South China Sea code of conduct clock runs down

OPINION:

After almost 20 years, time is running out for the Association of Southeast Asian Nations (ASEAN) to enter into any code of conduct agreement to manage tensions in the disputed South China Sea.

At a recent webinar, titled, “ASEAN at the Crossroads: Fostering Strengths for Addressing Regional Issues” and hosted by the Stimson Center and the Mekong Environment Forum, experts expressed little optimism around any substantive negotiations aimed at concluding a code consistent with international law.

“ASEAN simply cannot restrain China’s actions in the Spratlys and Vietnam wants to include the Paracels but Beijing’s brazen acts undermines all trust,” says Bill Hayton, associate fellow at Chatham House in London.

The promise and prospects of the South China Sea COC were expected to be a regional framework for establishing rules for regional peace and stability, but the association’s record falls short of fostering cohesion and intergovernmental cooperation for an “ASEAN Way.”

Meanwhile, Chinese assertions during the pandemic have gone largely unchecked, including the sinking of Vietnamese fishing boats, and the unrelenting infringement into EEZs of Vietnam, Indonesia, Malaysia and the Philippines. This includes the invasion of Chinese “grey zone” militia vessels, thinly disguised as fishing boats onto the Philippines’ Whitsun Reef on March 21. Beijing’s reliance on these so-called non-state actors, including their civilian distant-water fishing (DWF) fleets, does little to advance a rules-based order short of provoking war.

The pandemic has so far proven to be an impediment for any face-to-face ministerial level meetings to take up this pressing SCS issue. A year ago, at the 36th ASEAN Summit in a virtual meeting held in Hanoi, leaders reaffirmed their commitment to the time-honored themes: unity, cooperation and integration. Although Vietnamese Prime Minister Nguyen Xuan Phuc declared the summit a success in the establishment of a COVID-19 Response Fund, little progress was made on a code of conduct.

The clock continues to tick faster on this sensitive issue particularly since ASEAN and China have agreed to finalize the COC by 2022. The 2021 ASEAN leadership, rests with Brunei, also a claimant nation, but it’s doubtful that the sultanate will conclude any code consensus among the 10-member Association of Southeast Asian Nations, comprised of Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam. 

To be clear, the Indo-Pacific region, stretching from the Indian Ocean, through the South China Sea and to the Pacific represents a vast maritime domain. With much of the world’s business container ports in this region, it’s critical that the area requires unimpeded lawful access for all. With mounting challenges to the region’s traditional security practices, there are plenty of questions. This includes what role does the renewed Quadrilateral Security Dialogue Council, comprised of Australia, Japan, India and the U.S. play in this adoption of the code of conduct?

“The current draft COC makes no mention of the role of third parties. I have been arguing it should. Individual members of the Quad have long argued that the ASEAN-China COC should not prejudice their interests. I advocate a protocol for outside states to sign on the COC,” claims Carl Thayer, at The University of New South Wales at the Australian Defence Force Academy.

None of the Quad countries claims the South China Sea, but all of them see it as a pivot point for Chinese expansion past its land borders. 

“The Quad going forward will not be part of the COC negotiations but it will have a big role in infrastructure and connectivity building, supply chain diversification, vaccine provision, and maritime security activities in the region in a Quad and Quad plus format,” says Stephen R. Nagy, a frequent political, economic and security commentator on Japan-Korea-US relations.  However, he does anticipate more SCS stakeholders to expand through a Quad plus arrangement and also through Free Trade Agreements (FTAs).

The U.S. recognizes a growing geopolitical fault line in the disputed SCS and it’s only heightened by Beijing’s continued trespassing strategy that places all EEZs at risk. That’s one of the reasons that Washington has increased its Freedom of Navigation operations (FONOP) program to challenge unlawful maritime claims. Within the first 100 days of President Biden’s administration, the White House chose to host several virtual summits on the Quad and that action included dispatching Secretary of State Antony Blinken and Secretary of Defense Lloyd Austin to Japan and South Korea.

The message cannot be any clearer: China’s maritime trajectory has put it on a competitive and critical path with the United States and has substantially affected the international community and China’s regional neighbors.

Beijing’s strident belief that the code of conduct’s geographic reach must correspond to its nine-dash line claim remains a huge stumbling block for ASEAN. Furthermore, there’s a chasm between ASEAN and China on the undefined legal status of the COC. No one denies that ASEAN states have been historically reluctant to make demands on China, since they remain cautious of their dependence on their juggernaut economic neighbor.

For Vietnam, the passage of the code of conduct is inextricably linked with its traditional national security interests, especially on EEZs and China’s plundering of fish stocks. It did not help Vietnam that when it was the ASEAN chair in 2020, frequent escalations occurred with China in the disputed waters.

Vietnam deserves much praise for its initial COVID-19 response and its attempt to engage in strategic cooperation with an Indo-Pacific Quad course of action. Observers agree that the pandemic hurdles were difficult to overcome and this affected Vietnam’s term since several ASEAN-China working group sessions were canceled. 

Once again, the South China Sea is proving itself to be unforgiving and unresponsive to any interpreted and measured maritime code. With dark clouds approaching, ASEAN will need to pull out all the tools of statecraft to rein in imminent geopolitical storms.

• James Borton, a senior writer and researcher on the South China Sea, is the author most recently of “Dispatches from the South China Sea: The Search for Common Ground.”