You are on page 1of 17

EG

A .

o
19-20 Se p tember 2013

Raffles Hotel Le Royal, Phn om Penh, CAMBO D IA

E

Organizer:

Sponsor:

The l ntern atfo nal Fou nd ation For
Arts.And CuHurr

R G

Incorporating a Code of Conduct for the South China Sea into ASEAN’s Political‐Security Community: The Road Ahead
Carlyle Thayer

Presentation to Regional Conference on ASEAN and the South China Sea: Achievements, Challenges and Future Direction, Cambodian Institute for Cooperation and Peace Raffles Le Royal Hotel, Phnom Penh September 19-20, 2013

2

Incorporating a Code of Conduct for the South China Sea into ASEAN’s Political‐Security Community: The Road Ahead Carlyle A. Thayer*
Introduction
The topic of this panel is ‘ASEAN and the South China Sea: The Road to The COC – How to Achieve It?’. This paper will approach this question in three parts. Part one provides a an overview of political-diplomatic developments since ASEAN and China reached agreement on the Guidelines to Implement the Declaration on Conduct of Parties in the South China Sea (DOC) in mid-2011 to this year’s agreement by China to begin consultations with ASEAN on a Code of Conduct in the South China Sea (COC). Part two focuses on ASEAN’s efforts to create the ASEAN Political-Security Community by 2015 and argues that a COC should be an integral part of this process. Part three argues that the best way to achieve a COC is for ASEAN to negotiate a Southeast Asia Maritime Treaty of Peace, Cooperation and Development while conducting negotiations with China on a COC.

Overview of ASEAN-China Discussions on the DOC/COC
In July 2011, ASEAN member states and China adopted the Guidelines to Implement the DOC (Declaration on Conduct of Parties in the South China Sea) after seven years of discussions. These Guidelines were adopted only after ASEAN dropped its insistence on prior consultations. The compromise wording in the Guidelines read that ASEAN would “promote dialogue and consultation among the parties.” A new point was added to the final agreement on the DOC Guidelines specifying that activities and projects carried out under the DOC should be reported to the ASEAN-China Ministerial Meeting.1 In all other respects the final guidelines were word for word the same as the original ASEAN draft tabled in 2005. The adoption of the DOC Guidelines led ASEAN officials to consider how to implement a clause in the 2002 DOC to adopt ‘a code of conduct in the South China Sea… on the basis of consensus’.2 In November 2011, ASEAN Senior Officials began discussions on a separate draft ASEAN Code of Conduct. To assist this process the Philippines circulated an informal working draft simply titled, ‘Philippines Draft Code of Conduct’ in January 2012. ASEAN senior officials held discussions with the intention of reaching a common position before presenting it to China.
*

Emeritus Professor, The University of New South Wales at the Australian Defence Force Academy, Canberra. Director of Thayer Consultancy. Email: c.thayer@webone.com.au. Publications: Scribd.com.
1 2

Guidelines to Implement the DOC, http://www.aseansec.org/documents/20185-DOC.pdf.

Declaration on Conduct of Parties in the South China Sea, November 4, 2002, Point 10. http://www.aseansec.org/13163.htm.

3 China insisted, however, that the DOC Guidelines should be implemented before discussing the COC. China also stated it would discuss the COC with ASEAN only at an ‘appropriate timing’ or when ‘appropriate conditions’ were met.3 In January 2012, ASEAN and Chinese Senior Officials commenced discussions in Beijing on the implementation of the DOC Guidelines. This meeting agreed to set up four expert committees on maritime scientific research, environmental protection, search and rescue, and transnational crime. These committees were based on four of the five cooperative activities included in the 2002 DOC. Significantly no expert committee on safety of navigation and communication at sea was established due to its contentious nature. Not one single cooperative project has been undertaken so far. As ASEAN discussions on the COC progressed China altered its position and sought to join ASEAN in drafting the COC. China’s demarche became a contentious issue within ASEAN. At the 20th ASEAN Summit in Phnom Penh in April 2012, Cambodia, the ASEAN Chair, pushed for China’s inclusion in ASEAN discussions. The Philippines and Vietnam objected strongly and a compromise was reached. It was agreed that ASEAN would proceed on its own to draft a COC, while communication with China would take place through appropriate ASEAN mechanisms, presumably the ASEAN Chair. On 13 June 2012 a special ASEAN Working Group reached agreement on key elements to be included in ASEAN’s draft COC after seven meetings.4 This document was formally approved by a meeting of ASEAN Senior Officials in Phnom Penh (6-7 July). The draft was transmitted to ASEAN Foreign Ministers for their approval. On 9 July 2012, at the 45th ASEAN Ministerial Meeting (AMM) plenary session foreign ministers unanimously reached agreement on ‘Proposed Elements of a Regional Code of Conduct in the South China Sea (COC) between ASEAN Member States and the People’s Republic of China’.5 After the contretemps at the 45th AMM, 6 Indonesia’s Foreign Minister Marty Natalegawa initiated consultations with other members of ASEAN in an effort to restore unity behind a common position. Marty conducted an intense round of shuttle diplomacy flying to five capitols (Manila, Hanoi, Bangkok, Phnom Penh and Singapore) over a two-day period (18-19 July). Marty and his Philippines counterpart, Albert del
3

