China-ASEAN South China Sea CoC Agreements

Geungchan Bae

Visiting Research Fellow

gcbae89@mofa.or.kr

     From the ASEAN-related summit held in Jakarta, Indonesia from September 5 to 7, 2023, one of the notable results was the issue of agreement between China and ASEAN on procedures for the adoption of the code of conduct. China and ASEAN countries have already reached an agreement through the ASEAN Foreign Ministers' Meeting in July to conclude negotiations to adopt a Code of Conduct by the next three years, 2026, and Indonesia, the ASEAN chairman in this year, even announced in advance that it would officially finalize through the China-ASEAN summit in early September. Nevertheless, at the China-ASEAN summit, such an agreement was eventually canceled. This is due to all of the South China Sea being marked as China's territorial waters on its standard map published by the Chinese government at the end of August, just before the ASEAN summit, and ASEAN countries, including Malaysia, have protested about such actions. In particular, the Philippines, which was enraged by the recent water cannon firing of a Chinese ship, directly criticized China and made clear its stand to defend sovereignty in the South China Sea.

     As is well known, China and ASEAN adopted the South China Sea Declaration of Conduct (DoC) in 2002 when territorial disputes between China and some ASEAN countries, including the Philippines, Vietnam, Malaysia, and Brunei, began to surface in the 1990s. Nevertheless, conflicts between China, Vietnam, and the Philippines and the construction of military bases, especially in some areas occupied by China, have caused constant problems and confrontations. In the end, after a long standstill, the two sides have begun negotiations to seek legally binding norms beyond the declaration of action in 2013.

     It was not until 2018 that the two sides could come up with a single draft of the code of conduct, at which time China expressed its willingness to complete negotiations by 2021. This was also interpreted as part of a domestic political framework for Xi Jinping's third consecutive term. However, by 2019, China and ASEAN had only confirmed incomplete differences in views as they completed the first reading of the draft, and have not made any progress. Since then, two sides have conducted one more closed reading of the draft, but the status of the draft remains still.

     This result is due to the difference in the interests and attitudes of the two sides engaged in negotiation. ASEAN argued it will not recognize China's exclusive sovereignty over the South China Sea through the establishment of a legally binding code of conduct and urges a quick conclusion of negotiations. On the other hand, China, which will not tolerate the loss of sovereignty over the South China Sea, intentionally delays negotiations to stop the adaptation of a legally binding code of conduct. However, China only pretends to continue negotiations in consideration of collective opposition from ASEAN countries. Therefore, it is unlikely that China and ASEAN will reach a smooth conclusion of the code of conduct or dramatic compromises in the future. Even if China concludes negotiations with ASEAN in the future, it will be obvious that China will insist it is only a guideline and is not a legally binding agreement. With recent China's consideration of the South China Sea issue on the same level as the Taiwan issue, this will serve as a major obstacle to future negotiations

     The biggest issue in the closed draft review process was the issue of restricting third-country activities in the South China Sea, a joint military exercise, and joint resource excavation. As is well known, this argument could cause a serious military confrontation between China and the U.S. in the future. While the U.S. insists the military operation as Freedom of Navigation Operation to defend their interest, China is responding to such action is allowed under China's prior permission. In other words, China is expressing its intention to veto military and economic actions by non-related countries such as the U.S. Therefore, this issue is a matter of great concern and important interest not only to the U.S., but also for allies of the U.S. such as Korea, Japan, Australia, and New Zealand. Recently, India has also expressed interest in this issue and urged compliance with international law. Moreover, Russia also has a reservation about such matters regardless of their favorable standing to China, so it is unlikely that China's will is to be continued.

     The Korean government's response to this issue has generally remained consistent and has become clearer in recent years. In particular, President Moon, who was criticized for being pro-China, emphasized the importance of non-militarization and freedom of navigation in the South China Sea through the 2019 East Asian Summit (EAS) and expressed his position that an effective code of conduct should be discussed in a way of respecting international law and the rights of all offshore countries. At the last East Asian Summit, President Yoon went one step further, adding that unilateral changes in the status quo by force are unacceptable, that a rule-based order should be maintained in the South China Sea, and that Korea will expand maritime security cooperation with ASEAN in the future. Now, South Korea has come to the point of taking joint steps with the U.S., Japan, and Australia on the South China Sea issue.​