Part I

Introduction: Laying the foundation for ocean governance in the South China Sea maritime region, defining the concern relating to the coastal and marine environment, and prescribing the ocean governance approach. On the occasion of the 20th ASEAN-China Summit on 13-November-2017, the Heads of States/Governments of ASEAN Member States and the People’s Republic of China proclaimed 2017-2027 a decade of coastal and marine environmental protection in the SCS. The Declaration embodies a 15-paragraph mix of preambular cum substantive provisions. The operative part at the end of the Declaration proclaims the decade 2017-2027, “A Decade of Coastal and Marine Environmental Protection in the SCS,” and that the Governments of the ASEAN Member States and China are “committed to meet the aspirations of this Declaration.” References to the SCS, which is mainly concerning ocean governance, reflecting the essence and aspirations of the Declaration, would therefore refer mainly to the maritime area, and minimized allusions to the disputed areas.

The Declaration takes note that it coincides with the 15th anniversary of the signing of the ASEAN-China Declaration on the Conduct of Parties in the SCS (ASEAN-China DOC-SCS). It also reaffirms the “regional commitments” in 2016 on the 19th ASEAN-China Summit to Commemorate the 25th Anniversary of ASEAN-China Dialogue Relations, and in the Joint Statement of the Foreign Ministers of ASEAN Member States and China on the Full and Effective Implementation of the DOC. The Declaration affirms the commitment of Governments under the ASEAN-China DOC-SCS “particularly on undertaking cooperative activities on marine environmental protection,” and that the parties concerned may explore and undertake cooperative activities in accordance with universally recognized principles of international law, including the UNCLOS 1982. It acknowledges the importance of protecting the SCS as a natural resource base for economic and social development, and that the preservation and sustainable management of the coastal and marine environment is vital to economic well-being and enhanced quality of life of the peoples of ASEAN Member States and China.

The Declaration cites interrelated framework instruments relevant to protection of the coastal and marine environment; recalling the “obligations of Governments” as contained in the following international agreements: (a) United Nations Convention on the Law of the Sea, 1982; (b) United Nations Decade on Biodiversity (2011-2020); (c) Convention on Biological Diversity (CBD), and relevant international instruments; and (d) United Nations Agenda 2030 for Sustainable Development, particularly Goal Number 14, Life Below Water, to promote conservation and sustainable use of the oceans, seas and marine resources. A general reference is made in regard to UN resolutions and other efforts to preserve and protect coastal and marine environment and resources.

In regards to the management of marine resources “to ensure its rational and sustainable development,” the Declaration cites specific reference to generally accepted scientific principles: (a) the need to promote responsible fishing practices, environmentally-friendly fishing methods; and combat illegal, unreported and unregulated (IUU) fishing, to ensure sustainable fishery resources and achieve food security; (b) a precautionary and ecosystem-based approach based on the best available science in marine resources management to ensure rational and sustainable development could be applied as appropriate; (c) sustainable management and conservation of fresh water eco-systems such as lakes and rivers, wetlands, and adjacent estuaries along coastal areas in the overall health of the marine environment (of particular interest to the Philippines and other ASEAN countries is environmental management in “water communities” or those located onshore or in lakes as they have significant impacts “on the overall health of the marine environment”); and (d) conservation of endangered and migratory wildlife species warrants cooperation from countries within the region where such species spend any part of their life cycle. As a management principle, is “the need to continue developing and sustaining environmentally-friendly mechanisms to mitigate the effects of climate change and trans-boundary marine environmental pollution and degradation.”

The scientific framework and parameters are not intended to be exhaustive or all-inclusive as they merely set the collective tone and convey the message in regard to ocean governance in general that highlight their special relevance to sustainable management and conservation concerns of the coastal and marine environment in the SCS. Moreover, the Declaration notes the current environmental situation in the SCS requires collective attention and action to protect the marine environment and biodiversity; noting further “that coordinated and cooperative regional efforts are essential for the scientific conservation and management of the marine environment, biodiversity, and coastal zone of the ecosystem of the SCS.”

