When China and member states of the Association of Southeast Asian Nations (ASEAN) signed the Declaration on the Conduct of Parties (DOC) in the South China Sea (SCS) 20 years ago on 4 November 2002, they have the expressed intention to “consolidate and develop the friendship and cooperation” among parties in order to promote “a 21st century-oriented partnership of good neighborliness and mutual trust” among them. This partnership is very important in the promotion of a blue economy in the SCS. According to the World Bank, blue economy is the “sustainable use of ocean resources for economic growth, improved livelihoods, and jobs while preserving the health of ocean ecosystem.”
In the DOC, parties agreed to exert greater efforts to promote “a peaceful, friendly and harmonious environment” in the SCS by exercising self-restraint in the conduct of unilateral activities that can complicate or escalate the ongoing disputes. They also agreed to refrain from “action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features” and to handle their existing differences in a constructive manner. Most importantly, they decided “to intensify efforts to seek ways, in the spirit of cooperation and understanding, to build trust and confidence between and among them” through the following measures:
- Holding dialogues and exchange of views as appropriate between their defense and military officials;
- Ensuring just and humane treatment of all persons who are either in danger or in distress;
- Notifying, on a voluntary basis, other Parties concerned of any impending joint/combined military exercise; and
- Exchanging, on a voluntary basis, relevant information
Pending “a comprehensive and durable settlement of the disputes”, all parties committed to pursue pragmatic cooperation in the following functional areas:
- Marine environmental protection;
- Marine scientific research;
- Safety of navigation and communication at sea;
- Search and rescue operation; and
- Combating transnational crime, including but not limited to trafficking in illicit drugs, piracy and armed robbery at sea, and illegal traffic in arms as well as international terrorism
There is no doubt that these aforementioned functional areas are essential for the promotion of China-ASEAN partnership for a blue economy in the SCS. The United Nations (UN) argues that a blue economy “comprises a range of economic sectors and related policies that together determine whether the use of ocean resources is sustainable”. The DOC identifies functional areas where China and ASEAN members can cooperate in order to build a blue economy in the SCS.
In 2005, China and ASEAN established a working group to implement the DOC. This working group also drafted the Code of Conduct (COC) in the SCS to elevate the status of the DOC. But China rejected it in 2010 since Beijing wanted to implement the DOC first, rather than conclude a COC. In 2011, China and ASEAN adopted the Guidelines to Implement the DOC.
However, parties, particularly claimants, criticize each other for constantly violating the DOC through unilateral patrol activities, military facilities development, civilian infrastructure upgrades, land reclamation works, and even a new occupation of land feature in the case of the Scarborough Shoal done by China in 2012, a decade after the signing of the DOC. There is also legal flaw in the DOC because of its non-binding character. Thus, accounting parties for violating the DOC was a tremendous challenge. Moreover, the DOC contains many exemplary motherhood statements that are not being strictly observed on the ground.
The DOC was a landmark agreement in the SCS and China-ASEAN relations as parties committed to uphold the “duty to cooperate” in the SCS, with the expectations of economic and political gains. However, the DOC had inherent limitations in managing SCS conflicts because of unclear geographic scope, vague legal character, and ambiguous implementing mechanisms. Parties even set these limitations upon themselves because of their own national interests. More importantly, China and ASEAN members signed the DOC not to actually resolve territorial conflicts and maritime jurisdictional disputes but to primarily build confidence that is essential to avoiding armed conflicts in the SCS.
In addition, the overall security dynamics of China-Southeast Asia relations have inherent strategic contradictions affecting not only the implementation of the DOC but also the overall management of the SCS disputes. China and ASEAN faced many roadblocks in the implementation of the DOC because parties acted unilaterally; such actions were inconsistent with multilateral initiatives and driven by domestic considerations. China’s increasing assertiveness to defend its sovereign positions in the SCS also posed enormous challenge to the implementation of the DOC.
Nonetheless, the DOC paved the way, set the tone, and framed the negotiations on the COC. In fact， the idea of adopting a COC began as early as 1992 when ASEAN released a declaration requiring all parties to exercise self-restraint needed to create a conducive environment for the eventual resolution of the SCS conflict. Lobbied by the Philippines, the COC was officially endorsed by ASEAN in 1996 because of China’s occupation of the Mischief Reef in 1995. Discussions on the COC took time, with ASEAN agreeing to water it down to become the DOC with China in 2002.
Because of the 2012 Scarborough Shoal standoff, which raised regional security concerns over China’s maritime power ambition, ASEAN members urged Beijing to discuss and negotiate the COC anew, with the Philippines clamoring for a united ASEAN stand. In 2014, China and ASEAN started to discuss the COC, and agreed to adopt the Single Draft Negotiating Text (SDNT) of the COC on 3 August 2018. The adoption of the SDNT was a milestone in China-ASEAN relations on the SCS as they finally agreed to the eventual conclusion of the COC “in accordance with international laws, particularly the United Nations Convention on the Law of the Sea (UNCLOS)”. The SDNT reaffirmed the principle of “duty to cooperate” mandated by UNCLOS and the DOC.
