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DOJ: Final SCS Code of Conduct must be consistent with UNCLOS

Philippine News Agency

By Joyce Ann L. Rocamora
May 22, 2025, 6:02 pm

MANILA -- The Department of Justice (DOJ) on Thursday said negotiators must ascertain that the final Code of Conduct (COC) on the South China Sea does not supersede the United Nations Convention on the Law of the Sea (UNCLOS).

"The UNCLOS is considered the highest instrument or constitution for the oceans, so this COC must be consistent with UNCLOS, it cannot be higher than UNCLOS," DOJ Senior State Counsel Fretti Ganchoon said at the We Protect our Seas forum on ASEAN Maritime Security in Pasay City.

Ganchoon recognized that the COC is an important mechanism for states to manage tensions in the sea lane, but said it cannot include any provision that might impair the Philippines' sovereign rights over the West Philippine Sea.

"It cannot supersede UNCLOS, it cannot have rules there that would impair the Arbitral Award," she said.

"Under UNCLOS, we consider that we have exclusive rights to all of the natural resources in the West Philippine Sea, exclusive jurisdiction with respect to marine scientific research and taking of measures to protect and preserve the marine environment."

Within the West Philippine Sea, she said, the country must balance how to cooperate to protect the country's sovereign rights in the area.

The West Philippine Sea is a portion of the South China Sea marking the maritime zone entitled to the Philippines under the UNCLOS.

In the same forum, political analyst Richard Heydarian agreed that a version of a COC that contravenes with UNCLOS, more so if legally binding, would be "worse than not having a COC."

China, which lays claim on a huge swath of the sea lane, has consistently rejected the UNCLOS Arbitral Tribunal's 2016 landmark ruling on the South China Sea.

At present, negotiations to conclude the COC early are ongoing between Beijing and the Association of Southeast Asian Nations (ASEAN).

Last March, Chinese Foreign Minister Wang Yi said China is ready to work with the bloc to step up talks, "so as to make the South China Sea a sea of peace, friendship and cooperation."

Nanyang Technological University S. Rajaratnam School Associate Professor Collin Koh, meanwhile, said negotiators must ensure the COC has enough confidence and security-building measures (CSBMs) in place.

Citing the 2018 Single Draft Negotiating Text for the COC, Koh cited a "huge gap of difference" in priorities when it comes to driving maritime security cooperation.

"There are much more proposals when it comes to promoting practical security cooperation but very scant proposals when it comes to promoting confidence and security-building," he said.

Koh said an effective COC would bank heavily on CSBMs to "moderate behavior" among the claimant states' maritime forces.

"We need to focus more on that," he said. "Without CSBMs, I don't think we could go very far in actually implementing the practical security cooperation itself."

In 2023, the foreign ministers of ASEAN and China adopted the Guidelines on Accelerating the Early Conclusion of the Code of Conduct and agreed to work towards concluding the COC within three years.

The recent negotiations were held in Manila in April, with the next round set to convene in Malaysia later in the year. (PNA)