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This Bockground Brief releoses for the first time the text of draft codes of conduct
exchanged between ASEAN and Chino in Morch 2000, an onolysis of their content, ond
why disogreement over specific issues could not be overcome. See Appendix.
This week the Philippines will host the 30th ASEAN Summit and Related Meetings from
26-29 April. The ASEAN Summit willtake place in Pasay City on 29 April.
ASEAN and China are will discuss a draft Code of Conduct in the South China Sea
Framework that is expected to be finalized by June 2017. ln the lead up to this week's
meetings the ASEAN-China Joint Working Group on lmplementing the Declaration on
the Conduct of Parties (DOC) in the South China held two meetings. ln April, the 20th
Joint Working Group Meeting was held in Cambodia after which the Chinese Foreign
Ministry stated that "the first draft of the COC has also taken shape."
Historical Background
The Association of South East Asian Nations (ASEAN) first became formally involved in
South China Sea issues in July 1992 when China and Vietnam (not yet a member of
ASEAN) became embroiled in a dispute over oil exploration activities in the area.
ASEAN issued a declaration that urged unnamed parties "to exercise restraint." This
call went unheeded, and both Vietnam and China proceeded to take control of
unoccupied islets and reefs comprising the Spratly archipelago near the Philippines,
Malaysia, and Brunei.
ln late 1994, China sparked another Spratly-related controversy when it occupied the
Philippines-claimed Mischief Reef. This incident marked a turning point. ASEAN
foreign ministers issued their second statement on the South China Sea in which they
expressed their "serious concern" and urged the concerned parties "to refrain from
taking actions that de-stabilize the situation." The Philippines lobbied its fellow
members to adopt a Code of Conduct (COC) that would constrain China from further
encroachment. lt took ASEAN officials nearly five years to agree on a draft ASEAN COC.
By that time China had drawn up its own draft COC.
ln March 2000k ASEAN and China exchanged their respective drafts and agreed to
consolidate them into a final agreed text. Four major areas of disagreement emerged:
the geographic scope, restrictions on construction on occupied and unoccupied
2
features, military activities in waters adjacent to the Spratly islands, and policies
concerning detainment of fisherman found in disputed waters. After two years of
negotiations, it became evident that an agreement was not possible'
SAIS
From: Carlyle A. Thayer, "ASEAN, China and the Code of Conduct in the South China Sea," The
Review of In terna tional Affairs, 33(Z),Summer-Fall 2013, 7 5-84'
ln speech delivered in Jakarta in July 2000, Vice President Hu Jintao stated, "[China]
has put forward the proposal of 'shelving disputes and going for joint development"
in relation to the Spratlys question and has been actively participating in making a
code of conduct for preserving peace and stability in the South China Sea." China
consistently opposes discussing South China Sea territorial conflicts in multilateral
a
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forms. According to an editorial in The Bangkok Post (27 Aug.) at the 7th ARF when
Thailand attempted to raise the Spratly lsland question, "the Chinese slapped down
the Thai proposal brusquely and rudely. Never, they threatened, will Beijing discuss
the Spratlys in a forum - even though six nations claim the archipelago'"
Despite this objection, however, Chinese officials have discussed a code of conduct
with their ASEAN counterparts. ln August, China hosted the third meeting of the
ASEAN-China working group on a code of conduct for the South China Sea in Dalian.
This meeting discussed a consolidated draft code that emerged from discussions held
in Kuala Lumpur in May. The new draft states that the code should be applied to the
Spratly lslands alone but officials are still working on a formulation that will satisfy
both Vietnam (which wants the Paracels included) and China (which wants the
Paracels excluded). China has also tried to insert in the draft code wording which
would in effect restrict U.S. military exercises in the "waters around" the Spratly
lslands. China has also opposed wording that would restrict or prohibit construction
on features in the area. China's position is more vague calling for restraint in "activities
that might complicate and escalate disputes." lt was left to Vietnam, chair of the
ASEAN Standing Committee for the next year, to declare that the China-ASEAN
meeting in Dailan had "reached consensus on some major principles of the East Sea
Code of Conduct... Differences, however, remained." Chinese officials, for their part,
calledon,,relevantcountriestoshowpoliticalsincerityandflexibility,,andlabeledthe
code a political not a legal document. "The major difficulties are not on the Chinese
side," according to a Chinese foreign ministry spokesperson. According to Laurel Baja
the meeting failed to make progress because all of the officials taking part lacked a
mandate. Baja suggested that the issue to taken up by higher-ranking officials possibly
at an ASEAN Senior Officials Meeting in Hanoi in October.
From: Carlyle A. Thayer, "China Consolidates Its Long-Term Bilateral Relations with SoutheastAsia",
Comparative Connections: An E-/ournal on East Asian Bilateral Relations (Honolulu: Pacific
Forum-CSIS), 2(2), znd Quarter, Iuly 2000' 62'72'
htto //rnrww.csis.org/pacfor/cc/002 Qchina asean.html
:
Thayer Consultancy provides political analysis of current regional security issues and
other research support to selected clients. Thayer Consultancy was officially
registered as a small business in Australia in 2002.
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P.02
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The Hehds of State and Govemmeni of the member statgs.of ASEAN and the
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COMMTTTED-IQ t-ne spirit and principles of internatigiral law, the Cirafter of the
t r t- z
Uniued trrations, ,n#.i.{crnr.*on on the taw of the;sea, the Treatybf Amity and
A).
Cooperaticn in $ouflreastAs!a. the Five Principles of PeacefutCoexistence, and tfie
' REAFFIRUII*e respect for the freedom of navQation and air trbffic in the $outh
china sea, as provided for by intemauonar raw, ncruc *nrn /rf.r{ff*noon on the
;,
HEREBY ADOPT the follcnaing CcCe cf Ccnducl in the disputed areas of the
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Spratlys and the Paracels in the Souti.r Chin'a Sea, hereinafter referred ro as the
Disputed Area. . :-
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iurisdiction in the Oisputecj Area by peaceful means. wtthout r*:on to ihe use of
force or threat of the use of fcrce, on tt . basis of respect for sovereign!, equalitv
and nnutuai respect among nations, and non-interfereilce into each oihers intemal
affairy, consjsteBt with the recognized principles of intemational iaw. inCuding those
' kte-/
in thd U.N. Convention on the Law of the Sea:
I
2. The Parties concemed uncertake to refrain frorn adion of inhabiting or erecting
structurcs in presently uninhabiteC islandi, reef,s, shoals, cays and other features in
seek ways, in the spirit of cooperation and understanding. tc build trusi and
i, i
c" ensuring just and hurnane treatnnent of nationals of other parties ccncerr:ed
e. combating transnationat crime. including, but not limited to, Eaffibting in rllic:i
.ihe modalities, scope and locations in respect of bilateral and multiiaterat qCIpp,eration
shouldbeagreeduponbyclaimarrtcounriespriortotheiractuaIimplementation.
6. The parties concemed undertake !b conduct consultetions and diatogr.*
ccnceming &e Disputed Area thfrrgfmoOatities tc be agreed bythem, inctuding
regular consultations on. the observance of this Code of ConducE for the pr.rrpose cf
PIIOCEEDDiC ftert he obiectves a$d ::irciuies ser for-h ir: The 1997
Jolnr Statarent cf rhe Meeting of rhe Prisident of the P.acple': RzpuLlic
of Chtnc crd rhe F{eaas o{ StctelGover?nnnt af the MernEe, Stq;e: of
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