March 24, 2023

Recently, China and ASEAN countries have accelerated consultations on the "Code of Conduct in the South China Sea" (hereinafter referred to as COC). The construction of the rules and orders in the South China Sea, which was previously affected by the covid-19 pandemic, is expected to embark on a fast track. To promote the consultation to achieve more results as soon as possible, ASEAN countries and China still need to achieve more consensus on certain issues.

First, COC should be in the same line as Declaration on the Conduct of Parties in the South China Sea (hereinafter referred to as DOC) instead of being separated or even running counter to each other. As the first political document dealing with the South China Sea issue at the regional multilateral level, the DOC reflects the common will of all parties to maintain peace and stability in the South China Sea, and embodies the spirit of mutual respect, consensus, and consideration for the comfort of all parties. The formulation of COC is the goal determined by DOC, and it is also the inevitable result of the comprehensive and effective implementation of it. Judging whether the COC is good or not cannot be based on the subjective opinions of the relevant parties but should be based on a commonly accepted and recognized reference, and DOC can play this role.

Specifically, some vague expressions in the DOC can be specified in the COC, and the deficiencies that are not covered by the DOC can be supplemented and improved in the COC, but the new content should be consistent with the spirit of the DOC. DOC should be used as a yardstick to measure whether the new content proposed by all parties is constructive and worthy of consideration. It is true that the COC should build more consensus than the DOC, but the relevant parties cannot set aside the DOC and start anew. If the political foundation of the DOC is ignored or weakened, the COC consultations will also lose momentum, and there may be an embarrassing situation of "more haste than speed". The COC thus formed may not be more substantial, more effective, and more operable.

Second, the role of the COC is a crisis management mechanism rather than a dispute resolution mechanism. According to the "dual-track approach" jointly advocated by China and ASEAN countries for many years, relevant disputes in the South China Sea should be resolved through consultation and negotiation by countries directly concerned, and peace and stability in the South China Sea should be jointly maintained by China and ASEAN countries. What does the crisis management mechanism mean to China and ASEAN countries?

On one side, the political basis of the COC is clear, that is, the countries involved in the dispute put aside their disputes, and China and ASEAN countries jointly maintain peace and stability in the South China Sea. For this purpose, the COC may avoid evaluating the legitimacy of the specific actions of the relevant parties, but this does not mean that the "status quo" of some parties' illegal occupation of China's Nansha islands and reefs is endowed with legitimacy. On the other side, the clauses in the COC and the conduct of the parties under the COC should not be interpreted or regarded as acknowledging any territorial and maritime claims of other parties in the South China Sea. As a normative document, the role of the COC is to try to avoid conflicts between relevant parties due to disputes. Once a conflict occurs, the institutional norms and mechanism arrangements established by the COC can manage and control it in a timely and effective manner to prevent the escalation of the situation. At the same time, by promoting various confidence measures such as maritime functional cooperation, the COC should create favorable conditions for the countries concerned to resolve relevant disputes through consultation and negotiation.

Third, the COC should follow the spirit of international law embodied in the UN Charter instead of only emphasizing the role of the United Nations Convention on the Law of the Sea (hereinafter referred to as UNCLOS). The UN Charter is the cornerstone of the post-war international order. It defines sovereign equality, resolves disputes peacefully, maintains peace and security, and promotes international cooperation. The return of sovereignty over the South China Sea Islands to China is an important part of the post-war international order. Relevant disputes in the South China Sea involve both territorial issues and maritime delimitation. The settlement of territorial issues is mainly based on the relevant international law that regulates land territory; the settlement of maritime disputes must, on the one hand, take territorial ownership as the premise, and on the other hand, consider the United Nations Convention on the Law of the Sea, relevant international treaties, and customary international law. The UNCLOS extensively codifies and develops the rules of the law of the sea into a comprehensive treaty, but it does not provide norms for all ocean issues. Customary international law always has a place under the framework of modern law of the sea.

Although the terms of the COC need to be consistent with international law, including the UNCLOS, if the relevant parties only talk about the UNCLOS or a certain part of the UNCLOS according to their one-sided understanding, without considering the UN Charter and the principles and rules of general international law involving issues of territorial sovereignty, the effective advancement of resolution negotiations may face more obstacles.

Fourth, the COC should apply equally to all parties. In recent years, there has always been an argument in the field of international public opinion that the COC is regarded as a document that "restricts China's behavior", or that even if the COC is reached, it "cannot restrict China's behavior." The starting point for this discussion is wrong. If the COC is binding, from the perspective of international law, the treaty applies equally to all parties. If the COC is not binding, from the perspective of international political reality, a relatively stable political arrangement should also allow participating countries, including China, to feel that their concerns are met or guaranteed.

As for the legal nature of COC, it still depends on the common choice of the parties. China is open to the issue of the legal effect of the COC and hopes to make the COC an upgraded version of the DOC, which is more effective, more substantive and in line with international law. The COC consultation is essentially a process in which all parties gradually enhance mutual trust through the accumulation of consensus, and only when this process is kept running well can a truly effective COC be reached.

Ding Duo is deputy director and associate research fellow, the Research Center for Ocean Law and Policy at the National Institute for South China Sea Studies. Zhong Hui is project manager, the Division of international exchanges at the National Institute for South China Sea Studies; Secretary at the China-Southeast Asia Research Center on the South China Sea.