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Thayer Consultancy Background Briefing:

ABN # 65 648 097 123


ASEAN Regional Forum Scene
Setter

Carlyle A. Thayer
August 1,2017

We request a background scene setter on the ASEAN Regional Forum and related
meetings to be held later this week in Manila.
We request your assessment of the following issues:

Q1. The South China Sea issue seems to have taken a backseat under the Philippines'
chairmanship of ASEAN. How do you see the issue being discussed at the ARF this time
with Manila bent on setting aside the Arbitral Tribunal's ruling and talking with Beijing
about joint exploration in the sea? Vietnam, I understand, has also been intimidated
by China into withdrawing from a drilling operation.

ANSWER: lt is important to recognize that the ASEAN Regional Forum is a foreign


ministers-led regional security dialogue, no more and no less. lt operates on the basis
of consensus, so contentious issues are not addressed directly. China moves
diplomatic heaven and earth to ensure no statement is issued that it objects to.
The ARF undertakes activities of a practical nature but it does not deal directly with
South China Sea disputes. The Foreign Ministers invariably will address the South
China Sea in generalterms.

Last year at the 23'd ARF meeting in Vientiane, the ARF statement reproduced the
standard ASEAN formulation: "several Ministers remain seriously concerned over
recent and ongoing developments and the Ministers took note of the concerns
expressed by some Ministers on the land reclamations and escalation of activities in
the South China Sea, which have eroded trust and confidence, increased tensions and
may undermine peace, security and stability in the region."
Last year the ASEAN Summit held in Manila with the Philippines as Chair reduced the
eight-paragraph statement on the South China Sea adopted in 2015 to two
paragraphs. The 2016 statement noted blandly, "we took note of concerns expressed
by some Leaders over recent developments in the area" rather than "serious
concerns" noted previously. There was no mention of the Arbitral Tribunal's Award
although paragraph seven called for the peaceful settlement of disputes "including full
respect for legal and diplomatic processes," I expect a similar watering down under
the Philippines as chair this month.
Q2. ASEAN foreign ministers are expected to endorse a framework for the Code of
Conduct negotiations agreed earlier by their senior officials" This framework has been
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publicly displayed as an accomplishment.


How important is this framework? or will
china still dictate the terms of any such code
despite such a framework?
ANSWER: I think it is a foregone conclusion
that ASEAN foreign ministers will endorse
the draft Framework on the code of conduct drawn
up by senior officials as a matter
of course' china met its promise to reach agreement
on this draft by the middle of
2017 ' The way is now set for the next stage,
consultations (not negotiations) between
China and ASEAN,s ten-member states on a
COC.
There are four substantive issues that need
to be resorved.
First' the current draft Framework on the coc
does not mention the geographic area
of coverage' china insists that the coc should only
apply to the waters around the
spratly islands and that scarborough shoal and priacel
the islands be excluded.
The second issue to be resolved concerns enforcement.
ASEAN wants the coc to be
legally binding. China opposes this.
The third and related issue concerns how the
coc is to be adopted. china proposes
that the coc be signed by all eleven foreign ministers.
ASEAN would like to see the
coc ratified by nationar regisratures to make it regafly
binding.
Fourth there are a number of technical issues
that need to be addressed including how
to resolve differences over interpreting the coc and
how to resotve actual disputes
and incidents at sea.
Long ago china and the ASEAN member states
agreed that the 2002 Declaration on
conduct of Parties in the South china sea (Doc)
must be fully implemented before
agreeing on the coc' The Doc set out five areas
for cooperation but not one project
has commenced' ln addition, all parties have
agreed to move ahead on the basis of
consensus' consultations on the coc are likely
to be protracted and china will not
agree to the inclusion of points that go against
its interests. All ASEAN members can
do is engage China in dialogue.
Q3' North Korea seems to be a top priority issue for the
US administration especially
after its recent missile tests. Do you see the North
Korea issue as a key agenda item at
the ARF? How do you think it should be approached?
one diplomatic source told me
that the US tried to sound out ASEAN aboutexpelling
Norti Korea from ARF but didn,t
gain enough support. ls it better for North
Korea to be inside ARF or outside or does
it really matter?
ANSWER: North Korea wiil undoubtedry top the agendas
at the ARF and ASEAN
ministerial meetings' ASEAN will take the middle
roa-d and urge North Korea, south
Korea and the United states to settle the matter
peacefully. china and Russia have
drawn their lines in the sand not to impose further
sanctions. Both oppose the use of
force.
The uS has been urging ASEAN members to reduce
the size of North Korean embassy
staff in their capitals, to end programs under which
North Koreans work in southeast
Asia' and cut off sales and currency transactions
that support North Korea,s missile
program. The Philippines and Malaysia
are a particular focus for the us.
ASEAN willnever agree to expel North Kores
because one of ASEAN,s articles of faith
is inclusive diafogue and moving forward
at a pace comfortable to all. of course, ARF
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ministers will
express their concern about nuclear proliferation on the Korean
peninsula and call on Pyongyang to implement UN Security Council resolutions. Some
members of ASEAN have been canvassing whether the association can play the role
of peace broker.
Q4. With fighting still going on in a pocket of Marawi in the southern Philippines, how
do you think the issue of terrorism should be approached at this year's ARF, especially
with the presence of lSlS foreign fighters?
ANSWER: The ARF got a new lease of life after the Bali bombings in lndonesia in
October 2002. This spurred increased regional coordination through a new
lntersessional Meeting on Counter Terrorism and Transnational Crime. The ARF will
add the new issue of returned lslamic State fighters to its agenda and endorse regional
initiatives, such as those recently agreed between Australia and lndonesia. The ARF
can only promote cooperation between regional law enforcement and intelligence
agencies and endorse specific activities related to training and information sharing.

