Studies On Major Legal Issues Of The "Code Of Conduct In The South China Sea"

The South China Sea disputes have always been major issues which influence the relationships between China and ASEAN member states.Before the South China Sea disputes are finally resolved,the Code of Conduct in the South China Sea is expected to play the significant role of self-restraint,crisis management,incident prevention,trust and confidence establishment,practical cooperation,and to avoid interference from countries outside the region,as well as to settle the disputes,and to promote peace and stability in the South China Sea region.Although manifest progress has been made during the process of negotiation,however,significant problems are still exist in the substantive negotiation,especially the major legal issues are still in dispute,which will influence and present negotiation and future implementation of the Code of Conduct in the South China Sea.This dissertation is expect to analyze the major legal issues exist in the substantive negotiation,find out the consensus and divergences that already exist,launch analysis and discussions from the perspectives of international law,with methodologies of case analysis,legal analysis,comparative analysis,literature analysis and historical analysis,and lastly devote to provide proper solutions towards the existing disputes.The major legal issues lie in the following eight parts.The first issue discusses the nature and essence of the Code of Conduct in the South China Sea,which is regarded as a provisional measure concerning the delimitation of the exclusive economic zone and the continental shelf stipulated in Article 74 and 83 of the United Nations Convention on the Law of the Sea.Before the final settlement of territorial sovereignty and maritime delimitation is determined,the provisional measure is expect to reach its aims and functions of maintaining peace and stability of the South China Sea,without causing permanent damage or physical change to natural environment,nor could it affect the final delimitation arrangement.The second issue discusses about the theoretical and practical basis of the Code of Conduct in the South China Sea.The dissertation divides theoretical basis into direct and indirect sources of international law.The 1992 ASEAN Declaration on the South China Sea,The 2002 Declaration on the Conduct of Parties in the South China Sea,The 2011 Guidelines for the Implementation of the Code of Conduct in the South China Sea,as well as Terms of Reference of the ASEAN-China Joint Working Group on the Implementation of the Declaration on the Conduct of Parties in the South China Sea are all regarded as direct resources,as the articles in which could be applied and directly incorporated into the Code of Conduct in the South China Sea as beneficial reference.The indirect resources include but not limit to The Charter of the United Nations,The United Nations Convention on the Law of the Sea,Five Principles of Peaceful Coexistence,the basic principles of international law,as well as other international conventions and rules that have already been approved by China,ASEAN and its member states,which could altogether act as legal basis and effective reference in the negotiation of the Code of Conduct.Even if several countries are not signatory parties of these international rules,the rules will also have binding forces upon them due to jus cogens,basic and general principles of international law,customary international law,and the consent of state previously etc.In the practical aspects,Declaration on the Conduct of Parties in the South China Sea,acting as the practical basis,is able to provide abundance of experience and lessons for the ongoing negotiation,with incorporation of the reality and the latest development of the South China Sea.The third issue lies in the application of multiple rules and the subsequent legislative mode of the Code of Conduct.According to the judicial decisions made by ITLOS and PCA in the Southern Bluefin Tuna Fish Case and the Mox Plant Case,it is agreed that the international conventions in specific areas would not change or replace the interpretation and application of the UNCLOS in cases,and on the other hand,the specific international conventions could not be included in the UNCLOS.Due to the similarities of the respective international conventions,the various conventions could be applied simultaneously,and would all act as reference of the Code of Conduct in the South China Sea.Even if the differences do exist in certain aspects,the rules of the application of international law could solve the problem by applying the rules of lex posterior derogate priori,and lex specialis derogate legi generali.Concerning on the legislative mode,the Code of Conduct would act as a general rule of the legislation of the South China Sea,could guide to the application of specific conventions and rules of international law.This legislative mode is superior to the other modes,such as the open enumeration of behaviors of states,as well as the application of annexes,since it could save the cost of legislation,and also avoid potential conflicts of various international rules.The forth issue is the spatial scope of its application.The scope being discussed has been converted from geographic into spatial.At present,the disputes lie in the choice between the Spartly Islands and the whole South China Sea region.It is concluded that the applicable scope of the South China Sea is more in line with the strategy and national interest of China.The fifth issue is the expectation of the Code of Conduct in the South China Sea,namely self-restraint,crisis management,trust and confidence building,practical cooperation including marine environment protection,oil exploration and exploitation,preservation and protection of fishery resources,marine scientific research,freedom and safety of navigation and flight,research and rescue at sea,joint efforts to fight against transnational crimes,disasters prevention and mitigation,as well as experiences and reference drawn from other enclosed and semi-enclosed areas.The articles of self-restraint require the parties obey the obligations of self-restraint equally and in good faith,follow the requirements of suitability,necessity and the narrow interpretation of proportionality,clarify the understanding of peaceful purposes,and apply the combination of holding clauses and supporting clauses as a legislative skill.Concerning the crisis management terms,the parties enact the regulations on basis of CUES and COLGES,and make the most use of the hotlines among senior officials in dealing with maritime emergencies.Concerning the trust and confidence building,the consensus lies in the facts that launching activities such as joint military exercise,joint patrols,warship visits and other forms of military communications are beneficial to improve trust,confidence and mutual understanding.However,disputes still exit in the notification system of military exercise,and whether