A Closer Look at the ASEAN-China Single Draft South China Sea Code of Conduct


On August 3, the foreign ministers of the 10 member states of the Association of Southeast Asian Nations (ASEAN) and their Chinese counterpart announced agreement on a Single Draft South China Sea Code of Conduct Negotiating Text (SDNT) that will serve as the basis for the adoption of a Code of Conduct in the South China Sea.

The SDNT is 19 A4-sized pages long. It is structured according to the previously adopted Framework Agreement on the Code of Conduct into three main sections – preambular provisions, general provisions, and final clauses. The SDNT is color-coded black for text taken from the COC Framework, blue for the consolidated text, and green to identify the input by the 11 parties.

The SDNT repeats the wording in the Framework Code of Conduct that it is “not an instrument to settle territorial disputes or maritime delimitation issues.” Under Section 2 on General Principles, Malaysia inserted the standard legal caveat that:

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The Parties further acknowledge that the COC does not address nor affect the Parties’ position on legal questions relating to the settlement of disputes, maritime boundaries, or the permissible maritime entitlements of the Parties under international law of the sea and enshrined/reflected in the 1982 UNCLOS.

Space precludes a complete summary and analysis of the SDNT. This article addresses five main issues: the document’s geographic scope; dispute settlement; the duty to cooperate; the role of third parties; and the legal status of the final Code of Conduct in the South China Sea.

Geographic Scope

The SDNT does not clearly define the geographic scope of the South China Sea. Under General Provisions, Vietnam suggested that, “the present Code of Conduct shall apply to all disputed features and overlapping maritime areas claimed under the 1982 UNCLOS in the South China Sea.” Indonesia inserted, “the Parties are committed to respect the Exclusive Economic Zone and continental shelf of the coastal states as provided for in the 1982 UNCLOS.”

Malaysia proposed, “depending on the operative elements/contents of the COC, the geographic scope/scope of application may have to be defined,” while Singapore inserted the comment “the Parties may wish to consider the utility of including a section defining the terms contained herein.”

Dispute Settlement

A very large portion of the SDNT is devoted to the prevention, management, and settlement of disputes in the South China Sea among the parties. The SDNT, however, does not contain any specific reference to the binding dispute mechanisms included in UNCLOS Annex VII.

With respect to dispute settlement, Indonesia offered the following:

The Parties agreed, as appropriate, to resort to the High Council of the Treaty of Amity and Cooperation (TAC) at the consent of the Parties concerned, to settle any dispute relating to incidents that many arise in the South China Sea.

The Parties agreed that any unresolved incident may be referred to an appropriate international disputes settlement mechanism, at the consent of the concerned Parties.

Vietnam proposed that parties settle their disputes “through friendly negotiations, enquiry, mediation, conciliation and other means as may be agreed by the disputing Contracting Parties.” Failing that, Vietnam suggested the disputants “utilize the dispute settlement mechanism under relevant provisions of the Treaty of Amity and Cooperation in Southeast Asia.”

Vietnam concluded that nothing in the COC “shall prevent” the peaceful settlement of disputes under Article 33(1) of the Charter of the United Nations. Article 33 includes “other means” such as arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means decided by the parties concerned.

The SDNT contains two options for monitoring implementation. The first option, supported by Brunei, Cambodia, China, Malaysia, and Singapore, places responsibility with the ASEAN-China Senior Officials’ Meeting. The second option, proposed by Vietnam, calls for setting up a Commission led by foreign ministers or their representatives.