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ASEAN, China and the COC Negotiation: How Unrelevant is Historic Rights?

2022-10-21 08:27:24       source:SCSPI

October 21, 2022

Twenty years ago, the DOC, signed by China and ten ASEAN countries in 2002, has played a crucial role in safeguarding the peace and stability in the South China Sea over a long period of time. In retrospect, the year 2019 witnessed the birth of the single draft negotiation text (SDNT) and the ending of the first reading. The fast track of the negotiation gained significant attention and appreciation from the international community, when the Covid-19 pandemic forced the negotiation to slow down, thus it did not fulfill the wish of concluding it by the end of 2021.

Recently, a scholar published an article claiming that China's historical claims in the South China Sea are the biggest obstacle to COC consultations. This view, not only fails to clarify the most fundamental nature of the COC, but also deliberately distorts China's South China Sea claims. More importantly, the author misunderstands the relationship between COC and UNCLOS and the relationship between UNCLOS and historical rights, resulting in the author's failure to understand the grand blueprint of COC, which is the most essential rule & order building in the South China Sea, as well as the role it can play to guarantee peace and stability in the South China Sea.

First of all, the fundamental issue is to understand the nature of COC. The COC is a crisis management mechanism for the South China Sea region between China and the 10 ASEAN countries rather than a dispute settlement mechanism for 5 claimant States. The objective of the COC is to create a favorable environment for the disputing countries to resolve the disputes in the future and to manage the air and sea crises before the final settlement of the South China Sea issue to ensure the peace and stability of the South China Sea region. The number of countries involved in the South China Sea dispute, the number of islands and reefs, and the size of the sea area are unparalleled in all the maritime disputes worldwide. Only 4 of the 10 ASEAN countries have disputes with China in the South China Sea. It is because of the historical complexity and sensitivity of the South China Sea issue that neither DOC nor COC is or can be a dispute settlement mechanism for the South China Sea issue.

Second, about the relation between COC and UNCLOS, the author points out “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... " However, the UNCLOS has never been the sole legal basis for the DOC and the COC, and it has nothing to do with historical rights. The DOC has long been clear that the legal basis is the purposes and principles of the UN Charter, the 1982 UNCLOS, the Treaty of Amity and Cooperation in Southeast Asia, the Five Principles of Peaceful Coexistence, and other recognized principles of international law. The COC is a more effective framework of regional rules and order based on the DOC, and the legal source is also international law, including the UNCLOS.

Thirdly, about China’s South China Sea claim and historic rights, the author argues that “the argument for exclusive historic rights in the South China Sea is negated by the relevant regimes of UNCLOS". This view not only distorts China's historical rights claim, but also misunderstands the relationship between UNCLOS and historical rights. In fact, China has never claimed exclusive historical rights in the entire South China Sea. On July 12th, 2016, the Chinese government issued a statement on its territorial sovereignty and maritime rights and interests in the South China Sea, which clearly pointed out that China's rights in the South China Sea include both sovereignty, sovereign rights, and jurisdiction, as well as historical rights. The claim is a complex one under international law, and China has never claimed exclusive historic rights over the entire South China Sea.

Regarding the relation between UNCLOS and historic rights, UNCLOS does not establish rules on the nature, criteria, and elements of historic rights. Moreover, the negotiation history of UNCLOS shows that the negotiating states do not intend to establish a specific regime on historic rights to cover issues such as historic bays and historic title. Therefore, UNCLOS has a respectful attitude toward historic rights, which, as stated in the preamble of UNCLOS, continue to be governed by general international law.

Indeed, for the past 20 years, especially since the restart of the negotiation in 2013, all negotiators are hoping to conclude the COC in the early future. On September 7th, President Ferdinand Marcos Jr. and Prime Minister Lee Hsien Loong exchanged views on critical regional issues in Singapore. They underscored the importance of the full and effective implementation of the DOC in its entirety and conducting substantive negotiations toward the conclusion of an effective and substantive COC. This is also the wish of China and all ASEAN member states.

