Effective, substantive Code of Conduct in the East Sea (COC): Uneasy journey but one is determined to reach early conclusion

WVR - It coud be affirmed that, although there are still many obstacles and difficulties, over the past time, the negotiation process of the Code of Conduct of Parties in the East Sea (internationally known as South China Sea) (COC) between ASEAN and China has recorded many progresses with efforts and acts of goodwill from both sides.
An effective, substantive COC: Uneasy journey but one is determined to reach early conclusion
An effective, substantive COC: 26th ASEAN-China Summit in Jakarta, Indonesia, on September 6, 2023. (Photo: WVR/Anh Son)

Effective, substantive, in line with with the United Nations Convention on Law of the Sea (UNCLOS) in 1982

Both ASEAN and China wish to soon realize a substantive and effective COC in accordance with international law, including the UNCLOS 1982, thus to contribute to maintaining peace, security and stability in the region, creating a favorable environment for the peaceful resolution of disputes in the East Sea.

Most recently, the 21st Senior Officials' Meeting on the Implementation of the Declaration on the Conduct of Parties in the South China Sea ((known in Vietnam as the East Sea) was held in Beijing, China, on October 26, 2023. At the meeting, all parties announced the official launch of the third reading of the Single Draft COC Negotiating Text, and agreed to implement the guidelines for accelerating the conclusion of the COC as adopted by the ASEAN-China Foreign Ministers' Meeting*, and strive to conclude the COC at an early date.

In a recent announcement, the Indonesian Ministry of Foreign Affairs emphasized its support for measures to build confidence and reduce tensions, thereby promoting prosperous development in the region, as well as helping to ensure the role of ASEAN's center in the East Sea issue.

Notably, in the 2023 ASEAN Chairmanship, Indonesia has made every effort to promote COC negotiations in the context of the East Sea situation still having many complicated developments. Under Indonesian Chairmanship, ASEAN and China completed the second reading of the Single Draft COC Negotiating Text. These positive developments are expected to create momentum to speed up the negotiation process.

In early September 2023, ASEAN member states and China agreed with Indonesia's initiative to expedite the negotiations on the Code of Conduct in the East Sea. The announcement made by the Indonesian Ministry of Foreign Affairs said that Indonesia's initiative emphasized Indonesia's guidelines for promoting COC negotiations, including practical documents, ensuring the feasibility, substance and effectiveness of the COC.

Director of ASEAN Political-Security Cooperation at the Indonesian Ministry of Foreign Affairs Rolliansyah Soemirat made this announcement, highlighting that Indonesia's initiative in the form of Guidelines can serve as practical documents that also contains substantive material to keep the COC effective and actionable.

According to him, these are the first-ever guidelines to accelerate COC talks, aiming to fulfill the aspirations of ASEAN and China to complete the COC within a maximum of 3 years. The guidance was provided on the basis of in-depth discussions on outstanding issues, as well as other suggestions on working methods so that the negotiation process can proceed more quickly and effectively.

Efforts needed from both sides

At the recent 15th International Conference on the East Sea, scholars from many countries around the world shared the same point of view that the East Sea issue has contained many new elements and aspects such as multilateralization, internationalization, militarization of seas and occupied areas, international law and the dispute management, etc. The East Sea is currently considered an international issue, facing more risks of conflict and if a conflict occurs, it will easily escalate and expand the scope.

An effective, substantive COC: Uneasy journey but one is determined to reach early conclusion
An overview of the 15th International Conference on the East Sea which was held in Ho Chi Minh City, on October 25-26, 2023. (Photo: WVR)

Therefore, promoting dispute management measures such as the COC process is important. However, there are still some controversial contents in COC negotiations such as scope of application, legal effect, enforcement mechanism, role of third parties, etc. Subsequently, achieving a COC that can be applied in practice is not an easy journey and requires efforts from both ASEAN and China.

Recently, Mr. Aristyo Rizka Darmawan, an international law and maritime security expert at the University of Indonesia, said that whether the COC is legally binding or not, it is essential to build a monitoring and compliance mechanism to ensure the effectiveness of the Code. The success of the COC must be measured by the degree of compliance by the parties. The foundation of COC dialogue is mutual trust.

Recognizing the most difficult things in COC negotiations, Professor Carl Thayer of the Australian University of New South Wales (Australia) said that the COC negation process has faced certain obstacles from unilateral actions that complicate situation in the East Sea. Along with that, there are still differences in the views of the parties regarding issues such as geographical scope, legal status of the code of conduct, and enforcement measures.

In a sharing with the press, former Deputy Foreign Minister Pham Quang Vinh also commented: "We need a COC that meets the criteria of effectiveness, efficiency, and compliance with UNCLOS, so perhaps we should not set a time limit specific term. It is important to maintain dialogue, understanding, and negotiation."

For its part, Vietnam always follows the principle of settling disputes and differences in the East Sea through peaceful means, based on respect for independence, sovereignty, and legitimate interests of nations, and compliance with international law; emphasized the significance of strengthening collective efforts to ensure the maintenance of international law and principles in international relations, including the 1982 United Nations Convention on the Law of the Sea and the full implementation of the Declaration on the Conduct of Parties in the East Sea (DOC); the need to promptly conclude negotiations and sign an effective and substantive COC in line with international law.

Obviously, the issues that the DOC has not yet effectively dealt or not yet fully addressed will need to be resolved by the upcoming COC. Therefore, COC negotiations are certainly more difficult and complicated. It can be seen that both ASEAN and China are showing their efforts to negotiate to bring the COC "to the completion", hoping that the negotiations will soon achieve the conclusion.

*Guidelines for Accelerating the Early Conclusion of an Effective and Substantive Code of Conduct in the South China Sea was adopted at the Post Ministerial Conference 10+1 Meeting with China, in Jakarta, Indonesia, on July 13, 2023.

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Translated by Thai Nguyen