Thayer Consultancy Background Brief

ABN # 65 648 097 123

South China Sea: Zero Draft of
Chairman’s Statement 32nd
ASEAN Summit
April 27, 2018

The Association of Southeast Asian Nations (ASEAN) convened its 32nd Summit in
Singapore on 28 April. This Background Brief examines the South China Sea section of
the Zero Draft of Chairman’s Statement of 32nd ASEAN Summit (20 April). See
Appendix for a copy of the text.
The Zero Draft Statement is divided into four major sections, Key Deliverables,
ASEAN’s External Relations, Regional and International Issues and Developments, and
Other Matters.
Of the twenty-five points in the Zero Draft seven are devoted to the South China Sea.
The Preamble touches indirectly on the South China Sea. It states that ASEAN leaders
reaffirmed their “full respect for legal and diplomatic processes, without resorting to
the threat or use of force, in accordance with universally recognised principles of
international law” including the 1982 United Nations Convention on the Law of the
Sea (UNCLOS).
In August 2016, after the Arbitral Tribunal Award in the case brought by the Philippines
against China, ASEAN adopted the expression “legal and diplomatic processes” to
avoid incurring China’s wrath by directly mentioning the Arbitral Tribunal’s decision.
ASEAN inserted this phrase in the opening section of the ASEAN Chair’s statement to
emphasize its importance but not in the South China Sea section.
Since the 2016, ASEAN has used the circumlocution “legal and diplomatic processes”
to refer to the Arbitral Tribunal.
The Zero Draft of Chairman’s Statement included a consolidation of the interventions
by member states indicating their support, rejection or other comments on the
wording. The seven points related to the South China Sea, for example contain sixteen
annotations from six of ASEAN’s ten members.
Cambodia tops the list with seven interventions or nearly forty-four percent of the
total followed by the Philippines with three interventions, Malaysia and Vietnam with
two each, and Indonesia and Singapore only one intervention each. There were no
comments by Brunei, Laos, Myanmar, or Thailand.
Of the seven South China Sea related-points, only three, points 14, 19 and 20, were
left unchallenged.
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Point 14, the longest to address the South China Sea, largely repeats past ASEAN
policy. Point 14 reaffirmed the importance of freedom of navigation, the full
implementation of the Declaration on Conduct of Parties in the South China Sea (DOC),
and “warmly welcomed the improving cooperation between ASEAN and China, and
were encouraged by the official commencement of the substantive negotiations
towards the early conclusion of an effective COC (Code of Conduct) on a mutually-
agreed timeline.”
Point 14 also welcomed practical measures such as the hotline between the foreign
ministries of China and ASEAN members, and the operationalization of the Code for
Unplanned Encounters at Sea (CUES.”
Point 14 “took note of the concerns expressed by some Leaders on the land
reclamations and activities in the region, which have eroded trust and confidence,
increased tensions and may undermine peace, security and stability in the region.’ This
is a repeat of past ASEAN statements.
Finally, Point 14 “emphasised the importance of non-militarisation and self-restraint
in the conduct of all activities by claimant and all other states, including those
mentioned in the DOC that could further complicate the situation and escalate
tensions in the South China Sea.” The DOC mentions ASEAN member states and China.
Point 15 refers to “candid discussions” on the South China Sea and expresses serious
concern “over recent and ongoing developments, including large scale/all land
reclamations and militarization in the area. Cambodia and Malaysia requested that
the words in italics be deleted.
In the following sentence the Philippines requested the insertion of the words in
italics: “We took note of serious concerns expressed by some Ministers on land
reclamations and escalation of activities in the area, massive island building,
construction of outposts, and deployment of military assets in the disputed areas...”
Cambodia moved to retain the original wording. In other words Cambodia sought to
water down the language.
Point 16 reaffirmed “the importance of maintaining and promoting peace, security,
stability, safety and freedom of navigation in and over-flight above the South China
Sea.” Cambodia queried the word safety and stated it would get back on that point.
Point 16 next called for “full respect for legal and diplomatic processes.” Cambodia
called for this wording to be deleted, while Indonesia, Malaysia, Philippines, Singapore
and Vietnam called for its retention. If this wording is retained, it would represent a
change in ASEAN policy and link the South China Sea disputes to the arbitral process,
if only indirectly.
In Point 17 Cambodia queried the following words in italics and stated it would get
back, “We emphasized the importance of non-militarisation and self-restraint in the
conduct of activities, including land reclamation that could further complicate the
situation and disputes or escalate tensions in the South China Sea.” Cambodia holds
that ASEAN has no direct role and disputes should be settled bilaterally.
The Philippines and Vietnam requested that the following words (in italics) be inserted
in the text as follows, “We articulated ASEAN’s commitment to full respect for legal
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and diplomatic processes. In this regard, we welcomed the issuance of the 12 July
award by the Arbitral Tribunal constituted under Annex VII to the UNCLOS.” The
intervention by the Philippines is notable since President Duterte has declared he
would not press China on the implementation of the Award. Vietnam’s support for the
inclusion of this wording was characterized as contentious in a private communication
to the author by a well-informed observer.
Finally, Cambodia queried Point 18 in its entirety and stated it would get back. Point
18 in the draft reads, “We highlighted the urgency to intensify efforts to achieve
further substantive progress in the implementation of the DOC in its entirety,
particularly Articles 4 and 5 as well as substantive negotiations for the early conclusion
of the COC including the outline and time line of the COC.
Article 4 calls for the resolution of territorial disputes by peaceful means without the
resort to the threat of force through consultations and negotiations by the parties
directly concerned on the basis of international law and UNCLOS.
Article 5 calls for the parties to exercise self-restraint in activities “that would
complicate or escalate disputes and affect peace and stability…”
Points 19 and 20 of the Zero Draft were uncontested. Point 19 stressed the importance
of confidence building and preventive measures during the implementation of the
DOC “in its entirety” and “early adoption of an effective COC.”
Point 20 reiterated the need to establish hotlines between ministries of foreign affairs
to deal with maritime emergencies and welcomed the adoption of the joint statement
on the observance of CUES.
The Zero Draft of Chairman’s Statement of 32nd ASEAN Summit (20 April) provides a
baseline to analyze the final ASEAN Chair’s Statement issued on 28 April the subject
of a separate Background Brief.

