Beijing's South China Sea talks with Asean are worse off than it's letting on, experts say

China may be sounding optimistic notes over an early conclusion of its ongoing talks with Asean for a code of conduct in the disputed South China Sea, but regional scholars of the row say they are far less buoyant that the accord is within reach.

Speaking in a webinar on Friday, the Southeast Asian researchers suggested instead that the talks' suspension due to the coronavirus pandemic meant Beijing now lacked the use of the ongoing negotiations as a "pretext" for saying all was well in the sea dispute.

With recent stand-offs in the waters, as well as Southeast Asian claimants ramping up "lawfare" tactics of citing international maritime law to press their respective cases - much to Beijing's annoyance - an amicable resolution looks farther away than before, the analysts said.

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The 10 countries of the Association of Southeast Asian Nations (Asean) have long viewed a legally binding and enforceable code of conduct (COC) as the best course of action for peace in the waters in the midst of their powerful neighbour's claim of jurisdiction of almost the whole sea.

Beijing's "nine-dash line" claim - making up some 85 per cent of the sea - overlaps the exclusive economic zones of Asean members Malaysia, Vietnam, Brunei, Indonesia and the Philippines.

Hoang Thi Ha, among the six speakers in the discussion organised by Singapore's ISEAS-Yusof Ishak Institute and the city state's East Asian Institute, said even without the pandemic, Beijing's hope to conclude the code of conduct talks by 2021 would still be "an improbable target - 'aspirational' as Asean would say".

Following last week's series of meetings between the 10-nation Association of Southeast Asian Nations (Asean) and major powers, including China and the United States, Beijing has sought to suggest that the negotiations were back on track.

On Thursday, China's embassy in the Philippines issued a statement saying a September 3 virtual working group meeting on the COC was an indication that both sides were "trying to make up for the time lost".

But Ha, a lead researcher of Asean's politics and security at the ISEAS-Yusof Ishak Institute, said that this meeting only saw discussions on "how to resume the negotiations, not the negotiation itself".

"I think the pandemic has taken away the pretext for China to promote the narrative that all is calm in the South China Sea, and that Asean and China are making progress because there is no substantive discussion to claim progress," the researcher said.

For now, there remained "diametrically opposed positions and interests" between Asean claimants and China on the application of international law - especially the United Nations Convention on the Law of the Sea (Unclos) - as the basis for maritime claims, Ha said.

"There is this ... almost unresolvable issue of the maritime scope of the dispute. So given the recent developments both on the 'lawfare' front and tensions at sea, I am not confident that these positions and interests will be reconciled any time soon," she said.

And if the code is agreed upon, it is likely to be watered down from the versions expected by either sides. Asean wants a legally binding code of conduct guided by Unclos, but China does not want this.

Said Ha: "I think there will be a COC for sure, if there is enough political will from both sides. But it will be settled somewhere around a set of general principles or some mechanisms of incident management."

A Chinese coast guard ship seen in the South China Sea, about 210km off the shore of Vietnam, on May 14, 2014. Photo: Reuters alt=A Chinese coast guard ship seen in the South China Sea, about 210km off the shore of Vietnam, on May 14, 2014. Photo: Reuters

Echoing these views was Le Hong Hiep, also from the ISEAS-Yusof Ishak Institute, who predicted a delay given how parties such as Vietnam were hoping for a "substantive and effective" accord unlike a 2002 agreement - the precursor to the current talks - that was "totally toothless".

Asean and China in 2002 signed the non-binding Declaration on the Conduct of Parties in the South China Sea, which urged all sides to exercise restraint in the disputed waters.

"My prediction is that the negotiations will continue to be delayed, and I don't think that it will be concluded in the next three years, especially if it is [to be] a substantive and effective COC as Vietnam wishes," Hiep said.

Julio S. Amador III, a former policy adviser in the Philippines' foreign ministry, said one hurdle in the talks was a lack of internal meetings within Asean before the bloc's COC negotiations with China.

"This has been more of an 11-country negotiation because there is no Asean meeting before this Asean-China code of conduct negotiation [so] everyone goes their own way," said Amador, now the executive director of the Philippine-American Educational Foundation.

Demonstrators protest China's seizure of fish caught by Filipino fishermen near the contested Scarborough Shoal in the South China Sea on June 14, 2018. Photo: AP alt=Demonstrators protest China's seizure of fish caught by Filipino fishermen near the contested Scarborough Shoal in the South China Sea on June 14, 2018. Photo: AP

The Philippines - currently the designated coordinator of Asean-China affairs - has been the most enthusiastic about the 2021 deadline first set by the Chinese Premier Li Keqiang in 2018.

In its statement on Thursday, Beijing's embassy in Manila said it appreciated the Philippines' commitment to the negotiations.

In response, Foreign Minister Teodoro Locsin Jnr, a prolific Twitter user, wrote on the social media platform: "China has my word on that and it will be a COC with which the rest of the world will be totally comfortable, friends and enemies alike."

He was commenting on a news report on the embassy's statement.

On Tuesday, Locsin wrote that he had "declared" during last week's Asean meetings that Manila would "push through to the second draft and get started on the 3rd" before it handed over the mantle of Asean-China coordinator to Myanmar next year.

"That is what I am honour-bound to do," the foreign minister said.

Also featured in the nearly two-hour virtual discussion was a suggestion by Chinese scholar Li Nan that Beijing could actually benefit if it dropped its nine-dash line claim.

Li, a visiting senior research fellow at the Lion City's East Asian Institute, said rather than advancing the Asian power's interests, the line had "complicated Chinese freedom of navigation [and] really generates a lot of conflict with the coastal states of the South China Sea".

He said China did not need the entirety of the water to preserve its strategic interests, and that giving up the boundary claim - inherited from the Kuomintang government - would in fact benefit Chinese "soft power in relation to the US".

He said there was precedent for China ceding ground in the South China Sea, and cited how Beijing gave up "two dashes" of an earlier 11-dash line when it struck an accord with Vietnam on their sea border in the Tonkin Gulf - referred to by China as the Beibu Gulf - in 2000.

This article originally appeared on the South China Morning Post (SCMP).

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