COMME NTARY

CARLYLE A. THAYER is Emeritus Professor at the University

of New South Wales at the Australian Defence Force Academy
in Canberra.
New Commitment to a Code of Conduct
in the South China Sea?
BY CARLYLE A. THAYER
Publ i shed: October 9, 2013
COMME NTARY
e Association of Southeast Asian Nations (ASEAN)
and China commenced consultations on a Code of Conduct
in the South China Sea (COC) in mid-September aer
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 rst 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. e 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, aer Manila
led 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 shermen. Further
south, Chinese paramilitary vessels continue to menace
South omas 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.
is 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 rst 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 dra 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.
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2
Displays of disunity
overshadowed the fact that
the ASEAN foreign ministers
unanimously reached
agreement on Proposed
Elements of a Regional CoC in
the South China Sea between
ASEAN Member States and
China.
ese 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
e contretemps over the wording of the joint
statement came in the evening at the ASEAN retreat.
Indonesias Proactive Diplomacy
Aer the 45th AMM, Indonesias foreign minister Marty
Natalegawa initiated consultations with other members
of ASEAN in an eort to restore unity behind a common
position. Natalegawa conducted an intense round of shuttle
diplomacy, ying to ve 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. Aer he obtained
their unanimous agreement, Cambodia, as ASEAN Chair,
ocially released ASEANs Six-Point Principles on the South
China Sea on July 20.
Hor Namhongs statement rearmed the commitment
of all ASEAN Foreign Ministers to the following principles:
t e full implementation of the Declaration on the
Conduct of Parties in the South China Sea (DOC)
t Guidelines for the Implementation of the DOC
t e early conclusion of a COC
t Full respect of the universally recognized principles of
international law, including the 1982 UNCLOS
t Continued exercise of self-restraint and non-use of
force by all parties
t Peaceful resolution of disputes in accordance with the
universally recognized principles of international law,
including the 1982 UNCLOS
At the 2012 ASEAN retreat, Indonesia oered to produce
a non-paper on the COC in order to expand the Proposed
Elements of a Regional Code of Conduct into a workable
dra COC. Natalegawa presented his non-paper, a zero dra
COC, to the ASEAN foreign ministers on the sidelines of the
1
Carlyle A. ayer, ASEANs Code of Conduct (Unocial), ayer
Consultancy, Background Brieng, July 11, 2012, http://www.scribd.com/
doc/101698395/ayer-ASEANs-Code-of-Conduct-Unocial.
UN General Assembly in September 2012. ASEAN diplomatic
sources state in private that Indonesias proposed zero dra
COC has been held in abeyance in the hope that China will
soen 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.
Brunei, perhaps
overoptimistically,
set October as
a target date for
completion of the
COC in advance of
the ASEAN-China
Summit.
ailand, which
assumed the role of
ASEAN country
coordinator for
rel at ions wit h
China the previous
year, proceeded to raise the South China Sea issue informally
with Beijing. Importantly, Cambodia ceased its obstruction of
ASEAN eorts to forge a unied position. ese 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. e Philippines undertook this action without
prior consultations with other ASEAN members. is caused
some momentary concern that the Philippines actions would
undermine eorts to engage China in discussions on the COC.
N8k Cemmeatar - 0cte|er 9, 111
3
It should be noted, however, that recourse to UNCLOS arbitral
procedures was included as one of two dispute-settlement
mechanisms included in the Proposed Elements of a Regional
Code of Conduct unanimously adopted by ASEAN ministers
in July 2012. China rejected this claim and refused to take
part in the tribunals proceedings. Under UNCLOS, however,
the arbitral tribunal is permitted to hear the case without
China, and in April a ve-member panel was established. e
present tribunal is composed of judges from Ghana (chair),
Germany, France, Netherlands, and Poland. It held its rst
session on July 11 and later sent dra rules of procedure to
the Philippines and China for comment.
e Philippines responded on July 31, and
China replied a day later in a note verbale
stating that it did not accept the legal action
initiated by the Philippines and would not
participate in the tribunals proceedings.