Carlyle A. Thayer, ‘Sovereignty Disputes in the South China Sea: Diplomacy, Legal Regimes and Realpolitik’, Paper presented to the International Conference on Topical Regional Security Issues in East Asia, co-sponsored by the Faculty of Asian and African Studies and the Ho Chi Minh Institute, St. Petersburg State University, St. Petersburg, Russian Federation, April 6-7, 2012, 7. http://www.scribd.com/doc/88337137/Thayer-Sovereignty-Disputes-in-the-South-China-Sea-DiplomacyLegal-Regimes-and-Realpolitik.
4 5

Estrella Torres, ‘Manila tack on China row wins Asean nod’, Business Mirror, July 13, 2012.

Carlyle A. Thayer, ‘ASEAN’s Code of Conduct (Unofficial)’, Thayer Consultancy Background Brief, July 11, 2012. http://www.scribd.com/doc/101698395/Thayer-ASEAN’s-Code-of-Conduct-Unofficial.
6

These are reviewed in detail in Carlyle A. Thayer, ‘ASEAN’S Code of Conduct in the South China Sea: A Litmus Test for Community-Building?’, The Asia-Pacific Journal, Vol. 10, Issue 34, No. 4, August 20, 2012, 1-23. http://www.japanfocus.org/-Carlyle_A_-Thayer/3813.

4 Rosario, agreed to a six-point proposal that Marty then put to the other foreign ministers. After he obtained their unanimous agreement Cambodia’s foreign minister, as ASEAN Chair, officially released ASEAN’s Six-Point Principles on the South China Sea on 20 July. Hor Namhong’s statement reaffirmed the commitment of all ASEAN Foreign Ministers to:       the full implementation of the Declaration on Conduct of Parties in the South China Sea (DOC); Guidelines for the Implementation of the DOC; the early conclusion of a Regional COC in the South China Sea; 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; and peaceful resolution of disputes in accordance the universally recognized principles of international law including the 1982 UNCLOS.

At the ASEAN Retreat held after the 45th AMM on 9July 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. Marty presented his non-paper, titled a ‘Zero Draft COC’, to ASEAN Foreign Ministers on the sidelines of the United Nations General Assembly in September 2012. 7 ASEAN diplomatic sources state in private that Indonesia’s proposed Zero Draft COC was discussed but no further action has been taken. 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 Code of Conduct. Brunei, perhaps over optimistically, set October 2013 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 China. ASEAN’s changed dynamics appear to have led to a rethink by Beijing of its approach to Southeast Asia. Beijing appears to be pursuing a policy of improving its relations with ASEAN following the appointment of Wang Yi as foreign minister in March. On 2 April, 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.
7

Mark Valencia, ‘Navigating Differences: What the ‘Zero draft’ Code of Conduct for the South China Sea Says (and Doesn’t Say)’, Global Asia, 8(1), Spring 2003, 72-78 and Carlyle A. Thayer, ‘South China Sea in Regional Politics: Indonesia’s Efforts to Forge ASEAN Unity on a Code of Conduct’, Presentation to Third Annual CSIS Conference on ‘Managing Tensions in the South China Sea’, Center for Strategic & International Studies, Washington, D. C., June 5-6, 2013. http://csis.org/files/attachments/130606_Thayer_ConferencePaper.pdf.

5 ASEAN responded to China’s overture on 11 April 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 8 Conduct in the South China Sea… [emphasis added].

Immediately after the 46th AMM, ASEAN held its 23rd Summit. 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’.9 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/early May Foreign Minister Wang Yi visited Thailand, Indonesia, Singapore and Brunei to discuss the South China Sea issue in advance of the scheduled ministerial meeting. Wang confirmed to his hosts that the COC would be discussed at the next meeting of the ASEAN-China Working Group on the DOC. In early August, Foreign Minister Wang Yi visited Malaysia, Laos, Vietnam, and attended the High-Level Forum on the 10th Anniversary of China-ASEAN Strategic Partnership in Bangkok on 2 August. Foreign Minister Wang used his trip, inter alia, to promote joint development and dialogue on South China Sea matters. He frankly noted that territorial disputes ‘have an impact on China-ASEAN relations in reality’. At a press conference in Hanoi on 5 August Wang Yi 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)…”’. He also stated that early agreement on the COC was unrealistic and would require detailed discussions in order to form consensus. Wang then introduced four new points laying out China’s approach to forthco ming 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…

