Perspectives and proposed approach on cooperation for regional security and development in the South China Sea, by Alberto A. Encomienda

Many points raised in this paper are observations and institutional knowledge arising from involvement in the South China Sea issues for three decades as a diplomatist of my country, the front-line claimant State. It is nevertheless hoped that this paper can generate some interest in practical steps that can be taken to alleviate the current conflict situation in the South China Sea

The Historic and Traditional Significance of the South China Sea in the Regional and Global Context

Since time immemorial the importance of the South China Sea was always as communications link between islands and among early civilizations in the region. The regional sea was a unifying rather than a divisive factor; a sea of tranquillity never conflicted. More recent regional and global developments of the past sixty (60) years, however, have impacted on the geostrategic significance of the South China Sea, in two aspects, thus:

·    the strategic politico/military regional context at the conclusion of the Second World War

·   the increasingly intensifying competition for potential petroleum and mineral resources; including jurisdictional assertions in regard to fish resources

In regard to the first aspect above, the South China Sea has always been a very important regional body of water in terms of navigational routes for domestic and intra-regional, and international, vessel traffic. For descriptive purposes, borrowing from the ASEAN-US joint statement at the Second ASEAN-US Meeting this year, the South China Sea has traditionally enjoyed “regional peace and stability, maritime security, unimpeded commerce and freedom of navigation”. The regional maritime culture serving all human activities in the South China Sea early in maritime history was always as “mare liberum”. This was the prevailing regional international law of the sea long after the early world maritime Powers shifted to the concept, and instituted, the norm of “mare clausum” initiated under the Treaty of Tordisillas in the 14^th century.

The changed circumstances and geopolitical realities of post-World War II could initially render justifiable the ensuing frantic marine-grab among riparian States of the South China Sea, heretofore friendly neighbours. In the immediate aftermath of World War II, it was seen that some islands and islets in the South China Sea were used as staging areas by aggressor States. Concerned riparian States scrambled to secure possession of any and all geological formations in the regional sea as immediate reaction towards ensuring national security. In the developing situation, considering the aforementioned earlier prevailing atmosphere in regard to the South China Sea as a peacefully shared resource, the riparian claimant States are hard put to justify the basis/es of their respective claims which, in the accepted modality of the time, must be anchored on ownership. Some claimant States would even include among other bases of their claims, that of “discovery”; invoking the notion that the islands and islets are “res nullius”. With ownership and sovereignty as bases for claims, the mare liberum regional norm for the South China Sea quickly morphed into mare clausum. The foregoing can be seen as the political origins of the South China Sea disputes.

There could, however, be no further justification for this regional security concern in the post-war decade upon the coming into force of the Charter of the United Nations that established the principle of non-use of force in the relations among nations, and collective security. Moreover, in the special geological/geographical situation of the South China Sea as an enclosed or semi-enclosed sea, an ocean governance mechanism with direct implications on regional maritime security was shortly thereafter instituted under the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The newly “claimant” States, however, would not or could not revert to the status quo ante bellum.

In regard to petroleum and mineral resources, these did not figure into the South China Sea competition and conflict scenario until at least two decades after World War II. In the decade of the eighties, when talk began to emerge in regard to potential petroleum reserves in the South China Sea, the argument was whether or not there were such resources at all in the South China Sea or, if there does exist, whether they were commercially exploitable. This was to dampen the acquisition zeal among riparian States. At the beginning of the decade of the nineties when it was more definitively determined that petroleum resources are indeed present in the contested area, the debate shifted to estimates of the potential size of oil and natural gas reserves, which kept getting bigger and bigger. It is also to be noted that sovereignty claims in the South China Sea began to intensify at this point in time and for the foregoing reason, reaching the current conflict and competition crescendo that was dramatically boosted by the two “oil shocks” occurring in the mid-seventies and late eighties. The conflict and competition further intensified with the advent of the UNCLOS that provides expanded maritime jurisdictions generated by individual islands i.e. the Continental Shelf and the Exclusive Economic Zone. In the geological/geographical context of the South China Sea, the resulting enlargement of maritime jurisdictions unavoidably created territorial and jurisdictional overlaps that further complicated the claims and exacerbated tensions. The foregoing events can be said to be the economic underpinnings that would prevent a return to pre-World War II maritime status quo in the regional sea.

As to competition for fisheries resources, up to this very moment this has never been a serious contention in the context of the South China Sea, proof being that there has been no perceived need even among riparian States sharing the resources to control exploitation and conservation, and install international or regional governance mechanisms. A claimant State in recent years imposed national fisheries regulation in the South China Sea in terms of “closed seasons” for fishing that also covered the contested areas. The clear intent, however, is more of an added step to bolster its sovereignty claim, later additionally “strengthened” by the building of a “fishermen’s shelter” in a strategic part of the contested area. An accompanying promise to share the shelter with fishermen from other countries was never made good. This is not to say that fisheries is not a factor in the geopolitical situation of the South China Sea, but at the moment, to simplify the issues, fisheries cannot be considered a factor to justify the assertion of national jurisdiction. Fisheries as an argument to defend national interests in the South China Sea and support an assertion of sovereignty is . . . sophistry.