The ARF does not have any standing counter-terrorism forces that can be deployed,

Background: 23'd ARF Meeting, Vientiane, July 26,2OL7


8. The Ministers shared concern over current developments in the Korean Peninsula,
including the nuclear test on 6 january 2A16, rocket launch on 7 February 201-6 and
ballistic missile launch on 9 July 20L6, by the Democratic People's Republic of Korea
(DPRK) which are in violation of the UNSC resolutions. The Ministers reaffirmed the
importance of peace and security in this region and reiterated ASEAN's support for
the denuclearization of the Korean Peninsula in a peaceful manner. Most Ministers
also urged the DPRK to comply with all relevant UNSC resolutions, including the UNSC
Resolution 2270 and called on all parties to exert common efforts to maintain peace
and security in the said region and create an environment conducive to the early
resumption of the Six-Party Talks to make further progress in denuclearization of the
Korean Peninsula in a peaceful manner. The Ministers stressed the importance of
addressing humanitarian concerns,

9. The Ministers exchanged views on maritime issues and reaffirmed the importance
of maintaining and promoting peace, security and stability, safety and freedom of
navigation in and over-flight above the South China Sea. Several Ministers remain
seriously concerned over recent and ongoing developments and the Ministers took
note of the concerns expressed by some Ministers on the land reclamations and
escalation of activities in the South China Sea, which have eroded trust and
confidence, increased tensions and may undermine peace, security and stability in the
region. The Ministers reaffirmed the need to enhance mutual trust and confidence,
exercise self-restraint in the conduct of activities and avoid actions that may further
complicate the situation and pursue peaceful resolution of disputes by parties
concerned in accordance with international law, including the 1982 United Nations
Convention on the Law of the Sea (UNCLOS). The Ministers noted the commitment of
the ASEAN Member States and China to ensure the full and effective .

L1. The Ministers condemned the recent heinous terrorist attacks in various regions
including Baghdad, Pathankot, Kabul, Dhaka, Nice, lstanbul, Brussels and Paris and the
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continued violent and brutal terrorist acts of the self-proclaimed lslamic State
(lS)/Da'esh and extended their deepest condolences to the victims and their families.
They emphasised the need to counter the increasing terrorist act'ivities and global
network as well as the threat posed by foreign terrorist fighters. The Ministers
welcomed the Fifth Review of the United Nations Global Counter-Terrorism Strategy
and took note of the United Nations Secretary-General's Plan of Action to Prevent
Violent Extremism. The Ministers called for a more coordinated and comprehensive
approach to countering terrorism and violent extremism, respect for diversity, peace
and moderation as a counter-narrative to violent extremism, including through the
promotion of religious tolerance and the Global Movement of Moderates. The
Ministers reaffirmed the importance of the full implementation of the ASEAN
Convention on Counter Terrorism, the ASEAN Comprehensive Plan of Action on
Counter Terrorism, and the relevant provisions of international law and the UN
Charter. The Ministers further resolved to work to limit the access of terrorist groups
to funding.

Suggested citation: Carlyle A. Thayer, "ASEAN RegiOnal Forum Scene Setter" Thayer
Consultoncy Background Brief , August L, 2017. All background briefs are posted on
Scribd.com (search for Thayer). To remove yourself from the mailing list type,
UNSUBSCRIBE in the Subject heading and hit the Reply key.