8

Joint Communiqué 46 ASEAN Foreign Ministers’ Meeting, Bandar Seri Begawan, Brunei Darussalam, 29 30 June 2013. http://www.asean.org/news/asean-statement-communiques/item/joint-communique46th-asean-foreign-ministers-meeting-bandar-seri-begawan-brunei-darussalam-29-30-june-2013.
9

th

Chairman’s Statement of the 22 ASEAN Summit, ‘Our People, Our Future Together,’ Bandar Seri Begawan, April 24-5, 2013, http://www.asean.org/news/asean-statementcommuniques/item/chairmans-statement-of-the-22nd-asean-summit-our-people-our-future-together.

nd

6
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, 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 10 consultations, and push it forward in a step-by-step approach.

After Wang’s visit, ASEAN officials held a preparatory informal meeting in Hua Hin, Thailand (14-15 August) to prepare for the special ASEAN-China talks scheduled for later in the month in Beijing. The meeting discussed how the DOC and COC could be developed together. After the meeting a Thai foreign ministry spokesperson stated that ASEAN Foreign Ministers agreed, ‘to speak in one voice’ while seeking ‘early conclusion of a code of conduct’. The special China-ASEAN talks were held from 28-30 August. ASEAN and China are scheduled to begin their first consultations on the COC at the 6th China-ASEAN Senior Officials Meeting and the 9th Joint Working Group Meeting on Implementation of the DOC in Suzhou, Jiangsu province, from 14-15 September. This is just prior the CICP conference.

ASEAN Political-Security Community
Since its establishment in 1967 ASEAN has sought to promote the twin goals of Southeast Asian autonomy and ASEAN’s centrality in the region’s security affairs. As an example of the former, ASEAN adopted the Zone of Peace, Freedom and Neutrality Declaration in 1971, the Treaty of Amity and Cooperation (TAC) in 1976 and the Southeast Asia Nuclear Weapons Free Zone Treaty (SEANWFZ) in 1995. As an example of the latter, ASEAN initiated the ASEAN Regional Forum in 1994, the East Asia Summit in 2005, the ASEAN Defence Ministers’ Meeting Plus (ADMM Plus) in 2010, and the Enlarged ASEAN Maritime Forum in 2012. ASEAN’s attempt to promote Southeast Asian autonomy and its central role in security affairs often comes under stress due to the centrifugal forces resulting from SinoAmerican rivalry as each pursues its own engagement strategies with the region. No where is this more apparent than in the maritime domain where tensions in Sino-U.S. relation have impacted on ASEAN’s efforts to negotiate a binding COC agreement with China. Maritime security has now emerged as ta major issue facing ASEAN and its relations with the major powers. The reality of ASEAN-centric multilateral security cooperation is that it co-exists and overlays the security alignments of its individual members. The Philippines and Singapore pursue close defence relations with the United States, as a treaty ally and
10

‘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.

7 strategic partner, respectively. Thailand, whose alliance with the United States went into disrepair following the 2006 military coup, recently revitalized its defence ties with the U.S. in a Joint Vision Statement. But Thailand hedges in its relations with China. The United States strategy of rebalancing has singled out Indonesia, Malaysia and Vietnam as emerging powers and potential strategic partners. All three countries, plus Brunei, pursue hedging strategies towards China while developing defence ties with the United States. Cambodia bandwagons with China for economic benefit. Myanmar, once dependent on China, is rapidly developing economic and security ties with the United States. Laos hedges its relations with China by developing ties with Thailand and Vietnam. ASEAN’s ten members may be divided into three groups regarding the South China Sea issue: the claimant states (Vietnam, the Philippines, Malaysia and Brunei), the nonclaimant maritime states (Indonesia and Singapore), and the mainland states (Thailand, Cambodia, Myanmar and Laos). The four claimant states may be further sub-divided into the front line states (the Philippines and Vietnam) and the non-front line states (Brunei and Malaysia). The former are proactive in resisting Chinese assertiveness, while the latter maintain a very low-key profile. ASEAN’s goal of creating an ASEAN Political-Security Community by the end of 2015 has been an evolutionary process of constructing a common regional security outlook while respecting the sovereignty of its individual members. As early as 1976, with the adoption of the ASEAN Treaty of Amity and Cooperation, Article 14 made provision for a High Council formed by ministerial representatives from each member ‘to take cognizance of the existence of disputes or situations likely to disturb regional peace and harmony’.11 In 1997, ASEAN Vision 2020 envisioned ‘a concert of Southeast Asian Nations, outward looking, living in peace, stability and prosperity, bonded together in partnership in dynamic development and in a community of caring societies’.12 In 1998 the Hanoi Plan of Action (1999-2004) set out in considerable detail seventeen proposals to strengthen regional peace and security including:
  7.6 Encourage greater efforts towards the resolution of outstanding problems of boundaries delimitation between ASEAN member states. 7.12 Encourage ASEAN Member Countries parties to a dispute to engage in friendly negotiation and use the bilateral and regional processes of peaceful settlement of dispute or other procedures provided for in the U.N. Charter. 7.13 Enhance efforts to settle disputes in the South China Sea through peaceful means among the parties concerned in accordance with universally recognized international law, including the 1982 U.N. Convention on the Law of the Sea. 7.14 Continue efforts to promote confidence-building measures in the South China Sea between and among parties concerned.

