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Room: Union Square 8. Hilton Union Square Chair Alexander Vuving Disc. Alexander Vuving Between a rock and a hard place: Philippines strategies toward China and the US in the South China Sea
Aileen Baviera, University of the Philippines
259
Securing
Maritime
Security
in
the
South
China
Sea:
Norms,
Legal
Regimes
and
Realpolitik
Carlyle
Thayer
Presentation to panel on Fault Lines and Security Dynamics Along Asias Lifeline International Studies Association Annual Convention Hilton San Francisco Union Square San Francisco, April 6, 2013
Securing
Maritime
Security
in
the
South
China
Sea:
Norms,
Legal
Regimes
and
Realpolitik
Carlyle
A.
Thayer*
The
University
of
New
South
Wales
Introduction
The
sea-lanes
that
transit
the
South
China
Sea
lie
in
the
heart
of
the
Indo-Pacific
maritime
region.
The
sea-lanes
are
literally
lifelines
for
the
rapidly
growing
economies
of
South
East
and
East
Asia
that
are
dependent
on
trade
and
the
supply
of
energy
resources
from
the
Middle
East.
These
sea-lanes
are
becoming
increasingly
congested,
contested
and
prone
to
strife
as
the
littoral
states
seek
to
assert
sovereignty
and
sovereign
jurisdiction
over
islands
and
rocks
and
their
surrounding
waters
in
the
South
China
Sea.
This
paper
discusses
three
major
approaches
to
maritime
security
in
the
South
China
Sea:
norms,
legal
regimes
and
realpolitik.
These
approaches
are
not
mutually
exclusive;
they
mutually
reinforce
each
other.
The
paper
focuses
on
efforts
by
the
Association
of
Southeast
Asian
Nations
(ASEAN)
to
promote
norms
and
legal
regimes
as
their
preferred
instrument
to
regulate
the
behavior
of
China
in
the
South
China
Sea.
The
paper
concludes
that
norms
and
legal
regimes
are
a
necessary
but
not
sufficient
component
for
the
maintenance
of
maritime
security.
ASEAN
has
not
yet
matured
as
a
multilateral
organization
and
individual
differences
among
its
members
undermine
effective
collection
action.
Some
ASEAN
states
hedge
and
engage
in
soft
balancing
with
the
United
States.
China
exploits
differences
among
ASEAN
members
to
promote
its
interests
through
a
mixture
of
realpolitik
and
selective
support
for
norms
and
legal
regimes.
Norms
The
ASEAN
Way
Since
its
founding
in
1967
members
of
the
Association
of
Southeast
Asian
Nations
have
sought
to
promote
norms
to
guide
relations
with
each
other
as
well
as
their
collective
relations
with
external
states.
Collectively
these
norms
are
referred
to
as
the
ASEAN
Way;
they
include
(but
are
note
limited
to)
non-interference
in
the
domestic
affairs
of
other
countries,
habits
of
dialogue
and
consultation,
inclusiveness,
decision-making
by
consensus,
progress
at
a
pace
comfortable
to
all,
non-use
of
force
and
peaceful
settlement
of
disputes.
The
norms
of
inter-ASEAN
relations
are
spelled
out
in
the
founding
ASEAN
(or
Bangkok)
Declaration,
Treaty
of
Amity
and
Cooperation
in
Southeast
Asia
(TAC),
the
Bali
Concord
II
and
other
documents.
As
ASEAN
has
developed
it
has
attempted
to
become
a
more
rules-based
organization
through
the
adoption
of
the
ASEAN
Charter.
ASEAN
has
also
*
Email:
c.thayer@adfa.edu.au.
Academic
papers
are
archived
at
Scribd.com.
set
for
itself
the
objective
of
becoming
an
ASEAN
Community
by
2015
composed
of
three
pillars
of
which
the
political-security
community
is
one.
As
ASEAN
has
promoted
regionalism
it
has
attempted
to
embed
its
norms
in
ASEAN- centric
multilateral
institutions
such
as
the
ASEAN
Regional
Forum.
Further,
ASEAN
has
attempted
to
promote
legal
regimes
conducive
to
the
security
of
its
members.
For
example,
the
TAC
was
opened
for
accession
by
non-member
states
and
made
a
requirement
for
admission
into
the
East
Asia
Summit.
The
signatories
to
the
TAC
pledged
to
observe
the
following
principles:
a.
Mutual
respect
for
the
independence,
sovereignty,
equality,
territorial
integrity
and
national
identity
of
all
nations;
b.
The
right
of
every
State
to
lead
its
national
existence
free
from
external
interference,
subversion
or
coercion;
c.
Non-interference
in
the
internal
affairs
of
one
another;
d.
Settlement
of
differences
or
disputes
by
peaceful
means;
e.
Renunciation
of
the
threat
or
use
of
force;
f.
Effective
cooperation
among
themselves.
1
South
China
Sea
Territorial
disputes
in
the
South
China
Sea
have
severely
challenged
ASEANs
promotion
of
norms
and
legal
regimes
both
among
its
members
and
with
regional
states.
In
1992,
for
example,
ASEAN
issued
its
first
statement
of
concern
in
response
to
rising
tensions
in
the
South
China
Sea
between
China
and
then
non-member,
Vietnam.2
This
declaration
has
little
noticeable
impact
on
state
behavior
as
neither
China
nor
Vietnam
were
members
of
ASEAN
or
signatories
to
the
TAC.
In
1995,
when
China
occupied
Mischief
Reef,
a
maritime
feature
claimed
by
the
Philippines,
ASEAN
foreign
ministers
issued
their
second
statement
on
the
South
China
Sea
that
expressed
their
serious
concern
and
urged
the
parties
directly
involved
to
refrain
from
taking
actions
that
de-stabilize
the
situation.3
Both
China
and
Vietnam
(which
was
about
to
become
an
ASEAN
member)
issued
statements
offering
various
degrees
of
support
for
the
ASEAN
Statement.
This
section
reviews
ASEANs
unsuccessful
efforts
to
negotiate
a
COC
with
China
in
the
period
from
1995
to
2002.
Declaration
on
Conduct
of
Parties
1
Treaty
of
Amity
and
Cooperation
in
Southeast
Asia,
24
February
1976;
http://www.asean.org/news/item/treaty-of-amity-and-cooperation-in-southeast-asia-indonesia-24
february-1976-3.
2
ASEAN
Declaration
On
The
South
China
Sea,
Manila,
Philippines,
22
July
1992;
http://www.aseansec.org/1196.htm.
3
Statement by the ASEAN Foreign Ministers on the Recent Developments in the South China Sea 18 March 1995; http://www.aseansec.org/2089.htm.
After
Chinas
occupation
of
Mischief
Reef,
the
Philippines,
as
the
aggrieved
party,
sought
the
backing
from
its
fellow
ASEAN
members
for
a
COC
for
the
South
China
Sea
that
would
constrain
China
from
further
encroachments
on
Philippines
sovereignty.
In
late
1999,
after
four
years
of
discussion,
ASEAN
members
finally
reached
agreement
on
a
COC.4
In
March
2000,
ASEAN
and
China
exchanged
their
respective
draft
COCs
and
agreed
to
consolidate
them
into
one
document.5
However,
four
major
areas
of
disagreement
quickly
emerged:
geographic
scope,
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.
And
impasse
was
reached.
In
November
2002,
ASEAN
member
states
and
China
signed
a
non-binding
political
statement
entitled
Declaration
on
Conduct
of
Parties
in
the
South
China
Sea
(DOC).
The
DOC
contained
four
trust
and
confidence
building
measures:
Pending
the
peaceful
settlement
of
territorial
and
jurisdictional
disputes,
the
Parties
concerned
undertake
to
intensify
efforts
to
seek
ways,
in
the
spirit
of
cooperation
and
understanding,
to
build
trust
and
confidence
between
and
among
them,
including:
a.
holding
dialogues
and
exchange
of
views
as
appropriate
between
their
defence
and
military
officials;
b.
ensuring
just
and
humane
treatment
of
all
persons
who
are
either
in
danger
or
in
distress;
c.
notifying,
on
a
voluntary
basis,
other
Parties
concerned
of
any
impending
joint/combined
military
exercise;
and
d.
exchanging,
on
a
voluntary
basis,
relevant
information.
For
further
background
consult:
Carlyle
A.
Thayer,
Challenges
to
ASEAN
Cohesion:
The
Policy
of
Constructive
Engagement
and
a
Code
of
Conduct
for
the
South
China
Sea,
Paper
to
international
workshop
on
Regionalism
and
Globalism
in
Southeast
Asia,
Department
of
Political
Science
and
International
Relations,
University
of
Tampere
and
the
Centre
for
Southeast
Asian
Studies,
bo
Akademi
University,
Marienhamn,
land,
Finland,
June
2-4,
2000,
31-44.
ASEAN
now
comprised
ten
members
with
the
addition
of
Vietnam
(July
1995),
Laos
and
Myanmar
(1997)
and
Cambodia
(1999).
http://www.scribd.com/doc/103248217/Thayer-Challenges-to-ASEAN%E2%80%99s-Cohesion-The-Policy- of-Constructive-Engagement-and-a-Code-of-Conduct-for-the-South-China-Sea.
5
Association of Southeast Asian Nations, Regional Code of Conduct in the South China Sea (Draft), March 2000 and Peoples Republic of China, Code of Conduct on the South China Sea (Draft of the Chinese Side), March 2000. Both documents are in the authors possession.
