Expert: Challenges face ASEAN-China talks on maritime code

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Metro Manila (CNN Philippines, November 15) — The beginning of formal talks between the Association of Southeast Asian Nations (ASEAN) and China for a set of rules on activities in the South China Sea highlighted the country's hosting of the ASEAN Summit and Related Summits.

The Code of Conduct sets guidelines in dealing with conflicts in contested waters, among others.

China and some ASEAN members - in particular Philippines, Brunei, Malaysia and Vietnam, as well as Taiwan are  claiming parts of the sea.

This means, ASEAN  member states and China will now discuss a framework or outline for crafting the Code of Conduct (COC), which is the rule-based document.

ASEAN and Chinese foreign ministers endorsed the negotiating framework in August.

It outlines principles of self-restraint and  peaceful settlement of disputes,  maritime cooperation and confidence-building measures such as communication hotlines, among others.  But the framework states it is  "not an instrument to settle territorial disputes."

Jay Batongbacal, director of the University of the Philippines Institute for Maritime Affairs and Law of the Sea, sees the beginning of formal talks as a step in preventing conflicts and  unilateral actions among claimants.

As it is, China is claiming almost the entire South China Sea.

"The reality is that the situation now has changed drastically. There is really no parity between parties. China has those islands,  it is dominating the South China Sea thru the deployment of its military forces.  Its fishermen are fishing all over regardless of EEZ (exclusive economic zone) boundaries. So this CoC  discussion at this point will have very little impact on changing that  situation on the ground," Batongbacal said.

Batongbacal  participated in the drafting of the 2002 China-ASEAN Declaration on Conduct  (DOC) of the Parties in the South China Sea. It is the negotiating framework fot the COC.

As in previous discussion, he expects discussions on contentious issues such as geographic scope of the code and whether it will be binding to all parties.

Outgoing ASEAN  Secretary-general Le Luong Minh renewed his push for a legally-binding COC. Minh is from Vietnam - a claimant country.

"It's my opinion that the COC  can only be  effective if it is  a legally-binding instrument, given the fact that we have had the DOC for 15 years and we have never benefitted  from its full and effective implementation," he said.

Batongbacal explains why some ASEAN countries are also pushing for the COC: "It  doesn't  necessarily have to have penatlies or enforcement provisions but as a treaty, to be legally-binding,  it means the parties   commit in good faith to implement it  and they could  be held accountable for implementation and compliance."

He said ASEAN's decision-making consensus, in which all or 10 members must agree on an issue, could also pose a challenge. Some members like Laos and Cambodia are considered allies of China.

Foreign Affairs Spokesperson Robespierre Bolivar says the schedule, venue and other details of negotiations by the ASEAN-China Joint Working Group will still be determined.