South China Sea: Analysis
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A Philippine national flag flutters aboard a vessel run aground on a disputed shoal that is part of the Spratly Islands in the South China Sea, in this 2014 photo. Photo: Reuters

A South China Sea code of conduct is still the holy grail of regional diplomacy – and just as likely to be discovered

Mark Valencia says the Asean and East Asia summits are likely to produce little movement towards a code of conduct, especially given recent contretemps in the South China Sea

From November 18-22, the Asean Summit and the East Asia Summit – involving leaders of the 10 Asean members plus Australia, China, India, Japan, New Zealand, South Korea, Russia and the United States – will convene in Kuala Lumpur, Malaysia. Recent contretemps in the South China Sea will be the elephant in the room – if not directly on the agenda.

READ MORE: Don’t mention the South China Sea: Asean defence chiefs cancel joint statement over territorial dispute

At the least, the controversy is likely to further stymie progress in negotiations of a code of conduct in the South China Sea between China and the Association of Southeast Asian Nations. Indeed, a code of conduct has become a holy grail of diplomacy in Southeast Asia – idealised and striven for but perhaps never to be attained.

The code of conduct was mandated by the 2002 China-Asean Declaration on Conduct of the Parties in the South China Sea. Unfortunately this non-binding document urging self-restraint and resolution of disputes through direct negotiations has been violated repeatedly by most parties. Nevertheless, starry-eyed proponents are pushing for something more lofty and robust.

China's Defence Minister Chang Wanquan joins his Asean counterparts in a photo at a meeting this month in Kuala Lumpur, Malaysia. Photo: Xinhua
In July 2012, Asean foreign ministers agreed on the early conclusion of a code of conduct. Press conferences at the gala events will probably hear platitudes regarding purported progress on this and a “renewed commitment” to achieve it. But the best they have been able to accomplish to date is agreement on a set of vague principles that have been breached or ignored many times. Examples include the UN Charter, the UN Convention on the Law of the Sea and the 1976 Bali Treaty of Amity and Cooperation. All are referenced in the 2002 declaration.
Why is agreement on a code of conduct so difficult? All Asean members have to agree, meaning that one stubborn holdout can prevent agreement

Two official China-Asean committees have been working on a code of conduct for the past two years . Negotiators have made little progress. Also, an unofficial Track 2 effort has recently been established by Indonesia’s Centre for Security and International Studies to help the process along. But the working group has been hung up on the same obstacles that have stymied official negotiators.

Why is agreement on a code of conduct so difficult? First and foremost, all Asean members have to agree, meaning that one stubborn holdout can prevent agreement. Only four Asean members are claimants. Two are “hardline” – the Philippines and Vietnam – and two others, Brunei and Malaysia, seem more willing to compromise with China.

Vietnamese protest against Xi Jinping’s visit to Hanoi this month, amid tensions over territorial disputes in the South China Sea. Photo: EPA
What should be its main objective – promoting confidence, preventing incidents, or something else? Should it be a political or legal document? Should it be “binding” – and what does that mean? Some claimants would prefer a legally binding code of conduct with a dispute settlement mechanism. But China is unlikely to agree to any third-party involvement. Indeed, China maintains that such issues must be worked out directly between the claimants themselves.

What should be its geographic coverage? Should it include the Paracel Islands (as Vietnam would like) or not (as China prefers)? This issue was the prime reason for the failure of the parties to agree on a code of conduct in 2002.

In what may be a tacit admission that such a code is dead in the water, Singapore’s Defence Minister Ng Eng Hen has suggested that the Code for Unplanned Encounters at Sea be expanded to include “white” (civilian) ships like the Coast Guard and fishing and freight vessels China uses to enforce its claims. Other proposals suggest agreement on a code of conduct by Asean first and then negotiation on it with China.

There are other “interim” proposals out there. But they all seem to be acknowledging that such a code s a “bridge too far”. Perhaps we should all quit dreaming and wake up to reality.

Mark J. Valencia is an adjunct senior scholar at the National Institute for South China Sea Studies, Haikou, China