THE STAKEHOLDER STRATEGIES FOR THE SOUTH CHINA SEA CODE OF CONDUCT NEGOTIATIONS: AN ASEAN PERSPECTIVE
2024.05.17
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INTRODUCTION
The South China Sea disputes have garnered significant international attention, prompting apprehension regarding regional stability. The South China Sea, which is the focus of territorial claims by China, Vietnam, the Philippines, Malaysia, Brunei and Taiwan, is strategically important due to its rich natural resources and vital shipping routes, making it a focus of geopolitical tensions.
The core of the conflicts center around competing territorial claims involving islands, reefs, and maritime areas. Specifically, China’s expansive claims, illustrated by the controversial 2023 South China Sea new map, extend over substantial parts of the sea, leading to claims that overlap those of neighboring states. These disputes escalate geopolitical tensions, give rise to occasional confrontations, and involve a complex web of diplomatic and legal efforts.
Recognizing the exigency for a regulatory framework, the Association of Southeast Asian Nations (ASEAN) and China have entered protracted deliberations on the formulation of the South China Sea Code of Conduct (COC). The COC seeks to offer normative guidelines to avert maritime incidents, and cultivate a more stable regional milieu. Instead of adopting the “ legally binding” system, which is the typical design of Western multilateralism, the COC is executed with the “rule-based framework” and focuses more on seeking consensus, rather than making a law-like rule set. We think this is the reason why COC could successfully gain support from China and SCS claimants.
Nevertheless, the protracted nature of negotiations underscores the intricate task of reconciling national interests, historical grievances, and geopolitical considerations of the involved parties.[1]Therefore, this policy analysis focuses on COC’s background, logic of establishment, and the potential to be the model guiding a more functional and effective regional platform of dialogue.
DIVERGENCES FOR NEGOTIATIONS IN SOUTH CHINA SEA DISPUTES
The Code of Conduct endeavors to address territorial and maritime disputes in the South China Sea, seeking to mitigate the potential for conflict. This initiative commenced in August 2017 when the framework gained endorsement from the foreign ministers of ASEAN and China. The primary objective is to construct a rules-based framework that outlines standards, guiding the conduct of involved parties and promoting collaboration in the region. The term “rules-based framework” is employed instead of “legally binding,” although criticism arose regarding its lack of specificity, largely reiterating the 2002 Declaration on the Conduct of Parties in the South China Sea.
Divergent perspectives within ASEAN member nations complicate matters. The Final Clauses section introduces the concepts of “nature” and “entry into force”, potentially instigating future discussions on a legally binding Code of Conduct. However, the requirement for approval by all eleven parties and China’s resistance to enforceable deals limiting its autonomy in the South China Sea diminish the likelihood of such an outcome.[2]A milestone was achieved in June 2018 with the release of the Single Draft South China Sea Code of Conduct Negotiating Text (SDNT), indicating progress in negotiations.[3]Nevertheless, the slow pace and challenges in addressing contested claims while managing inter-state relations within ASEAN persist.[4]
Crucially, the Code of Conduct does not aim to resolve territorial or maritime disputes but rather to provide guidelines for managing disagreements concerning jurisdiction over water, seabed, and airspace, excluding the use of force. Conversely, it seeks to uphold freedom of navigation and overflight in the South China Sea, aligning with universally recognized principles of international law, including the United Nations Convention on the Law of the Sea (UNCLOS).[5]
COC NEGOTIATIONS IN THE SOUTH CHINA SEA: ASEAN CHALLENGES AND GLOBAL DYNAMICS
The ASEAN region assumes a significant role in the South China Sea dispute, involving multiple member states and China. ASEAN’s involvement is shaped by its internal dynamics, adherence to the ASEAN Way, and the intricate nature of the disputes. Geographically, ASEAN’s geographical concentration holds implications for its stance on the South China Sea issue. While some member states possess maritime borders in the South China Sea and are directly embroiled in the disputes, others lack a shoreline in the South China Sea. This divergence has led to varying positions within ASEAN, with some members inclined towards compromises with China.[6]The absence of a unified ASEAN response to the territorial dispute is apparent, marked by challenges in reaching a common position due to diverse interests and relationships with China among member states.[7]
In recent years, we have witnessed intense debates on the Code of Conduct (COC) in the South China Sea (SCS). Challenges such as sluggish negotiations, recent provocative actions by China, disparate views within ASEAN, and the involvement of other allied countries have been prominent. Notably, in July 2023, China and ASEAN reached an agreement on new guidelines to expedite negotiations for a binding COC in the South China Sea. Despite this, the negotiations have been sluggish, with China showing reluctance towards an agreement limiting its freedom of action.[8]Similarly, in November 2023, an article in The Diplomat argued that a COC cannot be built on a foundation of bad faith, citing China’s disregard for international law and its aggressive actions in the South China Sea. The article also emphasized that the United Nations Convention on the Law of the Sea (UNCLOS) and the 2016 arbitral tribunal ruling have already established laws and principles constraining China’s aggression. For instance, China employs its military bases strategically to disrupt lawful activities in the exclusive economic zones of neighboring countries.[9]Furthermore, one of the escalating concerns is China’s persistent assertive activities in the region, including island- building and militarization, causing tension with other claimants such as the Philippines and Vietnam.
