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Thayer Consultancy Background Briefing:

ABN # 65 648 097 123

South China Sea: Background to
ASEAN-China Code of Conduct
Carlyle A. Thayer
April 26,2017

This Bockground Brief releoses for the first time the text of draft codes of conduct
exchanged between ASEAN and Chino in Morch 2000, an onolysis of their content, ond
why disogreement over specific issues could not be overcome. See Appendix.

This week the Philippines will host the 30th ASEAN Summit and Related Meetings from
26-29 April. The ASEAN Summit willtake place in Pasay City on 29 April.
ASEAN and China are will discuss a draft Code of Conduct in the South China Sea
Framework that is expected to be finalized by June 2017. ln the lead up to this week's
meetings the ASEAN-China Joint Working Group on lmplementing the Declaration on
the Conduct of Parties (DOC) in the South China held two meetings. ln April, the 20th
Joint Working Group Meeting was held in Cambodia after which the Chinese Foreign
Ministry stated that "the first draft of the COC has also taken shape."
Historical Background
The Association of South East Asian Nations (ASEAN) first became formally involved in
South China Sea issues in July 1992 when China and Vietnam (not yet a member of
ASEAN) became embroiled in a dispute over oil exploration activities in the area.
ASEAN issued a declaration that urged unnamed parties "to exercise restraint." This
call went unheeded, and both Vietnam and China proceeded to take control of
unoccupied islets and reefs comprising the Spratly archipelago near the Philippines,
Malaysia, and Brunei.
ln late 1994, China sparked another Spratly-related controversy when it occupied the
Philippines-claimed Mischief Reef. This incident marked a turning point. ASEAN
foreign ministers issued their second statement on the South China Sea in which they
expressed their "serious concern" and urged the concerned parties "to refrain from
taking actions that de-stabilize the situation." The Philippines lobbied its fellow
members to adopt a Code of Conduct (COC) that would constrain China from further
encroachment. lt took ASEAN officials nearly five years to agree on a draft ASEAN COC.
By that time China had drawn up its own draft COC.

ln March 2000k ASEAN and China exchanged their respective drafts and agreed to
consolidate them into a final agreed text. Four major areas of disagreement emerged:
the geographic scope, restrictions on construction on occupied and unoccupied

features, military activities in waters adjacent to the Spratly islands, and policies
concerning detainment of fisherman found in disputed waters. After two years of
negotiations, it became evident that an agreement was not possible'
From: Carlyle A. Thayer, "ASEAN, China and the Code of Conduct in the South China Sea," The
Review of In terna tional Affairs, 33(Z),Summer-Fall 2013, 7 5-84'

Draft Codes of Conduct 2000

On 15th March 2OOO, senior officials from China and ASEAN met in Thailand to discuss
for the first time their respective draft codes of conduct for the South China Sea.
ASEAN tabled a seven point code, while China put forth a document containing twelve
points. Both documents advocated cooperation to protect the environment, marine
scientific research, safety of navigation, and search and rescue. Both also urged self-
restraint and no resort to the use or threat of force pending resolution of disputes.
There were significant differences, however. China's draft consists of general
principles, while the ASEAN draft is more specific. One of the major differences is the
scope of geographic coverage. China wants the code confined to the Spratly lslands,
while ASEAN insisted on the inclusion of the Paracels. The status of Scarborough Shoal
was unclear. lt is evident that there were differences within ASEAN on the Paracels.
According to Foreign Secretary Domingo Siazon at a 2nd February press briefing, "if the
area of coverage were limited to (the) Spratlys, I think that I would say that within
three days, our diplomats would be able to find a set of words that would be
acceptable to the contesting parties in the Spratlys."
ASEAN also insisted on a halt to future settlement and construction. Point 2 of the
ASEAN draft code stated, "The parties undertake to refrain from action of inhabiting
or erecting structures in presently uninhabited islands, reefs, shoals, cays and other
features in the disputed areas." China had concerns about "any military exercises
directed against other countries" in or near the Spratlys, and "dangerous and close-in
military reconnaissance." China pushed to attain assurance that its fishermen would
be able to fish in disputed areas of South China Sea. Beijing also proposed that the
claimants "refrain from use or threat of force, or taking coercive measures... against
fishing boats or other civilian vessels engaged in normal operation in the disputed
areas, nor against nationals of other countries thereon." China defined coercive
measures as including "seizure, detention and arrest'"
As of March 2OOO the ASEAN code was an open-ended document that provided for
regular consultation and checking for compliance in order to build trust. lt was not be
legally binding. Disputes between countries would be settled on a bilateral basis.
From: Carlyle A. Thayer, "China-ASEAN: Tensions Promote Discussions on a Code of Conduct,"
Comparatiae Connections: A Quarterty E-lournal on East Asian Bilateral Relations (Honolulu: Pacific
Forum-CSIS),2(1),1.t Quarter, April 2000, 51-60.

