Let’s face reality. The Chinese Communist Party is winning its battle for strategic control of the South China Sea. Last month, a Chinese Coast Guard ship rammed and sank a Vietnamese fishing boat. A Chinese government vessel commenced an illegal survey in Malaysian waters. Earlier this year, a warship threateningly aimed its target acquisition radar at a Philippine navy vessel. On the legal front, Beijing just established two new administrative districts to manage its unlawful maritime claims across the South China Sea, and its Coast Guard is busy enforcing Chinese domestic fishing regulations in international waters.
This isn’t routine Chinese bad behavior. It’s not opportunism associated with coronavirus nor typical springtime maritime assertiveness. No, this is strategic. China has embarked on a new phase of its aggressive campaign to control the South China Sea. Its target this time is the ongoing Code of Conduct (COC) negotiations with the 10 ASEAN nations, where the future rules of the road for the South China Sea are being crafted. The outcomes of these negotiations will have implications for international maritime security throughout the South China Sea for decades. China’s efforts to assert control of this body of water is a way for Beijing to gain leverage over ASEAN in these critical negotiations.
We’ve seen the prequel. It featured Beijing’s declaration of its fictitious “nine-dash line” and its construction of artificial islands. The opening credits of the main feature are scrolling now. International norms and standards that govern the South China Sea are at stake. Washington can ensure a favorable ending to this movie with proactive steps to influence the final contents of the COC.
Chinese and ASEAN attempts to craft a COC have been underway for decades. Last year, efforts accelerated. Negotiating parties agreed to finalize the COC within three years. Coronavirus, negotiating differences, and recent maritime tensions, however, will cause delays. Nevertheless, ASEAN and China are committed to working towards an agreement.
The objective of the COC is to establish a rules-based framework containing a set of norms to guide conduct and to promote maritime cooperation in the South China Sea. Depending upon its final contents, Beijing may be able to restrict United States military exercises, prevent U.S. oil companies from partnering in the region, or limit fishing. It’s in the interests of the United States, therefore, to ensure the COC final contents do not disadvantage U.S. national interests.
One of the major sticking points in the negotiations is the geographic scope of the COC. The current negotiating draft – known as the Single Draft Negotiating Text – does not address the area over which it will apply. It merely states that the COC is not an instrument to settle territorial disputes and that parties should not interfere in the internal affairs of other states. By establishing administrative and legal control over large swaths of the South China Sea, Beijing can negotiate from a position of strength. The Chinese Communist Party can claim its administered waters, features, and islands fall under the internal control of China and are not in dispute. This minimizes the scope of the COC and allows Beijing to emasculate it before it is even finalized.
Washington’s official position is that it wants a “a meaningful and effective COC … that upholds the rights of third parties and is fully consistent with international law, including as reflected in the 1982 UN Convention on the Law of the Sea (UNCLOS).” Underscoring this position during formal meetings with ASEAN leaders and encouraging partners to carefully consider the language of the COC will demonstrate Washington’s support for an agreement that favors U.S. national interests. Diplomatic emphasis on this issue also empowers ASEAN nations to counter Beijing’s most controversial insertions into the negotiating draft.
Washington should also offer legal support to Vietnam. Hanoi is considering submitting a claim to clarify its rights under Annex VII of the UNCLOS that would be similar to the Philippines 2013 legal arbitration case against China. The negotiating text indicates the COC will respect the sovereignty and territorial integrity of nations in accordance with international law. This elevates the importance of Hanoi’s legal move. An award in Hanoi’s favor could influence provisions of the agreement. Washington should assist with legal expertise and review its own archives to see if they contain holdings that might bolster Hanoi’s claim.
In addition, Washington needs to further demonstrate its commitment to the region. This will enhance ASEAN’s willingness to counter Beijing’s COC demands. In a recent poll of prominent Southeast Asia leaders by the ISEAS-Yusof Ishak Institute, only 27% picked the United States as the foremost political power in the region. A commitment by the president, vice president, or secretary of state to attend the next U.S.-ASEAN Summit will improve these numbers. Moreover, it would complement recent official statements from Washington that address Chinese belligerence in the South China Sea and amplify United States Navy freedom of navigation operations.
China’s slow-motion seizure of the South China Sea continues. Beijing has now formalized administrative control and its law enforcement ships are policing the region. America’s response has not slowed China’s progress. Countering Beijing’s attempt to dictate COC contents will help thwart Chinese Communist Party efforts to transform the South China Sea into a Chinese lake. Washington should intensify its diplomatic engagement and improve perceptions of the U.S. commitment to the region to avoid this becoming a Chinese fait accompli.
Writen by Capt. Christopher Sharman, U.S. Navy, a national security affairs fellow at the Stanford University Hoover Institution. He previously served as a naval attaché in both Vietnam and in China. The views expressed herein are those of the author and do not reflect the official policy or position of the U.S. Navy, U.S. Department of Defense, or the U.S. government.