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Beijing sets the pace in South China Sea talks

ASEAN's calls for a binding dispute-resolution code face pushback from China

A Chinese warship sails in the South China Sea.   © Xinhua/Kyodo

MANILA For 15 years, China dictated the pace of negotiations with the Association of Southeast Asian Nations on a code of conduct for handling disputes in the South China Sea. Now that an agreement has been reached, Beijing seems still to have the upper hand.

On Aug. 6, foreign ministers from the 10 ASEAN members and China adopted a framework that spells out general principles of the code but leaves the details to be worked out in later talks. Just as their agreement was being hailed as a milestone for two sides that have long failed to see eye to eye, Chinese Foreign Minister Wang Yi set conditions for the talks to proceed.

"When the situation in the South China Sea is generally stable, and if there is no major disruption from outside parties as the precondition, then we will consider during the November leaders' meeting -- we will jointly announce -- the official start of the [code of conduct] conversation," Wang told reporters after meeting with his Southeast Asian counterparts, who were in Manila ahead of the ASEAN Regional Forum on Aug. 7.

Wang's stipulations again call into question China's commitment to formulating an effective code of conduct. ASEAN diplomats have previously accused China of stalling on the process, which was laid out in a previous agreement, the 2002 Declaration on the Conduct of Parties in the South China Sea.

If and when they ever get started, negotiations under the new framework will face a number of thorny issues, including whether the code should be legally binding. ASEAN wants a binding pact, while China prefers settling issues at the negotiating table, where it can wield its economic and political clout, rather than in court.

Further complicating matters is the fact that ASEAN remains divided on the South China Sea issue. After lobbying hard, Vietnam managed to include in the bloc's joint communique on Aug. 6 a reference to the land reclamation projects China has undertaken in seven areas in the sea, parts of which are claimed by ASEAN members Brunei, Malaysia, the Philippines and Vietnam.

But members such as Cambodia, a longtime China ally, and the Philippines, one of Beijing's more recent friends, rejected Vietnam's proposal to note in the communique the ASEAN's desire for a legally binding code.

OUTSIDE SUPPORT In its defiance of China, Vietnam found support from the foreign ministers of the U.S., Japan and Australia, who also attended the ASEAN forum.

"The ministers further urged ASEAN member states and China to ensure that the code of conduct be finalized in a timely manner, and that it be legally binding, meaningful, effective, and consistent with international law," according to a joint statement on Aug. 6 by U.S. Secretary of State Rex Tillerson, Japanese Foreign Minister Taro Kono and Australian Foreign Minister Julie Bishop.

The three went further and reasserted their commitment to freedom of navigation, a step likely to infuriate China. "The three countries will continue to fly, sail and operate wherever international law allows," their statement said.

On July 25, Wang urged ASEAN to reject "nonregional forces" that want to stir up trouble in the South China Sea, an apparent reference to the U.S. and Japan, which have carried out maritime exercises there.

While supporters of the ASEAN-China agreement see it as a belated step forward, critics say it offers little that is fundamentally different from the nonbinding and ignored 2002 declaration. The latest framework has not been made public, but a leaked document says the code is "not an instrument to settle territorial disputes or maritime delimitation issues."

An ASEAN declaration in 1992 called for a code of conduct for disputes involving the South China Sea, as did the 2002 joint declaration with China. Both failed to prevent the undertaking of huge reclamation and construction projects that are now complicating the situation.

"For the COC to be capable of [not only] preventing but also managing incidents that took place in the past years since the inception of the [2002 declaration] ... the COC must be a legally binding instrument," ASEAN Secretary-General Le Luong Minh told the Nikkei Asian Review in June.

If ASEAN does not fight for an effective and binding code in the coming negotiations, it could find itself at the same point it was at decades ago.

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