Suggested citation: Carlyle A. Thayer, “South China Sea: Zero Draft of Chairman’s
Statement 32nd ASEAN Summit,” Thayer Consultancy Background Brief, April 27, 2018.
All background briefs are posted on Scribd.com (search for Thayer). To remove
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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.
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APPENDIX

ZERO DRAFT OF CHAIRMAN’S STATEMENT OF 32ND ASEAN

SUMMIT
(20 April consolidated SCS paragraph – AMS)

1. We, the Heads of State/Government of ASEAN Member States,

gathered in Singapore for the 32nd ASEAN Summit on 28 April
2018. We had candid and constructive discussions on how to build
a resilient and innovative ASEAN, amidst the fast-paced
developments taking place in Southeast Asia and the world today.

2. We reaffirmed the importance of maintaining ASEAN Centrality

and unity in ASEAN’s Community-building efforts and engagement
of external partners. We welcomed initiatives that would serve to
reinforce an ASEAN-centric regional architecture that is open,
transparent, inclusive, and would build upon ASEAN-led
mechanisms including the ASEAN Plus One, ASEAN Plus Three,
East Asia Summit, ASEAN Regional Forum, and ASEAN Defense
Ministers’ Meeting Plus.

3. We reaffirmed our shared commitment to maintaining and

promoting peace, security and stability in the region, as well as to
the peaceful resolution of disputes, including full respect for legal
and diplomatic processes, without resorting to the threat or use of
force, in accordance with the universally recognised principles of
international law, including the 1982 United Nations Convention on
the Law of the Sea (UNCLOS).

