AFTER years of languishing in political limbo, the Code of Conduct for the South China Sea is once again at the forefront of serious discussions between the Association of Southeast Nations (Asean) and China.
The regional bloc and the Asian superpower have agreed to prepare the groundwork for resuming negotiations to end the stalemate that has foiled the enforcement of the code.
Remarkably, the impetus for reviving the talks comes at a time when the Philippines, a country with a long history of territorial differences with China, has assumed the chairmanship of Asean. It is a rare moment when dialogue and diplomacy pave the way for conflict resolution.
Establishing the guidelines for the diplomatic resolution of disputes and adherence to the United Nations Convention on the Law of the Sea (Unclos) became a serious concern for Asean in the early 1990s, as China grew more assertive in projecting its presence in the South China Sea.
In February 1992, China passed a Law on the Territorial Sea and the Contiguous Zone, claiming sovereignty over most of the strategic waterway. Asean responded seven months later with the Declaration on the South China Sea, which is anchored on the need to maintain peace and stability in the area.
In the eye of the gathering political storm was Mischief Reef, where China had built structures ostensibly for fishermen sheltering from storms.
Today, the structures have morphed into full-fledged military fortifications, a development that Asean member states like the Philippines and Vietnam consider as an intrusion to parts of the reef they are laying claim to.
Mischief Reef is but one of the many hot spots that dot the South China Sea. Confrontations between Chinese maritime militia and coast guard ships and vessels from claimant countries in other areas of the waterway have become more intense and frequent.
After years of diplomatic persuasion, Asean finally convinced Beijing to recalibrate its position and work out a way to settle disputes before things get out of hand.
In November 2002, Asean and China signed a “Declaration on the Conduct of Parties in the South China Sea,” and committed “to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to force, through friendly consultations and negotiations ... in accordance with universally recognized principles of international,” including the Unclos.
They reaffirmed to adopt a code of conduct for the South China Sea, but left out a time frame and a legal mechanism to enforce the code.
China and Asean have since been at odds over the code’s scope.
“China wants the scope limited to areas where it does not have complete control, while the Philippines and Vietnam, seek inclusion of all disputed maritime features,” observed political analyst Jaime Naval in an online article on the East Asia Forum site in 2024. “As China claims nearly 90 percent of the South China Sea, it makes sense for the code of conduct to include overlaps.”
China “also seeks a flexible, nonbinding code, while Asean wants a code that is legally binding,” Naval said.
For years, the code drifted in a sea of disagreements, defying efforts to bring it back to the negotiating table.
A sliver of hope appeared on March 8, when Chinese Foreign Minister Wang Yi issued a statement that China wants discussions on the code to begin “as soon as possible.”
Wang stressed that the code “will provide the golden rules for the parties to effectively manage differences, build trust and advance cooperation.”
More significantly, he said he hopes “that as this year’s Asean chairman, the Philippines will recognize and fulfill its responsibility, resist the pull of self-interest and play a positive role for peace and stability in the region.”
Foreign Affairs Secretary Ma. Theresa Lazaro wasted no time in responding that “the Philippines approaches this issue with a clear sense of responsibility to the region and to the international community.”
A golden opportunity to finally see the Code of Conduct for the South China Sea has presented itself. It is now up to the Philippines to make sure that the opportunity does not slip by.
