Quick. Does anyone, including our very own Foreign Affairs Secretary Albert del Rosario, know if we now have an Asean code of conduct on the settlement of disputes in the South China Sea?
And if there is one, what does the final version contain?
These are the questions being asked in view of varying reports coming out of the 45th meeting of Asean foreign ministers held in Phnom Pehn some days back which was supposed to tackle mainly security issues affecting the regional grouping. That code was supposed to have been the centerpiece document issued in the meeting. Well, it seems nobody knows the answers to these questions now until after the meeting ends and a joint communiqué together with the signed version of the code is issued.
The last we heard, the final version had yet to be finalized in view of intense, some said contentious, discussions between the Philippines and Vietnam, on the one hand, and host country Cambodia and two other members, on the other, whether to included in the code “specifics of the ongoing disputes the Philippines and Vietnam have with China over certain areas in the South China Sea.”
The exchange between Del Rosario and the Cambodian foreign minister was described as especially heated and boiled down to the actual wordings which the former wanted included in the code itself. So heated has the exchanges been that even the issuance of the joint communiqué which usually accompanies the end of such conclaves has also been withheld in the meantime.
Naturally, Del Rosario wanted to highlight the Philippine position on the issue and for the body to come out with a more direct and specific reference to the ongoing territorial dispute and the use of the UN Convention on the Law of the Sea (UNCLoS) as the preferred dispute settlement mechanism. That was resisted by the host country Cambodia which wanted to moderate the same and, perhaps more importantly, advised the need to involve China which claims sovereignty over the entire South China Sea in the discussions, a move which did not also sit well with some of the member states. One diplomat who was privy to the discussions claimed that the “Asean foreign ministers are having an emergency meeting to resolve the wording on the South China Sea in the code and in the joint statement.”
No less than Indonesian Foreign Minister Marty Natalegawa was quoted as having said that the debate about “whether to mention recent incidents including a standoff between the Philippines and Chinese ships last month over the Scarborough (Panatag) Shoal remained a sticking point.”
Natalegawa told reporters covering the event that “it is very important for us to express concern with what happened whether it be at the shoals or the continental shelves, but more importantly than simply responding to the past is to move forward to ensure that these kinds of events no longer occur.”
What seems clear from the various reports is the fact the 10 member regional grouping has agreed to come out with a code of conduct to reinforce the existing “amity agreement” and “zone of peace” documents issued in earlier conclaves both of which have also been agreed to by China. But with the recent developments between the claimant countries, principally between the Philippines with Vietnam versus China, the issuance of a more stringent code such as what was put on the table in this meeting, the latter has shown resistance to “discussing territorial disputes in a security meeting” and thus only indicated a willingness to have such a code in place “but to talk about it at the ripe time.”
As of press time, we are informed that China has agreed to “talk” about the code when it meets the grouping at the end of the meeting also in Phom Pehn in the regular Asean plus 3 (US, China and Japan) talks. Hopefully, by that time the differences between the antagonists (Philippines + Vietnam vs Cambodia + 2) will already be ironed out and a full blown code instead of mere references to one will be on the table.
To give one and all an idea where the conflict lies, we are quoting below the suggested wordings advised by Del Rosario himself who has taken the role of being the principal advocate of a more stringent, direct and specific “rules based framework” within the ambit of existing UN issuances:
“In this context, we discussed in depth the recent developments in the South China Sea (RP insertion: Including the situation in the Scarborough Shoal), and expressed serious concern over such development in the area (RP insertion: Particularly those contrary to the provisions of the 1982 UNCLoS related to the exclusive economic zone and continental shelves of coastal states.) In this connection, we called on all parties to respect (RP insertion: The exclusive economic zone and continental shelves of coastal states) as well the freedom of navigation in and over flights over the South China Sea as provided for by the universally recognized principles of international law, including the 1982 UNCLoS.
Those specific references inserted by the Philippines were vehemently objected to by China insisting that the same should not even be discussed in the grouping’s security meeting,  especially territorial disputes which it continues to emphasize should be settled bilaterally. Of course, we cannot simply agree to China’s proposition and should insist on the need to bring such disputes to the table whether the same is in multilateral or international discussions such as the ongoing meeting or bilaterally which I am advised has actually been resumed with the assumption of Ambassador Sonia Brady in our embassy in Beijing. Unfortunately, the meeting’s chairman, Cambodia, perhaps in a bid to get the agreement worked out during the meeting, insisted on excluding what it called “contentious references” and that’s where the whole operation got stalled. Again, other member states, particularly Indonesia and Singapore, tried to iron out the differences but as of this writing nothing concrete has actually come out of the intervention.
Given the temper of the meeting, so to speak, it may do well for Del Rosario to seriously consider the suggestions proffered by the interlocutors, Indonesia and Singapore, if only to come out with a code which, to be very clear about it, is actually an improvement over the existing arrangements now in place which Asean  and China have agreed upon. As Indonesian Foreign Minister Natalegawa correctly stated “more importantly than simply responding to the past is to move forward to ensure that these kinds of events no longer occur.”
Indeed, after a lot of heated exchanges over this matter there can be no denying that we have made our position very clear. It is time to lower the decibel and transform an increasingly poisoned atmosphere into one conducive to building “mutual trust and confidence.”