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A Closer Look at the ASEAN-China Single Draft South China Sea Code of Conduct

 
 

On August 3, the foreign ministers of the 10 member states of the Association of Southeast Asian Nations (ASEAN) and their Chinese counterpart announced agreement on a Single Draft South China Sea Code of Conduct Negotiating Text (SDNT) that will serve as the basis for the adoption of a Code of Conduct in the South China Sea.

The SDNT is 19 A4-sized pages long. It is structured according to the previously adopted Framework Agreement on the Code of Conduct into three main sections – preambular provisions, general provisions, and final clauses. The SDNT is color-coded black for text taken from the COC Framework, blue for the consolidated text, and green to identify the input by the 11 parties.

The SDNT repeats the wording in the Framework Code of Conduct that it is “not an instrument to settle territorial disputes or maritime delimitation issues.” Under Section 2 on General Principles, Malaysia inserted the standard legal caveat that:

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The Parties further acknowledge that the COC does not address nor affect the Parties’ position on legal questions relating to the settlement of disputes, maritime boundaries, or the permissible maritime entitlements of the Parties under international law of the sea and enshrined/reflected in the 1982 UNCLOS.

Space precludes a complete summary and analysis of the SDNT. This article addresses five main issues: the document’s geographic scope; dispute settlement; the duty to cooperate; the role of third parties; and the legal status of the final Code of Conduct in the South China Sea.

Geographic Scope

The SDNT does not clearly define the geographic scope of the South China Sea. Under General Provisions, Vietnam suggested that, “the present Code of Conduct shall apply to all disputed features and overlapping maritime areas claimed under the 1982 UNCLOS in the South China Sea.” Indonesia inserted, “the Parties are committed to respect the Exclusive Economic Zone and continental shelf of the coastal states as provided for in the 1982 UNCLOS.”

Malaysia proposed, “depending on the operative elements/contents of the COC, the geographic scope/scope of application may have to be defined,” while Singapore inserted the comment “the Parties may wish to consider the utility of including a section defining the terms contained herein.”

Dispute Settlement

A very large portion of the SDNT is devoted to the prevention, management, and settlement of disputes in the South China Sea among the parties. The SDNT, however, does not contain any specific reference to the binding dispute mechanisms included in UNCLOS Annex VII.

With respect to dispute settlement, Indonesia offered the following:

The Parties agreed, as appropriate, to resort to the High Council of the Treaty of Amity and Cooperation (TAC) at the consent of the Parties concerned, to settle any dispute relating to incidents that many arise in the South China Sea.

The Parties agreed that any unresolved incident may be referred to an appropriate international disputes settlement mechanism, at the consent of the concerned Parties.

Vietnam proposed that parties settle their disputes “through friendly negotiations, enquiry, mediation, conciliation and other means as may be agreed by the disputing Contracting Parties.” Failing that, Vietnam suggested the disputants “utilize the dispute settlement mechanism under relevant provisions of the Treaty of Amity and Cooperation in Southeast Asia.”

Vietnam concluded that nothing in the COC “shall prevent” the peaceful settlement of disputes under Article 33(1) of the Charter of the United Nations. Article 33 includes “other means” such as arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means decided by the parties concerned.

The SDNT contains two options for monitoring implementation. The first option, supported by Brunei, Cambodia, China, Malaysia, and Singapore, places responsibility with the ASEAN-China Senior Officials’ Meeting. The second option, proposed by Vietnam, calls for setting up a Commission led by foreign ministers or their representatives.

Duty to Cooperate

The SDNT takes its lead from provisions in UNCLOS that state signatories have a duty to cooperate to protect the marine environment in a semi-enclosed sea and pending settlement of disputes state signatories should enter into arrangements of a practical nature.

Section 2 (General Provisions), sub-section c (Basic undertakings) contains six points: i (Duty to cooperate), ii (Promotion of practical maritime cooperation), iii (Self-restraint/Promotion of trust and confidence), iv (Prevention of incidents), v (Management of incidents), and vi (Other undertakings, in accordance with international law, to fulfill the objectives and principles of the COC).

Section 2.c is perhaps the most contentions portion of the SDNT. For example, this section includes an extended elaboration of four options on the duty to cooperate and promotion of practical maritime cooperation, followed by two sets of options on self-restraint/promotion of trust, and a concluding discussion of the remaining three points. The SDNT then includes a proposal by Vietnam to replace 2.c (Basic Understandings) in its entirety with 27 points prescribing what states shall do and shall not do.

