Saving the China-ASEAN South China Sea Code of Conduct

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Saving the China-ASEAN South China Sea Code of Conduct

So far, COC talks are marked by little progress and continuing differences. Vietnam has a chance to change that.

Saving the China-ASEAN South China Sea Code of Conduct
Credit: U.S. Navy photo by Mass Communication Specialist 1st Class Daniel Barker

Last weekend’s Association of Southeast Asian Nations (ASEAN) Summit, held in Bangkok, demonstrated a positive spirit among ASEAN members, but failed to yield substantial progress over a Code of Conduct (COC) regulating actions in the South China Sea. A single draft of the COC was first put forth in August 2018, with an agreement reached in November 2018 by China and ASEAN to finalize the COC within three years, starting from 2019.

Negotiations over the COC have proven difficult for several reasons, according to Carl Thayer, an emeritus professor at the University of New South Wales in Australia. Thayer sees four areas as problematic: the undefined geographic scope of the South China Sea; disagreement over dispute settlement mechanisms; different approaches to conflict management (self-restraint, mutual trust, and confidence building); and the undefined legal status of the COC.

These conflicting views reflect formidable differences among the negotiating parties on all important determinants constituting the COC, and further highlight the ominous prospect of an ambitious yet weak and ineffective COC.

First, China refuses to join a binding COC that could challenge Beijing’s aim of turning the South China Sea into its own private lake. China’s objection to the Permanent Court of Arbitration’s ruling on the South China Sea case brought by the Philippines was a visible example of Beijing flouting international law and norms. Yet without legal and binding status the COC would be just as ineffective as the earlier Declaration of Conduct (DOC).

Second, given the limited time frame for COC negotiations, China appears to benefit most from differences and conflicting views among ASEAN states at the negotiating table. While keeping ASEAN claimants preoccupied in addressing those differences, China has aggressively been establishing what it calls the “new status quo” on the ground by militarizing its occupied rocks and fishermen, and normalizing its presence and control in disputed waters in the South China Sea. By doing so, China may be able to redefine the geographic scope of South China Sea as well as the scope of disputed areas in favor of its geopolitical interest.

Finally, the draft reveals the weak consensus of all ASEAN countries in negotiating with China. Despite the commonly recognized perception that consensus is key for ASEAN to address challenges in the South China Sea, a narrow understanding of individual members’ national interests has constrained attempts at enhancing regional cooperation and cohesion. This triggers concern that ASEAN’s consensus norm is no longer supportive of new security realities, and that other members may endorse Beijing’s preferences and stop ASEAN from taking decisions. The existing consensus decision-making process works in a simple manner: If any one out of the 10 ASEAN member states objects to a proposal or idea, that is enough to overrule the others. When it comes to the South China Sea disputes, the norm has come at a price, since it appears to facilitate China’s ability to destroy ASEAN centrality.

This was illustrated, for example, by ASEAN’s historic failure to issue a joint communiqué at the end of the ASEAN Foreign Ministers’ Meeting in July 2012 in Phnom Penh, because Cambodia, then the ASEAN chair as well as a close economic partner of China, sought to appease Beijing by minimizing the internationalization of the South China Sea issue at the expense of ASEAN unity. The Philippines, who had failed to urge Cambodia to include a recent incident concerning Beijing at Scarborough Shoal in the Phnom Penh-based ASEAN summit, in turn chose to evade any mention of China’s land reclamation projects and the historic ruling won by Manila over Beijing at the 30th ASEAN Summit in Manila in April 2017 due to hard lobbying by China. These incidents made clear to many that China’s influence in ASEAN is palpable, and all too real, and that it’s time for ASEAN to reconsider its consensus norm in the face of emerging security threats and the new evolved realities.

Next year – the second year in the agreed-upon three-year deadline for COC negotiations – is critical for the future of the South China Sea. But the existing lack of consensus and unity within ASEAN remains a big hurdle. Thailand and Malaysia are pursuing their “play-it-safe” approach to the South China Sea issue; Indonesia and Singapore probably remain neutral; the Philippines has been far more friendly toward Beijing under the leadership of President Rodrigo Duterte. Other ASEAN countries, who have entirely moved into China’s orbit, have showed their limited support for any strongly-worded joint statement expressing concerns on the South China Sea issue, and even have sided with China’s policy on the disputed waters in exchange for multi-billion dollar loans and aids from Beijing.

In this sense, Vietnam, as the upcoming 2020 ASEAN Chair, will need to focus more on laying the foundation and harmonizing standards for consensus and unity building in ASEAN. To that end, the adoption of the “ASEAN minus X” formula is worth considering. Even though the ASEAN consensus principle has been credited with keeping diverse ASEAN members united and has accounted for much of the peace dividend they have enjoyed over the last decades, attention has shifted to the “ASEAN minus X” principle which has been successfully applied in some niche economic and security areas, such as counterterrorism, wherein some members are keen to move faster than others. The ASEAN Charter’s Article 21 provides the guidelines for using “ASEAN minus X” in the implementation of economic commitments, but what would happen if only ASEAN claimants reach agreement on issues related to the South China Sea vis-à-vis China, while the others remain neutral or refuse support?

