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Geographic positions of the nations in the ASEAN treaty. http://www. mizzima.com/images/Election/Maps/ASEAN-map.gif Parties adopting changes to time limits established by the Convention by consensus. Mechanisms for updating the Law of the Sea and meeting new challenges include the action of the United Nations General Assembly and of specialized institutions, such as the Food and Agriculture Organization and the International Maritime Organization. 136 Formation of ASEAN The regional grouping ASEAN, which includes all of the major players in the South China Sea dispute excluding China and Taiwan, concluded a code of conduct deal with China in 2002. 137 The Association of Southeast Asian Nations, or ASEAN, was established on August 8, 1967 in Bangkok, Thailand, preceding the signing of the ASEAN Declaration (Bangkok Declaration) by the Founding Fathers of ASEAN, namely Indonesia, Malaysia, Philippines, Singapore, and Thailand. Brunei Darussalam joined afterward on January 7, 1984, followed by Vietnam on July 28, 1995, Lao PDR and Myanmar on July 23, 1997, and Cambodia on April 30, 1999. 138 These nations form the ten member states of ASEAN. The ASEAN Declaration established many points to promote a positive, cooperative, and productive relationship between member nations. It promotes acceleration of economic growth, social progress, and cultural development in the region through joint endeavors in the spirit of equality and partnership in order to strengthen the foundation for a prosperous and peaceful community of Southeast Asian nations. It also supports the establishment of regional peace and stability through abiding respect for justice and the rule of law in the relationship among countries of the region and adherence to the principles of the United Nations Charter. It emphasizes the need to provide assistance to each other in the form of training and research facilities in the educational, professional, technical and administrative spheres; it also focuses on more effective collaboration for the greater utilization of their agriculture and industries, the expansion of their trade, including the study of the problems of international commodity trade, the improvement of their transportation and communications facilities, and the raising of the living standards of their peoples. It promotes Southeast Asian studies and the maintenance of close and beneficial cooperation with existing international and regional organizations with similar aims and purposes. Finally, it encourages the exploration of all avenues for even closer cooperation among themselves. 139 Declaration on the Conduct of Parties in the South China Sea ASEAN leaders and China signed the Declaration on the Conduct of Parties in the South China Sea on November 4, 2002 during the Eighth ASEAN Summit in Phnom Penh, Cambodia. 140 The Governments of the Member States of ASEAN and the Government of the People’s Republic of China proposed this declaration in order to promote peaceful cooperation and friendship between the governments of the region and to foster economic growth and prosperity in the future. Within the ASEAN Declaration, the parties reinforce their commitment to the aims and principles of the Charter of the United Nations, the 1982 UN Convention on the Law of the Sea, the Treaty of Amity and Cooperation in Southeast Asia, the Five Principles of Peaceful Coexistence, and other Harvard WorldMUN 2012 Legal 28
universally recognized principles of international law by which interstate relations would be governed. The declaration contains strong notions of equality between nations and a commitment to building a foundation of mutual trust and respect. It supports freedom of navigation of the South China Sea area as provided for by the principles of international law, citing the 1982 Convention on the Law of the Sea. It also promotes self-restraint in activities that could possibly escalate or exacerbate disputes and endanger the stability of the region; it recommends “all parties concerned…exercise restraint with the view to creating a positive climate for the eventual resolution of all disputes.” The ASEAN-China Joint Statement of December 1997 stressed, “In the interest of promoting peace and stability as well as enhancing mutual confidence in the region, the parties concerned agree to continue to exercise self-restraint and handle relevant differences in a cool and constructive manner.” 141 Vietnam has advocated this self-restraint principle since 1988, proposing negotiations respecting the status quo of the dispute and not occupying currently non-occupied territories. The principle has two parts: maintaining the status quo of occupied positions and avoiding actions that may worsen the current circumstances. This is illustrated by the fifth point of the declaration: “The parties undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features and to handle their differences in a constructive manner.” Yet the ban, advocated by the Philippines, on erecting new structures is not included. 142 Philippines Secretary of Foreign Affairs Blas F. Ople stated that the agreement provided a strong framework for discussion of territorial issues among claimants to the islands and ocean space in the future, calling the agreement “a major leap for peace.” 143 On the other hand, there were uncertainties that this agreement would sufficiently constitute a solution to the South China Sea issue and other maritime conflicts; Chinese Vice Foreign Minister Wang Yi stated that while the agreement would promote peace in the region and help the claimant countries work on economic development together, it would not solve territorial conflicts. 144 The declaration was a significant step towards the establishment of a code of conduct in the South China Sea. Its precedents included the ASEAN Declaration on the South China Sea of 1992, which states that all parties are to apply the principles contained in the Treaty of Amity and Co-operation in Southeast Asia (TAC) as the basis for establishing a code of international conduct for the South China Sea. Paragraph 11 of the Joint Communique of the 29 th ASEAN Ministerial Meeting of 1996 “endorsed the idea of concluding a regional code of conduct in the South China Sea which will lay the foundation for lone [sic] term stability in the area and foster understanding among claimant countries.” 145 The Declaration of Hanoi adopted at the Sixth ASEAN Summit in 1998, called for the ASEAN members countries to promote efforts for establishing a regional code of conduct in the South China Sea. The initiative to have a code of conduct for ASEAN and China relations, proposed by ASEAN in Kuamin, China, in 1999, concluded the negotiation process between Beijing and ASEAN member countries on the future of a code of conduct. The Joint Communique of the 35 th ASEAN Ministerial Meeting, held in Bandar Srei Begawan in 2002, in paragraph 40 reaffirmed “that the adoption of a code of conduct in the South China Sea would further promote peace and stability in the region and agreed to work towards a Declaration on the Conduct of Parties in the South China Sea….in this regard, we agree to work closely with China with a view to adopting the Declaration” (Bateman 209). The 2002 declaration provided the first political text for the conduct of parties in the South China Sea. It is also phrased in a way that governs in a positive, rather than prohibitive, manner, stating “the parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea” (Pan 101). 146 The declaration is composed of ten points, covering the legal basis for the conduct of parties and ways to foster trust, confidence, equality and mutual respect. The scope of the application of the codes of conduct set in place by this declaration is still in question. The declaration fails to address geographic scope, yet its title (“Declaration of the Conduct of Parties in the South China Sea”) allows for broad or strict interpretation of what countries the provisions of the agreement apply for, according to the signatory’s interests. The fifth and sixth points in particular provide an open door for cooperative endeavors among the parties that help build this trust. The South China Sea has escalated into a concern of the international community, not only for the parties in question. Appropriately, the declaration reinforces the right of nonparties to free navigation and flight above the South China Sea region that is consistent with international law and Harvard WorldMUN 2012 Legal 29
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