The Asia-Pacific Journal | Japan Focus Volume 10 | Issue 34 | Number 4 | Article ID 3813 | Aug 19, 2012

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ASEAN’S Code of Conduct in the South China Sea: A LitmusTest for Community-Building?　　南シナ海におけるアセアンの行動規範−−共同体建設のためのリトマス試験？

Carlyle A. Thayer

In October 2003, the summit meeting of theheads of government of the Association ofSoutheast Asian Nations (ASEAN) issued amajor statement that declared, “[a]n ASEANCommunity shall be established comprisingthree pillars, namely political and securitycooperation, economic cooperation, and socio-cultural cooperation…”1 Each successiveASEAN Summit and Annual MinisterialMeeting (AMM) of foreign ministers hasadvanced this goal. It was expected that the45th AMM, held under the motto “ASEAN: OneCommunity, One Destiny,” would follow itspredecessors by adopting further measures tomake the ASEAN Community a reality. Asevents transpired, differences among ASEANstates over how to manage territorial disputesin the South China Sea emerged as a litmustest of their ability to achieve an ASEANPolitical-Security Community by 2015.

Leaders at the 20th ASEAN Summit inPhnom Penh, April 3, 2012

This article analyses internal ASEANdifferences on the South China Sea by offeringnew insights provided by three documents:Philippine Working Draft, Philippines DraftCode of Conduct; ASEAN’s Proposed Elementsof a Regional Code of Conduct in the SouthChina Sea (COC) between ASEAN MemberStates and the People’s Republic of China; andSummary of Cambodia Chair’s intervention atthe AMM Retreat, 9 July 2012.2

This article is divided into five parts. The firstpart briefly presents the historical backgroundto the evolution of ASEAN’s policy on a Code ofConduct in the South China Sea. It thensharpens the discussion by comparing thePhilippine Working Draft, Philippines DraftCode of Conduct drawn up in early 2012 withASEAN’s Proposed Elements of a RegionalCode of Conduct in the South China Seaapproved by the 45th AMM in July. Part twoexamines internal discussions by ASEANforeign ministers at their 45th AMM Retreat.These discussions reveal the issues thatprevented the foreign ministers from reachingconsensus on the wording of a single paragraphon the South China Sea and the unprecedenteddecision by the ASEAN Chair to withholdissuing the customary joint communiqué. Partthree details the public recriminations thatfollowed, while part four discusses Indonesia’sshuttle diplomacy to restore ASEAN unity. Partfive offers an evaluation of the implications ofthese developments for ASEAN unity, theprospects for an ASEAN-China COC, and anASEAN Political-Security Community.

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ASEAN’s Code of Conduct

The genesis of ASEAN’s 2012 draft COC maybe traced back to 1995 when China occupiedMischief Reef, a maritime feature claimed bythe Philippines. The Mischief Reef incidentmarked a turning point. ASEAN foreignministers issued a statement expressing their“serious concern” and urged the concernedparties “to refrain from taking actions that de-stabilize the situation.”3 The Philippines, as theaggrieved party, sought the backing from itsfellow ASEAN members for a Code of Conductin the South China Sea that would constrainChina from further encroachments onPhilippines sovereignty. In late 1999 ASEANmembers finally reached agreement on a COC.4

In March 2000, ASEAN and China exchangedtheir respective drafts and agreed toconsolidate them into one document.5 Fourmajor areas of disagreement were identified:the geographic scope, restrictions onconstruction on occupied and unoccupiedfeatures, military activities in waters adjacentto the Spratly islands, and whether or notfishermen found in disputed waters could bedetained and arrested. A formal ASEAN-ChinaCOC proved a bridge too far. In November2002, ASEAN member states and China signeda non-binding political statement known as theDeclaration on Conduct of Parties in the SouthChina Sea (DOC). This document set out fourtrust and confidence building measures andfive voluntary cooperative activities. Theparties to the DOC reaffirmed “that theadoption of a code of conduct in the SouthChina Sea would further promote peace andstability in the region and agree to work, on thebasis of consensus, towards the eventualattainment of this objective.”6

The DOC was stillborn. It took a further twenty-five months before senior officials reachedagreement on the terms of reference for theASEAN-China Joint Working Group (JWC) toimplement the DOC.7 In August 2005, ASEAN

tabled draft Guidelines to Implement the DOCat the first meeting of the JWC. Point two calledfor ASEAN consultations prior to meeting withChina.8 China objected and repeated its long-held position that the relevant parties shouldresolve sovereignty and jurisdictional disputesbilaterally. This proved such a sticking pointthat another six years of intermittentdiscussions and twenty-one successive draftswere exchanged before final agreement wasreached.

In July 2011, the Guidelines to Implement theDOC were adopted after ASEAN dropped itsinsistence on prior consultation and agreedinstead to promote dialogue and consultationamong the parties. A new point was added tothe Guidelines specifying that activities andprojects carried out under the DOC should bereported to the ASEAN-China MinisterialMeeting.9 All the other points in the 2011Guidelines remained unchanged from theoriginal ASEAN draft tabled in 2005.

ASEAN and Chinese senior o f f ic ia lscommenced discussions on the implementationof the Guidelines. At a meeting held in Beijingfrom January 13-15, 2012, agreement wasreached to set up four expert committees onmaritime scientific research, environmentalprotect ion , search and rescue , andtransnational crime. These committees werederived from the five cooperative activitiesmentioned in the 2002 DOC. Significantly noexpert committee on safety of navigation andcommunication at sea was established due toits contentious nature.

The agreement on DOC Guidelines led to therevival of the long-standing proposal by thePhilippines for a COC that was included in the2002 DOC. ASEAN senior officials begandrafting the COC with the intention of reachinga common ASEAN position before presenting itto China for discussion. China initially took theposition that the implementation of the DOCGuidelines should be given priority over the

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COC. China stated it would discuss the COCwith ASEAN at an “appropriate timing” orwhen “appropriate conditions” were met.10

In January 2012, the Philippines circulated aninformal working draft simply titled, PhilippinesDraft Code of Conduct. The document waseight pages in length and comprised tenarticles. In line with official Philippine foreignpolicy promoting the South China Sea as aZone of Peace, Freedom, Friendship andCooperation (ZOPFF/C), the draft COCproposed a Joint Cooperation Area in the SouthChina Sea (Article III), a Joint PermanentWorking Committee to implement the ZOPFF/C(Article IV), the Application of Part IX of the1982 United Nations Convention on Law of theSea in the South China Sea (Article V),11 andDispute Settlement Mechanisms (Article VI).The remaining articles contained standardprovisions such as principles (Article I),objectives (Article II), reservations (Article VII),signature and ratification (Article VIII), entryinto force (Article IX) and review andamendments to the code (Article X). Indiscussions held by ASEAN senior officialsduring the first quarter of 2012 it becameapparent that ASEAN members were dividedon Articles III-VI in the Philippines draft. SomeASEAN members also shared reservationsabout being too prescriptive concerningdispute settlement mechanisms.12

It was at this point that China changed tackand sought a seat at the ASEAN discussions.The timing of China’s involvement with ASEANin drafting a COC quickly became a contentiousissue within ASEAN. These tensions surfaced atthe 20th ASEAN Summit held in Phnom Penhfrom April 3-4. Cambodia, the ASEAN Chair,pushed for China’s inclusion in ASEANdiscussions. The Philippines and Vietnamobjected strongly and a compromise wasreached. ASEAN would proceed on its own todraft a COC, while communication with Chinawould take place through the ASEAN Chair atthe same time.13

The ASEAN Senior Officials Meeting (SOM)Working Group on the COC concluded itsdiscussions on June 13, 2012 at its seventhmeeting. According to an official statement,“The meeting agreed to submit the draftASEAN proposed key elements of the regionalCode of Conduct in the South China Sea to theASEAN SOM for consideration.”14 The ASEANSOM met in Phnom Penh from July 6-7 andforwarded the agreed draft to the ASEANforeign ministers for deliberation at their 45th

AMM on July 9. At the end of the AMM formaldiscussions Kao Kim Hourn, Secretary of Statein the Cambodian Ministry of Foreign Affairs,told reporters that the ASEAN foreign ministershad adopted the “key elements” of the COC and“agreed to have the ASEAN senior officialsmeet with the senior official from China todiscuss the (code of conduct) from now on.”15

According to the document ASEAN’s ProposedElements of a Regional Code of Conduct in theSouth China Sea, the original PhilippineWorking Draft was heavily pruned. Articles III-VI were dropped entirely. The ASEAN “keyelements” were reduced to a preamble and twoarticles. A comparison of the Philippine draftpreamble with the agreed ASEAN preamblereveals that two items contained in the formerwere dropped. The first was a reference to “theprinciples and norms of international lawapplicable to maritime space, in particular theprinciples on the peaceful uses and cooperativemanagement of the oceans.” The second andmore sensitive reference that was deletedreferred to “the need to preserve the regionfrom any form of increased militarization andintimidation.”