KEY DELIVERABLES

4. We adopted the ASEAN Leaders' Vision for a Resilient and

Innovative ASEAN, as an articulation of ASEAN’s strategic position
and intent in the context of a shifting geopolitical and economic
landscape. We reaffirmed ASEAN’s commitment to foundational
principles enshrined in the ASEAN Charter, the Treaty of Amity and
Cooperation in Southeast Asia (TAC) and the ASEAN Community
Vision 2025. We agreed on the initiatives which ASEAN will
undertake across its three pillars during Singapore’s ASEAN
Chairmanship this year, in response to current and emerging
challenges.
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5. We agreed on the growing importance for ASEAN Member States

to leverage on innovation and technology to improve the lives of our
people. In this regard, we agreed to establish an ASEAN Smart
Cities Network (ASCN) to synergise development efforts, share best
practices, and catalyse more opportunities for growth, innovation,
capacity-building and sustainable development. We are also pleased
to note that the list of 26 ASCN ‘pilot cities’ has been finalised.

ASEAN Political-Security Community

6. We adopted the ASEAN Leaders’ Statement on Cybersecurity

Cooperation in recognition of the growing urgency and
sophistication of transboundary cyber threats. We tasked relevant
Ministers from all ASEAN Member States to closely consider and
recommend feasible options of coordinating cybersecurity policy,
diplomacy, cooperation, technical and capacity building efforts
among various platforms of the three pillars of ASEAN. We further
tasked relevant Ministers from all ASEAN Member States to make
progress on discussions by ASEAN Information and
Communications Technology (ICT) and Cybersecurity Ministers at
the ASEAN Ministerial Conference on Cybersecurity (AMCC),
ASEAN Telecommunications and Information Technology
Ministers’ Meeting (TELMIN), as well as other relevant sectoral
bodies such as the ASEAN Ministerial Meeting on Transnational
Crime (AMMTC), to identify a concrete list of voluntary, practical
norms of State behaviour in cyberspace that ASEAN can work
towards adopting and implementing. We also discussed the need for
enhanced regional cooperation in countering terrorism and
preventing violent extremism, and noted the Joint Statement by the
ASEAN Defence Ministers on Countering Terrorism in ASEAN on
8 February 2018.

7. We welcomed the finalisation of the text of the Model ASEAN

Extradition Treaty at the 8th meeting of the ASEAN Senior Law
Officials Meeting (ASLOM) Working Group on the Model ASEAN
Extradition Treaty in Bangkok from 26 to 28 March 2018. We
looked forward to the draft text of the Model ASEAN Extradition
Treaty being endorsed by the Law Ministers at the upcoming
ASEAN Law Ministers Meeting (ALAWMM) in Vientiane in
October 2018. We noted that work could commence on an ASEAN
Extradition Treaty as a next step, to strengthen ASEAN’s resilience
and capacity to combat transnational crime, and to enhance
cooperation within ASEAN to ensure respect for the rule of law.
 6

ASEAN Economic Community

8. We applauded the economic thrusts identified by Singapore for

2018, i.e. promoting innovation and e-commerce; improving trade
facilitation; deepening services and investment integration;
cultivating a conducive regulatory environment; progressing
ASEAN’s external relations and acknowledged their potential
contribution to a stronger ASEAN Economic Community. We
welcomed the early adoption of the ASEAN Joint Declaration on
Cruise Tourism, and recognised the good momentum this provides
towards realising the other priority economic deliverables for the
year. We commended our officials for intensifying work on trade
facilitation. In particular, we welcomed the live operation of the
ASEAN Single Window (ASW), which includes, among its feature,
the readiness of five ASEAN Member States, namely Indonesia,
Malaysia, Singapore, Thailand and Viet Nam, to exchange the e-
ATIGA Form D beginning 1 January 2018. We encouraged the
remaining ASEAN Member States to exert efforts to implementing
the e-ATIGA Form D and also look forward to the expansion of the
ASW to include other customs and trade-related documents. We
also noted the targeted implementation of the ASEAN-wide Self
Certification Scheme within the year. We welcomed the proposed
study on the feasibility of the implementation of an ASEAN-wide
Mutual Recognition Agreement on Authorised Economic Operators.
On services, we look forward to the signing of the Protocol to
Implement the 10th Package of Commitments under the ASEAN
Framework Agreement on Services (AFAS) this year. We noted
with appreciation the significant progress made in the negotiations
for the ASEAN Trade in Services Agreement (ATISA), and look
forward the signing of the Agreement this year.

