Thayer Consultancy Background Brief:

ABN # 65 648 097 123

36th ASEAN Summit and the
South China Sea: A Textual
Analysis
Carlyle A. Thayer
June 29, 2020
On 27 June, the ASEAN Secretariat posted the
‘Chairman’s Statement of the 36 th ASEAN Summit 26 June 2020 Cohesive and
Responsive ASEAN’ on its home page.
The Chairman’s Statement dealt with the South China Sea, as it has in the past, in the
section on Regional and International Issues and Developments. Two paragraphs
were devoted to the South China Sea (nos. 64 and 65), they were based on the two
South China Sea paragraphs (nos. 50 and 51) in the Chairman’s Statement of the 35 th
ASEAN Summit in November 2019.
Four points emerge from reading the Chair’s statement that bear highlighting:
1. The Chairman’s Statement represents a strong reaffirmation of the
importance of international law, and the United Nations Convention on the
Law of the Seas (UNCLOS), in particular. While ASEAN has mentioned
international law and UNCLOS in past statements, the emphasis this year is
more pronounced (see point 4 below).
2. In paragraph 64, the following phrase was deleted, “within a mutually agreed
timeline.” This is significant as this expression has always been included in
recent ASEAN statements on the South China Sea with respect to the ASEAN
China Single Draft South China Sea Code of Conduct Negotiating Text agreed
in August 2018. In actuality, China, through its foreign minister (and later
other Chinese officials), unilaterally declared that the Code of Conduct (COC)
would be completed in three years, or 2021. Given the disruption to COC
negotiations, ASEAN appears to be signaling that the COC may take longer
than expected and a new timeline must be mutually agreed,
3. Last year the Chairman’s Statement “took note of some concerns”, while the
Chairman’s Statement this year noted that “concerns were expressed.” The
Chairman’s statement followed ASEAN’s past practice of “pulling its
punches”. China has never been named and criticized for its actions in the
South China Sea dispute since ASEAN issued its first statement in 1992.
China’s ramming and sinking of fishing boats, pointing fire gun control radar
at a Philippine ship, harassment of legitimate oil exploration off East
Malaysia, creating two administrative districts over disputed land features,
and renaming eighty geographical features in the South China Sea that are in
dispute, were not cited. The Chairman’s Statement only mentioned land
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reclamation (a hardy perennial), “recent developments” and “serious

incidents.” This was a slightly sharper tone than previously, however.
4. The most important change, representing a significant shift in ASEAN’s
rhetoric, was the insertion of this sentence, “We reaffirmed that the 1982
UNCLOS is the basis for determining maritime entitlements, sovereign rights,
jurisdiction and legitimate interests over maritime zones, and the 1982
UNCLOS sets out the legal framework within which all activities in the oceans
and seas must be carried out (emphasis added).”
This sentence brings Malaysia, the Philippines, Vietnam and Indonesia into
alignment on UNCLOS and reflects their separate submissions to the
Commission on the Limits of the Continental Shelf in 2019-2020.This is also a
rebuke of the basis of China’s claims. In other words, ASEAN rejects China’s
assertion of historic rights and China’s grouping of dispersed land features in
the South China Sea into one unit by straight baselines.
The last ASEAN-China Senior Officials’ Meeting on the Implementation of the
Declaration on the Conduct of Parties in the South China Sea (SOM-DOC) was
held in Da Lat, Vietnam in October 2019. Follow on negotiations were scheduled
for February (Brunei), May (Philippines), August (Indonesia) and October (China).
Because of the coronavirus, the 31 st ASEAN-China Working Group on the
Implementation of the Declaration on the Conduct of Parties in the South China
Sea (JWG-DOC) scheduled for February, and the 32 nd JWG-DOC and the 19th SOC-
DOC scheduled for May, were not held.
According to Vietnam’s Deputy Foreign Minister, Nguyen Quoc Dung, ASEAN and
Chinese officials will meet on 1 July to discuss the schedule for resuming talks.
The section below provides a textual comparison of the Chairman’s Statements
at the 35th and 36th ASEAN Summits with respect to the South China Sea. Both
statements devoted two paragraphs to this issue.
The Chairman’s Statement of the 36th ASEAN Summit 26 June 2020 Cohesive and
Responsive ASEAN is annotated as follows:
 Text in brackets with a strike out show deletions from the Chairman’s
Statement of the 35th ASEAN Summit, 3 November 2019.
 Text highlighted in yellow indicates changes in the wording of the text of the
Chairman’s Statement of the 35th ASEAN Summit included in the Chairman’s
Statement of the 36th ASEAN Summit.
 Text marked in green highlights a new formulation not included in previous
Chairman’s Statements
The South China Sea issue was discussed in both Chairman’s Statements in the
section headed Regional and International Issues and Developments. The
Chairman’s Statement of 36th ASEAN Summit reads as follows:
64. We reaffirmed the importance of maintaining and promoting peace, security,
stability, safety and freedom of navigation in and over-flight above the South
China Sea and recognised the benefits of having the South China Sea as a sea
of peace, stability and prosperity. We [also reaffirmed] underscored the
importance of the full and effective implementation of the 2002 Declaration
 3

