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Guest Column

The South China Sea disputes remains one of the enduring flashpoints between China and Southeast Asia. On November 2002, China and all 10 ASEAN members states agreed to the Declaration on the Conduct of Parties in the South China Sea (DoC) as the first region-wide step to manage the long-standing maritime tensions. While only Brunei, Vietnam, Malaysia, and the Philippines are claimant states in the disputed waters around the Spratly and Paracel Islands against China, all of ASEAN were committed to peacefully managing the disputes.

In general, the DoC includes a series of confidence-building steps to de-escalate tensions while allowing all parties to continue engaging in negotiations to eventually adopt a broader—stronger and perhaps legally-binding—Code of Conduct (CoC) for the South China Sea. The process of negotiating the CoC and the eventual final document would, so the argument goes, be the basis for future maritime delimitation talks between the claimants, as prescribed by the United Nations Convention on the Law of the Sea (UNCLOS).

In short, the CoC process was never explicitly designed as a final “dispute resolution” (in maritime delimitation terms) for the South China Sea. It was instead developed as a regional tension-management tool from which the process of engaging one another could lead to a peaceful resolution down the line. The DoC-CoC process, in other words, was a strategic wager on the part of Southeast Asia that confidence-building measures and habits of dialogue would be sufficient to manage the South China Sea disputes with its great power neighbour.

Has that wager paid off? The developments over the past decade seem to suggest so—for China at least, but less so for Southeast Asia. China has effectively asserted administrative and military control over key parts of the area, including building and militarising artificial islands, while challenging if not interfering, with the sovereign rights of Southeast Asian claimants to explore and exploit resources within their Exclusive Economic Zones (EEZs).

China has also ignored major international legal decisions such as the 2016 UNCLOS tribunal ruling that, among others, invalidated its so-called “nine-dashed line” claim over the South China Sea. All the while, the presence of the CoC has allowed Beijing to push the narrative that the South China Sea disputes should only be managed “internally” between China and Southeast Asia without the involvement of extra-regional powers like the United States.

Southeast Asian claimants on the other hand continue to struggle with China’s coercive tactics in their disputed waters. This is partly due to their own domestic political constraints and economic ties with China, and partly because there is simply no other diplomatic tension-management option on the table. Over time, Southeast Asian claimants have also found it politically expedient to side-step the need to publicly clarify their own claims under UNCLOS and finalise delimitation talks with their neighbours—they quietly refer instead to the need to finish the CoC process first. The strategic wager then has become a sunk-cost and evolved into a buck-passing convenience.

With no clear end in sight to the CoC process, and with the strategic equation increasingly tilting in China’s favour, analysts have begun to wonder whether the time has come for ASEAN to abandon the process. To address this question, we invite three Southeast Asian analysts to examine the promises and pitfalls of the CoC process.

Bich Tran, a non-resident fellow of the Center for Strategic and International Studies in Washington, argues that ASEAN should abandon the South China Sea CoC process because “it has been neither productive nor viable”. Southeast Asian states should instead focus on more effective measures, including pursuing international judicial means such as going through the UNCLOS tribunal route like what Manila embarked on back in 2014.

Aristyo Rizka Darmawan, an international law lecturer at the University of Indonesia in Jakarta, however, contends that ASEAN should not walk away from the CoC process because it could be “the only way to ensure China’s compliance” with a rules-based order. He notes however, that the support for the CoC should be conditional on its ability to develop mechanisms that respect and strengthen international law while getting China to comply with a rules-based order in the South China Sea.

Finally, Collin Koh, a research fellow at the Institute of Defence and Strategic Studies in Singapore, submits that while the ASEAN-China CoC process may fall short of expectations, it remains necessary to maintain confidence-building mechanisms and keep the diplomacy functioning. He adds, however, that without effective compliance, verification, and enforcement provisions within the CoC to address possible violations in the future, the document risks becoming “an abject failure”.

The authors presented their arguments at a public webinar on 20 May 2022 (video link here). The debates during the webinar—and as you will see in the pages that follow—suggest that there is no consensus among regional analysts on whether ASEAN should back away from the CoC process. The authors highlight the trade-offs, options, and challenges to either walking away or sticking through the process. But they also compellingly argue that simply going through the motions of performative tension-management through the CoC is no longer sufficient. It is high time that Southeast Asian policymakers re-assess the assumptions and deliverables of the two-decades-old CoC process. We hope this latest edition of Counterpoint Southeast Asia could be a small contribution to that effort.

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Evan A. Laksmana is a Senior Research Fellow at the Centre on Asia and Globalisation (CAG) at the National University of Singapore’s Lee Kuan Yew School of Public Policy and is the editor of Counterpoint Southeast Asia.

Image credit: Flickr/U.S. Pacific

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