Greg Poling: Imagining an Effective South China Sea Code of Conduct

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Greg Poling: Imagining an Effective South China Sea Code of Conduct

The Diplomat talks with the chair of CSIS’ Expert Working Group on the South China Sea.

Greg Poling: Imagining an Effective South China Sea Code of Conduct
Credit: Flickr/ CSIS

After more than a decade of stalled negotiations, the Association of Southeast Asian Nations and China have, since 2016, made headway on a Code of Conduct to govern their interactions in the South China Sea, where four ASEAN members — the Philippines, Vietnam, Malaysia, and Brunei — have made explicit territorial claims along with China, which has sought to assert what it calls historical rights to nearly the entirety of the disputed waters. States like Indonesia, too, have maritime claims that overlap with China, even as they don’t claim direct sovereignty. The Diplomat’s senior editor, Ankit Panda, spoke with Greg Poling, chair of the Center for Strategic and International Studies’ (CSIS) Expert Working Group on the South China Sea, on the results of a multinational expert effort to propose pathways to a realistic and actionable Code of Conduct. Poling is additionally the director of the Asia Maritime Transparency Initiative (AMTI), also at CSIS.

The Diplomat: The past two years, since the release of the 2016 arbitral tribunal award in the Philippines case against China and the coming to power of Rodrigo Duterte in Manila, have left many South China Sea observers pessimistic about the future of the region.

There has been considerable progress in the meantime between ASEAN states and China toward a Code of Conduct (COC), but the draft agreement appears to fall short on several measures. Do you see momentum toward a watered down Code of Conduct as virtually irreversible today or are there prospects to work toward something more robust?

Greg Poling: I actually see the momentum on the current Code of Conduct effort as very easily reversible. There has been a lot of public agreement over the last two years on the desirability of a COC, but no appetite yet to deal with the tough issues that would make one possible. The 2017 framework on the COC had less detail than the 2002 DOC. Now, other than the Philippines, no party to the disputes has signaled that an agreement is close. In fact, [Chinese Foreign Minister] Wang Yi and [Singaporean Prime Minister] Lee Hsien Loong have both pretty clearly told observers not to expect a COC in the near term.

More worryingly, the single draft negotiating text leaked by Carlyle Thayer [here in The Diplomat] is filled with poison pills that could derail the talks. China’s demands that it have veto power over other claimants’ military exercises with third parties or that companies from outside the region be excluded from oil and gas work, for instance, are not going to get the approval of other parties. But others, including Indonesia and Vietnam, have also made proposals in the draft text that are non-starters.

So no, I don’t see momentum toward a watered-down COC as irreversible. In fact, I think the only way a COC likely gets done at all is if the parties grapple with the tough issues that they’ve been avoiding to date, which is exactly what we tried to do in this project.

Can you tell us a bit about the process that led to this group coming together to work on these disputes? Were you confident that you’d end up with the kind of outcome that you did or was there more uncertainty going into the process?

Around the time that the text of the framework for the COC leaked last year, we decided surely it must be possible to envision a more detailed agreement than that. It was very easy to point out what was wrong with the framework, and what had been wrong with the COC process for the previous two decades. I had certainly joined in the chorus calling out ASEAN and China’s failures to grapple with the tough issues that would make an agreement workable. But could we move from saying what was missing and imagine how to fill in those details in a way that might actually work? From the start, our premise was that if an agreement were to be both fair and workable, then it would need to be consistent with international law and domestic law in all the countries, including China’s demands for historic rights.

The key was selecting the right people. The membership of the group would need to come mostly from claimant states; it had to be a regional effort, not an American think tank’s unsolicited advice. And we needed lawyers, policy wonks, and environmental experts who not only knew the subject, but were creative and intellectually flexible enough to recognize necessary compromises and find solutions if they existed. We started with the fisheries and environmental cooperation blueprint because it was both the most pressing (the fish stocks in the South China Sea will collapse in the next few years without drastic measures) and because it was legally the most flexible. I was pretty confident we would get that one done, but I wasn’t sure we would be able to reach consensus on the others.

In your view, what should the purpose of a Code of Conduct in the South China Sea ideally be? How has the 2002 Declaration on the Conduct of Parties in the South China Sea fared?

