South

China Sea in Regional Politics: Indonesias Efforts to Forge ASEAN Unity on a Code of Conduct
Carlyle Thayer

Paper for 3rd Annual Conference on Managing Tensions in the South China Sea Center for Strategic & International Studies Washington, D. C., June 5-6, 2013

South China Sea in Regional Politics: Indonesias Efforts to Forge ASEAN Unity on a Code of Conduct

Paper for 3rd Annual Conference on Managing Tensions in the South China Sea, Center for Strategic & International Studies, Washington, D. C., June 5-6, 2013 Carlyle A. Thayer Introduction In July 2012 the foreign ministers of the Association of Southeast Asian Nations (ASEAN) failed to reach consensus on the wording of South China Sea issues in their joint statement following their annual ministerial meeting (AMM). This development was unprecedented in ASEANs forty-five year history. Later in the year, internal ASEAN disagreements were put on public display when Cambodia, as ASEAN Chair, attempted to insert a reference in the joint communiqu that ASEAN leaders agreed not to internationalize the South China Sea dispute. The Philippines objected and the offending reference was dropped. ASEANs disarray has proven to be a temporary phenomenon. The public disputes over the wording of a joint communiqu and chairmans statement overshadowed the fact that the ASEAN foreign ministers unanimously reached agreement on Proposed Elements of a Regional Code of Conduct in the South China Sea at the plenary session of the 45th AMM on 9 July. Further, during the contretemps at the AMM Retreat over the wording of the joint statement, Indonesia offered to produce a non-paper on the Code of Conduct (COC). In January 2013 Brunei assumed the ASEAN Chair and by all accounts Cambodia has ceased its obstruction of ASEAN efforts to forge a unified position.1 After the 45th AMM Indonesia seized the initiative and secured the endorsement of all of ASEANs foreign ministers on Six-Point Principles on the South China Sea. Indonesias Foreign Minister Marty Natalegawa presented a zero draft COC to ASEAN foreign ministers on the

1

S. Ramesh, ASEAN has ambitious agenda which it is in process of fulfilling: PM Lee, Channel News Asia, April 25, 2013.

sidelines of the United Nations General Assembly in September 2012 and consensus was reached to further develop this document as a basis of discussion with China. At the 9th ASEAN-China Senior Officials Consultation on 2 April it was agreed to commence discussions on the COC later in the year. This presentation revisits these developments with a focus on Indonesias efforts to forge ASEAN unity on a draft Code of Conduct in the South China Sea. Guidelines to Implement the DOC In July 2011, China and ASEAN agreed to the Guidelines to Implement the DOC after ASEAN dropped its insistence six-year insistence on prior consultations and agreed instead to promote dialogue and consultation among the parties. A new point was added to the original 2005 ASEAN Guidelines specifying that activities and projects carried out under the DOC should be reported to the ASEAN-China Ministerial Meeting.2 All the other points in the 2011 Guidelines remained unchanged from the original 2005 ASEAN draft. ASEAN and Chinese senior officials commenced discussions on the implementation of the DOC Guidelines at a meeting held in Beijing from January 13-15, 2012. They agreed to set up four expert committees on maritime scientific research, environmental protection, search and rescue, and transnational crime. These committees were derived from the five cooperative activities mentioned in the original 2002 DOC. Significantly no expert committee on safety of navigation and communication at sea was established due to its contentious nature. Reviving the Code of Conduct The agreement on DOC Guidelines led to the revival of the long-standing proposal by for a COC that was included in the 2002 DOC. ASEAN senior officials began drafting the COC with the intention of reaching a common ASEAN position before presenting it to China for discussion. China initially took the position that the implementation of the DOC

Guidelines to Implement the DOC, http://www.aseansec.org/documents/20185-DOC.pdf.

Guidelines should be given priority over the COC. China stated it would discuss the COC with ASEAN at an appropriate timing or when appropriate conditions were met.3 In January 2012, the Philippines circulated an informal working draft simply titled, Philippines Draft Code of Conduct. In discussions held by ASEAN senior officials during the first quarter of 2012 it became apparent that ASEAN members were divided on Articles III-VI in the Philippines draft. Some ASEAN members also shared reservations about being too prescriptive concerning dispute settlement mechanisms.4 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 a COC quickly became a contentious issue within ASEAN. These tensions surfaced at the 20th ASEAN Summit held in Phnom Penh from April 3-4. Cambodia, the ASEAN Chair, pushed for Chinas inclusion in ASEAN discussions. 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.5
20th ASEAN Summit (April 2012)

