The COC will not resolve the South China Sea disputes, nor was it ever meant to. Instead the COC is intended to manage disputes to avoid conflict pending their eventual resolution by direct negotiation or arbitration among the claimants. But any system to effectively manage the South China Sea disputes would require three things, none of which are achieved yet in the draft text.
First, an effective COC would need to be geographically defined. The claimants do not need to resolve their disputes, but they do need to agree on where those disputes are if they hope to effectively manage them.
For instance, any agreement that did not include the Paracel Islands and the waters around them would be unacceptable to Hanoi. The same goes for the Philippines in the case of Scarborough Shoal. And what of waters and undersea features in the claimed exclusive economic zones of Indonesia and Malaysia? These areas are all claimed by China via the nine-dash line and would continue to be sites of tension if excluded.
According to Carl Thayer, who revealed many details of the draft text, Vietnam suggested that ‘the present Code of Conduct shall apply to all disputed features and overlapping maritime areas claimed under the 1982 UNCLOS [United Nations Convention on the Law of the Sea] in the South China Sea’. But that is too vague to be effective and is worded to exclude areas in which Beijing claims historic rights not recognised by other parties under UNCLOS.
Indonesia suggested adding that ‘the Parties are committed to respect the Exclusive Economic Zone and continental shelf of the coastal states as provided for in the 1982 UNCLOS’. But again that would seem to purposely exclude areas in which China claims and is sure to assert historic rights. It might be a legally correct position to take, but it is not an effective basis for a COC.
The only way that any code could work is if it clearly encompasses the areas under contention, including all reefs, rocks, submerged banks, waters and airspace in which China seeks to assert its historic rights. Specifying this without using language that would be unacceptable to any of the claimants would be difficult, but possible if all parties were committed to reaching a deal.
Second, an effective COC would need a dispute settlement mechanism. Disagreements over interpretation and application of the text are inevitable. This is clear from the history of the 2002 Declaration on the Conduct of Parties in the South China Sea, which was too vague and had no means to resolve disagreements. As a result, most parties violated the text while insisting that they were still in compliance and pointing their fingers at others.
To resolve this problem, both Indonesia and Vietnam reportedly suggested that parties to the COC be able to take disagreements to the High Council under the ASEAN Treaty of Amity and Cooperation. That body, which has never been convened, would include representatives nominated by ASEAN members to hear and mediate disputes. Its rulings would not be legally binding or necessarily enforceable, but they would have considerable weight.
A major problem with the High Council suggestion would be that under the Treaty of Amity and Cooperation it can only be constituted by ASEAN members. A more effective option might be to spell out the procedures for convening a High Council-like body that would draw arbiters from a pool nominated by all parties, including China.
Third, any effective regime to manage the South China Sea disputes would need detailed provisions on fisheries management and oil and gas development. But the positions enumerated in the negotiating text so far are contradictory and fall well short of outlining a detailed and coordinated system to manage resources.
For instance, Jakarta suggests that states should coordinate on fighting illegal fishing as a form of transnational crime, but Indonesia’s definition of illegal fishing includes activities that others, especially China, consider legal. And China’s suggestions on oil and gas cooperation seem more geared towards excluding foreign companies than towards equitably managing resources with fellow claimants.
Unfortunately, there is a fundamental contradiction in the COC. It is the wrong vehicle to discuss details on resource management because of its membership, but it cannot be an effective means to manage the disputes without doing so. Most of the ASEAN states have no stake in the contested fisheries or hydrocarbon resources and would be uninterested in negotiating the specifics of overlapping entitlements and resource rights.
The solution to this problem could be a COC signed by all 10 ASEAN members and China that establishes general rules of behaviour within a clear geographic area, sets up an effective dispute settlement mechanism and endorses the immediate start of follow-on negotiations involving only the relevant claimants on fisheries management and oil and gas cooperation.
Such a document would be a major step towards peacefully managing the South China Sea disputes and there are hints that at least some sections of the negotiating text might be on the right track. But the differences between parties remain considerable and final agreement on an effective COC still seems some way off.
Gregory B Poling is Director of the Asia Maritime Transparency Initiative and Fellow with the Southeast Asia Program at the Center for Strategic and International Studies in Washington, DC.
ASEAN member states in the Southeast Asia Nuclear Weapon Free Zone treaty defined their territority as follows:
For the purposes of this Treaty and its Protocol :
(a) “Southeast Asia Nuclear Weapon-Free Zone”, hereinafter referred to as the “Zone”, means the area comprising the territories of all States in Southeast Asia, namely, Brunei Darussalam, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand and Vietnam, and their respective continental shelves and Exclusive Economic Zones (EEZ);
(b) “territory” means the land territory, internal waters, territorial sea, archipelagic waters, the seabed and the sub-soil thereof and the airspace above them;
This is the only ASEAN Treaty that I am aware of that defines the territory of individual states. This could be incorporated in the Code of Conduct.
Of the eleven parties that adopted the Single Draft South China Sea Code of Conduct Negotiating Text, nine are members of the International Hydrographic Organisation (IHO) – Cambodia and Laos are not members. The code adopted the IHI’s definition of the South China Sea:
The International Hydrographic Organization defines the South China Sea as including the following area: On the South. The Eastern and Southern limits of Singapore and Malacca Straits [A line joining Tanjong Datok, the Southeast point of Johore (1°22′N 104°17′E) through Horsburgh Reef to Pulo Koko, the Northeastern extreme of Bintan Island (1°13.5′N 104°35′E). The Northeastern coast of Sumatra] as far West as Tanjong Kedabu (1°06′N 102°58′E) down the East coast of Sumatra to Lucipara Point (3°14′S 106°05′E) thence to Tanjong Nanka, the Southwest extremity of Banka Island, through this island to Tanjong Berikat the Eastern point (2°34′S 106°51′E), on to Tanjong Djemang (2°36′S 107°37′E) in Billiton, along the North coast of this island to Tanjong Boeroeng Mandi (2°46′S 108°16′E) and thence a line to Tanjong Sambar (3°00′S 110°19′E) the Southwest extreme of Borneo.On the East. From Tanjong Sambar through the West coast of Borneo to Tanjong Sampanmangio, the North point, thence a line to West points of Balabac and Secam Reefs, on to the West point of Bancalan Island and to Cape Buliluyan, the Southwest point of Palawan, through this island to Cabuli Point, the Northern point thereof, thence to the Northwest point of Busuanga and to Cape Calavite in the island of Mindoro, to the Northwest point of Lubang Island and to Point Fuego (14°08’N) in Luzon Island, through this island to Cape Engano, the Northeast point of Luzon, along a line joining this cape with the East point of Balintang Island (20°N) and to the East point of Y’Ami Island (21°05’N) thence to Garan Bi, the Southern point of Taiwan (Formosa), through this island to Santyo (25°N) its North Eastern Point.
On the North. From Fuki Kaku the North point of Formosa to Kiushan Tao (Turnabout Island) on to the South point of Haitan Tao (25°25’N) and thence Westward on the parallel of 25°24′ North to the coast of Fukien.
On the West. The Mainland, the Southern limit of the Gulf of Thailand and the East coast of the Malay Peninsula.