Nguyen Minh Quang, Can Tho University, for East Asia Forum

In August 2018 a single draft negotiating text for a South China Sea Code of Conduct (COC) was first put forward with an agreement reached by China and ASEAN to finalise the COC within three years, starting from 2019. Having faced frequent tensions in the South China Sea, the agreement demonstrates that an effective diplomatic mechanism to manage the South China Sea dispute is possible.

But there are significant hurdles that reflect formidable differences among the negotiating parties on all important aspects of the COC. These include the undefined geographic scope of the South China Sea, disagreement on dispute settlement mechanisms, different approaches to conflict management, and the undefined legal status of the COC.

These conflicting views are an ominous signal of an ambitious yet weak and ineffective COC. One factor obstructing the negotiation process is China’s probable refusal to join a binding COC that appears to challenge Beijing’s aim to control the South China Sea. Yet without a legal and binding status the COC would be just as ineffective as the earlier Declaration of Conduct.

More challenging is that the draft reveals the weak consensus among ASEAN countries in negotiating with China. Within ASEAN, a narrow understanding of individual members’ national interests has constrained attempts at enhancing regional cooperation and cohesion. This triggers concern that ASEAN’s norm of consensus building is no longer supportive of the region’s new security realities.

An issue here is what would happen if only ASEAN claimants reach agreement on issues related to the South China Sea vis-a-vis China while non-claimant ASEAN members remain neutral or refuse support. One indication was ASEAN’s historic failure to issue a joint communique at the end of the ASEAN Foreign Ministers’ Meeting in July 2012 in Phnom Penh when Cambodia was the ASEAN Chair. Similarly, the Philippines’ efforts to evade any mention of China’s land reclamation projects at the 30th ASEAN Summit in Manila in April 2017 sought to appease Beijing by minimising the internationalisation of the South China Sea issue at the expense of ASEAN unity.

Beijing’s ‘divide and conquer’ strategy has resulted in a disunited ASEAN on the South China Sea. These incidents should make clear that China’s influence in ASEAN is palpable and that ASEAN needs to reconsider its 50-year old consensus norm in the face of emerging security threats and new realities.

Next year will be critical for the agreed-upon three-year COC negotiation process and for the future of the South China Sea. While it is unlikely that China will ratify a legally-binding COC and the existing lack of consensus within ASEAN remains a prominent hurdle, opportunities exist to build self-reliance and security coherence to address dispute management issues among claimant ASEAN states. Self-reliance empowers ASEAN to protect its collective values and peoples without compromising the ASEAN community for individual members’ own national interests.

Vietnam, as the upcoming 2020 ASEAN Chair and as a non-permanent member of the United Nations Security Council (UNSC) for the 2020–2021 term, has ample opportunity to propose which kind of approaches should progress during ASEAN–China COC negotiation talks. The new ASEAN Chair will need to focus on laying the foundation and harmonising standards for consensus and unity building in ASEAN.

The adoption of the ‘ASEAN minus X’ formula or ‘flexible consensus’ principle is an alternative that is worth considering. That the ASEAN Convention on Counter Terrorism came into force in 2011 after ratification by its sixth ASEAN member before its full ratification by all ASEAN members in 2013 suggests that the ‘ASEAN minus X’ formula can be adjusted to apply on an ad hoc basis to other areas of security cooperation.

It could enhance ASEAN’s response to the South China Sea challenges without undermining intra-bloc cohesion. Hanoi can kick-start such a principle by uniting littoral ASEAN countries through deeper defence diplomacy and maritime security cooperation initiatives, confidence-building efforts, shuttle diplomacy and fact-finding, with or without the endorsement of all members.

A COC is not just for dispute management and stability building in the South China Sea but should emphasise freedom of navigation and the human security of voiceless fishery communities in littoral ASEAN countries. Universally recognised principles of international law, including the United Nations Convention on the Law of the Sea and the Code of Unplanned Encounters at Sea, must be integrated into the COC.

The costs associated with a non-binding COC and diverging ASEAN interests in the South China Sea could be far-reaching and counterproductive to the values of peace, stability and inclusive development that international interests and littoral ASEAN peoples demand. Preparing to accept Chinese maritime dominance in the region or becoming more assertive to oppose China’s coercive actions will not be an easy choice.

Nguyen Minh Quang is a researcher at Can Tho University and currently a PhD researcher at the International Institute of Social Studies (ISS), Erasmus University Rotterdam.

The author would like to express his special thanks to the reviewers for their positive comments and the authors whose publications were cited in this work.

Link to the original article can be found here.