Code of Conduct for South China Sea: Will Vietnam’s Chairship 0f 2020 Yield Results

Vietnam as ASEAN Chair in 2020 had raised the issue of South China Sea at the United Nations. Also, Chairman’s Statement of the 36th ASEAN Summit had “emphasised the need to maintain and promote an environment conducive to the COC negotiations”. Prime Minister Nguyen XuanPhuc had urged China to accelerate talks on an effective and efficient Code of Conduct (COC) on the South China Sea (SCS) between ASEAN and China in line with international law, including the 1982 UNCLOS. It was hoped that by 2021 the COC-SCS would be in place and bring about much needed respite to the other claimant States who continue to face aggressive posturing by China. Alas, that has not happened! Consequently, Brunei, being the current Chair of the ASEAN for 2021, will be disappointed.

There are at least three reasons that the COC-SCS may elude the ASEAN for some more time. First, the COVID-19 pandemic continues to play heavy in the minds of the ASEAN people given that it has disrupted their lives and the regional economy. There are also fears that the new mutations of the virus i.e. South African and British variant, are fast spreading and the second wave of the pandemic is already underway in many countries across the globe and could impact ASEAN Member States too. Also, many ASEAN countries have not yet secured sufficient COVID-19 vaccine doses for their people. It is quite natural that the ASEAN will remain focused on the pandemic which may preclude any meetings between the parties over the COC and the issue will spill over into the next year.

Meanwhile, ASEAN and China had resumed the working group meeting on COC through an on-line video conference on 3 September 2020. These were led by the Philippines who is the Coordinator of China-ASEAN Dialogue Relations and co-chair of the COC consultations. Earlier this year in January 2021, Brunei's second minister of foreign affairs told reporters that the COC-SCS is a “complex issue and it requires total diplomacy at work – not just negotiations, it will require physically meeting each other,” He was candid in admitting that “with COVID-19 and nobody wanting to travel… Negotiations won’t be done physically.”

Some even fear that the COC-SCS will continue to linger well into 2023 given that the next Chair of the ASEAN would be Cambodia which does not have any claims in the South China Sea and has a history of succumbing to Chinese pressures similar to the events in 2012.

Second, China’s new Coast Guard Act announced in January 2021 has caught the ASEAN nations by surprise. The Act, as is well known, provides exceptional powers to the Chinese Coast Guard to“restrain foreign military vessels and foreign vessels used for non-commercial purposes in waters under China’s jurisdiction from violating the laws or regulations of China” and even demolish “buildings, structures, and various fixed or floating devices" built by foreigners “in the sea areas and islands under our jurisdiction”. This prompted Antonio Carpio, a retired judge of the Philippines Supreme Court to note that the new Chinese Coast Guard Act had made the SCS-COC “dead on arrival”; however the issue has been down played and Presidential Spokesperson Harry Roque said the ASEAN member countries, particularly those who have claims in the South China Sea, continue to discuss the proposed COC.  

Third is about the recent Summit meeting of the leaders of the Quadrilateral Security Dialogue (QSD) or the Quad comprising Australia, India, Japan and the United States. It was the first ever Summit level engagement among the Quad leaders after President Joe Biden took over in January this year. It was a clear message to Beijing that the US remains concerned about the Chinese propensity to disregard a rule based international order, instead it promotes and practices intimidation, coercion and outright disrespect for human rights.

In an open warning to China, a joint opinion piece published by the four leaders in Washington Post states that the Quad members welcome “like-minded partners dedicated to advancing a common vision and to ensuring peace and prosperity” and “will seek opportunities to work with all of those who share in those goals”. Furthermore, the commentary notes that the grouping would “renew and strengthen our partnerships in Southeast Asia, starting with the Association for Southeast Asian Nations [ASEAN], work with the Pacific Islands, and engage the Indian Ocean region to meet this moment”. It is the latter which worries China that some of the ASEAN claimants to the South China Sea could gravitate towards the US. Beijing would prefer to watch how the ASEAN responds to the Quad’s offer to work with the grouping and there after take a call on the COC-SCS.

Closely associated is the issue of the European nations who have announced their pivot to the Indo-Pacific and their strategies for the region envisage dispatching navies to the South China Sea. There is also a view that an Atlantic Quad similar to the Indo-Pacific Quad could be developed and meetings could take place between the two blocks. Also, both blocks may even push for being included in the COC-SCS given that they too have interest in making the waters in the South China Sea safe and secure for free flow of commerce.

Dr Vijay Sakhuja is Consultant Kalinga International Foundation, New Delhi.

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