The Code of Conduct for the South China Sea: A Long and Bumpy Road

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The Code of Conduct for the South China Sea: A Long and Bumpy Road

For all their recent promises, China and ASEAN claimant states will struggle to bridge fundamentally divergent interests in the South China Sea.

The Code of Conduct for the South China Sea: A Long and Bumpy Road

The USS Carl Vinson transits the South China Sea on March 2, 2017.

Credit: Flickr/U.S. Navy

During last month’s ASEAN Regional Forum, foreign ministers from the 10 members of the Association of Southeast Asian Nations (ASEAN) once again called for an expedited negotiation of the Code of Conduct for the South China Sea (COC). But there are many obstacles that will have to be overcome before the long-expected agreement sees the light of day.

The region and world is currently in the throes of a fierce competition between the United States and China. In recent weeks, military exercises and the deployment of aircraft carriers by both powers have left regional observers fearing a potential military conflict. The South China Sea is perhaps the key flashpoint in Sino-American competition. It seems that the current American approach in the South China Sea is to respond to China’s increasingly assertive actions through the deployment of its own military power. Defense Secretary Mark Esper said that the U.S. is actively building up the capacity needed to prevent China’s domination of the region. “The Indo-Pacific is the epicenter of a great power competition with China,” he said last month. “We’re not going to cede this region – an inch of ground, if you will – to another country.”

The growing U.S.-China tensions have put the ASEAN countries in a difficult position. China is strong and aggressive, but is a neighbor; the U.S., meanwhile, is supportive, but occasionally fickle. As Singaporean Prime Minister Lee Hsien Loong recently put it, the region lives “at the intersection of the interests of various major powers and must avoid being caught in the middle or forced into invidious choices.”

Despite the region’s difficult position, some ASEAN countries have taken the opportunity to assert their legal rights in the South China Sea. At the end of 2019, Malaysia made a formal submission to the United Nations Commission on the Limits of the Continental Shelf, detailing information on the limits of its continental shelf, beyond its 200-nautical-mile Exclusive Economic Zone (EEZ). As always, China immediately rejected Malaysia’s claim and asserted its sovereignty and rights in the South China Sea with vague and ambiguous arguments.

In response to China’s response, a number of ASEAN countries sent notes verbales to the U.N. clarifying their legal positions on the maritime and territorial disputes. Firstly, the Philippines responded, followed by Vietnam, Indonesia and, once again, Malaysia. The common point in these statements was the invocation of international law, particularly the U.N. Convention on the Law of the Sea (UNCLOS), against China’s expansive claims to the South China Sea. To varying degrees, each also invoked the legal ruling handed down by the Permanent Court of Arbitration (PCA) in July 2016, which ruled (among other things) that China’s “nine-dash line” claim had no validity under UNCLOS.

Nations outside the region have also weighed in on the disputes. The U.S., Australia, and most recently the UK, have also issued official statements on the South China Sea disputes. All of these statements are in harmony with the stance of the ASEAN countries in opposing China’s maritime claims as illegal and invoking the PCA ruling in support of their positions.

China has so far refrained from retaliating to these legal challenges. Indeed, Chinese leaders have actively moved to calm relations with affected ASEAN countries. Specifically, Chinese Foreign Minister Wang Yi has repeatedly promised to resume negotiations with Southeast Asian countries on a COC, most recently in a statement at the beginning of this month. This move was made by China after several months of relentless efforts to assert itself as the most powerful militarized power in the maritime area.

ASEAN and China have previously made many joint statements claiming or promising progress in the negotiations over the COC. In 2017, the two sides announced a draft Framework COC, and in 2018, a Single Draft Negotiating Text (SDNT). The year after that brought the 20-page First Draft of the planned COC. But all these achievements have been insufficient to settle the bilateral disputes. According to some officials involved in the negotiation process, the First Draft in particular contains a number of serious disagreements in the positions of China and the ASEAN claimants.

