The ASEAN-China Code of Conduct

in the South China Sea:

A Tool for Conflict Resolution?

Emeritus Professor Carlyle A. Thayer

Presentation to Updates on the South China Sea
Conflict: COC a Tool for Conflict Resolution
Sponsored by World Futures
EastIn Hotel, Petaling Jaya. Malaysia
January 13, 2020
 Outline

1. Importance of the South China

Sea
2. United Nations Convention on
the Law of the Sea (UNCLOS)
3. Overview of Diplomatic Efforts,
1992-2019
 Outline

4. The Philippines’ Claims Against

China
5. Current COC Negotiations
6. Conclusion: COC a Tool for
Conflict Resolution?
1. Importance of the South China Sea

2nd busiest waterway

US $5 trillion in goods
Intra ASEAN Trade

22.9%
China’s estimates 6
to 7 times greater
than US
Geographic Scope & Features
 2. UNCLOS
Constitution of the World’s Oceans
• Does not deal with sovereignty
• Maritime zones & features (rocks, islands, LTE)
• Sovereign jurisdiction over resources
• Semi-enclosed Sea
– Duty to Cooperate
– Protect marine environment
• Provisional arrangements of a practical nature
• Compulsory dispute settlement
 UNCLOS
Land dominates the sea
Maritime Zones
• Baselines
• Internal waters
• Territorial Sea
• Contiguous Zone
• Exclusive Economic
Zone (EEZ)
• Continental Shelf
• High Seas
• International waters
Claimants:
• China (7)
• Taiwan (1)
• Vietnam (27)
• Philippines (9)
• Malaysia (5)
• Brunei (0)
• [Indonesia]
• (features in
Spratly islands)
 China’s
9-dash line
• historic rights

• ‘4 sha’ (四沙)
• Pratas Ils.
• Paracel Ils.
• Spratly Ils.
• Macclesfield
Bank
3. Overview of Diplomatic Efforts,
1992-2019

DOC 2002

ASEAN-
China
exchange
Draft Codes
ASEAN
of Conduct
Statements
2000s
1992 & 1995

DOC = Declaration on
Conduct of Parties in the
South China Sea
 Declaration on Conduct of Parties in
the South China Sea (DOC )
• 5. 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.
– November 2002 (non-binding political statement)
 Cooperative Activities Under the DOC
• a. marine environmental protection;
• b. marine scientific research;
• c. safety of navigation and communication at
sea;
• d. search and rescue operation; and
• e. combating transnational crime, including
but not limited to trafficking in illicit drugs,
piracy and armed robbery at sea, and illegal
traffic in arms.
 Declaration on Conduct of Parties in
the South China Sea (DOC)

• 10. The Parties concerned reaffirm that

the adoption of a code of conduct in the
South China Sea would further promote
peace and stability in the region and
agree to work, on the basis of consensus,
towards the eventual attainment of this
objective.
– November 2002
Major Turning Points, 2004-2012

ASEAN’s
Proposed
Guidelines to Elements of a
Implement the Regional COC
DOC 2011 June 13, 2012
Terms of
Reference
ASEAN-China
Joint Working
Group 2004
Major Turning Points, 2012-16

2013 Philippines files

Claim against China
under UNCLOS

Hotline &
ASEAN CUES
Consensus August 2016
ASEAN’s 6 July 24-25,
Principles on 2016
the SCS July
20, 2012
CUES = Code for Unplanned
Encounters at Sea
Major Turning Points, 2017-19

First
Reading
Single Draft Aug 2019
SCS COC
Framework Negotiating
Text Final Code
of the Code
of Conduct
of Conduct August 2018
by 2021?
August 2017
 4. Philippines’ Claims Against China
What are our entitlements?
• China has made excessive maritime claims
• Determine legal status of islands, rocks and
low tide elevations and submerged banks
occupied by China
• China is interfering with Philippines’ lawful
rights within and beyond its EEZ and
continental shelf
• Declare 9-dash line illegal in international law
 Arbitral Tribunal and Award
29 Oct 2015 concluded 12 July 2016
Other judges appointed by
the President of the
International Tribunal on
the Law of the Sea (ITLOS)
from a panel nominated by
state parties to UNCLOS

UNCLOS provides
provisions when one of the
parties declines to
participate

Judge Stanislaw Pawlak

Parties to a dispute may nominate (Poland) assigned to
a judge to represent their case represent China’s case
 UNCLOS Compulsory Dispute
Procedures – Binding Decisions
• All state parties to UNCLOS are free to choose
one or more of four means to settle disputes:
– International Tribunal for the Law of the Sea (ITLOS),
Hamburg
– International Court of Justice, The Hague
– Arbitral Tribunal
– Special Arbitral Tribunal
• Where the parties have not designated the
means for dispute settlement default = Arbitral
Tribunal
 Arbitral Tribunal
• Does it have jurisdiction?
• Does the Philippines’ claim have legal merit?
• When one party does not appear the judges
are not to make any inferences
• Position Paper of the Government of the
People’s Republic of China on the Matter of
Jurisdiction in the South China Sea Arbitration
Initiated by the Republic of the Philippines
 Arbitral Tribunal Award
• "DECLARES that, as between the Philippines and
China, China's claims to historic rights, or other
sovereign rights or jurisdiction, with respect to the
maritime areas of the South China Sea
encompassed by the relevant part of the 'nine-
dash line' are contrary to the Convention and
without lawful effect to the extent that they
exceed the geographic and substantive limits of
China's maritime entitlements under the
Convention; and further DECLARES that the
Convention superseded any historic rights, or
other sovereign rights or jurisdiction, in excess of
the limits imposed therein."
 Findings of the Arbitral Tribunal:
The Philippines v China
1. UNCLOS comprehensively allocates rights in the
maritime domain
2. None of the land features in the Spratlys is an island
3. China in breach of flag state obligations related to
International Regulations for Preventing Collisions at
Sea (COLREGS)
4. China failed to protect marine environment
5. China aggravated and extended the dispute
 Annex VII Article 11
Finality of Award