Prior to the 20th ASEAN Summit, Cambodia acting as ASEAN Chair, revealed that the South China Sea was not on the formal agenda. However, at the formal plenary meeting on the first day of the Summit the South China Sea was discussed along with a wide range of other issues. 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. 6

3

Carlyle A. Thayer, Sovereignty Disputes in the South China Sea: Diplomacy, Legal Regimes and Realpolitik, Presentation to International Conference on Topical Regional Security Issues in East Asia, co- sponsored by the Faculty of Asian and African Studies and the Ho Chi Minh Institute, St. Petersburg State University, St. Petersburg, Russian Federation, April 6-7, 2012, 7.
4

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/.
5 6

Thayer, Is the Philippines an Orphan?.

Martin Abbugao, Philippines urges united ASEAN stand on South China Sea, Agence France-Presse, April 3, 2012.

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 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 Nations, 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 Pitsuwan 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. 7 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.8 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.9

7 8 9

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.

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.10 On 23 May, the ASEAN Senior Officials Meeting (SOM) Working Group on the Regional Code of Conduct in the South China Sea held its 7th meeting and agreed on a nearly completed document entitled ASEANs Proposed Elements of a Regional Code of Conduct in the South China Sea (COC) between ASEAN Member States and the Peoples Republic of China.11 A month later, on 13th July, the ASEAN SOM Working Group finally concluded its deliberations. 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.12 The ASEAN SOM met in Phnom Penh from 6-7 July and forwarded the agreed draft to the ASEAN Foreign Ministers for deliberation at their 45th 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 8-13.13 An informal China-ASEAN senior-level working meeting was held on July 8 and reportedly agreed to start talks on a legally-binding maritime code of conduct to manage the disputes.14

10 11

Reuters, Southeast Asia fails to tackle sea spat with China head on, April 4, 2012.
th

7 Meeting of the ASEAN SOM Working Group on the Regional Code of Conduct in the South China Sea, Phnom Penh, May 23, 2012, 4 pages.
12 13

Estrella Torres, Manila tack on China row wins Asean nod, Business Mirror, July 13, 2012.

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.
14

Divisions serve to weaken ASEAN, The Japan Times, July 21, 2012. A Chinese Foreign Ministry spokesperson stated that on July 8 the ASEAN-China SOM agreed to carry out the DOC in a comprehensive and effective manner, as well as carry out cooperation projects uner the DOC framework; China expects co-op on South Chins Sea, China Daily, July 10, 2012.

In his opening address on 9 July Prime Minister Hun Sen stated that realising the ASEAN Community by 2015 is the top priority for ASEAN.15 With respect to the ASEAN Political- Security Community, Hun Sen declared, we should give emphasis to the implementation of the DOC, including the eventual conclusion of Code of Conduct (COC) in the South China Sea [emphasis in original].16 At the formal AMM plenary Cambodias Foreign Minister Hor Namhong told his ASEAN counterparts that Vice Foreign Minister Fu Ying stated that China was willing to commence talks on the COC in September.17 Also on July 9, Foreign Minister Yang Jiechi met with Secretary of State Hillary Clinton to discus the South China Sea. After these talks, U.S. officials revealed that foreign minister Yang gave Secretary Clinton a careful indication that Beijing is willing to join a dialogue on the code as soon as September, ahead of Novembers ASEAN summit.18 ASEAN Secretary General Surin Pitsuwan also confirmed that the first formal meeting between ASEAN and Chinese senior officials on the COC would take place in Phnom Penh in September.19 At the end of the AMM formal discussions Kao Kim Hourn, Secretary of State in the Cambodian Ministry of Foreign Affairs, told reporters that the ASEAN foreign ministers had adopted the key elements of the COC and agreed to have the ASEAN senior

15

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. http://asean2012.mfa.gov.kh/documents/150SPM_speech_khmer.pdf.
16

Martin Abbugao, Australian Associated Press, ASEAN pushed on South China Sea code, Herald Sun, July 9, 2012 and Agence France-Presse (AFP), Hun calls for ASEAN South China Sea code, The Australian, July 10, 2012.
17

Summary of Cambodia Chairs intervention at the AMM Retreat, 9 July 2012, 25 and Channel News Asia, Element of confidence building between ASEAN and China, July 10, 2012.
18 19

Scott Stearns, China Ready to Join South China Sea Talks, Voice of America July 12, 2012

