Negotiations over a "code of conduct" (COC) in the South China Sea between the Association of Southeast Asian Nations (ASEAN) and China waxed and waned for two decades.
Last July, in a bid to expedite an agreement, a three-year deadline was agreed to conclude the talks.
Nothing comes easy in this multifaceted dispute. Even the title of the agreement to hurry along the talks – Guidelines for Accelerating the Early Conclusion of an Effective and Substantive COC – arguably reflects the urgency but also the complexity.
China, Taiwan, and four ASEAN member states – Brunei, Malaysia, the Philippines, and Vietnam – each have overlapping maritime claims to the South China Sea. The negotiations for the code, however, involved all ten ASEAN members with its consensus model and China.
Two major points will likely derail the objective of accelerating negotiations for a code to manage the South China Sea disputes peacefully.
The first issue is the state of the talks themselves, where trust between the parties is plainly lacking. ASEAN negotiators privately explain that even agreeing on the geographical area the code should cover – termed the Zone of Applicability – has proven difficult because of the different parts claimed in the South China Sea, whereas officials on the Chinese side believe some ASEAN states are asking for the sky – i.e., demanding China to give up its sovereignty in the South China Sea. Only then, ASEAN negotiators see China changing the goalposts during the negotiations.
But not all blame is sheeted to China. Some ASEAN members are seen as laggards in the negotiations, not fully committed to the process, not believing they have much at stake in the disputes.
One ASEAN negotiator explained that some ASEAN negotiators turn up ill-prepared, often needing to consult their capitals for instructions on almost every discussion point, hampering progress, despite meetings being held five and six times annually. Wry humour has taken hold, with jokes about another agreement between ASEAN and China within the next few years to "Accelerate Further the Already Accelerating Process for the Early Conclusion of an Effective and Substantive COC".
The second issue concerns the quality of the outcome. There are doubts whether China will be willing to sign a legally binding agreement, given that it has already dismissed the outcome of the Permanent Court of Arbitration's ruling in 2016 against its claims in the South China Sea.
Should that hurdle be overcome, there are concerns about implementation of the code. Will there be an effective mechanism to monitor and enforce any violation?
If not, what does the code amount to? And also, given that ASEAN operates with a consensus decision-making process, will the deadline push ASEAN members to water down the substance of the agreement?
Talks on the code of conduct, it must be acknowledged, are only part of the broader ASEAN engagement with China on the South China Sea. ASEAN's efforts with China stretch back years, to 1990 when Indonesia held the first workshop on the South China Sea involving the different claimants. In the decades since, there have been efforts to engage in joint cooperation on extracting resources and protecting the environment in the disputed waters.
Yet, 34 years on, militarisation has been the dominant theme. China's artificial islands bristle with military facilities and long runways. Beijing has adopted a more aggressive approach to asserting its claims, lasing, using water cannons, and ramming against other claimants' boats. Vietnam has expanded its presence and deployed missiles. The Philippines is seeking to fortify its position.
So setting a deadline for negotiations on a code of conduct doesn't necessarily hasten an agreement. Meantime, ASEAN claimants should continue to build up their capabilities and work with other external powers, such as Australia and Japan, to defend their maritime interests. Sometimes, the potential ability to inflict military pain on the other party may be just the instrument for diplomacy to work well.
