South China Sea: A serious look at the CoC

The South China Sea Seminar by WorldFuture discussed various issues including the legal aspects of the Code of Conduct which is still in negotiation

At the South China Sea seminar in Kuala Lumpur yesterday, the distinguished speakers had a serious look at the Code of Conduct.

Emeritus Professor Carlyle A. Thayer from The University of New South Wales, Australia says China will continue to press Asean in the South China Sea conflict.

But he believes the Code of Conduct itself will not be sufficient to halt the Chinese push in the disputed seas.

In his presentation at Eastin Hotel, Thayer highlighted the legal value of the Arbitral Tribunal’s ruling on China’s claims, which overlaps the Philippines and some other claimants territories in the SCS. In his view, China’s blatant nine-dash line has no legal and historic basis.

According to him, the CoC may not be legally binding and it does not grant access to third parties.

This means the United States, for example, will not abide by the CoC because they are not concerned with this tool.

However, Brunei’s proposal for a UNGA (United Nations General Assembly) biennial resolution would ensure all other countries respect the principles contained in the CoC.

He also spoke on how various parties involved in the talks have different views on the CoC’s legal status.

Vietnam, for example, wants the Contracting States to “have consented to be bound by the present Code of Conduct…”

There are views that the CoC should “be subject to ratification in accordance with the respective internal procedure of the signatory States.” 

And the instrument of ratification should be deposited with the Asean Secretary-General who “shall register” the CoC pursuant to Article 102 of the Charter of the United Nations.

And Brunei and Vietnam say no Contracting Party may hold a reservation when signing the COC. 

Bunn Nagara, Senior Fellow at ISIS (Institute of Strategic and International Studies) says the record shows a long and winding road towards a CoC in the South China Sea.

Asean countries and China are moving in the right direction towards a meaningful agreement, but it continues to be a long and hard work. 

There is no significant impasse but there continue to be pit stops, distractions and “planned or unplanned encounters” with challenges along the way.

However, at every stage, it is imperative to understand what the CoC is and isn’t, what it can do and what it cannot, which are its legitimate purposes and which are not. 

He feels there should be no false hopes or misplaced anxieties about the CoC by any party. 

The principal players are Asean nations and China, with an interested international trading community of seafaring nations led de facto by the United States.

Despite the difficulties, particularly when inflamed by controversial actions based on maritime disputes, all states involved want the same things: peace, prosperity and stability with security in the region, he says.

Regardless of trade disputes and strategic rivalries being played out between the United States and China, no party stands to gain in the situation which poses high risks and great costs.

Alarming naval manoeuvres have been reciprocated far more than constructive, confidence-inspiring measures, he says. 

Cdr Ang Chin Hup (R) Senior Researcher Centre for Maritime Economics and Industries Maritime Institute of Malaysia (MIMA) also presented his views at the seminar.

He says Southeast Asia occupies a strategically important location as a junction between the Pacific and Indian Ocean, and between two major international sea lanes of the South China Sea and the Strait of Malacca. 

The region is already the fifth-largest economy in the world with a combined gross domestic product (GDP) of US$3 trillion and China is emerging as the second-largest economy in the world. 

As a result of the Asean-China Free Trade Agreement of 2002, the trade between them increased tremendously and China had become Asean’s largest trading partner by the mid-2000s. 

Asean is also being incorporated into China’s Belt Road Initiative (BRI), an initiative in which China aims to create cooperative connectivity with Asia, Europe and Africa.

However, security conflict arose in the South China Sea over territorial sovereignty and maritime resources between China and Asean. 

“These disputes impacted relationship and trade between China and member states of Asean.”

Among some of the conflicts in the region are the Scarborough Shoal incident between China and the Philippines in 2012 and the oil drilling platform incident between China and Vietnam in 2014.

It was also announced that the negotiation on the Regional Comprehensive Economic Partnership (RCEP) has been completed. Covering 30 per cent of the world’s population and 29 per cent of its GDP, RCEP’s 15 member states will make up as the world’s largest free trade area. 

“Thus, it appears that while the conflicts in the South China Sea do have a negative impact in the region’s security, the trade relationship between China and Asean continues to prosper,” he says.

At the seminar, scholars believed in order to for the CoC to become an effective tool, Asean countries should strengthen their internal consensus and solidarity. 

Former Admiral of the Malaysian Royal Navy, Danyal Balagopal Abdullah expressed his views on the South China Sea situation. 

In his comments, the CoC should also be linked with Unclos and other maritime international laws and is a useful tool to de-escalate tension in the region.

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