What’s Next if the South China Sea Code of Conduct Negotiations Fail?
By Aristyo Rizka Darmawan
Published on 12 June 2023
The ASEAN-China South China Sea Code of Conduct (CoC) negotiations have resumed and picked up pace after the COVID-19 pandemic restrictions eased. Despite the optimistic statements expressed by ASEAN leaders and that Indonesia as the incumbent chair of ASEAN has been pushing the negotiations forward, the CoC instrument that aims to ensure and maintain peace and security in the disputed area is still far from being concluded. This is due to the diverse claimant and non-claimant state positions. These include, for example, the geographical scope of the CoC. On one hand, China wants the nine-dash line to be included in the geographical scope of the CoC. On the other hand, ASEAN countries do not agree with such a proposal as the line cuts deep into many ASEAN states’ territorial waters and opens up even more complicated disputes. This has been Indonesia’s longstanding position. Any recognition of the line would mean that Indonesia would then have an overlapping claim with China. This is something that Indonesia has always avoided because it wishes to maintain its status as a non-claimant. Given the status quo, it seems that there are no ways all these countries can agree on these issues. In such a scenario and in the event that the CoC negotiations fail, what other options do ASEAN and China have?
The CoC is not the only mechanism for dealing with the dispute. There are some other options that can be explored by ASEAN and China. First, according to Article 287(1) of the United Nations Convention on the Law of the Sea (UNCLOS), State parties may make a declaration choosing settle such disputes through an international tribunal such as the International Court of Justice (ICJ), the International Tribunal on the Law of the Sea (ITLOS), ad-hoc arbitration (under Annex VII of UNCLOS) or a ‘special arbitral tribunal’ constituted for certain categories of disputes (established under Annex VIII of UNCLOS). Under UNCLOS, state parties are bound to a compulsory dispute settlement mechanism under Article 287(1); through a written declaration, state parties may choose one or more means of dispute settlement to resolve disputes among parties regarding either through interpretation or application of UNCLOS.
However, considering China’s attitude toward the 2016 special arbitral tribunal brought by the Philippines towards China, it is unlikely that other international dispute settlement mechanisms will be effective in settling the dispute. China argued that the case brought by the Philippines was done in bad faith. Moreover, China argued that in 2006, they made a declaration pursuant to Article 298 which excluded disputes concerning, among others, maritime delimitation, historic bays or titles, military, and law enforcement activities from the compulsory dispute settlement mechanism under UNCLOS Article 280. Therefore, it is most likely that China will have the same attitude, in disregarding any international dispute settlement mechanism, as they did in 2016.
Secondly, each claimant in the South China Sea can negotiate bilaterally with China for the specific maritime dispute(s) that they have, including negotiating issues surrounding entitlement and/or maritime boundary delimitations. With such agreement, China and each claimant negotiate a bilateral provisional agreement on issues such as the limits of law enforcement or resource management while the main features entitlement and boundaries delimitation are being negotiated. Some ASEAN countries have also done this kind of arrangement in the past, one example being the Indonesia and Malaysia Memorandum of Understanding (MoU) Common Guidelines. Through this MoU, Indonesia and Malaysia agreed to some law enforcement limitations in unresolved maritime boundaries. For instance, there will be no law enforcement to small scale fisheries that go fishing in the unresolved boundaries between Indonesia and Malaysia, unless they are involved in other crimes such as drug trafficking. This is important as in many circumstances there are often escalations between law enforcement institutions in an undelimited maritime area in regard to who is able to enforce their domestic law. As a result, it successfully decreases escalation and tension between law enforcements from both countries in the undelimited maritime area between Indonesia and Malaysia.
However, these negotiations might last for an extensive period of time. The negotiation between Indonesia and Malaysia for instance took over thirty years to conclude. Another problem is that bilateral negotiations between individual ASEAN countries and China would have a significant power imbalance between the two, this is a difficult situation given the unequal economic and military capacity between ASEAN claimants vis-à-vis China. Therefore, to mitigate these very long years of negotiations, as well as to ensure legal certainty over law enforcement and resources management, they can still bilaterally negotiate a provisional agreement under Article 74(3) and 83(3) of UNCLOS. This provisional agreement under UNCLOS is viable for the South China Sea dispute. This is due to the fact that it will not be dealing specifically with the geographical area which is the very contested issue in the CoC.
The third possibility is that ASEAN claimant states can conclude a CoC among themselves and exclude China. This might be simpler because they can make a CoC based on their overlapping claim under UNCLOS. Currently, all ASEAN claimants in the South China Sea have based their claim under UNCLOS, the main problem is, in practice, when it comes to negotiation with China over its nine-dash line. Under the 2016 Tribunal, the nine-dash line has been regarded illegal under international law, therefore this should not be considered as a legitimate claim under CoC. This CoC will only be implemented in a location where there is an overlapping legal claim based on UNCLOS and demonstrate that ASEAN countries are able to manage their differences and agree upon a CoC without China.
The problem with such an arrangement, however, is that China will be against such an initiative because it will disregard China’s claims in the South China Sea. Furthermore, it will not be effective in maintaining peace and security in the disputed area because in the past years, China has often provoked aggressive action in the South China Sea. If China is not included in such an arrangement, an exclusive CoC is likely to be ineffective.
Even though these three options are legally possible, politically speaking it would be difficult to achieve any of them due to the vastly different interests as well as unequal geopolitical positions between China and other ASEAN claimants. It would be as challenging as concluding a legally binding CoC. However, forfeiting on diplomatic mechanisms and dialogue in the South China is also not an option. As Collin Koh argues, the most important feature about the CoC negotiations process is that it allows diplomacy to continue functioning. This is necessary because without such a forum for communication and a continuous dialogue, it would increase the likelihood of the dispute to escalate, or worse, turning into an open conflict or war.
Even though it seems unlikely for them to reach a legally binding document or other comprehensive agreement on the South China Sea, all claimant states should still make a venue for diplomatic efforts, conduct communications to build trust as well as to mitigate and decrease tension in the disputed area. Such alternatives would not result in legally binding documents that deal with the problem of the dispute, but more like an activity between stakeholders on a particular issue which can build trust and communication among claimants.
Therefore, the remaining option that ASEAN and China have is to pursue more ad-hoc and sectoral cooperation in the disputed area instead of a comprehensive rule that can be applied in the whole dispute area. One example, such as what has been done by the Workshop on Managing Potential Conflicts in the South China Sea, where claimants countries and other interest country can talk and discuss any collaboration in the disputed area. For example, on tackling non-sensitive issues in the South China Sea, involving all claimants and concerned parties. These could include cooperation and activities on non-sensitive issues such as search and rescue, disaster response, cooperation on marine environmental protection, and marine scientific research. Even though these efforts might only have passed significance in resolving the dispute, this might build trust among claimants. This type of collaboration does not really focus on the main dispute, but only tackles related issues.
Therefore, considering the difficulties of the CoC negotiations, all claimant states need to start exploring other possible mechanisms in the South China Sea beyond the CoC. Such mechanisms will most likely be issue-specific instead of legally binding ones that deal with the entire disputed area. The most important thing is that there should be communication and diplomatic mechanisms among claimants because this would help to decrease the possibility of tension and escalation as well as to maintain peace and security in the disputed area. Consequently, the risk of giving up a diplomatic mechanism and communication could be dangerous for the region.
Aristyo Darmawan is Ph.D. Scholar at the College of Asia, the Pacific, Australian National University (ANU) in Canberra, and a Lecturer in International Law at Universitas Indonesia. His research focuses on the intersection between foreign policy, law of the sea, and maritime security in Southeast Asia.