No land in sight: Prospects of a South China Sea Code of Conduct
No land in sight: Prospects of a
South China Sea
Code of Conduct
WRITTEN BY DR APILA SANGTAM
3 August 2023
On 13 July 2023, during the ASEAN Post-Ministerial Conference with China in Jakarta, China and the ASEAN member states agreed to conclude negotiations on a Code of Conduct (COC) in the South China Sea within the next three years. China was represented by top diplomat Wang Yi, who replaced missing Foreign Minister Qin Gang, demonstrating Beijing’s commitment to concluding the COC negotiations. (China's top legislature voted to fully remove Qin Gang and appoint Wang Yi as the new foreign minister on 25 July 2023.) However, conflicting views about the nature of the COC and China's actions in contested waters pose significant obstacles, leaving doubts about substantial progress within the set timeframe.
Puzzling progress
ASEAN has held aspirations for a Code of Conduct in the South China Sea since the 1990s. This desire emerged when tensions escalated due to two conflicts — between China and Vietnam over Johnson Reef in 1988 and between China and the Philippines over Mischief Reef in 1995. The COC aimed to mitigate the growing tensions in the region and prevent them from escalating into armed conflicts. However, ASEAN was unable to get China to sign a binding document. In 2002, ASEAN and China signed the Declaration on the Conduct of Parties in the South China Sea (DOC), which was merely intended as a “political document of principle”. The DOC is not binding and does not prevent escalation in the South China Sea.
According to Ian Storey, an expert at the ISEAS-Yusof Ishak Institute in Singapore, the COC negotiation process has made no progress since 2002. It was not until January 2013, when the Philippines sued China in an Arbitration Tribunal under Annex VII of UNCLOS, that Beijing suddenly turned its attention back to the COC negotiations. However, during the same year, China initiated reclamation and construction operations on the seven reefs it controlled in the Spratly Islands, intending to transform them into substantial military installations. According to Le Thu Huong, a senior analyst at the Australian Strategic Policy Institute, “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”.
The differing stances on the legal nature of the COC and China's assertive actions in contested waters pose significant obstacles to reaching a comprehensive and effective agreement.
China did not demonstrate a genuine commitment to the COC until after the Arbitral Tribunal's Award in 2016, which declared that Beijing's claims based on the ‘nine-dash line' — covering 80 per cent of the South China Sea — were invalid and lacking legal basis. On the one hand, China refused to recognise the Award, saying that it was just a piece of paper. On the other hand, as China wanted to present itself as a responsible power abiding by international law, it tried to promote the negotiation of the COC to soften its image before the world and simultaneously blame the US for causing tensions in the South China Sea. Therefore, in August 2017, ASEAN and China came to a framework agreement for the subsequent negotiations of the COC.
By 2018, ASEAN and China agreed on a draft joint negotiation for the COC. In a speech in Singapore at the end of 2018, then-Chinese Premier Li Keqiang called for the conclusion of the COC by 2021, also with a three-year deadline. During the 37th ASEAN Summit in 2020, the focus was on moving towards an “effective and substantive” COC. However, tensions between China and ASEAN nations in the South China Sea rose with Chinese ships continuing to violate the Exclusive Economic Zones (EEZs) of Southeast Asian countries such as Vietnam, Malaysia, the Philippines, and Indonesia. The Covid-19 pandemic also delayed the COC. It prevented face-to-face meetings between the parties; online meetings — although established — are not enough to convince the participants to discuss many tricky and delicate issues. In addition, while Myanmar will play the role of ASEAN external relations coordinator for ASEAN-China relations from 2021 to 2024, the country has been engulfed in a civil war since the 2021 military coup. With Myanmar lacking a representative presence at ASEAN summits, it becomes challenging to facilitate ASEAN-China dialogues. For these reasons, the three-year deadline has lapsed without any significant progress being made on the COC.
Stumbling blocks in the South China Sea
All parties involved acknowledge the significance of peace and stability in the South China Sea. They also share a common understanding regarding the importance of upholding maritime safety, security, and freedom of navigation in compliance with international law. Furthermore, there is an agreement to actively foster collaboration in various areas, such as marine environmental protection, scientific research, maritime safety, combatting transnational crime, and conserving maritime resources.
