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 #ASEAN@50_PH (2)
 
                            Defining a Rules-based Freedom of Navigation Regime
                       for the South China Sea, after The Hague PCA arbitral ruling

 
                                                                             Alberto A. Encomienda,  balikBalangay
 

The South China Sea maritime setting and disputes situation . . . a preface and introduction
 
          Freedom of navigation is a non-issue in the context of the maritime jurisdictional disputes situation in the South China Sea. However, it needs to be accorded special treatment in that context because, although interjected by non-regional countries, it has assumed an aggravating role in the disputes situation; and heightened the regional disputes narrative and political tension. The subject and direction of this paper on freedom of navigation in the South China Sea straddles what are termed geo-political and geo-economic aspects of the South China Sea disputes situation, in light of the 12 July 2016 arbitral ruling of The Hague Permanent Court of Arbitration (The Hague PCA). The term geo-political carries sovereignty implications, while geo-economic implies sovereign rights. In both sovereignty and sovereign rights aspects, however, the dispute situation is colored by legal definitions in the United Nations Convention on the Law of the Sea (UNCLOS) of what otherwise are scientific classification of marine geological features. Interpreting the UNCLOS characterizations of the marine geological features of the Spratlys archipelago subject of the unilateral compulsory arbitration case brought by the Philippines against China, is the principal issue adjudicated by The Hague PCA under Annex VII of the 1982 United Nations Convention on the Law of the Sea (UNCLOS).
 
Stated another way, the legal/juridical terminology under the UNCLOS in regard to marine geological features in the Spratlys archipelago were defined by The Hague PCA on the basis of the application of marine scientific classifications, taking account of inputs from marine scientists and experts, in order to arrive at geo-economic jurisdictional entitlements for relevant marine geological features under dispute. A definition of specific geological features comprising the Spratlys archipelago based on inputs from marine geologists, other scientists and experts, in regard to marine geological features that are subject of sovereignty claims, are to be attributed legal jurisdictional entitlements as provided for and defined under the UNCLOS  i.e. whether or not a particular marine geological feature in the Spratlys archipelago is entitled only to a territorial sea, or additionally, an Exclusive Economic Zone (EEZ) and Continental Shelf, or whether they can  at all be subject of appropriation by claimant States. It is on the basis of a legal/scientific determination of relevant marine geological features in the Spratlys archipelago that the Philippines pursued in a unilateral compulsory arbitration under the UNCLOS in order to clarify its sovereign rights (geo-economic) entitlements. The expected results of that judicial determination is also seen as indirectly invalidating the “nine-dashed line” of China.
The above subject description have to be highlighted at the outset inasmuch as, while the twin geo-political and geo-economic aspects are normally subsumed each within the other in regard to territorial and maritime jurisdictional issues under the UNCLOS, the South China Sea situation is not normal. This is on account of, first and foremost, a five-way overlapping sovereignty/sovereign rights claims among regional States (or six-way to include one political entity, Taiwan). In addressing the geo-economic or sovereign rights aspects of the maritime disputes in the Spratlys archipelago, which is the approach and direction of the Philippines submission before The Hague PCA, no solution can be arrived at unless it is treated separately from the geo-political aspects that involves sovereignty. The sovereignty or territorial aspect is the more intractable issue to resolve under the UNCLOS and, for that matter, over which The Hague PCA would have no jurisdiction. What otherwise are related issues of sovereignty and sovereign rights for coastal States, in the words used in the deliberations of the The Hague PCA in the South China Sea arbitral case, would have to be “bifurcated”. Said another way, the sovereignty and sovereign rights issues must be separably pursued. And the case before The Hague PCA is only in regard to sovereign rights, but also intended to indirectly invalidate the “nine-dashed line” of China. It is another question, however, if indeed a “bifurcation” approach is appropriate for a third party settlement of the Spratlys archipelago maritime disputes.