Both preambles began by referencing the 1997Joint Statement of the meeting of heads ofgovernment/state of ASEAN members andChina. Next, the Philippines inclusion of the2003 declaration of the ASEAN-China StrategicPartnership for Peace and Prosperity wasreplaced with a reference to the more recent2006 Joint Declaration on Strategic Partnership

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for Peace and Towards an Enhanced ASEAN-China Strategic Partnership. Both preamblesincluded a reference to the 2002 DOC and itscommitment to develop a COC. Both preamblesalso referred to protection of the environmentand biodiversity. The ASEAN draft altered theformulation in the Philippine draft from“advance a lasting and durable solution ofdisputes” to read “comprehensive and durablesolution of disputes.”16 The Philippines originalproposal for a “zone of peace, freedom,friendship and cooperation” was modified toread “an area of peace, stability, friendship andcooperation.”

Article I of the ASEAN draft COC contained itsoperative provisions and called on the partiesto “respect and adhere to the United NationsCharter, 1982 UNCLOS, Treaty of Amity andCooperation in Southeast Asia, DOC and theFive Principles of Peaceful Co-existence.However, five of the principles contained in thePhilippine draft were deleted in their entirety:respect for freedom of navigation and overflight; the need to define, clarify and segregatedisputed areas from the non-disputed areas;ful l resolut ion of the terr i tor ia l andjurisdictional disputes; refrain fromundertaking activities that may disrupt thepeace and endanger the environment; andbuild trust and confidence on the basis ofequality and mutual respect.

The ASEAN draft contained four principles: (1)to “develop modalities and arrangements forthe promotion of settlement by peaceful meansof disputes and prevent their escalation…;” (2)to respect the provisions of and take actionsconsistent with the COC; (3) to encourageother countries to respect the purposes andprinciples contained in the COC; and (4) toestablish an effective mechanism to monitorthe implementation of the COC.

Article II of the ASEAN draft enumerated eightobligations: a ministerial level mechanism tomonitor the implementation of the COC;

prohibition on reservations to the COC;provisions of entry into force; mechanism forsettling disputes; amendment of the COC;provisions for other countries to respect theCOC; indefinite duration of the COC; andregistration of the COC with the ASEANSecretary General and Secretariat of theUnited Nations

Article III(4) required signatories to “establisha mechanism for settling disputes relating tothe interpretation and application of the Codeof Conduct.” The ASEAN draft, followingdeletion of any mention of the joint cooperationarea, also dropped reference to a disputesettlement mechanism in the joint cooperationarea.

Two dispute settlement mechanisms wereincluded that closely reflected the wording inthe Philippine Working Draft on disputesarising from a breach or violation of the COC.17

The first mechanism is the dispute settlementmechanism included in the ASEAN Treaty ofAmity and Cooperation in Southeast Asia(TAC).18 The TAC provides for a ministerial-level ASEAN High Council and empowers it torecommend to parties in dispute, subject totheir prior agreement, such measures as goodoffices, mediation, inquiry or conciliation. TheHigh Council also is given the authority to“recommend appropriate measures for theprevention of a deterioration of the dispute…”The People’s Republic of China acceded to theTAC in 2003 and undertook in writing“faithfully to perform and carry out all thestipulations therein contained.”19

In the event that parties are unable to resolvetheir dispute within the ASEAN framework, theASEAN COC sets out a second mechanism: thedisputants “may resort to dispute settlementmechanism provided under international law,including UNCLOS.” This could include takingtheir case to an international court foradjudication. UNCLOS, however, does notcontain any provisions for the settlement of

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sovereignty disputes over islands and rocks. Itdoes provide for an International Tribunal forthe Law of the Sea (ITLOS) to adjudicatedisputes over maritime jurisdiction.20 Underinternational law “the land dominates the sea”and before disputants can take their case toITLOS they would first have to determinesovereignty over disputed islands and rocks onwhich their maritime claims are based.

At the 45 th AMM Retreat, the Cambodianforeign minister reported that, “ASEAN-Chinamet twice recently to discuss informally thedrafting of [the] COC” and that “Cambodia willhost another formal ASEAN China SOM on theCOC in the near future.”21 An informal senior-level working meeting was held on July 8 andJapanese media sources reported “ASEAN andChina had agreed to start talks on a legally-binding maritime code of conduct to managethe disputes.”22

A day later the Cambodian Foreign Ministertold his ASEAN counterparts that Vice ForeignMinister Fu Ying stated that China was willingto commence talks on the COC in September.23

Also on July 9, Foreign Minister Yang Jiechi metwith Secretary of State Hillary Clinton to discusthe South China Sea. After these talks, U.S.officials revealed that “foreign minister Yanggave Secretary Clinton ‘a careful indication’that Beijing is willing to join a dialogue on thecode as soon as September, ahead ofNovember’s ASEAN summit.”24 On July 10,ASEAN Secretary General Surin Pitsuwan alsoconfirmed that the first formal meetingbetween ASEAN and Chinese senior officials onthe COC would take place in Phnom Penh inSeptember.25

China’s commitment to meet in September todiscuss the COC may be in doubt. According toJapanese sources, “on July 11, China’s attitudesuddenly shifted and it refused to begintalks.”26 Ian Storey argues that Vice ForeignMinister Fu Ying’s agreement with ASEAN tobegin talks on a COC in September “was

overruled by Foreign Minister Yang… Atpresent there is no timetable to discuss a CoCthough both sides will meet in September orOctober to ta lk about implement ingcooperative projects in areas outlined in theDoC.”27

The document, ASEAN’s Proposed Elements ofa Regional Code of Conduct in the South ChinaSea (COC) between ASEAN Member States andthe People’s Republic of China, has not beenofficially released and remains an internal draftASEAN document. At the 45th AMM RetreatMarty Natalegawa promised that “Indonesiawill circulate a non paper [on] possible andadditional elements of [the] COC. It is meant tobe more prescriptive and operational.” In otherwords, ASEAN members will have to meet toapprove any further additions to their draftCOC before meeting with Chinese seniorofficials.

Why Was There No Joint Communiqué?

Cambodia, as the ASEAN Chair for 2012,hosted the 45th AMM and related meetings inPhnom Penh from July 8-13.28 In his openingaddress Prime Minister Hun Sen stated that“realising the ASEAN Community by 2015 isthe top priority for ASEAN.”29 With respect tothe ASEAN Political-Security Community, HunSen declared, “we should give emphasis to theimplementation of the DOC [Declaration onConduct of Parties in the South China Sea],including the eventual conclusion of ‘Code ofConduct (COC) in the South China Sea’ emphasis in

original].”

The AMM has a busy agenda that extends wellbeyond South China Sea issues. In 2011, forexample, the joint communiqué issued at theend of the 44th AMM listed 120 items and ran totwenty -n ine pages . At the 45 t h AMMCambodia’s Foreign Minister, Hor Namhong,assigned responsibility for drafting the jointcommuniqué summariz ing the AMMdeliberations to a working party of four foreignministers: Marty Natalegawa (Indonesia),

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Anifah Aman (Malaysia), Albert del Rosario(Philippines) and Pham Binh Minh (Vietnam).31

Their 132-paragraph draft summarized thewide range of issues taken up by the AMMincluding the terms of reference for the ASEANInstitute of Peace and Reconciliation, theASEAN Human Rights Declaration and thenomination of Mr. Le Luong Minh as the nextSecretary General. The draft communiqué alsosummarized discussions on the South ChinaSea including the stand off at ScarboroughShoal between China and the Philippines andVietnam’s concerns about the award of oilexploration leases by the China NationalOffshore Oil Company within Vietnam’sExclusive Economic Zone (EEZ).

The wording of one paragraph in the SouthChina Sea section of the joint communiquébecame such a sticking point betweenCambodia and the drafters of the jointcommuniqué that no communiqué was issued.This was unprecedented. Since ASEAN wasfounded in 1967 all forty-four previous AMMshad issued joint communiqués. Indeed, a mediaadvisory announcing the 45th AMM, released byCambodia on July 6, 2002, concluded, “[a] JointCommuniqué will be adopted at the end of theMeeting.”32

Cambodia argues that the failure of the AMMto adopt a joint communiqué rests squarelywith the Philippines and Vietnam and theirinsistence on including a reference toScarborough Shoal and EEZs in the final text.According to Cambodia, the actions by thePhilippines and Vietnam prevented a consensusfrom being reached and Cambodia had norecourse but to withhold the joint communiqué.The leaked record of the foreign ministers’retreat held after the AMM reveals a differentstory.