11

ASEAN Treaty of Amity and Cooperation in Southeast Asia, February 24, 1976. http://www.asean.org/news/item/treaty-of-amity-and-cooperation-in-southeast-asia-indonesia-24february-1976-3.
12

ASEAN Vision 2020, December 14-16, 1997.http://www.asean.org/news/item/asean-vision-2020.

8
   7.15 Encourage all other parties concerned to subscribe to the ASEAN Declaration on the South China Sea. 7.16 Promote efforts to establish a regional code of conduct in the South China Sea among the parties directly concerned. 7.17 Intensify intra-ASEAN security cooperation through existing mechanisms among foreign affairs 13 and defense officials.

The 9th ASEAN Summit was held in Indonesia in 2003. It adopted the Declaration of ASEAN Concord II (or Bali Concord II) and set the goal of creating ‘a dynamic, cohesive, resilient and integrated ASEAN Community by 2020’.14 In 2007 this deadline was advanced to 2015. The ASEAN Community was to be based on three pillars: Security Community, Economic Community and Socio-Cultural Community. The 2004 Plan of Action for the ASEAN Security Community (ASC) clearly revealed that national sovereignty trumped collective identity at this stage of ASEAN’s development. The Plan of Action stated:
The ASC [ASEAN Security Community] promotes an ASEAN-wide political and security cooperation in consonance with the ASEAN Vision 2020 rather than a defence pact, military alliance or a joint foreign policy. The ASC Plan of Action is mutually-reinforcing with bilateral cooperation between ASEAN Member Countries while recognising the sovereign rights of the Member Countries to pursue their individual foreign policies and defence arrangements. In addressing future security challenges, ASEAN Member Countries share the responsibility for strengthening peace, stability and security of the region free from foreign military interference in any form or manifestation. The ASC shall contribute to the further promotion of peace and security in the wider Asia Pacific region. In this regard, the ASC is open and outward looking, engaging ASEAN's friends and Dialogue 15 Partners to promote peace and stability in the region...

The Plan of Action also included references to the South China Sea under the section on sharing norms:
Ensuring the implementation of the Declaration on the Conduct of Parties in the South China Sea (DOC) through, inter alia: a. Establishing an ASEAN–China Working Group on the Implementation of the DOC; b. Establishing a review mechanism on the implementation of the DOC; and c. Working towards the adoption of the Code of Conduct in South China Sea (COC).

The Plan of Action contained an Annex listing future activities including the adoption of an ASEAN Charter to ‘reaffirm ASEAN's goals and principles in inter-state relations, in particular the collective responsibilities of all ASEAN Member Countries in ensuring non 13

The Hanoi Plan of Action was adopted by the 6 ASEAN Summit of heads of government/state on December 15, 1998. http://www.asean.org/news/item/ha-noi-declaration-of-1998-16-december-1998.
14

th

Declaration of ASEAN Concord II (Bali Concord II), Bali, Indonesia, October 7, 2003. http://www.asean.org/news/item/declaration-of-asean-concord-ii-bali-concord-ii.
15

ASEAN Security Community Plan of Action was adopted by the 10 ASEAN Summit in Vientiane, Laos, 29-30 November 2004. https://www.google.com.au/#q=Plan+of+Action+for+the+ASEAN+Security+Community +.

th

9 aggression and respect for each other's sovereignty and territorial integrity… the maintenance of political stability, regional peace and economic progress; and the establishment of effective and efficient institutional framework for ASEAN’.16 ASEAN took a major step forward towards creating an ASEAN Community with the coming into force of the ASEAN Charter in 2008. The Charter gave ASEAN a ‘legal personality’ and enabled it to negotiate with external parties. The Preamble declared that ASEAN was ‘bound by geography, common objectives and shared destiny’. The ASEAN Charter set out its purposes as:
Maintain and enhance peace, security and stability and further strengthen peace-orientated values in the region Enhance regional resilience by promoting greater political, and security cooperation To promote an ASEAN identity To maintain the centrality and proactive role of ASEAN as the primary driving force in its relations and cooperation with its external partners in a regional architecture that is open, transparent and 17 inclusive.