9. Recognising the importance of capitalising on the opportunities

presented by the digital age, and the need to promote cross-border
electronic commerce (e-Commerce) in the region, we are also
pleased with the progress made so far in concluding negotiations for
an ASEAN Agreement on Electronic Commerce and look forward
to its signing this year. We noted the initiative to develop the
ASEAN Digital Integration Framework to monitor the progress of
ASEAN’s digital integration. We also welcomed the initiative to
develop the ASEAN Innovation Network, which aims to strengthen
 7

linkages between innovation ecosystems to spark new collaborations

and solutions, and address the demand from the increasingly
sophisticated and growing consumer base in the region. We tasked
officials to continue efforts to better prepare the AEC for the digital
age including through strengthening cross-sectoral coordination in
the implementation of the ASEAN Work Programme on Electronic
Commerce 2017-2025. We also welcomed the Leaders’
announcement at the ASEAN-Australia Special Summit on 18
March 2018 on the ASEAN-Australia Digital Trade Standards
Cooperation Initiative, and tasked our officials to discuss and
finalise the details of this initiative in a timely manner.

ASEAN Socio-Cultural Community

10. We welcomed the revitalisation of the Singapore-ASEAN Youth

Fund to support ground-up initiatives by ASEAN youths, and noted
the Regional Action Plan of the Vientiane Declaration on the
Transition from Informal Employment to Formal Employment
towards Decent Work Promotion in ASEAN. We also expressed
support for Singapore’s other priority areas under the ASCC pillar,
including hosting the first ASEAN eSports tournament, introducing
an ASEAN Youth Fellowship programme, strengthening ASEAN’s
commitment to addressing climate change, affirming the importance
of digital literacy and cyber wellness, and developing a more
socially responsible media in ASEAN. We reiterated the need to
institutionalise a culture of prevention to address the root causes of
social issues, and called on all sectors from the three pillars to
continue discussions to advance the culture of prevention.

11. We recalled the signing of the ASEAN Consensus on the Protection

and Promotion of the Rights of Migrant Workers and the adoption
of the ASEAN Leaders Declaration on Antimicrobial Resistance at
the 31st ASEAN Summit in Manila, and noted ongoing efforts by
ASEAN to deepen cooperation in both areas. We noted with
satisfaction ongoing efforts to promote complementarities between
the ASEAN Community Vision 2025 and the United Nations 2030
Agenda for Sustainable Development. We acknowledged the
progress made in addressing transboundary haze pollution, and
agreed on the need to remain vigilant.

ASEAN’S EXTERNAL RELATIONS

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12. We reaffirmed the important role of the ASEAN Plus Three (APT)
cooperation framework in promoting peace, security, stability and
prosperity in East Asia. We agreed to further strengthen the East
Asia Summit (EAS) as a Leaders-led forum for dialogue and
cooperation on broad strategic, political, economic and sociocultural
issues of common concern. We welcomed the commemoration of
the 25th anniversary of the ASEAN Regional Forum (ARF) this year,
and the strengthening of its role as an inclusive forum in the Asia-
Pacific region for fostering constructive dialogue and cooperation on
political and security issues of common concern.

13. We took stock of ASEAN’s relations with external partners, and

discussed ways to expand and deepen our external engagement. We
welcomed the successful convening of the ASEAN-India
Commemorative Summit in New Delhi on 25 January 2018 and the
ASEAN-Australia Special Summit in Sydney on 18 March 2018.
We looked forward to the commemoration of the 15th Anniversary
of ASEAN-China Strategic Partnership and 45th Anniversary of
ASEAN-Japan Dialogue Relations, which will add momentum to
strengthen these partnerships.