The foregoing is merely an attempt to clarify and simplify issues to better appreciate proposals for a solution. No fault-finding or finger-pointing, much less criticism, against any concerned State is intended. A narrative description along the above points to further improve perspective and a better appreciation of relevant issues and hopefully provide some guidance on a way forward, is provided below.

Navigational routes in the South China Sea

The International Maritime Organization (IMO) describes the important role of the ocean, thus: “the history of the world is a history of exploration, conquest and trade by sea.” Ocean history as a history of trade by sea is necessarily true for Asia which is straddled at its eastern maritime rampart with archipelagos, which also forms the outer ring of the South China Sea on the Pacific Ocean side. Sea-borne trade among the countries of Southeast Asia, China, Japan and India, as well as others, have traditionally carried on for centuries. Historical records show that maritime trading has been active in the entire length and breadth of the South China Sea since the early beginnings of seafaring, and wherein later were established important communications arteries of the olden Silk Road, the Spice Route, the Galleon Trade and the European age of discovery, and China’s age of exploration during the Ming dynasty.

In more contemporary times, the United Nations Conference on Trade and Development (UNCTAD) estimates international seaborne trade in 2007 at 8.02 billion tons of goods loaded. A geographical breakdown of goods loaded by region attributes to Asia the largest share at forty per cent (40%),[1]necessarily assigning the South China Sea as among world’s busiest shipping routes. The South China Sea connects Northeast Asia with Southeast Asia and the Middle East. More than half of the world’s annual merchant fleet tonnage passes through the Straits of Malacca, Sunda, and Lombok, with the substantial portion continuing on to the South China Sea.[2]Tanker traffic through the Strait of Malacca leading into the South China Sea is more than three times greater than that transitting the Suez Canal, and well over five times more the volume through the Panama Canal.[3]UNCTAD predicts that global seaborne trade would increase by 44% in 2020 and double by 2031. With fast growing economies in Asia, the South China Sea is clearly destined to continue to play a strategic and significant role in world maritime commercial navigation.

South China Sea Energy Resources

The South China Sea is said to have evolved from “complicated plate tectonic movement in the surrounding areas . . . which bear great influence on the regional tectonic pattern, paleo-environmental change, formation of sedimentary basins and distribution of oil and gas resources.” This geological attribute raised assumptions that energy resources exist in the area,[4]and fuelled further curiosity and investigations.         

While estimates from various sources on the potential oil and gas resources in the South China Sea varies, recent studies indicate that the Reed Bank alone, closely adjacent to the Philippines and well within its exclusive economic zone (EEZ) but nevertheless assertively defined by other claimant States as contested area, could contain some 0.1 – trillion cubic meters (3.4 – trillion cubic feet of gas) and potentially 440 million barrels of oil[5]. As energy requirement in the region continue to grow (the Energy Information Administration of the United States projects that the oil demand for South China Sea nations will more than double from about 15.1 million barrels per day in 2002 to nearly 33.6 million barrels per day by 2025[6]), competition for the resource would intensify and thus the South China Sea would persist to be a flashpoint in the region unless arrangements are quickly reached to moderate and manage conflict and competition

Fisheries Resources of the South China Sea

According to the United Nations Environment Programme (UNEP), South China Sea fisheries are of significant local, national and international importance as it is a major contributor to both food and national income.[7]The South China Sea is considered one of the most important and abundant commercial fisheries in the world, with 2500 species of marine fishes and 500 species of reef-building corals.[8]The common commercial fish stocks in the region are scads and mackerels, which are shared stocks, and tuna and tuna-like species, which are highly migratory species.[9]The region has a total annual marine production of over 8 million tonnes, which is about 10% of the total world catch.[10]Among the three main claimant States, the issue relating to fisheries is not competition for the resource, but illegal entry of fisherfolk and fishing vessels into national territory.

Post - World War II Political Atmosphere in the South China Sea Region

At the end of World War II, political interaction among the regional States no longer enjoyed the politico-cultural and social cohesion earlier in the history of the region mainly due to the intervening colonial period that resulted in deferring national political structures, socio-cultural orientation, and development among regional States. The colonial period, which was the Age of Discovery among competing European States, and later the entry of the United States of America, made strangers among South China Sea neighbour-States. Even earlier, the semblance of a unifying strand of suzerainty among regional civilizations under the Middle Kingdom abruptly ended with the Zheng He expeditions during the Ming Dynasty, after the untimely death of the Admiral. The resulting political estrangement among regional States can be seen as the reason why, in the immediate aftermath of World War II, it was “every man for himself” in unilateral appropriation of islands and islets in the South China Sea looking at ensuring the protection of national security interests. There was no longer any shared sense of regionalism or regional identity after at almost four centuries of estrangement among riparian neighbour-States. Eventually, the post World War II competition for maritime territories rapidly deteriorated to a conflict situation with the discovery of potentially large hydrocarbon resources in the South China Sea; further intensified by demand for petroleum resources driven by fast-growing economies of regional countries especially among claimant States. National security concerns were rapidly colored with economic security.