As an aspiration of the Parties for the sake of the preservation and conservation of the coastal and marine environment is to explore and undertake other cooperative activities under universally recognized principles of international law, including UNCLOS 1982, “pending a comprehensive and durable settlement of territorial and jurisdictional disputes …without prejudice to the positions of the concerned parties to the disputes.” The “benefits to be gained from having the SCS as a sea of peace, stability and prosperity,” is in the Declaration. The obligations and commitments of the ASEAN Member States and China, and their collective aspirations under the Declaration, transcend the maritime disputes in the SCS and lead towards a pure science norm-based management approach collectively and cooperatively to conserve, preserve and protect the coastal and marine environment.

Implementing the Declaration – a rules–based regional ocean governance framework under UNCLOS 1982. The Declaration lays down the foundation for collective and cooperative regional ocean governance among States bordering the SCS, but assumed as an ASEAN-China undertaking among all the Parties to the Declaration. The legal and scientific framework for implementing the Declaration is UNCLOS 1982, which is attributed all prominence in ocean governance, and the rights, duties and obligations among States Parties to UNCLOS to cooperate in the implementation of the provisions. In the situation of SCS with characteristic regional features (UNCLOS Article 197) that necessitates collective and cooperative ocean governance, and additionally burdened with intractable maritime jurisdictional issues among bordering States, the appropriate legal and scientific framework for the immediate governance concerns reflected in the Declaration (i.e., coastal and marine environment protection) would be the UNCLOS Part IX on enclosed and semi-enclosed seas. The SCS meets the UNCLOS definition of an enclosed/semi-enclosed sea defined at Article 123 thereof, as a gulf, basin or sea surrounded by two or more States and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States. As regards a governance regime for enclosed and semi-enclosed seas, the same UNCLOS provision also calls for cooperative undertaking, bilateral or collective, in all aspects of ocean governance and management for such seas.

The Declaration is an ASEAN-China undertaking in SCS and the governance approach is explicitly determined therein to be collective and not bilateral. Under UNCLOS Article 123, the parties directly concerned in an UNCLOS Part IX arrangement in the SCS would be China, Vietnam, Laos, Philippines, Malaysia, Brunei, and Indonesia as bordering States. The ASEAN member countries and China would form the principal participating States in an UNCLOS Part IX arrangement implementing the Declaration. However, in the context of the Declaration in relation to UNCLOS Part IX, the rest of the ASEAN member States would necessarily be direct participants in its implementation, in two categories subsumed together: (1) as signatory to the Declaration as ASEAN Member States, and (2) as “other interested States” under UNCLOS Article 123 that do not border the SCS, wherein the “invitation” from the principal participating States to the rest of the ASEAN member countries is necessarily impliedly contained and accepted in the Declaration itself. In the context of the Declaration implementing UNCLOS Part IX, the distinction between States bordering the SCS and the rest of the ASEAN Member States has been erased, and that all ASEAN member countries are collectively participants with China as Parties to the Declaration. Moreover, the duties and obligations between the ASEAN Member States and China, would necessarily extend throughout an expanded maritime area as interconnected enclosed and semi-enclosed seas under UNCLOS Part IX, that would encompass all the seas of the ASEAN maritime region beyond the intended SCS ambit of the Declaration.

Implementing the Declaration on coastal and marine environmental protection in the SCS is an all-inclusive undertaking among ASEAN Member States and China by virtue of the terms of the Declaration, and not only among ASEAN countries bordering the SCS and China. The undertaking among ASEAN Member States in regard to coastal and marine environmental protection in SCS under the Declaration is differentiated from that in the ASEAN-China DOC-SCS, and for that matter under the ASEAN-China Code of Conduct being formulated, which binds directly only the ASEAN claimant countries and China. The obligations and commitments under the Declaration is an active collective and cooperative engagement among ASEAN Member States whether claimant or non-claimant States in the SCS maritime jurisdictional disputes. Whereas, non-claimant countries in the ASEAN-China DOC-SCS (and the proposed Code of Conduct) are simply passive participants and not even guarantors of its faithful compliance – a factor in the seeming indifference and perceived failure of the ASEAN to reach consensus on the SCS agenda.

