An ‘Early Harvest’ Package for the Code
of Conduct in the South China Sea
Carlyle Thayer
Presentation to International Conference
on the East Sea Disputes
Sponsored by Ð.i h.c Tôn Ð.c Th.ng
Ho Chi Minh City, Vietnam
July 25-26, 2014
2
An ‘Early Harvest’ Package for the
Code of Conduct in the South China Sea
Carlyle A. Thayer
Abstract
This paper discusses the evolution of consultations between members of the
Association of Southeast Asian Nations (ASEAN) and China in implementing the
Declaration of Conduct of Parties in the South China Sea (DOC) and Code of Conduct in
the South China Sea (COC). The paper is divided into four parts. Part 1 discusses recent
China-Vietnam discussions on maritime cooperation. Part 2 provides an overview of the
evolution of ASEAN policy on the South China Sea including its proposal for an early
harvest package for the COC. Part 3 discusses the implications of the current crises
between China and Vietnam over China’s placement of an oil drilling platform in
Vietnam’s Exclusive Economic Zone (EEZ). Part 4 sets out proposals for a binding Code of
Conduct for Southeast Asia’s Maritime Common and sets out six proposals to enhance
maritime cooperation.
China-Vietnam Maritime Cooperation
In 2000, the state presidents of Vietnam and China codified their bilateral relations in a
Joint Statement for Comprehensive Cooperation in the New Century. This document
created the framework for long-term state-to-state relations. In 2006, Vietnam and
China set up a Joint Steering Committee on Bilateral Cooperation at deputy prime
ministerial level to coordinate all aspects of their relationship. In June 2008, following a
summit of party leaders in Beijing, bilateral relations were officially raised to that of
strategic partners, and a year later this was upgraded to a comprehensive strategic
partnership.1
Despite these positive developments China-Vietnam relations began to experience
some turbulence in 2007 and subsequently due to their conflicting territorial claims in
the South China Sea. During this difficult period the two sides attempted to
compartmentalize their maritime dispute and prevent it from affecting their broader
bilateral relations. A major turning point was reached in October 2011 when China and
Vietnam signed in Beijing an Agreement on Basic Principles Guiding the Settlement of
Maritime-Related Issues.
1
Carlyle A. Thayer, ‘Vietnam on the Road to Global Integration: Forging Strategic Partnerships Through
International Security Cooperation’, Keynote Paper to the Opening Plenary Session, 4th International
Vietnamese Studies Conference, co-sponsored by the Vietnam Academy of Social Sciences and Vietnam
National University, Hanoi, Vietnam, November 26-30, 2012, 14. Available at:
http://www.scribd.com/doc/114091180/Thayer-Vietnam-Strategic-Partnerships-and-International-
Security-Cooperation. The China-Vietnam comprehensive strategic partnership is also referred to as a
strategic cooperative partnership or comprehensive strategic cooperative partnership.
3
Under the terms of this agreement the two sides committed themselves ‘to seek basic
and long-standing solutions acceptable to both sides for sea-related disputes’ on the
basis of international law and to resolve their maritime disputes ‘through friendly talks
and negotiations’. Pending the settlement of their disputes, China and Vietnam agreed
to ‘actively discuss transitional and temporary measures that do not affect the stances
and policies of the two sides, including studies and discussions on cooperation for
mutual development’. 2
The year 2013 witnessed a steady improvement in relations between China and Vietnam.
On March 21, Secretary General Nguyen Phu Trong telephoned Xi Jinping, General
Secretary of the Chinese Communist Party (CCP), to congratulate him on his election as
state president. The two leaders discussed ‘major orientations to elevate the two
countries’ comprehensive strategic partnership’.3 On May 11, China and Vietnam held
the sixth session of their Joint Steering Committee for Bilateral Cooperation in Beijing.4
President Truong Sang made a state visit to China from June 19-21.5 On July 27, the CCP
and Vietnam Communist Party (VCP) held their ninth theoretical seminar in Dalian city.6
China’s Foreign Minister Wang Yi paid an official visit to Hanoi from August 3-6.7 And
finally, on September 2, Premier Li Keqiang and Prime Minister Nguyen Tan Dung met in
Nanning city on the sidelines of the tenth annual China-ASEAN Expo and the tenth
China-ASEAN Business Investment Summit.8 It was at this meeting that Prime Minister
Dung extended an invitation to Premier Li to visit Vietnam.
Premier Li’s official visit to Hanoi from October 13-15, marked a new high in bilateral
relations.9 At the conclusion of his trip the Chinese media reported that a ‘breakthrough
2
VietnamPlus, ‘VN-China basic principles on settlement of sea issues,’ Ministry of Foreign Affairs, October
10, 2013.
3
Vietnam News Agency, ‘Vietnamese, Chinese Party chiefs hold phone talks,’ Ministry of Foreign Affairs,
March 21, 2013.
4
VietnamPlus, ‘Viet Nam, China boost bilateral cooperation,’ Ministry of Foreign Affairs, May 12, 2013.
The Joint Steering Committee is co-chaired at deputy prime minister level (both deputy prime minsters
are also members of their respective party Politburos).
5
VietnamPlus, ‘Vietnamese, Chinese Presidents hold talks in Beijing,’ Ministry of Foreign Affairs, June 20-,
2013 and VietnamPlus, ‘Viet Nam, China issue joint statement,’ Ministry of Foreign Affairs, June 21, 2013.
6
VietnamPlus, ‘Vietnamese, Chinese Parties hold 9
th
theoretical seminar,’ Ministry of Foreign Affairs, July
29, 2013.
7
VietnamPlus, ‘Chinese FM visits Viet Nam to boost ties,’ Ministry of Foreign Affairs, August 4, 2013;
Vietnam Government Portal, ‘PM Dung receives Chinese Foreign Minister,’ Ministry of Foreign Affairs,
August 5, 2013 and VietnamPlus, ‘Viet Nam prioritises fostering ties with China,’ Ministry of Foreign
Affairs, August 5, 2013.
8
Vietnam Government Portal, ‘Vietnamese, Chinese PMs talk ties,’ Ministry of Foreign Affairs, September
2, 2013.
9
Vietnam Government Portal, ‘PM holds talks with Chinese counterpart,’ Ministry of Foreign Affairs,
October 14, 2013. All references to the Ministry of Foreign Affairs website may be located at:
4
in bilateral cooperation’ had taken place.10 According to the Joint Statement the two
leaders discussed three major areas of cooperation – on-shore, monetary and
maritime.11
On maritime cooperation, Dung and Li agreed to ‘stringently implement’ the 2011
Agreement on Basic Principles Guiding the Settlement of Maritime-Related Issues and to
pursue maritime cooperation following the principles of the ‘easy-first, difficult-later’
and ‘step by step’. 12 They reaffirmed the role of the existing government-level
mechanism on boundary and territory negotiations and agreed to pursue ‘mutually
acceptable fundamental solutions that do not affect each side’s stance and policy, which
will include studies and discussions pertaining to cooperation for mutual
development’.13
The two leaders agreed to instruct the Working Group on the Waters off the Mouth of
the Gulf of Tonkin and the expert-level Working Group on Cooperation on Less Sensitive
Issues at Sea to step up their consultations and negotiations. They also agreed to
establish a joint Working Group on Cooperation for Mutual Development at Sea under
the existing government-level mechanism on boundary and territory negotiations.
Priority was assigned to implementing two cooperative projects in the Gulf of Tonkin, a
joint project for environment protection for islands and waters and a survey on
Holocenne-era sediments in the Red River Delta (and Chang Jiang Delta in China). In
addition, the two leaders agreed to kick-start a joint survey in the waters off the mouth
of the Gulf of Tonkin before the end of 2013.
With respect to their South China Sea territorial disputes Prime Minister Dung and
Premier Li reaffirmed existing agreement to implement the 2002 Declaration on
Conduct of Parties in the South China Sea and ‘based on mutual consensus, both sides
will do more for the adoption of a Code of Conduct’ in the South China Sea. The two
leaders also agreed ‘to exercise tight control of maritime disputes and not to make any
move that can further complicate or expand disputes’.14 In this regard both sides vowed
to make use of hot lines established between their ministries of foreign affairs and
ministries of agriculture.
http://www.mofa.gov.vn/en. Premier Li also paid courtesy calls on Vietnam’s President Truong Tan Sang
and Secretary General of the Vietnam Communist Party (VCP) Nguyen Phu Trong. Vietnam Government
Portal, ‘VN, China strengthen cooperative partnership,’ Ministry of Foreign Affairs, October 14, 2013 and
VietnamPlus, ‘Party chief welcomes Chinese Premier,’ Ministry of Foreign Affairs, October 14, 2013.
10
Xinhua, ‘China-Vietnam relations witness substantial progress: Li,’ October 14, 2013.
11
Vietnam Government Portal, ‘VN, China issue joint statement,’ Ministry of Foreign Affairs, October 15,
2013.
12
Vietnam Government Portal, ‘VN, China issue joint statement.’
13
Vietnam Government Portal, ‘VN, China issue joint statement.’
14
Vietnam Government Portal, ‘VN, China issue joint statement.’
5
A closer look at what was agreed during Premier Li’s visit to Hanoi reveals that maritime
cooperation is inching forward in a positive direction but so far only includes peripheral
or less sensitive issues. There can be no doubt, however, that Premier Li’s visit to
Vietnam marked a culmination of the trend of improved ties between Beijing and Hanoi
during 2013.
