Asean countries have been pushing for a code of conduct (COC) in the South China Sea (SCS), but there is great skepticism if such a regional maritime agreement can be hammered out. But even if Asean succeeds, can it force China to abide by it?
The COC is meant to set the rules by which Asean members, particularly the states involved in the maritime dispute, should conduct themselves in an effort to bring order in the contested SCS, and prevent escalation into direct military confrontation.
A negotiating framework for the COC has been adopted by China and the Asean states in Manila in August last year, which prompted President Duterte to issue a riposte that hailed Beijing’s stance of “graciously” agreeing to commit itself to the preliminary framework.
A statement by regional officials released by Singapore’s Foreign Minister Vivian Balakrishnan at the end of the Asean Foreign Ministers’ Retreat held in Singapore this week underscored the importance of a binding code, by calling out for restraint in activities in the SCS and the non-militarization of the area.
The position was issued just as China and the Asean were to start the negotiations for the COC next month.
However, there were prevailing thoughts against the success of the negotiations with China, given its previous history in the disputed portion of the SCS and its continuing actions in the area that have given birth to man-made islands that were in the nature of fortified military bases.
While China can participate in the negotiations, it does not automatically mean that it will accept its outcome, especially if it will go against its “sovereign rights” position, a stance that has kept it solidly afoot on the islands that it has occupied.
Even if the Asean would succeed in crafting and adopting a “binding” code of conduct, it does not automatically bind China. The Asean cannot even coerce or force Beijing to follow the agreement.
“In the first place, there would be no code of conduct to talk about if China will not agree to it, being the other party,” a military analyst from Camp Aguinaldo said. “But if it agrees, then it means the code of conduct is in its favor.”
In the case of the Philippines, China does not even acknowledge the ruling of the United Nations Permanent Court of Arbitration, which recognized Manila’s maritime claims against Beijing.
The COC aspired by the 10-member Asean, especially by the smaller countries, including the Philippines, which are pitted against China in the maritime dispute, is fast-becoming a mere afterthought, with Beijing’s behavior in the contested territory.
When China and the Asean signed the Declaration of Conduct (DOC) in 2002, Beijing dismissed it by way of its nonstop construction and improvements in the features that it has occupied. The same case happened in the islets and reefs that it contests against the other claimants, but which it has also already occupied.
China’s activities even became bolder and bigger that it gave way to artificial islands now housing its military installations.
The DOC, although considered as a nonbinding pact, was supposed to have halted or imposed a status quo on any development activity in the SCS, as what the Philippines did, in regard to the areas that it has occupied. But not in the case of China.
“The code of conduct may already be an exercise in futility, not after China’s spit on the spirit and intent of the DOC, and certainly not after China has nearly completed its construction of its military bases in the South China Sea. The COC will govern the hapless, smaller states, but not China,” the military analyst said.
American maritime expert Gregory Poling said that, while the Asean can attempt to work for the governing conduct with China, it is doubtful whether such an agreement would be responsive, and if it would bring Beijing into it “fair and square.”
“The evidence of the last 18 months or so does not support the idea that China is willing to negotiate the binding code of conduct that brought all parties. This is not to say that the code-of-conduct talks are a waste of time that we shouldn’t be reaching out to China automatically,” said Poling, director of the Asia Maritime Transparency Initiative.
“Simply, we should be doing this with open eyes and recognize that the Chinese built thousands of square meters of military facilities over the course of 2017,” he added, referring to the massive reclamation and construction activities that China undertook and is still taking in the disputed SCS.
“While the Philippines and everybody there are talking about the code of conduct, China was building bunkers, missile shelters and radar facilities, all of which are meant as a coerce tactic. Even if you haven’t put the footage in there yet, it’s like waving around an empty gun and it’s inherently threatening,” Poling added.
The Southeast Asia fellow from the Center for Strategic and International Studies noted Beijing’s skirmishes with rival claimant-states in the past, its attacks of its neighbors’ fishermen, and its continuing coercive stance against the contending smaller states in the SCS by deploying its naval vessels.
“These are not the actions of a country that is serious with peaceful negotiations,” Poling said, although adding that there may be some in China “who really want the code of conduct, but there may be just as many who don’t and are banking on using force.”