The road to an ASEAN-China Code of Conduct in the South China Sea

Charmaine C. Deogracias, VERA Files

Posted at Aug 10 2017 10:16 PM

The adoption last weekend by the Association of Southeast Asian Nations (ASEAN) and China of a framework for a code of conduct (COC) in the South China Sea marks a milestone in a diplomatic process that began 25 years ago. 

From the very beginning, the negotiations circled around four contentious issues: commitment not to inhabit uninhabited features, the area of application of the agreement, the legally-binding nature of the agreement and the role of ASEAN. 

ASEAN and China confront the same issues as they put substance to the framework of the COC that they have approved. The journey continues.

Here is a timeline VERA Files prepared of key events dating back to 1992, when the goal of having a COC was first set.

July 22, 1992: ASEAN issues first statement on South China Sea

The Association of Southeast Asian Nations (ASEAN) issued its first statement on the South China Sea that pinned the goal of establishing a code of international conduct over the South China Sea based on the principles contained in the Treaty of Amity and Cooperation in Southeast Asia. It was an offshoot of the 1988 conflict between China and Vietnam (not yet an ASEAN member then). The ASEAN Declaration on the South China Sea was an initiative of the Philippines, which as chair of the ministerial meetings then, called for the peaceful resolution of “all sovereignty and jurisdictional issues pertaining to the South China Sea”, and the exercise of “restraint.” China was guest of the chair, hence it was invited to sign the declaration but it demurred, saying it was not involved in the drafting of the text. 

July 25, 1994: ARF meets for the first time

The ASEAN Regional Forum (ARF)met for the first time with dialogue partners and took up the South China Sea informally behind closed doors, rather than in plenary, and generally agreed that the situation in the South China Sea was a potential flashpoint in the region. China’s preference for bilateral rather than multilateral talks was central to the discussion. But it did not figure in the chairman’s statement.

March 18, 1995: ASEAN expresses 'serious concern' over South China Sea

Triggered by the Philippines’ discovery of Chinese structures on Mischief Reef, or Meiji Jiao in Chinese, ASEAN issued a second stand-alone statement that expressed “serious concern over recent developments which affect peace and stability in the South China Sea.” “We call upon all parties to refrain from taking actions that destabilize the region and further threaten the peace and security of the South China Sea. We specifically call for the early resolution of the problems caused by recent developments in Mischief Reef,” the ASEAN Foreign Ministers said in a statement issued on March 18. 

July 1995: ASEAN foreign ministers call on South China Sea claimants to “refrain from taking actions that could destabilize the region”

In their July 1995 joint communiqué, the ASEAN foreign ministers stated their view of the developments in the South China Sea and called on the claimants “to refrain from taking actions that could destabilize the region, including possibly undermining the freedom of navigation and aviation in the affected areas.” References to the South China issue in the ARF chairman’s statement began that year. 

1996: ASEAN endorses idea of concluding regional COC

The ASEAN Ministerial Meeting Joint Communique wanted to “lay the foundation for long-term stability in the area and foster understanding among claimant countries” and endorsed the idea of concluding a regional code of conduct in the South China Sea.” After this, how to forge an ASEAN-China agreement on the South China Sea became the goal year after year but four contentious issues surfaced: 1) the commitment to refrain from action of inhabiting the presently uninhabited islands, reefs, shoals, cays, and other features; 2) the area of application of the agreement; 3) the legally binding nature of the document, and; 4) the role of ASEAN. 

March 2000: ASEAN, China exchange COC drafts

ASEAN and China agreed in a March meeting to exchange their respective drafts for a COC and began negotiating the consolidated text of the draft code.

November 2002: ASEAN, China adopt DOC

After two years of negotiations, ASEAN and China, as a compromise settled for a non-binding political statement. From a COC as it was negotiated, the agreement signed in November 2002 in Phnom Penh was watered down to what is known as the Declaration of the Conduct of Parties in the South China Sea (DOC). The COC was subsumed as an objective of the agreement. “The adoption of a code of conduct in the South China Sea would further promote peace and stability in the region and (the parties) agree to work, on the basis of consensus towards the eventual attainment of this objective,” the DOC stated. Vietnam pushed for the Paracels, to which it has overlapping claims with China, to be part of the agreement on the South China Sea. China has drawn baselines around the Paracels and considered it a non-negotiable issue. ASEAN was pressed to come up with the document, where as a compromise, they chose not to specify the area of the application of the agreement but to apply it generally to the South China Sea. 

September 1, 2004: PH, China enter into bilateral JMSU

China and the Philippines entered into a bilateral Joint Marine Seismic Undertaking (JMSU) to jointly explore certain areas in the South China Sea including Reed Bank in Palawan which is within the country’s exclusive economic zone. To circumvent the Constitutional provision that the “exploration” of the country’s natural resources should exclusively be by the government and for the Filipino people, the agreement used the word “seismic survey.” Vietnam protested because the agreement covered areas which it also claimed. It was included in the agreement which became the Tripartite Agreement for a Joint Marine Scientific Undertaking (JMSU).”The survey has been completed. The agreement has lapsed. An activist group questioned the legality of the agreement before the Supreme Court, which has not released its decision up to now.

