The code of conduct being formulated by China and the regional bloc in the disputed South China Sea should comply with international law, specifically the United Nations Convention on the Law of the Sea (UNCLOS).
This was the position taken by the Association of Southeast Asian Nations (ASEAN) and the United States who invoked the relevance of “full and effective implementation” of the 2002 Declaration on the Conduct of Parties (DOC) in the entire South China Sea.
China has been accused of violating the DOC for transforming several reefs into artificial islands being claimed by other countries in the region.
In place of a legally-binding code, China and the ASEAN which includes the Philippines, Singapore, Vietnam, Thailand, Indonesia, Malaysia, Brunei, Cambodia, Myanmar and Laos, settled for a mere declaration in that enjoins claimants to exercise restraint and stop new occupation in the South China Sea.
However, certain quarters viewed the declaration as non-binding and lacked provisions to sanction misbehaving claimants, thus the document was useless against aggression.
The ASEAN and the US maintained that the UNCLOS “sets out the legal framework within which all activities in the oceans and seas must be carried out.”
Both parties asserted that the UNCLOS was also “the basis for national, regional and global action and cooperation in the marine sector, and that its integrity needs to be maintained.” They underscored it in a Vision Statement that was released after the meeting in Washington between ASEAN leaders and US President Joe Biden on May 13.
President Duterte skipped the meeting but was represented by Foreign Secretary Teodoro Locsin Jr., while Myanmar, now ruled again by a military junta, was not invited by Biden to the summit.
The US is one of the Western states that do not recognize Myanmar’s military leaders who seized power from Aung San Suu Kyi’s elected government in February last year.
Incidentally, Myanmar currently heads the code of conduct talks as country coordinator for ASEAN and China.
“We emphasized the need to maintain and promote an environment conducive to the Code of Conduct in the South China Sea (COC) negotiations. We welcome further progress towards the early conclusion of an effective and substantive COC consistent with international law, including the 1982 UNCLOS,” the ASEAN-US statement said.
“We further reaffirmed the need to pursue peaceful resolution of disputes in accordance with universally recognized principles of international law, including the 1982 UNCLOS.”
UNCLOS is an international treaty signed by 160 states, including the Philippines and China, which allows coastal nations the right to explore, manage and exploit resources within 200 nautical miles from their shores.
A regional code of conduct aims to prevent conflicting territorial claims in the vast potentially-oil rich region from erupting into violent confrontations or worse, an economically-devastating major conflict.
In August 2018, ASEAN and China agreed to a single draft of the code of conduct, with an agreement reached in November 2018 for both sides to finalize the document within three years, starting from 2019.
No final document was agreed upon by the two sides until now.
China, which considers the sea disputes a purely Asian issue, is opposed to any foreign intervention, particularly from the US.
The US and China are at odds over the long-seething territorial row in the strategic waters.
Although Washington is not a party to the disputes, it has declared that it is in its national interest to ensure freedom of navigation and overflight in the contested waters where China, the Philippines, Vietnam, Malaysia, Brunei, and Taiwan have overlapping claims.
“We are dedicated to maintaining peace, security, and stability in the region, and to ensuring maritime security and safety, as well as freedom of navigation and overflight and other lawful uses of the seas as described in the 1982 UNCLOS, and unimpeded lawful maritime commerce as well as non-militarization and self-restraint in the conduct of activities,” the ASEAN-US statement said.