An Analysis On The Difficult Issues In The Formulation Of "Code Of Conduct For The South China Sea" Between China And Asean Countries

Since 2013,China and ASEAN have initiated the process of implementing the "Code of Conduct for the South China Sea" under the framework of the "Declaration on the Conduct of Parties in the South China Sea"(hereinafter referred to as the "Declaration").In the past four years,the parties have carried out constructive consultations on the "Code of Conduct for the South China Sea"(hereinafter referred to as the "Code")and made progress in stages.In 2017,the "South China Sea Code of Conduct" framework document was adopted.Although the framework does not involve substantive texts,it is an important step taken by China and ASEAN in controlling the dispute over the South China Sea over the past decades.However,there are still many difficulties in the following negotiation.The most controversial points of concern mainly revolve around the nature and scope of application of the "Code of Conduct for the South China Sea" and the "Residential action for uninhabited islands and reefs"," use forces or the threat of force ”.On these issues,there are conflicts between the positions and interests of Southeast Asian countries and China,and consultations will enter a more difficult stage.The first chapter of the article teases out the historical process of the "guidelines" consultation,introduces the current status of the "criteria",and gives a brief overview of several difficult issues that will be discussed later.Chapter II raises the issue of thelegal nature of the "Code." China and Southeast Asian countries have the opposite position on whether or not the "Code" should be binding.The third chapter briefly analyzes the rights claims of the parties concerned in the South China Sea dispute,and points out that the definition of the disputed area is complicated and sensitive in the situation where the rights of the parties are staggered.Therefore,based on the reality of the controversial core region in the Nansha Islands,applying the “Guidelines” to the Nansha Islands is easier for the countries to accept.The fourth chapter discuss the legality of the use of force and the normal military construction of the country is not the same as the use of force.Chapter five elaborates on the differences in the “self-restraint” clauses among the parties in the “Code” and advocates the use of “negative lists” to provide more specific stipulations on the parties’ restraint obligations.Chapter six introduces the legal framework of freedom of navigation and the ASEAN countries’ practice of freedom of navigation.At the same time,it discusses what the “guideline” should have for freedom of navigation from the perspective of military navigation in exclusive economic zones and prior approval of warships entering the territorial sea.At the end of the article,we briefly analyzed China’s strategy in the next consultation with the "Guidelines." China should adopt a flexible and pragmatic foreign policy,increase political mutual trust with Southeast Asian countries,strengthen maritime security cooperation,actively grasp the dominance in the consultation process,and make the "standard" become the new South China Sea maritime security order.