Southeast Asian nations and China have been trying to negotiate a robust, binding Code of Conduct for Parties in the South China Sea (COC) for nearly twenty years. Many hope that a COC will prevent conflicts and preserve peace and stability among the contending claimants there. The obstacles to agreement have long been thought to be due to differences over its geographic scope, whether or not it will contain a binding dispute settlement mechanism and the status of the agreement in international law. This was correct until the U.S. got involved. Now what might have been solvable by compromises between key ASEAN nations and China has become caught up in the US-China soft power battle for domination of the rules based ‘international order’ for the region – – and beyond.
In November 2017, US President Donald Trump promulgated the US vision of a Free and Open Indo-Pacific (FOIP). https://www.whitehouse.gov/briefings-statements/remarks-president-trump-apec-ceo-summit-da-nang-vietnam/; https://www.state.gov/wp-content/uploads/2019/11/Free-and-Open-Indo-Pacific-4Nov2019.pdf In June 2019, the US Department of Defense elaborated what it means in terms of security strategy in its “Indo-Pacific Strategy Report”. https://media.defense.gov/2019/Jul/01/2002152311/-1/-1/1/DEPARTMENT-OF-DEFENSE-INDO-PACIFIC-STRATEGY-REPORT-2019.PDF The essence is that the U.S. will reinforce its view of international law and ‘order’ in the region and expects its allies and partners in the region to help it do so.
Within the FOIP framework, the U.S. is pushing for a renewal of the “Quad” – a potential security arrangement among the four large democracies of India, Australia, Japan, and the U.S. To China, the intent of the FOIP and the Quad is to constrain and contain its inexorable increasing hard and soft power.
The COC would be part and parcel of this “international order” and thus in the US view, it must conform to its interpretation thereof. It now appears to the U.S. that China wants to use the COC to confirm its physical occupations and its dominance of the South China Sea vis a vis other claimants. What opened eyebrows was China’s proposal for a clause in the COC 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”. https://thediplomat.com/2018/08/a-closer-look-at-the-asean-china-single-draft-south-china-sea-code-of-conduct/ This appeared to be an attempt to exclude the U.S. and its extra regional supporters like Japan and Australia from such exercises. China also proposed that as part of the COC, cooperation on the “marine economy” is to be carried out by the littoral states and “shall not be conducted in cooperation with companies from countries outside the region.”
These proposals by China may only be bargaining chips to be traded for concessions by the other side. But they came against the background of China’s refusal to recognize the international arbitration decision against it that legally in validated its nine dash line historic claim, its occupations of low tide features and some of its aggressive behavior. In this context these proposals signified that China intended to defy existing international law and to set its own rules for the South China Sea using the COC as a vehicle to do so. https://www.philstar.com/other-sections/news-feature/2019/11/09/1967327/commentary-philippines-complicity-creating-chinas-vision-regional-order; https://www.express.co.uk/news/world/1200605/south-china-sea-news-world-war-3-asean-donald-trump-china-philippines-cambodia-vietnam As both a recognition of and a response to this perceived intent, 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 – -. https://foreignminister.gov.au/releases/Pages/2018/jb_mr_180804.aspx
The U.S. has since ever more emphatically pointed out the likely differences between a future led by it and one led by China. About a year ago, US Vice President Michael Pence gave an ‘it’s us or them’ speech criticizing China across the board and contrasting its behavior and values with those of the U.S. https://www.whitehouse.gov/briefings-statements/remarks-vice-president-pence-administrations-policy-toward-china/ Honing in on the COC, in July 2019 speaking in Manila, US Assistant Secretary of State for East Asian and Pacific Affairs David Stilwell 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 This concern was echoed by Albert Del Rosario, the Philippines’ foreign secretary when it filed its successful complaint against China and a long-term advocate of a robust, binding COC. He has now urged ASEAN to exercise “utmost vigilance” in ensuring that 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 Then just before the November ASEAN summits, Stilwell warned that 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.” Stilwell also made a thinly veiled criticism of China saying “without security, you can’t have trade.” https://www.scmp.com/news/china/military/article/3035794/china-says-it-wont-sit-back-if-us-deploys-intermediate-range This was a self-serving and disingenuous allusion to China’s actions in the South China Sea that the U.S. argues are a threat to the US interpretation of freedom of navigation and thus a violation of the existing international order.
US Secretary of Defense Mark Esper is making the Asian rounds this week including participation in the ASEAN Defense Ministers Meeting Plus in Thailand. According to the Pentagon’s press secretary, he “will participate in the meeting and meet with allies and partners in the region who share America’s vision for a free and open Indo-Pacific. We will discuss common challenges such as the militarization of the South China Sea and predatory Chinese commercial and economic activities.” https://www.defense.gov/Newsroom/Advisories/Advisory/Article/2011085/secretary-esper-travels-to-south-korea-thailand-philippines-and-vietnam/
The future promises more of the same. Observers think Vietnam, as the new ASEAN chair will try to frame the South China Sea issues in the broader regional context including “respect for [existing] international law.” https://sg.news.yahoo.com/south-china-sea-likely-high-060656804.html Moreover, Vietnam is contemplating filing a complaint against China under the dispute settlement mechanism of the UN Convention on the Law of the Sea. https://www.asiatimes.com/2019/11/article/vietnam-drops-a-legal-gauntlet-in-south-china-sea/ If it does so, it will draw it closer to the US position on the “international order” and is likely to further split ASEAN on the South China Sea issues and thus benefit China. These actions by Vietnam would not auger well for progress on negotiations for a COC.
Indeed, the negotiations for a COC have now become a clash of “international orders” – or visions thereof. It, the Southeast Asian states, and ASEAN centrality in regional security affairs have been absorbed into the contentious great power dialectic of our time. This will make reaching agreement on a robust, binding COC much more difficult—if not impossible.