China and the Association of Southeast Asian Nations (Asean) had agreed to complete negotiations and adopt a formal Code of Conduct in the South China Sea by the end of this year.
Southeast Asian nations have been pressuring China for almost two decades to agree to a set of rules on how to behave in the disputed waters, avoid accidents that may lead to limited conflict and stop all six claimant-states from occupying uninhabited features in the strategic waters.
The two sides were rushing against a three-year deadline to adopt a formal code this year until the coronavirus pandemic broke out last year, preventing face-to-face meetings to discuss sensitive issues. Some things could not be discussed through remote conferences.
But the negotiations could face further delays after China passed new legislation allowing its coast guard to fire at foreign vessels to protect its national interests in waters where it claims to have sovereignty.
It drew immediate protests from countries in the region as well as from other regional powers, accusing Beijing of escalating tensions in one of the busiest sea lanes where more than $3 trillion worth of sea-borne trade passes every year.
Beijing sought to allay fears over its new coast guard law, saying it conforms with international norms and is not directed at any country. It claimed such law was not unique to China.
But some Southeast Asian states, particularly three claimant-states, expressed deep concerns as they have fishing fleets, navy and coast guard vessels operating the disputed areas.
They feared China’s coast guard law would become a license for its armed law enforcement vessels to shoot and sink other ships in the disputed seas as it has been their practice to attack other vessels.
For instance, China sunk Vietnamese fishing boats in the Spratlys and Paracel islands after firing water cannons and ramming smaller ships. The Chinese coast guard also fired water cannons against Filipino fishermen to drive them away from Scarborough Shoal and a fishing boat was sunk in the Reed Bank.
Last year, the Philippine Navy’s corvette, BRP Conrado Yap, was harassed by a Chinese warship, training its radar gun on the vessel as it was en route to Commodore Reef, one of nine features occupied by the Philippines in the South China Sea.
The Philippine Navy has also complained that Chinese warships do not respond when called on the marine radio band, a standard procedure when ships come across each other at the high seas.
The possibility of miscalculations and accidents in disputed areas increases with the new law as China aggressively asserts its sovereignty, ignoring a landmark decision won by the Philippines in 2016 from the Permanent Court of Arbitration.
China staked its claim on the South China Sea in 1949 on the basis of historical accounts, saying the entire sea was a Chinese lake during the Ming dynasty. But it had no occupied territory.
China’s expansion began in 1988 after it defeated the Vietnamese Navy in a brief sea battle near Fiery Cross Reef, which the former occupied. China also occupied several reefs and atolls in the Spratlys and got full control of the Paracels, also in the South China Sea.
Alarmed over China’s aggression, the Association of Southeast Asian Nations (Asean) issued a political document on the South China Sea in 1992 during a summit in Manila.
The Manila Declaration called on Southeast Asian nations to resolve the dispute in a peaceful and diplomatic manner, explore non-military cooperation and call on other parties, particularly China, to subscribe to the declaration’s principles
Three years later, it built a makeshift shelter for fishermen in a half-submerged Mischief Reef, well within the Philippines’ 200-mile exclusive economic zone (EEZ).
Over the years, the makeshift shelter was transformed into a concrete fortress. It is now an artificial island with an airstrip and a protected naval base.
Asean was able to convince China to sign an informal code of conduct, known as the Declaration on the Conduct of Parties in the South China Sea in another summit in Phnom Penh in 2002.
Asean did not stop there, and tried to convince China to agree to sign a more legally binding Code of Conduct.
China did not commit to any agreement, delaying the negotiations until it began building seven artificial islands and expanded its presence in the South China Sea by deploying hundreds of navy, coast guard, militia and fishing vessels.
Some of the vessels have encircled features occupied by Vietnam and the Philippines while patrols were sent to Malaysian-occupied territories as well as waters around Brunei and eastern Malaysia, off Sarawak.
In 2014, a non-binding agreement that provides safety procedures as well as basic communication and maneuvering instructions for navy ships and aircraft to follow during unplanned encounters at sea was adopted by 21 navies, including China and Asean members.
The code, which China initially blocked, was first proposed by Western navies in 1998 to avoid accidents and miscalculations brought by some navies’ practice of not responding to radio signals or calls.
Two years later, China invited Asean navies to a first naval drill away from the disputed territories to test the non-binding CUES — Code for Unplanned Encounter at Sea.
In 2017, China finally committed to sign a Code of Conduct by agreeing to a framework in a summit in Manila and in August 2018, both sides agreed to a single text of a draft Code of Conduct.
Before the coronavirus pandemic, the two sides agreed on the first reading of the Single Draft COC Negotiating Text (SDNT). Little progress was made during the second reading last year.
Both President Rodrigo Duterte and Foreign Affairs Secretary Teodoro Locsn Jr were getting impatient on the slow pace of negotiations, proposing last year to set a timeline for its adoption in 2021.
The adoption of the code has become doubtful by the end of the year as there are more substantive issues unresolved. The Philippines has requested a face-to-face meeting this month to put back on track the negotiations and fast-track discussion to meet the 2021 deadline.
But China’s new coast guard law could throw a monkey wrench into the negotiations. China has to formally explain the new coast guard law, including its intentions.
China has a very bad habit of breaking non-binding agreements. The 2002 Phnom Penh informal code was disregarded when it constructed artificial islands. The 2020 harassment of BRP Conrado Yap was violation of the 2014 CUES.
What guarantee can China make that it will abide by a more binding Code of Conduct in the South China Sea and restrain its coast guard from applying the new law?
Asean should not wait for another incident at the disputed South China Sea to hold China accountable for its actions.