It has been one of the diplomatic world’s longest gestations. A quarter century ago, the idea of a regional code of conduct for the South China Sea was a gleam in the eye of Southeast Asia’s foreign ministers. Twenty-five years later, the code is only a little closer to being delivered. In the interim, its would-be midwives have earned millions of air miles and generated many mountains of paper, but the baby has still not seen the light of day.
It was on July 21, 1996, that a meeting of foreign ministers from the Association of Southeast Asian Nations (ASEAN) in Jakarta, Indonesia, first “endorsed the idea of concluding a regional code of conduct in the South China Sea which will lay the foundation for long term stability in the area and foster understanding among claimant countries.” Their idea was a response to China’s occupation of Mischief Reef, just 130 miles from the Philippine island of Palawan, a year and a half earlier. Singapore’s Senior Minister Lee Kuan Yew had compared China’s actions to “a big dog going up to a tree and raising its leg.”
This July, the big dog is still marking its territory in the South China Sea, there’s little sign of long-term stability, and “understanding” among the claimant countries is wearing thin. Earlier this month, the Chinese foreign ministry spokesman Zhao Lijian declared, “China and ASEAN countries … actively promote consultations on the ‘Code of Conduct in the South China Sea’ with major progress.” This is not a view shared in ASEAN foreign ministries.
Negotiators from ASEAN and China have so far produced a “Declaration” on a code of conduct (in 2002), “Guidelines on the Implementation of the Declaration” (in 2011), a “Framework” for a code (in 2017), and a “Single Draft Negotiating Text” (in 2018), but a final code of conduct remains just as elusive as ever.
Jay Batongbacal is the director of the Institute for Maritime Affairs and Law of the Sea at the University of the Philippines. He worked on the early talks with his late colleague Aileen Baviera. “The original draft was seven pages and 13 articles long with various detailed sections,” he remembered. “Much of it was whittled down into a few pages and all the details were taken out. Eventually what was left became the 2002 Declaration.”
Through draft after draft, the problems have remained the same. According to Ian Storey, a senior fellow at the ISEAS-Yusof Ishak Institute in Singapore, there have always been three sticking points: “First, what should the geographical scope of the agreement be? Should it include the Paracel Islands, as Vietnam wants but China doesn’t, or Scarborough Shoal, as the Philippines wants but China doesn’t. Second, should the COC [code of conduct] include a list of dos and don’ts? Beijing won’t want to tie its hands by agreeing to a ban on those activities. Third, should the COC be legally binding? Most ASEAN member states appear to support that, but China is opposed.”
It would be wrong to think that talks have been continuous over the past quarter century. According to Storey, “Pretty much nothing happened at all between 2002 and 2011.” For years China refused to deal with ASEAN as a group. Beijing preferred to deal with the other claimants one-on-one where its economic and military heft would count for more. Fearful of this, the smaller ASEAN states opted to stand together. The talks became deadlocked over whether the Southeast Asian nations would even be allowed to discuss the South China Sea collectively without Chinese representatives in the room.
It was only when the Philippines initiated a legal case against China in an international arbitral tribunal in January 2013 that Beijing suddenly started to take interest again. That same year, China began turning the seven reefs it occupied in the Spratly Islands into huge military bases. In the words of Huong Le Thu, a senior analyst with the Australian Strategic Policy Institute, “China has used the prospect of a COC as a Holy Grail to entice the region. The protracted process diverted their attention while Beijing advanced its strategic objectives.”
Who, then, has benefited from this protracted process—besides all the five-star hotels that have hosted the years of talks? There has been one notable success: None of the rival claimants have fired at each other since the start of the process. Nor have they occupied any new islands or reefs. China maintains a near constant coast guard presence at Scarborough Shoal off the Philippines, Luconia Shoals off Malaysia, and some other features, but it has not yet built on them. On the other hand, there has been no progress on the major problems facing the region—such as confrontations over oil and gas developments or the prospect of a fisheries collapse. And there appears to be little chance that this will change.