However, the SDNT failed to elaborate “the duty of state parties to UNCLOS to immediately comply with awards issued through arbitral proceedings established under Annex VII”. The SDNT also had unresolved issues pertaining to geographic scope, nature of activities to be covered, dispute settlement, the duty to cooperate; the role of third parties, and the legal status of the COC. Through the SDNT, however, China announced its readiness to adopt a COC in three years. This meant that by the end of this year, 2022, the COC would have been concluded. Because of the COVID-19 pandemic in 2020, China and ASEAN members apparently failed to observe the deadline after two readings.
The current status on COC negotiations is part of the leveling up of the DOC 20 years after. To bilaterally implement the DOC and to support the COC negotiations, the Philippines and China established the Bilateral Consultative Mechanism (BCM) in the SCS.
The BCM is an official mechanism for bilateral consultations between China and the Philippines to discuss various issues in the SCS affecting Philippines-China relations. The BCM aims not only to promote confidence-building measure but also to pursue preventive diplomacy towards the development of a blue economy in the SCS. As mandated by the DOC, the Philippines and China agreed to pursue the BCM in order to peacefully manage, if not finally resolve, their differences on the SCS disputes by strengthening their friendly ties.
The BCM has served as an important channel of communication between Manila and Beijing not only to improve the bilateral ties damaged by the 2012 Scarborough Shoal standoff and the international arbitration case but also to ease the overall security tensions in the SCS. The BCM, however, has some built-in limitations. It only provides consultative mechanisms to rebuild confidence and promote mutual trust between the two countries. The BCM does not provide a platform for formal negotiation, though it can offer some steps towards this end. In fact, the BCM is largely a confidence-building measure (CBM) that the Philippines and China truly need in order to encourage cooperation by promoting greater mutual understanding as required by the DOC.
Thus far, the Philippines and China established through the BCM working groups that seek to promote pragmatic cooperation in the SCS: 1) the Working Group on Political Security, Fisheries Cooperation; and 2) the Working Group on Marine Scientific Research and Marine Environmental Protection. They also formed the Philippines-China Inter-Governmental Joint Steering Committee on Cooperation on Oil and Gas Development. Recently, the Philippines and China explored cooperation in search and rescue operations, disaster response, and maritime law enforcement coordination.
In other words, 20 years after the adoption of the DOC, the Philippines and China have gone a long way to promote cooperation amidst existing territorial conflicts and maritime jurisdictional disputes in the SCS through the BCM. The BCM is an exemplary bilateral effort that supports multilateral initiatives to peacefully manage many issues in the SCS in pursuit of partnership for a blue economy in this important waterway. The administration of President Ferdinand Marcos Jr has many lessons to learn from these experiences, especially in the context of his intention to uphold friendly consultations with China under the third term of President Xi Jinping to resolve peacefully and constructively their national differences on the SCS.
*Speech delivered at the “Symposium on Building Partnership on Blue Economy” on November 27, 2022 in Haikou, Hainan, China. An earlier version of this speech was also delivered at the “International Workshop on the 20th Anniversary of the Declaration on the Conduct Parties in the South China Sea” organized by the Taiwan Center for Security Studies and National Taiwan Normal University on 25 November 2022 in Taipei, Taiwan.
Most part of this lecture is based on Rommel C. Banlaoi, “Cooperation Amidst Conflict in the South China Sea” published in Chinese Studies Journal, Volume 15, 2021, pp. 7-30. Read the original article at https://www.chinesestudiesjournal.org/volumes/volume-15-2021/cooperation-amidst-conflict-in-the-south-china-sea-theoretical-perspective.
**Dr. Rommel C. Banlaoi is a Filipino political scientist, international studies expert and national security advocate. He was nominated as a Deputy National Security Adviser in July 2022 but he has returned to his usual academic work as an independent scholar. He is the President of the Philippine Society for Intelligence and Security Studies (PSISS), Chairman of the Philippine Institute for Peace, Violence and Terrorism Research (PIPVTR) and member of the Board of Directors of the China Southeast Asian Research Center on the South China Sea (CSARC). He is also a member of the International Panel of Experts of the Maritime Awareness Project (MAP) of the National Bureau of Asian Research (NBR) and the Sasakawa Peace Foundation. He was the President of the Philippine Association for Chinese Studies (PACS), member of the Management Board of the World Association for Chinese Studies (WACS), Adjunct Research Professor at the National Institute for South China Sea Studies (NISCSS), and Fellow of the Asia Pacific Center for Security Studies (APCSS).