China and the Association of Southeast Asian Nations (ASEAN) concluded a Declaration on the Conduct of the Parties in the South China Sea (DOC) in 2002. Negotiations were difficult, and a non-binding, ambiguous document was the most they could agree on.
Ever since, they have been trying on and off to agree on a more robust Code of Conduct (COC). Although negotiations produced a Single Negotiating Text in 2018, it is a smorgasbord of contradictory positions on contentious issues.
As the frequency and severity of international incidents in the South China Sea rise, so do calls and commitments to complete COC negotiations rapidly. But it is clear that realistic compromises will be necessary to move forward.
The issues
The main issues are the definition of the COC’s geographic scope; the means of dispute settlement; whether or not it will have the force of law; and whether outside powers will be able to become parties to it. If there is political will, difficult issues can be finessed.
Take the geographic scope. Vietnam insists that the China-occupied Paracel Islands and the entitled maritime area Hanoi claims must be included. But China maintains that it has “undisputed” sovereignty over the Paracels, their territorial waters, and the resources in the island group’s 200-nautical-mile exclusive economic zone (EEZ) and on its continental shelf.
This is a large and economically and strategically important area. Neither Beijing nor Hanoi is likely to yield on this issue as their leadership and legitimacy would be strongly criticized by domestic nationalists.
China says Vietnam is trying to use ASEAN and the negotiations to bolster its claim – and it has a point. China also argues that the conflicting claims to the Paracels are only between it and Vietnam and thus not an issue or area that should be included in an ASEAN-China agreement.
The geographic scope of the COC could be left open to interpretation using language like “the disputed area in the South China Sea.” China can argue that its sovereignty over the Paracels and jurisdiction over its entitled waters are not in dispute, while Vietnam can argue that they are covered by the COC.
If the other parties remained neutral, this issue would remain a bilateral one between only China and Vietnam, and they would have to work out a modus vivendi for themselves.
Resolving disputes
The dispute-settlement process is probably ripe for compromise. Whatever third-party process is agreed, most parties want it to be qualified by the requirement of mutual consent. This would make the provision less contentious because it provides an “out.”
Beijing suffered a humiliating defeat in an international arbitration regarding its “nine-dash line” historic claim to much of the South China Sea that proceeded without its consent and would likely not agree to anything more. It might be joined in this position by one or more ASEAN countries that are wary of Western-created and -dominated processes.
Some, such as Malaysia and Indonesia, have suffered losses through such third-party dispute-settlement mechanisms that shook their governments and would likely want to avoid such processes. Moreover, few if any countries are likely to give their consent unless they are certain they will win, and this is iffy.
Further, many arbitrations result in adverse surprises even for the “winner.” The Philippines-China arbitration result that none of the Spratly features can generate an EEZ is a case in point.
So is the International Court of Justice decision regarding rival claims by Malaysia and Singapore to Pulau Batu Puteh/Pedra Branca. That decision divided the disputed features between Malaysia and Singapore leaving both dissatisfied and a contentious aftermath that ruffles their relations to this day.
As for the COC’s legal status, China – and some ASEAN members – are unlikely to agree to make it a legally binding document because they fear loss of political maneuverability.
They also now recognize from Beijing’s refusal to abide by the Philippines-China arbitration decision that in the end a COC, regardless of its legal nature, will not be enforceable and must rely on the opprobrium and threat of sanctions by other parties and the international community.
China will oppose opening the agreement for accession by outside countries such as the US, Australia and Japan because it would present an opportunity for them to “meddle.” This is a genuine concern, as ASEAN has been divided in the negotiations by pressure from China and the US. Some ASEAN members may support China on this because they want to limit the influence of the US-China contest on their regional affairs.
Generating mistrust
Some analysts argue that the process is as important as the product. This may have been true in the beginning. But after more than 20 years of back and forth without agreement on the critical issues and numerous continuing and ever more frequent major violations of the DOC, it can be argued that the delay has benefited the more powerful parties like China more than others because they can, and do, proceed unilaterally.
Thus the process has produced more mistrust than progress. Worse, the process has become influenced by the China-US struggle for domination of the region. While there has not been an overt outbreak of hostilities between parties and users during this period, this is largely due to the fundamental bonds among ASEAN parties and asymmetrical military capacities between ASEAN claimants and China.
The negotiations are in essence at an impasse, and compromise is the only way forward. For the ASEAN claimants, compromise may be the only way they can harvest their resources without interference from China. This is not “right,” but it is realistic.
If they really want to move forward, some compromises on key provisions and in the negotiation process itself will be necessary.
Involving all of ASEAN in the negotiating process is retarding progress because of the Southeast Asian bloc’s mantra requiring consensus before moving ahead. The lead negotiators should be only the parties to the disputes. This would be in keeping with the DOC agreement for ”negotiations by the parties directly concerned.” Otherwise opportunities for interference by both China and the US are expanded.
Even a loose COC will be better than nothing, because it can serve as a guide for proper behavior. Compromise and ambiguous language in the COC could preserve ASEAN’s centrality in the international political affairs of the region. It would also serve China’s purpose of solidifying a concrete step toward a new international order in the region.
The alternative to a COC is continued near-anarchy and “might makes right.”
An edited version of this article appeared in the South China Morning Post.