The 10-member Southeast Asian nations and China are optimistic that they can finally reach agreement on the Code of Conduct in the South China Sea by 2021, an official of the Department of Foreign Affairs said on Monday.
Foreign Affairs Assistant Secretary Juniver Mahilum West said the ASEAN member-states and China are optimistic that an agreement will be reached despite contentious issues hounding the second phase of the negotiations for the COC.
The ASEAN member-states include the Philippines, Vietnam, Malaysia, Singapore, Indonesia, Thailand, Brunei, Cambodia, Myanmar and Laos.
"The time frame is that we would like to finish it by 2021. All we can do is try and have that indicative target date of completion," the DFA official said in a press conference on Monday evening.
In August last year, ASEAN member-states and China agreed to a single draft of the COC, with a pact reached in November 2018 for both sides to finalize the document within three years, starting from 2019.
The Philippines is the current coordinator of the ASEAN-China dialogue relations and is co-chairing with China on the negotiation of the COC.
Mahilum-West admitted that ASEAN and China have recognized the differences in their positions and are trying their best to resolve it so that a COC could be finalized.
"We realize that there are big items or big issues to be discussed and whether or not the COC is going to be a legally binding agreement is one of those questions. So I think the negotiators know fully well what the big issues are and I think that everyone is willing as well to add meetings, if possible, just so issues would be discussed adequately," she said.
"In diplomacy we want to try approaches that work,” he said.
Some ASEAN members insist that the code of conduct must be legally-binding—a position vehemently opposed by China. Other ASEAN members, on the other hand, have openly backed Chinese preferences.
Meanwhile, former Foreign Affairs Secretary Albert del Rosario said the 2016 Arbitral Ruling by the Permanent Court of Arbitration that invalidated China’s excessive claim in the resource-rich South China sea, should be made an integral part of the Code of Conduct being formulated by ASEAN and China.
Del Rosario, who initiated the arbitration proceedings in 2013, also called for vigilance against any effort by China to utilize the proposed COC in the South China Sea to undermine the country’s victory at the Permanent Court of Arbitration against Beijing.
"Our region cannot promote the rule of law while ignoring the law as it stands," Del Rosario said in a forum held on Monday in Makati City.
Retired Supreme Court Associate Justice Antonio Carpio shared Del Rosario’s view, saying that the COC, if signed, “should not legitimize the seizure by China of territorial and maritime areas in the South China Sea.”
Carpio emphasized that the code of conduct should not legitimize the artificial building by China in the disputed waters and it should not prevent parties for resorting to dispute settlement mechanism under international law.
“It should expressly written in the Code of Conduct, without any ambiguity, that the Code does not supplant or supersede UNCLOS in anyway,” he said.
“The Code should not be a vehicle to allow China to recover what it had already lost under the arbitral ruling in the South China Sea arbitration at The Hague,” he added.
According to Del Rosario, negotiating parties should ensure that the code would not legitimize Chinese claims or actions in the waters, where China, the Philippines, Vietnam, Malaysia, Brunei and Taiwan have overlapping claims.
"The Association of South East Asian Nations should stress that the South China Sea is nobody’s backyard or exclusive preserve. Failure to do so would severely narrow ASEAN’s options and make it over-dependent on a single player," he explained.
A regional code of conduct aims to prevent conflicting territorial claims from erupting into violent confrontations or worse, an economically-devastating major conflict.
In place of a legally-binding code, ASEAN and China in 2002 settled for a mere declaration that calls on all claimants to exercise restraint and stop new occupation in the South China Sea.
But its non-binding nature and lack of provision to sanction misbehaving claimants, renders the accord useless against aggression.
China claims almost the entire South China Sea as part of its territory, but the tribunal in The Hague invalidated this claim in July 12, 2016 following a case filed by the Philippines in 2013.
Del Rosario proposed that a joint consultation between the Philippines and Vietnam on key provisions of the code of conduct — a move that seeks to increase their clout and collective strength in negotiating for a stronger document text.
"Clearly, it would be a constructive move to consult with Vietnam to give us an opportunity to share and appreciate each other’s views which could lead to an agreed plan of action that is beneficial not only to both countries but to others as well," he said.
Manila and Hanoi face a common security concern in the South China Sea: China's increasingly aggressiveness to assert territorial claims that the two Asian nations say have impinged on their fishing rights and obstructed efforts to explore undersea hydrocarbon resources well within their territorial waters recognized under the United Nations.
In the ongoing negotiations for a code, Del Rosario said Vietnam has expressed opposition to Chinese proposals, such as the establishment of new Air Defense Identification Zones and the prohibition of military drills in the South China Sea with outside powers.
It also opposed China’s move to exclude foreign oil firms by limiting joint development deals to China and South East Asia.
"The aforementioned are all areas of major importance which should be fully supported not only by the Philippines but by ASEAN as a whole," Del Rosario said.
ASEAN has long held the position that the code of conduct must be legally-binding, but China opposes this. It’s not clear how this basic difference will affect the efforts by both sides to negotiate the code
"An ASEAN consensus on the specifics, if achieved, will serve to demonstrate to the world that the 10 ASEAN states are a solid body that is willing to strongly uphold ASEAN centrality and not allow itself to be bullied and bribed," Del Rosario said.