Towards a Code of Conduct for the South China Sea

Summary

EXECUTIVE SUMMARY

1. • In discussing a code of conduct for the South China Sea, some facts have to be taken into account and certain issues addressed. For example:

2. 1. How to overcome the obstacles, pertaining to the area of application of the proposed code, that caused the downgrading of the initially proposed code of conduct to the eventual “Declaration on the Conduct of Parties in the South China Sea” in November 2002;

3. 2. Whether the proposed code is to be negotiated bilaterally or in an international or ASEAN-centred forum;

4. 3. Whether or not ASEAN member-states should consult among themselves, and at what stage China should be involved;

5. 4. How early is early when ASEAN repeatedly calls for the “early conclusion” of a code of conduct;

6. 5. The interests of non-claimants in regional peace and stability, the prevalence of the rule of law, and freedom and safety of navigation and overflight;

7. 6. The national interest as against the rule of international law. • Since neither ASEAN nor the ASEAN-China senior officials consultations is an adjudicating body, sovereignty and other legal issues cannot be resolved anytime soon. The most that can be achieved is that the national interest can be peacefully pursued, but not at the expense of those of others.

INTRODUCTION

On 20 July 2012, foreign ministers of the Member States of the Association of Southeast Asian Nations (ASEAN) called for “the early conclusion of a Regional Code of Conduct in the South China Sea”. The statement that the Cambodian foreign minister, as chairman of the 9 July ASEAN Ministerial Meeting, issued on behalf of his colleagues also invoked past ASEAN agreements pertaining to the rule of international law, self-restraint, the non-use of force, and the peaceful resolution of disputes. Based entirely on an Indonesian draft cleared with all ASEAN member-states, the statement laid down what were veritably the positions of ASEAN countries, claimants and non-claimants alike, on the South China Sea and their interests in it.

In thinking about or discussing or deciding upon a proposed Code of Conduct for the South China Sea, some facts ought to be taken into consideration and certain issues have to be resolved — or fudged over — or, in any case, addressed.