Towards an Early Harvest Package for the COC
On April 2, 2013 at the 19th ASEAN-China Senior Officials Consultation, a Chinese
representative announced his country’s agreement to commence discussions with
ASEAN on a COC later in the year. This marked a major change in China’s approach to
this issue.
In late April/early May 2013 China’s new Foreign Minister Wang Yi visited Thailand,
Indonesia, Singapore and Brunei to discuss the South China Sea issue prior to the
scheduled ASEAN-China ministerial meeting. In Jakarta, Indonesia’s Foreign Minister
Marty reaffirmed agreement had been reached to hold a meeting of the ASEAN-China
Working Group on the Implementation of the DOC ‘in the near future’ to discuss the
COC. Marty also endorsed a Chinese proposal, made in April the previous year, and
reiterated by Foreign Minister Wang Yi, to set up an Eminent Persons Group to
complement the government-to-government talks.15
On June 30, 2013 the foreign ministers from ASEAN and China met in Brunei to discuss
preparations for the commemorative summit to mark the tenth anniversary of the
ASEAN-China Strategic Partnership (2003-13). This meeting touched on both maritime
cooperation and the South China Sea. With respect to the former, the ministers agreed
to use the ASEAN-China Maritime Cooperation Fund to ‘promote practical cooperation
in fishery, maritime connectivity. Marine science and technology, disaster prevention
and reduction, and navigation safety and search and rescue…’16
With respect to the South China Sea, the ministers stressed the importance of fully
implementing the DOC and ‘the need to steadily move towards the conclusion’ of a COC.
The ministers welcomed the forthcoming ‘official consultations on the COC within the
framework of the implementation of the DOC.’ Finally, the ministers also agreed, ‘that
steps will be taken to establish an Eminent Persons and Expert Group (EPEG) and/or
other mechanisms to provide support to the above official consultation.’
Early the following month, Foreign Minister Wang Yi visited Malaysia, Laos, and Vietnam.
He also visited Thailand to attend the High-Level Forum on the 10th Anniversary of
China-ASEAN Strategic Partnership on August 2. Minister Wang used his trip to promote
joint development and dialogue on South China Sea matters. At a press conference on
August 5 he noted that China and ASEAN had only ‘agreed to hold consultations [as
15Kyodo News International, “China, Indonesia suggest talks on binding rules in S. China Sea,”
GlobalPost.com, May 1, 2013 and Bagus BT Saragh, “China closer to South China Sea Code of Conduct,
Marty says,” The Jakarta Post, May 3, 2013.
16
Joint Press Release of the ASEAN-China Foreign Ministers’ Meeting, July 1, 2013.
6
distinct from negotiations] on moving forward the process on the “Code of Conduct in
the South China Sea (COC)” under the framework of implementing the “Declaration on
the Conduct of Parties in the South China Sea (DOC)…”’
Wang Yi further stated that China ‘has noticed that there came out some different ideas
from some parties concerned on how to promote the process of COC.’ Wang then
sounded a note of caution:
First, reasonable expectations. Some countries are talking about ‘quick fix’, like reaching consensus on
COC within one day. It is an attitude neither realistic nor serious…
Second, consensus through negotiations… Wills of individual country or of a few countries should not
be imposed on other countries, as an old Chinese saying, nothing forcibly done is going to be
agreeable.
Third, elimination of interference. China and ASEAN countries tried several times to discuss on COC
before, but got stuck due to some interferences…
Fourth, step-by-step approach. The formulation of COC is stipulated in DOC. COC is not to replace DOC,
much less to ignore DOC and go its own way. The top priority now is to implement DOC, especially
promoting maritime cooperation. In this process, we should formulate the road map for COC through
consultations, and push it forward in a step-by-step approach.
17
On August 29, 2013 China-ASEAN Foreign Ministers held a Special Meeting in Beijing cochaired
by Wang Yi and Thailand’s Foreign Minister Surapon Tovichakchaikul. This
meeting was mainly concerned with planning for the China-ASEAN Commemorative
Summit. The two sides reached agreement on seven points, only one of which touched
on the South China Sea. Point five called on the parties ‘to make good use of the China-
ASEAN Maritime Cooperation Fund.’18 A separate press release noted that discussion on
the COC ‘aims to be a rule-based framework in managing the conduct of parties in the
South China Sea’ and will commence the following month.19
The Sixth China-ASEAN Senior Officials’ Meeting and 9th Working Group Meeting on the
Implementation of the Declaration on Conduct of Parties in the South China Sea met in
Suzhou from September 14-15. At this meeting ASEAN and China held their first round
of formal consultations on the COC and drew up a work plan on the DOC for 2013-14,
approved an expert group to assist in developing the COC, and agreed to hold their next
meeting in Thailand in early 2014.20
17
“Foreign Minister Wang Yi on Process of ‘Code of Conduct in the South China Sea’,” Ministry of Foreign
Affairs of the People’s Republic of China, August 5, 2013.
http://www.fmprc.gov.cn/eng/zxxx/t1064869.shtml.
18
Ministry of Foreign Affairs, People’s Republic of China, “Special China-ASEAN Foreign Ministers’ Meeting
Held in Beijing,” August 29, 2013.
19
“Press Release: Special ASEAN-China Foreign Ministers’ Meeting, Beijing, China, 28-30 August 2013.
20
“China to promote maritime cooperation with ASEAN countries,” Xinhua, September 19, 2013 and
“China, ASEAN ‘make progress’ on code of conduct in S China Sea,” Kyodo, September 16, 2013.
7
In October 2013, Thailand hosted a special meeting of foreign ministers in Bangkok
before the ASEAN-China Summit.21 China-ASEAN Senior Officials held their 6th Meeting
and 9th Working Group Meeting on the Implementation of the Declaration on Conduct
of Parties; and held their first formal consultations on a COC prior to the ASEAN Summit.
The 23rd ASEAN Summit was held in Bandar Seri Begawan on October 9. The Chairman’s
Statement issued afterwards welcomed China-ASEAN consultations and
looked forward to intensifying official consultations with China on the development of the Code of
Conduct in the South China Sea (COC) with a view to its early conclusion. The COC will serve to
enhance peace, stability, and prosperity in the region. We also looked forward to developing the ideas
of establishing hotlines of communication to further enhance trust, confidence and to respond to
emergency situations at sea and cooperate in the area of search and rescue for vessels in distress as
part of an ‘early harvest’ package of the COC.
22
The reference to an ‘early harvest package’ of the COC refers to a proposal to begin
implementation of cooperative measures as soon as they are agreed upon rather than
wait until the final COC is negotiated. In order for ASEAN to achieve an early harvest
package for the COC Malaysia’s Foreign Minister suggested separating the DOC
discussions with China from the COC discussions.23
Premier Le Keqiang’s visited Brunei, Thailand and Vietnam from October 9-15 and, inter
alia, promoted maritime cooperation and joint development. On October 13, Xinhua
urged other regional states to follow suit and ‘take up the magic wand of joint
development.’ A day later, as noted above, Xinhua reported a ‘breakthrough in bilateral
cooperation’ between Beijing and Hanoi.
According to Hua Yiwen, a specialist on global issues, writing in the People's Daily Online
(October 18), Premier Li ‘put forward three “breakthrough” ideas to handle maritime
disputes in a peaceful manner: controlling divergence, exploring joint development, and
promoting maritime cooperation.’ Hua also argued that members of ASEAN who were
not parties to the South China Sea dispute could draw on the China-ASEAN Cooperation
Fund and ‘work together to build a 21st century maritime Silk Road.’
On March 18, 2014 the 10th Working Group Meeting on the Implementation of the
Declaration on Conduct of Parties in the South China Sea met in Singapore to resume
consultations on the COC that began last September. Thailand, in its role as ASEAN’s
country coordinator for China, submitted a document setting out areas that China and
ASEAN has already agreed on relating to the South China Sea. At the subsequent
21
Kyodo News International, “ASEAN leaders discuss how to deal with China on South China Sea,”
GlobalPost.com, April 30, 2013.
22
“Chairman’s Statement of the 23
rd
ASEAN Summit, Bandar Seri Begawan, 9 October 2013.”
http://www.asean.org/news/asean-secretariat-news/item/chairman-s-statement.
23
In August 2013, at the special China-ASEAN talks, Malaysia’s Foreign Minister Datuk Seri Anifah Aman
stated, ‘consultations on the COC must start as soon as possible and should not be tied to the
implementation of the DOC, both should run parallel to each other’. ‘South China Sea issues must be
managed through dialogue: Anifah’, The Sun Daily, August 30, 2013.
http://www.thesundaily.my/news/816837.
8
Seventh China-ASEAN Senior Officials’ Meeting held in Pattaya on April 27, China
submitted a document outlining areas of agreement reached between China and ASEAN
that contained differences in interpretation from the Thai document submitted to the
Working Group. China also declined to be drawn on possible early harvest proposals; it
insisted that each of ASEAN’s ten members set out their positions first.
China’s Drilling Platform
China’s placement of the giant state-owned drilling rig M/V Hai Yang Shi You 981
(HYSY 981) in Block 143 inside Vietnam’s EEZ on May 2 marked a reversal of the
positive trends discussed above. China’s move was unexpected and provocative. This
incident marks the first time China has placed one of its drilling rigs in the EEZ of another
state without prior permission. This was an unexpected move because China-Vietnam
relations have been on an upward trajectory since the visit to Hanoi by Premier Le
Keqing in October. At that time both sides indicated they had reached agreement to
carry forward discussions on maritime issues. China gave Vietnam no advanced
notification of its intended actions. China’s move was also unexpected because Vietnam
had not undertaken any discernable provocative action that would justify China’s
unprecedented actions.
