Code of conduct over the South China Sea

For Asean, the Declaration on the Conduct of Parties in the South China Sea (DOC) - signed by all Asean foreign ministers and Chinese Special Envoy Wang Yi in Phnom Penh on November 4, 2002, on the sidelines of the 6th Asean-China Summit - has always been a regional framework for cooperation between Asean and China on issues of contention and confidence-building in the South China Sea.

The DOC clearly states that this is an agreement between "the governments of member states of Asean and the government of the People's Republic of China". In other words, the ten Southeast Asian countries signed this agreement in a collective capacity. The DOC refers to a 1997 Joint Statement of Asean and Chinese leaders, issued in the context of Asean-China cooperation, and it held out the possibility of adopting a code of conduct in the South China Sea, which is an Asean initiative mentioned in Asean's 1992 Declaration on the South China Sea. (One complication here is that Vietnam considers the scope of the DOC, as well as the 1997 Joint Statement, to include the disputed Paracel Islands.)

But in recent years, China seems to have had second thoughts about the DOC, fearing that it could jeopardise its sovereignty claims in the South China Sea. Therefore, China has objected to Asean's proposed inclusion in the DOC draft guidelines of a reference to the existing Asean practice of informal consultation among the four Asean claimants in the South China Sea prior to an Asean-China meeting on the DOC. China insists that the Spratlys issue does not concern the four Asean claimants collectively, or Asean as a group. One possible solution here is to state clearly that the DOC implementation guidelines will not prejudice any concerned parties' sovereignty claims in the South China Sea.

Asean and China have held a Senior Officials Meeting to discuss policy issues concerning implementation of the DOC. A DOC Joint Working Group has also been established and has so far met four times, the latest meeting held in Hanoi in April. China is scheduled to host another meeting before the end of 2010. At issue here is how to implement the six South China Sea joint projects that have been agreed upon since the second meeting of the Joint Working Group in Sanya in February 2006.

Nevertheless, as far as the DOC is concerned, I believe Asean and China can handle their differences without the involvement of a third party. However, expression of support for the early implementation of DOC projects from outsiders is welcome, and will encourage Asean and China to work harder on the DOC.

Regarding extended continental shelves, this is a technical issue on overlapping claims for 200-mile economic exclusion zones (EEZ) and continental shelves beyond the EEZs of states around the South China Sea. In this issue, Indonesia - the incoming Asean chair for 2011 - is also involved because of its EEZ and maritime interests in the Natuna Sea adjacent to the southern South China Sea.

In May 2009, Malaysia and Vietnam submitted to the Commission on Limits of Continental Shelves (CLCS) their joint claims to extended continental shelves in the southern South China Sea. China and the Philippines are also involved because these areas include disputed parts of the Spratlys and adjacent waters. Vietnam also submitted claims in the northern South China Sea, including the Paracels, to which China objected.

Inevitably, these claims will overlap. Ideally they should be resolved by the CLCS, established under the 1982 UN Convention on the Law of the Sea (UNCLOS). Asean cannot get involved because two of its member states (Cambodia and Thailand) have not yet ratified UNCLOS. Neither can the US have any say, because it too has not ratified UNCLOS.

Regarding maritime security, the South China Sea issues concern maritime security in general, and freedom and safety of navigation and over-flight in particular. This is an international issue of common interest to nations using the South China Sea for transport. Several Western foreign ministers mentioned their national interest in maritime security in the South China Sea during the 17th Asean Regional Forum (ARF) in Hanoi in July. These ministers, including the US secretary of state, underlined that they neither questioned nor supported any sovereignty claims in the South China Sea. Their common wish is to see the concerned parties resolve overlapping sovereignty claims peacefully. The US secretary of state called for early implementation of the DOC, to reduce tensions and build confidence.

Therefore, we have to question reports saying that some Western countries have called for a new multilateral approach to resolve issues in the South China Sea. Which issues would such an initiative address? A new multilateral approach may be useful only if it is going to promote international cooperation in maritime security in the South China Sea.

The Western media likes to portray a dangerous "tussle" between China and the US over the South China Sea. China reportedly saw red when Vietnam invited the USS George Washington aircraft carrier to Da Nang in August as part of the celebrations for the 15th anniversary of Vietnam-US diplomatic relations. However, we still have to ask: Which part of the South China Sea or which issue does the US want to tussle with China over? Certainly not over the Paracels, the Spratlys, the DOC or the overlapping claims of extended continental shelves.

Maybe the real issue here is the operational rights of military vessels in disputed waters in the South China Sea. If this is the case, then it can be discussed in the Asean Regional Forum. The inaugural Asean Defence Ministers Meeting (ADMM) will include a meeting with defence ministers from Australia, China, India, Japan, South Korea, New Zealand, Russia and the US (the new Asean dialogue partners) in Hanoi on October 12. That may be another venue to discuss military issues in the South China Sea - as part of international maritime security concerns and no more.

Termsak Chalermpalanupap is director of the Political and Security Directorate of the Asean Secretariat. This is the last of a two-part series.