Thayer Consultancy provides political analysis of current regional security issues and
other research support to selected clients. Thayer Consultancy was officially
registered as a small business in Australia in2O02.
Thayer Consultancy Background Briefing:
ABN # 65 648 097 123
ASEAN-China Framework on
Code of Conduct

Carlyle A. Thayer
August 1,2017
Q1. ASEAN and China Foreign Ministers are endorsing this week a framework on the
Code of Conduct. May we get your assessment of this? How significant is this
framework? Will this speed up negotiations for a code of conduct?
ANSWER: The formal endorsement of the ASEAN-China draft Framework Code of
Conduct is a necessary final step before the parties can begin consultotions (not
negotiations) on a Code of Conduct.
The consultations on a COC will be protracted. First, the parties must fully implement
the 2002 Declaration on Conduct of Parties in the South China Sea (DOC). The DOC
sets out five areas for cooperation but working groups have been formed on only four
areas and not one cooperative activity has commenced. Second, consultations on the
COC must proceed on the basis of consensus and nothing can be approved unless
China consents.

The current draft Framework COC needs to resolve at least four substantive issues:

First, the currentdraft Framework on the COC does not include the geographic area
of coverage. China insists that the COC should only apply to the waters around the
Spratly islands and that Scarborough Shoal and the Paracel islands be excluded.
The second issue to be resolved concerns enforcement. ASEAN wants the COC to be
legally binding. China opposes this.
The third and related issue concerns how the COC is to be adopted. China proposes
that the COC be signed by all eleven foreign ministers. ASEAN would like to see the
COC ratified by national legislatures to make it legally binding.

Fourth, there are a number of technical issues that need to be addressed including
how to resolve differences over interpreting the COC and how to resolve actual
disputes and incidents at sea.

Q2. Philippine Foreign Secretary Alan Peter Cayetano last week hinted that he is open
to having a non-legally binding code of conduct to expedite the negotiations for the
accord. What do you think of this? How do you envision the ASEAN-China COC? Do
you think it should be legally-binding with a dispute settlement mechanism in place?
How should ASEAN and China deal with countries violating the COC?
2

ANSWER: A non-legally binding COC would be a political agreement much like the
2002 DOC. lt might expedite consultations - China refuses to characterize discussions
as formal negotiations - but it would be meaningless. lt would repriesent a complete
capitulation by ASEAN states to China's whims. A non-binding COC would be a disaster
of the first order. China would keep pushing and ASEAN claimant states would be left
with no option but to back down.
The COC should be ratified by national legislatures and deposited with the United
Nations. lt should be a legally binding treaty.
As noted above, there is no dispute settlement mechanism included in the draft
Framework COC. ASEAN has suggested that the 1976 ASEAN Treaty of Amity and
Cooperation, which China has ratified, provides a basis for dispute settlement through
the ASEAN High Council. ASEAN has further proposed that a follow on regional treaty
should be adopted to clarify legal obligations and responsibilities.
How ASEAN and China should deal with violations of the COC is an open question at
the moment. The ASEAN High Council could hear complaints by one party on
transgressions by another party. The final COC needs a mechanism to determine when
countries are in dispute and a mechanism on how to resolve disputes.

Suggested citation: Carlyle A. Thayer, "ASEAN-China Framework on a Code of


Conduct," Thoyer Consultoncy Bockground Brief , August L,20L7. All background briefs
are posted on Scribd.com (search for Thayer). To remove yourself from the mailing list
type, UNSUBSCRIBE in the Subject heading and hit the Reply key.

Thayer Consultancy provides political analysis of current regional security issues and
other research support to selected clients. Thayer Consultancy was officially
registered as a small business in Australia in 2002.
Thayer Consultancy Background Briefing:
ABN # 65 648 097 123
Draft ASEAN Statement on
South China Sea: Has Vietnam
Been Isolated?

Carlyle A. Thayer
August 5,2017
Here is the latest draft (August 4) of the AsEAN
Ministers'Joint communique. Vietnam
seems to be pushing for stronger language on
the south china sea but it seems that it
is now the isolated voice.

what is your assessemt of the contentions overtl]e language? why


is Vietnam pushing
for stronger language? with the philippines now*rrrinjup
to china and the other
ASEAN states fearful of offending Beijing, what
is at stake for vietnam that makes it
push for stronger language in the communique?

