Chasing an elusive South China Sea code of conduct

Involvement by ASEAN in the South China Sea dispute began informally and incrementally. As Malaysia, the Philippines, Vietnam, Brunei, China, and Taiwan firmed up their territorial claims, tensions increased in and outside the region.

From 1990 to 2002, Indonesia, with funding from Canada, hosted a series of Workshops on managing potential conflict in the South China Sea. 

Although dubbed a non-official activity to which the participants came in their “individual, private capacity,” the workshops, in the words of former Secretary General of the Association of Southeast Asian Nations, Rodolfo Severino, had “an ASEAN aura” to them.

The group cannot evade the issue as four members are involved in the dispute. 

In the late 1980s, China became more assertive. Sixty-four Vietnamese sailors died when they clashed with Chinese forces in the Spratly Islands in 1988.

Heighten tension

In February 1992, Beijing passed its Law on the Territorial Sea and the Contiguous Zone, which claimed sovereignty over most of the maritime trade route. In July 1992, in the face of heightened tension, ASEAN issued its Declaration on the South China Sea.

It underscored the importance of maintaining peace and stability in the area.

In March 1995, impelled by the discovery of Chinese structures constructed on Mischief Reef, which Beijing argued were intended to provide refuge and support for fishermen in the region, ASEAN issued its Statement on Recent Developments in the South China Sea. 

It again stressed the need to maintain peace and stability in the region through peaceful resolution of disputes and adherence to international law, particularly the United Nations Convention on the Law of the Sea or UNCLOS.

Over time, it became apparent that Beijing’s actions were part of a broader effort to assert territorial claims, which led to the construction of military facilities on the reef in the 2010s. In earlier ASEAN-China exchanges, the South China Sea was treated as an after-dinner topic.

But as the dialogues gained traction, it became a central item in open discussions.

Guarded optimism swept the region in late 2002 when the group and Beijing signed a Declaration on the Conduct of Parties in the South China Sea. It was a watershed document.

Lingering distrust

The declaration was a dramatic departure from the assertiveness of the South China Sea dispute’s protagonists. Despite lingering distrust, it brought to the fore the possibility of cooperation and proved ASEAN’s ability to forge a unified position on a complex issue. 

It also demonstrated how China can be persuaded to recalibrate its position.

The declaration was expected to pave the way for a successor agreement – the code of conduct to prevent further escalation. But its absence has emboldened claimants to carry out expansion, fortification, coercion, and even environmental degradation in the area.

The overlapping claims in the South China Sea comes against the backdrop of a geopolitical rivalry between China and the United States. 

Even as ASEAN and Beijing strive to find common ground to craft a code of conduct, it would be foolhardy to drive out the US and other extra-regional stakeholders because they have their own strategic goals in the South China Sea.

The asymmetrical distances that group members maintain with the major powers translate into variations in their respective positions. 

Disagreements on how to respond to China’s actions following the Scarborough Shoal standoff prevented ASEAN from issuing a joint statement in its 2012 Foreign Ministers’ Meeting. Cambodia, then Chair of ASEAN and a close Beijing partner, came in for criticism.

Geographical scope

It is not surprising then that the group has not issued any official statement referring to the 2016 ruling of the Permanent Court of Arbitration. Even as the Court invalidated China’s expansive nine-dash line claim, the prevailing circumstances deterred ASEAN.

After more than two decades, several impediments to the code of conduct remain. 

Defining the geographical scope is both fundamental and contentious. China wants the scope limited to areas where it does not have complete control, while the Philippines and Vietnam seek inclusion of all disputed maritime features. 

As Beijing claims nearly 90% of the South China Sea, it makes sense for the code of conduct to include overlaps.

China also seeks a flexible, non-binding code, while ASEAN wants one that is legally binding. Having clear rules and mechanisms encourages compliance and accountability. Without this, the code of conduct would likely become an impotent document.  

Prohibiting military activities in the South China Sea is salient to preventing incidents. Limiting the installation of military infrastructure, weapons deployment, and military exercises would reduce the possibility of violent engagements.

For the Philippines and perhaps Vietnam, the involvement of external powers, such as the United States, translates into having a counterweight to China. Beijing insists on blocking external parties from engaging in security partnerships or exercises with regional states. 

ASEAN stresses that freedom of navigation and overflight be preserved in accordance with UNCLOS, which guarantees the right of passage for all states through international waters.

China also vows adherence to these rules, but in practice, it pushes back on freedom of navigation operations by rival outside powers.

Status quo

Despite their professed commitment to finalizing a code of conduct – including their latest 2026 deadline – progress has been slow. Renewed or intensified military activity in the South China Sea undermines a peaceful dispute settlement. 

Beijing benefits from the status quo as it stretches its military presence in the area. But ASEAN cannot afford to be oblivious as the disputed waters constantly and ominously change.

Jaime Naval is an Assistant Professor of Political Science at the University of the Philippines Diliman.

This article is republished from East Asia Forum under a Creative Commons license. Read the original here.

The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy of China Factor.