The consultation process for the Code of Conduct (COC) in the South China Sea started in 2013. The COC is considered an upgraded version of the Declaration on Conduct of the Parties in the South China Sea (DOC), which was signed by China and ASEAN countries in 2002. The Joint Working Group for the Implementation of the Declaration on Conduct of the Parties in the South China Sea (JWG-DOC) is in charge of drafting the COC. On May 27, the JWG-DOC held its third ad-hoc online meeting since the start of 2021. The increase in the frequency of JWG-DOC meetings indicates enhanced efforts by the countries concerned.
Issues of debate and one emerging challenge
After the framework of the COC was agreed upon in May 2017, the COC consultation entered negotiations on substantive issues of the COC, which are expected to be sensitive and tough. Up until the first reading was completed in May 2019, the major issues of debate include the geographic scope and status of the COC, the duty to cooperate, dispute settlement and the role of third parties. As a “living document” and “a work in progress” it is possible that new issues might appear in the future negotiations.
One emerging challenge has become obvious in the past year. The divergent positions relating to the 2016 SCS Arbitration award have been displayed through the Note Verbales presented to the UN by the key claimants in the SCS, following Malaysia’s submission to the Commission on the Limit of Continental Shelf on the outer limit of its continental shelf in the SCS. China did not participate in the arbitration case and does not accept the award, while the Philippines will not ignore it. The non-parties to the case, including Vietnam, Malaysia and Indonesia, have invoked the case, either explicitly or implicitly, to their advantage.
Two disturbing issues
Two key issues have impacted and will continue to influence the COC consultation process: the COVID-19 pandemic and the dynamics of America’s China policy.
Because of the COVID-19 pandemic, communications relating to the COC consultation have been rather limited. In 2020, the JWG-DOC could only hold one ad-hoc online meeting in September. Up until now, video conference is the only method that the mechanism has utilized to discuss the agenda, including the COC process. The current stage relates to sensitive issues and requires “total diplomacy at work.” Without personal interaction it is hard to make substantive progress. However, on each occasion of the online meetings, the importance of the COC has been emphasized for maintaining peace and stability in the SCS, and consensus has been reiterated to keep the momentum of the COC consultation and to renew face-to-face discussions once the pandemic is under control.
The dynamics of American China policy have strong implications on security issues in the South China Sea. Since the U.S. “rebalance to Asia” plan was initiated, the country’s China policy has evolved through three administrations to become an all-encompassing confrontation with China. With China’s influence growing, in particular during 2020 when the pandemic in the United States was out of control, irritation surged among U.S. elites, and a bipartisan consensus against China has developed.
The South China Sea may be a theater in which the U.S. can prevail over China. Strategically the sea lanes of communication in the SCS are very important for the U.S. military to maneuver around the world. The dominant position the U.S. military occupies over these lanes may provide theoretical advantages to its military at time of conflict. Therefore, China’s military presence along its coast and in its controlled features in the SCS are perceived as a challenge to U.S. dominance. To minimize the negative impacts of such a scenario, the U.S. military has increased its intelligence surveillance and reconnaissance (ISR) activities in China’s near sea area in the name of its freedom of navigation operations (FONOP).
In such a geostrategic context, the existence of maritime disputes between China and its neighbors provides a unique opportunity for the U.S. to align itself with other claimants by opposing China’s maritime claims. While increasing its military presence, the U.S. makes efforts to align its allies and partners so they will join its military activities in the SCS. Recently the SCS has witnessed the presence of warships from Japan, Australia, Britain and France. The number of military exercises has increased. The perceived intrusive U.S. military actions and China’s response increase the risk of misunderstanding and misjudgment, which may lead to military confrontation detrimental to regional stability and prosperity.
These two issues have added new motives for countries in the region to consider their policies and actions on issues that impact their security, including the COC consultation. Two divergent trends are at play in the South China Sea. On one hand, the claimants make efforts to maximize their interests, which leads to a higher frequency of incidents involving exploitation of marine resources, fishing or oil and gas. On the other hand, with the growing awareness of the potential risk posed by the geostrategic situation, in particular America’s aggressive China policy, the claimants have become more willing to reach a COC for the South China Sea as an efficient regional dispute management mechanism.
It is worth noting that ASEAN foreign ministers made a statement in August after U.S. Secretary of State Mike Pompeo’s elaboration of the U.S. position on the South China Sea. Although the statement aligned itself with ASEAN claimants against China, what the ASEAN observed was that “the changing geopolitical dynamics” may have “detrimental ramifications” for the region, and members called on all countries to exercise self-restraint and reiterated their support for multilateralism in dealing with challenges and shaping an effective rules-based multilateral architecture to deal with pressing common challenges.
Parallel with the COVID-19 pandemic and the dynamics of the America’s China policy, China and ASEAN countries have maintained continuous contact relating to the COC. The interactions are through ASEAN-centered mechanisms such as the ASEAN-China summit, the ASEAN Post Ministerial Conference with China and the JWG-DOC. The main messages delivered are that progress has been made on the substantive negotiations, efforts have been undertaken for the step-by-step resumption of the COC negotiations, and an environment conducive to COC negotiations will be created by promoting practical measures.
Although the second reading of the single draft negotiating text has been halted because of the ongoing pandemic, bilateral interactions have shown their commitment to renew the negotiation. In January Chinese Foreign Minister Wang Yi visited Mymmar, Indonesia, Brunei and the Philippines. From March 31 to April 2, the foreign ministers of Singapore, Malaysia, Indonesia and the Philippines visited China. During these bilateral meetings between top diplomats, the SCS issue was included on the agenda in which the COC consultation process was emphasized.
Looking into the future
China and ASEAN countries have shown their determination to manage the SCS disputes by having a COC, in particular during the time when the pandemic poses challenges to each government in terms of economic and social recovery. For the long-term peace and stability of the South China Sea, it is important that the COC is effective in ensuring that relevant parties exercise self-restraint, promote confidence-building measures and implement cooperative activities in nonsensitive areas.
The lapse in negotiations induced by the pandemic provides a delicate opportunity for all parties involved to ponder what is truly needed to formulate the COC and on which issues they are willing to compromise. A more realistic perspective can cultivate the culture of compromise during the negotiations. With further readings to come, the key players are willing to comprise in order to make the COC a reality.
The hype linked to incidents that have occurred in areas of overlapping claims can best be understood as a display of nationalistic trends in claimant countries, such as in the Philippines in relation to the Whitsun Reef. Cooling things down can provide space for negotiators to bargain and compromise. The key players need to be careful not to let nationalism disrupt the negotiation process. It is time to enhance efforts for the COC consultation. Creative thinking is needed.
The SCS Arbitration award remains a dividing factor. Political wisdom is needed to deal with the issue if it is raised in the COC consultation process.
As a regional organization, ASEAN has an important role to play to facilitate the early conclusion of the COC process.
