ASEAN targets new progress in South China Sea code by yearend —draft communique

The Association of Southeast Asian Nations is targeting new progress this year in the completion of a much delayed code of conduct with China to prevent armed confrontations in the disputed South China Sea, according to a draft communique of the group seen Monday by GMA News Online.

Completion of the code, which has been supported by the United States and other Western and Asian governments not involved in the territorial conflicts, has been delayed by the slow pace of negotiations and two years of pandemic lockdowns.

That has made initial hopes to finalize the code in three years from the start of talks unattainable. In July 2019, Chinese Foreign Minister Wang Yi said ASEAN and China have completed the “first reading” of the code’s negotiating text, which has been made clearer for smoother negotiations.

ASEAN foreign ministers who will hold face-to-face meetings this week in Cambodia expressed hopes in their draft communique to be issued after their meeting to be able to complete the code’s “second reading” by the end of this year.

“We were encouraged by the progress of the substantive negotiations towards the early conclusion of an effective and substantive Code of Conduct in the South China Sea, consistent with international law, including the 1982 UNCLOS and looked forward to the completion of the second reading of the Single Draft COC Negotiating Text (SDNT) by the end of 2022,” the draft ASEAN communique said.

Diplomats say it will take about "three readings" to conclude negotiations on the code.

More challenges, however, lie ahead as ASEAN and Chinese negotiators braced to tackle the most contentious provisions of the code, including whether to declare the proposed code a legally binding pact or not and the scope of the contested region to be covered by it, according to diplomats.

Drafts negotiated by senior diplomats are also subject to finetuning and “legal scrubbing” by foreign ministers, they said.

The proposed code aims to prevent overlapping claims in the potentially oil rich region from degenerating into violent confrontations, or worse, an economically devastating major conflict. Such fears remain reflected in the ASEAN draft communique.

“We discussed the situation in the South China Sea, during which concerns were expressed by some Ministers on the land reclamations, activities, and serious incidents in the area, which have eroded trust and confidence, increased tensions, and may undermine peace, security, and stability in the region,” the ministers said in the draft statement.

“We reaffirmed the need to enhance mutual trust and confidence, exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability and avoid actions that may further complicate the situation,” they added.

The ministers emphasized “the need to pursue peaceful resolution of disputes in accordance with the universally recognised principles of international law, including the 1982 UNCLOS.”

Daniel Espiritu, Assistant Secretary on ASEAN Affairs at the Department of Foreign Affairs, said in a news conference last week that negotiations between ASEAN and China were continuing and progressing.

“We are in the general provisions. There is already progress in objectives and hopefully in the next few months we’ll be going to the mechanics of the code of conduct,” he said.

Asked if there is a consensus between ASEAN and China to make the code legally binding, Espiritu said: “It has not been decided yet.”

“We can not say that until the COC has been agreed upon,” he added.

The South China Sea is a vital sea lane where oil and natural gas have been discovered in several areas.

Finalizing the code has acquired urgency due to series of confrontations between China and its smaller Southeast Asian neighbors with competing claims to the waters, like the Philippines, Vietnam and Malaysia. The other claimants include Brunei and Taiwan.

China asserts historical ownership of nearly 90 percent of the waters based on historical accounts.

In July 2016, an international arbitral court in The Hague, Netherlands invalidated China’s historical claim over the South China Sea. The decision angered Beijing, which refused to participate in the arbitration initiated by the Philippine government in 2013.

While ignoring the ruling, China has continued to beef up its presence in the contested territories.

China was accused of militarizing the South China Sea after it was reported that it has installed missiles and radars on artificial islands it built on the waters.

Instead of a legally-binding agreement, ASEAN and China settled in 2002 for a nonbinding declaration that called  on all claimants to exercise restraint and stop new occupations in the South China Sea.

The 2002 declaration, which did not carry any provision punitive sanctions, failed to stop acts of aggression in the contested waters.

Espiritu admitted that the complicated task of getting the consensus of all parties specially on contentious details and provisions has led to delays.

“There are many interests to consider,” he said. “Each and every line must be agreed on by consensus.”

Despite delays and differences, the talks have somehow progressed, he said.

“Whatever slow progress we are making right now is already quite a significant progress compared to the last 15 to 18 years,” he said.—LDF, GMA News