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March 15, 2023Code of Conduct in the South China Sea (COC): Prospects and Challenges
The Code of Conduct in the South China Sea (COC) has been languishing since the last two decades, and ASEAN Member States have not been able to extract a legally binding document from China. Consequently there is widespread pessimism among the South China Sea claimants that the COC would ever be adopted notwithstanding that the “single draft negotiating text” was prepared in 2018 and could not be negotiated further due to COVID-19 pandemic.
In large part, this pessimism is due to the near continuous “reclamation of-development on” and around the disputed features in the South China Sea by China and other claimant states including “five activities related to energy exploration”. There were “59 notable events tracked, 37 or 62.7 per cent relate to actions taken at sea, be it of a non-military/ maritime or military nature” clearly suggesting a propensity to “ resort to military tactics, such as mobilizing arms units and holding military drills, rather than to engage in diplomatic negotiations”.
These trends continue in 2023; in January, Indonesia deployed a warship, maritime patrol plane and drone to monitor the Chinese Coast Guard vessel CCG 5901, that was spotted sailing close in the Natuna Sea “particularly near the Tuna Bloc gas field and the Vietnamese Chim Sao oil and gas field”.
Another significant trigger for pessimism for the COC is the current state of politico-strategic-diplomatic dynamics in the region marked by US and China tensions over former’s interference in the South China Sea affairs particularly after it objected in 2019 to “two of China’s provisions in the Single Draft Negotiating Text (SDNT) that sought to limit military exercises and joint resources development in the South China Sea to only China and Southeast Asian countries”.
The US’ Indo-Pacific Strategy has further aggravated the security environment in the region. The US plans to “work closely with like-minded partners to ensure that the region remains open and accessible and that the region’s seas and skies are governed and used according to international law. In particular, we will build support for rules-based approaches to the maritime domain, including in the South China Sea and the East China Sea” which Beijing believes is targeted against China.
The US has also been undertaking Freedom of Navigation Operations (FONOP) in the South China Sea and in 2022 there were five such activities as against seven in 2021. These are much to the consternation of Beijing which believe that such operations challenge Chinese sovereignty over the disputed islands and features in the South China Sea.
Similarly, the US has conducted military-naval exercises with partner nations including the Quad members i.e., Australia, India, Japan and the US. The forthcoming joint patrols by Australia, Japan and the US in South China Sea in March 2023 are likely to involve the Philippines Navy. According to Philippine Ambassador to the US, the Philippines joint patrols with those countries would be “good for the Philippines and for the entire area” and the country wants “freedom of navigation.” This “four-country bloc” will only add to the Chinese concerns given that Beijing is already troubled by the growing scope of the 2014 Enhanced Defence Cooperation Agreement (EDCA) under which the US now has access to four more sites over and above the existing five locations.
By all accounts, the South China Sea waters will remain turbulent marked by incidents such as coercive presence of Chinese Coast Guard, aggressive operations by Chinese maritime militia, operations by marine research and survey vessels, and presence of PLA Navy surveillance ships.
Likewise the US can be expected to continue with FONOPs and unplanned encounters at sea and in the air incidents such as the 25 February 2023 incident involving US P-8 Poseidon maritime patrol aircraft and the Chinese J-11 fighter jet armed with air-to-air missiles off the Paracel Islands.
However, there is also optimism in the light of the 11 November 2022 Joint Statement on the 20th Anniversary of the Declaration on the Conduct of Parties in the South China Sea in Phnom Penh, Cambodia, and the February 2023 ASEAN Foreign Minister’s Meeting under the Chairmanship of Indonesia where it was decided to explore “new strategies and approaches” to “speed up the negotiation process” for an “early conclusion of an effective and substantive code of conduct in the South China Sea consistent with international law” including the 1982 United Nations Convention on the Law of the Sea. Finally ASEAN’s ability to find solutions to issues such as South China Sea through diplomacy will be tested.
Views expressed by the author are personal and need not reflect or represent the views of the Centre for Public Policy Research.
Dr Vijay Sakhuja is Honorary Distinguished Fellow with CPPR and associated with our Centre for Strategic Studies. Dr. Sakhuja, a former Indian Navy officer, is also former Director, National Maritime Foundation, New Delhi. He earned his MPhil and PhD from the Jawaharlal Nehru University, New Delhi. He specializes in issues of national security and public policy, particularly in the context of ocean affairs, geopolitics, Climate Change, Arctic, Blue Economy and 4th Industrial Revolution Technologies.
