New Commitment to a Code of Conduct in the South China Sea?
By Carlyle A. Thayer
October 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 People’s 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 China’s 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 China’s 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 201 until September 2013 when ASEAN and China began their first formal consultations on the COC.
In 2012, ASEAN’s 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 communiqué that the leaders agreed not to internationalize the South China Sea dispute. Due to objections by the Philippines, this reference was dropped.
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 People’s Republic of China on July 9 at the AMM plenary session. The contretemps over the wording of the joint statement came in the evening at the ASEAN retreat.
Indonesia’s Proactive Diplomacy
After the 45th AMM, Indonesia’s 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 18–19). 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 ASEAN’s Six-Point Principles on the South China Sea on July 20.
Hor Namhong’s 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
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 UN General Assembly in September 2012. ASEAN diplomatic sources state in private that Indonesia’s 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. Brunei, perhaps overoptimistically, set October as a target date for completion of the COC in advance of the ASEAN-China Summit.
Thailand, which assumed the role of ASEAN country coordinator for relations with 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. 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 tribunal’s proceedings. Under UNCLOS, however, the arbitral tribunal is permitted to hear the case without China, and in April a five-member panel was established. The present tribunal is composed of judges from Ghana (chair), Germany, France, Netherlands, and Poland. It held its first session on July 11 and later sent draft rules of procedure to the Philippines and China for comment. The 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 tribunal’s proceedings. It should be noted that China opted out of arbitral clauses of UNCLOS when it ratified 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. The 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. The 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.
The Philippines’ actions have led China to place bilateral relations in virtual cold storage. No incident was more telling than China’s reaction to President Benigno Aquino’s announcement that he intended to attend the 10th China-ASEAN Expo (CAEXPO) in Nanning as official host of the exposition. China responded by requesting that Aquino visit China "at a more conducive time." It was subsequently revealed by Philippine officials that China insisted on the Philippines dropping its claim to the arbitral tribunal as a condition for Aquino’s visit. The Philippines was represented by its trade secretary instead.
China Engages ASEAN
ASEAN’s 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 Officials’ Consultation, Chinese officials announced their willingness to commence discussions with ASEAN on a COC later in the year.
ASEAN responded to China’s overture on April 11 at its 46th AMM held in Brunei. The joint communiqué issued after the AMM stated:
We stressed the need to maintain the positive momentum on dialogue and consultations following the 19th ASEAN-China Senior Officials 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]. 
After the 23rd ASEAN Summit, held immediately following the AMM, Brunei issued the chair’s 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."  The ASEAN Summit also endorsed a proposal by Thailand 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 Thailand, Indonesia, Singapore, and Brunei to discuss the South China Sea issue prior to the scheduled ministerial meeting. He confirmed to his hosts that the COC would be 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." 
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).’"  Wang then introduced four new points guiding China’s 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. 
Wang’s 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 ASEAN’s position on the COC. Finally, Wang’s reference to "some interferences" presumably referred to then secretary of state Hillary Clinton’s 2010 offer for the United States to facilitate a diplomatic settlement. Clearly Wang was warning ASEAN not to involve outside powers.
After Wang Yi’s visit, ASEAN officials held a preparatory informal meeting in Hua Hin, Thailand, during August 14–15 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."  At the special China-ASEAN talks on August 28–30, Malaysia’s foreign minister 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." 
ASEAN and China held their first formal consultations on the COC at the 6th ASEAN-China Senior Officials’ Meeting and the 9th ASEAN-China Joint Working Group Meeting on the Implementation of the DOC in Suzhou, Jiangsu Province, during September 14–15. This meeting adopted a work plan for 2013–14, approved an eminent persons group to offer technical advice, and agreed to meet in Thailand in the first quarter of next year.
Unlike 2012, China now faces a more unified and determined ASEAN. Cambodia’s 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 communiqué. 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. Thailand, as ASEAN’s 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 Asia’s 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 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 ASEAN’s 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 ASEAN’s unity and resolve. Beijing can, as it has in 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 basis on a COC. China’s engagement with ASEAN on South China Sea issues serves to reinforce ASEAN’s centrality in Southeast Asian security affairs. If China and ASEAN commence cooperative projects under the DOC, this may well lead to mutual confidence-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 ASEAN’s 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.
 Carlyle A. Thayer, "ASEAN’s Code of Conduct (Unofficial)," Thayer Consultancy, Background Briefing, July 11, 2012, http://www.scribd.com/doc/101698395/Thayer-ASEAN’s-Code-of-Conduct-Unofficial.
 "Joint Communique 46th ASEAN Foreign Ministers’ Meeting, Bandar Seri Begawan," June 29–30, 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.
 "Chairman’s Statement of the 22nd ASEAN Summit, ‘Our People, Our Future Together,’" April 24–25, 2013, http://www.asean.org/news/asean-statement-communiques/item/chairmans-statement-of-the-22nd-asean-summit-our-people-our-future-together.
 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.
 Ministry of Foreign Affairs of the People’s 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.
 "Foreign Minister Wang Yi on Process of ‘Code of Conduct in the South China Sea,’" Ministry of Foreign Affairs of the People’s Republic of China, August 5, 2013. http://www.fmprc.gov.cn/eng/zxxx/t1064869.shtml.
 "ASEAN Vows Unity on South China Sea," Channel News Asia, August 14, 2013, http://www.channelnewsasia.com/news/asiapacific/asean-vows-unity-on-south/776632.html.
 "South China Sea Issues Must Be Managed Through Dialogue—Anifah," Bernama News Agency, August 29, 2013, http://www.bernama.com/bernama/v7/newsindex.php?id=973805.