A recent China-ASEAN agreement for a “framework” for a South China Sea Code of Conduct (COC) has triggered an outburst of diplomatic optimism that the COC will finally be attained. Indeed, the China-ASEAN agreement on a “framework” for a COC is being trumpeted as “steady progress” and “a potentially significant step toward cooling tensions.” This draft framework will be formally considered at a meeting of the parties’ foreign ministers in August 2017.
But the sad reality is that there has been little progress towards a binding, robust COC. Indeed, optimism that continuing efforts will produce that result is exaggerated and misplaced. Basic obstacles to agreement on key COC provisions remain. For example:
1. Who gets to sign it? ASEAN and China, or China and each of the ASEAN members individually, or even “outsiders” that use the area?
2. What is the area to be covered by the code? The legally disputed areas remaining after The Hague arbitration decision that rejected both China’s 9-dash line claim and any EEZ or continental shelf for any of the Spratly features? Or the overlap of China’s original claim with that of others — the maritime zones around the Paracels, or just the Spratlys?
And most importantly:
3. Whether it is binding and has dispute settlement and enforcement mechanisms?
Yes, China has re-engaged in negotiations. But that is because it wants and needs to improve relations with the Southeast Asian nations, collectively and individually after the erosion of its soft power by the arbitration decision against its claims and actions. More basically, China wants to blunt any opportunities for the US, Japan, and others to “meddle” in the issue and motivate some countries against China. China wants to appear to be willing to negotiate rather than appear to be uncooperative. But it does not want to be “bound” by any agreement. So, it will probably drag out the negotiations indefinitely until it gets the content it wants.
Progress in negotiations for a COC have been glacial. The concept was first suggested in the mid-1990s. In 2002, China and ASEAN eventually agreed on the non-binding Declaration of Conduct in the South China Sea (DOC). It has been argued that this was a compromise between nothing and a legally binding agreement. Article Ten of the DOC explicitly notes that: “The Parties concerned reaffirm that the option of a code of conduct in the South China Sea would further promote peace and stability in the region and agree to work, on the basis of consensus, towards the eventual attainment of this objective.”
Some years later the parties began discussing “key” common principles of a COC, such as the strengthening of political trust; commitment to the UN Charter, the UN Law of the Sea Convention, and the 1976 Bali Treaty of Amity and Co-operation; mutual respect for each other’s independence and sovereignty; and self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability. But these principles and some DOC provisions have been asserted, agreed, and subsequently breached by the parties many times. The process was like a diplomatic dance of one step forward, one to the side, and one step backward, with lots of repetition.
As many analysts expected, the draft also indicates the COC will not be binding — at least in a legal sense with dispute settlement and enforcement mechanisms.
Then on 20 July 2011, the ASEAN member states and China agreed on the “Guidelines for the Implementation of the DOC.” At the time, this was hailed as a milestone for “embodying their collective commitment to promoting peace, stability and mutual trust and to ensuring the peaceful resolution of disputes in the South China Sea.”
Negotiations on a “framework” for a COC have been going on since then. A press statement issued after the meeting that reached agreement on the framework declared that all parties will “uphold using the framework of regional rules to manage and control disputes, to deepen practical maritime cooperation, to promote consultation on the code and jointly maintain peace and stability of the South China Sea”. These are soothing words but there is “many a slip twixt the cup and the lip.”
The draft is supposedly “secret” for now because “consultations” are still ongoing and there is a perceived need by some parties to avoid outside “interference” in the process. However, some of the draft’s content has been “leaked.” According to Michael Vatikiotis writing in The Strategist, the draft “purports to provide a rules-based framework which would list norms to guide the conduct of parties and promote maritime cooperation in the South China Sea”. The first provision in the draft framework’s agreed “Principles” spells out what the COC will not be: “an instrument to settle territorial disputes or maritime delimitation issues.”
That is understandable. But as many analysts expected, the draft also indicates the COC will not be binding — at least in a legal sense with dispute settlement and enforcement mechanisms. When asked whether the COC would be binding, Chinese Vice Foreign Minister Liu Zhenmin said: “I cannot give you a definite answer now”. Malaysian Foreign Minister Datuk Seri Anifah Aman offered: “Although this COC for the South China Sea is not legally binding, it will be a guideline for the security and peace of all those involved.” Philippine Department of Foreign Affairs Secretary Alan Peter Cayetano explained: “Many countries want it to be legally binding. But what I’m saying is, let’s start with it being a binding gentleman’s agreement.” According to Cayetano, what will make it binding is “the word and the commitment of country to country.” Unfortunately, this has not worked out very well before — at least on this issue.
According to Chee Wee Kiong of Singapore’s foreign ministry, the framework includes a “round-the-clock hotline” and “urges parties to find ways to follow the code.” One anonymous ASEAN diplomat said the agreed draft “focuses mostly on managing tension and building trust.”
Ian Storey of the Institute of Southeast Asian Studies said that “what’s new are the references to incident prevention and management and establishing a mechanism to monitor the COC’s implementation.” If so, this would indeed be a step forward. But Liu has cautioned that the draft only contains “the elements of the COC, not the eventual rules of the COC” — whatever that means.
ASEAN operates by consensus and presumably its members will have to agree on a common position on the details of a COC before they negotiate them with China. China will likely successfully pressure some members to support its position on key clauses of a COC, preventing such consensus.
China may be willing to agree to an ambiguous non-binding COC if and when the other claimants agree to individually negotiate the disputes directly with China — as stipulated in the DOC. But until then, don’t get your hopes up — even for that.