The Association of Southeast Asian Nations (ASEAN) and China aim to draft the 2021 Code of Conduct (CoC) for the South China Sea (SCS) in the midst of several long-running and escalating disputes. The CoC is expected to be a regional framework establishing rules and standards for regional peace and stability.

However, the lack of intra-ASEAN unanimity and the bloc’s bilateral engagements with China continue to remain key impediments. This commentary will suggest potential avenues ASEAN could explore to re-focus attention on the CoC, such as enforcing regional instruments to overcome disunity.  

Challenges to ASEAN Unity

ASEAN’s principle of non-interference—the ‘ASEAN way’—prevents it from intervening in disputes involving its member states. There is also a lack of agreement among members on how to deal with China, particularly with regard to its conduct in the SCS. The nature of individual ASEAN countries’ relations with China are a consequence of several variables. Potential economic benefits is an important determinant, with the Philippines being a case-in-point.

Further, member states that don’t have any claims in the SCS engage China with fewer limitations. Sometimes, these linkages can inhibit ASEAN activities. Cambodia, a member state with no SCS claims, obstructed the 2012 ASEAN Foreign Ministers’ Meeting from releasing a joint communique involving the Scarborough Shoal dispute.

This lack of ASEAN unanimity is an obstruction to the successful drafting of the CoC as a binding document to settle disputes.

Moving Forward

The ASEAN Outlook on the Indo-Pacific envisions ASEAN at the centre of the Indo-Pacific discourse. This includes the SCS region as well.

The Outlook outlines ASEAN’s goal of maintaining regional peace and security with greater adherence to international law and principles, such as the protection of navigational routes and overflight in international waters. These objectives can be buttressed by introducing regional instruments that could help contribute to the formulation of a cohesive CoC for the SCS.

The Treaty of Amity and Cooperation’s High Council can function as an instrument of arbitration between ASEAN and China in the SCS. One way to judge efficacy is to see if ASEAN is able to settle internal disagreements using the High Council. If yes, its employment could be considered for the CoC and for future disputes amongst the Council’s contracting parties. The latter could be made possible through what appears to be a recent shift in ASEAN operations. ASEAN informally breached its principle of non-interference and directly involved itself in the deteriorating situation in Myanmar by releasing a five points of consensus statement. The statement emphasises measures to cease hostilities and move towards peace, which is precedent-setting for ASEAN’s future involvement in internal and regional disputes.

The High Council has not been formally established, although its rules of procedure (RoP) have been drafted and codified. Rule 7 allows for the initiation of dispute settlement by a High Contracting Party (HCP). According to rule 3(b), if a state outside Southeast Asia is directly involved in a dispute pursued by the High Council, they would be considered an HCP. By virtue of this clause, China would qualify as an HCP—in the event the High Council is established as a dispute redressal mechanism under the CoC.

A worthwhile agenda for member states engaging in the discussion is whether the CoC will be legally binding. There also has to be consensus between participants on the CoC’s geographic scope. Such clarity would facilitate better deliberation on issues such as joint exploration, resource management, and communication hotlines, among other cooperative mechanisms.

The viability of the CoC is dependent on a more united ASEAN engaging in the negotiation and drafting process. It should be approached as an instrument to peacefully and definitively address disputes, rather than a temporary fix.

Vishal Bhadri is a Research Intern with IPCS' South East Asia Research Programme (SEARP).