Chinese Foreign Minister Wang Yi, right, is greeted by Philippine Foreign Secretary Alan Peter Cayetano during the Gala Dinner of the Association of Southeast Asian Nations (ASEAN) Foreign Ministers' Meeting (AMM) and Related Meetings in suburban Pasay city, southeast of Manila, Philippines Sunday, Aug. 6, 2017. Mark Cristino/Pool Photo via AP

Analyst: China conditions for sea code talks vague, unfair
Patricia Lourdes Viray (philstar.com) - August 7, 2017 - 8:30am

MANILA, Philippines — Beijing's condition of non-interference by "outside parties" for the talks on the Code of Conduct (COC) in the South China Sea to start causes concern as it is vague and unfair, a maritime analyst said Monday.

Jay Batongbacal, director of the University of the Philippines Institute of Maritime Affairs and the Law of the Sea, said that the given condition falls upon China to determine whether it exists or not.

"In contract law that is a void condition when one of the parties, the debtor of the parties, the obliger, can decide when the obligation can be complied with," Batongbacal said in an interview with ANC.

On Sunday, China Foreign Minister Wang Yi said that the start of the talks for a COC may be announced in November as long as the conditions are met and as long as the situation in the disputed waters is "generally stable."

READ: China sets conditions for talks on South China Sea code

Wang may have been referring to the United States, which has been conducting what it calls freedom of navigation patrols in the area, when he said that the conditions include non-interference of outside parties.

Batongbacal said that "generally stable" could mean anything from China which would be an unfair condition to place on the negotiations.'

Beijing may be purposely setting such conditions to discourage the Association of Southeast Asian Nations (ASEAN) from seeking support from external partners, the analyst said.

"Whether in terms of military, diplomatic or even commercial interests, China is attempting to discourage the parties from engaging external partners, and that I think is a bad sign because we know that the rest of the region, Southeast Asia, is very much linked in various ways to external partners," Batongbacal said.

'China has upper hand'

Ideally, the ASEAN should have made an effort in its talks with China that they want the framework on the COC to be legally binding.

Last Saturday, Department of Foreign Affairs acting spokesperson Robespierre Bolivar said that Foreign Secretary Alan Peter Cayetano mentioned to his colleagues that the Philippines prefers a legally-binding instrument.

The framework of the code was adopted by the ASEAN and Chinese foreign ministers during their ministerial meeting last Sunday but Bolivar said that the framework is not a public document.

Batongbacal said that the framework not being a public document is odd as it supposedly only a list of items to be discussed.

The COC, if implemented, later on, may not actually stop Beijing's militarization of artificial islands in the South China Sea. Batongbacal noted that because the negotiations are still ongoing, the parties can do as they wish.

"Unfortunately given the situation, China obviously has the upper hand. It having already completed its islands, and... to impose these kinds of conditions to negotiations. That which at first determine whether the situation is generally stable and there is no disruption," Batongbacal said.

Stopping China's militarization activities would have to depend if the COC would contain specific provisions addressed the issue, he added.

"It has to be very very specific in order for it to be effective against militarization. Right now when we use the term "militarization" or "non-militarization" it's really very, very vague so you cannot really say that any particular conduct is prevented by that," he said.

In a joint communique released Sunday evening, the ASEAN foreign ministers stressed the importance of non-militarization and self-restraint in the conduct of activities in the disputed waters.

The latest statement appears to have stronger language than President Rodrigo Duterte's ASEAN Chairman Statement last April, which did not mention "militarization" in the South China Sea.

READ: ASEAN stresses self-restraint, non-militarization in South China Sea

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