Suggestions for New South China Sea Cooperation Mechanism
So far, the coastal countries bordering the South China Sea have made initial attempts to work on maritime cooperation. In terms of mechanism construction, the Workshop on Managing Potential Conflicts in the South China Sea may be the only informal annual mechanism participated by all parties in the South China Sea. The Workshop was initiated by Indonesia and funded by Canada in 1990. China and ASEAN countries have consistently sent delegations composed of both government officials and scholars. This workshop includes extensive discussions on biodiversity research, the establishment of a marine database, tide and sea-level change studies, detection and training of the marine ecosystem, Southeast Asia’s marine education and communication networks, among other issues. The Workshop has, to some extent, made positive progress and helped launch several projects.30
However, there are some obvious deficiencies in this Indonesia-led workshop. First, it has produced limited outcomes and impact, which some scholars claim has become a “talk shop”; second, it has been beset with financial problems for a long time and is difficult to sustain; third, it has been abandoned by the West, and is not relied upon by the surrounding countries.31
Besides the South China Sea workshop, China, Japan, Korea, Singapore, Vietnam, Laos, Cambodia, Thailand, Myanmar, the Philippines, Brunei, and other countries concluded negotiations on the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia in 2004. The region is host to other cooperation mechanisms related to environmental protection as well, such as the East Asia Seas Regional Seas Program (EAS-RSP), the Partnership in Environmental Management for the Seas of East Asia (PEMSEA), and the United Nations Environment Program (Unep)/global Environment Facility (GEF) South China Sea Project.
Generally speaking, cooperation in the South China Sea still faces obstructions that must be overcome. While issues such as fisheries, the ecosystem, shipping and pollution have been discussed by scientists and at various levels of government, such cooperation has remained at an elementary stage.32 The main reason for the low level of capacity or authority of regional mechanisms in the high seas and disputed areas is that each claimant’s objective is to prevent the presence of the others in such areas, which constitutes a significant cooperation gap in the region.33 There is a need for all parties involved to follow the UNCLOS and relevant international laws to expand cooperation, enhance mutual trust, manage conflicts and differences, and jointly safeguard the marine environment.
The South China Sea is the most important semi-enclosed sea in the Asia Pacific. Although the establishment of a council in the South China Sea that resembles the structure of the Arctic Council may seem unrealistic at present, the Arctic Council is an appropriate political model for the South China Sea countries to strive for. Based on the analysis above, lessons that can be drawn from the practices of Arctic governance and applied to the South China Sea are summarized as follows:
(1) What is of utmost importance is that the primary concern of
cooperation mechanisms in the South China Sea should not be to solve existing disputes, but to ease tensions and accumulate trust among all claimants through concrete and diversified cooperation and common development. It is necessary that all relevant parties show their political will to set aside disputes for promoting cooperation and achieve common benefits.34
(2) The new cooperation mechanism should be initiated from less politically sensitive areas first with a limited mandate. Environmental protection and fishery management can be seen as a good starting point for the parties concerned, and cooperation should work towards agreements on scientific collaboration and issues such as scientific research before moving on to more difficult areas concerning territory and security. It should bring together relevant scientists and provide a new platform for technical cooperation. The main problem facing the South China Sea is whether common marine environmental problems can become the driving force for further cooperation within ASEAN and between ASEAN and China.35
(3) It would be more feasible to organize the nations in the South China Sea around a soft law framework in early stages. Both soft law and hard law regimes can work to bring all states concerned together. The soft-law format of the Arctic “offers a more flexible and expedient way to address urgent issues, whereas the Antarctic hard-law regime is a stronger commitment, but reaching agreement among parties is difficult and slow.”36 The neighboring countries of the South China Sea are accustomed to the application of political documents as frameworks for dispute resolution. Therefore, if the agreement is presented in the form of soft law, such as a declaration or memorandum of understanding, more coastal states will be receptive.
(4) When practices in the polar regions are taken as a model, consensus among bordering states is necessary to make the South China Sea a “zone of
peace” similar to the Arctic. “A possible approach to this end is to initially confine this ‘zone of peace’ in a smaller area, for instance the most disputed Spratly Islands region, then expand throughout the South China Sea later.”37
(5) As in the Arctic model, any cooperative mechanism established in the South China Sea should reserve voting and decision-making rights for bordering states, including China and ASEAN coastal countries and other ASEAN nations. Extra-regional actors who are important regional players and have significant interests in this region should be granted observer status without decision-making powers.38