S.E.A. View

Asean-China Code of Conduct: Never-ending negotiations

Yesterday, China expressed satisfaction over finalising a first draft of a Code of Conduct with Asean on South China Sea issues. It has taken 21 years - and it is by no means certain that a substantive final agreement can be reached.

The Philippines' chairmanship of the Association of South-east Asian Nations (Asean) comes at a critical moment for the regional body, which marks the 50th anniversary of its founding this year.

A toxic combination of maritime disputes, growing uncertainty over the direction of the new American government, and deep confusion over Manila's own foreign policy, however, has challenged Asean centrality like never before. In particular, the Philippines is currently under tremendous pressure to deliver a multilateral diplomatic breakthrough in the South China Sea disputes.

Eager to prevent a dangerous escalation in maritime disputes, Asean is determined to finalise the framework of a Code of Conduct (COC) with China before the end of the year. The COC is meant to be a binding agreement to ease tensions in the region.

Chinese Foreign Minister Wang Yi yesterday announced that a first draft of a COC has been finalised, lauding what he described as "clear (diplomatic)progress", which has left "China and Asean countries feeling satisfied". At stake is no less than Asean's internal coherence and peaceful management of one of the most dangerous flashpoints in Asia.

Despite that promising statement, the fact remains that so far, neither the Chinese Foreign Minister nor officials from Asean countries have given precise details on the elements of the draft COC, its legal basis, and how it will, once ratified by parties, be enforced and by whom. It is also not clear whether this is a draft on the guidelines of or the key elements of the COC per se.

This year, two sets of meetings, one in Bali in February and another one in the Philippines in June, have been scheduled to iron out the framework of a COC. It would take a herculean effort to finalise the negotiations within the year.

The road to a binding COC has been long and arduous.

As early as 1996, during the 29th Asean Ministerial Meeting in Jakarta, regional members called for a legally binding COC in the South China Sea, "which will lay the foundation for long-term stability in the area and foster understanding among claimant countries".

By 1999, Asean forwarded the proposal to China, which promised to take it into full consideration.

By 2002, China and Asean signed the Declaration on the Conduct of Parties (DOC) in the South China Sea, a declaratory prelude to a legally binding final agreement.

Among other things, the non-binding DOC discourages signatories from aggressive actions and bars construction of new structures in the contested region that could spark armed conflicts.

In 2011, under the chairmanship of Indonesia, there were hopes of a swift negotiation of the guidelines of a COC.

In September 2013, during a technical working group's meeting between Asean and China in Suzhou, hopes were once again raised that by early 2014 there would be a breakthrough on the implementation of the DOC as a prelude to full negotiation of a COC.

Over the next three years, however, China rapidly expanded its strategic footprint across disputed land features in the Spratlys and Paracels and stepped up its deployment of military, coast guard and paramilitary patrols across disputed waters.

Yet, Asean repeatedly failed to call a spade a spade, even though such provocative unilateral actions directly contradict the spirit and letter of the DOC, which expressly encourages claimant states to "exercise self-restraint in the conduct of activities that would complicate or escalate disputes" and "refrain from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features and to handle their differences in a constructive manner".

Twenty-one years since the idea of a COC came up and 15 years since the signing of the DOC, Asean is still in the middle of what some see as never-ending negotiations.

As the new chairman of Asean, the Philippines, a claimant country in the South China Sea, has promised to fast-track the negotiations of at least a framework of a COC before the end of the year.

Mr Wang's announcement of the finalisation of at least the first draft of the agreement is clearly welcome news.

Yet, the Philippines is internally divided on how to move forward.

On one hand, President Rodrigo Duterte has signalled his preference for bilateral, rather than multilateral, management of the disputes. He has consistently set aside the Philippines' arbitration award in regional forums, preferring instead to discuss terrorism and proliferation of illegal drugs in his chairman's statement later this year.

So he may welcome even a watered-down version of a COC, which doesn't cite the elements of the Philippines' arbitration case.

On the other hand, many in the Philippines, including within the Foreign Ministry and security establishment, are eager to see the arbitration award and the United Nations Convention on the Law of the Sea serving as the legal basis for the negotiation of the COC framework.

But this will meet vehement opposition from certain China-aligned Asean members, particularly Cambodia.

Amid improved relations between the Philippines under President Duterte and China, the Chinese Foreign Minister noted that tensions in the South China Sea have "distinctly dropped" in recent months. This could create a favourable backdrop for negotiating a mutually acceptable set of binding rules to govern the disputes among China and Asean claimant states.

Given this is the 50th anniversary of Asean's founding, there are high expectations that a diplomatic breakthrough will materialise within the year. Otherwise, Asean risks falling into irrelevance in the evolving Asian security architecture.

•The writer is a political science professor at De La Salle University in the Philippines, and the author of Asia's New Battlefield: US, China, And The Struggle For The Western Pacific.

•S.E.A. View is a weekly column on South-east Asian affairs.

A version of this article appeared in the print edition of The Straits Times on March 09, 2017, with the headline 'Asean-China Code of Conduct: Never-ending negotiations'. Print Edition | Subscribe