On May 18, China’s foreign ministry announced that Chinese and Southeast Asian negotiators had reached agreement on a draft “framework” for a code of conduct (COC) in the South China Sea. Some misreported the development, claiming that the two sides were on the verge of an accord to jointly manage the world’s most complex maritime dispute. Officials in Beijing were happy to let that narrative spread, while Southeast Asian officials hesitated to set the record straight and invite criticism. Despite the hype, the framework is not the long-mooted COC; it isn’t even a guarantee that China and ASEAN will ever negotiate one. Instead it is a delaying tactic and a public relations coup for Beijing—one taken from a playbook China has been running on ASEAN for 15 years, ever since it concluded the non-binding Declaration on the Conduct of Parties in the South China Sea (DOC).
Foreign Minister Wang Yi gave away the game during a June 12 press conference with his Singaporean counterpart Vivian Balakrishnan, making clear that Beijing isn’t even willing to discuss the substance of a COC yet:
I think as long as we continue to enhance mutual trust, deepen cooperation and get rid of interference from inside and outside the region, maybe more of interference from the outside, and after necessary preparatory work by all parties, we will be able to hold substantive consultations on the COC texts at a proper time until we reach important regional rules.
China and ASEAN inked the DOC in 2002, finalized guidelines for its implementation in 2011, and spent much of the last year negotiating a mysterious “framework” agreement. How much more “preparatory work” is needed before Beijing deems it the “proper time” for “substantive consultations” on a COC? The question is, of course, rhetorical. China has no intention of negotiating a COC with ASEAN—at least not one that would be robust enough to manage tensions in the South China Sea. Beijing is unwilling to make any of the concessions that would be necessary for such an agreement.
The text of the “framework” remains secret, at least until after it is submitted to the Chinese and ASEAN foreign ministers during their August summit in Manila. But we know enough to be skeptical if not downright dismissive. A draft obtained by the AFP described the agreement as “a set of norms to guide the conduct of parties and promote maritime cooperation in the South China Sea.” That sounds an awful lot like the DOC—a set of non-binding norms to try and guide conduct rather than hard-and-fast rules to constrain it. ASEAN Secretary-General Le Luong Minh rightly pointed out in April that to be effective, a COC would need to be legally binding. But the foreign ministers of Malaysia and the Philippines have confirmed that the framework does not call for the eventual COC to meet that mark.
And that is not the only unresolved issue. China and ASEAN members have had no real discussions on where the framework, or an eventual COC, would apply. It is not as simple as saying “the South China Sea.” Would Beijing agree that the maritime space around the Paracel Islands are included, or just the Spratlys? What about Scarborough Shoal? Conversely, would all waters and seabed inside the nine-dash line be covered? That would mean waters and resources hundreds of miles from any disputed islets, off the coasts of Indonesia’s Natuna Islands for example.
The list goes on. According to Ian Storey of the Institute of Southeast Asian Studies, the draft framework includes “references to incident prevention and management, and establishing mechanisms to monitor the COC’s implementation” but no details of how to do so. Similarly, there have been no concrete discussions on how to pursue joint conservation, joint resource development, law enforcement cooperation, safe encounters between military forces, or the inevitable disagreements over interpretation of the accord. In other words, China and ASEAN have not negotiated any of the difficult issues that would be included in a real COC.
So why the hype over the framework? Officials in both Beijing and Manila have been successful selling the “agreement” to sympathetic media and casual observers as something more than it is. After a tribunal at the Permanent Court of Arbitration invalidated most of Beijing’s maritime claims in the South China Sea last July, Chinese officials were eager to avoid the expected diplomatic fallout. Luckily for them, Rodrigo Duterte had taken office as president of the Philippines just two weeks before and was eager to differentiate his administration from that of his predecessor by offering Beijing a diplomatic olive branch.
After seven years of steadily escalating tensions in the South China Sea, many others in the region were willing to give Manila’s more accommodating policy a chance, especially after the U.S. presidential election threw American commitment to the region and international law into question. Even those who remain skeptical of China’s intentions and the COC’s prospects, especially Singapore and Vietnam, have ended up hostage to the framework process. If they do not go through the motions and voice support, they will stand accused of playing spoilers and face retaliation from Beijing, as Singapore already has for its support of Manila’s arbitration case.
All of this means that next month, barring delays, the foreign ministers of China and ASEAN will agree to a list of vague aspirations that will look a lot like prior lists of vague aspirations reached over the last 15 years. Observers who put faith in this olive branch will be disappointed and a year will have been wasted, for everyone but China. While ASEAN claimants have been on their best behavior amid the framework discussions, China has continued to militarize its artificial islands and add new capacity to monitor, patrol, and project power throughout the South China Sea. When other claimants decide to try a different tack, they will find the environment more hostile to their interests and more skewed in favor of China than it was before the framework.
With any luck, the disappointing text that emerges this year will catalyze a more creative diplomatic effort among the Southeast Asian claimants. China is not yet willing to hold real negotiations on a COC, but that doesn’t mean that others must sit on their hands indefinitely. The ASEAN claimants should agree among themselves which maritime areas they consider truly in dispute and therefore within the scope of a potential COC. They should begin discussions on mechanisms for joint resource extraction, environmental and fisheries cooperation, and coordination of law enforcement activities, among other issues. That would amount to a real “framework” on a COC.
Those discussions shouldn’t be hobbled by ASEAN’s consensus-based decision-making; in fact, they shouldn’t take place under the ASEAN umbrella at all. The foreign ministers of Malaysia, the Philippines, and Vietnam held the first two meetings of a new claimants working group in 2014 (Brunei was invited but did not participate). That effort should be revived and expanded to include other involved parties, especially Indonesia and Singapore. Outside partners like Australia, India, Japan, and the United States can offer technical assistance if requested and lend their diplomatic support to the effort. Such an endeavor will help set a baseline for future discussions with Beijing and will cast China as the one slow-walking the COC process. It might even amplify voices within China that see more value in negotiating with ASEAN than a return to diplomatic isolation on the issue.