China’s deployment of the rig was provocative because the HYSY 981 was accompanied
by as many as eighty ships, including seven People’s Liberation Army Navy warships.
When Vietnam dispatched Coast Guard and Fishery Surveillance Force vessels to defend
its sovereign jurisdiction, China responded by ordering its ships to use water cannons to
demast the communications antennae of Vietnamese vessels and to deliberately ram
the Vietnamese vessels. These actions were not only highly dangerous, but caused
injuries to the Vietnamese crew. At least one Vietnamese fishing boats was such as a
result of rammng.
China’s deployment of the HYSY 981 and accompanying armada of military, paramilitary
and civilian fishing boats has created the most severe crisis in bilateral relations
between China and Vietnam since their 1979 border war.24 Not only has it undermined
strategic trust between China and Vietnam, but is also a cause for regional and
international concern.
In response, on May 10, 2014 ASEAN Foreign Ministers issued a stand alone statement
expressing ‘their serious concerns over the on-gong developments in the South China
Sea, which increased tensions in the area.’ It is significant that ASEAN ministers issued a
separate statement on the South China Sea. This statement demonstrates ASEAN
24
For background see: Carlyle A. Thayer, “China's Oil Rig Gambit: South China Sea Game-Changer?,” The
Diplomat, May 12, 2014. http://thediplomat.com/2014/05/chinas-oil-rig-gambit-south-china-sea-gamechanger/
and Carlyle A. Thayer, “China and Vietnam Square Off in War of Attrition Over Disputed Waters,”
Asian Currents [Asian Studies Association of Australia], forthcoming.
9
unanimity. Prior to this ASEAN states long treated the Paracels as a separate bilateral
matter between Vietnam and China.
The ASEAN Foreign Ministers’ statement did not specifically mention China by name but
it reiterated ASEAN’s standard policy on the South China Sea.25 The statement urged the
parties concerned to act in accord with international law including the United Nations
Convention on the Law of the Sea, to exercise self-restraint, avoid actions that could
undermine peace and stability, and to resolve disputes by peaceful means without
resorting to the threat or use of force. The ASEAN Foreign Ministers’ Statement called
on all parties to fully and effectively implement the DOC. The Statement also called for
the need for ‘expeditiously working towards an early conclusion of the Code of Conduct
in the South China Sea.’ ASEAN leaders, meeting at their 23rd Summit, endorsed the
statement by their foreign ministers.
Code of Conduct for Southeast Asia’s Maritime Commons
Both China and ASEAN are in agreement that the 2002 DOC should be implemented.
China appears to have made implementation of the DOC a prerequisite to the
conclusion of a COC.
The 2002 DOC makes provision for five cooperative activities: marine environmental
protection; marine scientific research; safety of navigation and communication at sea;
search and rescue operation; and combating transnational crime, ‘including but not
limited to trafficking in illicit drugs, piracy and armed robbery at sea, and illegal traffic in
arms’. Only four expert working groups have been set up. No working group on safety of
navigation and communication at sea has been formed due to China’s sensitivity.
The working groups to implement the DOC must determine exactly where China will
agree to conduct cooperative activities. According to ASEAN diplomats China also insists
that claimant states first recognize China’s sovereignty before cooperative projects can
be implemented.
At the same time ASEAN should commission a group of Southeast Asian experts to form
a study group to research and report on various proposals for confidence building and
cooperation. This group should be explicitly charged with exploring the historical record
to determine if in fact confidence-building measures are likely to lead to trust and hence
address the core security issues raised by territorial disputes in the South China Sea.26
ASEAN has been reluctant to draft its own Code of Conduct without simultaneously
25
The failure to mention China by name is standard ASEAN convention. ASEAN’s first two statements on
the South China Sea, in 1992 and 1995, did not mention China.
26
Carlyle A. Thayer, ‘Do Confidence Building Measures Really Address the Major Challenges to Maritime
Security?’, Presentation to Joint Meeting of the 36
th
Australia Council for Security Cooperation in Asia and
the Pacific Meeting (AUS CSCAP) and ANU Centre of Excellence in Policing and Security (ANU-CEPS)
Maritime Expert Networks Meeting, The Australian National University, Canberra, March 22-23, 2012.
http://www.scribd.com/doc/91612112/Thayer-South-China-Sea-Do-Confidence-Building-Measures-
Address-Major-Challenges-to-Maritime-Secuirty-in-the-South-China-Sea.
10
discussing its content with China. ASEAN fears that if they drew up their own COC China
would reject it. ASEAN’s reluctance to draft its own COC was illustrated by its quiet
rejection of Indonesia’s Zero Draft Regional Code of Conduct. 27 ASEAN’s current
approach of seeking an ‘early harvest package’ appears to be heading no where.
ASEAN-China consultations/negotiations on a DOC/COC are necessary but not sufficient
to obtain a binding Code of Conduct. ASEAN’s dogged focus on negotiating a binding
COC with China in the South China Sea, while an important security goal, is
fundamentally a misplaced priority. Negotiations between China and ASEAN on a COC
have resulted in the division of ASEAN into two groups, claimants and non-claimants,
and make it extremely difficult for ASEAN to adopt a common policy. This approach also
allows China to play on differences among ASEAN members and drag out not only
discussions on DOC cooperative measures but on the COC as well. This provides China
the time to consolidate its presence and hence control over waters and features in the
South China Sea.
If ASEAN does not act it means that China will protract the consultation process. China’s
actions in confronting the Philippines at Second Thomas Shoal, the placement of HYSY
981 in disputed waters, and its land reclamation activities all indicate that the ‘facts of
the ground’ are likely to be altered irrevocably before a COC is agreed. ASEAN should
insist on the standing up of the working group on safety of navigation and
communication at sea as part of the DOC process. The HYSY 981 crisis has made it more
urgent for ASEAN to expeditiously pursue a binding COC for the South China Sea.
Negotiating a COC in the South China Sea with China is too restrictive geographically.
International law, and UNCLOS, covers the world’s oceans and maritime domains not
just the South China Sea. ASEAN-China discussions on a South China Sea COC do not
cover Southeast Asian waters outside of the South China Sea.28
Southeast Asia’s maritime domain encompasses not only the South China Sea and Gulf
of Thailand but also the waters and seas surrounding the littoral and archipelagic states.
This is a vast area encompassing the Exclusive Economic Zones of all ten of Southeast
Asia’s states, including Timor-Leste (but omitting landlocked Laos).
Southeast Asia is roughly divided between its land mass and maritime domain. The
majority of Southeast Asia’s population lives in the coastal strip adjacent to the sea. The
fish in the South China Sea are a vital source of protein for the diet of Southeast Asia’s
population. The sea is important for other natural resources such as oil and gas.
27
For a detailed discussion see: Carlyle A. Thayer, “South China Sea in Regional Politics: Indonesia’s Efforts
to Forge ASEAN Unity on a Code of Conduct,” Presentation to Third Annual CSIS Conference on Managing
Tensions in the South China Sea, Center for Strategic & International Studies, Washington, D. C., June 5-6,
2013. http://csis.org/files/attachments/130606_Thayer_ConferencePaper.pdf.
28 In fact, as difficulties over negotiating accession of nuclear powers to the Southeast Asia Nuclear
Weapons Zone Treaty indicate, there is no agreement over what constitutes the geographic area covered
by the South China Sea.
11
Southeast Asian waters are vital for transport, trade and commerce for regional states
as well as external powers. In sum, important issues of human, food and energy security
are at stake. These issues are interrelated.
ASEAN littoral states encounter difficulties in developing the resources that lie in their
EEZs due to China’s nine-dash line ambit claim over approximately eighty percent of the
South China Sea. Sino-U.S. strategic rivalry is likely to exacerbate regional insecurity and
make exploitation of South China Sea resources more difficult.
Because ASEAN-China discussions on the DOC/COC are likely to be protracted if not
interminable, ASEAN needs to acquire leverage. ASEAN should insist that the DOC and
COC consultations be split into two separate sets of negotiations. At the same time
ASEAN should begin consultations to reach consensus among its members on what they
consider the essential components of a COC.
ASEAN should proceed to reach consensus on its own draft COC in order to present a
united front in consultations with China. ASEAN officials at working group level should
be tasked with revising and updating Indonesia’s Zero Draft Regional Code of Conduct
into a final draft. This should then be passed to ASEAN Senior Officials and then Foreign
Ministers for their approval. This draft should then be presented to government leaders
at an ASEAN Summit. Once approved this document should be circulated to all of
ASEAN’s dialogue partners for endorsement.
The Code of Conduct for Southeast Asia’s Maritime Commons proposal is based on two
premises. First, the security of the maritime domain in Southeast Asia is indivisible for all
ASEAN members, whether coastal or landlocked. The Treaty would make all ASEAN
members equal stakeholders. This would overcome the present division of ASEAN states
into claimant and non-claimant states with respect to the South China Sea.
Second, international law, including UNCLOS, applies equally throughout Southeast
Asia’s maritime domain and not just the South China Sea. It is applicable to all states.
