That elusive Code of Conduct

More than 20 years have passed since the Association of Southeast Asian Nations (Asean) and China signed a declaration meant to prepare the ground for a Code of Conduct in the South China Sea that would bind all parties. The code remains unfinished. The delay cannot be attributed to mere diplomatic sluggishness.

I believe it has a more precise cause: the code cannot be finished without acknowledging a legal ruling that most of the parties would rather not name. This is the 2016 award of the arbitral tribunal constituted under the United Nations Convention on the Law of the Sea (Unclos), which ruled in favor of the Philippines. The tribunal found that China’s claim to historic rights within the so-called nine-dash line had no legal basis.

Beijing refused to take part in the proceedings and rejected the result. The tribunal has no power to enforce its award, and yet the ruling remains. It stands there like the proverbial elephant in the room.

The 2002 Declaration on the Conduct of Parties in the South China Sea already contained the problem. In a single sentence, it committed the parties to settle their disputes through negotiations “by sovereign states directly concerned,” in accordance with international law “including the 1982 UN Convention on the Law of the Sea.” Beijing read only the first half; Manila invoked the second.

When China argued that the declaration bound the parties to negotiation alone, the tribunal, in a 2015 ruling on jurisdiction, disagreed: the declaration, it said, was a political document, not a legally binding one. A binding code would have to say which half of that sentence governs. Either answer would be a position on the award.

The product of an international legal order, or what remains of it, the award is a legal communication that fixes what all subsequent legal communication must take into account. Its power lies in its capacity to compel reference. It keeps normative expectations in force even when they are violated. Every water-cannoning or ramming of Philippine vessels by China’s coast guard in the West Philippine Sea defies the ruling, but none of these erases it.

Manila’s turn to arbitration caught Asean by surprise. But it had a context. In July 2012, weeks after we lost Scarborough Shoal to China, the Asean foreign ministers’ meeting in Phnom Penh ended without a communiqué for the first time in the bloc’s history, because Cambodia, as chair, refused to let Scarborough Shoal be mentioned in the joint statement, even in compromise language the other members had accepted.

That November, Cambodia announced a “consensus” that the disputes would stay within an Asean-China framework. President Benigno “Noynoy” Aquino III raised his hand to say there was no such consensus, and that Asean was not the only route. Two months later, Manila filed its case. Much of the region greeted the move with silence, and some with alarm. When the award came out in 2016, Asean’s communiqué avoided mentioning it. Whatever its virtues, consensus is also a way of not deciding.

Perhaps we may say then: the slowness of the code negotiations is the time it takes to avoid answering a question that has already been answered. A code may yet be signed by the end of the year. If so, it will most likely be silent on the award, recording that the parties agreed to keep talking, not what they agreed about.

This week’s guest list makes the same point on a larger scale. UN Secretary General António Guterres comes to Manila in the final weeks of his term; the choice of his successor rests on the consent of the Security Council’s veto-holders. United States President Donald Trump stops here on his way to Shenzhen, where the more consequential conversation, with Chinese President Xi Jinping, is expected. Canadian Prime Minister Mark Carney and Brazilian President Luiz Inácio Lula da Silva represent middle powers that can open channels but cannot steer a world that has neither a center nor an enforcer. The Security Council veto and Asean consensus are analogous: both make agreement depend on the consent of the party whose conduct is in question.

Hosting a summit like this is a delicate affair. The host is expected to keep every meeting cordial and spare its guests embarrassment. These courtesies keep mutually suspicious states in the same room. But they can also become another way of not resolving anything.

What can the Philippines, as chair of the 49th Asean Summit, do beyond playing the gracious host? Maybe it can refrain from brandishing the award as a weapon, which would only deepen Beijing’s need to reject it and give other Asean members reason to keep their distance. But it should not trade the award for a signed Code that treats it as if it did not exist. Having sought and won it, we are the ones most obliged to keep it in view.

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