The same “bifurcation” approach above described, needs to be applied in this paper, towards a focus on the geo-economic or sovereign rights aspect.  Taking the geo-economic/sovereign rights direction in the Spratlys archipelago disputes situation could expectedly contribute towards progress in a peaceful resolution of the overall disputes situation, or at least lessen political tensions in the immediate term. Freedom of navigation, which is treated as a sovereignty issue, is also a geo-economic (sovereign rights) concern, which is the approach and direction of this paper. As indicated, a “bifurcation” is necessary for purposes of this paper as the sovereignty (geo-political) issues is not susceptible of a neat and easy holistic resolution under the UNCLOS acceptable to all five claimant States. On the other hand, a beneficial approach towards the geo-economic aspects is easier to achieve and can be implemented immediately outside of the geopolitical/sovereignty aspects, granted the existence of good faith and goodwill among all the concerned States.
A “bifurcation”, or separate treatment of the geo-political and geo-economic issues, would be the only constructive way to proceed regardless of any subjective interpretation of The Hague PCA arbitral award. Any progress in the geo-economic aspects i.e. conservation and management of marine resources including resource sharing, apart from having assumed a separate bunch of issues under The Hague PCA arbitral ruling, can definitely alleviate tensions generated in the geo-political sphere, and addressing the matter of freedom of navigation in the process. Indeed, judging from the initial contacts between China and the Philippines in the immediate aftermath of The Hague PCA arbitral ruling, the foregoing bifurcated approach is what seems to be quickly shaping up on the ground. China had not accepted compulsory arbitration nor any results of the unilateral compulsory arbitration process. It has indicated to the Philippines side, however, even prior to The Hague PCA ruling, a readiness to consider any form of bilateral cooperation outside of the arbitral award (such as fisheries and marine resources, which carry implications of food security), a proposition the Philippines have shown a willingness to consider.
It is for the above reason that “bifurcating” the geo-political and geo-economic issues is a constructive approach for a reassessment and fresh perspective for moving forward in light of the 12 July 2016 The Hague PCA arbitral ruling. It would be a good occasion for stocktaking in regard to its impact on the conflict situation, and to serve as a new starting point and being clear on where matters stand in regard to perceptions of changed paradigms in light of The Hague PCA ruling. A reassessment is necessary post-The Hague arbitral ruling for a fresh start and move matters towards a peaceful resolution of the regional conflict situation. The twin geo-political and geo-economic aspects in the conflict situation must be treated separately in order to achieve some positive/constructive progress especially in the geo-economic aspects in regard to ocean governance cooperation. If the latter can be implemented with good will and good faith all around, it can expectedly reduce political tensions and infect the geopolitical situation in a positive way. In turn, this can result in constraints on human activities especially the ongoing unbridled and wanton destruction of marine geological features. Whether unilateral and voluntary or achieved through consensual cooperation, this would expectedly result in a better management of the disputes situation and lessened regional political tension. And assign freedom of navigation to a more positive and constructive role in regard to maritime connectivity and safety and security of navigation.
 