Discussion on the South China Sea took placein the plenary session under the agenda item“preparation for the upcoming ministerialmeetings.” All ten foreign ministers spoke in

turn with Cambodia speaking last. ThePhilippines opened the discussion. ForeignSecretary del Rosario stated that ASEANshould adopt a rules-based approach inresolving maritime disputes and territorialclaims and adhere to international law toensure marit ime safety and marit imecooperation mechanisms. He noted that underthe DOC the signatories were committed topromote a peaceful, friendly and harmoniousenvironment in the South China Sea. Heargued that recent events involved repeatedintrusions into Scarborough Shoal, violating theprinciples of the DOC and universallyrecognized principles of international law,including the United Nations Convention onLaw of the Sea (UNCLOS).

China’s territorial waters claims in theSouth China Sea

Del Rosario then provided examples of Chinese"expansion and aggression" since the 1990s,including its occupation of Mischief Reef, andnumerous intrusions in the Philippines’ EEZ allbefore the confrontation at Scarborough Shoal.China’s expansion was premised on ownershipof the whole of the South China Sea, he argued.China employed overwhelming force thuspreventing "the Philippines from enforcing itslaws and forcing the Philippines to retreat fromits own EEZ."

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Del Rosario stated that the Philippinesresponded to Chinese actions by exercisingpatience and restraint under the terms of theDOC. The Philippines entered into negotiationsto peacefully resolve the situation atScarborough Shoal. But China acted in badfaith when it failed to honour its commitment towithdraw its vessels.33 Del Rosario argued thatChina’s actions challenged ASEAN centrality,leadership and solidarity. The Philippines, asthe aggrieved party and one of the foundingmembers of ASEAN, failed to understand thelack of concern by some other members andtheir “seeming silence” on their commitment tothe principles of the DOC, he concluded. DelRosario then asked rhetorically, "what wouldbe the real value of the COC if we could notuphold the DOC; in Scarborough Shoal theDOC is violated?” He stated that it was“important that ASEAN [make a] collectivecommitment to uphold the DOC [and this] bereflected in the joint communiqué of the AMM.”

Del Rosario then quoted the remarks by PrimeMinister Hun Sen at the opening of the AMM:“ASEAN should further demonstrate its abilityand role as a driving force for the promotion ofdialogue and cooperation on the political andsecurity issues for the cause of peace, stabilityand prosperity in the region.” Del Rosarioasserted, “[t]o operationalize this principle [itis] necessary for the joint communiqué toacknowledge the problem rather than ignore[it]. We strongly recommend the [inclusion] ofScarborough Shoal, EEZ and continental shelfin the joint communiqué draft. [There must be]concerted action to address the threat to peaceand stability in he region.”

Del Rosario thanked ASEAN member statesthat supported the ASEAN Foreign Ministers’Statement on the Situation in ScarboroughShoal,34 and in particular he expressed greatappreciation for the ASEAN founding fathers.With the creation of the ASEAN Community in2015, ASEAN members would be “moreconscious of our role to ensure peace and

security.” Finally, Del Rosario concluded hisremarks by quoting from the German anti-Nazitheologian, Martin Neimöller:

F i r s t t h e y c a m e f o r t h ecommunists, and I didn't speak outbecause I wasn't a communist.

Then they came for the tradeunionists, and I didn't speak outbecause I wasn't a trade unionist.

Then they came for the Jews, ?andI didn't speak out because I wasn'ta Jew.

Then they came for me, and therewas no one left to speak out forme.

The Thai Foreign Minister SurapongTovichakchaikul spoke next. He observed thatthe South China Sea had attracted a lot ofattention. Surapong stated that afterdiscussions with Chinese officials he concludedthat they did not want this issue to affect theexcellent relations between ASEAN and China.“What is important is for all parties concernedto scale down, calm things down,” he said.

Surapong asserted that, “the issue of territorialclaims will have to be resolved between theclaimant states through negotiation. But wehave to recognize the broader implications.Apart from that, there is room for greaterdialogue between both sides. Rather than beingseen as source of conflict, the South China Seashould be seen [as an opportunity] forcooperation. [ASEAN and China] should buildtrust and [a] win-win situation.” Surapongnoted that as the ASEAN Dialogue Coordinatorfor China (2012-15), “Thailand will try its besttowards this end. We will push ahead withconcrete implementation of the DOC, whileensuring the COC drafting process that isinclusive and comfortable for all sides. We must

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get it right from the start.”

Surapong concluded, “Last and mostimportant: ASEAN unity; the whole world iswatching ASEAN with high expectations; majorpowers want to be part of this fast growingregion; we must ensure that this competition isa healthy one.” ASEAN should have a “positiveinfluence on regional and international issues;ASEAN need[s] to speak more with one voice.O u r c o l l e c t i v e v o i c e d o e s m a t t e rinternationally. Bali Concord II: [ASEAN] unitywould enhance credibility and [its] centrality in[the] regional architecture.”

Pham Binh Minh, Vietnam’s Foreign Ministerspoke next. He began by noting, “[o]ver recentmonths the situation has [been] aggravated dueto [a] series of Chin[ese] moves to impose their9 dash claim. Apart from Scarborough Shoal,China announced the establishment of SanshaCity [Hainan, to administer an area] whichcovers almost all the South China Sea… [TheChina National] Offshore [Oil] Company invitedbidding for nine oil and gas blocks [lying]within Vietnam’s EEZ and continental shelfwith several points only sixteen miles offVietnam’s coast. [These are] serious violationsof Vietnam's sovereignty and jurisdiction overits EEZ and continental shelf [under] UNCLOS.[China’s actions] go against the spirit of theDOC, create a serious concern for themaintenance of peace and stability, bring[ing]about l ong te rm consequences andimplications.”

Binh noted, “we have discussed the SouthChina Sea many times [and] agree thatterritorial disputes should be solved by theparties [directly] involved. But this issue has amuch broader implication for maritimesecurity, peace, stability and security in theregion. [It is] important for ASEAN to show [a]central role in regional peace and security[and] promote dialogue and cooperation.[ASEAN should] speak with one voice, maintainunity… with agreed common points.”

Foreign Minister Binh also quoted approvinglyfrom Prime Minister Hun Sen’s remarks at theopening of the 45th AMM on ASEAN’s role asthe “driving force for the promotion of dialogueand cooperation” in the region and Hun Sen’semphasis on the implementation of the DOC,including the eventual conclusion of a Code ofConduct. Binh then argued “that the jointcommuniqué should reaffirm further theimportance of universally recognizedprinciple[s] of international law, includingrespect of territorial integrity, sovereignty andsovereign rights and jurisdiction of coastalstates in [their] EEZ and continental shelf asstipulated in UNCLOS.” Binh noted that theincidents that took place earlier in the yearoccurred within the EEZs of ASEAN memberstates. Binh added that “all disputes should besettled through peaceful means throughdialogue in accordance with international law,[including] UNCLOS and [the] DOC.”

Binh concluded by noting that the ASEANSenior Officials’ Meeting had completed theASEAN paper on key elements of the COC. Hereiterated the COC was an “important legaldocument [that] contributed to peace, maritimesecurity and safety in the South China Sea;ensuring that disputes will be settled bypeaceful means. Based on [the] ASEAN paper,ASEAN should decide to initiate consultationswith China on the COC through existingmechanisms, namely the ASEAN-China SOM onthe DOC as it is quite appropriate.” Binh endedhis remarks by re-emphasizing “that duringconsultations ASEAN should maintain closecoordination, unity and speak with one voice,based on the agreed paper.”

Indonesia’s Foreign Minister spoke next andobserved that developments in the South ChinaSea had been discussed in the past, wouldlikely be discussed in the future, and wereunlikely to go away. Marty stated that, “wemust have [an] ASEAN outlook… on the matter.It is self-evident whenever ASEAN speaks withone voice we are able to maintain our centrality

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[and] ensure that we deliver results.” He gaveas an example ASEAN’s contribution todeveloping the Guidelines to Implement theDOC and the work of the ASEAN SOM inidentifying the key elements of the COC. Martyfurther noted that while the diplomatic processof implementing the DOC was underway, “thesituation on the ground at sea is showing signsof concern for all of us. We have been followingwhat has been transpir ing. Al l thosedevelopments reinforce the need to get theCOC concluded as soon as possible.” If there isno progress on the COC “the situation [will]become more destabilizing. [This is] not in ourcommon interest.”

