Code of Conduct for

the South China Sea:

toward a rules-based
order or an exclusion
of extra-regional
powers?
HONG KONG NGUYEN
PHD STUDENT (NG21T2HX@APU.AC.JP)
RITSUMEIKAN ASIA PACIFIC UNIVERSIT Y
NIICE International Studies Convention 2021
 The South
China Sea
Disputes
• Decades-long territorial and
maritime disagreements
among six political entities:
China, Taiwan, Vietnam,
Malaysia, The Philippines,
and Brunei.
• Paucity of agreed boundary
agreements and maritime
dispute settlements.
 COC: a work in progress
Consultations on a 10th anniversary of ASEAN-
Code of Conduct China Strategic Partnership

2000 2002 2005 2012 2013 2016 2017 2019 2021

ASEAN and China ASEAN- ASEAN’s Six- • Jan: Philippines Ruling ASEAN First 19th
signed China Joint Point initiation of issued by & China Reading of ASEAN-
arbitral tribunal the endorsed a the Single China SOM
the Declaration on Working Principles on
under UNCLOS Permanent
the Conduct of Group on the South framework Draft on
• Apr: China Court of
Parties in the South China China Sea willingness to Arbitration for the COC Negotiating implementa
South China Sea Sea hold talks with (PCA) at Text of COC tion of DOC
(DOC) (JWGSCS) ASEAN on COC. The Hague

1st formal consultations on COC held at 6th ASEAN-

China SOM and 9th JWGSCS
COC: what has been agreed on
Single draft negotiating text (2019)
Geographic does not clearly define the geographic
scope scope of the South China Sea
“not an instrument
to settle territorial Dispute does not contain any specific reference
settlement to the binding dispute mechanisms
disputes or maritime
included in UNCLOS Annex VII.
delimitation issues.”
Duty to appears slightly contentious
cooperate
Role of third no reference about accession to the
parties COC by third parties
What have changed?
China’s approach to the consultations and negotiations on the COC shows first signs
of change 2013 and later in 2016.
• Aug 5: “to hold consultations on moving forward the process on the COC under
the framework of implementing the DOC” (Chinese FM Wang Yi)
• Four points raised: (1) reasonable expectations, (2) consensus through
negotiations, (3) Elimination of interference, (4) Step-by-step approach
China may use the
China wants to use the
Formulating the COC principles of consensus
COC as a legal basis to
would take time to veto any proposal it
exclude outside powers
disagreed with
Why?
• To deflect criticism away from the Tribunal ruling in 2016.
• Easing of tensions between the Philippines and China in 2016 as
President Duterte decided to prioritize economic relations with China while
addressing their overlapping territorial claims on a bilateral basis.
• To create a legal document, potentially binding, that effectively requires
the ASEAN and China to discuss the disputes among themselves, and to
not involve extra-regional powers.
Implications
• Were the COC to be formulated as a regional rule of law for conduct in the
South China Sea, it would bring into questions the role of the 1982
UNCLOS.
• As a legal document, whether binding or not, the COC sets to constrain all
consultations and negotiations regarding disputes in the South China Sea
to between the ASEAN and China.
• The role of extra-regional powers, particularly the United States, comes
into question under this regional rule of law.
Bibliography
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Thank you very much!
Contact me at ng21t2hx@apu.ac.jp