The adoption of the Code of Conduct for Southeast Asia’s Maritime Commons would
reinforce ASEAN’s corporate and legal identity and enhance its ability to deal with
external powers. It would give ASEAN the needed leverage in dealing with China.
The Code of Conduct for Southeast Asia’s Maritime Commons should form an integral
part of the ASEAN Political-Security Community. ASEAN agreement on the Code of
Conduct for Southeast Asia’s Maritime Commons could be the start of other agreements
that address security issues affecting ASEAN member states. For example, ASEAN could
adopt a declaration on sustainable development in the Lower Mekong to address
concerns of its riparian state members (Myanmar, Thailand, Laos, Cambodia and
Vietnam).
This treaty would be designed to resolve Southeast Asia’s numerous maritime boundary
and maritime territorial disputes. Regional maritime disputes involve both claims to
sovereignty over islands and features and sovereign rights over resources in the sea and
continental shelf. The purpose of Code of Conduct for Southeast Asia’s Maritime
Commons would be to set a frame for the peaceful resolution of these disputes, in
12
accord with international law. In other words, ASEAN can best position itself by first
getting its own house in order with respect to maritime disputes among its members.
This would enhance ASEAN’s unity and cohesion and better enable ASEAN to promote
Southeast Asia’s autonomy and ASEAN’s centrality in the region’s security affairs.
All ASEAN states should bring their maritime claims into accord with international law,
with particular attention to eliminating excessive baselines. States should then
demarcate the territorial sea, contiguous zone, EEZ and continental shelf. States should
also clearly distinguish islands from rocks for purposes of maritime delimitation.29 The
expertise of an independent panel of technical and legal experts could be called upon to
assist in determining base lines and that the classification of islands and rocks conform
to international law.
States should also indicate what land and other features in the maritime domain that
they claim sovereignty over. A special ASEAN Commission should review claims to
islands to ensure that they conform to international law and are not being used to claim
excessive maritime jurisdiction.
ASEAN members should consider placing prohibitions on the use of national fishing
fleets as an instrument of maritime enforcement. ASEAN members could incorporate
the Convention for the Suppression of Unlawful Acts against the Safety of Maritime
Navigation in their COC. Other relevant international conventions such as the Code for
Unalerted Encounters at Sea.
Once this process is completed all states should enter into negotiations to resolve
outstanding disputes where maritime zones overlap or where there are conflicting
sovereignty claims to land features. States should agree to a deadline after which, if any
dispute is unresolved, they agree to arbitration under the ASEAN High Council, the
provisions under UNCLOS (International Tribunal on Law of the Sea or International
Court of Justice), or other mutually agreed procedure.30 In exceptional cases the parties
could agree to shelf sovereignty disputes indefinitely
The Code of Conduct for Southeast Asia’s Maritime Commons should also contain
provisions for all parties to cooperate in marine scientific research, marine pollution,
fisheries management, search and rescue, anti-piracy and other agreed areas. For
29
A ruling on the Philippine claim to the UN Arbitral Tribunal on this point would greatly assist the process
of determining baselines and classifying rocks, islands and other features. See: Carlyle A. Thayer, ‘The
Philippines’ Claim to the UNCLOS Arbitral Tribunal: Implications for Viet Nam’, Presentation to
International Workshop on The Sovereignty Over Paracel and Spratly Archipelagoes – Historical and Legal
Aspects, Pham Van Dong University, Quang Ngai City, Vietnam, April 27-28, 2013.
http://www.scribd.com/doc/138615869/Thayer-The-Philippines-Claim-to-the-UNCLOS-Arbitral-Tribunal-
Implications-for-Viet-Nam.
30
Indonesia and Malaysia took their dispute over Ligitan and Sipadan islands to the International Court of
Justice (ICJ) which ruled on 17 December 2002; Malaysia and Singapore took their dispute over Pedra
Branca/Pulau Batu Puteh and Middle Rocks to the ICJ which ruled on 23 May 2008; and Bangladesh and
Myanmar revolved their maritime delimitation dispute through the International Tribunal for the Law of
the Sea, which ruled on 14 March 2013.
13
purposes of security, including protection against piracy and armed criminals, police or
coast guard personnel may be stationed on occupied features. An agreement should be
developed for cooperation among these agencies in the maritime domain.
The Code of Conduct for Southeast Asia’s Maritime Commons should include provision
for setting up a body to oversee its implementation and to handle complaints and
disputes that may arise. Such a body could be included under the ASEAN Political-
Security Community Council or the ASEAN High Council
Who should be included in Code of Conduct for Southeast Asia’s Maritime Commons?
What area should it cover?
The Code of Conduct for Southeast Asia’s Maritime Commons should include all ten
ASEAN members and future members such as Timor-Leste. The Treaty should cover
Southeast Asia’s entire maritime domain - not just the South China Sea - in a manner
analogous to the Zone of Peace Freedom and Neutrality (1971), Treaty of Amity and
Cooperation (1976) and Southeast Asia Nuclear Weapons Free Zone Treaty (1995). The
Treaty should be open to accession by ASEAN’s dialogue partners and other maritime
powers. In order to prevent one state from seeking advantage over another, ASEAN
should follow the precedent set for the SEANWFZ Treaty: accept individual offers of
accession but wait until a critical mass is reached before granting approval.
While ASEAN is drafting its Code of Conduct for Southeast Asia’s Maritime Commons it
should consider six other steps
Fisheries Management
First, the management of fisheries in the South China Sea is a key issue affecting
regional food security. Already fish stocks are being depleted through pollution and
overfishing. There is increased friction between states over fishing rights including the
use of violence at sea by private fishing fleets as an adjunct of national policy. The Asia
Pacific Economic Cooperation (APEC) forum takes the lead in addressing this issue. This
is because it is a non-governmental body that includes Taiwan that plays a major fishing
role in the South China Sea. A formal liaison mechanism linking APEC to the EAS should
be established.
ASEAN Coast Guard
Second, priority should be given to standing up an effective Heads of ASEAN Coast
Guards Meeting and quickly develop practical multilateral cooperation to deal with
challenges to maritime security, including assistance to fishermen in distress and the
humane treatment of fishermen caught poaching. The ASEAN Coast Guards should work
cooperatively with the ASEAN Defence Ministers’ Meeting (ADMM) as part of the ASEAN
Political-Security Council (APSC).
The Heads of ASEAN Coast Guards should work out a common position to present at the
annual meeting of the Heads of Asian Coast Guard Agencies, an organization that
comprises nine ASEAN states (Laos is landlocked) as well as Bangladesh, China, Hong
Kong, India, Japan, South Korea, Maldives, Pakistan, and Sri Lanka.
14
Expanded ASEAN Maritime Forum
Third, priority should be given to institutionalizing and enhancing the role of the
Expanded ASEAN Maritime Forum (AMF) and developing an agenda that addresses the
most pressing security issues such as maritime incidents between warships, maritime
incidents between civilian enforcement ships, prohibition in the use of fishing boats in
maritime enforcement measures, and freedom on navigation and over flight The
Expanded AMF should forward its finding and recommendations to the East Asia
Summit.
ASEAN Political-Security Council
Fourth, ASEAN needs to create an effective ASEAN Political-Security Council by
prioritizing the objectives of the multiple institutions working on maritime security and
streamline their reporting functions. The APSC should coordinate and shape the
recommendations from both civilian and military organisations (such as the AMF and
ADMM) before presenting them to the ASEAN Consultative Council and in turn to the
ASEAN Summit.
Proactive ASEAN Defence Ministers Meeting
Fifth, the ASEAN Defence Ministers need to become more proactive in setting the
priorities for subordinate agencies. For example, the ASEAN Chiefs of Navy Meeting
should be tasked with promoting greater interoperability among its members to address
current challenges to maritime security.
Streamling Regional Architecture
Sixth, in order to address the range of issues impacting on the maritime commons, the
regional architecture needs to be streamlined.31 There is considerable overlap between
multiple organisations concerned with maritime security (e.g., the ASEAN Regional
Forum Inter-Session Meeting on Maritime Security and the ADMM Plus Expert Working
Group on Maritime Security).
Regional cooperation on maritime security has largely been a bottom up process. What
is missing in the regional security architecture is direction from above. The East Asia
Summit (EAS) should become the prime leaders-led forum to consider inputs from the
ARF, the ADMM Plus, and the Expanded AMF Plus. The EAS should give top down
31
Carlyle A. Thayer, “Maritime Security and the 2014 ASEAN Agenda,” Presentation to Public Forum on
ASEAN’s Role in Providing Maritime Security, CNAS Maritime Security Project, Center for a New American
Security, Willard International Continental Hotel, Washington, D.C., February 13, 2014. This presentation
may be accessed at: http://www.youtube.com/watch?v=3Nu58TwLlcU and http://youtu.be/lM7ZnbPgbxc
and Carlyle A. Thayer, “Beyond Territoriality: Managing the Maritime Commons in the South China Sea,”
Paper delivered to the 28
th
Asia-Pacific Roundtable, Institute for Strategic and International Studies, Kuala
Lumpur, , Malaysia, June 2-4, 2014.
15
direction to implement recommendations related to the management of the maritime
commons in the South China Sea.
