The Code of Conduct on the South China Sea: Is it worth pursuing?

Panel presentation responding to First Ambassador Rodolfo C Severino Jr Lecture by Ambassador Alberto del Rosario, Carlos P. Romulo Foundation and Ateneo de Manila University, Manila, 26 August 2021 (Online)

I was pleased to receive the invitation from my old foreign ministerial friend and colleague Bobby Romulo to join this commemorative event in honour of your distinguished statesman Rodolfo Severino in order to give a non-ASEAN perspective on the issues raised by Ambassador Rosario in his excellent lecture, and by Bobby himself in his opening remarks.

I am pleased partly for nostalgic reasons – because as Australia’s Foreign Minister from 1988-96, as I wrote in my recently published memoir, “there was no group of counterparts anywhere in the world with whom I felt more close and comfortable than my South East Asian colleagues, despite the multitude of cultural and historical factors notionally dividing us”. But I am also pleased to participate simply because of the importance of the issues with which you are here wrestling, not only for the Philippines and ASEAN, but for the whole international community, and those of us within it who still have some attachment to the idea of a rules-based international order.

I cannot pretend that there is a single “non-ASEAN view” on these issues, any more than there seems to be a single ASEAN view on anything these days -- or that, if there was such a non-ASEAN view I would be uniquely qualified to present it. But I do discern very broad support, among most, if not all, of the other countries in the region and beyond, around the positions that I will spell out in my remarks – in summary, that China has been over-reaching in the South China Sea, and that while it is in no-one’s interest to precipitate any kind of military conflict, this is the time to be pushing back against it, and certainly not further accommodating it by accepting the kind of Code of Conduct, ignoring The Hague Tribunal ruling, that China is now insisting on.

The first of the four specific points that I want to make is that the 2016 ruling by The Hague Arbitral Tribunal established under Annex VII of UNCLOS demands the respect of the whole international community. The tribunal’s ruling in the case initiated by the Philippines was made, despite China’s refusal to accept its jurisdiction, completely in accordance with the dispute resolution rules to which China itself had signed up as a party to the UN Convention on the Law of the Sea (UNCLOS). And it was very comprehensively and compellingly argued. As most of the rest of the world has indeed now acknowledged, the decision cut the legal heart out of Beijing’s claim that the South China Sea is, in effect, a Chinese lake.

It ruled that China’s “nine-dash line,” is legally meaningless. It punctured any notion that international law now recognizes “traditional” or “historic” maritime claims not directly associated with land features for which sovereign ownership is possible: without land rights a state cannot claim sea rights. It made clear that China’s land-reclamation activity, turning submerged or otherwise uninhabitable reefs into artificial islands with airstrips or other facilities, conferred no new rights to the surrounding waters or any authority to exclude others from sailing or flying nearby. And it made unequivocally clear that any such construction activity was legally permissible only for peaceful purposes, and when not carried out on a feature within another country’s Exclusive Economic Zone (EEZ).

My second point is that China’s behaviour in the South China Sea has been in manifest defiance of The Hague ruling and demands push-back both by ASEAN and all those in the international community who value a rules-based international order. Whatever initial ambiguity there might have been about China’s massive construction activity on previously unoccupied features like the Mischief, Subi and Fiery Cross Reefs, it has become unequivocally clear in recent years that this construction has been for military, not peaceful, purposes: 3000 metre runways, naval berths, hangars, reinforced ammunition bunkers, missile silos and radar sites allow no other credible interpretation. In the case of Mischief Reef, within the Philippines’ EEZ, China has no legal right to engage in any construction activity at all. Although it is true that China has not in any way threatened freedom of commercial navigation through the major sea-lanes of the South China Sea –and is not likely to, because this would be totally counterproductive to its own national interests – it has, without any justification in international law, adopted a very threatening posture indeed in relation to freedom-of-navigation-operations by other countries within 12 nautical miles of Mischief Reef and the other contested artificial islands.

China has also acted with complete disregard for Philippines fishing and other interests around the Scarborough Shoal and Whitsun Reef, and for Indonesia’s EEZ in the resource-rich waters around the Natuna Islands. And it has engaged in ongoing harassment of energy projects involving “companies from outside the region” in the Philippine, Vietnamese, and Malaysian exclusive economic zones. All of this adds up to a formidable case for ASEAN, especially its littoral states, and indeed any state which values the observance of international law and decent, respectful international behaviour, to push back against this Chinese overreach. The big question is how that should happen.

