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South China Sea Code of Conduct framework quiet on issues China resents

An agreed framework of a regional code of conduct between the Association of Southeast Asian Nations and China does not say if it is legally binding and does not mention other thorny issues that Beijing opposes in a multinational arena, according to the final document to be approved by ASEAN and Chinese foreign ministers in Manila this week.

The framework, which will shape negotiations for a code of conduct, is one of the most important documents to be tackled in the ASEAN Foreign Ministers’ annual conference in Manila from Aug. 2 to 8.

In the two-page framework obtained by GMA News Online, the document envisions the code of conduct to be a “rules-based framework containing a set of norms to guide the parties and promote maritime cooperation in the South China Sea.”

It stressed that the code of conduct “is not an instrument to settle territorial disputes or maritime delimitation issues.”

A code of conduct, the framework added, should promote “mutual trust, cooperation and confidence, prevent incidents, manage incidents should they occur and create a favorable environment for the peaceful resolution of disputes.”

It should also “ensure maritime security and safety and freedom of navigation and overflight.”

The framework, seen as a significant step towards the achievement of a regional code of conduct and in reducing tensions in the South China Sea, will be endorsed by the foreign ministers of ASEAN and China during their meeting on Sunday.

ASEAN has long held the position that the code of conduct must be legally-binding, but China opposes this. It is not clear how this basic difference will affect progress of future efforts by both sides to negotiate the code.

Philippine Foreign Secretary Alan Peter Cayetano earlier hinted that he is open to an accord that is not legally binding if it will expedite the negotiations.

“We push for the legally binding but we also open up our minds to anything that will move us forward,” he told a news conference last week.

“Because if we go backwards, we have instability. Of course everyone will prefer the stronger one, but how to get there is not that simple.”

A regional code of conduct aims to prevent conflicting territorial claims in the vast potentially-oil rich region from erupting into violent confrontations or worse, an economically-devastating major conflict. But efforts to finalize the pact have dragged on for 15 years.

Finalizing the code has acquired urgency due to a series of confrontations between China and its smaller Southeast Asian neighbors with competing claims to the waters, like the Philippines and Vietnam. Other claimants are Malaysia, Brunei and Taiwan.

In place of a legally-binding code, China and ASEAN, which groups the Philippines, Singapore, Vietnam, Thailand, Indonesia, Malaysia, Brunei, Cambodia, Myanmar and Laos, settled for a mere declaration in 2002 that calls on claimants to exercise restraint and stop new occupation in the South China Sea.

However, its non-binding nature and lack of provision to sanction misbehaving claimants renders the accord useless against aggression.

South China Sea expert Carl Thayer, professor emeritus at the University of New South Wales—Australian Defense Force Academy, said a non-binding code of conduct would be “meaningless.”

“A non-legally binding COC would be a political agreement much like the 2002 Declaration on the Conduct Parties or DOC in the South China Sea. A non-binding COC would be a disaster of the first order. China would keep pushing and ASEAN claimant states would be left with no option but to capitulate,” he said.

Thayer also pointed out that the framework does not mention the geographic area of coverage.

The framework only said it wants the code to commit to the “purposes and principles of the Charter of the United Nations, the 1982 UN Convention on the Law of the Sea (UNCLOS), the Treaty of amity and Cooperation (TAC), the Five Principles of Peaceful Coexistence, and other universally recognized principles of international law.

It also expressed its commitment to the full and effective implementation of the DOC.

The framework also mentioned “respect for each other’s independence, sovereignty and territorial integrity in accordance with international law, and the principle of non-interference in the internal affairs of other states.”

To prevent incidents, the framework has recommended to put in place confidence-building measures and hotlines. 

University of the Philippines Institute for Maritime Affairs and Law of the Sea director Jay Batongbacal said he does not see the code of conduct framework making a significant impact on the South China Sea disputes.

“The only thing it will do, however, is to create this atmosphere which we hope in the future will enable parties to continue talking and finding a negotiated solution in the future,” he said. 

Before ASEAN and China arrived at a final framework, some countries proposed the inclusion of some phrases and paragraphs “that did not enjoy consensus,” a summary record of their discussions seen by GMA News Online said.

The Philippines, according to the document, proposed to amend a paragraph in the draft framework to read: “To ensure maritime security and safety and freedom of navigation and overflight, international commerce and other peaceful uses.”

It also initially proposed to include a “system of notification” and “SOPs” on air and sea safety.

Vietnam, on the other hand, proposed to include a reference "to make South China Sea a sea of peace, stability, friendship and cooperation.”

It also proposed to change a paragraph in the framework to read: “Respect for each other’s independence, sovereignty, sovereign rights and jurisdiction and territorial integrity in accordance with international law, including the 1982 UNCLOS and the principle of non-interference in the internal affairs of other states.”

Hanoi likewise wants to include a reference on “promotion of practical maritime cooperation on the basis of consent of all parties concerned.”

It also proposed an additional clause on “Dispute settlement mechanism concerning the interpretation and application of the COC.”

During the discussions, ASEAN and China have agreed on a “clean text” by “only inserting elements that were approved by consensus.”

All parties agreed that the current topics of the framework “were broad enough to allow all issues falling under them to be further discussed at the next stage of the COC negotiations” after it is endorsed by the ASEAN and Chinese leaders in a summit to be hosted by the Philippines in November this year. —KG, GMA News