Beijing sinks South China Sea code of conduct

China's refusal to accept mutually applicable rules of conduct in the South China Sea is making compromise there impossible.

Beyond being a shrewd military strategist, the ancient Chinese philosopher Sun Tzu was also a great advocate of legal equality.

In The Art of War, Sun Tzu’s sixth century BCE classic, he argued: ‘When it comes to establishing rules and regulations, everyone, high and low, should be treated alike.’

Regrettably, China’s foreign policy mandarins seem to regard this egalitarian lesson as irrelevant in the realm of international relations.

In Beijing’s estimation, China is neither on an equal footing with other nations nor first among equals; it is rather a sui generis Middle Kingdom among mere minnows.

This imperious outlook is most pointedly on display in the South China Sea, where Beijing still refuses to accept mutually applicable rules of conduct and prefers instead to bully its way to control of disputed territory.

In 2002, the Association of Southeast Asian Nations (ASEAN) and China issued a Declaration on the Conduct of Parties in the South China Sea (DoC).

This lofty document calls for the resolution of territorial disputes without the ‘threat or use of force’ and an end to provocative land grabs, while also envisioning the eventual adoption of a Code of Conduct (CoC) to ‘promote peace and stability in the region.’

Ongoing unilateral moves to consolidate and expand control over contested territory make a mockery of the DoC. Prominent recent cases include China’s seizure of Scarborough Shoal in 2012, China’s plans to construct an artificial islet in the Spratly Islands, and continued Vietnamese and Filipino reinforcement of their outposts on disputed atolls.

Yet the most serious setback to the implementation of the DoC’s ambitious agenda are the stalled negotiations for a CoC, which last month again failed to produce progress.

China’s unyielding commitment to gaining control over contested territory and its disdain for subjecting itself to rules that put it on an equal footing with much smaller states mean that hopes of successfully negotiating a binding CoC are illusionary.

Chinese officials consistently emphasise that asserting China’s claims to disputed waters is a national ‘core interest,’ and that Beijing will not countenance ‘compromise’ or ‘concessions’ in pursuing its territorial ambitions.

With compromise and concessions the very essence of successful negotiations, it should be clear that Chinese participation in discussions for a CoC is mere pretence.

Policy planners in Beijing are also acutely aware that China has much to gain and little to lose from indefinitely deferring the conclusion of the CoC negotiations.

Within the constraints of a binding CoC, China would likely have the equal standing of any other state. By contrast, in a pre-CoC system of power politics, China’s gargantuan size means that it enjoys a decisive asymmetrical advantage over its diminutive Southeast Asian neighbours.

ASEAN’s total GDP was less than 35 per cent of China’s in 2013, while the combined military spending of ASEAN member states was less than the equivalent of 25 per cent of China’s defence budget last year.

Beijing already has a troubling track record of taking advantage of this military and economic superiority.

China has used its better-equipped and larger maritime security forces to sabotage vessels, blockade military outposts, and intimidate foreign civilians. Meanwhile, Beijing’s control over key levers of the Chinese economy has allowed it to press its territorial claims by sending state-owned oil rigs into disputed waters and deploying damaging trade barriers.

In short, China has lived up to the threat implied by then Foreign Minister Yang Jiechi’s 2010 observation: ‘China is a big country and other countries are small countries, and that is just a fact.’

More worryingly still, China’s southern maritime neighbours are set to become even smaller in relative terms and thereby even less capable of resisting Chinese arm twisting.

By 2050, HSBC predictions indicate that ASEAN’s total GDP as a percentage of China’s GDP will have likely dropped to approximately 25 per cent, while long-term military spending trajectories suggest that ASEAN member states will probably spend less than the equivalent of 20 per cent of China’s defence budget on their militaries by mid-century.

As with the lions and hares of Aesop’s fables, ASEAN member states can ‘make public speeches and argue that they should all have equal shares,’ and yet China can simply respond: ‘Your speeches, O Hares, lack claws and teeth such as we have.’

Beijing might pay lip service to negotiating mutually applicable rules of conduct. Yet China knows that submitting to the strictures of a CoC would sabotage its so far successful strategy of expanding its de facto sovereignty through intimidation and coercion.

Of course, failed negotiations for a CoC might not be completely unproductive. They at least allow ASEAN member states to draw international attention to Beijing’s unbending approach to territorial disputes.

Nevertheless, China’s intransigence means that Southeast Asian nations will need to do much more than engage in well-intentioned negotiations if they seek a fair and stable solution to one of the world’s most volatile and divisive geostrategic conflicts.

Dr Benjamin Herscovitch is a Beijing-based Research Fellow at The Centre for Independent Studies.