Marty further noted that ASEAN’s proposedkey elements on the COC were “well craftedand well thought through.” He askedrhetorically to what extent would the COCguide ASEAN when it faced the situation withChina over Scarborough Shoal? Martyconcluded: “We want to be sure that the COC isoperational in nature, and not simply repeatstatements and principles that are available inthe DOC. [The] COC must be prescriptive,[provide] rule[s] to avoid incidents in the SouthChina Sea, and provide [the] means wherebythe conduct of countries can be betterregulated…”

Malaysia’s Foreign Minister Anifah Aman spokeon two issues, the DOC and the COC. Withrespect to the former he noted, “ASEAN andChina should continue close consultation andcoordination through existing mechanisms [to]fully implement [the] DOC.” He proposed thatASEAN “should consider fully utilizing theASEAN-China Maritime Cooperation Fund35

[and] look[ed] forward to seeing the details ofthe fund from China.”

With respect to the COC, Anifah Aman notedthat ASEAN had concluded a draft of the keyelements of the COC. He thanked Cambodia forconvening informal consultations with China onthis draft. This would contribute to “build[ing]

mutual trust and confidence towards peace ands t a b i l i t y . A s w e e m b a r k o n [ t h e ]intergovernmental process on [the] COC[ASEAN and China] should first discuss the[key] elements before discussing the text of theCOC [because it was] more practical to do sobefore the actual drafting begins.”

Anifah Aman then turned to a proposal byChina, presented to the ASEAN Summit earlierin the year by Cambodia as ASEAN Chair, toestablish an Eminent Persons and ExpertWorking Group. “We should not prevent [theASEAN-China] SOM from seeking inputs fromexperts as the need arise[s] on certaintechnical and legal matters.”36 Malaysia’sForeign Minister then argued that ASEANshould reiterate its position that the “COCaim[s] to create [a] rules based framework; itshould not serve as an instrument to resolveterritorial disputes. Existing disputes should beresolved between [the] parties concernedbased on existing mechanism[s], includingUNCLOS.”

Next Anifah Aman focused on the proposedparagraph on the South China Sea in the draftjoint communiqué. He agreed with Indonesia:"We must talk with a single voice; ASEAN mustshow [its] united voice; [otherwise] ourcredibility will be undermined. We must referto the situation in the South China Sea,particularly any acts that contravene theinternational law on EEZ and continentalshelves. It is totally unacceptable that we can'thave it in the joint communiqué."

Brunei’s Foreign Minister, Prince MohamedBolkiah, spoke briefly. He noted with approvalASEAN’s engagement with China on the COS.He then indicated that the proposed keyelements in the ASEAN draft COC wereacceptable. As for the joint communiqué,Brunei would be “guided by your [ASEANChair] decision, [Brunei] can support thestatement.” It was important for ASEAN andChina to have “mutual trust and confidence.”

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Thongloun Sisoulith, the Laotian ForeignMinister followed Brunei. He noted that therewas no doubt the South China Sea was animportant issue. “All efforts,” he argued,“should be made in order to maintain andpromote peace and stability in this part of theworld.” He was pleased that “ASEAN and Chinahave been engaging in dialogue to contribute tofurther confidence building and mutual trust.The 5 th ASEAN-China SOM on [the] DOCagreed on various activities to implement theDOC including the convening of the jointworkshop.3 7 Laos fully supports theseactivities.”

The Lao Foreign Minister noted that workingtoward the eventual adoption of the COC waspart of the implementation of the DOC.Thongloun said he was pleased to take note ofthe proposed key elements in ASEAN’s draftCOC and these should be for internal ASEANreference. The Lao Foreign Minister fullyconcurred “with the proposal that it is time tostart the consultation with China on the COCand the upcoming Post-Ministerial Conferenceshould task the ASEAN-China SOM to starttalks. The convening of [the] informal ASEAN-China SOM on [the] COC demonstrated thereadiness of ASEAN and China to work towardsthe eventual adoption of the COC.” Heconcluded by noting that “[t]he implementationof the DOC has gained good impetus [and] weshould maintain and further strengthen it andtherefore contribute to making the South ChinaSea the sea of peace, cooperation andpartnership and prosperity.”

Myanmar's Foreign Minister Wunna MaungLwin spoke briefly on the South China Sea. Hereiterated his country’s desire that territorialdisputes be settled peacefully through dialogueand engagement. He noted the importance ofthe DOC and its aim to build confidence amongthe parties and to settle disputes by peacefulmeans. Myanmar ful ly supported theGuidelines to Implement the DOC andwelcomed the proposal by ASEAN and China to

undertake cooperative projects in the SouthChina Sea.

Maung Lwin concluded that Myanmar would“[c]ontinue to support the full and effectiveimplementation of the COC, and support allefforts that ensure [the] peaceful resolution ofdisputes.” He also noted ASEAN’s formalengagement with China on the COC and wished“to emphasize that we [ASEAN] have gainedpositive achievements with China and shouldkeep the momentum of the achievements.”

Foreign Minister K. Shanmugam opened hisremarks by noting that Singapore was not aclaimant state and that “specific claims have tobe resolved among [the] parties concerned.”Singapore, however, had an interest in seeingthat the South China Sea “must be shared byall states, claimant and non claimant,” and itwas in the common interest to the maintainpeace and stability in the region.

Shanmugam asserted that “freedom ofnavigation [is] very important to all of us.Freedom of navigation can not be respected ifthe rule of law is not observed.” He noted that"recent developments were of special concern"because they “invoke novel interpretations ofinternational law that could undermine theentire UNCLOS regime” and create uncertaintyover the future of UNCLOS.

Shanmugam said that Singapore welcomed“the internal agreement of ASEAN on possibleelements of [the] COC” and suggestedempowering the SOM to begin discussions withChina. These discussions should proceed inparallel with the implementation of the DOC.He also noted that negotiations on the COCwould not be easy, but it was important thatASEAN begin a dia logue with China.Shanmugam concluded by asserting, "it isimportant that ASEAN has a clear expression ofour concerns on the South China Sea in thejoint communiqué,” and he shared the pointsmade by previous speakers. It would be“damaging to us if we don't say anything. If

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ASEAN is not united, our negotiations withChina will be more difficult and protracted.”

Cambodia’s Foreign Minister Hor Namhongrounded off the discussion on the South ChinaSea by bluntly declaring, “[t]here is noconsensus, [we should] bracket the entireparagraphs 14-17 for our decision. The mostdifficult is paragraph 16. It is a complexproblem.”38

According to the Summary of the CambodiaChair’s intervention at the AMM Retreat, HorNamhong made the following points:

On Scarborough Shoal, we allknow it is situated in the SouthChina Sea, and we are talking hereabout the South China Sea. So whyshould we specify the ScarboroughShoal precisely in the South ChinaSea. Up to now, we all know thedisputes among the concernedparties [are] in Spratlys andParacels, but we never mentionthese name[s] in our talks withChina. We always mention only theSouth China Sea.

On the inclusion of the wording onEEZ and continental shelf, webelieve that every one is perfectlyaware that the 1982 UNCLOS haveprecisely defined the EEZ andcontinental shelf, and other issuesrelated to the sea. Why should werepeat again?

In case we [do] not find a way out,Cambodia as Chair has no morerecourse to deal with this issue. Sothe problem we are facing now iseither we have compromise text,[that will] not satisf[y] everyone. Ifwe cannot agree on [the] text,there should be no text at all. Forthe Joint Communiqué, countries

should not try to impose [their]national position, but the commonview in spirit of compromise.

ASEAN-China met twice recentlyto discuss informally the draftingof COC. Cambodia [is] to hostformal SOM on COC in near future.All the meetings are steps forwardto de-escalate tension… in theSouth China Sea. We should nottake position that may lead increating or escalating tension inthe SCS. What I propose now is inline with what my Prime Ministerhas proposed, that we have towork for peace, security andstability in the region.

The remarks by Cambodia as ASEAN Chairprovoked an interchange with the foreignministers of Indonesia, Malaysia, Vietnam, andthe Philippines. Marty Natalegawa took thefloor first and suggested it would be better ifthe foreign ministers could address paragraph16 now so they could conclude the AMMRetreat. Malaysia immediately endorsedIndonesia’s proposal. Hor Namhong respondedby stating that Cambodia was not “talkingagainst anybody or for anybody. We want tomove forward the COC to de-escalate thetension. If we put strong wording in the jointcommuniqué it is not preferable for thesolution.”

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Marty Natalegawa (left) and HorNamhong

Malaysia’s Anifah Aman noted that the 2011AMM joint communiqué did not reflect thedecisions reached at that time. Malaysia wasconcerned over “how to settle our disputes[and] respect freedom of navigation.” Withrespect to freedom of navigation Anifah Amanargued that the joint communiqué “does notspecifically mention the settlement of disputesthrough international law and UNCLOS. I amconcerned that we have left out the mostimportant concern: all disputes must be settledin international law. We have to be mindful ofthe disputes. UNCLOS and international lawshould be the mechanism.”

