“As ASEAN and China Discuss a Code of Conduct for the South China Sea, America Looks on Sceptically” by Ian Storey

2019/88, 24 October 2019

Amid rising tensions in the South China Sea, talks between ASEAN and China for a Code of Conduct (CoC) have continued. Some progress has been made. In July 2019 agreement was reached on a first draft (known as the First Reading) of the Code. Although no details were released, it appears the first draft is a consolidated version of the 19½-page Single Draft Negotiating Text (SDNT) which ASEAN and China endorsed in August 2018. Overlapping text has been removed and the parties have inserted comments on the various provisions in the SDNT.
In Da Lat, Vietnam on 13-15 October, ASEAN and Chinese officials met again to discuss how to proceed with the Second Reading (altogether three readings are envisaged and China wants the Code to be signed by 2021). Once again, no details of the talks were released. However, the Vietnamese media revealed that during the meetings Vice Minister of Foreign Affairs Nguyen Quoc Dung had said “complicated developments” had “created disadvantages” for the CoC negotiations. Dung was referring to the presence since July of a Chinese survey ship at Vanguard Bank which lies inside Vietnam’s exclusive economic zone, and which Hanoi has protested to Beijing as a violation of its sovereign rights. Media reports did not note China’s response or how if affected the atmosphere of the discussions.
Interestingly, after the ASEAN-China meetings concluded, the US expressed misgivings about the CoC process. Although the US has supported the CoC talks in principle, since the SDNT was endorsed, senior US officials have voiced their concerns. Specifically the US objects to two of China’s provisions in the SDNT which seek to limit military exercises and the joint development of resources in the South China Sea to only China and Southeast Asian countries while excluding other stakeholders. In November 2018 at the East Asia Summit (EAS) in Manila, then US National Security Adviser John Bolton told the media that the US would oppose any agreement between ASEAN and China that infringed the free passage of shipping through the vital waterway, including US warships. In August 2019 at the EAS foreign ministers’ meeting in Bangkok, US Secretary of State Mike Pompeo urged his Chinese and ASEAN counterparts to negotiate a “meaningful” CoC which comports with the United Nations Convention on the Law of the Sea.

A day after the Da Lat talks, however, the US position hardened when David Stillwell, the Assistant Secretary of State for East Asian and Pacific Affairs, told the Senate Foreign Relations Committee that “We remain sceptical of the PRC’s sincerity to negotiate a meaningful Code of Conduct that reinforces international law…. If the [CoC] is used by the PRC to legitimize its egregious behavior and unlawful maritime claims, and to evade the commitments Beijing signed up to under international law, a [CoC] would be harmful to the region, and to all who value freedom of the seas.” It remains unclear whether the offending provisions survived the First Reading. ASEAN and Chinese officials will not meet again to discuss the CoC until early next year.
Dr Ian Storey is Senior Fellow at ISEAS – Yusof Ishak Institute.

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