December 4, 2022

By: BA Hamzah

While the international press largely focused on the G20 meeting in Bali earlier this week, little attention was paid to the fact that China once again stole the show at last week’s Asean summit in Phnom Penh.

Beijing’s ability to influence regional events is significant as it offers more economic benefits to the region. In addition to announcing new funding for several infrastructure projects in Laos, Cambodia, Thailand and Indonesia, Beijing managed to delay one of ASEAN’s key foreign policies in the South China Sea by influencing the decision to forestall what it finds offensive.

ASEAN member states have been pushing for a treaty regulating the conduct of parties in the South China Sea for 20 years. The proposed treaty, known officially as the Declaration of Conduct of the Parties in the South China Sea, or colloquially the DOC, was first discussed by the late President Fidel Ramos of the Philippines after China seized the Mischief Reef used by Filipino fishermen in 1995 as a shelter during the rainy season. Mischief Reef is 250 km away. from the Philippine island of Palawan and 3100 km from the nearest Chinese territory.

The code of conduct became an ASEAN-wide program to include and regulate the behavior of Chinese nationals. However, China has held its own in the South China Sea since occupying the Paracels in 1974. Under pressure from the united ASEAN countries, China agreed to an informal mechanism that would regulate the activities of all competing parties. Even so, Beijing has paid only lip service to the idea of ​​turning the declaration into a binding treaty that would restrict its activities within the controversial nine-dash line drawn by the Nationalist government in 1947.

The informal DOC has not stopped China from occupying traits in the Spratlys. As of 2012, China has built and fortified seven underwater installations into military garrisons, despite objections from other applicant states and major sea powers, including Japan and the United States. Beijing has also occupied other features such as the Scarborough Reef, which President Barrack Obama once vainly described as a red line that must not be crossed.

Washington considers the Chinese military bases to be illegal under international law. Although the US position on China’s claims in the SCS agrees with the findings of the 2016 International Hague Tribunal at the behest of the Philippine government, China avoided the trial and dismissed the findings. The tribunal was set up in 2013 at the request of the Philippines to establish the legitimacy of China’s historic claim to the South China Sea, despite former Philippine President Rodrigo Duterte weakening his nation’s position by downplaying the decision.

The US has accused China of violating the United Nations Convention on the Law of the Sea (UNCLOS), which Washington has yet to ratify despite the multilateral treaty’s entry into force in 1996. The UNCLOS is considered the mother of all maritime law treaties and the constitution for the sea and its resources. UNCLOS also provides the international community with an effective legal framework and rules for maritime governance and maintaining law and order at sea.

Since Beijing captured the Paracel Islands from South Vietnamese troops in 1974, tensions at sea have been building between some claiming states and China. In 1979, China went to war with Vietnam over the expulsion of mainly Chinese minorities from what was then South Vietnam. In 1988, the Chinese and Vietnamese navies collided over a maritime feature known as the Johnson South Reef. More recently, the PLA Navy and other authorities, including naval militias, have harassed fishing boats and ships owned by Vietnam, the Philippines and Malaysia that have contracts with foreign oil companies, for example.

To commemorate the 20th anniversary of the DOC, a joint statement was issued at last week’s ASEAN summit in Cambodia instead of a treaty, a resurgence of very broad general guidelines that both sides have agreed to over the past 20 years. Although China has promised ASEAN members to do its best to expedite the ratification of the DOC, China is no longer willing to specify the items in a treaty, presumably for the following reasons:

one. China does not want a legally binding document that could make it responsible and liable for violations.

Two. China believes the proposed treaty could not ease tensions at sea involving external powers like the US, Japan, Australia and others. According to a Chinese politician, the treaty would not resolve tensions with the US and its allies.

Three. China believes its ownership of the area within the nine-dash line is indisputable. It could do whatever it wants on its own territory.

Four. China fears the treaty could be used by other interest groups (i.e. the US and allies) using the SCS and the airspace above it to demand similar privileges.

Five. China knows that the ASEAN countries that have called for the passage of this treaty are too weak to threaten China’s security.

This is not the first time in ASEAN history that Cambodia has not played along. While holding the ASEAN presidency in 2012 and 2016, the Phnom Penh government has twice blocked ASEAN foreign ministers from issuing joint statements that would condemn China’s assertive activities in the South China Sea.

All eyes are now on Indonesia, which will take over the ASEAN presidency in 2023. Can Indonesia succeed where other members have failed in these two decades to break the DOC curse? I personally doubt that President Widodo Jokowi, who is leaving office in 2024, is willing to sever diplomatic ties with China over a document that has lost its diplomatic value over the years. In addition, the so-called Asean consensus on the document has also evidently lost importance as China becomes militarily stronger and more prosperous.