Will latest South China Sea row sink proposed ASEAN-China Code of Conduct?

This week, the relatively calm South China Sea turned choppy following reports that the Chinese Coast Guard had fired water cannon at Philippine vessels trying to deliver food, water and fuel to Filipino military personnel stationed on a crumbling World War II-era navy vessel stranded at a shoal in the disputed Spratly Islands.

The face-off is the latest in a series of recent incidents between China and a member of the Association of Southeast Asian Nations (ASEAN) in the resource-rich sea lane, raising more questions about the fate of a Code of Conduct (COC) that the regional bloc and Beijing have been trying to negotiate for more than two decades.

The COC seeks to legally bind ASEAN members and China to a deal that would halt Beijing's assertiveness in the region. In exchange, ASEAN countries are prohibited from seeking foreign military intervention, particularly from the US.

Negotiations, however, have stalled for years with Beijing accused of dragging its feet in sealing a deal while continuing to expand the building of artificial islands in several disputed areas in the South China Sea.

A 2016 ruling by the International Court of Arbitration at The Hague had already invalidated China's claim over almost all areas of the South China Sea. Beijing, however, said that it does not recognise the ruling, and has since continued its activities in the region, angering its neighbours.

Now, some quarters are calling for ASEAN to ditch the deal altogether, to put more diplomatic pressure on China to move forward with the pact.

"I think it’s time to call it quits" on the ASEAN-China COC negotiations, Jay Batongbacal, a Filipino expert on the South China Sea at the University of the Philippines, wrote on social media following the latest water cannon firing by China.

"There is no point in talking about COC mechanisms under conditions of threats, duress, and utter lack of self-restraint. Continuing talks only makes ASEAN look useless. Time to walk away!"

In the latest incident between Beijing and Manila, the Philippines described the firing of the water cannons as "illegal" and "dangerous", adding that such actions by China "not only disregarded the safety" of Filipino coast guard crews "but also violated international law".

It then summoned China's ambassador in Manila, to file a protest on the latest incident. Since 2020, the Philippines had already issued over 400 diplomatic protests to Beijing over alleged maritime violations.

'Remove grounded ship'

On Tuesday, Beijing shot back, demanding for the first time in many years that the Philippines remove the grounded ship, BRP Sierra Madre, from the Spratlys.

The Chinese foreign ministry said it has communicated to the Philippines on the Second Thomas Shoal issue “many times” through diplomatic channels, but its goodwill and sincerity have been “ignored”.

“Twenty-four years have passed, and the Philippine side has not only failed to tow away the warship but also attempted to repair and reinforce it on a large scale to achieve permanent occupation of the Ren’ai Reef,” the spokesperson added, using the Chinese term for the Second Thomas Shoal.

Beijing also defended its actions of firing water cannon as "professional" and accused Manila of "illegal delivery of construction materials" to the grounded ship.

The BRP Sierra Madre was deliberately grounded in the Second Thomas Shoal in the late 1990s in response to the advances of China in the Spratly Islands, where Beijing had since expanded with its reclaimed and artificial islands.

In the Philippines, the Second Thomas Shoal is referred to as Ayungin. It is about 105 nautical miles from the nearest Philippine coast, and according to international law is within the Philippines' Exclusive Economic Zone (EEZ).

In recent months, incidents of close encounters between the Chinese and Philippine Coast Guard, have become more frequent.

In April, a Chinese coast guard ship blocked a Philippine patrol vessel steaming into the same area, causing a near-collision on the high seas.

Earlier in February, the Philippines had also complained that a Chinese coast guard ship hit a Filipino coast guard vessel with a military-grade laser, temporarily blinding some of its crew, calling it a “blatant” violation of Manila’s sovereign rights.

Since Philippine President Ferdinand Marcos Jr assumed office in June 2022, Beijing has increasingly become more vocal about its position on disputes with Manila, over perceptions that he is pivoting closer to the US position. Marcos Jr's predecessor, Rodrigo Duterte, who served between 2016 and 2022 was avowed anti-West and was seen as China-friendly.

"For the record, we will never abandon Ayungin Shoal," Marcos Jr's National Security Council spokesman Jonathan Malaya was quoted as saying, using the Philippine name for Second Thomas Shoal.

Competing claims within ASEAN

The dispute and competing claims over the South China Sea are decades old.

Aside from China and the Philippines, neighbouring ASEAN countries such as Vietnam, Malaysia and Brunei all claim parts of the vast sea lane, which spans almost 3.5 million square kilometres.

An estimated $3 to $5 trillion dollars in trade pass through the South China Sea annually, making it one of the most important bodies of water globally - and also one of the most contentious areas.

Recently, China also had separate run-ins with other claimant ASEAN countries.

This May, Chinese and Vietnamese vessels confronted each other on multiple occasions as a Chinese research ship moved within Hanoi's EEZ, which experts said was likely a survey. Such a survey would usually be considered hostile if conducted without notification of the country involved.

In 2021, Malaysia summoned China’s ambassador to protest against the “presence and activities” of Chinese vessels in Kuala Lumpur’s EEZ off the island of Borneo.

Amid the recent incidents, ASEAN foreign ministers met with Chinese senior diplomat Wang Yi in Jakarta in July and agreed on the guidelines "to accelerate negotiations for the Code of Conduct (COC) in the South China Sea (SCS)".

"These achievements must continue to build positive momentum to strengthen a partnership that advances the paradigm of inclusivity and openness, respects international law including UNCLOS 1982, and promotes habits of dialogue and collaboration," said Indonesian Foreign Minister Retno Marsudi following the ASEAN-China meeting.

China is ASEAN's largest trading partner. Trade between the bloc and Beijing has already reached $975 billion. China is also the fourth-largest source of foreign direct investment in ASEAN, with a value of $13.8 billion in 2021.

But beyond the diplomatic niceties, not much has been achieved substantially to move the deal forward, frustrating geopolitical observers in the region in the last 21 years.

Commenting on the latest water cannon firing by China, Collin Koh, a senior fellow at S. Rajaratnam School of International Studies in Singapore, described Beijing's action as a "blatant" move.

Batongbacal, the University of the Philippines professor who called for the annulment of the COC negotiations, said that "walking away" from talks is a valid negotiating option for ASEAN, "especially if the other side shows no good faith."

Responding to the possibility that such a move could only isolate the Philippines and other ASEAN countries supporting withdrawal from talks, he said China knows "that is what ASEAN thinks, which is why it feels confident that it can get away with anything."

Meanwhile, Prashanth Parameswaran, a global fellow at the Wilson Center, wrote that while there is still a possibility of an eventual COC "further the line", the "bigger question" is whether China's already growing presence in the South China Sea and the divisions with ASEAN "could increasingly render a COC virtually meaningless".