Maritime Cooperation in the South China Sea: Three Possible Ways to Help Achieve the Goal of Making the SCS a “Sea of Peace, Friendship and Cooperation”
Research Fellow, Institute of European & American Studies,
Academia Sinica, Taipei
November 6, 2020
Talking Points prepared for the Symposium on Maritime Cooperation and Ocean Governance, hosted by National Institute for South China Sea Studies (NISCSS) in collaboration with China-Southeast Asia Research Center on the South China Sea (CSARC), and the Institute for China-America Studies (ICAS), November 5-6, 2020, Haikou, Hainan, Mainland China. I will participate in the event via video connection. The views, thoughts, and opinions expressed herein below are solely those of the author and do not necessarily reflect the views of any institutions.
- It is believed that in order to transform successfully the South China Sea (“SCS”) from a sea full of potential conflicts into a “sea of peace, stability, security, friendship, cooperation, and prosperity”, there is a need to enhance the political will of the heads of State/Government of the countries that are bordering the SCS by adopting more confidence building measures (“CBM”) and agreeing on cooperative joint projects and then moving towards the establishment of a permanent ocean governance body to be in charge of managing potential conflicts and promoting maritime cooperation in this very important East Asian semi-enclosed sea.
- In the early 1990s, by applying the concept advanced by former Chinese leader Deng Xiaoping to solve maritime disputes in the East China Sea, the idea of “setting aside dispute and pursuing joint development” was proposed by the Chinese government to help manage and/or resolve the disputes in the SCS. This proposal, however, was not accepted by other SCS claimants and therefore failed. The failure of the Chinese proposal can be attributed to the failed advancement of joint development and maritime cooperative projects, which are considered CBMs useful to help enhance mutual trust and political will of the parties concerned so that concrete measures could possibly be adopted to make the SCS a “sea of peace, friendship and cooperation”.
- In 1990, the government of Indonesia submitted a peace and cooperation proposal via hosting the Informal Workshop on Managing Potential Conflicts in the South China Sea (“the SCS Workshop”) that included the member States of ASEAN and started to hold meetings in 1990. The Workshop process was later expanded by inviting Chinese Taipei, China, and Vietnam to attend the second SCS Workshop held in 1991. The SCS Workshop is considered one of the important CBMs that are useful to promote maritime cooperation in the SCS. Actually, the idea of concluding a code of conduct (“COC”) in the SCS was originated from the discussions of the participants in the Workshop process.
- In March 2002, a joint scientific marine exploration project of the Anambas and Natuna Archipelago was agreed to at the SCS Workshop and implemented by ASEAN member States, Chinese Taipei, and China. The discussions on the COC led to the signing of the Declaration on the Conduct of Parties in the South China Sea (“DOC”) by the ASEAN member States and China in November 2002. It is important to note that Paragraph 10 of the DOC states that “The Parties concerned reaffirm that the adoption of a code of conduct in the South China Sea would further promote peace and stability in the region and agree to work, on the basis of consensus, towards the eventual attainment of this objective.”
- In 2004, at the 14th SCS Workshop held in Batam, Indonesia, a number of joint scientific research project proposals were reviewed, which include marine science data and information networking, biodiversity studies, study of tides and sea level change, training program of marine ecosystem monitoring, training program for seafarers, fisheries stocks assessment, hydrographic survey, and search and rescue and illegal acts at sea including piracy and armed robbery at sea. All participants in the SCS Workshop acknowledged the importance of the SCS Workshop process as a CBM and a preventive diplomacy.
