It has been 18 years since ASEAN and China agreed to the adoption of the Declaration on the Conduct (DOC) of Parties in the South China Sea (DOC); but up till now the first reading of the Single Draft Code of Conduct (CoC) Negotiating Text has been completed. The Chairman’s Statement of the 36th ASEAN Summit has “emphasised the need to maintain and promote an environment conducive to the CoC negotiations” and Vietnam Prime Minister Nguyen Xuan Phuc has urged China to accelerate talks on an effective and efficient CoC in line with international law, including the 1982 UNCLOS.
China has attempted to reassure ASEAN Member States that the situation in the South China Sea is stable; significant “positive progress” has been made; and both sides are “not only honouring the DOC, but also accelerating and advancing consultations on more binding CoC to jointly safeguard peace, stability and freedom of navigation in the South China Sea.”
Notwithstanding such assurances from Beijing, the general belief of pessimism and uncertainty over the conclusion of the CoC prevails among ASEAN countries. They argue that progress on the CoC is slow and tardy, and the CoC would not be finalised within the agreed time frame. It is useful to mention that in 2018, at the China-ASEAN summit meeting, Premier Li Keqiang had unilaterally pronounced a three-year deadline to finalise the draft agreement. Above all, China is not serious about negotiating a legally binding and implementable CoC.
The ASEAN fears of delay in finalising the CoC now appear to have been further accentuated by at least three recent developments. First, Beijing is disappointed with Philippines Foreign Affairs Secretary Teodoro Locsin Jr’s statement that the landmark July 12, 2016 decision of the Permanent Court of Arbitration (PCA) in The Hague is ‘non-negotiable’; this is a volte-face from President Rodrigo Duterte’s earlier policy to accommodate the PCA ruling in exchange for Chinese largesse to fund his administration’s infrastructure projects. Locsin announced that his country ‘reaffirms’ its “adherence to the award and its enforcement without any possibility of compromise or change.” This has come as a rude shock to Beijing and in her response to a question on the issue during the regular press conference on July 13, 2020, Hua Chunying, Foreign Ministry Spokesperson stated that “two sides have put in place consultation mechanisms on maritime issues and got back on the right track of resolving relevant issues through negotiation and consultation.”
Second, claimant States (Brunei, Malaysia, Philippines, Taiwan and Vietnam) and non-claimant Indonesia are disappointed with China over the treatment being meted out to them by China while the CoC is being negotiated. These countries have been at the receiving end of the Chinese aggressive posturing involving harassment of fishermen from Vietnam and Philippines including incidents involving human rights abuses against Indonesian fishermen onboard Chinese trawlers; the sinking of a Vietnamese trawler; aiming of a “radar gun” on a Philippine Navy ship; and other incidents involving breeching into claimant States’ EEZs (Exclusive Economic Zones). For instance, Malaysian Auditor General’s recent report states that China’s law enforcement agency and the navy intruded 89 times from 2016 to 2019 into Sabah’s and Sarawak’s waters —72 times by the Chinese Coast Guard (CCG) and on 17 occasions by the PLA Navy—“to demonstrate China’s presence in regard to its South China Sea claims, especially in the Beting Patinggi Ali (BPA) area.”
Third, the US’ new South China Sea policy “U.S. Position on Maritime Claims in the South China Sea” announced on July 15, 2020 is aligned with the 2016 decision of the PCA. It calls out China’s expansive sovereignty claims in the South China Sea as “maritime empire” building and that the US “stands with our Southeast Asian allies and partners in protecting their sovereign rights to offshore resources, consistent with their rights and obligations under international law.”
It is unlikely that any ASEAN Member State can side or defend China and also deny US’ assertions. Vietnamese Foreign Ministry Spokeswoman Le Thi Thu Hang stated that “Vietnam welcomes its position on the South China Sea issue in accordance with international law and shares its views, as stated in the statement at the ASEAN 36 Summit, that the UN Convention on the Law of the Sea 1982 is a legal framework governing all activities at sea”. Similarly, Taiwan’s foreign ministry spokesperson has observed that “Our country opposes attempts to resolve South China Sea disputes by means of threats, coercion and force”. 
Four, it is useful to keep in mind that the South China Sea is home to numerous shipping lanes which connect the Indian and the Pacific Ocean and are therefore critical for the global economy. Consequently, there are numerous stakeholders including States and business entities. Under the circumstances, “it is unlikely that the CoC will get much international buy-in if it is perceived as being heavily biased in favour of any claimant, and not in line with international norms”.
Finally, there is every likelihood that the CoC will take a back seat in the wake of the new developments which by all counts are not conducive for China to pursue in right earnest a mutually accepted CoC.
Views expressed are personal and need not reflect or represent the views of Centre for Public Policy Research.
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