Code of Conduct for South China Sea: Prospects and challenges

Notwithstanding optimism reflected at the 36th ASEAN Summit on 26th June 2020 in the Chairman’s statement that noted the progress of the substantive negotiations towards the early conclusion of an effective and substantive Code of Conduct in the South China Sea (COC) consistent with international law, including the 1982 UNCLOS and welcomed the completion of the first reading of the Single Draft COC Negotiating Text, any hope of early finalisation of the CoC remains a pipe dream.

China and the ASEAN have been holding talks for years to evolve a CoC, a set of regional norms and rules in the South China Sea (SCS) to avoid conflicts in the disputed waters. When the Single Draft for CoC was made at the 51st ASEAN-China Foreign Ministers’ meet in Singapore in 2018, it was termed as ‘a milestone’ and a ‘breakthrough’ for the CoC negotiation. This, however, does not indicate the truth. A look at the draft would make this dimension clear.

The Single Draft actually contains only the differences on important issues. First, the geographical scope has not been defined in the draft. Unless the CoC covers the entire South China Sea, it would be meaningless. Second, its legal status is not defined. While most ASEAN members desire that CoC should be legally binding, China does not want this. Third, the CoC must follow international law and norms but this can’t be accepted by China, which has ignored the Permanent Court of Arbitration’s (PCA) Ruling based on international law and norms. The PCA Ruling has pointed out the illegality of the Chinese claims and that should be taken into account for framing rules for CoC. Fourth, there is no agreement on the dispute settlement mechanism. An effective monitoring mechanism is essential for enforcing international law and norms. Only then mutual cooperation and trust can be built among the claimants. Crucially, it must be ensured that China does not try to impose its unjust ‘orders’ over others. In the past, China had asked Vietnam to stop oil drilling with the Spanish company and threatened war if the Philippines tried to enforce the PCA Ruling or drilled oil in the disputed areas. Fifth, on the applicability of the CoC on third parties, there are differences. While China does not want to indicate the rights of the third Parties, US Secretary of State in his interaction indicated that the rights and concerns of the third parties should be incorporated.

In essence, the Single Draft places all the differing views and can be considered as the agenda for future meetings. The Draft is a “living document,” which means the parties may add to or subtract from the draft text. At present, it appears that the process of finalisation of CoC would face several hurdles. Both China and other claimants are unwilling to change their positions. While China aims at turning the South China Sea into its lake, other claimants are not prepared to accept the illegal claims of the Chinese sovereignty in the region and give up their rights that rea protected under the UNCLOS. The discussions during the Draft reflect that some of the claimants are now becoming more assertive in opposing China. The hesitation to talk about UNCLOS and international norms in the presence of the Chinese representatives is vanishing. The strengthening of this trend with the support of external powers can reduce to some extent the Chinese ability to use coercive diplomacy. This factor propels Beijing to keep the other claimants away from other external powers.

In fact, very little has been achieved in regard to CoC. The contentious issues have remained unresolved. Neither Beijing nor other claimants have shown any inclination to accommodate each other on these issues. There is no hope that it would be finalised by 2022 as decided between China and ASEAN.

It is necessary to understand the game-plan of China in prolonging the discussions. China diplomatically wants to drag this dialogue to project that the claimants are talking among themselves and there is no need for external involvement and also to gain time to strengthen its claims through different means like enhancing its presence, further militarisation of the features and to change the perception of the International Community on its claims in its favour. China has already bought sufficient time to consolidate its position in the encroached areas. The time gained is also utilised for engineering divisions amongst ASEAN members using coercion and allurement for financial assistance. The division engineered in 2012 in ASEAN over criticism of the Chinese aggressive acts may be giving hopes to China that it would succeed in future also. Another factor that China may be keeping in view is that its military strength has to match that of the US, which is unhappy over the Chinese attempts to establish hegemony in the SCS. For this, China requires some more time. Besides, China hopes that with its wide publicity over its claims in the SCS, the International Community may begin to accept the Chines claims.

The domestic population, which is kept on a diet of irredentism and ultra-nationalism has to be satisfied. Xi when he took over as the President had projected the ‘Chinese Dream’ to restore all the territories in the periphery, which China projects to have lost to the forces of imperialism and colonialism. The SCS was shown as the Chinese area and If Xi fails to get it, his position would be weakened. The publicity given through the Chinese maps showing SCS as their area has a two-fold objective- first to create a misimpression in the world that the area in the nine-dashed line belongs to China and second to convey to the domestic population that China is working hard to get back the region and that requires their support. It has recently given its own names for 80 features to reflect its sovereignty over them.

The overall strategy of China is to bring SCS under its control to have the strategic depth for operations in the Indo-Pacific region. For this, it intends to strengthen its naval force and for this it needs time. It has scant interest in having a CoC that would impose some restrictions on China. Therefore, China is playing a waiting game for the CoC.  And if it is finalised under some pressure, China would renege as has been seen in the past. Trust on China among the International Community has vanished. Other claimants need to understand this game plan of China.

China has started its aggressive moves in all the periphery areas- ECS, SCS and at the Indo-Tibetan border. This has angered US, Japan, Australia, UK and other European countries. The hegemonic designs to alter the geopolitical map is not liked by them. The anti-Chinese sentiments are on the increase as it is violating international norms. The recent approach to UN by Vietnam, Malaysia and Indonesia as also by US against the Chinese claims which are not legal as per the PCA verdict and UNCLOS provides with an excellent opportunity to press for CoC that would be legally binding with a monitoring mechanism and preferably with the involvement of UN. The chair of ASEAN has already established a process for ASEAN-UN dialogues. This needs to be utilised for pressurising China for the CoC and implementation of PCA Ruling. The Chinese aggrandisement and militarisation of SCS give it major advantages in all situations. Hence, countering the broader geostrategic threat that China is posing by its activities in the SCS demands urgent counter-action action by all stakeholders desirous of peace, stability and security in the region.

DISCLAIMER : Views expressed above are the author’s own.

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