Below are the South China Sea paragraphs


South China Sea

190' We discussed extensively the matters relating to the South


China sea
and reaffirmed the importance of maintaining and promoting
peace, security,
stability, safety and freedom of navigation in and over-flight
above the south
China Sea. (

191' We acknowledged the positive developments on the South


China sea
between ASEAN and China since last year. We welcomed
the conclusion and
looked forward to the adoption of the framework of
a Code of Conduct in the
south china sea (coc) by the Foreign Ministers of ASEAN
Member states and
china at the Post Ministerial conference Plus one session
with China. ln view
of this positive momentum and in this context, we reaffirmed
ASEAN,s
readiness to begin negotiations on the CoC, and
tasked our Senior officials to
work with their counterparts from China to start the negotiation
for an
effective and substantive [and legarty binding (vN to retain;
cA, sG, My to
delete; BD, MM, lD, TH are flexible)] COC rr roon as possible.
192' We took note of serious concerns expressed by some Ministers over
recent developments in the area,

that escalate tensions, which have


eroded trust and confidence, and may undermine peace,
security and stability
2

in the region, and in this regard we reaffirmed the importance of [non-


militarisationl (CA to eet back) and self-restraint in the conduct of all activities
that could further complicate the situation in the South China Sea.
193. We further reaffirmed the importance of enhancing mutual trust and
confidence, exercising self-restraint in the conduct of activities, pursuing
mutually agreed practical maritime cooperation, avoiding actions that may
further complicate the situation, and resolving disputes by peaceful means,
without resorting to the threat or use of force, and in accordance with the
universally recognised principles of international law including the 1982 United
Nations Convention on the Law of the Sea (UNCLOS), [with full respect for
!eealand diplomatic processes.(VN; CA. PH to deletell (this is also introduced
under the ASEAN Communitv Building section) [to transform South China Sea
into a sea of peace, stability [and sustainable development](TH proposal; PH,
CA, lD, BD, MM, MY, SG to delete; LA to move to another section).

ANALYSYS: Please refer to the table below that lists each ASEAN member and the
stand they took on each ofthe four paragraphs in the South China Sea draft statement.

The table clearly shows that Vietnam is the one country that has pressed for stronger
language in underlined wording in the draft joint statement across all four paragraphs.
Malaysia comes a distant second with its support for the inclusion of military assets in
the third paragraph. The Philippines and Cambodia are clearly supporters of deleting
and watering down strong language and references that could be construed as
referring to or critical of China.
Vietnam has always been a supporter of stronger language because it views ASEAN as
one layer of insulation, however thin, against pressures from China. A strong ASEAN
statement provides Vietnam with diplomatic cover to approach outside countries like
the United States to weigh in on the South China Sea dispute.
Vietnam is pushing for stronger language now because of China's recent diplomatic
demarche to stop drilling in Block 136-03. Stronger language is also viewed as leverage.
in forthcoming consultations on a Code of Conduct with China. Since ASEAN works on
the basis of consensus Vietnam knows that even if its views are not reflected in the
joint statement other ASEAN members will have to take Vietnam's concerns into
account.
First paragraph (L90): The section that is crossed out includes new language in its
reference to previous ASEAN documents and documents between ASEAN and its
partners (read China). The vague language suggests that this is coded wording for past
statements by ASEAN with stronger language. lt is notable that Vietnam supported
language in the two sections that are highlighted (underlined wording and the wording
that has been struck out). Vietnam did not receive support. Cambodia, China's
surrogate, predictably moved to delete the offending words.
Second paragraph (191): again Vietnam is the odd country out in supporting a legally
binding Code of Conduct. This issue here is that the legal nature of the COC has yet to
be negotiated. Leaving Cambodia aside, it is significant that Malaysia and Singapore
weighed in presumably to keep this option open during formal negotiation. The
flexibility of Brunei, Myanmar, lndonesia and Thailand appears to back up this point -
3

the legal nature of the COC is still on the table as far as ASEAN members are
concerned.
Third paragraph (192): This expression brings back "serious concerns expressed by
some Ministers" that was watered down once the Philippines became ASEAN Chair.
The references proposed by Vietnam (extended construction) and Malaysia (military
assets) is new and reflects their concerns over Chinese activities this year.

The expression "non-claimant nations" is new. When coupled with military assets this
could referto Japan and the United States or even lndonesia which regards itself as a
non-claimant. A Philippines official recently claimed that China wasn't the only
country to build artificial islands. Once again Cambodia, which has no direct material
interests in the dispute, weighs in to delete wording that could be viewed as critical of
China.