It should be noted that China opted out of
arbitral clauses of UNCLOS when it ratied
the convention. In August 2006, China
issued a statement rejecting the compulsory
dispute procedures contained in UNCLOS in matters related
to the delimitation of the territorial sea, exclusive economic
zone, and continental shelf. e Philippines argues that
its case concerns matters that are separate and involve an
interpretation of international law under UNCLOS.
On August 27 the arbitral tribunal issued its first
procedural order announcing a preliminary timetable and
rules of procedure. e Philippines was directed to fully
address all issues, including matters relating to the jurisdiction
of the Arbitral Tribunal, the admissibility of the Philippines
claim, as well as the merits of the dispute by March 30, 2014.
e Philippines actions have led China to place bilateral
relations in virtual cold storage. No incident was more
telling than Chinas reaction to President Benigno Aquinos
announcement that he intended to attend the 10th China-
ASEAN Expo (CAEXPO) in Nanning as ocial host of the
exposition. China responded by requesting that Aquino
visit China at a more conducive time. It was subsequently
revealed by Philippine ocials that China insisted on the
Philippines dropping its claim to the arbitral tribunal as a
condition for Aquinos visit. e Philippines was represented
by its trade secretary instead.
China Engages ASEAN
ASEANs changed dynamics appear to have led Beijing to
rethink its approach to Southeast Asia. China appears to be
pursuing a policy of upgrading its relations with ASEAN (with
the exception of the Philippines) following the appointment
of Wang Yi as foreign minister in March. On April 2, at the
19th ASEAN-China Senior Ocials Consultation, Chinese
ocials announced their willingness to commence discussions
with ASEAN on a COC later in the year.
ASEAN responded to Chinas overture on April 11 at
its 46th AMM held in Brunei. e joint
communiqu issued aer the AMM stated:
We stressed the need to maintain the
positive momentum on dialogue and
consultations following the 19th ASEAN-
China Senior Ocials Consultations and
8th ASEAN-China Joint Working Group
on the Implementation of the DOC.
Taking into account the importance of
the 10th anniversary of the ASEAN-
China Strategic Partnership in 2013, we
look forward to the formal consultations
between ASEAN and China at the SOM level on the
COC with an aim to reach an early conclusion of a
Code of Conduct in the South China Sea [emphasis
added].
2

Aer the 23rd ASEAN Summit, held immediately following
the AMM, Brunei issued the chairs statement that declared,
We tasked our Ministers to continue to work actively with
China on the way forward for the early conclusion of a Code
of Conduct in the South China Sea (COC) on the basis of
consensus.
3
e ASEAN Summit also endorsed a proposal
by ailand to host a special meeting of foreign ministers in
Bangkok prior to the ASEAN-China Summit scheduled for
October.
In late April and early May, Foreign Minister Wang visited
ailand, Indonesia, Singapore, and Brunei to discuss the
South China Sea issue prior to the scheduled ministerial
meeting. He conrmed to his hosts that the COC would be
2
Joint Communique 46th ASEAN Foreign Ministers Meeting, Bandar Seri
Begawan, June 2930, 2013, http://www.asean.org/news/asean-statement-
communiques/item/joint-communique-46th-asean-foreign-ministers-meeting-
bandar-seri-begawan-brunei-darussalam-29-30-june-2013.
3
Chairmans Statement of the 22nd ASEAN Summit, Our People, Our Future
Together, April 2425, 2013, http://www.asean.org/news/asean-statement-
communiques/item/chairmans-statement-of-the-22nd-asean-summit-our-
people-our-future-together.
ASEANs changed dynamics
appear to have led Beijing
to rethink its approach to
Southeast Asia.
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4
Wangs statement
signaled that
consultations on the COC
would take considerable
time and that China
would use the principle
of consensus (rst
mentioned in the DOC)
to veto any proposal with
which it did not agree.
discussed at the next meeting of the ASEAN-China Joint
Working Group on the DOC.
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 x, 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.
ird, 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. e formulation of
COC is stipulated in DOC. COC is not to replace
DOC, much less to ignore DOC and go its own way.
e 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
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 ASEAN-
China Strategic Partnership, Bangkok, August 2, 2013), http://www.fmprc.gov.
cn/eng/wjdt/zyjh/t1064612.shtml.
