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ASEAN and China Set to Agree on Single Draft South China Sea Code of Conduct
Image Credit: ASEAN Secretariat

ASEAN and China Set to Agree on Single Draft South China Sea Code of Conduct

 
 

According to the annotated draft of the Joint Communique of the 51st ASEAN Foreign Ministers’ Meeting to be issued in Singapore early next month, viewed by The Diplomat, the ministers:

… noted with satisfaction that ASEAN Member States and China had agreed on a Single Draft COC [Code of Conduct] Negotiating Text at the 15th ASEAN-China Senior Officials’ Meeting on the Implementation of the Declaration on the Conduct of Parties in the South China Sea [SOM-DOC] in Changsha, China on 27 June 2018.

An internal ASEAN report on the 15th SOM-DOC, also sighted by The Diplomat, records the endorsement of senior officials on four points.

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First, “all parties shall keep the Single Draft COC Negotiating Text strictly confidential throughout the entire process of COC negotiations.”

Second, the Single Draft COC Negotiating Text “will be the basis of COC negotiations… [and is] a living document. All parties reserved the right to consult with their domestic agencies and submit new or revised input.”

Third, the Single Draft COC Negotiating Text will be submitted to the ASEAN-China Post Ministerial Conference (PMC) to be held in Singapore from 2-3 August for notation. The announcement that ASEAN and China had agreed on the Single Draft COC Negotiating Text “will be reserved for the ASEAN-China PMC.”

Fourth, senior officials agreed that there, “will be at least three readings of the Single Draft COC Negotiating Text” by the ASEAN-China Joint Working Group on the Implementation of the Declaration on Conduct of Parties in the South China Sea (JWG-DOC). After each reading the draft text “will be submitted to the SOM-DOC.” The JWG-DOC “will not be precluded from surfacing issues on the COC to the SOM-DOC for consideration and guidance while each reading is underway.”

It is likely that the first reading of the Single Draft COC Negotiating Text will be conducted at the 25th JWG-DOC to be held in Siem Reap, Cambodia from 1-2 September and that the second reading will occur at the 26th JWG-DOC meeting to be held back-to-back with the 16th SOM-DOC in Manila from October 23 to 26.

What is the significance of the agreement between ASEAN members and China on a Single Draft COC Negotiating Text?

It should be recalled that ASEAN and China first began discussions on a Code of Conduct in the South China Sea after China occupied Mischief Reef in 1995. The two sides exchanged their respective COC drafts in March 2000 and agreed to draw up a consolidated text. However, they could not reach agreement on four major issues: the geographic scope (inclusion of the Paracel islands), restrictions on construction on occupied and unoccupied features, military activities in waters adjacent to the Spratly islands, and whether or not fishermen found in disputed waters could be detained and arrested.

As a result, ASEAN and China then concluded negotiations on the DOC, a non-binding political statement, in November 2002. The DOC states that, “the Parties concerned reaffirm that the adoption of a code of conduct in the South China Sea would further promote peace and stability in the region and agree to work, on the basis of consensus, towards the eventual attainment of this objective.”

It took two years of discussions before ASEAN and China reached agreement on the terms of reference establishing the Joint ASEAN-China Working Group to implement the DOC.

At the first meeting of the JWC-DOC in August 2005, ASEAN tabled draft guidelines to implement the DOC. Point two of the ASEAN draft called for ASEAN consultations prior to meeting with China. This proved to be a sticking point. Another six years of intermittent discussions and the exchange of twenty-one successive drafts took place before final agreement was reached. ASEAN revised point two to read that ASEAN would “promote dialogue and consultation among the parties.”

In sum, the discussions on implementing the DOC and drawing up a COC are between China and the 10 ASEAN member states and not ASEAN, per se. Prior to the 15th SOM-DOC in June this year, there were several drafts in circulation presented by individual countries and this proved politically sensitive if not an obstacle to reaching agreement on a consolidated text. Now each of the 11 parties have become stakeholders in the Single Draft COC Negotiating Text process.

While there may be light at the end of the COC tunnel, it must be noted that the full and effective implementation of the 2002 DOC is a prerequisite before the COC can be implemented. The DOC calls for cooperation in five areas: marine environmental protection; marine scientific research; safety of navigation and communication at sea; search and rescue operations; and combating transnational crime, including but not limited to trafficking in illicit drugs, piracy and armed robbery at sea, and illegal traffic in arms.

The internal ASEAN report on the 15th SOM-DOC noted that progress has been made in this area. The SOM endorsed the Work Plan on the Implementation of the DOC (2016-18) and took note of the two ad hoc technical meetings held in conjunction with the 24th JWG-DOC on 25 June. The technical meetings discussed marine environmental protection and safety of navigation.