• The award shall be final and without appeal,

unless the parties to the dispute have agreed in
advance to an appellate procedure. It shall be
complied with by the parties to the dispute.*
• *China and the Philippines
 5. Current COC Negotiations
Single Draft South China Sea
Code of Conduct Negotiating Text
• Adopted by the Foreign Ministers from China and
ASEAN members August 3, 2018
• Preambular provisions, general provisions and
final clauses = unified draft of nine states’ views
• Not an instrument to settle territorial disputes or
maritime delimitation issues;
• A living document
• First of three readings completed (August 2019)
 Submissions to SDNT
Country Unilateral* Joint** Total
Brunei (BN) 3 18 21
Cambodia (CA) 2 17 19
China (CH) 16 20 36
Indonesia (ID) 10 19 29
Laos 0 0 0
Malaysia (MY) 19 6 25
Myanmar (MM) 0 0 0
Philippines (PH) 6 17 23
Singapore (SG) 3 18 21
Thailand (TH) 10 6 16
Vietnam (VN) 12 14 26
Sub-total 81
 Part 2 General Provisions
• Duty to Cooperate
2.c • Practical Maritime Cooperation

• Self-restraint/Trust & Confidence

2.c • Prevention of Incidents

• Management of Incidents
2.c • Other Undertakings
 Three Year Timetable,
2018-2021
Rodrigo Duterte will still be President of the Philippines

The Philippines will still be ASEAN country--coordinator for dialogue with China

ASEAN Chairmanship will pass from Vietnam to Brunei to Cambodia

 False Start – Second Reading
• 30th ASEAN-China Joint Working Group on
the implementation of the Declaration on
Conduct of Parties (DOC) in the South China
Sea
• 18th ASEAN-China Senior Officials’ Meeting
(SOM) on the implementation of the DOC in
the South China Sea
– China claims second reading complete
• Vietnam considers “litigation measures”
 6. Conclusion:
COC a Tool for Conflict Resolution?
ASEAN Regional Forum Concept Paper (1995)
• ASEAN as ‘primary driving force’ of ARF
• Gradual evolutionary 3-stage approach
– 1. Confidence Building Measures
– 2. Preventive Diplomacy
– 3. Conflict Resolution Mechanism
ASEAN Regional Forum-2: Chairman’s Statement
Elaboration of approaches to conflicts
 Dispute Resolution – Two Proposals
1. High Council of the Treaty of Amity and Cooperation (TAC) at
the consent of the Parties concerned (ID)
– any unresolved incident may be referred to an appropriate
international disputes settlement mechanism, at the consent of the
concerned Parties.
2. Settle their disputes “through friendly negotiations, enquiry,
mediation, conciliation and other means as may be agreed by
the disputing Contracting Parties” (VN)
– failing that the disputants “utilize the dispute settlement
mechanism under relevant provisions of the Treaty of Amity and
Cooperation in Southeast Asia.”
 Legal Status of the COC
• The Contracting States “have consented to be
bound by the present Code of Conduct…” (VN)
• the COC “be subject to ratification in accordance
with the respective internal procedure of the
signatory States” and the instrument of
ratification be deposited with the ASEAN
Secretary General who “shall register” the COC
pursuant to Article 102 of the Charter of the
United Nations.
• No Contracting Party may hold a reservation
when signing the COC (BN, VN)
Geographic Scope and Disputed Areas
• “the present Code of Conduct shall apply to all
disputed features and overlapping maritime areas
claimed under the 1982 UNCLOS in the South
China Sea” (VN)
• “the Parties are committed to respect the
Exclusive Economic Zone and continental shelf of
the coastal states as provided for in the 1982
UNCLOS” (ID)
• Suggestion to define geographic scope (MY, SG)
 Military Activities, Exercises and
Militarization
“The Parties shall establish a notification mechanism on
military activities, and to notify each other of major military
activities if deemed necessary. The Parties shall not hold joint
military exercises with countries from outside the region,
unless the parties concerned are notified beforehand and
express no objection” (CH)
• “notifying, on a voluntary basis, other Parties concerned of
any impending joint/combined military exercise” (ID)
• “Notify other Contracting States of any impending
joint/combined military exercise/drill to be taken place
within the South China Sea. Such notifications shall be
made 60 days before the commencement of such military
exercise/drill” (VN)
 Cooperation Among
Maritime Law Enforcement Agencies

• Humane treatment of persons in danger or distress at sea

• Safety of navigation, communication at sea, search and
rescue
• Fisheries cooperation
• Capacity building
• Joint exercises
• Hotlines, exchange of information
• Extension of CUES to Coast Guard-type agencies.
• These proposals need to be operationalized in guidelines
and protocols attached to the final text of the COC.
 Role of Third Parties
• Third parties are states that are not signatories to the
COC.
• There is no reference in the SDNT about accession to
the COC by third parties.
• Brunei proposed that, “following the Entry into Force
of the COC, the Parties can jointly propose an UNGA
(United Nations General Assembly) biennial
resolution which would ensure all other countries
respect the principles contained in the COC”
The ASEAN-China Code of Conduct
in the South China Sea:
A Tool for Conflict Resolution?

Emeritus Professor Carlyle A. Thayer

Presentation to Updates on the South China Sea
Conflict: COC a Tool for Conflict Resolution
Sponsored by World Futures
EastIn Hotel, Petaling Jaya. Malaysia
January 13, 2020