5
e.
combating
transnational
crime,
including
but
not
limited
to
trafficking
in
illicit
drugs,
piracy
and
armed
robbery
at
sea,
and
illegal
traffic
in
arms.
The parties to the DOC reaffirmed 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.6 The DOC was stillborn. It took a further twenty-five months before senior officials from ASEAN and China reached agreement on the terms of reference for the ASEAN-China Joint Working Group (JWC) to implement the DOC.7 In August 2005, ASEAN tabled draft Guidelines to Implement the DOC at the first meeting of the JWC. Point two called for ASEAN consultations prior to meeting with China.8 China objected and repeated its long- held position that the relevant parties should resolve sovereignty and jurisdictional disputes bilaterally. This proved such a sticking point that another six years of intermittent discussions and twenty-one successive drafts were exchanged before final agreement on the guidelines was reached. In summary, the above discussion illustrates that although ASEAN was able to forge consensus among its members on the norms for a COC for the South China Sea, it was unsuccessful in obtaining Chinas agreement to negotiate on these norms on a multilateral basis. However, once ASEAN made its concession on this point, it was able to engage China in promoting confidence-building measures (CBMs) with the ultimate objective of creating a legal regime, embodied in a COC, to govern state behavior in the South China Sea. The following section reviews ASEANs efforts to engage China in implementing the DOCs CBMs and to negotiate a legal regime bases on the COC to address tensions caused by territorial disputes in the South China Sea.
Legal
Regimes
Guidelines
to
Implement
the
DOC
In
July
2011,
ASEAN
dropped
its
insistence
on
prior
consultation
among
its
members
before
discussing
the
COC
with
China.
ASEAN
now
agreed,
to
promote
dialogue
and
consultation
among
the
parties,
a
considerable
watering
down
of
its
original
position.
China
and
ASEAN
now
reached
agreement
on
the
Guidelines
to
Implement
the
DOC.
The
ASEAN
draft
Guidelines
included
one
new
point
specifying
that
activities
and
projects
carried
out
under
the
DOC
should
be
reported
to
the
ASEAN-China
Ministerial
Meeting.9
6
Declaration
on
Conduct
of
Parties
in
the
South
China
Sea,
November
4,
2002,
Point
10,
http://www.aseansec.org/13163.htm.
7
ASEAN-China
Senior
Officials
Meeting
on
the
Implementation
of
the
Declaration
on
the
Conduct
of
Parties
in
the
South
China
Sea,
Kuala
Lumpur,
7
December
2004
and
Terms
of
Reference
of
the
ASEAN- China
Joint
Working
Group
on
the
Implementation
of
the
Declaration
on
the
Conduct
of
Parties
in
the
South
China
Sea;
http://www.aseansec.org/16888.htm
and
http://www.aseansec.org/16885.htm.
8
Tran
Truong
Thuy,
Recent
Developments
in
the
South
China
Sea:
From
Declaration
to
Code
of
Conduct,
in
Tran
Truong
Thuy,
ed.,
The
South
China
Sea:
Towards
a
Region
of
Peace,
Security
and
Cooperation
(Hanoi:
The
Gioi
Publishers,
2011),
104.
9
In
all
other
respects
the
2011
Guidelines
remained
unchanged
from
the
original
ASEAN
draft
tabled
in
2005.
Implementing
the
DOC
After
the
DOC
Guidelines
were
adopted,
two
separate
diplomatic
tracks
emerged.
The
first
track
involved
discussions
among
ASEAN
members
themselves
on
a
draft
Code
of
Conduct
that
they
would
later
present
to
China.
The
second
track
involved
negotiations
between
China
and
ASEAN
member
states
on
practical
measures
to
implement
the
DOC.
On
November
11,
2011,
ASEAN
Senior
Officials
(ASEAN
SOM)
met
in
Bali
to
follow
up
on
the
DOC
Guidelines
in
preparation
for
the
19th
ASEAN
and
related
summits.10
According
the
Ade
Padmo
Sarwono,
Director
General
of
ASEAN
Politics
and
Security
in
Indonesias
Foreign
Ministry,
the
ASEAN
SOM
decided
that
its
members
should
meet
first
to
agree
on
what
cooperative
activities
and
projects
in
the
South
China
Sea
might
be
carried
out
before
meeting
with
Chinese
officials.
The
aim
of
the
meeting
with
Chinese
officials
would
be
to
discuss
implementation
and
continuation
of
declaration
on
conduct
(DOC)
including
several
projects
in
[the]
South
China
Sea
and
to
determine
what,
when,
where
and
how
the
project
would
be
carried
out.11
Also,
according
to
Ade
Padmo
Sarwono,
a
working
group
of
ASEAN
Senior
Officials
discussed
the
Code
of
Conduct
as
a
follow
up
to
the
ASEAN
SOM
discussions
in
July.
Once
ASEAN
members
and
China
had
agreed
on
measures
to
implement
the
DOC
Guidelines,
they
would
resume
their
dialogues
on
COC
which
contains
specific
and
technical
matters
related
to
cooperation
around
the
South
China
Sea.12
Indonesias
Foreign
Minister
Marty
Natalegawa
offered
this
clarification
of
the
negotiating
process:
We
have
begun
the
conversation
of
the
code
of
conduct
among
ASEAN
first,
but
there
will
be
a
time
when
we
begin
to
engage
China.13
In
a
later
interview
he
confirmed
that
after
agreement
on
the
DOC
Guidelines
ASEAN
members
were
now
moving
on
to
the
Code
of
Conduct
(CoC).14
Later,
Marty
noted
that
after
the
DOC
Guidelines
were
adopted
there
was
some
apprehension,
a
doubt,
because
China
used
the
terms
appropriate
timing
and
appropriate
conditions.
We
chose
not
to
be
preoccupied
by
what
is
meant
by
appropriate,
we
are
just
getting
on
10
According
to
Kavi
Chongkittavorn,
Senior
Asean
officials
met
and
discussed
the
terms
of
reference
last
year
[November
2011]
among
themselves,
ignoring
Chinas
request
to
sit
in
on
the
meeting,
see:
New
chair
Cambodia
can
reset
Asean
power,
The
Nation,
January
16,
2012.
11 12 13
Antara, ASEAN ready to discuss continuation of doc with China, November 14, 2011. Antara, ASEAN ready to discuss continuatin of doc with China, November 14, 2011.
Ahmad
Pathoni,
ASEAN
starts
work
on
South
China
Sea
code
of
conduct,
Deutsche
Presse-Agentur,
November
16,
2011.
14
Mustaqim Adamrah, ASEAN can persuade China toward CoC negotiation, mediate regional conflict, The Jakarta Post, November 25, 2011.
7
with
it.
Having
decided
to
move
forward
with
the
process
of
the
CoC,
China
is
now
saying
its
ready
to
15 join
in
the
initial
session.
Drafting
the
ASEAN
Code
of
Conduct
A
meeting
on
drafting
a
COC
with
China
was
scheduled
for
January
2012
with
a
view
to
completion
by
July
2012.16
It
was
at
this
point
that
China
changed
tack
and
sought
a
seat
at
the
ASEAN
discussions.
The
timing
of
Chinas
involvement
with
ASEAN
in
drafting
the
COC
quickly
became
a
contentious
issue
within
ASEAN.
ASEAN
Foreign
Ministers
met
on
January
11,
2012
in
Siem
Reap,
Cambodia
prior
to
the
scheduled
talks
between
ASEAN
members
and
China.
Philippines
Secretary
for
Foreign
Affairs,
Alberto
del
Rosario,
reiterated
an
earlier
proposal
that
a
meeting
be
held
as
soon
as
possible
among
the
claimant
states
and
China,
under
the
guidance
of
ASEAN.17
Del
Rosario
told
his
colleagues
that
the
Philippines
is
willing
to
commit
to
a
Code
of
Conduct
that
addresses
the
very
core
of
the
issue
and
that
is
to
define,
clarify
and
segregate
the
disputed
areas
from
the
non-disputed
areas
in
the
West
Philippine
Sea
[South
China
Sea].18
Prior
to
the
meeting
of
the
foreign
ministers,
the
Philippines
circulated
an
informal
working
draft
simply
titled,
Philippines
Draft
Code
of
Conduct.
The
document
was
eight
pages
in
length
and
comprised
ten
articles.
In
line
with
official
Philippine
foreign
policy
promoting
the
South
China
Sea
as
a
Zone
of
Peace,
Freedom,
Friendship
and
Cooperation
(ZOPFF/C),
the
draft
COC
proposed
a
Joint
Cooperation
Area
in
the
South
China
Sea
(Article
III),
a
Joint
Permanent
Working
Committee
to
implement
the
ZOPFF/C
(Article
IV),
the
Application
of
Part
IX
of
the
1982
United
Nations
Convention
on
Law
of
the
Sea
in
the
South
China
Sea
(Article
V),19
and
Dispute
Settlement
Mechanisms
(Article
VI).
The
remaining
articles
contained
standard
provisions
such
as
principles
(Article
I),
objectives
(Article
II),
reservations
(Article
VII),
signature
and
ratification
(Article
VIII),
entry
into
force
(Article
IX)
and
review
and
amendments
(Article
X).20
According
to
a
press
release
issued
after
the
meeting,
the
ASEAN
ministers
stressed
on
the
need
to
intensify
efforts
to
ensure
the
effective
and
full
implementation
of
the
DoC
15
Mustaqim
Adamrah,
ASEAN
can
persuade
China
toward
CoC
negotiation,
mediate
regional
conflict,
The
Jakarta
Post,
November
25,
2011.