Hor Namhong interjected, “now or [in] the nearfuture we can’t expect to resolve the disputes.Not ASEAN.” Anifah Aman responded: “[the]DOC and COC are the main frameworks. [Theyare] rules-based frameworks, [they] are notmeant to settle the disputes, the mechanismsare based on UNCLOS. We are not happy…”

Vietnam’s Pham Binh Minh broke in to raise aquestion of procedure. “We should discuss thisissue r ight now. Every year the jointcommuniqué has a paragraph on the SouthChina Sea, [some are] stronger and [other are]milder… There is no question that the jointcommuniqué does not have that one. Aroundthe table here we have the discussion and [the]ministers already indicated that the joint

communiqué must have a paragraph on theSouth China Sea. Every year we have to updatethe situation, the development over the SouthChina Sea. This year what happened to theSouth China Sea? Those incidents occurred notonly in the South China Sea but deeper in theEEZs, [these were] new developments. That iswhy in the draft we have to update the newdevelopments in there. We put here [words]cal l ing [ for] the respect of EEZs andcontinental shelves, these [are] newdevelopments in the South China Sea.”

Hor Namhong responded. “We can neverachieve [consensus] even though we stay herefor the next four or five hours…” Indonesia’sForeign Minister broke in to ask “how detailedare we [going to be in our] references toScarborough Shoal and EEZs and continentalshelves?” Apparently referring to paragraph 16in the draft joint communiqué Marty read out:

In this context, we discussed in-depth recent developments in theSouth China Sea, including thesituation in the affected Shoal /disputed area, exclusive economiczones and continental shelves ofcoastal states, particularly thosecontrary to the provisions of the1982 UNCLOS. In this connection,we call upon all parties to respectthe universal ly recognizedprinciples of international lawincluding the 1982 UNCLOS.Further [we call] upon all theparties to resolve the disputes inaccordance with universallyr e c o g n i z e d p r i n c i p l e s o finternational law.

Hor Namhong replied, “Up to now there havebeen disputes in the Paracels and Spratlys butwe have never mentioned the names of these.But now why do we include these in the jointcommuniqué? Second if we need again

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paragraph 16…”

Del Rosario interjected, “There is no claritythat the disputes must be settled peacefullyand in accordance with international law,especially UNCLOS. You refer to freedom ofnavigation and over flight, it [the jointcommuniqué] does not mention disputes. Rightnow there are two gross violations of the DOC.They are in [Scarborough] Shoal and in the oilservice contract of the EEZ and continentalshelf. These are very clear distinct violations ofthe DOC. If we are going to be protecting peaceand stability and freedom of navigation in theSouth China Sea we should deal with theproblem as it present[s] itself at this point intime. We are also ignoring the fact that thereare gross violations of the DOC in the EEZs inthe Philippines and Vietnam. It is a challenge toASEAN’s leadership, centrality and solidarity.Why are we ignoring these gross violationsinstead of identifying them so that we can dealwith them?”

Hor Namhong responded: “We are not atribunal, [we should] not escalate tension butdiffuse tension. When we refer to shoal whereis the shoal? Are the Spratlys or Paracelsshoals? When you say violation of ScarboroughShoal, we have to know to whom it belongs. Weare not a tribunal. Maybe it belongs to thePhilippines, I don’t know. I stil l don’tunderstand, when we said disputed areas thatcovers all the areas [that are] disputed. Whyshould we add the shoal and EEZ andcontinental shelf? Before we go to [the]concluding session, I propose we delete theSouth China Sea in the joint communiqué, and[proceed] without paragraph 16. I have noother recourse. Or claimant states will dealdirectly with China.”39

Indonesia’s Marty then asked the Chair to“read again the formulation.” Hor Namhongresponded, “[where] we refer to [the] shoal?”He then asked if the joint communiqué shouldinclude actions contrary to UNCLOS. “UNCLOS

already defines the EEZs and continentalshelves, should we repeat it again?” he asked.

Del Rosario took up the discussion. “With duerespect,” he stated, “the first sentence [reads:]‘in this context we discussed in depth thedevelopments [in the South China Sea],including the situation in the ScarboroughShoal and expressed serious concern over suchdevelopments in the area, particularly thoseprovisions in the UNCLOS related to ExclusiveEconomic Zones and continental shelves.’Nowhere in that sentence is ASEAN [taking a]position as to who owns the shoal. We are justcalling attention that they are violating theDOC. We are not looking at the resolution ofterritorial claims here. There is no reference[to] who is owning what.”

Malaysia’s Anifah Aman declared, “It[violations] is happening. Nowhere did wemention that it [Scarborough Shoal] belongs [toone country or another]. Instead of ‘affectedshoal’ we [should] put it as ‘disputed area’.”Del Rosario retorted, “There are many disputedareas in the South China Sea but not in theScarborough Shoal. All we are saying [is]discussion in conflict areas.” Anifah Amanreplied, “We are trying to find… I don't thinkwe can progress forward if we specificallymention an area… It reflects the united standof ASEAN to encompass all disputed areas.”Marty Natalegawa responded, “We [Indonesia]are not one of those claimant states. Wesuggested earlier to use the word ‘affectedshoal.’ [We are] trying to be sensitive; affectedshoal [is] without prejudice to national claims.Be we can agree to [use the term] disputedarea. We don't think that this issue isimpossible to resolve. We have discussed indepth the situation [in the South China Sea].

Hor Namhong stated, “I can support thedisputed areas, disputed areas coverseverything.” Vietnam’s Pham Binh Minh theninterjected, “Disputed area, the EEZ is not adisputed area, certainly not. Some countries

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[try] to turn an undisputed are into a disputedarea. That’s for sure [an EEZ is not a disputedarea] in accordance with international law.”Minh then proposed a break for small groupdiscussion. The notes on the discussions at theAMM Retreat end at this point.

Media and other reporting reveal thatdiscussions on the wording of the South ChinaSea paragraphs continued until the morning ofJuly 13 without breaking the impasse.40 ErnestBower, who spoke to diplomats in Phnom Penh,wrote that after the four-member ministerialcommittee came up with a draft communiqué,“[r]epeatedly, however, after taking the draftunder consideration, Hor Namhong consultedwith advisers outside of the meeting room andcame back rejecting language referring toScarborough Shoal and the EEZs, even aftermultiple attempts to find compromise. He saidCambodia’s view was that those were bilateralissues and therefore could not be mentioned inthe joint statement.”41 By one account, theoriginal AMM joint communiqué went througha total of eighteen drafts.42

Over the four days following the AMM Retreat,the Indonesian and Singaporean foreignministers made a last-ditch effort to broker acompromise. They persuaded Vietnam and thePhilippines to agree to a compromise on thewording. But repeated attempts to persuadeCambodia’s Hor Namhong failed. At their lastmeeting Foreign Minister Hor Namhong“picked up his papers, and stormed out of theroom” arguing it was a matter of principle forASEAN not to take sides in bilateral disputes.43

Finally, according to an account by a Philippineofficial who attended the meetings in PhnomPenh: “[t]he text of the proposed JointCommuniqué’s item/subhead on the “SouthChina Sea” was drafted by the ASEAN foreignministers and several revisions were made tomake the text acceptable to all. However, theCambodian Chair consistently rejected anyproposed text that mentions ScarboroughShoal.44

Blame Game

The failure of ASEAN foreign ministers to issuea joint communiqué at the conclusion of the4 5 t h A M M l e d t o i m m e d i a t e p u b l i crecriminations. On the morning of the last day,immediately after a special meeting failed toreach an eleventh hour compromise, thePhilippines issued a statement taking “strongexception” to the decision by the ASEAN Chairnot to issue a joint communiqué. ForeignMinister Hor Namhong hit back accusing thePhilippines of attempting to “hijack” the AMMand declaring that the “joint communiqué hasbecome hostage to a bilateral issue.”45 ThePhilippine Undersecretary for Foreign Affairs,Erlinda Basilio, penned a personal accountentitled, “Why There Was No ASEAN JointCommuniqué” that provoked a Cambodiandiplomatic response (see below).46

Unnamed diplomatic sources leakedinformation to the press suggesting collusionbetween China and Cambodia. One seniordiplomat was quoted as stating, “China boughtthe chair, simple as that” and pointed tocomments by Foreign Minister Yang thankingPrime Minister Hun Sen for supporting China’s“core interests.”47 A veteran journalist reportedthat when the f i rst draft of the jo intcommuniqué was submitted to the ASEANChair “the Cambodians, in a breach of ASEANprotocol, showed it to the Chinese, who said itwas unacceptable unless the South China Seareference was removed. So the Cambodianssent it back for amendment.”48

ASEAN’s failure to issue a joint communiquéattracted widespread media coverage andcritical commentary by academics and otherobservers. On July 26-27 Cambodia hit backwith a barrage of three letters to the editors.49

The f i rs t was wri t ten by Kou Kuong,spokesperson for Cambodia’s Ministry ofForeign Affairs and International Cooperation.This letter was addressed to the Editor-in-Chiefof The Cambodia Daily in response to a story

