Making the South China Sea COC work

For a long time, the South China Sea has not only been about territorial disputes between countries in Southeast Asia over a few reefs and lines. The South China Sea today is a sensitive indicator of a country’s foreign policy and of a country’s diplomacy. As a major trade route and source of energy for countries around the globe, the South China Sea is of global concern.

This is why the long-promised Code of Conduct (COC) between China and the Association of Southeast Asian Nations (Asean) is an event of great significance. Negotiations for the COC are at a critical stage now, with the Philippines chairing Asean in 2026. While both sides are keen to conclude the negotiations, there are still many differences that need to be ironed out and a framework of behavior established at sea.

The Declaration on the Conduct of Parties (DOC) in the South China Sea (2002), as a nonbinding confidence-building measure between the parties, did not provide sufficient scope, as it did not contain any binding provisions. As a result, the DOC was able to establish a framework of conduct of parties for a limited period of time only. For the past two decades, the DOC has failed to contain the increase in dangerous incidents at sea. Hence, a large gap exists between the established principles of conduct of parties in the South China Sea as part of the existing legal framework, and the actual conduct of states at sea.

While the COC is being negotiated in order to try to settle all of the sovereignty disputes in the South China Sea, such is not realistically possible to be accomplished within the near future. The reason for this is that China, the Philippines, Vietnam, Malaysia, and Brunei have all laid claim to parts of the waterway, and it would be unreasonable to expect a COC to settle all of these disputes overnight. Therefore, what is required is a set of rules which would regulate the behavior of states with unresolved claims to parts of the South China Sea while those disputes are being settled.

Such a set of rules would not require states to abandon their claims to parts of the South China Sea but would instead establish a set of boundaries between permissible and impermissible behavior by states in the waterway. In this sense, such a set of rules would focus on behavior at sea by states with unresolved sovereignty claims, rather than on the resolution of the underlying sovereignty disputes themselves.

However, achieving a balance of interests is very difficult. After many years of negotiations on the COC between China and Asean, there are currently no breakthroughs in sight. In fact, negotiations are currently stuck in a “talks fatigue” situation, and it is unclear in which direction any progress could be made. For the COC to be successful, however, it must first of all be aligned with international law, in particular with the United Nations Convention on the Law of the Sea (Unclos).

Without such a basis, any agreement on a COC would amount to nothing more than another political promise, and would not in any way address the core legal problems currently giving rise to so much tension in the region and leading to dangerous incidents in the highly sensitive and extremely contested maritime spaces of the South China Sea.

While China and Asean engage in the negotiations for a COC in the South China Sea, several issues will need to be addressed by both sides. For Asean, maintaining unity and hence presenting a united front of core principles to China will be crucial. In the end, the way in which China uses the COC negotiations will be important in influencing perceptions of its behavior in the South China Sea. China could use the negotiations to manage international perceptions of its behavior in the South China Sea.

On the other hand, it could also engage in a binding regional framework that would provide reassurance to the countries of Southeast Asia that, although China is increasing in power, it does so in a predictable manner. Either way, the negotiations between Asean and China must remain focused on managing the conduct of parties in the South China Sea with a view to preventing conflict, rather than becoming hijacked by external great power rivalries, such as between the United States and China.

In the end, it will not matter how long it takes to arrive at a COC for the South China Sea. If a framework is drawn up for the sake of a quick political solution, which is then not enforced in practice, then in the end it will only bring temporary relief. The real test of a COC will be in practice. Will it provide sufficient rules for governments? Will there be sufficient and effective institutions? And, above all, will there be sufficient instruments to prevent conflict from escalating even in the face of a persistent competitive confrontation? That is what the South China Sea needs, not another declaration calling for restraint.

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Simon Hutagalung is a retired Indonesian foreign ministry official. The opinions expressed in this article are his own.