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Background Briefing: ASEANs Calls for China to Craft a Code of Conduct for the South China Sea Carlyle A. Thayer April 25, 2013

[client name deleted] Once again there has been a call by the ASEAN leaders for the crafting of a Code of Conduct in for South China Sea but China has not given any clear indication when it will sit down with the bloc. We request your assessment of the following: 1. ASEAN seems helpless and it seems nothing will happen for as long as China stalls. What can ASEAN do to break this impasse and convince China to begin negotiations for the Code of Conduct (COC)? ANSWER: It takes two to tango. ASEAN is stuck in a bureaucratic rut, having reached consensus and committed itself to a Code of Conduct with China it is doggedly pursuing this objective. China will only sit down with ASEAN if there is something to be gained, like deflecting the heat of criticism from the US, Japan and other maritime powers. China has set progress on implementing the Declaration on Conduct of Parties (DOC), yet not one single cooperative project has gotten off the ground. ASEAN diplomats told me in March that the Philippines' unilateral action in taking its dispute with China to the United Nations has "taken all the breath out of the COC process." I have been arguing for several years that ASEAN has made a strategic mistake in trying to negotiate a COC with China. It should negotiate a COC for Southeast Asia's maritime domain among its members. This would govern how ASEAN members should behave in light of territorial disputes or overlapping claims among themselves. Once they agree, ASEAN should open the COC for Southeast Asia's Maritime Domain for accession by all their dialogue partners much like the Treaty of Amity and Cooperation and Southeast Asia Nuclear Weapons Free Zone. This would put pressure on China to conform or remain isolated. 2. Why is China stalling? ANSWER: China can afford to play for time because there are countries in ASEAN who will cave in and meet Chinese demands rather than risk provoking tensions in relations. The longer China waits the more these "nervous nellies" will push for ASEAN to reach an accommodation. A binding code of conduct would restrict China's actions. 3. China has sent feelers to some ASEAN member countries that it may sit down with

2 ASEAN for the COC negotiations if the Philippines is excluded or if the Philippines drops the arbitration case it raised before UNCLOS. ASEAN diplomats told China this is not possible. Knowing it was a futile attempt, why do you think China even tried this? ANSWER: ASEAN diplomats have told me that China is indeed pressuring them to lobby the Philippines to drop its legal action as a quid pro quo for restarting talks on the COC. China's attempt to exclude the Philippines will be no more successful than President Bush's attempt to hold the 2nd ASEAN-US Leadership meeting at Crawford Ranch in Texas without Myanmar. No meeting was held. China has been put on the back foot by the Philippines's actions because of the implications of the Arbitral Tribunal taking up the case. Trying to isolate the Philippines appears like a ploy to test ASEAN unity. It is notable that Indonesia's foreign minister, Marty Natalegawa, who was originally quoted by AFP as saying China requested a meeting with ASEAN on the COC, has been rather critical of China subsequently. Other sources have told me they cannot get confirmation of the Chinese approach to discuss the COC specifically. They say China requested a meeting to discuss commemorative activities to mark the tenth anniversary of the strategic partnership. Suggested citation: Carlyle A. Thayer, ASEANs Calls for China to Craft a Code of Conduct for the South China Sea, Thayer Consultancy Background Brief, April 25, 2013. Thayer Consultancy Background Briefs are archived at Scribd.com