ASEAN: South China Sea code of conduct still a speck on the horizon

September 8, 2018

ASEAN: South China Sea code of conduct still a speck on the horizon

by Gregory B Poling, CSIS

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After two decades of talks, scepticism about the development of a South China Sea Code of Conduct (COC) is well-deserved, but it is also important to acknowledge progress when it happens. The agreement on a single draft negotiating text, revealed ahead of the ASEAN–China Post Ministerial Meeting on 2 August 2018, is an important step in the process that deserves recognition.

The COC will not resolve the South China Sea disputes, nor was it ever meant to. Instead the COC is intended to manage disputes to avoid conflict pending their eventual resolution by direct negotiation or arbitration among the claimants. But any system to effectively manage the South China Sea disputes would require three things, none of which are achieved yet in the draft text.

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First, an effective COC would need to be geographically defined. The claimants do not need to resolve their disputes, but they do need to agree on where those disputes are if they hope to effectively manage them.

For instance, any agreement that did not include the Paracel Islands and the waters around them would be unacceptable to Hanoi. The same goes for the Philippines in the case of Scarborough Shoal. And what of waters and undersea features in the claimed exclusive economic zones of Indonesia and Malaysia? These areas are all claimed by China via the nine-dash line and would continue to be sites of tension if excluded.

According to Carl Thayer, who revealed many details of the draft text, Vietnam suggested that ‘the present Code of Conduct shall apply to all disputed features and overlapping maritime areas claimed under the 1982 UNCLOS [United Nations Convention on the Law of the Sea] in the South China Sea’. But that is too vague to be effective and is worded to exclude areas in which Beijing claims historic rights not recognised by other parties under UNCLOS.

Indonesia suggested adding that ‘the Parties are committed to respect the Exclusive Economic Zone and continental shelf of the coastal states as provided for in the 1982 UNCLOS’. But again that would seem to purposely exclude areas in which China claims and is sure to assert historic rights. It might be a legally correct position to take, but it is not an effective basis for a COC.

The only way that any code could work is if it clearly encompasses the areas under contention, including all reefs, rocks, submerged banks, waters and airspace in which China seeks to assert its historic rights. Specifying this without using language that would be unacceptable to any of the claimants would be difficult, but possible if all parties were committed to reaching a deal.

Second, an effective COC would need a dispute settlement mechanism. Disagreements over interpretation and application of the text are inevitable. This is clear from the history of the 2002 Declaration on the Conduct of Parties in the South China Sea, which was too vague and had no means to resolve disagreements. As a result, most parties violated the text while insisting that they were still in compliance and pointing their fingers at others.

To resolve this problem, both Indonesia and Vietnam reportedly suggested that parties to the COC be able to take disagreements to the High Council under the ASEAN Treaty of Amity and Cooperation. That body, which has never been convened, would include representatives nominated by ASEAN members to hear and mediate disputes. Its rulings would not be legally binding or necessarily enforceable, but they would have considerable weight.

A major problem with the High Council suggestion would be that under the Treaty of Amity and Cooperation it can only be constituted by ASEAN members. A more effective option might be to spell out the procedures for convening a High Council-like body that would draw arbiters from a pool nominated by all parties, including China.

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Third, any effective regime to manage the South China Sea disputes would need detailed provisions on fisheries management and oil and gas development. But the positions enumerated in the negotiating text so far are contradictory and fall well short of outlining a detailed and coordinated system to manage resources.

For instance, Jakarta suggests that states should coordinate on fighting illegal fishing as a form of transnational crime, but Indonesia’s definition of illegal fishing includes activities that others, especially China, consider legal. And China’s suggestions on oil and gas cooperation seem more geared towards excluding foreign companies than towards equitably managing resources with fellow claimants.

Unfortunately, there is a fundamental contradiction in the COC. It is the wrong vehicle to discuss details on resource management because of its membership, but it cannot be an effective means to manage the disputes without doing so. Most of the ASEAN states have no stake in the contested fisheries or hydrocarbon resources and would be uninterested in negotiating the specifics of overlapping entitlements and resource rights.

The solution to this problem could be a COC signed by all 10 ASEAN members and China that establishes general rules of behaviour within a clear geographic area, sets up an effective dispute settlement mechanism and endorses the immediate start of follow-on negotiations involving only the relevant claimants on fisheries management and oil and gas cooperation.

