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South China Sea: can China-Asean code of conduct talks secure a new international maritime order?

2021-12-13 16:07:15       source:NISCSS

November 22, 2021

Changes in the international order often come about through war and its aftermath. But China is trying to change the status quo by peacefully stretching the envelope of the existing system.


Indeed, China wants to use agreement with Asean on a code of conduct for the South China Sea to build towards a new international order more consonant with its interests and goals. This may be possible if the Association of Southeast Asian Nations and China are willing to compromise and use ambiguous language to paper over sticking points.


China is preparing the political ground. It has proposed to raise its relationship with Asean to a strategic comprehensive partnership – the highest level – and to cooperatively address maritime crime.


That will be considered at the summit between Chinese President Xi Jinping and Asean leaders today. Meanwhile, Foreign Minister Wang Yi has been pushing strongly for agreement on a code of conduct, saying China wants to “put multilateralism [ …] into practice and make new steps towards building a closer community of shared future between China and Asean”.


Two weeks ago, Assistant Foreign Minister Wu Jianghao told the Symposium on Global Maritime Cooperation and Ocean Governance in Sanya that China is “committed to build an equitable mutually beneficial, fair and reasonable international maritime order”.


The hope, said government adviser Wu Shicun, founding president of the National Institute for South China Sea Studies, is that China and Asean can forge a new model of ocean governance that integrates existing and evolving norms.


This would be a significant step towards presenting a united South China Sea front to outsiders. But this is much easier said than done, as China’s rival claimants share an interest with the United States in supporting the international order. In the US view, the code of conduct must conform to the international order it leads and which disproportionately favours its system and values.


The US is concerned that China will use the code to confirm its occupation and dominance of the South China Sea, and limit the activities of the US and its allies in the region.

Indeed, China proposed in the 2018 draft code that the parties “shall not hold joint military exercises with countries from outside the region, unless the parties concerned are notified beforehand and express no objection.”


It also proposed that cooperation on the marine economy be limited to the littoral states, excluding “companies from countries outside the region”.


The US has long tried to influence Asean’s position behind the scenes. More recently, its involvement has come out into the open. In July 2019, David Stilwell, then the US assistant secretary of state for East Asian and Pacific affairs, urged the Philippines to ensure the code is “fully consistent with international law.”


He also said the US was sceptical of Beijing’s sincerity and that such a code could be harmful to the region if used by China “to legitimise its egregious behaviour and unlawful maritime claims”.


Asean’s support is crucial to resolving these contrasting views. Beijing might be able to garnish this support if it offers compromises.


For starters, China could trade its exclusionary proposals for a status quo that makes its and others’ occupation of high-tide features a fait accompli. After all, the negotiations are about conduct, not sovereignty claims or maritime boundaries.


The status quo could also be interpreted by China as including its nine-dash line. Rival claimants would continue supporting the arbitration decision against China while China continues to oppose it – the situation would remain the same.


There has also been no agreement on important code elements such as geographic scope, means of dispute settlement if any, whether the code will have the force of law and whether outside powers can accede to it.


But these difficult issues can be finessed through compromise and ambiguous language.


Vietnam, for example, insists that the China-occupied Paracels, which it claims, must be included in the code’s geographic scope. But China maintains it has “undisputed” sovereignty over the islands. China also argues that the Paracels dispute is only between the two countries and should not be included in an Asean-China agreement.


But geographic scope could be left open to interpretation using language like “the disputed area”. China can argue that its sovereignty over the Paracels is not in dispute while Vietnam can argue that it is.


The 2018 draft code also makes no reference to any binding dispute settlement mechanism, and all proposals so far stipulate that initiating such a process requires mutual consent.

This supports China’s long-standing position that disputes should be resolved by negotiations only between the parties directly involved and require mutual consent. After its bitter experience with an international arbitration that proceeded without its consent, China would not agree to anything else.


In this, it may be supported by Asean members suspicious of Western-dominated processes, or which – like Malaysia and Indonesia – have suffered from unfavourable international arbitration verdicts.


China and some Asean members are also unlikely to want a legally binding code of conduct for fear of losing political manoeuvrability.


China will not want to open any agreement to accession by other countries, such as the US or Japan, because of the opportunity for meddling. Some Asean members may support China on this because they want to limit the influence of the US-China contest on regional affairs.


Compromise and ambiguous language in the code of conduct can serve China’s purpose of solidifying a step towards a new international order in the region while preserving Asean’s centrality and the temporary peace and stability in the South China Sea.

Mark J. Valencia is an adjunct senior scholar at the National Institute for South China Sea Studies, Haikou, China.