C O M M E N TA R Y

New Commitment to a Code of Conduct in the South China Sea?

BY C AR LY L E A . T HAY ER Published: Oc tober 9, 2013

The Association of Southeast Asian Nations (ASEAN) and China commenced consultations on a Code of Conduct in the South China Sea (COC) in mid-September after start-stop discussions held between 2000 and 2002. ASEAN entered these consultations with a newfound sense of unity in contrast with the disarray of the previous year. In July 2012 the 45th ASEAN Ministerial Meeting (AMM) failed to issue a joint statement for the first time in its history because of disagreements over the wording of two paragraphs on the South China Sea. China too has shown signs of change following the formal election of Xi Jinping as president by the National Peoples Congress in March. Some observers have discerned a re-evaluation by Beijing of its counterproductive policy toward the South China Sea. The new foreign minister Wang Yi, a veteran diplomat with extensive experience in Southeast Asia, is credited with revitalizing Chinas engagement with ASEAN. China appears to have made an exception, however, in its relations with the Philippines particularly, after Manila filed a legal claim with the United Nations to set up an arbitral tribunal to adjudicate on the application of the UN Convention on the Law of the Sea (UNCLOS) to the West Philippine Sea. Wang made several trips to Southeast Asia and pointedly excluded the Philippines from his itinerary. Chinese paramilitary vessels remain on station at Scarborough Shoal blocking any entry by Filipino fishermen. Further south, Chinese paramilitary vessels continue to menace South Thomas Shoal. China has singled out the Philippines

because it internationalized the dispute and drew in the United States, contrary to Chinas wishes. China seeks to isolate the Philippines and dissuade other claimants from taking similar action. This NBR commentary reviews developments in relations between ASEAN and China over the South China Sea from the 45th AMM in July 2012 until September 2013 when ASEAN and China began their first formal consultations on the COC.

ASEAN Disarray
In 2012, ASEANs internal disunity over the South China Sea erupted into public view at the 45th AMM in July and again at the ASEAN Summit in November. On both occasions, Cambodia, as ASEAN chair for the year, played the role of spoiler. In July, Cambodian foreign minister Hor Namhong blocked any reference to concerns by the Philippines and Vietnam in the AMM draft joint statement. As a result, no statement was issued. At the end of the year, Cambodia again caused a fury when it attempted to insert a reference in the ASEAN Summit joint communiqu that the leaders agreed not to internationalize the South China Sea dispute. Due to objections by the Philippines, this reference was dropped.

CARLYLE A. THAYER is Emeritus Professor at the University of New South Wales at the Australian Defence Force Academy in Canberra.

NBR Commentary October 9, 2013

These displays of disunity overshadowed the fact that the ASEAN foreign ministers unanimously reached agreement on Proposed Elements of a Regional Code of Conduct in the South China Sea between ASEAN Member States and the Peoples Republic of China on July 9 at the AMM plenary session.1 The contretemps over the wording of the joint statement came in the evening at the ASEAN retreat. UN General Assembly in September 2012. ASEAN diplomatic sources state in private that Indonesias proposed zero draft COC has been held in abeyance in the hope that China will soften its stance in future discussions on the COC.

Forward Movement on COC Discussions

Internal dynamics within ASEAN changed markedly in 2013. In January, Brunei assumed the ASEAN chair and veteran Vietnamese diplomat Le Luong Minh became the new ASEAN secretary general. Both placed priority on kick-starting discussions with China on a COC. Displays of disunity Brunei, perhaps overshadowed the fact that overoptimistically, set October as the ASEAN foreign ministers a target date for unanimously reached completion of the COC in advance of agreement on Proposed the ASEAN-China Elements of a Regional CoC in Summit.