16
Antonio
Siegfried
O.
Alagado,
ASEAN,
China
to
set
ground
rules
on
sea
issues
in
January,
BusinessWorld,
November
28,
2011
and
Senator
Franklin
Drilon
quoted
in
Butch
Fernandez,
Senator
help
DFA
lobby
for
code
of
conduct
on
South
China
Sea,
Business
Mirror,
January
11,
2012.
17
Associated
Press,
Philippines
seeks
Asian
summit
on
disputed
islands,
The
Economic
Times,
January
15,
2012
and
J.
P.
D.
Poblete,
ASEAN,
China
tackle
cooperation,
BusinessWorld,
January
15,
2012.
18 19
Part
IX
of
UNCLOS
is
headed
Enclosed
or
Semi-Enclosed
Seas.
It
contains
two
articles,
Article
122
(definition)
and
Article
123
(cooperation
of
states
bordering
enclosed
or
semi-enclose
seas).
20
Carlyle A. Thayer, Is the Philippines an Orphan? The Diplomat, May 2, 2012. http://the- diplomat.com/2012/05/02/is-the-philippines-an-orphan/.
in
order
to
maintain
peace,
security
and
stability
in
the
South
China
Sea.21
However,
according
to
del
Rosario,
the
COC
was
not
discussed
in
a
comprehensive
manner
and
there
was
no
real
focus
given
to
the
DOCThere
were
strong
expressions,
however,
on
the
desirability
of
finalizing
a
binding
DOC
in
2012.22
ASEAN-China
Discussions
on
the
DOC
Two
days
after
the
ASEAN
Foreign
Ministers
meeting,
ASEAN
and
Chinese
senior
officials
met
in
China
for
three
days
(January
13-15)
to
discuss
practical
measures
to
implement
the
DOC
and
how
to
utilize
the
three
billion
yuan
(US
$476
million)
China-ASEAN
Maritime
Cooperation
Fund
announced
by
China
in
November
2011.23
At
the
conclusion
of
the
meeting
it
was
agreed,
to
speed
up
specific
cooperation
projects,
and
to
host
seminars
on
maritime
disaster-relief,
environment,
rescue
and
biology
[sic]
research.24
Towards
this
end
four
experts
committees
were
set
up:
maritime
scientific
research,
environmental
protection,
search
and
rescue,
and
transnational
crime.
These
committees
were
derived
from
the
five
cooperative
activities
listed
in
the
2002
DOC.
Significantly
no
expert
committee
on
safety
of
navigation
and
communication
at
sea
was
established
due
to
its
contentious
nature.
Little
progress
was
made
on
a
Code
of
Conduct;
according
to
the
Peoples
Daily,
China
fully
respects
the
position
and
consideration
of
the
ASEAN
and
would
discuss
and
draft
Code
of
Conduct
with
the
ASEAN
when
conditions
permit
[emphasis
added].25
ASEAN
Foreign
Minister
and
Senior
Officials
Meeting
The
issue
of
ASEANs
draft
COC
and
the
timing
of
Chinas
involvement
in
the
drafting
process
came
to
a
head
at
the
20th
ASEAN
Summit
held
in
Phnom
Penh
from
April
3-4,
2012.
Prior
to
the
summit
President
Hu
Jintao
made
a
high-profile
visit
to
Cambodia.
In
discussions
with
Prime
Minister
Hun
Sen
President
Hu
indicated
that
Beijing
did
not
21 22 23
Xinhua,
ASEAN
FMs
end
meeting
with
agreements
on
regional,
international
issues,
Shanghai
Daily,
January
11,
2012.
J.
P.
D.
Poblete,
ASEAN,
China
tackle
cooperation,
BusinessWorld,
January
15,
2012.
th
This
was
the
4
ASEAN-China
SOM
on
implementing
the
DOC.
Darwin
Wally
T.
Wee,
ASEAN,
China
hold
three-day
meet
to
reduce
tensions
in
the
South
China
Sea,
MindadNews,
January
13,
2012;
Xia
Wenhui,
Maintaining
Safety
Valve
in
South
China
Sea
is
Vital,
Xinhua,
January
13,
2012
and
Darwin
Wally
T.
Wee,
Situation
in
South
China
Sea
peaceful
and
stable,
MindadNews,
January
15,
2012.
Kavi
Chongkittavorn
asserts
that
this
meeting
took
place
after
months
of
delay;
see:
New
chair
Cambodia
can
reset
Asean
power,
The
Nation,
January
16,
2012.
24
China,
ASEAN
hold
meeting
on
South
China
Sea,
Xinhua,
January
15,
2012.
Other
reports
referred
to
joint
workshop
on
marine
ecological
environment
and
monitoring
techniques
(to
be
held
in
China)
and
search
and
rescue
(Vietnam),
see:
Erwida
Maulia,
RI
lauded
for
S.
China
Sea
maritime
proposal,
The
Jakarta
Post,
January
18,
2012.
For
a
critical
view
that
argues
joint
workshops
would
not
address
core
problems
in
the
area
that
must
be
resolved
to
bring
about
durable
stability
in
the
Asia-Pacific
region,
see:
Fahlesa
Munabari,
A
look
into
ASEAN-Chinas
DOC,
The
Jakarta
Post,
February
7,
2012.
25
Zhong Sheng, Resolving South China Sea issue needs concrete measures, Peoples Daily Online, January 17, 2012.
want
talks
on
a
binding
code
of
conduct
to
move
too
quickly.26
Whether
acting
under
Chinese
inducement
or
not,
Cambodia,
as
ASEAN
Chair,
dropped
the
South
China
Sea
from
the
formal
agenda
of
the
ASEAN
Summit.27
ASEAN
foreign
ministers
and
senior
officials
met
on
April
2nd
the
day
before
the
start
of
formal
proceedings.
Both
Vietnam
and
the
Philippines
immediately
raised
the
South
China
Sea
issue
and
the
drafting
of
a
legally
binding
COC.28
When
ASEAN
Secretary
General
Surin
Pitsuwan
announced
that
China
might
be
invited
to
take
part
in
the
drafting
of
the
code
he
precipitated
what
del
Rosario
called
a
big
disagreement.29
Both
the
Philippines
and
Vietnam
objected
strongly
and
a
compromise
was
reached;
ASEAN
would
proceed
on
its
own
to
draft
a
COC,
while
communication
with
China
would
take
place
through
the
ASEAN
Chair
at
the
same
time.30
When
the
meeting
of
ASEAN
foreign
ministers
and
senior
officials
considered
a
proposal
relayed
from
China
for
the
setting
up
of
a
group
of
experts
and
prominent
statesmen
that
would
help
think
of
solutions,
Vietnam
and
the
Philippines
rejected
it
outright.31
Secretary
del
Rosario
later
issued
a
statement
that
noted
the
ASEAN
SOM
Working
Group
was
currently
engaged
in
identifying
the
main
elements
of
the
COC.
Del
Rosario
argued,
I
think
the
difference
of
opinion
lies
in
the
fact
that
we
are
advocating
a
draft
of
the
COC
be
prepared
before
we
sit
down
with
China.
Others
are
taking
the
view
that
China
should
be
invited
to
come
in
for
the
initial
discussions.32
Indonesias
Foreign
Minister
Marty
Natalegawa,
for
example,
said
ASEAN
should
hear
Chinas
views
before
presenting
Beijing
with
a
draft
code.
He
said
it
was
important
to
listen
and
we
hear
what
Chinas
view
are
so
that
we
can
really
develop
a
position
that
is
cohesive
and
coherent.
According
to
del
Rosario,
Were
saying
that
were
happy
to
invite
China
but
this
should
be
done
after
the
approval
of
the
CoC
(by
ASEAN).
I
think
that
we
should
be
masters
of
our
own
destiny
as
far
as
the
CoC
is
concerned,
adding
that
Vietnam
expressed
a
26 27 28
Reuters, Philippines pushes South China Sea issue at summit, ABS CBN News, April 2, 2012. Lindsay Murdoch, Islands off agenda but still split ASEAN, The Sydney Morning Herald, April 4, 2012.
Heng
Reaksmey,
In
Surprise,
Cambodia
Puts
South
China
Sea
on
Summit
Agenda,
VOA
News,
April
3,
2012
and
Jim
Gomez
(Associated
Press),
Southeast
Asian
countries,
China
bring
South
China
Sea
territorial
rift
to
regional
summit,
The
Washington
Post,
April
3,
2012.
29 30 31
AFP, ASEAN paralysed over China sea dispute, say analysts, April 4, 2012. Thayer, Is the Philippines an Orphan?.
Sopheng
Cheang,
Southeast
Asia
nations,
China
bring
riff
to
summit,
Associated
Press,
April
3,
2012;
Jim
Gomez
(Associated
Press),
Southeast
Asian
countries,
China
bring
South
China
Sea
territorial
rift
to
regional
summit,
The
Washington
Post,
April
3,
2012
and
Amiel
Ungas,
Cambodia
Wants
Economic
Focus:
Vietnam
&
Philippines
Differ,
Israel
National
News,
Global
Agenda,
April
4,
2012.
China
proposed
a
group
of
twenty,
ten
from
China
and
one
from
each
ASEAN
member.
32
Irwin Loy, Burma, S. China Sea Dominate ASEAN Summit Discussions, VOA News, April 2, 2012 and Irwin Loy, Burmese Election, South China Sea, Draw Attention at ASEAN Summit, VOA News, April 2, 2012.
10
similar
sentiment.