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that quoted critical comments on Cambodia’srole as ASEAN Chair by the International CrisisGroup. Kou Kuong argued that “ twocountries…tried to sabotage and hijack ourmeetings” and held the 45th ASEAN ForeignMinisters’ Joint Communiqué “hostage to its[sic] national interests.”50

The second letter was written by theCambodian Ambassador to Thailand inresponse to an opinion piece by ThitinanPongsudhirak, a well-known academic,published in the Bangkok Post. AmbassadorYou Ay first corrected a common mediamisperception that the Peace Palace, where the45th AMM was held, was funded by China.51 Shethen targeted her remarks on comments thatwere critical of Cambodia’s relations withChina. Ambassador You pointed out that “Chinaprovided assistance only for the construction ofthe adjacent building and not the Peace Palace.Next, the Ambassador rejected Thitinan’sassertion that China was an “open patronstate” of Cambodia as a result of providing U.S.$10 billion in aid and investment. Finally, theAmbassador dismissed (but did not directlydeny) as “extremely disparaging andslanderous” Thitinan’s claim that Cambodia“shared the draft version of the joint statementwith the Chinese, who then vetoed it.”52

The third letter was written by Cambodia’sAmbassador to the Philippines to the editor-in-chief of The Philippines Star.53 AmbassadorH o s ’ l e t t e r t o o k d i r e c t i s s u e w i t hUndersecretary Basilio’s article mentionedabove. Ambassador Hos reiterated Cambodia’sargument that the failure to achieve consensusat the 45th AMM was due to the “inflexible andnon-negotiable position” of “two countries” [thePhilippines and Vietnam]. Cambodia’sAmbassador further argued that the “twocountries wanted to sabotage and hijack the JC[joint communiqué]” in retaliation forCambodia’s refusal to issue an ASEANStatement on the Situation in the South ChinaSea.”54 The Ambassador’s parting shot -

accusing “the two countries” of “dirty politics” -resulted in two summons by the PhilippineDepartment o f Fore ign Af fa i rs . TheAmbassador failed to appear for eitherreportedly on the ground of ill health.55 Shortlyafter it was announced that Ambassador Hoswas being recalled.56

Analysts are divided on the details of andextent to which China influenced Cambodia’sdecision to block the AMM joint communiqué,but few analysts argue that Cambodia’s actedindependently. Kishore Mahbubani, a formersenior Singaporean diplomat, wrote “the wholeworld, including most ASEAN countries,perceived Cambodia’s stance as the result ofenormous Chinese pressure.”57 Amitav Acharyawrote, “[t]here is little question that Hun Sen’srefusal to accommodate Philippines andVietnam resulted at least partly from Chinesepressure. According to a highly placed source,the Chinese specifically reminded theCambodians that [Norodom] Sihanouk… hadaccepted the Chinese claims to the South ChinaSea.”58 A Chinese scholar close to the Ministryof State Security revealed, “[w]e co-ordinatedvery well with Cambodia in that case [blockingobjectionable wording in the 45th AMM jointcommuniqué] and… prevented an incidentwhich would have been detrimental to China.”59

Shuttle Diplomacy

In the midst of the above recriminations,Indonesia’s Foreign Minister initiatedconsultations with the nine other members ofASEAN in an effort to restore unity in ASEANranks and commit ASEAN to a commonposition.60 Foreign Minister Marty conductedan intense round of shuttle diplomacy flying tofive capitals (Manila, Hanoi, Bangkok, PhnomPenh and Singapore) over a two-day period(July 18-19). Marty and del Rosario agreed to asix-point proposal that Marty put to his otherASEAN counterparts. When he obtained theiragreement Marty left it to Cambodia’s HorNamhong, as ASEAN Chair, to complete the

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diplomatic formalities.

On July 20, Hor Namhong, acting in hiscapacity as ASEAN Chair, officially releasedASEAN’s Six Principles on the South ChinaSea.61 Under the terms of this statement allASEAN Foreign Ministers reaffirmed theircommitment to: the full implementation of theDOC; Guidelines for the Implementation of theDOC; the early conclusion of a Regional COC inthe South China Sea; full respect of theuniversal ly recognized principles ofinternational law including the 1982 UNCLOS;continued exercise of self-restraint and non-useof force by all parties; and peaceful resolutionof disputes in accordance with the universallyrecognized principles of international lawincluding the 1982 UNCLOS. The ASEANstatement concluded: “The ASEAN ForeignMinisters resolve to intensify ASEANconsultations in the advancement of the aboveprinciples, consistent with the Treaty of Amityand Cooperation in Southeast Asia (1976) andthe ASEAN Charter (2008).”

A Chinese Foreign Ministry spokesperson, QinGang, responded to these developments byintroducing a pre-condition linking compliancewith the DOC and discussions on the COC. QinGang stated:

What concerns people now is thatsome individual countries, showingno respect for or compliance withthe DOC, have time and againresorted to provocative means,which undermined the basicprinciples and spirit of the DOCand created diff icult ies fordiscussing a code of conduct (COC)in the South China Sea. Therefore,while being open to discussing aCOC with ASEAN countries, Chinabelieves that all parties concernedmust act in strict accordance withthe DOC to create the necessaryconditions and atmosphere of a

COC.62

China then dispatched its foreign minister for afence-mending visit to Indonesia and Malaysiafor talks with his counterparts. ForeignMinister Yang Jiechi stated at a joint pressconference that China was willing to work withASEAN to implement the DOC and “on thebasis of consensus” to work toward theeventual adoption of the COC.63 ForeignMinister Yang held discussions with MalaysianForeign Minister Anifah Aman in KualaLumpur. There was no joint press conference.Anifah Aman stated he was “confident we canresolve this matter [disputes in the South ChinaSea]… through peaceful means.” He thenobserved, [t]here are overlapping claims bymember countries. Let us discuss these amongASEAN countries first before we talk to China.We can only achieve this objective in the SouthChina Sea if all parties agree. Then China canappreciate this and realise it is ASEAN’swish.”64 This statement seemed to imply thatASEAN-China discussions on the COC, if andwhen they take place, would be a protractedprocess.

Conclusion

ASEAN’s objective of creating an ASEANPolitical-Security Community by 2015 ispredicated on the assumption that ASEANmembers share a common identity and acommon responsibility for contributing to“peace, stability and security” in SoutheastAsia. The ASEAN Political-Security CommunityBlueprint states that one of its goals is to“[e]nsure full implementation of the DOC forpeace and stability in the South China Sea.” Inorder to achieve this objective the Blueprintcalls for a continuation of “ASEAN’s currentpractice of close consultation among MemberStates to achieve full implementation of theDOC… and [w]ork towards the adoption of aregional Code of Conduct in the South ChinaSea.” 6 5 The ASEAN Charter cal ls for

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“[e]nhanced consultations on matters seriouslyaffecting the common interest of ASEAN.”66

ASEAN’s failure to issue a joint communiquéafter its 45th AMM poses procedural questionsabout the fate of 128 paragraphs in the draftthat recorded decisions on a range of issuesother than the South China Sea, includingASEAN community -bui ld ing and theappointment of a new Secretary General. It alsoraises questions about the status of ASEAN’sagreement on key principles in its draft COC.67

The analysis presented in part one clearlyshows that the Philippines has made majorconcessions in its discussions with fellowASEAN members in order to reach consensuson the key principles in the COC. ThePhi l ippines has been diplomatical lycircumspect about this. There were no publicrecriminations when the Philippines proposalsfor a ZOPFF/C and a joint development areawere stripped from its draft COC. As a result,ASEAN was able to reach agreement on the keyprinciples of its COC and approach Chinainformally to discuss the way ahead. ASEANstill has to fine-tune its draft by consideringinputs from Indonesia in the form of a “non-paper.”

Part two provided a detailed insight intointernal ASEAN dynamics as its foreignministers discussed and debated the SouthChina Sea question and how to word itsmembers’ concerns in a joint communiqué. Theanalysis clearly demonstrates that thePhilippines, as a founding member of ASEAN,expected support on an issue that touched notonly on its national sovereignty but regionalsecurity as well. The analysis also demonstratesthat there was a “majority consensus” toinclude reference to disputes concerningScarborough Shoal and oil leasing in Vietnam’sExclusive Economic Zone.

The record indicates that the failure to achieveconsensus was the result of Cambodia’shandling of its role as ASEAN Chair. Foreign

Minister Hor Namhong was not conciliatory atthe AMM Retreat and his subsequent actions inrejecting repeated attempts at compromiseappear obstinate. At the same time, it isrevealing that ASEAN foreign ministersacquiesced to Cambodia’s high-handedness invetoing the draft joint communiqué drawn upby four of their colleagues. No minister directlychallenged Hor Namhong’s handling of thediscussion/debate at the AMM Retreat.

