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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
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

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