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Carpio: China may use sea Code of Conduct to replace UN dispute mechanism

Senior Associate Justice Antonio Carpio on Wednesday warned that China may use the proposed code of conduct in the South China Sea to replace the United Nations’ dispute settlement mechanism on maritime claims.

Carpio said parties negotiating the code should be vigilant and cautioned them against falling into China’s “trap,” which seeks to jeopardize the claims of smaller states, such as the Philippines.

“We should be careful because if we fall into the trap that we have to settle the merits of the dispute in accordance to the code of conduct,” Carpio told local journalists at a maritime seminar organized by the US Embassy in Manila.

“I think China wants to draw us into the code of conduct to replace the UN dispute settlement mechanism,” said Carpio, one of the senior government officials who led efforts to bring the country's disputes with China to international arbitration in 2013. The Philippines won the case in 2016 after the court invalidated China's sweeping claim over the resource-rich South China Sea.

“China has a veto power. It’s not arbitration. We need the consent of China,” Carpio said.

“We must be careful that the code of conduct will not supplant the dispute settlement mechanism of the United Nations Convention on the Law of the Sea.”

Carpio dubbed the 1982 treaty, also known by its acronym UNCLOS, as “the best dispute settlement mechanism in the world.”

“Proof is we won against China, a nuclear armed power. That is where we can win, where there is level-playing field because in the code of conduct, it is by consensus. China will not just agree,” he said.

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.

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.

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

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

Although the code of conduct being hammered out by ASEAN and China will not resolve the disputes, Professor Julian Ku of Hofstra University School of Law, believes the document could manage the territorial row.

However, Ku noted the importance of having a legally-binding code, a proposal that has been rejected by China. 

“If it is legally-binding, it is a more credible commitment by signing or ratifying it. In this situation, legally-binding is an important signal on how serious the country takes this commitment. It makes a difference,” he said.

Chinese officials have repeatedly said they want the code completed in three years.

Carpio said three years will give China enough time to reclaim Scarborough Shoal, which was seized by Beijing from Manila in 2012 after a standoff. Since then, China has beefed up the reclamation of several rocky outcrops it claims in the South China Sea, fortified it, and transformed it into Chinese military bases, except Scarborough.

He warned that Duterte’s soft approach to China will further embolden it to reclaim the Philippine-claimed shoal off the Philippines' southwestern waters.

“My take is they will try to reclaim Scarborough in three years’ time,” Carpio said. “Why during the time of Duterte? Because the President said, ‘ I cannot stop China.’  So if China will dredge today, he will not send a navy ship or coast guard ship to stop it.”

If no Philippine vessel is attacked, Carpio said the country can not invoke its Mutual Defense Treaty with the United States.

The 68-year-old treaty binds Washington to defend the Philippines from aggression.

“But the Chinese are probably confident that he will not send a navy or coast guard vessel so there will be no armed attack. Reclamation will be completed and that’s it. You cannot tell the Americans later on because we did not do our part,” Carpio said. — RSJ, GMA News