The way ahead for the construction of rules in the South China Sea

Over the past few months, there have been many different voices in the international public opinion arena around the consultation on the code of conduct in the South China Sea and the construction of rules and order in the South China Sea. Some people believe that the parties of the disputes should discuss and formulate a code; some people suggest that some ASEAN countries should set aside China and formulate a code; some people think that ASEAN countries should reach a consensus to form an ASEAN version of a code and then negotiate with China; some suggest that ASEAN should first formulate a code and then consider opening it up for signature with China, the United States, Japan, Australia, and other countries. Some analysts also believe that the current willingness of ASEAN countries to speed up COC consultations is not as strong as in previous years, and it is difficult to predict where the COC consultations will eventually go. Regarding these views and the misunderstanding and misreading behind them, this author believes that it is necessary to clarify them in several aspects.

First, the rule-building in the South China Sea cannot be separated from the DOC. Judging the quality of COC cannot be based on the respective interests of the relevant parties, but requires a reference that is jointly accepted and recognized, and this reference is DOC. As the first political document to address the South China Sea issue at the regional multilateral level, the DOC embodies the common will of all parties to maintain peace and stability in the South China Sea, and reflects the East Asian spirit of mutual respect, consensus and consideration for the comfort of all parties. The establishment of COC is the goal of DOC, and it is also the requirement of full and effective implementation of DOC.

The fact that the COC is not separated from the DOC means that in the COC negotiations all parties should follow the spirit embodied in the DOC and the mutually agreed principles of international law. Some general and vague expressions in the DOC can be clarified in the COC, and the deficiencies that are not covered by the DOC can be supplemented and improved in the COC, but the new content should be consistent with the DOC. The DOC should serve as a criterion for judging whether the new content proposed by the parties is constructive and worthy of consideration. If the political basis of the DOC is ignored or weakened, the COC negotiations will go in the wrong direction and are unlikely to be more substantive, effective and operational.

Second, COC should be positioned for crisis management. In accordance with the "dual-track approach" jointly advocated by China and ASEAN countries for many years, relevant disputes in the South China Sea are to be resolved through friendly consultation and negotiation between the countries directly concerned, and peace and stability in the South China Sea are jointly maintained by China and ASEAN countries. This means that the COC is based on a consensus of the "dual-track approach". The COC may avoid defining the legal consequences of some specific actions of the parties involved, but the other parties cannot use this to "legitimize" their illegal occupation of parts of China's Nansha Qundao. The terms of the COC and the conduct of the parties under the COC shall not be construed or deemed to be an acknowledgment of any territorial and maritime claims of the other party in the South China Sea. As a normative document, the role of the COC is to avoid conflicts between relevant parties due to disputes, and once a conflict occurs, it will be controlled through the institutional norms and institutional arrangements established by the COC.

Third, the COC should be the main channel and platform for maintaining peace and stability in the South China Sea in the future. On the one hand, the South China Sea issue is not between China and ASEAN, but between China and some of the countries concerned. As a regional organization, ASEAN cannot and does not need to play a central role in disputes between countries. If ASEAN countries deviate from China and adopt a separate code of conduct, it will run counter to the spirit of the DOC and the original intention of the COC consultations, and it is likely to lead to another situation in the South China Sea, that is, with relevant countries trying to occupy China's islands and reefs, triggering strong countermeasures from China. On the other hand, China and ASEAN countries are the main players in maintaining peace and stability in the South China Sea, but they do not exclude countries outside the region from playing a constructive role in the South China Sea issue. Countries outside the region may carry out security cooperation with ASEAN countries, but they must not affect the legitimate rights and interests of third countries.

Fourthly, the COC should be guided by the spirit of international law as embodied in the Charter of the United Nations and not only emphasize the role of the United Nations Convention on the Law of the Sea. The Charter of the United Nations is the cornerstone of the post-war international order, which clarifies the principles of sovereign equality and the peaceful settlement of disputes and sets forth the principles and purposes of maintaining peace and security and promoting international cooperation, which embody the essence of the spirit of international law. The return of sovereignty over Nanhai Zhudao to China is an important part of the post-war international order, and the relevant disputes in the South China Sea involve both territorial and maritime demarcation. The settlement of territorial issues is mainly based on the relevant international laws governing the ownership of land territory, and the settlement of delimitation disputes in the South China Sea needs to be based on the premise of territorial ownership.

Finally, the COC should be applied equally to all parties. In recent years, there has been an argument in the international public opinion arena that regards the COC as a document that "restricts China's behavior", or that even if the COC is reached, it "cannot restrict China's behavior". The very starting point of this logic is wrong. If the COC is binding, from the perspective of international law, the application of the treaty should be treated equally by all parties, and there can be no "double standards". If the COC is not binding, given the realities of international politics, a stable political arrangement will inevitably be one in which all participating countries feel that their concerns are met or safeguarded.

Ding Duo is deputy director and associate research fellow, at the Research Center for Ocean Law and Policy at the National Institute for South China Sea Studies.

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