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The 2002 Declaration on the Conduct of Parties in the South China Sea: A Note

By Nguyen Hong Thao

Faculty of Law

University of Hanoi

Hanoi, Vietnam

In November 2002 the ASEAN states and the People’s Republic of China agreed upon a Declaration on the Conduct of Parties in the South China Sea. This note, a follow-up to the author’s article, “Vietnam and the Code of Conduct for the South China Sea” (Ocean Development & International Law, Vol. 32, pp. 105–130 (2000)), briefly describes the contents and importance of the 2002 Declaration.

The Declaration on the Conduct of Parties in the South China Sea (DOC)1 was signed on 4 November 2002 during the Eighth ASEAN Summit in Phnom Penh, Cambodia by leaders of ASEAN and China.2 The parties unanimously considered that this event has made an important contribution to the maintenance of peace and security in the region and to the promotion of development and cooperation. Philippine Secretary of Foreign Affairs Blas F. Ople called the Agreement “a major leap for peace,” by providing a strong framework for future talks on territorial issues among the claimants to the islands and ocean space in the South China Sea. Chinese Vice Foreign Minister Wang Yi said the Agreement would not solve territorial conflicts, but would allow peace to reign and help claimant countries focus on economic development.3

The DOC is a first step towards the establishment of a code of conduct in the South China Sea which has been under discussion for over a decade.4 The first mention of a possible code of conduct arose in the ASEAN Declaration on the South China Sea of 19925 where it provides that all parties are to apply the principles contained in the Treaty of Amity and Co-operation in Southeast Asia (TAC) as the basis for establishing a code of international conduct for the South China Sea. Paragraph 11 of the Joint Communique of the 29th ASEAN Ministerial Meeting, held in Jakarta in 1996, “endorsed the idea of concluding a regional code of conduct in the South China Sea which will lay the foundation for lone [sic] term stability in the area and foster understanding among claimant countries.” The Declaration of Hanoi, paragraph 7,6 adopted at the Sixth ASEAN Summit in 1998 called for the ASEAN members countries to promote efforts for establishing a regional code of conduct in the South China Sea. The initiative to have an ASEAN–China code of conduct, proposed by ASEAN in Kuamin, China, on 6 April 1999, commenced the process of negotiations between Beijing and ASEAN member countries on the future of a code of conduct for the region. The Joint Communique of the 35th ASEAN Ministerial Meeting, held in Bandar Srei Begawan in 2002, in paragraph 40 reaffirmed “that the adoption of a code of conduct in the South China Sea would further promote peace and stability in the region and agreed to work towards a Declaration on the Conduct of Parties in the South China Sea. In this regard, we agree to work closely with China with a view to adopting the Declaration.” With the 2002 DOC both ASEAN member countries and China have overcome their differences and achieved the first political text for the conduct of parties in the South China Sea.7

The DOC is composed of ten points. Point 1 deals with the legal basis for the conduct of parties. The parties reaffirm their commitment to the purposes and principles of the Charter of the United Nations, the 1982 UN Convention on the Law of the Sea, the Treaty of Amity and Cooperation in Southeast Asia, the Five Principles of Peaceful Coexistence, and other universally recognized principles of international law which are to serve as the basic norms governing state-to-state relations. The parties are committed to exploring ways for building trust and confidence in accordance with the above-mentioned principles and on the basis of equality and mutual respect.

The DOC appears to have avoided the biggest obstacle among the claimants in establishing a code of conduct in the South China Sea. This was the question of the scope of application. Would a code of conduct apply to the whole of the South China Sea or only to the disputed areas? In the South China Sea, China, Taiwan, and three members countries of ASEAN, Vietnam, the Philippines, and Malaysia, have claimed all or a large part of the Spratly Islands area. Another member of ASEAN, Brunei, has certain interests in the Spratlys area. Disputes also exist between Vietnam and China as regards the Paracel Islands and between the Philippines and China as regards Scarborough Shoal. The DOC is silent regarding its geographic scope, but its title (“Declaration of the Conduct of Parties in the South China Sea”) permits the understanding that the provisions of the DOC are to apply not only for the Spratlys area but also for the Paracel Islands and Scarborough Shoal. The scope of application of the DOC would be interpreted narrowly or widely according to the interests of the signatories.

The DOC has provisions to govern the conduct of parties not in a prohibitive manner but in a more positive manner in that conduct of states is to aim to reduce the tensions of the territorial and jurisdictional disputes in the South China Sea. Point 4 of the DOC states: “The parties concerned 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.”

