IMPORTANT POLITICAL SOLUTION
ASEAN-China Framework for the Code of Conduct for the South China Sea
On 6 August 2017 in Manila, the foreign ministers of China and ASEAN endorsed the framework on the Code of Conduct for the South China Sea (COC). The framework had earlier been approved by the ASEAN-China Senior Officials Meeting on the Implementation of the Declaration on the Conduct of Parties in the South China Sea (SOMDOC) in Guiyang, China on 19 May 2017. The framework was broadly welcomed by ASEAN and Chinese leaders
The process of negotiating a COC has been long and arduous. The 2002 ASEAN-China Declaration on the Conduct of Parties in the South China Sea (DOC) had called on the parties to adopt a COC. The difference between the DOC and the proposed COC was never made clear, though some ASEAN members, especially the Southeast Asian claimants, envisaged a legally-binding agreement that would be more comprehensive and effective than the DOC which was a non-binding political statement. It was not until 2013 that China agreed to start talks with ASEAN.
Arbitral Tribunal at The Hague had issued its historic ruling on 12 July 20167 that China consented to accelerate the talks. There are two possible reasons why China agreed to do so. First, that Beijing wanted to deflect criticism away from its rejection of the Tribunal’s award and instead project the image of a cooperative partner. Second, Philippine President Rodrigo Duterte’s priority of strengthening economic ties with China while addressing the two countries’ overlapping maritime territorial and jurisdictional claims on a bilateral basis.
In the first half of 2017, ASEAN and Chinese officials met three times to discuss the COC. At the 19th ASEAN-China Joint Working Group on the Implementation of the Declaration on the Conduct of Parties in the South China Sea (JWG-DOC) meeting in Bali, Indonesia on 27 February the two sides agreed on the basic outline of the draft framework.
The framework is slightly over a page long and is divided into three parts: 1. Preambular Provisions; 2. General Provisions; and 3. Final Clauses.
PREAMBULAR PROVISIONS “Preambular Provisions” lists only three brief items: a. Bases of the COC; b. Interconnection and interaction between DOC and COC; and c. Importance and aspirations.
GENERAL PROVISIONS “General Provisions” is composed of three parts: a. Objectives; b. Principles; and c. Basic undertakings.
Very important, second principle is a commitment to the “purposes and principles” of the United Nations Charter, the 1982 United Nations Convention on the Law of the Sea (UNCLOS), the Treaty of Amity and Cooperation, the Five Principles of Peaceful Coexistence and “other universally recognized principles of international law”. This language also appears in the DOC and has formed the basis of ASEAN-China ties since dialogue relations were established in 1991. “Duty to cooperate” is an obligation under UNCLOS, which all the parties have ratified except Cambodia
FINAL CLAUSES The third and last part of the framework is Final Clauses. It has five brief lines: a. “Encourage other countries to respect the principles contained in the COC”; b. “Necessary mechanisms for monitoring of implementation”; c. “Review of the COC”; d. “Nature”; and e. “Entry into force.”
It seems that Beijing’s intention is to frame the South China Sea as an issue between China and the Southeast Asian claimants only—with ASEAN playing a limited role in conflict management—and that other stakeholders, especially the United States and Japan, should not “interfere” in the dispute. This conforms to China’s long-standing position which was reiterated by Foreign Minister Wang in Manila.
WHAT’S MISSING? Apart from detailed provisions and the phrase “legally binding”, there are several important issues which are not included in the agreement.
First, the framework does not mention the geographical scope of the COC, including whether it will apply to both the disputed Paracels and Spratly Islands or only to certain areas.
Second, while the text mentions “mechanisms for monitoring of implementation”, it is silent about enforcement measures and arbitration mechanisms should one party accuse another of violating the code. Generally speaking, ASEAN eschews enforcement clauses in its agreements. Nevertheless, the absence of enforcement measures and arbitration mechanisms will weaken the effectiveness of the final COC.
Despite its shortcomings, ASEAN and China’s endorsement of the framework is a step forward in the two-decade long conflict management process for the South China Sea. Going forward, the framework will form the basis of negotiations between ASEAN and China on the COC.
Prepared by Krystyna Palonka
based on ISEAS – YUSOF ISHAK INSTITUTE -ANALYSE CURRENT EVENTS ISSUE: 2017 No. 62; Singapore | 8 August 2017