Freedom of Navigation . . .  making waves in the South China Sea
The South China Sea is the embodiment of the millennial political/geopolitical competition in maritime Asia mainly involving disputes in regard to ownership of marine geological features in the Spratlys archipelago, among five (5) claimant States. The sovereignty disputes carries highly complicated regionwide geo-economic implications.  Since the turn of the millennium Y2K when the issues were “internationalized”, the Spratlys archipelago disputes have generated a series of international conferences at Tracks 1, 1.5 and 2 levels in the search for a peaceful resolution to the conflict situation, or at least to contribute towards alleviating regional political tensions.  This earlier treatment on the subject of the South China Sea disputes  have had substantial all-around coverage which may still be relevant and important post-The Hague PCA arbitral ruling and thus may be useful to revisit in plotting a new way forward. This is especially so because of a new round of such conferences having begun in the immediate post-The Hague PCA arbitral ruling.
As indicated, the starting point of the subject for this paper is the 12 July 2016 The Hague PCA arbitral ruling on the Spratly archipelago maritime disputes between the Philippines and China. The award, which has been bannered by the Philippines and the “international community” as a “clean sweep” in favor of the Philippines, has impacts on geo-political and geo-economic aspects regionally and internationally. The specifically defined subject coverage of this paper, however, focusses on challenges to freedom of navigation in the South China Sea. This would take into consideration what may be changed paradigms prior to and subsequently arising from the 12 July 2016 The Hague PCA arbitral ruling, and new parameters necessary for addressing the challenges to the marine environment due to human activities. This assessment would further take into account the rise of regional tensions in relation to China’s unilateral actions within the nine-dashed line that have brought about heightened challenges relating to environmental concerns, and safety and security of navigation. Although mainly in reference to China’s large-scale reclamation projects, in fairness to the marine environment, however, all claimant States have in varying degrees undertaken massive construction activities resulting in marine environmental destruction.
A principal issue accompanying the political/geopolitical aspect of the maritime disputes is freedom of navigation. The matter, however, is not raised by the Philippines in its submission before The Hague PCA, nor was it under consideration by The Hague PCA in the arbitral case. The geo-economic aspect of the arbitral case involved sovereign rights issues related to the marine environment and resources. Normally, the two issues go together and subsumed each within the other, as earlier said. The Philippines, however, in bringing the maritime cause before The Hague PCA, chose to pursue the resolution of sovereign rights issues first and to leave out the sovereignty issues for later resolution, which it sees to “logically” follow. Nevertheless, in its public diplomacy narrative, the Philippines raised the freedom of navigation issue together with extra-regional maritime Powers. (The Philippines submission and the favorable The Hague PCA arbitral ruling is also expectedly to result in invalidating the nine-dash line of China). The issues on the geo-economic aspect of the conflict situation is said to impact on international and regional trade and thus of interest to the ASEAN and directly relevant to the AEC 2015 and its ASEAN Community Vision 2025. As a geo-economic concern, the freedom of navigation “issue” can be an impediment to international trade and regional economic integration; not overlooking the fact that regional economic integration has political/geo-political undertones. In other words and as said, freedom of navigation also plays into the geo-economic aspects. As shall be posited later, and in keeping with the marine environmental protection direction, freedom of navigation and ship movements in the South China Sea will not be hampered for as long as protection and preservation of the marine environment is not compromised.
 
