November 6, 2018

An Expert Working Group on the South China Sea sponsored by the Center for International and Security Studies has published three “Blueprints” for management of the South China Sea. They include Blueprints for “A South China Sea Code of Conduct; for “Fisheries Management and Environmental Co-operation in the South China Sea”; and for “Co-operation on Oil and Gas Production in the South China Sea.” I have critiqued in detail elsewhere the CSIS “Experts “Blueprint for Co-operation on Oil and Gas Production in the South China Sea.” This is a critique of the other two.

 

A “Blueprint” for a South China Sea Code of Conduct

 

A robust, binding code of conduct (COC) for the South China Sea has become a “holy grail’ for analysts and decision makers alike. Many have tried to find it and failed. This attempt too is likely to fail to gain wide acceptance. It is way too detailed and ambitious --simply too much too early for the parties at this stage of what seems to be an interminable and indefinite process.

 

The introduction to the “Blueprint” contains a reference to the “international order”. It suggests that “ an ASEAN-China COC can articulate and clarify aspects of the international rules – based order as applied in the South China Sea .” Making these ASEAN-China negotiations about the international order, unnecessarily inserts into the ASEAN-China process the China-U.S. struggle for dominance in the region- and perhaps the world. This greatly complicates and perhaps dooms the negotiating process. Indeed, China already concerns that the U.S. will try to influence the process in its favor.

 

The first and therefore presumably the highest priority recommendation of the “Blueprint” is for China and the ASEAN states to “agree to uphold the freedom of navigation in and over flight above the South China Sea as provided for by universally recognized principles of international law, including UNCLOS” (the UN Convention on the Law of the Sea).

 

But this is much more of a priority for the U.S. which conflates freedom of navigation for its warships with freedom of navigation for commercial vessels. Despite US rhetoric implying the contrary, China has not interfered with commercial freedom of navigation and is unlikely to do so in peace time. It seems odd and even subservient to U.S. interests to make it the first priority for an ASEAN-China COC. But perhaps that reflects the preferences of the host and organizers more than those of the prospective parties to a COC.

 

Another problem with such a provision is that the meaning of freedom of navigation – especially for warships – depends on the interpretation of some key terms in UNCLOS such as “other internationally lawful uses of the sea,” “due regard”, “peaceful purposes”, “abuse of rights”, and marine scientific research”. Until these definitional issues are resolved the probability of clashes will remain due to different interpretations of these terms.

 

The “Experts’ “ second recommendation is for the parties to “commit to resolve disputes by peaceful means and manage any disagreements related to jurisdiction over water, seabed, and airspace without resorting to the threat or use of force.” All parties would likely support this recommendation. But adopting it would resolve little because there is considerable disagreement as to what constitutes “threat of use of force.” Did the Philippines threaten to use force by deploying a navy warship in its confrontation with China’s coast guard and fishing vessels at Scarborough Shoal? Are US Freedom of Navigation Operations a threat to use force? Certainly many ASEAN countries think China has threatened them with use of force in the South China Sea. But China would probably not agree.

 

The laundry lists under the “Blueprint” recommendations for improving the safety of navigation, communication, and search and rescue;” “cooperation on transnational crime”; and “cooperation on marine scientific research” should find general support in principle. However the devil is in the details. Some seem unrealistic. The parties would find it difficult to implement them due to their wide diversity of priorities and capabilities as well as concerns that doing so might not be in their short term national interests. For example, cooperation on preventing “piracy and armed robbery at sea, arms smuggling and fisheries crime” could run afoul of jurisdictional issues and different perceptions and laws regarding “crime”. Also for some nations that jealously guard their sovereignty, “facilitating” visits by experts from other claimants to features they claim and occupy would likely prove difficult—particularly from their military’s point of view. Moreover many recommendations are too specific and detailed for a COC. Indeed, if all or most of them could be implemented, it would indicate that a COC was not needed.

 

Some specifics seem aimed at China-US military interactions. For example, agreement on protocols for communication between naval and military enforcement vessels seems more relevant to China-U.S. encounters than those between ASEAN members or even ASEAN members and China.

 

Still others have problems peculiar to them. For example, regarding joint training activities, who would train whom? That could be more contentious than it appears - - especially if the intent is to involve outsiders as trainers.