This year marks the 20th anniversary of the signing of the DOC. Most notably, on May 25th, China and ASEAN countries held the 36th joint working group meeting on the implementation of the DOC and COC negotiation in Siem Reap, Cambodia. This was the first offline meeting of the working group since the pandemic, which marks the negotiation return to the old way of face-to-face. 

With the opening of a new round of face-to-face negotiation and the gradual progress of the second reading, it is foreseeable that the debate over the rules and order of the South China Sea in the post-epidemic era around the COC will become one of the most complicated factors affecting the region.

The road to negotiation is long and steep. COC, as an essential rule of order in the South China Sea, the negotiation will be significantly affected and challenged by the overall external environment of the South China Sea, while the interference of extra-regional States, the disagreement within ASEAN, and the arbitral ruling.

On the one hand, the SCS security situation is the biggest challenge to the COC negotiation. Although the SCS issue is a dispute between China and 4 ASEAN countries over sovereignty over features and maritime jurisdiction, in recent years, researchers who have long observed the situation in the South China Sea have almost unanimously agreed that the SCS has become an important game point for China and the U.S. in the security field.

As the COC negotiations have been progressing on the fast track since 2016, instead of calling an early conclusion of the COC, it now turns to stress “third-party concern," calls for transparency of the negotiation, and tries to exert its influence over the negotiation process by various means. During the East Asia Summit (EAS) and the ARF Foreign Ministers' Meeting in August 2018, U.S. Secretary of State Pompeo stressed the U.S. position on the South China Sea issue during the talks with foreign ministers, saying that no state should put pressure on others during the negotiation and that "third-party concerns" should be included as part of the COC.

The COC is supposed to be a set of rules outlining the norms, responsibilities, and restrictions of the negotiators, as well as a mechanism of maritime cooperation. It will be an outcome of the actual needs of the South China Sea region. It will play a positive role in regulating the behavior of all parties and maintaining navigation safety and freedom of navigation in the South China Sea.

Nevertheless, it might not be what the U.S. wants to see. The U.S. not only worries that military activities such as joint exercises with littoral states in the SCS will be restricted, but also worries that the oil and gas exploration and exploitation cooperation with SCS coastal states will be blocked. And more importantly, it worries that a future COC in line with China’s maritime interest will challenge the principles, norms, and values of the U.S.-defined “international rules-based order”and undermine its national interest in the Asia-Pacific region. Also, if the South China Sea is stabilized, the U.S. will lose its most important leverage to restrain China in the region.

On the other hand, the internal differences among the ten ASEAN countries are also a challenge to the COC negotiation. The 10 ASEAN member states include parties and non-parties to the South China Sea dispute. They have different national interests thus reflect different concerns and positions on the COC. since the arbitration ruling came out on July 12, 2016, some claimant states have reassessed their goals and their cards to play on the negotiation table, and some have even proposed unrealistic proposals. Also, the ASEAN has not formed a unified view on issues such as binding force, the scope of application, monitoring and enforcement mechanisms, etc. Some disputants even want the U.S. to intervene in the COC negotiations. Nevertheless, ASEAN's official documents and the statements of its senior officials on various occasions show that ASEAN does not want too much involvement of extra-regional countries in the SCS, especially in the COC negotiations.

Differences will always exist in the challenging and tortuous process of future consultations, and compromises by the negotiating parties will be inevitable. Nobody gets everything they want on the negotiation table, but everybody gets something they want. It seems that all parties directly involved are well aware of the situation. The COC is not in China's control but all the negotiators.

What should always be borne in mind is that Article 10 of the Declaration already set 20 years ago the conclusion of COC as a long-term goal. This is also the common wish and commitment of China and the ten ASEAN countries.

The negotiation not only requires the political will of the Chinese and ASEAN countries but also requires the support and encouragement of the extra-regional countries to provide a stable and conducive external political environment. 

Dr. Yan YAN, Director of Research Center for Oceans Law and Policy, National Institute for South China Sea Studies (NISCSS)