What the Code of Conduct shouldn’t be
The Association of Southeast Asian Nations (Asean) and China are set to resume negotiations on the Code of Conduct (COC), which is intended to manage the dispute in the South China Sea. What the Philippines should strongly guard against is for the COC to become a tool of China to legitimize its seizure of geologic features and maritime zones in the South China Sea in violation of international law and the United Nations Convention on the Law of the Sea or Unclos.
Once the COC is signed, China can proclaim that all artificial island-building and militarization of geologic features in the South China Sea should cease. The effect is to de facto legitimize all prior island-building and militarization of China and to bar all other countries from fortifying the geologic features they presently occupy. The COC must expressly state that all prior acts of state parties that were in violation of international law or Unclos are neither condoned nor legitimized under the Code.
China wants “powers outside the region,” aka the United States and its allies, to cease their freedom of navigation and overflight operations (Fonops) in the high seas and exclusive economic zones (EEZs) of the South China Sea. China knows that these Fonops are the most robust and effective means of enforcing the arbitral ruling that the Philippines won against China in the South China Sea arbitration. These Fonops assert that in the West Philippine Sea (WPS) there is an EEZ where any state can conduct Fonops, including military exercises, in accordance with international law and Unclos. Of course, there is only one adjacent coastal state that has an EEZ in the WPS, and that is the Philippines.
China also wants the COC to bar Asean coastal states from joining these Fonops of the United States and its allies. Without the support of outside world naval powers, the navies of the Asean coastal states do not stand a chance against the mighty Chinese navy that will enforce China’s claim to all the natural resources within the nine-dash line. The Asean coastal states must preserve one of their powerful leverages against China — joining the Fonops of the United States and its allies.
The COC will govern the activities of state parties on the use of the South China Sea to avert an armed conflict. These activities must be in accordance with international law and, in particular, Unclos. China, however, refuses any mention of the arbitral ruling in the COC since it considers the ruling void. If China succeeds in deleting any mention of the arbitral ruling in the COC, China can trumpet before the world that since its position prevailed in the COC, then the arbitral ruling is not in accordance with international law and Unclos.
If the arbitral ruling is not mentioned, and a dispute arises on the exploitation of natural resources in the WPS, China can point out that under the COC the arbitral ruling does not apply. China will claim that any dispute on the exploitation of natural resources in the WPS must be settled by negotiations between China and the Philippines. Clearly, China’s objective is to reverse the arbitral ruling through the COC. The Philippines must never waver in demanding that the arbitral ruling be included in the COC. President Duterte declared yesterday before the United Nations General Assembly that the arbitral ruling is “beyond compromise,” and the Philippines should stand by this.
Finally, the COC is intended to merely manage the dispute in the South China Sea to prevent any armed conflict, not to resolve the substantive issues of the dispute which are governed by international law and Unclos. The COC must not prevent any state party from resorting at any time to the mandatory dispute settlement mechanism under Unclos. China’s objective is to cut off resort by Asean coastal states to the dispute settlement mechanism under Unclos and to freeze the dispute within the COC where
China’s consent is necessary to any resolution of the dispute. If Asean coastal states submit to China on this, it will be a humiliating act of self-castration.
