Does China really want a Code of Conduct in the South China Sea?

21/09/2014


Since the tension over the disputes has been escalating in recent years, establishing a Code of Conduct (COC) in the SCS – a legally binding and enforceable contract between all parties – has become a pressing need. For the small ASEAN (Association of South East Asian Nations) states, an agreement on a binding COC is a possible way to control China’s behaviour in the disputes. China’s approach towards the COC negotiations, however, varies throughout the years.
In 2002, the Association of Southeast Asian Nations (ASEAN) and China issued a Declaration on the Conduct of Parties in the South China Sea (DOC). This lofty document calls for the resolution of territorial disputes without the ‘threat or use of force’ and an end to provocative land grabs, while also envisioning the eventual adoption of a Code of Conduct (COC) to ‘promote peace and stability in the region. At the July 2011 ASEAN ministerial meeting, “guidelines” for the implementation of the Declaration were adopted, including the approval of a code of conduct. The chairman’s statement of the November 2011 ASEAN Summit stated that ASEAN’s leaders “look forward to the conclusion of a regional code of conduct.
But this has become a "holy grail" of diplomacy in Southeast Asia and beyond - envisioned and striven for but seemingly never to be attained. Indeed, fundamental obstacles make it unlikely that Asean and China will agree on a robust, binding code. Even agreement on a weak version will be difficult, for a number of reasons.
Beijing interprets the approach to a code of conduct quite differently from Asean. While Asean claimants say they want to implement the declaration by negotiating a code of conduct with China, Beijing is willing to consider a loose code of conduct if and when the other claimants cease their international grandstanding and negotiate the disputes directly with China. Thus, China and Asean are talking past - not to - each other.
Moreover, since 2008 the state has become more powerful in terms of economic and military capabilities which made the it unwilling to restrain its power through binding institutional frameworks. Due to its superior military and economic capabilities, China refused be bound by international institutions or mechanisms. The military dominance of China has facilitated the use of military force. In theory, the signing of the COC would prevent China from using its superior power to protect its own national territory. As a consequence, shortly after the Philippines proposed the COC, China declined to join this highly binding multilateral mechanism.
The relationship between dominant powers and international norms always prove to be complicated and multi-dimensional, however. Dominant powers can instrumentalise, withdraw and reshape international law by their own domestic law. In other words, in the eyes of dominant powers, international law is regarded as a power tool for them to fulfil their short-term or long-
term goals.There are at least three indicators that the COC negotiations are presently used as a power tool rather than a power investment by China.
Firstly, as a rising power, China is facing the problem of how to deal with its growing capabilities and expanding interests beyond its borders. China’s power is steadily augmenting and Beijing is not under pressure to constrain itself through international institutions. Using the COC negotiation as a time-buying solution, or even accepting a revised less binding COC will help China cultivate the illusion of being on the right track when it comes to settling disputes in accordance with international law.
Secondly, for ASEAN signing the COC will bring about significant benefits when it comes to dealing with maritime disputes via negotiations. China, on the other hand, showed that it had no intention to join any treaty which would limit its power in the region. Although China has declared its willingness to negotiate such a treaty, it has not acted in accordance with this declaration and has even increased its military presence in the South China Sea. China’s attempts to exacerbate the tensions prior to the negotiations indicate that China wishes neither to reach a binding COC nor to resolve the South China Sea disputes in accordance with international law. More importantly, Chinese officials and diplomatic representatives have proclaimed several times that the COC is a symbolic measure of confidence building. This perspective not only undermines the importance of the COC as a binding legal tool but also restricts its political functions and efficacy.
Thirdly, using the COC negotiation as a “time-buying solution”, China is cultivating an illusion of it getting onto the right track in settling disputes in accordance with international law. In this way, China can enhance its prestige in the South China Sea and continue the policy of “peaceful development”.
The COC will function more as an ornament than a reality. Should ASEAN accept a weak COC with the least binding commitment with China due to the splits/disunity among its members? These splits, exposed in the history of the COC negotiation process, were duly taken advantage of by China.
China stated it would discuss the COC with ASEAN at an “appropriate timing” or when “appropriate conditions” were met. In August 2013, China’s new foreign minister Wang Yi proposed four views on the COC process. First, it will take a fairly long time to conclude the COC because of the complexities of the issue. Second, the process should observe maximum consensus and respect the comfort level of each claimant party. Third, other interferences should be avoided. Fourth, negotiations should proceed in a gradual manner. Basically, the COC process should go hand in hand with the implementation of the DOC. At issue is China's claim of "indisputable sovereignty" over the South China Sea under its "nine-dash line". For sure, the COC process will be significantly delayed or laborious, contrary to the expectations of many regional states and external powers such as the United States.
Will a legally binding COC be signed in the near future? And can it contribute as the stepping stone to restore China’s rule-based regional leadership in the South China Sea?
Prospects for a binding code of conduct between ASEAN and China to reduce conflicts in the South China Sea dim as tension mounts and distrust deepens among claimants to various areas in the region.
ASEAN diplomats have blamed China for "temporizing" the talks. The Philippines and Vietnam have doubted the sincerity of China wanting to sign a binding code, given China's actions in the South China Sea.
"China doesn't want to tie its hands. The code of conduct will tie its hands," a Philippine diplomat told Kyodo News. "China's use of 'creating conducive environment' as precondition for a code of conduct is misleading that has deliberately delaying the process."
This delay is intended to give them the window to continue with their current aggressive activities to unilaterally change the status quo, which they could otherwise not do once the code of conduct is in place. Maybe, once they have consolidated their unilateral changing of status quo, they will now be ready to conclude the code of conduct.
Since the late 1990s, ASEAN and China tried but failed to craft a binding code aimed at reducing the risk of conflict. DOC, future COC or even international law will not work if China does not itself really want to exercise self-restrain and to be bound by it. As the big power in the region, nothing can bind China effectively unless China binds itself to those international and regional mechanisms.
If Beijing continues to follow the current approach, China’s short term interests can still be achieved, but the future strategic environment could develop in a way that is extremely disadvantageous for the country. China should respect international law and the regional agreements to show that it is a responsible power in the region and China did not end its “peaceful rise”./.
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All comments [ 10 ]


