Tsutomu Kikuchi, of Aoyama Gakuin University, welcomed Putrajaya’s ambition and efforts in the matter, but said there was “very little realistic chance” of reaching an agreement to ease tensions in the South China Sea.
Kikuchi said Asean has been “almost too careful” in handling the matter and had lost the opportunity to take the lead in mitigating disputes that have arisen, leaving some member countries looking beyond the regional grouping for solutions.
“The Philippines and Vietnam are expanding cooperation with like-minded nations outside the region, such as the US, Japan, Australia and India. Asean is not adequately responding to the worsening conflict over the South China Sea.
“To put it harshly, it seems as if the Asean-China talks on the code of conduct have become a forum for mutual complacency, where both sides can pretend that progress is possible,” he told FMT.
Kikuchi and Sharon Seah, a senior fellow with the ISEAS-Yusof Ishak Institute, said the delay was principally caused by disagreements over the code’s enforceability, its geographical scope, and what activities would be prohibited.
For the code to be binding and enforceable, Kikuchi said, it must contain a dispute-resolution mechanism and enforcement measures, including sanctions. However, he acknowledged that these matters are difficult to agree on.
“On the other hand, a code of conduct that is non-binding and requires voluntary restraint by the disputants would be no different from the status quo,” the international political economy professor said, noting that no progress has been made over the past 30 years.
Seah said the declaration of conduct entered between Asean and China in 2012 would suffice if the goal was merely for all nations to agree on a non-binding code.
She added that the code’s geographical scope may lead to a dead-end given that none of the South China Sea claimants would accept China’s nine-dash line, as it contravenes their rights under international law.
“Even if there are robust enforcement mechanisms in place, the question is enforceability,” said Seah.
In 2016, the Permanent Court of Arbitration in The Hague ruled that China had no basis for its territorial claims in the South China Sea.
Despite this, the major power has continued to assert sovereignty over almost the entire maritime region, giving rise to repeated clashes, particularly between Filipino and Chinese vessels, which have even led to collisions.
China has also encroached into parts of Malaysia’s exclusive economic zones near Sabah and Sarawak.
Malaysia, which takes over as Asean chair next year, has said the regional group will intensify efforts to finalise the code of conduct, which has been in the works for decades now.
In 2023, Asean and China reportedly agreed to wrap up talks on the code by 2026.
Meanwhile, Universiti Malaya’s Collins Chong, said the South China Sea code of conduct would not be able to solve the root causes of disputes, but could still serve as a baseline to mitigate escalating tensions in the maritime region.
Chong, a security and strategy analyst, believes that every party involved would benefit from the code. For China, he said, it would reflect an intention to preserve peace in the region through diplomacy.
“The US can use this code of conduct to further restrain Beijing and ensure that it adheres to basic principles of respecting the sovereignty and maritime rights of nations and the international law.
“For the claimants, including Malaysia, it will serve at least as basic norms to ensure the potential for escalations in conflicts is minimised and controlled, and by this, reduce the risks of an all-out conflict that might draw in the US.”
He said Malaysia would be strategically positioned to push for this step to prevent “unilateral escalatory actions that might destabilise the region”.