I wish to thank the organizers for the invitation to participate in today’s discussion. Over the years, I had the privilege to discuss with some of you in forums organized by the National Institute for South China Sea Studies in Boao and Haikou several related topics. Among them: the shared character of the South China Sea’s marine living resources and marine environment, the importance of these resources to the surrounding countries and in particular the dependence on them of impoverished communities in a number of developing coastal states. We talked about the legal obligation of the states bordering the SCS as a semi-enclosed sea to cooperate among themselves in order to ensure the sustainable development of these endangered resources and fragile marine space. We also discussed the embarrassing absence of an effective regional mechanism for their management and protection. I can only associate myself with the hopes, aspirations and yes, frustrations, that Dr. Xue Guifang earlier expressed this morning.
In the context of overlapping territorial and maritime claims, the marine environment and marine living resources of the South China Sea are likely to remain contentious among the bordering states unless a collective, cooperative and constructive approach is adopted. Continued reports of several countries having organized or are considering to organize armed fishing militias can only exacerbate conflict and actual incidents that have erupted. They are symptoms of a zero-sum competition for fisheries resources and the failure of unilateral approaches in managing these resources.
The glaring absence of regional cooperative action persists despite all states bordering the SCS having participated in the negotiation of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and all having ratified it. This regional drift is likely to invite more legal disputes rather than less. In this sense, it is a hotspot. But, on the positive side, the availability of legal channels under the UNCLOS for resolving these disagreements can avoid outright conflict.
We have not seen the last of state actions relative to the marine environment and shared marine living resources can give rise to legal disputes invoking the mandatory dispute settlement mechanisms under the UNCLOS. Developments in international jurisprudence have pushed the frontiers of state obligations in these areas, including decisions of the International Tribunal on the Law of the Sea (ITLOS) which recognize the link between the marine environment and marine life. The ITLOS has described the obligation to protect and preserve the marine environment as “a fundamental principle underlined in articles 192 and 193” of the UNCLOS and referred to in its preamble, and “the conservation of the living resources of the sea is an element in the protection and preservation of the marine environment.” Both obligations are imposed on all states throughout the different maritime zones.
As one judge in a 2015 ITLOS Advisory Opinion pointed out, the UNCLOS adopts a “rules of reference approach”. It “first formulates a general duty and then refers to and incorporates those rules or standards developed in other legal instruments into its ambit.” In this sense, the UNCLOS rules have an inherently progressive character. As a consequence, the expanded obligations flowing from applications of this principle can further pave the way for the application of state responsibility under international law as another judge has stated.
Along those lines, we have seen how the South China Sea Arbitration Tribunal organized under Annex VII of UNCLOS in its 2013 and 2016 decisions considered a number of these environmental and marine living resources issues that are not dependent on territorial sovereignty or maritime claims, including a flag state’s responsibilities over its vessels, the obligation to conduct environmental impact assessments, and the duty to communicate and cooperate with neighboring states. Needless to state, this trend is likely to intensify as marine transboundary challenges grow in complexity, worsened by climate change and pandemics as they impact on the marine environment and resources and the societies that are critically dependent on them.
It may be relevant to recall that a case for compulsory arbitration under Annex VII of UNCLOS was brought in 2003 by Malaysia against Singapore involving land reclamation in the Straits of Johor. Malaysia applied for the issuance of provisional measures with the International Tribunal on the Law of the Sea (ITLOS) while awaiting the constitution of an arbitral tribunal. It is instructive in that the ITLOS emphasized the duty to cooperate among the parties and indicated how it could help lead toward a solution.
The ITLOS noted that there had been “insufficient cooperation between the parties” up to the time when the case was filed and that an assessment concerning the impact of the land reclamation works on waters under the jurisdiction of Malaysia had not been undertaken by Singapore. According to the ITLOS, “given the possible implications of land reclamation on the marine environment, prudence and caution require that Malaysia and Singapore establish mechanisms for exchanging information and assessing the risks or effects of land reclamation works and devising ways to deal with them in the areas concerned.” The ITLOS directed Malaysia and Singapore, by way of provisional measures, to cooperate and, for this purpose, enter into consultations in order to establish a group of independent experts with the mandate “to conduct a study, on terms of reference to be agreed by Malaysia and Singapore, to determine, within a period not exceeding one year from the date of this Order, the effects of Singapore’s land reclamation and to propose, as appropriate, measures to deal with any adverse effects of such land reclamation.”
The joint study prescribed by ITLOS was carried out by an independent group of experts, composed of four professors of coastal engineering—two appointed by each side. The Group of Experts was assisted by an independent consultant, jointly appointed by Malaysia and Singapore. The Group of Experts submitted its Report to both Governments on November 5, 2004, and unanimously found "no major impacts" arising from the reclamation works. Forty were classified as "slight," meaning that while they could be detected in mathematical models, they were unlikely to be detectable in the field. The remaining 17 impacts were classified in the "minor" to "moderate" range. To alleviate the identified impacts, the Group made seven recommendations which were accepted by Malaysia and Singapore, and formed the basis for bilateral negotiations to find a resolution. After three rounds of negotiations, Malaysia and Singapore signed a full and final settlement of the case on April 26, 2005.
As shown in the above example, the availability of alternative dispute resolution mechanisms need not be seen as an unwelcome complication. They can encourage the parties to find mutually acceptable solutions. If necessary, at least they provide legal fora, contained in existing legal instruments already agreed upon, that provide channels for reducing tensions, avoid outright conflict, and help clarify the applicable rules. The global experience in the compulsory settlement of international trade disputes also provides a comparable process that is viewed as fair to all parties.
Still, the first best choice is for the bordering countries of the SCS to cooperate collectively in the effective management of their shared marine environment and its living resources.
The observations made earlier by former Philippine President Gloria Arroyo remind us that fishing concerns in the SCS cry out to be immediately addressed in a multilateral way including: the regulation and reduction of fishing effort, and illegal, unreported and unregulated fishing in the SCS. These call for the coordination of national marine environment and fisheries policies and laws as unilateral measures can produce negative even if unintended effects. For instance, imposition of unilateral fisheries bans in one area of the SCS has been shown to transfer fishing effort to other parts of the region with disastrous effects. A region-wide effort at determining the extent of fishing effort or a common registry of fishing vessels operating in the SCS can be modest starting points. A multilateral regime-building effort requires getting comfortable with consultative and cooperative processes. A Code of Conduct for the SCS can facilitate and assist this process, but the Code cannot substitute for directly addressing the challenges of sustainable marine development in the region. Certainly, these regional issues are over and beyond US-China competition. An unfortunate consequence is that, for that very reason, they are not likely to attract the level of attention that they deserve from government leaders. But let us prove the pessimists among us wrong.