Can the COC Establish a Framework for a Cooperative Mechanism in the South China Sea? Robert Beckman

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1 9 th South China Sea International Conference: Cooperation for Regional Security & Development Nov 2017, Ho Chi Minh City, Viet Nam Session 7: Panel Discussion: Code of Conduct (COC): Substance and Process Can the COC Establish a Framework for a Cooperative Mechanism in the South China Sea? Robert Beckman Head, Ocean Law and Policy Programme, Centre for International Law, NUS

2 Outline of Presentation 1. Code of Conduct and Unrealistic Expectations 2. Prospects for the COC establishing a Cooperative Mechanism 3. Potential Areas for Cooperation under a Cooperative Mechanism 4. Establishing a Cooperation Zone under the Cooperative Mechanism

3 PART I. CODE OF CONDUCT: UNREALISTIC EXPECTATIONS

4 COC and Resolution of Sovereignty and Maritime Claims Disputes on which State has the better claim to sovereignty over the disputed islands is highly sensitive in every claimant State Disputes on the extent to which there are overlapping maritime claims is also highly sensitive in some claimant States Is it reasonable to expect that the States can agree in the COC to a procedure for resolving these disputes?

5 COC & Current Legal Gaps International law is not clear on the question of whether a State that occupies a disputed island must exercise restraint in carrying out activities on the island Is clear that must comply with obligations under UNCLOS not to pollute the marine environment But NOT clear if any limits on the to extent to which it can engage in construction and building activities or build military facilities on the islands Is it reasonable to expect that the COC will fill these gaps?

6 COC as Legally Binding with Compulsory Dispute Settlement If the COC is legally binding, is it likely that there will be agreement on meaningful substantive provisions? If the COC states that it is legally binding, would this ensure that States would not choose to ignore any provisions it finds inconvenient? If the COC includes a dispute settlement clause providing for compulsory procedures before an international court or tribunal, would this ensure that States Parties would participate in the arbitral or judicial proceedings?

7 Prospects for COC May reach an agreement on COC if it does not address: 1. underlying sovereignty disputes 2. militarization of the occupied features 3. disputes on maritime claims Issues making agreement difficult: 1. Geographic scope? 2. Legally binding? 3. Dispute settlement clause? 4. Status Quo on occupied features?

8 Part 2. Prospects for COC Establishing a Cooperative Mechanism

9 Prospects for Cooperation under the COC COC likely to focus on : 1. No threat or use of force 2. Status quo on occupied features 3. Exercise of self-restraint 4. Hot-Line or other procedures to address incidents 5. Framework for measures to minimize risk of incidents at sea (e.g., CUES for Coast Guard) 6. Framework to encourage cooperation in areas of common interest

10 Any Cooperation must be on a Without Prejudice Basis The COC should specifically provide that any cooperation on these issues is without prejudice to the existing sovereignty disputes as well as the disputes on maritime claims and jurisdiction Basis for Cooperation by each State: Does not imply that we recognize the legitimacy of the position of any other State bordering the SCS on the sovereignty disputes and disputes on maritime claims Does not imply that we give up or change our position on the sovereignty and maritime disputes

11 Legal Basis under UNCLOS for Cooperation South China Sea is a Semi-Enclosed Sea as defined in Article 122 of UNCLOS Article 123 of UNCLOS provides that States bordering a semienclosed sea should cooperate with respect to: 1. Conservation and management of living resources 2. Protection and Preservation of Marine Environment 3. Marine Scientific Research

12 States bordering the SCS should control the Cooperative Mechanism States bordering the SCS should control the cooperative mechanism Decisions on cooperation should be made by consensus Need agreement on States bordering SCS Clearly includes claimants - China, Brunei, Malaysia, Philippines & Vietnam Should it also include Indonesia and Singapore? Should it include States bordering Gulf of Thailand - Cambodia & Thailand?

13 Whither Taiwan? Taiwan clearly borders the South China Sea How to deal with Taiwan give the One China Policy of ASEAN member States Possible solution: Chinese Taipei could be invited to cooperate with the States bordering the SCS on issues where their cooperation is important : Fisheries Marine Environment Marine Scientific Research

14 Map from South China Sea Case 14

15 Cooperative Mechanism & Third States The States bordering the SCS should invite other ASEAN member States to cooperate with the States bordering the SCS on specific areas of cooperation Example: States bordering Gulf of Thailand (Cambodia and Thailand) should be invited to cooperate on protection of the marine environment Other States with an interest in the South China Sea or relevant international organizations or NGOs may also be invited to cooperate with the States bordering the South China Sea on specific programmes or projects

16 Lead States for Projects and Programmes The Cooperative Mechanism should provide for regular meetings of the States bordering the South China Sea Chairmanship of the Cooperative Mechanism should be rotated among the States bordering the SCS Two of the States bordering the could co-chair each project or programme under the Cooperative Mechanism Example: China and Singapore could serve as Co-Chairs of a project on ship-source pollution that would provide training to ASEAN member States on their responsibilities as flag States and port States

17 PART 3. Potential Areas for Cooperation under a Cooperative Mechanism

18 Land-based Marine Pollution As much as 80% of the pollution of the marine environment is from land-based activities, including agricultural activities, manufacturing activities, etc States bordering the SCS can cooperate to reduce marine pollution in the SCS from pesticides and fertilizers, toxic chemicals and PLASTIC marine debris Since each State will focus on activities within its own territorial sovereignty, such cooperation will not raise any of the sensitive disputes on sovereignty and maritime claims

