ASEAN countries to create necessary conditions for the formulation of COC

Since 2002, members of the Association of Southeast Asian Nations (ASEAN) and China have been engaged in negotiations over the framework of the Code of Conduct (CoC) in the South China Sea. In 2019, China and ASEAN completed the “first reading” of the draft negotiating text of the COC.

The significance of promoting an environment conducive to the COC negotiations is to maintain mutually beneficial cooperation between ASEAN. The reading welcomed practical measures that could reduce tensions and the risk of accidents, misunderstandings, and miscalculation in the South China Sea.

Opening Ceremony of the 55th ASEAN Foreign Ministers’ Meeting (Photo: ASEAN Secretariat).

In particular, ASEAN claimants want a COC to ensure peace and security in the disputed area and to uphold international law, and China wants to make sure that the dispute remains exclusively between ASEAN claimants and China, minimizing the involvement of extra-regional powers in the disputed area. For these reasons, both parties have reiterated their commitment to a COC, but there are still contentious issues that prevent both parties from concluding it.

Still, ASEAN and China officials have stated that it is in their national interest to finailze the COC as soon as possible atthe 55th ASEAN Foreign Ministers' Meeting (AMM) was held on August 3 2022 in Phnom Penh, Kingdom of Cambodia. The Meeting was chaired by Cambodia under the theme 'ASEAN ACT: Addressing Challenges Together.

ASEAN reaffirmed the need to pursue peaceful resolution of disputes in accordance with the universally recognised principles of international law, including The United Nations Convention on the Law of the Sea (UNCLOS), 1982. This is an international agreement that establishes the legal framework for marine and maritime activities, so it is also known as Law of the Sea. It divides marine areas into five main zones namely- Internal Waters, Territorial Sea, Contiguous Zone, Exclusive Economic Zone (EEZ) and the High Seas. The 1982 UNCLOS is the only international convention which stipulates a framework for state jurisdiction in maritime spaces and provides a different legal status to different maritime zones.

Reading the UNCLOS 1982, the ASEAN stated: "We emphasized the importance of non-militarisation and self-restraint in the conduct of all activities by claimants and all other states, including those mentioned in the DOC that could further complicate the situation and escalate tensions in the South China Sea,"

ASEAN also stresed the importance of maintaining and promoting peace, security, stability, safety, and freedom of navigation in and overflight above the South China Sea and recognized the benefits of having the South China Sea as a sea of peace, stability, and prosperity. It underscored the importance of the full and effective implementation of the 2002 Declaration on the Conduct of Parties in the South China Sea (DOC) in its entirety.

"We welcomed ongoing efforts to strengthen cooperation between ASEAN and China, and were encouraged by the progress of the substantive negotiations towards the early conclusion of an effective and substantive Code of Conduct in the South China Sea (COC) consistent with international law, including the 1982 UNCLOS, within a mutually-agreed timeline."ASEAN welcomed the resumption of physical textual negotiation of the Single Draft COC Negotiating Text through the convening of the 36th JWG-DOC on 25-27 May 2022 in Siem Reap, and looked forward to the early conclusion of an effective and substantive COC that is in accordance with international law, including the 1982 UNCLOS.

Foreign ministers of the countries attending the ASEAN Regional Forum (Photo: Newsnpr).

The evolution of the COC dates back to 1992, when ASEAN issued its first statement on territorial disputes in the South China Sea. Endorsing the concept of a COC in 1996, they then signed a Declaration on the Conduct of Parties in the South China Sea (DoC) in 2002, with draft guidelines being adopted in 2011. While the DoC has already played a significant role in stabilising the area, a COC would be an upgraded version  that would take yet another step towards regional peace and stability.

Towards this goal, ASEAN called on all parties to restrain, avoid complicating the situation, and settle disputes on the basis of international law and the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Accordingly, the parties agreed to step up cooperation towards comprehensive and sustainable post-pandemic recovery.

On the topic of COC negotiations, representatives of countries attending the 29th ASEAN Regional Forum (ARF) on the afternoon of August 5 in Phnom Penh, Cambodia, discussed many regional and international issues, especially complicated and tense developments, in the framework of AMM 55. ASEAN hopes the “second reading” will be completed by the end of the year. Diplomats said it would take about “three readings” to conclude negotiations on the COC. However, there are still many challenges waiting for negotiators in the coming time, notably the legal binding of the COC.

NHUNG NGUYEN