At the outset there are two things that merit our attention so as to avoid misunderstanding. First, ASEAN as a group is not party to the claims and counterclaims in the South China Sea disputes. The claimant states include some members of ASEAN, namely Brunei, Malaysia, the Philippines and Vietnam, and also includes China and Taiwan.
Therefore, ASEAN does not support or oppose the claims of the four ASEAN member states, and it also does not take any position on the merits of the disputes between China and ASEAN claimant states. ASEAN is, however, a stakeholder in the South China Sea: It wishes to maintain peace in the region, promote good relations between ASEAN and China, is committed to the peaceful settlement of disputes, and wishes to ensure that all parties act strictly in accordance with international law, especially UNCLOS (Tommy Koh, The Straits Times, Sept. 13, 2011).
Second, the wishes of ASEAN to finalize a Code of Conduct (CoC) as a legal instrument to resolve any disputes in the near future is not an effort to gang up on China or support the claims of ASEAN member states, but instead to install a regional order or a legal framework in the South China Sea for keeping order, preventing conflicts from arising and escalating, managing disputes, building regional confidence, and sustainably manage the South China Sea as a semi-enclosed sea under UNCLOS.
The purpose is to create a peaceful environment for the eventual resolution of disputes. Therefore, efforts to establish the CoC should be agreed to without prejudice or regard to territorial or jurisdictional claims of the parties in the South China Sea.
It is a fact that efforts to formulate a CoC, as agreed upon by ASEAN and China, will take some time to finalize. That is why simultaneously the Declaration on the Conduct of Parties in the South China Sea (DOC) proposed that Confidence Building Measures (CBMs) and other cooperative activities should also be negotiated for implementation to create a conducive atmosphere to support the negotiations on the CoC.
CBMs to be undertaken are: Holding dialogues and exchanging views between defense and military officials; ensuring just and humane treatment of all persons who are either in danger or in distress; notifying, on a voluntary basis, other parties concerned of any joint/combined military exercise; and enhancing, on a voluntary basis, the provision of relevant information.
Some of the cooperation activities include marine environmental protection, marine scientific research, safety navigation and communications at sea, search and rescue operations and combating transnational crime, including trafficking in illicit drugs, piracy and armed robbery at sea and arms trafficking.
Some principles in the DOC that have been agreed to by ASEAN and China are important for keeping the peace in the South China Sea and should be followed voluntarily until a more legally binding CoC can be finalized and implemented.
These principles are: commitment to international law, commitment to exploring ways to build trust and confidence on the basis of equality and mutual respect, commitment to the freedom of navigation in and over flight above the South China Sea as provided for by universally recognized principles of international law, including the 1982 UNCLOS.
The parties concerned also agreed to undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law, including the 1982 UNCLOS.
The parties also agreed to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including among others, refrain from inhabiting the presently uninhabited islands, reefs, shoals, cays and other features and to handle their differences in a constructive manner.
While the ASEAN Senior Official Meeting and the ASEAN-China Joint Working Group are working on the implementation of the DOC and the formulation of the CoC, it is important that Second Track and 1.5 Track mechanisms continue their efforts to support the government’s work.
Among the Second Track efforts, the Managing Potential Conflicts in the South China Sea workshop organized by Indonesia over the last 20 years, should be upgraded to do more studies – as should think tanks in ASEAN and China, which can play a very important role indeed to support the respective governments’ efforts.
All these developments show that ASEAN claimants and China are serious about making up with each other for what happened earlier on the disputed overlapping claims of the South China Sea. In all fairness, claimants on both sides have not implemented the DOC. Therefore, both sides should do necessary correction accordingly.
Now ASEAN and China have to implement the principles, and do the activities in the DOC voluntarily and prepare for the CoC simultaneously. The best example will be if both sides can do a joint-exploration and -exploitation as a token of goodwill and CBM. It is also hoped that China will refrain from making excessive and damaging statements on the South China Sea disputes because the statements have been hampering efforts by all both parties to find an acceptable resolution to the disputes.
The author is vice chairman of the board of trustees of the CSIS Foundation.
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