DOES THE SINGLE DRAFT OF COC IN THE SOUTH CHINA SEA MATTERS?

This paper attempts to elaborate on the impact of the Single Draft of CoC in resolving the South China Sea (SCS) dispute. This paper uses the concept of International Dispute Settlement Procedures (IDSPs), where the parties try to resolve problems based on international law. This paper argues that countries in the region have been trying to have CoC mechanisms since the 1990s. Although in 2018, the ASEAN countries and China agreed on a Single Draft of CoC in the SCS, however the settlement of the SCS dispute is far from over. The CoC Single Draft is only a collection of ASEAN and China proposals. The Single Draft weaknesses in terms of legal status are they do not clearly state the obligations of each country to add or withdraw their respective proposals.


Introduction
The problem of overlapping claims in the South China Sea (SCS) is a persistent and critical issue in Southeast Asia. The dispute directly involves five claimants, four are from within ASEAN namely Vietnam, the Philippines, Malaysia, and Brunei and one is The People's Republic of China. Indirectly, however, the dispute involves the rest of ASEAN member states and their respective interests in it (Darmawan and Mahendra, 2018: 79-100;Simon, 2012: 997). The dispute has become even more complicated due to linkages to other issues such as China's rise, the threat of regional militarization, and international maritime law debate. To make matter worse, major powers such as the United States, China, and Russia dabbled in the dispute as a mean to exert their influences regarding the freedom of navigation in and over-flight above the area (Pattiradjawane, 2016: 9). Put simply, the dispute is a ticking time bomb that can go off at any minute.
ASEAN states had repeatedly attempted to resolve the SCS dispute through various means. Although the dispute pitches member states against each other, ASEAN has been active in promoting a peaceful resolution (Simon, 2012: 997). In the last three decades, ASEAN and China have been taking part in various discussions in an attempt to establish a Code of Conduct (CoC) regarding the dispute (CSIS Expert Working Group, 2018: 2).
Although ASEAN's first statement regarding this issue was made in 1992, the CoC itself was only officially recommended by ASEAN in 1996. In 2002, ASEAN and China finally agreed on the Declaration on the Conduct of Parties in the South China Sea after two years of negotiation. This agreement, however, was not a proper resolution. Three years after the declaration was agreed, the guide of implementation was finalized. The guide, however, would not be signed for another six years with the adoption occurring in 2012.
During those years, the tension in the disputed region was a cause for concern, it still is. earned the coverage of both ASEAN-based (Dancel, 2017) and China-based (Xinhua, 2017) news outlets. A year later, on 2nd of August 2018, Singaporean Foreign Minister Vivian Balakrishnan declared that both parties have agreed on a single draft for the CoC (CSIS, 2018:2). By tracing the milestones in SCS dispute resolution effort by ASEAN, this article aims to observe the negotiation process of CoC and to analyse the feasibility of the single draft as a long-term solution. During this time, the problem that often arises in the South China Sea conflict is the absence of a code of conduct. Therefore, since the 2000s, conflicting parties have tried to develop a code of conduct in the southern Chinese Sea. This article argues that the deadlocks in the CoC negotiation process indicate that the resolution effort is still some way off from creating a binding and clear-cut code of conduct regarding the SCS conflict. This argument is further reinforced by the fact that the single draft contains only suggestions from ASEAN member states but not an actual resolution to the conflict itself.

Concept and Method
In this paper, the author uses the concept of the International Dispute Settlement Procedures (IDSPs). IDSPs are a set of procedures for making decisions on alleged violations of international legal norms (Zangl et al., 2011: 370). In a conflict, the parties involved and parties outside can be active in seeking a solution. Disputing parties can resolve problems among themselves through bilateral and multilateral negotiation schemes. In several cases, the parties cannot achieve a solution due to the complexity of the issues. Therefore, there are third parties who mediate based on international law. This third party is the party-appointed and agreed upon by the disputing parties to conduct institutionalized negotiations in resolving the disputed issue. Usually, these third parties are parties who are neutral or not directly involved in disputes.
In addition to using third parties, countries can also use international instruments for resolving conflicts. For this reason, international law provides instruments for resolving disputes through this mechanism. For example, we can use the WTO mechanism to resolve trade disputes. Then, the state can also file a general dispute through the International Court of Justice (ICJ) based on which is international treaty law.
Although the mediation mechanism of some issues in relations between countries is precise, in practice, there are differences in implementation (Zangl et al., 2011)

Research Method
This article uses qualitative historical analysis methods in International Relations. In general, this method attempts to interpret historical facts with a perspective of International Relations (Thies, 2002). In this method, researchers firstly parse the research source that is the primary source of documents and reports on the South China Sea disputes and secondary materials such as news in the mass media. Secondly, researchers read the whole document to determine the sequence of events in the conflict resolution efforts of the South China Sea. Thirdly, researchers' analyses using the theory and concept in international relations-this paper using International Dispute Settlement Procedure (IDSP). Based on the concept of dispute settlement, this paper analyzes the historical fact in the process of negotiation among countries to deal with the code of conduct in the south china sea.

