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A new code of conduct for the South China Sea

by William A. Masters and Mark J. Valencia

Special To The Japan Times

A rash of run-ins between China and rival claimants in disputed areas in the South China Sea has prompted a search for a conflict avoidance and management mechanism. In January 2012, the Association of Southeast Asian Nations and China will begin negotiating a Code of Conduct (CoC) to govern activities in the area and there are hopes that it will be prepared, presented and approved at the ASEAN-China 2012 summit.

There is a lot riding on the success of the venture: ASEAN centrality insecurity paradigms for the region, ASEAN solidarity, and the tone and tenor of ASEAN-China relations. It would also relieve some pressure on both China and ASEAN from the United States and diminish the opportunity for U.S.-China political conflict. Of course the proof of the pudding will be in its observance and”enforcement.”

But first the parties have to negotiate a text that is both acceptable to all and effective as well — a rather tall order given the diversity of interests of the 10 ASEAN members (only four are claimants) and those of China.

Ideally, what should such a code contain? Some suggestions can be gleaned from the earlier ASEAN-China Declaration on Conduct,various agreements to manage incidents at sea and dangerous military activities, and other similar sources. First there has to be agreement on where, to whom and to what the Code applies. Should it cover all of the South China Sea and any actor therein, or just the “disputed areas” and the national claimants? How should it treat non-state actors and Taiwan which is also a claimant? To be comprehensive, it should govern all activities, e.g., resource exploration and exploitation, marine scientific research, and military activities. As a fundament it should reaffirm the parties’ commitment to the purposes and principles of the United Nations, the 1982 Law of the Sea, and China’s five principles of peaceful coexistence, and that they will interact on the basis of equality and mutual respect

Right up front should be a clause stating that nothing in the code prejudices any party’s sovereign rights or jurisdiction in its claimed territory, territorial sea, continental shelf, EEZ or its rights and responsibilities under the 1982 Law of the Sea (UNCLOS). It should reaffirm the use of the sea only for peaceful purposes and the resolution of disputes without the threat or use of force in accordance with international law,including the 1982 UNCLOS. It should also reaffirm freedom of navigation and overflight consonant with international law.

The parties should also recommit to exercise self restraint in the conduct of activities that might complicate or escalate disputes, including refraining from occupying presently uninhabited features. And they should agree to negotiate provisional arrangements of a practical nature to manage and share the resources and activities in disputed areas. The modalities, scope and locations of bilateral and multilateral cooperation should be agreed upon by the parties concerned prior to their actual implementation.

And the parties should agree to notify each other of any pending activities including military exercises in waters of interest to other parties, i.e., areas claimed by others.

There is a clear need for a specific clause addressing the question of arrest and detention of fishing vessels and crew of fellow claimants. As part of the CoC the parties might even agree to negotiate voluntary guidelines regarding military activities in foreign EEZs, particularly active and intrusive intelligence gathering.

There are two provisions that are probably critical to its effectiveness. One is an agreement to be bound by the Code and to develop a mechanism to explore alleged violations thereof. It should have the robustness of a treaty even if it is not called one. The second is to encourage “outside” parties to adhere and accede to the CoC. A secretariat — or a special office in the ASEAN Secretariat might be helpful in implementing and publicizing the code. Dispute settlement should be compulsory and might be referred to the existing 1976 Bali Treaty on Amity and Cooperation dispute settlement provisions, the International Court of Justice or the Tribunal for the Law of the Sea.

If such a code can be agreed by ASEAN and China, it will certainly bode well for the sea, the region, and all concerned, and may serve as a model for other disputed seas like the East China Sea.

Mark J. Valencia is a research associate at the National Asia Research Program and Woodrow Wilson Institute.