As China’s persistent threats persist, a notable divide exists among ASEAN members on how to respond to China’s territorial claims. While the Philippines, Vietnam, Malaysia, and Brunei officially oppose China’s claims, efforts to garner collective support from the remaining six members – Cambodia, Indonesia, Laos, Myanmar, Singapore, and Thailand – proved unsuccessful during the recent summit. The absence of Myanmar, due to the military seizing power in February 2021, underscores the challenges ASEAN faces in achieving a unified stance.[10]
Finally, U.S. involvement influences the South China Sea disputes, encompassing freedom of navigation operations and support for ASEAN countries in defense capacity enhancement.[11]For example, in September 2023, naval drills in the South China Sea involving Japan, the United States, and the Philippines commenced. These drills followed a series of military engagements by Australia, Japan, and the United States over the previous two weeks, seeking to deter China from aggressive actions toward the Philippines, particularly concerning Philippines resupply missions to the grounded LST BRP Sierra Madre at Second Thomas Shoal. Territorial conflicts in the South China Sea involving China, the Philippines, Vietnam, Malaysia, Taiwan, and Brunei have long been seen as a potential flashpoint and a delicate fault line in U.S.-China rivalry.[12]
SOUTH CHINA SEA CLAIMANTS’ STRATEGIES TO COMPETE WITH CHINA IN THE COC NEGOTIATIONS
Given the recent incidents challenging the implementation of the Code of Conduct (COC), South China Sea (SCS) claimants implemented strategies to compete with China. These strategies aim to address the contested claims while managing inter-state relations across the ASEAN zone.
Nguyen (2020) emphasizes the significance of the SCS disputes, involving ASEAN members and actors with direct relations with ASEAN. In his view, he reiterated the impact of ASEAN’s behavior and the lack of a unified position due to the “ASEAN Way,” which emphasizes consensus-building and non-interference in the internal affairs of member states.[13] The geographical concentration of ASEAN has implications for its stance on the SCS, with some members tending to vote for compromises with China. With this, diverse interests abound among the involved parties, emphasizing the necessity for initial dialogue among the four claimant nations—namely, the Philippines, Vietnam, Brunei, and Malaysia. Prioritizing open discussions will enable the resolution of internal issues, particularly by addressing overlapping territorial claims. A pivotal step in this process involves reaching a consensus through a resolution that adheres to the principles outlined in the United Nations Convention on the Law of the Sea (UNCLOS) and the United Nations (UN). By doing so, these claimant nations demonstrate mutual respect and send a clear signal to China that they are committed to upholding a rules-based approach as dictated by international law.
In addition, according to John Ciorciari, ASEAN remains a vital diplomatic forum; however, its efficacy is hindered by the absence of consensus on key regional challenges. Ciorciari underscores the potential for individual ASEAN claimants to form more adaptable diplomatic and strategic alliances, drawing in external actors like the Quadrilateral Security Dialogue (Quad).[14]
The Quad partners are Australia, India, Japan, and the United States. The combined naval strength of the Quad can ensure a balance of power in the SCS, benefiting smaller ASEAN states.[15]We believe that the Quad presents a significant opportunity as a third-party entity to provide ASEAN members with a more balanced strategic approach towards engaging with China in the South China Sea. Rather than being viewed solely as a confrontational force, the Quad's potential lies in its capacity to serve as one among several multilateral frameworks conducive to upholding the principles outlined in the COC while fostering regional stability. By respecting the strategic autonomy of ASEAN countries and other stakeholders, the Quad can function as an external actor contributing positively to peace and stability in the region. This aligns with the consensus-driven approach of the COC and accommodates the diverse interests of the various regional states involved.