Within the EAS, ASEAN leaders should position ASEAN between the global powers as the
brokers of consensus on what form a streamlined regional architecture should take and
what policy priorities should be adopted to ensure the security of the maritime
commons in Southeast Asia.
of Conduct in the South China Sea
Carlyle Thayer
Presentation to International Conference
on the East Sea Disputes
Sponsored by Ð.i h.c Tôn Ð.c Th.ng
Ho Chi Minh City, Vietnam
July 25-26, 2014
2
An ‘Early Harvest’ Package for the
Code of Conduct in the South China Sea
Carlyle A. Thayer
Abstract
This paper discusses the evolution of consultations between members of the
Association of Southeast Asian Nations (ASEAN) and China in implementing the
Declaration of Conduct of Parties in the South China Sea (DOC) and Code of Conduct in
the South China Sea (COC). The paper is divided into four parts. Part 1 discusses recent
China-Vietnam discussions on maritime cooperation. Part 2 provides an overview of the
evolution of ASEAN policy on the South China Sea including its proposal for an early
harvest package for the COC. Part 3 discusses the implications of the current crises
between China and Vietnam over China’s placement of an oil drilling platform in
Vietnam’s Exclusive Economic Zone (EEZ). Part 4 sets out proposals for a binding Code of
Conduct for Southeast Asia’s Maritime Common and sets out six proposals to enhance
maritime cooperation.
China-Vietnam Maritime Cooperation
In 2000, the state presidents of Vietnam and China codified their bilateral relations in a
Joint Statement for Comprehensive Cooperation in the New Century. This document
created the framework for long-term state-to-state relations. In 2006, Vietnam and
China set up a Joint Steering Committee on Bilateral Cooperation at deputy prime
ministerial level to coordinate all aspects of their relationship. In June 2008, following a
summit of party leaders in Beijing, bilateral relations were officially raised to that of
strategic partners, and a year later this was upgraded to a comprehensive strategic
partnership.1
Despite these positive developments China-Vietnam relations began to experience
some turbulence in 2007 and subsequently due to their conflicting territorial claims in
the South China Sea. During this difficult period the two sides attempted to
compartmentalize their maritime dispute and prevent it from affecting their broader
bilateral relations. A major turning point was reached in October 2011 when China and
Vietnam signed in Beijing an Agreement on Basic Principles Guiding the Settlement of
Maritime-Related Issues.
1
Carlyle A. Thayer, ‘Vietnam on the Road to Global Integration: Forging Strategic Partnerships Through
International Security Cooperation’, Keynote Paper to the Opening Plenary Session, 4th International
Vietnamese Studies Conference, co-sponsored by the Vietnam Academy of Social Sciences and Vietnam
National University, Hanoi, Vietnam, November 26-30, 2012, 14. Available at:
http://www.scribd.com/doc/114091180/Thayer-Vietnam-Strategic-Partnerships-and-International-
Security-Cooperation. The China-Vietnam comprehensive strategic partnership is also referred to as a
strategic cooperative partnership or comprehensive strategic cooperative partnership.
3
Under the terms of this agreement the two sides committed themselves ‘to seek basic
and long-standing solutions acceptable to both sides for sea-related disputes’ on the
basis of international law and to resolve their maritime disputes ‘through friendly talks
and negotiations’. Pending the settlement of their disputes, China and Vietnam agreed
to ‘actively discuss transitional and temporary measures that do not affect the stances
and policies of the two sides, including studies and discussions on cooperation for
mutual development’. 2
The year 2013 witnessed a steady improvement in relations between China and Vietnam.
On March 21, Secretary General Nguyen Phu Trong telephoned Xi Jinping, General
Secretary of the Chinese Communist Party (CCP), to congratulate him on his election as
state president. The two leaders discussed ‘major orientations to elevate the two
countries’ comprehensive strategic partnership’.3 On May 11, China and Vietnam held
the sixth session of their Joint Steering Committee for Bilateral Cooperation in Beijing.4
President Truong Sang made a state visit to China from June 19-21.5 On July 27, the CCP
and Vietnam Communist Party (VCP) held their ninth theoretical seminar in Dalian city.6
China’s Foreign Minister Wang Yi paid an official visit to Hanoi from August 3-6.7 And
finally, on September 2, Premier Li Keqiang and Prime Minister Nguyen Tan Dung met in
Nanning city on the sidelines of the tenth annual China-ASEAN Expo and the tenth
China-ASEAN Business Investment Summit.8 It was at this meeting that Prime Minister
Dung extended an invitation to Premier Li to visit Vietnam.
Premier Li’s official visit to Hanoi from October 13-15, marked a new high in bilateral
relations.9 At the conclusion of his trip the Chinese media reported that a ‘breakthrough
2
VietnamPlus, ‘VN-China basic principles on settlement of sea issues,’ Ministry of Foreign Affairs, October
10, 2013.
3
Vietnam News Agency, ‘Vietnamese, Chinese Party chiefs hold phone talks,’ Ministry of Foreign Affairs,
March 21, 2013.
4
VietnamPlus, ‘Viet Nam, China boost bilateral cooperation,’ Ministry of Foreign Affairs, May 12, 2013.
The Joint Steering Committee is co-chaired at deputy prime minister level (both deputy prime minsters
are also members of their respective party Politburos).
5
VietnamPlus, ‘Vietnamese, Chinese Presidents hold talks in Beijing,’ Ministry of Foreign Affairs, June 20-,
2013 and VietnamPlus, ‘Viet Nam, China issue joint statement,’ Ministry of Foreign Affairs, June 21, 2013.
6
VietnamPlus, ‘Vietnamese, Chinese Parties hold 9
th
theoretical seminar,’ Ministry of Foreign Affairs, July
29, 2013.
7
VietnamPlus, ‘Chinese FM visits Viet Nam to boost ties,’ Ministry of Foreign Affairs, August 4, 2013;
Vietnam Government Portal, ‘PM Dung receives Chinese Foreign Minister,’ Ministry of Foreign Affairs,
August 5, 2013 and VietnamPlus, ‘Viet Nam prioritises fostering ties with China,’ Ministry of Foreign
Affairs, August 5, 2013.
8
Vietnam Government Portal, ‘Vietnamese, Chinese PMs talk ties,’ Ministry of Foreign Affairs, September
2, 2013.
9
Vietnam Government Portal, ‘PM holds talks with Chinese counterpart,’ Ministry of Foreign Affairs,
October 14, 2013. All references to the Ministry of Foreign Affairs website may be located at:
4
in bilateral cooperation’ had taken place.10 According to the Joint Statement the two
leaders discussed three major areas of cooperation – on-shore, monetary and
maritime.11
On maritime cooperation, Dung and Li agreed to ‘stringently implement’ the 2011
Agreement on Basic Principles Guiding the Settlement of Maritime-Related Issues and to
pursue maritime cooperation following the principles of the ‘easy-first, difficult-later’
and ‘step by step’. 12 They reaffirmed the role of the existing government-level
mechanism on boundary and territory negotiations and agreed to pursue ‘mutually
acceptable fundamental solutions that do not affect each side’s stance and policy, which
will include studies and discussions pertaining to cooperation for mutual
development’.13
The two leaders agreed to instruct the Working Group on the Waters off the Mouth of
the Gulf of Tonkin and the expert-level Working Group on Cooperation on Less Sensitive
Issues at Sea to step up their consultations and negotiations. They also agreed to
establish a joint Working Group on Cooperation for Mutual Development at Sea under
the existing government-level mechanism on boundary and territory negotiations.
Priority was assigned to implementing two cooperative projects in the Gulf of Tonkin, a
joint project for environment protection for islands and waters and a survey on
Holocenne-era sediments in the Red River Delta (and Chang Jiang Delta in China). In
addition, the two leaders agreed to kick-start a joint survey in the waters off the mouth
of the Gulf of Tonkin before the end of 2013.
With respect to their South China Sea territorial disputes Prime Minister Dung and
Premier Li reaffirmed existing agreement to implement the 2002 Declaration on
Conduct of Parties in the South China Sea and ‘based on mutual consensus, both sides
will do more for the adoption of a Code of Conduct’ in the South China Sea. The two
leaders also agreed ‘to exercise tight control of maritime disputes and not to make any
move that can further complicate or expand disputes’.14 In this regard both sides vowed
to make use of hot lines established between their ministries of foreign affairs and
ministries of agriculture.
http://www.mofa.gov.vn/en. Premier Li also paid courtesy calls on Vietnam’s President Truong Tan Sang
and Secretary General of the Vietnam Communist Party (VCP) Nguyen Phu Trong. Vietnam Government
Portal, ‘VN, China strengthen cooperative partnership,’ Ministry of Foreign Affairs, October 14, 2013 and
VietnamPlus, ‘Party chief welcomes Chinese Premier,’ Ministry of Foreign Affairs, October 14, 2013.
10
Xinhua, ‘China-Vietnam relations witness substantial progress: Li,’ October 14, 2013.
11
Vietnam Government Portal, ‘VN, China issue joint statement,’ Ministry of Foreign Affairs, October 15,
2013.
12
Vietnam Government Portal, ‘VN, China issue joint statement.’
13
Vietnam Government Portal, ‘VN, China issue joint statement.’
14
Vietnam Government Portal, ‘VN, China issue joint statement.’
5
A closer look at what was agreed during Premier Li’s visit to Hanoi reveals that maritime
cooperation is inching forward in a positive direction but so far only includes peripheral
or less sensitive issues. There can be no doubt, however, that Premier Li’s visit to
Vietnam marked a culmination of the trend of improved ties between Beijing and Hanoi
during 2013.
