While the document is not designed to resolve the issues on fishing rights and overlapping territorial claims of China and some claimant states, Ku underscored its significance in preventing outright conflict in the South China Sea. #CodeofConduct #SouthChinaSea

MANILA — Foreign Affairs Secretary Teodoro Locsin Jr. on Wednesday reported that the first draft of the Code of Conduct in the South China Sea (CoC) has been completed.

“We’ve completed the first draft. That objectionable provisions excluding the Western military presence… they’re not holding on to that anymore,” Locsin said during a dialogue with former Australian Prime Minister Kevin Rudd in the US.

“The first draft is really just the first draft, we won’t know what it’s like. I do know that many countries like Vietnam, even Singapore will take very strong exception to anything that would remove a counterbalancing military presence in the region, they’re very careful about that,” he said.

Earlier, Beijing proposed the creation of a notification mechanism on military activities whenever necessary.

Although the reported document mentioning the mechanism did not specifically refer to “Western” military, the said provision sought the exclusion of countries outside the region “unless the parties concerned are notified beforehand and express no objection.”

For the Secretary, the outcome of the COC’s first draft is a development in the “soon to be effective CoC within three years” as it is “shorn of anything objectionable to Western interest.”

Prof. Julian Ku, senior associate dean at the Hofstra University School of Law, believes a legally-binding CoC is important to reflect the parties’ commitment to its text.

“In general, (making it) legally binding is an important signal of how serious a country takes this commitment,” Ku told reporters during the Reporting on Maritime Issues seminar hosted by the United Embassy in Manila on Wednesday.

“In law, we do have a way of interpretation, if it’s not legally-binding then interpretation may say ‘well it’s not relevant because it’s not legally-binding’. If I’m a country worried about the commitment of the other country, I would want it to be legally-binding,” he said.

While the document is not designed to resolve the issues on fishing rights and overlapping territorial claims of China and some claimant states, Ku underscored its significance in preventing outright conflict in the South China Sea.

“It will not actually resolve what drives the disputes, which is fishing rights, etc. The CoC is intended mostly to try to manage the disputes by saying ‘we agree that we have a dispute but we all agree not to use force,'” he said.

Meanwhile, Senior Associate Justice Antonio Carpio urged ASEAN states to ensure that the CoC will not supplant the United Nations Convention on the Law of the Sea (UNCLoS) dispute settlement mechanism.

Carpio is part of the Philippine delegation that led the arbitration case against China.

“The code of conduct is only to manage the disputes so that there would be no shooting wars, there would be no skirmishes, (so that) everybody will behave properly,” Carpio said in the same seminar.

“We should be careful because if we fall into the trap, we have to settle the merits of the dispute in accordance with the code of conduct and China has a veto power, it’s not arbitration, we need the consent of China so we must be very careful that the code of conduct will not supplant the dispute settlement mechanism because that is the best dispute settlement mechanism in the world, proof is we won against China, a nuclear-armed power,” he stressed.

Carpio also questioned the three-year timeline of the CoC conclusion, timed to conclude before the end of President Rodrigo Duterte’s term.

“China has said before, we will sign the CoC at the proper time when the time is right. When will the time be right for China? They said three years from now during the term of President Duterte. My take, China needs to reclaim one area: Scarborough Shoal,” he said.

Carpio told reporters that China has tried to reclaim the Scarborough Shoal but failed to do so.

“We all know they have a plan and they may do that before the end of the term of President Duterte because that is the time they will also sign the CoC after they finished the reclamation, they will say, ‘Let’s sign the CoC, nobody builds anything anymore,’ everything will freeze and that will legitimize what they’ve created: the artificial islands,” he said.