Will China be bound by Code of Conduct?

Now that the Association of Southeast Asian Nations and China have agreed to work out a “negotiating framework” for a Code of Conduct (COC) in the South China Sea, after the lapse of 15 years, the basic question that comes to mind is whether Beijing would be legally bound by it.

The framework, which is scheduled to be tackled within the year, would flesh out the 2002 Declaration on the Conduct of Parties in the South China Sea, which China ignored by building artificial islands in the disputed waters, three of which are equipped with runways, surface-to-air missiles and radars.

Some analysts have expressed serious doubt that Beijing would allow the COC to interfere in its expansionist designs on the disputed territory or would respect its legality. And the reasons are many.

China is a signatory to the United Nations Convention on the Law of the Sea (Unclos), yet it has rejected the ruling issued in July 2016 by the Permanent Court of Arbitration in The Hague that nullified the so-called nine-dash line that Beijing uses to claim virtually the entire South China Sea. The arbitral ruling has recognized the Philippines’ sovereignty over its occupied islands.

The tribunal also said China had violated its obligation to refrain from aggravating the dispute while the settlement process was ongoing.

President Duterte has since relegated the ruling to the back burner. He has said that since it cannot be enforced anyway, the Philippines might as well work to expand its economic ties with China.

Chinese President Xi Jinping has repeatedly said that the South China Sea has been Chinese territory since “ancient times,” and that China’s territorial sovereignty and interests in the region would not be influenced under any circumstances by the arbitral ruling.

If Beijing has adamantly refused to recognize the legally binding ruling by an international body, how much more if the ruling is purely regional and consensus-based?

The failure by the parties to specifically mention that the COC should be legally binding or should have a dispute resolution mechanism would make it just another piece of diplomatic gobbledygook.

At the recent ministerial meeting in Manila, Chinese Foreign Minister Wang Yi qualified Beijing’s position that the adoption of the framework should be premised on: 1) that the situation in the South China Sea is generally stable; and 2) that there is no major interference from outside parties.

Some critics believe China’s sudden interest in the code after 15 years of delay is aimed at dragging out the negotiating process to buy time to complete its strategic objectives in the South China Sea, through which more than $3 billion of ship-borne trade passes annually.

In a TV interview, Prof. Jay Batongbacal, director of the University of the Philippines Institute for Maritime Affairs and Law of the Sea, said the two conditions set by China give the superpower the discretion on when actual negotiations would start.

Batongbacal also said the conditions mentioned by Minister Wang have discouraged Asean from engaging with external partners.

Although China did not specifically name a country, it must be referring to the United States as an “outside party” since the latter has pushed hard for the Philippines to compel China to recognize the arbitral ruling. It was reportedly Washington, during the last year of the Aquino administration, that prodded Manila to file the case in The Hague.

This is ironic because while China is a signatory to Unclos, the United States is not. China is unlikely to agree to any third-party involvement. It has maintained that issues must be worked out directly between the claimants themselves.

Thus, Asean members, especially the four claimant countries—the Philippines, Malaysia, Vietnam and Brunei Darussalam—might as well banish the illusion that the COC would give them the proper forum to address their longstanding claims vis-à-vis their giant neighbor.

Alito L. Malinao is a former diplomatic reporter and news editor of the Manila Standard. Now teaching journalism at the Pamantasan ng Lungsod ng Maynila, he is the author of the book “Journalism for Filipinos.”