According to Surwin, They [the senior officials] have to decide in the next day or two whether this process is going to be formalized with certain specific schedule. Is this going to be needed in the future when we discus whenever we come together, or are we going to have a regular schedule of meetings between both sides? Channel New Asia, Element of confidence building between ASEAN and China, July 10, 2012 and Agence France-Presse, Asean reaches out to Beijing over sea code, Gulf Times, July 10, 2012.

officials meet with the senior official from China to discuss the (Code of Conduct) from now on.20 At the 45th AMM Hor Namhong assigned responsibility for drafting the joint communiqu summarizing the 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).21 Their 132-paragraph draft summarized the wide range of issues taken up by the AMM. The draft communiqu also summarized discussions on the South China Sea including 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 within Vietnams Exclusive Economic Zone and on its continental shelf. The draft joint communiqu was presented to the ASEAN Ministerial Retreat on the evening of 9 July. At the Retreat, Cambodias Foreign Minister reported that, ASEAN-China met twice recently to discuss informally the drafting of [the] COC [and that] Cambodia will host another formal ASEAN China SOM on the COC in the near future. 22 However, the wording of one paragraph in the South China Sea section of the joint communiqu became such a sticking point between Cambodia and the drafters of the joint communiqu that no final 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 announcing the 45th AMM, released by

20

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.
21

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.
22

Summary of Cambodia Chairs intervention at the AMM Retreat, 9 July 2012, 1 and 25.

Cambodia on July 6, 2002, concluded, [a] Joint Communiqu will be adopted at the end of the Meeting.23 Ructions Over the Joint Communiqu 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.24 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.25 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.26 He said Cambodias view was that those were bilateral issues and therefore could not be mentioned in the joint statement. By one account, the original AMM joint communiqu went through a total of eighteen drafts.27 Over the four days following the 45th AMM and AMM Retreat, the Indonesian and Singaporean foreign ministers made a last-ditch effort to broker a compromise. They

23

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.
24

For a detailed account of discussions on the draft joint communiqu at the AMM Retreat consult: Carlyle A. Thayer, ASEANS Code of Conduct in the South China Sea: A Litmus Test for Community- Building?, The Asia-Pacific Journal, Vol 10, Issue 34, No. 4, August 20, 2012. http://www.scribd.com/doc/103333615/Thayer-ASEANS-Code-of-Conduct-in-the-South-China-Sea-A- Litmus-Test-for-Community-Building.
25

Zsosmbor Peter and Kuch Naren, Cambodia Criticized for Asean Meeting Failure, The Cambodian Daily, July 14-15, 2012.
26 27

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.

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persuaded Vietnam and the Philippines to agree to a compromise on the 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.28 Finally, according to an 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.29 The failure of ASEAN foreign ministers to issue a joint communiqu at the conclusion of the 45th AMM 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.30 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.31 Chinas commitment to meet in September to discuss the COC was short lived. According to Japanese sources, on July 11, Chinas attitude suddenly shifted and it refused to begin talks. 32 According to Ian Storey, Vice Foreign Minister Fu Yings

28

Jane Perlez, Asian Leaders at Regional Meeting Fail to Resolve Disputes Over South China Sea, The New York Times, July 12, 2012.
29 30

Basilio, Why there Was No ASEAN Joint Communiqu and Basilio, What happened in Phnom Penh?

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.
31

Basilio, What happened in Phnom Penh?, The Cambodian Ministry of Foreign Affairs and Cambodian ambassadors in Thailand, the Philippines and Singapore wrote letters to the editors of newspapers th replying to critical reports on Cambodias actions at the 45 AMM. Intemperate language by Cambodias ambassador to the Philippines led to his summons by the Department of Foreign Affairs. He failed to attend. Cambodia later recalled its ambassador.
32

Divisions serve to weaken ASEAN, The Japan Times, July 21, 2012.

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agreement with ASEAN to begin talks on a COC in September was overruled by Foreign Minister Yang....33 ASEANs Proposed Elements of a Regional Code of Conduct As noted above, on 9 July ASEAN foreign ministers unanimously adopted the key elements of their draft Code of Conduct for the South China Sea at their plenary meeting. The preamble to ASEANs Proposed Elements of a Regional Code of Conduct in the South China Sea (COC) between ASEAN Member States and the Peoples Republic of China,34 included references to previous agreements reached between ASEAN and China, including the 1997 Joint Statement of the meeting of heads of government/state of ASEAN members and China, the 2006 Joint Declaration on Strategic Partnership for Peace and Towards an Enhanced ASEAN-China Strategic Partnership, the 2002 DOC and its commitment to develop a COC and protection of the environment and biodiversity. The ASEAN draft calls for a comprehensive and durable solution of disputes.35 Article I of the ASEAN draft COC contains its operative provisions and calls 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. The ASEAN draft lists 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