Here too, progress is likely to be protracted. The internal ASEAN report on the 15th SOM-DOC noted that, “some parties encouraged the convening of ad-hoc technical meetings to enhance practical cooperation for the benefit of DOC implementation.” In discussions on the situation in the South China Sea, the internal ASEAN report noted that, “some parties also reiterated the importance of self-restraint and non-militarization and of refraining from actions that would escalate tensions in the South China Sea.” The wording of these two sentences indicates that consensus has not yet been reached and more work needs to be done.

The annotated draft of the Joint Communique of the 51st ASEAN Foreign Ministers’ Meeting runs to 29 pages including 70 numbered paragraphs. Seven countries plus the ASEAN Secretariat inserted 176 suggested changes. Thailand topped the list at 30 percent, followed by Indonesia (21 percent), Brunei (16 percent), Malaysia (14 percent), Philippines (10 percent), Singapore (6 percent), and Myanmar and the ASEAN Secretariat making up the final 3 percent. Cambodia, Laos and Vietnam did not make any interventions.

The South China Sea section of the Joint Communique of the 51st AMM contains only two paragraphs. Three countries suggested a total of six revisions – Brunei four and the Philippines and Singapore one each.

The first paragraph of the South China Sea section (point 65) reaffirms the importance of “peace, security, stability, safety and freedom of navigation in and overflight above the South China Sea and recognized the benefits of having the South China Sea as a sea of peace, stability and prosperity.” This is followed by a call for the “full and effective implementation” of the DOC “in its entirety.” It then notes that the ASEAN foreign ministers:

… warmly welcomed the improving cooperation between ASEAN and China and were encouraged by the progress of the substantive negotiations towards the early conclusion of an effective Code of Conduct in the South China Sea (COC) on a mutually-agreed timeline.

The text then mentions the foreign ministers’ “satisfaction that ASEAN Member States and China had agreed on a Single Draft COC Negotiating Text” at the 15th SOM-DOC. This paragraph contains an annotation by Brunei requesting that this sentence be deleted on the grounds that the ASEAN-China PMC should make the announcement since it will convene after the 51st AMM.

Singapore, according to the annotation, responded that the sentence should be retained because the 51st AMM Joint Communique “will likely be released after the ASEAN-China PMC. Hence, we can reference Single Draft here.” Singapore also noted that agreement on a Single Draft COC Negotiating Text “is factual, regardless of the announcement by the ASEAN and China FMs [foreign ministers].” Singapore, as ASEAN Chair, appears to want to tie down reference to the Single Draft COC Negotiating Text at both senior official and ministerial levels.

The text also took note of the successful testing of the hotline to manage maritime emergencies in the South China Sea between the foreign ministries of China and ASEAN member states and operationalization of the Joint Statement on the Application of the Code for Unplanned Encounters at Sea (CUES) in the South China Sea. This highlights that progress has been made in two of the five areas of cooperation spelled out in the DOC.

According to the annotation, Brunei suggested the insertion of a new paragraph and additional text to read: “We stressed the importance of undertaking confidence building and preventive measures to enhance, among others, trust and confidence amongst parties.”

The second paragraph in the South China Sea section (point 66) “took note of the concerns expressed by some countries on the land reclamations ‘and activities’ [suggested insertion by Brunei] in the area, which have eroded trust and confidence, increased tensions and may undermine peace, security and stability in the region. Brunei suggested a minor revision in the follow on sentence.

The final intervention, by the Philippines, suggested moving a sentence that referred to the forthcoming ASEAN-China Maritime Exercise to an earlier section of the Joint Communique. In the first section of the Joint Communique, headed ASEAN Community Building, the Philippines also suggested moving point 8, with its reference to “full respect for legal and diplomatic processes,” forward to point 2 to highlight the importance of the Arbitral Tribunal that heard the case brought by the Philippines against China.

The Zero Draft of the Chairman’s Statement of the ASEAN Post Ministerial Conference (PMC) 10 + 1 Sessions with the Dialogue Partners (August 2-3), also viewed by The Diplomat, repeated verbatim the wording in the annotated draft of the Joint Communique of the 51st AMM with respect to the Single Draft COC Negotiating Text and then added these words “and encouraged further progress towards an effective COC.”

It appears that under Singapore’s diplomatic leadership, as ASEAN Chair and ASEAN country coordinator for China, progress is being made to develop cooperative activities envisaged in the 2002 DOC, a prerequisite for the implementation of the COC. At the same time, Singapore has succeeded in focusing the attention of ASEAN member states and China on completing a Single Draft COC Negotiating Text on a mutually agreed time line including at least three readings of the draft text.

Singapore’s successful efforts at consensus-making at this 51st AMM stand in contrast to the fissures that emerged earlier in April when the South China Sea section of the Chairman’s Statement  at the 32nd ASEAN Leaders’ Summit was reduced from seven to one paragraph in an attempt to paper over differences. This time Cambodia and Vietnam were conspicuous by their silence.

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