Part three dealt with the recriminations thatfollowed the failure of ASEAN to issue a jointcommuniqué. It is clear that Chinese influenceplayed a major role in influencing Cambodia toplay an obstructionist role. Cambodia’s actionsindicate that the idea of an ASEAN Communityplayed second fiddle to its relations with China.In the short run the Philippines (and Vietnam)will be hyper sensitive to Cambodia’s role asASEAN Chair in any discussions with China onthe South China Sea. In the longer term someASEAN members will be concerned aboutChina’s ability to influence Laos and Myanmarwho will assume the ASEAN Chair in 2014 and2015, respectively. In this respect the events atthe 45th AMM may serve as a wake up call andresult in amended decision-making procedures.

Part four dealt with Indonesia’s decision toengage in a round of shuttle diplomacy in orderto obtain unanimous agreement on ASEAN’sSix-Point Principles on the South China Sea.Foreign Minister Marty Natalegawa'sdiplomatic initiative provided a much-neededboost to ASEAN morale. His efforts also helpedto dispel the perception outside of SoutheastAsia that there was disunity among ASEANmembers on how to deal with the South ChinaSea issue. More importantly, Indonesia'sintervention served notice to Cambodia that asASEAN's chair for 2012 it could not unilaterallycontrol ASEAN's agenda. Natalegawa'sintervention was unprecedented in assuming aleadership role that normally would fall to theASEAN chair and signalled that Indonesia iswilling to play a more proactive role in regional

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affairs.

Current indications are that ASEAN will pursuethe implementation of the DOC and discussionson the COC with China in tandem. ASEAN willseek to obtain agreement with China on the keyprinciples and then move on to drafting thefinal text. China will have to take Indonesia’snew role into account and this may prove apositive factor in addressing current tensions inthe South China Sea.

*Carlyle A. Thayer is Emeritus Professor, TheUniversity of New South Wales at theAustralian Defence Force Academy, Canberra.

Recommended citation: Carlyle A. Thayer,"ASEAN’S Code of Conduct in the South ChinaSea: A Litmus Test for Community-Building?,"The Asia-Pacific Journal, Vol 10, Issue 34, No.4, Auguest 20, 2012.

Notes

1 “Declaration on ASEAN Concord II (BaliConcord II),” October 7, 2003. .

2 Each of these documents was provided to theauthor by sources that must remainconfidential.

3 Statement by the ASEAN Foreign Ministers onthe Recent Developments in the South ChinaSea 18 March 1995. This was ASEAN’s secondstatement on the South China Sea in responseto Chinese activities. The first was ASEANDeclaration On The South China Sea, Manila,Philippines, 22 July 1992.

4 For further background consult: Carlyle A.Thayer, “Challenges to ASEAN Cohesion: ThePolicy of Constructive Engagement and a Codeof Conduct for the South China Sea,” Paper tointernational workshop on Regionalism and

Globalism in Southeast Asia, Department ofPolitical Science and International Relations,University of Tampere and the Centre forSoutheast Asian Studies, Åbo AkademiUniversity, Marienhamn, Åland, Finland, June2-4, 2000, 31-44.

5 Association of Southeast Asian Nations,“Regional Code of Conduct in the South ChinaSea (Draft),” March 2000 and People’sRepublic of China, “Code of Conduct on theSouth China Sea (Draft of the Chinese Side),”March 2000.

6 Point 10, Declaration on Conduct of Parties inthe South China Sea, November 4, 2002.

7 ASEAN-China Senior Officials Meeting on theImplementation of the Declaration on theConduct of Parties in the South China Sea,Kuala Lumpur, 7 December 2004 and Terms ofReference of the ASEAN-China Joint WorkingGroup on the Implementat ion of theDeclaration on the Conduct of Parties in theSouth China Sea; see here and here.

8 Tran Truong Thuy, “Recent Developments inthe South China Sea: From Declaration to Codeof Conduct,” in Tran Truong Thuy, ed., TheSouth China Sea: Towards a Region of Peace,Security and Cooperation (Hanoi: The GioiPublishers, 2011), 104.

9 Guidelines to Implement the DOC.

10 Carlyle A. Thayer, “Sovereignty Disputes inthe South China Sea: Diplomacy, LegalRegimes and Realpolitik,” Presentation toInternational Conference on Topical RegionalSecurity Issues in East Asia, co-sponsored bythe Faculty of Asian and African Studies andthe Ho Chi Minh Institute, St. Petersburg StateUniversity, St. Petersburg, Russian Federation,April 6-7, 2012, 7.

11 Part IX of UNCLOS is headed Enclosed orSemi-Enclosed Seas. It contains two articles,Article 122 (definition) and Article 123

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(cooperation of states bordering enclosed orsemi-enclose seas).

12 Carlyle A. Thayer, “Is the Philippines anOrphan?” The Diplomat, May 2, 2012.

13 Thayer, “Is the Philippines an Orphan?”

14 Estrella Torres, “Manila tack on China rowwins Asean nod,” Business Mirror, July 13,2012.

15 Michael Lipin, “Cambodia Says ASEANMinisters Agree to ‘Key Elements’ of SeaCode,” Voice of America, July 9 2012; Michaeldel Callar, “DFA chief: ASEAN agrees on keyelements for Code of Conduct in West PHLSea,” GMA News, July 11, 2012; and AssociatedPress, “Asean to take up code of conduct withChina,” Manila Standard Today, July 10, 2012quotes Liu Weimin, spokesperson for China’sMinistry of Foreign Affairs, as stating “Whenconditions are ripe, China would like to discusswith Asean countries the formulation of theCOC.”

16 Ian Storey argues that the inclusion of thewords “comprehensive and durable” settlementof the dispute represented a partial victory forVietnam and the Philippines and a rejection ofDeng Xiaoping’s proposal to “shelvesovereignty disputes and engage in jointexploration.” In fact the words “comprehensiveand durable” were first used in the 2002Declaration on Conduct of Parties in the SouthChina Sea, Point 6, which China signed. See:“Ian Storey Comments,” The Nelson Report,July 31, 2012.

17 A comparison of the two drafts does notsupport the conclusion reached by Storey that“the language was watered down.” See: “IanStorey Comments,” The Nelson Report, July 31,2012.

1 8 “Treaty of Amity and Cooperation inSoutheast Asia, Indonesia, 24 February 1976.”

19 Instrument of Accession to the Treaty ofAmity and Cooperation in Southeast Asia,October 8, 2003.

20 United Nations Commission on Law of theSea, Annex VI, International Tribunal for theLaw of the Sea. See also UNCLOS, Part XI,TheArea, Section 5, Settlement of Dispures andAdvisory Opinions, Articles 186-191 and PartXV, Settlement of Disputes, Articles 279-299.

21 Summary of Cambodia Chair’s intervention atthe AMM Retreat, 9 July 2012, 1 and 25.

22 “Divisions serve to weaken ASEAN,” TheJapan Times, July 21, 2012. A Chinese ForeignMinistry spokesperson stated that on July 8 theASEAN-China SOM agreed to carry out theDOC “in a comprehensive and effectivemanner, as well as carry out cooperationprojects under the DOC framework…”; “Chinaexpects co-op on South Chins Sea,” ChinaDaily, Juy 10, 2012.

23 Summary of Cambodia Chair’s intervention atthe AMM Retreat, 9 July 2012, 25 and ChannelNews Asia, “Element of confidence buildingbetween ASEAN and China,” July 10, 2012.

24 Scott Stearns, “China Ready to Join SouthChina Sea Talks,” Voice of America July 12,2012.

25 According to Surwin, “They [the seniorofficials] have to decide in the next day or twowhether this process is going to be formalizedwith certain specific schedule. Is this going tobe needed in the future when we discusswhenever we come together, or are we going tohave a regular schedule of meetings betweenboth sides?” Channel New Asia, “Element ofconfidence building between ASEAN andChina,” July 10, 2012 and Agence France-Presse, “Asean reaches out to Beijing over seacode,” Gulf Times, July 10, 2012.

26 “Divisions serve to weaken ASEAN,” TheJapan Times, July 21, 2012.

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27 “Ian Storey Comments,” The Nelson Report,July 31, 2012. Storey used more guardedlanguage in earlier accounts where he wrotethat Foreign Minister Yang “seems to haveruled out” the September meeting on a code ofconduct until “when time was ripe.” Storey’sinterpretation may be a misreading of China’sposition as it has used the expression “whenconditions are ripe (or mature)” well before the45th AMM. A Chinese spokesperson also usedthis expression on July 9 two days before Yangspoke. See: Lipin, “Cambodia Says ASEANMinisters Agree to ‘Key Elements’ of Sea Code”and Ian Storey, “Little hope of South China SeaCode of Conduct,” South China Morning Post,July 27, 2012; Storey, “China Pushes on theSouth China Sea, ASEAN Unity Collapses,”China Brief, XII(15), August 4, 2012, 8-11; andStorey, “China bares claws in maritimedispute,” Asia Times Online, August 8, 2012.