Towards an Early Harvest Package for the COC
On April 2, 2013 at the 19th ASEAN-China Senior Officials Consultation, a Chinese
representative announced his country’s agreement to commence discussions with
ASEAN on a COC later in the year. This marked a major change in China’s approach to
this issue.
In late April/early May 2013 China’s new Foreign Minister Wang Yi visited Thailand,
Indonesia, Singapore and Brunei to discuss the South China Sea issue prior to the
scheduled ASEAN-China ministerial meeting. In Jakarta, Indonesia’s Foreign Minister
Marty reaffirmed agreement had been reached to hold a meeting of the ASEAN-China
Working Group on the Implementation of the DOC ‘in the near future’ to discuss the
COC. Marty also endorsed a Chinese proposal, made in April the previous year, and
reiterated by Foreign Minister Wang Yi, to set up an Eminent Persons Group to
complement the government-to-government talks.15
On June 30, 2013 the foreign ministers from ASEAN and China met in Brunei to discuss
preparations for the commemorative summit to mark the tenth anniversary of the
ASEAN-China Strategic Partnership (2003-13). This meeting touched on both maritime
cooperation and the South China Sea. With respect to the former, the ministers agreed
to use the ASEAN-China Maritime Cooperation Fund to ‘promote practical cooperation
in fishery, maritime connectivity. Marine science and technology, disaster prevention
and reduction, and navigation safety and search and rescue…’16
With respect to the South China Sea, the ministers stressed the importance of fully
implementing the DOC and ‘the need to steadily move towards the conclusion’ of a COC.
The ministers welcomed the forthcoming ‘official consultations on the COC within the
framework of the implementation of the DOC.’ Finally, the ministers also agreed, ‘that
steps will be taken to establish an Eminent Persons and Expert Group (EPEG) and/or
other mechanisms to provide support to the above official consultation.’
Early the following month, Foreign Minister Wang Yi visited Malaysia, Laos, and Vietnam.
He also visited Thailand to attend the High-Level Forum on the 10th Anniversary of
China-ASEAN Strategic Partnership on August 2. Minister Wang used his trip to promote
joint development and dialogue on South China Sea matters. At a press conference on
August 5 he noted that China and ASEAN had only ‘agreed to hold consultations [as
15Kyodo News International, “China, Indonesia suggest talks on binding rules in S. China Sea,”
GlobalPost.com, May 1, 2013 and Bagus BT Saragh, “China closer to South China Sea Code of Conduct,
Marty says,” The Jakarta Post, May 3, 2013.
16
Joint Press Release of the ASEAN-China Foreign Ministers’ Meeting, July 1, 2013.
6
distinct from negotiations] on moving forward the process on the “Code of Conduct in
the South China Sea (COC)” under the framework of implementing the “Declaration on
the Conduct of Parties in the South China Sea (DOC)…”’
Wang Yi further stated that China ‘has noticed that there came out some different ideas
from some parties concerned on how to promote the process of COC.’ Wang then
sounded a note of caution:
First, reasonable expectations. Some countries are talking about ‘quick fix’, like reaching consensus on
COC within one day. It is an attitude neither realistic nor serious…
Second, consensus through negotiations… Wills of individual country or of a few countries should not
be imposed on other countries, as an old Chinese saying, nothing forcibly done is going to be
agreeable.
Third, elimination of interference. China and ASEAN countries tried several times to discuss on COC
before, but got stuck due to some interferences…
Fourth, step-by-step approach. The formulation of COC is stipulated in DOC. COC is not to replace DOC,
much less to ignore DOC and go its own way. The top priority now is to implement DOC, especially
promoting maritime cooperation. In this process, we should formulate the road map for COC through
consultations, and push it forward in a step-by-step approach.
17
On August 29, 2013 China-ASEAN Foreign Ministers held a Special Meeting in Beijing cochaired
by Wang Yi and Thailand’s Foreign Minister Surapon Tovichakchaikul. This
meeting was mainly concerned with planning for the China-ASEAN Commemorative
Summit. The two sides reached agreement on seven points, only one of which touched
on the South China Sea. Point five called on the parties ‘to make good use of the China-
ASEAN Maritime Cooperation Fund.’18 A separate press release noted that discussion on
the COC ‘aims to be a rule-based framework in managing the conduct of parties in the
South China Sea’ and will commence the following month.19
The Sixth China-ASEAN Senior Officials’ Meeting and 9th Working Group Meeting on the
Implementation of the Declaration on Conduct of Parties in the South China Sea met in
Suzhou from September 14-15. At this meeting ASEAN and China held their first round
of formal consultations on the COC and drew up a work plan on the DOC for 2013-14,
approved an expert group to assist in developing the COC, and agreed to hold their next
meeting in Thailand in early 2014.20
17
“Foreign Minister Wang Yi on Process of ‘Code of Conduct in the South China Sea’,” Ministry of Foreign
Affairs of the People’s Republic of China, August 5, 2013.
http://www.fmprc.gov.cn/eng/zxxx/t1064869.shtml.
18
Ministry of Foreign Affairs, People’s Republic of China, “Special China-ASEAN Foreign Ministers’ Meeting
Held in Beijing,” August 29, 2013.
19
“Press Release: Special ASEAN-China Foreign Ministers’ Meeting, Beijing, China, 28-30 August 2013.
20
“China to promote maritime cooperation with ASEAN countries,” Xinhua, September 19, 2013 and
“China, ASEAN ‘make progress’ on code of conduct in S China Sea,” Kyodo, September 16, 2013.
7
In October 2013, Thailand hosted a special meeting of foreign ministers in Bangkok
before the ASEAN-China Summit.21 China-ASEAN Senior Officials held their 6th Meeting
and 9th Working Group Meeting on the Implementation of the Declaration on Conduct
of Parties; and held their first formal consultations on a COC prior to the ASEAN Summit.
The 23rd ASEAN Summit was held in Bandar Seri Begawan on October 9. The Chairman’s
Statement issued afterwards welcomed China-ASEAN consultations and
looked forward to intensifying official consultations with China on the development of the Code of
Conduct in the South China Sea (COC) with a view to its early conclusion. The COC will serve to
enhance peace, stability, and prosperity in the region. We also looked forward to developing the ideas
of establishing hotlines of communication to further enhance trust, confidence and to respond to
emergency situations at sea and cooperate in the area of search and rescue for vessels in distress as
part of an ‘early harvest’ package of the COC.
22
The reference to an ‘early harvest package’ of the COC refers to a proposal to begin
implementation of cooperative measures as soon as they are agreed upon rather than
wait until the final COC is negotiated. In order for ASEAN to achieve an early harvest
package for the COC Malaysia’s Foreign Minister suggested separating the DOC
discussions with China from the COC discussions.23
Premier Le Keqiang’s visited Brunei, Thailand and Vietnam from October 9-15 and, inter
alia, promoted maritime cooperation and joint development. On October 13, Xinhua
urged other regional states to follow suit and ‘take up the magic wand of joint
development.’ A day later, as noted above, Xinhua reported a ‘breakthrough in bilateral
cooperation’ between Beijing and Hanoi.
According to Hua Yiwen, a specialist on global issues, writing in the People's Daily Online
(October 18), Premier Li ‘put forward three “breakthrough” ideas to handle maritime
disputes in a peaceful manner: controlling divergence, exploring joint development, and
promoting maritime cooperation.’ Hua also argued that members of ASEAN who were
not parties to the South China Sea dispute could draw on the China-ASEAN Cooperation
Fund and ‘work together to build a 21st century maritime Silk Road.’
On March 18, 2014 the 10th Working Group Meeting on the Implementation of the
Declaration on Conduct of Parties in the South China Sea met in Singapore to resume
consultations on the COC that began last September. Thailand, in its role as ASEAN’s
country coordinator for China, submitted a document setting out areas that China and
ASEAN has already agreed on relating to the South China Sea. At the subsequent
21
Kyodo News International, “ASEAN leaders discuss how to deal with China on South China Sea,”
GlobalPost.com, April 30, 2013.
22
“Chairman’s Statement of the 23
rd
ASEAN Summit, Bandar Seri Begawan, 9 October 2013.”
http://www.asean.org/news/asean-secretariat-news/item/chairman-s-statement.
23
In August 2013, at the special China-ASEAN talks, Malaysia’s Foreign Minister Datuk Seri Anifah Aman
stated, ‘consultations on the COC must start as soon as possible and should not be tied to the
implementation of the DOC, both should run parallel to each other’. ‘South China Sea issues must be
managed through dialogue: Anifah’, The Sun Daily, August 30, 2013.
http://www.thesundaily.my/news/816837.
8
Seventh China-ASEAN Senior Officials’ Meeting held in Pattaya on April 27, China
submitted a document outlining areas of agreement reached between China and ASEAN
that contained differences in interpretation from the Thai document submitted to the
Working Group. China also declined to be drawn on possible early harvest proposals; it
insisted that each of ASEAN’s ten members set out their positions first.
China’s Drilling Platform
China’s placement of the giant state-owned drilling rig M/V Hai Yang Shi You 981
(HYSY 981) in Block 143 inside Vietnam’s EEZ on May 2 marked a reversal of the
positive trends discussed above. China’s move was unexpected and provocative. This
incident marks the first time China has placed one of its drilling rigs in the EEZ of another
state without prior permission. This was an unexpected move because China-Vietnam
relations have been on an upward trajectory since the visit to Hanoi by Premier Le
Keqing in October. At that time both sides indicated they had reached agreement to
carry forward discussions on maritime issues. China gave Vietnam no advanced
notification of its intended actions. China’s move was also unexpected because Vietnam
had not undertaken any discernable provocative action that would justify China’s
unprecedented actions.