Del
Rosario
said
it
would
be
difficult
for
ASEAN
to
have
all
of
the
ten
members
agree
on
inviting
China
to
be
involved
in
the
codes
drafting.
We
are
trying
to
do
it
as
fast
as
we
can,
but
what
we
are
objecting
to
is
we
dont
want
China
to
be
invited
in
terms
of
the
drafting
and
decision-making,
he
said.
When
asked
which
countries
wanted
China
to
be
a
part
del
Rosario
replied,
I
think
Cambodia
would
be
one
of
them.33
Del
Rosario
also
proposed
a
dispute
settlement
mechanism.
He
told
the
ASEAN
foreign
ministers,
I
reiterate
that
the
Philippines
adheres
to
the
primacy
of
international
law
in
resolving
the
disputes.
We
believe
that
a
rules-based
approach
under
the
dispute
settlement
mechanism
established
in
UNCLOS
is
the
legitimate
solution
in
addressing
conflicting
and
overlapping
claims
in
the
West
Philippine
Sea.34
According
to
del
Rosario,
the
disputed
areas
of
the
South
China
Sea
must
be
clarified
and
segregated
from
non-disputed
areas.
Del
Rosario
concluded,
The
Philippines
hopes
that
the
code
of
conduct
will
be
a
real
move
forward
not
merely
in
terms
of
form,
but
more
importantly
of
substance.35
A
senior
Southeast
Asian
diplomat
revealed
that
ASEAN
members
were
also
divided
on
whether
to
include
a
dispute
settlement
mechanism
in
the
code.
Despite
internal
disagreements,
ASEAN
ministers
were
agreed
to
adopt
a
code
of
conduct
in
2012.
20th
ASEAN
Summit
(April
2012)
The
first
day
of
the
20th
ASEAN
Summit
was
a
formal
plenary
meeting
that
considered
a
wide
range
of
issues,
including
the
South
China
Sea.
According
to
a
statement
issued
by
the
Philippines
Department
of
Foreign
Affairs,
President
Benigno
Aquino
argued
that
ASEAN
should
forge
a
common
position
on
a
proposed
code
of
conduct
before
talking
with
China.
He
said
the
fundamentals
of
the
proposed
code
should
be
internal
to
ASEANs
members.36
President
Aquino
also
stated,
It
is
important
we
maintain
ASEAN
centrality
After
the
CoC
(code
of
conduct)
has
been
finalized
by
ASEAN,
then
ASEAN
member
states
will
meet
with
China.
According
to
Soeu
Rat
Chavy,
Secretary
of
State
for
the
Cambodian
Ministry
of
Foreign
Affairs,
the
South
China
Sea
issue
was
put
back
on
the
agenda.
At
the
conclusion
of
the
ASEAN
Summits
formal
plenary
session
the
Chairmans
Statement
noted
the
following
under
the
heading
South
China
Sea:
91.
We
reaffirmed
the
importance
of
the
Declaration
on
the
Conduct
of
Parties
in
the
South
China
33 34
Martin
Abbugao,
Philippines
urges
united
ASEAN
stand
on
South
China
Sea,
Agence
France-Presse,
April
3,
2012.
PNA,
Phl
hopes
code
of
conduct
on
South
China
Sea
issue
to
move
forward
substantially,
Zamboanga
Times,
April
3,
2012.
35
Agence
France-Presse,
ASEAN
struggles
with
South
China
Sea
code,
ABS
CBN
News,
April
2,
2012
and
PNA,
Phl
hopes
code
of
conduct
on
South
China
Sea
issue
to
move
forward
substantially,
Zamboanga
Times,
April
3,
2012.
36
Martin Abbugao, Philippines urges united ASEAN stand on South China Sea, Agence France-Presse, April 3, 2012.
11
Sea
(DOC)
as
a
milestone
document
signed
between
ASEAN
and
China
embodying
the
collective
commitment
to
promoting
peace,
stability,
and
mutual
trust
in
the
South
China
Sea
and
to
ensuring
the
peaceful
resolution
of
disputes
in
this
area
in
accordance
with
the
Charter
of
the
United
N ations,
and
the
universally
recognized
principles
of
international
law,
including
the
1982
United
Nations
Convention
on
the
Law
of
the
Sea
(UNCLOS)
and
to
move
for
the
eventual
realization
of
a
regional
code
of
conduct
(COC).
92.
We
stressed
the
need
to
intensify
efforts
to
ensure
the
effective
and
full
implementation
of
the
DOC
based
on
the
Guidelines
for
the
implementation
of
the
DOC.
In
this
regard,
we
supported
the
convening
of
the
ASEAN-China
Joint
Workshop
to
commemorate
the
10th
Anniversary
of
the
DOC,
in
Cambodia,
in
the
fourth
quarter
of
2012.
We
also
looked
forward
to
the
holding
of
the
5th
ASEAN- China
Senior
Officials
on
DOC
and
the
8th
Meeting
of
the
ASEAN-China
Joint
Working
Group.
At
a
post-summit
press
conference,
ASEAN
Secretary
General
Surin
admitted
there
were
shades
of
difference
among
ASEAN
members
drawn
between
those
who
had
claims
and
those
who
did
not
over
when
to
include
China
in
negotiations
over
a
COC.37
According
to
Indonesias
Foreign
Minister
Marty
Natalegawa,
This
is
not
necessarily
a
neat
sequential
process
isnt
it.
Of
course,
ASEAN
first
and
foremost,
must
have
a
solid
consolidated
position.
But
at
the
same
time
as
we
proceed,
there
will
be
constant
communication
through
the
ASEAN-China
framework,
so
that
whatever
final
position
ASEAN
comes
up
with
will
have
benefited
from
having
some
kind
of
communication
with
China.38
He
concluded,
The
big
picture
is
the
one
that
must
not
be
lost.
Namely
that
in
contrast
to
the
recent
past,
now
we
have
a
situation
where
all
are
basically
rushing
and
competing
to
get
the
Code
of
Conduct
off
the
ground.39
Quite
clearly
ASEAN
members
had
reached
a
compromise.
However,
a
Philippine
diplomat
involved
in
the
negotiations
said
his
country
was
frustrated
by
Indonesias
rejection
of
any
conflict
resolution
mechanism
in
the
code.
He
added
that
other
countries,
including
Cambodia,
were
either
lukewarm
to
the
proposal
or
had
ignored
it
altogether.40
ASEANs
Proposed
Elements
of
a
Regional
Code
of
Conduct
The
ASEAN
SOM
Working
Group
on
the
COC
held
its
seventh
meeting
on
June
13,
2012.
According
to
an
official
statement,
The
meeting
agreed
to
submit
the
draft
ASEAN
proposed
key
elements
of
the
regional
Code
of
Conduct
in
the
South
China
Sea
to
the
ASEAN
SOM
for
consideration.41
The
ASEAN
SOM
met
in
Phnom
Penh
from
July
6-7.
A
comparison
of
the
Philippines
Draft
Code
of
Conduct
with
ASEANs
Proposed
Elements
of
a
Regional
Code
of
Conduct
in
the
South
China
Sea
reveals
the
original
Philippine
working
draft
was
heavily
pruned.
Articles
III-VI
were
dropped
entirely.
The
ASEAN
key
elements
were
reduced
to
a
preamble
and
two
articles.
A
comparison
of
37 38 39 40 41
AFP, ASEAN paralysed over China sea dispute, say analysts, April 4, 2012 Irwin Loy, ASEAN Still Searching for Consensus on South China Sea Disputes, VOA News, April 4, 2012. Reuters, Southeast Asia fails to tackle sea spat with China head on, April 4, 2012. Reuters, Southeast Asia fails to tackle sea spat with China head on, April 4, 2012. Estrella Torres, Manila tack on China row wins Asean nod, Businses Mirror, July 13, 2012.
12
the
Philippine
draft
preamble
with
the
agreed
ASEAN
preamble
reveals
that
two
items
contained
in
the
former
were
dropped.
The
first
was
a
reference
to
the
principles
and
norms
of
international
law
applicable
to
maritime
space,
in
particular
the
principles
on
the
peaceful
uses
and
cooperative
management
of
the
oceans.
The
second
and
more
sensitive
reference
that
was
deleted
referred
to
the
need
to
preserve
the
region
from
any
form
of
increased
militarization
and
intimidation.
Both
preambles
began
by
referring
to
the
1997
Joint
Statement
of
the
meeting
of
heads
of
government/state
of
ASEAN
members
and
China.
Next,
the
Philippines
inclusion
of
the
2003
declaration
of
the
ASEAN-China
Strategic
Partnership
for
Peace
and
Prosperity
was
replaced
with
a
reference
to
the
more
recent
2006
Joint
Declaration
on
Strategic
Partnership
for
Peace
and
Towards
an
Enhanced
ASEAN-China
Strategic
Partnership.
Both
preambles
included
a
reference
to
the
2002
DOC
and
its
commitment
to
develop
a
COC.
Both
preambles
also
referred
to
protection
of
the
environment
and
biodiversity.
The
ASEAN
draft
altered
the
formulation
in
the
Philippine
draft
from
advance
a
lasting
and
durable
solution
of
disputes
to
read
comprehensive
and
durable
solution
of
disputes.42
The
Philippines
original
proposal
for
a
zone
of
peace,
freedom,
friendship
and
cooperation
was
modified
to
read
an
area
of
peace,
stability,
friendship
and
cooperation.