the states outside the region could participate in the military exercise with or without any form of notification or approval,which is the major problem of the subsequent negotiation.The practical cooperation is the most effective measure to maintain peace and stability in the South China Sea,solve divergences and contradictions,and enhance mutual trust and confidence.It is also the area that China and ASEAN states have reached more consensuses and acquired early harvest.Based on the rules and principles of the UNCLOS,regional rules,and international cases and practices,the parties should integrate their proposals in the single negotiating text and make it more adaptable to the respective domestic laws and regulations.Furthermore,the cooperation mode of other enclosed and semi-enclosed sea areas and the South China Sea could provide reference to each other so as to gain more harvest.The sixth issue is the implementation and supervision mechanism.There are mainly two proposals under the selection.The first proposal is jointly initiated by China and most ASEAN states that the China-ASEAN senior official’s meeting,the joint working group,and the ministerial meeting could act as the implementation and supervision mechanisms.The second proposal is initiated by Vietnam,which is to establish a Committee to exercise the power of implementation and supervision.Despite the alternatives,all parties should ensure that the implementation and supervision mechanisms should be effective,and avoid the regulatory conflicts and waste of resources by repeat constructions of the institutions.Moreover,the implementation and supervision mechanisms should cover the whole regulation of the Code of Conduct,as well as the specific cooperation projects.The seventh issue is the dispute settlement mechanism.The dispute settlement mechanism will deal with divergences in the interpretation and application of the Conduct.Based on regional rules,such as the Treaty of Amity and Cooperation in Southeast Asia,the ASEAN Declaration in the South China Sea,the ASEAN Charter,as well as international conventions such as the UNCLOS,the UN Charter and the Manila Declaration on peaceful settlement of international disputes,with considerations of the aims and expectations of all parties,and avoid resort to international judicial organizations without the clear consent of states.The final legal issue being analyzed is the legal binding forces of the Code of Conduct in the South China Sea from international law perspectives.After analyzing the proposals of China and ASEAN states,it is confirmed that the parties have already reached consensus that the Code of Conduct should be substantially effective,and is able to restrict the behaviors of all parties.However,the difference lies in the fact that whether the binding forces belong to the legally forces,and whether the disputes on the interpretation and application of the Code of Conduct could be resolved through international judicial channels.The most likely approach to solve the legal binding disputes is not to explicitly stipulate the legal binding issues in the provisions,but to endow the provisions with legal binding forces through other appropriate channels.The solutions should be divided into two parts and analyzed respectively.The provisions in the Code of Conduct which clearly reflects the existing rules of international law by quoting from the existing international law should clearly be legally binding,which provisions with previous consent of China and ASEAN states could be legally binding,and the provisions that fail to reach the threshold of international law in provisional and substantial aspects should not have legally binding forces.This dissertation not only conducts research in perspective of international law,but also analyzes the issues in perspectives of international relations and international politics as complementary means.The first issue is the Code of Conduct reflects both the competition and coordination among the states.The divergences of positions among ASEAN states,ASEAN,China and countries outside the region are largely contributed to the contests between the “power” and the “right”.In order to reach consensus,the parties should endeavor to reach balance.From the Chinese perspectives,China should hold a more open and positive attitude towards the negotiation,eliminate the misunderstandings and doubts of ASEAN states through diplomatic approaches and practical actions,and enhance understanding and mutual trust and benefits.Although ASEAN is not a direct participant in the negotiation of the Code of Conduct in the South China Sea,however,it could also exert important coordination functions by harmonizing divergent positions of its member states,conducting consultations with China to reach consensus and reduce conflicts,as well as dealing with interference from major powers outside the region,thus exert multiple impacts on China and its member states.The coordination functions of ASEAN could be regarded as the application of “ASEAN Centrality” and the “ASEAN Way” in dealing with South China Sea disputes.Faced with ASEAN’s involvement in negotiation,China should adhere to the “dual-process” approach,and take advantage and utilize limitations of ASEAN’s operation to strive for legitimate rights and interests.China and ASEAN should also enhance mutual trust and expand consensus,improve bilateral relations through the negotiation,and make the Code of Conduct reach its aims of preventing crisis and maintaining peace and stability in the South China Sea.The intervention of countries outside the region,especially the United States,shows the disputes over the South China Sea have been transformed from the previous disputes over the territorial sovereignty,maritime delimitation into the present contest of global strategic interests and maritime interests.Faced with the intervention,China should hold an objective and rational attitude,and analyze this issue dialectically that the internal affairs should be resolved by China independently,and the affairs among China and ASEAN states should be resolved by themselves through consultations.The concerns and suggestions initiated by foreign states,such as concerns of maintaining the freedom and security of navigation could be satisfied as is rational,while the unreasonable ones should be abandoned.The second issue is China’s strategies in the negotiation.Based on national strategies and interests,China should devote to make the rules beneficial to China,and make plan of the upper,middle and lower policies according to practical situations and make adjustments if necessary,and utilize multiple approaches of legal,political and diplomatic measures,and comprehensively to strive for rights and seek for cooperation.In order to promote the early conclusion of the Code of Conduct,China should seek consensus,resolve divergences,and accumulate mutual trust and reach consensus,and finally achieve the goal of mutual benefits through the negotiation of the Code of Conduct.