2nd COC draft on progress: A ray of hope but a great deal of efforts

17/11/2022| 14:56

The Association of Southeast Asian Nations (ASEAN) and China are now working on the second draft of the Code of Conduct (COC) in the South China Sea, however, great efforts need making to push for a pragmatic and effective legal binding.

A light of hope

Speaking at a video conference during the 11th Editors’ Roundtable in Phnom Penh on October 18, ASEAN Secretary General Lim Jock Hoi said that the first draft was finished and the two sides are proceeding with the second one.

2nd COC draft on progress: A ray of hope but a great deal of efforts

According to Mr. Lim, ASEAN and China are moving to the second draft of COC. Picture: AseanVietnam.

Despite challenges due to the COVID-19 pandemic, ASEAN member states and China have exerted efforts to resume their COC negotiations and maintain the momentum of work, including utilizing virtual platform, and video conference, said Mr. Secretary General.

According to Mr. Lim, the joint working group has resumed in-person discussions as both ASEAN and China continue to “reaffirm the aspiration to expedite the COC negotiation and work towards the early conclusion of an effective and substantive COC.” This is consistent with international law, including the 1982 UNCLOS.

In the meantime, the top ASEAN official emphasized the confidence-building and preventive measures. He believes this would enhance the trust and confidence among parties in order to provide conducive environment for the COC negotiation.

This is the latest official update on the COC negotiation. In 2019, the two sides announced finishing the first reading of the single draft negotiating Text of COC, which “fully demonstrates China and the ASEAN countries' capability, wisdom and willingness to reach an agreement on the text of the COC as soon as possible, so as to formulate the regional rules followed by all sides”, according to Chinese Foreign Minister Wang Yi.

An upgraded DOC

According to experts, the Declaration on the Conduct of Parties in the South China Sea (DOC) has failed to prevent parties from reinforcing their positions in the regional waters, with increasingly hegemonic military activities and island reclamation on the ground which seriously violates the 1982 UNCLOS.

 “The current situation is even more complicated than before the DOC was formulated as evidenced by collisions of fishing boats, the destruction of coral reefs to build bases, the violation of environmental laws and the lack of joint scientific research projects,” said Ambassador Nguyen Hong Thao, member of the International Law Commission (ILC).

Therefore, the COC is expected to be more comprehensive, pragmatic and legally binding. According to Nguyen Dang Thang (Vietnam’s National Border Committee), the prevention of the activities that erode trust or threaten peace, security and stability in the region and the legality of artificial island building, sea reclamation and militarization are among the top issues that the COC need to address.

In addition, a new legal landscape in the South China Sea has emerged since the arbitral tribunal ruling in 2016, said Dr. Nguyen Ba Son, President of Vietnam Society of International Law.

The Award has shed light on the implementation of the DOC and the negotiation of a future COC, which may involve states outside the region and international organizations to address the closely integrated issues in this semi-enclosed sea as mandated under the 1982 UNCLOS. On-going COC negotiations can be an appropriate forum to concretize the above-mentioned issue.

Great challenges ahead

Passing the COC’s first draft is a positive signal, even a breakthrough, however, the COC should not be expected as a multifunctional key to address all conflicts in the South China Sea, said Assoc.Prof.Dr. Tran Viet Thai (Diplomatic Academy of Vietnam).

The COC’s binding force is limited and cannot be compared with the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Therefore, it tends to have an orientation meaning towards guiding the relevant parties’ attitudes and behavior in the dispute.

Dr. Thai believed that based on the reality on the ground, ASEAN and China need more efforts to manage the situation, combining different tools to achieve the desired goals of peace and stability at sea and in the region.

To implement an effective and binding COC, the first and foremost thing is the goodwill and political will of the two sides, especially China, according to this scholar. On this issue, Foreign Minister Wang told that China “has always been the main driving force in the consultation process” and “has always been strictly abiding by the DOC and has made positive contributions to the peace and stability in the South China Sea”. However, China always talks the talk and walks the walk.

In addition, the COC’s legally binding feature also needs taking into consideration. For instance, this document will be approved by the Government or need passing in the Parliament or can it be used as a basis for legal mechanisms like court, third party mediator or just negotiation, bilateral agreement when a dispute arises?

Although Beijing’s rhetoric of concluding the consultations within three years' time, many experts believe that it is impossible to meet that deadline.

Bao Huy