Article
I
of
the
ASEAN
draft
COC
contained
its
operative
provisions
and
called
on
the
parties
to
respect
and
adhere
to
the
United
Nations
Charter,
1982
UNCLOS,
Treaty
of
Amity
and
Cooperation
in
Southeast
Asia,
DOC
and
the
Five
Principles
of
Peaceful
Co- existence.
However,
five
of
the
principles
contained
in
the
Philippine
draft
were
deleted
in
their
entirely:
respect
for
freedom
on
navigation
and
over
flight;
the
need
to
define,
clarify
and
segregate
disputed
areas
from
the
non-disputed
areas;
full
resolution
of
the
territorial
and
jurisdictional
disputes;
refrain
from
undertaking
activities
that
may
disrupt
the
peace
and
endanger
the
environment;
and
build
trust
and
confidence
on
the
basis
of
equality
and
mutual
respect.
The
ASEAN
draft
contained
four
principles:
(1)
to
develop
modalities
and
arrangements
for
the
promotion
of
settlement
by
peaceful
means
of
disputes
and
prevent
their
escalation;
(2)
to
respect
the
provisions
of
and
take
actions
consistent
with
the
COC;
(3)
to
encourage
other
countries
to
respect
the
purposes
and
principles
contained
in
the
COC;
and
(4)
to
establish
an
effective
mechanism
to
monitor
the
implementation
of
the
COC.
Article
II
of
the
ASEAN
draft
enumerated
eight
obligations:
a
ministerial
level
mechanism
to
monitor
the
implementation
of
the
COC;
prohibition
on
reservations
to
the
COC;
provisions
of
entry
into
force;
mechanism
for
settling
disputes;
amendment
of
the
COC;
provisions
for
other
countries
to
respect
the
COC;
indefinite
duration
of
the
COC;
and
registration
of
the
COC
with
the
ASEAN
Secretary
General
and
Secretariat
of
the
United
Nations
42
The expression comprehensive and durable were first used in the 2002 Declaration on Conduct of Parties in the South China Sea, Point 6, which China signed (http://www.aseansec.org/13163.htm).
13
Article
III(4)
required
signatories
to
establish
a
mechanism
for
settling
disputes
relating
to
the
interpretation
and
application
of
the
Code
of
Conduct.
The
ASEAN
draft,
following
deletion
of
any
mention
of
the
joint
cooperation
area,
also
dropped
reference
to
a
dispute
settlement
mechanism
in
the
joint
cooperation
area.
Two
dispute
settlement
mechanisms
were
included
that
closely
reflected
the
wording
in
the
Philippine
Working
Draft
on
disputes
arising
from
a
breach
or
violation
of
the
COC.
The
first
mechanism
is
the
dispute
settlement
mechanism
included
in
the
ASEAN
Treaty
of
Amity
and
Cooperation
in
Southeast
Asia.43
The
TAC
provides
for
a
ministerial-level
ASEAN
High
Council
and
empowers
it
to
recommend
to
parties
in
dispute,
subject
to
their
prior
agreement,
such
measures
as
good
offices,
mediation,
inquiry
or
conciliation.
The
High
Council
also
is
given
the
authority
to
recommend
appropriate
measures
for
the
prevention
of
a
deterioration
of
the
dispute
China
acceded
to
the
TAC
in
2003
and
undertook
in
writing
faithfully
to
perform
and
carry
out
all
the
stipulations
therein
contained.44
In
the
event
that
parties
are
unable
to
resolve
their
dispute
within
the
ASEAN
framework,
the
ASEAN
COC
set
out
a
second
mechanism:
the
disputants
may
resort
to
dispute
settlement
mechanism
provided
under
international
law,
including
UNCLOS.
This
could
include
taking
their
case
to
the
International
Tribunal
for
the
Law
of
the
Sea
(ITLOS),
the
International
Court
of
Justice,
an
Arbitral
Tribunal
or
a
Special
Arbitral
Tribunal.
UNCLOS,
however,
does
not
contain
any
provisions
for
the
settlement
of
sovereignty
disputes
over
islands
and
rocks.
It
does
provide
legal
mechanisms
to
adjudicate
disputes
over
maritime
jurisdiction,
including
ITLOS.45
The
ASEAN
SOM
forwarded
the
draft
Proposed
Elements
of
a
Regional
Code
of
Conduct
to
ASEAN
foreign
ministers
for
deliberation
at
their
Ministerial
Meeting
(AMM)
on
July
9.
45th
ASEAN
Ministerial
Meeting
(July
2012)
Cambodia,
as
the
ASEAN
Chair
for
2012,
hosted
the
45th
AMM
and
related
meetings
in
Phnom
Penh
from
July
8-13.46
In
his
opening
address
Prime
Minister
Hun
Sen
stated
that
realising
the
ASEAN
Community
by
2015
is
the
top
priority
for
ASEAN.47
With
respect
43
Treaty
of
Amity
and
Cooperation
in
Southeast
Asia,
Indonesia,
24
February
1976,
http://www.aseansec.org/1217.htm.
44
Instrument
of
Accession
to
the
Treaty
of
Amity
and
Cooperation
in
Southeast
Asia,
October
8,
2003,
http://www.aseansec.org/15271.htm.
45
United
Nations
Commission
on
Law
of
the
Sea,
Annex
VI,
International
Tribunal
for
the
Law
of
the
Sea.
See
also
UNCLOS,
Part
XI,The
Area,
Section
5,
Settlement
of
Dispures
and
Advisory
Opinions,
Articles
186- 191
and
Part
XV,
Settlement
of
Disputes,
Articles
279-299.
46
The
ASEAN-related
meetings
included:
the
ASEAN
Post-Ministerial
Conference
with
dialogue
partners,
th nd the
19
ASEAN
Regional
Forum,
ASEAN
Plus
3
Foreign
Ministers
Meeting
and
the
2
East
Asia
Summit
Foreign
Ministers
Meeting.
47
Opening Address By Samdech Akka Moha Sena Padei Techo HUN SEN Prime Minister of the Kingdom of Cambodia At the Opening of the 45th ASEAN Foreign Ministers Meeting, Phnom Penh, 9 July 2012.
14
to
the
ASEAN
Political-Security
Community,
Hun
Sen
declared,
we
should
give
emphasis
to
the
implementation
of
the
DOC
[Declaration
on
Conduct
of
Parties
in
the
South
China
Sea],
including
the
eventual
conclusion
of
Code
of
Conduct
(COC)
in
the
South
China
Sea
[emphasis
in
original].48
The
AMM
has
a
busy
agenda
that
extends
well
beyond
South
China
Sea
issues.
In
2011,
for
example,
the
joint
communiqu
issued
at
the
end
of
the
44th
AMM
listed
120
items
and
ran
to
twenty-nine
pages.
After
the
formal
45th
AMM
discussions
concluded
Kao
Kim
Hourn,
Secretary
of
State
in
the
Cambodian
Ministry
of
Foreign
Affairs,
confirmed
to
reporters
that
the
ASEAN
foreign
ministers
had
adopted
the
key
elements
of
the
COC
(Proposed
Elements
of
a
Regional
Code
of
Conduct
in
the
South
China
Sea
[COC]
between
ASEAN
Member
States
and
the
Peoples
Republic
of
China)
and
agreed
to
have
the
ASEAN
senior
officials
meet
with
the
senior
official
from
China
to
discuss
the
(code
of
conduct)
from
now
on.49
Cambodias
Foreign
Minister,
Hor
Namhong,
assigned
responsibility
for
drafting
the
joint
communiqu
summarizing
the
45th
AMM
deliberations
to
a
working
party
of
four
foreign
ministers:
Marty
Natalegawa
(Indonesia),
Anifah
Aman
(Malaysia),
Albert
del
Rosario
(Philippines)
and
Pham
Binh
Minh
(Vietnam).50
Their
draft
joint
communiqu
was
presented
to
a
ministerial
retreat
held
after
the
formal
plenary
session.
ASEAN
Ministers
Retreat
(July
2012)
The
draft
joint
communiqu
contained
a
132-paragraph
summary
of
the
wide
range
of
issues
taken
up
by
the
AMM.
It
included
several
paragraphs
on
the
South
China
Seas
that
mentioned
the
stand
off
at
Scarborough
Shoal
between
China
and
the
Philippines
and
Vietnams
concerns
about
the
award
of
oil
exploration
leases
by
the
China
National
Offshore
Oil
Company
(CNOOC)
within
Vietnams
Exclusive
Economic
Zone
(EEZ).
The
wording
of
the
South
China
Sea
section
became
such
a
heated
sticking
point
between
Cambodia
and
the
drafters
of
the
joint
communiqu
that
no
communiqu
was
issued.
This
was
unprecedented;
since
ASEAN
was
founded
in
1967
all
forty-four
previous
AMMs
had
issued
joint
communiqus.
Indeed,
a
media
advisory
released
by
http://asean2012.mfa.gov.kh/documents/150SPM_speech_khmer.pdf.
48
Martin
Abbugao,
Australian
Associated
Press,
ASEAN
pushed
on
South
China
Sea
code,
Herald
Sun,
July
9,
2012
and
Agence
France-Presse,
Hun
calls
for
ASEAN
South
China
Sea
code,
The
Australian,
July
10,
2012.