- The important contribution made by the Indonesian-led SCS Workshop process to help manage potential conflicts and maintain stability and peace in the SCS had been continuously recognized by the ASEAN member States between 1992 and In July 1992, the SCS Workshop was mentioned in the Joint Communique for the 25th ASEAN Ministerial Meeting, in which it was noted that the Workshop “had contributed to a better understanding of the issues involved.” In July 1998, the 5th Meeting of the ASEAN Regional Forum (“ARF”) noted, among others, the positive contribution made by the continuing works of the SCS Workshop. In July 2004, a paragraph of the Joint Communique of the 37th ASEAN Ministerial Meeting (“AMM”) stated that the ministers appreciated the efforts of the Indonesian Government in holding the Workshop since 1990 that had contributed to the comfort level of ongoing process.
- Since 2005, the importance of the SCS Workshop process and the contribution it made to help manage potential conflicts in the SCS has not been mentioned any more in the official documents of ASEAN Ministerial Meetings, or the ASEAN-led series of security dialogues, such as ARF. A number of reasons can be given to explain why the SCS Workshop process was not mentioned: First, the government of Canada decided to stop provide funding support to the Workshop process in 2001; Second, the effectiveness of the Workshop process was questioned as it had been turned into a “talking club”; Third, some of the authorities did not implement the join projects that were agreed to at the Workshop; and Finally, the adoption of the DOC in 2002.
- In March 2005, a Tripartite Agreement for Joint Marine Seismic Undertaking in The Agreement Area in the South Sea was signed in Manila, by and among China National Offshore Oil Corporation (CNOOC), Vietnam Oil and Gas Corporation (PETROVIETNAM), and the Philippine National Oil Company (PNOC). By signing the Agreement, the three parties expressed their desire to engage in a joint research of petroleum re resource potential in the Agreement Area as a pre-exploration activity. The three parties affirmed that the signing of the Tripartite Agreement will not undermine the basic positions held by their respective governments on the SCS issue and will contribute to the transformation of the SCS into “an area of peace, stability, cooperation, and development” in accordance with the 1982 United Nations Convention on the Law of the Sea (“UNCLOS”) and the 2002 DOC. Unfortunately the Tripartite Agreement expired in 2008.
- In November 2008, at the 18th SCS Workshop, an important achievement was an agreement between China and Chinese Taipei to work out a joint cooperative proposal on the training and education program on marine science in the SCS. In 2009, China and Chinese Taipei Joint Project of Southeast Asian Ocean Network for Education and Training (SEAONE) was agreed to at the 19th SCS Workshop and implemented in Taiwan in 2010 and in mainland China in 2011. The joint project continued to be implemented until 2016 when a new government under Tsai Ing Wen was established in Taiwan. However, it should be noted that although the Tsai government opposes the one-China principle and the so-called “1992 consensus” between Beijing and Taipei, it has continued to send Taiwanese participants to attend the SCS Workshop under the name “Chinese Taipei”. It should also be noted that since 1991 until 2019, both China and Chinese Taipei had continuously sent government officials and scholars to participate in the SCS workshop process while on their personal capacities. It should be acknowledged that the SCS Workshop is the only platform for exchange of views between Taipei and Beijing on possible maritime cooperation in the SCS.
- Although the role and function of the SCS Workshop process in helping manage potential conflicts in the SCS have become limited and less effective, it has continued to be convened. The 29th SCS Workshop was held in September 2019 in Batam, Indonesia. It was emphasized at the meeting that the Workshop is part of one and a half track diplomacy to support the negotiation effort in the first-track (inter-governmental), by building trust (confidence building measures) among parties in the region. The workshop aimed at developing closer cooperation in order to support peace, stability, and prosperity in the SCS. Some of the research projects proposed by Indonesia, among others, Anambas II Expedition (a research project to measure biodiversity and marine pollution) and the impact of sea level rise to the coastal area were discussed at the meeting.
- The year 2020 marks the 30th anniversary of the SCS Workshop. It is not clear if the 30th SCS Workshop would continuously to be held or not by the government of Indonesia. However, the efforts made by Jakarta to promote peace, stability and prosperity in the SCS should be recognized. In this regard, it is this author’s view that all of the countries bordering the SCS and have participated in the Workshop process over the last three decades are encouraged to express their appreciation to the government of Indonesia and in particular the founding father of the Workshop, namely, Ambassador Professor Dr. Hasjim Djalal, for the important contribution they made to help manage potential conflicts in the SCS since 1990 until the present.