ln speech delivered in Jakarta in July 2000, Vice President Hu Jintao stated, "[China]
has put forward the proposal of 'shelving disputes and going for joint development"
in relation to the Spratlys question and has been actively participating in making a
code of conduct for preserving peace and stability in the South China Sea." China
consistently opposes discussing South China Sea territorial conflicts in multilateral

forms. According to an editorial in The Bangkok Post (27 Aug.) at the 7th ARF when
Thailand attempted to raise the Spratly lsland question, "the Chinese slapped down
the Thai proposal brusquely and rudely. Never, they threatened, will Beijing discuss
the Spratlys in a forum - even though six nations claim the archipelago'"
Despite this objection, however, Chinese officials have discussed a code of conduct
with their ASEAN counterparts. ln August, China hosted the third meeting of the
ASEAN-China working group on a code of conduct for the South China Sea in Dalian.
This meeting discussed a consolidated draft code that emerged from discussions held
in Kuala Lumpur in May. The new draft states that the code should be applied to the
Spratly lslands alone but officials are still working on a formulation that will satisfy
both Vietnam (which wants the Paracels included) and China (which wants the
Paracels excluded). China has also tried to insert in the draft code wording which
would in effect restrict U.S. military exercises in the "waters around" the Spratly
lslands. China has also opposed wording that would restrict or prohibit construction
on features in the area. China's position is more vague calling for restraint in "activities
that might complicate and escalate disputes." lt was left to Vietnam, chair of the
ASEAN Standing Committee for the next year, to declare that the China-ASEAN
meeting in Dailan had "reached consensus on some major principles of the East Sea
Code of Conduct... Differences, however, remained." Chinese officials, for their part,
code a political not a legal document. "The major difficulties are not on the Chinese
side," according to a Chinese foreign ministry spokesperson. According to Laurel Baja
the meeting failed to make progress because all of the officials taking part lacked a
mandate. Baja suggested that the issue to taken up by higher-ranking officials possibly
at an ASEAN Senior Officials Meeting in Hanoi in October.
From: Carlyle A. Thayer, "China Consolidates Its Long-Term Bilateral Relations with SoutheastAsia",
Comparative Connections: An E-/ournal on East Asian Bilateral Relations (Honolulu: Pacific
Forum-CSIS), 2(2), znd Quarter, Iuly 2000' 62'72'
htto // Qchina asean.html

Suggested citation: Carlyle A. Thayer, "South China Sea: Background to ASEAN-China

Code ofConduct," Thoyer Consultoncy Background Brief , April 25, 2017 ' All
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i,nr-4c-uu rKl UJ; JO TIl

" i' A,'JEiN o14rr

' rHE ro,f*,"*txA SEA *

.', ,]:

The Hehds of State and Govemmeni of the member statgs.of ASEAN and the

People's Republic of China: , l

coGNIzANT of the need*!c- promote a peaceful. friendty a,id harmonious

environrnent in the South China Sea for the enhancement of stability, economic growth

ancl prosperiiy in the regioh;

COMMTTTED-IQ t-ne spirit and principles of internatigiral law, the Cirafter of the
t r t- z

Uniued trrations, ,n#.i.{crnr.*on on the taw of the;sea, the Treatybf Amity and
Cooperaticn in $ouflreastAs!a. the Five Principles of PeacefutCoexistence, and tfie

ASEAN Declaratioh on the South China Sea;