My third point is that the form that push-back should take should not involve unnecessary provocation or risk-taking, but should send a strong and consistent message to China - that there are limits beyond which its over-reach will not be accepted, and that it is in its own long-term interests to accept them. The messages that will count most for China in this respect are those, as always, coming from the United States; but also from the other Quad countries (Japan, India and Australia) plus South Korea, which is showing increasing interest in being associated with the Quad; from the major ASEAN players, particularly Indonesia and Vietnam; and from the EU and UK, all of whom have expressed concern at what has been happening.

Only the US has so far shown the will to use its military resources to overtly challenge Chinese authority, through its FONOPS operations close inshore to Mischief Reef and the other contested installations, and it is important that these continue at regular intervals. Other countries outside the region, my own included, have been keen to assert freedom of navigation rights generally in the South China Sea, but not in its most obviously sensitive areas, for fear of getting into a confrontation from which, with our much more limited capacity than Washington’s, extrication might not be easy.

But it has to be said that there are increasing doubts (compounded now by the Afghanistan debacle) as to just how much capacity and will the US really now still has to go it alone in this enterprise, without much stronger support from other countries, including those ASEAN countries with most to immediately lose. I don’t think the US will abandon its general commitment to the Indo-Pacific any time soon, but I don’t think any of us can assume that it has any great enthusiasm any more for doing all the heavy lifting itself, or that there is anything automatic about the support its allies and partners can expect if we get into trouble. We are all going to have to become more self-reliant, and the bigger players in the region are going to have to become more cooperatively engaged with each other in resisting China’s creeping hegemony.

The Quad grouping, bringing the US together with three other major regional players (potentially a ‘Quint’ if South Korea joins it) is emerging as the most important visible counterweight to China’s increasing overreach – not yet overtly a military alliance willing to use its collective military power if provoked beyond endurance, but heading in that direction. Above all, as Kevin Rudd has recently written in Foreign Affairs, the Quad is by its very existence challenging the perception that Chinese dominance is inevitable and there is no option but to defer to it – it has the “potential to stiffen spines across the whole of the Indo-Pacific”.

I hope it won’t be taken too amiss if I say that, from the perspective of a country outside South East Asia, some of the spines that most need stiffening are in ASEAN itself. Some ASEAN members are so obviously close to China that the prospect of them engaging in any significant pushback is a lost cause. But it is hard to ask countries like Australia (which has already been singled out for serious retaliatory attention), and maybe even the US itself, to do more by way of FONOPS operations, for example, when countries like Indonesia, Vietnam, the Philippines and Malaysia – all of whom have both major interests at stake, and significant military capability of their own – are so obviously reluctant to join in.

My final point (which I shall make very briefly because the COC story has been so well told by our lecturer, and no doubt will be again by other panelists) is that it seems, from my outsider’s perspective at least, that the COC negotiations are going nowhere, and ASEAN’s efforts might be more productively focused on the narrower objective of an incidents-at-sea agreement. China is insisting on an agreement which completely ignores all the constraints and limitations set by The Hague tribunal’s ruing, and there are some in ASEAN willing to accommodate it at almost any cost. But, for all the reasons that Ambassador Rosario has pointed out, those ASEAN littoral states with huge sovereignty and resource interests immediately at stake cannot possibly, if they have any pride at all, which of course they do, accept what China is demanding. So it is presently impossible to see those negotiations resulting in any agreement for the indefinitely foreseeable future, let alone by the present target of 2022.

That said, it is a time-honoured ASEAN tradition that process is as important as substance, and there may be something to be said for prolonging indefinitely the negotiations. As Churchill is supposed to have said (although not always observing the principle himself) jaw-jaw is preferable to war-war, and it can be argued that the COC process has contributed to no actual shots being fired in anger by anyone to date. But my own instinct is that, given that this luck might not hold indefinitely, with the risks of a small confrontation turning into a major conflict being not at all remote, it might be rather more productive to focus on just one narrow but crucial part of the canvas – establishing an effective mechanism to prevent and defuse incidents at sea.

The primary need here is for the US and China to bilaterally negotiate a regime similar to that on which the US and the Soviet Union agreed in the 1970s. But there would also be great value in the ASEAN countries and China doing likewise, and at least an outline way forward for doing so is there, as I understand it, in the language of the Single Draft Negotiating Text now on the table. I’m not suggesting that this narrower outcome would be at all easily achieved, but it would not prejudice anyone’s other interests, and could be accomplished without having to reach any agreement on issues like the geographical scope of the treaty, the role of third parties in resource development and more generally, the recognition of the Arbitral Tribunal findings on the application of UNCLOS, and all the other issues on which the key players are now irrevocably divided.

I’m all for big solutions to big problems, but sometimes, if you want to make any progress at all, you have to lower your sights.