A Storm Ahead for the ASEAN-China Code of Conduct Negotiations

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In 2019, during the 22nd ASEAN-China Summit in Thailand, the regional bloc agreed to a three-year deadline China proposed on the finalization of the South China Sea Code of Conduct (CoC). Accordingly, China’s most immediate claimant state, Vietnam is regarded as the frontrunner among the ASEAN states in pushing for the finalization of the CoC. However, it has faced significant setbacks during its ASEAN chairmanship. Moreover, the next two ASEAN chairs may not be as committed as Vietnam in resolving issues in the South China Sea. The author argues that these hurdles and the succeeding ASEAN chairs are factors that will greatly hinder the completion of the CoC.

This year, tensions in the South China Sea have escalated since the beginning of the COVID-19 pandemic. Claimant states, Malaysia, Vietnam, and the Philippines, along with the U.S. Australia , UK, and Germany all released statements calling for states to uphold the rule of international law. Moreover, the U.S. Navy has increased its Freedom of Navigation Operations (FONOPS) this year. While these mounting pressures may prompt China to fast track the CoC negotiations, there are challenges ahead for both China and ASEAN to come to an agreement.

This ASEAN chairmanship this year was one most looked forward to with regards to issues in the South China Sea as Vietnam had frequent escalations with China in the disputed waters and has been at the forefront for pushing forward the adoption of a CoC. One notable incident was the Vanguard Bank Standoff which began in July 2019 when Chinese survey vessel Haiyang Dizhi 8 accompanied by Chinese Coastguard (CCG) vessels surveyed for oil and gas off the contested area. On Nov. 22, 2019, Vietnam’s Ministry of Foreign Affairs released a statement stating that it is of utmost importance to achieve an “effective, substantive, and binding CoC in line with international law.”

Although the chairmanship was one much anticipated, it was regarded as a “lost year” due to the COVID-19 pandemic. On the other hand, some analysts have argued that Vietnam has managed to maximize its term. They highlighted Vietnam’s highly praised COVID-19 pandemic response, its pursuit of a framework of both engagement and competition with China, and its initiation to create an avenue for strategic cooperation with the Quad with regards to managing China’s aggressive actions in the contested waters.

However, even with Hanoi’s achievements, hurdles due to the COVID-19 pandemic had significantly affected Vietnam’s term. The cancellation of two ASEAN-China Joint Working Group (JWG) on the CoC scheduled in February and May this year has served as a major setback with the negotiations. This means that these negotiations would have to be pushed if not later this year, next year during Brunei’s chairmanship. With the setbacks of the Vietnamese chairmanship, Brunei’s chairmanship would not be entirely different from its predecessor.

The tiny sultanate nation is set to assume chairmanship in 2021. Like Vietnam, Brunei has claims in the South China Sea. Although the CoC negotiations are to resume under Brunei’s chairmanship, its willingness in settling disputes in the South China Sea compared to Vietnam, is lacking. Unlike Vietnam which has taken a more assertive role in its claims, Brunei has often been called the “silent claimant,” a term alluding to China buying Brunei’s silence on the South China Sea through Chinese investments. As the author argued elsewhere, Brunei has a complicated strategic outlook, it presents itself as a trustworthy member of the ASEAN while wanting to retain its robust economic relations with China. On Sep. 09, 2020, Sultan Hassanal Bolkiah met with Chinese State Councilor and Defense Minister Wei Fenghe where the two sides discussed deepening military exchanges and cooperation in the realm of defense. 

Although Brunei’s full commitment to the ASEAN is in question, it also needs to protect the image of the sultanate. Notably, the country has already allocated $2 million for its chairmanship in 2021 signaling the oil-rich country’s preparation for its much awaited term. These facts brought about by Brunei’s strategic posture makes it difficult to gauge whether Brunei is leaning towards ASEAN or China.

The 2022 ASEAN chairmanship may pose even larger problems when it comes to both commitment and efficiency of the CoC negotiations owing to the fact that Cambodia does not have any claims in the South China Sea and has strong relations with China. It may be noted that in 2016, Cambodia prevented ASEAN from reaching a consensus on the South China Sea after the Permanent Court of Arbitration (PCA) rejected Beijing’s territorial claims.

On June 01, 2020, Prime Minister Hun Sen denied yet again signing a secret agreement with China that would give the Chinese government military access to Ream naval base off the Gulf of Thailand after refuting accusations in 2019. Even in the time of coronavirus, Phnom Pehn made no effort in hiding its love affair with Beijing after Hun Sen flew to Beijing to show Cambodia’s support to China during the outbreak, and went as far as requesting to be brought to Wuhan but to no avail.

Other than the succeeding chairmanships having strong ties with China, there is difficulty with negotiating the CoC provisions in itself. Carlyle Thayer pointed out that the CoC draft has not clearly defined the South China Sea’s geographic scope, and does not lay out binding dispute mechanisms and the role of third parties. Moreover, China will highly unlikely approve of a legally binding CoC that the ASEAN advocates for. A CoC not legally binding is speculated to be as ineffective as the Declaration of Conduct (DOC). As of the moment, while there is no CoC, China would have more time to militarize and exploit the features in the South China Sea, further establishing its position.

The points above suggest that while it cannot be said for sure that the CoC will not make the 2021 deadline or the year after, meeting it remains highly unlikely even with international pressure due to setbacks brought about by the COVID-19 pandemic, the strategic posture of the succeeding ASEAN chairs, and the complexity of the CoC negotiations in itself. Meanwhile, as the CoC remains in standby, China will be given more time to assert its dominance in the region prompting the U.S. to conduct more FONOPS and statements in response. Whether a finalized CoC will be effective in addressing concerns in the South China Sea will depend on what ASEAN and China will finally come to agree upon and if all parties will honor all its provisions.

Chelsea Uy Bomping is a Manila-based defense analyst who works and writes on issues and topics on Cross-Strait Relations and the South China Sea. She currently pursues her master’s degree in Political Science at De La Salle University in Manila, Philippines.