Such a document would be a major step towards peacefully managing the South China Sea disputes and there are hints that at least some sections of the negotiating text might be on the right track. But the differences between parties remain considerable and final agreement on an effective COC still seems some way off.

Gregory B Poling is Director of the Asia Maritime Transparency Initiative and Fellow with the Southeast Asia Program at the Center for Strategic and International Studies in Washington, DC


One thought on “ASEAN: South China Sea code of conduct still a speck on the horizon

  1. China and Asean now have a single text to negotiate a code of conduct (COC) in the South China Sea (SCS). The announcement, which came on during the Asean-China ministerial meeting, was hailed as a milestone by both sides. However, the concerned parties are a long way from reaching a consensus on a final document, and the United States is likely to try to sabotage any agreement that could weaken its position in the region.

    China and Asean have worked to finalize a COC in the SCS since 2002. The recent breakthrough may be the result of a convergence of diplomatic and economic factors. Beijing is fighting a trade war with the US, and looking for ways to absorb the shock of its conflict with Washington. In this respect, the easing of tensions in the SCS with its Southeast Asian neighbors could expedite the signing of the Regional Comprehensive Economic Partnership (RCEP), a prospective regional trade agreement it backs, which could mitigate the risk of isolation for Beijing.

    For their part, Asean claimants to the SCS are wary of Donald Trump’s real commitment to Southeast Asia, as well as his protectionist policies. The US was Asean’s third-largest trading partner in 2017, and it ran a trade deficit of US$55.6 billion. Given this imbalance, Asean countries have automatically become potential targets of Trump’s trade tariff campaign, which has thus far hit both enemies and friends, and may need Beijing’s help in case of a commercial spat with the US. The disruption of Asean-China talks on the COC may come from the US at any time.

    Chinese leaders have proposed joint patrols, military exercises and energy exploration with Asean countries in the region. Vietnam is the only claimant to have challenged China’s construction of artificial islands in the disputed waters and their transformation into military bases. Beijing and Hanoi are likely to clash over the latter’s request that the COC be legally binding under international rules – a clause that the Chinese leadership has always opposed. As we all know, “international rules” meaning the American and Western influence as they are all written by the West. US State Secretary Mike Pompeo has said the US and Vietnam would join hands to uphold freedom of navigation and overflight in the SCS. Beijing has always been critical of Washington’s air and naval operations in the area.

    The current geopolitical scenario in the SCS region is rather fluid, despite China’s success in mollifying other claimants, especially the Philippines. The US is using war games exercise to help woo Asean away from China. The Philippine navy was involved in the Rim of the Pacific exercises. Three other Asean members – Indonesia, Malaysia and Singapore – took part in the US-led drills, the largest of their kind in the world, from which China had been disinvited in May.

    Manila’s air force is also taking part in the biennial Pitch Black, a premier multinational air power exercise in the Asia-Pacific region, organized by Australia – a vassal of the US and vocal opponent of China’s military rise in the Indo-Pacific arena. Pitch Black also involves the participation of aircraft from Indonesia, Malaysia, Singapore and Thailand.

    What’s more, under the encouragement and support from the US, Japan and Australia, Asean countries are taking countermeasures against China in the South China Sea with a growing focus on coastal defense. Vietnam, the Philippines, Indonesia and Malaysia have all expanded their coastguard capabilities and operations to counter Beijing in the SCS region. Hanoi and Jakarta have also strengthened their arsenals of anti-ship missiles, and the Vietnamese navy has reinforced its fleet with Russian high-speed frigates and missile corvettes.

    Chinese Foreign Minister Wang Yi said that an early conclusion of the COC would be possible if future negotiations were not hindered by “external disturbances”. But Wang’s expectations will go unmet. State Secretary Pompeo said that US would support the group in its bid to foster peace in Southeast Asia. However, during the annual Australia-US ministerial consultations, Washington and Canberra emphasized that COC in the SCS should not prejudice “the interest of third parties or the rights of all states under international law”. Again, “international law” which means Western influence. Americans participated in writing every of these “international laws” but they themselves are above these laws. No one can bring any American presidents, officials, or soldiers to the International Court. The US has not ratified the United Nations Convention on the Law of the Sea.

    The bottom line is that the US will never accept a status quo where China maintains military outposts in the SCS. In that event, Gregory Poling’s CSIS is highly likely helping Washington to derail a final deal between Asean and Beijing.

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