A Code of Conduct for the South China Sea?

Vietnam recalls that China colonized Vietnam for more than 1,000 years, and, more recently, China attacked Vietnam in 1978, and China gained a foothold in the South China Sea by ejecting, first, South Vietnamese troops from their half of the Paracels in 1974 and then the forces of a unified Vietnam from some of the Spratlys in 1988. If Vietnam were to compromise its claims to the South China Sea, it would be almost surrounded by land features and maritime regimes that China claimed as its own.

Filipinos do not forget that Japan invaded their country from some of the Spratlys and, therefore, feel the need, for geopolitical reasons, to push their western frontier as far out as possible. There is also the demand for fish in the diet of almost 100 million Filipinos and for oil and gas for the economy of energy-hungry Philippines.

The two wings of Malaysia, which bases its claim on the claimed features’ location on its continental shelf, on their proximity to the Malaysian mainland, and on national security, are not only divided but also linked by a large expanse of the South China Sea. Brunei Darussalam feels the need for the resources lying within and beneath its “exclusive fishing zone” and continental shelf against the day when its currently lucrative oil and gas fields run dry. The Malaysian and Brunei claims, as well as those of others, overlap. In March 2009, the two countries’ leaders announced “the final delimitation of maritime boundaries” between them; the text of the agreement has not been released, however.

PacNet #45A Friday, Aug. 17, 2012

A Code of Conduct for the South China Sea?

by Rodolfo Severino

Rodolfo Severino [severino@iseas.edu.sgis the head of the Institute of Southeast Asian Studies in Singapore. The full version of this article first appeared in the ISEAS Perspectives Series.

On July 20, 2012, foreign ministers of the Association of Southeast Asian Nations (ASEAN) called for “the early conclusion of a Regional Code of Conduct in the South China Sea.” The statement that the Cambodian foreign minister, as chairman of the July 9 ASEAN Ministerial Meeting, issued on behalf of his colleagues invoked past ASEAN agreements pertaining to the rule of international law, self-restraint, the non-use of force, and the peaceful resolution of disputes. Based entirely on an Indonesian draft cleared with all ASEAN member-states, the statement laid down what were the positions of ASEAN, claimants and non-claimants alike, on the South China Sea and their interests in it.

When contemplating a Code of Conduct for the South China Sea, some facts ought to be taken into consideration and certain issues have to be resolved – or fudged – or, in any case, addressed.

One of those facts is what caused the downgrading of the 2002 document from what it initially was, a legally binding code, to a political declaration called, awkwardly, the Declaration on the Conduct of Parties in the South China Sea, which all of ASEAN’s foreign ministers and Wang Yi, China’s vice foreign minister, signed Nov. 4, 2002. The downgrading resulted from questions about where the “legally binding” code would apply. The question was raised primarily because of the dispute over the inclusion of the Paracels between Vietnam, which maintained its claim to the Paracels, and China, which had – and has – occupied them and steadfastly refused even to discuss the Paracels as disputed territory in the South China Sea.

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