By | October 11, 2018
AMTI Update

This is the third product of the CSIS Expert Working Group on the South China Sea, which seeks to chart a feasible model for claimants to manage the maritime disputes.  

The members of the Association of Southeast Asian Nations (ASEAN) and China have been engaged in discussions on a potential code of conduct (COC) to manage the South China Sea maritime and territorial disputes for over two decades. ASEAN issued its first statement on the disputes in 1992 and endorsed the idea of a COC in 1996. After two years of inconclusive negotiations, China and ASEAN settled for a nonbinding Declaration on the Conduct of Parties in the South China Sea (DOC) in 2002. In 2005 the first draft of guidelines to implement the DOC was drawn up, but not adopted until 2011. Despite these efforts, South China Sea tensions lingered throughout the 2000s and have escalated steadily since 2009, underscoring the need for a more robust agreement to manage the disputes.

Since late 2016, consultations between China and ASEAN on a potential COC have gained new momentum. In August 2017 the parties adopted a bare-bones framework for the COC, and on August 2, 2018, Singapore’s Foreign Minister Vivian Balakrishnan announced that the sides had reached agreement on a single draft negotiating text for the COC. Leaked details of the text show that significant hurdles remain, especially over the most sensitive issues like the agreement’s geographic scope, potential dispute settlement mechanisms, and details of resource exploration and development. While the history of the DOC and COC negotiations has bred understandable skepticism, the agreement on a single negotiating draft is an important procedural step. For the first time in many years, an effective diplomatic mechanism to manage the South China Sea disputes seems possible. But to achieve that goal, all parties will need to show a great deal of creativity and political will.

An ASEAN-China COC should be a critical component of a regime for managing the disputes, but its limitations need to be recognized. First, a settlement of disputes is not a realistic goal for the time being. The COC process is rightly focused on managing the tension surrounding the disputes and removing the triggers for conflict; it is not a dispute resolution mechanism. This is because a final resolution of sovereignty claims and delimitation of maritime boundaries according to international law, including the 1982 United Nations Convention on the Law of the Sea (UNCLOS), could be many years away. To this end, all sides need to emphasize that engaging in the COC process and reaching agreement on its content will be without prejudice to the final settlement of claims and have no impact on the parties’ current legal positions toward the disputes.

Second, because the COC process includes not just the claimants but all ASEAN members, it is the wrong vehicle to negotiate the details of resource management in areas of overlapping claims to waters and seabed, which is a necessary component for effectively managing the disputes. An ASEAN-China COC can articulate and clarify aspects of the international rules-based order as applied to the South China Sea and establish important rules and processes for managing tensions pending the eventual settlement of disputes. To be truly effective, however, it must lead to additional multilateral negotiations among the claimants alone on fisheries management, environmental cooperation, and oil and gas development—all important potential triggers for conflict in which the non-claimant ASEAN members have no direct stake.

Reaching agreements that are both effective and acceptable to all parties will require framing necessary compromises so that the South China Sea claimants can adjust their positions without violating domestic or international law. Finding those mutually-agreeable compromises will be difficult but not impossible if all sides are committed to the project. An ASEAN-China COC should be the first step in that process.

As such, China and the ASEAN member-states should:

