Progressing from the DOC the COC: a difficult route to navigate

Photo Credit: US Indo-Pacific Command

ASEAN leaders will convene in Singapore for the 33rd ASEAN summit this week. Making progress towards an effective Code of Conduct on the South China Sea should top the agenda.

Editorial

From the 13th to the 15th of November, Singapore’s Suntec International Convention will host the 33rd ASEAN Summit. The 10 ASEAN heads of state will convene, along with representatives from the US, Japan, and Russia.

On the table for discussion is deepening economic integration, regional cybersecurity, the deepening crisis in Myanmar’s Rakhine state and the expected conclusion of the Regional Comprehensive Economic Partnership (RCEP) trade agreement.

According to the Philippines Department of Foreign Affairs, among the key discussion points on the table is the Code of Conduct (COC) over the South China Sea issue.

In August, China and the 10 ASEAN nations negotiated a draft text for the COC on the South China Sea. However, despite reports that negotiations for a final text were moving with “astonishing amity”, no further details have emerged on what the final COC might look like.

The 33rd ASEAN Summit would be an opportunity to make significant progress on the agreement.

The longer the process is drawn out, the stronger Beijing’s position becomes

Delays to the process only bolster Beijing’s positions. China is moving towards the completion of its military outposts in the South China Sea.

China maintains it has no military intentions right now. But in the future, under a new leader or a differently inclined Xi Jinping, it may decide to flex its military might. China’s increasing naval dominance in the region will only mean future rules designed to limit its militarisation are less effective.

The commander of the US Indo-Pacific Command, Admiral Philip Davidson, now speculates that China “is now capable of controlling the South China Sea in all scenarios short of war with the US”.

Photo Credit: Department of Defense

It is therefore of the utmost importance that COC negotiations proceed with earnest. If ASEAN does not legally challenge China today, tomorrow it may not be able to.

The COC must build on the DOC’s failings

The draft text of the COC represents progress as a benchmark for future negotiations, but in its current form it will not build on previous efforts to limit Chinese expansionism.

In November 2002, ASEAN and China signed a Declaration of the Conduct of Parties in the South China Sea (DOC). The document was designed to increase collaboration and promote open dialogue between the claimants to avoid conflict.

The DOC did increase cooperation and kept stability for the first few years. In 2003, a joint working group made up of both ASEAN and Chinese officials oversaw its implementation. They met in 2005 and again in 2006, producing a document of six points of cooperation.

However, the DOC was ill-equipped to respond to militarization in the South China Sea. As Beijing took steps to assert its claims in disputed territories, the DOC had no mechanisms to curb its behaviour or resolve the ensuing disputes.

In order for a COC to be effective, it must address the DOC’s shortcomings and provide clear legal mechanisms for preventing militarisation and aggression and it must clearly define the geography of its scope. These were two aspects in which the DOC failed.

What are the next steps?

The bare-bones draft outlined in August fails to advance either aspect. More information must be included to indicate how the COC will handle conflict prevention and management. However, this will not be easy.

China’s reluctance to allow any third parties into the negotiations and oversight process makes it difficult to establish a legally binding COC. Without a third party or supra-national organisation, how can a nation state be held to account for breaching the agreement?

Indonesia and Vietnam have reportedly suggested taking disagreements to the ASEAN High Council. However, China is reluctant to accept this. Even if it did, the council’s rulings would not be legally binding.

It also does not overcome China’s stipulation that no outside parties be involved in the mediation process as not all ASEAN members are claimants in the South China Sea dispute.

The CSIS Expert Working Group on the South China Sea offered an alternative dispute resolution process. It suggested ASEAN and China establish a South China Sea panel of maritime experts, with each claimant country nominating four experts to the panel. In the event of a dispute, the claimant countries would nominate several experts to meet and work over a solution.

Even if all parties cannot agree on a dispute resolution mechanism, the COC can still improve on the DOC by removing potential conflict triggers. At the heart of the South China Sea territorial disputes are two major flashpoints of conflict; fishing rights and fisheries, and resource exploration and development.

At the very minimum, the COC should reduce the potential for conflict

At the very least, the COC should aim to reduce the potential conflict surrounding these issues. This could be done in several ways.

Agreeing on a universal definition of illegal fishing is low-hanging fruit. Currently, each nation defines illegal fishing in a different way, causing skirmishes in disputed territories like those between Indonesian warships and Chinese fishing vessels.

Establishing regional regulations stipulating that all fishing vessels have radio communication would mean boats that become embroiled in conflict have a means of communication to resolve the situation before it escalates.

The COC should also aim to establish an effective protocol for opening bilateral talks over resource management and oil and gas exploration efforts in the region. The protocol should mandate dialogue between affected claimants before any exploration or development activity can take place.

Without going further than the DOC, the COC will represent a missed opportunity. As the South China Sea increasingly becomes a hotbed for aggression and a potential flashpoint for conflict, the region is crying out for a Code of Conduct that pulls claimants back from the brink and lays out clear processes for handling disputes.

The region cannot afford to wait any longer. As China continues to expand its navy and broaden its militarisation of the region, its future negotiation position will only be stronger. The COC should take the front seat in any ASEAN negotiations. Without it, ASEAN’s future existence is under threat.