The ASEAN Charter set out a set of principles that balanced national sovereignty and collective responsibility. On the one hand, the Charter listed ‘respect for the independence, sovereignty, equality, territorial integrity and national identity of all members’ and ‘collective responsibility in enhancing regional peace, security and prosperity’ among its principles. Other relevant principles included:
Respect for every member to lead its national existence free from external interference, subversion and coercion Enhanced consultations on matters seriously affecting the common interest of ASEAN Centrality of ASEAN in external political, economic, social and cultural relations.

Finally, the ASEAN Charter declared that ‘ASEAN shall maintain and establish dispute settlement mechanisms in all fields of ASEAN Cooperation’. In the case where there is no existing dispute settlement instrument, the Charter proscribed the creation of an ‘appropriate mechanism’ including arbitration. The Chairman of ASEAN or the ASEAN Secretary General were empowered to offer their good offices or mediation. Disputes that could not be resolved were to be referred to the ASEAN Summit, composed of the ASEAN heads of state/heads of government for resolution. In 2009 ASEAN adopted the ASEAN Political-Security Community Blueprint setting out three major objectives: a rules-based Community of shared values and norms; a cohesive, peaceful, stable and resilient region with shared responsibility for

16

Annex for ASEAN Security Community Plan of Action. http://www.asean.org/news/item/annex-forasean-security-community-plan-of-action.
17

The ASEAN Charter. http://www.asean.org/archive/publications/ASEAN-Charter.pdf.

10 comprehensive security; and (3) a dynamic and outward-looking region in an increasingly integrated and interdependent world. 18 Between 2003 and 2012 ASEAN made concrete progress on attaining some of its objectives and goals. In May 2006 the ASEAN Defence Ministers met for the first time and began the process of institutionalizing defence cooperation on a regional basis. The ASEAN Defence Ministers became a formal part of the ASEAN Political-Security Council established by the ASEAN Charter. The ASEAN Defence Ministers Meeting (ADMM) became the capstone over what had been informal meetings of the army, air force, navy and military intelligence chiefs. In 2010, ASEAN established the ASEAN Maritime Forum (AMF) under the terms of the ASEAN Political Security Community Blueprint.19 The AMF is focused on a comprehensive approach to maritime issues.20 In October 2012, the AMF agreed to establish the Expanded ASEAN Maritime Forum by including its eight dialogue partners. ASEAN also established the Inter-Sessional Meeting (ISM) on Maritime Security under the auspices of the ASEAN Regional Forum. The ISM on Maritime Security’s Work Plan on Maritime Security was approved at the 44th ASEAN Ministerial Meeting in July 2011.21 It focuses on information sharing, capacity building, and training rather than practical activities such as South China Sea CBMs. More significantly, in October 2010 ASEAN inaugurated the triennial ASEAN Defence Ministers Meeting Plus (ADMM Plus). This meeting approved the creation of the ASEAN Defence Senior Officials Meeting Plus (ADSOM Plus) and five expert working groups.22 A year after their establishment, the terms of reference for the ADMM Plus Expert s’ Working Groups were approved. These groups will now report their deliberations to the ADSOM Plus. The second ADMM Plus met in Brunei in 2013; the ADMM Plus will now meet every two years. The 46th AMM reviewed progress on the ASEAN Political-Security Community and South
18

ASEAN Political-Security Community Blueprint http://www.asean.org/archive/5187-18.pdf.
19

(Jakarta:

ASEAN

Secretariat,

June

2009.

Hanoi Plan of Action to Implement the ASEAN Regional Forum Vision Statement, May 20, 2010, Point 3. http://aseanregionalforum.asean.org/files/library/ARF%20Chairman's%20Statements%20and%20Reports /The%20Seventeenth%20ASEAN%20Regional%20Forum,%202009-2010/Annex21ARF%20POA%20(endorsed%20by%20ARF%20SOM%2017[1].00%2020%20May%202010).pdf.
20

‘Chair’s Statement of the 19 Cooperation).
21

th

ASEAN Summit, Bali, November 17, 2011’, Points 14-17 (Maritime

ASEAN Regional Forum, ‘Draft Outline of a Work Plan on Maritime Security: A Template for Discussion’, nd 2 ARF ISM on Maritime Security, Auckland, March 29-31, 2010; ‘Co-Chairs’ Summary of the Third ARF th Inter-Sessional Meeting on Maritime Security, Tokyo, Japan, 14-15 February 2011”; and ‘44 th th AM/PMC/18 ARF, Indonesia 2011, Chair’s Statement, 18 ASEAN Regional Forum, 23 July 2011, Bali, Indonesia’, Point 41.
22

Humanitarian Assistance and Disaster Relief; Maritime Security; Peacekeeping; Counter-Terrorism; and Military Medicine.