The code of conduct needs to manage tensions surrounding the disputes, not solve them. And resolution of the disputes has never been the goal. The questions of territorial sovereignty are irreconcilable for the foreseeable future. But if the maritime disputes, especially over fisheries and hydrocarbon rights, can be managed in a fair and effective way, then the territorial questions can be safely set aside for wiser future generations to solve. The problem with the DOC has mainly been that it avoided several issues that must be dealt with to effectively manage the disputes. It says nothing about the geographic scope of the agreement. It has no details about resource management for either fisheries or hydrocarbons, competition for which is what actually leads to most incidents. And it has no mechanism for resolving inevitable disputes over its implementation. We tackle all of these in our blueprints.

What are some of the ideas and proposals that made it into your report that you’d consider to be the most creative and unconventional?

We have a clear, step-by-step dispute mediation mechanism in all three blueprints. It isn’t legally binding but is compulsory, which the Timor-Leste–Australia conciliation process just showed can be extremely effective. In the fisheries blueprint, we merge and build off a number of regional precedents and prior suggestions for marine parks or protected areas in the South China Sea, but in a way that is much more detailed and comprehensive. And that carries through in all three blueprints — the provisional arrangements we lay out have been mapped out in detail, whether for fisheries, oil and gas production, or marine scientific research. The oil and gas blueprint is probably the most innovative in that there are virtually no precedents that we could lean on and the legal loopholes were much fewer than in the fisheries case.

Only four members of ASEAN are formal claimants in the South China Sea, each of them with a varying degree of engagement with the issue, depending on their domestic political leadership and other factors. Today, Vietnam is undoubtedly the most forward-leaning of the claimant states. Do you sense Hanoi is somewhat more isolated now than it was before the election of Rodrigo Duterte in how it manages its interests in the South China Sea?

Five members [of ASEAN are claimants]. Despite Jakarta’s reluctance to admit it, Indonesia claims a portion of the South China Sea and no fisheries agreement is going to work without its involvement.

But yes, Vietnam is undoubtedly isolated as the most proactive ASEAN member in pushing back on China’s claims and in remaining skeptical of Beijing’s intentions. Hanoi doesn’t seem to believe that Beijing actually wants to negotiate a fair and effective COC, which seems clear from the extensive proposals Vietnam made in the single draft negotiating text. And that shouldn’t be surprising — twice in the last year and a half Vietnam was forced to cancel offshore drilling projects by Repsol in the face of Chinese threats, and no member of ASEAN (or outside parties like the United States) made a peep. The Duterte government’s defeatist attitude and belief that it must cut a deal with Beijing, no matter what it takes, has left Hanoi with much less leverage than it had just a couple years ago (Singapore has also retreated from a more activist stance, for what it’s worth).

Building on the previous question, I wanted to gauge your thoughts on Chinese coercive activities toward foreign firms seeking to exploit resources in the South China Sea. You mentioned the concerning case of the Spanish energy firm, Repsol, which was pushed out of oil block exploitation in Vietnam’s exclusive economic zone after reports of direct Chinese coercion, including threats of force, behind the scenes. How can regional states stand up to this kind of coercion and, in particular, is there a role for the United States? 

Southeast Asian claimants have limited options when they face China alone, as the Repsol case demonstrated. They can be most effective in pushing back on such Chinese behavior when they have regional and international backing to shine a light on Chinese activities and diplomatically isolate Beijing. China wants to be seen as a global leader, not a regional bully kicking around its smaller neighbors and trampling on international law. That international reputational damage does help constrain China’s actions — after all, it hasn’t forced Rosneft or Exxon out of Vietnam’s offshore energy industry yet. But there has been less and less pressure over the last two years as Duterte’s Philippines crossed the picket line, the United States under Trump has adopted a FONOPs-only South China Sea policy, and most of the rest of the international community gladly retreated back from the stronger stances they took in 2016 ahead of the arbitral award. If Southeast Asian states and the United States want to start correcting that situation, they need to start putting the South China Sea back on the top of the diplomatic agenda, and pushing for an equitable and effective COC will be a big part of that.

I noticed that the Chinese members of your group participated in the process, but did not feel comfortable having their names listed. Can you say a little about that?

Senior Chinese scholars took part in the workshops and discussions of the draft blueprints, and their input was invaluable in reaching a final product that we think could be legally and political acceptable to China. Unfortunately, the current state of the Sino-U.S. relationship makes this a very sensitive time for Chinese scholars, and our colleagues ultimately didn’t feel comfortable having their names publicly attached to the final report.

This interview has been lightly edited for clarity.