Approaches to Settlement of Disputes

Settlement of Traditional Security Issues in the South China Sea

In the consideration of possible solutions to the traditional security issues associated with the South China Sea, a number of specific measures for limited purposes and applications have been discussed over time. These will not be considered here, although a topical example would be mentioned merely to project the stop-gap nature of these proposals. Reference is made to reports that the two parties to a similar “island” – ownership dispute in the East China Sea have agreed to a “liaison system” in the wake of a recent incident involving a collision of Coast Guard vessels of one party and a fishing vessel belonging to the other. This is to prevent conflicts at sea. This is not to say that arrangements for confidence-building or conflict-prevention at sea are meaningless or without value. But these do not remove or address the “core” issue of the conflict scenario which is sovereignty and ownership. They would serve a constructive but limited purpose, and it would take a very long time before the collectivity of such piece-meal arrangements could contribute to the desired coherent durable solution to the South China Sea concerns. Indeed, a basket of similar mechanisms for the South China Sea proposed in 2006 under the Declaration of Conduct of Parties to the South China Sea (DOC-South China Sea) . . . a draft Guidelines on the implementation of the Declaration on the Conduct of Parties on the South China Sea, has not even began discussions.

The “core” political issue in the conflict situation in the South China Sea is sovereignty or ownership of certain areas, or practically the entire South China Sea. In the post-World War II period, this conflict necessarily must be resolved in the context of the Charter of the United Nations which prohibits the use of force and prescribes a variety of modes for pacific settlement. In the order it is written in the Charter, these are as follows: negotiation, enquiry, mediation, conciliation, arbitration and resort to judicial settlement.For obvious reasons, the current state of affairs in the South China Sea, would seem, offhand, to prelude enquiry and conciliation. So would arbitration, as shall be seen later.

·         Resort to Judicial Settlement - In the above listing of modes of pacific settlement of disputes in the Charter of the United Nations, it is generally accepted that the most durable and with the strongest sense of finality is recourse to judicial settlement. The possible venues for this modality are the International Court of Justice (ICJ) and the International Tribunal on the Law of the Sea (ITLOS). Such a recourse, however, is far easier said than done. It would be extremely difficult, a virtual impossibility, for all the parties together to jointly compose a justiciable case before the Courts on account of the differing bases justifying each claim to ownership; the separate claimants have separate baskets of disparate arguments in support of their respective claims. And this is not to mention the complex procedural process of initiating a case. Moreover, there would expectedly be some reticence on the part of contending parties because disputants have included “historical accounts” as among a principal basis for a claim to ownership. It is well-established in decisions of the ICJ that historical basis alone, without proof of actual possession and exercise of jurisdiction, cannot be sufficient basis for a claim of ownership. And as indicated earlier, in the disputed area, claimant States cannot definitively buttress a historical basis with concurrent actual possession and administration. Finally, anticipating or forecasting a decision of the Court would be a risk the claimants would not gamble with especially because the objects of ownership claims in the disputed area may not even qualify under the UNCLOS definition of an “island” that is capable of supporting human habitation, in order to be subject of appropriation. The disputed area are a collection of islands (which, however, cannot support “human habitation” in the ordinary understanding of the phrase), shoals, islets, cays and reefs. A resort to judicial settlement can therefore be removed from among possible tools for pacific settlement. At any rate, it does not seem even to have crossed the minds of the claimant States; never even been made mention of.

·         In re Mediation and Arbitration - The chances of a recourse to arbitration would be remote under the same circumstances inasmuch as the same aforestated principles as those laid out by the ICJ would most likely be applied by arbitrators. Recourse to mediation would also be highly unlikely for the reason that ownership issues associated with the South China Sea dispute would not be capable of being joined. In this case, there is the added practical reason that, in a “give and take” situation that is the nature of mediation, no State would ever be seen as giving up on sovereign territory or even compromising on sovereignty.

·        Negotiation –The traditional mode for pacific settlement of disputes between States has been through negotiations. And this is what is going on in the case of the South China Sea issues. However, there has been no direct bilateral negotiations between the concerned States – the preferred recourse of the largest and strongest, militarily and economically, among the claimant States. Understandably the lesser Powers among the claimant States would not engage in bilateral negotiations with the dominant Power as the dramatically unequal power equation among them would necessarily result in a perception of an uneven playing field; or of an unequal treaty or treaties (hence, never durable). The lesser parties in the power equation who are members of a regional bloc sought political support under the umbrella of the regional organization, which can be seen as a classic geopolitical move. This recourse by the lesser Powers is inevitably compelled because in a two-party alliance of the lesser Powers herein alluded to, their combined economic and military resources would not even dent the counter might of the dominant regional Power whose military and economic clout, and corresponding political influence, continues to increase mightily.

