The Code of Conduct of the Parties in the South China Sea: a tremendous mistake

On the 5^th of August 2017, the ministers of foreign affairs of the Association of South-East Nations (ASEAN), in the frame of the first of their yearly meetings, gathered in Manila, Manila holding the presidency of the Association this year. One of the main purpose, among other important ones, of the meeting was to elaborate the project of a framework for the future consultations, before negotiations, for a code of conduct (COC) of the parties in the South China Sea (SCS). The project was to be discussed the following day with Wang Yi, the Chinese minister of foreign affairs. After strong discussions the two parties reached an agreement on a framework from which the consultations for a COC shall start in November, at Clark, Pampanga province, in the Philippines. It will happen on the occasion of the second ASEAN and China foreign affairs ministers’ meeting of year 2017.

To avoid confusions of interpretation about the successive negotiations in order to reach a COC, the Philippines Supreme Court Senior Justice Antonio T. Carpio, in one presentation to the Stratbase-Albert del Rosario Institute, clearly explains that “The Framework is simply a list of topics to be included in the draft that will be negotiated into a final COC. The Framework is just the skeleton of an agreement. From this skeleton, a draft agreement will be fleshed out, and from this draft a final agreement – the COC – will be hammered out by the parties”. “The Framework is not the COC, not even the draft COC” ¹.

What is astonishing in such a project is that, as long as China persists in rejecting the 12^th of July 2016’s ruling of The Hague Permanent Court of Arbitration (PCA) and maintains its claim delineated by the nine / ten dashed line on almost the whole South China Sea, the South East nations persist in wanting to reach an agreement which shall frankly go against, not only their interests, but more than that, against their freedom and their security.

One of the questions that were debated in order to establish the framework of the 6th of August, was whether the future code should be “legally binding” or only “binding”. It appeared that, contrarily to what the ASEAN countries wished, that is to say have a “legally binding agreement”, the Chinese wanted that point to be softened in order to have a “binding” agreement only. That is why, according to Alan Peter Cayetano, the Philippines Secretary of State, the negotiators finally decided not to include the question of the legal binds in the final framework². But Cayetano never specified if the very question would be definitely given up or could be integrated into one of the part of the future consultations that must be held in November. In any case, nothing appears that could let think the question of the legal binds is maintained in the items listed in the framework³. Consequently the future COC could only be a mere remake of the Declaration of conduct (DOC), signed on the 4^th of November 2002 in Phnom Penh. A DOC which does not work, since 15 years later, the signatories are still negotiating on how to implement it. Moreover in order to win time before reaching a COC, the Chinese want the conditions of the implementation of the DOC be settled at first.

However if the ASEAN ministers of foreign affairs still keep in their minds the wish to introduce the legal binds in the negotiations for a future COC, the topic could be a part of one of the item listed in para cV of the framework: “Management of incidents”⁴.

Should the question of the legal binds be maintained in the future discussions, one must not let be cheated by the fact that China gives the impression of not wanting the question be included in a future COC. Such a position indeed, at least as long as the nine / ten dashed line has not been deleted, as it should have been after the award of the PCA, appears rather queer. Because, in reality, a constraining agreement would give China far more strength than today to defend its so-called sovereignty over the South China Sea against the other coastal States. And reversely the East Asian countries would be the losers.

As I already developed it in an issue published on diploweb.com, in French and English, on January 30, 2016 ⁵, “it seems as if the South East Asian countries have no real conscience of what is actually hiding behind” the negotiations they are so eager to finalize. Simply because “while negotiating the future COC, voluntarily constraining, they are in fact preparing the weapons China will be able to turn against them tomorrow. Because today already, in Peking eyes”, “those countries are wrong when they dare practice their activities in the areas where the ‘buffalo tongue’ is overlapping their own respective EEZs”.

Two new recent examples prove that:

• when China threats Manila of war if the country resumes oil exploration and exploitation on Reed bank, a submarine elevation situated North of the Spratlys and West of Palawan island, Philippines. By acting that way, China is completely wrong because this underwater feature had been recognized by the PCA as fully lying inside the Philippines’ EEZ, therefore under the only sovereign rights, but not sovereignty, of this country. Moreover, China has no right to claim sovereignty on it because, as the CPA reminded it, according to the United Nations Convention on the law of the sea (UNCLOS), nobody may claim sovereignty on a submarine elevation, except if it is situated in the territorial sea of the country. That is not presently the case ;
• when China recently constrained Vietnam and the Spanish company Repsol to stop oil and gas exploration in the farthest East-Southern part of the Vietnamese EEZ, on block 136-03, in the Vanguard area situated South-West of the Spratlys, but unfortunately for the Vietnamese inside the nine/ten dashed line.

These two examples clearly show that when a legally binding COC is adopted, the South-East Asian nations coastal of the South China Sea “will have to continue bearing the brunt of the Chinese accusations for their supposed wrongdoings, as long as the nine / ten dashed line has not disappeared, be there a DOC, or worse a COC”. “As a matter of fact, under such considerations, since the COC would be constraining it would fully empower China to act by force against the suspected offenders. Consequently, because those countries would have agreed to be compelled by the COC, China would finally get the capacity to apply against them the rules they would have, on the contrary, expected a protection from them. If we agree to consider the project according to a Chinese vision” therefore attached to the management of the nine / ten dashed line, “the South East Asian nations, by negotiating a COC, are finally furbishing the weapons which could be turned against them in the future. It is the reason why, at the present time, the foreseeable outcome of a COC is no more than an illusion as far as the appeasing effects to expect from it are concerned. In any case as long as the nine / ten dashed line exists” 6.

So, when China wants a code not legally binding, it is, for the moment being, just a false pretense. Because Peking considers the conditions are not ripe today for reaching a constraining COC. It is the reason why, finally, China is presently staging a delaying action when it pretends agreeing to discuss, while at the same time it raises some obstacles to prevent the project going forward too quickly. The conditions expressed by Wang Yi, such as “if there is no major disruption from outside parties, with that as the precondition” for starting the discussions in November, are no more than such a kind of obstacle. Because it will be very easy for China, at one moment or another, to consider the USA, through its freedom of navigation operations (FONOPs), or Australia, or Japan for some other reasons, as stirring troubles in the South China Sea.

General (ret) Daniel Schaeffer

Member of the French think tank Asie21 (www.asie21.com)

Former French defense attaché in Thailand, Vietnam and China

[1] Quoted by Jarius Bondoc in South China Sea deal stuck on mere outline, The Philippine Star, July 31, 2017, attainable at http://www.philstar.com/opinion/2017/07/31/1723120/south-china-sea-deal-stuck-mere-outline

[2] Manuel Mogato, Philippines says China wanted non-legally binding South China Sea code, Reuters, August 8, 2017, attainable at https://www.reuters.com/article/us-asean-philippines-southchinasea-idUSKBN1AO1LW

[3] See Carlyle A. Thayer, “ASEAN-China: Framework of a COC,” Thayer Consultancy Background Brief, August 6, 2017, attainable at by searching “Thayer Consultancy Background Brief”

[4] Ibid.

[5] Code of Conduct in the South China Sea : the great chimera, www.diploweb.com, January 30, 2017, attainable at https://www.diploweb.com/Mer-de-Chine-du-Sud-Code-de.html

[6] Ibid.