' REAFFIRUII*e respect for the freedom of navQation and air trbffic in the $outh

china sea, as provided for by intemauonar raw, ncruc *nrn /rf.r{ff*noon on the

Law of the Sea; and

WlSl.llNG TO FURTHEB enhance the principles and.objectives of the 1997 Joint

Statement of the Meeting of the *""0a of State/Government of the Member States of

ASEAN and President of the Peoptes Repubticof China,

flAY-26-00 FRI 03:36 Pt1 P" 03


HEREBY ADOPT the follcnaing CcCe cf Ccnducl in the disputed areas of the

Spratlys and the Paracels in the Souti.r Chin'a Sea, hereinafter referred ro as the

Disputed Area. . :-

: - Ihe Parties concerned undenake to resolve disputes reiating tc sovereignty or

iurisdiction in the Oisputecj Area by peaceful means. wtthout r*:on to ihe use of

force or threat of the use of fcrce, on tt . basis of respect for sovereign!, equalitv

and nnutuai respect among nations, and non-interfereilce into each oihers intemal

affairy, consjsteBt with the recognized principles of intemational iaw. inCuding those
' kte-/
in thd U.N. Convention on the Law of the Sea:
2. The Parties concemed uncertake to refrain frorn adion of inhabiting or erecting
structurcs in presently uninhabiteC islandi, reef,s, shoals, cays and other features in

the Disputed Area."

3. The Parties *ncemed undertake'to bxercjse seif-restraint in the conduct of

aciivities that affect peace and stabiiity in tre Disputed Area and to handle their

cifrerences in a constructive riranner:

4. The Parties concemed unde(ake to intensify efforts to find a comprehensive and

durable solution to the dispuies overthe Disputed Area. Wthout preiudice to


existing claims of sovereignty oi lurisd;ction, the Parties concemed undertake to

seek ways, in the spirit of cooperation and understanding. tc build trusi and

confidence betvreen and arnong them, inciuding:

a. holding dialogues and exchanges of views as approprrate among defense

and rniiitary officials of the Parties concerned;

b. informing voluntarily other parties concerned of significant policies and

measures thai affect the DisRutfArea: and

rrAY-zti-o0 FRt 03:37 Ptl
P. 04

i, i

c" ensuring just and hurnane treatnnent of nationals of other parties ccncerr:ed

who are either in danger or in disirbds in rhe Disouted Area.

5. Without FrEiudice to existing ciainrs of sovereignty or.lurisdiction, the parties

concerned may expiore or undertake-activities in the Disputed Are-a- These may

inclucie the fotlowing:

a. marine environmental protectioh;

b. marine scientifrc research;

c. safety of navigation ano communication;

e. combating transnationat crime. including, but not limited to, Eaffibting in rllic:i

drugs. pirary and aotled- sea, and.-illegat iraffic ia antrs-

.ihe modalities, scope and locations in respect of bilateral and multiiaterat qCIpp,eration

6. The parties concemed undertake !b conduct consultetions and diatogr.*
ccnceming &e Disputed Area thfrrgfmoOatities tc be agreed bythem, inctuding

regular consultations on. the observance of this Code of ConducE for the pr.rrpose cf

promoting good nerghborliness and, estabiishing harmony. rnutuat

)4/24 fr2.-,4>'7
undei?standing and eoopcration; ana ec$tn! peacetur rJorution Ofiffi

disputes arnong ihem.

7- Other counhies and int-lmafionil drganizations are encouraged to subscribe to the

principles contained in this Code of Conduct-

Adopted th;s in the

CCIIE OF Cc:\DUCT gr- .nit SOL:fiI Cli.l:,,,r SE-..

@.e fr.dl'rh a Chir.ese :rcIc),

Thc Ccwe:;reLi cf the P*o;ie,s F.c:rr:piic cf Ci::r:a a;c I:a Ccve..:::;i:j

ci i...- -:rp;T1-a- s:-:cs cf aSE_tq _

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:o;aac., si.b:.IJq/.ac,d E:cs>o-ry ]x ioujr.=s: -+sia-
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:ah=;cc il:urual ff'eedsU.c eai ccope:?.iicc ?:nang peccl: i.-. -I. r"g,*a.
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c:f:renccs src' ijsautcs Lef-l'e :: -is =o r.;';.igs

PIIOCEEDDiC ftert he obiectves a$d ::irciuies ser for-h ir: The 1997
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