Thayer Consultancy

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Background Briefing: ASEANs Code of Conduct (Unofficial) Carlyle A. Thayer July 11, 2012

Regional Code of Conduct in the South China Sea (COC) between ASEAN Member States and the Peoples Republic of China Preamble Recall the relations of friendship, good neighborliness and Strategic Partnership between ASEAN and China Joint Statement of the Meeting of the Heads of State/Government of the Member States of ASEAN and the President of the Peoples Republic of China in 1997 Joint Declaration of the Heads of State/Government of ASEAN and the Peoples Republic of China on Strategic Partnership for Peace and Towards an Enhanced ASEAN-China Strategic Partnership in 2006 and other joint declarations and cooperation documents which lay the foundation for friendly relations, good neighborliness, comprehensive and mutually beneficial cooperation between ASEAN and China

Emphasize the need to further promote a peaceful, friendly and harmonious environment in the South China Sea between ASEAN and China (Declaration on Conduct of Parties in the South China Sea DOC) Stress the importance of the DOC and the provisions contained therein, including the commitment to develop a COC Stress the commitment by ASEAN-China Leaders to develop a COC to maintain peace and stability in the South China Sea Emphasize the desire for peaceful and durable solution of disputes (DOC) Recognize that comprehensive and durable settlement of the territorial and jurisdictional disputes in the South China Sea will contribute to regional peace and stability Maintain the South China Sea as an area of peace, stability, friendship and cooperation Recall the obligations of states under international law, including UNCLOS, to safeguard the environmental characteristics and biodiversity of the South China Sea

2 Operative provisions 2.1. Principles of Code of Conduct Respect and adhere to the UN Charter the 1982 UNCLOS theTreaty of Amity and Cooperation in Southeast Asia (TAC) the DOC the Five Principles of Peaceful Co-existence and

Develop modalities and arrangements for the promotion of settlement by peaceful means of disputes and prevent their escalations that would affect peace, stability and security in the area Undertake to respect the provisions of this COC and take actions consistent there with Encourage other countries to respect the purposes and principles contained in the COC Establish an appropriate mechanism to monitor the implementation of the COC to be supported by the ASEAN-China Senior Officials Meeting on the implementation of the DOC and its Joint Working Group Final Clause 3.1. Develop a review mechanism of the COC (Ministerial/Leaders level) 3.2. Prohibit reservation to the Code of Conduct 3.3. Stipulate provisions for entry into force of the COC 3.4. Establish a mechanism for settling disputes relating to the interpretation and application of the Code of Conduct guided by the following principles: Ensure that any breach of provisions of the COC will be settled by peaceful means Utilize the dispute settlement mechanism under the relevant provisions of the Treaty of Amity and Cooperation in Southeast Asia If cannot be resolved through procedure within ASEAN framework, parties may resort to dispute settlement mechanisms provided under international law, including UNCLOS

3.5. Stipulate provisions for amendment of the COC 3.6. Stipulate provisions for the respect of the COC by other countries (such as a Protocol) 3.7. Duration of the COC. The COC shall remain in force indefinitely Withdrawal from the COC

3 3.8. The COC shall be registered by the Secretary General of ASEAN with the Secretariat of the United Nations, pursuant to Article 102 paragraph 1 of the Charter of the United Nations Suggested citation: Carlyle A. Thayer, ASEANs Code of Conduct (Unofficial), Thayer Consultancy Background Brief, July 11, 2012.