ASEAN needs 'more effective' code with China on sea row

By Dario Agnote, Kyodo News

Posted at Jul 10 2013 11:34 PM | Updated as of Jul 11 2013 07:34 AM

MANILA - ASEAN and China need to forge a more effective and credible code of conduct that clearly identifies "concrete conflict prevention measures" to keep rival claimants from flexing their military muscles and occupying more disputed features in the South China Sea, diplomats and analyst said Wednesday.

"How to make the agreement more effective is very important," Eileen Baviera, a professor on Chinese studies and international relations at the Asian Center of the University of the Philippines, said.

So far, Baviera said in an interview, "The existing agreements (on the sea disputes) have not really been very effective."

"I think very clearly you need to have some concrete conflict prevention measures, a military tight agreement, on how to behave when you see each other's navies in the ocean."

She said a proposed code "must be able to help guide the different countries on what is acceptable behavior."

"It's difficult if each country has its own rules of engagement or follows its own guidelines. That's what brings us into confrontation with each other. I think a code of conduct, more than anything else, should have conflict prevention measures," Baviera said.

Indonesian Foreign Minister Marty Natalegawa said unity among the members of the Association of Southeast Asian Nations is vital in negotiating a legally binding code of conduct with China.

The sea dispute has indeed divided ASEAN, making it difficult for the group to come up with a unified position on how to deal with China's actions.

Four of six claimants, Brunei, Malaysia, the Philippines and Vietnam, are ASEAN members.

"We need to remain united. That will always be ASEAN's strength," he said in an interview in Bandar Seri Begawan. "As long as ASEAN is united then we will be all right. But as soon as we begin to have an a la carte ASEAN outlook, picking and choosing the piece that we like, that's when things will become more problematic."

ASEAN and China will again attempt to craft a more binding code aimed at reducing the risk of territorial and maritime conflicts in the South China Sea, one of the most serious long-term political and security issues in Asia.

In the late 1990s, ASEAN and China tried but failed to reach a code following China's occupation and fortification of Mischief Reef, a low-tide elevation that forms part of the seabed in the Philippines' 200-nautical-mile exclusive economic zone that China occupied in 1995.

At the ASEAN-China summit in Hanoi in October 1998, ASEAN expressed concern over China's Mischief Reef buildup and agreed to craft a regional code of conduct to prevent further escalation of conflict.

The Philippines, with Vietnam's help, drafted an ASEAN version of the code in 1999, but intense disagreement over the geographical scope, whether to include all of the South China Sea, led to the talks breaking down.

ASEAN and China instead agreed to sign in 2002 a "watered down" Declaration in the Conduct of the South China Sea that urges claimants resolve their disputes peacefully "without resorting to the threat or use of force and to exercise self-restraint in conducting activities that would complicate or escalate disputes."

Henry Bensurto, secretary general of the Commission on Maritime and Ocean Affairs Secretariat in Philippine Department of Foreign Affairs, said the nonbinding pact has failed to restrain China from occupying new features in the South China Sea.

Even after implementing guidelines in the declaration were agreed in 2010, he said tension in South China Sea never eased, but "persisted and further escalated."

At issue is China's claim of sovereignty over the South China Sea, Bensurto said, citing China's announcement in 2009 claiming almost the entire South China Sea under China's "9-dash line."

The next year, the Chinese military harassed a Philippine commissioned vessel and asserted ownership over Reed Bank, an atoll northeast of the Spratly Islands that Manila claims, he said.

In April 2012, China occupied Scarborough Shoal, a triangle-shaped area of barren reefs and rocky islets about 135 nautical miles from the Philippines and 543 nautical miles from China, that is claimed by China, the Philippines and Taiwan.

In June 2012, he said China created the administrative region of Sansha City to exercise administration in the Spratly Islands and Macclesfield Bank, a group of shoals and reefs between the Paracel Islands and Scarborough Shoal.

"China has also been increasing the conduct of sovereign patrols in the South China Sea," Bensurto added.

Last May, Manila protested Chinese ships in the vicinity of Second Thomas Shoal, the closest structure to Mischief Reef.

At ASEAN meetings in Brunei last week, Philippine Foreign Secretary Albert del Rosario, for the first time, raised China's "militarization" of the South China Sea.

"The large and persistent presence of Chinese naval vessels in (Scarborough Shoal) and around (Second Thomas Shoal), which are integral parts of Philippine territory, undermine regional maritime stability and security," he said, adding Manila "views with serious concern this militarization of the South China."

"The overwhelming presence of Chinese ships, including military and paramilitary ships, and the issuance of threats, pose serious challenges for the region as a whole. This is a violation of the (declaration)," del Rosario said. "They have constantly ships there that vary in number. And we are prevented in our exclusive economic zone from fishing, from sourcing our natural resources and from enforcing laws."

Del Rosario stressed ASEAN and China must redouble efforts to reach a code both sides can adopt.

"The negotiation and conclusion of a binding and credible code of conduct in the South China Sea should remain a priority for ASEAN to bring into fruition a regional architecture that truly operates based on the rule of law," he said.

Indonesia's Natalegawa agrees.

"Now, there is a sense of anarchy, a sense that everyone is free to themselves and do as they may and try to create legal facts on the ground or at sea. We need to remove the motives and decompress the situation," he said. "There is no need for countries to send vessels here and there or to send military vessels to accompany fishing vessels, testing and prodding and to obtain legal advantage."

But, he cautions, a code "is not a magic wand that will solve the underlying conflict, the territorial disputes. That's for the parties concerned to negotiate."

China's maritime claims include a dispute with Vietnam over the Paracels, a dispute over the Spratlys, which are claimed entirely by China, Taiwan and Vietnam, and in part by Brunei, Malaysia and the Philippines, and a dispute over Scarborough Shoal that China, the Philippines and Taiwan claim.

ASEAN also includes Cambodia, Indonesia, Laos, Myanmar, Singapore and Thailand.