PeB Journal | General |
by Sandro Wirth
The South China Sea (SCS) is a semi-enclosed region in the heart of South-East Asia, surrounded by China, and four members of the Association of Southeast Nations (ASEAN), the Philippines, Vietnam, Malaysia and Brunei. Since the 1970s, these countries have been in constant competition for geographical features such as islands, reefs and rocks, to extend their territorial sovereignty (Castro, 2012). To prevent these tensions from erupting in open conflict and to assure freedom of navigation, ASEAN and China have been jointly working on a code of conduct for the SCS for almost 30 years. In November 2018, Li Keqiang, prime minister of China, expressed the hope that the code will be finished in 2021 (Ha, 2019). Due to increasing tensions in the SCS in addition to the COVID-19 pandemic, however, the finalization of the code is still uncertain.
In the following paragraphs, I will trace back the development of the code and explain why its negotiation has proved to be so difficult. Furthermore, I will shed some light on the broader context of the disputes in the SCS by focusing particularly on the relations between ASEAN and China. Finally, I will ask, how a concluded COC could help to improve the current geopolitical situation.
One of the first initiatives to establish rules in SCS was the “ASEAN Declaration on South China from 1992” (Severino, 2010). To achieve an effective declaration, ASEAN had to come to an agreement with China, which is until today not part of the core organisation. China, in contrast, refused to adopt the declaration and insisted on bilateral agreements to settle disputes in the SCS. Also, China argued that a multilateral code would only lead to further complications. After several incidents in the SCS which included China, Beijing changed its tactics and agreed to talk with ASEAN about a code of conduct. Doing so, China wanted to prevent any further internationalization of the developments in SCS, which were closely monitored by the US. (Ha, 2019)
As a result of these efforts, the ASEAN countries signed together with China the “Declaration on the Conduct of Parties in the South China Sea” (DOC) in 2002. The inclusion of China into the process was considered a success story. However, considering the principle of “non-interference” enshrined in the document, which was equally central for ASEAN and China (Chang, 2020) the content of the declaration remained vague and non-binding.
This declaration was supposed to kick off the negotiation for an actual code of conduct (COC). However, the formulation of implementation guidelines got adopted only in July 2011, as China and ASEAN had difficulties to agree on consultation procedures. According to Hoang Thi Ha (2019), in the DOC and the COC, China did not agree to the fact that it could only consult on ASEAN consensus-based drafts. China demanded to be directly involved in the negotiationseven though not a member of ASEAN. In the view of the Chinese government, these negotiations were supposed to function as ASEAN and China, instead of ASEAN plus China.
From the adoption of these implementation guidelines, it took another six years, until , in 2017, ASEAN and China agreed on a framework that listed the issues for the COC. In 2018, they confirmed a single draft for the COC text itself. According to schedule, ASEAN and China should finish the code by 2021.
Why the COC is difficult to achieve
The overarching reason that stalled the progress of the COC lies in the competing geopolitical interests of China and the ASEAN countries in the SCS. The region is rich in mineral oil, natural gas and possesses lucrative fishing grounds. The trade routes leading through the South China Sea account for a significant amount of globally shipped goods. According to the Center for Strategic and International Studies, every year, commodities worth 3,4 trillion dollars pass through the South China Sea. In 2016, over 64% of China’s maritime trade crossed the region.
The competition for these resources is further complicated by different interpretations of international law concerning maritime borders and sovereignty claims of geographical features in the SCS. One particular issue, which stands between the ASEAN countries and China, is Beijing’s claims of a large zone in the SCS demarcated by the “the nine-dash-line”. To justify this line as a national border, China has continuously built artificial islands on reefs such as the Spratly Islands and Scarborough Shoal to extend its territory. However, as the area includes maritime zones that belong to the Philippines, the country invoked international law in its defence. In response to these complaints, a tribunal of the UN Convention on the Law of the Sea (UNCLOS), declared Chinese claims on the nine-dash line and the artificially built islands as untenable. China, in contrast, did not accept the judgment and continued to assert both sovereignty over maritime features and unspecified historic rights predating UNCLOS in their surrounding waters (Guilfoyle, 2019, p.14).
Besides the Philippines, also other ASEAN countries claiming parts of the SCS have started to act unilaterally against China, thus complicating the finalization of the COC further. Malaysia and Indonesia for instance conducted regular offshore oil explorations in the region of the Spratly Islands. Vietnam, equally claiming territory in the same region, offered to its citizens “sovereignty cruises” to visit reefs of the Spratly islands. Doing so, Vietnam used tourism to legitimize its control of contested territory in the SCS (The Diplomat, 2015).
A code of conduct for today
Regarding this complicated situation, it is questionable, if the COC will be implemented any time soon. The COVID-pandemic combined with China’s contradictory actions have decisively hampered the negotiations. Exemplarily, premier minister Li Keqiang called for a quick conclusion of the COC at a meeting with the ASEAN states in November last year. This January however, China has set in place a law, which allows its coastguard to shoot foreign vessels if they pose a threat to Chinese sovereignty. Furthermore, the last years were marked by an increasing presence of US and Australian military vessels in the SCS that fuel conflict potential. In 2018, a boat of the US navy and a Chinese cruise almost clashed together near the disputed area of the Spratly Islands. At the same time, there is a high possibility that the increasing presence of the US in the region might drive China towards an agreement with ASEAN. As Ha (2019) argued, it is China’s goal to reduce US presence in the SCS and Beijing’s zone of influence in general. To do so, China might prefer to come to an agreement with ASEAN and settle the disputes in cooperation with its regional partners. In that sense, China would deploy a similar tactic as it did before the agreement on the DOC in 2002.
Even though the prospects are fragile, it is important that ASEAN and China continue to strive for a soon conclusion of the COC. On the one hand, the immediate risks of armed confrontation and an escalation of violence need to be countered by a multilateral effort. Even if the regional powers agree on a code which is not legally binding, it could set important standards of behavior in the SCS. If warships and fisher boats of all implicated countries adhered to a certain protocol, these guidelines could mitigate sudden clashes and unexpected confrontations. On the other hand, an agreement on a COC could have stabilizing effects for South-East Asia beyond the disputes in the SCS. Even the mere act of keeping up the negotiations would provide an additional platform for the countries to meet and discuss their opinions. This could help to maintain a sense of community and thus foster the integration of the regional powers.
About the author: Sandro is a postgraduate student at SOAS University of London in International Studies and Diplomacy. He has obtained his bachelor’s degree in International Relations at the University of Geneva. From 2019 to 2020, he worked as an intern at the Embassy of Switzerland to China. His main academic interests include Chinese Foreign Policy, International Diplomacy and Peace Studies.
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Chang, F. K. (2020) Uncertain Prospects: South China Sea Code of Conduct Negotiations – Foreign Policy Research Institute. Available at: https://www.fpri.org/article/2020/10/uncertain-prospects-south-china-sea-code-of-conduct-negotiations/ (Accessed: 12 February 2021).
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Guilfoyle, D. (2019) ‘The rule of law and maritime security: understanding lawfare in the South China Sea’, International Affairs, 95(5), pp. 999–1017. doi: 10.1093/ia/iiz141.
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