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 RegionalCode 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 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
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 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 thatits 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 China’s reaction to President Benigno Aquino’s
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 Aquino’s visit. e 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 appointmentof Wang Yi as foreign minister in March. On April 2, at the19th 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 China’s overture on April 11 atits 46th AMM held in Brunei. e joint
communiqué issued aer the AMM stated:
We stressed the need to maintain thepositive momentum on dialogue and
consultations following the 19th ASEAN-
China Senior Ocials Consultations and8th 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,
welook forward to the formal consultations
between ASEAN and China at the SOM level on theCOC
with an aim to reach an early conclusion of a
Code of Conduct in the South China Sea [emphasisadded].
Aer 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
e ASEAN Summit also endorsed a proposalby ailand to host a special meeting of foreign ministers inBangkok prior to the ASEAN-China Summit scheduled forOctober.
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
“Joint Communique 46th ASEAN Foreign Ministers’ Meeting, Bandar SeriBegawan,” 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 FutureTogether,’” 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.
ASEAN’s changed dynamicsappear to have led Beijingto rethink its approach toSoutheast Asia.