Professional Documents
Culture Documents
Carlyle A. Thayer
August 1,2017
We request a background scene setter on the ASEAN Regional Forum and related
meetings to be held later this week in Manila.
We request your assessment of the following issues:
Q1. The South China Sea issue seems to have taken a backseat under the Philippines'
chairmanship of ASEAN. How do you see the issue being discussed at the ARF this time
with Manila bent on setting aside the Arbitral Tribunal's ruling and talking with Beijing
about joint exploration in the sea? Vietnam, I understand, has also been intimidated
by China into withdrawing from a drilling operation.
Last year at the 23'd ARF meeting in Vientiane, the ARF statement reproduced the
standard ASEAN formulation: "several Ministers remain seriously concerned over
recent and ongoing developments and the Ministers took note of the concerns
expressed by some Ministers on the land reclamations and escalation of activities in
the South China Sea, which have eroded trust and confidence, increased tensions and
may undermine peace, security and stability in the region."
Last year the ASEAN Summit held in Manila with the Philippines as Chair reduced the
eight-paragraph statement on the South China Sea adopted in 2015 to two
paragraphs. The 2016 statement noted blandly, "we took note of concerns expressed
by some Leaders over recent developments in the area" rather than "serious
concerns" noted previously. There was no mention of the Arbitral Tribunal's Award
although paragraph seven called for the peaceful settlement of disputes "including full
respect for legal and diplomatic processes," I expect a similar watering down under
the Philippines as chair this month.
Q2. ASEAN foreign ministers are expected to endorse a framework for the Code of
Conduct negotiations agreed earlier by their senior officials" This framework has been
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ministers will
express their concern about nuclear proliferation on the Korean
peninsula and call on Pyongyang to implement UN Security Council resolutions. Some
members of ASEAN have been canvassing whether the association can play the role
of peace broker.
Q4. With fighting still going on in a pocket of Marawi in the southern Philippines, how
do you think the issue of terrorism should be approached at this year's ARF, especially
with the presence of lSlS foreign fighters?
ANSWER: The ARF got a new lease of life after the Bali bombings in lndonesia in
October 2002. This spurred increased regional coordination through a new
lntersessional Meeting on Counter Terrorism and Transnational Crime. The ARF will
add the new issue of returned lslamic State fighters to its agenda and endorse regional
initiatives, such as those recently agreed between Australia and lndonesia. The ARF
can only promote cooperation between regional law enforcement and intelligence
agencies and endorse specific activities related to training and information sharing.
The ARF does not have any standing counter-terrorism forces that can be deployed,
9. The Ministers exchanged views on maritime issues and reaffirmed the importance
of maintaining and promoting peace, security and stability, safety and freedom of
navigation in and over-flight above the South China Sea. Several Ministers remain
seriously concerned over recent and ongoing developments and the Ministers took
note of the concerns expressed by some Ministers on the land reclamations and
escalation of activities in the South China Sea, which have eroded trust and
confidence, increased tensions and may undermine peace, security and stability in the
region. The Ministers reaffirmed the need to enhance mutual trust and confidence,
exercise self-restraint in the conduct of activities and avoid actions that may further
complicate the situation and pursue peaceful resolution of disputes by parties
concerned in accordance with international law, including the 1982 United Nations
Convention on the Law of the Sea (UNCLOS). The Ministers noted the commitment of
the ASEAN Member States and China to ensure the full and effective .
L1. The Ministers condemned the recent heinous terrorist attacks in various regions
including Baghdad, Pathankot, Kabul, Dhaka, Nice, lstanbul, Brussels and Paris and the
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continued violent and brutal terrorist acts of the self-proclaimed lslamic State
(lS)/Da'esh and extended their deepest condolences to the victims and their families.
They emphasised the need to counter the increasing terrorist act'ivities and global
network as well as the threat posed by foreign terrorist fighters. The Ministers
welcomed the Fifth Review of the United Nations Global Counter-Terrorism Strategy
and took note of the United Nations Secretary-General's Plan of Action to Prevent
Violent Extremism. The Ministers called for a more coordinated and comprehensive
approach to countering terrorism and violent extremism, respect for diversity, peace
and moderation as a counter-narrative to violent extremism, including through the
promotion of religious tolerance and the Global Movement of Moderates. The
Ministers reaffirmed the importance of the full implementation of the ASEAN
Convention on Counter Terrorism, the ASEAN Comprehensive Plan of Action on
Counter Terrorism, and the relevant provisions of international law and the UN
Charter. The Ministers further resolved to work to limit the access of terrorist groups
to funding.