- If I were given a chance to nominate someone to receive the Nobel Peace Prize 2020, or the ASEAN Prize 2020, I would not think twice to nominate Professor Dr. Djalal as the recipient of the Award. It is also my personal opinion that ASEAN member States and China are encouraged to consider the establishment of an ASEAN-China Prize that is awarded to those who have done the most or the best work for the promotion of peace, stability, friendship, cooperation, and prosperity in the SCS. In addition, if a Cross-Taiwan Strait Prize were established, this author would also recommend Professor Dr. Djalal as the recipient for the Prize for his continues efforts made over the last three decades to help and sustain the dialogue platform for the Taiwanese and Chinese government officials and scholars to meet and exchange views on the issues related to management/resolution of maritime disputes and promotion of maritime cooperation. It is important to note that the SCS Workshop process is the only security dialogue platform that allows the two sides of the Taiwan Strait to exchange views on the SCS issues. Since 1991 until 2019, government officials and scholars from mainland China and Taiwan had participated in the SCS Workshop process without any interruption.
- Due to the lack of funding support and decreasing interest of the participating authorities, the role and function of the SCS Workshop indeed has been weakened. Some of the ASEAN member States do not send participants to the SCS Workshop meetings, such as Singapore and Thailand. It is therefore proposed to find ways to strengthen the effectiveness of this Workshop process. If agreed to, the ASEAN-China or China-Indonesian maritime cooperation fund could be used to support the costs of convening the Workshop. In addition, if agreed to by the government of Indonesia, one of the ASEAN member States, China and Chinese Taipei could be invited to co-organize the annual Workshop together with Indonesia. Finally, it is suggested that one of the important issues for discussion at the SCS Workshop could be how to make the SCS a “sea of peace, friendship, cooperation, stability and prosperity”. Another one is the consideration of the establishment of a permanent ocean governance body in the SCS to help manage potential conflicts and promote maritime cooperation.
- In addition to the SCS Workshop, there have also been seen a number of other peace and cooperation proposals made by Chinese Taipei and the government of the Philippines in the past, such as the Spratly Initiative, the South China Sea Peace Initiative, and the suggestion to make the SCS a “Zone of Peace, Friendship and Cooperation” (ZoPFF/C).
- In September 2010, in his remarks before the Council of Foreign Relations in New York, Philippine President Benigno Aquino III expressed the belief that “it is the best interest of the region to transform this potential flashpoint into a Zone of Peace, Friendship, Freedom and Cooperation through sustained consultation and dialogue.” President Aquino reiterated the same peace and cooperation initiative at the ASEAN Leaders’ Retreat in October 2010. The ZoPFF/C proposal was noted with appreciation by the foreign ministers of the ASEAN member States at their 44th meeting held in Bali, Indonesia, in July 2011. The ministers tasked the ASEAN Senior Officials’ Meeting with the assistance from maritime legal experts to seriously study the proposal. Unfortunately, the proposal was put to an end in 2012 as the government of the Philippines decided to initiate an arbitration case against China after the occurrence of the Scarborough standoff in April 2012.
- Since the adoption of the DOC in 2002 and in particular the signing the Tripartite Agreement in March 2005, the Chinese leaders have started and continuously expressed their desire to make the SCS a “sea of peace, friendship and cooperation”. In July 2011, in his remarks made at the ASAN Regional Forum’s Foreign Ministers meeting, Chinese Foreign Minister Yang Jiechi stated that “China and ASEAN countries should make full use of this opportunity to promote practical cooperation in the South China Sea and work together to turn the South China Sea into a sea of peace, friendship and cooperation.”