 

A key recommendation proposes and outlines a dispute settlement mechanism. Some of it is patterned after that established by UNCLOS. But it is unrealistic in that China is unlikely to agree to several of the specifics because of its negative experience with arbitration under UNCLOS. For example, China is likely to oppose the provision that allows a party to a dispute to request the establishment of a mediation, inquiry or conciliation commission once it - and it alone - is “satisfied that direct negotiations cannot resolve the issue.” The proposed clause that “participation in the process of mediation, inquiry, or conciliation will then be compulsory for all parties to the dispute” would likely be unacceptable to China.

 

At the end of this complicated and convoluted process, the commission would only make recommendations for a settlement. In other words its conclusions would not be binding. Since China did not accept and implement a supposedly binding international arbitration panel’s decision, it is unlikely that it would accept “recommendations” it did not like.

 

Perhaps most important for a COC, the “Blueprint” does not address the major critical issues such as the COC’s geographic coverage, its legal nature and whether or not and how it would be enforceable.

 

“A Blueprint for Fisheries Management and Environmental Co-operation in the South China Sea”

 

This “Blueprint” reads like something I might have written when I was a politically naïve natural scientist. It may make scientific sense but it ignores political realities. The first major misunderstanding which the group of “Experts” repeats is that UNCLOS Article 123 “obligates” states bordering semi-enclosed seas to co-operate in fisheries management and protection of the marine environment. It does not. It is exhortatory only, saying they “should co-operate”, and “shall endeavor to cooperate” not “shall co-operate” or “shall co-ordinate.”

 

While I agree they “should” co-operate in these areas, they do not have to, and due to diverse capabilities and priorities they do not and are not likely to do so—at least regionally and multilaterally. For example, some countries like China, Thailand, and Vietnam as well as Chinese Taipei have large aggressive distant water fishing fleets that fish illegally in the EEZs of others. So regional “co-operation” is neither simple nor straight forward.

 

This misconception persists throughout the “Blueprint”. For example, the Blueprint’s appeal to “political will” ignores political realities such as the obstacles presented by the differences between the distant water fishing nations and those whose waters are being fished, as well as the nationalism aroused by overlapping maritime claims and the prospect of law enforcement by others in areas they claim. Leaders ignore these factors at their domestic political peril. There have been many previous efforts that have foundered or been rendered ineffective by just such political dynamics. Another problem is that some countries are using their fishers to demonstrate their claims to particular disputed areas and are thus not likely to restrain them.

 

This naiveté surfaces again by including the Paracels in the proposed “Fishery and Environmental Management Areas”. China maintains it has “undisputed” sovereignty over the Paracels and has drawn closing lines around them. Of course Vietnam (and Taiwan) also claim the Paracels, and the closing lines are not consonant with UNCLOS. But that is beside the point. China is not about to let Vietnam have any role in management of fisheries there. More to the point, the Great Barrier Reef zoning system is not a good political precedent because it is all under one country’s jurisdiction.

 

The Blueprint also raises some technical questions. According to the “Experts,” the South China Sea has “deeply interconnected ecologies. If so, how can a “patchwork” of no-catch, semi-restricted and unrestricted fishing zones allow the fisheries as a whole to replenish. Also what is the basis of a “20 nautical mile zone around occupied disputed features? This means that in some cases the claimant to the disputed features would be enforcing fisheries regulations in 8 nm of another country’s claimed EEZ. What constitutes a subsidy? Are provisions of subsidized fuel , equipment, training or scientific information on the location of fishing ‘hot spots’ subsidies?

 

I understand and empathize with the concern with protecting and re-establishing the population of giant clams and sea turtles and such. But this seems to be calling out China fishers’ recent practices while ignoring the earlier depredation of fishers from other countries who engaged in muroami, blast and poison fishing in these atolls. This puts a political slant on the plan that will make it harder for China to accept.

 

While these “Blueprints” introduce some new twists on old ideas, they are long on detail and short on promised “creative compromises” that are both “legally and politically feasible for all parties”. Perhaps most important, it is not at all clear that all the parties now have the “political will” and flexibility to agree on and implement a robust, legally binding COC let alone the more technical recommendations in the other Blueprints.

 

In sum, I am afraid that these Blueprints – while well-meaning efforts – will be consigned to the same dustbin as many others before them.

Mark J. Valencia is an adjunct senior scholar at the National Institute for South China Sea Studies, Haikou, China

Link: https://appfi.ph/resources/commentaries/2442-blueprints-for-management-of-the-south-china-a-critique

 

The NISCSS is authorized to re-publish this article on its website.