The Code of Conduct for the South China Sea: Movement in lieu of Progress

Tracking events in the South China Sea is a bit like watching the 1993 movie Groundhog Day, a comedy in which a self-centred TV weather reporter is forced to relive the same day over and over again.

The movie was so successful that its title quickly passed into the English vernacular to describe a repetitive series of negative experiences, seemingly without any prospect of improvement.

It has certainly been Groundhog Day in the South China Sea over the past six months.

China’s survey ships, coast guard vessels and maritime militia have repeatedly intruded into the Exclusive Economic Zones of Vietnam, Malaysia, the Philippines and Indonesia. Earlier this month, China tried again to prevent the Philippines from resupplying its troops on Second Thomas Shoal. In the same week, Vietnam banned a movie and a TV drama series because it thought they contained images depicting China’s nine-dash line. This year, the U.S. Navy continued to conduct Freedom of Navigation Operations in the Paracels and Spratlys.

When Indonesia took over the ASEAN chairmanship in January, it sought to tamp down tensions by pledging to speed up talks between the ten-nation bloc and China on the Code of Conduct (CoC) for the South China Sea.

Jakarta appears to have achieved a modicum of success. Last week it announced that ASEAN and China had completed the second reading of the negotiating text (the first reading was completed in July 2019) as well as a set of guidelines to accelerate talks on future drafts.

Neither the guidelines nor the second reading have been published. However, informed sources suggest that there might be less to both than meets the eye.

The guidelines are essentially an agreement to increase the frequency of meetings of the ASEAN-China Joint Working Group － which is tasked with drawing up the CoC－ to four or more a year. Curiously it also includes an aspirational deadline of three years to complete the talks but without specifying an exact timetable.

In short, the second reading does not appear to have moved the CoC dial very much. Agreement has been reached on some paragraphs, but the most contentious issues are still unresolved. As such, the talks look likely to drag on for at least several more years before final agreement is reached － if it can be reached at all.

The second reading itself consists of a preamble (which was already finalised last year), and some basic principles the 11 parties had already agreed on, including that the Code should be in accordance with international law, including the 1982 United Nations Convention on the Law of the Sea (UNCLOS).

The main difference between the first reading and the second is that provisional agreement has been reached on a few more paragraphs. However, in order to get to that point, the negotiators skirted around a set of contentious issues which are proving to be quite intractable.

The first of these is the geographical scope of the agreement. The nub of the problem here is China’s nine-dash line, which Beijing uses to demarcate its expansive territorial and jurisdictional claims in the South China Sea. None of the Southeast Asian claimants accept the legal basis of the nine-dash line because it violates their maritime rights enshrined in UNCLOS. In 2016, a United Nations-backed arbitral tribunal agreed with them, ruling that the U-shaped line was incompatible with UNCLOS. On the 7^th anniversary of that ruling last week, China reiterated that it would not abide by the tribunal’s judgement.

If China insists on including the nine-dash line in the discussions on the geographical scope of the agreement, the Southeast Asian claimants will continue to push back. It seems unlikely that China will drop its insistence that the nine-dash line be included in the discussions. After all, if China takes every opportunity to promote the line in popular culture, why would it not do so in inter-governmental negotiations?  

The second problem is whether the CoC should include a list of prohibited activities, such as land reclamation, the militarisation of occupied atolls and harassing ships belonging to other claimants. Some Southeast Asian countries, especially Vietnam, are very keen on doing this, but China is less so because it is through actions such as these that it tries to enforce its claims.

But if the CoC is to add value to the non-binding 2002 ASEAN-China Declaration on the Conduct of Parties (DoC) in the South China Sea, it needs to include a list of tension-generating activities the claimants should desist from.

The third problem is the legal status of the Code. If it is legally binding, it should presumably include mechanisms to referee disputes between the claimants and impose penalties on those who violate it. Some ASEAN members may deem this approach too confrontational. Therein lies the dilemma: if the CoC has no legal force, a violator can act with impunity; if the Code is non-binding and voluntary, it will not be a step up from the DoC, which is the whole point of the CoC.

The fourth problem is China’s demand, included in the first reading, that the littoral states cease cooperation with foreign energy companies in “disputed” waters. China seems to have inserted this provision in an attempt to coerce other countries into signing joint development agreements with Chinese companies. The Southeast Asian claimants view this gambit as an egregious violation of their sovereign rights under UNCLOS. But it is hard to see how China would agree to drop this provision because to do so would fundamentally undermine its own jurisdictional claims.

In short, the second reading does not appear to have moved the CoC dial very much. Agreement has been reached on some paragraphs, but the most contentious issues are still unresolved. As such, it looks likely that the talks will drag on for at least several more years before final agreement is reached － if it can be reached at all.

In Groundhog Day, the main character is only able to break the monotonous time-loop after he finds happiness by improving his behaviour and falling in love. Judging by recent events, love, happiness and better behaviour are all a distant prospect in the South China Sea, as is the CoC.

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