August 16, 2018

The foreign ministers of Asean and China recently agreed on a single text to negotiate a code of conduct (COC) in the South China Sea, a move that has been hailed as an important step forward in efforts to calm regional tensions.

A COC is supposed to guide the behaviour of countries in the disputed areas of the South China Sea but efforts to agree on one has been long and tortuous.

China's Foreign Minister Wang Yi likened the agreement on the text to China and Asean countries building a house together. "In the past, there were 11 designs from the 11 countries on how this house would look like. Now, we have laid in place good groundwork for a single design of this house and we have also put in place the fundamentals, like the supporting pillars of this house".

Certainly, laying the groundwork in the form of a single draft negotiating text has taken a long time: China and Asean have been working to implement the Declaration on the Conduct of Parties (DOC), the precursor to the COC, since 2002.

The reality is that a robust, binding COC has become a legal and political Holy Grail - an ideal that is unattainable in the present political circumstances.

In his analysis on the single draft negotiating text (SDNT) for the COC, Australian academic Carl Thayer flagged a number of key issues that show how much more work needs to be done to resolve the differences.

Notably, the parties have not agreed on the geographic scope, means of dispute settlement if any, and whether or not it will have the force of law.

Agreement on a COC is also difficult because the parties appear to be proceeding by the Asean principle of consensus. This means that one stubborn holdout can prevent agreement, even if that country is not directly affected by the issue at hand. This can work to China's advantage if it wants to delay or dilute an agreement.

Only four Asean members are claimants - Brunei, Malaysia, the Philippines and Vietnam. Laos and Cambodia seem to consistently side with China on the South China Sea issues while the others are in play.

A closer examination shows the gap in positions. For instance, Vietnam suggested that the COC apply to all disputed features and overlapping maritime areas claimed under the United Nations Convention on the Law of the Sea (UNCLOS).

This is because Vietnam insists that the Paracel Islands and their attendant maritime jurisdictional zones be included.

China, however, argues that it has "undisputed" sovereignty over the Paracels. Moreover, it says that in any case, the conflicting claims are only between Beijing and Hanoi and thus not an issue or area that should be included in an Asean-China agreement. Neither government is likely to yield on this issue as each would be vigorously attacked by domestic nationalists.

This hurdle led to previous efforts to conclude a COC being downgraded in 2002 to an agreement only on the ambiguous, exhortatory, non-binding DOC.

In the current round of negotiations, this matter may be finessed by not specifying the area to be covered by the code. But that means its scope will be ambivalent and open to different interpretations and further dispute.

The SDNT also lacks any reference to binding dispute settlement mechanisms. There are proposals to refer disputes to various dispute settlement mechanisms, but these stipulate that such referrals be only at the consent of the parties.

China's long-held position is that disputes between nations should be resolved by negotiations between the parties directly involved, not third parties. China also believes that non-parties to its disputes with other claimants should not have a say in their resolution - let alone Asean as a whole.

As for the COC's legal status, the SDNT does not specify that it will become a treaty. China - and perhaps some others - is unlikely to agree to a legally-binding document.

But Vietnam has proposed a provision that the COC "be subject to ratification in accordance with the respective internal procedures of the signatory states" and that the ratifications be registered with the Asean Secretary-General. This provision may be a stumbling block.

Making matters worse, new complications have arisen. For example, China has proposed a clause stating 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".

Although the meaning of "parties concerned" is not clear, it would appear that China does not want one of the parties to invite countries from outside the region to conduct military exercise without approval of all the parties to the COC - including China. Indeed this appears to be an "in your face" affront to the United States and its extra regional supporters like Japan, Australia, France and Britain.

In a clear rebuke to this proposal and China's policy and actions in the South China Sea, Australia, Japan and the US issued a joint statement on Aug 5 that called for the COC to be "consistent with existing international law, as reflected in UNCLOS; to not prejudice the interests of third parties or the rights of all states under international law; to reinforce existing regional architecture; and to strengthen parties' commitments to cease actions that would complicate or escalate disputes". 

China's proposal is probably a non-starter. Indeed, agreement by Thailand and the Philippines to its proposal would gravely damage their alliances - and relationships - with the US.

The proposal may be a "throwaway" - something that China is willing to trade for something else that it wants. Nevertheless it indicates how difficult the negotiations are going to be.

Vietnam has also proposed that "the contracting states respect" the maritime zones as provided for and established in accordance with the 1982 UNCLOS. This would mean that China must abandon its nine-dash line historic claim. China will not agree to this provision.

Despite these obstacles, there is guarded optimism in Asean that an agreement can be reached. Philippines Foreign Minister Alan Peter Cayetano has said "the hope is that by November when our leaders meet, we will have it".

But getting an agreement by year's end is only possible if it is one that is left ambiguous and non-binding.

Furthermore, the SDNT is a "living document", the basis for future negotiations. This means that the parties may propose alterations to the draft's text. This is likely the kiss of death to any hope of early agreement and will likely prolong negotiations indefinitely.

As former Singapore diplomat Bilahari Kausikan has noted: "The text contains everyone's ideas - the 10 Asean members and China - with no or minimal reconciliation between contradictory or competing ideas. In other words, while this is indeed a step forward, there is still a whole lot of negotiation over some very difficult issues to be done."

As the negotiations drag on, it will likely be "business as usual" in the South China Sea.

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

Link: http://www.singaporelawwatch.sg/Headlines/a-south-china-sea-code-of-conduct-has-become-a-holy-grail 

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