33

Ian Storey Comments, The Nelson Report, July 31, 2012. Storey used more guarded language in earlier accounts where he wrote that Foreign Minister Yang seems to have ruled out the September meeting on a code of conduct until when time was ripe. China has used the expression when conditions are ripe (or th mature) prior to the 45 AMM. A Chinese spokesperson, for example, used this expression on 9 July two days before Yang spoke. See: Michael Lipin, Cambodia Says ASEAN Ministers Agree to Key Elements of Sea Code, Voice of America, July 9, 2012.
34

Carlyle A. Thayer, ASEANs Code of Conduct (Unofficial), Thayer Consultancy Background Brief, July 11, 2012. http://www.scribd.com/doc/101698395/Thayer-ASEANs-Code-of-Conduct-Unofficial.
35

Storey argues that the inclusion of the words comprehensive and durable settlement of the dispute represented a partial victory for Vietnam and the Philippines and a rejection Deng Xiaopings proposal to shelve sovereignty disputes and engage in joint exploration. In fact the words 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). See: Ian Storey Comments, The Nelson Report, July 31, 2012.

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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 enumerates 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 Article III(4) requires signatories to establish a mechanism for settling disputes relating to the interpretation and application of the Code of Conduct. Two dispute settlement mechanisms are included to address a breach or violation of the COC.36 The first is the dispute settlement mechanism included in the ASEAN Treaty of Amity and Cooperation in Southeast Asia (TAC).37 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 The Peoples Republic of China acceded to the TAC in 2003 and undertook in writing faithfully to perform and carry out all the stipulations therein contained.38 In the event that parties are unable to resolve their dispute within the ASEAN framework, the ASEAN COC sets 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 an international court for adjudication.

36

A comparison of the two drafts does not support the conclusion reached by Storey that the language was watered down. See: Ian Storey Comments, The Nelson Report, July 31, 2012.
37

Treaty of Amity and Cooperation in Southeast Asia, Indonesia, 24 February 1976. http://www.aseansec.org/1217.htm.
38

Instrument of Accession to the Treaty of Amity and Cooperation in Southeast Asia, October 8, 2003, http://www.aseansec.org/15271.htm.

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UNCLOS, it should be noted, does not contain any provisions for the settlement of sovereignty disputes over islands and rocks. It does provide for an International Tribunal for the Law of the Sea (ITLOS) to adjudicate disputes over maritime jurisdiction.39 Under international law the land dominates the sea and before disputants could take their case to ITLOS they would first have to determine sovereignty over disputed islands and rocks on which their maritime claims are based. ASEANs Proposed Elements of a Regional Code of Conduct in the South China Sea, has not been officially released and remains an internal draft document.
Indonesia Promotes ASEANs Six Principles on the South China Sea.
40

At the 45th AMM Retreat Indonesias Foreign Minister 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.41 In other words, ASEAN members would have to meet to approve any suggestions by Indonesia to alter their draft COC before meeting with Chinese senior officials.42 Following the recriminations sparked at the Retreat, Marty 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.43 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

39

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 Disputes and Advisory Opinions, Articles 186- 191 and Part XV, Settlement of Disputes, Articles 279-299.
40

Statement of ASEAN Foreign Ministers on ASEAN's Six-Point Principles on the South China Sea, July 20, 2012. Cambodias Foreign Minister could not resist using this occasions to lay the blame for ASEAN's failure to issue a joint communiqu on Vietnam and the Philippines.
41 42 43

Summary of Cambodia Chairs intervention at the AMM Retreat, 9 July 2012, 20. Several ASEAN diplomats consulted by the author felt that this was unlikely.

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.

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Namhong, acting in his capacity as ASEAN Chair, officially released ASEANs Six-Point Principles on the South China Sea. 44 In 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 statement concluded: The ASEAN Foreign Ministers resolve to intensify ASEAN 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). A Chinese Foreign Ministry spokesperson, Qin Gang, responded to these developments by introducing a pre-condition linking compliance with the DOC and discussions on the COC. Qin Gang stated:
What concerns people now is that some individual countries, showing no respect for or compliance with the DOC, have time and again resorted to provocative means, which undermined the basic principles and spirit of the DOC and created difficulties for discussing a code of conduct (COC) in the South China Sea. Therefore, while being open to discussing a COC with ASEAN countries, China believes that all parties concerned must act in strict accordance with the DOC to create the necessary 45 conditions and atmosphere of a COC.

