What China’s conduct about the Code of Conduct reveals

Chinese Premier Li Keqiang speaks at the 44th Singapore Lecture in Singapore, November 13, 2018. Photo by Reuters/Athit Perawongmetha

China’s Premier Li Keqiang said last month Beijing hoped consultations with Southeast Asian nations on a code of conduct (COC) for the South China Sea would be completed in three years, so that it will contribute to enduring peace and stability in the disputed waters.

Li made his comments when in Singapore to attend annual meetings between ASEAN and its partner nations.

China and the 10-member Association of Southeast Asian Nations (ASEAN) agreed August on a working text to continue long drawn-out negotiations over the COC in the South China Sea. The waterway is known as the East Sea in Vietnam.

Some ASEAN members and China have laid overlapping claims to islands in the sea, one of the world’s busiest waterways. In 2002, China and ASEAN signed the Declaration on the Conduct of Parties in the South China Sea (DOC), committing to respect the United Nations Convention on the Law of the Sea (UNCLOS) in order to maintain peace and stability in the South China Sea.

In 2013, two sides started negotiating a COC and approved the framework in August 2017. At the 51th ASEAN Foreign Ministers' Meeting (AMM) in Singapore in August this year, ASEAN and China agreed on a single COC text. This was seen as progress in solving disputes in the South China Sea, aimed at a legal binding COC that would de-escalate tension in the sea.

Position of strength

Dr Maria Ortuoste with California State University East Bay told VnExpress that China believes it is negotiating from a position of strength. It has established strong economic linkages with individual Southeast Asian countries and ASEAN in general. It has shown that it is willing and capable of using economic levers of power.

Ortuoste recalled incidents in 2012, when China imposed trade restrictions on Philippine exports (bananas) and later also restricted the travel of Chinese tourists to the country. These steps had strong negative impacts on the Philippines.

China has also managed to drive a wedge within ASEAN through Cambodia. Cambodia blocked mention of the South China Sea dispute in the 2012 Joint Communiqué. And China’s influence over Cambodia does not seem to be waning – it was recently reported in The Diplomat that in the draft chairman’s statement for the ASEAN Summit in 2018, Cambodia’s numerous interventions led to the deletion of any reference to legal and diplomatic processes with regard to the South China Sea.

More importantly, Vietnam and the Philippines’ proposal to ‘welcome the "award by the Arbitral Tribunal constituted under Annex VII to the UNCLOS"’ was not included.

At sea, China is also the dominant military power in the region as evidenced by its modernization, its occupation of features in the South China Sea, as well as the reclamation of land in the area. So, if needed, China can assert its claim to the occupied areas via coercion.

Advantage of China

"In short, China has the diplomatic, economic and military advantage over ASEAN countries to prevent provisions in a future COC that would be inimical to China’s interests," said Ortuoste, warning that it is highly probable China will be able to prevent ASEAN from taking any joint diplomatic position against it over the Single Draft Negotiating Text.

She doesn't think the choice of 2021 for COC is an accident for several reasons. Firstly, a new U.S. president will take office in January 2021, and by that time, the U.S. government’s attention will probably be on domestic, rather than international affairs. U.S. presidential elections are scheduled for 2020.

Secondly, 2021 is also the end of Rodrigo Duterte’s official term as president of the Philippines. Duterte has prioritized improved relations with China over a strong assertion of the International Tribunal’s 2016 ruling in favor of the Philippines. A new Philippine president might have very different views from Duterte. A September 2018 survey by the Social Weather Stations showed that 84 percent of respondents do not agree to giving up on Philippines’s claims in the South China Sea and do not agree to allowing China’s military buildup in and occupation of the area.

Thirdly and most importantly, 2021 is the 100th anniversary of the Chinese Communist Party. Since the Party has been relying on nationalism for its claim to legitimacy, negotiating a COC that protects China’s interests and raises its international profile will further legitimate the CCP’s and Xi Jinping’s rule.

An aerial view of China occupied Subi Reef at Spratly Islands in disputed South China Sea, April 21, 2017. Photo by Reuters/Francis Malasig/Pool

Easy, cost-free delay

"China declared a three-year timeline for the COC because it is an easy, cost-free way to continue to delay negotiations," said Gregory Poling, Director of the Asia Maritime Transparency Initiative and a fellow with the Southeast Asia Program at CSIS, U.S.

According to Poling, the single draft negotiating text that China and ASEAN put together earlier this year shows that they haven't even begun discussions on any of the most difficult issues, and Beijing isn't willing to compromise on any of its key points as long as it feels it is winning.

Its goal is to keep ASEAN talking, thereby making it harder for Southeast Asian claimants like Vietnam or the Philippines to pursue alternate means of negotiating or arbitrating the disputes, while China will continues to strengthen its control over waters and airspace until the COC becomes moot.

"If Beijing doesn't feel like it has control in three years, there will just be another delay," Poling predicted.

Advice for ASEAN

Ortuoste said ASEAN countries should be very cautious and not let some of their own disagreements be used against them. The bloc should also not allow itself to be bullied to say yes, she said. 

"While it is true that it seems to be a "milestone" that China is finally moving forward with the COC, we must remember that this ‘progress’ is based on China’s own readiness and being able to position itself in such a way that it can exert strong influence over the process," she noted.

Poling felt that outside powers like the United States, Japan, Australia, and the Europeans should do much more to impose costs, economic and diplomatic, on Beijing for its continued bullying and violations of international law.

He said: "The only way to alter that state of affairs is for the Southeast Asian claimants to coordinate on a stronger stance toward Beijing, establishing their own joint negotiating position and demanding real talks with Beijing, That kind of effort could prove successful in getting the Chinese to come to the table and negotiate a real code of conduct."