China’s approach to the SCS Code of Conduct

In October last year, China’s Foreign Ministry spokesperson had optimistically announced that parties had agreed to “accelerate negotiations so as to strive to reach at an early date an effective and substantive” Code of Conduct (CoC) to govern their activities in the South China Sea (SCS). This statement came eight months after a similar proclamation made at the beginning of 2023. The lack of progress in reaching consensus on a CoC in the SCS in the last several decades is not surprising, as China the most powerful player in the region, refuses to move in that direction, preferring instead to use unilateral force to stake its territorial claims. Negotiations on the CoC clearly show that this long-drawn process is likely to drag on well into the future, Arguably, China has used the ongoing CoC negotiations as a pretext to gain time to fortify its claims in the SCS. Further, it has been modernizing its military capabilities to ensure a strengthened bargaining position while negotiating the CoC, thus offsetting the US military presence in the region. 

In 2022, all 10 Association of South East Asian Nations (ASEAN) leaders had gathered in Phnom Penh, Cambodia to mark the 20th Anniversary of the “milestone” Declaration on the Conduct of Parties in the South China Sea (DoC). As was the norm, each year, the leaders duly reaffirmed, “the purposes and principles of the UN Charter, the UN Convention on the Law of the Sea or UNCLOS, and other universally recognized principles of international law which shall serve as the basic norms governing state-to-state relations.” Like the initial DoC agreed upon in 2002, this reaffirmation remains an aspirational document, which inter alia, pledges the freedom of navigation under UNCLOS, and peaceful resolution of disputes “without resorting to the threat or use of force” in the SCS. However, the experience of over two decades has been the inability of the parties concerned to arrive at a consensus.

The lack of progress on the CoC has resulted in a situation wherein the SCS exists under the persistent threat and occasional use of force by China. It is a place where disputes are not resolved peacefully, but rather by China acting as the belligerent police officer, judge, jury, and jailer over all the other countries. Beijing has brazenly ignored and discarded both the central features of UNCLOS and the 2016 ruling of the arbitral tribunal that clarified UNCLOS’ application to the SCS. It has ignored the clear statements contained in UNCLOS in favour of a sweeping and unilaterally declared “indisputable sovereignty” over the waters that are fairly apportioned to its neighbours. China today acts as the sole arbiter of national rights and jurisdictions, enforcing its rule by the constant presence of its naval, coast guard, and militia ships.

For years, China has refused to negotiate on CoC terms with ASEAN, insisting rather on dealing with SCS claimants on a bilateral basis. To be sure, this strategy has worked as it plays on the evident power asymmetries within ASEAN. By design or default, in 2013 China began working with ASEAN more earnestly on  a CoC. This is because it coincided with the Philippines approaching the Permanent Court of Arbitration for resolution about China’s nine-dash line which claims 90% of the SCS. The court ruled in favour of the Philippines and invalidated China’s claims to most of the SCS. The tribunal declared (2016) that China’s historical rights claim to the waters had no legal basis under UNCLOS.  It also found that China’s actions in the region, including building of artificial islands and interfering with fishing and oil exploration, violated the Philippines’ sovereign rights.  However, China rejected the ruling and continues to assert its territorial claims in the SCS.

ASEAN member nations have different individual positions on the SCS dispute. Only some members are claimants, and among these there remain some border disputes, even if China is not included. Meanwhile, Chinese economic and political influence impacts every ASEAN country, though it is not homogeneous. Some members, especially non-claimants, put more emphasis on bilateral relations with China, and are less interested in negotiating with China as a bloc. This effectively prohibits the ASEAN members from unifying their influence in a joint effort to solve territorial disputes collectively.

However, all ASEAN countries share the strategic desire to prevent unnecessary and rapid escalation of SCS conflict. It is precisely because of this that ASEAN has persisted with efforts to negotiate a CoC with China. Some countries have even offered to negotiate bilaterally but realise that such an approach gives China an upper hand. Therefore, they prefer to manage the SCS dispute through an ASEAN-led approach. It is notable that despite years of uncooperativeness on the behalf of China, the ten ASEAN countries have been persistent in their efforts to engage with China and to produce an effective CoC. The ASEAN expectation is that the COC will be a legally-binding instrument, demonstrating their continual struggle to resist implementing a watered-down iteration of the Code, which leave China always with loopholes to make its territorial claims.

Of all ASEAN nations, The Philippines has borne the brunt of China’s SCS aggression. It is the Philippines that has had one of its most important traditional fishing grounds at Scarborough Shoal, a mere 120 nautical miles from Luzon, seized and continuously controlled by China since 2012. It is Filipinos who have looked on as China built a major military base at Mischief Reef – just 130 nautical miles from Palawan – from which the PLA projects power deep into their internationally recognized Exclusive Economic Zone. In fact, the best-case scenario for China might be that these protracted talks serve as political cover while it extends de facto control over yet more of its vast maritime claims. It can then negotiate – from a position of ever greater strength – a China-friendly agreement, which Beijing can claim supersedes UNCLOS for the SCS because all “relevant” countries have acquiesced to it.

This is the tactic that China has embraced through its existence as a nation and in negotiations with neighbouring countries. Protracted negotiations with no end result have allowed China to gain operational control of many more land features in the SCS than it did when the CoC process began. In the light of a 2016 decision by a United Nations arbitral tribunal, which found that many of China’s claims and activities in the SCS were unlawful, China’s behaviour moved towards a show of managing its disputes peacefully, while continuing its aggressive militarization of the SCS. ASEAN’s focus on keeping the CoC process alive represents slow progression, i.e., talks for the sake of talks. This is despite the fact that strategic rationale for the talks vis-à-vis China has disappeared. Even assuming that the CoC is concluded by 2026, a goal announced in July 2023, it will not resolve the underlying disputes. These will have to negotiated on the terms of the UNCLOS and that will take years.

The India-China is no exception to Beijing’s tactics in negotiating a settlement on the border. China will come to terms with India on the border when it feels it is negotiating from a superior position and one of strength. Then China will lay down the terms and conditions for an agreement. Till then, it will continue to play hide and seek with India on the border.