China then dispatched its Foreign Minister Yang Jiechi on a fence-mending visit to Indonesia, Brunei and Malaysia for talks with his counterparts. Yang stated at a joint press conference in Jakarta that China was willing to work with ASEAN to implement the DOC and on the basis of consensus to work toward the eventual adoption of the COC.46

44

Statement of ASEAN Foreign Ministers on ASEAN's Six-Point Principles on the South China Sea, July 20, 2012. Cambodias Foreign Minister could not resist using this occasions to lay the blame for ASEAN's failure to issue a joint communiqu on Vietnam and the Philippines.
45

Statement by Spokesperson Qin Gang of the Ministry of Foreign Affairs of China on the US State Department issuing a So-called Press Statement on the South China Sea, August 4, 2012. I am grateful to Greg Torode of the South China Morning Post for pointing out the significance of this statement.
46

Tarra Quismundo, China says its willing to ease Asean rift on sea, Philippines Daily Inquirer, August 11, 2012.

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Foreign Minister Yang held discussions with Malaysian Foreign Minister Y.B. Dato Sri Anifah Hj Aman in Kuala Lumpur. There was no joint press conference. Anifah Aman stated he was confident we can resolve this matter [disputes in the South China Sea] through peaceful means. He then observed, [t]here are overlapping claims by member countries. Let us discuss these among ASEAN countries first before we talk to China. We can only achieve this objective in the South China Sea if all parties agree. Then China can appreciate this and realise it is ASEANs wish.47 This statement seemed to imply that ASEAN-China discussions on the COC, if and when they take place, would be a protracted process. Foreign Minister Yang pointedly did not visit the Philippines during his three-nation swing. Nonetheless, the Philippines kept diplomatic channels open with the visit of Secretary del Rosario to Beijing to visit the ailing Philippine ambassador.48 On August 25 he met with his counterpart Yang Jiechi. The content of these discussions was closely held. A spokesperson for the Department of Foreign Affairs laconically noted discussions were productive and issues of mutual concern were discussed in a positive atmosphere.49 Del Rosario told the press that he would be agreeable to a visit to Manila by a high-level delegation from China.
Indonesias Zero Draft Code of Conduct

At the 45th AMM Retreat Foreign Minister Marty promised, Indonesia will circulate a non paper [on] possible and additional elements of [the] COC. It is meant to be more prescriptive and operational. This non paper was quickly dubbed the Zero Draft Code of Conduct. In September 2012, Indonesia presented its Zero Draft A Regional Code of Conduct in the South China Sea50 to ASEAN Foreign Ministers on the sidelines of the

47 48 49

Agence France-Presse, Malaysia urges ASEAN to unite over South China Sea, August 12, 2012. Pia Lee-Brago, Del Rosario flies to Beijig to visit Brady, The Philippine Star, August 27, 2012.

Quoted in Tarra Quismundo, Del Rosario meet with Chinese official, Philippine Daily Inquirer, August 25, 2012.
50

The author has a copy in his possession. The Zero Draft in marked confidential; the name of the recipient country appears on the first page and as a watermark on all pages. Mark Valencia provided the

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annual UN General Assembly session in New York. Indonesias Regional Code of Conduct draws heavily on three sources: the 2002 DOC, ASEANs Proposed Elements of a Regional Code of Conduct, and ASEANs Six-Point Principles on the South China Sea.51 Indonesias Regional Code of Conduct includes several new and possibly contentious points. Article 3 (Basic Understandings), for example, includes the following three commitments: commit to respect the exclusive economic zone and continental shelf of the coastal states as provided for in 1982 UNCLOS; undertake to respect the provisions of this COC and take of actions consistent therewith; [and] encourage other countries to respect the purposes and principles contained in this COC. Article 4 (Areas of Application) stipulates without prejudice to territorial claims, the COC shall be applied in all unresolved maritime boundary areas of the parties concerned in the South China Sea. Article 5 (Territorial claims in the South China Sea) contains the following legal disclaimers:
1. Nothing contained in this COC shall be interpreted as: Renunciation by any Party of previously asserted rights of or claims to territorial sovereignty in the South China Sea; Prejudicing the position of any Party as regards its recognition or non-recognition of any others States right of or claim or basis of claim to territorial sovereignty in the South China Sea. 2. No acts or activities taking place while the present COC is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in the South China Sea or create any rights of sovereignty in the South China Sea. 3. The Parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea (DOC).