Indonesias Proactive Diplomacy

After the 45th AMM, Indonesias foreign minister Marty Natalegawa initiated consultations with other members of ASEAN in an effort to restore unity behind a common position. Natalegawa conducted an intense round of shuttle diplomacy, flying to five capitals (Manila, Hanoi, Bangkok, Phnom Penh, and Singapore) over a two-day period (July 1819). He and his counterpart from the Philippines, Albert del Rosario, agreed to a six-point proposal that Natalegawa then put to the other foreign ministers. After he obtained their unanimous agreement, Cambodia, as ASEAN Chair, officially released ASEANs Six-Point Principles on the South China Sea on July 20. Hor Namhongs statement reaffirmed the commitment of all ASEAN Foreign Ministers to the following principles: The full implementation of the Declaration on the Conduct of Parties in the South China Sea (DOC) Guidelines for the Implementation of the DOC The early conclusion of a COC Full respect of the universally recognized principles of international law, including the 1982 UNCLOS Continued exercise of self-restraint and non-use of force by all parties Peaceful resolution of disputes in accordance with the universally recognized principles of international law, including the 1982 UNCLOS

the South China Sea between Thailand, which assumed the role of ASEAN Member States and ASEAN country China. coordinator for relat ions w it h China the previous year, proceeded to raise the South China Sea issue informally with Beijing. Importantly, Cambodia ceased its obstruction of ASEAN efforts to forge a unified position. These developments altered the dynamics of the previous year, and China has responded accordingly.

Unilateralism by the Philippines

In the midst of ASEAN leadership turnover, on January 22, 2013, the Philippines lodged a formal legal claim with the UN to establish an arbitral tribunal under UNCLOS. The Philippines undertook this action without prior consultations with other ASEAN members. This caused some momentary concern that the Philippines actions would undermine efforts to engage China in discussions on the COC.

At the 2012 ASEAN retreat, Indonesia offered to produce a non-paper on the COC in order to expand the Proposed Elements of a Regional Code of Conduct into a workable draft COC. Natalegawa presented his non-paper, a zero draft COC, to the ASEAN foreign ministers on the sidelines of the

Carlyle A. Thayer, ASEANs Code of Conduct (Unofficial), Thayer Consultancy, Background Briefing, July 11, 2012, http://www.scribd.com/ doc/101698395/Thayer-ASEANs-Code-of-Conduct-Unofficial.

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It should be noted, however, that recourse to UNCLOS arbitral China Engages ASEAN procedures was included as one of two dispute-settlement ASEANs changed dynamics appear to have led Beijing to mechanisms included in the Proposed Elements of a Regional rethink its approach to Southeast Asia. China appears to be Code of Conduct unanimously adopted by ASEAN ministers pursuing a policy of upgrading its relations with ASEAN (with in July 2012. China rejected this claim and refused to take the exception of the Philippines) following the appointment part in the tribunals proceedings. Under UNCLOS, however, of Wang Yi as foreign minister in March. On April 2, at the the arbitral tribunal is permitted to hear the case without 19th ASEAN-China Senior Officials Consultation, Chinese China, and in April a five-member panel was established. The officials announced their willingness to commence discussions present tribunal is composed of judges from Ghana (chair), with ASEAN on a COC later in the year. Germany, France, Netherlands, and Poland. It held its first session on July 11 and later sent draft rules of procedure to ASEAN responded to Chinas overture on April 11 at the Philippines and China for comment. its 46th AMM held in Brunei. The joint The Philippines responded on July 31, and communiqu issued after the AMM stated: ASEANs changed dynamics We stressed the need to maintain the China replied a day later in a note verbale momentum on dialogue and stating that it did not accept the legal action appear to have led Beijing positive consultations following the 19th ASEANinitiated by the Philippines and would not Senior Officials Consultations and to rethink its approach to China participate in the tribunals proceedings. 8th ASEAN-China Joint Working Group the Implementation of the DOC. It should be noted that China opted out of Southeast Asia. on Taking into account the importance of arbitral clauses of UNCLOS when it ratified the 10th anniversary of the ASEANChina Strategic Partnership in 2013, we the convention. In August 2006, China look forward to the formal consultations issued a statement rejecting the compulsory between ASEAN and China at the SOM level on the dispute procedures contained in UNCLOS in matters related COC with an aim to reach an early conclusion of a Code of Conduct in the South China Sea [emphasis to the delimitation of the territorial sea, exclusive economic added].2 zone, and continental shelf. The Philippines argues that After the 23rd ASEAN Summit, held immediately following its case concerns matters that are separate and involve an the AMM, Brunei issued the chairs statement that declared, interpretation of international law under UNCLOS. We tasked our Ministers to continue to work actively with On August 27 the arbitral tribunal issued its first China on the way forward for the early conclusion of a Code procedural order announcing a preliminary timetable and of Conduct in the South China Sea (COC) on the basis of rules of procedure. The Philippines was directed to fully consensus.3 The ASEAN Summit also endorsed a proposal address all issues, including matters relating to the jurisdiction by Thailand to host a special meeting of foreign ministers in of the Arbitral Tribunal, the admissibility of the Philippines Bangkok prior to the ASEAN-China Summit scheduled for claim, as well as the merits of the dispute by March 30, 2014. October. The Philippines actions have led China to place bilateral In late April and early May, Foreign Minister Wang visited relations in virtual cold storage. No incident was more Thailand, Indonesia, Singapore, and Brunei to discuss the telling than Chinas reaction to President Benigno Aquinos South China Sea issue prior to the scheduled ministerial announcement that he intended to attend the 10th Chinameeting. He confirmed to his hosts that the COC would be ASEAN Expo (CAEXPO) in Nanning as official host of the exposition. China responded by requesting that Aquino 2 Joint Communique 46th ASEAN Foreign Ministers Meeting, Bandar Seri visit China at a more conducive time. It was subsequently Begawan, June 2930, 2013, http://www.asean.org/news/asean-statementcommuniques/item/joint-communique-46th-asean-foreign-ministers-meetingrevealed by Philippine officials that China insisted on the bandar-seri-begawan-brunei-darussalam-29-30-june-2013. Philippines dropping its claim to the arbitral tribunal as a 3 Chairmans Statement of the 22nd ASEAN Summit, Our People, Our Future Together, April 2425, 2013, http://www.asean.org/news/asean-statementcondition for Aquinos visit. The Philippines was represented communiques/item/chairmans-statement-of-the-22nd-asean-summit-ourby its trade secretary instead. people-our-future-together. 3