REGIONAL AND INTERNATIONAL ISSUES AND

DEVELOPMENTS

14. We reaffirmed the importance of maintaining and promoting peace,

security, stability, safety and freedom of navigation in and overflight
above the South China Sea and recognised the benefits of having the
South China Sea as a sea of peace, stability and prosperity. We
underscored the importance of the full and effective implementation
of the 2002 Declaration on the Conduct of Parties in the South China
Sea (DOC) in its entirety, warmly welcomed the improving
cooperation between ASEAN and China and were encouraged by
the official commencement of the substantive negotiations towards
the early conclusion of an effective COC on a mutually-agreed
timeline. We welcomed practical measures that could reduce
tensions, and the risks of accidents, misunderstandings and
miscalculation, such as the successful testing of the ASEAN
Member States and China MFA-to-MFA hotline to manage
maritime emergencies in the South China Sea, and the
operationalisation of the Joint Statement on the Application of the
Code for Unplanned Encounters at Sea (CUES) in the South China
Sea adopted on 7 September 2016. We discussed the matters
relating to the South China Sea and took note of the concerns
 9

expressed by some Leaders on the land reclamations and activities

in the area, which have eroded trust and confidence, increased
tensions and may undermine peace, security and stability in the
region. We reaffirmed the need to enhance mutual trust and
confidence, exercise self-restraint in the conduct of activities and
avoid actions that may further complicate the situation, and pursue
peaceful resolution of disputes in accordance with international law,
including the 1982 UNCLOS. We emphasised the importance of
non-militarisation and self-restraint in the conduct of all activities by
claimants and all other states, including those mentioned in the DOC
that could further complicate the situation and escalate tensions in
the South China Sea.

15. We had a candid discussion on the matters relating to the South

China Sea and remained seriously concerned over recent and
ongoing developments, [including large scale/all land reclamations
and militarisation] (MY and CA to delete) in the area. We took note
of the [serious] concerns expressed by some Ministers on land
reclamations and escalation of activities in the area, (CA to retain)
[massive] island building, construction of outposts, and deployment
of military assets in the disputed areas (PH), which have eroded trust
and confidence, increased tensions and may undermine peace,
security and stability in the region.

16. We reaffirmed the importance of maintaining and promoting peace,

security, stability, [safety] (CA to get back) and freedom of
navigation in and over - flight above the South China Sea, in
accordance with universally recognised principles of international
law including the 1982 United Nations Convention on the Law of
the Sea (UNCLOS). We emphasised the need to enhance mutual
trust and confidence, as well as to pursue the peaceful resolution of
disputes, [including full respect for legal and diplomatic processes],
(CA to delete) (ID, MY, PH, VN and SG to retain), without
resorting to the threat or use of force, in accordance with universally
recognised principles of international law, including the 1982
UNCLOS and the UN Charter.

17. We emphasised the importance of non-militarisation and self-

restraint in the conduct of all activities, [including land reclamation]
(CA to get back) that could further complicate the situation and
[disputes] (CA to get back) or escalate tensions in the South China
Sea. We articulated ASEAN’s commitment to full respect for legal
and diplomatic processes. [In this regard, we welcomed the
 10

issuance of the 12 July award by the Arbitral Tribunal

constituted under Annex VII to the UNCLOS.] (PH and VN).
We underscored the importance of the full and effective
implementation of the Declaration on the Conduct of Parties in the
South China Sea (DOC) in its entirety, and while noting the
momentum and new phase of consultations, urged all parties to work
expeditiously for the early adoption of an effective Code of Conduct
(COC), including through increasing the frequency of ASEAN-
China Senior Officials’ Meetings and Joint Working Group
Meetings on the Implementation of the DOC.

18. We highlighted the urgency to intensify efforts to achieve

further substantive progress in the implementation of the DOC
in its entirety, particularly Articles 4 and 5 as well as substantive
negotiations for the early conclusion of the COC including the
outline and timeline of the COC. (CA to get back)

19. Pursuant to the full and effective implementation of the DOC in its
entirety, and pending the early adoption of an effective COC, we
stressed the importance of undertaking confidence building and
preventive measures to enhance, among others, trust and confidence
amongst parties.