Perhaps the most contentious proposals were set out in Article 6 (Implementation of the Code of Conduct). Article 6 contains two very detailed points. The first deals with

first public analysis of this document, see: Valencia, Navigating Differences: What the Zero draft Code of Conduct for the South China Sea Says (and Doesnt Say), Global Asia, 8(1), Spring 2003, 72-78.
51

Extensive extracts from ASEANs Proposed Elements of a Regional Code of Conduct are highlighted in grey on Indonesias Zero Draft.

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rules/norms and procedures in carrying out confidence-building measures. The draft text states:
The Parties concerned agreed to enhance mutual trust and confidence by, among others, refraining from: conducting military exercise, military surveillance, or other provocative actions in the South China Sea; occupying or erecting new structure on the islands, and land features presently occupied or not by the parties concerned; inhabiting the presently uninhabited islands and other land features; conducting activities that threaten navigational safely and/or polluting the environment;

The Parties agreed to encourage efforts to clarify disputes in accordance with international law, in particular the UNCLOS. Encourage the parties concerned to work together to define and clarify the territorial and maritime disputes in the South China Sea, based on international law, including UNCLOS.

Article 6 also contains detailed provisions for preventing incidents and collisions at sea including complying with the 1972 International Regulations for Preventing Collisions at Sea (COLREGS) and other unspecified relevant international instruments. Article 6 states:
The Parties further agreed to refrain from the following: simulating attacks by aiming guns, missile launchers, torpedo tubes or other weapons in the direction of other vessel/aircraft; launching objects or firing signal flares in the direction of any ship or aircraft so as to pose a danger, constitute a hazard, or interfere with navigation and flight of other ship or aircraft. using laser in such a manner so as to cause injury to personnel or damage to equipment aboard of other ship or aircraft; intentionally interfering with communication systems of other ship or aircraft.

Article 6 set out details governing breakdown, safe speed, safe distance, modes of communication, mutually assisting persons and vessels in distress at sea, and reporting mechanisms (including a hot line). Article 7 left the precise monitoring and reporting mechanism to be agreed in future between China and ASEAN. Article 8 contained two dispute mechanisms related to the interpretation and application of the COC: the dispute settlement mechanism under the ASEAN TAC and the dispute settlement mechanism provided under international law, including UNCLOS. These two mechanisms were previously included in greater detail in ASEANs Proposed Elements of a Regional Code of Conduct.

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In late October 2012, Thailand, as country coordinator for ASEANs relations with China, hosted an informal meeting of ASEAN and Chinese officials in Pattaya. This meeting considered guidelines for negotiations over the coming year. A Thai official told journalists that it might take another two years to reach agreement on a COC. In November internal ASEAN divisions emerged and the conclusions of the ASEAN Summit held in Phnom Penh. When Cambodias foreign minister, speaking as the ASEAN Chair, announced that consensus had been reached not to internationalize territorial disputes in the South China Sea the Philippines publicly objected and the offending reference was dropped.
Straws in the Wind: Rescheduling China-ASEAN Talks on the COC

On January 22, 2013 the Philippines lodged a formal legal claim with the United Nations to establish an Arbitral Tribunal under UNCLOS. 52 China rejected this claim. These developments immediately raised concern among ASEAN members, not least because the Philippines unilaterally submitted its claim without prior consultation with other ASEAN members. There was also concern that the Philippine action would delay discussions with China on a Code of Conduct.53 Diplomatic sources in Southeast Asia reported in March 2013 that the Philippine actions have breathed all the life out of the COC process.54 Southeast Asian diplomatic sources privately reported that Beijing was putting diplomatic pressure on ASEAN states to lobby the Philippines to drop its legal action with the UN in return for restarting talks on the COC.55 One think tank concluded that, Manilas strategy might actually have strengthened Beijings hand: its move has

52

Carlyle A. Thayer, South China Sea: China Rejects Arbitration Claim by the Philippines, Thayer Consultancy Background Brief, March 3, 2013, available at Scribd.com and Carlyle A. Thayer, China at Odds with U.N. Treaty, USNI News [US Naval Institute], March 11, 2013. http://news.usni.org/2013/03/11/china-at-odds-with-u-n-treaty#more-2251.
53

For a pessimistic view on the prospects for a COC see: Ian Storey, Slipping Away? A South China Sea Code of Conduct Eludes Diplomatic Efforts, East and South China Seas Bulletin, no. 11, March 20, 2013
54 55

Based on off-the-record discussions held on March 12-13, 2013. Based on off-the-record discussions held on March 12-13, 2013.

