“Draft Framework on the Code of Conduct: Much Ado About Nothing?” by Tang Siew Mun

2017/26, 19 May 2017

ASEAN and China took their first hesitant step towards the long-awaited Code of Conduct on the South China Sea (COC) yesterday by concluding the draft framework on the Code of Conduct. It has been a full 15 years since ASEAN and China agreed to “reaffirm that the adoption of a code of conduct in the South China Sea would further promote peace and stability in the region” through the adoption of the 2002  Declaration on the Code of Conduct of the Parties in the South China Sea (DOC). Not much was expected of the DOC then, and likewise it would be unrealistic to expect any changes to the draft framework.

Both parties announced the draft framework without disclosing its contents. They did themselves a disservice in the age of social media as the document will soon find its way to international affairs blogs such as The Diplomat. It is self-defeating to continue to keep the document under wraps.

Second, the announcement on the completion of the draft framework will sound hollow if the ASEAN and Chinese foreign ministers do not follow through with the prevailing consensus position. If the intent was to submit the draft framework to the ASEAN and China foreign ministers in time for their approval at their meeting in August, the senior officials should not have announced that the draft framework is finalised. The “tease” might have been framed to mark the growing positive ties between ASEAN and China, but it also generates a sense of expectation. For ASEAN, this is yet another example of the failure of its governments to connect with its citizens in an open and transparent manner. On-going confidential negotiations that are still in the “draft” stage should be kept under wraps. But once it is disclosed by the officials, the public expects to have sight of its contents and scrutinise it. Such is the new reality of international affairs.

While the framework is but a first step toward the elusive COC. Even if the COC materialises, the document will not change the facts on the ground as established by China’s enhanced presence on the reclaimed disputed features in the South China Sea. Its slow but sustained efforts to convert these man-made islets into permanent military outposts will remain unchecked. The draft framework’s impact on Chinese actions, as well as on the other claimants is negligible. In other words, the COC will not “un-reclaim” those islands and “un-build” those installations.

While the shrinking support for a “legally binding” COC, especially among ASEAN member states, is a cause for concern. Without international law to guarantee equal and just treatment, international relations would be reduced to the chaotic Hobbesian state of nature where might is right. As the strongest power, China would naturally favour this outcome, but in doing so, it fails to recognise that peace and security in such a world depends on the power of intimidation and costly use of force. Any COC design that falls short of being legally binding would provide little recourse or comfort to the aggrieved parties, including China. International law constrains ASEAN and China in equal measure, while providing protection to all parties. The question of “legally binding” is still on the table, and China might find this route more politically palatable and cost-effective to pursue and consolidate its sizeable gains in the South China Sea. For ASEAN, the cover of international law levels the playing field for big, medium and small countries.

But all is not lost. The draft framework must be recognised as a positive development, especially if only good news on the South China Sea disputes are so rare. The draft framework shines a light on ASEAN and China’s ability to work through difficult issues. Hopefully, the goodwill generated in concluding the framework would not be squandered willfully by further aggressive actions on all sides. More importantly, both sides should ride the positive momentum to move onto the next stage of negotiations. It would be nice to round off the congratulatory mood for concluding the draft framework with an announcement of the firm commitment to commence negotiations on the actual document.

Dr Tang Siew Mun is Head of the ASEAN Studies Centre, ISEAS–Yusof Ishak Institute.

The facts and views expressed are solely that of the author/authors and do not necessarily reflect that of ISEAS-Yusof Ishak Institute.  No part of this publication may be reproduced in any form without permission.