South China Sea tribunal ruling

Potential for collaboration in area beyond national jurisdiction

Fisheries and resources in high seas belong to all - and to no one, opening the door to cooperation

One potentially positive aspect of the Philippines-China arbitration decision is its de facto creation of an area of high seas beyond national jurisdiction in the South China Sea.

The tribunal ruled that China has no legal basis to claim the area or rights within its nine-dash-line map, and that none of the Spratly features or Scarborough Shoal generates a 200-nautical-mile exclusive economic zone (EEZ) or continental shelf. Features that qualify as rocks may generate only 12-nautical-mile territorial seas.

If one maps out the littoral states' EEZs to their maximum reach, one will find a large area in the middle of the South China Sea that potentially lies beyond national jurisdictions. (See map.) This area is known as the high seas in international law parlance.

Fragile ecosystems could be protected through several possible approaches. Under one proposal, some rocks and the reefs and waters within 12 nautical miles would be designated as a marine park, possibly open for marine scientific research and eco-tourism.  

In this high-seas area, fisheries and resources of the water column like energy belong to all - and to no one - although there are some internationally agreed restrictions on their use. Similarly, high-seas navigational freedoms apply to all.

However, parts of the seabed in this high-seas pocket of the South China Sea have been and may be claimed as extended continental shelves of the littoral countries. But such claims will be and indeed have been objected to by other potential claimants and are thus unlikely to be approved by the United Nations Commission on the Limits of the Continental Shelf.

Thus, the possible claimants (China, Brunei, Indonesia, Malaysia, the Philippines and Vietnam) could make an undivided joint claim to extended continental shelf. That would be one path to claiming at least the seabed resources as a regional common heritage.

What seabed resources are we talking about? Petroleum and, more likely and important, "frozen" gas, and metallic sulphides, nodules and crusts bearing valuable minerals like gold, silver, cobalt and mercury.

Articles 122 and 123 of the 1982 United Nations Convention on the Law of the Sea (Unclos) establish the concept of a "semi-enclosed sea" and urge the nations bordering such seas to cooperate with regard to a number of issues. Under Article 122, the South China Sea is a "semi-enclosed sea" because it consists "primarily of the territorial seas and exclusive economic zones of two or more coastal states". 

Article 123 provides that the coastal states "shall endeavour, directly or through an appropriate regional organisation":

• to coordinate the management, conservation, exploration and exploitation of the living resources of the sea;

• to coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment;

• to coordinate their scientific research policies and undertake where appropriate joint programmes of scientific research in the area;

• to invite, as appropriate, other interested states or international organisations to cooperate with them in furtherance of the provisions of this article.

Perhaps relevant here, the decision of the International Court of Justice Chamber in the Gulf of Fonseca case found that El Salvador, Honduras and Nicaragua through custom share an undivided interest in jurisdiction in the gulf and over the resources beyond. This decision may provide a useful precedent to a regional claim in the South China Sea.

One approach would be for China, the other claimants and - if agreed by them - other Asean members to establish a multilateral organisation to manage the high- seas pocket as well as the seabed. 

According to Unclos Article 197, "States shall cooperate... as appropriate, on a regional basis, directly or through competent international organisations, in formulating and elaborating international rules, standards and recommended practices and procedures consistent with this Convention, for the protection and preservation of the marine environment, taking into account characteristic regional features".

Fragile ecosystems could be protected through several possible approaches. Under one proposal, some rocks and the reefs and waters within 12 nautical miles would be designated as a marine park, possibly open for marine scientific research and eco-tourism.

A regional management approach could include a network of ecological reserves in the area.

This would help improve China and others' reputations regarding environmental protection in the area. 

Another possibility is for a multi-use system in which different levels of protection are included in the management plan. Some features and areas could be exclusively protected for posterity and scientific investigation while others could be accessible to eco-tourists and still others opened for managed exploitation of resources.

Issues that would need to be addressed include who can participate in this management organisation, the role that would be played by Taiwan, the resources to be managed, the mechanism of management and its governing structure, who pays, who does the work, the law that would apply in the management area, and the duration of the agreement. These are formidable - but not insurmountable - issues. At stake may be the "stability" of the region.

Indeed, to overcome one of the most difficult and dangerous issues of their time, policymakers need to think outside the box of national win/lose calculus. Should short-term national concerns overrule the longer-term gain for human kind? Hopefully, the leaders will have the vision to make the right choice.

• The writer is Adjunct Senior Scholar at the National Institute for South China Sea Studies, Haikou, China.

A version of this article appeared in the print edition of The Straits Times on August 09, 2016, with the headline 'Potential for collaboration in area beyond national jurisdiction '. Print Edition | Subscribe