Suggested citation: Carlyle A. Thayer, "ASEAN RegiOnal Forum Scene Setter" Thayer
Consultoncy Background Brief , August L, 2017. All background briefs are posted on
Scribd.com (search for Thayer). To remove yourself from the mailing list type,
UNSUBSCRIBE in the Subject heading and hit the Reply key.
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 in2O02.
Thayer Consultancy Background Briefing:
ABN # 65 648 097 123
ASEAN-China Framework on
Code of Conduct
Carlyle A. Thayer
August 1,2017
Q1. ASEAN and China Foreign Ministers are endorsing this week a framework on the
Code of Conduct. May we get your assessment of this? How significant is this
framework? Will this speed up negotiations for a code of conduct?
ANSWER: The formal endorsement of the ASEAN-China draft Framework Code of
Conduct is a necessary final step before the parties can begin consultotions (not
negotiations) on a Code of Conduct.
The consultations on a COC will be protracted. First, the parties must fully implement
the 2002 Declaration on Conduct of Parties in the South China Sea (DOC). The DOC
sets out five areas for cooperation but working groups have been formed on only four
areas and not one cooperative activity has commenced. Second, consultations on the
COC must proceed on the basis of consensus and nothing can be approved unless
China consents.
The current draft Framework COC needs to resolve at least four substantive issues:
First, the currentdraft Framework on the COC does not include the geographic area
of coverage. China insists that the COC should only apply to the waters around the
Spratly islands and that Scarborough Shoal and the Paracel islands be excluded.
The second issue to be resolved concerns enforcement. ASEAN wants the COC to be
legally binding. China opposes this.
The third and related issue concerns how the COC is to be adopted. China proposes
that the COC be signed by all eleven foreign ministers. ASEAN would like to see the
COC ratified by national legislatures to make it legally binding.
Fourth, there are a number of technical issues that need to be addressed including
how to resolve differences over interpreting the COC and how to resolve actual
disputes and incidents at sea.
Q2. Philippine Foreign Secretary Alan Peter Cayetano last week hinted that he is open
to having a non-legally binding code of conduct to expedite the negotiations for the
accord. What do you think of this? How do you envision the ASEAN-China COC? Do
you think it should be legally-binding with a dispute settlement mechanism in place?
How should ASEAN and China deal with countries violating the COC?
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ANSWER: A non-legally binding COC would be a political agreement much like the
2002 DOC. lt might expedite consultations - China refuses to characterize discussions
as formal negotiations - but it would be meaningless. lt would repriesent a complete
capitulation by ASEAN states to China's whims. A non-binding COC would be a disaster
of the first order. China would keep pushing and ASEAN claimant states would be left
with no option but to back down.
The COC should be ratified by national legislatures and deposited with the United
Nations. lt should be a legally binding treaty.
As noted above, there is no dispute settlement mechanism included in the draft
Framework COC. ASEAN has suggested that the 1976 ASEAN Treaty of Amity and
Cooperation, which China has ratified, provides a basis for dispute settlement through
the ASEAN High Council. ASEAN has further proposed that a follow on regional treaty
should be adopted to clarify legal obligations and responsibilities.
How ASEAN and China should deal with violations of the COC is an open question at
the moment. The ASEAN High Council could hear complaints by one party on
transgressions by another party. The final COC needs a mechanism to determine when
countries are in dispute and a mechanism on how to resolve disputes.
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.
Thayer Consultancy Background Briefing:
ABN # 65 648 097 123
Draft ASEAN Statement on
South China Sea: Has Vietnam
Been Isolated?
Carlyle A. Thayer
August 5,2017
Here is the latest draft (August 4) of the AsEAN
Ministers'Joint communique. Vietnam
seems to be pushing for stronger language on
the south china sea but it seems that it
is now the isolated voice.
ANALYSYS: Please refer to the table below that lists each ASEAN member and the
stand they took on each ofthe four paragraphs in the South China Sea draft statement.
The table clearly shows that Vietnam is the one country that has pressed for stronger
language in underlined wording in the draft joint statement across all four paragraphs.
Malaysia comes a distant second with its support for the inclusion of military assets in
the third paragraph. The Philippines and Cambodia are clearly supporters of deleting
and watering down strong language and references that could be construed as
referring to or critical of China.
Vietnam has always been a supporter of stronger language because it views ASEAN as
one layer of insulation, however thin, against pressures from China. A strong ASEAN
statement provides Vietnam with diplomatic cover to approach outside countries like
the United States to weigh in on the South China Sea dispute.
Vietnam is pushing for stronger language now because of China's recent diplomatic
demarche to stop drilling in Block 136-03. Stronger language is also viewed as leverage.
in forthcoming consultations on a Code of Conduct with China. Since ASEAN works on
the basis of consensus Vietnam knows that even if its views are not reflected in the
joint statement other ASEAN members will have to take Vietnam's concerns into
account.