19 Pollution from Ships Pollution of the marine environment from ships is governed by UNCLOS and the conventions and regulations of the International Maritime Organization (IMO) All of the States bordering the SCS are parties to the relevant IMO conventions, but some States have difficulty fulfilling their responsibilities as flag States and port States A regional cooperative mechanism could be established for the South China Sea with technical assistance from the IMO Such cooperation would not trigger any sensitive sovereignty or maritime disputes

20 Cooperation on Fisheries Unless the States bordering the SCS cooperate to sustainably manage fisheries, the SCS will soon be overfished The States bordering the SCS should work toward the creation of a Regional Fisheries Management Organization (RFMO) under 1995 Fish Stocks Agreement At present, only Indonesia, Philippines and Thailand are parties to the 1995 Fish Stocks Agreement

21 Cooperation on Fisheries The States bordering the SCS could take steps now to cooperate on fisheries and establish trust and confidence essential for further cooperation: 1. Agree to coordinate No Fishing Seasons 2. Agree to ban certain types of illegal fishing and to prosecute vessels flying their flag that engage in illegal practices 3. Agree to establish a Marine Protected Area where fishing is prohibited, and monitor their vessels to ensure that they do not fish in the zone

22 Enforcement of Fisheries Cooperation The above modes of cooperation on fisheries will work if each State in good faith monitors and enforces the rules against fishing vessels flying its flag The cooperative measures should State that coast guard vessels of one State are not authorized to arrest the fishing vessel flying the flag of another State that is a party to the cooperative agreement If each State monitors vessels flying its flag and punishes ships that do not comply, trust and confidence could be established

23 Part 4. Establishing a Cooperation Zone

24 Cooperation Zone in Spratlys China, the Philippines and Vietnam should seriously consider establishing a Cooperation Zone in the northern part of the Spratly Islands where: the features are claimed by all three States the area is rich in fisheries and marine biodiversity, including coral reefs Many of the features are occupied by the three States and the occupied features are often on the same sunken reef

25 Cooperation Zone in Spratlys The establishment of a Cooperation Zone would be without prejudice to any claims of sovereignty, claims to maritime zones or claims to rights and jurisdiction The Cooperation Zone can be established in the area outside of the features claimed or occupied by Malaysia and Brunei Since Taiwan occupies one feature that would be within the zone, the 3 cooperating States should first establish guidelines for the conduct of activities in the Zone, and then invite the Taiwan authorities to cooperate with them

26 China / Philippines / Vietnam/Taiwan /Malaysia 26

27 NORTH DANGER REEF LYS SHOAL AND TRIFENT SHOAL LOAITA BANK SUBI REEF THITU REEFS WEST YORK ISLAND IRVING REEF DISCOVERY GREAT REEF TIZARD BANK DISCOVERY SMALL REEF UNION REEFS

28 28

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30 Cooperation Zone in Navigation in Major Sea Lanes The Zone should be established in an area that will not infringe freedom of navigation of vessels passing through the SCS on routes normally used for international navigation This is not a major issue because the occupied islands are in areas of dangerous ground outside the major sea lanes Charts on next page show vessel traffic and potential area of Cooperation Zone

33 Exact Location of Cooperation Zone can be Negotiated 1. The Zone in the slide is only for illustration purposes 2. The exact location of a Cooperation Zone can be negotiated by the States bordering the SCS 3. It may be easier to begin with one or two small zones, and then expand them when trust and confidence is established 4. The area in the map was selected because it is rich in marine biodiversity and many features in the area are occupied by China, the Philippines, Vietnam and Taiwan

34 Cooperation in the Zone 1. The States establishing the Zone should agree to cooperate to protect the marine environment in the Zone and to cooperate in joint research projects on the marine environment and marine biodiversity in the Zone 2. This research should include research on the restoration or coral reefs and the protection and preservation of endangered species and vulnerable ecosystems 3. Each State bordering the SCS should agree to prohibit all fishing activities in the zone by its nationals and by fishing vessels flying its flag, and to take measures to ensure that such laws are vigorously enforced

35 Rules concerning Occupied Features in the Zone 1. Military vessels and supply ships of claimants that occupy features in the Zone should have access by sea and air to and from features occupied by them 2. All claimants agree not to enter waters within an agreed distance from features occupied by another claimant and to provide notice of its passage to the occupying State 3. A system should be developed by the States bordering the SCS to monitor vessels in the Zone, including a system of mandatory ship reporting 4. Vessels of non-claimants should be requested to comply with these provisions

36 Part 5. Conclusions

37 Conclusions on Prospects for a COC It is very important that the COC, and even negotiations on a COC, be on a without prejudice basis The States concerned, as well as the media, should not have unrealistic expectations about the content of the COC A COC will not solve the SCS disputes The COC can help reduce tensions and establish trust if it establishes a framework for a Cooperative Mechanism among the States bordering the SCS If a Cooperation Zone could be established in the Spratlys it would reduce tensions and develop trust

38 THANK YOU Robert Beckman Head, Ocean Law & Policy Programme Centre for International Law

ASEAN & the South China Sea Disputes

Asian Studies Centre, St Antony s College University of Oxford China Centre 19-20 October 2017 Session V, Friday 20 th, 11.15-12.45 ASEAN & the South China Sea Disputes Robert Beckman Head, Ocean Law and