At the 56th ASEAN Ministerial Meeting and its related meetings in Jakarta in July, it was announced that negotiations for the Code of Conduct of Parties in the South China Sea (COC) had achieved progress on two fronts. First, the second reading of the Single Draft COC Negotiating Text was completed. Second, a set of Guidelines for Accelerating the Early Conclusion of an Effective and Substantive Code of Conduct in the South China Sea was adopted at the Post Ministerial Conference 10+1 Meeting with China. As a matter of fact, these developments are rather more procedural (and perhaps political) than substantive.
As COC negotiations continue to drag on, this commentary suggests Southeast Asian states could consider promote, in parallel to the COC process, the development and negotiations of another instrument to manage all maritime engagements by all relevant parties in all Southeast Asian waters: a “Code of Conduct for Maritime Engagements in Southeast Asia”. The proposed scope of this agreement would be even greater than that of the COC, but a different negotiating approach would make its adoption easier.
A More Expansive Code of Conduct
The purpose of the COC between China and ASEAN member states is to achieve a peaceful, friendly, and harmonious environment in the South China Sea. However, the South China Sea is not the only body of water located in Southeast Asia, and China is not the only maritime power that has its navy operating in Southeast Asian waters. Thus, if Southeast Asian states want to maintain a comprehensive peace, friendliness, and harmony in the entire Southeast Asian maritime domain, they should consider developing an instrument that applies to all waters surrounding the region and that is open to all States active in these waters. As such, the geographical scope of the new Code of Conduct could be all waters under national jurisdiction of Southeast Asian states, which would then include not only the South China Sea but also areas in the Philippine Sea, Sulu-Celebes Sea, Bandar Sea, Arafura Sea, Timor Sea, Straits of Malacca and Singapore, and Adaman Sea. The membership of the Code could be open to, in addition to Southeast Asian states, all states who are currently operating in these waters including China, the United States, Russia, India, Great Britain, European Union, Australia, Japan, South Korea and others.
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Many of the provisions of a Code of Conduct for Maritime Engagements in Southeast Asia would be similar to the ones of the COC. Though the COC negotiations have not been completed yet, a number of important principles recognized in the Declaration of Conduct of Parties in the South China Sea (DOC) in 2002 will certainly be repeated in the COC. These include commitments to the United Nations Charter, United Nations Convention on the Law of the Sea, Treaty of Amity and Cooperation in Southeast Asia (TAC), Five Principles of Peaceful Coexistence, and other universally recognized principles of international law which shall serve as the basic norms governing state-to-state relations; respect for and commitment to the freedom of navigation in and overflight; and undertaking to resolve disputes by peaceful means, without resorting to the threat or use of force, through peaceful means in accordance with international law. These principles are of universal value so they can be applied to all bodies of water disputed or not and to all states. Furthermore, another important provision that should be present both in the COC and a Code of Conduct for Maritime Engagements in Southeast Asia is a strong compliance mechanism to ensure the respect of their stipulations. Without such a compliance mechanism, both the COC and the new instrument will suffer the same weakness as the DOC, with every signatory able to blame the other for violating its provisions without having to reflect on their own behavior.
Different Negotiations Approach
The Code of Conduct for Maritime Engagements in Southeast Asia should not replace the COC but be a parallel and independent instrument, as each serves its own purpose. However, based on the experience of lengthy negotiations with the latter, the Southeast Asian negotiators for a new Code should not adopt the same approach for its drafting and negotiations. Instead, they should use the approach for the adoption of the Treaty of Amity and Cooperation in 1967. At that time, ASEAN member states negotiated and signed the Treaty among themselves first before opening it for accession by third parties. Today, it has been signed by 51 states. Membership to the Treaty is now a pre-condition for third States to become an ASEAN dialogue partner.
Thus, the Code of Conduct for Maritime Engagements in Southeast Asia should also be negotiated first among ASEAN member states. Once all ASEAN member states have signed the Code and it has entered into force then it could be open to other states beyond Southeast Asia to accede. Membership to the Code could also become a pre-condition to take part in ASEAN-related fora relating to maritime issues (such as the Expanded ASEAN Maritime Forum). Such a strategy could help Southeast Asian states to prioritize their interests first while avoiding endless negotiations on difficult provisions of the text.
To conclude, developing a Code of Conduct on Maritime Engagements in Southeast Asia will not only help Southeast Asian states to strive for a comprehensive peace and security in Southeast Asian maritime domain in its entirety but also promote the ASEAN Centrality in the Indo-Pacific region as envisioned in the ASEAN Outlook for the Indo-Pacific.
