Chapter 3. Background information
3.8 ASEAN, China, and the Code of Conduct
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and engagement policies, as well as to lead Chinese rise to a more constructively
approach rather than to dictate the states in the region (Yu, 2013). However,
Washington’s concern with the freedom of navigation and its alliances in Asia can
make US presence in SCS region not welcome by China, and therefore transforming
US engagement with China into confrontation.
3.8 ASEAN, China, and the Code of Conduct
In the SCS territorial disputes with China there are involved, directly or with reasons
to pay attention to the development of the issue, several countries: Brunei, Indonesia,
Malaysia, Philippines, Singapore, Taiwan, and Viet Nam. With the exception of
Taiwan, all the other actors are members of the Association of South East Asian
Nations (ASEAN), a regional institution with Asian characteristics in its decision
making process, which is expected to develop, together with Beijing, a code of
conduct to manage and to try to resolve the SCS conflict between China and some of
its members.
3.8.1 The Association of South East Asian Nations
ASEAN was established the 8th of August of 1967 in Bangkok with the signing of the
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ASEAN Declaration by its founder members, Indonesia, Malaysia, Philippines,
Singapore and Thailand. Later, Brunei, Viet Nam, Laos, Myanmar, and Cambodia
joined to the association to conform the present group of ten members (ASEAN,
2012a). Their interactions with other Asian countries also have their own
denomination, as for instance ASEAN plus one (with China), or ASEAN plus three
(with China, Japan, and South Korea).
One of the characteristics of this institution is the ASEAN way, in which
decision-making process is done in an informal manner through consultation,
consensus, and without binding resolutions (although there are exceptions like the
Common Effective Preferential Tariff for the ASEAN Free Trade Area or AFTA), to
respect the sovereignty of its states members (Severino, 2001). It suppose an
institutional model different from those of western states with liberal democracies and
high economic integration, in which institutions develop rules with high levels of
obligation and precision, and delegate rule interpretation and enforcement to third
parties. Therefore, most decisions in ASEAN are not legally binding, making difficult
to implement its agreements.
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3.8.2 Towards a Future Code of Conduct
In Bali, 24th of February 1976, ASEAN members signed the Treaty of amity and
cooperation in Southeast Asia (TAC), a document redacted for the promotion of
regional peace, stability, friendship, and mutual cooperation between the states
members (ASEAN, 2003). Later, this formal treaty between the members was also
signed by non ASEAN countries like United States and China, and therefore
represents a pillar that supports the good relations, cooperation, and peaceful
management of disputes between the signatories. However, no sanctions were
included to enforce these norms, and thus, make less effective its implementation
(Kahler, 2000).
In November 2002, during the 8th ASEAN Summit in Cambodia, ASEAN members
together with China, agreed to sign the Declaration on the Conduct of Parties in the
South China Sea (DOC), a non-legal binding document that provides the basis for the
peaceful management of, mainly, the differences over the territorial claims in the
South China Sea made by China, and the ASEAN members of Indonesia, Malaysia,
Brunei, Vietnam, and the Philippines. It supposes a first step for the future creation of
a legal Code of Conduct (COC) that will be used as a tool for the resolution of the
disputes in the region (ASEAN, 2012b). All the parties agreed that this declaration has
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made an important contribution for the keeping of peace, increasing security, and
promoting cooperation in the region. Nevertheless, the declaration does not meet all
the demands of the members. For instance, the point five about self-restrain implies to
maintain the status quo in the disputed territories, as well as to avoid actions that
worse the situation, but it not include the ban on erecting new structures that the
Philippines sought. Moreover, as political declaration does not provide clear
indications to implement it when it is needed (Thao, 2003).
The first official mention of the creation of a code of conduct arose in the ASEAN
declaration on SCS of 1992 (NUS. CIS, 2009), in which the parties agreed to apply
the principles of the Treaty of Amity and Cooperation in Southeast Asia as the basis
for a future code of conduct. However, to develop a code of conduct will imply more
commitment by the members involved, and therefore to seek ways for the
implementation of the previous declaration of conduct, something complex as the
nature of most ASEAN’s agreement is not legally binding.
3.8.3 China-ASEAN Relationship
China taking part in the DOC, which contains the five Principles of Peaceful
Coexistence, can be interpreted as it intentions of becoming a responsible actor in the
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South China Sea region, by improving good relations with the different ASEAN
members, cooperating with them, avoiding escalation, and seeking peaceful
resolutions of the disputes through dialogue, respect, and mutual understanding. If
ASEAN and China develop a code of conduct for SCS, it will be useful to reduce
tensions, manage the disputes, try to solve them, and could be the first step to look for
ways of cooperation and mutual gain in the SCS. Coordinated by ASEAN,
cooperation in environmental protection, navigation safety, and especially maritime
energy resources extraction will be possible (Buszynski, 2010). However, even when
eventually a legally binding code of conduct for SCS is established, it does not imply
that China will follow it. One example that shows this possibility is when in 1992
China signed the 1982 United Nations Convention on the Law of the Seas (UNCLOS),
one of the laws recognized by the DOC. Even when China signed it, it continued
building its presence in Mischief Reef (inside the Philippines EEZ) after it occupation.
Moreover, in February of the same year China’s Law of the Territorial Sea and
Contiguous Zones where applied to claim the entire South China Sea, and therefore
relegating the UNCLOS under the level of Chinese domestic law (Johns & Smith,
2007).
In sum, although China has territorial disputes with some ASEAN members, it still
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engages in discussions to try to develop a COC for the SCS region, to reduce tensions,
to cooperate in different issues and, eventually, to try to find a peaceful resolution of
the sovereignty issue. If a binding COC will be effective to reach these outcomes is
not totally clear, but will be useful to shelve the disputes and initiate cooperation
between the disputants in the region. Therefore, ASEAN relations with China, and a
COC for SCS, will be analyzed in this thesis in order to determine the prospects for
SLOCs cooperation in the future.