11 China Sea dispute. A Joint Statement issued after the AMM declared with respect to the ASEAN Political-Security Community:
21. Recognising that maritime security, including maritime safety, is crucial to a vibrant, peaceful, stable and resilient Southeast Asia, we encouraged the strengthening of regional cooperation in maritime security through, inter alia, capacity building, exchanging of experiences and sharing of best practices by utilising existing ASEAN frameworks, including the ASEAN Regional Forum (ARF), the ASEAN Defence Ministers’ Meeting-Plus (ADMM-Plus), the ASEAN Maritime Forum (AMF)/Expanded 23 ASEAN Maritime Forum (EAMF).

This Joint Statement noted with respect to the South China Sea:
91. We looked forward to continued engagement with China in the full and effective implementation of the DOC in all its aspects. We would continue carrying out mutually agreed joint cooperative activities and projects in accordance with the Guidelines for the Implementation of the DOC. We stressed the need to maintain the positive momentum on dialogue and consultations following the th th 19 ASEAN-China Senior Officials Consultations and 8 ASEAN-China Joint Working Group on the th Implementation of the DOC. Taking into account the importance of the 10 anniversary of the ASEANChina 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, which will serve to enhance peace, stability and prosperity in the region (emphasis 24 added).

It should be noted that China has only agreed to consultations on the COC within the framework of a working level group on the DOC.

How to Achieve a Code of Conduct in the South China Sea?
As noted above, ASEAN and Chinese Senior Officials are poised to commence consultations on the COC under the umbrella of the Working Group to Implement the DOC on 14-15 September 2013. China insists that the DOC and COC processes are interrelated and can only proceed once progress has been made in implementing cooperative activities listed in the DOC. Yet, at the same time, China has indicated that quick agreement on the COC is unrealistic. In order for ASEAN to achieve a COC in the South China Sea it should separate the DOC discussions from the COC discussions. In August 2013, at the special China-ASEAN talks, Malaysia’s Foreign Minister Datuk Seri Anifah Aman stated, ‘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’.25 In order for the DOC talks to commence China must clarify if recognition of its sovereignty claims in the South China Sea is a prerequisite for the commencement of
23

Joint Communiqué
46 ASEAN Foreign Ministers’ Meeting Bandar Seri Begawan, Brunei Darussalam June 29-30, 2013
24

th

Joint Communiqué
46 ASEAN Foreign Ministers’ Meeting Bandar Seri Begawan, Brunei Darussalam June 29-30, 2013.
25

th

‘South China Sea issues must be managed through dialogue: Anifah’, The Sun Daily, August 30, 2013. http://www.thesundaily.my/news/816837.

12 cooperative activities in the South China Sea. The 2002 DOC makes provision for five cooperative activities: marine environmental protection; marine scientific research; safety of navigation and communication at sea; search and rescue operation; and combating transnational crime, ‘including but not limited to trafficking in illicit drugs, piracy and armed robbery at sea, and illegal traffic in arms’. Only four expert working groups have been set up. ASEAN should insist that a fifth expert working group on safety of navigation and communication at sea be established. These working groups must determine exactly where China will agree to conduct cooperative activities. At the same time ASEAN should commission a group of Southeast Asian experts to form a study group to research and report on various proposals for confidence building and cooperation. This group should be explicitly charged with exploring the historical record to determine if in fact confidence-building measures are likely to lead to trust and hence address the core security issues raised by territorial disputes in the South China Sea. 26 Because China has indicated that the consultation process will take a long time ASEAN should proceed to reach consensus on its own draft COC in order to present a united front in consultations with China. ASEAN officials at working group level should be tasked with polishing Indonesia’s Zero Draft Regional Code of Conduct into a final draft. This should then be passed to ASEAN Senior Officials and then Foreign Ministers for their approval. This draft should then be presented to government leaders at an ASEAN Summit. Once approved this document should be circulated to all of ASEAN’s dialogue partners for endorsement. ASEAN-China consultations/negotiations on a DOC/COC are necessary but not sufficient to obtain a binding Code of Conduct. ASEAN’s dogged focus on negotiating a binding COC with China in the South China Sea, while an important security goal, is fundamentally a misplaced priority. Negotiations between China and ASEAN on a COC have resulted in the division of ASEAN into two groups, claimants and non-claimants, and make it extremely difficult for ASEAN to adopt a common policy. This approach also allows China to play on differences among ASEAN members and drag out not only discussions on DOC cooperative measures but on the COC as well. This provides China the time to consolidate its presence and hence control over waters and features in the South China Sea. Negotiating a COC in the South China Sea with China is too restrictive geographically. International law, and the United Nations Convention on the Law of the Sea (UNCLOS), covers the world’s oceans and maritime domains not just the South China Sea. ASEAN26

