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Carlyle A. Thayer, “ASEAN, China and the Code of Conduct,” Presentation to Lawfare and South China Sea Strategy International Workshop, Session 2: The Regional Strategic Context, hosted by the Maritime Security Research Group, School of Humanities and Social Sciences, The University of New South Wales, Canberra, October 14-15, 2019.
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Thayer, ASEAN, China and the South China Sea Code of Conduct
Carlyle A. Thayer, “ASEAN, China and the Code of Conduct,” Presentation to Lawfare and South China Sea Strategy International Workshop, Session 2: The Regional Strategic Context, hosted by the Maritime Security Research Group, School of Humanities and Social Sciences, The University of New South Wales, Canberra, October 14-15, 2019.
Carlyle A. Thayer, “ASEAN, China and the Code of Conduct,” Presentation to Lawfare and South China Sea Strategy International Workshop, Session 2: The Regional Strategic Context, hosted by the Maritime Security Research Group, School of Humanities and Social Sciences, The University of New South Wales, Canberra, October 14-15, 2019.
Presentation to Maritime Security Research Group Workshop: Lawfare and South China Sea Strategy School of Humanities and Social Sciences The University of New South Wales Canberra, 14-15 October 2019 Outline
• 1. Single Draft South China Sea Code of Conduct
Negotiating Text (SDNT)
• 2. Changes to the SDNT after First Reading
• 3. Four Issues that Need to be Resolved
1. Single Draft South China Sea Code of Conduct Negotiating Text
• A compilation of inputs from nine of eleven parties
• Overlapping and conflicting submissions • Military activities • Oil and gas exploration and development • A living document • Three readings • Processes, guidelines and notification protocols to be added Single Draft South China Sea Code of Conduct Negotiating Text Section 1 Preambular Provisions • Not an instrument to settle territorial disputes or maritime delimitation issues Section 2 General Provisions • Sub-section C - Basic Undertakings Section 3 Final Clauses General Provisions 2(c) – Basic Undertakings 1. Duty to cooperate 2. Promotion of practical maritime cooperation 3. Self-restraint/Promotion of Trust and Confidence 4. Prevention of incidents 5. Management of incidents 6. Other undertakings Declaration on Conduct of Parties in the South China Sea Article 6 - Cooperative Activities • a. marine environmental protection; • b. marine scientific research; • c. safety of navigation and communication at sea; • d. search and rescue operation; and • e. combating transnational crime, including but not limited to trafficking in illicit drugs, piracy and armed robbery at sea, and illegal traffic in arms. [illegal unregulated unreported fishing, ASEAN connectivity] China on Cooperation on the Maritime Economy
3(e) Oil and gas exploration and development in
disputed waters shall be carried out through coordination and cooperation among the littoral states to the South China Sea, and shall not be conducted in cooperation with companies from countries outside the region; [CH] Self-Restraint and Promotion of Trust and Confidence DOC Article 5 - Build Trust and Confidence a. holding dialogues and exchange of views as appropriate between their defense and military officials; b. ensuring just and humane treatment of all persons who are either in danger or in distress; c. notifying, on a voluntary basis, other Parties concerned of any impending joint/combined military exercise; and d. exchanging, on a voluntary basis, relevant information. Self-Restraint and Promotion of Trust and Confidence “The Parties shall establish a notification mechanism on military activities, and to notify each other of major military activities if deemed necessary. The Parties shall not hold joint military exercises with countries from outside the region, unless the parties concerned are notified beforehand and express no objection” (CH) • “notifying, on a voluntary basis, other Parties concerned of any impending joint/combined military exercise” (ID) • “Notify other Contracting States of any impending joint/combined military exercise/drill to be taken place within the South China Sea. Such notifications shall be made 60 days before the commencement of such military exercise/drill” (VN) Vietnam’s Seven Do Nots (Replace all other options in 2c) 1. Resort to threat or use of force, coercive actions or any other cruel, inhuman and degrading treatment and punishment against persons from other Contracting States while conducting law enforcement activities; 2. Conduct construction of any artificial island in the South China Sea; 3. Initiate, participating in, or allow the use of its territories for any policy or activity that would complicate or escalate disputes and affect peace and stability; Vietnam’s Seven Do Nots (Replace all other options in 2c) 4. Militarize occupied features in the South China Sea; 5. Blockade vessels carrying provisions or personnel for rotation; 6. Declare an Air Defence Identification Zone (ADIZ) in the South China Sea; 7. Conduct simulated attacks that aim guns, missile launches, inter alia, at targets of other countries. Dispute Resolution – Two Proposals 1. High Council of the Treaty of Amity and Cooperation (TAC) at the consent of the Parties concerned (ID) • any unresolved incident may be referred to an appropriate international disputes settlement mechanism, at the consent of the concerned Parties. 2. Settle their disputes “through friendly negotiations, enquiry, mediation, conciliation and other means as may be agreed by the disputing Contracting Parties” (VN) • failing that the disputants “utilize the dispute settlement mechanism under relevant provisions of the Treaty of Amity and Cooperation in Southeast Asia.” 2. Changes to the SDNT After First Reading • Overlapping proposals on Duty to Cooperate merged and consolidated • China dropped “The Parties shall not hold joint military exercises with countries from outside the region, unless the parties concerned are notified beforehand and express no objection.” • Vietnam dropped its “do’s and don’t’s” Three-Year Planning Framework, 2019-21 • China’s Premier Li Keqiang: • “It is China’s hope the COC consultation will be finished in three years time so that it will contribute to enduring peace and stability in the South China Seas” • Remarks in Singapore, November 13, 2018 • Philippines as ASEAN Dialogue Coordinator, 2018-21 • President Duterte’s term in office 30 June 2016-30 June 2022 • ASEAN Chair • Thailand (2019), Vietnam (2020), Brunei (2021), Cambodia (2022) 3. Four Issues that Need to be Resolved
1. Geographic scope 2. Dispute settlement mechanism 3. Role of third parties 4. Legal status ASEAN, China and the South China Sea Code of Conduct
Emeritus Professor Carlyle A. Thayer
Presentation to Maritime Security Research Group Workshop: Lawfare and South China Sea Strategy School of Humanities and Social Sciences The University of New South Wales Canberra, 14-15 October 2019