The recent draft text for a Code of Conduct on the South China Sea only further exposes the vast divide between the parties.
By Mark J. Valencia, Adjunct Senior Scholar at the National Institute for South China Sea Studies, Haikou, China
Edited by Oliver Ward
The recent ASEAN-China agreement on a Single Draft Negotiating Text (SDNT) for a Code of Conduct for the South China Sea (COC) has significant ramifications for intra-ASEAN, China -ASEAN and China-US relations.
The details reveal how little progress has been made. Indeed, these issues will continue to bedevil internal ASEAN and China-ASEAN relations. Moreover, the U.S. will likely continue to try to influence the negotiating process and its outcome thus embedding them in the greater US-China struggle for dominance in the South China Sea and the region.
The prospective parties’ positions remain far apart on the key issues
There is a significant divide on the SDNT’s key issues, including its geographic scope, the means of dispute settlement if any, and whether or not it will have the force of law.
The SDNT does not explicitly define the geographic area to which it applies. Vietnam is adamant that the COC should apply to all disputed features and overlapping maritime areas claimed under UNCLOS. This is because Vietnam insists that the Paracel Islands and their attendant maritime jurisdictional zones be included.
China maintains that it has over the Paracels. Moreover, it argues that in any case, the conflicting claims are only between it and Vietnam and thus not an issue or area that should be included in an ASEAN-China agreement.
Neither is likely to yield on this issue. Their leadership would face public scrutiny by domestic nationalists. In 2002, a lack of agreement on this issue caused a breakdown in COC negotiations. It led to the COC being downgraded to an agreement, leading to ambiguity, and a non-binding Declaration on the Conduct of Parties in the South China Sea (DOC).
It is essentially non-binding
The SDNT does not contain any reference to binding dispute settlement mechanisms. It has proposals to refer disputes to various dispute settlement mechanisms. But those proposals stipulate that such referrals be only at the consent of the parties. This would essentially render the COC as non-binding.
China’s long-held position is that disputes between nations should be resolved by negotiations between the parties directly involved, not third parties. It has long complained that other claimants have not abided by the DOC article that states “ The Parties concerned undertake to resolve their territorial disputes… through friendly negotiations by sovereign states directly concerned.”
China firmly believes that non-parties to its disputes with other claimants should not have a say in their resolution
As for the COC’s legal status, the SDNT does not specify that it will become a treaty. China, amongst others, is unlikely to agree to a legally binding document.
Vietnam has proposed a provision that the COC “be subject to ratification in accordance with the respective internal procedures of the signatory States” and that the ratifications be registered with the ASEAN Secretary General. Again, agreement on this provision will be difficult.
New contentious issues have been added to the mix
China has proposed a clause stating that “the Parties shall not hold joint military exercises with countries from outside the region unless the parties concerned are notified beforehand and express no objection”.
Although the meaning of “parties concerned” is not clear, it appears to be an affront to the U.S. and its extra-regional supporters like Japan and Australia. China has also proposed that “co-operation shall not be conducted in cooperation with companies from countries outside the region”.
In a clear rebuke to this proposal and China’s policy and actions in the South China Sea, Australia, Japan and the U.S. issued a joint statement asserting that the COC should be “consistent with existing international law; as reflected in UNCLOS”. They asserted it should “not prejudice the interests of third parties or the rights of all states under international law”.
Agreement to China’s proposed clause would also gravely damage the alliances of Thailand and the Philippines with the U.S.
Vietnam has also proposed a contentious clause. It insisted that all parties respect the maritime zones established in accordance with the 1982 UN Convention on the Law of the Sea. This would mean that China must abandon its 9-dash line historic claim. China will not agree to this provision.
With so much disagreement, the SDNT can only be seen as a basis for future negotiations. It is a “living document”. This means that the parties may propose even more alterations to the draft’s text during the negotiations. This is likely the kiss of death to any hope of early agreement and will likely prolong the negotiations indefinitely.
The U.S. may have a major influence on the negotiations.
The pace of the COC negotiations may depend in good part on whether or not China perceives that the U.S. is “meddling” in them –which it probably is.
Randall Schriver, the US Assistant Secretary of State for East Asia and the Pacific said the U.S. would watch the progress of the COC negotiations with “great interest”.
Indeed, the U.S. will vigorously resist being excluded from the region politically or militarily. The US National Security Strategy (NSS) released a statement in December 2017. It described “a geopolitical competition between free and repressive visions of world order… taking place in the Indo-Pacific region.”
To combat the Chinese threat the US announced it would “redouble our commitment to established alliances and partnerships while expanding and deepening relationships with new partners that share respect for sovereignty, fair and reciprocal trade, and the rule of law.”
The US-China contest for domination of the South China Sea will continue
The recommitment of the US to protect Southeast Asia from China’s depredations does not necessarily equate to increased regional peace and stability. That is not how Cambodia, Laos and most recently Malaysia see it.
Nor does the increasing Chinese influence and appeal in the region necessarily mean more stability. In another inroad in the making, China has proposed to ASEAN that ‘they’ hold regular joint military exercises in the South China Sea. It has supposedly even suggested that an agreement on such should be incorporated into the COC.
The parties negotiating the SDNT are proceeding by the ASEAN principle of consensus. This means that one stubborn holdout can prevent agreement, even if that country is not directly affected by the issue at hand.
This can work to China’s advantage if it wants to delay or dilute an agreement. Only four ASEAN members are claimants—Brunei, Malaysia, the Philippines and Vietnam. Laos and Cambodia seem to consistently side with China on the South China Sea issues while Vietnam consistently opposes China’s positions. The other ASEAN members are in play depending on the issue.
Negotiations on a COC are not central to the US-China struggle for dominance in the South China Sea. But ASEAN unity and central position in matters of regional security are being undermined by it. One result is that this great power struggle will continue to influence the pace and success of negotiations for a robust, binding COC.