NBR Commentary October 9, 2013

discussed at the next meeting of the ASEAN-China Joint Working Group on the DOC. Wangs statement signaled that consultations on the COC would take considerable time and that China would use the principle of consensus (first mentioned in the DOC) to veto any proposal with which it did not agree. The statement was also aimed at countering the influence of the Philippines (and possibly Vietnam) in shaping ASEANs position on the COC. Finally, Wangs reference to some interferences presumably referred to then secretary of state Hillary Clintons 2010 offer for the United States to facilitate a diplomatic settlement. Clearly Wang was warning ASEAN not to involve outside powers. After Wangs visit, ASEAN officials held a preparatory informal meeting in Hua Hin, Thailand, during August 1415 to prepare for the special ASEAN-China talks scheduled for later in the month in Beijing. The meeting discussed how the DOC and the COC could be developed together. After the meeting, a Thai foreign ministry spokesperson stated that the ASEAN foreign ministers had agreed to speak in one voice while seeking early conclusion of a code of conduct.7 At the special ChinaASEAN talks on August Wangs statement 2 8 3 0 , M a l ay si as foreign minister signaled that Anifah Aman noted consultations on the COC that consultations on would take considerable the COC must start as soon as possible and time and that China should not be tied to the would use the principle implementation of the DOC, both should run of consensus (first parallel to each other.8 ASEAN and China held their first formal to veto any proposal with consultations on the which it did not agree. COC at the 6th ASEANChina Senior Officials Meeting and the 9th ASEAN-China Joint Working Group Meeting on the Implementation of the DOC in Suzhou, Jiangsu Province,
7 ASEAN

China Sounds a Note of Caution

In early August, Foreign Minister Wang visited Malaysia, Laos, and Vietnam and attended the High-Level Forum on the 10th Anniversary of China-ASEAN Strategic Partnership held in Bangkok on August 2. Wang used this trip, inter alia, to promote joint development and dialogue on South China Sea matters. He frankly observed that territorial disputes has an impact on China-ASEAN relations in reality.4 At a press conference in Hanoi on August 5, Wang sounded a note of caution. He stated that China and ASEAN had only agreed to hold consultations [as distinct from negotiations] on moving forward the process on the Code of Conduct in the South China Sea (COC) under the framework of implementing the Declaration on the Conduct of Parties in the South China Sea (DOC).5 Wang then introduced four new points guiding Chinas approach to forthcoming discussions on the COC:
First, reasonable expectations. Some countries are talking about quick fix, like reaching consensus on COC within one day. It is an attitude neither realistic nor serious. Second, consensus through negotiations. Wills of individual country or of a few countries should not be imposed on other countries, as an old Chinese saying [goes], nothing forcibly done is going to be agreeable. Third, elimination of interference. China and ASEAN countries tried several times to discuss on COC before, but got stuck due to some interferences. Fourth, step-by-step approach. The formulation of COC is stipulated in DOC. COC is not to replace DOC, much less to ignore DOC and go its own way. The top priority now is to implement DOC, especially promoting maritime cooperation. In this process, we should formulate the road map for COC through consultations, and push it forward in a step-by-step approach. 6

mentioned in the DOC)

