South China Sea disputes are indeed a complex setting at a high-level political agenda. The state and progress of consultation, however, are diluted by respective individual member State interests and highly driven by their foreign policy postures, which include but are not limited to, acts of power balancing, hedging, and interdependence, if any, mainly on economic and trade.
In addition to the Track 1 dialogue, several Track 1.5 and Track 2 consultations have been held—in the past, ongoing, and in planning—to address various dimensions of South China Sea complexities. In addition to its core of legal and dispute settlements, member States and partners also discussed confidence-building measures (CBMs), preventive diplomacy, prevention of potential conflict, and treatment of non-militia and non-State actors such as fishermen.
On a regional level, in addition to our ASEAN Meetings, particularly the ASEAN Maritime Forum, we have extra-regional forums to address the aforementioned issues. For instance, the Expanded ASEAN Maritime Forum (EAMF), which involves ASEAN and participating countries (Australia, China, India, Japan, New Zealand, Korea, Russia & USA), and the ASEAN Regional Forum (ARF), which involves ASEAN + 10 dialogue partners and seven other nations.
The ongoing negotiations to formulate and conclude the Code of Conduct (CoC) -a continuation of the conclusion of the Declaration of Conduct (DoC) parties since 2002 (albeit not fully implemented yet)- are a significant step in the continuous efforts to resolve the South China Sea disputes. These negotiations, a joint effort of ASEAN and China, hold the key to managing potential conflicts in the region.
Though there is no sign of a substantive and comprehensive formulation of the CoC, progress was achieved last July (13 July 2023) with the adoption of the Guidelines for Accelerating the Early Conclusion of an Effective and Substantive Code of Conduct in the South China Sea and the completion of the second reading of the Single Draft COC Negotiating Text.
While the CoC originally aimed to mitigate conflicts and promote self-constraints among the claimant States, the discussion should still be guided by public international law, particularly the 1982 UNCLOS. While the CoC talks involve ASEAN and China, they should also take into account the rights of other user States under the law of the sea.
Moving forward, there are three questions to ponder on how CoC should be. First, to what level of CoC will bind the signatories States? Would it be just a code or MoU as guidelines, or should it be concluded as a legal document that binds signatories to adhere and commit to all agreeable provisions? This is the prudent question, given that the nature of CoC will determine its effectiveness. Either it means to serve as a real political agreement or a form of talk show with no real setting to be implemented.
Second, as the CoC will serve as an instrument to manage conflicts in the South China Sea, how do we deal with any disputes that arise concerning the interpretation or implementation of the CoC? Would ASEAN and China agree to form their own arbitral organ to resolve the disputes between the parties, or would they opt for third-party settlements under the 1982 UNCLOS by utilising the International Tribunal for Law of the Sea (ITLOS), arbitral tribunal or any forms of disputes settlement such as conciliation?
Finally, given the nature of the CoC, that not in place to serve for the settlement of maritime boundary disputes as in accordance with Article 74(3) and Article 83(3) of the 1982 UNCLOS because of recognition of overlapping claims, particularly China’s claims are non-existence as it considered invalid, excessive and unilateral. Hence, it is argued that the CoC is a political rather than legal instrument, one of the mechanisms of preventive diplomacy in the South China Sea. Therefore, there is a question on collective responsibility and obligation towards the maintenance of peace, safety and security in the South China Sea – should CoC be limited to ASEAN and China only, or open to other user States?
After all, as we keep stressing the ASEAN centrality, it is up to ASEAN member States and its chairman to navigate the agenda setting and prioritise what is best for ASEAN political security.
Author works in the sphere of public policy and has experience as a policy advisor and political-risk consultant with specialisation in public international law, national security, defence and foreign policy. He is contactable at ariff@policyadvisor.my.
[Photo credit: KEMLU]
