ASEAN urged to be 'vigilant' of China in crafting South China Sea COC

Willard Cheng, ABS-CBN News

Posted at Aug 26 2021 03:36 PM | Updated as of Aug 26 2021 05:43 PM

 Chinese coastguard ships give chase to Vietnamese coastguard vessels (not pictured) after they came within 10 nautical miles of the Haiyang Shiyou 981, known in Vietnam as HD-981, oil rig in the South China Sea, July 15, 2014. Martin Petty, Reuters/File
Chinese coastguard ships give chase to Vietnamese coastguard vessels (not pictured) after they came within 10 nautical miles of the Haiyang Shiyou 981, known in Vietnam as HD-981, oil rig in the South China Sea, July 15, 2014. Martin Petty, Reuters/File


Former Philippine Foreign Affairs Secretary Albert del Rosario on Thursday urged the Association of Southeast Asian Nations (ASEAN) to be vigilant of China's alleged attempt to undermine his country's arbitral win on the South China Sea as both parties craft a Code of Conduct (COC) to manage tensions in the disputed waters.

Speaking in a virtual lecture, Del Rosario accused China of wanting to ensure that the COC's content would “supplant” the 2016 arbitral award to preserve its 9-dash line claim in the disputed waters.

If this happens, the Philippines will no longer be able to invoke the landmark ruling and all gains from the win “will be wasted” in favor of China’s expansionist goals, said the retired diplomat.

The 2016 ruling invalidated China’s expansive claims in the South China Sea based on historic rights. It was during Del Rosario's tenure at the Philippine foreign ministry that Manila sought an arbitration against China under the United Nations Convention on the Law of the Sea.

"With regard to the Code of Conduct in the South China Sea, Philippines must be vigilant. ASEAN, too, must be collectively vigilant," Del Rosario said in Thursday's lecture.

"We must prevent China from attaining its goal, supplant and undermine the 2016 ruling rendered by UNCLOS. ASEAN must ensure that it should not allow the misuse of the Code of Conduct undermine the 2016 arbitral ruling," he added.

Del Rosario said China appears to be rushing the conclusion of the COC after the 2016 ruling, contrary to its past behavior of delaying talks.

The 10-member ASEAN and China hope to conclude discussions on the COC next year, a diplomatic source had said. The Philippines, Brunei, Malaysia and Vietnam are the bloc's members that have overlapping claims with China and Taiwan in the South China Sea.

According to Del Rosario, China agreed to the non-binding 2002 Declaration on the Conduct (DOC) of Parties in the South China Sea only after it has seized Mischief Reef as a way of legitimizing the status quo.

Paragraph 5 of the DOC states that the parties agree to exercise "self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features and to handle their differences in a constructive manner."

“At this point, because China’s expansionist cause has not been completed, China would only agree to non-binding Declaration of Conduct rather than a legally binding code of conduct,” Del Rosario said.

For him, the 2016 ruling served as a “framework in line with the United Nations Convention on the Law of the Sea for ASEAN to attain durable peace and stability” in the South China Sea “anchored on the rule of law.”

It benefits not only the Philippines but all stakeholders in the South China Sea, said Del Rosario, pointing out that the ruling affirms that the Philippines has an exclusive economic zone “that must be respected by China” and other coastal states must have the same entitlement. 

He said ASEAN’s credibility and centrality are at stake at the negotiations for the COC, and the grouping must not allow itself to be a “rubber stamp” to Beijing’s expansionist claims.

Maritime law expert Jay Batongbacal, Director of the UP Institute for Maritime Affairs and Law of the Sea, proposed that ASEAN first come up with a common position and common goals for the COC negotiation before talking to China.

If this is not possible, he said, a sub-ASEAN process should allow the claimant countries to come up with a common position especially if the non-claimants are the ones “hindering” the reaching of agreements.

Instead of a comprehensive COC, a set of agreements that address incidents at sea may be more productive, which will be based on how the disputes and relationship of countries “evolve,” Batongbacal said.

As outgoing Country Coordinator of the COC negotiations, the Philippines earlier this month reported that the Preamble for the COC had been “provisionally agreed on” by the parties.

The Philippines has already turned over the role of Country Coordinator for negotiations on the Code of Conduct on the South China Sea to Myanmar.

ASEAN and China commenced formal talks on the COC in 2018.

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