August 2005: ASEAN, China create DOC working group

Senior officials of ASEAN and China reached an agreement on the terms of reference for the establishment of a Joint ASEAN-China Working Group (JWG) to implement the DOC. They first met in August and tabled the draft Guidelines to Implement the DOC. 

2010: Regional COC draft fails to reach China

ASEAN senior officials circulated among them a draft of the Regional Code of Conduct in the South China Sea as part of the consensual approach to the issue. Beijing doesn’t share this position of ASEAN consulting with each other prior to meeting China. The draft remained within the ASEAN and was never formally considered nor offered to China.

July 20, 2011: DOC guidelines adopted

The Guidelines to Implement the DOC were adopted after six years of exchanging drafts, and among the parameters was to promote dialogue and consultation among parties. Nothing much changed from the original 2005 draft yet it took that long to have a consensus.

Then there was also the Philippine-proposed ASEAN-China Zone of Peace Freedom, Friendship and Cooperation, a cooperative framework to establish a Joint Development Area or a Marine Peace Park in the South China Sea. It will segregate the disputed areas from the non-disputed waters (and continental shelf of the South China Sea by enclaving and literally “shelve territorial disputes” and pave the way for joint cooperation in the enclave area. Demilitarizing the area was in order under the conceptual framework. But it failed to get consensus during a September of ASEAN Legal Experts Group Meeting in Manila because Cambodia and Laos did not send representatives. Still, in the Hanoi summit in November, President Benigno Aquino raised the Philippine proposal. But to relegate the proposal to the level of a maritime security forum, the proposal is considered dead in the water.

January 2012: ASEAN, China begin guidelines talks

ASEAN and Chinese senior officials began talks on implementing the guidelines. The Beijing meeting in January produced an agreement to establish four committees for cooperative activities outlined in the 2002 DOC. They are the expert committees on marine scientific research, environmental protection, search and rescue, and transnational crime. It was then that ASEAN decided to bring to the fore the objective of the 2002 DOC, as agreed, which was to adopt a code of conduct in the South China Sea. The Philippines re-drafted a proposed COC with a working title, “Philippine Draft Code of Conduct.” China took a position that DOC Guidelines be implemented first and discussing a COC will only begin “when the conditions are ripe.” 

April 2012: PH, China locked in bitter standoff
 
But the April stand-off between the Philippine Navy and Chinese Coast Guard locked the two countries in a bitter exchange of statements that led to a diplomatic impasse. 

June 2012: China rejects working group proposal; ASEAN fails to reach consensus

In June, a special working group agreed on key elements that would go into the code that ASEAN was to draft. But China did not accept the key elements because it was not part of the negotiation. The Philippines was determined to take on China and “internationalize” the issue in the annual meeting of the ASEAN foreign ministers. It vigorously pushed for a text in the statement that has reference to the Scarborough shoal incident. Vietnam lobbied for a text on China bidding out oil blocks within Vietnam’s Exclusive Economic Zone. Cambodia, the ASEAN chair that year, took a position that those issues were bilateral for Philippine and China and Vietnam and China. The ASEAN ministers failed to reach a consensus and failed to issue a joint communique, a first in ASEAN’s 45-year history. July 20, 2012

July 20, 2012: ASEAN reaches consensus on SCS’s 6-point principles

On July 20, after Indonesia’s effort to salvage the image of a united ASEAN, a consensus was reached on a Six-Point Principles on the South China Sea that reaffirmed commitments to the full implementation of the DOC, Guidelines for the Implementation of the DOC, early conclusion of a Regional COC, full respect for international law including the 1982 United Nations Convention on the Law of the Sea, continued exercise of self-restraint and non-use of force by all parties and peaceful resolution of disputes in accordance with international law including UNCLOS.

September 2012: Indonesia proposes regional COC on South China Sea

In September, on the sidelines of the annual United Nations General Assembly in New York, ASEAN ministers met and received an Indonesian proposal called “Zero Draft A Regional Code of Conduct in the South China Sea.” It was based on the 2002 DOC, ASEAN’s Proposed Elements of a Regional Code of Conduct and the ASEAN’s Six-Point Principles on the South China Sea.

January 2013: PH initiates arbitral case vs China

In January, the Philippines unilaterally initiated an arbitral case at the Permanent Court of Arbitration in The Hague. It petitioned the arbitral tribunal to nullify the expansive nine-dash line claims of China in the South China Sea and sought clarification on the maritime entitlements of geological features there. 

April 2013: PH explains legal action vs China

It was only in the April meeting of foreign ministers chaired by Brunei that the Philippines explained its legal action against China. The ministerial joint communique stated that the ministers look forward to formal consultations between ASEAN and China at the senior officials level with an end goal of an early conclusion of the COC.

September 2013: COC working group created

ASEAN and China began their formal consultations on the COC in Suzhou, China in September, where they finally came up with a work plan on the DOC for 2013-2014. A working group was formed to assist in developing a COC.

