Viet Nam Human Rights
»
Analysis-Comment
»
home
»
political-social
»
Does China really want a Code of Conduct in the South China Sea?
Does China really want a Code of Conduct in the South China Sea?
21/9/14
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”./.
Popular Posts
-
Religion is a part of the spiritual life in society, this phenomenon of the superstructure has been strongly changed with economic - social... -
Vietnam has just done well for the second cycle of Universal Periodical Review (UPR) in Geneva, Switzerland. So, what’s the UPR? an... -
Thai people in Shutdown Bangkok protests Not until this crisis, we have realized the ne... -
Representatives from foreign countries congratulate Viet Nam on its election to the Human Rights Council for the first time on November ... -
A street flowers vendor in Hanoi Another new spring has come to Vietnam, bring... -
If nothing changes, there will be a preferential credit program with hundreds of thousands billion of capital for agriculture and r... -
Recently, several anti-governmental individuals have established series of illegal groups and organizations in the name of civil soci... -
Radio Free Asia (RFA) is a private, nonprofit international broadcasting agency of the United States government that broadcasts and...
All comments [ 10 ]
Beijing still refuses to accept mutually applicable rules of conduct and prefers instead to bully its way to control of disputed territory.
The 2002 declaration is only a non-binding political statement with no dispute settlement mechanism to interpret its ambiguous provisions.
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.
Beijing interprets the approach to a code of conduct quite differently from Asean. That's main obstacle to attain The COC.
For ASEAN, signing the COC, which contains provisions of “mutual restraint in the conduct of activities” and “cooperative activities”, will bring about significant benefits.
Binding China’s behaviors through multilateral mechanisms as intended by ASEAN would mean dealing with maritime disputes via negotiations.
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.
I doubt China's intention in that negotiation.
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.
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.
Your comments