The South China Sea continues to act as a lightning rod for competing claims among regional powers. In the second of a three-part series, Fan Chen and Laura Zhou examine how frayed China-Philippines relations might create a ‘challenging context’ for Manila’s aims to finalise an effective and legally binding code.
The Philippine push to seal a legally binding code of conduct in the South China Sea is more symbolic than achievable because of the deep-seated disputes in the region, analysts have said.
Manila, which took over the rotating Asean chair on January 1, has said that finalising the agreement is a priority.
Earlier this month, Philippine Foreign Secretary Theresa Lazaro said the Association of Southeast Asian Nations and China would increase the pace of working group meetings to monthly gatherings from the current three-month intervals to finalise the code of conduct this year.
However, diplomatic observers said fundamental disagreements about the document’s legal nature and a 2016 international tribunal that ruled against Beijing made a deal unlikely.
Lucio Blanco Pitlo, president of the Philippine Association for Chinese Studies, said frayed relations between Manila and Beijing “would create a challenging context” for a China-Asean agreement.
Tensions between the two countries have been escalating for over a year with a series of confrontations.
In December, China accused the Philippines of organising a “dangerous and premeditated” provocation near Sabina Shoal, one of the many disputed features in the waters.
China said it had acted with restraint against several Philippine vessels near the shoal that were operating “under the guise of fishing” and “ignored repeated warnings and admonitions from the [Chinese] coastguard”.
However, the Philippines claimed three fishermen had been injured and two fishing vessels were damaged when Chinese coastguards fired water cannons at the ships. It also alleged that a small coastguard vessel had cut the anchor lines of several Philippine boats.
Beijing claims sovereignty over most features in the South China Sea and the adjacent waters, leading to disputes with rival claimants the Philippines, Malaysia, Vietnam and Brunei.
Chen Xiangmiao, an associate research fellow at the Beijing-backed National Institute for South China Sea Studies, said the code was seen as “the most important lever” for Manila to address the South China Sea security framework and consolidate its influence as Asean chair.
Chen said: “In fact, Asean countries have grown quite weary of the Philippines’ ongoing maritime conflicts with China, as these disputes have begun to impact the overall relationship between China and the bloc.”
He said Manila was making a “gesture” to secure more support within the bloc over an issue of common concern and boost its influence.
In 2002, Asean agreed to a non-binding declaration covering the disputed waters, but this failed to cool tensions.
Talks about a code of conduct have been going on since then without much progress, but foreign ministers from the bloc and China have set a target of reaching an agreement by the middle of the year.
However, Chen believes Manila’s push for an agreement was merely a “gesture”, or a diplomatic strategy, and did not actually signal any shift in its stance.
“The Philippines is signalling that it shares the same stance as other nations – which is a desire to reach an agreement as quickly as possible.
“However, the big question remains: is the Philippines genuinely committed to reaching an agreement? Does reaching an agreement mean the Philippines is willing to accept proposals from China, Malaysia, Vietnam or Indonesia that differ from its own? Whether or not Manila is prepared to accept those differences is a major sticking point,” Chen said.
He warned: “If Manila were to reach a consensus and adjust its differences with China, it would probably require making compromises. Is that possible? I don’t think so.”
One of the biggest hurdles with the code of conduct is whether it would be legally binding – something the Philippines insists upon.
In 2013, Manila challenged Beijing’s maritime claims before an international tribunal at The Hague. Three years later, the court issued a decisive ruling in the Philippines’ favour, invalidating China’s expansive claims to historic and economic rights over most South China Sea features.
However, China refused to take part in the arbitration process or accept the ruling, arguing that the tribunal did not have the jurisdiction to rule on the sovereignty disputes – a stance the Philippines has subsequently used to highlight its concerns over Beijing’s commitment to international law in the contested waters.
“Manila’s understanding of ‘legally binding’ may differ from China’s,” Chen said.
He said China could accept binding terms but required the precise delineation of applicable areas, whereas the Philippines defined a “legally binding” agreement as one that submitted all unresolved disputes to third-party mechanisms for resolution.