In November 2018, Chinese Premier Li Keqiang told an audience in Singapore that he hoped negotiations on the code of conduct could be concluded “within three years.” No informed observers believe that is likely. The COVID-19 pandemic prevented any meetings during 2020, and talks only tentatively resumed last month. At present, the negotiators are faced with a “Single Draft Negotiating Text” a lengthy screed still containing all the rival positions. As Storey noted, “The next step will be to actually start negotiations and decide what to keep in and what to throw out. That will be when sparks start to fly.”
Many Southeast Asian diplomats believe the outcome is less important than the process. Former Singaporean Ambassador-at-Large Bilahari Kausikan recently told the Anakut podcast, “The COC is an instrument being used by both sides, not just China, to manage the relationship. When the relationship is tense, we don’t discuss the COC. When the relationship improves, we pretend to discuss the COC.” The scheduled meetings provide a framework for the ASEAN states to exchange views with China, and that is purpose enough.
But there isn’t even a single position within ASEAN. According to Le Thu, “Each country has their own strategies to deal with the great powers. I think it’s hard to expect a more coordinated action from the region. Among Southeast Asian nations, national interests and threat perceptions may continue to diverge. The gap has always been there, but it is likely to grow wider.” To put it simply, the five states bordering the South China Sea have much more at stake than the other ASEAN nations.
But nothing will be agreed until China agrees to it. Sourabh Gupta, a resident senior fellow at the Institute for China-America Studies in Washington (a think tank that shares key personnel with China’s National Institute for South China Sea Studies) said there are three key issues for Beijing. One is the geographic scope of the code of conduct. The other two are just as problematic. According to Gupta, Beijing believes, “There should be no role for external companies in key areas of marine economic cooperation, primarily oil and gas development, nor any joint military exercising with extra-regional states.” Beijing is equally opposed to outside parties—such as courts or arbitral tribunals—being involved in adjudicating disputes. Gupta said Beijing is adamant “that all disputes must be settled by consensus, perhaps with resort to the Leaders’ Summit as final resort. This is a red-line issue for Beijing.”
Vietnam and the other littoral countries are equally adamant that the United Nations Convention on the Law of the Sea should set the rules in the South China Sea, just as it does elsewhere in the world. Not all ASEAN members are quite so fixed in this view, however. B.A. Hamzah, the director of the Centre for Defence and International Security Studies at the National Defence University of Malaysia, argued that “Thailand, Burma, Cambodia, and Laos do not contest China’s jurisdiction at sea. Their support for the ASEAN consensus on the South China Sea is artificial—lukewarm at best. Each ASEAN member has its own economic and security interests to pursue.”
Nguyen Hung Son, head of the Institute for South East Asia/East Sea Studies at the Diplomatic Academy of Vietnam, is more optimistic. “Differences between ASEAN members are narrowing,” he said, particularly “since a more common understanding and interpretation of the 1982 U.N. Convention on the Law of the Sea … has developed lately.”
Ultimately, the Southeast Asian states want a code of conduct because they believe it will constrain China’s behavior. China, on the other hand, sees no reason to agree to allow its behavior to be constrained. Instead, it wants the code of conduct to constrain the United States. In Hamzah’s view, “Beijing wants the COC to restrain U.S. military adventures in the South China Sea and other areas in the region. China’s logic is, if the COC cannot keep the U.S. military at bay, why should Beijing ratify it? To China, ASEAN has been working as a proxy for Washington. So, no deal.”
The idea of a code of conduct constraining freedom of navigation for U.S., Japanese and other outside navies isn’t going to fly in either Washington or most Southeast Asian capitals. According to Le Thu, “China wants a fast conclusion of a COC on its own terms, but I think most Southeast Asian states wouldn’t want to rush into concluding a weak COC.” And since neither ASEAN nor anyone else can either compel or induce China to compromise, the prospects for agreement look just as far away as they did back in 1996.
One thing everyone interviewed for this article concurred on is that the chances of an agreed code of conduct in the next five years are remote. Instead, we should expect another piece of paper restating all the parties’ commitments to the 2002 Declaration and their hopes for progress toward something stronger in the future.
The region has now spent 25 years waiting for a code. Perhaps the best guide to its prospects comes from the Irish playwright Samuel Beckett: “Ever tried. Ever failed. No matter. Try again. Fail again. Fail better.”
