China still stifles efforts on South China Sea code of conduct after 25 years

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It was one of the longest gestations in the diplomatic world. A quarter of a century ago, the idea of ​​a regional code of conduct for the South China Sea was a glimmer in the eyes of Southeast Asian foreign ministers. Twenty-five years later, the code is barely any closer to being delivered. In the meantime, his future midwives have gained millions of air miles and generated many mountains of paper, but the baby still hasn’t seen the light of day.

It was on July 21, 1996 that a meeting of Foreign Ministers of the Association of Southeast Asian Nations (ASEAN) in Jakarta, Indonesia, for the first time “endorsed the idea of conclude a regional code of conduct in the South China Sea which will lay the foundations for long-term stability in the region and promote understanding among the requesting countries. Their idea was a response to China’s occupation of Mischief Reef, just 130 miles from the Philippine island of Palawan, a year and a half earlier. Singaporean Minister Lee Kuan Yew compared China’s actions to “a big dog that climbs up to a tree and lifts its paw.”

It was one of the longest gestations in the diplomatic world. A quarter of a century ago, the idea of ​​a regional code of conduct for the South China Sea was a glimmer in the eyes of Southeast Asian foreign ministers. Twenty-five years later, the code is barely any closer to being delivered. In the meantime, his future midwives have gained millions of air miles and generated many mountains of paper, but the baby still hasn’t seen the light of day.

It was on July 21, 1996 that a meeting of Foreign Ministers of the Association of Southeast Asian Nations (ASEAN) in Jakarta, Indonesia, for the first time “endorsed the idea of conclude a regional code of conduct in the South China Sea which will lay the foundations for long-term stability in the region and promote understanding among the requesting countries. Their idea was a response to China’s occupation of Mischief Reef, just 130 miles from the Philippine island of Palawan, a year and a half earlier. Singaporean Minister Lee Kuan Yew compared China’s actions to “a big dog that climbs up to a tree and lifts its paw.”

As of July, the big dog is still marking its territory in the South China Sea, there are few signs of long-term stability and “understanding” between the requesting countries is dwindling. Earlier this month, Chinese Foreign Ministry spokesman Zhao Lijian said, “China and ASEAN countries… are actively promoting consultations on the“ Code of Conduct in the South China Sea ”. “With major progress”. This is not a view shared in the ASEAN foreign ministries.

ASEAN and Chinese negotiators have so far produced a “Declaration” on a code of conduct (in 2002), “Guidelines on the implementation of the Declaration” (in 2011), a ” Framework ”for a code (in 2017), and a“ single draft negotiating text ”(in 2018), but a final code of conduct remains as elusive as ever.

Jay Batongbacal is the Director of the Institute for Ocean Affairs and the Law of the Sea at the University of the Philippines. He worked on the first talks with his late colleague Aileen Baviera. “The original draft was seven pages and 13 articles with various detailed sections,” he recalls. “Much has been reduced to a few pages and all the details have been removed. Eventually, what remained became the 2002 Declaration.

Project after project, the problems remained the same. According to Ian Storey, senior fellow at ISEAS-Yusof Ishak Institute in Singapore, there have always been three sticking points: “First, what should be the geographic scope of the agreement? Should it include the Paracel Islands, as Vietnam wants but not China, or Scarborough Shoal, as the Philippines wants but not China. Second, should the COC [code of conduct] include a list of dos and don’ts? Beijing will not want to tie its hands in agreeing to a ban on these activities. Third, should the COC be legally binding? Most ASEAN member states seem to support this, but China is against it. “

It would be wrong to think that the talks have been continuous over the past quarter of a century. According to Storey, “Virtually nothing happened between 2002 and 2011.” For years, China refused to deal with ASEAN as a group. Beijing preferred to deal with the other applicants one-on-one where its economic and military weight would matter more. Fearing this, the smaller ASEAN states have chosen to stand together. Talks stalled on whether Southeast Asian countries would even be allowed to collectively discuss the South China Sea without Chinese representatives in the room.

It wasn’t until the Philippines launched a lawsuit against China before an international arbitral tribunal in January 2013 that Beijing suddenly began to take an interest in it again. In the same year, China began transforming the seven reefs it occupied in the Spratly Islands into huge military bases. According to Huong Le Thu, senior analyst at the Australian Strategic Policy Institute, “China has used the prospect of a COC as a holy grail to attract the region. The protracted process distracted their attention as Beijing advanced its strategic goals. “

Who has benefited from this long process, other than all the five-star hotels that have hosted years of talks? There has been notable success: None of the rival plaintiffs have shot each other since the process began. They also did not occupy any new islands or reefs. China maintains an almost constant coastguard presence at Scarborough Shoal off the Philippines, Luconia Shoals off Malaysia and other features, but it has not yet relied on them. On the other hand, there has been no progress on major issues facing the region, such as clashes over oil and gas developments or the prospect of a fisheries collapse. And there seems to be little chance of that changing.

