Pence Urges Speed on South China Sea Code of Conduct
By Ralph Jennings, Nike Ching November 16, 2018
U.S. Vice President Mike Pence is urging the Association of Southeast Nations (ASEAN) to move forward with a code of conduct for the South China Sea. But as ASEAN states already know, a deal, which once appeared on the verge of completion, now faces three gritty years of talks.
In a comment Friday to Singapore Prime Minister Lee Hsien Loong, Pence said countries in the region "must be able to explore and develop their own resources and navigate their own waters."
That, however, is hard to do because China has hemmed in four rival Southeast Asian claimants through its quick expansion of infrastructure, some for military use, on tiny man-made islets created by land reclamation. Finalizing a code is taking longer than once imagined too because of the sovereignty dispute's complexity.
China and Southeast Asian countries that dispute sovereignty over the resource-rich sea ended 2017 confident that by this year they could pass the code, which would spell out ways of avoiding accidents. The code would reduce the odds of clashes, for example, Sino-Vietnamese deadly naval skirmishes in the South China Sea in 1974 and 1988.
But early talks on the code between China and the 10-member Association of Southeast Asian Nations (ASEAN) have revealed sticky issues of sovereignty, fuel exploration and dispute resolution, matters that can't be resolved much sooner, analysts believe. Chinese Premier Li Keqiang said Nov. 13 to expect results by 2021.
"The sides are nowhere close to agreement on many points, and they haven't even begun to discuss the most difficult issues like geographic scope, details on resource sharing or a dispute settlement mechanism," said Gregory Poling, director of the Asia Maritime Transparency Initiative under the U.S.-based think tank Center for Strategic and International Studies.
China competes with Brunei, Malaysia, the Philippines, Taiwan and Vietnam for sovereignty over the 3.5 million-square-kilometer waterway south of Hong Kong. China and Taiwan claim almost all of it. Millions of fishermen use the sea along with container ships and the coast guards of claimant countries.
"The United States encourages ASEAN to move forward with a meaningful and binding code of conduct for the South China Sea," Pence said Friday.
Beijing and ASEAN agreed last year to start talks and in August this year approved a draft negotiating text.
Over the three years of work envisioned by the Chinese premier, China and ASEAN are expected to negotiate intensely over how to settle any mishaps, either legally or politically. Oil and gas exploration in contested sea zones is supposed to be on the agenda, too.
In 2014, Vietnamese and Chinese vessels rammed each other after China allowed an oil rig to be positioned in a tract east of Vietnam.
"These sort of verging on issues of sovereignty would pop up, and whenever they pop up, negotiators would need to go back to their countries for consultations and so on and all this would take a lot of time," said Oh Ei Sun, international studies instructor at Singapore Nanyang University.
The stickiest point may be how widely to apply a code. A country's acknowledgement of a dispute implies that it may not be the rightful owner, which goes against official foreign policy.
"I think in the past it's always been (about) the scope of the code of conduct, where is it going to be applied," said Termsak Chalermpalanupap, a fellow with the ISEAS Yusof Ishak Institute in Singapore.
The South China Sea "doesn't belong to any one nation," Pence said Friday. Washington lacks a claim, but Pence said it would "continue to sail and fly wherever international law allows and our national interests demand."
ASEAN and China have talked off and on about a code of conduct for the sea since the Southeast Asian bloc endorsed the idea in 1996. Some analysts said China had stalled the process but came around in 2016 after losing a World Court arbitration over the legal basis for its claim to about 90 percent of the sea.
China has "inserted numerous poison pills" into the draft negotiating text, knowing they are unacceptable to Southeast Asian claimants, Poling said. Vietnam and Indonesia have also included "nonstarters," he said. China's claim extends almost to Indonesia's outlying Natuna Islands.
To approve a code of conduct, "all parties will need to show a great deal of creativity and political will," the Asian Maritime Transparency Institute said in an Oct. 11 commentary.
Li's idea of a final code by 2021 may be China's way of telling ASEAN it's committed to that schedule, said Alexander Huang, strategic studies professor at Tamkang University in Taiwan.
"For me, I look more on the side of setting of an end date or deadline for signing a code of conduct, for themselves," Huang said.
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