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South China Sea: Pros and Cons of ASEAN’s Code of Conduct; By Carlyle A. Thayer

Picture Courtesy: AFP

C3S Article no: 0076/2017

Courtesy: Thayer Consultancy Background Brief, August 15, 2017

We request your assessment of ASEAN’s South China Sea Code of Conduct.

Q1. What are the pros and cons of the Code of Conduct?

ANSWER: The ASEAN-China Code of Conduct (COC) is supposed to be a code for state behavior in the South China Sea pending settlement of disputes over sovereignty over land features (islands and rocks) and delimitation of maritime zones that these land features are entitled to under the United Nations Convention on the Law of the sea (UNCLOS).

The pros of a Code of Conduct are: it can incorporate existing international conventions to which all eleven parties (ten ASEAN members plus China) have already ratified; include existing agreements such as CUES (Code for Unplanned Encounters at Sea) and the Declaration on Conduct of Parties in the South China Sea (DOC); and the principles and norms of state behavior such as self-restraint, non-occupation of presently unoccupied features and no use of force or the threat of force.

The COC would be strengthened if it included (1) a precise definition of the geographical scope of coverage; it could take the definition of the South China Sea by the International Hydrographic Organization for example (from north of Taiwan to the entrance to the Straits of Malacca etc.), (2) mechanisms to resolve differences of interpretation of the COC, (3) a binding and enforceable dispute settlement mechanism, and (4) was legally binding through ratification by national legislatures and deposited with the United Nations.

The cons of the COC is that it can only be adopted if there is a consensus by all eleven state parties. This will mean compromise and watering down provisions and leaving loop holes. The COC will not be able to address outstanding issues such as the implementation of the Arbitral Tribunal Award in the case the Philippines v China. The Tribunal found that two Chinese occupied features on which it built 3 kilometer long runways, Mischief and Subi Reefs, are low-tide elevations and not subject to appropriation. Low-tide elevations are not entitled to any maritime zone. Nor will the COC address changing the status quo and attempt to reverse China’s militarization. China would be free to put 24 modern jet fighters on each of its three airfields plus up to 12-13 bombers, refueling aircraft, maritime reconnaissance patrol aircraft and anti- air missiles and anti-ship cruise missiles.

Q2. Is China just going to ignore it?

ANSWER: China will not agree to anything that restricts its self-perceived sovereignty over all the land features and waters encompassed within its nine-dash line. Rather than ignore the COC China will use lawfare to impose “international law with Chinese interpretations” on the other parties. China will never admit a breach of the COC and it will use its considerable power and influence to cow the other parties into being compliant.

Q3. Is ASEAN too weak to force China?

ANSWER: ASEAN is not a collective security arrangement. Only a few ASEAN members are in direct dispute with China and none of them will come to the aid of the other in the event of a dispute or a conflict. The Philippines has chosen to put its head in the sand and ignore its disputes. Brunei does nothing. Malaysia just stands guard watching Chinese Coast Guard ships that have taken up station near Luconia Shoal. Vietnam has been isolated and it does not have sufficient ships with sufficient tonnage and armament to oppose China. Indonesia officially claims it is not a party to the dispute and has the means to deal with illegal unreported and illegal fishing in its waters.

All the other ASEAN states are not in dispute with China. Cambodia is a Chinese surrogate by choice. ASEAN ministers are engaged in foolish consistency(1) in trying to get China to agree to a binding Code of Conduct. The process will be protracted and Beijing is hoping the game (stability in the South China Sea) is not worth the candle(2) (the physical effort to keep China in check) for the United States.

References:

1 Ralph Waldo Emmerson. “A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.” 2 Game not worth the candle; this phrase relates to games that were thought so lacking in merit that it wasn’t worth the expense of a candle to create enough light to partake in them. The era before electricity when candles were an expensive source of lighting.

[Carlyle A. Thayer is an Emeritus Professor at the University of New South Wales, Australian Defence Force Academy, Canberra. The views expressed are his own. All his background briefs are posted on Scribd.com (search for Thayer). Thayer Consultancy provides political analysis of current regional security issues and other research support to selected clients.]

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