While negotiations over sovereignty in the South China Sea appear to be in a deadlock, a focus on climate change and ocean protection could lead to calmer waters, Manuel Solis writes.
The South China Sea (SCS) is the world’s most contested sea area with competing territorial and maritime claims from at least six coastal and seafaring states: China (including Taiwan), Brunei, Indonesia, Malaysia, the Philippines, and Vietnam. Out of the six claimants, five are members of the Association of Southeast Asian Nations (ASEAN).
As a busy commercial and strategic gateway with abundant natural resources, the SCS is unfortunately defined by contestation. At stake is US $3.37 trillion of global trade passing through the SCS; fisheries worth US $21.8 billion; proven and probable oil reserves of 11 billion barrels of oil; and an estimated 900 trillion cubic feet of natural gas.
Competing claims for sovereignty, territory, maritime entitlements and natural resources in the SCS are all a recipe for what foreign affairs expert Robert Kaplan calls ‘Asia’s Cauldron’.
The default international legal instrument to address the overlapping claims in the SCS is the UN Convention on the Law of the Sea (UNCLOS). UNCLOS functions as the constitution for the world’s oceans and seas. It embodies novel legal concepts such as the exclusive economic zone and the extended continental shelf with its own dispute settlement mechanism.
Interestingly, UNCLOS also incorporates environmental protection clauses for the marine environment. However, climate change is not originally within the contemplation of the legal instrument.
So far, legal and international relations analyses tend to focus on the merits of territorial claims and potential geopolitical outcomes of disputes under UNCLOS. However, the dispute settlement mechanism under UNCLOS can be problematic.
We need look no further than the international arbitration case that the Philippines filed against China in March 2014. China remains steadfast in its argument rejecting the arbitral award to the Philippines, claiming the subject matter of the arbitration involves sovereignty and is thus outside the ambit of UNCLOS.
Effectively, the arbitral decision and its enforcement remain matters of contestation. Building consensus and achieving regional cooperation on the SCS are standing challenges for both ASEAN and the future of ASEAN-China relations.
Another problem is the way ASEAN has sought to peacefully resolve the disputes in the SCS. As early as 1992, ASEAN officially committed to addressing the SCS problem with the ASEAN Declaration on the SCS. It took another decade to reach a non-binding Declaration on the Conduct of Parties in the SCS with China in 2002. This laid the groundwork for further consultations on a Code of Conduct in the SCS, which gained momentum after the arbitration ruling in favour of the Philippines in 2016.
However, the negotiations on the Code of Conduct are tedious and only expose ASEAN’s institutional weakness. Even reaching a joint statement or communique on the SCS is proving to be a difficult task, with a single dissent from an ASEAN member country enough to create an impasse in the organisation’s consensus-driven decision-making process.
Beyond claims of sovereignty, territory and maritime entitlements, the SCS faces serious sustainability challenges, particularly from the threats of climate and ocean change. Undeniably, the SCS narrative is not just about contestation.
According to the Intergovernmental Panel on Climate Change (IPCC), the ocean is a carbon sink that absorbs 30 per cent of the anthropogenic carbon dioxide emitted into the atmosphere. The IPCC has highlighted in its Fifth Assessment Report that climate change negatively impacts ocean health in terms of ocean warming, acidification, sea-level rise and de-oxygenation putting marine ecosystems, marine biodiversity and fisheries at risk.
Under a business-as-usual scenario, University of British Columbia researchers predict that the ocean species in the SCS will decrease by up to 59 per cent by 2045 due to climate change. In the last three decades, fish stock has decreased by a third, while coral reefs declined at a staggering rate of 16 per cent in the last 10 years.
China’s State Oceanic Administration Report from the First Oceanic Research Institution admits that because of ocean warming, acidification and overfishing, coral reef systems in the SCS are degrading rapidly. The SCS is an unavoidably a hotspot for climate change and a major concern for the international climate change regime.
Without a functioning and healthy ocean, the Paris Agreement goal of limiting warming to 1.5 degrees Celsius or well below 2 degrees Celsius is not achievable.
One attempt to address this has been through the Ocean Pathway initiative, which supports the goals of the Paris Agreement by increasing the role of ocean considerations in the UN negotiations and by incubating and accelerating climate action involving the ocean.
Considering that all ASEAN member states and China are committed to achieving international climate policy goals, there is considerable opportunity to pursue joint regional climate policy formulation and action in the SCS. Notably, ASEAN has been instrumental in promoting cooperation and integration among its member countries on climate policy.
Since 2007, ASEAN Summits have repeatedly identified climate change as a priority concern that can be tackled through regional cooperation. Established in 2009, the ASEAN Working Group on Climate Change recognises the need for cross-sectoral coordination and a global partnership to address climate change.
With China’s emergence as a leader on the global climate change stage, ASEAN has the opportunity to build consensus and strike a regional cooperation deal with its largest neighbour through the Ocean Pathway strategy. As a 2017 study published by the Norwegian Institute of International Affairs points out, it is time for ASEAN to take a forward-leaning role in ‘creating a team spirit’ around each member’s international climate change policy commitments.
This bottom-up approach resonates with the ASEAN way of diplomacy that puts a premium on national sovereignty, non-interference, and consensus in decision-making. By taking a proactive approach to the Ocean Pathway strategy, ASEAN can help reframe the SCS narrative from one of contestation to consensus-building and cooperation.