49
Michael
Lipin,
Cambodia
Says
ASEAN
Ministers
Agree
to
Key
Elements
of
Sea
Code,
Voice
of
America,
July
9
2012;
Michael
del
Callar,
DFA
chief:
ASEAN
agrees
on
key
elements
for
Code
of
Conduct
in
West
PHL
Sea,
GMA
News,
July
11,
2012;
and
Associated
Press,
Asean
to
take
up
code
of
conduct
with
China,
Manila
Standard
Today,
July
10,
2012
quotes
Liu
Weimin,
spokesperson
for
Chinas
Ministry
of
Foreign
Affairs,
as
stating
When
conditions
are
ripe,
China
would
like
to
discuss
with
Asean
countries
the
formulation
of
the
COC.
50
Ernest Z. Bower, China Reveals Its Hand on ASEAN in Phnom Penh, Southeast Asia from the Corner of th 18 and K Streets, vol. III, No. 14, July 19, 2012, 2.
15
Cambodia
on
July
6,
2002
announcing
the
45th
AMM,
concluded,
[a]
Joint
Communiqu
will
be
adopted
at
the
end
of
the
Meeting.51
During
discussions
at
the
AMM
Retreat
Marty
Natalegawa
promised,
Indonesia
will
circulate
a
non
paper
[on]
possible
and
additional
elements
of
[the]
COC.
It
is
meant
to
be
more
prescriptive
and
operational.
Indonesias
non
paper
would
have
to
be
approved
by
all
ASEAN
members
and
incorporated
into
the
Proposed
Elements
of
a
Regional
Code
of
Conduct
in
the
South
China
Sea
prior
to
discussions
with
Chinese
senior
officials.
Cambodia
argues
that
the
failure
of
the
AMM
to
adopt
a
joint
communiqu
rests
squarely
with
the
Philippines
and
Vietnam
and
their
insistence
on
including
a
reference
to
Scarborough
Shoal
and
EEZs
in
the
final
text.
According
to
Cambodia,
the
actions
by
the
Philippines
and
Vietnam
prevented
a
consensus
from
being
reached
and
Cambodia
had
no
recourse
but
to
withhold
the
joint
communiqu.52
Media
and
other
reporting
reveal
that
discussions
on
the
wording
of
the
South
China
Sea
paragraphs
continued
until
the
morning
of
July
13
without
breaking
the
impasse.53
Ernest
Bower,
who
spoke
to
diplomats
in
Phnom
Penh,
wrote
that
after
the
four- member
ministerial
committee
came
up
with
a
draft
communiqu,
[r]epeatedly,
however,
after
taking
the
draft
under
consideration,
Hor
Namhong
consulted
with
advisers
outside
of
the
meeting
room
and
came
back
rejecting
language
referring
to
Scarborough
Shoal
and
the
EEZs,
even
after
multiple
attempts
to
find
compromise.
He
said
Cambodias
view
was
that
those
were
bilateral
issues
and
therefore
could
not
be
mentioned
in
the
joint
statement.54
By
one
account,
the
original
AMM
joint
communiqu
went
through
a
total
of
eighteen
drafts.55
Over
the
four
days
following
the
AMM
Retreat,
the
Indonesian
and
Singaporean
foreign
ministers
made
a
last-ditch
effort
to
broker
a
compromise.
They
persuaded
Vietnam
and
the
Philippines
to
agree
to
a
revision
of
the
original
wording.
But
repeated
attempts
to
persuade
Cambodias
Hor
Namhong
failed.
At
their
last
meeting
Foreign
Minister
Hor
Namhong
picked
up
his
papers,
and
stormed
out
of
the
room
arguing
it
was
a
matter
of
principle
for
ASEAN
not
to
take
sides
in
bilateral
disputes.56
Finally,
according
to
an
51
Cambodia,
Ministry
of
Foreign
Affairs,
The
Forty-fifth
ASEAN
Foreign
Ministers
Meeting,
Media
Advisory,
July
6,
2012.
http://www.aseansec.org/documents/PRESS%20ADVISORY_45th%20AMM.pdf.
52
For
a
detailed
account
of
the
discussions
at
the
AMM
Retreat
based
on
notes
taken
by
a
participant,
see:
Carlyle
A.
Thayer,
"ASEANs
Code
of
Conduct
in
the
South
China
Sea:
A
Litmus
Test
for
Community- Building?,"
The
Asia-Pacific
Journal,
10(34),
No.
4,
August
20,
2012,
1-23.
53
Zsosmbor
Peter
and
Kuch
Naren,
Cambodia
Criticized
for
Asean
Meeting
Failure,
The
Cambodian
Daily,
July
14-15,
2012.
54 55 56
Bower, China Reveals Its Hand on ASEAN in Phnom Penh. Greg Torode, ASEAN Left on a Knife Edge, South China Morning Post, July 21, 2012.
Jane Perlez, Asian Leaders at Regional Meeting Fail to Resolve Disputes Over South China Sea, The New York Times, July 12, 2012.
16
account
by
a
Philippine
official
who
attended
the
meetings
in
Phnom
Penh,
[t]he
text
of
the
proposed
Joint
Communiqus
item/subhead
on
the
South
China
Sea
was
drafted
by
the
ASEAN
foreign
ministers
and
several
revisions
were
made
to
make
the
text
acceptable
to
all.
However,
the
Cambodian
Chair
consistently
rejected
any
proposed
text
that
mentions
Scarborough
Shoal.57
The
failure
of
ASEAN
foreign
ministers
to
issue
a
joint
communiqu
led
to
immediate
public
recriminations.
On
the
morning
of
the
last
day,
immediately
after
a
special
meeting
failed
to
reach
an
eleventh
hour
compromise,
the
Philippines
issued
a
statement
taking
strong
exception
to
the
decision
by
the
ASEAN
Chair
not
to
issue
a
joint
communiqu.
Foreign
Minister
Hor
Namhong
hit
back
accusing
the
Philippines
of
attempting
to
hijack
the
AMM
and
declaring
that
the
joint
communiqu
has
become
hostage
to
a
bilateral
issue.58
The
Philippine
Undersecretary
for
Foreign
Affairs,
Erlinda
Basilio,
penned
a
personal
account
entitled,
Why
There
Was
No
ASEAN
Joint
Communiqu
that
provoked
a
Cambodian
diplomatic
response.59
Cambodia-China
Collusion?
Unnamed
diplomatic
sources
leaked
information
to
the
press
suggesting
collusion
between
China
and
Cambodia.
One
senior
diplomat
was
quoted
as
stating,
China
bought
the
chair,
simple
as
that
and
pointed
to
comments
by
Foreign
Minister
Yang
thanking
Prime
Minister
Hun
Sen
for
supporting
Chinas
core
interests.60
A
veteran
journalist
reported
that
when
the
first
draft
of
the
joint
communiqu
was
submitted
to
the
ASEAN
Chair,
the
Cambodians,
in
a
breach
of
ASEAN
protocol,
showed
it
to
the
Chinese,
who
said
it
was
unacceptable
unless
the
South
China
Sea
reference
was
removed.
So
the
Cambodians
sent
it
back
for
amendment.61
Analysts
are
divided
on
the
details
of
and
extent
to
which
China
influenced
Cambodias
decision
to
block
the
AMM
joint
communiqu
but
few
analysts
argue
that
Cambodias
acted
independently.
Kishore
Mahbubani,
a
former
senior
Singaporean
diplomat,
wrote
the
whole
world,
including
most
ASEAN
countries,
perceived
Cambodias
stance
as
the
result
of
enormous
Chinese
pressure.62
Amitav
Acharya,
who
wrote,
[t]here
is
little
question
that
Hun
Sens
refusal
to
accommodate
Philippines
and
Vietnam
resulted
at
least
partly
from
Chinese
pressure.
According
to
a
highly
placed
source,
the
Chinese
57
Erlinda
F.
Basilio,
Why
there
Was
No
ASEAN
Joint
Communiqu,
Republic
of
the
Philippines,
Department
of
Foreign
Affairs,
Public
Information
Services
Unit,
July
19,
2012;
and
Erlinda
Basilio,
What
happened
in
Phnom
Penh?,
The
Philippine
Star,
July
19,
2012.
58
Zsosmbor
Peter
and
Kuch
Naren,
Cambodia
Criticized
for
Asean
Meeting
Failure,
and
Prak
Chan
Thul
and
Stuart
Grudgings,
SE
Asia
meeting
in
disarray
over
sea
dispute
with
China,
Reuters,
July
13,
2012.
59 60
Jane
Perlez,
Asian
Leaders
at
Regional
Meeting
Fail
to
Resolve
Disputes
Over
South
China
Sea,
The
New
York
Times,
July
12,
2012.
61 62
Roger Mitton, ASEAN Struggles for unity, The Phnom Penh Post, July 23, 2012.
Kishore Mahbubani, Is China Losing the Diplomatic Plot? Project Syndicate, July 26, 2012. http://www.project-syndicate.org/commentary/is-china-losing-the-diplomatic-plot.
17
specifically
reminded
the
Cambodians
that
[Norodom]
Sihanouk
had
accepted
the
Chinese
claims
to
the
South
China
Sea.63
A
Chinese
scholar
close
to
the
Ministry
of
State
Security
revealed,
[w]e
co-ordinated
very
well
with
Cambodia
in
that
case
[blocking
objectionable
wording
in
the
45th
AMM
joint
communiqu]
and
prevented
an
incident
which
would
have
been
detrimental
to
China.64
The
impasse
over
the
45th
AMM
joint
communiqu
quickly
impacted
on
Chinas
willingness
to
discuss
a
COC
and
the
hoped
for
meeting
in
September
was
soon
put
in
doubt.
