MANILA, Philippines – Newly appointed Foreign Secretary Alan Peter Cayetano on Friday, May 19, said he is wary of having  a “legally binding” Code of Conduct (COC) in the disputed South China Sea.

In his first interview with reporters at the Department of Foreign Affairs (DFA), Cayetano said he prefers the COC to first be a non-legally binding “gentleman’s agreement” among claimant countries. 

Referring to the COC, Cayetano said: “Definitely, it should be binding. Now the question of, ‘Is it legally binding?’ – the question there is, ‘pag merong hindi sumunod, saang korte pupunta (if there is a country that does not heed it, what court can one approach)? So we’re all trying to avoid not only war but instability.”

Cayetano also said of the COC: “Many, many countries want it to be legally binding. But what I’m saying is, let’s start with it being binding – a gentleman’s agreement, ‘di ba (right)?”

Cayetano made these remarks after the Association of Southeast Asian Nations (ASEAN) and China finished drafting the framework COC on Thursday, May 18. He was also speaking as he marked his first full day as DFA chief, after having taken his oath before President Rodrigo Duterte on Thursday.

For years, ASEAN and China have been working to finalize a legally binding COC. 

The COC aims to maintain peace and stability in the disputed South China Sea, parts of which the Philippines claims as the West Philippine Sea.

Counting on ‘commitment’

The COC is supposed to be the legally binding version of the non-binding Declaration on the Conduct of Parties in the South China Sea (DOC). 

Signed in 2002, the DOC urges claimant countries in the South China Sea to exercise self-restraint and not to escalate tension in the disputed waters.

In the face of this non-binding DOC, China undertook moves such as its island building activities in the South China Sea.

It is unclear how a non-legally binding COC is different from the non-binding DOC.

For Cayetano, if the COC is not “legally” binding, what will make it “binding” is  “the word and the commitment of country to country.”

Pressed to explain what law can make this kind of COC binding, Cayetano said: “That’s the problem. You do not have a world court. It’s not only a problem for the West Philippine Sea. It’s a problem for international relations as a whole.”

Cayetano added that a non-legally binding COC can be enforced by the community of nations that signed it. The signatories can put in place a mechanism to disputes among them, he added.

Having a non-legally binding COC, he suggested, is better than insisting on a legally binding one that other countries will oppose. 

“I’ll ask you, do most or all countries want it to be legally binding? Yes. But will the language include that? We don’t know. Because isa o dalawa lang ang hindi pumayag (if one or two countries disagree) because they don’t believe that there can be an independent court, will we go for nothing, walang (will there be no) code of conduct? 

“O pumayag na rin tayo ng code of conduct na ang mag-e-enforce na no’n e ‘yung community of nations na pumirma?” he said. (Or shall we agree to a code of conduct that will be enforced by the community of nations that signed it?)

After having spoken for 3 minutes about these, Cayetano said on his first day as DFA chief: “Give me a few days to get these all together. We have experts on it. We have a strategy.” – Rappler.com