Fourth paragraph (193): Over a year ago ASEAN ministers took the phrase "full respect
for legal and diplomatic processes" out of the South China Sea section of their joint
statement and elevated it to the first section in order to underscore the importance
of the international arbitration process. his year Vietnam has tried to stiffen the joint
statement by reinserting this expression in the Sbuth China Sea section'
As noted, this is also included in the ASEAN Community Buiglding section. "Partners in
crime," Cambodia and the Philippines have once again joined up to delete language
they perceive might upset China.
ln this paragraph, we see a Thai initiative to add "sustainable development" as one of
the future goals. Sustainable development may be viewed as controversial because it
touches on disputed resources - fish stock and hydrocarbons * and could imply joint
development as well delimitation of maritime zones from rocks (that is accepting the
findings of the ArbitralTribunal that there are no islands in the Spratlys, and that some
occupied features are not even rocks but low tide elevations). This may account for
why seven ASEAN members moved to delete this wording. lt is common "ASEAN
Speak" to refer to the South China Sea as a sea of peace, cooperation 'and
development. Laos deserves credit for suggesting this reference be moved to another
section,
What is at stake? ln past years Vietnam was able to conduct its foreign policy by
balancing its relations with the major powers and count on the Philippines to take the
point on the South China Sea dispute. Now, the strategic uncertainty surrounding the
intentions of the Trump Administration, the renewed pressure if not threats from
China, and Duterte's pivot towards China have left Vietnam more exposed than it has
been. Getting support from ASEAN for stronger wording on the South China sea would
strengthen - if only marginally - Vietnam's diplomatic hand in dealing with China.
Without such support Vietnam will be even more vulnerable to pressures from Beijing.
It is notable that Vietnam's defense minister is scheduled to have a face-to-face
meeting with U.S. Defense Secretary James Mattis sometime between 7-10 August.
4

ASEAN Members' Response to


Draft Text of South China Sea Section of Joint Statement

Country/Text Paragraph Paragraph Paragraph Paragraph


L91. 193
190 L92

Brunei Flexible Delete

Cambodia Delete Delete bold Delete underline Delete


underline face
Get back on Delete
Get back non0m ilitarisation
cross out

lndonesia Flexible Delete non- Delete


claimant nations

Laos Move to
another
section

Malaysia Get back on Delete bold Retain military Delete


underline face assetts*

Myanmar Flexible Delete

Philippines Get back on Delete non- Delete


underline claimant nations
Delete
Get back on Delete underline
cross out

Singapore Delete bold Delete


face

Thailand Flexible Retain

Vietnam Support/retain Retain Retain extended Retain


construction*
Support/retain

Suggested citation: Carlyle A. Thayer, "Draft ASEAN Statement on South China Sea:
Has Vietnam Been lsolated?" Thayer Consultoncy Background Brief , August 5, 20L7.
All background briefs are posted on Scribd.com (search for Thayer). To remove
yourself from the mailing list type, UNSUBSCRIBE in the Subject heading and hit the
Reply key.
Thayer Consultancy Background Briefing:
ABN # 65 648 097 123
Framework on a Code of
Conduct - Victory for China?

Carlyle A. Thayer
August 6,2017

ASEAN and China met in Manila today and agreed on a "framework" for discussing
the Code of Conduct in the South China Sea. What is your assessment? lis this a
victory of any kind or an exercise in nothingness... or something else?

ANSWER: China and ASEAN have approved a brief two-page Framework for the Code
of Conduct. Now they will begin formal consultations (not negotiations) on the Code
of Conduct itself. There are at least four major areas left unaddressed: the geographic
scope (China wants to exclude the Paracels and Scarborough Shoal), who should
approve the final Code of Conduct (China wants the foreign minister to sign on, ASEAN
wants national legislatures to ratify the COC and deposit it with the UN- at least some
ASEAN members support this), how to resolve differences in interpretation of the COC
and what kind of dispute settlement and enforcements mechanisms should be
specified to deal with actual disputes.

Suggested citation: Carlyle A. Thayer, "Framework on a Code of Conduct Victory for


-
China?" Thoyer Consultancy Background Brief, August 6,2077. All background briefs
are posted on Scribd.com (search for Thayer). To remove yourself from the mailing list
type, UNSUBSCRIBE in the Subject heading and hit the Reply key.

Thayer Consultancy provides political analysis of current regional security issues and
other research support to selected clients. Thayer Consultancy was officially
registered as a small business in Australia in 2002.