Code of Conduct needed for South China Sea

Logo: Institute for Security and Development Policy (ISDP)
Commentaries and Op-eds September, 2020, The Japan News

Link to original article

Code of Conduct needed for South China Sea

China and its maritime neighbors, namely Brunei, Taiwan, the Philippines, Indonesia, Vietnam and Malaysia, have wrangled over territorial claims in the resource-rich South China Sea for a long time. In 2002, at an Association of Southeast Asian Nations-China summit in Cambodia, the claimant countries, after several years of negotiations, agreed on drafting a “Declaration on Conduct of Parties in the South China Sea” — a non-binding document. Though the idea of a Code of Conduct (CoC) was conceived in 1996, it was formally acknowledged only in 2002. Since then, ASEAN countries and China have been engaged in negotiations over the framework for the CoC in this disputed maritime zone.

The objective has been to address the contested claims while managing the inter-state relations across the ASEAN zone, a tough political task. While a “milestone” Single Draft South China Sea Code of Conduct Negotiating Text (SDNT) was released in August 2018, the overall progress in negotiations has been slow.

Nonetheless, ASEAN and China have agreed to finalize the CoC by 2022, which at present seems unlikely. The CoC discussions have mainly been spearheaded by Vietnam (which also has assumed chairmanship of ASEAN in 2020) and focus primarily on China-ASEAN claimant party interests. However, an issue which remains under-discussed begs the question: Will the CoC protect interests of the non-claimant states?

Apart from the seven claimants, there are several other stakeholders in the South China Sea including countries such as Australia, India, Japan, the United States, South Korea, Russia, and European Union member states — all having diverse geopolitical and commercial interests in the region. As these non-claimant actors help in promoting regional stability and security, along with facilitating dispute settlement and checking China’s influence, it is important that the CoC framework protects their economic and security interests in the region too.

In this regard, the renewed Quadrilateral Security Dialogue (Quad) comprising Australia, Japan, India and the United States must explore ways to influence the CoC negotiations. Perhaps China’s recent maritime-military adventurism in the South China Sea, amid the raging COVID-19 pandemic, may provide the impetus for pursuing a “non-claimant-inclusive” CoC.

The claimant countries have competing (often overlapping) claims in the South China Sea. But China claims the largest portion (up to 90%) of territory under its so-called “nine-dash line.” In recent years, China has amped up its military activities in the South China Sea — from conducting naval manoeuvres to constructing military and industrial outposts on its artificial islands. Even in the thick of the novel coronavirus pandemic this year, China’s unilateral actions in the region continued unabated.

Arguably, Beijing has been using the ongoing CoC negotiations as a pretext to gain time for fortifying its claims in the South China Sea. Further, it has also been modernizing its military capabilities to ensure a strengthened bargaining position while negotiating the CoC, offsetting the U.S. military presence in the region. It has also refused to accept a binding CoC, leading the contentious issue to potentially remain unresolved. Concurrently, it has proposed clauses to the SDNT that tilt the document in its favour, including one that restricts third parties from conducting joint military exercises in the region without prior notification to “parties concerned.” The three Quad states of India, Japan and the United States criticized China’s efforts to limit their role in the region, emphasising on the necessity of the CoC to be in accordance with the international law to ensure freedom of navigation and prevent prejudicing the rights and interests of the stakeholders in the region.

In such a scenario, joint patrol exercises in the South China Sea by Quad countries are major confidence building mechanisms that could help curb China’s growing assertiveness. For instance, the military exercises in the Philippine Sea in July by Australia, Japan, and the U.S. emphasize their commitment to the “Free and Open Indo-Pacific Strategy.” Earlier in 2017, the three countries had jointly asked China to abide by the Permanent Court of Arbitration ruling on the South China Sea in 2016. Recently, in July, in a shift from its earlier policy of peaceful resolution, the United States clearly supported ASEAN in the South China Sea over “predatory” China, while Australia rejected Beijing’s claims over the region. These moves would help galvanize other non-claimant countries, including the other Quad states, in their contest against China in the South China Sea.

It is important to note that the Quad’s interests in the South China Sea are not merely to challenge China’s claims — the South China Sea is a vital centre of trade and transport globally with $1.2 trillion worth of trade for the U.S., more than half of India’s trade; two-thirds of Australia’s trade; and nearly 60 per cent of the Japanese energy supplies pass through the South China Sea sea lines of communication (SLOCs).

Moreover, Japan and India are involved in oil extraction activities in the South China Sea. Further, for Japan, the curbing of China’s expansionism in the South China Sea will likely impact its own territorial disputes in the East China Sea. For the United States, naturally, the fight is mostly about reasserting U.S. global hegemony while questioning the role of China. Australia, which also envisions a rules-based order in the South China Sea, is however not much affected by Chinese presence in the South China Sea, due to most of its trade travelling to and from China. But in the post-COVID context when Australia-China ties are at an “all-time low,” a dilution of third-party rights in the South China Sea (mainly, U.S. presence) gives rise to security concerns for Australia, too.

Besides, Beijing’s efforts to control most of the oil-rich seabed have forced other claimant countries to cooperate with one another, as well as with non-claimant states, to China’s dismay. The recently released “ASEAN Outlook on the Indo-Pacific” is a clear display of unity among the ten member states despite having mutual concerns; this unity must now surface amidst CoC negotiations.

Simply put, the claimant nations need the Quad partners to balance out China’s increasing dominance. The combined Quad naval strength can ensure the balance of power in the South China Sea and thereby benefit smaller ASEAN states. Beijing’s “incremental encroachment strategy” in the South China Sea puts exclusive economic zones at risk while also increasing the possibility of Chinese monopoly over the SLOCs. The CoC holds immense strategic importance, particularly when viewed through the lenses of evolving and more confrontational Quad-China relations. It shouldn’t be overlooked that the Quad’s Indo-Pacific approach focuses on ASEAN centrality; a CoC that includes the interests of the Quad will only further bolster this acceptance.

Moreover, a Quad-inclusive CoC will give fresh fillip to their respective national Indo-Pacific policies, thereby broadening the scope for their support of an ASEAN-driven CoC.