Conduct Unbecoming

Strategic Vision vol. 6, no. 34 (August, 2017)

Hopes, concerns raised over South China Sea code-of-conduct discussions

Editorial Staff

Four F/A-18C fighters fly in formation over the USS Theodore Roosevelt during operations in the Pacific Area of Responsibility.

photo: Conor Minto

As ASEAN celebrates its 50th anniversary this year, it is moving closer to achieving a code of conduct on maritime activity in the South China Sea between its member states and China. A draft framework of the code of conduct was made final in May at a meeting of senior officials from ASEAN and China that was held in China’s southwestern province of Guizhou. Although not yet publicly released, plans for the code of conduct have produced speculation and raised questions regarding the details of the agreement. Members of Strategic Vision’s editorial board offer their perspectives on how a future code of conduct may affect disputes in the South China Sea. First, ROC Army colonel Lipin Tien examines the legal dimensions of a code of conduct. Next, South China Sea Think Tank Director Jonathan Spangler examines the implications of this development for the United States.

Lipin Tien

Vexed territorial claims, suspicion among regional and non-regional states due to interest entanglement, perceived threats from China’s military expansion, and continuing allegations of unfriendly acts continue to undermine the status of the South China Sea as a secure and peaceful domain. The states in the region have been unable to achieve a legally binding agreement to govern activities in the South China Sea. In place of a legally binding agreement, in 2002 representatives from ASEAN member states and the People's Republic of China (PRC) signed the Declaration on the Conduct of Parties in the South China Sea (DOC). Rather than serving as an instrument to impose legal obligations or implement enforceable measures for the settlement of territorial disputes, this declaration rather is a political instrument proposed to avoid escalating tensions over the disputed territories and to reduce the risk of armed conflict in the South China Sea.

ASEAN leaders meet during the 2015 Annual Meeting of the World Economic Forum.

photo: Monika Fluekiger

After more than 15 years of intermittent talks, on 6 August, 2017, the PRC and ASEAN members endorsed a framework that provides a guideline for shaping the negotiations over the Code of Conduct (COC) on the South China Sea during the ASEAN Foreign Ministers' annual conference in Manila from August 2nd to 8th. The framework envisions the COC as set of norms to guide ASEAN states and to promote maritime cooperation in the South China Sea, and not an instrument to settle territorial disputes or maritime delimitation issues. When asked whether the COC would be legally binding, PRC Foreign Minister Wang Yi said he would leave it up to the ministers. The joint communique issued by the ASEAN Foreign Ministers' Meeting the day after adopting thee COC framework included language pointing to an "effective", as opposed to a legally-binding, COC based on the framework. If we look back at the fact that responses by regional states to the Award of South China Sea Arbitration were generally subdued, restrained, and consistent with the declaratory policy of ASEAN, and the fact that the award has not yet been enforced - as well as the soft statement made at the ASEAN Summit this May which dropped any references to land reclamation and militarization—it is unrealistic to expect the COC to be legally binding.

Chinese Foreign Minister Wang Yi

FCO

From the perspective of international law, if the DOC is a gentlemen’s agreement, then the COC may be deemed as a soft law on a gentlemen’s agreement. A code of conduct is a soft-law instrument characterized by diminished obligations due to vague, ambiguous, imprecise, or otherwise indeterminate language, and thus deemed as a legally non-binding document. Nonetheless, when legally binding agreements cannot be reached, a soft law instrument has the ability to help states and international organizations set out new international norms of cooperation which may later come to form the basis of legally binding international agreements, and assist in the interpretation and application of existing treaties on the law of the sea and other maritime obligations.

The COC is an illusory achievement; and without stipulating a mechanism for the settlement of disputes under the COC, it is unlikely to actually regulate behavior.

Not all soft-law instruments lead to the formation of new rules or serve as the basis for new treaties, however. From the aspect of the factors mentioned above, the COC is an illusory achievement; and without stipulating a mechanism for the settlement of disputes under the COC, it is unlikely to actually regulate the behavior of regional and non-regional states in South China Sea. The South China Sea disputes remain a potential flashpoint of conflict in the international community.

Jonathan Spangler

After nearly 15 years of slow-moving diplomatic negotiations following the 2002 signing of the Declaration on the Conduct of Parties in the South China Sea, ASEAN and China managed to push through a framework for a more substantial Code of Conduct for the South China Sea (COC) in early August 2017. Although the framework is still far from what many proponents have aspired to all these years, its endorsement by senior policymakers nevertheless has several important implications for US policy in the region.