In August 2018, when the content of the SDNT was announced, Chinese Foreign Minister Wang Yi unilaterally announced that this COC would be finalized within three years. Given what has happened since, however, one wonders how the COC can possibly be concluded within that deadline.

During this month’s clutch of ASEAN meetings, Philippine Foreign Affairs Secretary Teodoro Locsin announced that negotiations on the COC would resume in November, but many observers are skeptical. According to one expert from Singapore’s ISEAS-Yusof Ishak Institute, the two sides were only holding discussions on “how to resume the negotiations, not the negotiation itself.”

Fundamentally, the situation is simple: ASEAN countries want to curb China’s behavior, but China does not want its actions to be constrained. ASEAN has little or nothing that it can do to force China to agree on an effective and substantial COC, so the negotiations have continued to deadlock on key issues.

While there is technically a SDNT that forms the basis for discussions, the parties remain stalemated on the same issues as in the past. For example, there is no indication that the parties can agree on the scope of the putative COC’s application. Will the COC’s geographic coverage encompass the Paracel Islands (as Vietnam would like) and Scarborough Shoal (as the Philippines would like), or only the Spratly Islands (as China would like)? What about places like Vanguard Bank that only China considers disputed?

Moreover, how would the ASEAN states deal with China’s claim to “historic rights” in their own domestic law, and what is the role of international law in this case? And how will disagreements over the interpretation of the COC be resolved? Is the COC “legally binding,” as desired by some ASEAN countries? And what does “legally binding” even mean in a world where large powers frequently flout international rules when it is convenient for them to do so?

There are a number of other problems. China has always wanted to exclude the U.S. and other countries from the COC negotiation process. For example, China wants all signatories to be able to veto naval exercises with any non-signatory, but this is unacceptable to ASEAN countries that rely on relations with external powers to counterbalance China’s growing power. With so many fundamental issues in play, the COC process is not likely to end any time in the near future

Another challenge to negotiating the COC is the 2016 PCA award, referred to in the recent flurry of notes verbales. According to the ruling, China’s “nine-dash line” has no legal basis. It also ruled that no maritime features in the Spratly Islands are considered “islands,” meaning that they do not generate claims to an EEZ or continental shelf. If the PCA award were accepted by all parties to the dispute, the scope of disputed areas and overlapping claims in the South China Sea would be considerably narrowed. Compliance with the award would reinforce the commitment of the parties to UNCLOS, something that has been repeatedly emphasized in the COC negotiation process. Moreover, the award would inevitably make the COC more credible, both to stakeholders and to the international community as a whole. As Philippines President Rodrigo Duterte of the Philippines said in his speech to the 75th session of the UN General Assembly last week, “The Award is now part of international law, beyond compromise and beyond the reach of passing governments to dilute, diminish or abandon.”

Therefore, if the COC does not mention the PCA award, it is likely that COC participants will not be able to prevent Chinese ships and patrol boats from interfering with oil and gas exploration or drilling activities within littoral states’ EEZs, which are recognized and protected by UNCLOS. If there is respect for the award, these issues can be resolved easily.

For that reason, there is a possibility that Vietnam, which holds ASEAN’s rotating chairmanship this year, will make a request that the COC include the content of compliance with UNCLOS and international law; that it apply the provisions of the award; and that it be legally binding and substantive. Considering the signals from China – and its general brash dismissal of the PCA ruling – it can be assumed that Beijing would not accept these conditions. The COC negotiation process therefore looms as a long and bumpy road.

In fact, ASEAN, divided from within by the divergent interests of its member states, and beset from without by Chinese pressure, is likely to remain disunited on the issue. The intentions of ASEAN and China to continue working toward a COC should be welcomed. But a bad COC is ultimately a greater risk for ASEAN than no COC at all.

Viet Hoang is a lecturer at the Ho Chi Minh City University of Law and a member of Department of the Law of the Sea at the Vietnam Bar Federation. He is also a Visiting Scholar at Department of Political Sciences, National Taiwan University.