China’s deployment of the rig was provocative because the HYSY 981 was accompanied
by as many as eighty ships, including seven People’s Liberation Army Navy warships.
When Vietnam dispatched Coast Guard and Fishery Surveillance Force vessels to defend
its sovereign jurisdiction, China responded by ordering its ships to use water cannons to
demast the communications antennae of Vietnamese vessels and to deliberately ram
the Vietnamese vessels. These actions were not only highly dangerous, but caused
injuries to the Vietnamese crew. At least one Vietnamese fishing boats was such as a
result of rammng.
China’s deployment of the HYSY 981 and accompanying armada of military, paramilitary
and civilian fishing boats has created the most severe crisis in bilateral relations
between China and Vietnam since their 1979 border war.24 Not only has it undermined
strategic trust between China and Vietnam, but is also a cause for regional and
international concern.
In response, on May 10, 2014 ASEAN Foreign Ministers issued a stand alone statement
expressing ‘their serious concerns over the on-gong developments in the South China
Sea, which increased tensions in the area.’ It is significant that ASEAN ministers issued a
separate statement on the South China Sea. This statement demonstrates ASEAN
24
For background see: Carlyle A. Thayer, “China's Oil Rig Gambit: South China Sea Game-Changer?,” The
Diplomat, May 12, 2014. http://thediplomat.com/2014/05/chinas-oil-rig-gambit-south-china-sea-gamechanger/
and Carlyle A. Thayer, “China and Vietnam Square Off in War of Attrition Over Disputed Waters,”
Asian Currents [Asian Studies Association of Australia], forthcoming.
9
unanimity. Prior to this ASEAN states long treated the Paracels as a separate bilateral
matter between Vietnam and China.
The ASEAN Foreign Ministers’ statement did not specifically mention China by name but
it reiterated ASEAN’s standard policy on the South China Sea.25 The statement urged the
parties concerned to act in accord with international law including the United Nations
Convention on the Law of the Sea, to exercise self-restraint, avoid actions that could
undermine peace and stability, and to resolve disputes by peaceful means without
resorting to the threat or use of force. The ASEAN Foreign Ministers’ Statement called
on all parties to fully and effectively implement the DOC. The Statement also called for
the need for ‘expeditiously working towards an early conclusion of the Code of Conduct
in the South China Sea.’ ASEAN leaders, meeting at their 23rd Summit, endorsed the
statement by their foreign ministers.
Code of Conduct for Southeast Asia’s Maritime Commons
Both China and ASEAN are in agreement that the 2002 DOC should be implemented.
China appears to have made implementation of the DOC a prerequisite to the
conclusion of a COC.
The 2002 DOC makes provision for five cooperative activities: marine environmental
protection; marine scientific research; safety of navigation and communication at sea;
search and rescue operation; and combating transnational crime, ‘including but not
limited to trafficking in illicit drugs, piracy and armed robbery at sea, and illegal traffic in
arms’. Only four expert working groups have been set up. No working group on safety of
navigation and communication at sea has been formed due to China’s sensitivity.
The working groups to implement the DOC must determine exactly where China will
agree to conduct cooperative activities. According to ASEAN diplomats China also insists
that claimant states first recognize China’s sovereignty before cooperative projects can
be implemented.
At the same time ASEAN should commission a group of Southeast Asian experts to form
a study group to research and report on various proposals for confidence building and
cooperation. This group should be explicitly charged with exploring the historical record
to determine if in fact confidence-building measures are likely to lead to trust and hence
address the core security issues raised by territorial disputes in the South China Sea.26
ASEAN has been reluctant to draft its own Code of Conduct without simultaneously
25
The failure to mention China by name is standard ASEAN convention. ASEAN’s first two statements on
the South China Sea, in 1992 and 1995, did not mention China.
26
Carlyle A. Thayer, ‘Do Confidence Building Measures Really Address the Major Challenges to Maritime
Security?’, Presentation to Joint Meeting of the 36
th
Australia Council for Security Cooperation in Asia and
the Pacific Meeting (AUS CSCAP) and ANU Centre of Excellence in Policing and Security (ANU-CEPS)
Maritime Expert Networks Meeting, The Australian National University, Canberra, March 22-23, 2012.
http://www.scribd.com/doc/91612112/Thayer-South-China-Sea-Do-Confidence-Building-Measures-
Address-Major-Challenges-to-Maritime-Secuirty-in-the-South-China-Sea.
10
discussing its content with China. ASEAN fears that if they drew up their own COC China
would reject it. ASEAN’s reluctance to draft its own COC was illustrated by its quiet
rejection of Indonesia’s Zero Draft Regional Code of Conduct. 27 ASEAN’s current
approach of seeking an ‘early harvest package’ appears to be heading no where.
ASEAN-China consultations/negotiations on a DOC/COC are necessary but not sufficient
to obtain a binding Code of Conduct. ASEAN’s dogged focus on negotiating a binding
COC with China in the South China Sea, while an important security goal, is
fundamentally a misplaced priority. Negotiations between China and ASEAN on a COC
have resulted in the division of ASEAN into two groups, claimants and non-claimants,
and make it extremely difficult for ASEAN to adopt a common policy. This approach also
allows China to play on differences among ASEAN members and drag out not only
discussions on DOC cooperative measures but on the COC as well. This provides China
the time to consolidate its presence and hence control over waters and features in the
South China Sea.
If ASEAN does not act it means that China will protract the consultation process. China’s
actions in confronting the Philippines at Second Thomas Shoal, the placement of HYSY
981 in disputed waters, and its land reclamation activities all indicate that the ‘facts of
the ground’ are likely to be altered irrevocably before a COC is agreed. ASEAN should
insist on the standing up of the working group on safety of navigation and
communication at sea as part of the DOC process. The HYSY 981 crisis has made it more
urgent for ASEAN to expeditiously pursue a binding COC for the South China Sea.
Negotiating a COC in the South China Sea with China is too restrictive geographically.
International law, and UNCLOS, covers the world’s oceans and maritime domains not
just the South China Sea. ASEAN-China discussions on a South China Sea COC do not
cover Southeast Asian waters outside of the South China Sea.28
Southeast Asia’s maritime domain encompasses not only the South China Sea and Gulf
of Thailand but also the waters and seas surrounding the littoral and archipelagic states.
This is a vast area encompassing the Exclusive Economic Zones of all ten of Southeast
Asia’s states, including Timor-Leste (but omitting landlocked Laos).
Southeast Asia is roughly divided between its land mass and maritime domain. The
majority of Southeast Asia’s population lives in the coastal strip adjacent to the sea. The
fish in the South China Sea are a vital source of protein for the diet of Southeast Asia’s
population. The sea is important for other natural resources such as oil and gas.
27
For a detailed discussion see: Carlyle A. Thayer, “South China Sea in Regional Politics: Indonesia’s Efforts
to Forge ASEAN Unity on a Code of Conduct,” Presentation to Third Annual CSIS Conference on Managing
Tensions in the South China Sea, Center for Strategic & International Studies, Washington, D. C., June 5-6,
2013. http://csis.org/files/attachments/130606_Thayer_ConferencePaper.pdf.
28 In fact, as difficulties over negotiating accession of nuclear powers to the Southeast Asia Nuclear
Weapons Zone Treaty indicate, there is no agreement over what constitutes the geographic area covered
by the South China Sea.
11
Southeast Asian waters are vital for transport, trade and commerce for regional states
as well as external powers. In sum, important issues of human, food and energy security
are at stake. These issues are interrelated.
ASEAN littoral states encounter difficulties in developing the resources that lie in their
EEZs due to China’s nine-dash line ambit claim over approximately eighty percent of the
South China Sea. Sino-U.S. strategic rivalry is likely to exacerbate regional insecurity and
make exploitation of South China Sea resources more difficult.
Because ASEAN-China discussions on the DOC/COC are likely to be protracted if not
interminable, ASEAN needs to acquire leverage. ASEAN should insist that the DOC and
COC consultations be split into two separate sets of negotiations. At the same time
ASEAN should begin consultations to reach consensus among its members on what they
consider the essential components of a COC.
ASEAN should proceed to reach consensus on its own draft COC in order to present a
united front in consultations with China. ASEAN officials at working group level should
be tasked with revising and updating Indonesia’s Zero Draft Regional Code of Conduct
into a final draft. This should then be passed to ASEAN Senior Officials and then Foreign
Ministers for their approval. This draft should then be presented to government leaders
at an ASEAN Summit. Once approved this document should be circulated to all of
ASEAN’s dialogue partners for endorsement.
The Code of Conduct for Southeast Asia’s Maritime Commons proposal is based on two
premises. First, the security of the maritime domain in Southeast Asia is indivisible for all
ASEAN members, whether coastal or landlocked. The Treaty would make all ASEAN
members equal stakeholders. This would overcome the present division of ASEAN states
into claimant and non-claimant states with respect to the South China Sea.
Second, international law, including UNCLOS, applies equally throughout Southeast
Asia’s maritime domain and not just the South China Sea. It is applicable to all states.
