Is Beijing warming to South China Sea code of conduct?

One of the world's lengthiest diplomatic sagas - the decades-long marathon between Beijing and Asean to agree a code of conduct in the South China Sea - is back in the spotlight, with a recent surge in tensions in the disputed waters.

China, which has been accused of dragging its feet for about a quarter of a century, has taken a number of recent opportunities to show its support for an early resolution to the regional debate.

But diplomatic sources noted that while China is now proactively seeking a conclusion to negotiations, the Association of Southeast Asian Nations is in no rush, showing more interest in aiming for a meaningful result than a quick one.

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The switch in sentiment comes amid growing geopolitical tensions between Beijing and Washington, which has thrown its support behind the Philippines and other Asean members with territorial claims in the South China Sea.

China's recent push for an agreement may also not be enough to overcome chronic differences between Beijing and its neighbours on many crucial aspects of a maritime code of conduct in the contested waters, observers said.

Less than a month after China and the 10 Asean member states agreed to start on the third reading of the single draft negotiating text, the Philippines unveiled a proposal for a separate pact in November.

Dissatisfied with the "rather slow" progress of the talks, President Ferdinand Marcos Jnr said the Philippines had approached Vietnam, Malaysia and others to discuss their own rules and regulations in the contested waters.

While none of the parties has confirmed the timetable for the third reading of the draft text, they are said to be aiming to complete negotiations before Autumn 2026, according to an Associated Press report in July.

The report quoted an anonymous Southeast Asian diplomat who said the date was agreed during the Asean foreign ministers' conference in Jakarta, attended by China's Foreign Minister Wang Yi.

"There are still three years to go, but it is fraught with difficulties [to sign a deal]," said Song Zhongping, a former instructor with the People's Liberation Army.

The main obstacles include potential interference from outside the region, the diverse views among some of the regional countries, as well as changing international politics, Song said.

If the code's gestation is approaching its final phase - and the consensus reached five years ago was for at least three readings of the draft - it is also likely to be the most difficult.

According to diplomatic sources with knowledge of the discussions, the first two rounds of talks covered only the least controversial parts of the proposal, and did not touch on the most contentious issues.

The sources described Marcos's proposal for a separate regional code excluding China as self-defeating.

Hu Bo, director of the South China Sea Probing Initiative (SCSPI), said the talks for the code's third reading are likely to be "very difficult and very complex" with each clause requiring unanimous agreement from all 11 countries.

"The negotiation of the code has indeed taken a very long time, but it is understandable," he said.

A draft framework leaked six years ago describes the envisioned agreement as "a set of norms to guide the conduct of parties and promote maritime cooperation in the South China Sea" but it is "not an instrument to settle territorial disputes or maritime delimitation issues".

Beijing and other claimants have been in contention since the 1970s over who controls hundreds of land features, as well as fishing and exploration rights, in the waterway that carries one-third of global shipping, as well as vast mineral, oil and gas resources.

Beijing claims sovereignty over almost all of the islands and rock features, as well as their adjacent waters, indicated by its "nine-dash line" and backed by history, it says.

The Philippines, Vietnam, Brunei, Malaysia and Taipei also claim some of these land features and waters, which sit within the 3.5 million sq km (2.17 million square miles) waterway.

For years, Beijing exhibited a passive, even grudging stance towards Asean's push for a code of conduct, which has been seen as a way to limit China's actions in the South China Sea.

Even after talks restarted a decade ago, China's commitment to establishing a code of conduct was perceived as a way to buy time, particularly for its land reclamations - estimated to cover at least 12 sq km (7.5 miles) - on its seven occupied features in the Spratly Islands.

Beijing's turnaround may be due in part to a perception that the extensive project in the Spratlys has strengthened its position at the negotiating table, according to observers.

Another incentive for China to step up progress on the code of conduct could be to reduce the regional influence of the US, which has increased its military presence and security interactions with allies in the waterway under its Indo-Pacific strategy.

The journey to a code of conduct began in 1992, when Asean issued its Declaration on the South China Sea, the bloc's first statement on the maritime disputes.

China and the Philippines agreed on several principles for a code of conduct in August 1995, after a stand-off between the two countries over Mischief Reef. Three months later, Manila also reached a consensus with Hanoi on nine basic principles.

Asean officially endorsed the idea of a code of conduct in 1996 and vowed to promote efforts to establish it in 1998. A year later, Beijing agreed to negotiations with the bloc to develop a code.

But unbridgeable differences between Beijing and other claimants - as well as divergences within Asean over the content, status and scope of the proposed rules - put paid to a binding agreement.

The compromise non-binding Declaration on the Conduct of Parties in the South China Sea (DOC) signed in November 2002 said all parties agreed to work towards the "eventual attainment" of a code of conduct.

Nearly nine years of stalling followed - with Beijing showing clear resistance to the Asean negotiations, insisting instead on bilateral dealings with other claimants - until guidelines for implementing the DOC were agreed in 2011, in Bali, Indonesia.

