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ASEAN again seeking Code of Conduct

ASEAN again seeking Code of Conduct

A quick glance at the above map is enough to boggle anyone’s senses, but these lines are likely to be heavily debated by officials from the 10-member Association of Southeast Asian Nations (ASEAN) and China, following meetings over last weekend. Senior Asean officials and China yesterday agreed to speed up the process of finishing the code of conduct (COC) for the South China Sea – the first time Asean and China officially talked about the COC, according to the Thai Foreign Ministry permanent secretary Sihasak Phuangketkaew. This latest meeting among ASEAN members took place in Suzhou, China, with its host laying claim to about 90 percent of the South China Sea. China’s so-called “nine-dashed line” was first drawn in 1948 in order to remove previous inconsistencies and clarify its territorial claims, though historians doubt it has any historical basis. China’s claim that these were “traditional fishing grounds” holds little water, for fisherman from around the region were also active for centuries. The Scarborough Shoal, over which the Philippines lays claim, is referenced in official Chinese documents and also appears in 13th century Chinese maps. China’s first formal claim to the Shoal was made in 1935, while Manila says its first claim was in 1937-1938, although it was unable to publicize its claim due to Japanese incursions and invasion. The Shoal did not feature on Philippine maps until 1997, when Manila began to press its claim by taking ownership of the Shoal as terra nullius, or “no mans land”.

Earlier this year, three Chinese naval vessels entered the waters off the Philippine island of Palawan for the purpose of “patrol and training missions”, following the decision by Manila to take China to a United Nations tribunal to arbitrate the disputed waters. The move follows Philippine protests over Chinese incursions into waters within its exclusive economic zone (EEZ), the provision of detailed claims to waters in the East China Sea by China to the UN, and the permanent stationing of three of China’s ships to Bajo de Masinloc, or what the Chinese refer to as Huangyan island. The Philippine government also attempted to resolve the issue at last year’s ASEAN meeting in Phnom Pehn, but due to unprecedented infighting, members failed to reach a joint communique – the first time in the bloc’s 45-year history.
The Paracel and Spratly islands were ceded to Taiwan by Japan under the Treaty of Taipei, while Vietnam and the Philippines were not party to the agreement. Both Beijing and Hanoi lay claim to the islands, although there is no clear documentary evidence to Vietnamese interest until the 17th century. France launched a military expedition in 1933 to take control of the Spratly Islands after Beijing claimed the islands under the terms of the 1887 Sino-French Convention, which marked the boundary between China and Vietnam. During the Vietnam War, the Communist-run North Vietnamese recognized Chinese claims to the islands in opposition to the South Vietnamese government. The Communist government quickly reversed its position after winning the war, which culminated in the 1988 naval battle between Chinese and Vietnamese forces.
While it may at first appear that carving up territory is best done using historical documents, in many cases the documents may be inaccurate, based on flimsy evidence, the result of unfair treaties, or simply do not exist. Historical claims based on traditional fishing grounds are but one example of the difficulties of using history as a guide. Basing territorial rights on timing and strength of assertion is also wrong, for why consistently argue over territory if it is not being actively disputed by the other sides? Reversing a nation’s position is also understandable, given changes to both governments and territory in the region. A centuries old claim cannot be disqualified by one government’s brief stint in power. While it is extremely difficult to bring conflicting parties to agreement, territorial claims have been arbitrated and agreed upon in the past. What appears to be arguments over territory based on nationalistic dignity may obscure the real fight for economic interests in the underlying oil and gas reserves and mineral deposits abundant in the disputed waters. Agreements to share production and resources in these waters can be resolved, as in other regions, while issues of national sovereignty can be determined at a later date. What is clear to most concerned parties is that China’s attempts to bully each of its neighbors bilaterally in order to solve territorial claims is prone to failure. What is further clear is that if ASEAN, as a regional grouping of interests, cannot soon achieve common ground over territorial disputes then arbitration must rise to the next most appropriate level, the United Nations Convention on the Law of the Sea.




Gary Sands

Gary Sands is a Senior Analyst at Wikistrat, a crowdsourced consultancy, and a Director at Highway West Capital Advisors, a venture capital, project finance and political risk advisory. He has contributed a number of op-eds for Forbes, U.S. News and World Report, Newsweek, Washington Times, The Diplomat, The National Interest, International Policy Digest, Asia Times, EurasiaNet, Eurasia Review, Indo-Pacific Review, the South China Morning Post, and the Global Times. He was previously employed in lending and advisory roles at Shell Capital, ABB Structured Finance, and the U.S. Overseas Private Investment Corporation. He earned his Masters of Business Administration in International Business from the George Washington University in Washington, D.C. and a Bachelor of Science in Finance at the University of Connecticut in Storrs, Connecticut. He spent six years in Shanghai from 2006-2012, four years in Rio de Janeiro, and is currently based in Ho Chi Minh City, Vietnam. Twitter@ForeignDevil666