Implementing the Declaration – Defining the scope of collective cooperation in ocean governance. The activities outlined in the Declaration would be implemented collectively and cooperatively as prescribed and not bilaterally as otherwise allowed under UNCLOS Part IX. Since the Declaration mentions UNCLOS as the principal instrument to implement the Declaration, and UNCLOS Part IX being the relevant governance regime for the SCS as enclosed/semi-enclosed sea, the appropriate modality or vehicle for a collective and cooperative maritime and ocean governance scheme would necessarily be through an appropriate regional organization (UNCLOS Article 123) to be established through an implementing agreement among UNCLOS Part IX stakeholders: (a) the States bordering the SCS: China, Vietnam, Laos, Philippines, Malaysia, Indonesia, Brunei; (b) the rest of the ASEAN Member States as Parties to the Declaration that binds them collectively; and (c) international organizations and NGOs upon invitation of the principal stakeholders under the Declaration.

Faithful to the rationale and aspirations expressed in the Declaration on coastal and marine environmental protection, the connectivity of the ocean, the geomorphological and large marine ecosystem setting of the SCS, and the rationale for such seas being accorded a sui-generis governance regime under the UNCLOS, it cannot be too early to start adapting a mindset to project holistic and comprehensive governance to the entirety of the ASEAN seas. They share characteristic regional features and are inter-connected enclosed/semi-enclosed seas that encompass inter-connected archipelagic waters within. An expansion of coastal and marine environmental protection for the wider maritime region would be a compelled regional undertaking per UNCLOS Part IX.

Implementing the Declaration – Target activities relating to coastal and marine environmental protection in the SCS for the decade 2017-2027. The ocean governance activities are: (a) to promote responsible fishing practices, environmentally friendly fishing methods, combating illegal, unreported and unregulated (IUU) fishing; (b) scientific conservation and management of marine resources and environment, biodiversity, and coastal zone of the ecosystem; (c) sustainable management and conservation of fresh water eco-systems such as lakes and rivers, wetlands, and estuaries along coastal areas, and the overall health of the marine environment; and (d) to continue developing and sustaining environmentally-friendly mechanisms to mitigate the effects of climate change and trans-boundary marine environmental pollution and degradation.

While the Declaration mentions specific activities, it cannot be intended as a neat exclusionary enumeration. The Declaration encourages that “the parties concerned may explore and undertake relevant cooperative activities in accordance with universally recognized principles of international law, including the UNCLOS 1982” and not confine themselves solely to specified activities of the Declaration. The framework instruments in the Declaration serve as guidance documents for crafting a regional ocean governance regime in the SCS, and provide a wide scope of protective and conservation measures including a general reference to “UN resolutions and other efforts to preserve and protect the coastal and marine environment and resources.” Other efforts may include “developing and sustaining environmentally-friendly mechanisms to mitigate effects of … trans-boundary marine environmental pollution and degradation.”

The target activities can be an initial or “starter package” for the SCS under the Declaration and for constructing a regionwide ASEAN-China Integrated Coastal Zone Management (ICZM) program addressing the economic, socio-cultural, and security pillars of AEC 2015 vital to food security, “economic well-being, and enhanced quality of life of the peoples of ASEAN Member States and China.” The Parties can explore and undertake cooperative activities under UNCLOS and universally recognized principles of international law, rendering open-ended the collective and cooperative ocean governance activities beyond the Declaration‘s specificity. In effect, no limits or constraints exist to collective and cooperative ocean governance activities under the Declaration from the outset.

Implementing the Declaration — China’s design and unilateral commitment to ocean governance, a Silk Road Spirit in a Blue Partnership for a Blue Economy; and its direct relevance to the Declaration. On 20-June-2017, or 5 months preceding the Declaration, China promulgated its VISION for Cooperation under the Belt and Road Initiative (the VISION). It is an updated version proceeding from the 2015 Visions and Actions on Jointly Building the Silk Road Economic Belt and the 21st Century Maritime Silk Road. The VISION, together with the ASEAN VISION 2025, are both “acknowledged” in the Joint Statement between ASEAN and China on Further Deepening the Cooperation on Infrastructure Connectivity issued on 13-November-2017 as strategic guiding documents.

As an economic development belt, the VISION spells out in greater detail China’s overall proposition “to synchronize development plans and promoting joint actions amongst countries along the Maritime Silk Road.” VISION shall elicit the highest level of interest and attention from ASEAN as a regional organization; and the ASEAN must attribute due importance to the VISION. Firstly, because it is an economic development proposition that would benefit all individual member countries of the ASEAN as among countries along the 21st Century Maritime Silk Road. The Maritime Silk Road would facilitate outward economic and trade interaction between ASEAN and other economic groups along the maritime route. The Maritime Silk Road under China’s Belt and Road Initiative must be accorded greater prominence in the ASEAN-China Dialogue agenda as it has strong impacts and direct relevance to the 3 pillars of AEC 2015 related to ASEAN VISION 2025.

