Framework may lead to SCS code 'no different' from 2002 declaration: analyst

Tarra Quismundo, ABS-CBN News

Posted at Aug 05 2017 12:00 AM

But DFA says wait for the negotiated code of conduct 

MANILA- It may not be an upgrade after all. 

The framework for a Code of Conduct (COC) envisioned to govern the disputed South China Sea may lead to a document “no different” from the 2002 non-binding declaration that has failed to prevent tensions in the area, said Jay Batongbacal, director of the University of the Philippines Institute for Maritime Affairs and Law of the Sea. 

“Such an agreement is only a political statement and does not create any binding commitment beyond the parties’ intentions and actual actions. It will be no different from the 2002 DOC (Declaration on the Conduct of Parties in the South China Sea) in addressing the South China Sea tensions,” Batongbacal told ABS-CBN News. 

As an outline upon which ASEAN and China must build the sea code, Batongbacal said the framework “does not have any substantive provisions” yet: “no rules, no dos and don’ts”

The 2002 declaration, signed by ASEAN member-states and China committing to self-restraint and freedom of navigation in the waters, “has done little” to address security problems in the disputed waters, given “unilateral actions by claimants,” he said. 

“It brought a sense of calm that was very quickly broken once parties disregarded it,” Batongbacal said. 

In meetings in Manila this weekend, foreign ministers of the ASEAN and China are set to endorse the COC framework, where the parties are expected to agree to "ensure maritime security and safety" and "freedom of navigation and overflight" in the critical waterway where about $5 trillion in goods pass through annually.

Four ASEAN members--the Philippines, Vietnam, Malaysia and Brunei--have claims that overlap with China’s expansive nine-dash line, which lays ownership over nearly all of the resource-rich waters. 

The framework endorsement comes as one of the highlights of the Philippines’ first ASEAN chairmanship under the Duterte administration, which has pursued efforts to enhance the country’s ties with China, setting aside the sea dispute while it received funding support from Asia’s largest economy. 

But the framework may lead to a code of conduct that would be “neither binding nor enforceable” and is not expected to seek adherence to the United Nations Convention on the Law of the Sea (UNCLOS), Reuters reported Thursday.

The outline to be endorsed was the result of a meeting between senior ASEAN and Chinese officials in the southwestern province of Guizhou in May, following more than a decade of negotiations.

As to why the ASEAN agreed on a seemingly watered-down framework, Batongbacal cited several factors. 

“Due to a combination of the ASEAN’s inability to come to clear consensus, China’s perceived power, fear of economic consequences, failure of the US to give strong credible guarantees, individual leadership perceptions. Each country would have different reasons,” he said.


Former Foreign Affairs Secretary Albert del Rosario said the Philippines’ July 2016 international arbitration victory over China should be mentioned in the code once the document is drafted out of the agreed framework.

“The arbitral outcome is now an integral part of international law. As such, it should be included as a major element of the COC, which is intended to promote the rule of law,” said Del Rosario when reached for comment. 

“Our region cannot benefit from promoting the rule of law while ignoring the law as it stands,” he said. 

It was during Del Rosario’s time that the Philippines initiated a legal case against China before the United Nations arbitral tribunal in January 2013. 

China has ignored the ruling that invalidated its sweeping claims over almost the entire South China Sea, instead stepping up island-building and militarization activities despite the disputes. It has reclaimed and fortified seven reefs in the disputed waters.

In a joint statement following the ASEAN Summit in Manila in April, the region’s leaders did not touch on the Philippines’ arbitral victory and China’s militarization of the South China Sea. 


Reached for comment, Foreign Affairs spokesperson Robespierre Bolivar said Foreign Affairs Secretary Alan Peter Cayetano prefers a binding code. 

“The code has to be negotiated, and it’s during the negotiations that these issues will be discussed. But having said that, we want a substantive and effective code—preferably binding as Sec. Cayetano has stated on several occasions,” Bolivar told ABS-CBN News.

He said the framework to be adopted this week will be the “basis for the negotiations of the actual code of conduct.”

“This code will be one with the meat, so to speak. The framework, however, is an important document since it will provide the structure for the negotiations on the code.