Carlyle A. Thayer, ‘Do Confidence Building Measures Really Address the Major Challenges to Maritime th Security?’, Presentation to Joint Meeting of the 36 Australia Council for Security Cooperation in Asia and the Pacific Meeting (AUS CSCAP) and ANU Centre of Excellence in Policing and Security (ANU-CEPS) Maritime Expert Networks Meeting, The Australian National University, Canberra, March 22-23, 2012. http://www.scribd.com/doc/91612112/Thayer-South-China-Sea-Do-Confidence-Building-MeasuresAddress-Major-Challenges-to-Maritime-Secuirty-in-the-South-China-Sea.

13 China discussions on a South China Sea COC do not cover Southeast Asian waters outside of the South China Sea. In fact, as difficulties over negotiating accession of nuclear powers to the Southeast Asia Nuclear Weapons Zone Treaty indicate, there is no agreement over what constitutes the geographic area covered by the South China Sea. Southeast Asia’s maritime domain encompasses not only the South China Sea and Gulf of Thailand but also the waters and seas surrounding the littoral and archipelagic states. This is a vast area encompassing the Exclusive Economic Zones of all ten of Southeast Asia’s states (including Timor-Leste). Southeast Asia is roughly divided between its land mass and maritime domain. The majority of Southeast Asia’s population lives in the coastal strip adjacent to the sea. The fish in the South China Sea are a vital source of protein for the diet of Southeast Asia’s population. The sea is important for other natural resources such as oil and gas. Southeast Asian waters are vital for transport, trade and commerce for regional states as well as external powers. In sum, important issues of human, food and energy security are at stake. These issues are interrelated. ASEAN littoral states encounter difficulties in developing the resources that lie in their EEZs due to China’s nine-dash line ambit claim over approximately eighty percent of the South China Sea. Sino-U.S. strategic rivalry may exacerbate regional insecurity and make exploitation of South China Sea resources more difficult. Because ASEAN-China discussions on the COC are likely to be protracted if not interminable, ASEAN needs to acquire leverage. At the same time as ASEAN negotiates the separation of DOC and COC consultations into two separate set of negotiations, and clarifies China’s policy on DOC cooperative activities, it should begin negotiation among its members on a Southeast Asia Maritime Treaty of Peace, Cooperation and Development (hereafter the Southeast Asia Maritime Treaty). The Southeast Asia Maritime Treaty proposal is based on two premises. First, the security of the maritime domain in Southeast Asia is indivisible for all ASEAN members, whether coastal or landlocked. The Treaty would make all ASEAN members equal stakeholders. This would overcome the present division of ASEAN states into claimant and non-claimant states with respect to the South China Sea. Second, international law, including the United Nations Convention on Law of the Sea, applies equally throughout Southeast Asia’s maritime domain and not just the South China Sea. It is applicable to all states. The adoption of the Southeast Asia Maritime Treaty would reinforce ASEAN’s corporate and legal identity and enhance its ability to deal with external powers. It would give ASEAN the needed leverage in dealing with China. The Southeast Asia Maritime Treaty should form an integral part of the ASEAN PoliticalSecurity Community. As the discussion in section above illustrates, ASEAN has laid the foundation for considering a common policy on security issues that impact on the region as a whole. It should be recalled that ASEAN adopted a common diplomatic position in support of Thailand, a front-line state during the period of Vietnam’s intervention in

14 Cambodia (1978-91). ASEAN agreement on the Southeast Asia Maritime Treaty could be the start of other agreements that address security issues affecting ASEAN member states. For example, ASEAN could adopt a declaration on sustainable development in the Lower Mekong to address concerns of its riparian state members. This treaty would be designed to resolve Southeast Asia’s numerous unresolved maritime boundary and maritime territorial disputes. Regional maritime disputes involve both claims to sovereignty over islands and features and sovereign rights over resources in the sea and continental shelf. The purpose of The Southeast Asia Maritime Treaty would be to resolve these disputes peacefully, in accord with international law. In other words, ASEAN can best position itself by first getting its own house in order with respect to maritime disputes among its members. This would enhance ASEAN’s unity and cohesion and better enable ASEAN to promote Southeast Asia’s autonomy and ASEAN’s centrality in the region’s security affairs. All ASEAN states should bring their maritime claims into accord with international law, with particular attention to eliminating excessive baselines. States should then demarcate the territorial sea, contiguous zone, EEZ and continental shelf. States should also clearly distinguish islands from rocks for purposes of maritime delimitation.27 The expertise of an independent panel of technical and legal experts could be called upon to assist in that determining base lines and the classification of islands and rocks conform to international law. States should also indicate what land and other features in the maritime domain that they claim sovereignty over. A special ASEAN Commission should review claims to islands to ensure that they conform to international law and are not being used to claim excessive maritime jurisdiction. Once this process is completed all states should enter into negotiations to resolve outstanding disputes where maritime zones overlap or where there are conflicting sovereignty claims to land features. States should agree to a deadline after which, if any dispute is unresolved, they agree to arbitration under the ASEAN High Council, the provisions under UNCLOS (International Tribunal on Law of the Sea or International Court of Justice), or other mutually agreed procedure.28
27