Phạm Hiếu 21/9/14 16:36

Beijing still refuses to accept mutually applicable rules of conduct and prefers instead to bully its way to control of disputed territory.

Quốc Kiên 21/9/14 16:38

The 2002 declaration is only a non-binding political statement with no dispute settlement mechanism to interpret its ambiguous provisions.

Huy Lâm 21/9/14 16:43

We can all see that through their actions and statements China appareantly doesn't want any COC like that which will undermine its interests in South China Sea.

Quốc Cường 21/9/14 16:50

Beijing interprets the approach to a code of conduct quite differently from Asean. That's main obstacle to attain The COC.

Lê Tín 21/9/14 16:52

For ASEAN, signing the COC, which contains provisions of “mutual restraint in the conduct of activities” and “cooperative activities”, will bring about significant benefits.

Hùng Quân 21/9/14 16:54

Binding China’s behaviors through multilateral mechanisms as intended by ASEAN would mean dealing with maritime disputes via negotiations.

Vân Nhàn 21/9/14 17:07

Only an extended COC which encompasses all nations with interests in the South China Sea (such as the US, Japan, and even India) or a maritime agreement for the whole region, can become a real power investment in managing the territorial disputes and in framing the rise of China as a responsible great power.

Hoàng Lân 21/9/14 17:11

I doubt China's intention in that negotiation.

Huy Quốc 21/9/14 17:13

Four major areas of disagreement were identified: the geographic scope, restrictions on construction on occupied and unoccupied features, military activities in waters adjacent to the Spratly islands, and whether or not fishermen found in disputed waters could be detained and arrested.

Quân Hoàng 21/9/14 17:15

Prospects for a binding code of conduct between ASEAN and China to reduce conflicts in the South China Sea dim as tension mounts and distrust deepens among claimants to various areas in the region.

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