The negotiation for the adoption of a Code of Conduct (COC) for the South China Sea between ASEAN countries and China usually sparks controversies. The necessity of a COC regulating maritime activities in the region was first mentioned in an ASEAN document in 1992 and appeared in a joint declaration of ASEAN and China in 2002. Yet, 20 years later, the two parties are still discussing the structure and the text of the document. This process is already significantly longer than the negotiation of the 1982 United Nations Law of the Sea Convention (UNCLOS) which took 9 years to reach consensus among more than 100 states. Some observers called for abandoning the COC negotiation as it has gone nowhere. Others who maintain support for the process contend that it is a necessary confidence-building mechanism for the region.
One of the reasons for the prolongation of the COC negotiation is arguably the fundamental differences in the interpretation and application of UNCLOS in the South China Sea between ASEAN countries and China. On the one hand, for China, UNCLOS does not exhaustively govern all issues at sea; particularly, matters pertaining to historic rights fall outside the scope of the Convention. On the other hand, ASEAN reaffirms that “the Convention sets out the legal framework within which all activities in the oceans and seas must be carried out”.
In order to overcome such disagreement, it is essential to distinguish between issues not governed by UNCLOS and issues rejected by UNCLOS or by international law in general.
Although UNCLOS is usually lauded as the Constitution of the Ocean, one must admit that there are issues beyond the scope of the Convention. It is stated in the Preamble of the Convention itself; “matters not regulated by this Convention continue to be governed by the rules and principles of general international law”. Indeed, regulations concerning climate change and sea level rise, marine biological diversity of areas beyond national jurisdiction, or automatic sea vehicles are usually regarded as the lacuna of UNCLOS since at the time of negotiation, delegates could not be aware of them.
The situation is different when it comes to the case of historic rights in the South China Sea. If the negotiation starts with the argument that UNCLOS should not be considered as the only source of law for the COC negotiation because issues related to historic rights go beyond its scope, it implies a premise that there exist historic rights established by one country in the South China Sea. This premise is unattainable. In fact, it is practically impossible for claimants in the South China Sea to argue for historic rights which can exclude others’ maritime claims and activities in this sea area.
Firstly, it is geographically impossible. South China Sea is a vast open sea of around 4 million square kilometres. It is infeasible for one country to have single-handedly controlled, explored, and exploited natural resources in the South China Sea for such a long time in “unmemorable history”, not to mention that the production of offshore oil and gas has been advanced since 1947, which is considered to be modern times. Therefore, historical evidence of fishing and other sea related activities in this sea area cannot establish the so-called historic rights that enables one South China Sea country to exclude other countries from exercising the same activities.
Secondly, it is legally impossible. Historic rights are generally regarded as “exceptional rights” arisen from “special circumstances”. Before the adoption of UNCLOS, the rights countries enjoyed in the South China Sea beyond the limit of their territorial sea were part of the freedoms of the high seas. The fishing rights and other maritime rights derived from the normal legal concept of freedom of the high seas could not be considered as “exceptional” or “special” for the argument of historic rights.
With the entry into force of UNCLOS, specific regimes regulating the exploration and exploitation of natural resources beyond the territorial sea are promulgated. They are the exclusive economic zone (EEZ) and continental shelf (CS) regimes which stress on the exclusive control of coastal states over the resources in those maritime zones. Under the lex specialis derogat legi generali principle, which means specific rules will prevail over general rules, the argument for exclusive historic rights in the South China Sea is negated by the relevant regimes of UNCLOS.
After the entry into force of UNCLOS to which all claimants in the South China Sea are parties, the claims of emerging historic rights within the EEZ and CS of other coastal states is a violation of the Convention.
Finally, it is legitimately impossible. For the establishment of exclusive historic rights, the acquiescence of directly affected states are essential. This requirement cannot be achieved in the case of the South China Sea. The prime example is the 2019 battle of Note Verbales of the South China Sea countries at the Commission on the Limits of the Continental Shelf. Four out of the five relevant countries in the region (Malaysia, the Philippines, Vietnam, and Indonesia) rejected the claims of historic rights of China in the South China Sea, which they considered as beyond the lawful limits of UNCLOS.
In short, the argument for undermining the role of UNCLOS in the COC negotiation based on historic right issues is unattainable as such rights cannot be established in the South China Sea based on either general principles of international law or the Convention itself. This fallacy should be avoided in order for ASEAN countries and China to clinch a successful COC negotiation for the South China Sea. More importantly, the legal framework set out in UNCLOS should be recognized, respected, and faithfully apply by all parties in order to build a rule-based-maritime-order in the South China Sea.