Chinese dredging ships operate at Subi Reef in 2015, just 26 km southwest of the Philippines’ Thitu Island. Subi is also claimed by the ROC and Vietnam.

photo: US Navy

ASEAN is a regional grouping of which China is not even a member, yet its tentacles extend deep into the region.

First, the framework and policymakers’ statements that accompanied it provide evidence that regional actors value and are committed to regional stability and security. It is equally clear, however, that these countries’ commitment comes with the caveat that regional stability and security must not adversely impact their own core interests. Sovereignty and territorial integrity are the obvious issues.

A Patriot missile launcher from the 1st Air Defense Artillery Battalion defends Kadena Airbase in Okinawa, Japan.

photo: Adam Cazerez

For Washington, regional stability means that it can rest easy and avoid the political, diplomatic, economic, and opportunity costs of becoming more deeply entangled in maritime disputes that affect its interests but are nevertheless well beyond its borders. Countries’ commitment to regional stability with caveats, though, forces the United States to remain alert, maintain some level of military presence in neighboring areas, and recognize that it cannot afford to disengage from the issue entirely.

Second, the text of the framework carefully avoids mentioning issues related to legally binding provisions or enforcement mechanisms. For years, proponents of a stronger COC had been striving for the inclusion of these issues, but few observers familiar with regional diplomatic processes will be surprised by their omission from the framework. The all-butinevitable lack of legally binding provisions or enforcement mechanisms in a hypothetical future COC means that the United States and its military forces will remain tasked with the uncomfortable and increasingly costly role of serving as the de facto police force for global affairs. For better or for worse, it is precisely due to the fact that international law and agreements lack enforcement mechanisms that US forces conduct freedom of navigation operations in maritime areas around the world, including in the South China Sea.

Third, the delayed diplomatic negotiations, slowmoving progress, and diluted draft texts in preparation for a COC are, above all, a reconfirmation that Beijing has become the most influential actor in ASEAN. The irony of this, of course, is that ASEAN is a regional grouping of which China is not even a member, yet its tentacles extend deep into the region. Through economic incentives as well as coercive means, Beijing has successfully demonstrated that it has the capacity and wherewithal to steer ASEAN decision-making processes and exert its veto power when it faces a situation that could be detrimental to its interests. For the United States, this is but one of many manifestations of China’s rise, and Washington will struggle with its resulting identity crisis as the global authority and influence it enjoyed in the unipolar world order of the post-Cold War era continues to slide.

Dean Karalekas

There are many disputes in the South China Sea (SCS): China vs. Vietnam, China vs. The Philippines, China Vs. Malaysia. The list goes on. Tensions have been ramping up over the past decade, so in recent weeks, officials from ASEAN and China began laying the groundwork for negotiations on a Code of Conduct to deal with the many overlapping claims and counterclaims.

image: Goran tek-en

While the details of the negotiations remain opaque, stakeholders are hopeful that any such agreement will serve to reduce tensions in the area. This outcome seems unlikely, however, given the divergent motivations among the parties involved. For the most part, SCS claimants seek protection from China’s aggressive expansion in the sea: its militarization of islands, harassment of fishing and other vessels, and the odd trespassing oil rig. China’s motivation, however, appears to be to provide diplomatic cover for these ongoing activities, and to placate counterclaimants.

A crewmember on a Chinese trawler uses a grapple hook in an apparent attempt to snag the towed acoustic array of the USNS Impeccable.

photo: US Navy

As evidence, witness a precedent: China conceded to the toothless but symbolic Declaration on the Conduct of Parties in 2002 only in the face of severe pushback for its 1995 seizure of Mischief Reef from the Philippines. This acquiescence was meant to buy Beijing a cooldown period. And it worked: in the years since, China’s expansion of influence, military and otherwise, in the South Chine Sea has proceeded almost without resistance. Beijing clearly hopes another symbolic bit of paperwork will buy it more time to consolidate its hold over the sea’s myriad islands, reefs and atolls.

Therefore, as negotiations progress, claimant nations must understand China’s perspective on the matter, and that it will seek a non-binding, feel-good agreement, just like in 2002. They must therefore push for something stronger if they want real protection of their maritime interests.

Conversely, China would do well to understand the perspective of its counterclaimants. Thus far, the leaders in Beijing seem to have failed to understand the simple fact that SCS claimant nations want little more than peace of mind. They have few choices when faced with China’s maritime belligerence: push for a legally binding code of conduct that has the force of law to constrain China, or else continue to rely on the United States to secure their interests through its security umbrella. This is why any future revisiting of this agreement must be more than merely symbolic: it must have teeth if it to protect the nations of the SCS. For if China won’t make them feel secure in their sovereignty, America surely will.