Freedom of Navigation in the South China Sea . . . post- truth, fake news
In regard to the overall regional disputes scenario currently obtaining in the South China Sea, freedom of navigation has never been disrupted since the early beginnings of the South China Sea conflict situation, and remains an anticipatory threat. It is not a fact on the ground, so to say, at this time. This is especially so in regard to regional and international seaborne traffic which is among the busiest in the world. There was no disruption to the exercise of the right of freedom of navigation and innocent passage despite the rather provocative Freedom of Navigation Operations (FON) conducted by the United States Navy involving aircraft carriers. At this very moment, more than six (6) months after The Hague PCA arbitral ruling, freedom of navigation for trading vessels and naval vessels have not been disturbed and there have been no announced FON activities by foreign naval elements. Except for an Obama outburst during the occasion of the recent G-20 and ASEAN Summits, even the loud noises flagging the freedom of navigation “issue” have quieted down; it is as if The Hague PCA ruling have automatically removed the “threat” to its exercise. What bears watching especially after the 12 July 2016 The Hague PCA arbitral ruling which is not accepted by China, is a possible magnified threat to the marine environment and resources due to resulting intensified assertion activities, including “militarization”, expectedly among concerned Parties in the dispute situation.  The threats to the marine environment would continue for the simple reason that the 12 July 2016 The Hague PCA ruling in favor of the Philippines has not in any manner or measure dissipated regional tensions.
 
Freedom of navigation in the South China Sea . . . a “pivot” towards marine environmental protection
It would have been useful to begin this narrative on freedom of navigation with a definition of the term, but there seems to be no proper or complete definition. The term seems to have acquired an “understood” meaning as a principle of customary international law that allows ships to go anywhere, anytime when in waters deemed to be “high seas”; and even within the territorial seas of another State in exercise of the right of innocent passage. It has generated international controversy under the UNCLOS Regime of the Exclusive Economic Zone (EEZ) when certain maritime Powers conducted intelligence and surveillance activities in the EEZ of other countries (including aerial surveillance) on the pretext of high seas freedom of navigation. In the South China Sea, freedom of navigation must be addressed as a geo-economic concern that would impact on safety and security of navigation, and assigning primordial consideration to ocean governance and the marine environment; a non-traditional maritime security concern. And in this regard, freedom of navigation is of special concern to the AEC 2015 integration and consolidation as abovesaid, and proactively implemented under the ASEAN Community Vision 2025.
In the foregoing context, the exercise of the right of freedom of navigation must be conducted within ocean governance parameters and not as a political/geopolitical issue. Safety and security of navigation in the South China Sea, including the exercise of freedom of navigation, must be insulated from geopolitical strategies and confined only to technical aspects of shipping safety and security of navigation, and the application of pure science in instituting an overall regional ocean governance framework and in combatting threats arising from human activities. Confidently, once a regional cooperative mechanism is established for ocean governance in the South China Sea, the matter of freedom of navigation will resolve itself. There is no intention to restrict or curtail the exercise of freedom of navigation in the South China Sea except in the context of restraints to protect the marine environment.  In other words, freedom of navigation in the South China Sea will never be disturbed, but managed and subjected only to a balancing element of constraints for the protection and conservation of the marine environment, resources and biodiversity.
 
