Phnom Penh March 22, 2012
After day long deliberations, evaluating various papers submitted by distinguished experts, following comments and observations made by participants of the seminar, following points have emerged as the outcome of this international conference:
There is a shift in the strategic landscape of Asia and new power equations are emerging in the security architecture of Asian region and more particularly in the Asia pacific region. The conflict resolution mechanisms will prove to be effective on the basis that how skillfully these issues can be tackled with the help of a cooperative approach.
The South China Sea has proved to be of great importance to the region and the world. The area is endowed with rich natural resources, traversing on one of the busiest commercial sea routes in the world. Developments, security risks and dangers of conflict escalation taking place recently have drawn keen attention of countries in the region and in the world. As such, safeguarding freedom of navigation and ensuring maritime security have been in the interest of littoral countries and outside powers.
The Conference takes place in the context of 10 years’ anniversary of signing the Declaration of Conduct of Parties in the South China Sea (DOC) which has proved to be a milestone document signed between ASEAN and China enshrining their collective commitment to promoting peace, stability and mutual trust and to ensuring peaceful resolution of disputes in the South China Sea. The Conference recognizes that full and effective implementation of the DOC will contribute to the deepening of ASEAN-China Strategic Partnership for Peace and Prosperity. The Conference notes with satisfaction positive and substantial contributions made by Cambodia to the signing of the DOC in 2002.
Despite the fact that DOC has, so far, been an useful tool in safeguarding peace, stability in the region, it has revealed inherent shortcomings, namely (1) The DOC is not legally binding, leading to absence of political resolves of signatory countries in revolving their territorial disputes; (2) the DOC’s vague language has led to different interpretations among contracting parties; (3) The DOC does not mention geographical coverage; (4) There is no mentioning of an effective mechanism in the DOC to give final rulings in case violations occur; (5) The DOC falls short of aspirations of related parties and countries having strategic interest in Asia Pacific.
Following the DOC, ASEAN and China has moved forward with the conclusion of the Guidelines for the Implementation of the DOC (The Guidelines) in 2011 in Bali, Indonesia. In reality, the Guidelines has not appeared to be a complete solution to the ongoing disputes for it has not created a pretext for establishment of a mechanism to effectively manage imminent dangers to peace, stability and development in the South China Sea.
Cambodia has maintained fruitful and friendly relations with all parties in the disputes. With the ASEAN Chairmanship in 2012, Cambodia has the opportunity to act as an effective and useful mediator, having favorable conditions to strengthening ASEAN unity, promoting mutual trust and consensus among disputed parties in the South China Sea. Cambodia will be in a good position to put forward objective initiatives acceptable to all sides.
In order to provide for a long-lasting and complete resolution to the ongoing and complicated entanglements in the South China Sea, it is necessary to formulate and sign a Code of Conduct which would ideally be legally binding, overcoming shortcomings of the DOC, based on international law, the UNCLOS 1982, the Treaty of Amity and Cooperation in Southeast Asia (TAC) and other relevant legal documents.
The COC should have following major contents
- Contracting parties or signatories to the COC should include all ASEAN members and China. The COC should be in the form of a legal document open to related parties to enter.
- The COC is expected to serve as a template for resolving disputes in the region.
- Signatories would commit themselves to upholding principles of the 1982 UN Convention on the Law of the Sea, the TAC, the Southeast Asian Nuclear-Weapon-Free Zone Treaty (SEANWFZ), the Five Principles of Peaceful Coexistence, and the values and concepts contained in the DOC, the Guidelines and other universally recognized principles of international law.
- Geographical coverage of the COC must be clearly defined, including all waters and islands in the South China Sea.
- It is necessary to clearly distinguish disputed and non-disputed areas in the SCS; clearly provide for a list of authorized and un-authorized activities in disputed areas.
- Freedom of navigation in, under and overflight above the South China Sea must be respected in accordance with international laws that claimant states are signatories.
- In order to strengthen mutual trust among claimants and parties concerned in South China Sea, the COC should encourage initiating confidence-building measures, preventive diplomacy through joint activities such as oceanic studies, fishery cooperation, environment protection, search and rescue activities, disaster relief activities, piracy combating, anti-terrorism, joint surveillance, joint military exercises, strict prohibition of building up new architectures on artificial islands, features and reefs in the South China Sea…
- The member states should consider the possibility of setting up a Maritime Security Authority (such as ASEAN Maritime Forum) which would function as a mechanism to manage maritime security risks and ensure strict observance of the COC. They must work out measures of confidence building and risks reduction to provide final and official interpretations of clauses under the UNCLOS 1982.
- Turning the DOC into a full fledged COC is in the interest of all parties and promoting peace and stability in the whole of Asia pacific region. Although some experts have expressed their personal opinion about resolving the South China Sea dispute in different context and applying other methodologies, the overall perception has emerged that a cooperative approach to the South China Sea dispute is more suitable even if member states disagree on various issues. Therefore, strategic compulsions may force to look for new ways and means to face the maritime challenges that could emerge out of South China Sea.