How critical is the Code of Conduct in the SCS in managing and mitigating disputes?

THE Association of Southeast Asian Nations (Asean) and China are set to hold the next round of negotiations on a Code of Conduct (COC) in the South China Sea in Manila as both parties continue to negotiate on the practical and substantive content of the COC. This positive development hinges on the completion of the second reading of the single draft of the COC negotiation and adoption of the “guidelines” that aim to speed up the negotiation.

In the recent China-Asean ministerial meeting attended by Asean foreign ministers — China was represented by Wang Yi, the director of the foreign affairs committee of the central committee of the Chinese Communist Party — the second reading of the single draft negotiating text of the COC was completed and adopted, and the two sides agreed on the guidelines to accelerate negotiations for the COC.

In a joint communiqué released on July 13, Asean stated that maintaining and promoting a conducive environment while ongoing negotiations are critical. “We stressed the importance of undertaking confidence building and preventive measures to enhance, among others, trust and confidence among parties, and we reaffirmed the importance of upholding international law, including the 1982 Unclos (United Nations Convention on the Law of the Sea),” it said.

COC as a preventive measure

This latest progress in the negotiations on the COC is no doubt a promising and positive development. Amid the heightening tensions in the contested waters of the South China Sea (SCS) these days, coupled with some unwelcome interference coming from third parties not party to the conflict like the United States, it becomes a must that the COC be concluded at the soonest possible time to stabilize and reduce significantly the tensions surrounding this area. I believe that the early conclusion of the COC and the COC itself would serve as a preventive measure that could possibly deter any possible outbreak of military conflict/confrontation in the disputed SCS, thereby maintaining and sustaining peace and security in the Asean region.

The Asia-Pacific region has three major traditional security threats or flash points. First is the Korean Peninsula, perhaps the most urgent security challenge in the world. The second is the Taiwan Strait dilemma, and the third is the South China Sea dispute, a potential source of conflict that has drawn considerable attention for some time now. The SCS is considered essential for strategic security, commercial shipping, fishing, and, potentially, hydrocarbon resources.

While the ongoing big power rivalry between China and the United States remains a factor in the Indo-Pacific regional security environment and architecture, the overlapping territorial and maritime claims of the six claimant states — Brunei, Malaysia, the Philippines, Vietnam, China and Taiwan (which China regards as a renegade province), remains one of the critical sources of the delicate and precarious strategic and security environment of the Asean region and the wider Asia-Pacific.

The intractable issue of the SCS dispute indeed seems destined and has remained a simmering regional flash point in the Indo-Pacific. In this regard, there’s a genuine apprehension that the SCS dispute, if not mitigated, managed and resolved amicably among the claimant-states, could inflame a breakout of military conflict/war in the region. Thus, the existing qualified tranquility in the SCS may give the impression and appear conventionally as the calm before the storm.

Notwithstanding, efforts toward rapprochement on the SCS dispute to facilitate and create an atmosphere and environment where peace and security could be collectively and sustainably achieved are necessary. And one of the imminent solutions to this simmering flash point in the region is the early conclusion of the COC, an endeavor that both China and Asean must pursue with vigor, consistently, persistently and amicably, however complex and challenging it is.

Though the COC may not necessarily be able to resolve the issue of overlapping sovereign maritime and territorial claims of the six claimant states, I believe it is a viable diplomatic mechanism and an essential framework of rules, principles, norms and decision-making procedures for managing and resolving the SCS disputes. In many ways, this is a win-win strategy akin to turning the dilemma into an opportunity that engenders tangible benefits and fosters a better and progressive future for the nationals of the claimant states.

Upon its conclusion, the COC will play a critical role in resolving the SCS dispute and in reducing the potential military conflict/confrontation outbreak in the Asean region. Likewise, the COC is vital as it provides a framework of rules, principles, norms and decision-making procedures for managing and resolving disputes among SCS claimant countries. Upon its adoption, the COC will create new forms of commonality and cooperation among the parties through dialogues and negotiations.

PH and the SCS

The Philippines is the second-largest archipelagic country in the world. It is rich in marine resources, but its potential for marine economic development has yet to be fully achieved. During President Rodrigo Duterte’s administration, the country had created a favorable environment for international cooperation on critical issues, particularly on the disputed SCS. Duterte’s China-friendly stance has set the stage for mending ties that have frayed because of festering maritime sovereignty and territorial disputes in the SCS due to the US-backed and -influenced arbitral proceedings against China concerning the disputed SCS. The Philippines under President Benigno Aquino 3rd on Jan. 22, 2013 filed an arbitration suit against China at the Permanent Court of Arbitration which Beijing declined to participate in.

In recent years, especially during the time of President Duterte, the Philippines and China initiated and exercised joint efforts for the two countries to significantly improve their bilateral relations and maintain strong cooperation in trade and investment. To date, China is the Philippines’ top trading partner, a top source of imports, one of the leading export destinations and a source of foreign investments.

Following President Ferdinand Marcos Jr.’s victory in the 2022 elections, many expected that robust economic cooperation, and pragmatic and strategic cooperation between the two countries would remain. However, the Marcos administration seems to be deviating from its predecessor’s foreign policy. It has pivoted or tends to swing to the US. This foreign policy trajectory has created some critical challenges to Philippines-China bilateral relations, politically speaking, particularly in managing the disputes in the SCS.

Pragmatic ways

Nevertheless, despite the political challenges the two countries face concerning their bilateral relations, there are practical ways both sides could pursue win-win cooperation. The first is to pursue joint oil and gas exploration and cooperation by respecting the consensus already reached. Second, pursue joint fishery management and marine environmental protection in the SCS. The potential of Sino-Philippine fisheries cooperation is vast and promising. The two countries should also cooperate on marine environmental protection. Third, both sides should maximize bilateral consultative and multilateral mechanisms at the Asean level without affecting the two countries’ respective standpoints on sovereign and territorial issues in the South China Sea. Fourth, focus on substantive issues rather than on politics. Last but not least, take a positive attitude and outlook in carrying out constructive dialogue with strategic visions to promote development cooperation projects, establish a strategic partnership with China and collaborate on practical solutions to the SCS dispute coupled with continued shared infrastructure and coordinated investments. In addition to trade and economic cooperation, maritime law enforcement cooperation is another key to regional and global maritime governance.


All these are akin to a win-win strategy, cooperation and a solution of turning a dilemma into an opportunity that engenders tangible benefits and fosters a better and progressive future for all Filipinos and Chinese, rather than the “zero-sum game,” or a “winners take all” approach.

I hope both sides persevere to achieve mutually beneficial and win-win cooperation, and there’s no better time than to start now to address the dispute by pushing for the early conclusion of the COC.

Source: The Manila Times

Prof. Anna Rosario Malindog-Uy

Prof. Anna Rosario Malindog-Uy is a Ph.D. Candidate at the Institute of South-South Cooperation and Development (ISSCAD), Peking University, Beijing, China. She is currently a director and the Vice President for External Affairs of the Asian Century Philippines Strategic Studies Institute (ACPSSI), a think tank based in Manila. She also serves as the political/geopolitical analyst of ACPSSI. Currently, she is a Senior Researcher of the South China Sea Probing Initiative (SCSPI) and a Senior Research Fellow of the Global Governance Institution (GGI). She is also the President of Techperformance Corp, an IT-based company in the Philippines. Prof. Anna Uy taught Political Science, International Relations, Development Studies, European Studies, Southeast Asia, and China Studies. She is a researcher-writer, academic, and consultant on a wide array of issues. She has worked as a consultant with the Asian Development Bank (ADB) and other local and international NGOs.