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"Fast-Track Talks on the Code of Conduct in the South China Sea: An Opportunity to Move Forward", a Commentary by Hoang Thi Ha

Commentary 2016/38, 1 August 2016

China’s proposal at the ASEAN Post-Ministerial Conference (PMC) on 26 July 2016 to complete consultations on a Code of Conduct (COC) in the South China Sea (SCS) by July 2017 is a welcome development. The announcement came at a time of great anxiety over rising tensions in SCS and concerns over China’s response to the Arbitral Tribunal Award. Interestingly, the proposed deadline overlaps with the Philippines’ tenure as ASEAN Chair. Given that the Philippines had just recorded a resounding legal victory over China, the proposal could therefore be seen as a gesture of reconciliation, affirming China’s commitment to constructive diplomacy with ASEAN.

Looking back, China has never demonstrated the same level of interest on the COC as ASEAN countries have. Throughout the COC negotiations, which started in 2013, Beijing appeared to be in no hurry to conclude the document, maintaining that the process must be a gradual one which is based on consensus and accumulation of commonalities.

The proposal to fast track the COC talks therefore came as a surprise. Whether this move is a strategic initiative or a tactical decision is subject to debate. Nevertheless, it was clearly meant to lower the tensions generated by the ruling and to change the narrative of the SCS, which had erstwhile not been favourable to China. This objective fits well with China’s strategy of embedding the SCS issue within the regional framework of involving only China and ASEAN countries – over whom Beijing enjoys an insurmountable advantage in terms of size and power, militarily and economically.

Whatever China’s intentions may be, ASEAN should seize this opportunity to inject much needed impetus to the stalled COC negotiations. However, China’s proposal came with a condition of “staying free from disturbances.” The problem lies in different interpretations of “disturbances” and its causes. For China, the invocation of the Arbitral Tribunal Award in diplomacy and actions at sea are the clear red lines. Beijing’s caveat may also be aimed at forewarning Washington not to perform “acts” deemed unacceptable to the former, such as freedom of navigation operations to uphold the Award. The supposed olive leaf by Beijing in dangling the COC carrot may turn out to be a stick to keep ASEAN and other external parties in check. More importantly, what is the redress if China is the source of those “disturbances?”

Aside from the diplomatic manoeuvring which may ultimately derail the process, the COC faces a number of vexing questions. Thus far, the consultations have focused primarily on processes instead of substance. Beyond the consensus that the COC is not a dispute settlement mechanism and acts as a framework for confidence building, conflict prevention and management, other sensitive issues including the legal nature of the COC and its geographical scope have not been adequately addressed.  Is there sufficient political will on all sides to see the COC through?

ASEAN and China should learn from the DOC experience to strive for a more robust COC framework that goes beyond rhetoric and symbolism. Otherwise, the countless hours of negotiations will be an exercise in futility.  ASEAN should also hold China to its word on the declared deadline to prevent China from using the new pledge as another stratagem to bide time.  

Hoang Thi Ha is Fellow at 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.