Convincing a third party to facilitate negotiations among the claimants is imperative, as this collaborative effort could prompt China to reassess its stance, realizing it is not in a favorable position. While the idea of a COC is presented, it is acknowledged that this may not be the ultimate solution, given the existing disputes among claimants predating their confrontation with China. Additionally, the COC's limitations, lacking enforcement powers, are highlighted, emphasizing the need for a comprehensive approach that addresses both historical disputes and the current geopolitical challenges posed by China in the region.
COC’S ROLE IN SUSTAINING PEACE AND SECURITY IN THE SCS
COC stands as a pivotal agreement among regional nations, designed to foster peace and security in an area marred by territorial disputes. This comprehensive framework delineates regulations governing behavior, navigation, and resource exploration, with the overarching goal of averting conflicts and fostering long-term stability. A close examination of specific scenarios highlights the potential contributions of the COC to promote peace and security.
First, the COC serves as a catalyst for promoting dialogue and cooperation among the nations involved in the South China Sea disputes. By establishing channels for open communication and collaboration, the COC aims to create an environment conducive to the peaceful resolution of conflicts and the prevention of further tensions. For example, negotiations for the COC have achieved progress, with the completion of the second reading of the Single Draft COC Negotiating Text and the adoption of a set of Guidelines for Accelerating the Early Conclusion of an Effective and Substantive COC in the South China Sea.
Moreover, the COC is anchored in the fundamental principle of respecting international law, notably the United Nations Convention on the Law of the Sea (UNCLOS). This commitment to international legal norms provides a solid foundation for resolving disputes and ensures that the rights and interests of all parties are considered within a framework of established legal principles.[16]
Additionally, the COC addresses critical issues related to military activities and the use of force in the South China Sea. By setting clear parameters and guidelines, the COC seeks to mitigate the risk of military confrontations and reduce the potential for escalations that could jeopardize regional peace and stability. A pertinent example highlighting the significance of the COC is the ongoing negotiations between China and ASEAN countries. These negotiations aim to replace the existing non-binding Declaration on the Conduct of Parties in the South China Sea (DOC) with a binding and comprehensive COC. This shift underscores the commitment of the involved parties to elevate the level of agreement, moving beyond non- binding declarations to establish a legally binding framework that enhances accountability and ensures the effective implementation of agreed-upon principles.
Lastly, it can serve as a blueprint for a feasible mode. A blueprint for a South China Sea Code of Conduct includes commitments to resolve disputes by peaceful means, upholding freedom of navigation, and managing disagreements related to jurisdiction over water, seabed, and airspace without resorting to the threat or use of force.[17]
CONCLUSION
In conclusion, this paper has examined recent debates surrounding the COC in the South China Sea, providing valuable insights into the multifaceted dynamics at play in the region. By exploring the strategies employed by claimants and understanding the countries actively advocating for COC principles, we gain a comprehensive understanding of the role this agreement plays in promoting peace and security.
The importance of the COC cannot be overstated. It serves as a crucial instrument for preventing and effectively managing conflicts in the South China Sea. Beyond conflict resolution, the COC addresses pressing security challenges and lays the groundwork for fostering regional cooperation. Its implementation is vital, serving as a guarantor for the interests of all stakeholders and contributing to the creation of a peaceful and prosperous environment in the region.
Looking forward, the COC opens the door to a multitude of future possibilities. The ongoing dialogues and engagements surrounding the COC present opportunities for deeper collaboration and enhanced trust among all parties involved in the South China Sea disputes. By actively seizing these possibilities, stakeholders can contribute to the establishment of a more secure, stable, and cooperative regional order.
All in all, the COC stands not only as a diplomatic framework but as a catalyst for positive change in the South China Sea. Its successful implementation holds the promise of a future where dialogue prevails over discord, cooperation trumps confrontation, and the shared interests of nations in the region are safeguarded for the well-being of all.
[1] Mateusz Chatys, “The Code of Conduct: A Way to Move Forward with the South China Sea Dispute?,” Pulaski Policy Paper no. 31, Jul. 4, 2023. https://pulaski.pl/en/the-code-of-conduct-a-way-to-move-forward- with-the-south-china-sea-dispute-2/.