According
to
Japanese
sources,
on
July
11,
Chinas
attitude
suddenly
shifted
and
it
refused
to
begin
talks.65
One
analyst
argued
that
Vice
Foreign
Minister
Fu
Yings
agreement
with
ASEAN
to
begin
talks
on
a
COC
in
September
was
overruled
by
Foreign
Minister
Yang...66
ASEANs
Six
Principles
on
the
South
China
Sea
In
the
midst
of
the
above
recriminations,
Indonesias
Foreign
Minister
initiated
consultations
with
the
nine
other
members
of
ASEAN
in
an
effort
to
restore
unity
in
ASEAN
ranks
and
commit
ASEAN
to
a
common
position.67
Foreign
Minister
Marty
conducted
an
intense
round
of
shuttle
diplomacy
flying
to
five
capitols
(Manila,
Hanoi,
Bangkok,
Phnom
Penh
and
Singapore)
over
a
two-day
period
(July
18-19).
Marty
and
del
Rosario
agreed
to
a
six-point
proposal
that
Marty
put
to
his
other
ASEAN
counterparts.
When
he
obtained
their
agreement
Marty
left
it
to
Cambodias
Hor
Namhong
to
complete
the
diplomatic
formalities.
On
July
20,
Hor
Namhong,
acting
in
his
capacity
as
ASEAN
Chair,
officially
released
ASEANs
Six
Principles
on
the
South
China
Sea.68
Under
the
terms
of
this
statement
all
ASEAN
Foreign
Ministers
reaffirmed
their
commitment
to:
the
full
implementation
of
the
DOC;
Guidelines
for
the
Implementation
of
the
DOC;
the
early
conclusion
of
a
Regional
COC
in
the
South
China
Sea;
full
respect
of
the
universally
recognized
principles
of
international
law
including
the
1982
UNCLOS;
continued
exercise
of
self-restraint
and
non-use
of
force
by
all
parties;
and
peaceful
resolution
of
disputes
in
accordance
the
universally
recognized
principles
of
international
law
including
the
1982
UNCLOS.
The
ASEAN
statement
concluded:
The
ASEAN
Foreign
Ministers
resolve
to
intensify
ASEAN
63 64
Amitav Acharya, The end of ASEAN centrality?, Asia Times Online, August 8, 2012.
Chen
Xiangyang,
China
Institutes
of
Contemporary
International
Relations,
quoted
by
Kathirn
Halle,
Bejing
considers
stronger
foreign
ties,
The
Financial
Times,
August
15,
2012.
65 66
Divisions
serve
to
weaken
ASEAN,
The
Japan
Times,
July
21,
2012.
th
China
used
the
expression
when
conditions
are
ripe
(or
mature)
well
before
the
45
AMM.
A
Chinese
spokesperson
also
used
this
expression
on
July
9
two
days
before
Yang
spoke.
See:
Lipin,
Cambodia
Says
ASEAN
Ministers
Agree
to
Key
Elements
of
Sea
Code.
67
Carlyle
A.
Thayer,
ASEAN
Unity
Restored
by
Shuttle
Diplomacy?
Thayer
Consultancy
Background
Brief,
July
24,
2012,
http://www.scribd.com/doc/101075293/Thayer-ASEAN-Unity-Restored-by-Shuttle- Diplomacy.
68
Statement of ASEAN Foreign Ministers on ASEAN's Six-Point Principles on the South China Sea, July 20, 2012.
18
consultations in the advancement of the above principles, consistent with the Treaty of Amity and Cooperation in Southeast Asia (1976) and the ASEAN Charter (2008). The Philippines Seeks Award from Arbitral Tribunal Before Indonesias initiative could gain traction, the Philippines unilaterally took legal action under UNCLOS. UNCLOS Part XV requires states to settle their disputes by peaceful means and to exchange views towards this end. The Philippines argues that it has continually exchanged views with China since 1995 when China occupied Mischief Reef. The Philippines Statement of Claim concluded, over the past 17 years of such exchanges of views, all possibilities of a negotiated settlement have been explored and exhausted. On January 22, 2013 the Chinese Ambassador to the Philippines, Ma Keqing, was summoned to the Department of Foreign Affairs and handed a Note Verbale informing her that the Philippines was initiating a legal challenge to bring China before an Arbitral Tribunal under the terms of the United Nations Convention on Law of the Sea. The Note Verbale contained the official text of the Notification and Statement of Claim submitted to the UN by the Philippines. This document outlined the Philippine challenge to the validity of Chinas nine-dash line claim to the South China Sea. The Philippines also called on China to desist from unlawful activities that violate the sovereign rights and jurisdiction of the Philippines. Under UNCLOS China had thirty days to respond by notifying its nominee to the Arbitral Tribunal. On February 19, Ambassador Ma met with officials at the Department of Foreign Affairs and returned the Philippines Notification and Statement of Claim, thus rejecting it. A Chinese Foreign Ministry spokesman in Beijing stated that the Philippines Statement of Claim was historically and legally incorrect and contained unacceptable accusations against China. Under UNCLOS Article 287, a state is free to choose one or more of four binding arbitration measures: International Tribunal for the Law of the Sea, International Court of Justice, Arbitral Tribunal, and a Special Arbitral Tribunal. In August 2006, China made a declaration of optional exceptions exempting itself from compulsory dispute procedures related to sea boundary delimitation (territorial sea, Exclusive Economic Zone and continental shelf), military and law enforcement activities, and disputes involving the Security Council exercising its functions under the UN Charter. The Philippines was careful in its Notification and Statement of Claim to state it was not seeking arbitration over sovereignty disputes to islands or delimitation of maritime boundaries that China had excluded from arbitral jurisdiction. The Philippines claimed that its maritime disputes with China were about the interpretation and application by States Parties of their obligations under the UNCLOS and therefore could be submitted for resolution. If parties to a dispute failed to issue a formal declaration specifying their choice of arbitration, under UNCLOS Article 287(3) they shall be deemed to have accepted arbitration in accordance with Annex VII. Because neither China nor the Philippines
19
ever
issued
a
formal
declaration
specifying
their
choice,
their
dispute
became
subject
to
arbitration
by
an
Arbitral
Tribunal.
Every
state
that
ratifies
UNCLOS
is
entitled
to
nominate
four
arbitrators
to
a
list
maintained
by
the
UN
Secretary
General.
An
Arbitral
Tribunal
is
generally
composed
of
five
persons
drawn
from
this
list.
Each
party
to
a
dispute
is
entitled
to
make
one
nomination
and
to
jointly
agree
on
the
other
three
members
including
the
chairman.
Annex
VII
makes
provisions
for
cases
when
a
state
fails
to
nominate
its
arbitrator
within
the
thirty-day
period.
After
Chinas
rejection
the
Philippines
had
two
weeks
to
request
the
President
of
ITLOS
to
make
the
necessary
appointments
of
arbitrators
from
the
approved
list.
The
President
has
thirty
days
to
make
the
necessary
appointments.
When
the
Arbitral
Tribunal
is
set
up
it
determines
its
own
procedures.
Decisions
are
made
by
majority
vote.
The
Arbitral
Tribunal
may
hear
the
claim
made
by
the
Philippines
even
if
China
refuses
to
take
part.
Under
Annex
VII,
Article
9:
If
one
of
the
parties
to
the
dispute
does
not
appear
before
the
arbitral
tribunal
or
fails
to
defend
its
case,
the
other
party
may
request
the
tribunal
to
continue
the
proceedings
and
to
make
its
award.
Absence
of
a
party
or
failure
of
a
party
to
defend
its
case
shall
not
constitute
a
bar
to
the
proceedings.
Before
making
its
award,
the
arbitral
tribunal
must
satisfy
itself
not
only
that
it
has
jurisdiction
over
the
dispute
but
also
that
the
claim
is
well
founded
in
fact
and
law.
The Arbitral Tribunal is required to confine its award to the subject-matter of the dispute. What awards are the Philippines seeking from the Arbitral Tribunal? First, the Philippines sought an award that declared that the maritime areas claimed by China and the Philippines in the South China Sea are those established by UNCLOS and consisted of territorial sea, contiguous zone, Exclusive Economic Zone (EEZ) and continental shelf. On this basis, the Philippines requested the Arbitral Tribunal declare that Chinas nine-dash line ambit claim to the South China Sea was inconsistent with UNCLOS and invalid. Further, the Philippines requested that the Arbitral Tribunal require China to bring its domestic legislation into conformity with UNCLOS. Second, the Philippines requested the Arbitral Tribunal to determine the legal status of features (islands, low tide elevations and submerged banks) in the South China Sea claimed by China and the Philippines and whether these features were capable of generating an entitlement of a maritime zone greater than twelve nautical miles. The Philippines specifically listed Mischief Reef, McKennan Reef, Gaven Reef, Subi Reef, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef and argued China claimed excessive maritime zones on the basis that these features were islands. The Philippines claimed these features were submerged banks, reefs and low tide elevations that do not qualify as islands under UNCLOS, but are parts of the Philippines continental shelf, or the international seabed. Under UNCLOS islands are entitled to a 200 nautical mile EEZ and rocks to a 12 nm territorial sea. Third, the Philippines argued that China interfered with the lawful exercise of the Philippines rights within and beyond its EEZ and continental shelf in contravention of UNCLOS. The Philippines requested the Arbitral Tribunal require China to desist from (1) its occupation of and activities on the features listed above, (2) interfering with Philippines vessels exploiting the living resources in waters adjacent to Scarborough
20
Shoal and Johnson Reef, (3) exploiting the living and non-living resources within the Philippines EEZ and continental shelf and (4) interfering in the Philippines freedom of navigation within and beyond the 200 nautical miles of the Philippines baselines. If the Arbitral Tribunal accepts the Philippines Statement of Claim and rules in its favor, this would undermine Chinas claim to indisputable sovereignty over the South China Sea. All the other claimant states - Vietnam, Malaysia and Brunei - would benefit from such an award. There is some risk, however. The Arbitral Tribunal could deliver a mixed award that favored the Philippines in some cases but which entrenched Chinas presence in others. A mixed award would impact on the claims advanced by other littoral states especially related to the legal status of the features that they occupy. According to Philippine officials it could take up to three or four years for the Arbitral Tribunal to reach a decision. During this time China could further consolidate and expand its presence in waters claimed by the Philippines. Under UNCLOS the award [by an Arbitral Tribunal] shall be final and without appeal It shall be complied with by the parties to the dispute. UNCLOS, however, does not contain any provisions for enforcement. As of this writing the Philippines claim is still pending awaiting a decision by the Chairman of ITLOS due around April 4, 2013. The unilateral action by the Philippines has drawn guarded public comments by other members of ASEAN. Singapore has pointedly noted that ASEAN was not consulted. Vietnamese diplomats express dismay in private that all life has been taken out of negotiations with China on a COC
Realpolitik
ASEAN
ASEAN
as
a
regional
organization
is
too
weak
and
divided
to
play
an
effective
role
in
balancing
China
to
restrain
it
from
assertive
action
in
the
South
China
Sea.
