Philippines seen backtracking on sea Code of Conduct

MANILA, Philippines - The Philippines is slinking from passing an ASEAN-China Code of Conduct in the disputed seas between them. This, when Manila is supposed to lead ASEAN as chair on its 50th year this 2017, an international maritime law expert says.

The COC would avert violence from the disputes, a Philippine advocacy since it initiated a softer Declaration of Conduct in 2002. But instead of upgrading that initial Declaration into a binding Code, Manila has rustled up a mere “Framework” or outline of a Code.

“The Philippines has actually been moving backwards on this,” Dr. Jay Batongbacal remarked at a recent forum on Manila’s victorious maritime arbitration with Beijing. The Code should be among the highlights of the 50th ASEAN Summit to be hosted by Manila in Nov.

“Before, when the Philippines started the advocacy in the late 1990s to early 2000s, we were pushing for a binding COC, with dispute settlement provisions. That was the original idea,” Batongbacal recounted to the think-tank Stratbase-Albert del Rosario Institute. “That, in recent years, was reduced to merely a COC with dispute settlement provisions, which later on became just a (plain) COC.”

“Then in more recent times it was transformed into just a ‘Framework of a Code of Conduct,’ meaning, an outline of a COC,” Batongbacal said. “And what was recently announced (by the Dept. of Foreign Affairs) with much fanfare was an ‘Agreement on a Draft of an Outline of a Code of Conduct. So it’s actually been moving backward. We might as well just have stopped with the Declaration of Conduct, signed in 2002. At least that had more articles, more pages than the single page that has been agreed upon.”

China has been resisting the early passage of the COC. It is fortifying three of seven artificial islands it reclaimed from mere rocks and reefs in the disputed waters. It also has grabbed Scarborough Shoal, a traditional Filipino fishing ground 120 miles off Zambales, well within the Philippines’ 200-mile exclusive economic zone but 650 miles beyond China’s nearest province.

Former national security advisers Jose Almonte and Roilo Golez expect China to build air and naval bases in Scarborough too, to complete its control of the South China Sea. That can happen in three years. Only then would China accede to a COC with the ASEAN, Supreme Court Senior Justice Antonio Carpio opines. For, the COC would then forbid disputant states from any aggressive act to change the status quo and reclaim lost reefs and shoals. Manila would be precluded from claiming back Scarborough and the seven artificial islands within its EEZ and extended continental shelf.

In the meantime, supposedly for good relations, Manila is “over-accommodating” Beijing, Batongbacal said: “I wouldn’t be surprised if all of a sudden, the next announcement would be with greater fanfare and celebration of an ‘Agreement on the Title of a Draft of a Framework of a Code of Conduct.’”

In 2013, a year after the Chinese occupation of Scarborough, Manila filed for arbitration before a UN court in The Hague. The court in July 2016 invalidated Beijing’s nine-dashed boundary encompassing 90 percent of the South China Sea. The court further ruled that Beijing broke international law by driving away Filipino fishermen from Scarborough. Too, that China destroyed the maritime environment and worsened the sea row by building the artificial islands during the arbitration.

Beijing rejected the UN arbitration as “illegal from the start” and rejected the ruling. In insisting on its baseless nine-dashed sea boundary, it encroaches on the EEZs not only of the Philippines but also Taiwan, Vietnam, Malaysia, Brunei, and Indonesia. Except for Indonesia, the smaller states also have counterclaims against Beijing over the whole or parts of the Spratly archipelago in the middle of the South China Sea.

The Duterte administration has set aside the UN ruling for fear of antagonizing Beijing and for increased Chinese investments. Meantime, however, Beijing has been increasing military, paramilitary, coast guard, and maritime research presence within the Philippine EEZ, Batongbacal noted.

The government needs resolve, he said. Cooperation with China should be as equal states before international law.

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