The Southeast Asian bloc of nations and China are a step closer to forming a Code of Conduct (COC) for the South China Sea , and for Vietnam it’s a chance to replace a disappointing and toothless diplomatic pact with real dispute management provisions.

The two sides agreed last August to the negotiating text that forms the basis of talks on the contentious subjects of a new COC. With such a development came valuable insights into the positions of all negotiating parties, particularly Vietnam, which has long faced tensions in the South China Sea.In the 1990s, Vietnam sought to establish a COC, submitting along with the Philippines a first draft code to the Asean bloc. But differences remained between Asean and China. Eventually, Asean member states agreed to a watered down position and signed the 2002 Asean-China Declaration on the Conduct of Parties (DOC).

The DOC – although a meaningful step and “a major leap for peace”, as described by the Philippines foreign affairs secretary of the time Blas F Ople – did not fully meet the expectations of some Asean members. For Vietnam, it fell short of specifying the geographical scope and did not ban the construction of new structures on submerged features.

Nevertheless, Vietnam still treats the DOC as an essential tool to protect its interests in the South China Sea, frequently citing it as a basis for diplomatic protests against China.

But over the years, the DOC has shown its limitations, especially because of its non-binding nature and its low level of enforcement. Since 2002, incidents in the South China Sea have questioned its effectiveness, including the 2012 Scarborough Shoal stand-off between China and the Philippines; the 2014 oil rig crisis between China and Vietnam; and China’s construction and militarisation of seven artificial islands in the Spratlys.

Other lower-profile yet no less worrisome incidents involved China’s repeated harassment of Vietnam’s oil and gas operations in its exclusive economic zone (EEZ), or China’s various violent attacks against Vietnamese fishermen, especially in the waters around the disputed Paracels.

As such, establishing a “substantive and effective” COC has been Vietnam’s focus. In September 2013, Asean and China formally commenced consultations on a COC. But again, little progress was made while tensions rose in the South China Sea due to ongoing disputes such as the Philippines’ arbitration case against China, the 2014 oil rig crisis and China’s construction in the Spratlys. It was not until after the historic ruling issued by the Arbitral Tribunal at The Hague in July 2016 that China began to consider fast-tracking COC consultations.

As a major claimant state in the South China Sea, Vietnam has a significant stake in the outcome of the COC process. And over the years it has repeatedly urged the parties to adopt a code that is legally binding, that provides actual mechanisms for managing disputes, and is not just another political document that lacks teeth.

Commenting on Chinese Premier Li Keqiang’s proposal in November 2018 that Asean and China should aim to reach a COC within three years, Vietnamese foreign affairs deputy spokesperson Nguyen Phuong Tra said “it is of utmost importance to reach a COC that is substantive and effective, in accordance with international law, especially the 1982 United Nations Convention on the Law of the Sea”.

Hanoi’s demand for a “substantive and effective” code stems mainly from its disappointments with the limitations – legally and geographically – of the 2002 DOC.

Geographically, unlike the current DOC, Vietnam wants a COC that applies to both the Paracels and the Spratlys, as well as the disputed South China Sea waters themselves.

This is because Vietnam wants to treat the Paracels, half of which was forcefully seized by China from Vietnam in 1974, as disputed territory – though China does not consider the Paracels as such. US plans to send second aircraft carrier to Vietnam, highlighting concerns about China’s regional influence

China’s law-enforcement authorities have frequently harassed or attacked Vietnamese fishermen in the waters around the Paracels. The most recent example involved a Vietnamese fishing boat moored near Da Loi island in the Paracels on March 6 when a China Maritime Surveillance vessel chased and fired water cannon at it. The boat later sank after hitting rocks while being chased.

During the 1990s attempt to forge a COC, Vietnam and other Asean member states did not raise the issue of legal enforcement largely because they considered the prospective COC as a tool for confidence building.

But the reality over the past two decades, with recurring violations of the DOC by signatory states, shows that such a belief is misplaced, and a non-binding COC will have little effect in fulfilling its intended purpose of maintaining peace and stability in the South China Sea.

This time around, Vietnam wants all contracting states to be bound by the COC in full without any reservation. It also wants the code to be ratified by signatory states in accordance with their respective internal procedures.

Vietnam has proposed dispute settlement measures, such as friendly negotiations or mediation, but also says nothing should prevent other peaceful means of dispute settlement – a move that implies Hanoi wants to keep its legal options open when dealing with China.

This stance is understandable given Vietnam’s persistent efforts in accumulating historical and legal evidence to prepare for a “legal showdown” in which Vietnam will resort to international adjudication to address its grievances against China in the South China Sea, especially regarding the Paracels.

In 2014, prime minister at the time, Nguyen Tan Dung, said Vietnam was considering different options to protect its maritime interests against China’s encroachments.

The last of Vietnam’s demands for the proposed COC is that, unlike the broad and non-specific nature of the DOC, the newly negotiated COC should be much more specific and based on real experiences in dealing with China.

For example, its demand for parties to respect the maritime zones as established in accordance with the 1982 United Nations Convention on the Law of the Sea seems to derive from China’s past incursions into its EEZ.

Though Vietnam’s long list of demands seem to be a tall order for many observers, the COC negotiations are still in the initial stage, and all parties are aiming high to create more room for possible compromises down the road. Some Vietnamese officials even said they tended to believe that “it is better to have no deal than a bad deal”.

With Vietnam holding the Asean chairmanship in 2020, Hanoi will have an opportunity to highlight the South China Sea issue. It may also try to accelerate the COC negotiations, but not at the expense of the code’s substance.

Inevitably, COC negotiations will be challenging and time-consuming. Painful trade-offs between achieving a COC early and making it substantive and effective will present difficult choices for all parties.

By Le Hong Hiep - The South China Morning Post - April 9, 2019