In Section 2.c (i and ii), the Philippines, Indonesia and Singapore, China, and Cambodia, respectively, proposed four separate options on the duty to cooperate. With the exception of China, all the other options basically included the five areas of cooperation included in the Declaration on Conduct of Parties in the South China Sea (DOC). These include: marine environmental protection, marine scientific research, safety of navigation and communication at sea, and combating transnational crime. Indonesia’s proposal includes illegal fishing to the DOC list on transnational crime – trafficking in illicit drugs, piracy and armed robbery at sea, and illegal traffic in arms. Cambodia’s proposal includes marine connectivity.

China’s contribution overlaps in part with the other options but it is notable for the detail it provides on six areas of cooperation – conservation of fishing resources, maritime law and security cooperation, navigation and search and rescue, maritime scientific research and environmental protection, marine economy including aquaculture and oil and gas cooperation, and marine culture.

Most significantly China’s proposal on cooperation on the marine economy states that cooperation is to be carried out by the littoral states “and shall not be conducted in cooperation with companies from countries outside the region.” In contrast, Malaysia proposed that nothing in the COC “shall affect… rights or ability of the Parties to conduct activities with foreign countries or private entities of their own choosing.”

Two options are proposed under 2.c.iii headed Self-restraint/Promotion of trust and confidence. The first option was tabled by Indonesia and includes four measures: dialogues between defense and military officials, humane treatment of persons in distress, voluntary notification of impending joint/combined military exercises, and the exchange of relevant information on a regular basis.

The second option under 2.c.iii contains seven points, five of which are proposed by China, one proposed by the Philippines and a final point proposed jointly by China and the Philippines.

China’s first point states that “military activities in the region shall be conducive to enhancing mutual trust.” China’s second point calls for exchanges between defense and military forces including “mutual port calls of military vessels and joint patrols on a regular basis.” Point three calls for “undertaking joint military exercises among China and ASEAN Member States on a regular basis.”

China’s point four states:

The Parties shall establish a notification mechanism on military activities, and to notify each other of major military activities if deemed necessary. The Parties shall not hold joint military exercises with countries from outside the region, unless the parties concerned are notified beforehand and express no objection.

China’s fifth point notes that military vessels and aircraft enjoy sovereign immunity and are “immune from the jurisdiction of any State other than the flag state.” Further, military vessels and aircraft are entitled to self-defense “but should have due regard for the other side’s military vessels and military aircraft…”

China and the Philippines both inserted point six that called for the “just and humane treatment of all persons who are either in danger or in distress in the South China Sea.”

Finally, the Philippines proposed point seven that included “respect of the exercise of traditional fishing rights by fishermen… [and] access to features and fishing grounds.”

Vietnam tabled its own proposals to replace all of the above in Section 2.c. Vietnam suggested that the Contracting States respect “the maritime zones as provided for and established in accordance with the 1982 UNCLOS.” Vietnam also suggested that the Contracting States provide 60 days notification of “impending joint/combined military exercise/drill” in the South China Sea.

Vietnam also suggested specific guidance on what the Contracting States should not do, including construct on any artificial island, militarize features, blockade vessels carrying provisions or personnel for rotation, declare an Air Defense Identification Zone, and conduct simulated attacks at the vessels and aircraft of other countries.

Role of Third Parties

Third parties are states that are not signatories to the COC. There is no reference in the SDNT about accession to the COC by third parties. Brunei proposed that “following the Entry into Force of the COC, the Parties can jointly propose an UNGA (United Nations General Assembly) biennial resolution which would ensure all other countries respect the principles contained in the COC.

As noted above, China’s input into the SDNT aims to bind ASEAN members states in the COC and limit if not exclude the involvement of third parties.

Legal Status 

The SDNT does not include reference to the COC as a treaty under international law. It does contain a proposal by Vietnam that the Contracting States “have consented to be bound by the present Code of Conduct…” Vietnam also suggested that the COC “be subject to ratification in accordance with the respective internal procedure of the signatory States” and the instrument of ratification be deposited with the ASEAN Secretary General who “shall register” the COC pursuant to Article 102 of the Charter of the United Nations.

Both Brunei and Vietnam separately proposed that no Contracting Party may hold a reservation when signing the COC.

The present text of the SDNT is replete with references to international law in general and UNCLOS in particular. Yet it does not mention the duty of state parties to UNCLOS to immediately comply with awards issued through arbitral proceedings established under Annex VII.

The SDNT is a “living document,” which means the parties may add to or subtract from the draft text. The text of the SDNT includes the possibility of including guidelines and protocols in an annex.

The SDNT is also a work in progress that is slated to go through at least three readings to create a final Code of Conduct in the South China Sea.

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