28 The ASEAN-related meetings included: theASEAN Post-Ministerial Conference withdialogue partners, the 19th ASEAN RegionalForum, ASEAN Plus 3 Foreign MinistersMeeting and the 2nd East Asia Summit ForeignMinisters Meeting.

29 “Opening Address By Samdech Akka MohaSena Padei Techo HUN SEN Prime Minister ofthe Kingdom of Cambodia At the Opening ofthe 45th ASEAN Foreign Ministers’ Meeting,”Phnom Penh, 9 July 2012.

30 Martin Abbugao, Australian Associated Press,“ASEAN pushed on South China Sea code,”Herald Sun, July 9, 2012 and Agence France-Presse (AFP), “Hun calls for ASEAN SouthChina Sea code,” The Australian, July 10, 2012.

31 Ernest Z. Bower, “China Reveals Its Hand onASEAN in Phnom Penh,” Southeast Asia fromthe Corner of 18th and K Streets, vol. III, No.14, July 19, 2012, 2.

32 Cambodia, Ministry of Foreign Affairs, “TheForty-fifth ASEAN Foreign Ministers’ Meeting,”

Media Advisory, July 6, 2012.

33 This is an allusion to an agreement by thePhilippines and China to simultaneouslywithdraw their vessels from Scarborough Shoaland for China to remove its barrier from theentrance to the shoal. The Philippines withdrewits vessel on June 4 but China did notreciprocate. Erlinda F. Basilio, “Why there WasNo ASEAN Joint Communiqué,” Republic of thePhilippines, Department of Foreign Affairs,Public Information Services Unit, July 19, 2012;and Erlinda Basilio, “What happened in PhnomPenh?” The Philippine Star, July 19, 2012.

34 This is a reference to consultations betweenthe Philippines and other ASEAN members thatresulted in the drafting of this statement onMay 24. On the following day Secretary forForeign Affairs del Rosario wrote to the ASEANChair requesting that the statement be referredto a l l ASEAN fore ign min i s te rs f o rconsideration. See: Basilio, “Why there Was NoASEAN Joint Communiqué” and Basilio, “Whathappened in Phnom Penh?.” According toCambodia’s Ambassador to the Philippines,“Cambodia, as ASEAN Chair, wrote to allASEAN Foreign Ministers to ask for responsesin writing on this issue. But, after waiting forseveral weeks, it was clear that ASEAN had noconsensus on this matter of Scarborough Shoal.Therefore, no one could blame Cambodia fornot issuing the ASEAN statement…” See:Ambassador Hos Sereythonh, Letter to Ms. AnaMarie Pamintuan, Editor-in-Chief, ThePhilippines Star, July 26, 2012.

35 China announced a three billion yuan (US$476 million) Maritime Cooperation Fund atthe 2011 East Asia Summit to f inancecooperative activities under the DOC.

36 This is a reference to China’s proposal toform an Eminent Persons and Experts WorkingGroup (EPEWG) comprised of ten members,five from China and five from ASEAN, todiscuss the draft COC. China later agreed to a

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fifteen-member EPEG, ten from ASEAN andfive from China. ASEAN reportedly insistedthat the EPEWG should be formed only afternegotiations on the COC had commenced. See:Don Emmerson, “ASEAN Stumbles in PhnomPenh,” Asia Times Online, July 17, 2012Extracts were published in Emmerson, “ASEANStumbles in Phnom Penh,” PacNet #45, July19, 2012 and “ASEAN Stumbles in PhnomPenh,” East Asia Forum, July 23, 2012.

37 The 5 th ASEAN-China Senior Officials’Meeting on the DOC and the 7th ASEAN-ChinaJoint Working Group on the Implementation ofthe DOC met in Beijing from January 13-16,2012.

38 Cambodia’s Ambassador to the Philippinesclaimed that “eight out of ten ASEAN MemberStates agreed to all 132 points in the JointCommunique of he AMM, including the threeparagraphs (14, 15, 17) related to the SouthChina Sea, except paragraph 6 which is thebilateral disputes between the Philippines andChina and Vietnam and China…” See:Ambassador Hos Sereythonh, Letter to Ms. AnaMarie Pamintuan, Editor-in-Chief, ThePhilippines Star, July 26, 2012.

39 Summary of Cambodia Chair’s intervention atthe AMM Retreat, 9 July 2012, 1. The secondpart of this document records Hor Namhong asstating, “If you cannot agree on the text of thejoint communique we have no more recourse todeal with this issue as the Chair of ASEAN,” 28.

40 Zsombor Peter and Kuch Naren, “CambodiaCriticized for Asean Meeting Failure,” TheCambodian Daily, July 14-15, 2012.

41 Bower, “China Reveals Its Hand on ASEAN inPhnom Penh.”

42 Greg Torode, “ASEAN Left on a Knife Edge,”South China Morning Post, July 21, 2012.

43 Jane Perlez, “Asian Leaders at RegionalMeeting Fail to Resolve Disputes Over South

China Sea,” The New York Times, July 12,2012.

44 Basilio, “Why there Was No ASEAN JointCommuniqué” and Basilio, “What happened inPhnom Penh?”

45 Zsombor Peter and Kuch Naren, “CambodiaCriticized for Asean Meeting Failure,” and PrakChan Thul and Stuart Grudgings, “SE Asiameeting in disarray over sea dispute withChina,” Reuters, July 13, 2012.

46 Basilio, “What happened in Phnom Penh?”

47 Jane Perlez, “Asian Leaders at RegionalMeeting Fail to Resolve Disputes Over SouthChina Sea,” The New York Times, July 12,2012.

48 Roger Mitton, “ASEAN Struggles for unity,”The Phnom Penh Post, July 23, 2012.

49 David Boyle, “Goverment fires back on SouthChina Sea,” The Phnom Penh Post, July 31,2012.

50 Koy Kuong, Letter to Mr. Kevin Doyle, Editor-in-Chief, The Cambodian Daily, July 26, 2012.

51 For example, Perlez, “Asian Leaders atRegional Meeting Fail to Resolve Disputes OverSouth China Sea,” wrote “the Peace Palace…was built for the occasion by the Chinesegovernment.”

52 Ambassador You Ay, Letter to Mr. PichaiChuensuksawadi, Edior in Chief of the BangkokPost, July 27, 2012.

53 Ambassador Hos Sereythonh, Letter to Ms.Ana Marie Pamintuan, Editor-in-Chief, ThePhilippines Star, July 26, 2012.

54 See note 24 above.

5 5 Michael del Cal lar , “DFA demandsexplanation from Cambodian envoy for caustic

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remarks,” GMA News, July 31, 2012; and“Cambodia envoy still a no-show,” ABS-CBNNews, August 2, 2012.

56 Carlyle A. Thayer, “Cambodia-PhilippineDiplomatic Tiff Continues,” Thayer ConsultancyBackground Brief, August 7, 2012.

57 Kishore Mahbubani, “Is China Losing theDiplomatic Plot?” Project Syndicate, July 26,2012.

5 8 Amitav Acharya, “The end of ASEANcentrality?,” Asia Times Online, August 8, 2012.

5 9 Chen Xiangyang, China Institutes ofContemporary International Relations, quotedby Kathirn Halle, “Bejing considers strongerforeign ties,” The Financial Times, August 15,2012.

60 Carlyle A. Thayer, “ASEAN Unity Restored byShuttle Diplomacy?” Thayer ConsultancyBackground Brief, July 24, 2012.

61 Statement of ASEAN Foreign Ministers onASEAN's Six-Point Principles on the SouthChina Sea, July 20, 2012. Cambodia’s ForeignMinister could not resist using this occasion to

lay the blame for ASEAN's failure to issue ajoint communiqué on Vietnam and thePhilippines.

62 Statement by Spokesperson Qin Gang of theMinistry of Foreign Affairs of China on the USState Department issuing a So-called PressStatement on the South China Sea, August 4,2012. I am grateful to Greg Torode of the SouthChina Morning Post for pointing out thesignificance of this statement.

63 Tarra Quismundo, “China says it’s willing toease Asean rift on sea,” Philippines DailyInquirer, August 11, 2012.

64 Agence France-Presse, “Malaysia urgesASEAN to unite over South China Sea,” August12, 2012.65 ASEAN Political-Security CommunityBlueprint (Jakarta: ASEAN Secretariat, June2009), 7.

66 Charter of the Association of Southeast AsianNations, Novemer 20, 2007, 5.

67 Emmerson, “ASEAN Stumbles in PhnomPenh.”