- In October 2013, China formally joined the Treaty of Amity and Cooperation in Southeast Asia (TAC) after foreign ministers of China and 10 ASEAN member States signed a document on China’s accession to the treaty. Parties to this treaty pledge to promote peace, cooperation in various fields, which include maintaining peace and promoting maritime cooperation in the SCS. By acceding to TAC, China agrees to perform and carry out all the stipulations contained in the Treaty, whose purpose is to promote perpetual peace, everlasting amity and cooperation based on mutual respect, non-interference principle and peaceful settlement of disputes.
- In April 2016, at the 5th Meeting of the Ministers of Foreign Affairs of the Conference on Interaction and Confidence-Building Measures in Asia (CICA) in Beijing, President Xi Jinping delivered an important speech entitled “Jointly Create a Better Future of Peace and Prosperity for Asia Through Dialogue and Consensus”. Xi said, China is committed to maintaining peace and stability in the SCS and will continue to work with ASEAN countries to make the SCS a “sea of peace, friendship and cooperation”. In November 2018, during his State visit to the Philippines, President Xi stated that Washington needs to let Beijing work with the claimant states to make the SCS a “sea of peace, friendship and cooperation”. This was followed by the remarks made by Premier Li Keqiang when he met with President Rodrigo Duterte of the Philippines in Beijing in April 2019. More recently, in October 2020, Chinese Foreign Minister Wang Yi said, when meeting with Foreign Secretary Teodoro Lopez Locsin of the Philippines in China’s Yunnan Province, that China is willing to work with the Philippines to promote the consultation on the COC in the SCS, and reach an early agreement on effective regional rules jointly recognized by China and ASEAN countries, so as to show the world that China and ASEAN countries have the ability and wisdom to maintain peace and stability in the SCS and to turn the SCS truly into a “sea of peace and cooperation”.
- Although different wordings are used, the leaders of the ASEAN member States express the same desire to make the SCS a “sea of peace, friendship and cooperation”. In June 2020, the Heads of State/Government of ASEAN Member States, at the 36th ASEAN Summit, “reaffirmed the importance of maintaining and promoting peace, security, stability, safety and freedom of navigation in and over-flight above the South China Sea and recognized the benefits of having the South China Sea as a sea of peace, stability and prosperity.” The same policy position was reiterated by the ASEAN foreign ministers at their 53rd meeting via videoconference in September 2020.
- As tensions are rising and possibilities of armed conflict are increasing in the SCS, it is important to find ways to help realization of the shared and longstanding policy goal of the countries that are bordering the SCS to make the Sea a “sea of peace, security, stability, friendship, safety, cooperation, and prosperity”.
- Three possible ways to achieve the said policy goal include: a. Increasing the role and function of the SCS workshop process; b. Fully implementing the DOC and completing the COC negotiations as soon as possible for an early conclusion of the instrument; c. Establishing permanent institutions to be in charge of maritime cooperation and ocean governance in the SCS.
- The suggestion made by the author concerning possible ways to enhance the role and function of the SCS Workshop was mentioned earlier. Now it turns to the role and importance of the conclusion of the COC in the SCS. It is believed that the COC negotiations and an early conclusion of the Code are important to the efforts undertaken by ASEAN member States and China to achieve the stated policy goal of making the SCS a “sea of peace, friendship and cooperation” or a “sea of peace, stability and prosperity”. It is good to know that an ad hoc joint working group meeting for the implementation of the DOC was held in early September 2020 and both ASEAN member States and China agreed to speed up the COC negotiating process.
- It is important for the 19th Senior Officials’ Meeting on the Implementation of the DOC and the 31st Joint Working Group Meeting on the Implementation of the DOC to be convened as soon as possible. However, it should be noted that the key to the successful negotiations on the code and conclusion of the instrument is the need to make compromises both by ASEAN claimants and China, given the fact that there exist a number of differences that must be ironed out, which include the geographic scope of the application of the COC, the legal binding effect of the instrument, the inclusion of a dispute settlement mechanism. In addition, it is very likely that the legal arguments and conflicting claims found in the diplomatic notes that were sent by the ASEAN claimants and China to the UN Secretary-General and CLCSwould influence to a great extent the ongoing COC negotiations and final conclusion of the Code next year or in 2022.