5
Ministry of Foreign Aairs 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.
6
Foreign Minister Wang Yi on Process of Code of Conduct in the South China
Sea, Ministry of Foreign Aairs of the Peoples Republic of China, August 5,
2013. http://www.fmprc.gov.cn/eng/zxxx/t1064869.shtml.
Wangs statement signaled that consultations on the COC
would take considerable time and that China would use the
principle of consensus (rst mentioned in the DOC) to veto
any proposal with which it did not agree. e statement was
also aimed at countering the inuence 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 oer
for the United States to facilitate a diplomatic settlement.
Clearly Wang was warning ASEAN not to involve outside
powers.
Aer Wangs visit, ASEAN ocials held a preparatory
informal meeting in Hua Hin, ailand, during August 1415
to prepare for the special ASEAN-China talks scheduled for
later in the month in Beijing. e meeting discussed how the
DOC and the COC could be developed together. Aer the
meeting, a ai 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 China-
ASEAN talks on August
2830, Mal aysi as
f or ei g n mi ni s t er
Anifah Aman noted
that consultations on
the COC must start as
soon as possible and
should not be tied to the
implementation of the
DOC, both should run
parallel to each other.
8

ASEAN and China
held their rst formal
consultations on the
COC at the 6th ASEAN-
China Senior Ocials
Meeting and the 9th
ASEAN-China Joint Working Group Meeting on the
Implementation of the DOC in Suzhou, Jiangsu Province,
7
ASEAN Vows Unity on South China Sea, Channel News Asia, August 14,
2013, http://www.channelnewsasia.com/news/asiapacic/asean-vows-unity-on-
south/776632.html.
8
South China Sea Issues Must Be Managed rough DialogueAnifah,
Bernama News Agency, August 29, 2013, http://www.bernama.com/bernama/
v7/newsindex.php?id=973805.
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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).
e initiation of ASEAN-China consultations on a COC is
a signicant development. China has taken its rst tentative
step since 2002 in dealing with ASEAN on a multilateral
basis on a COC. Chinas engagement
with ASEAN on South China Sea issues
serves to reinforce ASEANs centrality in
Southeast Asian security aairs. If China
and ASEAN commence cooperative
projects under the DOC, this may well lead
to mutual condence-building and thus
create a more favorable environment for
discussions on a COC. If ASEAN maintains
its unity in dealing with China, this will
become a major contribution to creating an
ASEAN political-security community by
the end of 2015. Although ASEANs other
dialogue partners, including the United States, will not be
directly involved, they have an interest in supporting ASEAN
and counseling restraint by all the claimant states.
NBR would like to thank the Henry M. Jackson Foundation
for their generous support that allowed this commentary to be
published.
during September 1415. is meeting adopted a work plan
for 201314, approved an eminent persons group to oer
technical advice, and agreed to meet in ailand in the rst
quarter of next year.
Conclusion
Unlike 2012, China now faces a
more unied and determined ASEAN.
Cambodias spoiling role at the 45th
AMM overshadowed the fact that ASEAN
reached unanimous agreement on the
Proposed Elements of a Regional Code of
Conduct prior to the wrangling over the
joint communiqu. ASEAN then reached
unanimous agreement on the Six-Point
Principles on the South China Sea. Brunei,
as ASEAN chair, is playing a leading role
in building consensus, while Cambodia
is no longer playing a disruptive role on South China Sea
discussions. ailand, as ASEANs country coordinator
for relations with China, has been proactive in facilitating
progress on COC discussions. China cannot afford to
ignore the diplomatic role of Indonesia, Southeast Asias
largest country and member of the group of twenty (G-20).
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 dra 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 eorts.
ASEAN-China consultations on a COC will be a protracted
process. China is likely to insist that the cooperative
activities and condence-building measures in the DOC be
implemented rst, 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
If ASEAN maintains its unity
in dealing with China, this will
become a major contribution
to creating an ASEAN
political-security community
by the end of 2015.