South China Sea talks necessarily a slow burner – but consensus on what ‘militarisation’ means will help keep them on the boil

  • Li Keqiang may be right to warn that a code of conduct for the sea could take three years
  • The code is effectively an arms control mechanism, though not the classical type and its 11 parties have complex interests to balance
PUBLISHED : Saturday, 24 November, 2018, 1:31pm
UPDATED : Saturday, 24 November, 2018, 11:07pm

China and the Association of Southeast Asian Nations have been on a roll since late last year in their efforts to promote peace and stability in the South China Sea.

They promulgated the draft framework on the proposed code of conduct and adopted a single draft negotiating text for the code in August.

These developments attracted a mixture of reactions – from the most sceptical to the most upbeat about future progress in finalising the mechanism.

However, it would appear that those who expected the code of conduct talks to ride to a swift realisation on the momentum built up by the draft framework and single draft negotiating text might be sorely disappointed.

While some Asean policy elites had indicated that the code might materialise as fast as within the next year, Chinese Premier Li Keqiang may have poured cold water on it with his remarks that the code could take three years to finalise.

Unsurprisingly, at the recent regional summit in Singapore, both Asean and China nevertheless expressed their common desire to finalise discussions on the code.

Never mind the most optimistic predictions or otherwise; it is important to highlight that inasmuch as one would want to see the code expeditiously agreed upon and operationalised, rushing the code does not appear to be the wisest thing to do.

Considerably enormous tasks and uncertainties lie ahead even after the single draft negotiating text was adopted by the 11 parties.

If one bothers to look back at the history of multilateral arms control negotiations it is not difficult to identify the intricate set of challenges all parties face in the process of agreeing to such a treaty. The code is by all intents and purposes an arms control mechanism, albeit not the classical type which endeavours to limit the quantity and quality of armaments.

Rather, it would be akin to what arms control theorists call “operational arms control”, which, unlike structural arms control, seeks to limit not armaments per se but the way they are being employed. While these concepts might appear to be archaic cold war ideals, even today so-called confidence and security-building measures (CSBM) – such as the code under negotiation – aspire to accomplish precisely the same aims, which is to promote transparency and necessary constraints upon state parties’ behaviour in the context of interstate rivalry.

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And the challenges faced in the past are nowhere different from today’s CSBM. Progress, longevity and eventual outcomes in the negotiations are highly dependent on the state parties’ national interests. The more parties are involved, the more potential spoilers in the works of the negotiating process since a multitude of national interests, which may conflict with each other, have to be taken on board with the hope that those at the discussion table can reach a consensus. This entire process can take a long time, reaping uncertain returns both good and bad.

And history is replete also with arms control treaties that died in the process of negotiations because parties could not come to terms with each other, or, even after pacts were signed, implementation became problematic because violations by any party could not be satisfactorily redressed through proper provisions for compliance, verification and enforcement.

It is therefore through the lens of heeding the history of arms control negotiations that one tampers with expectations about the code of conduct for the South China Sea, an unprecedented mechanism of this scale and ambition in a region that has traditionally not been well socialised with formal, institutionalised CSBM – or operational arms control mechanisms.

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There are 11 parties, each having its own varying national interests with respect to not only the South China Sea disputes but more broadly their relations with each other and with external stakeholders. There is not plausibly going to be a common Asean stance with respect to the code of conduct precisely because of this.

Hence, one should not expect the talks to be dealt with on a bloc-versus-China basis. The diversity of interests among 11 parties is real and needs to be taken into full account. This also means an inherent uncertainty that will fraught the process.

As such, it might actually not be a bad thing if the talks require more than a year, going up to three perhaps as suggested by the Chinese premier, or even longer if the aim is to promulgate an effective code – one that transpires from a collective recognition of the challenges and a collective desire to overcome them.

Of course, the caveat for accommodating the idea of a longer process is that all parties have to engage in it in good faith. And that is most likely what makes or breaks the whole process.

Even as talks continue, some if not all claimants in the South China Sea continue to spruce up their physical hold over the occupied features within the disputed waters.

Call that militarisation or anything else – the truth of the matter is that such moves, despite efforts to sugar-coat them as “defensive” measures, do not lend to the promotion of mutual confidence among parties engaged in the code of conduct talks.

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Yet from the realistic standpoint, until all concerned parties – which probably have to include even external stakeholders not party to the talks – can derive a consensus on what “militarisation” means and the activities it encompasses, having a moratorium on build-up and associated activities in the South China Sea seems a tall order.

So perhaps, if all parties are either going to exercise limited self-restraint or none at all in carrying out their activities in the sea, business as usual, then the very least that parties should do to maintain a cordial atmosphere for the talks to go on is to refrain from untoward incidents between forces operating in the area.

Asean and China have only one chance to succeed. But the one who stands to lose most from a failed or ineffectually implemented code would be Asean.

It would lose its credibility if the code of conduct either failed to materialise as talks collapsed, or is poked with numerous holes by recalcitrant violations after its promulgation.

Yet China would under all conceivable scenarios remain in a physically advantageous position in the sea: those militarised artificial islands are still there regardless of whether the talks succeed or otherwise.

The alternative, of course, will be to keep the process as an ongoing iteration of continuous talks – nothing more but talks, verbal promises, rhetorical expression of the desire for this code to eventually materialise through the boilerplate political declarations customarily issued by Asean and China. One may criticise the merits of this. But at least in the face of an intractable situation where the multiple parties at the negotiating table could not reconcile their differences, the appearance of an ongoing process may still give Asean some saving grace.

Collin Koh is research fellow with the Maritime Security Programme at the S. Rajaratnam School of International Studies, based in Nanyang Technological University, Singapore.