Track I “groundwork” and seed for negotiations was initiated by the Philippines through the Manila ASEAN Declaration on the South China Sea in the wake of the so-called Mischief Reef incident in 1992. In 1995, the Philippines separately agreed with China and Vietnam on bilateral codes of conduct to minimize the chances of accidental shooting or conflicts. The aforementioned Track I formal beginnings was followed by the ASEAN-China negotiations on a Code of Conduct. An early problem, however, are differing perceptions of the negotiating arrangement: ASEAN feels it is dealing with China as a regional bloc, whereas China takes the position that it is dealing with individual members or States of ASEAN through the regional bloc. At that, the subject of the negotiations, or any semblance of it, skirts the core issue of sovereignty or ownership. ASEAN-China, in whatever of the foregoing configuration the interaction may be viewed, is negotiating merely to establish arrangements to avoid the use of force by putting in place confidence building measures bilaterally or multilaterally.

The mileage thus far achieved at this early stage at negotiations was an attempt to establish a Code of Conduct of Parties in the South China Sea (COC-South China Sea) between ASEAN and China, setting forth norms of behaviour and values that the Parties are obliged to observe in the South China Sea. Specifically, the COC-South China Sea would discourage the Parties from undertaking any activity that would escalate or complicate the territorial disputes. The COC-South China Sea also recommends certain confidence building activities that concerned Parties are exhorted to pursue bilaterally or multilaterally. Despite some years in the making, the COC-South China Sea failed of acceptance among the Parties. In a move to save the situation, the draft Code of Conduct was “downgraded” to a Declaration of Conduct (DOC) which gained acceptance as an intended interim measure. An affirmation of the intention to eventually adopt a Code of Conduct is contained in the DOC.[11]It is said that there is a difference between a Code of Conduct, which is deemed normative and would prescribe sanctions against States Parties committing violations; whereas a Declaration of Conduct is said to be non-binding and merely hortatory. Nevertheless, at the time of its adoption, the DOC-South China Sea was generally seen to be the harbingerof regional peace and maritime security.

[It is not at all constructive that the attitude of the parties makes a distinction between the Declaration of Conduct characterized as being non-binding, and a Code of Conduct which is normative. This is as if a consensus Declaration among sovereign States is a mere “scrap of paper” without even a moral weight. Moreover, granting that the aforesaid distinction is valid and relevant, and a Code of Conduct is buttressed by penalty clause or clauses, considering the disparate power equation and intensity of competition among parties, it would be extremely doubtful that even a Code would find proper respect. A Code of Conduct, if the principal motive is for the parties to desist from the use of force and to pursue a peaceful resolution of the conflict is surplusage. The Charter of the United Nations, the United Nations Declaration of Rights and Duties of States, and the Law of the Sea Convention (the Constitution of the Oceans) already covers all aspects of interstate relations and the peaceful settlement of disputes, and settlement of maritime and ocean issues. Moreover, it can be said that regional “codes of conduct” in historical experience largely evolved from the management or adjustment of relations among regional States and more a governance scenario than containing and highlighting territorial conflicts. A final consideration, if the Declaration of Conduct which is supposed to be non-binding, took almost a decade to draft, how long would it take for a Code of Conduct to be realized – from drafting and all the way to signing and entry into force? By this time, so many aspects of the problem may already be “fait accompli” that may even preclude any possibility of addressing the soft, non-traditional (governance) security concerns. A food for thought, the Universal Declaration of Human Rights and the United Nations Declaration on the Rights and Duties of States, though strictly non-binding being “mere” declarations, acquired normative status as customary international law because of the spirit of universal acceptance that they were received among signatories. If it can be said that the DOC-South China Sea enjoys the same spirit of acceptance among its modest circle of parties, there would be no need for a COC-South China Sea; the DOC-South China Sea would be customary regional international law. (A malevolent thought - the COC-South China Sea could well be a red herring.) A historical concern also is that a COC-South China Sea, or even a DOC-South China Sea, would distort the earlier time immemorial reputation of the South China Sea and its surrounding civilizations being a zone of peace and freedom.]

Post DOC-South China Sea Developments

The DOC-South China Sea signified an implicit acceptance from the claimant countries that territorial disputes in the South China Sea will be put in the backburner. However, recent developments deemed violations of the DOC-South China Sea would cause the South China Sea issue to percolate instead of simmer down, contrary to the spirit of the Declaration; among which are:

·    The passage by the Philippines of Republic Act No. 9522 (Philippine Archipelagic Baselines Law) in March 2009. The Archipelagic Baselines Law reaffirms the Philippine sovereignty over the Kalayaan Island Group (KIG), a group of islands within the Spratlys that are also being claimed by Vietnam and China. The passage of the law was protested by both China and Vietnam[12];

·     The unilateral submission by Vietnam[13]and the joint submission by Malaysia[14]and Vietnam to the United Nations Commission on the Limits of the Continental Shelf (CLCS) of their claims for extended continental shelf (ECS) in the South China Sea in May 2009. The two submissions were protested by the Philippines and China;

·     The decision of the United Nations Commission on the Limits of the Continental Shelf (CLCS) to defer the consideration of the ECS submissions of Vietnam and Malaysia in order to provide the concerned parties in the South China Sea the opportunity to discuss among themselves;[15]which in effect highlighted the differences among the Parties in the South China Sea;

·  TheTripartite Joint Marine Seismic Undertaking (JMSU) in the South China Sea among China National Offshore Oil Corporation (CNOOC), Vietnam Oil and Gas Corporation (PETROVIETNAM), and the Philippine National Oil Company (PNOC) in 2005[16]and the failure to proceed to the next step of joint exploration;

·         Reported aggressive militarization among certain claimant countries[17]and strengthening of garrisons in occupied areas; and the reported substantial build-up of “monitoring” vessels in the South China Sea by one party[18](and the demonstration by the same Party of planting its flag on the seabed in the contested area).

