The South China Sea is a “semi-enclosed sea” covered by Part IX of UNCLOS. The use of the words “should co-operate” and “shall
endeav-3 Nicole Gaouette and Daniel Ten Kate. “Global Response to S. China Sea Risks Needed.” Bloomberg, 24 July 2011.
Chapter 6 Confidence-Building Measures for the South China Sea
our” in Article 123 of UNCLOS places a strong obligation on the littoral states to coordinate their activities as defined in the sub-paragraphs of that article. While resource management, protection of the marine environment and marine scientific research are mentioned specifically as areas for cooperation, the opening sentence of Article 123 creates a more general obligation to cooperate. That responsibility may be inter-preted to include security and safety, including the maintenance of law and order at sea.4
It is also relevant to note that the South China Sea is not “inter-national waters”.5 Rather it mostly comprises the Exclusive Economic Zones (EEZs) of the several littoral countries, including China, which have significant rights and duties in the sea, as set out in UNCLOS Part V, which defines the EEZ regime. The EEZ is a separate type of maritime zone (sui generis) subject in accordance with UNCLOS Article 55 to its own specific legal regime.6
The United States includes the EEZs within its operational definition of “international waters” because, in accordance with UNCLOS Article
4 “CSCAP Memorandum No. 13 – Guidelines for Maritime Cooperation in Enclosed and Semi-Enclosed Seas and Similar Sea Areas of the Asia Pacific.”
Council for Security Cooperation in the Asia-Pacific, 2 June 2008. Accessed 17 June 2014. www.cscap.org/uploads/docs/Memorandums/CSCAP%20 Memorandum%20No%2013%20--%20Guidelines%20for%20Marit%20Coop%20 in%20Enclosed%20and%20Semi%20Enclosed%20Seas.pdf. The guidelines are a set of fundamental, non-binding principles to guide maritime cooperation in the enclosed and semi-enclosed seas of the region, and to help develop a common understanding and approach to maritime issues in the region.
5 The U.S. use of the term “international waters” goes dangerously close to taking the world back to the pre-UNCLOS era when the Unites States and other maritime powers argued that the extended offshore resources zone (which became the EEZ) should be an extension of the high seas while coastal states tended to see it as an extended territorial sea. The solution was an EEZ that is sui generis, i.e. a zone all of its own, neither high seas nor territorial sea. Using the term “international waters” derogates from the agreed nature of the EEZ.
This has been recognised by a prominent U.S. expert on the law of the sea, see Raul Pedrozo, “Preserving Navigational Rights and Freedoms: The Right to Conduct Military Activities in China’s Exclusive Economic Zone”, Chinese Journal of International Law 9, No. 1 (March, 2010), 19, accessed 17 June 2014, DOI:
10.1093/chinesejil/jmq007.
6 Donald R. Rothwell and Tim Stephens. The International Law of the Sea. Oxford:
Hart Publishing, 2010, 84.
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58(1), other states have the freedom of navigation and overflight in the EEZ of a coastal state, as well as the freedom to lay submarine cables and pipelines, and other internationally lawful uses of the sea related to those freedoms. However, UNCLOS Article 58(3) requires that, in exercising these freedoms, other states should have “due regard” to the rights and duties of the coastal state. In practice, it is difficult to define an operational test to distinguish between an action that has due regard to the rights and duties of the other party, and one that does not.7
oBligaTions To CooperaTe
A major problem with the South China Sea that requires greater rec-ognition is that it still has no effective regime for cooperative marine management and good order at sea. This is despite the obligation of all countries bordering a body of water, such as the South China Sea, to cooperate in accordance with Part IX of UNCLOS, to which all the lit-toral countries are parties.8
The trans-boundary issues in the South China Sea that require coop-eration include five activities identified in the DOC as requiring coopera-tion pending a comprehensive and durable settlement of the dispute.9
The demands for effective management regimes in the South China Sea will become more pressing in the future. The volume of shipping traffic will continue to increase, with greater risks of marine pollution
7 Sam Bateman. “Solving the ‘Wicked Problems’ of Maritime Security: Are Regional Forums up to the Task?” Contemporary Southeast Asia 33, No. 1 (2011):
8 “CSCAP Memorandum No. 13.”7.
