NST Leader: Code at sea?

February 20, 2023 @ 12:00am

https://www.nst.com.my/opinion/leaders/2023/02/881539/nst-leader-code-sea

THE South China Sea is getting stormier by the day. Not because of inclement weather, but because of geopolitics.

On Feb 6, two Chinese coast guard vessels confronted Philippine ships near the disputed Second Thomas Shoal, briefly blinding the crew of a ship with laser.

President Ferdinand Marcos Jr, in response to the incident, is quoted by the Associated Press as saying that his country will not activate its 1951 defence pact with the United States.

This is a dangerous development because Marcos’ response entertains the possibility of activation should circumstances warrant it. One such circumstance may be like what happened in March 1988, when China and Vietnam clashed over Johnson South Reef in the Spratlys, resulting in the latter losing 70 soldiers, according to The Economist.

The Philippines, Malaysia, Brunei and Vietnam dispute that, claiming sovereignty over parts of it. The nine-dash line is also an issue for Indonesia and others, which find China’s claim infringing on what the United Nations Convention on the Law of the Sea (UNCLOS) calls exclusive economic zone (EEZ), an area that extends the sovereign rights (as opposed to sovereignty) of the coastal states to 200 nautical miles.

The EEZ is important because it places the coastal states in a dominant position in managing the living and non-living resources adjacent to the coast, says Malaysian maritime scholar Associate Professor Dr Mohd Hazmi Mohd Rusli, lecturer at the Faculty of Syariah and Law, Universiti Sains Islam Malaysia.

A decade ago, the Philippines took its dispute with China to the Permanent Court of Arbitration (PCA) in The Hague. On July 12, 2016, the tribunal ruled in favour of the Philippines, stating there was no legal basis for China’s nine-dash-line claim. But China refuses to recognise the PCA’s ruling.

China should not push its Asean neighbours thus. There is a better way to settle maritime sovereignty and sovereign rights: a code of conduct for the South China Sea.

Troublingly, the code has been gathering dust since the regional bloc made an initial go at it in 2002, chiefly because China prefers a bilateral negotiation.

The code has an earlier history. Again, it’s a Beijing-Manila story when in 1995, China seized a reef claimed by the Philippines.

The parties to the dispute did talk, but in an on-and-off fashion. By taking this approach, China is only postponing regional tensions to the near future.

With an eye on the now, China and Asean must revisit what they in 2002 had signed off as the “Declaration on the Conduct of Parties in the South China Sea”, if they are sincere in “promoting a 21st century-oriented partnership of good neighbourliness and mutual trust”, as its preamble proclaims.

Sincerity means recognising “the principles of international law, including UCLOS”, again, as the declaration trumpets. Sadly, after yet another skirmish at sea, the 2002 declaration remains just that.

If a rules-based international order is the aim of the parties, then they will turn the declaration into a binding code.