Amidst all these, ASEAN and China have not even come to an agreement on the Guidelines to implement the cooperative activities under the DOC-South China Sea as earlier mentioned, while at the same time ostensibly expressing a common desire to upgrade the non-binding Declaration of Conduct into an agreed normative undertaking in the form of a Code of Conduct (discussions on a Code of Conduct at a working level is said to have commenced).[19]Against the foregoing background of post-DOC-South China Sea events, there was not a positive development in the interest of peace and continued avoidance of conflict.

Way Forward: Standstill ... (and Rollback?)

Given the foregoing recent negative scenario despite the DOC-South China Sea, the South China Sea has continued to be a crucible of conflict and controversy. The above terminology in this chapter title is borrowed from international trade negotiations but an apt graphic proposition as a starting point from which to proceed towards a way forward at this point in time, and considering the continuing deterioration of the situation in the South China Sea. In the search for durable arrangements that could help alleviate, hopefully even reverse, the worsening situation, a standstill is essential. This is not a novel proposition. In 1996 China proposed “shelving” of sovereignty claims (and to proceed to consider joint cooperation/development among claimant States). And as indicated above, the DOC-South China Sea exhorts the Parties to desist from activities that would escalate or complicate the territorial disputes; clearly a call for standstill.

The prevailing conflict situation, needless to say, cannot be allowed to continue to fester. A much – desired rollback, however, to a much-desired pre-World War II situation is far from imminent and may well be impossible. The massively constructed and fortified structures that claimant States have built on non-island geological formations, no mere “installations”, is testimony to hardline positions and would not be easily deconstructed by claimant States responsible. Moreover, the pursuit of a COC-South China Sea cannot be seen to augur a durable solution for the reason adverted to earlier that it does not directly address the “core” issue of sovereignty or ownership. There is even the question of whether the COC-South China Sea, granting strong political will all around, could be completed in another decade, which might be optimistic considering the length of time that it took to draft the “non-binding” DOC-South China Sea, and drafting the GUIDELINES (which took another four years). Furthermore, a Code of Conduct which presumes to penalize sovereign States in the event of violations would necessarily require signature and ratification which could further stretch the time frame for entry into force. And even if indeed enforceable, the Code would not contribute any semblance of stability, not to mention maritime peace and security, since the “core” issue, the continuing source of controversies, is unresolved.

This is not to say that the “core” issue is capable of resolution, it is not, as earlier posited (see p.7). In this situation the primordial and immediate concern of the region would be maritime peace, security and good order; and this can only be achieved through a regional, multilateral ocean governance mechanism. With a good faith understanding and effort at a standstill under the DOC-South China Sea the next move would be to institute the equivalent of what ICJ and ITLOS procedures would call “provisional measures” that would pave the way for the ocean governance mechanism. This can be done without the necessity of a DOC-South China Sea which, from all indications could come too late in the day and, even if it does come, would be no better than the DOC-South China Sea in “observance” by the parties. Pursuing the COC-South China Sea which failed the first time around could well create a false sense of security. A claimant State has already acquired the capability to drill in deep waters, and continue to explore for mineral resources in the South China Sea[20]. A late-arriving DOC-South China Sea would not forestall an anticipated and logical eventual event which is unilateral exploitation.

It is clear, borne out of almost half-a-century of simmering low-level conflict with a constant threat of a looming flashpoint, that negotiations for a durable solution to the South China issues is not leading anywhere despite the DOC-South China Sea favourably heralded shortly after its adoption. The continuing low-intensity skirmishes and the existence of garrisoned and heavily constructed structures on non-islands in the contested areas would attest to this. Furthermore, no durable solution is in sight if sovereignty and ownership is the bone of contention. But as stated earlier, introducing ocean governance in the area, even as “interim” or provisional measures that in the fullness of time could ripen to permanence, is critical and indispensable. The current situation is already untenable; what would happen when the intense competition and creeping unilateral exploitation of petroleum and other mineral resources goes unabated, would be unimaginable. Resort must be urgently made to addressing non-traditional security issues. The immediate aim is to institute regional maritime safety and security, and peace and good order.

Non-Traditional Security Issues

At this point, non-traditional security issues need not be defined in specificity. They can be generally described as anything and everything outside of the political/security issues and oriented towards an institutionalized mechanism of ocean governance in the South China Sea to promote and establish maritime peace, security and good order. A few examples would be fisheries and biodiversity protection and conservation, coastal resources management, marine environmental protection, safety and security of navigation, oil spill response, search and rescue, among many others possible. Many of these are mentioned in the DOC-South China Sea.