The Deadlock in the Code of Conduct Negotiation
ASEAN's failure of establishing a single stance on crucial points of the SCS conflict during the 45th ASEAN Ministerial Meeting in Cambodia invoked several interpretations by experts. Some called the failure indicated ASEAN's lack of effectiveness as a regional organization; others, however, see the incident in a better light and called the failure as nothing more than a minor disagreement between members. To International Relations experts, especially those in conflict resolution, even ASEAN's mere effort to establish a unified stance on the conflict signified a new phase in the settlement process. The CoC is expected to form the foundation for regional stability in the long-term (Thuy, 2011:3). A t the very least, the CoC could provide a degree of certainty regarding how the disputing parties should behave in the dispute.
Although the negotiation for CoC did not really take place until much later, the process toward such a breakthrough started as early as March 2000 when ASEAN and China came to a mutual understanding that an agreement of some form was needed on the SCS dispute. Both parties identified four main areas of disagreement: the geographic scope, restrictions on construction on occupied and unoccupied features, military activities in waters adjacent to the Spratly islands, and policies concerning detainment of fisherman found in disputed waters (Thayer, 2012:1). Although this mutual understanding could be seen as a step forward, it was later clear that agreement on those four issues could not be satisfyingly attained even though both parties aware that it will come a long way in imposing long-term peace and stability in the region. in Phnom-Penh. In this declaration, both parties agreed to promote stability, peace, and development in the contested area. Thuy (2011) calls this agreement a bi-multilateralism, a portmanteau of bilateralism and multilateralism since China conducted a dialogue with ASEAN as a regional organization. The declaration's impact is evident from the fact that ever since its signing, no incident of note has happened in the contested area.  (Thuy, 2011: 16).
In the 44th ASEAN Ministerial Meeting--which also served as ASEAN Regional On the seventh day of the meeting, it was decided that "[they] agreed to submit the draft ASEAN proposed key elements of the regional Code of Conduct in the South China Sea to the ASEAN SOM for consideration." These key elements were discussed in the
The principles, as revealed by Nor Hamhong as ASEAN Chairman in July 20: (1) the full implementation of the Declaration on the Conduct of Parties in the East Sea would not be reported as violations as it is committed before the draft became official. Objective (Article II) and basic provisions (Article III): 1. Promote confidence and prevent incidents based on the principles of the Declaration of Conduct.

2.
Commitment to respect freedom of navigation in and over-flight above the South China Sea.

3.
Settle territorial and jurisdiction dispute in the South China Sea through peaceful means on the basis of international law and UNCLOS.

4.
Commitment to exercise self-restraint in activities that would complicate or escalate disputes and affect peace and stability.

5.
Respect for the Exclusive Economic Zone (EEZ) and continental shelf of the coastal states as per UNCLOS 1982.

6.
Respect for the CoC and the taking of actions consistent with it.

7.
The encouragement to other countries to respect all the objectives and the principles in the CoC.

Area of Application (Article IV)
Without prejudice to existing claims, CoC will be implemented on entire unresolved maritime boundary areas of the parties concerned in the South China Sea.

Territorial Claims in the South China Sea (Article V)
➢ Nothing in the CoC shall be used to: a. Refute any party's claim to strengthen one's own claim on the disputed area.
b. Compromise the position or claim of any party to territory (or islands) in the South China Sea using or based on a recognition/refutation by a third party.

➢
No action or activity is applicable if provisions from the CoC are brought upon by force.
➢ All parties shall commit to the resolution of both territorial and jurisdictional disputes by peaceful means without resorting to force or a threat of force, through amicable consultations between sovereign states directly concerned in accordance with universally recognized principles of international law, including, but not solely, the 1982 UNCLOS.

Rules and Procedures to Resolve Incidents (Article VI, Section 2)
➢ concerned parties file a chronological report ➢ post-incident talks must be held as soon as an incident occurs ➢ a "hotline" communication line between foreign ministers shall be established  (Valencia, 2013 :73-74).
In-depth, Valencia (2013: 78) reviewed the draft and concluded that it still has many flaws. First, he regards the term "parties" to be ambiguous, as it can refer to ASEAN member states or ASEAN as an organization. Second, he considers the clause "A commitment to use the area for 'peaceful purposes' only" "somewhat controversial" but without mentioning any specific. Third, the clause "A commitment to specific confidence-building measures like dialogue, prior notification of military activities in waters claimed by others, voluntary exchange of information etc.; A commitment to endeavour to determine and agree which features and areas are in dispute and which are undisputed."; according to Valencia, the clause-which was suggested by the Philippines-is controversial as it implies that disputing parties can conduct military activities in areas claimed by others as long as they give a heads up. Fourth, the clause "promoting 'provisional arrangements of a practical nature' as provided in the DoC and UNCLOS"; according to Valencia, the clause could include "sharing or joint development of resources in areas of overlapping claims." Fifth, the clause "the parties will not take  (Natalegawa, 2013).
Indonesia meant to "encourage the establishment of diplomatic communication so that conflicting parties will prioritize diplomatic channel for dispute settlement" (Natalegawa, 2013). Indonesia wanted to erase the image that peace and stability in Asia-Pacific are under threat from an in-fighting between regional powers. Indonesia also wanted to manage the potential conflict so that it can be turned into potential cooperation.
According to Natalegawa, such a paradigm is a novelty in the SCS dispute.