Given the complicated evolutions in the East Sea, the building of Code of Conduct of Parties in the East Sea (COC) is essential. However, this is not an overnight issue. Its roadmap and prospect are of the international community concern.
In 1995, Chinese occupation of the Mischief Reef (Spratly archipelago) marked a new stage of tension and complication in the East Sea. In such context, the ASEAN Ministerial Meeting (July 1996) in Jakarta, Indonesia released its Joint Communiqué expressing concern over the developments in the East Sea and stressed the necessity of building COC for maintaining stability and fostering mutual understanding among regional countries. Nevertheless, due to different aims, interests and positions of concerned parties, nearly over the past 20 years, through many rounds of negotiation, COC has not been realized.
The negotiation process on COC between ASEAN and China
Due to the emergency of the East Sea issue, right after a general idea was formed, the building of COC has been agreed upon by ASEAN leaders at the ASEAN Summit in Hanoi in July 1998. In early 1999, on the basis of the draft prepared by the Philippines and Vietnam, ASEAN discussed COC and by the end of the year, agreed upon a general draft of COC for negotiation with China. Accordingly, since the beginning of 2000, ASEAN and China have begun negotiating about the draft of COC. However, due to a number of reasons, negotiations between China and the block faced difficulties, even fell into deadlock. To break the deadlock and maintain peace and security in the East Sea, in November 2002, at the ASEAN Summit in Phnom Penh, Cambodia, ASEAN leaders signed the Declaration on the Conduct of Parties in the East Sea (DOC) and considered this a political document between the bloc and China. This was a significant achievement of ASEAN expressing the bloc’s commitment to ensure a peaceful solution for disputes in the region and a major step toward a COC. In reality, since its inception, DOC has made active contribution to maintaining peace and stability in the East Sea. However, its legally binding limitation has made DOC unable to prevent the increasing complication in the East Sea. In May 2009, China issued its “U-shape line” map in the UN covering nearly 80% of the East Sea and speeded up its unilateral activities to implement the unreasonable claim. Facing the problem, ASEAN advocates the early realization of a COC which is more legally binding and included in sanctions preventing disputes, escalated conflicts and maintaining peace, stability and safety of navigation in the East Sea.
In light of that guideline, at the ASEAN Summit in November 2011 in Indonesia, ASEAN leaders carried out internal discussion on COC and decided to found a Working Group in the framework of the ASEAN Senior Officials Meeting (SOM) to discuss the main contents of COC. After nearly one year of discussion with 7 rounds of negotiation, ASEAN passed on the main contents of COC and called for China’s discussion on building this important document.
Besides internal activities, ASEAN also actively and proactively facilitated a number of actions with China and the international community toward the building of COC. In September 2012, on the fringe of the UN Security Council’s meeting, Indonesia actively proposed the draft of COC and was approved by the majority of the Council’s country members. In 2012, as a coordinator of the ASEAN – China relationship, Thailand convened a meeting between the country and China in Pattaya to discuss COC. Later on, in November 2012, at the ASEAN – China summit in Phnom Penh (Cambodia), ASEAN leaders urged China to announce their agreement to start the negotiation process about COC, etc. In response, China sent their representative and expressed their willingness to consult ASEAN on COC. However, citing that “it is still not the right time” and “waiting for an appropriate time”, etc, Beijing refused to talk about main contents of COC. China even only accepts to discuss with each ASEAN member separately. They do not agree to put the matter on multilateral meeting’s agenda. Nevertheless, with the persistence of ASEAN, the support and request of the international community, on 5 August 2013, China accepted to discuss with ASEAN the roadmap to build COC for peace, stability in the East Sea and in the framework of DOC.
In the fourteenth and fifteenth day of September 2013, in the city of Suzhou, China, in the framework of the 6th session of ASEAN – China SOM and the 9th session of the Working Group on the implementation of DOC, for the first time ever, the two sides officially discussed the building of COC. During the discussion, the two sides stressed the importance of maintaining peace, stability, security, safety of navigation in the East Sea. They further stated the necessity of building COC along with building trust and a favourable environment for solving peacefully disputes, given the complications in the East Sea. They stated ASEAN – China SOM, as the main mechanism for building COC need to show more effort and determination in the issue. They also assigned the Working Group to assist SOM in COC negotiations. SOM also has to report the progress of COC building to ASEAN – China Ministerial Meeting annually. They shared the view that COC need to be built and further improved on the basis of basic principles ruled in the existing documents between the bloc and China. This is a positive move of important meaning in the roadmap to build COC.
Prospect of COC
At present, though the East Sea stays rather calm, there still remain potential conflicts which can outbreak at any time. Moreover, major powers outside the region are gradually unveiling their aims of long term military intervention into the Sea. The situation has a major impact on peace, stability, security and safety of navigation in the East Sea in general and in the building of COC in particular. Notably, China – a newly emerged power – is both a signatory of DOC and a COC negotiator and a claimant to the overlapping sovereignty of East Sea. Therefore, the building of a legal binding code of conduct becomes more and more difficult. However, the situation itself fosters solidarity of ASEAN. It shows the necessity and determination to have COC which can provide legal basis and sanctions binding actions of concerned parties for peace, stability, cooperation and development of the region. This is why in the Presidential Declaration of the ASEAN-25 Summit in Nay Pyi Taw, Myanmar expressed it concern over the East Sea issue and stressed the importance of the strict compliance of principles of DOC and efforts for the COC to be soon established by consensus which could foster and strengthen mutual confidence.
As the building of COC in the East Sea is facing both challenges and opportunities. According to international analysts, in such a context, both ASEAN and China should exercise self-restraint, pursue a negotiation solution to increase consensus and reduce disagreements to seek a common voice in settling problems in the region in general and in building COC in particular. As for ASEAN, more than ever, it needs to promote consensus, strengthen solidarity and agree on a common view on the determination to build COC. This not only benefits all the members of the Association but also meets the expectation of many other countries both inside and outside the region.
Also according to observers, for the COC to be built soon (given the deliberate delay of China), ASEAN members nations can well act as major contributor to the building and passing of COC and they can broaden its joining limit to other countries both inside and outside the region. This is based on a number of theoretical and practical bases. First, a COC both for regulating a sea contiguous to 8 out of 10 ASEAN countries and for restraining possible conflicts from disputes among 4 ASEAN members is completely suitable to the aim of fostering peace and stability in the region. Second, COC is not a document for settling disputes over sovereignty but a document setting out code of conduct. It limits rather than empowers concerning parties in the East Sea. Therefore, if COC is signed only among ASEAN member nations, it will not harm the interests of China, a disputing party (in case the absence of China’s participation). Third, this is based on a practical basis – the Treaty of amity and cooperation – a legal document aiming at fostering peace and stability in the region which has been signed, first among ASEAN member nations, then by other outsiders including China. However, due to the imbalance in power and the increasing influence of China on the region, some of ASEAN countries must weigh the pros and cons before making their decision. For this reason, the establishment of a real COC, though essential and positively responded, faces various challenges ahead.
Colonel Le The Mau