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undermined ASEAN unity and risks negatively impacting efforts to establish a Code of Conduct.56 Despite these negative assessments there are some straws in the wind that ASEAN efforts to engage China in discussions on a COC may be bearing fruit.57 In January 2013, after the ASEAN Chair passed from Cambodia to Brunei, for example, Brunei and ASEANs new Secretary General, Le Luong Minh, both pledged to give priority to reviving discussions on the COC.58 Bruneis Sultan raised the issue of the COC with President Xi Jinping when they met on the sidelines of the Boao Forum in April. Sources report that Brunei has set October 2013 as a target date for completion of the COC.59 Secretary General Minh requested Indonesias President Susilo Bambang Yudhoyono to assist in addressing the South China Sea dispute.60 Thailand, as ASEANs designated coordinator for dialogue relations with China, also has pledged to take up the matter with Beijing.61 Prior to the meeting of ASEAN Foreign Ministers in Brunei on 11 April 2013, ASEAN Senior Officials drew up a draft statement on the way forward on the COC. At the AMM, Foreign Secretary del Rosario presented an explanation for his countrys actions in

56

Philippine legal move stirs South China Sea disputes, Strategic Comments (International Institute for Strategic Studies), vol. 19, April 2013.
57

For discussion on ASEANs most recent draft COC and a possible ASEAN Troika see: Mark Valencia, Navigating Differences: What the Zero Draft Code of Conduct for the South China Sea Says (and Doesnt Say), Global Asia, 8(1), Spring 2013, 72-78 and Michael A. McDevitt and Lew Stern, Viet Nam and the South China Sea, in Michael A. McDevitt, M. Taylor Fravel, Lewis M. Stern, The Long Littoral Project: South China Sea, CNA Strategic Studies, March 27, 2013, 61-74.
58

New ASEAN chair Brunei to seek South China Sea code of conduct, GMA News, 14 January 2013;New ASEAN chief seek to finalise Code of Conduct on South China Sea, Channel News Asia, 9 January 2013; Termsak Chalermpalanupap, Toward a code of conduct for the South China Sea, The Nation, 22 January 2013,
59 60

Philippine legal move stirs South China Sea Disputes.

Bagus BT Saragih, ASEAN chief pushes RI to act on South China Sea dispute, The Jakarta Post, April 9, 2013.
61

No immediate solution for South China Sea dispute: Shanmugam, Channel News Asia, 14 January 2013; Thailand seeks talks on South China Sea, Bangkok Post, 15 January 2013; Sihasak seeks South China Sea parley, Bangkok Post, 25 January 2013 and Greg Torode, Manilas lonely path over South China Sea, South China Morning Post, 11 February 2013.

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seeking an Arbitral Tribunal, and reaffirmed his support for a legally binding COC.62 Indonesias Foreign Minister Marty Natalegawa told reporters that China had requested a special meeting to discuss progress on the Code of Conduct.63 He noted that no date was set for the meeting. Other sources reported, however, that China did not specifically request a meeting on the COC but a meeting to discuss the tenth anniversary of the China-ASEAN strategic partnership (2003-13).64 Later in April, Foreign Minister Marty, reacting to new assertiveness by China in the South China Sea, told journalists that the 23rd ASEAN Summit would mostly be about making sure that things do not regress. Marty charged China with flouting its commitments under the 2002 DOC to exercise maximum restraint and concluded You are seeing a number of unilateral steps that China ha taken that is clearly not in line with the spirit of the DOC.65 There was some speculation that the leaders attending the 23rd ASEAN Summit (14-15 April) would issue a statement on the South China Sea.66 In the event the leaders discussion on the South China Sea was summarized succinctly in the Chairs Statement issued by Brunei. The operative paragraphs read:
59. We discussed the situation in the South China Sea and reaffirmed the importance of peace, stability and maritime security in the region. We underscored the importance of the Declaration on Conduct of Parties in the South China Sea (DOC), ASEANs Six-Point Principles on the South China Sea, th and the Joint Statement on the 10 Anniversary of the DOC. In this regard, we reaffirmed the collective commitments under the DOC to ensuring the peaceful resolution of disputes in accordance with universally recognised principles of international law, including the 1982 United Nations Convention on the Law of the Sea, without resorting to the threat or use of force, while exercising self- restraint in the conduct of activities.

