There are great - but probably unrealistic - expectations that Asean and China will agree on a legally binding, robust Code of Conduct (COC) for the South China Sea. Negotiators have reportedly made progress on the "framework" for such a Code and hope to finish it this year. But moving from agreement on general principles to agreement on devilish details will be extremely difficult - at least for a binding and robust Code. Here is why.
China will resist any provision that could subject it to third-party dispute-settlement processes without its consent. Its recent experience with the dispute- settlement process of the United Nations Convention on the Law of the Sea was a legal and public relations disaster that diminished China's soft power and influence in the region. China has ratified the Convention- an act it may now regret. Invoking the Convention's dispute-settlement process, the Philippines' complaints against China's claims and actions in the South China Sea were heard before a tribunal at the Permanent Court of Arbitration in The Hague. Despite China's non-participation in the hearings, a verdict against China was rendered. China critics in the region and around the world - the media, analysts and government officials - had a field day bashing China.
China responded to the decision by saying that " the award is null and void and has no binding force. China neither accepts nor recognises it". The process has no enforcement mechanism for the decision, except general disapprobation. China proceeded accordingly and it appears to have had the last or at least the latest laugh.
But the result is that if China was considering agreeing to a binding Code, that is now water under the bridge. China is not about to agree to subject itself to such a process again in the foreseeable future.
China's position is that disputes between nations should be resolved by negotiations between the parties directly involved. Indeed in that regard it has long complained - with some justification - that other claimants have not abided by the non-binding Asean-China 2002 Declaration on the Conduct of Parties in the South China Sea (DOC). It points to the DOC article which states that " the Parties concerned undertake to resolve their territorial disputes ...through friendly negotiations by sovereign states directly concerned".
China also believes that non-parties to its disputes with other claimants should not have a say in their resolution - let alone Asean as a whole. Of course, other claimants say that China has violated the " refrain from threat or use of force" clause by interfering with other claimants' activities in disputed areas. They also argue that China's construction and installations on features it occupies violate the DOC article that states "The Parties concerned undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability".
China has been successful in the past in preventing Asean consensus on matters that affect its national interest. Thus China will likely successfully pressure some members to support its position on key clauses of a COC, preventing such a consensus.
Many consider activities such as military exercises, oil exploration and drilling, fishing, scientific research and their regulation in disputed areas as "violations" of this provision. But all claimants are guilty of one or more of these breaches of the DOC.
The conclusions are that, first, the parties concerned have very different interpretations of the meaning of these key provisions and that, second, given its recent experience and these circumstances, China is unlikely to agree to a third-party dispute- settlement system.
WHAT MIGHT A COC COVER?
Perhaps at best a COC might contain a clause referring disputes on its interpretation to the 1976 Asean Bali Treaty of Amity and Cooperation (TAC). The TAC, to which China has acceded, provides for a ministerial-level Asean High Council comprised of representatives of all "High Contracting Parties to take cognisance of the existence of disputes or situations likely to disturb regional peace and harmony".
If no solution is achieved through direct negotiations, the High Council "shall recommend to the Parties in the dispute appropriate means of settlement such as good offices, mediation, inquiry or conciliation". The High Council itself may, with the consent of the parties to the dispute, take on these functions itself, and can also "recommend appropriate measures for the prevention of deterioration of the dispute or the situation".
China might accept such a provision because it is sufficiently vague and the direct involvement of the TAC's High Council can occur only with the consent of all the parties to a dispute. Moreover, this dispute-settlement mechanism is neither compulsory nor enforceable. Nevertheless, China's rejection or disregard of a recommendation from the TAC High Council would further erode its soft power.
DEFINING THE AREA COVERED BY AGREEMENT
Another problem is the definition of the area to be covered by the agreement. In 2002, a lack of agreement on this issue resulted in that attempt to negotiate a COC being downgraded to agreement only on the non-binding DOC. Does it include only disputed waters or also waters under clear national jurisdiction? How about waters within China's now-rejected nine-dash line claim? More difficult yet, does it include waters around the disputed Paracel Islands?
Vietnam insists that the Paracels and their attendant maritime jurisdictional zones be included. China argues that it has "undisputed" sovereignty over the Paracels and in any case any dispute over that is between it and Vietnam. Thus it argues that it is not an issue or area that should be included in an Asean-China agreement. This matter may be finessed by not specifying the area to be covered by the Code. But if Vietnam continues to insist and Asean proceeds - or not - by consensus, this could become an insurmountable obstacle.
To achieve a binding and robust COC, Asean has to be willing and able to make a stand against China regarding the controversial provisions of a COC. Only four Asean members are claimants in the South China Sea - Brunei Malaysia, the Philippines and Vietnam. While Vietnam is clearly antagonistic towards China, the others are not. Moreover, Cambodia and Laos are supportive of China's positions. Asean operates by consensus and presumably its members will have to agree on a common position before they meet with China on the details of a COC. China has been successful in the past in preventing Asean consensus on matters that affect its national interest. Thus China will likely successfully pressure some members to support its position on key clauses of a COC, preventing such a consensus.
Both China and Asean face an international relations dilemma.
China does not want to be seen as intransigent and a bully regarding Asean. It wants to defuse tension and reduce the opportunity for outsiders such as the United States and Japan to meddle in or take political or military advantage of the disputes. But it does not want to surrender its "core interests" in the Sea. Meanwhile, Asean needs to demonstrate - to itself and to others - that it can be sufficiently united to successfully manage such difficult international issues in its region.
This in turn is critical to its continuing to be regarded as a major player in the maintenance of peace and security in the region. So both China and Asean have some motivation to reach a compromise on a COC that at least puts the disputes on the back burner. All eyes are on the outcome of this contest of wants and wills.
- Dr Mark J. Valencia, an international relations and maritime policy analyst focused on South-east Asia, is an adjunct senior scholar at the National Institute for South China Sea Studies, Haikou, China.