South China Sea: How we got to this stage

An informal consultation was held between China and the ASEAN countries in Thailand on March 15, 2000, and "the code of conduct" documents respectively drafted by both sides were exchanged and discussed. However, due to considerable different views on its binding powers among the parties, and China and Vietnam’s differences on the areas it should cover, the drafting process did not go very well, and subsequent consultations yielded no substantial outcome.

With a view to diffuse the standoff, Malaysia proposed to replace "the code of conduct" with a compromising and non-binding "declaration" at the 35th ASEAN Ministerial Meeting held in Bandar Seri Begawan, Brunei in July 2002. The motion was approved by the ASEAN Ministerial Meeting, and a joint statement was published after the meeting, stating that ASEAN and China would work closely together to make "the declaration" a reality. Several months later, a consultation on the Declaration on the Conduct of Parties in the South China Sea (DOC) was held in place of a consolation on "the code of conduct", where both sides engaged in many rounds of difficult negotiations. At the 8th ASEAN Summit convened in Phnom Penh, Cambodia on November 4, 2002, Mr. Wang Yi, then Vice Minister of Foreign Affairs, and Foreign Ministers of the ten ASEAN Member States jointly signed the DOC.

In the DOC, which contains ten provisions, the parties recognize the need to promote a peaceful, friendly and harmonious environment in the South China Sea; 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 UN Convention on the Law of the Sea; reaffirm their respect for and commitment to the freedom of navigation in and overflight above the South China Sea; undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features and to handle their differences in a constructive manner; and agree to work, on the basis of consensus, towards the eventual attainment of the document’s objective. The focus throughout the negotiations was on the disputes over the sovereignty of the Nansha islands and reefs. Much attention was directed to preventing escalation of disputes and the main purpose of the DOC was to prevent further act of occupying and controlling islands.

It is worth noting that right before the signing of the DOC, opinions divided about what name to use referring to the disputed areas. Most ASEAN Member States wanted to use the expression of "Spratly Islands", while having no objection to China using “Nansha Islands”. However, Vietnam insisted using “the Hoang Sa Islands” and “the Truong Sa Islands” (respectively referring to the Xisha Islands and the Nansha Islands) as a way to assert its stance. And this violated China’s bottom line, as China had never admitted the existence of any dispute in the Xisha Islands, nor had the consultations touch upon those islands. Eventually, in the hope of breaking the long deadlock and maximizing common interests, China agreed to use a more ambiguous expression —"the South China Sea", for example "Parties in the South China Sea", "the freedom of navigation in and overflight above the South China Sea" and "code of conduct in the South China Sea". Description about islands disputes were also vaguely rendered as "refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features", without specific mention to the Nansha Islands. The DOC played a vital role in diffusing disputes in the Nansha Islands and maintaining regional stability, but its ambiguous renderings of features in dispute sowed the seeds for turning the local territorial disputes to a more generalized maritime issue. The concepts of “disputes over islands” and “maritime disputes” became confusingly mixed up. Driven by other factors, disputes over portions of the Nansha Islands and delimitation of their surrounding waters gradually ballooned into an overall South China Sea issue.

Shortly after the Cold War, the US remained committed to its previous policy of not taking sides on the legitimacy of territorial claims, emphasizing that the disputes should be peacefully resolved, and that the freedom of navigation in the South China Sea should be maintained. As Asia was not the focal point of the US’s global policy at that time, the occasional heating up of disputes over the Nansha Islands did not move the US to change its neutral stance. It stressed that parties concerned should settle territorial disputes through peaceful means.