4 Wang

Yi, Forging Promising and Dynamic China-ASEAN Ties (speech at the opening session of the High-Level Forum on the 10th Anniversary of ASEANChina Strategic Partnership, Bangkok, August 2, 2013), http://www.fmprc.gov. cn/eng/wjdt/zyjh/t1064612.shtml. of Foreign Affairs of the Peoples Republic of China, Foreign Minister Wang Yi on Process of Code of Conduct in the South China Sea, August 5, 2013, http://www.fmprc.gov.cn/eng//wjb/wjbz/activities/t1064869.shtml. Minister Wang Yi on Process of Code of Conduct in the South China Sea, Ministry of Foreign Affairs of the Peoples Republic of China, August 5, 2013. http://www.fmprc.gov.cn/eng/zxxx/t1064869.shtml.

5 Ministry

Vows Unity on South China Sea, Channel News Asia, August 14, 2013, http://www.channelnewsasia.com/news/asiapacific/asean-vows-unity-onsouth/776632.html. China Sea Issues Must Be Managed Through DialogueAnifah, Bernama News Agency, August 29, 2013, http://www.bernama.com/bernama/ v7/newsindex.php?id=973805.

6 Foreign

8 South

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during September 1415. This meeting adopted a work plan for 201314, approved an eminent persons group to offer technical advice, and agreed to meet in Thailand in the first quarter of next year. the past, manufacture a pretext at any moment to suspend discussions due to the bad attitude or behavior of some country (such as the Philippines).

The initiation of ASEAN-China consultations on a COC is a significant development. China has taken its first tentative step since 2002 in dealing with ASEAN on a multilateral Conclusion basis on a COC. Chinas engagement Unlike 2012, China now faces a with ASEAN on South China Sea issues more unified and determined ASEAN. If ASEAN maintains its unity serves to reinforce ASEANs centrality in Cambodias spoiling role at the 45th Southeast Asian security affairs. If China in dealing with China, this will AMM overshadowed the fact that ASEAN and ASEAN commence cooperative reached unanimous agreement on the become a major contribution projects under the DOC, this may well lead Proposed Elements of a Regional Code of to mutual confidence-building and thus to creating an ASEAN Conduct prior to the wrangling over the create a more favorable environment for political-security community discussions on a COC. If ASEAN maintains joint communiqu. ASEAN then reached unanimous agreement on the Six-Point by the end of 2015. its unity in dealing with China, this will Principles on the South China Sea. Brunei, become a major contribution to creating an as ASEAN chair, is playing a leading role ASEAN political-security community by in building consensus, while Cambodia the end of 2015. Although ASEANs other is no longer playing a disruptive role on South China Sea dialogue partners, including the United States, will not be discussions. Thailand, as ASEANs country coordinator directly involved, they have an interest in supporting ASEAN for relations with China, has been proactive in facilitating and counseling restraint by all the claimant states. progress on COC discussions. China cannot afford to ignore the diplomatic role of Indonesia, Southeast Asias NBR would like to thank the Henry M. Jackson Foundation for their generous support that allowed this commentary to be largest country and member of the group of twenty (G-20). published. Foreign Minister Natalegawa took the initiative in gaining unanimous ASEAN agreement on the Six-Point Principles on the South China Sea and produced a zero draft COC. President Susilo Bambang Yudhoyono has publicly called for an early conclusion of a COC. In addition, Singapore, Malaysia, Vietnam, and the Philippines all support ASEANs current diplomatic efforts. ASEAN-China consultations on a COC will be a protracted process. China is likely to insist that the cooperative activities and confidence-building measures in the DOC be implemented first, and this process could take several years. China has only agreed to indirect consultations on the COC as part of ongoing discussions. In the future, it will continue to test ASEANs unity and resolve. Beijing can, as it has in

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