Make Asean code of conduct negotiations count 

Deng talked to Aquino, as he told some other Asian leaders at that time, and told her: “Madam President, our generation might not be wise enough to decide these territorial disputes but there are a lot more areas of the South China Sea we may discuss without discussing the territorial claims.”
The current Philippine foreign secretary Alan Peter Cayetano referred to Deng’s words during a conversation with Asean journalists in Manila recently to justify his government’s soft approach towards China on the contentious South China Sea issue.
The stance taken nowadays by the Philippines under President Rodrigo Duterte towards China is totally different from what Aquino’s son, Benigno Aquino III, did when he was running the country from 2010-2016.
While Aquino III took the conflict to a Hague-based tribunal constituted under the UN Convention on the Law of the Sea and won an award in July last year, successor Duterte, who took office only a few weeks after that ruling, said he would keep the award and might use it when it was necessary. But, for now, he employs a different approach while dealing with China on a bilateral basis. Under Duterte, a tentative fishing agreement has been put up “so Filipino fishermen are allowed to fish in the area which we believe is our traditional fishing area,” Cayetano said.
In areas where they have to protect the environment, both Chinese and Filipino coastguards act as joint overseers, making sure there is no overfishing or illegal activity, he added.
“China gave a verbal assurance that they will not build any more facilities in Scarborough Shoal, so we believe the current strategy, without judging the past strategy, is now working,” he said.
The Philippines and China, as proposed by Chinese foreign minister Wang Yi during his visit to Manila recently, agreed to conduct joint exploration for oil and gas in the contentious sea.
“We have to do this,” said Cayetano. “I mean, if we continue the old approach we might be fighting over nothing in terms of natural resources. But if we find a way to look at how much resources are there, maybe it is wiser for our generation to say this way is better than saying no one can benefit from this and confront each other.”
Members of Asean, including Vietnam, Malaysia and Brunei, have been at loggerheads with China over territorial disputes for decades. 
While China has consistently insisted on dealing with contesting parties on a bilateral basis, many Asean members, notably Vietnam, want the group to speak with one voice on the issue, although they realise that territorial disputes can never be solved multilaterally.
Vietnam is not a party to last year’s award, which rejected China’s historical rights over the disputed areas, although many officials in Hanoi have said that they have thought about pursuing a ruling. They wanted to see the Philippines implement the award.
Prior to a ministerial meeting in Manila, Vietnam urged Asean countries to unite in order to settle South China Sea disputes and emphasised the importance of completing a binding code of conduct, which is based on international law and includes the tribunal’s award.
Analysts have noted Vietnam’s active role in mobilising Asean leaders to balance China’s influence on the matter, but the outcome of last week’s ministerial meeting was not impressive due to the soft approach of the Philippines, which currently chairs Asean, and counterproductive moves by some members.
The joint communique issued after the meeting refrained from using any “strong” language on the militarisation of the contentious South China Sea territories. It simply said: “We emphasised the importance of non-militarisation and self-restraint in the conduct of all activities by claimants and all other states.”
For the Philippines, China and many diplomats, such a statement was enough given the fact that China and Asean foreign ministers adopted a framework for a code of conduct on August 6.
Without unity among Asean members, however, analysts doubt whether the code of conduct, if indeed it is agreed upon in future, will be meaningful in resolving conflicts.
Indeed, Asean and China signed a non-binding Declaration on the Conduct of Parties in the South China Sea (DOC) as long ago as 2002 but it failed to prevent conflicts, as most of the claimants, notably China, built facilities on islands and features in the sea, which facilitated militarisation.
The framework of the code of conduct as leaked to the media addressed nothing different from the general principle set out in the 1982 United Nations Convention on the Law of the Sea (UNCLOS), which the Asean DOC also referred to.
While many Asean members, including the Philippines and Vietnam, wished to see a legally binding code of conduct to control the behaviour of countries in disputed maritime areas, the difference between binding and non-binding is not clear.
Non-binding could become binding if contracting parties are willing to implement such an agreement, while a binding pact could become a non-binding one if parties do not enforce it.
Similar anomalies exist elsewhere.
Take the UNCLOS, for example. The United States has not signed the convention but now champions it, while China, which ratified it in 1996, acts like it does not exist. The Philippines won last year’s arbitration award but shelves it while Vietnam, which is not a party in the case, actively calls all parties to comply with it.
A major challenge for the group, which adopted with China a framework to establish the code of conduct last Sunday in Manila, is how to make the new document relevant. 
If the history of DOC is a guide, officials will begin, in November, to waste more time in drafting the text of the code to no avail.

The writer is the Regional Editor of The Nation