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Pou Sothirak

Eoeng Kanhara

Disputes in the South China Sea have heightened insecurity in the Indo-Pacific, with claimant nations pursuing diplomatic and legal resolutions, including arbitration, while non-claimant states have advocated for freedom of navigation and compliance with the United Nations Convention on the Law of the Sea (Unclos).
Over the years, Asean and China have sought to maintain peace and stability by resolving long-standing territorial disputes peacefully, first with the Declaration on the Conduct of Parties in the South China Sea in November 2002, and later through negotiations for a Code of Conduct (COC) framework adopted in August 2017.
However, a serious gap remains between the diplomatic efforts and the complex reality of drafting the binding COC.
Since negotiations started in March 2018, there have been no apparent breakthroughs for early conclusion of the COC. As a result, this lack of progress jeopardises the credibility of Asean and China, increasing tensions and the potential for conflict.
Although there was reason for optimism following the third reading of the Single Draft COC Negotiating Text, the Asean Foreign Ministers’ Retreat held on January 19 in Langkawi, Malaysia reiterated the importance of maintaining positive momentum towards the early conclusion of an effective and substantive COC that is in accordance with international law, including the 1982 Unclos treaty.
A revised strategy will be essential for progressing COC negotiations to more effectively address conflicting sovereignty claims among the claimants; otherwise, the dream of an effective binding code will remain problematic and elusive.
Once declared, the expectation that the COC will be binding fundamentally relies on the good faith of parties, yet the unsettled drafting processes will make efforts towards a conclusion arduous.
Asean has lacked a collective ability to influence China for a quicker resolution. This limitation stems from the bloc’s conflicting position with Beijing. The differences have been evident through their preferred ways to resolve issues – China favours bilateral negotiation to safeguard its core interest, while Asean member states prefer resolving disputes through international law to enhance their claims.
The slow progress has been further complicated by a lack of trust among the parties involved and differing interpretations of what constituted a binding code under Unclos.


Some Asean members remain concerned about Beijing’s hegemonic perceptions in the South China Sea. Likewise, China harbours suspicions about some Asean countries it perceives as permitting or facilitating the involvement of external powers, namely Washington, in the region. These factors have contributed to a deep mutual distrust between both sides.
The South China Sea issue is also about the struggle for regional dominance between the United States and China. Although America does not make any territorial claims or take a stance on the sovereignty of the various geographic features in the disputed waters, US officials have urged that disputes be settled without coercion and based on international law.
China considers the US a third party, a position Washington continues to deny by conducting freedom of navigation operations and bolstering support for its Southeast Asian partners. This situation has made the South China Sea a critical flashpoint in the US-China geopolitical rivalry, adding a complex layer to maritime disputes between China and Asean claimants, and hindering negotiations.
A new approach must be considered for the COC to reach its intended purpose of being legally binding.
First, all sides must narrow down on differences. There is a gap between bilateral negotiation, which China prefers, and arbitration under international law, which Asean claimants favour. Both sides should strengthen trust by extending mutual “strategic assurances”.
Asean should “not take sides” in seeking help from extra-regional powers, especially the US, to counter China. On the other hand, Beijing should prove that its rise benefits Asean by promoting regional prosperity and stability. This would allow for open dialogue and compromise on the code.

Second, Asean and China should work to strengthen the foundations of a rules-based regime, particularly the 1982 Unclos treaty, which both sides have agreed is the foundation to create legal order in the South China Sea. As a State Party to Unclos, China was one of the first countries to sign the convention in December 1982 and ratified it in 1996.
Meanwhile, Asean’s Six-Point Principles on the South China Sea, adopted in Phnom Penh, Cambodia on July 20, 2012, called for “the peaceful resolution of disputes and the full respect of the universally recognised principles of international law, including the 1982 Unclos”.
Third, Asean and China must agree on a COC with clear compliance and enforcement guidelines. Promoting mutual understanding and respect is also needed to appease differences, which have become apparent in the interpretation process and the application and implementation of Unclos and led to several misunderstandings.
Some experts have pointed out several ongoing challenges regarding the COC. These include the unclear and undisputed geographical scope, its undefined legal status, and the lack of practical maritime cooperation arrangements. Additionally, there is uncertainty about how international norms apply to the COC, and differing opinions about the role of third parties are yet to be resolved.
A recalibrated approach is necessary to clearly define a legally binding instrument that governs conduct and behaviour in the South China Sea. This instrument should aim to prevent, manage, and resolve incidents while fostering a cooperative environment. The COC must include a practical management framework for settling disputes related to jurisdiction over waters, seabeds and airspace. It should encourage self-restraint and require all parties to respect each other’s rights in their lawful activities in the South China Sea, without resorting to threats or the use of force.
Pou Sothirak is a Retired Academic and Distinguished Senior Adviser to the Cambodian Center for Regional Studies. Eoeng Kanhara is a research associate at the Cambodian Center for Regional Studies.


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.css-1c6uqr6{color:inherit;font-weight:inherit;font-size:inherit;font-family:inherit;line-height:inherit;overflow-wrap:break-word;}A recalibrated approach is needed to narrow differences, strengthen trust, and ensure a legally binding code that promotes regional stability.

A recalibrated approach is needed to narrow differences, strengthen trust, and ensure a legally binding code that promotes regional stability.