Thayer Consultancy Background Brief:

ABN # 65 648 097 123

Cambodia as ASEAN Chair &
the South China Sea Code of
Conduct
October 29, 2021

We are preparing a report about Cambodia's possible role as ASEAN Chair in the
negotiation process for a Code of Conduct (COC) in the South China Sea.
What is your assessment on whether it's a good thing if Cambodia can help speed up
negotiations on a COC. Or do you think as China's key ally in ASEAN Cambodia will
prevent speeding up negotiations should the draft COC text call for observation of
international laws including UNCLOS and the 2016 ruling by the Permanent Court of
Arbitration?
ANSWER: A distinction needs to be made between Cambodia as ASEAN Chair in 2020
and Cambodia as one of the eleven parties to the negotiations on the ASEAN-China
Single Draft Code of Conduct in the South China Sea Negotiating Text (SDNT).
Cambodia, as ASEAN Chair, has no special authority to influence the time line for
negotiations on the ASEAN-China SDNT. Long ago ASEAN gave up its prerogative to
reach a common position on the Code of Conduct prior to meeting with China.
ASEAN’s concession on this point means that there are eleven parties — ASEAN’s ten
member states and China.
Cambodia, as ASEAN Chair could, as it did in 2012, refuse to issue the Chair’s
Statement because it objected to wording of paragraphs on the South China Sea. But
this is unlikely now because ASEAN has recovered from this debacle. Since 2013,
ASEAN has come up with a formulation on the South China Sea that is included in every
Chair’s Statement. Cambodia has been part of this consensus.
Formal negotiations on the SDNT are undertaken by the ASEAN-China Working Group
to Implement the Declaration on Conduct of Parties in the South China Sea (WG DOC).
This group operates on the basis of consensus. Cambodia could block consensus. But
either it would be operating alone as a single holdout or presumably siding with China
(or some other party) on a particular issue.
In August 2018, China unilaterally pressed for a three-year deadline for the Code of
Conduct (2018 to 2021), in my assessment, because Rodrigo Duterte would be
President of the Philippines (until May 2022); Brunei and Cambodia would be ASEAN
Chairs in 2021 and 2022, respectively; and the Philippines and Myanmar would be
ASEAN country co-ordinator for dialogue relations with China, from 2018-21 and
2021-24, respectively.
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ASEAN, however, never formally accepted this. ASEAN developed a well-worn

statement that is repeated every year. For example, Chairman’s Statement of the 38th
and 39th ASEAN Summits (26 October 2021) states, “We… were encouraged by the
progress of the substantive negotiations towards the early conclusion of an effective
and substantive Code of Conduct in the South China Sea (COC) consistent with
international law, including the 1982 UNCLOS, within a mutually agreed timeline
(emphasis added).”
The November 2002 Declaration on Conduct of Parties in the South China Sea (DOC)
stated, “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 (emphasis added).”
COVID-19 meant no face-to-face negotiations on the SDNT took place in 2020. China
is now pressing for a conclusion by the end of next year.
The speed of negotiations likely will be determined by the claimant states and their
acceptance or otherwise of the wording of the final SDNT, its legal status, area of
coverage, and enforceability.
The SDNT is replete with references to international law in general and UNLOS in
particular. Provisional agreement has been reached on the Preamble (one page). Point
2 of the Preamble states:
Reaffirming their commitment to the purposes and principles of the Charter of
the United Nations, the 1982 UN Convention on the Law of the Sea (UNCLOS),
the Treaty of Amity and Cooperation in Southeast Asia, the Five Principles of
Peaceful Coexistence, and other universally recognised principles of
international law which shall serve as the basic norms governing state-to-state
relations (emphasis added).
Negotiations are now focused on the second section General Provisions point one on
objectives. This section is two pages long.
There is no mention of the Arbitral Tribunal set up under Annex VII of UNCLOS or its
2016 Award in the SDNT. The Arbitral Tribunal is often misleadingly referred to as the
Permanent Court of Arbitration (PCA). The PCA served as the registry for the
proceedings of the Arbitral Tribunal.

Suggested citation: Carlyle A. Thayer, “Cambodia as ASEAN Chair & the South China
Sea Code of Conduct,” Thayer Consultancy Background Brief, October 29, 2021. All
background briefs are posted on Scribd.com (search for Thayer). To remove yourself
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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.