The original Murillo Velarde 1734 Map, known as the Mother of All Philippine Maps, donated by Mel Velarde on display at the Treasures of the National Library of the Philippines hall in Manila on August 28, 2024. Mark Demayo, ABS-CBN News 

MANILA — Any Code of Conduct (COC) in the South China Sea (SCS) must not supersede the UN Convention on the Law of the Sea (UNCLOS), an official of the Department of Justice (DOJ) said on Thursday.

DOJ Senior State Counsel Fretti Ganchoon described the UNCLOS as “the Constitution for the oceans.” 

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“The COC, in my understanding, is not meant to resolve any disputes. It’s just meant to manage the area. The COC can help, but the danger there is it should not have provisions that would supervene the provisions of the UNCLOS,” Ganchoon said during the first Dialogue on ASEAN Maritime Security (DAMS) at a hotel in Pasay City. 

“The UNCLOS is considered the highest instrument, the Constitution for the oceans, so your instrument—the COC—must be consistent with UNCLOS. It cannot be higher than or supersede UNCLOS," she added.

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Ganchoon said the COC cannot have "rules" that would "further impair the arbitral award or right of the Philippines to have resort to the dispute-settlement mechanisms under UNCLOS."

Last month, Department of Foreign Affairs (DFA) Secretary Enrique Manalo said the Association of Southeast Asian Nations (ASEAN) and China are “politically committed” to having an SCS COC by 2026. 

The Philippines is hosting the ASEAN Summit next year.

DELAYS

The ASEAN and China pledged in 2002 to create a COC. The negotiations, however, have suffered delays and have dragged on for more than a decade.

“We hope and we will do all that we can to try and achieve a successful negotiation,” Manalo said.

“It’s contentious in the sense that there are issues that need to have the consensus of all countries but as the president said, we still have to address issues, such as the scope of the code and the nature of the code, and its relation to the declaration of the code principles adopted in 2022 in the South China Sea,” he continued.

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The proposed COC aims to set rules to prevent the intensifying tensions in the South China Sea—which China claims in its entirety—from spinning out of control and worsening into a major armed conflict. 

Four ASEAN member states—the Philippines, Malaysia, Vietnam and Brunei—and Taiwan are involved in the territorial disputes.

In 2016, the Permanent Court of Arbitration in The Hague invalidated China’s expansive nine-dash line claims—now ten-dash line—in the South China Sea.

It reaffirmed that the Philippines is entitled to a 200-nautical mile exclusive economic zone (EEZ) measured from its archipelagic baselines, in accordance with UNCLOS.

However, Beijing does not recognize the decision.

'VERY IMPORTANT'

According to Ganchoon, the UNCLOS and the arbitral award are “very important” to the Philippines. 

“UNCLOS is important because both Philippines and China are parties to the United Nations Convention on the Law of the Sea. Both of them were active in the almost 10-year negotiation that led to the conclusion of the UNCLOS,” the DOJ official explained.

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“One of the fundamental principles in international law is pacta sunt servanda, a Latin phrase that means agreements must be kept. If you are a party to an international convention, there is an expectation that you will comply with your obligations to that convention as a state party to that convention," she added.

Ganchoon stressed that the Philippines viewed that China had violated “gravely” its obligations under the UNCLOS. Hence, the filing of the SCS Arbitration in January 2013.

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“This arbitration award is an authoritative interpretation of the pertinent provisions of the UNCLOS, including the explanation of the tribunal on its jurisdiction over the case and that China has already given its consent to advance arbitration just by being a party to UNCLOS,” Ganchoon said.

“It’s also an authoritative ruling on the invalidity of the nine-dash line—that historic rights cannot prevail over the sovereign rights of coastal states over their EEZ and continental shelf,” she added.

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