  1. Agree to uphold the freedom of navigation in and overflight above the South China Sea as provided for by universally recognized principles of international law, including UNCLOS.
  2. Commit to resolve disputes by peaceful means and manage any disagreements related to jurisdiction over water, seabed, and airspace without resorting to the threat or use of force, and to exercise self-restraint and due regard to the rights of other parties in the conduct of their activities in the South China Sea.
  3. Refrain from occupying, inhabiting, or constructing facilities on currently uninhabited features, as detailed in the map below.
  4. Undertake to improve the safety of navigation, communication, and search and rescue in the South China Sea, as follows:
    1. Agree to commence negotiations on a code governing protocols for communication between naval and law enforcement vessels that encounter each other at sea to reduce the chance of incidents and de-escalate those that occur. This could involve either the negotiation of a wholly new agreement based on international best practices or the extension of the Code for Unplanned Encounters at Sea (CUES), which governs communication protocols between naval vessels, to cover encounters among law enforcement ships and between law enforcement and naval vessels.
    2. Establish a program under the ASEAN-China Maritime Cooperation Fund to train regional fishers in good seamanship and the International Regulations for Preventing Collisions at Sea (COLREGS) and promote the equipment of fishing vessels with modern radio equipment and automatic identification system (AIS) transceivers.
    3. Pursue the establishment of mechanisms for the avoidance, rapid de-escalation, and management of incidents involving the parties’ nationals, vessels, or aircraft to avoid aggravating the disputes. Such mechanisms may include hotlines between relevant ministries, technical working or eminent persons groups to minimize triggers of conflict, and a South China Sea passage guide to be distributed widely.
    4. Encourage joint training and exercise activities among regional maritime law enforcement agencies to promote best practices and minimize the risk of incidents at sea, and work with the Heads of the Asian Coast Guard Agencies Meeting to develop a set of principles governing the operation of maritime law enforcement agencies in the South China Sea.
    5. Establish a dialogue mechanism to explore provisional and practical cooperation in search and rescue regardless of potential gaps or overlap between claimed Maritime Search and Rescue Regions or Aeronautical Search and Rescue Regions, keeping in mind that safety of life at sea is a paramount and common interest of all parties.
  5. Explore avenues for cooperation on transnational crime, encompassing but not limited to piracy and armed robbery at sea, drugs and arms smuggling, human trafficking, and fisheries crime.
  6. Cooperate on marine scientific research, as follows:
    1. Permission should be sought from each South China Sea coastal state for marine scientific research within 200 nautical miles of their coastlines, pending the eventual delimitation of maritime claims. In areas of overlap, unless a previous bilateral agreement has been reached, a median line will be used to determine which state has the provisional right to grant permission for marine scientific research. This arrangement is detailed in the map below
    2. Agree that the provisional right of states to grant permission for marine scientific research, as well as the undertaking of such projects, will have no impact on territorial claims or the eventual delimitation of maritime boundaries and cannot be construed as recognition of the claims of others.
    1. Grant permission for marine scientific research within these provisional zones under normal circumstances. Claimants may withhold permission in those cases allowed by Article 246(5) of UNCLOS, including for projects that affect exploration or exploitation of resources, employ explosives or environmentally harmful substances, or involve the construction or operation of artificial structures.
    2. Coordinate joint marine scientific research cruises throughout the South China Sea with experts from all claimants invited to participate.
    3. Each claimant should facilitate visits by experts from other claimant nations to conduct research on islands and reefs that it occupies, with due regard given to the need to restrict access to sensitive military sites. Claimants should agree that research trips will be organized without prejudice to the outstanding claims of other parties and that participation will not imply recognition on the part of individual researchers or governments of the claims of the organizer.
    4. Host regular scientific workshops supported by all neighboring governments with participation of experts from across the region and beyond.
    5. Invest, both as individual governments and as a group, in programs to raise public awareness of the importance of and threats to the marine environment and fisheries as common, renewable resources.
    6. Cooperate on marine archaeology and encourage joint conferences and historical research to broaden public understanding of the South China Sea as a shared space and resource used for millennia by peoples from across the region and beyond.
  7. Endorse the immediate commencement of negotiations on environmental conservation and protection, fisheries management, oil and gas development, and other marine economic development efforts in the South China Sea among the affected parties.
  8. Agree that in the case of a dispute over the interpretation or implementation of this agreement, either party may request the establishment of a commission of mediation, inquiry, or conciliation according to the following procedures:
    1. Each party to this agreement will name up to four experts in maritime affairs to be registered on a list to serve as potential members of a commission of mediation, inquiry, or conciliation. If a party has fewer than four experts registered to the list at any time, it may name additional experts to fill its quota.
    2. A party to a dispute may request the establishment of a commission once it is satisfied that direct negotiations cannot resolve the issue. Participation in the process of mediation, inquiry, or conciliation will then be compulsory for all parties to the dispute.
    3. Each party to the dispute will appoint two experts from the standing list of potential members to serve on the commission. A party may not appoint one of the experts that it named to the list.
    4. Once all parties to the dispute have made their selections, those appointed commissioners will elect another expert from the list to serve as the chairperson of the commission. That chairperson may not be selected from among those experts named to the list by one of the disputing parties.
    5. The commission will determine its own procedure for investigating and mediating the dispute, unless the parties to the dispute have already agreed to a procedure.
    6. The commission will issue a decision outlining its conclusions on all questions of fact or law relevant to the dispute and make its recommendations for a settlement between the parties.
  9. Invite outside states, international organizations, and other relevant parties to endorse this agreement.

This blueprint represents a consensus among the members of the South China Sea Expert Working Group at CSIS acting in their personal capacities and not as representatives of their home institutions.

About South China Sea Expert Working Group

CSIS’s newly-launched working group on the South China Sea brings together prominent experts on maritime law, international relations, and the marine environment. The group meets regularly to tackle issues that it considers necessary for the successful management of the South China Sea disputes and produces blueprints for a path forward on each. The group hopes to produce a robust model for managing the disputes that would be both legally and politically feasible—in effect, a blueprint for an eventual code of conduct.