Self-restraint was included as part of the 1992 ASEAN Declaration on the South China Sea, where it urges “all parties concerned to exercise restraint with the view to creating a positive climate for the eventual resolution of all disputes.”8 The ASEANChina Joint Statement of December 1997 in Kuala Lumpur emphasized that, “In the interest of promoting peace and stability as well as enhancing mutual confidence in the region, the parties concerned agree to continue to exercise self-restraint and handle relevant differences in a cool and constructive manner.”9 The principle of self-restraint has been advocated by Vietnam since 1988 in the form of a proposal to carry out negotiations respecting the status quo of the dispute and the nonoccupation of unoccupied features. To exercise self-restraint has two meanings: maintaining the present status quo of occupied positions and avoiding actions that complicate the situation. On 20 April 1995 the General Secretary of the Vietnam Communist Party Do Muoi stated officially in Tokyo that, “The Vietnamese position is to keep the present status quo for maintenance of peace and stability in the region and for searching a peaceful solution for dispute more than to use force or threaten by force.”10 Point 5 of the DOC demonstrates this idea clearly:

The parties 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.

However, the ban on erecting new structures that the Philippines sought is not included in the Declaration.

Points 5 and 6 of the DOC, which list modes of discussion and possible areas for action, open the way for cooperative activities among the parties in the less sensitive areas of endeavour, with the goal of building trust and confidence. The South China Sea question is not only a preoccupation of the parties concerned but is of interest to the international community as a whole. The DOC reaffirms the respect for and commitment of the parties to the freedom of navigation in and overflight above the South China Sea consistent with universally recognized principles of international law and the 1982 UN Convention on the Law of the Sea. The parties encourage other countries to respect these principles contained in the DOC.

The DOC is not a legal instrument and thus is technically not legally binding and is even less persuasive than the code of conduct that many countries in the region had desired.11 Generally, a political declaration does not provide as clear guidance for state action as a code, but can be an important document. In the case of the 2002 DOC, almost all the main principles contained in the 1999 draft of the ASEAN Code of Conduct12 have been touched upon in the DOC, such as:

• prohibition against use of force and threats of force,

• exercise of self-restraint,

• peaceful settlement of international disputes,

• search for and adoption of confidence building measures,

• cooperation,

• consultation, and

• respect for the freedom of international air and maritime navigation.

The DOC is meant to diminish the threaten of war or a military clash in the South China Sea. It has important significance in creating an environment for cooperation, peace, and stability in the region and in promoting trust, confidence building, and mutual understanding between ASEAN and China. However, the implementation of the principles contained in the DOC depend upon the good will and efforts of its parties.

The settlement of persons on Thitu Island (Pagasa) by the Philippines in September 2002 and the tourist activities on Woody Island of Paracels archipelago by China in October 2002 raise serious concerns about a new rush to occupy previously unoccupied features in the South China Sea. In this context, the proposal made by Vietnam and accepted as Point 10 in the DOC is very significant: “The Parties concerned reaffirm that the adoption of a code of conduct in the South China Sea would further promote peace and stability in the region and agree to work, on the basis of consensus, towards the eventual attainment of this objective.”

Notes

1. See the Appendix to this contribution.

2. “ASEAN, China create world’s largest free trade zone, pledge to fight terror,” Vietnam News, November 5, 2002.

3. “Asean, China sign pact on disputed Spratlys,” www.CNN.com, November 4, 2002.

4. See generally Nguyen Hong Thao, “Vietnam and the Code of Conduct for the South China Sea,” Ocean Development and International Law, 32:105–130 (2000).

5. The 1992 ASEAN Declaration is reproduced as Appendix 1, Nguyen Hong Thao, supra note 4, at 124.

6. Paragraph 7 of the Declaration of Hanoi is reproduced as Appendix 3, Nguyen Hong Thao, supra note 4, at 126.

7. Jamin Jibao “No more blockhouses build on Spratlys,” Vietnam News Agency, (TTXVN), November 7, 2002.

8. The 1992 ASEAN Declaration, supra note 5.

9. Paragraph 8 of the ASEAN-China Joint Statement, reproduced as Appendix 5, Nguyen Hong Thao, supra note 4, at 129.

10. Reported in Agence Française de Presse, Tokyo, April 20, 1995.

11. Barry Wain, “China and Asean taking charge,” Far Eastern Economic Review, www.feer.com, November 4, 2002.

12. The 1999 draft ASEAN Code of Conduct is reproduced as Appendix 4, Nguyen Hong Thao, supra note 4, at 127.

Source:

Ocean Development & International Law, 34:279–285, 2003

Full text of DOC:

http://www.aseansec.org/13163.htm