that specified that it would be “Not an instrument to settle territorial disputes or maritime delimitation issues.”

Under basic undertaking, there will be a section on “Self – restraint / Promotion of trust and confidence.”

This is something to watch out because in the 2002 Declaration of the Code of Conduct in the South China Sea, the provision was for the signatories to “refrain from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features…”

It was a most violated provision as all the parties engaged in performed activities in their occupied features.

But the most massive developments were by China in the construction in seven features that they occupy. Rocks and reefs were transformed into artificial islands with military like installations complete with runways.

The question is how the negotiators for the COC will treat those developments? Will the situation as of 2017 be the starting point of the negotiations?

It looks like that would be the position of the Philippines. Foreign Secretary Alan Peter Cayetano said in his press conference over a week ago indicated that he and Wang Yi are in agreement “not to occupy new areas” in the disputed parts of the South China Sea.

That means they would do the realistic and practical thing and not call for the dismantling of structures built in the last 15 years in the disputed features in the Spratlys.

That would throw into the wind the decision of the Arbitral Court favoring the Philippine position that the artificial islands built by China in the Spratlys are in violation of UNCLOS.

That would be a big win for China. Might is Right.