For almost two decades, ASEAN members and China have been trying to negotiate a formal Code of Conduct (COC) to guide their behavior and prevent conflict in the South China Sea. And all this time, the U.S. and pundits – including myself – have supported their efforts and hoped for their success. But now some suspect that despite its upbeat rhetoric, China is delaying the negotiations until it can get what it wants – – and what it wants is not acceptable to all ASEAN members – or outside ‘interested’ parties like the U.S. Indeed, given its likely content, doubts about the usefulness and even the desirability of a COC are starting to surface.
Although the negotiators have agreed on a Single Draft Negotiating Text (SDNT), it is a collection that includes some controversial and even some contradictory proposed provisions. https://www.aseantoday.com/2018/09/the-draft-code-of-conduct-for-the-south-china-sea-has-significant-political-ramifications-for-asean/
Moreover it is a “living document” meaning that the parties may propose even more changes to it. Making the process more tedious and difficult, the parties negotiating the SDNT are proceeding by the ASEAN principle of consensus. This means that one stubborn holdout can prevent agreement, even if that country is not directly affected by the issue at hand. Only five ASEAN members are claimants—Brunei, Indonesia, Malaysia, the Philippines and Vietnam. Laos and Cambodia seem to consistently support China while Vietnam consistently opposes China’s positions. The other ASEAN members are in play depending on the issue. This can work to China’s advantage if it wants to delay or dilute an agreement.
The same issues have dogged the negotiators since the beginning and it appears they are no close to being resolved. These include the COC’s geographic scope, the procedures for dispute settlement, and whether or not it will have the force of law.
The SDNT does not explicitly define the geographic area to which it applies. Vietnam insists that the China-occupied Paracels and their attendant maritime area –which it claims — must be included– as well as the Spratlys. But China maintains that it has ‘undisputed’ sovereignty over the Paracels. Neither is likely to yield on this territorial issue as their leadership would be vigorously criticized by domestic nationalists. Moreover, China argues that the conflicting territorial claims to the Paracels are only between it and Vietnam and thus not an issue or area that should be included in an ASEAN-China agreement. In 2002, a lack of agreement on this issue caused a breakdown in COC negotiations resulting in the COC being downgraded to the ambiguous, non-binding Declaration on the Conduct of Parties in the South China Sea (DOC). The geographic coverage of the Code is likely to be ambiguous.
The SDNT also does not contain any reference to binding dispute settlement mechanisms. All draft proposals for dispute settlement stipulate that such a process can only be initiated with the consent of all the parties directly concerned. This means the COC would essentially be non-binding because any party to a dispute as to its application or interpretation cannot be settled without the consent of the parties to the dispute. This plays into China’s long-standing position that China’s disputes between nations should be resolved by negotiations between the parties directly involved, not third parties. Indeed, it has long complained that other claimants have not abided by the DOC article that states “The Parties concerned undertake to resolve their territorial disputes… through friendly negotiations by sovereign states directly concerned.”
As for the COC’s legal status, the SDNT does not specify that it will become a treaty. Vietnam has proposed a provision that the COC “be subject to ratification in accordance with the respective internal procedures of the signatory States” and that the ratifications be registered with the ASEAN Secretary General. But China—and some others –are unlikely to agree to this procedure to make it a legally binding document because they fear loss of political maneuverability.
Thus if agreement is ever reached, the critical elements are likely to be so weak and ambiguous that the very usefulness of such a Code will be quite limited. Conflicting interpretation will continue to lead to conflict.
Making negotiations even more difficult, new contentious issues have been added to the mix. China has proposed a clause stating that “the Parties shall not hold joint military exercises with countries from outside the region, unless the parties concerned are notified beforehand and express no objection”. This appears to be an attempt to exclude the U.S. and its extra regional supporters like Japan and Australia from such exercises. China has also proposed that “co-operation shall not be conducted in co-operation with companies from countries outside the region.”
These additional proposals by China – while presumably bargaining chips – have raised eyebrows regarding the very desirability of a Code. Indeed some think that China is trying to incorporate – and add to – its advances in the South China Sea. In August 2018, Australia, Japan and the U.S. issued a joint statement that the COC should be “consistent with existing international law, as reflected in UNCLOS;_ _ not prejudice the interests of third parties or the rights of all states under international law; _ _reinforce existing regional architecture; and _ _ strengthen parties’ commitments to cease actions that would complicate or escalate disputes. https://foreignminister.gov.au/releases/Pages/2018/jb_mr_180804.aspx
In July 2019 speaking in Manila, US Department Assistant Secretary of State for East Asian and Pacific Affairs David Stilwell publicly urged the Philippines to make sure the COC is “fully consistent with international law.” https://www.rappler.com/nation/235550-us-urges-philippines-ensure-sea-code-consistent-international-law In the prelude to the November ASEAN summits, Stilwell warned the U.S. “doesn’t want China to insincerely agree on a Code of Conduct in the South China Sea, just to “legitimize its egregious behavior and unlawful maritime claims.” Albert Del Rosario, the Philippines’ foreign secretary when it filed its successful against China and a long-term advocated a robust, binding COC is also having second thoughts. He has now urged ASEAN to exercise “utmost vigilance” in ensuring the COC is not used by China to undermine the arbitral ruling. https://www.philstar.com/headlines/2019/10/28/1964055/philippines-needs-exercise-utmost-vigilance-sea-code-talks-china-del-rosario
These changing perceptions of China’s intent mean that a robust, binding COC may be a bridge too far—making the usefulness and even the desirability of a COC increasingly questionable.