The South China Sea Code of Conduct: Another Prelude to Action?

Chinese Foreign Minister Wang Yi is interviewed by reporters at the 50th ASEAN Foreign Ministers' Meeting. Manila, the Philippines, August 6, 2017. (Aaron Favila/Associated Press)

In the lead-up to today’s official 50th anniversary of the Association of Southeast Asian Nations (ASEAN), the bloc’s foreign ministers duly celebrated one of its more recent, but already well-established, traditions: fiercely debating language on the South China Sea dispute to include in a joint communique from their most recent annual meeting.

While assertive action by China has made the risk of conflict in the South China Sea a significant concern, what emerged from the Manila-hosted event was another mild rebuke of the “land reclamations and activities in the area, which have eroded trust and confidence, increased tensions and may undermine peace, security and stability.” The statement did not name China as the party most responsible for these activities, nor did it condemn them as vociferously as reportedly demanded by Vietnam in particular.

The foreign ministers earlier agreed on a “framework” for a code of conduct in the vast body of water, whose overlapping territorial and maritime claims also include ASEAN members Brunei, Malaysia, and the Philippines, as well as China’s near neighbor Taiwan. Such a code has been hailed as the key to managing tensions in the area by the likes of the United States and other non-claimant parties ever since a related declaration was first signed in 2002. Progress toward its full development and implementation has stalled, however, as clashes over fishing, petroleum development, military buildup, and other activities have intensified.

The new framework is not being heralded as the definitive breakthrough that will ensure long-term stability in the sea, through which an estimated $3.4 trillion worth of international trade passes annually. What has been achieved is only a framework for further negotiation; it is a skeleton agreement, and adding flesh to its bones in a mutually agreeable fashion will be a difficult task (the full text of the agreement has not been released).

There has also been no indication of an end—or even a start—date for the process of formulation; only a vague intention to work toward the “conclusion of an effective COC in a mutually-agreed timeline.” While Chinese Foreign Minister Wang Yi spoke about the possibility of talks beginning sometime this year, “if the situation in the South China Sea is generally stable,” this only adds confusion to a process that is ostensibly designed to achieve that stability in the first place. Some observers, such as the University of the Philippines’ Jay Batongbacal, see the lack of clarity over key dates and details as handing China “the absolute upper hand,” by buying its leaders an indefinite amount of time in which to achieve their strategic aims.

The timing of what China contends is an acquiescence to ASEAN demands could also relate to the current state of American leadership in the Asia-Pacific region. While Washington has traditionally aligned with the Southeast Asian bloc’s position on the South China Sea—at least in its defense of the relevant provisions of international law, through official statements and regular “freedom of navigation” operations—it has been noticeably less committed to regional engagement under President Donald Trump, who has withdrawn the US from the Asia-focused Trans-Pacific Partnership trade deal and questioned long-standing military alliances in the region. This cannot help but improve China’s hand in negotiating with ASEAN.

Perhaps the biggest criticism to be levelled at the new framework is that there is no suggestion that any forthcoming code of conduct will be legally binding. This omission was enough for the foreign ministers of the US, Japan, and Australia—all of which have strong strategic and economic interests in Southeast Asia—to issue a joint statement of their own, calling on ASEAN and China to establish a set of rules for the South China Sea that were “legally binding, meaningful, effective, and consistent with international law.”

A mechanism to uphold the rule of law in the South China Sea has consistently been the standard that ASEAN members have demanded of China; it has been just as consistently rejected by Beijing. The framework agreed in Manila thus seems another capitulation on the part of the Southeast Asian bloc, whose insistence on consensus-based decision-making China has repeatedly exploited in recent years, primarily through its influence on the positions of members Laos and Cambodia. China, moreover, continues to justify its South China Sea actions on grounds that are wholly incompatible with international law and which focus instead on unilaterally upheld historical rights delineated by its “nine-dash-line.”

As important as a legally binding nature to any code of conduct is the inclusion of an enforcement mechanism to uphold decisions reached during the adjudication of any disputes. The potential ramifications of such an absence were highlighted in the aftermath of last year’s decision of a tribunal in The Hague that affirmed the exclusive economic rights of the Philippines, under the United Nations Convention on the Law of the Sea, in waters Beijing also claims. Though the tribunal also found “no legal basis for China to claim historic rights to resources within the sea areas falling within the ‘nine-dash line,’” it lacked any means of making Beijing comply with its rulings.

On the brighter side of that equation, the National University of Singapore’s Lynn Kuok has noted several promising signs of Chinese compliance with the spirit of the tribunal’s decision during the year since it was handed down, even as it flatly rejected the ruling at the time. These include an absence of Chinese navy and coast guard support to illegal Chinese fishing in Indonesia’s exclusive economic zone (though this area lays outside the South China Sea, it has been a source of comparable maritime tension), and Beijing allowing Filipino and Vietnamese fisherman to return to the disputed Scarborough Shoal formation, which it had blockaded since 2012.

Bearing these developments in mind, there is some hope that China may have indeed turned a corner in its South China Sea conduct. Yet, coming as it did as the result of the application, if not the enforcement, of international maritime law, it offers little instruction as to whether a non-binding code of conduct between China and ASEAN will produce a meaningful abatement of tensions. There is, moreover, a risk that Beijing may use its considerable influence over the bloc—built through economic and military might at a time when similar US attributes seem in decline—to formulate a weak set of conditions, which it will subsequently promote as the new standard of responsible behavior in the region.