Review of the Implementation of the

2002 ASEAN-China DOC and COC

and Challenges

Emeritus Professor Carlyle A. Thayer

Presentation to Seminar-Workshop ASEAN-China Joint

Working Group on the Implementation of the Declaration

on the Conduct of Parties in the South China Sea, hosted by

the Department of Foreign Affairs, Manila, May 14-15, 2015

Outline

• Part 1 General Background

• Part 2 Positive Developments in

Implementing the DOC-SCS

• Part 3 Challenges to Implementing the

DOC-SCS

• Part 4 Proposals on The Way Forward

Part 1 General Background

• Obligations under UNCLOS

– Provisional arrangements – EEZs Art. 74(3)

– Settle disputes peacefully - Art. 279

– Cooperate in semi-enclosed seas - Part IX

• Obligations under DOC-SCS

– Settle disputes peacefully (Para 4)

– Self-restraint (Para 5)

– Cooperative activities (Para 6)

Geographic Scope of South East Asia

• (a) "Southeast Asia Nuclear Weapon-Free Zone", hereinafter referred to as the "Zone", means the area comprising the territories of all States in Southeast Asia, namely, Brunei Darussalam, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand and Vietnam, and their respective continental shelves and Exclusive Economic Zones (EEZ);

• (b) "territory" means the land territory, internal waters, territorial sea, archipelagic waters, the seabed and the sub-soil thereof and the airspace above them.

– - South East Asia Nuclear Weapons Free Zone Treaty 1995 , emphasis added

Part 2 Positive Developments in

Implementing the DOC-SCS

1. Terms of Reference

2. ASEAN-China Joint Working Group

3. Guidelines to Implement DOC-SCS

4. Arbitral Proceedings

5. Consultations on COC commenced

6. Annual Work Plans, EPEG

7. “Early harvest” and “early conclusion of COC

Part 3 Challenges to Implementing the

DOC-SCS

• Use of Regular Navy warships

• National fishing fleets

• Disruption of oil surveying

• Coast Guard and other Maritime Law

Enforcement Agencies

• Mega Oil Drilling Platform HYSY 981

Chinese Land Reclamation: Fiery Cross

Challenges to Implementing the DOC

• Major Power involvement

– China, US, Japan, India

– Harassment of military aircraft and ships

– Major naval exercises – amphibious landings

• Competitive arms build up and force

modernization

• Strategic environment in South China Sea has

deteriorated since 2002

Part 4 Proposals on The Way Forward

• Clarify and operationalize key terms in DOC

Paragraphs 4, 5 and 6

• Paragraph 4 “threat or use of force”

• Paragraph 5 “exercise self-restraint in the

conduct of activities that would complicate or

escalate disputes and affect peace and

stability” and “including, among others”

Proposals on The Way Forward

• Paragraph 5(d) voluntary exchange of relevant

information

• Paragraph 5(c) voluntary notification of

joint/combined military activities

• Paragraph 6 (a and b) protection of marine

environment and marine scientific research

• Paragraph 6(c) safety of navigation and

communication at sea

Concluding Remarks

• Cooperation = CBM

• Cooperative CBMs should be specifically

linked to addressing the most pressing

sources of friction and tensions

• ASEAN has a legal personality under the

ASEAN Charter

• China’s dual track approach

Concluding Remarks

• Delay and procrastination in DOC-SCS

• Strategic issues beyond remit of ASEAN-China JWG

• ASEAN dual track approach

– Continue consultations ASEAN-China JWG

– ASEAN Code of Conduct for Southeast Asia’s

Maritime Domain

• ASEAN Political-Security Council

– Whole-of-ASEAN approach

Review of the Implementation of the

2002 ASEAN-China DOC and COC

and Challenges

Emeritus Professor Carlyle A. Thayer

Presentation to Seminar-Workshop on the Implementation

of the 2002 ASEAN-China Declaration on the Conduct of

Parties in the South China Sea (DOC-SCS)

Manila, May 14-15, 2015