20. We reiterated the need to establish the MFA-to-MFA hotline to

manage maritime emergencies in the South China Sea. We welcome
the adoption of a joint statement on the observance of the Code for
Unplanned Encounters at Sea (CUES) in the South China Sea. In our
view, these are practical measures that could reduce tensions, and
the risks of accidents, misunderstandings and miscalculation.

21. We welcomed [the Inter-Korean Summit (TBC)], the recent visit of

Democratic People’s Republic of Korea (DPRK) leader Kim Jong
Un to China, the announcement of plans for a meeting between U.S.
President Donald Trump and DPRK leader Kim in the near future,
as well as efforts by the Republic of Korea and all concerned parties
to reduce tensions and work towards a peaceful resolution of the
situation on the Korean Peninsula. We also noted the DPRK’s
reported commitment to denuclearisation and its pledge to refrain
from further nuclear and missile tests during this period. We
reiterated our support for international efforts to bring about the
complete, verifiable, and irreversible denuclearisation of the Korean
Peninsula in a peaceful manner and expressed hope for a peaceful
and amicable resolution to the issue.
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22. Notwithstanding the uncertainties surrounding global economic

recovery, the rising trends of protectionism, and global policy
uncertainties, we reiterated our strong commitment to open and
inclusive regionalism, free and open markets and underscored the
critical importance of the rules-based multilateral trading system.

OTHER MATTERS

23. We discussed [and received a briefing from Myanmar on (TBC)] the

humanitarian situation in Rakhine State.  We expressed continued
support for Myanmar’s humanitarian relief programme in Rakhine
State and welcomed the ASEAN Coordinating Centre for
Humanitarian Assistance on disaster management (AHA Centre)’s
ongoing work with the Myanmar Government-led mechanism to
deliver humanitarian assistance to all displaced persons without
discrimination.  We welcomed the Arrangement on Return of
Displaced Persons from Rakhine State between Myanmar and
Bangladesh signed on 23 November 2017.  We also looked forward
to the expeditious commencement of the voluntary return of
displaced persons to Myanmar in a safe, secure and dignified way
without undue delay, and stressed the need to find a comprehensive
and durable solution to address the root causes of the conflict and to
create a conducive environment so that the affected communities can
rebuild their lives.  We urged Myanmar to continue to implement the
recommendations of the final report of the Advisory Commission on
Rakhine State and welcomed the establishment of the Advisory
Board for the implementation of the recommendations
on Rakhine State led in his individual
capacity by Prof. Dr. Surakiart Sathirathai, former Deputy Prime
Minister and Minister of Foreign Affairs of Thailand.  We expressed
our support for the Myanmar Government in its efforts to bring
peace, stability, the rule of law, to promote harmony and
reconciliation among the various communities, as well as to
ensure sustainable and equitable development in Rakhine State.

24. We welcomed the good progress in the implementation of the

Initiative for ASEAN Integration (IAI) Work Plan III to assist
CLMV countries in meeting ASEAN-wide targets and in narrowing
the development gap within ASEAN.

25. We noted the importance of enhancing ASEAN Connectivity to

build a more competitive, resilient and integrated ASEAN
 12

Community, and valued the continued efforts by the ASEAN

Connectivity Coordinating Committee (ACCC), National
Coordinators (NCs), National Focal Points (NFPs) and relevant
ASEAN Sectoral Bodies to implement the initiatives of the Master
Plan on ASEAN Connectivity (MPAC) 2025. We also welcomed
the establishment of the Lead Implementing Body for Sustainable
Infrastructure in March 2018, to spearhead sustainable infrastructure
development in the region. We further welcomed: (a) the launch of
an initial list of potential priority infrastructure projects; (b) a study
to advance sustainable urbanisation in ASEAN which would
complement the ASCN; and (c) a review of how micro, small, and
medium-sized enterprises are responding to challenges posed by the
digital economy.