In 2013, Beijing and Asean revived formal consultations on the code, eight months after the Philippines - under the administration of former president Benigno Aquino III - initiated proceedings against China's claims in The Hague's Permanent Court.

It would take until 2017 for the 11 countries to adopt a bare-bones framework for the code - one year after The Hague concluded China's "nine-dash line" violated the UN Convention on the Law of the Sea (UNCLOS). Beijing rejects the decision.

Building on the framework, China and Asean agreed in 2018 on the single draft negotiating text - which has not been made public - and a road map of three readings, which China proposed to complete by 2021.

The Covid-19 pandemic delayed completion of the second reading until this year, when China and the Asean member states also agreed on guidelines to accelerate negotiations.

"The third reading ... means that the negotiations have formally entered the 'deep water' zone," according to Hu Xin, assistant research fellow of the National Institute for South China Sea Studies.

In a note published on October 30, Hu said that contradictions and divergences among all parties were about to surface.

Glaring areas of disagreement that are expected to test the third round of discussions include the document's undefined legal status, geopolitical scope, disputed settlement mechanism, criteria of self-restraint and the role of third parties.

While a legally binding code of conduct appears to be Asean's long-standing goal, China has shown a reluctance to embrace the same stance. Beijing has repeatedly said it wants an enhanced and upgraded version of the 2002 declaration.

China has also said it supports an "effective and substantive" code that is in line with international law, including UNCLOS.

According to Hu Bo from SCSPI, China is open on the issue of the code's legal status. "Whether it is binding or not depends on how the terms look," he said, noting that a binding code would regulate all signatories, not just Beijing.

When it comes to the explicit geopolitical scope of the code, both the DOC and 2018 draft text avoided specifics to get around the different positions of many countries involved in the disputes.

Carl Thayer, emeritus professor of politics at the University of New South Wales in Australia, wrote in 2018 that Malaysia and Singapore had wanted the code's geographic scope defined in the draft text.

Vietnam proposed that it should apply "to all disputed features and overlapping maritime areas claimed under ... UNCLOS", while Indonesia suggested that "the parties are committed to respect the exclusive economic zone and continental shelf of the coastal states as provided for in ... UNCLOS," he wrote.

Another bone of contention is whether the code will include a dispute settlement mechanism - pushed by several countries, including the Philippines and Vietnam, but treated with apparent caution by Beijing, without explicitly opposing it.

China's preference has been to address maritime disputes directly with the countries concerned rather than through international judicial bodies or compulsory arbitration. Beijing emphasises the code's precautionary role to "control" disputes.

All parties agreed in the 2002 DOC to exercise "self-restraint" - a notion introduced by Vietnam that was viewed as a means of freezing the status quo of island occupation and avoiding escalatory actions.

But subsequent negotiations revealed the claimants' differing understandings of the term, most notably in China, The Philippines and Vietnam's controversial reclamation and construction activities on controlled features in the Spratly Islands.

China has also upped the ante, with an instruction from President Xi Jinping on November 29 to the coastguard fleet to enforce China's laws and "resolutely defend" its territorial sovereignty and maritime rights.

China's coastguard, the world's largest, has been at the centre of recent clashes between Beijing and Manila over the disputed Second Thomas Shoal - known as Renai Reef in China and Ayungin Shoal in the Philippines.

Analysts at consultancy Trivium China said that "an aggressive coastguard makes consensus on a South China Sea code of conduct increasingly unlikely", in a note on December 4. "It will also push rival claimants to strengthen ties with the US."

The code's negotiators also have differing positions on the involvement of third parties like the US in the South China Sea.

In his 2018 note, Thayer included leaked details from the single draft negotiating text, containing a Beijing proposal for the code of conduct to ban joint military drills in the South China Sea with countries from outside the region without approval.

Thayer also wrote that China proposed a ban on cooperation in the marine economy with companies from "outside the region".

Asean has been China's largest trading partner since 2020, as well as a focus of Beijing's Belt and Road Initiative. But the South China Sea disputes remain a risky rift to be healed between the two economies, highlighting the code's necessity.

The final document is also seen as a way to help China to recover from any reputational damage from the 2016 arbitration ruling.

Zhang Mingliang, a Jinan University professor who specialises in South China Sea studies, said he was not optimistic that an agreement on the code would be reached, because the differences were "too big".

Even if a text is eventually agreed, the level of respect from all parties towards it was likely to be "very low", due to deeper mutual mistrust stemming from further protracted negotiations, he said.

SCSPI's Hu Bo said that a challenge for the negotiations was that some claimants, such as Manila and Hanoi had "a lot of thoughts".

"The negotiation process for the [code of conduct] is not [solely] up to China," he said.

This article originally appeared in the South China Morning Post (SCMP), the most authoritative voice reporting on China and Asia for more than a century. For more SCMP stories, please explore the SCMP app or visit the SCMP's Facebook and Twitter pages. Copyright © 2023 South China Morning Post Publishers Ltd. All rights reserved.

Copyright (c) 2023. South China Morning Post Publishers Ltd. All rights reserved.