The idea of addressing non-traditional security issues is not new, either. It is contained in the DOC-South China Sea to be packaged asconfidence-building measures, which is encouraged to be undertaken bilaterally or multilaterally. This would have been a good beginning if pursued earnestly and in good faith immediately upon adoption of the DOC-South China Sea almost a decade ago. Pursuing this DOC-South China Sea prescription now, within its prescribed parameters, while a positive step nevertheless, and granted strong political will all around, would nevertheless be a rather extremely slow boat to . . . “somewhere”. A ready-made, tailor-made packaging of non-traditional security issues most suitable to the circumstances of the South China Sea already exists under UNCLOS Part IX. It is ready-made in normative terms under UNCLOS; and UNCLOS Part IX cooperation is tailor-made for enclosed and semi-enclosed seas of which the South China Sea is the classic geological/geographical model unique to the world. This is especially true in regard to challenges to the marine environment and safety and security of navigation. Moreover, the suitability of UNCLOS Part IX is not only on account of the geological/geographical lay-out of the South China Sea but in the necessity for its immediate urgent implementation to help moderate a prevailing charged political atmosphere in this maritime region. This is the principal thrust of this paper and an independent, not alternative, proposal. Traditional security has by this time, been discussed to extreme exhaustion with no semblance of concrete results.

Defining the direction and packaging of this suggested thrust towards addressing non-traditional security issues ought not to be difficult. The idea and seeds of the concept is contained in normative terms under UNCLOS Part IX, and already discussed in the Track II mode. What needs to be done is to continue the effort to define, develop and package the concept and implementing ideas in a comprehensive and coherent manner, intended for a more formal introduction into the Track I mode.

Recent Developments indicating Road Map

Certain events of the past six months would seem to provide guidance on next steps. The following are cited:

·         recent initiatives towards drafting the COC-South China Sea

·         statement of the United States of America at the ASEAN-U.S. Ministerial Meeting, Ha Noi, 22 July 2010

·         reiteration by China of joint cooperation/joint development proposal

·         the Gulf of Mexico oil spill incident, and other recent large-scale such incidents affecting the ocean

Resumed joint effort on DOC-South China Sea

The ASEAN-China consensus to begin work on the COC-South China Sea is positive in the sense that attention seems to be gaining for a resumption of joint efforts towards a solution of the South China Sea issues. Although it is here earlier opined that a COC-South China Sea may not be the appropriate modality to achieve a durable solution that would address the core issues of sovereignty and jurisdiction, this renewed attention would be a positive development somehow after a decade of virtual hiatus in the effort to find some solution.

Institutionalized regional ocean governance

The statement of the United States of America at the ASEAN-U.S. Ministerial Meeting held in Ha Noi, on 22 July 2010, must be seen in a positive light, and taken at face value. It declares non-interest in the territorial issues in the South China Sea, and a close reading of the statement contains the following elements[21]:

·         solution of South China Sea-issues through friendly negotiations among regional States

·         institutionalized solutions under the Law of the Sea Convention

The above formula is unarguable, and it comes from a category of stakeholders in the South China Sea that UNCLOS Part IX calls “other interested States” in the context of an enclosed and semi-enclosed sea, wherein intra-and extra-regional States can have participation. What seems uncalled for in the statement of the United States is putting leadership on ASEAN. Also, maritime governance of the South China Sea under UNCLOS Part IX connotes some exclusivity among riparian States and not exactly in the character of an international “commons”. An important note on the abovementioned Statement of the United States, is that it sidetracks settlement of ownership or sovereignty issues, and more of a restatement and call for implementation of the DOC-South China Sea.

A further suggestion to simplify and clarify the dispute scenario is to expunge from the conflict-scenario language the word “internationalize”. This is currently used against an attempt by a superpower to “assert” its rights in the South China Sea maritime “commons”. In the context of the South China Sea as an enclosed or semi-enclosed sea, criss-crossed by regional and international sea lanes of communications, by vessels representing 40% of the world commercial shipping tonnage, the entire world, including landlocked States, are stakeholders in all aspects of lawful human activities including, especially, conservation and protection of marine environment.

[In regard to an institutionalized mechanism to address non-traditional security issues, UNCLOS Part IX also exhorts the establishment of a regional organization under which such cooperation on ocean governance may be undertaken. While this is clearly optional, the extremely complex governance requirements of the South China Sea, with varying and overlapping UNCLOS maritime jurisdictional prescriptions, bordered at its eastern (Pacific Ocean) flank by three of the largest archipelagic States wherein the UNCLOS regime[22]is still largely undeveloped (especially in regard to maritime jurisdictional regimes applicable, e.g. the EEZ), and transit passage, a regional maritime organization might be essential and practical for a comprehensive, institutionalized regional ocean governance regime. Aside from immediate attention to current ocean governance concerns, it could also take the lead in instituting early studies and anticipate/initiate “progressive development” of regional international law responsive to the peculiar conditions of the South China Sea that would redress deficiencies in UNCLOS Part IX. The regional maritime organization must be directly linked to the IMO. States participants in the regional context of the South China Sea enclosed and semi-enclosed sea would necessarily transcend ASEAN. Indeed, other interested States can be participants, as would international organizations and non-governmental organizations (NGOs), as provided for under UNCLOS Part IX.]