9 “2002 Declaration on the Conduct of Parties in the South China Sea”, Article 6 (declaration adopted by the Foreign Ministers of ASEAN and the People’s Republic of China at the 8th ASEAN Summit, Phnom Penh, 4 November 2002).
Accessed 17 June 2014. http://cil.nus.edu.sg/rp/pdf/2002%20Declaration%20 on%20the%20Conduct%20of%20Parties%20in%20the%20South%20China%20 Sea-pdf.pdf (unofficial text by Centre for International Law, National University of Singapore). The activities are: (i) marine environmental protection; (ii) marine scientific research; (iii) safety of navigation and communication at sea; (iv) search and rescue operations; and (v) combating national crime, including, but not limited to, trafficking in illegal drugs, piracy and armed robbery at sea, and illegal traffic in arms.
Chapter 6 Confidence-Building Measures for the South China Sea
from ships and shipping accidents. There will be increased pressure on the resources of the South China Sea, as well as growing concerns for the protection and preservation of the sea’s sensitive ecosystems and marine biodiversity.10
Very little progress has been made on implementing the required cooperation and many of the South China Sea littoral countries are still not party to the relevant international conventions that provide the framework for good order at sea,11 nor has any effective regional organi-sation been established for managing the South China Sea.12
The Coordinating Body on the Seas of East Asia (COBSEA) is not well supported. Attempts to implement the UNCLOS Part IX obligations to cooperate in the management of enclosed and semi-enclosed seas have not achieved the desired outcomes in the Mediterranean and Caribbean seas, and the experience so far with the East Asian Seas Action Plan steered by the COBSEA gives little ground for optimism that successful outcomes will be achieved.13 These programmes have tended to have a single sector focus on pollution whereas a more multi-sector approach to ocean and coastal management is required.14
The South China Sea needs a standing Track 1 regional forum to address issues of cooperation and management, and to discharge the obligations of
10 Song Yann Huei. “The Study of Marine Biodiversity in the South China Sea; Joint Efforts Made in the SCS Workshop Process.” Paper presented at the international workshop on “The South China Sea: Cooperation for Regional Security and Development”, Ho Chi Minh City, Vietnam, November 2010.
11 Sam Bateman, Joshua Ho and Jane Chan. Good Order at Sea in Southeast Asia – Policy Recommendations. Singapore: S. Rajaratnam School of International Studies, April 2009, 29, Table 5. The lack of adherence to the International Search and Rescue (SAR) Convention is particularly noteworthy, with only China, Singapore and Vietnam, among the littoral countries to the South China Sea, being parties at present.
12 Jon M. Van Dyke. “Regional Maritime Cooperation in the South China Sea.”
Paper presented at the international conference on “Major Law and Policy Issues in the South China Sea – European and American Perspectives”, Academia Sinica, Taipei, Taiwan, 6–9 October 2011.
13 Alfred Hu Nien Tsu. “Semi-enclosed Troubled Waters: A New Thinking on the Application of the 1982 UNCLOS Article 123 to the South China Sea.” Ocean Development and International Law 41, No. 3 (2010), 281–314.
14 Van Dyke. “Regional Maritime Cooperation in the South China Sea.”
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littoral countries under UNCLOS Part IX.15 This idea has been around for a long time. In the late 1990s, it was a central recommendation in the fine work by Van Dyke, Valencia and Ludwig on regime building in the South China Sea, which remains very relevant to present circumstances.16
In a related proposal, Philippine President Benigno Aquino has called for the South China Sea to become a Zone of Peace, Freedom, Friendship and Cooperation, which would provide a framework for collaborative activi-ties.17 China has also proposed the establishment of technical committees on three areas: (i) marine scientific research and environmental protection;
(ii) navigational safety and search and rescue; and (iii) combating trans-national crime at sea.18 All three are areas where cooperation is urgently required but ASEAN has not accepted the Chinese proposal and appears to want an agreed Code of Conduct first. Unfortunately, the drive for a Code of Conduct has diverted attention from the requirement for cooperation in the sea. More focus is now required on cooperation that comprises effec-tive arrangements for the management of the sea and activities within it.
The ASEAN-China Summit meetings and the Joint Declaration on the ASEAN-China Strategic Partnership for Peace and Prosperity provide solid political foundations for forums specifically focused on manage-ment and cooperation in the South China Sea.