February 18, 2014: ASEAN, China discuss COC for the first time

There was also an initiative to institutionalize an ASEAN claimants meeting, where Malaysia, Philippines, Vietnam and Brunei. But up until the last minute the 3 other ASEAN Spratlys claimants hoped that Brunei will show up in the 1st ASEAN Claimants Working Group meeting in Manila, Brunei was a no show. The three countries exchanged non-papers on the concept of the mechanism and they agreed on the commonality in wanting the mechanism to continue; to continue meeting in the working group level; to clarify that this mechanism will not replace the ASEAN-China dialogue mechanism such as the JWG on the Implementation of the DOC; that it will be inclusive, and will be opened to China eventually; and, to involve Brunei by furnishing it with reports even if it doesn’t take part. This initiative was only good until its second meeting in Malaysia, a month after.

June 9, 2014: ASEAN, China discuss COC again

The nature of the COC and the approaches to designing it were discussed for the first time during the 12th ASEAN-China Senior Officials Meeting (SOM) held in Quang Ninh, Vietnam on June 9. The parties also agreed to draft guidelines for a hotline to respond to urgent incidents at sea and the text of the ASEAN-China Joint Statement on the Implementation of the Code for Unplanned Encounters at Sea (CUES). 

October 19, 2015

ASEAN-China SOM on the DOC again met in Chengdu, China on October 19, where they “agreed to maintain the momentum of regular official consultations and work towards the early conclusion of a COC on the basis of consensus.” 

November 21, 2015: Malaysia underscores ‘maintaining peace’ in South China Sea

The Chairman’s statement of the 18th ASEAN-China Summit on Nov. 21 in Kuala Lumpur “underscored the importance of maintaining peace, security and stability as well as upholding freedom of navigation in and over-flight above the South China Sea.”

June 14, 2016: ASEAN withdraws statement on South China Sea dispute

The June 14 Special Meeting of ASEAN and China foreign ministers in Kunming ended in dismay after ASEAN ministers withdrew their press statement that expressed their frustration. “We look forward to working together with China to bring ASEAN-China cooperation to the next level. But we also cannot ignore what is happening in the South China Sea as it is an important issue in the relations and cooperation between ASEAN and China,” said the withdrawn statement, which was later issued by three claimant states—Malaysia, the Philippines, and Vietnam—to their local media. 

July 12, 2016: Arbitral Tribunal issues favorable ruling to PH

On July 12, the arbitral tribunal issued a ruling favorable to the Philippine in its case against China but newly-elected President Rodrigo Duterte did not “flaunt” the arbitral award. Twelve days after the ruling, a “Joint Statement of the Foreign Ministers of ASEAN Member States and China on the Full and Effective Implementation of the Declaration on the Conduct of Parties in the South China Sea” and a “Joint Statement of the Foreign Ministers of ASEAN Members States on the Maintenance of Peace, Security and Stability in the Region” were adopted. This took place during the 49th ASEAN Foreign Ministers’ Meeting in Vientiane. This was followed by a meeting of senior Chinese and ASEAN officials in China, their third meeting for the year where progress was noted in three areas: 1) approval of the guidelines for a hotline for use during maritime emergencies; 2) agreement that CUES applied to the South China Sea; 3) agreement to complete a draft framework for the COC by mid-2017. During the summit meetings in Laos, ASEAN leaders also welcomed the adoption of the ASEAN-China Joint Statement on the DOC, the ASEAN-China Joint Statement on the Application of the Code of Unplanned Encounters at Sea in the South China Sea, and the Guidelines for Hotline Communications among Senior Officials of the Ministries of Foreign Affairs of ASEAN Member States and China in Response to Maritime Emergencies in the Implementation of the Declaration on Conduct of Parties in the South China Sea. The leaders’ statement expressed “serious concerns” on recent developments in the South China Sea such as land reclamation, escalation of activities, and militarization.

April 2017: ASEAN leaders overlook Arbitral Court decision

In the April summit of ASEAN chaired by the Philippines, the leaders only “took note of concerns expressed by some Leaders over recent developments in the area.” There was no mention of the Arbitral Tribunal’s Award, only a paragraph called for “full respect for legal and diplomatic processes.”

May 2017: ASEAN finishes COC framework

In May, the senior officials of ASEAN and China finally concluded the Framework of the Code of Conduct in the South China Sea in a meeting in China. 

August 6, 2017: Foreign ministers adopt COC framework

The foreign ministers adopted the framework during the ASEAN-China meeting on Aug. 6. They agreed on a three-step process to start the negotiations of an actual code - the announcement of the adoption of the framework, convening a meeting at the end of this month to discuss the modalities for the negotiations of the Code and announcement of the start of COC negotiation by the leaders of ASEAN and China in the upcoming summit in November. But China said the third step will depend on the stability in the South China Sea, “if there is no major disruption from outside parties.” The joint communiqué of the 50th ASEAN ministerial released in Manila Sunday “took note of the concerns by some ministers on the land reclamations and activities in the area which have eroded trust and confidence, increased tensions and may undermine peace, security and stability in the region.” The communique also emphasized the “importance of non-militarization and self-restraint in the conduct of all activities by claimants and all other states, including those mentioned in the DOC that could further complicate the situation and escalate tensions in the South China Sea.”