Chinese Vice-Foreign Minister Liu Zhenmin confirmed in early January that negotiation on a code of conduct (COC) framework on the South China Sea had entered a very important phase and a draft could be finished by June. Such remarks can only be pleasant news for ASEAN which, since the negotiations started in 2013, has wished that China could agree to speed up the negotiation.
However, in 2013, the Aquino government of the Philippines unilaterally took the arbitration to the international maritime tribunal without consulting China and informing ASEAN. Consequently the process of the COC has been strongly affected. It is only now that the situation allows for speeding up such talks, thanks largely to President Rodrigo Duterte’s efforts in ameliorating the poisoned relations between the two countries.
What could the framework look like? Almost certainly it won’t mention the tribunal’s ruling at all, however disappointing this may be to some people. Beijing has made it crystal clear that the ruling, which China refused to accept cannot be the basis of any discussions. When Aquino government initiated the arbitration against China, ASEAN didn’t agree, but it failed to make efforts to stop such a unilateral move, which is a violation of China-ASEAN consensus. The 2002 Declaration on the Conduct of Parties in the South China Sea (DOC) obligates “sovereign states directly concerned” to resolve their disputes through “friendly consultations and negotiations” rather than resorting to legal procedures.
As a wild guess, ASEAN’s major concerns might be on two principles laid out in the DOC. One is “to resolve disputes without resorting to the threat or use of force”; another is “refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features”. Given China’s military strength and Chinese land-reclamation in the South China Sea, such concerns on the part of ASEAN seems understandable but not really justifiable. China has never threatened to use force to take back the 29 islands and reefs currently occupied by other claimants even though China believes they are Chinese territories. China’s land reclamation is only conducted on China-controlled islands and reefs. So far the only country using force after 2002 DOC was signed was the Philippines: its coast guard killed Chinese mainland and Taiwanese fishermen in 2006 and 2013.
The DOC comprises two indispensable parts. One is confidence-building measures, the other is practical maritime cooperation. On confidence building, the evolving COC should reflect and more importantly, carry out the outcomes in early consultations such as bilateral agreement in setting up “a China-ASEAN hotline platform for maritime search and rescue” and “a China-ASEAN senior foreign officials’ hotline platform on emergencies”. During the Xiangshan Forum in November 2015, Chinese Defense Minister General Chang Wanquan made a proposal of setting up a China-ASEAN defense hotline, which was warmly received by ASEAN defense ministers. China and ASEAN have agreed to conduct a naval exercise to avoid unplanned encounters at sea in 2017. China and Vietnam have already established two hotlines at governmental and military levels. The two navies have managed to conduct joint patrols in the Beibu Gulf (Gulf of Tonkin).
The bigger challenge is how the COC could include concrete efforts in maritime cooperation identified in the DOC, namely, marine environmental protection; marine scientific research; safety of navigation and communication at sea, search and rescue operation and combating transnational crime. After all, both China and ASEAN agree that resolving territorial disputes is not and should not be the whole of China-ASEAN relations. Cooperation should go in tandem with crisis management. In 2011, China established a fund of 3 billion RMB for maritime cooperation with ASEAN. So far some progress has been made, such as signing of a Memorandum of Understanding on the establishment of the China-Malaysia Joint Oceanographic Research Center, the establishment of the China-Indonesia Center for the Oceans and Climate and the Joint Oceanic Observation Station. But all these projects are still in early stages. They have yet to grow and bear fruit.
Could China and ASEAN talks on COC proceed smoothly and finish by June as planned? The tempo in no small way depends on the changing situations in the South China Sea. Rex Tillerson, President Trump’s nominee to be US secretary of state, said at his congressional testimony to Beijing that “your access to those islands is not going to be allowed”. Does he mean the US under Trump administration wants a war with China? Even if this is an inadvertent slip of tongue, it is highly irresponsible. China’s removal of an unidentified object on Dec 15, which later proved to be a US unmanned underwater drone, shows that China not only has a duty for the safety of navigation and personnel of passing vessels, but also that in the South China Sea, it is not up to the US to unilaterally interpret what freedom of navigation stands for.
COC is not about delimitation of maritime boundaries among the claimants, which can only be the final target. Although it is a big step forward from the DOC, it is still about confidence building. It may not solve problems but it helps to prevent the problems from escalating. A useful reference is how confidence-building measures have worked along the China-India border. Although the border dispute there remains unsolved to date, peace and stability have by and large been maintained through implementation of a series of agreements and confidence-building measures. The miracle is, for over half a century, not a single bullet was fired from across the border.