Thayer Consultancy Background Briefing:

ABN # 65 648 097 123

South China Sea Code of
Conduct Framework
Carlyle A. Thayer
April 25, 2017

[client name deleted]

We request your assessment of the following issues:
Q1. Later this week ASEAN members and China will hold talks on a Framework Code
of Conduct (COC) on the South China Sea. Before these talks, Chinese Foreign Minister
declared that ASEAN and China had reached the draft of the COC. What is your
assessment? Why has China agreed to cooperate with ASEAN? What explains the
timing China has long dragged out discussions on the COC?
ANSWER: China changed its policy last year when, after the meeting in Kunming, when
it declared that it would support moving forward on a Code of Conduct (COC)
Framework by the first half of this year. This was due in part to diplomatic pressure by
some ASEAN members. Of course, the election of Rodrigo Duterte as president of the
Philippines, and his China-friendly policies also played a big role.
There were no bilateral discussions between Manila and Beijing under the Aquino
Administration. Duterte has been to China and will return again this year. Duterte has
mouthed anti-American sentiments that must be music to Chinas ears. China is also
capitalizing on the Trump Administrations preoccupation with North Korea and its
blindness towards Southeast Asia. China has always viewed the US as an outside
power with no role to play in resolving maritime disputes in the South China Sea.
These factors account for Chinas current diplomacy.
At the moment, ASEAN and China have yet to reach final agreement on their
discussion on a Framework COC. Both sides are hoping to accomplish this before the
end of June. A final formal COC will take much longer possibly spilling over to 2018. As
long as diplomatic momentum continues China will slow its militarization and
consolidation of control over its artificial islands in the Spratly archipelago.
Q2. What is your assessment about the roles of Cambodia and Laos in these
forthcoming talks? Will these countries support or hinder ASEANs efforts to reach a
COC with China?
ANSWER: ASEAN has reached consensus on negotiating a Framework COC with China.
China fully supports this. Cambodia, which always bases its policy on what China
wants, will fall into step. As ASEAN Chair Laos was never proactive on the South China
Sea disputes. Laos played a low-key role as a reactive ASEAN Chair. Cambodia and Laos
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will play only a marginal role in these discussions. Of course, if any ASEAN member
steps out of line and is critical of Beijing, Cambodia will act as a Chinese proxy and
criticize that country.
Q3. Last month, the Philippine Presidential spokesman said that the Philippines would
hold bilateral talks with China. Does this signal a change in the Philippines policy on
the South China Sea? How will these bilateral discussions impact on ASEAN-China talks
on a Framework COC?
ANSWER: Fundamentally, all ASEAN members are agreed that maritime disputes can
only be settled by the nations directly concerned. If no third party is involved this
means bilateral discussions, like Vietnam and China have pursued in recent years. If
the dispute concerns sovereignty, this dispute can only be settled by the countries
directly concerned. UNCLOS does not touch on sovereignty issues.
Duterte first wants to improve relations with China and attract funding for
infrastructure development. He has been successful. Now Duterte wants ASEAN and
China to reach agreement on a Framework COC; this is the position the ASEAN Chair
must adopt. Dutertes support for bilateral discussions with China will be welcomed
by all other ASEAN members. China has long advocated this position and will welcome
this. Bilateral talks between China and the Philippines will only strengthen ASEANs
position because it removes a major irritant in China-ASEAN relations.
Duterte has not pressed China to implement the Award by the Arbitral Tribunal. But
this does not mean Duterte will abandon what the Philippines is entitled to under
international law. If bilateral negotiations begin Duterte will be able to use the Award
as leverage on China.
Q4. What is your assessment of the prospects for these talks? Will ASEAN be satisfied?
ANSWER: ASEAN members will accept whatever the Philippines and China agree to in
their bilateral discussions. The Arbitral Tribunal Award was directed at only two
countries, the Philippines and China, and they have a duty under international law to
fully implement it. UNCLOs provides if the two parties cannot agree they should enter
into an arrangement of a practical nature. This could take the form of cooperation
between China and the Philippines over fisheries management, for example. These
talks are likely to be protracted.
Q5. What is Vietnams role in these talks? What does Vietnam in in particular? How
can ASEAN reach a really binding COC with China?
ANSWER: At the strategic level, Vietnam wants the United States, Japan and other
countries to continue to be involved in the South China Sea to constrain if not balance
China. Vietnam would like to see these countries apply pressure to halt further
militarization of existing artificial islands and occupation of presently unoccupied
islands. Vietnam plays a proactive role in ASEAN trying to get consensus on the South
China Sea issue. Vietnam supports the full implementation of the Declaration on
Conduct of Parties in the South China Sea (DOC), reaching a Framework COC, and
ultimately a binding COC for the South China Sea. Vietnam and ASEAN can only use
diplomacy and dialogue to encourage China to accept a binding COC. ASEAN (including
Vietnam) and China long ago agreed to reach a COC on the basis of consensus so
any one country can refuse to accept the COC that is not in its national interests.
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