The principle of FREEDOM OF NAVIGATION . . . never an absolute right; never an issue in the South China Sea
A cursory survey of the Table of Contents of The South China Sea Arbitration Award of 12 July 2016 does not indicate that freedom of navigation was part of the deliberations of The Hague PCA arbitral Tribunal. Neither was it included among the submissions in the unilateral compulsory arbitration before The Hague PCA brought by the Philippines against China, as aforesaid. Freedom of navigation in the context of The Hague PCA arbitral ruling is being examined in this paper on account of extraneous influences on the conflict situation and added political tension introduced by extra-regional States and adopted by the Philippines, and projected into the “nine-dashed” line narrative. Otherwise, as earlier posited, it is not a fact on the ground; it is a contrived issue as implicitly acknowledged by its omission in The Hague PCA ruling despite loud noises in the public domain that should have prompted The Hague PCA to take judicial notice. It would be relevant nevertheless to have a look into the historical origins of the principle of freedom of navigation and its evolution and current treatment under international law including the UNCLOS, and examine its relevance to the conflict situation in the South China Sea. This is to put the issue in its proper context, clear the air and put the issue the rest.
The International Tribunal for the Law of the Sea (ITLOS) has published a Statement by Rudiger Wolfrum as President of ITLOS entitled “Freedom of Navigation : New Challenges” (https://www.itlos.org/fileadmin/itlos/documents/statements_of_president/wolfrum/freedom _navigation_080108_eng.pdf ).  Judge Wolfrum is a member of The Hague PCA arbitral Tribunal on the South China Sea and a former ITLOS President. The Statement, while not directly connected to the 12 July 2016 The Hague PCA arbitral ruling, is a learned and authoritative discourse and treatise on the subject of freedom of navigation. It is compelled reading for a backgrounder on this extraneous issue in the context of the South China Sea disputes situation. The Statement at the outset (page 1) concedes that coastal States, whether unilaterally, bilaterally or multilaterally, can impose limitations to the exercise of the freedom of navigation; that the UNCLOS itself in specified cases allows such limitations. In other words, in the view of Judge Wolfrum, freedom of navigation is not an absolute right. It can indeed be argued that it is not even a general rule in these modern times but subject to qualifications and exceptional arrangements to manage the free movement of ships for the protection of the marine environment and other coastal State concerns. Said directly, in these modern times, there is no such thing as freedom of navigation. And if ever there is, it is now a “pivot” from the commercial interests of maritime/shipping States, to the environmental concerns of coastal States.
Moreover, as part of protective measures for the preservation of the marine environment and resources, such limitations can be instituted not just in the territorial sea but projected to the Exclusive Economic Zone (EEZ). In these modern times, marine environmental protective measures are being instituted even beyond national jurisdictions. This, it can be gratuitously added, especially for enclosed/semi-enclosed seas for which the UNCLOS provides a specialized regime at Part IX thereof. Furthermore, according to the Statement, “(i)t is impossible to go through all the challenges faced by or limitations placed on the freedom of movements of ships”.  Among many possible examples, the Statement cites two, one of which is environmental considerations. This is expanded upon at Chapter III of the Statement entitled “Measures to enhance the safety of navigation and protect the marine environment”. In other words, the characteristics of the sea determines limitations on freedom of navigation, and not national jurisdictions. And it is on this premise that this paper proceeds concerning challenges to the marine environment as related to freedom of navigation and other human activities in the South China Sea in the wake of 12 July 2016 The Hague PCA arbitral ruling. The aforementioned Chapter III of the Statement can be taken into account for consideration and application in the specific situation of the South China Sea.
The exceptional “characteristic regional features” of the South China Sea, and ocean governance requirements
The overall treatment of the Statement does not give any special consideration to complex marine geological/geomorphological situations as in the case of the South China Sea. The extremely complex nature of  the marine geological/geomorphological make-up of the South China Sea that renders it impossible to define freedom of navigation as related to geo-political jurisdictional issues is  demonstrated in an article entitled : “The Truth About US Freedom of Navigation Patrols in the South China Sea” by Shannon Tiezzi (http://thediplomat.com/ 2015 /09/the-truth-about-us-freedom-of-navigation-patrols-in-the-south-china-sea/) which is also compelled reading. Moreover, the South China Sea hosts among the most delicate and diverse marine biodiversity in the world that puts the Great Barrier Reef  and Torres Straits into pale comparison. An all-important consideration in the context of the South China Sea is that limitations to ship movements taking into consideration environmental concerns, for a seamless coherence and comprehensiveness, have to be addressed multilaterally among the five (5) claimant States with overlapping and varying jurisdictional claims, and thus squarely under UNCLOS Part IX.
Curtailment or limitations on freedom of navigation in the South China Sea is compelled on account of environmental considerations and safety and security of navigation; factors that are highlighted as among major concerns underpinning the Philippines submission in The Hague PCA unilateral compulsory arbitration. It is important to have a clear fix on the nature of the exercise of the right of freedom of navigation as an “issue” in the context of the South China Sea disputes inasmuch as it has contributed to raising regional tensions and hyped up to the very eve of the promulgation of The Hague PCA arbitral ruling. To reiterate, there has been no curtailment of the exercise of the right of freedom of navigation in the context of the South China Sea disputes situation, despite strong denunciations and declarations by the United States of America that seems to consider the right as absolute under customary international law. It is a repeated declaration from all levels of the relevant agencies of the Government of the United States all the way to President Obama. In his latest reiteration in remarks to the People of Laos on 06 September 2016, President Obama reiterated his challenge to the whole world, thus : “And across the region, including in the East and South China Seas, the United States will continue to fly and sail and operate wherever international law allows, and support the right of all countries to do the same.” (https://www.whitehouse.gov/the-press-office/2016/09/06/remarks-president-obama-people-laos). In the South China Sea disputes situation, freedom of navigation must be removed as a political/geopolitical issue from the main narrative, and switched to a concern relating to marine environmental protection as a non-traditional maritime security issue. The exercise of the principle of freedom of navigation must be defined and regulated as a collective regional effort in the South China Sea, among bordering States and other interested States (UNCLOS Article 123). Insisting on guarantees on freedom of navigation in the South China Sea in light of The Hague PCA ruling would be like “pushing an open door”, as the saying goes. It continues unhampered and unabated, and no need for guarantees in any form or manner. The best way to regulate freedom of navigation is to guarantee environmental protection and instituting a cooperative regional ocean governance system which, under UNCLOS Part IX would thus be rules-based.
 