First paragraph (L90): The section that is crossed out includes new language in its
reference to previous ASEAN documents and documents between ASEAN and its
partners (read China). The vague language suggests that this is coded wording for past
statements by ASEAN with stronger language. lt is notable that Vietnam supported
language in the two sections that are highlighted (underlined wording and the wording
that has been struck out). Vietnam did not receive support. Cambodia, China's
surrogate, predictably moved to delete the offending words.
Second paragraph (191): again Vietnam is the odd country out in supporting a legally
binding Code of Conduct. This issue here is that the legal nature of the COC has yet to
be negotiated. Leaving Cambodia aside, it is significant that Malaysia and Singapore
weighed in presumably to keep this option open during formal negotiation. The
flexibility of Brunei, Myanmar, lndonesia and Thailand appears to back up this point -
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the legal nature of the COC is still on the table as far as ASEAN members are
concerned.
Third paragraph (192): This expression brings back "serious concerns expressed by
some Ministers" that was watered down once the Philippines became ASEAN Chair.
The references proposed by Vietnam (extended construction) and Malaysia (military
assets) is new and reflects their concerns over Chinese activities this year.
The expression "non-claimant nations" is new. When coupled with military assets this
could referto Japan and the United States or even lndonesia which regards itself as a
non-claimant. A Philippines official recently claimed that China wasn't the only
country to build artificial islands. Once again Cambodia, which has no direct material
interests in the dispute, weighs in to delete wording that could be viewed as critical of
China.
Fourth paragraph (193): Over a year ago ASEAN ministers took the phrase "full respect
for legal and diplomatic processes" out of the South China Sea section of their joint
statement and elevated it to the first section in order to underscore the importance
of the international arbitration process. his year Vietnam has tried to stiffen the joint
statement by reinserting this expression in the Sbuth China Sea section'
As noted, this is also included in the ASEAN Community Buiglding section. "Partners in
crime," Cambodia and the Philippines have once again joined up to delete language
they perceive might upset China.
ln this paragraph, we see a Thai initiative to add "sustainable development" as one of
the future goals. Sustainable development may be viewed as controversial because it
touches on disputed resources - fish stock and hydrocarbons * and could imply joint
development as well delimitation of maritime zones from rocks (that is accepting the
findings of the ArbitralTribunal that there are no islands in the Spratlys, and that some
occupied features are not even rocks but low tide elevations). This may account for
why seven ASEAN members moved to delete this wording. lt is common "ASEAN
Speak" to refer to the South China Sea as a sea of peace, cooperation 'and
development. Laos deserves credit for suggesting this reference be moved to another
section,
What is at stake? ln past years Vietnam was able to conduct its foreign policy by
balancing its relations with the major powers and count on the Philippines to take the
point on the South China Sea dispute. Now, the strategic uncertainty surrounding the
intentions of the Trump Administration, the renewed pressure if not threats from
China, and Duterte's pivot towards China have left Vietnam more exposed than it has
been. Getting support from ASEAN for stronger wording on the South China sea would
strengthen - if only marginally - Vietnam's diplomatic hand in dealing with China.
Without such support Vietnam will be even more vulnerable to pressures from Beijing.
It is notable that Vietnam's defense minister is scheduled to have a face-to-face
meeting with U.S. Defense Secretary James Mattis sometime between 7-10 August.
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Laos Move to
another
section
Suggested citation: Carlyle A. Thayer, "Draft ASEAN Statement on South China Sea:
Has Vietnam Been lsolated?" Thayer Consultoncy Background Brief , August 5, 20L7.
All background briefs are posted on Scribd.com (search for Thayer). To remove
yourself from the mailing list type, UNSUBSCRIBE in the Subject heading and hit the
Reply key.
Thayer Consultancy Background Briefing:
ABN # 65 648 097 123
Framework on a Code of
Conduct - Victory for China?
Carlyle A. Thayer
August 6,2017
ASEAN and China met in Manila today and agreed on a "framework" for discussing
the Code of Conduct in the South China Sea. What is your assessment? lis this a
victory of any kind or an exercise in nothingness... or something else?
ANSWER: China and ASEAN have approved a brief two-page Framework for the Code
of Conduct. Now they will begin formal consultations (not negotiations) on the Code
of Conduct itself. There are at least four major areas left unaddressed: the geographic
scope (China wants to exclude the Paracels and Scarborough Shoal), who should
approve the final Code of Conduct (China wants the foreign minister to sign on, ASEAN
wants national legislatures to ratify the COC and deposit it with the UN- at least some
ASEAN members support this), how to resolve differences in interpretation of the COC
and what kind of dispute settlement and enforcements mechanisms should be
specified to deal with actual disputes.
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.