By Carl Thayer
On August 3, the unusual ministers of the 10 fellow member states of the Association of Southeast Asian Nations (ASEAN) together with their Chinese counterpart announced understanding on a Single Draft South PRC Sea Code of Conduct Negotiating Text (SDNT) that volition serve every bit the reason for the adoption of a Code of Conduct inward the South PRC Sea. The SDNT is nineteen A4-sized pages long. It is structured according to the previously adopted Framework Agreement on the Code of Conduct into 3 principal sections – preambular provisions, full general provisions, together with final clauses. The SDNT is color-coded dark for text taken from the COC Framework, blueish for the consolidated text, together with greenish to seat the input past times the eleven parties.
The SDNT repeats the wording inward the Framework Code of Conduct that it is “not an musical instrument to settle territorial disputes or maritime delimitation issues.” Under Section 2 on General Principles, Malaysia inserted the criterion legal caveat that:
The Parties farther admit that the COC does non address nor acquit on the Parties’ seat on legal questions relating to the village of disputes, maritime boundaries, or the permissible maritime entitlements of the Parties nether international police pull of the bounding main together with enshrined/reflected inward the 1982 UNCLOS.
Space precludes a consummate summary together with analysis of the SDNT. This article addresses 5 principal issues: the document’s geographic scope; dispute settlement; the duty to cooperate; the operate of 3rd parties; together with the legal condition of the final Code of Conduct inward the South PRC Sea.
Geographic Scope
The SDNT does non clearly define the geographic compass of the South PRC Sea. Under General Provisions, Vietnam suggested that, “the introduce Code of Conduct shall apply to all disputed features together with overlapping maritime areas claimed nether the 1982 UNCLOS inward the South PRC Sea.” Republic of Indonesia inserted, “the Parties are committed to abide by the Exclusive Economic Zone together with continental shelf of the coastal states every bit provided for inward the 1982 UNCLOS.”
Malaysia proposed, “depending on the operative elements/contents of the COC, the geographic scope/scope of application may stimulate got to travel defined,” patch Singapore inserted the comment “the Parties may want to regard the utility of including a department defining the price contained herein.”
Dispute Settlement
A real large share of the SDNT is devoted to the prevention, management, together with village of disputes inward the South PRC Sea amid the parties. The SDNT, however, does non incorporate whatsoever specific reference to the binding dispute mechanisms included inward UNCLOS Annex VII.
With abide by to dispute settlement, Republic of Indonesia offered the following:
The Parties agreed, every bit appropriate, to resort to the High Council of the Treaty of Amity together with Cooperation (TAC) at the consent of the Parties concerned, to settle whatsoever dispute relating to incidents that many arise inward the South PRC Sea.
The Parties agreed that whatsoever unresolved incident may travel referred to an appropriate international disputes village mechanism, at the consent of the concerned Parties.
Vietnam proposed that parties settle their disputes “through friendly negotiations, enquiry, mediation, conciliation together with other agency every bit may travel agreed past times the disputing Contracting Parties.” Failing that, Vietnam suggested the disputants “utilize the dispute village machinery nether relevant provisions of the Treaty of Amity together with Cooperation inward Southeast Asia.”
Vietnam concluded that aught inward the COC “shall prevent” the peaceful village of disputes nether Article 33(1) of the Charter of the United Nations. Article 33 includes “other means” such every bit arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful agency decided past times the parties concerned.
The SDNT contains 2 options for monitoring implementation. The start option, supported past times Brunei, Cambodia, China, Malaysia, together with Singapore, places responsibleness alongside the ASEAN-China Senior Officials’ Meeting. The instant option, proposed past times Vietnam, calls for setting upwards a Commission led past times unusual ministers or their representatives.
Duty to Cooperate
The SDNT takes its Pb from provisions inward UNCLOS that reason signatories stimulate got a duty to cooperate to protect the marine surroundings inward a semi-enclosed bounding main together with pending village of disputes reason signatories should instruct inward into arrangements of a practical nature.
Section 2 (General Provisions), sub-section c (Basic undertakings) contains vi points: i (Duty to cooperate), ii (Promotion of practical maritime cooperation), iii (Self-restraint/Promotion of trust together with confidence), iv (Prevention of incidents), v (Management of incidents), together with vi (Other undertakings, inward accordance alongside international law, to fulfill the objectives together with principles of the COC).
Section 2.c is perchance the most contentions share of the SDNT. For example, this department includes an extended elaboration of 4 options on the duty to cooperate together with advertisement of practical maritime cooperation, followed past times 2 sets of options on self-restraint/promotion of trust, together with a final give-and-take of the remaining 3 points. The SDNT together with therefore includes a proposal past times Vietnam to supersede 2.c (Basic Understandings) inward its entirety alongside 27 points prescribing what states shall do together with shall non do.
In Section 2.c (i together with ii), the Philippines, Republic of Indonesia together with Singapore, China, together with Cambodia, respectively, proposed 4 split upwards options on the duty to cooperate. With the exception of China, all the other options basically included the 5 areas of cooperation included inward the Declaration on Conduct of Parties inward the South PRC Sea (DOC). These include: marine environmental protection, marine scientific research, security of navigation together with communication at sea, together with combating transnational crime. Indonesia’s proposal includes illegal angling to the DOC listing on transnational law-breaking – trafficking inward illicit drugs, piracy together with armed robbery at sea, together with illegal traffic inward arms. Cambodia’s proposal includes marine connectivity.
