In 2002, ASEAN and China signed the Declaration on the Conduct of Parties in the South China Sea (DOC) that promised to “enhance favourable conditions for a peaceful and durable solution of differences and disputes among countries concerned.” Unfortunately, thirteen years on, the claimant countries are no closer to a solution for any of the disputes, while coercive and other unilateral acts are steadily accumulating into serious tensions. What is needed now is a Code of Conduct (COC) that not only overcomes the DOC’s weaknesses but also addresses the new challenges that have arisen since 2002.
The fact that China’s armed seizure of islands and reefs in 1974 and 1988 has not been repeated since 2002 could be seen as a success of the DOC. This might, however, also be due to the regional and global geopolitical environments. Furthermore, since 2009 China has developed the strategy of using paramilitary forces in white hulls against other claimants, including the use of water cannons, sabotaging seismic survey equipment, and vessel ramming– all moves that seek to technically sidestep the DOC’s requirement that claimants not resort “to the threat of use of force.”
More fundamentally, the DOC has failed in that, except for the Sino-Vietnamese negotiation to demarcate the waters outside the Gulf of Tonkin, there has not been any negotiation to resolve the jurisdictional disputes, let alone the territorial ones.
The fact that since 2002 no country has inhabited previously uninhabited features is a clear success of the DOC. However, in 2012 China started to exclude Philippine nationals from Scarborough Reef, effectively seizing a previously uninhabited feature by using maritime paramilitary forces. Technically speaking, there is no inhabitation on the reef, so there is no violation of the DOC. On the other hand, the Declaration’s spirit of preventing the seizing of new features has been violated. In addition, China’s large scale island-building activities represent a massive change in the status of the features, even if they do not constitute new occupation. These actions thereby violate the spirit of the agreement. Last but not least, China’s blockade of Second Thomas Shoal is an attempt to dislodge the Philippines from a feature inhabited by its nationals, and is a violation of the complementary side of the same spirit.
With hindsight, we can date China’s abandonment of its “peaceful rise” policy to between 2006 and 2007 when it withdrew from UNCLOS’s dispute settlement procedure for matters relating to maritime delimitation and then pressed BP to pull out of petroleum projects in the Nam Con Son Basin. The Nam Con Son Basin is closer to Vietnam’s uncontested territories than to the disputed Spratlys, and UNCLOS’s dispute settlement procedure would no doubt lead to the conclusion that it is part of Vietnam’s EEZ. Ever since China’s withdrawal from UNCLOS dispute mechanisms, there has been a constant stream of incidents relating to maritime space that the DOC has been completely ineffectual in preventing. This failure stems from the fact that it fails to specify what “activities that would complicate or escalate disputes and affect peace and stability” actually consist of. As a result, that phrase has become meaningless rhetoric that the claimants can brandish, sometimes hypocritically, to accuse others of violating the DOC.
Faced with mounting tensions caused by the strategies, tactics, and coercive and unilateral actions that have been deployed in the South China Sea since 2007, some governments and analysts have pinned hope on a new COC between ASEAN and China. However, the South China Sea region cannot afford another ineffectual document. The COC must not only overcome the DOC’s weaknesses but also address the new challenges that have arisen since 2002. Among these are the new strategies and tactics that various claimants have developed, China’s withdrawal from UNCLOS’s dispute settlement procedure for matters relating to maritime delimitation, and the newly created or enlarged islands in the Spratlys region. What, then, are the elements of a COC that may be fair and effective?