In November 2018, Chinese Premier Li Keqiang told an audience in Singapore that he hoped the code of conduct negotiations could be concluded “within three years.” No informed observer thinks this is likely. The COVID-19 pandemic has precluded any meeting in 2020 and talks only tentatively resumed last month. At present, negotiators are faced with a “single draft negotiating text”, a long screed still containing all the rival positions. As Storey noted, “The next step will be to start negotiations and decide what to keep and what to throw away. This will be when the sparks start to fly.

Many Southeast Asian diplomats think the outcome is less important than the process. Former Singapore Goodwill Ambassador Bilahari Kausikan recently told the Anakut podcast: “The COC is an instrument used by both parties, not just China, to manage the relationship. When the relationship is strained, we don’t discuss the COC. When the relationship improves, we pretend to discuss the COC. The planned meetings provide a forum for ASEAN states to exchange views with China, and that is more than enough.

But there isn’t even a single post in ASEAN. According to Le Thu, “Each country has its own strategy against the great powers. I think it is difficult to expect more coordinated action from the region. Among Southeast Asian countries, national interests and perceptions of threats may continue to diverge. The gap has always been there, but it is likely to widen. Simply put, the five states bordering the South China Sea have a lot more at stake than other ASEAN countries.

But nothing will be agreed until China accepts it. Sourabh Gupta, a resident senior researcher at the Institute for China-America Studies in Washington (a think tank that shares key staff with the Chinese National Institute for South China Sea Studies) said there was three key issues for Beijing. One is the geographic scope of the code of conduct. The other two are equally problematic. According to Gupta, Beijing believes that “there should be no role for external companies in key areas of maritime economic cooperation, mainly oil and gas development, nor any joint military exercise with extra-regional states.” Beijing is also opposed to outside parties, such as courts or arbitral tribunals, being involved in resolving disputes. Gupta said Beijing is adamant “that all disputes should be resolved by consensus, perhaps with the use of the Leaders’ Summit as a last resort. This is a critical issue for Beijing.

Vietnam and other riparian countries are also convinced that the United Nations Convention on the Law of the Sea should set the rules in the South China Sea, just as it does elsewhere in the world. However, not all ASEAN members are so fixed on this point of view. BA Hamzah, director of the Center for Defense and International Security Studies at the Malaysian National Defense University, argued that “Thailand, Burma, Cambodia and Laos do not contest the jurisdiction of the China at sea. Their support for the ASEAN consensus on the South China Sea is contrived, lukewarm at best. Each ASEAN member has their own economic and security interests to pursue.

Nguyen Hung Son, director of the Institute for Southeast Asian and East Sea Studies at the Diplomatic Academy of Vietnam, is more optimistic. “The differences between ASEAN members are narrowing,” he said, especially as “a more common understanding and interpretation of the 1982 United Nations Convention on the Law of the Sea … has developed recently “.

Ultimately, the Southeast Asian states want a code of conduct because they believe it will limit China’s behavior. China, on the other hand, sees no reason to accept that its behavior be coerced. Instead, he wants the code of conduct to bind the United States. According to Hamzah, “Beijing wants the COC to limit US military adventures in the South China Sea and other areas in the region. China’s logic is that if the COC can’t keep the US military at bay, why should Beijing ratify it? For China, ASEAN worked as Washington’s proxy. So, disagree.

The idea of ​​a code of conduct restricting the freedom of navigation for the US, Japanese and other navies is not going to fly in Washington or most of the capitals of Southeast Asia. According to Le Thu, “China wants a quick conclusion of a COC on its own terms, but I think most Southeast Asian states would not want to rush to conclude a weak COC.” And since neither ASEAN nor anyone else can coerce or induce China to compromise, the prospects for a deal seem just as remote as they were in 1996.

Something all of the people interviewed for this article agree on is that the chances of an agreed code of conduct within the next five years are slim. Instead, we should expect another piece of paper reaffirming the commitments of all parties to the 2002 Declaration and their hopes for progress towards something stronger in the future.

The region has now spent 25 years waiting for a code. Perhaps the best guide to its outlook comes from Irish playwright Samuel Beckett: “Never tried. Never failed. It doesn’t matter. Try again. Fail again. Fail better. “


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