Thayer Consultancy Background Brief

ABN # 65 648 097 123

ASEAN-China South China Sea
Code of Conduct – Content,
Legal Status and Likelihood
August 4, 2018

We have read your analysis of the ASEAN-China Single Draft South China Sea Code of
Conduct Negotiating Text. We seek clarification of three points:
Q1- Do you think this draft has much new content compared to the previous ones?
ANSWER: The current Single Draft South China Sea Code of Conduct Negotiating Text
is in fact a complication of all previous drafts circulated by ASEAN member states and
China. This draft is not a static one; it is described as a living document to which
individual states may add or subtract their proposals. In short, it is the most
comprehensive draft to date. But it is a rambling, redundant document that contains
much overlap and several areas of divergence.
Q2- Since it is still not legally binding, has it shifted quite far away from the principle
of a Code of Conduct?
ANSWER: A Code of Conduct was never conceived to be a legally binding document
but a set of norms to guide state behaviour until disputes over sovereignty and
sovereign jurisdiction were resolved. Whether or not the Single Draft will be legally
binding remains to be seen. Given the content of the Single Draft Negotiating Text it
looks unlikely.
Q3- Is a Code of Conduct ever possible in the China-ASEAN South China Sea context?
ANSWER: Yes, a Code of Conduct (COC) in the South China Sea is possible. The present
Single Draft Negotiating Text is scheduled for three readings. The COC negotiations
are to be completed by "mutually agreed timeline" that has not been made public. I
would say given the pace of developments, a COC could be completed within a year.
My only caveat is that China has linked progress on the COC to non-intervention by
outside powers (e.g. the United States). China can use U.S. freedom of navigation
operational patrols or other actions to slow if not halt negotiations on the COC.

Suggested citation: Carlyle A. Thayer, “ASEAN-China South China Sea Code of Conduct
– Content, Legal Status and Likelihood,” Thayer Consultancy Background Brief, August
4, 2018. All background briefs are posted on Scribd.com (search for Thayer). To
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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.