Beware of Beijing’s wordings — Carpio

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As chairman of ASEAN’s 50th year this 2017, Manila can lead the crafting of a long-delayed Code of Conduct in the South China Sea. In this role it must stay focused on the aim of such COC not for dispute settlement but as war prevention. The wordings must be precise, admonishes Supreme Court Senior Justice Antonio T. Carpio in remarks to the Stratbase-Albert del Rosario Institute in last month’s anniversary of the Philippine victory in the UN maritime arbitration. Second of four parts:

The purpose of the COC is to regulate the conduct of the parties so there will be no skirmishes or shooting war in the SCS. The COC is not intended to settle the merits of the SCS dispute. The SCS dispute involves territorial and maritime disputes. There is already a dispute settlement mechanism for the merits of the maritime dispute, and that is found in the UN Convention on the Law of the Sea (UNCLOS) to which all disputant states in the SCS are parties. There is no dispute settlement mechanism for territorial dispute, unlike South America’s Pact of Bogota.

The Framework itself states that the COC is “not an instrument to settle territorial or maritime delimitation issues.” The phrase “maritime delimitation issues” should be changed to “maritime issues” only, excluding the word “delimitation.” There are issues under UNCLOS other than maritime delimitation, like the status of geologic features, whether such features are low-tide or high-tide elevations, and these are not delimitation issues. As worded in the Framework, the Philippines may be impliedly barred from bringing to an UNCLOS tribunal the status of geologic features in the Spratlys because only delimitation issues are excluded from the Framework. We do not want such a provision.

China’s Position Paper in the Philippine-China arbitration claimed that the 2002 ASEAN-China Declaration of Conduct (DOC), which provides for negotiations as a mode to settle disputes, is legally binding and barred the Philippines from filing the arbitration case and from invoking the UNCLOS dispute settlement mechanism. The Philippines argued that the 2002 ASEAN-China DOC is not legally binding but merely aspirational, and does not provide for negotiations as the exclusive mode of settling disputes. The Tribunal upheld the Philippine position. With this experience, we must ensure that the COC is clear – it does not supplant the UNCLOS dispute settlement mechanism on maritime disputes. Otherwise, China might again later claim that the COC bars other states from resort to the UNCLOS dispute settlement mechanism.

In the Southern Bluefin Tuna case, Australia and New Zealand were stuck in the dispute settlement mechanism prescribed in the Convention for the Conservation of the Southern Bluefin Tuna. Australia and New Zealand could not invoke the UNCLOS dispute settlement mechanism because the Southern Bluefin Tuna Convention had a dispute settlement mechanism which required the consent of all parties to any settlement. There was a permanent deadlock when Japan refused to agree to any settlement. If the COC is legally binding and supplants the UNCLOS dispute settlement mechanism, we will be stuck in a similar deadlock. If negotiations will be the only mode of settlement, China can create a deadlock by refusing to agree to any settlement. China can also simply delay the negotiations while it completes its air and naval bases in the SCS and extracts for itself all the resources within the nine-dashed lines.

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