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Monday, March 26, 2012

ASEAN floundering over sea code of conduct

Special to The Japan Times

KUALA LUMPUR — A rash of run-ins between China and rival Southeast Asian claimants to maritime space and islands in the South China Sea has prompted intensified negotiations on a formal code of conduct (CoC).

In 2002 the parties agreed on a political Declaration of Conduct (DoC) and finally in July 2011 on guidelines for its implementation — only after difficult negotiations. Both are weak and nonbinding and have not prevented incidents in the Sea, most of them involving China with other claimants. It is thus no surprise that China is not particularly keen on being bound by a robust code.

However, the parties embarked on a new round of negotiations in January 2012 and there was hope that a code could be agreed, presented and approved at the planned ASEAN-China summit in Phnom Penh in November 2012 — the 10th anniversary of the DoC. But given the political differences that must be bridged, many are skeptical that the target will be met then — if ever.

The political context raises more questions than answers. The U.S.-China competition for the "hearts and minds" of Southeast Asia has begun to overshadow and influence the disputes and the attempt by the Association of Southeast Asian Nations to manage them.

It appears that, despite its denials and claims to neutrality, the United States has sided with the ASEAN claimants (its ally the Philippines, and Brunei, Malaysia and Vietnam). Ironically, U.S. backing may make it more difficult for ASEAN and China to agree on a CoC because some claimants may be more assertive and even take riskier actions than they otherwise would, increasing instability in the South China Sea. Some even argue that this works to the U.S. advantage by pushing some ASEAN members toward the U.S.

The U.S. "pivot" toward Asia in foreign and defense policy, and the accompanying announced intention to place U.S. forces in Darwin, has unsettled the region.

Indeed, Indonesian Foreign Minister Marty Natalegawa's initial reaction was "What I would hate to see is for the agreement to provoke a reaction and counter-reaction that would create a vicious circle of tensions and mistrust."

On March 16, after meeting with Australia's new Minister for Foreign Affairs, Bob Carr, he said countries should not react to the rise of China "through traditional alliances and fault lines", a thinly veiled reference to the Darwin decision. The Philippines and Vietnam support the U.S. "pivot," while the position of many other ASEAN members seems to be in flux.

Ratcheting up the pressure, the U.S. has told ASEAN that it must come up with a common and clear position on a CoC. Some pressure may be good — but too much pressure could crack and even split ASEAN on this issue.

There is a lot riding on the success of the venture. Success — defined as agreement on and implementation of a robust code — would relieve some of this pressure from the U.S. on both China and ASEAN, and diminish — but certainly not eliminate — the opportunity for U.S.-China political conflict on this issue.

But first the parties will have to negotiate a text that is both acceptable to all and effective as well — a rather tall order given the diversity of interests of the 10 ASEAN members (only four are claimants) and those of China.

ASEAN as an organization has no official position on the South China Sea disputes. It continues to seek consensus among its members — claimants and nonclaimants alike — as well as with China. But progress has been slow.

Neither the ASEAN Foreign Ministers' Meeting in Siam Reap in January 2012 nor the subsequent ASEAN-China meeting in Beijing produced significant advances.

One problem is the Philippines insistence on including a clause that will mandate the separation of the South China Sea into disputed and nondisputed areas.

The continuity and robustness of the process is also uncertain given the leadership lineup in ASEAN — Cambodia this year and Brunei next year followed by Myanmar and then Laos. Several of these countries are considered somewhat closer to China than other ASEAN members.

Indeed, Cambodia's neutral position on the disputes themselves may favor any attempt by China to demur and obfuscate.

Moreover, although ASEAN has become adept at hedging and balancing, its unity, diplomatic skills and style will certainly be tested. ASEAN's method of decision-making based on consensus, consultation, and proceeding in a step by step manner may not be appropriate for this task.

Even the ASEAN claimants seem far apart. When no real ASEAN support for its proposal to separate disputed areas from nondisputed areas was forthcoming, the Philippines Foreign Minister, Albert del Rosario criticized the process saying" so you are signing an agreement with [China]. It's supposed to be a code of conduct, but [China] is saying, on the other hand, that they own everything.

So how do you exact your code of conduct from a partner to the transaction who says he owns everything?" For the Philippines, a code — especially a weak one — would be insufficient. Vietnam supports a binding, enforceable code because it would help constrain the behavior of its ancient arch-enemy — China.

Malaysia and Brunei have been relatively quiet regarding a code. Presumably they support one but may not want to push the issue too hard vis a vis China.

Meanwhile, Indonesia is worried about the U.S.-China dynamic and would like to see a robust code that it hopes would reduce opportunity for conflict between the two. Indeed, as immediate past Chair of ASEAN, it is continuing its efforts to help forge agreement.

Nevertheless, it is likely that the fundamental drivers of the disputes -sovereignty, nationalism and access to resources — will continue to bedevil the negotiations, and the prospects for a strong code of conduct are rather dim.

In this vacuum, incidents are likely to increase. And as China's military might grows and the U.S. steps up its involvement in the region, the window of opportunity for peaceful settlement is closing.

Mark Valencia, a former senior fellow with the East-West Center in Honolulu, is a maritime policy analyst. Currently he is a visiting senior fellow for the Maritime Institute of Malaysia.

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