[2] Ian Storey, “Anatomy of the Code of Conduct Framework for the South China Sea,” The National Bureau of Asian Research, Aug. 24, 2017, https://www.nbr.org/publication/anatomy-of-the-code-of-conduct- framework-for-the-south-china-sea/.
[3] Mateusz Chatys, “The Code of Conduct: A Way to Move Forward with the South China Sea Dispute?,” Casimir Pulaski Foundation, Jul. 4, 2023, https://pulaski.pl/en/the-code-of-conduct-a-way-to-move- forwardwith-the-south-china-sea-dispute-2/.
[4] Jagannath P. Panda, “Code of Conduct needed for South China Sea,” Institute for Security and Development Policy, Sep. 2020, https://isdp.eu/publication/code-of-conduct-needed-for-south-chinasea/.
[5] South China Sea Expert Working Group, “A Blueprint for South China Sea Code of Conduct,” Asia Maritime Trans-parency Initiative, 2018, https://amti.csis.org/blueprint-for-south-china-sea-code-of-conduct/.
[6] Leticia Simões, “The Role of ASEAN in the South China Sea Disputes,” E-International Relations, 2022, https:// www.e-ir.info/2022/06/23/the-role-of-asean-in-the-south-china-sea-disputes/.
[7] Michael York, “ASEAN Ambiguous Role in Resolving South China Sea Disputes,” Indonesian Journal of Interna-tional Law volume 12, no. 3 (2015), https://scholarhub.ui.ac.id/ijil/vol12/iss3/2/.
[8] Prashanth Parameswaran, “What’s Behind the New China-ASEAN South China Sea Code of Conduct Talk Guide-lines?, ” Asia Dispatches, Jul. 25, 2023, https://www.wilsoncenter.org/blog- post/whats-behind-new- china-asean-south-china-sea-code-conduct-talk-guidelines.
[9] Powell, Raymond, “A South China Sea Code of Conduct Cannot Be Built on a Foundation of Bad Faith,” The Diplomat, Nov. 18, 2023, https://thediplomat.com/2023/11/a-south-china-sea-code-of- conductcannot-be-built-on-a-foundation-of-bad-faith/
[10] Chetra Chap, “ASEAN Remains Divided Over China’s Assertiveness in South China Sea,” VOA News, Sep. 12, 2023, https://www.voanews.com/amp/aseanemains-divided-over-china-s-assertiveness-in-south- china-sea/7264923.html.
[11] Congressional Research Service, “China Primer: South China Sea Disputes,” CRS Report, Aug. 1, 2023. https://crsreports.congress.gov/product/pdf/IF/IF10607.
[12] Dzirhan Mahadzir, “Japanese, U.S., the Philippines Drill in the South China Sea"; "China Contests U.S. Position on Territorial Disputes,” USNI News, Sep. 5, 2023, https://news.usni.org/2023/09/05/japanese-u-s- thephilippines-drill-in-the-south-china-sea-china-contests-u-s-position-on-territorial-disputes.
[13] Michael Nguyen, “Forging consensus in the South China Sea,” The Interpreter, Jan. 28, 2020, https://www. lowyinstitute.org/the-interpreter/forging-consensus-south-china-sea.
[14] Chetra Chap, “ASEAN Remains Divided Over China’s Assertiveness in South China Sea,” VOA News, Sep. 12, 2023, https://www.voanews.com/amp/aseanremains-divided-over-china-s-assertiveness-in- southchina-sea/7264923.html.
[15] Jagannath P. Panda, “Code of Conduct needed for South China Sea," Institute for Security and Development Policy, Sep. 2020, https://isdp.eu/publication/code-of-conduct-needed-for-south-china- sea/.
[16] Vu Hai Dang, “From the COC to a Code of Conduct for Maritime Engagements in Southeast Asia. Asia Maritime Transparency Initiative,” Asia Maritime Transparency Initiative, Sep. 25, 2023. https://amti.csis.org/ from-the-coc-to-a-code-of-conduct-for-maritime-engagements-in-southeast-asia/.
[17] South China Sea Expert Working Group, “A Blueprint for South China Sea Code of Conduct," Asia Maritime Transparency Initiative, Oct. 11, 2018, https://amti.csis.org/blueprintfor-south-china-sea-code-of-conduct/.