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Toward a code of conduct for the South China Sea

Jan 22. 2013
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By Termsak Chalermpalanupap

The new Asean secretary-general, former deputy foreign minister Le Luong Minh of Vietnam, mentioned in his inaugural speech at the transfer-of-office ceremony at the Asean Secretariat on January 9, that "Asean should speed up efforts towards an early star


What can the secretary-general do when China is not ready for any formal discussion on the drafting of a Code of Conduct? 
A short answer to the above question is: not much. And the fact that he is a former deputy foreign minister of Vietnam, and that his country is deeply involved in disputes over islands in the South China Sea, is actually immaterial.
The main Asean-China mechanism to discuss South China Sea issues is the Asean-China Senior Officials Meeting (SOM) on the Declaration on the Conduct of Parties in the South China Sea (DOC). The Asean Secretariat is normally represented by the deputy secretary-general in charge of the Asean Political-Security Community Department (APSC); the post is held by Ambassador Nyan Lynn from Myanmar.   
The Asean-China SOM on the DOC is now co-chaired by Thailand and China. Thailand is the country coordinator for the Asean strategic dialogue partnership with China, from July 2012- June 2014. Vietnam, the previous country coordinator, hosted the last Asean-China SOM on the DOC in Hanoi on June 25 last year. It is China’s turn to host the next meeting. So far the Chinese have not indicated when and where to meet.
At the working level, there is the Asean-China Joint Working Group on the DOC. The Asean Secretariat is normally represented by the director of the Asean Political-Security Directorate (the post this author used to hold). The last meeting of the Joint Working Group was held in Beijing on January 13 last year. Hence it is Asean’s turn to host the next one. Thailand reportedly is considering convening a meeting of the Joint Working Group in the first quarter of 2013. If and when Asean and China can agree, the drafting of a Code of Conduct will most probably be done in the Joint Working Group.
Asean senior officials and their Chinese counterparts also meet regularly under the Asean-China Senior Officials Consultation (SOC). They may discuss South China Sea issues in addition to other political-security issues of common interest. At the meeting, the Asean Secretariat is also represented by the deputy secretary-general of the APSC. It is also co-chaired by the country coordinator (Thailand) and China. China reportedly plans to host the next Asean-China SOM consultation from March 20-21. If it takes place, this might be the first opportunity for Asean to find out whether there will be any change in the Chinese position on the South China Sea, particularly on the drafting of a Code of Conduct.  
The Asean secretary-general normally does not attend meetings of senior officials; he attends ministerial meetings and Asean summits. Asean foreign ministers meet their Chinese counterpart for the annual Asean-China Post Ministerial Conference, back to back with the annual Asean Minister’s Meeting AMM proper. This year Brunei will host the meeting in Bandar Seri Begawan, the 46th AMM, earlier than usual, from June 24-27, mainly because Ramadan this year will be in July. In such a ministerial meeting with China, the foreign minister of the Asean Country Coordinator (Thailand) co-chairs with his counterpart from China.   
One important point to bear in mind is that the new Asean secretary-general is not expected to speak for Vietnam. Doing so will erode his credibility, because under the Asean Charter’s Article 11 Paragraph 8(b), he and his staff at the Asean Secretariat shall “not seek or receive instructions from any government or external party outside of Asean”. And in Paragraph 8(c), he and his staff shall “refrain from any action that might reflect on their position as Asean Secretariat officials responsible only to Asean.”   
On the other hand, Asean member states are obliged under Article 11 Paragraph 9 of the Asean Charter “to respect the exclusively Asean character of the responsibilities of the secretary-general and the staff, and not to seek to influence them in the discharge of their responsibilities”. 
Minh’s predecessor is Thailand’s former foreign minister Dr Surin Pitsuwan, who completed his five-year term as Asean secretary-general at the end of last December. Dr Surin didn’t have any significant say in the Thai-Cambodian border dispute over Preah vihear Temple and related skirmishes. Cambodia went straight to Indonesia, which was chairing Asean in 2011, and later to the UN Security Council, when Thai-Cambodian tensions escalated to bloody skirmishes.  
When Asean foreign ministers bogged down in serious differences over what to include in their discussion on the South China Sea and what to omit from a draft joint communique during the 45th Asean Foreign Ministers Meeting in Phnom Penh last July, Dr Surin couldn’t find any “space” to defend Asean interests either. Unfortunately, the unprecedented failure to issue a joint communique at the end of the 45th AMM clearly damaged Asean interests and tarnished the reputation of the AMM.
Can Minh, who is a career diplomat but not a politician, find new political “space” and do any better than Dr Surin in such a difficult situation? How to move China when the country still sees the conditions are not yet ripe to start formal discussion with Asean on the drafting of a Code of Conduct?
A better and more realistic way forward for the new Asean secretary-general is to support Thailand, as the country coordinator of the Asean-China strategic dialogue partnership, to push for comprehensive implementation of DOC projects to rebuild Asean-Chinese mutual confidence in the South China Sea. Drafting a Code of Conduct will have to wait until the Chinese are ready.
Termsak Chalermpalanupap is a visiting research fellow at the Asean Studies Centre, ISEAS, Singapore. This is the conclusion of a three-part series.

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