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Code of Conduct in the South China Sea Undermined by ASEAN Disarray

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For government officials and regional analysts following the security dialogues in Phnom Penh last week (9–13 July) there was good news and bad news. The good news was that the foreign ministers of the Association of Southeast Asian Nations (ASEAN) agreed to the key elements of their Code of Conduct (COC) in the South China Sea. The bad news was that the ASEAN foreign ministers could not agree on the wording of the South China Sea section of a joint communiqué.

Good News: ASEAN Agrees on a Code of Conduct

In 2002, ASEAN and China failed to reach an agreement on a COC in the South China Sea. As a compromise they signed off on a nonbinding political statement that took the form of the Declaration on Conduct of Parties in the South China Sea (DOC). The signatories agreed to work toward the eventual adoption of a COC.

Implementation of the DOC languished for nine years until China, in an about face, resumed discussions with ASEAN and agreed on guidelines to implement the DOC. China’s change of mind was in reaction to pressure from the international community, led by the United States, criticizing China’s assertive actions against the Philippines and Vietnam. The agreement on the DOC guidelines prompted ASEAN to move on to the next phase—drafting a COC for the South China Sea.

ASEAN has not yet released the official text of its COC. But a detailed outline provided to the author shows it to contain three parts. The first is a preamble listing agreements between ASEAN and China obligating them to settle their disputes peacefully in accordance with international law, including the U.N. Convention on Law of the Sea (UNCLOS).

The second part contains the operative provisions of the COC. Signatories are enjoined to “develop modalities and arrangements for the promotion of settlement by peaceful means of disputes and prevent their escalation . . .” Another provision calls for an effective mechanism to monitor the implementation of the code.

The final section requires signatories to “establish a mechanism for settling disputes relating to the interpretation and application of the Code of Conduct.” This provision recommends that the signatories avail themselves of the dispute-settlement mechanism included in the ASEAN Treaty of Amity and Cooperation in Southeast Asia (TAC).

TAC provides for a ministerial-level ASEAN High Council and empowers it to recommend to parties in dispute—subject to their prior assent—such measures as good offices, mediation, inquiry or conciliation. The council also is given the authority to “recommend appropriate measures for the prevention of a deterioration of the dispute . . .” The People’s Republic of China acceded to TAC on 8 October 2003 and undertook in writing “faithfully to perform and carry out all the stipulations therein contained [in TAC].”

In the event that parties are unable to resolve their dispute with the ASEAN framework, the COC states that 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. UNCLOS, however, does not contain any provisions for the settlement of sovereignty disputes over islands and rocks. It does provide for an International Tribunal on Law of the Sea (ITLOS) to adjudicate disputes over maritime jurisdiction. Under international law “the land dominates the sea,” so before disputants could take their case to ITLOS they would first have to determine sovereignty over the disputed islands or rocks on which their maritime claims are based.

Bad News: ASEAN Fails to Issue a Joint Communiqué

ASEAN was founded in 1967 and each of its ministerial meetings has always ended with a joint communiqué summarizing the decisions reached. It is drawn up by the ASEAN chair on the basis of consultations with all members and reflects a consensus. An ASEAN Media Advisory dated 9 July said, “a Joint Communique will be adopted at the end of the [Ministerial] Meeting.” The failure of ASEAN’s 45th Ministerial Meeting to agree on a joint communique is unprecedented.

Before turning to the dispute over the wording of the South China Sea section it should be noted that the ASEAN Ministerial Meeting has a hefty agenda. At its last meeting it discussed 118 agenda items and the joint communique ran to 29 pages. Thus, the failure to issue a joint communique will result in a delay in promulgating the ASEAN ministers’ decisions.

No communique was issued because of a heated dispute between the Philippines and Cambodia, the ASEAN chair for this year. The Philippines wanted the communique to mention China’s intrusion at Scarborough Shoal and violations of its exclusive economic zone and continental shelf. Cambodia was adamant that any mention of Scarborough Shoal was tantamount to taking sides in a dispute and would undermine ASEAN neutrality.

According to notes taken by a participant and made available to the author, Cambodia’s foreign minister threatened “if we cannot agree on [the] text, there should be no text at all.” The foreign ministers from Indonesia and Singapore brokered a compromise in the wording of the joint communique with the Philippines and Vietnam, but despite their efforts the Cambodian foreign minister refused to budge and abruptly left the meeting.

What Next?

The ASEAN COC and the ASEAN ministerial joint communique are two separate issues. ASEAN is now in a position to open discussions with China on the ASEAN COC. Informal meetings were held in Phnom Penh and China has publicly indicated it would enter into discussions with ASEAN “when conditions mature.” Formal ASEAN-China discussions have been tentatively scheduled for September. ASEAN hopes to reach agreement on a COC by November when the next ASEAN summit is scheduled.

The contretemps over the communique have strained relations between Cambodia and the Philippines. Cambodia’s actions have created a rift in ASEAN unity and affected the organization’s international standing and prestige. Cambodia is widely viewed as China’s stalking horse. One diplomat close to the event asserted, “China bought the chair, simple as that.” If disunity continues to plague ASEAN it will be to the detriment of Secretary of State Hillary Clinton’s recent diplomacy that stressed the importance of ASEAN taking a unified position and leadership role on the vexatious issue. China will relish ASEAN’s predicament because ASEAN’s hand will be weakened in negotiations over binding a Code of Conduct in the South China Sea.