In recent years, the disputed waters of the South China Sea have given birth to a fresh conflict that has attracted the attention of all stakeholders, both regional and extra-regional. And although states laying claim to the disputed territory seem to be always tiptoeing very close to a real conflict, all parties have made some efforts to establish a certain mechanism of order to prevent a potential crisis.

One of the first significant initiatives taken in this direction was in November 2002 when the “Declaration on the Conduct of Parties in the South China Sea,” also known as the DOC, was signed by all the members of ASEAN and the People’s Republic of China. Article Ten of the DOC states, “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.”

However, despite the explicit nature of the article, no substantial progress has been made. On July 20, 2011, ASEAN member states and the PRC signed another joint statement known as the “Guidelines for the Implementation of the DOC.” This was considered to be another milestone for “embodying their collective commitment to promoting peace, stability and mutual trust and to ensuring the peaceful resolution of disputes in the South China Sea.” However, the Code of Conduct was never even mentioned by the later established guidelines. All in all, it is clear that the pessimistic situation of the South China Sea doesn’t allow for formulating a South China Sea Code of Conduct.

A flawed Code of Conduct

If the current status quo is looked at with regards to negotiating the South China Sea Code of Conduct, there are several stipulations that can be easily challenged, as they may eventually undermine the legitimacy or the logic behind a COC as an effective mechanism to affect the respective behaviors of every stakeholder involved in the disputed seas.

One of the biggest flash points of the COC negotiation process is that the Republic of China, now in Taiwan, was never invited for negotiations. This was largely due to the fact that Beijing opposes negating the ROC’s presence in the international community. All member states of ASEAN follow the one China policy which was a precursor when they initially established diplomatic relations with the PRC, so it doesn’t come as a surprise that the ROC has so far been excluded from the collective effort.

Disregarding the realities of South China Sea

However, the ROC is not the only claimant of the territories and waters of the South China Sea. Taipei is a substantial occupant of Tai-Ping Island, a major island in the South China Sea. Taiwan on the other hand, conducts several maritime activities in the South China Sea. Without the involvement and consent of Taipei, it is unlikely that the South China Sea Code of Conduct will develop into a meaningful mechanism aimed at bringing stability and peace in the region.

Unlike Myanmar, Thailand, Singapore, Cambodia and Laos, the Republic of China has more than one reason to be involved in the arduous negotiation process, as all these aforementioned states are not adjacent to the sea at all. Taipei has more reasons than Jakarta to be on the negotiating table with other claimants since Indonesia is not even a claimant and is only concerned about its Economic Exclusive Zone. And although Beijing has stated many times that all privileges and interests of Taipei in the South China Sea will be guaranteed by the PRC, Taipei has never accepted the proposal. Moreover, any such assurance is unlikely to be recognized by the member states of ASEAN.

Another major talking point is that the negotiation process has failed to protect every state’s individual interests in the South China Sea. According to Article Nine of the DOC, “The Parties encourage other countries to respect the principles contained in this Declaration.” In short, it is hard to constrain states that have never been involved in the negotiation process by a mechanism they don’t accept.

Almost all claimants of the South China Sea use it as a major sea lane of communication to protect their maritime interests and support their national economic welfare. In order for the South China Sea COC to really become a meaningful document to assure peace and stability, it should have enough flexibility about it in order to allow more states to put their efforts in the codification process.

A call for change in the COC

Indeed, with so many flaws in its mechanism, the COC needs to have a multi-chaptered look about it for functionality. It needs to be categorized into several chapters and tailored according to every participant’s circumstances. Moreover, many terms used in the Declaration on the Conduct of the Parties in the South China Sea are irrelevant to some ASEAN member states, which means that the COC is still very general in its outlook.

A more in-depth COC will result in claimants choosing the chapters they would like to sign. Issues such as environmental protection, fishery regulation, search and rescue, scientific research, climate report, oceanographic survey, anti-piracy and smuggling, nature preservation, sewage and waste process, navigation aid, and regulation can be easily established without controversy. Codes that intentionally restrict behaviors, giving way to future territory claim positions, the term of “claimants” should be replaced by “occupants,” which reduces the de jure proclamation by more objectively expressing the de facto statement.

This could be the only way to accommodate the ROC in Taipei and become part of the negotiating process without irking Beijing. Taipei also doesn’t want to irk Beijing through the COC. Replacing “claimants” by “occupants” will also shed light on the realities of the South China Sea rather than making it seem like a statement expressing political aspirations.

However, all this can never be achieved as long as all states that are actually involved in maritime activities there are not included in the negotiating process.