First, a COC should maintain the status quo regarding the various claimants’ de facto control over the islands and reefs. While each claimant naturally sees the others’ control over these features as illegal, any coercive attempt to change this status quo is unacceptable. These principles build on the DOC’s success in preventing the seizing of new features, taking into account new tactics such as seizing without inhabiting, dislodging an incumbent occupier by blockading, and large-scale island building. Hence:
- The claimants shall not seize features occupied by others;
- The claimants shall not blockade features occupied by others;
- The claimants shall not seize unoccupied features, either by actual occupation or by denying access to other claimants;
- The claimants shall not create artificial islands from submerged areas or low-tide elevations and shall not enlarge either natural or artificial islands;
A second set of principles must define the land features that are subject to sovereignty disputes, thereby deterring attempts to conjure up sovereignty or sovereignty disputes where none exists, or to deny the existence of actual disputes, all of which contribute significantly to tensions:
- The claimants shall claim sovereignty only over islands, defined as features that are naturally above water at high tide. Low-tide elevations within the territorial sea of an island are under the same sovereignty as the island. The claimants shall come to an agreement on which features are islands, and which are not;
- The claimants shall come to an agreement on which islands are disputed among them;
A third set of principles should address the islands’ 12 nautical mile territorial seas, over which the claimants claim sovereignty. Unlike the case with islands and reefs, there are no clear lines of control in these territorial seas, which means there is a high risk of clashes if any country justifies its unilateral actions there by saying that these actions are within its sovereignty. These principles aim to prevent coercive and other unfair unilateral actions in these territorial seas. They are also necessary for the protection of the rights of countries not involved in the disputes:
- Claims to straight baselines and territorial sea shall conform to UNCLOS. The regime for the territorial sea, including the right of innocent passage, must conform to UNCLOS;
- The territorial sea of a disputed island is also disputed. The claimants shall agree on an equitable provisional regime for this disputed territorial sea;
A fourth set of principles is required to reduce tensions in the waters of the South China Sea that are beyond the disputed islands and their territorial seas. While the tiny disputed islands are the basis of the conflicting claims in the South China Sea, it is the vast expanse of maritime space that is more valuable in terms of both resources and strategic control. Consequently, conflicts over jurisdictional rights over these waters are actually more likely than those over the islands themselves. It is worth noting that the concept of joint development of the disputed areas, which offers a promising approach for managing tensions, requires consensus on where these disputed areas are; these principles are necessary for that consensus.
- The claimants shall come to an agreement on which disputed islands are entitled to EEZs;
- If an island is entitled to an EEZ, the claimants will come to an agreement on the extent of this EEZ, independent of questions over the island’s sovereignty;
- A disputed island’s EEZ is also disputed. The principles of UNCLOS Article 74 apply and the claimants will agree on a cooperative transitional regime based on these principles;
Because different conduct is required for disputed areas and undisputed areas, the Code of Conduct must differentiate these two types of areas in order to be fair and effective. For example, a Code of Conduct might rightly stipulate joint development for the disputed areas, but that stipulation would be subverted if a claimant demanded that it be applied to areas that are not legally disputed:
- The waters outside these EEZs have nothing to do with the sovereignty disputes over the islands and are therefore not disputed (unless they are disputed due to overlapping EEZ or continental shelf entitlements by the mainland coasts). In these undisputed waters, the parties to the COC shall come to concrete agreements for cooperation according to their rights and responsibilities under UNCLOS;
Finally, not only must the terms of the COC be fair, but their interpretation must be objective, and the safety net for this is interpretation by an international court when all else fails:
- If there are irreconcilable differences in any of the principles above or in their interpretation, an international court will arbitrate.
Unlike the DOC, the above principles do not address the resolution of the jurisdictional and territorial disputes. On the other hand, they lay out what is necessary for equitable and effective tension management in the South China Sea. Unfortunately, a claimant which judges that it could gain more through coercion is likely to regard equitable tension management as no more attractive than equitable solutions to the disputes. The other claimants must then decide: should they accept a COC that has been rendered ineffective so that all the relevant parties are willing to sign, or should they try to achieve COC with the necessary principles, but which one of the claimants will not sign? Perhaps the answer is that the smaller claimant countries should begin by agreeing among themselves the principles that are necessary for equitable tension management. They should then seek, and very likely receive, support for those principles from nations that abhor creeping coercion and aim to ensure fairness and stability. This will both help to improve the chance of achieving a more effective COC and give them additional protection where this COC still has limitations.