According to analysts, it is likely that the South China Sea remains one of the thorniest issues between China and the Association of Southeast Asian Nations (ASEAN) at a time when and the ten-nation bloc and its northern neighbor celebrate 30 years of dialogue relations and try to negotiate a long-planned Code of Conduct (COC) to resolve disputes in these waters.
Leaders of the Association of Southeast Asian Nations (ASEAN) and China attended an online summit on Monday (November 22) to celebrate three decades of cooperation. At this event, they also announced the establishment of a comprehensive strategic partnership.
Despite reassurances from Chinese President Xi Jinping that China will always be a good friend and neighbor of ASEAN, never seeking hegemony or taking advantage of the size of a large country to “bully” smaller countries, the issue of maritime sovereignty disputes still exists at this summit.
In a rare criticism of China, at the conference, Philippine President Rodrigo Duterte expressed indignation and “serious concern” about Chinese coast guard ships firing water cannons at incoming ships of the Philippines in the South China Sea.
The US and the European Union have also condemned China’s actions. Washington called these actions “dangerous, provocative and irrational.”
According to analysts, Chinese diplomats are said to be making new efforts to accelerate negotiations with ASEAN on COC to reduce the risk of conflict in the South China Sea.
However, analysts also question whether the COC will be truly valid and effective. They also said that the negotiation process currently has major obstacles.
Mr. Tran Cong Truc, former Head of the Border Department of the Government of Vietnam mentioned two obstacles. One is China’s use of the “nine-dash line” to mark and delimit the vast waters it claims in the South China Sea. Second is China’s reluctance to handle issues of rights and interests in the South China Sea of parties outside ASEAN and China under the 1982 United Nations Convention on the Law of the Sea.
“I don’t think these obstacles can be lifted anytime soon,” Mr. Truc said.
The road is long and winding
China claims historic rights to nearly 90% of the South China Sea and roughly delineates this vast sea by the nine-dash line. Other countries with claims to the South China Sea have rejected these claims, and in 2016 an international arbitration court ruled that: China’s claims are null and have no legal basis.
ASEAN member states that have claims to the South China Sea include Brunei, Malaysia, the Philippines, and Vietnam. The other members of the bloc are Cambodia, Indonesia, Laos, Myanmar, Singapore, and Thailand.
China and ASEAN agreed on the “Declaration on the Conduct of Parties in the South China Sea” in 2003. However, progress in negotiating the COC has been slow, even after when a draft agreement was published in 2018.
One reason why China may be optimistic about the possibility of a deal next year is that Cambodia, its close ally, will hold the ASEAN Chair in 2022.
“The process of completing negotiations on a Code of Conduct in the South China Sea is progressing well. It seems that the negotiation process is less problematic now,” said Sovinda Po, a research fellow at the Cambodia Institute for Peace and Cooperation.
This researcher said that instead of siding with China and facing the risk of reputational damage, Cambodia “will likely choose a middle ground to both satisfy China and gain trust from ASEAN countries.”
Other regional analysts were less optimistic.
“I don’t think it can be achieved if the goal is to create a comprehensive Code of Conduct and address all the different concerns of the claimant states,” said Jay Batongbacal, director of the Institute on Maritime Affairs and Law of the Sea at the University of the Philippines says.
“The differences are still too great at this point and they [ASEAN and China] have yet to initiate substantive discussions on important terms. It will be difficult to reach an agreement among the 11 countries on each of those terms,” the expert said.
Mr. Carlyle Thayer, a professor at the University of New South Wales in Canberra (Australia) said that there is still a long and winding road ahead and it is unlikely that the final draft of the Code of Conduct can be published anytime soon.
“The draft COC adopted in August 2018 needs to go through three readings. Currently, negotiations for a new second reading are underway,” he said.
“The single draft negotiation document (SDNT) is 19 A4-size pages. However, so far, the two sides have only reached an interim agreement on the one-page and nine-line Preamble,” said Professor Carl Thayer.
“Negotiations are currently focused on the Objectives section of the General Terms. The Prologue and Objectives are the parts that are easiest to reach consensus on because they are not controversial but the next part, the ‘Basic Commitments’ section, is going to be complicated,” he said.
Involvement of 3rd parties
The current draft text does not specify the legal status of the Code of Conduct as a binding treaty nor does it include a binding dispute resolution mechanism.
“For countries like Vietnam, a general political text like this is seen as less than desirable,” said Tran Cong Truc, adding that “without those technical details, any declarations and promises are just cliché slogans, serving political purposes.”
The draft COC also does not address third parties that may wish to participate as members of this Code.
“China wants to avoid the involvement of other parties in the South China Sea, including the US. It is in China’s interest to maintain disputes only within the boundaries between it and the ASEAN claimants,” said Aristyo Rizka Darmawan, a lecturer in international law at the Indonesian University’s Center for Sustainable Ocean Policy.
“It is not surprising that China has pushed ahead with COC negotiations if you look at what has happened in the past few months including the introduction of AUKUS (trilateral security treaty between Australia, UK, and the US),” Mr. Darmawan said in an interview with Radio Free Asia (RFA).
“There are a number of important issues that ASEAN and China must address in the COC,” warned the expert, adding “It is important that the underlying legal issues be considered and the parties not should pass it in hurry.”