The way the ASEAN Convention on Counter-Terrorism came into force before its full ratification by all ASEAN members in 2013 suggests that the “ASEAN minus X” formula can be adjusted to apply on an ad hoc basis to other areas of security cooperation. In theory, it could enhance ASEAN’s response to the South China Sea challenges without undermining the intra-bloc cohesion. Hanoi can kick-start such a principle by uniting littoral ASEAN countries through deeper defense diplomacy and marine security cooperation initiatives, confidence-building, shuttle diplomacy, and fact-finding with or without the endorsement of all the members. Some experts attending the international seminar on “COC in the South China Sea: The Military and Marine Resources” organized in Bangkok on June 20 argued that building a littoral ASEAN countries bloc may be necessary for ASEAN in negotiating any COC with China.

A COC is not just for dispute management and stability building in the South China Sea, but should emphasize freedom of navigation and human security of huge and voiceless fishery communities in littoral ASEAN countries. Thus, the existing international law and norms as well as the Code of Unplanned Encounters at Sea must be indispensable in the COC.

The littoral ASEAN countries bloc may also need to develop appropriate transboundary living marine resources management and mutual humanitarian assistance for ASEAN fishermen in response to aggressive acts by Chinese military-backed fishing fleets and coast guards in disputed waters. While most attention is drawn to China’s numerous military installations in the South China Sea, the increased number and role of the Chinese “navy-trained fishing militia” must be adequately acknowledged. The maritime militia is used to harass foreign vessels and conduct other assertive activities, such as ramming, to advance contested island or maritime claims. Recent years have noted the significant roles of the Chinese marine militia in a number of military campaigns and coercive incidents, including the 2012 Scarborough Reef standoff that resulted in a Chinese takeover of the feature from the Philippines, the 2014 Haiyang Shiyou-981 oil-rig standoff with Vietnam, and a recent incident in Reed Bank.

Given a huge disparity in economic capacity vis-à-vis their Chinese counterparts, who are now strongly backed by the navy and coast guard, littoral fishing communities in Southeast Asia are now trying in vain to sustain their livelihood in disputed waters as well as in their traditional fishing grounds. Coercive measures by the Chinese militia are increasingly threatening the regional status quo and undermining international rules and norms on which peace and prosperity depend. In the clash between the Chinese government trying to realize its “nine-dash line” sovereignty claims by all means and the need to maintain regional stability in the South China Sea, marine biodiversity conservation and fishermen human security are clearly losing.

In the absence of a legally-binding mechanism in the South China Sea, ASEAN will have to further upgrade relations with external powers, in part due to the desire to lesson political and economic dependence on China and in part due to worries about China’s massive expansion in the region. But the foremost thing ASEAN needs is greater self-reliance, which requires substantial unity and a new approach to the consensus-based decision-making process. Self-reliance empowers ASEAN to protect its collective values and peoples without compromising the ASEAN Community for individual members’ own national interests.

While it is unlikely that China will be willing to ratify a legally-binding COC, opportunities exist to build self-reliance and leadership capacity to solve threats to dispute management within the littoral ASEAN states. The “ASEAN minus X” framework can empower a few littoral member states to proactively initiate and implement their own marine security cooperation and collective defense mechanism to protect their fishermen and maritime zones as provided for and established in accordance with the 1982 UNCLOS; assist law enforcement; combat terrorism; and challenge China’s efforts to normalize its unilateral policies and control in the South China Sea. Such a strategy would be a counterbalance in the region, necessary for the region’s self-reliance in security and defense. This is also a key opportunity for external players to support ASEAN’s self-reliant security building and show their determination to curb China’s gray-zone coercion.

Deepening political will and strategic trust is also the key to ASEAN unity. However, political will in ASEAN to take cooperative action on the South China Sea issue is impeded by low levels of mutual understanding and a lack of consensus at the interministerial level, and the absence of a convening body to champion the South China Sea dispute issues both inside and outside of ASEAN.

Vietnam is a natural starting point for self-reliance building in ASEAN in 2020. Vietnam’s geopolitical position as both a frontline claimant in the South China Sea and a foremost victim of military miscalculation or conflict escalation uniquely motivates it to support peaceful dispute management approaches. Sustained rapid economic development means that Vietnam will be one of the major production bases and the emerging hotspot of regional integration, and this strong economic linkage acts a bargaining chip at the regional dialogue level. Vietnam was recently voted as a nonpermanent member of the United Nations Security Council (UNSC) for the 2020-2021 term and at the same time will take up the ASEAN chairmanship in 2020, which provide ample opportunity to take a stronger leadership role on stability maintenance and security issues in the region. Lastly, Vietnam’s stable government institutions and growing network of diplomatic initiatives with strong historical partners in ASEAN and emerging strategic partnerships with external actors such as the United States, India, and Japan make it an ideal platform for enhancing regional dialogue and promoting progressive COC negotiations.

Vietnam therefore has an opportunity to propose which kind of approaches, including the “ASEAN minus X,” will progress during ASEAN-China COC talks. The costs associated with a nonbinding COC and diverging ASEAN in the South China Sea could be far-reaching and outweigh the values of peace, stability, and inclusive development that international interests and littoral ASEAN peoples demand. ASEAN leaders and think-tanks may recognize this, but preparing to accept Chinese hegemony in the region or becoming more assertive in employing UNCLOS and international norms to oppose China’s coercive actions won’t be an easy choice.

Nguyen Minh Quang is a researcher at Can Tho University and co-founder of the Mekong Environment Forum. He is currently a Ph.D. researcher at the International Institute of Social Studies, The Netherlands.

The author would like to express his special thanks to some diplomats and researchers from Singapore and Thailand, who requested anonymity, for their comments, without which this work has little to rest on. The author also thanks Gary Sands, a senior analyst at Wikistrat, and The Diplomat editor for making this a much smoother read.