While attending the ASEAN foreign ministers’ meeting in Vientiane, Laos on July 25, 2016, Chinese Foreign Minister Wang Yi put forward four visions on the Code of Conduct (COC) consultation, one of which was that China and ASEAN states would finish their consultation on the COC outline in the first half of 2017 without disturbances. Wang remarked that China also planned to fast-track the COC consultation. This proposal was warmly welcomed and supported by the ASEAN states.
On January 17-18, 2017, Chinese Vice Foreign Minister Liu Zhenmin moderated the 20th China-Philippines Foreign Ministry Consultation together with his Philippine counterpart Enrique A. Manalo, and paid a visit to Philippine President Rodrigo Duterte. The two sides confirmed once again that they would actively advance the COC consultation and finish the COC framework in the first half of 2017.
The COC consultation has witnessed ups and downs since November 29, 2004, when leaders of China and ASEAN states signed the “Plan of Action to Implement the Joint Declaration on ASEAN-China Strategic Partnership for Peace and Prosperity,” and made it clear that they would formulate the COC on the basis of consensus. Thanks to the relentless efforts of China and some ASEAN states over the recent years, the COC consultation process has yielded a series of “early harvest” results, and has entered the stage of consultation on “important and complex issues.”
Since the three-year-long South China Sea arbitration came to a close on July 12, 2016, the Chinese government has taken a series of effective responses in terms of diplomacy, law, and public opinion, which has helped alleviate ensuing tensions and bring relevant disputants back to the track of resolving disputes through negotiation, consultation, and dialogue. However, the ruling’s influence on international law — including the regimes of islands, historic rights and compulsory dispute settlement mechanisms — was not obliterated and may become more evident and widespread over time.
Besides the legal impact, other disputants may take new measures to consolidate their respective claims on the basis of the ruling, which says Chinese maritime features in the Spratly Islands are incapable of generating an entitlement to a 200-nautical-mile exclusive economic zone, and that there is hence no overlapping maritime zones between China and the Philippines in the South China Sea.
For example, Vietnam, the Philippines, Malaysia, and Brunei may make submissions to the Commission on the Limits of the Continental Shelf (CLCS) concerning the outer limit of the continental shelf beyond 200 nautical miles. They may also leave China aside and establish bilateral consultation and negotiation mechanisms to address disputes on territorial sovereignty and maritime delimitation. Therefore, in the current situation, it is particularly urgent and important for China and other disputants to bolster mutual trust and set up institutional arrangements on dispute settlement.
First, the commitment to finish the consultation on the COC outline in the first half of 2017 is a means for China to soothe the nerves of ASEAN states. As a confidence building and crisis management mechanism, the COC is important for China and the ASEAN parties concerned to bolster political trust, manage maritime conflicts, avoid potential crises and escalation of conflicts, as well as stabilize the situation in the South China Sea. On one hand, the COC will place restrictions on bilateral acts in the South China Sea and reduce the causes of tensions. On the other, the COC will help the parties concerned deepen practical maritime cooperation and accumulate trust for the final dispute settlement.
A bilateral consultation mechanism can promote regular communication among disputants and is effective for them to bolster mutual trust, narrow differences, and promote cooperation.
It still needs to be emphasized that formulating the COC is not only part of the effort to implement the “Declaration on the Conduct of Parties in the South China Sea” (DOC) in a comprehensive and effective manner, but is also the final objective of implementing the DOC. As Article 10 of the DOC stipulates, “the Parties concerned reaffirm that the adoption of a code of conduct in the South China Sea would further promote peace and stability in the region and agree to work, on the basis of consensus, towards the eventual attainment of this objective.”
However, it will not be easy to finish the consultation on the COC framework in the next five or six months because we cannot preclude the possibility that the process may be mired by various political factors and other contingencies, particularly when the Asia-Pacific and South China Sea policies of the Trump administration have not been fully shaped.
In the author’s view, the framework of the COC should be concise, clear, and open in order to facilitate consensus and leave room for further revision. In addition, the early harvest results, such as the list of important and complex issues, should be incorporated in the outline text. Experts and Eminent Persons Groups should begin work as early as possible to take advantage of the resources and wisdom of the Track II platform to enrich the outline text and make the COC more pragmatic.
Second, establishing a bilateral consultation mechanism between China and the other disputants is an effective guarantee to strengthen communication, reassure the other disputants, and deepen cooperation. The consensus that a bilateral consultation mechanism can be useful for both sides to meet regularly on the South China Sea issues, which was put forward in the joint statement issued by China and the Philippines during the state visit of Philippine President Rodrigo Duterte to China, was confirmed once again during Chinese Vice Foreign Minister Liu Zhenmin’s recent visit to the Philippines.
The bilateral consultation mechanism can promote regular communication among disputants and will be effective for them to bolster mutual trust, narrow differences, and promote cooperation. China and Vietnam may build on the success of the maritime delimitation in the Gulf of Tonkin to build a bilateral consultation mechanism for dispute settlement.
Finally, China could take the opportunity of the Philippines’ assumption of the rotating presidency of the ASEAN to implement the DOC in a comprehensive and pragmatic manner. In the year 2017, which marks the 50th anniversary of the establishment of ASEAN, the Philippines’ work will be guided by the following six priorities: place the people at the core; work for regional peace and stability; pursue maritime security and cooperation; advance inclusive, innovation-led growth; strengthen ASEAN resiliency; and promote ASEAN as a model of regionalism and as a global player.
On this basis, the effective functioning of the specialized technical committees on marine research and environmental protection, safety of navigation, and search and rescue, as well as combating transnational crimes at sea, will play a significant role in implementing relevant maritime cooperation projects, maintaining the stability of the South China Sea, and lifting China-ASEAN relations to a new level.
Yan Yan
Yan YAN, Director of the Research Center of Oceans Law and Policy in the National Institute for the South China Sea Studies (NISCSS) and vice director of SCSPI. She receives her PHD in the University of Hong Kong on public international law and her M.S. degree from London School of Economic and Political Science (LSE). Her research interests covers areas of the law of the sea, maritime security in the Asia-Pacific, China’s maritime law and policy and the South China Sea. Her recent publication includes Code of Conduct: Negotiation History and the Way Forward, Maritime Confidence-building Measures: Assessing China-US MOU on Notification of Major Military Activities and Rules of Behavior, Philippines vs. China Arbitration: China’s Diplomatic Policy Options and Future Prospects; The US Underwater Drone is not Entitled to Sovereign Immunity; Marine Date Collection: Difference Interpretation between China and the United States; State Practice of Joint Development in Waters of Overlapping Claims, etc.