Thayer Consultancy Background Briefing

:
ABN # 65 648 097 123
South China Sea: Pros and Cons
of ASEAN’s Code of Conduct
Carlyle A. Thayer
August 15, 2017

We request your assessment of ASEAN’s South China Sea Code of Conduct.
Q1. What are the pros and cons of the Code of Conduct?
ANSWER: The ASEAN-China Code of Conduct (COC) is supposed to be a code for state
behavior in the South China Sea pending settlement of disputes over sovereignty over
land features (islands and rocks) and delimitation of maritime zones that these land
features are entitled to under the United Nations Convention on the Law of the sea
(UNCLOS).
The pros of a Code of Conduct are: it can incorporate existing international
conventions to which all eleven parties (ten ASEAN members plus China) have already
ratified; include existing agreements such as CUES (Code for Unplanned Encounters at
Sea) and the Declaration on Conduct of Parties in the South China Sea (DOC); and the
principles and norms of state behavior such as self-restraint, non-occupation of
presently unoccupied features and no use of force or the threat of force.
The COC would be strengthened if it included (1) a precise definition of the
geographical scope of coverage; it could take the definition of the South China Sea by
the International Hydrographic Organization for example (from north of Taiwan to the
entrance to the Straits of Malacca etc.), (2) mechanisms to resolve differences of
interpretation of the COC, (3) a binding and enforceable dispute settlement
mechanism, and (4) was legally binding through ratification by national legislatures
and deposited with the United Nations.
The cons of the COC is that it can only be adopted if there is a consensus by all eleven
state parties. This will mean compromise and watering down provisions and leaving
loop holes. The COC will not be able to address outstanding issues such as the
implementation of the Arbitral Tribunal Award in the case the Philippines v China. The
Tribunal found that two Chinese occupied features on which it built 3 kilometer long
runways, Mischief and Subi Reefs, are low-tide elevations and not subject to
appropriation. Low-tide elevations are not entitled to any maritime zone. Nor will the
COC address changing the status quo and attempt to reverse China’s militarization.
China would be free to put 24 modern jet fighters on each of its three airfields plus up
to 12-13 bombers, refueling aircraft, maritime reconnaissance patrol aircraft and anti-
air missiles and anti-ship cruise missiles.
2

Q2. Is China just going to ignore it?
ANSWER: China will not agree to anything that restricts its self-perceived sovereignty
over all the land features and waters encompassed within its nine-dash line. Rather
than ignore the COC China will use lawfare to impose “international law with Chinese
interpretations” on the other parties. China will never admit a breach of the COC and
it will use its considerable power and influence to cow the other parties into being
compliant.
Q3. Is ASEAN too weak to force China?
ANSWER: ASEAN is not a collective security arrangement. Only a few ASEAN members
are in direct dispute with China and none of them will come to the aid of the other in
the event of a dispute or a conflict. The Philippines has chosen to put its head in the
sand and ignore its disputes. Brunei does nothing. Malaysia just stands guard watching
Chinese Coast Guard ships that have taken up station near Luconia Shoal. Vietnam has
been isolated and it does not have sufficient ships with sufficient tonnage and
armament to oppose China. Indonesia officially claims it is not a party to the dispute
and has the means to deal with illegal unreported and illegal fishing in its waters.
All the other ASEAN states are not in dispute with China. Cambodia is a Chinese
surrogate by choice.
ASEAN ministers are engaged in foolish consistency1 in trying to get China to agree to
a binding Code of Conduct. The process will be protracted and Beijing is hoping the
game (stability in the South China Sea) is not worth the candle2 (the physical effort to
keep China in check) for the United States.

Suggested citation: Carlyle A. Thayer, “South China Sea: Pros and Cons of ASEAN’s
Code of Conduct,” Thayer Consultancy Background Brief, August 15, 2017. All
background briefs are posted on Scribd.com (search for Thayer). To remove yourself
from the mailing list type, UNSUBSCRIBE in the Subject heading and hit the Reply key.

Thayer Consultancy provides political analysis of current regional security issues and
other research support to selected clients. Thayer Consultancy was officially
registered as a small business in Australia in 2002.

1
Ralph Waldo Emmerson. “A foolish consistency is the hobgoblin of little minds, adored by little
statesmen and philosophers and divines.”
2
Game not worth the candle; this phrase relates to games that were thought so lacking in merit that it
wasn't worth the expense of a candle to create enough light to partake in them. The era before
electricity when candles were an expensive source of lighting.