Last month at the conclusion of talks with senior Association of Southeast Asian Nations (ASEAN) officials in Beijing, China’s Foreign Ministry spokesperson optimistically announced that the 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.
This statement came eight months after a similar proclamation at the start of 2023, and served to bookend yet another year of the diplomatic kabuki theater that surrounds these perpetual deliberations.
Just one year ago, all 10 ASEAN leaders gathered together with then-Chinese Premier Li Keqiang in Phnom Penh, Cambodia to mark the 20th anniversary of the “milestone” Declaration on the Conduct of Parties in the South China Sea (DoC). There they reaffirmed “the purposes and principles of the Charter of the United Nations, the 1982 UNCLOS [U.N. Convention on the Law of the Sea], the Treaty of Amity and Cooperation in Southeast Asia, the Five Principles of Peaceful Coexistence, and other universally recognized principles of international law which shall serve as the basic norms governing state-to-state relations.”
Like the initial 2002 DoC, last year’s reaffirmation was a soaring, aspirational document, filled with pledges of mutual respect, self-restraint, adherence to international law and the freedom of navigation under UNCLOS, and the peaceful resolution of disputes “without resorting to the threat or use of force.”
And yet, like the DoC itself, this reaffirmation carried with it an element of farce. Every nation gathered there in Phnom Penh knew very well that the South China Sea now exists under the persistent threat and occasional use of force. It is a place where many disputes are not resolved peacefully, but rather by the application and threat of violence by China, the Declaration’s most powerful signatory, which has set itself up as police officer, judge, jury, and jailer over all the others.
Far from respecting international laws, China has brazenly ignored and discarded both the central features of UNCLOS and the 2016 arbitral tribunal ruling that clarified UNCLOS’ application the South China Sea. China has ignored the clear statements contained in UNCLOS in favor of a sweeping and unilaterally declared “indisputable sovereignty” over waters that are fairly apportioned to its neighbors.
Beijing now 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.
China’s neighbors have thus been subjected to a slow and inexorable invasion over the two decades since the DoC was first inked. They saw the world stand by as China unilaterally upended the South China Sea status quo by carrying out an audacious artificial island construction program, in clear violation of the Declaration’s principles of self-restraint and avoiding disruption and escalation.
They also watched when in 2015 Chinese President Xi Jinping stood in the iconic White House Rose Garden and promised then-U.S. President Barack Obama that “China does not intend to pursue militarization” of its artificial islands, and then again as Beijing promptly began staging combat ships and aircraft from these same bases, while also arming them with advanced missile systems.
China now uses these same military bases to forward-deploy the rapidly growing number of coast guard and militia ships it uses to enforce its will. From advanced naval port facilities at Subi, Mischief, and Fiery Cross Reefs, these ships routinely harass legitimate fishing and hydrocarbon exploitation activities off its neighbors’ coastlines, deep within their legal exclusive economic zones.
The China Coast Guard now continuously asserts jurisdiction over Vietnam’s oil and gas fields at Vanguard Bank and Malaysia’s at Luconia Shoals, where its large cutters roamed freely for over 300 days in 2022. Early this year, after Vietnam and Indonesia amicably agreed to develop the Tuna Block gas fields in the North Natuna Sea, China dispatched the world’s largest coast guard ship to patrol and intimidate lawful activities in those very same waters.
Does this sound like a country that has upheld its DoC obligations to renounce threats of force or escalating disputes?
As troubling as these incursions are, however, it has been the Philippines that has borne the brunt of Beijing’s South China Sea 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 it now projects power deep into their internationally recognized exclusive economic zone.
It is they who suffer the outrage of China’s ongoing illegal blockade of the Philippines’ naval garrison at Second Thomas Shoal. Because this year Manila has bravely turned on the cameras, the world has now borne witness to the lengths to which China has gone to isolate the Filipino troops stationed at that lonely outpost. From the use of lasers and water cannons to swarming, blocking, bow-crossing, and even colliding with Philippines vessels, Beijing’s belligerent tactics have clearly demonstrated how other nations’ freedom of navigation extends only where it is convenient to China.
The same regime that carried out its audacious South China Sea artificial island and military base construction campaign after signing the DoC, which should have constrained it, now claims its near-total blockade is justified because the Philippines might bring “construction materials” out on small wooden boats to repair a rusty ship.
Regional governments continue to support CoC negotiations, but doubts about their prospects must now be severe. After all, what evidence has emerged that there will ever be an acceptable outcome to these interminable talks, or that any eventual agreement short of ASEAN capitulation might prompt any meaningful changes to China’s aggressive behavior?
On the contrary, all the evidence points to the opposite conclusion.
China agreed to UNCLOS in 1996, but now rejects its applicability to the South China Sea as well as the judgment of the arbitral tribunal ruling that reaffirmed it. Moreover, China agreed to the DoC in 2002 and reaffirmed it last year, but now routinely and openly violates its most basic principles.
Given the overwhelming indications to the contrary, what could make any reasonable person believe that China will ever agree to a fair and enforceable CoC, or will submit to enforcement by any authority not subject to Beijing’s veto?
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 South China Sea because all “relevant” countries have acquiesced to it.
The fact is that the laws and principles that should constrain China’s aggression are already in place. UNCLOS – which has been signed by 167 countries, including all 10 ASEAN nations and China – plainly delineates every nation’s maritime rights, and the arbitral tribunal award further clarified their applicability to the South China Sea as well as China’s serial UNCLOS violations to date. The 2002 DoC, meanwhile, has overlaid reasonable standards of acceptable behavior among its signatories.
The only acceptable CoC would be one that acknowledges how thoroughly China has failed to uphold its obligations under settled international law and existing agreements, and has infringed upon the sovereignty of its ASEAN neighbors. Anything less would signal the surrender of their sovereign rights to the demands of a powerful aggressor state, and signal their tacit consent to make might the master of right.
Respect for sovereign rights and rejection of aggression are not extreme positions but fundamental tenets of international law, core principles of the ASEAN Charter, and the basis of the DoC. A strong and independently enforceable CoC would be a fine addition to this existing framework, but its prospects are extremely dim. We’re only discussing it because one country has thus far operated in such bad faith with regards to all the rest.