China’s contribution overlaps inward business office alongside the other options but it is notable for the exceptional it provides on vi areas of cooperation – conservation of angling resources, maritime police pull together with security cooperation, navigation together with search together with rescue, maritime scientific research together with environmental protection, marine economic scheme including aquaculture together with stone oil together with gas cooperation, together with marine culture.
Most significantly China’s proposal on cooperation on the marine economic scheme states that cooperation is to travel carried out past times the littoral states “and shall non travel conducted inward cooperation alongside companies from countries exterior the region.” In contrast, Malaysia proposed that aught inward the COC “shall affect… rights or mightiness of the Parties to behavior activities alongside unusual countries or individual entities of their ain choosing.”
Two options are proposed nether 2.c.iii headed Self-restraint/Promotion of trust together with confidence. The start selection was tabled past times Republic of Indonesia together with includes 4 measures: dialogues betwixt defence together with military machine officials, humane handling of persons inward distress, voluntary notification of impending joint/combined military machine exercises, together with the central of relevant data on a regular basis.
The instant selection nether 2.c.iii contains 7 points, 5 of which are proposed past times China, i proposed past times the Philippines together with a final betoken proposed jointly past times PRC together with the Philippines.
China’s start betoken states that “military activities inward the part shall travel conducive to enhancing usual trust.” China’s instant betoken calls for exchanges betwixt defence together with military machine forces including “mutual port calls of military machine vessels together with articulation patrols on a regular basis.” Point 3 calls for “undertaking articulation military machine exercises amid PRC together with Association of Southeast Asian Nations Member U.S.A. on a regular basis.”
China’s betoken 4 states:
The Parties shall constitute a notification machinery on military machine activities, together with to notify each other of major military machine activities if deemed necessary. The Parties shall non grip articulation military machine exercises alongside countries from exterior the region, unless the parties concerned are notified beforehand together with limited no objection.
China’s 5th betoken notes that military machine vessels together with aircraft bask sovereign immunity together with are “immune from the jurisdiction of whatsoever State other than the flag state.” Further, military machine vessels together with aircraft are entitled to self-defense “but should stimulate got due regard for the other side’s military machine vessels together with military machine aircraft…”
China together with the Philippines both inserted betoken vi that called for the “just together with humane handling of all persons who are either inward danger or inward distress inward the South PRC Sea.”
Finally, the Philippines proposed betoken 7 that included “respect of the practice of traditional angling rights past times fishermen… [and] access to features together with angling grounds.”
Vietnam tabled its ain proposals to supersede all of the higher upwards inward Section 2.c. Vietnam suggested that the Contracting U.S.A. abide by “the maritime zones every bit provided for together with established inward accordance alongside the 1982 UNCLOS.” Vietnam likewise suggested that the Contracting U.S.A. supply lx days notification of “impending joint/combined military machine exercise/drill” inward the South PRC Sea.
Vietnam likewise suggested specific guidance on what the Contracting U.S.A. should non do, including gear upwards on whatsoever artificial island, militarize features, blockade vessels carrying provisions or personnel for rotation, declare an Air Defense Identification Zone, together with behavior simulated attacks at the vessels together with aircraft of other countries.
Role of Third Parties
Third parties are states that are non signatories to the COC. There is no reference inward the SDNT almost accession to the COC past times 3rd parties. Negara Brunei Darussalam proposed that “following the Entry into Force of the COC, the Parties tin jointly suggest an UNGA (United Nations General Assembly) biennial resolution which would ensure all other countries abide by the principles contained inward the COC.
As noted above, China’s input into the SDNT aims to bind Association of Southeast Asian Nations members states inward the COC together with bound if non exclude the interest of 3rd parties.
Legal Status
The SDNT does non include reference to the COC every bit a treaty nether international law. It does incorporate a proposal past times Vietnam that the Contracting U.S.A. “have consented to travel saltation past times the introduce Code of Conduct…” Vietnam likewise suggested that the COC “be dependent area to ratification inward accordance alongside the respective internal physical care for of the signatory States” together with the musical instrument of ratification travel deposited alongside the Association of Southeast Asian Nations Secretary General who “shall register” the COC pursuant to Article 102 of the Charter of the United Nations.
Both Negara Brunei Darussalam together with Vietnam separately proposed that no Contracting Party may grip a reservation when signing the COC.
The introduce text of the SDNT is replete alongside references to international police pull inward full general together with UNCLOS inward particular. Yet it does non scream the duty of reason parties to UNCLOS to instantly comply alongside awards issued through arbitral proceedings established nether Annex VII.
The SDNT is a “living document,” which agency the parties may add together to or subtract from the draft text. The text of the SDNT includes the possibility of including guidelines together with protocols inward an annex.
The SDNT is likewise a piece of occupation inward progress that is slated to become through at to the lowest degree 3 readings to do a final Code of Conduct inward the South PRC Sea.
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