Secondly, ASEAN is a maritime region striving for a maritime connectivity under AEC 2015 that spills over to or from China. The VISION is a Blue Partnership “together to build platforms for maritime cooperation …as an effective way for promoting ocean cooperation …to promote policy coordination, deepen common understanding, enhance mutual political trust, build bilateral and multilateral cooperative mechanisms …to jointly participate in ocean governance.” It entails an “all-dimensional, multi-tiered and broad-scoped partnership” in a “new era of increased focus and dependence upon maritime cooperation and development.” All efforts are “in order to provide the institutional framework for ocean cooperation” to “jointly protecting and sustainably utilizing marine resources to achieve harmony between man and the ocean for common development and enhancement of marine welfare.” VISION accords parallel importance to economic development and a sustainable coastal and marine environmental protection and management, in a synergized approach along the Maritime Silk Road and the wider maritime region it serves. The practical link between the Declaration and VISION is established under both instruments. The Declaration, ASEAN-China DOC-SCS, and VISION enhance the ocean as a source of life, sustainable livelihood, shared development, and for quality of life.

An ASEAN-China partnership for ocean governance under the Declaration and VISION for an Asian Century in a new world economic and political order. Underlining the Blue Partnership is what China calls The Silk Road Spirit, which is about “peace and cooperation, openness and inclusiveness, mutual learning and mutual benefit,” expounded in the 10-page VISION. There is a political strand in the geo-economic line, nonetheless a truism relevant to the SCS embroiled in maritime jurisdictional disputes, that “enhancing maritime cooperation also enables various countries to jointly tackle challenges and crises, thus promoting regional peace and security.” Trans-border maritime issues are endemic to the wider maritime region traversed by the Maritime Silk Road, many of which are related to resource exploitations not necessarily connected to jurisdictional issues. Some even antedate UNCLOS, thus have historical roots. Many are low-intensity resource competition that could be resolved through a re-established ancient Asian culture of negotiations applicable to present-day collective ocean governance cooperation. VISION seeks “mutual political trusts” to “promote harmonious co-existence.”

Pursuing development cooperation would be further enhanced by “strengthening cooperation through existing multilateral mechanisms” and “boost cooperation with multilateral organizations” (IMO, FAO, IHO, IOC/UNESCO, International Ocean Institute). Peaceful dispute resolution and management resorting to consultations and negotiations would likely involve delving into technical and scientific parameters under UNCLOS Article 123 that would involve international organizations and NGOs as stakeholders. It would strengthen synergies between sustainable development and sustainable ocean governance. The political influence of States with competing self-interests must not be a factor in maritime dispute settlement.

This is the general exposition of the direction and approach of the VISION, which is the assurance of China’s commitment to the Declaration. The VISION contains elements that reinforce the Declaration, the full and effective implementation of the ASEAN-China DOC-SCS, and the UNCLOS Part IX on enclosed and semi-enclosed seas. It is a detailed translation into a comprehensive regional ocean governance architecture that can consolidate elements contained in the Declaration and the ASEAN-China DOC-SCS under the umbrella of UNCLOS Part IX, in support of AEC 2015, ASEAN VISION 2025, and the Belt and Road Initiative. This direction could be the signal contribution towards a rules-based “progressive development” of an ASEAN-China partnership in SCS, and beyond.

The undertakings and commitments towards regional ocean governance contained in the strategic guidance documents can be consolidated into a coherent component “annex” to UNCLOS Part IX. It can also be taken as a purposeful modern-day adaptation of collective security in regard to an appropriate role of a de facto or informal regional organization (i.e., ASEAN-China) in resolving maritime disputes — a regional maritime security concern appropriate for regional action. This regional undertaking would be a more constructive alternative wisely attuned to a regional Asian culture and values, than the contrived and discredited recourse to a unilateral compulsory arbitration under UNCLOS. It would also lend substance and credence to the 1976 ASEAN Treaty of Amity and Cooperation in Southeast Asia (ASEAN-TAC) subscribed to by China, and to promote adherence towards dispute resolution or conflict management elements contained therein.

