Australia, Japan, U.S. call for South China Sea code to be legally binding

[August 07, 2017]  By Manuel Mogato

MANILA (Reuters) - Australia, Japan and the United States on Monday urged Southeast Asia and China to ensure that a South China Sea code of conduct they have committed to draw up will be legally binding and said they strongly opposed "coercive unilateral actions".

The Association of South East Asian Nations (ASEAN) and China should establish a set of rules that were "legally binding, meaningful, effective, and consistent with international law," the foreign ministers of the three countries said in a statement following a meeting in Manila.

Foreign ministers of ASEAN and China on Sunday adopted a negotiating framework for a code of conduct, a move they hailed as progress but seen by critics as a tactic to buy China time to consolidate its maritime power.

Australia, Japan and the United States also "voiced their strong opposition to coercive unilateral actions that could alter the status quo and increase tensions".

They also urged claimants to refrain from land reclamation, construction of outposts and militarization of disputed features, in a veiled reference to China's expansion of its defence capability on Mischief, Fiery Cross and Subi reefs in the Spratly archipelago.

The three countries are not claimants but have long been vocal on the issue, arguing their interest is in ensuring freedom of navigation and overflight.

They urged China and the Philippines to abide by last year's international arbitration ruling, which invalidated China's claim to almost the entire South China Sea, where more than $3 trillion worth of sea-borne goods pass every year.

Brunei, Malaysia, the Philippines, Taiwan and Vietnam also have competing claims there.

U.S. State Secretary Rex Tillerson, left, passes by the table of Chinese Foreign Minister Wang Yi at the start of the 7th East Asia Summit Foreign Ministers' Meeting and its dialogue partners as part of the 50th ASEAN Ministerial Meetings in Manila, Philippines August 7, 2017. REUTERS/Aaron Favila/Pool

The code framework is an outline for what China and ASEAN call "consultations" on a formal agreement, which could start later this year. China's foreign minister, Wang Yi, on Sunday said that hinged on whether the situation was stable, and if there was no "major interference" from outsiders.

Several ASEAN countries want the code to be legally binding, enforceable and have a dispute resolution mechanism, but experts say China will not allow that, and ASEAN may end up acquiescing to what amounts to a gentlemen's agreement.

Singapore's foreign minister Vivian Balakrishnan said it was still premature to conclude the outcome of the negotiations for the code of conduct, which will be done by lawyers.

"One key issue is the question of legally binding," he told reporters late on Sunday. "Surely when we move into the COC, it has got to have some additional or significant legal effect."

Philippine Foreign Secretary Alan Peter Cayetano said he preferred a legally-binding agreement, which other countries, like Vietnam, supported.

Jay Batongbacal, an expert on the South China Sea at the University of the Philippines, told news channel ANC the adoption of the framework gave China "the absolute upper hand" in terms of strategy, because it will be able to decide when the negotiating process can start.

(Additional reporting by Martin Petty)

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