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THE DANGEROUS QUEST FOR A CODE OF CONDUCT IN THE SOUTH CHINA SEA

By Dr Huong Le Thu

The long and bumpy process of consultations on a code of conduct (COC) between China and the members of the Association of Southeast Asian Nations (ASEAN) has gained some momentum since the July 2016 South China Sea arbitration award. China communicated its willingness to make some progress by adopting a framework for the COC last year. Officials from China and ASEAN met for the  23rd meeting of the Joint Working Group on the implementation of the 2002 Declaration on the Conduct of Parties in the South China Sea (DOC) in Vietnam in March and for the 15th Senior Officials’ Meeting on the Implementation of the DOC in China in June. At both meetings they exchanged views on a potential COC.

These developments suggest that there is some progress, or at least growing political will, to finalize a COC, including debates on whether the agreement should be legally-binding and over including the interests of non-claimant states that make use of the South China Sea. But the COC process poses more challenges than hope for resolving the disputes. The COC has become a “holy grail,” highly desired but unattainable. A major concern should be that this holy grail could turn into a tool for China to legitimize its actions in the South China Sea by engaging in the process while subverting its spirit. To this end, the challenges to the COC process are likely to be:

  1. China will use the COC talks to delay, exploit, and divert focus from any ASEAN consensus on the South China Sea;
  2. China will seek to include unhelpful and imprecise language in the COC which it could then use to justify its actions;
  3. China will nonetheless claim the COC as a diplomatic success and will use it as cover to avoid criticism while still pursuing its unilateral strategy to control the South China Sea.

It has been over 25 years since ASEAN’s first official commitment, in 1992, to peacefully resolve the disputes in the South China Sea. Patience has been a necessary virtue for the region to work on any issues of contention, and it took another 10 years for the group to work out the non-binding DOC with China in 2002. For 16 years since then, the parties have been in pursuit of a COC that would help resolve the resource-draining and tension-generating disputes. But China has time on its side. That time has allowed China to successfully build its capabilities, especially by constructing artificial islands in the Spratlys in recent years. The lengthy and unproductive negotiations over the COC meanwhile have diverted regional attention away from the severity of Beijing’s disruptive actions around the South China Sea.

The long-stalled, unproductive negotiations have already had a detrimental effect on regional multilateralism. The South China Sea issue has exposed ASEAN’s institutional weaknesses, especially how its consensus-based decision-making leads to impasses. Just one member disagreeing with the content of a joint statement can silence the group’s voice. The most oft-cited example was Cambodia’s obstruction of the ASEAN joint communique in 2012 when it served as organization’s chair. Many have associated Phnom Penh’s lack of regional solidarity with its allegiance to and economic dependency on China.

Moreover, the South China Sea has become a “fatigued” theme which many ASEAN chairs have come to dread during regional meetings. Even this year’s chair Singapore, with its notoriously skilled diplomacy, prefers to focus on other issues, like counter-terrorism, cyber security, and smart cities, where it sees more room for cooperation, or at least less obstruction from pro-Beijing members of the grouping.

The longer the COC negotiations take, the more advantageous China’s position will become as it extends ever greater control over the resources of the South China Sea, for instance by sending its fishing fleet throughout the South China Sea and preventing other claimants from exploiting natural resources within their waters and seabed as it did recently when Vietnam attempted new oil and gas drilling. Even more conciliatory approaches like that of the current Philippine government seem unlikely to divert China from its strategy of gaining sole control over the South China Sea. Under President Rodrigo Duterte, Manila has opted for a strategy of embracing China. Not only did Duterte disregard the 2016 arbitral tribunal ruling, effectively abandoning the legal victory and dealing a blow to the international rules-based-order — but he has chosen to pursue talks on joint development  of oil and gas resources with China (though no agreement seems forthcoming). Nonetheless, Beijing continues to build up military facilities, including on the Philippine continental shelf at Mischief Reef, and harass Filipino fishers and military planes and ships.

A successful COC would be a major victory for all involved. It would ward off diplomatic criticism of Beijing by the international community and show that China can act responsibly and in accordance with the international rules-based order. But a vague or ineffective agreement—which is a far more likely outcome—would serve only the interests of Beijing. With such a diplomatic success in hand, China could and likely would continue with its plans to unilaterally control the waters and airspace of the South China Sea.

If the COC process continues on its current trajectory, and China succeeds in filling the document with vague articles that would have little impact on its behavior, it would effectively be abusing the rules-based order to its own benefit. Instead of protecting against unilateral actions in the South China Sea, the rules-based order in the form of the COC could assist and justify China’s expansion and ultimately its sole control of the South China Sea. Other regional actors need to recognize these traps of concluding a counter-productive COC, and resist the urge to reach an agreement just to be able to say they made progress. Instead, they should insist on negotiating the terms and conditions of a real COC, one that would establish effective rules-based dispute management mechanisms, not one that would by-pass them for the sake of an easy “win.”

Originally published by: CSIS: Asia Maritime Transparency Initiative on 13 Jul 2018