- It is suggested here that there is a need for ASEAN member States and China to find a way to handle the disputes arising from the application of the 2016 Award in the SCS arbitration case. Although different positions on interpretation and application of the 2016 Award need to be respected, for the purpose of making the SCS a “sea of peace, friendship, cooperation, stability and prosperity”, it is considered useful to put aside the 2016 Award or seeks way for compromise between ASEAN claimants and China during the COC negotiations. Otherwise, it is very difficult to see a successful negotiation and possible conclusion of the COC in 2021 or 2022.
- It is also suggested that during the COC negotiation process, from now to the final conclusion of the code, ASEAN claimants and China must exercise restraint and avoid conducting any unilateral actions that have the potential to escalate tensions in the SCS and negatively affect the COC negotiations. In addition, as ASEAN member States and China signed the DOC in 2002 and since then all parties have agreed to implement fully the Declaration, it is necessary to emphasize the link between the DOC and COC with regard to geographic scope of application, CBMs, and areas of maritime cooperation. Moreover, as China and ASEAN member States are parties to the UN Charter, UNCLOS (with the exception of Cambodia), and TAC, the difference with regard to legal binding effect of the COC could possibly be ironed out without legal problems. Likewise, differences with regard to the inclusion of a dispute-settlement mechanism in the COC could also be solved. Furthermore, it is considered important to insert a paragraph or provision that encourages or mandates ASEAN member States and China to establish an ocean governance body in the SCS by drawing upon successful experiences of maritime cooperation and ocean governance in the Arctic, Antarctica, Mediterranean, or other regions. If agreed, the existing AEAN-China Maritime Cooperation Fund, or the establishment of a new cooperation fund, could be used to support of the establishment of the proposed ASEAN-China Ocean Governance Body in the SCS and its operations thereafter. Finally, in addition to the encouragement of other countries to respect the COC, it would be also useful to insert a paragraph or provision in the COC to allow possible participation of other countries, entities, or IGOs by bearing the status of observers after the instrument enters into force.
- Now I turn to the third possible way to help achieve the goal of making the SCS a “sea of peace, friendship and cooperation”, that is, the establishment of permanent organization in the SCS. The ideas and suggestions with regard to the establishment of ocean governance body in the SCS have been proposed by scholars who are following closely the developments in the area over the past decades. The suggested institutions include, but not limited to, the SCS Cooperation Council (e.g., David VanderZwaag, Professor, Dalhousie University, and Hai Dang Vu, Resercher, National University of Singapore; Gao Zhiguo, former ITLOS Judge, and President, Chinese Society of the Law of the Sea; Zhou Qiulin, Research Fellow, Academy of Ocean of China; Du Lan and Cao Qun, Assistant and Associate Research Fellows, China Institute of International Studies; Edwige Cavan, Policy Advisor, Scientific Diplomacy at Ministère de l’Europe et des Affaires étrangères; Daniel Thomassen, a Commander in the Royal Norwegian Navy), SCS Regional Fisheries Management Organization (e.g., Mary George, Professor, University of Malaya; Zhang Hongzhou, Research Fellow, RSIS, Nanyang Technological University, Singapore; Marina Tsirbas, senior executive adviser for policy engagement at the National Security College, the Australian National University; Kuan-Hsiung Wang, Professor, NTNU), SCS Cooperation Body for Environmental Governance (e.g., Bai Jiayu, Professor, Ocean University of China Law School).
- The legal bases for the proposed institutional setting are: Articles 74, 83 and 123 of the UNCLOS, the DOC, and the COC (to be adopted in the near future). Articles 74 and 83 of UNCLOS provide that “1. The delimitation of the exclusive economic zone (and continental shelf) between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution. 3. Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation.”