Joint Cooperation/Joint Development

Beyond the DOC-South China Sea/COC-South China Sea which are mere palliatives as provisional measures or interim measures in an effort to avoid escalation of conflict, perhaps it is also opportune to start serious examination of a proposal from a claimant State since way back a decade and a half ago to . . . shelve sovereignty issues and proceed to consider joint cooperation/joint development. Another claimant State is on record of a prompt favourable response seconding the proposal. Regrettably, there was no follow-up action. Joint Cooperation/Joint Development has always been a recourse to gloss over any incipient or latent border issues to allow exploitation of resources; or promote awareness of best practices of such arrangements to enhance regional peace and security. In the context of the South China Sea, it is not an isolated nor a novel approach. Such arrangements were already being pursued among and between riparian States that have maritime territorial or jurisdictional problems. Joint development agreements between Thailand and Malaysia, and Malaysia and Vietnam have allowed offshore oil and gas development to proceed.[23]China and Taiwan are known to have undertaken a Joint Cooperation project in the so-called “Chaosan Block” northwest of the Philippines, early this century.

Some initial familiarity of an UNCLOS Part IX cooperation scenario is already provided in the Track II channel, some with official Track I sanction. The Philippines – Vietnam Joint Scientific Research Expedition (JOMSRE), which was on the verge of graduating to a tripartite China – Philippines – Vietnam arrangement (aborted at the last–minute by the withdrawal of a participant concerned with a possible internal issue), is an example. The latest arrangement is the tripartite Joint Marine Seismic Undertaking (JMSU) also among the three claimant States aforementioned but, regrettably abortive at the exploitation stage because of issues internal to one participant. Track II Workshops have also produced studies that may be useful in the South China Sea context and need only to be consolidated. These include the results of a workshop sponsored by the Ocean Policy Research Foundation (OPRF) entitled the “EEZ Group 21 Workshopon the Regime of the Exclusive Economic Zone” held in September 2005 in Tokyo, and the CSCAP Study Group on Capacity Building for Maritime Security Cooperation in Asia-Pacific held in Kunming, China in December 2004. A promising peace-building mechanism would be, if implemented, the joint decision among scientists of Philippines and Vietnam, during the closure ceremonies in 2008 for the bilateral RP-Vietnam JOMSRE-South China Sea adverted to earlier. (This closure ceremony was to have marked the aforementioned graduation of the Joint Oceanographic and Marine Scientific Research Expedition into a tripartite arrangement between China-Philippines and Vietnam.) The scientists agreed to establish a Transborder Marine Peace Park to encompass the marine geological features respectively occupied by their respective countries.

Joint Development/Joint Cooperation would still be the viable practical proposition for a durable alternative arrangement as the core issue of ownership and sovereignty will always remain intractable. The proposal has been brought up-to-date and recently reiterated by the claimant State originally proposing it. It is therefore a current development that should finally be accorded serious consideration alongside the renewed efforts at formulating a COC-South China Sea or, instead of the latter, a separate companion arrangement on non-traditional security concerns. If the proposal of this paper is pursued i.e. to proceed with implementation of UNCLOS Part IX, in place of or together with COC-South China Sea, joint development/joint cooperation would be an indispensible partner-proposal which, together, would be the durable and face-saving formula for the sovereignty/ownership claims to fade away.

Oil Spill incidents as imperative “prior restraint” on Joint Development/Joint Cooperation  implementation

The delayed practical implementation of joint cooperation/joint development arrangements in the contested areas of the South China Sea, however, may prove to be constructive in light of the damage scenario of extensive environmental/ecological and economic harm brought about by recent oil spill incidents that should be cause for serious concern in contemplating development activities (whether joint or otherwise) in the South China Sea. These series of large-scale oil spill scenarios would be portentous in the South China Sea if drilling for oil or gas happens before stringent management and monitoring, and response measures, are instituted. These incidents are recent developments of just the last six months and hence topical and relevant to any discussion on joint cooperation and joint development in the South China Sea which, at this point in time is mainly about oil and gas although potential mineral resources are also seen to present similar threats.

The most infamous of these topical incidents is the oil rig disaster in the Gulf of Mexico. This is due to the sheer size of affected sea area and the extent of pollution of long stretches of beaches and the clear lack of management and ready technical expertise for deep ocean oil operations, and most especially, disaster response preparedness. Of lesser magnitude are the Xingang Port oil spill in Dalian, China, and the Montara oil spill in the northern coast of Western Australia. The bottom-line damage in all three incidents are severely polluted beaches, poisoned seafood and wildlife, and damage to tourism and fishing industry.

The Philippines had suffered through oil spill incidents, not from oil extraction activities but arising from vessel incidents at port and domestic petroleum tanker collisions. The incidents and resulting damage to the sea environment is infinitesimal compared to the abovementioned cases. Nevertheless, by the very nature of the Philippines as an archipelago, local damage would adversely affect local communities in the same manner as above, and the national economy itself. In this regard, awareness of the abovementioned recent oil incidents is of grave concern to the Philippines as the contested area where joint exploration and joint development are projected to occur skirts its territorial sea and well within its EEZ.

