ASEAN-China CoC no-go at Summit

The much-anticipated Code of Conduct (CoC) for the West Philippine Sea between the Association of Southeast Asian Nations (ASEAN) and China is unlikely to be signed at the 49th ASEAN Summit in Manila, as negotiations continue and concerns persist over provisions seen as favoring Beijing.

A Department of Foreign Affairs (DFA) official said negotiations for the ASEAN-China CoC were still underway but could not say whether an agreement would be reached before the end of the year.

“The negotiations stage is now at 70 percent in terms of completion progress. Looking at the remaining 30 percent, it’s up to our negotiators how they will complete it. Our negotiators are still discussing the CoC. So, at the moment, I am not able to definitively say when it will be concluded or whether it will be finalized within this year or not,” Foreign Affairs Assistant Secretary and ASEAN spokesperson Dominic Xavier Imperial said during a briefing at the International Media Center at the World Trade Center in Pasay City.

Scheduled meetings for the ASEAN Summit start on 16 November and will be attended by all 11 ASEAN leaders at the Philippine International Convention Center (PICC).

“But what I can say is that all are committed to continue discussions, even at this time. I do not want to preempt what will happen, but let us look forward in the succeeding days to hearing from our negotiators on the status,” Imperial said.

The ASEAN-China CoC will be part of various discussions, including maritime cooperation and security, “which are always part of the discussions among leaders,” he added.

Beijing trap?

Meanwhile, a former senior justice of the Supreme Court has warned that the proposed maritime pact could work to China’s advantage, particularly as Beijing pushes terms described as unacceptable or difficult for other claimants to agree to.

Retired Senior Associate Justice Antonio Carpio, in an interview, warned against going along with China’s schemes in the proposed code.

Negotiations for the CoC started in 2002, during which it was agreed to initially adopt the declaration of conduct of the parties, or DoC, which was non-binding.

“More than 20 decades ago, China said we will sign the CoC when the time is right or when it is appropriate. China has not yet signed because, from China’s point of view, they still have to build on Scarborough Shoal. They want to put an air and naval base on it,” Carpio said.

If the CoC is signed now, China will say, “Okay, no more island building, no more reclamation. Everybody stops,” he added.

In that manner, the CoC will legitimize what they have done. “So they have built on Mischief Reef, which is in our exclusive economic zone. That will legitimize (the structures),” Carpio said.

“That’s why our position during the time of Foreign Secretary Teodoro Locsin was that we would sign the code of conduct only if the arbitral award was included as part of the code of conduct,” he said.

Locsin served as foreign secretary from 17 October 2018 to 30 June 2022 under the administration of President Rodrigo Duterte.

Carpio revealed that China wanted the CoC limited to the Spratlys to give it a pass on the Paracels, which it is disputing with Vietnam. And that would give them a pass on Scarborough Shoal.

“Why will we not include Scarborough Shoal?” Carpio said.

“That’s why I’m saying the CoC will never happen because if we don’t include the arbitral award, then we have given up because this is a subsequent agreement,” he explained.

“If it says that nobody will build anything, all those that are there already would remain. That is the position of China. Then Mischief Reef would remain. And Mischief Reef is part of our exclusive economic zone. So we have to be very careful here because the moment we sign that CoC and if it says everything that has been built can remain, then we have legitimized China’s island building on our EEZ,” Carpio pointed out.

Instead, Carpio suggested that the government uphold the arbitral award and “let us file arbitration cases against China. And we can file one on the extended continental shelf. It’s ripe already. And there was a gathering in China where Wu Shicun, their guru on the South China Sea, said, ‘We have to prevent the Philippines from filing another arbitration case.’”

China dreads another arbitration case because they know they will lose and we will win, according to Carpio.

Talks on Myanmar

Imperial said ASEAN leaders will definitely discuss the current state of Myanmar.

“There will be a discussion on Myanmar, certainly. We have indicated in previous engagements that this summit, in particular, will deal with the ASEAN leaders’ review and decision on the implementation of the five-point consensus (5PC). Definitely, that would be part of the agenda of the ASEAN leaders for the summit,” he said.

The 5PC encapsulates ASEAN’s response to the Myanmar crisis precipitated by the military’s seizure of power on 1 February 2021.

Trump’s late arrival

Imperial said nothing in the original schedule for the ASEAN-US Summit will be adjusted, even if US President Donald Trump will arrive late on Tuesday, 17 November.

“Nothing will be pushed back; we will proceed as planned with the preparations, especially for the closing ceremony. However, the day will culminate with the ASEAN-US Special Summit. That summit will take place despite the late arrival of President Trump,” he said.