- Article 123 of UNCLOS provides that “States bordering an enclosed or semi-enclosed sea should cooperate with each other in the exercise of their rights and in the performance of their duties under this Convention. To this end they shall endeavour, directly or through an appropriate regional organization: (a) to coordinate the management, conservation, exploration and exploitation of the living resources of the sea; (b) to coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment; (c) to coordinate their scientific research policies and undertake where appropriate joint programmes of scientific research in the area; (d) to invite, as appropriate, other interested States or international organizations to cooperate with them in furtherance of the provisions of this article.”
- Article 4 of TAC provides that “The High Contracting Parties shall promote active cooperation in the economic, social, cultural, technical, scientific and administrative fields as well as in matters of common ideals and aspirations of international peace and stability in the region and all other matters of common interest.
- Paragraphs 1, 2, and 6 of the DOC provides that “1. The Parties reaffirm their commitment to the purposes and principles of the Charter of the United Nations, the 1982 UN Convention on the Law of the Sea, the Treaty of Amity and Cooperation in Southeast Asia, the Five Principles of Peaceful Coexistence, and other universally recognized principles of international law which shall serve as the basic norms governing state-to-state relations; 2. The Parties are committed to exploring ways for building trust and confidence in accordance with the above-mentioned principles and on the basis of equality and mutual respect; 6. Pending a comprehensive and durable settlement of the disputes, the Parties concerned may explore or undertake cooperative activities. These may include the following: a. marine environmental protection; b. marine scientific research; c. safety of navigation and communication at sea; d. search and rescue operation; and e. combating transnational crime, including but not limited to trafficking in illicit drugs, piracy and armed robbery at sea, and illegal traffic in arms.”
- The Arctic Council has facilitated harmonious discussions and ameliorated tensions for the past decade by decentralizing power, using science as a common language for addressing disputes, and limiting council membership. In their article entitled “Regional Cooperation in the South China Sea and the Arctic: Lessons to be Learned,” (2012) David VanderZwaag and Hai Dang Vu suggested that the Arctic Council could serve as an inspiration to SCS states for their own regional cooperation framework. They have identified several important lessons that the SCS regional framework can learn from the Arctic Council model: “the debate regarding a legally binding regional framework agreement; the potential of developing hard law agreements through soft law processes; the use of informal institutional mechanisms to facilitate regional cooperation; how to involve non-state actors in regional cooperation; the promotion of common regional interests in international fora; the potential usefulness of regional assessments and reviews; and the example of an advanced monitoring program.”
- To achieve the stated and shared policy goal of making the SCS a “sea of peace, friendship, and cooperation” or a “sea of peace, stability and prosperity”, there is a requirement for the countries that are bordering the SCS to build trust and confidence through long term commitment to cooperation, predictability and clear intentions. The experience of Arctic Council offers successful ocean governance lessons that can be applied to the SCS.
- In conclusion, there is a need for all of the countries that are bordering the SCS and all of the parties to the maritime disputes in this very important East Asian semi-enclosed sea to find ways to build trust and confidence, to agree on more cooperative projects, to help enhance the political will, and finally achieve the longstanding policy goal of making the SCS a “sea of peace, friendship and cooperation” or as expressed by the AEAN member States, to make the SCS a “sea of peace, stability and prosperity”.
- To strengthen the role and function of the existing SCS Workshop process, to promote full implementation of the DOC and achieve an early conclusion of the COC, and to consider the establishment of a permanent ocean governance in the SCS are the three possible ways suggested by the author to help achieve the policy goal shared by China and ASEAN member states. It is time to take concrete actions in accordance with the political commitments made in the past two decades to transform successfully the SCS from a sea full of potential conflicts into a “sea of peace, stability, security, friendship, cooperation, and prosperity”.