The adoption of the Code of Conduct for Southeast Asia’s Maritime Commons would
reinforce ASEAN’s corporate and legal identity and enhance its ability to deal with
external powers. It would give ASEAN the needed leverage in dealing with China.
The Code of Conduct for Southeast Asia’s Maritime Commons should form an integral
part of the ASEAN Political-Security Community. ASEAN agreement on the Code of
Conduct for Southeast Asia’s Maritime Commons could be the start of other agreements
that address security issues affecting ASEAN member states. For example, ASEAN could
adopt a declaration on sustainable development in the Lower Mekong to address
concerns of its riparian state members (Myanmar, Thailand, Laos, Cambodia and
Vietnam).
This treaty would be designed to resolve Southeast Asia’s numerous maritime boundary
and maritime territorial disputes. Regional maritime disputes involve both claims to
sovereignty over islands and features and sovereign rights over resources in the sea and
continental shelf. The purpose of Code of Conduct for Southeast Asia’s Maritime
Commons would be to set a frame for the peaceful resolution of these disputes, in
12
accord with international law. In other words, ASEAN can best position itself by first
getting its own house in order with respect to maritime disputes among its members.
This would enhance ASEAN’s unity and cohesion and better enable ASEAN to promote
Southeast Asia’s autonomy and ASEAN’s centrality in the region’s security affairs.
All ASEAN states should bring their maritime claims into accord with international law,
with particular attention to eliminating excessive baselines. States should then
demarcate the territorial sea, contiguous zone, EEZ and continental shelf. States should
also clearly distinguish islands from rocks for purposes of maritime delimitation.29 The
expertise of an independent panel of technical and legal experts could be called upon to
assist in determining base lines and that the classification of islands and rocks conform
to international law.
States should also indicate what land and other features in the maritime domain that
they claim sovereignty over. A special ASEAN Commission should review claims to
islands to ensure that they conform to international law and are not being used to claim
excessive maritime jurisdiction.
ASEAN members should consider placing prohibitions on the use of national fishing
fleets as an instrument of maritime enforcement. ASEAN members could incorporate
the Convention for the Suppression of Unlawful Acts against the Safety of Maritime
Navigation in their COC. Other relevant international conventions such as the Code for
Unalerted Encounters at Sea.
Once this process is completed all states should enter into negotiations to resolve
outstanding disputes where maritime zones overlap or where there are conflicting
sovereignty claims to land features. States should agree to a deadline after which, if any
dispute is unresolved, they agree to arbitration under the ASEAN High Council, the
provisions under UNCLOS (International Tribunal on Law of the Sea or International
Court of Justice), or other mutually agreed procedure.30 In exceptional cases the parties
could agree to shelf sovereignty disputes indefinitely
The Code of Conduct for Southeast Asia’s Maritime Commons should also contain
provisions for all parties to cooperate in marine scientific research, marine pollution,
fisheries management, search and rescue, anti-piracy and other agreed areas. For
29
A ruling on the Philippine claim to the UN Arbitral Tribunal on this point would greatly assist the process
of determining baselines and classifying rocks, islands and other features. See: Carlyle A. Thayer, ‘The
Philippines’ Claim to the UNCLOS Arbitral Tribunal: Implications for Viet Nam’, Presentation to
International Workshop on The Sovereignty Over Paracel and Spratly Archipelagoes – Historical and Legal
Aspects, Pham Van Dong University, Quang Ngai City, Vietnam, April 27-28, 2013.
http://www.scribd.com/doc/138615869/Thayer-The-Philippines-Claim-to-the-UNCLOS-Arbitral-Tribunal-
Implications-for-Viet-Nam.
30
Indonesia and Malaysia took their dispute over Ligitan and Sipadan islands to the International Court of
Justice (ICJ) which ruled on 17 December 2002; Malaysia and Singapore took their dispute over Pedra
Branca/Pulau Batu Puteh and Middle Rocks to the ICJ which ruled on 23 May 2008; and Bangladesh and
Myanmar revolved their maritime delimitation dispute through the International Tribunal for the Law of
the Sea, which ruled on 14 March 2013.
13
purposes of security, including protection against piracy and armed criminals, police or
coast guard personnel may be stationed on occupied features. An agreement should be
developed for cooperation among these agencies in the maritime domain.
The Code of Conduct for Southeast Asia’s Maritime Commons should include provision
for setting up a body to oversee its implementation and to handle complaints and
disputes that may arise. Such a body could be included under the ASEAN Political-
Security Community Council or the ASEAN High Council
Who should be included in Code of Conduct for Southeast Asia’s Maritime Commons?
What area should it cover?
The Code of Conduct for Southeast Asia’s Maritime Commons should include all ten
ASEAN members and future members such as Timor-Leste. The Treaty should cover
Southeast Asia’s entire maritime domain - not just the South China Sea - in a manner
analogous to the Zone of Peace Freedom and Neutrality (1971), Treaty of Amity and
Cooperation (1976) and Southeast Asia Nuclear Weapons Free Zone Treaty (1995). The
Treaty should be open to accession by ASEAN’s dialogue partners and other maritime
powers. In order to prevent one state from seeking advantage over another, ASEAN
should follow the precedent set for the SEANWFZ Treaty: accept individual offers of
accession but wait until a critical mass is reached before granting approval.
While ASEAN is drafting its Code of Conduct for Southeast Asia’s Maritime Commons it
should consider six other steps
Fisheries Management
First, the management of fisheries in the South China Sea is a key issue affecting
regional food security. Already fish stocks are being depleted through pollution and
overfishing. There is increased friction between states over fishing rights including the
use of violence at sea by private fishing fleets as an adjunct of national policy. The Asia
Pacific Economic Cooperation (APEC) forum takes the lead in addressing this issue. This
is because it is a non-governmental body that includes Taiwan that plays a major fishing
role in the South China Sea. A formal liaison mechanism linking APEC to the EAS should
be established.
ASEAN Coast Guard
Second, priority should be given to standing up an effective Heads of ASEAN Coast
Guards Meeting and quickly develop practical multilateral cooperation to deal with
challenges to maritime security, including assistance to fishermen in distress and the
humane treatment of fishermen caught poaching. The ASEAN Coast Guards should work
cooperatively with the ASEAN Defence Ministers’ Meeting (ADMM) as part of the ASEAN
Political-Security Council (APSC).
The Heads of ASEAN Coast Guards should work out a common position to present at the
annual meeting of the Heads of Asian Coast Guard Agencies, an organization that
comprises nine ASEAN states (Laos is landlocked) as well as Bangladesh, China, Hong
Kong, India, Japan, South Korea, Maldives, Pakistan, and Sri Lanka.
14
Expanded ASEAN Maritime Forum
Third, priority should be given to institutionalizing and enhancing the role of the
Expanded ASEAN Maritime Forum (AMF) and developing an agenda that addresses the
most pressing security issues such as maritime incidents between warships, maritime
incidents between civilian enforcement ships, prohibition in the use of fishing boats in
maritime enforcement measures, and freedom on navigation and over flight The
Expanded AMF should forward its finding and recommendations to the East Asia
Summit.
ASEAN Political-Security Council
Fourth, ASEAN needs to create an effective ASEAN Political-Security Council by
prioritizing the objectives of the multiple institutions working on maritime security and
streamline their reporting functions. The APSC should coordinate and shape the
recommendations from both civilian and military organisations (such as the AMF and
ADMM) before presenting them to the ASEAN Consultative Council and in turn to the
ASEAN Summit.
Proactive ASEAN Defence Ministers Meeting
Fifth, the ASEAN Defence Ministers need to become more proactive in setting the
priorities for subordinate agencies. For example, the ASEAN Chiefs of Navy Meeting
should be tasked with promoting greater interoperability among its members to address
current challenges to maritime security.
Streamling Regional Architecture
Sixth, in order to address the range of issues impacting on the maritime commons, the
regional architecture needs to be streamlined.31 There is considerable overlap between
multiple organisations concerned with maritime security (e.g., the ASEAN Regional
Forum Inter-Session Meeting on Maritime Security and the ADMM Plus Expert Working
Group on Maritime Security).
Regional cooperation on maritime security has largely been a bottom up process. What
is missing in the regional security architecture is direction from above. The East Asia
Summit (EAS) should become the prime leaders-led forum to consider inputs from the
ARF, the ADMM Plus, and the Expanded AMF Plus. The EAS should give top down
31
Carlyle A. Thayer, “Maritime Security and the 2014 ASEAN Agenda,” Presentation to Public Forum on
ASEAN’s Role in Providing Maritime Security, CNAS Maritime Security Project, Center for a New American
Security, Willard International Continental Hotel, Washington, D.C., February 13, 2014. This presentation
may be accessed at: http://www.youtube.com/watch?v=3Nu58TwLlcU and http://youtu.be/lM7ZnbPgbxc
and Carlyle A. Thayer, “Beyond Territoriality: Managing the Maritime Commons in the South China Sea,”
Paper delivered to the 28
th
Asia-Pacific Roundtable, Institute for Strategic and International Studies, Kuala
Lumpur, , Malaysia, June 2-4, 2014.
15
direction to implement recommendations related to the management of the maritime
commons in the South China Sea.
Within the EAS, ASEAN leaders should position ASEAN between the global powers as the
brokers of consensus on what form a streamlined regional architecture should take and
what policy priorities should be adopted to ensure the security of the maritime
commons in Southeast Asia.
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