Code of Conduct

in the South China Sea

Emeritus Professor Carlyle A. Thayer
Webinar Presentation to Turning on a DIME:
South China Sea Scene Setting Toward Taking Back the Strategic Initiative
Brute Krulak Center for Innovation and Creativity
Marine Corps University, Quantico, Virginia
February 4, 2021
Key Developments, 1995-2002

Declaration
ASEAN-China on Conduct
exchange of Parties in
China Draft Codes the South
Occupies of Conduct China Sea
Mischief Reef March 2000 (DOC) 2002
1995

ASEAN = Association of Southeast Asian Nations

Cooperative Activities Under the DOC
• a. marine environmental protection;
• b. marine scientific research;
• c. safety of navigation and communication at sea;
• d. search and rescue operation; and
• e. combating transnational crime, including but not
limited to trafficking in illicit drugs, piracy and armed
robbery at sea, and illegal traffic in arms.
Declaration on Conduct of Parties in the
South China Sea (DOC)
• 10. The Parties concerned reaffirm that
the adoption of a code of conduct in the
South China Sea would further promote
peace and stability in the region and
agree to work, on the basis of consensus,
towards the eventual attainment of this
objective.
• November 2002
Key Developments, 2003-17

Framework
of the
Draft DOC Code of
Guidelines Conduct
TOR ASEAN- Adopted, August
China JWG 2005-2011 2017
2004
TOR = Terms of Reference
JWG = Joint Working Group
 United Nations
Commission on the Limits
of the Continental Shelf
Deadline May 2009
China submits
9-dash line map (1948)
claiming historic rights

Claimants: Brunei, Philippines,

Malaysia, Vietnam, and Taiwan
Indonesia?
Single Draft South China Sea Code of Conduct
Negotiating Text (August 2018)
• Adopted by the Foreign Ministers from China and
ASEAN members
• unedited compilation of nine states’ views
• preambular provisions, general provisions and final clauses
• Not an instrument to settle territorial disputes or maritime
delimitation issues
• A living document
• Three readings (1st reading August 2019)
• Three-year time frame (2018-2021)
• No negotiations in 2020 due to COVID-19
Draft COC General Provisions

• Duty to Cooperate
2.c • Practical Maritime Cooperation

• Self-restraint/Trust & Confidence

2.c • Prevention of Incidents

• Management of Incidents
2.c • Other Undertakings
 DIME
Diplomacy

Information

Military

Economic
 Diplomacy
• China insists maritime disputes can only be settled bilaterally
• China and ASEAN’s ten members
• Third parties excluded
• China exploits consensus principle
• ASEAN
• Rotating Chair annually
• Annual Ministerial Meeting
• Annual Summits
• ASEAN and Dialogue Partners
• China, US, Japan, India, Australia, New Zealand, South Korea, Russia
 Information
• China’s “three warfares”
• Public opinion warfare – U.S. cause of instability
• Psychological warfare
• Legal warfare
• ASEAN Claimants
• Base claims on UN Convention of the Law of the Sea (UNCLOS)
• Notes Verbales to the Commission on the Limits of the Continental
Shelf (2019-20)
• ASEAN
• Never mentions any country by name
• “diplomatic and legal processes”
 Information
• China was the first to discover, name, occupy and administer all the
features in the South China Sea
• Historic rights – nine-dash line
• Four shas
• Dongsha/Pratas
• Zhongsha/Macclesfield Bank
• Xisha/Paracel Islands
• Nansha/Spratly Islands
• Rejects Arbitral Tribunal Award (2016) - lawfare
 United States Policy on South China Sea
• Secretary of State Mike Pompeo releases ‘U.S. Position on
Maritime Claims in the South China Sea’ (13 July 2020)
• Alignment with 2016 Arbitral Tribunal Award
• China’s claims to offshore resources across most of the South
China Sea are completely unlawful
• Secretary Pompeo speech ‘Communist China and the Free
World’s Future’ (23 July 2020)
• “Maybe it’s time for a new grouping of like-minded nations, a new
alliance of democracies.”
 Military
• Action-Reaction China-U.S. Cycle
• Chinese naval exercises
• U.S. Navy CSGs, naval presence patrols, bombers
• Freedom of Navigation Operational Patrols
(FONOPs)
• Grey Zone tactics
• China Coast Guard – harassment
• Maritime Militia
• Fishing fleets
• Claimant States
• Maritime Law Enforcement
 China’s Submission to the
Single Draft COC Negotiating Text

“The Parties shall not hold joint military

exercises with countries from outside the
region, unless the parties concerned are
notified beforehand and express no
objection.”
 Economic
• China is the largest trading partner with each of the
individual states
• China’s Belt and Road Initiative
• Funding for infrastructure
• China’s COVID-19 assistance – PPE and vaccine
• The Quad (US, Japan, India, Australia)
• Funding for high quality infrastructure
 China’s Submission to the
Single Draft COC Negotiating Text

“Oil and gas exploration and development

in disputed waters… shall not be conducted
in cooperation with companies from
countries outside the region”
 Conclusion Key Issues

• Geographic Scope & Disputed Areas

1

• Maritime Law Enforcement

2 Cooperation Guidelines & Protocols

• Military Exercises and

3 Demilitarization
 Conclusion Key Issues

• Dispute Settlement
4

• Role of Third Parties

5

• Legal Status of COC

6
 Code of Conduct
in the South China Sea
Emeritus Professor Carlyle A. Thayer
Webinar Presentation to
Turning on a DIME:
South China Sea Scene Setting Toward Taking Back the Strategic Initiative
Brute Krulak Center for Innovation and Creativity
Marine Corps University, Quantico, Virginia
February 4, 2021.