ASEAN
argues
that
it
should
be
central
to
the
regions
security
architecture
and
that
decision-making
should
be
based
on
ASEAN
norms
and
practices.
ASEAN
has
sought
to
manage
its
broader
relations
with
China
-
and
other
major
powers
-
through
ASEAN-centric
multilateral
institutions
such
as
the
ASEAN
Regional
Forum,
ASEAN
Defence
Ministers
Ministerial
Meeting
Plus
(ADMM
Plus)
and
the
East
Asia
Summit.
ASEAN
has
also
sought
to
structure
its
relations
with
China
through
enmeshment
in
a
web
of
cooperative
activities.
ASEAN,
for
example,
invariably
prefaces
statements
to
China
on
the
South
China
Sea
with
reference
to
the
1997
ASEAN-China
Joint
Statement
of
the
meeting
of
heads
of
government/state,
the
2003
declaration
of
the
ASEAN-China
Strategic
Partnership
for
Peace
and
Prosperity,
and
the
2006
Joint
Declaration
on
Strategic
Partnership
for
Peace
and
Towards
an
Enhanced
ASEAN-China
Strategic
Partnership.
Vietnam
21
Because of ASEANs institutional weakness and lack of consensus on the South China Sea, individual claimant states, particularly the Philippines and Vietnam, have had to pursue strategies incorporating realpolitik in addition to promoting norms and legal regimes. For example, Vietnam used its role as ASEAN Chair in 2010 to lobby the United States and other extra-regional powers to make diplomatic interventions at meetings of the ASEAN Regional Forum and ADMM Plus. Additionally, Vietnam has encouraged the major extra regional powers, the United States in particular, to balance China. Vietnam has been quite circumspect, however, in order not to provoke China. Vietnam, for example, conducts non-combat naval activities with the U.S. Navy (as opposed to naval exercises), carries out minor repairs on U.S. Military Sealift Command vessels (as opposed to warships), and permits its officials to fly out to transiting U.S. aircraft carriers to observe their operations. In 2010, Vietnam raised its Defence Policy Dialogue with the United States to deputy minister level. The following year Vietnam and the U.S. signed a Memorandum of Understanding involving cooperation in five priority areas: regular high-level defense dialogues; maritime security; search and rescue; UN peacekeeping; and humanitarian assistance and disaster relief. None of these activities involve Vietnam in hard balancing against China. In the mid-1990s, Vietnam initiated a modest effort to modernize its naval and air forces in response to sovereignty disputes with China in the South China Sea. Vietnams force modernisation program increased in pace over the last half decade. Russia remains the main source for Vietnams arms acquisitions. Since 2008, the Vietnamese navy has taken delivery of two Gepard-class guided missile stealth frigates and four Svetlyak-class fast patrol boats armed with anti-ship missiles. Since 2010, the Vietnamese air force has acquired twenty Su-30MK2V combat aircraft armed with both air-to-air and anti-ship missiles. Vietnam has also strengthened its air and coastal defences with the acquisition of, respectively, two batteries of the highly capable S-300 PMU-1 air defense system and two batteries of the K-300P Bastion coastal defence missiles. More significantly, Vietnam also has placed an order with Russia for six Kilo-class conventional fast attack submarines the first two of which are to be delivered this year. Vietnam also has on order four Dutch Sigma-class corvettes. Additionally, Vietnam is also building up the capacity of its Maritime Police. Vietnam, while pursuing internal and external balancing strategies, also works hard to promote good relations with China through a dense network of party-to-party, state-to- state and military-to-military ties. The Philippines Chinese assertiveness in the West Philippines Sea led President Benigno Aquino to pursue realpolitik by simultaneously modernizing the Armed Forces of the Philippines and revitalizing its alliance with the United States. In 2011, the Aquino Administration earmarked funds to purchase a naval patrol vessel, six helicopters and other military
22
equipment.69 In 2011-12, the Philippines took delivery of two former U.S. Coast Guard Hamilton-class Weather Endurance Cutters and expects to procure a third.70 In 2012, the Philippine government began implementation of a five-year modernization program totaling P40 billion to include, inter alia, the procurement of a refurbished frigate, C-130 aircraft, utility and combat helicopters as well as other defence equipment.71 Defence cooperation between the Philippines and the United States involves high-level consultations and an uptick in U.S. naval and air visits. For example, between May and October 2012, four U.S. Navy nuclear submarines (SSNs) made port calls: USS North Carolina (May), USS Louisville (June), USS Hawaii (September) and USS Olympia (October). The Philippines has presented the Pentagon with a wish list of new equipment including: coastal radar, long-range patrol aircraft, strategic sea lift vessels, three off-shore patrol boats, two to five naval helicopters, air defence radar, six jet trainers, surface attack aircraft, anti-ship missiles, and a submarine.72 According to U.S. Deputy Secretary for Defense Ashton Carter, We are focused on building the Philippines maritime security presence and capabilities, and strengthening their maritime domain awareness.73 The Philippines has also reached out to Japan, South Korea, Taiwan, and Italy for defence acquisitions. In September 2011, during President Aquinos visit to Tokyo, he and Prime Minister Noda agreed to strengthen maritime security ties by holding frequent high-level defence discussions and by stepping up cooperation between their Coast Guards and defence-related authorities. Prime Minister Noda agreed to increase the involvement of Japans Coast Guard in training their Filipino counterparts.74 Following a visit by South Koreas President Lee Myung-bak to Manila in November 2011, President Aquino announced that the Philippines would purchase military equipment form Seoul. The Department of National Defense was reported to be drawing up a list including aircraft, helicopters, boats and other military equipment. The Philippines also expects to take delivery of three new Taiwan-manufactured Multi- Purpose Attack Craft. The Philippines has signed an agreement with Italys Defence Ministry to acquire military equipment, possibly including frigates and aircraft.
Conclusion
69
Agence
France-Presse,
September
7,
2011.
70
Reuters,
April
13,
2011
and
AFP,
September
3,
2011.
71
Manuel
Mogato,
Philippines
Refuses
to
Budge
on
South
China
Sea
Row,
Reuters,
July
23,
2012.
72
The
Philippine
Star,
August
24,
2011.
For
a
discussion
of
U.S.
arms
sales
and
transfers
to
the
Philippines
consult:
Ronald
ORourke,
Maritime
Territorial
and
Exclusive
Economic
Zone
(EEZ)
Disputes
Involving
China:
Issues
for
Congress,
CRS
Report
for
Congress
(Washington,
D.C.:
Congressional
Research
Service,
October
22,
2012),
40-42.
73
Remarks
by
Deputy
Secretary
for
Defense
[Ashton]
Carter
at
the
Woodrow
Wilson
Center,
October
2,
2012.
74
The
Wall
Street
Journal,
September
28,
2011.
23
Since 2007, if not earlier, China has become increasingly assertive in pressing its sovereignty claims over the South China Sea. Chinas actions have provoked concern among claimant states. The Philippines and Vietnam sought to forge consensus within ASEAN in order to secure Chinas adherence to ASEAN norms and legal regimes. This approach has proven to be intractable with little positive results. Not only were ASEAN members divided on how to approach China, but also China played on differences among ASEAN members to prevent a united front from emerging. ASEAN is too weak and internally divided to balance against China. The Philippines and Vietnam, as the two most affected states, have individually pursued realpolitik in order to safeguard their sovereignty. Both have engaged in internal balancing by modernizing their armed forces. Both the Philippines and Vietnam have pursued external balancing. By stepping up their defence ties with the United States. Both the Philippines and Vietnam have sought to draw in other major powers The prospects for securing maritime security in the South China Sea do not appear particularly good at the moment with the loss of momentum in negotiating a binding Code of Conduct between China and ASEAN members. Because ASEAN members have not yet developed a sufficient sense of common identity their national interests still remain an impediment to effective collection action in dealing with external powers. Some ASEAN states hedge and engage in balancing with the major powers while others, such as Cambodia, appear to bandwagon. In summary, ASEANs pursuit of norms and legal regimes are a necessary but not sufficient component for the maintenance of maritime security in the South China Sea.