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The South China Sea Dialogues

Draft ASEAN-China Codes of Conduct (2000): Text and Analysis

Source: Thayer Consultancy

26 April 2017

On 15th March 2000, senior officials from China and ASEAN met in Thailand to discuss for the first time their respective draft codes of conduct for the South China Sea. ASEAN tabled a seven point code, while China put forth a document containing twelve points.

The following is the text of draft codes of conduct exchanged between ASEAN and China in March 2000:

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Background and Analysis

Author: Carlyle A. Thayer

This week the Philippines will host the 30th ASEAN Summit and Related Meetings from 26-29 April. The ASEAN Summit will take place in Pasay City on 29 April.

ASEAN and China are will discuss a draft Code of Conduct in the South China Sea Framework that is expected to be finalized by June 2017. ln the lead up to this week’s meetings the ASEAN-China Joint Working Group on lmplementing the Declaration on the Conduct of Parties (DOC) in the South China held two meetings. ln April, the 20th Joint Working Group Meeting was held in Cambodia after which the Chinese Foreign Ministry stated that “the first draft of the COC has also taken shape.”

Historical Background

The Association of South East Asian Nations (ASEAN) first became formally involved in South China Sea issues in July 1992 when China and Vietnam (not yet a member of ASEAN) became embroiled in a dispute over oil exploration activities in the area. ASEAN issued a declaration that urged unnamed parties “to exercise restraint.” This call went unheeded, and both Vietnam and China proceeded to take control of unoccupied islets and reefs comprising the Spratly archipelago near the Philippines, Malaysia, and Brunei.

ln late 1994, China sparked another Spratly-related controversy when it occupied the Philippines-claimed Mischief Reef. This incident marked a turning point. ASEAN foreign ministers issued their second statement on the South China Sea in which they expressed their “serious concern” and urged the concerned parties “to refrain from taking actions that de-stabilize the situation.” The Philippines lobbied its fellow members to adopt a Code of Conduct (COC) that would constrain China from further encroachment. lt took ASEAN officials nearly five years to agree on a draft ASEAN COC. By that time China had drawn up its own draft COC.

ln March 2000k ASEAN and China exchanged their respective drafts and agreed to consolidate them into a final agreed text. Four major areas of disagreement emerged: the geographic scope, restrictions on construction on occupied and unoccupied features, military activities in waters adjacent to the Spratly islands, and policies concerning detainment of fisherman found in disputed waters. After two years of negotiations, it became evident that an agreement was not possible’

(From: Carlyle A. Thayer, “ASEAN, China and the Code of Conduct in the South China Sea,” The SAIS Review of International Affairs, 33(Z),Summer-Fall 2013, 7 5-84′)

Draft Codes of Conduct 2000

On 15th March 2000, senior officials from China and ASEAN met in Thailand to discuss for the first time their respective draft codes of conduct for the South China Sea. ASEAN tabled a seven point code, while China put forth a document containing twelve points. Both documents advocated cooperation to protect the environment, marine scientific research, safety of navigation, and search and rescue. Both also urged selfrestraint and no resort to the use or threat of force pending resolution of disputes.

There were significant differences, however. China’s draft consists of general principles, while the ASEAN draft is more specific. One of the major differences is the scope of geographic coverage. China wants the code confined to the Spratly lslands, while ASEAN insisted on the inclusion of the Paracels. The status of Scarborough Shoal was unclear. lt is evident that there were differences within ASEAN on the Paracels. According to Foreign Secretary Domingo Siazon at a 2nd February press briefing, “if the area of coverage were limited to (the) Spratlys, I think that I would say that within three days, our diplomats would be able to find a set of words that would be acceptable to the contesting parties in the Spratlys.”

ASEAN also insisted on a halt to future settlement and construction. Point 2 of the ASEAN draft code stated, “The parties undertake to refrain from action of inhabiting or erecting structures in presently uninhabited islands, reefs, shoals, cays and other features in the disputed areas.” China had concerns about “any military exercises directed against other countries” in or near the Spratlys, and “dangerous and close-in military reconnaissance.” China pushed to attain assurance that its fishermen would  be able to fish in disputed areas of South China Sea. Beijing also proposed that the claimants “refrain from use or threat of force, or taking coercive measures… against fishing boats or other civilian vessels engaged in normal operation in the disputed areas, nor against nationals of other countries thereon.” China defined coercive measures as including “seizure, detention and arrest'”

As of March 2000 the ASEAN code was an open-ended document that provided for regular consultation and checking for compliance in order to build trust. lt was not be legally binding. Disputes between countries would be settled on a bilateral basis.

(From: Carlyle A. Thayer, “China-ASEAN: Tensions Promote Discussions on a Code of Conduct,” Comparatiae Connections: A Quarterty E-lournal on East Asian Bilateral Relations (Honolulu: Pacific Forum-CSIS),2(1),1.t Quarter, April 2000, 51-60. http://www.csis.org/pacfor/ccjournal.html)

ln speech delivered in Jakarta in July 2000, Vice President Hu Jintao stated, “[China] has put forward the proposal of ‘shelving disputes and going for joint development” in relation to the Spratlys question and has been actively participating in making code of conduct for preserving peace and stability in the South China Sea.” China consistently opposes discussing South China Sea territorial conflicts in multilateral  forms. According to an editorial in The Bangkok Post (27 Aug.) at the 7th ARF when Thailand attempted to raise the Spratly lsland question, “the Chinese slapped down the Thai proposal brusquely and rudely. Never, they threatened, will Beijing discuss the Spratlys in a forum even though six nations claim the archipelago.”

Despite this objection, however, Chinese officials have discussed a code of conduct with their ASEAN counterparts. ln August, China hosted the third meeting of the ASEAN-China working group on a code of conduct for the South China Sea in Dalian. This meeting discussed a consolidated draft code that emerged from discussions held in Kuala Lumpur in May. The new draft states that the code should be applied to the Spratly lslands alone but officials are still working on a formulation that will satisfy both Vietnam (which wants the Paracels included) and China (which wants the Paracels excluded). China has also tried to insert in the draft code wording which would in effect restrict U.S. military exercises in the “waters around” the Spratly lslands. China has also opposed wording that would restrict or prohibit construction on features in the area. China’s position is more vague calling for restraint in “activities that might complicate and escalate disputes.” lt was left to Vietnam, chair of the ASEAN Standing Committee for the next year, to declare that the China-ASEAN meeting in Dailan had “reached consensus on some major principles of the East Sea Code of Conduct… Differences, however, remained.” Chinese officials, for their part, called on “relevant countries to show political sincerity and flexibility” and labeled the code a political not a legal document. “The major difficulties are not on the Chinese side,” according to a Chinese foreign ministry spokesperson. According to Laurel Baja the meeting failed to make progress because all of the officials taking part lacked mandate. Baja suggested that the issue to taken up by higher-ranking officials possibly at an ASEAN Senior Officials Meeting in Hanoi in October.

(From: Carlyle A. Thayer, “China Consolidates Its Long-Term Bilateral Relations with SoutheastAsia”, Comparative Connections: An E-/ournal on East Asian Bilateral Relations (Honolulu: Pacific Forum-CSIS), 2(2), znd Quarter, Iuly 2000: 62-72. https://www.csis.org/analysis/comparative-connections-v2-n2-china-southeast-asia-relations)

Suggested citation: Carlyle A. Thayer, “South China Sea: Background to ASEAN-China Code of Conduct,” Thayer Consultancy Background Brief , April 25, 2017 All background briefs are posted on Scribd.com (search for Thayer).

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