Realism needed on S China Sea code of conduct
China’s sudden renewed interest in drafting a Code of Conduct (COC) in the South China Sea — by June this year — is sparking irrational exuberance in the Association of South-east Asian Nations (Asean).
But the “framework” China is talking about is actually nothing but a skeleton of the agreement. It can be laid down in less than 60 minutes.
The Chinese side has yet to reveal its intention on how to flesh out the skeleton, to give the long-delayed COC real substance. At least five old questions remain unanswered.
What will be the COC’s geographical scope?
This was the same question that troubled Asean and Chinese officials in 2001-2002, when they first tried to formulate a COC.
Vietnam wanted the COC to include the Quan Dao Hoang Sa (the Vietnamese name for the Paracel Islands), but China argued that Xisha Qundao (the Chinese name for the Paracel Islands) were no longer in dispute, as the Chinese took them over by force in January 1974 after chasing South Vietnamese troops off the islands.
The solution then was to settle for a diluted 2002 Declaration of Conduct of Parties (DOC) in the South China Sea without defining the geographical scope.
Leaving the geographical scope undefined in the COC is problematic. Not every place in the South China Sea needs a new code of conduct.
What littoral states can or cannot do within their 12 nautical miles of territorial waters and exclusive economic zones of up to 200 nautical miles is regulated by existing international law, especially the United Nations Convention on the Law of the Sea (Unclos).
Similarly, no new rules are necessary for international waters in the South China Sea.
The potential coverage area of the COC is further reduced by the existing understanding among claimants that bilateral disputes shall be handled by the two parties directly concerned.
The Paracels and Scarborough Shoal are bilateral disputes between China and Vietnam, and China and the Philippines, respectively. They need not come under the COC.
Therefore, the COC is most likely applicable only to areas and features where there are overlapping claims of more than two parties.
The Spratly Islands are one such case of multilateral dispute.
What shall be the status of the COC?
Asean has long made known its wish to make the COC a legally-binding international agreement. This means the 10 Asean member governments and the Chinese government shall, after signing it, ratify it. After it comes into force, the COC shall be registered with the United Nations Secretariat. How long all this will take is anybody’s guess.
For now, Asean does not even know whether China wants a legally-binding COC.
If China can go along, what will be its conditions and exceptions? China’s ratification of Unclos included the usual exceptions not to accept provisions concerning dispute settlement relating to sea boundary delimitations and military activities, etcetera.
If the COC is a legally-binding international agreement, will it include provisions for accession by other countries?
China is known to dislike the involvement of “outsiders” in the South China Sea. Opening the COC for accession by “outsiders” is tantamount to recognising the legitimate interests of other countries in peace and security in disputed areas in the South China Sea.
What shall be the COC’s substance?
Both sides can agree that the COC will build on the DOC, but not replace it completely. If this is still the case, then the COC must be designed to address new and more substantive issues, such as militarisation of disputed features. Can Asean and China agree to de-militarise all disputed areas and features in the South China Sea? If they can, then the COC will be worth Asean’s nearly two decades of effort.
It is obvious that defining what is dangerous and unacceptable militarisation is not easy. On-site inspection and verification will also be difficult. China has its own reasons to build runways for military aircraft and to install modern weapon systems on its newly-built artificial islands. China does not see this as a “problem”.
The real “problem”, in China’s view, is the US freedom of navigation operations near China’s occupied features.
Asean would certainly want to reiterate the non-use of force in the COC, as is the case in the DOC. This could complicate the way China treats its claims and “historic rights” in the South China Sea. China has maintained a strategic ambiguity over how important the South China Sea really is. It is unclear whether the South China Sea is actually as sacred as Taiwan, Tibet and Xinjiang — all of which China is willing to use force to defend.
In 2003 China acceded to the Treaty of Amity and Cooperation in Southeast Asia, which includes principles, not to use force and to settle disputes by peaceful means.
The treaty is a legally-binding international agreement. Its geographical scope includes the South China Sea.
China’s accession to the treaty could mean that it considers the South China Sea a lower grade of “core interest”, over which it can agree to refrain from using force and to settle disputes by peaceful means.
Perhaps another substantive issue concerns the ways and means of undertaking joint development in disputed areas. Perhaps the COC can include procedures for joint development.
How to enforce the COC?
Most likely, any decision under the COC shall be made by an Asean-China consensus. This requires Chinese cooperation in enforcing the COC. What can Asean do if China violates the agreement?
The US meanwhile, would just continue to “fly, sail and operate wherever international law permits”. The COC will certainly not dampen the US’ keen interest in maintaining freedom of navigation in and near disputed areas in the South China Sea. This means the COC will not end the Sino-US rivalry in the South China Sea.
How will the COC improve the situation in the South China Sea?
From the beginning, the Asean side has always considered the DOC a political document — not a legally-binding agreement. This is why Asean wants a legally-binding COC.
However, China two years ago surprised Asean with its new interpretation that the DOC was legally binding. It used this argument to try to stop the Philippines’ legal case in the arbitral tribunal, on the grounds that the DOC does provide for “friendly consultations and negotiations by sovereign states directly concerned” in disputes in the South China Sea. These existing legal remedies had not been exhausted before the Philippines brought its complaint to the arbitral tribunal in January 2013.
The Philippines successfully countered that the DOC was just a political declaration and it could not prevent the Philippines from seeking legal assistance under Unclos.
The arbitral tribunal’s ruling announced on July 12 in favour of the Philippines was a serious setback to China’s claims of the “historic rights” behind its nine-dash line.
In the past, China’s stated preference was to focus on improving implementation of the DOC first. This is why the sudden Chinese interest in having the “framework” of the COC by June this year appeared like a wonderful great leap forward in the COC talks.
Asean needs a good dose of realism to calm down when it carries on with its discussion with China on developing the “framework” for the COC.
Bear in mind that what is more important is how to add meat to the skeletal agreement.
Another point to bear in mind is this: With or without the COC, China will continue to do what it can to improve its strategic position in the South China Sea in its rivalry with the US.
If and when China can reach a new understanding with the US on how to be good partners, then China may neither want the COC, nor value the friendship of Asean.
ABOUT THE AUTHOR:
Dr Termsak Chalermpalanupap is a fellow at the ISEAS-Yusof Ishak Institute, and a lead researcher on ASEAN political and security affairs at the Institute’s ASEAN Studies Centre.