China was more likely to accept “legally binding” terms covering “less sensitive” areas such as fishing and environmental protection, but would be unlikely to do so on sensitive issues such as mechanisms to resolve disputes over issues such as territorial claims, maritime boundaries and the legal interpretation of military rights in the waters, Chen added.
“At present, there is no international law that can resolve territorial disputes – they can only be settled through negotiations.
“In fact, even if this dispute is taken to international law, it cannot be resolved. That would only be less efficient because no one is willing to back down. In the end, it will be ruled that the [UN Convention on the Law of the Sea] has no jurisdiction over sovereignty; ultimately, it still comes down to negotiations.”
The United Nations Convention on the Law of the Sea, agreed to in 1982 and in effect since 1994, is an international treaty that establishes a legal framework for all marine and maritime activities. More than 170 countries have ratified it, including China and all regional claimants to the South China Sea.
Beijing also wants to ban joint military exercises with countries from outside the region, such as the United States or Japan, and prefers to resolve issues through bilateral negotiations with individual Asean members.
Pitlo said public opinion in the Philippines tended to push politicians to take a tougher stance.
But he added that other states, such as Malaysia and Brunei, could afford to be open to discreet diplomacy instead of public spats with China.
This approach was partly a result of their close economic ties with China, but they were also concerned that “megaphone diplomacy” – the public airing of grievances, a practice that irks Beijing – would give it an excuse to escalate, inevitably leading to confrontations where China’s much larger navy could easily outmuscle them.
“Leaders of the Philippines have less legroom because the mass media public expectation is very high in terms of being able to defend the country’s interest ... That presents some kind of challenge for the political leadership to negotiate or compromise, especially if the leadership is under stress,” Pitlo said.
Philippine President Ferdinand Marcos Jnr has taken a tougher stance on the South China Sea compared with his predecessor, Rodrigo Duterte.
Hugo Santos, an analyst at the Asian Century Philippines Strategic Studies Institute, a Manila-based think tank, said Marcos had to “look strong” because his political image was very important.
“When the president or defence ministry says something very anti-China, take it with a grain of salt,” he said.
The code of conduct was “going to be the main narrative, but not the main topic” for Asean next year, partly because of Manila’s eye on public opinion.
According to Santos, the Philippines operated in a similar way to the US, “where you have the narrative, which is just for the media and social media ... and there’s the real negotiations”.
He added: “The mainstream people would like to hear about [the code of conduct], but there are other sectors [Asean] is going to discuss like AI, the rise of digital technology, international crime as well as food security.”
Hu Bo, director of the South China Sea Strategic Situation Probing Initiative, a Beijing-based think tank, said the biggest challenge was that Asean countries “have too many ideas and want to include too many issues” in the code of conduct.
He said it was meant to be a “very pure confidence-building mechanism; it cannot resolve disputes”.
Hu added: “The issue now isn’t that China doesn’t want to negotiate; it’s that the other side has too many conflicting ideas and their internal contradictions regarding the [code of conduct] are also significant.”
Asean is split over the proposed code of conduct, with the Philippines and Vietnam pushing for a legally binding agreement, while other members such as Malaysia and Brunei want a softer deal and to prioritise economic cooperation and joint energy ventures with China.
Non-claimant states such as Cambodia, Laos and Myanmar, which heavily rely on Chinese investment, tend to align with Beijing and wield a de facto veto over collective actions or language that might offend it.
Pitlo said bilateral and regional deals were important, adding: “I think it would be dangerous to see the [code of conduct] as like the magic pill, like the silver bullet, the panacea for the problems in the South China Sea.”
He further stressed the importance of institutionalising communications and crisis management mechanisms.
In particular, Manila and Beijing should reinforce channels for direct communications at the vice-ministerial level – one of the high-level dialogue mechanisms that remains in place – and consider setting up other communication channels.
“The [code of conduct] is not the panacea for all the problems in the South China Sea,” Pitlo said.
“At the end of the day, in the absence of finding an effective [code], we should strengthen bilateral means to manage disputes, build confidence and continue to pursue efforts to find ways to cooperate in practical sectors, like marine environment conservation, marine scientific research, combating marine pollution, search and rescue and disaster relief.” -- SOUTH CHINA MORNING POST
