Maritime law expert cautions Philippine on Code of Conduct

MANILA, Philippines — The Philippines should tread carefully in adopting a Code of Conduct (COC) in the South China Sea as such document would only legitimize Beijing’s incredible maritime claim, according to a maritime law expert.

In an interview with “The Chiefs” Thursday night on One News-Cignal TV, Jay Batongbacal, director of the UP Institute for Maritime Affairs and Law of the Sea, said Beijing’s real motive for pushing for a COC is to preserve the status quo in which it now enjoys effective control over areas within the domain of other countries including the Philippines.

“What we want is to preserve our own independence and autonomy in this area, to have access to our own resources, to be able to make our own decisions on who we want to partner with, who we want to work with in developing our resources and in charting our own economic development and what people would call the national destiny without the interference or influence of another state,” Batongbacal said.

“That’s what we want. And if the Code of Conduct will keep us from doing that then we shouldn’t sign it,” he said.

As the Association of Southeast Asian Nations (ASEAN) is following a consensus-based decision-making mechanism, Batongbacal said any member can keep a consensus from being reached.

“Yes, not a majority (vote), but the same thing now goes for the Code of Conduct. Even  of just one country will not get on board with the COC, then there will be no COC,” he said.

“All you need is one unfriendly country – and the one with the most stake at this point would be Vietnam, because its entire exclusive economic zone (EEZ) as well as its claims are now also being subjected to unilateral Chinese action,” he added.

China has even embarked on a unilateral petroleum exploration and drilling in the continental shelf of Vietnam that it claims is within its nine-dash line.

Batongbacal emphasized that Beijing should not be allowed to have the recognition and cover of legality it desperately needs.

“There’s no legitimacy. So without that they’ll always be seen essentially as a rogue state and as a regional bully. And for any country to be seen like that and to be surrounded by neighbors who see you as a bully is definitely not an ideal situation,” he added.

In a landmark ruling on July 12, 2016, the Permanent Court of Arbitration (PCA) based in The Hague found no legal basis for China to claim “historic rights” over almost the entire South China Sea, invalidating its nine-dash line. The tribunal also upheld the Philippines’ maritime entitlements. The Philippines filed the arbitral case in 2013.

Batongbacal said he finds it strange that Beijing now wants a legally binding code after rejecting the same in 2002.

“A COC is foot dragging basically. Now that it (China) has achieved dominance, all of a sudden it has turned around and says it wants a legally binding code. So you have to ask yourself what has changed and why,” Batongbacal said.

He said it is clear that China now wants superiority in the legal arena after achieving maritime dominance over its neighbors.

Beijing announced it is ready to forge a COC with ASEAN, which it hopes to use to keep non-regional powers like the United States, Japan and Australia from interfering in developments in the South China Sea.

“So you can just stay away, you can just keep away and it also has proposals which would essentially exclude everyone else from the region, especially in terms of military activities and economic activities,” Batongbacal said.

“China wants to establish itself not only as the dominant partner but as the exclusive partner of all these surrounding smaller states,” he added.

China’s provocative activities, however, have sparked concerns among other global powers like Britain and France, which earlier sent vessels to the South China Sea to remind China of the need to preserve freedom of navigation.

“There’s growing international concern. France has gone so far as to send its own ship through the area. The UK has also made such statement and sending its ship through the area just to stress the point that the South China Sea should never be placed under the sovereignty of one state,” he said.