Negotiations on a code of conduct (COC) for the South China Sea have been stalled since 2019, mainly due to the outbreak of Covid-19 and the continuing challenges it presents to the region. However, even after the pandemic situation improves and negotiations can resume as normal, COC negotiators will still have to face many thorny issues including the geographic scope of the agreement, duty to cooperate, the role of third parties, and in particular, dispute settlement. However, there is one issue that has received insufficient attention but is critical to an effective COC: ensuring compliance. Due to the lack of a compliance mechanism, 2002’s Declaration on the Conduct of Parties in the South China Sea has been a toothless instrument which any party can accuse any other party of violating.
During COC negotiations, one suggestion made has been to establish a commission led by foreign ministers or their representatives to monitor its implementation. This is a viable model to ensure compliance, which has been used in other regional seas. This commentary introduces the Mediterranean’s Compliance Committee, established under the framework of the Barcelona Convention for the Protection of the Mediterranean Sea Against Pollution, arguing that a similar model should be designed under the COC.
Background on the Mediterranean’s Compliance Mechanism
The Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean, also known as the Barcelona Convention, is a regional treaty whose purpose is to prevent pollution and protect the marine environment in the Mediterranean Sea. The Barcelona Convention has 21 members, all of whom are coastal states to the Mediterranean. In 2008, a Compliance Committee was established under its framework to facilitate and promote compliance with the obligations under the Convention and its protocols.
The Compliance Committee consists of seven members elected by the contracting parties. The nominees are nationals of the contracting parties recognized for their competence in the matters dealt with by the Barcelona Convention and its protocols and in relevant scientific, technical, socio-economic, legal, or other fields. The Compliance Committee must meet at least once per year.
To fulfil its mission, the Compliance Committee receives information from four sources. First, the Secretariat of the Barcelona Convention can refer cases of non-compliance to the committee. Second, based on any relevant information that it receives, the committee may examine any difficulty that a contracting party encounters in the implementation of its commitments. Third, a party can submit information to the committee about its own non-compliance. Finally, a party can submit information about the non-compliance of another party after it has consulted with that party but the matter has not been resolved.
After receiving information about a non-compliance case, the Compliance Committee may ask the allegedly non-complying party to provide further information and, with the consent of the party concerned, it may gather information on the territory of that party. The party concerned is entitled to participate in the discussions of the committee and present its observations. The committee shall make every effort to adopt its findings by consensus. If consensus cannot be reached, the committee shall as a last resort adopt findings based on a three-fourths majority vote of the members.
The Compliance Committee’s main role is to provide advice and assistance to a non-complying party to achieve compliance. It can request and assist the party concerned to develop an action plan and invite that party to submit progress reports on its efforts to achieve compliance. It does not have the power to penalize the non-complying party. If the committee finds that it cannot handle a case of non-compliance, it will make recommendations to the Meeting of the Contracting Parties which can then adopt sanctions against serious, ongoing, or repeated non-compliance cases.
Advantages of the Mediterranean’s Compliance Committee Model
The establishment of a compliance committee such as in the Mediterranean has a few important advantages in the context of the South China Sea:
First, a compliance committee with renowned experts and specialists will add a level of specialization and technical expertise to the compliance process. This could help guarantee the authoritativeness, impartiality, and a certain level of independence of such a committee. If COC negotiators want to ensure a certain level of supervision over the committee, they may entrust a high-level political mechanism equivalent to the Barcelona Convention’s Meeting of the Contracting Parties with the power to decide on measures to be taken against a non-complying party.
Second, as stated above, the role of the Compliance Committee is not to penalize or publicly-shame a non-complying party but to help and assist this party to achieve compliance. The alleged non-complying party can take part in the deliberations of the committee and comment on its draft findings. The deliberations of the committee and information transmitted to it are kept confidential. In a region like the South China Sea where maritime issues are highly sensitive and where maintaining face is very important, all these guarantees could help encourage any non-complying party to cooperate to achieve compliance instead of becoming more defensive and denying its non-compliance.
Finally, the fact that a party can submit the non-compliance situation of another party to the committee could help resolve disputes between parties without having to use a conventional dispute settlement means. As explained earlier, dispute settlement is currently a challenge in the COC negotiations: some countries insist on consultation and negotiations as the only dispute settlement means while others also want to make use of independent third parties. A compliance committee could help resolve disputes between relevant parties before having to go to an international court or tribunal. As such, it may offer a more amicable venue for parties to resolve their differences.
A compliance commission inspired by the Barcelona Convention could be established for the COC with adjustments for the unique aspects of the South China Sea. For instance, the membership of the COC’s compliance commission does not necessarily have to include experts of all 11 COC negotiating countries but must have all the “official” South China Sea claimants (China, the Philippines, Brunei, Malaysia, and Vietnam) as well as representatives from other relevant states. The supervision of the compliance commission could be entrusted to the ASEAN Post Ministerial Conference+1 Meeting with China, with the power to adopt punitive measures in case of serious, persistent, or repeated non-compliance. Despite the traditional preference for consensus-building in the region, the compliance commission should be able to adopt measures based on a majority to avoid deadlock when consensus cannot be reached. The ASEAN Secretariat could serve as the secretariat to the compliance commission just as the Secretariat of the Barcelona Convention does. However, since China is not a member of ASEAN, to ensure equality, another option is a stand-alone joint secretariat comprising officials from both China and ASEAN member states. Finally, due to the sensitivity of issues relating to the South China Sea, all information relating to an on-going alleged non-compliance case must be kept confidential. However, to promote compliance of relevant parties, a procedure should be established to allow the publicizing of cases of repeated or persistent non-compliance.
In conclusion, a compliance commission inspired by that of the Mediterranean Sea’s Barcelona Convention with necessary adjustments for the South China Sea could be an effective mechanism to ensure compliance with the COC.
This commentary is inspired by the author’s contribution to the CoC Implementation Mechanisms Expert Study Group initiated by the Centre for Humanitarian Dialogue.
