This article comments favorably on the CSIS expert working group’s blueprint for establishing regional cooperative arrangements in the South China Sea. Yet this article proposes an alternative—or supplementary—approach.
Quite a few scholars have come up with proposals for how to establish cooperative arrangements in the South China Sea, mostly focusing on joint development of oil and gas. Hitherto, however, all such proposals have fallen by the wayside since governments are afraid that they may affect the disputes over sovereignty or sovereign rights. The main stumbling block has been the question of which geographical areas to include under cooperative schemes.
The CSIS Blueprints
On October 15, 2018, the Center for Strategic and International Studies launched a stimulating “regional blueprint” from an international expert working group consisting of almost thirty individuals from countries around the South China Sea. The group put forward three “blueprints”: one for a broad code of conduct including practical cooperation in areas like combating transnational crime and joint marine research; one for fisheries management and environmental cooperation; and one for cooperation on oil and gas production. All three blueprints are highly constructive. Yet two factors may reduce their chance of being realized.
The first is that they are highly comprehensive. The group suggests complex institutional frameworks for the whole of the South China Sea, both for areas around disputed islands and off the main coasts. The second difficulty is the group’s proposal to divide the South China Sea into national areas of responsibility. Although this is meant as an interim arrangement with no prejudice for future decisions on sovereign rights, the suggested division roughly converges with the 200 nm Exclusive Economic Zones that states may claim under the law of the sea. China will no doubt fear that a division of this kind will have lasting effects.
The expert group also suggests that the countries that occupy islands shall be responsible for resource management in 20-nautical-mile zones around those islands. This might be practical. Since China has established seven major bases on reefs in the Spratlys, it might conceivably accept a preliminary, non-prejudicial system where the Philippines, Vietnam, China, the Taiwan authority and Malaysia manage fisheries within the seas around the islands each occupies. Yet some would see this as unjust, since Vietnam and the Philippines control many more islands than the others, and since fishermen from many countries have traditionally been fishing there.
A Seven-step Alternative Proposal
The seven-step proposal below has much in common with the expert group blueprint. Yet it takes a less comprehensive, more step-by-step approach. It does not require that all the South China Sea states be party to all agreements, but instead operates with a combination of bilateral and multilateral arrangements. And it concentrates on fisheries, not oil. It is easier to cooperate on fish than on oil. Oil discoveries in disputed areas may exacerbate conflict instead of reducing it. To cooperate on fishery management is also urgent for everyone concerned, since the fish stocks in the South China Sea have already been depleted and may in just a few years disappear.
The alternative proposal begins by asking where cooperation may be least problematic for the claimant states. These are not the areas off the mainland coasts, although they should be less disputable under the law of the sea. The areas most likely to see cooperation are those that are the most disputed. Instead of apportioning rights or duties in zones measured from mainland coasts, this proposal therefore starts by delimiting the zones that everyone may agree are disputed, namely the 12 nm territorial seas of disputed islands, which are also the richest fishing grounds, with multiple coral reefs.
Step 1: China and the Philippines agree to establish a Joint Management Zone (JMZ) for fishing within the 12 nm territorial sea of Scarborough Shoal/Huangyan. They invite Vietnam and the Taiwan authorities, since their fishermen have also traditionally been fishing there, to take part in managing the zone, receive fishing quotas, and enforce agreed rules and regulations. China and the Philippines declare that Scarborough Shoal will remain demilitarized and that no edifice will be built on any part of the shoal.
Step 2: China, the Taiwan authorities, Vietnam, the Philippines, Malaysia and Brunei jointly delimit 12 nm territorial waters around all such disputed features in the Spratlys that everyone agrees are “islands” or rocks (above water at high tide).
Step 3: China, the Taiwan authorities, Vietnam, the Philippines, Malaysia and Brunei pledge to: a) abstain from any activities that may cause violent incidents in the territorial waters of the Spratly islands; b) declare demilitarization of the Spratly islands as a goal to be achieved before 2030; c) commit to jointly take measures to protect the natural environment and manage fisheries within the territorial seas of the Spratly Islands, following the example from Scarborough Shoal.
Step 4: ASEAN and China take the initiative to apply the 2014 Code for Unplanned Encounters at Sea (CUES) also to coastguard and fishing vessels with detailed rules for how law enforcement vessels shall proceed when preventing illegal fishing, without running any risk of collision. A program is initiated to familiarize fishing boat captains and their crew with the International Regulations for Preventing Collisions at Sea.
Step 5: As a step towards demilitarization and following the example of the Chinese and Indian practice along their disputed land border, the states that occupy features in the Spratlys establish “lines of actual control” between protection zones, and set rules for the minimal distance that vessels carrying different flags must keep from each other when approaching another country’s protection zone.
Step 6: Without any prejudice for China’s affirmation that no sovereignty dispute exists in the Paracels or for Vietnam’s claim to sovereignty, China and Vietnam agree that both countries’ fishermen have traditionally been fishing there. They set up a joint management authority for the territorial waters of the Paracel islands, and jointly ensure enforcement of rules to prevent overfishing.
Step 7: China, the Taiwan authorities and ASEAN, based on a joint marine research effort, jointly declare seasonal fishing bans for all those parts of the South China Sea that are threatened with depletion. While waiting for the sea to be divided into national zones, limits are agreed for the allowed annual catch by each state’s fishing fleet in the sea as a whole, and measures are taken to allow the states to monitor compliance. A regional commission to oversee the enforcement mechanisms is established with headquarters in Singapore, Phnom Penh or Bangkok (capitals of non-claimant fishing states).
This proposal aims at once to save the fish and prevent conflict between states. Fishery cooperation can be a precursor for conflict resolution and peace.