The ASEAN’s attempt to extract a legally binding code of conduct for the South China Sea from China has been a long and laborious diplomatic journey. After nearly a decade and half, the efforts have partially paid off, and last month China agreed on a ‘single draft document’ that will form the basis of negotiations for a code of conduct in the South China Sea. Singapore, the country coordinator for ASEAN-China dialogue and the current chair of the ASEAN labeled the initiative as “yet another milestone”, and described the draft negotiating text as a “living document and the basis of future code of conduct negotiations”. However, Singapore Foreign Minister Vivian Balakrishnan, in the same breath, quickly cautioned that the CoC “was never meant to resolve territorial disputes” and given the “dynamic, evolving situation, I would be presumptuous to set a deadline for the negotiations on the code of conduct”.
Among many reasons which may have encouraged China to agree to ASEAN’s proposal of a common text for the code of conduct, at least three issues immediately come to mind. First, there has been a mounting international pressure on China to adhere to and practice a ‘rule based’ international order. This has been amply enunciated through the adoption of the Indo-Pacific strategy spelt out in the US’ National Security Strategy (NSS) released in November 2017 that calls for a ‘rule based’, ‘free’, ‘open’, ‘transparent’, ‘peaceful’ and ‘stable’ regional environment. The US has aggressively pursued its ‘freedom of navigation patrols’ before the announcement of the NSS and continues to do so challenging the PLA Navy in its backyard. More recently, US military aircraft made pass over the occupied island in the South China Sea inviting stern warnings from the PLA detachments deployed on the reclaimed features.
The second is the evolving Quadrilateral Security Dialogue (QSD) among Australia, India, Japan and the United States which promotes ‘free, open and inclusive Indo Pacific’; ‘rule-based order’; ‘Freedom of Navigation and over flight’; ‘respect for international law and sovereignty’ is viewed by China as a ‘containment strategy’ to check its peaceful rise.
Third, under the current circumstances, Beijing finds a dialogue with ASEAN over the South China Sea disputes a useful initiative to bide time and a logical choice to keep international pressure at bay. For ASEAN too, code of conduct for South China Sea is top priority agenda given that it has the potential to undermine the cohesiveness of the grouping as was witnessed in 2012 when the member countries could not reach an agreement on how to deal with China's claims on disputed territory in the South China Sea.
It is fair to argue that settlement of disputes in South China Sea will be a long haul despite Chinese concurrence to work on a common text for code of conduct. Perhaps the current geopolitics in the region involving Indo-Pacific as a strategy for the US, and QSD members agreeing to a common approach to the evolving geopolitics of the region only add to the prolongation of the discussions. China can be expected to put pressure on the ASAN to take lead and urge the QSD members to ‘back off’ and create diplomatic space for China and ASEAN to pursue the code of conduct. It also suits ASEAN to pursue its agenda of defending its centrality which had come under pressure with the evolution of the Quad.
Be that as it may, it was hoped that the arrival of Prime Minister Dr. Mahathir’s to the political scene is an opportunity for the ASEAN to take a new and fresh approach to the South China Sea disputes merits attention. In this context, his persona as a Statesman with enormous political experience and involvements in international diplomacy can be critical to the rewriting of ASEAN-China engagements particularly in the context of a legally binding code of conduct for South China Sea and other related issues such as freedom of navigation, etc.
Malaysia, one of the claimants and in occupation of the Swallow Reef or Lyang Lyang Island, supports a rule based order and the government remains committed to ensuring peace and stability in the region. Prime Minister Mahathir has vehemently argued and proposed low levels of naval presence and has suggested that the patrolling be conducted by maritime enforcement agencies. He can be expected to push for a new, though ambitious, ‘Mahathir Doctrine’ wherein South China Sea is free of warships and the safety and security of the region is entrusted with maritime law enforcement agencies.
However, this has not found favour in Beijing and if the joint statement on bilateral ties released after Prime Minister Mahathir visit to China in August 2018 is any indicator, they chose to agree on the usual and often repeated text ‘maintaining peace, security and stability, as well as safety and freedom of navigation in the South China Sea’ and ‘resolve their differences by peaceful means through friendly consultations and negotiations’ in accordance with the 1982 UNCLOS and Although the joint statement does make reference to ‘effective implementation of the Declaration on the Conduct of Parties in the South China Sea (DOC) and early conclusion of an effective COC’, Dr Mahathir has not been able to cut ice with the Chinese leadership on his suggestion of making South China Sea ‘free of warships’; at best they chose to agree that ‘all parties to exercise self-restraint in the conduct of activities, and to avoid actions that would complicate or escalate tensions in the South China Sea.’
Dr Vijay Sakhuja is former Director National Maritime Foundation, New Delhi and is associated with the Kalinga International Foundation, New Delhi.