62

Del Rosario: UN arbitration on sea row upholds rule of law, The Philippines Star, April 11, 2013 and Pia Lee-Brago, Phl to Asean: We need legally binding sea code, The Philippine Star, April 12, 2013.
63

Agence France Presse, ASEAN, China to meet on maritime code of conduct, The Economic Times, April 11, 2013.
64 65

Private comments made to the author by a reputable journalist, April 17, 2013.

Reuters, China consolidates sea claims as Asian diplomacy struggles, IBN Live, April 23, 2013. All quotations in this paragraph are from this source.
66

Agence France Presse, ASEAN, China to meet on maritime code of conduct, and Asean statement on sea claims up, Manila Standard Today, April 11, 2013. This would have been third third ASEAN statement on the South China Sea; the first was issued in 1992 and the second in 1995.

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60. We looked forward to continued engagement with China in implementing the DOC in a full and effective manner, including through mutually agreed joint cooperative activities and projects. Taking th into account the importance of the 10 anniversary of the ASEAN-China Strategic Partnership in 2013, and the positive momentum following the 9th ASEAN-China Senior Officials Consultations, we tasked our Ministers to continue to work actively with China on the way forward for the early conclusion of a 67 Code of Conduct in the South China Sea (COC) on the basis of consensus.

The ASEAN Summit endorsed a proposal by Thailand to host a special meeting of foreign ministers in Bangkok prior to the ASEAN-China Summit scheduled for October.68 Later in April ASEANs Secretary General Minh announced that ASEAN and China would meet at ministerial level later in the year to discuss the COC.69 In late April/early May Chinas new Foreign Minister Wang Li made a visit to Thailand, Indonesia, Singapore and Brunei. During Lis visit to Jakarta there were conflicting media reports on what was agreed. According to Foreign Minister Marty Natalegawa, agreement was reached to hold a meeting of the ASEAN-China Working Group on the DOC in the near future to discuss the COC. Marty also endorsed Lis proposal to set up an Eminent Persons Group to complement the government-to-government talks. 70 When Li met ASEAN Secretary General Minh, Minh reported that agreement had been reached to hold a special meeting of foreign ministers in August to discuss the COC.71
Conclusion

Media reporting on ASEANs failure to produce a joint communiqu following its 45th Annual Ministerial Meeting in Phnom Penh in July 2012 overshadowed the fact that the ASEAN Foreign Ministers unanimously reached agreement on Proposed Elements of a

67

Chairmans Statement of the 22 ASEAN Summit, Our People, Our Future Together, Bandar Seri Begawan, April 24-5, 2013.
68

nd

Kyodo News International, ASEAN leaders discuss how to deal with China on South China Sea, GlobalPost.com, April 30, 2013.
69 70

Xinhua, ASEAN to enter South China Sea talks with China as a group: Le Luong Minh, April 25, 2013.

Kyodo News International, ASEAN leaders discuss how to deal with China on South China Sea, GlobalPost.com, April 30, 2013; Kyodo News International, China, Indonesia suggest talks on binding rules in S. China Sea, GlobalPost.com, May 1, 2013; and Bagus BTSaragh, China closer to South China Sea Code of Conduct, Marty says, The Jakarta Post, May 3, 2013.
71

Kyodo News International, ASEAN leaders discuss how to deal with China on South China Sea, GlobalPost.com, April 30, 2013.

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Regional Code of Conduct in the South China Sea at the opening plenary session of the AMM on 9 July. During the recriminations between Cambodia and the Philippines at the 45th AMM and later in the year Indonesia stepped in and played a crucial role in forging consensus among ASEAN members on a Regional Code of Conduct in the South China Sea. During the heated debate at the 45th AMM Retreat Indonesia offered to submit a non paper on the COC. Indonesia and Singapore both attempted to broker a compromise over the wording of the controversial AMM joint communiqu. When these efforts failed Indonesia acted decisively to restore ASEAN unity. Foreign Minister Marty Natalegawa employed shuttle diplomacy to quickly secure agreement on Six-Point Principles on the South China Sea. Marty followed up by presenting a Zero Draft COC to ASEAN Foreign Ministers on the sidelines of the United Nations General Assembly on 27 September 2012. Indonesias Zero Draft COC was adopted by consensus. As a result of Indonesias efforts, supported by other key stakeholders in ASEAN (Brunei and Thailand in particular), talks between ASEAN and China on a Regional COC are set to resume.