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International relations

China, ASEAN still far from South China Sea code of conduct

Leaders endorse framework after 17 years, but the 'legally binding' question remains

China has created concrete landscapes on reclaimed islands in the South China Sea that were previously little more than reefs and sand bars. REUTERS/Erik De Castro   © Reuters

MANILA -- The leaders of China and the 10-member Association of Southeast Asian Nations (ASEAN) have formally endorsed the framework adopted by their foreign ministers in August for a code of conduct (COC) to handle overlapping territorial claims in the South China Sea.

The agreement at the end of a summit in the Philippine capital early this week comes 17 years after all parties first agreed in principle to adopt a code of conduct, but the process is far from concluded. A working group will resume negotiations in March in Vietnam before anything further goes up to ministerial level. It is also not clear if the final COC will be legally binding.

A COC is a regulatory instrument "consisting of written sets of rules and principles which can deal with very specific or more general areas of regulatory concern, but always focus on a certain desirable conduct of the addressees," according to Oxford Public International Law.

The COC for the South China Sea is intended to prevent violent conflict in one of the world's busiest and most strategic maritime areas. China has unilaterally laid claim to almost the entire South China Sea, but this has been disputed by ASEAN members Brunei, Indonesia, Malaysia, the Philippines, and Vietnam, which all have claims. So too does Taiwan.

Adoption of a COC was stipulated in 2002 in article 10 of the Declaration on the Conduct of Parties in the South China Sea, which exhorted all parties "to exercise self-restraint" with regard to "activities that would complicate or escalate disputes" and "refrain from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features."

That has all been largely ignored. Claimants have carried out construction and oil exploration in disputed areas, and there have been naval confrontations.

Speaking to the Nikkei Asian Review in June, ASEAN Secretary General Le Luong Minh indicated that the 2002 declaration on conduct had not been effective. He said that for the COC to be able to handle the kinds of incidents seen since that time, "it is the view of the ASEAN countries that the COC must be a legally-binding instrument."

China would, however, prefer to deal with disputants individually in order to leverage its military and economic clout.

The need for a COC was recognized in the early 1990s after tensions in the South China Sea led to a bloody standoff between China and Vietnam in the Spratly Islands in which over 60 Vietnamese sailors were killed. In 1996, a year after Manila discovered that Beijing had taken control of Mischief Reef in the eastern Spratlys, ASEAN and China agreed to formulate a code of conduct.

In 2002, after much diplomatic wrangling, a non-binding political declaration emerged with an understanding that a COC would follow. Talks dragged on, however, and ASEAN diplomats accused China of polarizing opinions in the regional bloc to delay the COC while it pressed ahead with construction projects on reclaimed islands in the area.

In 2013, the Philippines, then China's most vocal critic, filed a petition against Beijing at the Permanent Court of Arbitration at The Hague in the Netherlands. Manila's legal bid to internationalize the maritime dispute infuriated China, which duly stepped up reclamation activities in seven areas and sat on efforts to take the COC forward. China completed its reclamations before the tribunal at The Hague ruled in favor of the Philippines in July last year. However, President Rodrigo Duterte had come into office by then, and he opted to set aside the decision in exchange for the promise of major aid and investment from China. With a more compliant ASEAN, and major reclamation work completed, China then championed the expedition of COC talks.

In May this year, at a meeting in the southern Chinese city of Guiyang, China and ASEAN agreed on the code's framework, which was adopted by the foreign ministers during their meeting in August in Manila. A leaked draft of the framework states that the COC is "not an instrument to settle territorial disputes or maritime delimitation issues."

The really tough negotiations will begin in March in a new environment -- physically and diplomatically. ASEAN has chosen to downplay China's island-building in the South China Sea as a security threat. In the summit concluding statement released on Thursday by the Philippines, which held ASEAN's rotating chair this year, there was no expression of concern over reclamation and militarization -- as there had been in the past. Instead, improving relations between ASEAN and China were highlighted.

Duterte had a bilateral meeting on Wednesday with Li Keqiang, the Chinese premier, and said afterwards that Beijing now supports a legally-binding COC. This may bring other problems, however. Speaking with the ABS-CBN News Channel on Friday, Roilo Golez, a former Philippine national security adviser, said a binding COC could prevent the Philippines from salvaging the parts of the Spratly Islands it claims. Richard Heydarian, an Asian geopolitical analyst, said a binding COC could also bury the favorable arbitration decision at The Hague, which China has always flatly ignored.

Following such arduous framework talks, the emergence of a COC remains many diplomatic hard yards away.

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