However, there are still serious disagreements in other areas. China’s ultimate goal appears to be achieving complete sovereignty and control over the South China Sea. Meanwhile, Indonesia, Malaysia, Vietnam, and the Philippines also seek sovereignty over disputed territories in the South China Sea. However, they emphasise the need to ensure freedom of the seas above all. Another conundrum is China's failure to recognise the 2016 Arbitral Tribunal's Award, which is detrimental to a governance mechanism tied to UNCLOS. Failure to comply with the rules of UNCLOS and the award of the Arbitral Tribunal is the first bottleneck preventing effective dispute settlement in the South China Sea. Vietnam and the Philippines are most active in supporting the implementation of a COC in accordance with UNCLOS.
China is persistent in seeking recognition of its claims within the ‘nine-dash line' and actively encourages other parties to acknowledge them. As part of this effort, Beijing proposes that oil and gas development projects in the South China Sea should exclusively involve the countries bordering the South China Sea. This aligns with Beijing’s longstanding stance, urging the claimant countries in the South China Sea to cooperate with China in exploring energy resources in the contested areas. However, the disputed areas that China refers to include the EEZs of several Southeast Asian countries.
Another issue that creates disagreement involves the actions to be prohibited under the COC. China does not want Southeast Asian countries to conduct joint military exercises in the South China Sea with navies of countries outside the region. Most of the ASEAN member states object to these provisions and emphasise their maritime rights under UNCLOS, including the right to conduct operations with foreign companies. In addition, Vietnam wants the parties to exercise self-restraint by not building artificial islands, not militarising the atolls they occupy, and not harassing fishermen, oil companies, and troop supply ships. It also called for a ban on establishing an Air Defence Identification Zone (ADIZ) over the South China Sea — something that China has implicitly threatened to do. Vietnam wants the COC to be applied to all disputed features of the South China Sea, including the Paracel Islands, which China seized in 1974 but which Hanoi still claims as its own. Beijing recognises no dispute with Hanoi over these islands. These disagreements make it difficult for the COC process to reach a consensus in the future.
Future consensus?
Reconciling regional parties’ conflicting ideas in the COC is a huge challenge. The proposed COC milestones reflect the wishes of both China and ASEAN member states, but have not yet materialised. In 2018, China set itself a three-year milestone for the completion of the COC process but was unable to meet it. This time, ASEAN and China persist in establishing another definitive three-year timeframe for the successful conclusion of the COC, but the feasibility of achieving this objective is doubtful.
The negotiation of the COC in the South China Sea is stuck by two major obstacles. The first major hurdle is the disagreement over whether the COC should be a legally binding document. Some ASEAN countries, like Vietnam, advocate for a legally binding COC to hold China accountable for any violations and to seek recourse through international courts or tribunals. However, China has consistently resisted this approach, as evidenced by its rejection of the 2016 South China Sea Award. The second obstacle lies in China's use of ‘grey zone’ tactics in the region, particularly in the EEZs of Indonesia, Malaysia, the Philippines, and Vietnam. Last year, the Philippines sent 193 notes to protest the violation of their EEZ by Chinese ships. Recent incidents, such as the gathering of 48 Chinese fishing boats in the Philippines’ EEZ and Vietnam's demand for a Chinese research vessel to leave its EEZ after 28 days of harassment, highlight the tensions and challenges ASEAN countries face in enforcing their maritime rights.
Given these realities and disagreements, there are doubts about the COC making substantial progress within the set three-year timeframe. The differing stances on the legal nature of the COC and China's assertive actions in contested waters pose significant obstacles to reaching a comprehensive and effective agreement. Without a resolution to these fundamental issues, the prospects of achieving a meaningful and enforceable COC remain uncertain.
DISCLAIMER: All views expressed are those of the writer and do not necessarily represent that of the 9DASHLINE.com platform.
Author biography
Dr Apila Sangtam is an Associate Fellow at the National Maritime Foundation (NMF) in New Delhi. She has completed her PhD from the Centre of Indo-Pacific Studies, Jawaharlal Nehru University, New Delhi. Her area of research includes the maritime geostrategies of ASEAN and its member States, India-Vietnam relations, the South China Sea and the India-US Indo-Pacific policy. Image credit: US Pacific Fleet.