There is a clear and desirable connection linking the Declaration, the ASEAN-China DOC-SCS, and China’s vision for a blue cooperation under the Belt and Road Initiative. The documents impact on the SCS, and dwells on cooperation among the same Parties to the said separate documents in regard to ocean governance cooperation transcending any political hindrances to pursuing practical cooperation activities. The Declaration reflects multilateral engagement in furtherance of the ASEAN-China DOC-SCS. The VISION for the Belt and Road Initiative on the other hand is a unilateral China undertaking for a wider and comprehensive ocean governance cooperation in support of a shared economic development and prosperity among countries along the Maritime Silk Road. The undertakings and commitments in the documents and the ASEAN VISION 2025 as strategic guidance documents would be a comprehensive program planning and implementation under UNCLOS Part IX.

The agreed initial ocean governance cooperation called for in the Declaration appears more limited than the broad scope of China’s vision for cooperation under the Belt and Road Initiative. The Declaration as the primary framework instrument for pursuing ASEAN-China maritime cooperation has a built-in provision for expansion of practical cooperation activities that can be added incrementally to the scope of cooperation for the decade 2017-2027. This expanded envelope of activities under the Declaration could be in as many aspects of China’s vision commitment under the all-embracing VISION for a Blue Partnership under the Belt and Road Initiative. A number of existing ASEAN-China maritime cooperation arrangements, and sets of separate bilateral arrangements between China and ASEAN member countries are catalogued in China’s vision document. These bilateral arrangements, which involve all ASEAN member countries except Philippines, can be used as building blocks under the Declaration and UNCLOS Part IX.

Maritime jurisdictional issues as perceived hindrance to ocean governance cooperation in the SCS. Awareness of a brewing and escalating conflict situation in the SCS became palpable since the mid-1990s with the “Mischief Reef incident” involving China in the Spratly archipelago. The “incident” was seen as overt and proximate that raised tensions in the SCS, and was generally regarded as signaling China’s “assertiveness” in a maritime dispute situation. It is also said that China’s assertive moves in the Spratly archipelago to reconsolidate on what it considers its rightful entitlements in national territory, was further fueled by a vacuum created with the departure in 1991 of U.S. presence in the SCS through their military bases in the Philippines. This was in the wake of a catastrophic volcanic eruption that destroyed physical facilities in the military bases, a natural event almost coincidental with the termination of the Military Bases Agreement between Philippines and U.S.A.

The Mischief Reef “incident” was not an aggressive display of force but the setting up of a flimsy “fisherman’s shelter” that when discovered, was announced by China to be made available in due time to fishermen of any nationality facing a distress situation in the SCS. China’s move was taken as establishing an occupation or at least a “presence” in the disputed area. If it were indeed so, the excuse then relates to an ocean governance concern for fishermen and a proffered shared solution; thus planting the seeds of an idea for collective cooperation.

The underlying cause of the conflict situation was the unsatisfactory disposition, bordering on utter neglect or total indifference, at the United Nations Conference on International Organization (San Francisco, 1945) in regard to islands and other marine geological features in SCS. The post-colonial and post-WWII sovereignty issues in SCS thereafter remained festering and percolating. China’s change of government, from the Kuomintang to the Peoples’ Republic, raised regional apprehensions that translated into the “Domino Theory,” triggering a free-for-all territorial grab. Remember: it was the Kuomintang Government era that first emphasized application of the “9-dashed line,” and Taiwan is still in possession of Itu Aba, the largest island in the Spratlys. The current involvement of China merely arises from governmental succession as well.

Awareness was growing among countries surrounding the SCS that the latent conflict situation in the Spratly archipelago could hamper normal State-to-State interactions. These early apprehensions were accompanied by a sense that the escalating conflict situation might yet be deflected, and political tensions eased, through cooperative ocean governance activities among regional States, in particular among the “claimant countries,” a point that has not been lost on the Declaration and VISION. Earlier, China had offered a “soft” formula to peacefully resolve the conflict situation, which is about “shelving” sovereignty issues among claimant countries and engaging in joint cooperation/joint development of marine resources, leaving the sovereignty issues to future generations who may have the wisdom to work out the solution.

(Part II to be featured in the Maritime Review’s May-June issue)