Law and the South China Sea

To help control potential armed conflicts in the South China Sea, the Association of Southeast Asian Nations has recently pressed China to conclude a Code of Conduct (COC) to replace the Declaration of Conduct (DOC) of Parties in the South China Sea that was signed between ASEAN and China in 2002.

Negotiations on the COC have long been delayed by China’s unwillingness to be constrained by such a document, but ASEAN’s northern neighbour seems recently to be more cooperative over the issue, and discussions have made more rapid progress as a result. The COC will therefore be high on the agenda of the ASEAN foreign ministers meeting in Bali this week, and is expected to be finalized before the ASEAN summit in November. The hope is that an agreement will be in place to mark the 20th anniversary of ASEAN-China dialogue relations.

The key rationale for ASEAN pursuing the COC with China is its supposedly higher legal standing compared with the DOC, a document that reflects parties’ political will rather than their legal commitments. ASEAN hopes that the more legally binding COC will encourage China to refrain from resorting to force or other coercive measures in resolving disputes with ASEAN claimant states over the South China Sea.

However, while persuading China to sign the document seems to be a painstaking mission for ASEAN, the COC itself will probably make no practical difference in helping ASEAN member states successfully deal with their increasingly assertive, giant neighbour. Indeed, the argument that a COC is somehow more legally binding than a DOC is itself misleading.

First, the concept of a COC is mainly applicable to organizations, such as government agencies or multinational corporations (although some argue that COCs for individuals and organizations could also be applicable to the international community in the form of COCs among states, which basically turn such codes into sources of public international law). In fact, there have been a number of COCs among states, such as the FAO Code of Conduct for Responsible Fisheries (1995) and the Hague Code of Conduct against Ballistic Missile Proliferation (2002). These COCs, however, are still widely considered as ‘soft laws,’ or normative non-binding instruments only.

Second, current international legal instruments on treaties, especially the 1969 Vienna Convention on the law of treaties, doesn’t provide for the legal validity of COCs. The same thing happens with national laws. For example, Vietnam’s 2005 Law on Conclusion, Accession to and Implementation of Treaties doesn’t even mention COCs, let alone their legal validity. The national law of China and other ASEAN states, meanwhile, also fail to consider COCs as a source of their international commitments.

Third, due to a COC’s elusive validity, its implementation may be subject to technical problems. Even if China agrees to sign a COC for the South China Sea, it might justify its noncompliance with the code by claiming that its national laws don’t recognize the COC as a source of its international obligations.

In addition, as the COC deals with territorial disputes – essentially a matter of national sovereignty – other parties to the COC may also refer to their relevant national legislations to render the COC invalid. In the case of Vietnam, for example, its national laws provide that any international agreement related to the country’s ‘peace, security, territory and national sovereignty’ needs to be ratified by the State President or the National Assembly to be binding. Although the COC is basically a document relating to the country’s territory and sovereignty, as it isn’t recognized as a treaty by Vietnamese law, it won’t be eligible for similar domestic procedures. It will therefore be technically difficult for the COC to be legally binding on Vietnam.

With this in mind, it begs the question: Why should ASEAN squander effort on a COC that might not be any more effective than a DOC in binding China to a peaceful solution of the disputes and constraining its ambitions?

Instead, ASEAN should think ahead and come up with some alternatives.

The simplest thing would be for ASEAN to push for a treaty on the conduct of parties in the South China Sea rather than a COC. A treaty is clearly more legally binding than a COC or DOC and presents fewer technical problems in implementation. Such a treaty could use the 1976 Treaty of Amity and Cooperation in Southeast Asia, which in essence provides for the conduct among Southeast Asian states, as a reference model. The treaty could accordingly be entitled ‘Treaty on Peace and Prosperity in the South China Sea.’

It could be argued that pushing for such a treaty is impractical at present, given China’s unwillingness to deal with even a COC. In that case, the COC could serve as a transitional step. ASEAN should embrace a treaty on the conduct of parties in the South China Sea as part of its vision, and set up a roadmap toward this end. Even should China resist such a treaty, ASEAN member states can still negotiate and conclude the treaty among themselves, before opening it for accession by other interested parties. Once other countries in the region, such as Japan, the United States, South Korea, and India, become parties to the treaties, China will be under enormous pressure to follow suit.

All in all, a treaty on the conduct of parties in the South China Sea, though trickier to negotiate, will pay greater dividends than a COC. The problem now rests with the ASEAN member states themselves, who still seem to be divided over how to deal with their neighbour.

Le Hong Hiep is a lecturer at the Faculty of International Relations, College of Social Sciences and Humanities, Vietnam National University – Ho Chi Minh City, and is currently a Ph.D. Candidate at the University of New South Wales at the Australian Defence Force Academy.