After more than a decade of stalled negotiations, the Association of Southeast Asian Nations and China have, since 2016, made headway on a Code of Conduct to govern their interactions in the South China Sea, where four ASEAN members — the Philippines, Vietnam, Malaysia, and Brunei — have made explicit territorial claims along with China, which has sought to assert what it calls historical rights to nearly the entirety of the disputed waters. States like Indonesia, too, have maritime claims that overlap with China, even as they don’t claim direct sovereignty. The Diplomat’s senior editor, Ankit Panda, spoke with Greg Poling, chair of the Center for Strategic and International Studies’ (CSIS) Expert Working Group on the South China Sea, on the results of a multinational expert effort to propose pathways to a realistic and actionable Code of Conduct. Poling is additionally the director of the Asia Maritime Transparency Initiative (AMTI), also at CSIS.
The Diplomat: The past two years, since the release of the 2016 arbitral tribunal award in the Philippines case against China and the coming to power of Rodrigo Duterte in Manila, have left many South China Sea observers pessimistic about the future of the region.
There has been considerable progress in the meantime between ASEAN states and China toward a Code of Conduct (COC), but the draft agreement appears to fall short on several measures. Do you see momentum toward a watered down Code of Conduct as virtually irreversible today or are there prospects to work toward something more robust?
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Greg Poling: I actually see the momentum on the current Code of Conduct effort as very easily reversible. There has been a lot of public agreement over the last two years on the desirability of a COC, but no appetite yet to deal with the tough issues that would make one possible. The 2017 framework on the COC had less detail than the 2002 DOC. Now, other than the Philippines, no party to the disputes has signaled that an agreement is close. In fact, [Chinese Foreign Minister] Wang Yi and [Singaporean Prime Minister] Lee Hsien Loong have both pretty clearly told observers not to expect a COC in the near term.
More worryingly, the single draft negotiating text leaked by Carlyle Thayer [here in The Diplomat] is filled with poison pills that could derail the talks. China’s demands that it have veto power over other claimants’ military exercises with third parties or that companies from outside the region be excluded from oil and gas work, for instance, are not going to get the approval of other parties. But others, including Indonesia and Vietnam, have also made proposals in the draft text that are non-starters.
So no, I don’t see momentum toward a watered-down COC as irreversible. In fact, I think the only way a COC likely gets done at all is if the parties grapple with the tough issues that they’ve been avoiding to date, which is exactly what we tried to do in this project.
Can you tell us a bit about the process that led to this group coming together to work on these disputes? Were you confident that you’d end up with the kind of outcome that you did or was there more uncertainty going into the process?
Around the time that the text of the framework for the COC leaked last year, we decided surely it must be possible to envision a more detailed agreement than that. It was very easy to point out what was wrong with the framework, and what had been wrong with the COC process for the previous two decades. I had certainly joined in the chorus calling out ASEAN and China’s failures to grapple with the tough issues that would make an agreement workable. But could we move from saying what was missing and imagine how to fill in those details in a way that might actually work? From the start, our premise was that if an agreement were to be both fair and workable, then it would need to be consistent with international law and domestic law in all the countries, including China’s demands for historic rights.
The key was selecting the right people. The membership of the group would need to come mostly from claimant states; it had to be a regional effort, not an American think tank’s unsolicited advice. And we needed lawyers, policy wonks, and environmental experts who not only knew the subject, but were creative and intellectually flexible enough to recognize necessary compromises and find solutions if they existed. We started with the fisheries and environmental cooperation blueprint because it was both the most pressing (the fish stocks in the South China Sea will collapse in the next few years without drastic measures) and because it was legally the most flexible. I was pretty confident we would get that one done, but I wasn’t sure we would be able to reach consensus on the others.
https://thediplomat.com/2018/10/greg-poling-imagining-an-effective-south-china-sea-code-of-conduct/