To avert unwanted skirmishes ASEAN and China need a Code of Conduct in the disputed South China Sea. At the same time Manila must make Beijing comply with the UN ruling on their maritime row. The issues are joined. As chairman of ASEAN’s 50th year this 2017, Manila can lead the crafting of the COC. The accord can draw from the UN ruling that is based on international law. This week is the chance, during the ASEAN Ministers Meeting hosted by Manila.
But the parties are bogged down on a mere “Framework” or outline of a COC. Time is ticking away. Manila will not have this moment to push for the COC and Beijing’s compliance till its next ASEAN chairmanship in ten years.
Having helped win the Philippine case in the UN, Supreme Court Senior Justice Antonio T. Carpio suggests ways to move forward and avoid pitfalls. He presented these to the Stratbase-Albert del Rosario Institute on the anniversary of Manila’s victory. Serialized here in four parts:
The historic arbitral ruling issued one year ago on 12 July 2016 was overwhelmingly in favor of the Philippines and against China. The ruling was jubilantly received in Hanoi, which benefits immensely as it invalidates China’s nine-dashed lines. But in Manila, the stunning victory became strangely orphaned. The Duterte Administration refused to celebrate even though the ruling legally secured for the Philippines a maritime zone larger than its land area.
Six months later President Duterte announced he was “setting aside” the ruling in favor of better economic relations with China. I was aghast at the President’s use of the phrase “setting aside.” In law to “set aside” a ruling means to nullify, void or abandon it. I sounded the alarm for the Dept. of Foreign Affairs to immediately clarify the President’s statement. If accepted by China, his statement would legally bind the Philippines under the doctrine in international law on unilateral declarations by heads of state.
The DFA promptly clarified that there was no abandonment of the ruling. The clarification was issued just a few hours before China warmly accepted the President’s statement. This prevented it from becoming legally binding on the Philippines. We escaped a self-inflicted national disaster by the skin of our teeth.
This incident explains vividly Philippine foreign policy on the South China Sea dispute after the arbitral ruling – a policy without discernable direction, coherence or vision, a policy that relies more on improvisation than long-term strategy. The Chief Architect of our foreign policy is not the DFA but the President.
I. Framework of the Code of Conduct
The Framework is simply a list of topics to be included in the draft that will be negotiated into a final COC. The Framework is just the skeleton of an agreement. From this skeleton, a draft agreement will be fleshed out, and from this draft a final agreement – the COC – will be hammered out by the parties.
Each topic in the Framework indicates the intent of a provision. E.g., under “Basic Undertakings,” the first item is “Duty to Cooperate,” second is “Promotion of Practical Maritime Confidence,” and third is “Prevention of Incidents.” Under “Prevention of Incidents,” there are two sub-items: “Confidence Building Measures” and “Hotlines.” The fourth item is “Management of Incidents,” with the sub-item “Hotlines.”
Lawyers would call the Framework “Heads of Agreement;” laymen would call it bullet points. The Framework is not the COC, not even the draft COC.
The Framework, as of May 2017, is simply a one-page set of bullet points. It comes 15 years after the ASEAN-China Declaration of Conduct was signed in 2002, which called for the negotiation of a COC. So, this one-page Framework is 15 years in the making, and it is still a skeleton of a draft agreement.
China has repeatedly stated it will sign a COC “at the appropriate time,” or “when the time is ripe.” In my assessment, that time is when it has completed its island-building activities in the SCS to create the air and naval bases it needs to control the SCS for economic and military purposes. That means a strategic triangle of air and naval bases on Woody Island, in the Spratlys, and in Scarborough Shoal. China already has air and naval bases on Woody Island and in the Spratlys. Thus, only one air and naval base is missing – in Scarborough Shoal – to complete China’s radar and anti-aircraft missile coverage of the entire SCS.
A Chinese air and naval base in Scarborough Shoal will protect the Bashi Channel as outlet to the Pacific for nuclear-armed submarines that are based in Hainan Island. The missiles of these Chinese submarines, if launched in the South China Sea, cannot reach the continental U.S.A. The submarines must transit the Bashi Channel and launch their missiles in the mid-Pacific. Securing the Bashi Channel is critical to China’s nuclear deterrent strategy.
The Framework, and its eventual transformation and signing as a COC, is a case of good news and bad news. When China says it is ready to sign the COC, it is of course good news. At the same time, it is bad news because it means China will soon reclaim Scarborough Shoal since China will sign the COC only after it completes its radar and anti-aircraft missile coverage of the entire SCS. Once the COC is signed, China will then demand a freeze by all disputant states on all island-building, reclamation and militarization in the SCS. (More on Wednesday)
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