on the Conduct of Parties in the South China Sea (DOC) in its entirety. We
[warmly welcomed] were encouraged by the progress of the substantive
negotiations towards the early conclusion of an effective and substantive
Code of Conduct in the South China Sea (COC) [within a mutually agreed
timeline] consistent with international law, including the 1982 UNCLOS. We
welcomed the completion of the first reading of the Single Draft COC
Negotiating Text [in July 2019]. We emphasised the need to maintain and
promote an environment conducive to the COC negotiations, and thus
welcomed practical measures that could reduce tensions and the risk of
accidents, misunderstandings and miscalculation. We stressed the
importance of undertaking confidence building and preventive measures to
enhance, among others, trust and confidence amongst parties; and we
reaffirmed the importance of upholding international law, including the 1982
UNCLOS.
65. We discussed [the matters relating to] the situation in the South China Sea,
[and took note of some concerns] during which concerns were expressed on
the land reclamations, [and] recent developments, activities [in the area] and
serious incidents, which have eroded trust and confidence, increased
tensions and may undermine peace, security and stability in the region. We
reaffirmed the need to enhance mutual trust and confidence, exercise self-
restraint in the conduct of activities that would complicate or escalate
disputes and affect peace and stability and avoid actions that may further
complicate the situation, and pursue peaceful resolution of disputes in
accordance with universally recognised principles of international law,
including the 1982 UNCLOS. We reaffirmed that the 1982 UNCLOS is the basis
for determining maritime entitlements, sovereign rights, jurisdiction and
legitimate interests over maritime zones, and the 1982 UNCLOS sets out the
legal framework within which all activities in the oceans and seas must be
carried out. We emphasised the importance of non-militarisation and self-
restraint in the conduct of all activities by claimants and all other states,
including those mentioned in the DOC that could further complicate the
situation and escalate tensions in the South China Sea.
In addition, a stand-alone ‘ASEAN Leaders’ Vision Statement on a Cohesive and
Responsive ASEAN: Rising Above Challenges and Sustaining Growth, Ha Noi, June 26,
2020’ contained one paragraph on the South China Sea. It read:
We, the Heads of State/Government of the Member States of the Association of
Southeast Asian Nations (ASEAN)… Do Hereby Agree To…
12. Further reaffirm the importance of maintaining and promoting peace, security,
stability, safety and freedom of navigation and over-flight above the South China
Sea, as well as upholding international law, including the 1982 UNCLOS, in the South
China Sea, work actively towards the full and effective implementation of the 2002
Declaration on the Conduct of Parties in the South China Sea (DOC) in its entirety
and the early conclusion of an effective and substantive Code of Conduct in the
South China Sea (COC), consistent with international law, including the 1982
UNCLOS. Further stress on the importance of non-militarisation and self-restraint in
the conduct of activities that would complicate or escalate disputes and affect peace
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and stability, and avoid actions that may further complicate the situation. Pursue the
peaceful resolution of disputes in accordance with universally recognised principles
of international law, including the 1982 UNCLOS, while enhancing mutual trust and
confidence;
The ASEAN Leaders’ Vision Statement does not represent any change in ASEAN’s
declaratory policy on the South China Sea. The above paragraph draws on wording
from the Chairman’s Statement of the 35 th ASEAN Summit, and in fact condenses its
two paragraphs into one. It omits the phrase “[we] recognized the benefits of having
the South China Sea as a sea of peace, stability and prosperity” found in the
Chairman’s Statement (November 2019), possibly a casuality of the condensation
process.

Suggested citation: Carlyle A. Thayer, “36th ASEAN Summit and the South China Sea:
A Textual Analysis,” Thayer Consultancy Background Brief, June 29, 2020. All
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