The abovementioned incidents, and the domestic microcosm of such incidents in the Philippines, suggests a regional response mechanism must be established before actual development is undertaken. Needless to say, this is in addition to stringent regulations on petroleum and mineral resources exploitation and monitoring, and transparency and coordination among stakeholders. A Track II effort could perhaps jumpstart awareness and cooperation, not only among the national governments of the regional countries, but also other neighbouring countries (once again in an UNCLOS Part IX context) for shared information, expertise and a systematic compilation of all forms of possible response assistance. Among essential lessons learned from the abovementioned large-scale disasters is transparency and accountability among stakeholder companies, and continuing coordination among all industry stakeholders, whether governmental of non-governmental entities, or private companies. The Montara (Australia) incident would be a good practical model and case study for this cooperation scheme.

Conclusion and suggested way forward

A “status quo” ante-bellum (pre-World War II) for the South China Sea should hopefully not be difficult to achieve for the claimant States were not enemy States in the Second World War; all were victim-States. And prior to World War II most were colonies and non-self-governing territories that had no control of their national, and regional, destinies. Even prior to the colonial era, there were merely a collection of tribal societies and civilizations, and thus national self-determination, and regional socio-political culture and political orientation, was totally absent. More important, however, peaceful co-existence and interaction prevailed. If an attitude towards the foregoing direction suggested in this paper is achieved, a new maritime security design for the South China Sea regional ocean, would be more than being a “commons”; it could be a collective regional trusteeship or a regional “common heritage of mankind”.

The South China Sea conflict has taken as long as the conflict in the Middle East. Lessons learned from this comparison on the time element is not about circumstances surrounding the two long-running conflicts. It is about the bottom-line being sovereignty issues that could take infinity to reach a settlement. Sovereignty issues must be put aside in the South China issues to move on. Moreover, a DOC-South China Sea/COC-South China Sea would not do justice to the early historical relations among riparian States, and generally unseemly and unbecoming among States in the present era of international diplomacy. (Is there an Israeli-Arab Code or Declaration of Conduct? Any such suggestion for a Japan-China East China Sea Code of Conduct? How about Japan-Korea?)

A presenter at the Ha Noi Conference just about a year ago, gave a cautionary note in regard to the situation in the South China Sea that . . . . . “fear is racing hope”. Since then, recent developments as presented above have abruptly changed the overall outlook, and circumstances. At this very moment, fear may already have overtaken hope. Nonetheless, to paraphrase a classic line, we . . . cannot be afraid . . . and neither be dismayed. One door i.e. the addressing traditional security issues including or arising from the “core” issue of sovereignty or ownership may be closed, but it is encouraging to note that another is opening i.e. addressing non-traditional security issues in tandem with conducting joint cooperation and joint development in contested areas. The former, while a “modus vivendi” in the short term is not a palliative – it is an urgent necessity addressing maritime governance concerns in the South China Sea. In the medium to long term, this tack may even be the face-saving device (extremely important and ever relevant in oriental culture) that could gloss over the intractable sovereignty claims and usher in the much-desired . . . ROLLBACK./.

Author’s biography

Mr. Alberto A. Encomienda, a career Foreign Service Officer of the Republic of the Philippines recently retired with the rank of Chief of Mission, Class I. He served as the country’s Ambassador to Greece, Malaysia and Singapore. His career specialization is Oceans Law and Policy with an LLM degree from the University of London in 1972, and Columbia University in 1978.

His government work in Oceans Policy and Law of the Sea, concentrated in the decade leading to his retirement, saw Mr. Encomienda as head of the then Maritime and Ocean Affairs Unit (MOAU) under the Office of the Secretary of Foreign Affairs, which was at the same time the Secretariat of the high-level Cabinet Committee on Maritime and Ocean Affairs (CABCOM-MOA). The CABCOM-MOA was later abolished and at the same time the MOAU was upgraded to the Maritime and Ocean Affairs Center (MOAC) to which devolved the agenda of the CABCOM-MOA and its policy formulation and oversight functions. MOAC functions were later transferred to the Office of the President to give a higher profile and prominence to the Ocean concerns of the country facing modern paradigms as an archipelagic State, through the creation of the Commission on Maritime and Ocean Affairs (CMOA) chaired by the Executive Secretary. Mr. Encomienda headed the CMOA Secretariat for a year after its establishment.

In his Track I role, Mr. Encomienda had an early exposure into practical ocean governance activity in an UNCLOS Part IX setting when he presided over the conduct of Exercise Luzon Sea (ELS 1) and the Philippines-Vietnam Joint Oceanographic and Marine Scientific ResearchExpedition in the South China Sea (JOMSRE-South China Sea) III and IV activities reflected in the Proceedings of the Conference on the Results of the RP-Vietnam Joint Oceanographic and Marine Scientific Research Expedition in the South China Sea (JOMSRE I to IV) and Exercise Luzon Sea (ELS) organized and held under MOAC auspices, during his tenure as its Secretary-General. Mr. Encomienda retired from diplomatic service in February 2009.