PH has to be 'more flexible' in talks on South China Sea Code of Conduct - DFA exec

Metro Manila (CNN Philippines, July 28) – A ranking Department of Foreign Affairs (DFA) official is suggesting a "more flexible" approach for the Philippines in negotiations between the Association of Southeast Asian Nations (ASEAN) and Beijing for the Code of Conduct (COC) in the South China Sea.

In a press conference on Thursday, DFA Assistant Secretary for ASEAN Affairs Daniel Espiritu said the Philippines will assert the United Nations Convention on the Law of the Sea (UNCLOS) and its arbitral win in The Hague as "twin anchors" of actions and policies in contested waters.

Foreign Affairs Secretary Enrique Manalo is expected to do so during the ASEAN Foreign Ministers' Meeting in August, Espiritu said.

But in the same briefing, Espiritu said the Hague ruling does not necessarily have to be invoked during negotiations for the COC - a crucial document which will lay down the only allowable actions and behavior that parties can take in the disputed South China Sea.

"We are asserting the Hague ruling. But whatever is it that's on the Hague ruling are only reflections of specific provisions in UNCLOS so whether we invoke the arbitral tribunal award or not, the point is, the moment we use UNCLOS in the negotiations of the COC and its resultant mechanisms, I guess that will already be enough," Espiritu said.

"In fact, UNCLOS is bigger than the arbitral award. So, we have to be more flexible on that," he added.

An international tribunal constituted under UNCLOS - and backed by the Permanent Court of Arbitration in The Hague - ruled in favor of the Philippines in its maritime dispute with China in 2016. It recognized the Philippines' sovereign rights in areas within its exclusive economic zone in the West Philippine Sea which China contests.

China, however, rejects the landmark ruling. The Philippines has filed dozens of diplomatic protests for Chinese incursions in the West Philippine Sea.

ASEAN and China signed a non-binding Declaration on the Conduct of Parties in the South China Sea in 2002, but the regional bloc has been pushing for a legally binding COC.

During the 20th anniversary of the signing of the declaration early this week, Chinese State Councilor and Foreign Minister Wang Yi pushed for "enhanced and upgraded versions of the DOC, and reach, at an early date, an effective and substantive COC that conforms to international law, including the UNCLOS, so as to provide stronger institutional guarantee for managing differences and advancing cooperation."

The Philippines was country coordinator of the ASEAN-China Dialogue Relations from 2018 to 2021. Both the ASEAN and China agreed to come up with a code by then, but aside from the stalemate caused by the COVID-19 pandemic, former DFA Secretary Teodoro "Teddy Boy" Locsin, Jr. said in September 2019 that a single draft negotiating text was reached only after China "softened its insistence on controversial provisions."

While progress has been made, Espiritu said negotiations "are still very, very, very fluid."

"We do not know what the outcome will be. We can only push for legally binding or non-legally binding when we have already seen the final one and we are sure that it is to our interest under international law," he said.

CNN Philippines requested further comment from the Foreign Affairs chief.

ASEAN and China have also yet to bare a new timeline.

"We are now tackling the details, and that is what's taking some time," Espiritu said.

"Each and every line must be agreed on by consensus and China is there. And all 10 ASEAN countries are there. And then we have to be very careful about this because this will be followed in the South China Sea afterwards," he added.

Newly appointed DFA spokesperson Teresita Daza, a veteran career diplomat, said President Ferdinand "Bongbong" Marcos, Jr.'s stance in the maritime row with China is "very clear."

Marcos in his first State of the Nation Address earned praises when he said he will "not preside over any process that will abandon even one square inch of territory of the Republic of the Philippines to any foreign power."

He did not specifically mention the South China Sea dispute and said the country will remain to be a "friend to all, enemy to none" - something foreign policy experts see as a balancing act.