A ruling on the Philippine claim to the UN Arbitral Tribunal on this point would greatly assist the process of determining baselines and classifying rocks, islands and other features. See: Carlyle A. Thayer, ‘The Philippines’ Claim to the UNCLOS Arbitral Tribunal: Implications for Viet Nam’, Presentation to International Workshop on The Sovereignty Over Paracel and Spratly Archipelagoes – Historical and Legal Aspects, Pham Van Dong University, Quang Ngai City, Vietnam, April 27-28, 2013. http://www.scribd.com/doc/138615869/Thayer-The-Philippines-Claim-to-the-UNCLOS-Arbitral-TribunalImplications-for-Viet-Nam.
28

Indonesia and Malaysia took their dispute over Ligitan and Sipadan islands to the International Court of Justice (ICJ) which ruled on 17 December 2002; Malaysia and Singapore took their dispute over Pedra Branca/Pulau Batu Puteh and Middle Rocks to the ICJ which ruled on 23 May 2008; and Bangladesh and Myanmar revolved their maritime delimitation dispute through the International Tribunal for the Law of the Sea, which ruled on 14 March 2013.

15 All parties to the Southeast Asia Maritime Treaty should commit themselves to demilitarising the features (islands and rocks) that they physically occupy, including the prohibition of deploying specified types of weapon systems such as land based anti-ship missiles. The Southeast Asia Maritime Treaty should also contain provisions for all parties to cooperate in: marine scientific research, marine pollution, fisheries management, search and rescue, anti-piracy and other agreed areas. For purposes of security, including protection against piracy and armed criminals, police or coast guard personnel may be stationed on occupied features. An agreement should be developed for cooperation among these agencies in the maritime domain. The Southeast Asia Maritime Treaty should include provision for setting up a body to oversee its implementation and to handle complaints and disputes that may arise. Such a body could be included under the ASEAN Political-Security Community Council or the ASEAN High Council Who should be included in The Southeast Asia Maritime Treaty? What area should it cover? The Southeast Asia Maritime Treaty should include all ten ASEAN members and future members such as Timor-Leste. The Treaty should cover Southeast Asia’s entire maritime domain - not just the South China Sea - in a manner analogous to the Zone of Peace Freedom and Neutrality (1971), Treaty of Amity and Cooperation (1976) and Southeast Asia Nuclear Weapons Free Zone Treaty (1995). The Treaty should be open to accession to ASEAN’s dialogue partners and other maritime powers. In order to prevent one state from seeking advantage over another, ASEAN should follow the precedent set for the SEANWFZ Treaty: accept individual offers of accession but wait until a critical mass is reached before granting approval.

Conclusion
The security environment is Southeast Asia is overlayed by three competing patterns of security cooperation: U.S.-led alliances and security networks; China’s exclusivist East Asia security framework; and ASEAN-centric security cooperation.29 ASEAN can best negotiate a binding Code of Conduct with China by dividing consultations on the DOC and COC into two separate negotiating streams at Senior Official Level. In order to gain leverage for these negotiations ASEAN should develop its own draft COC in tandem with discussions with China on a final binding Code of Conduct. In the face of the historical record of China’s procrastination and use of delaying tactics to divide ASEAN members while consolidating China’s presence in the South China Sea, ASEAN needs to develop greater leverage. This can be accomplished by negotiating a
29

A fourth pattern of security cooperation among middle powers, exemplified by the Five Power Defence Arrangements, is not discussed in this paper. See: Carlyle A. Thayer, Southeast Asia: Patterns of Security Cooperation (Canberra: Australian Strategic Policy Institute, 2010), 13-30. http://www.aspi.org.au/publications/publication_details.aspx?ContentID=268.

16 Southeast Asia Maritime Treaty of Peace, Cooperation and Development among its members. ASEAN should then open this Treaty to accession by its dialogue partners and other maritime states. The Southeast Asia Maritime Treaty will enable ASEAN to assert its centrality in regional security affairs. At the same time, ASEAN should seek to streamline the existing regional security architecture to come under the direction of the East Asia Summit. These steps will give ASEAN additional leverage in negotiating a binding Code of Conduct with China.