Managing freedom of navigation in the South China Sea under a rules-based  cooperative regional ocean governance system

In the marine geological/geomorphological circumstances of the South China Sea, the threat scenario and challenges to the marine environment and resources are due to human activities. The marine environment and resources have always been the concern in the South China Sea as an enclosed/semi-enclosed sea under the UNCLOS at Part IX thereof. The traditional concerns in regard to human activities had to do with commercial shipping, unregulated/illegal fishing and pollution of the marine environment. A later and more recent concern is in regard to human activities as a general proposition impacting on climate change and its adverse effects on the coastal zone and food security, and disaster mitigation. Another category of human activities in addition to those aforementioned have in the meantime been added to the South China Sea regional threat scenario. These are related to the political/geo-political competition between regional States among themselves, assertion activities, and the active interventions of extra-regional States in the guise of safeguarding freedom of navigation and the rule of law. In other words, while there have not been overt threats to freedom of navigation in the South China Sea, there are new added threats posed by human activities in the wake of The Hague PCA arbitral ruling, relating to the massive man-made alterations to the geological/geomorphological characteristics of the South China Sea by claimant States undertaking renewed and intensified assertion activities.

The proposition here is that traditional protection mechanisms especially under UNCLOS Part IX must be actively pursued and implemented in the South China Sea. Human activities including shipping must observe ocean governance protective mechanisms. In the context of the South China Sea as an enclosed/semi-enclosed sea, freedom of navigation and other human activities cannot be regulated or constrained on the basis of limits to national jurisdictions, whether sovereignty or sovereign rights, but cooperatively managed under a jointly and regionally designed and constructed rules and regulations under the UNCLOS Part IX legal and scientific framework, and UNCLOS Parts XI, XII and XIII principles. In the extremely delicate marine environment of the South China Sea, a regional common heritage of mankind, freedom of navigation and maritime safety and security must respect and follow ocean governance and management, and not sacrificed for it. This would be the only constructive recourse at this time post-The Hague PCA arbitral ruling, while encouraging collective or unilateral restraints on destructive human activities, especially maritime jurisdictional assertion steps. In the current political/geo-political and geo-economic competition in the South China Sea, to borrow a famous saying, it would be better and more constructive to light a candle rather than curse the darkness. As President Rodrigo Roa Duterte expressed it during the 2016 ASEAN Summit in Laos: promote peace amid sea row. And an obvious recourse would be a rules-based cooperative regional ocean governance, that includes management of ship movements. The proposition, therefore, is in regard to the implementation of UNCLOS Part IX as the legal and scientific ocean governance framework for the South China Sea that subsumes the exercise of the right of freedom of navigation.
 
The more things change . . .; an assessment of the South China Sea disputes situation post- The Hague PCA arbitral ruling

As a saying goes, “the more things change, the more they remain the same”. This is quite clearly the current situation in the South China Sea post-The Hague PCA arbitral ruling. From the last decade of the last century to the present, the political/geo-political aspect of the conflict situation have undergone changes in surrounding circumstances, but essentially things have remained the same. For example, what began as quiet bilateral issues was regionalized when the Philippines brought its South China Sea concerns before the ASEAN organization. Conducted properly, this would have been a positive/constructive move as the ASEAN as a regional organization has interests in the peaceful resolution of the conflict situation, especially in its impacts on ASEAN integration and consolidation. Moreover, it has the structural mechanism under the Treaty of Amity and Cooperation in Southeast Asia (ASEAN-TAC).  But as the saying goes, the rest is contemporary history. In the almost two decades with the ASEAN as shepherded by the Philippines, the bilateral issues was ramped up to a regional dispute situation. In the meantime, extra-regional Powers weighed in, intervening heavily into the conflict situation with a geopolitical agenda flagging freedom of navigation which is a contrived justification, and the  rule of law; riding on the regional peace and security concerns generated by the territorial disputes (see articles by Sam Bateman entitled “The risks of US freedom of navigation operations in the South China Sea” dated 01 June 2015 at http://www.eastasiaforum.org/2015/06/01/the-risks-of-us-freedom-of-navigation-operations-in-the-south-china-sea/ ; and “What is the US protesting in the South China Sea?” dated 21 October 2015 at http://www.eastasiaforum.org/2015 /10/20/ whatis-the-us-protesting-in-the-south-china-sea/ ).
The entry of extra-regional players into the regional conflict situation further “internationalized” and intensified the Spratlys archipelago disputes, and additionally “militarized” the overall conflict scenario with FON challenge operations. The result was heightened security concerns that further fueled assertion and defensive activities. In the process the geomorphological/geo-economic characteristics of the South China Sea have been altered and disturbed beyond recognition. These developments in regard to the conflict situation have brought about further destruction and enhanced the threat situation to the marine environment and resources. More importantly, the increased danger facing the marine environment and resources have suffered through a higher level of threat and degradation due to a continuing neglect and lack of cooperation among regional States to undertake collective cooperative action for ocean governance, which is essential and compelled under the UNCLOS for an enclosed/semi-enclosed seas regardless of whether or not conflict situations exist.
 
 Back to the future . . . in a new start towards a collective, comprehensive, and coherent regional cooperation  in ocean governance in the South China Sea, and beyond
 
The above proposition, however, would be easier said than done considering that so early in the compulsory arbitration case in The Hague PCA, public diplomacy have conditioned expectations to the highest level that the anticipated The Hague PCA ruling will bring definitive resolution to the sovereign rights aspects in the conflict situation and indeed, to the overall conflict situation. This is very much so in the case of the Philippines. At this time and under the circumstances obtaining more than six (6) months after The Hague PCA ruling, it can be said that, beyond attempts at clarifying technical legal definitions applying expert testimonies on marine geological science in identifying the marine geological characteristics of the South China Sea, there have been no positive outcomes worthwhile noting in regard to practical and cooperative action to “enforce” or implement any part of the ruling. This is  especially so in regard to sovereignty/sovereign rights impacts of China’s nine-dashed line on the rights of other claimant States or extra-regional States claiming interests (see, for example news article entitled “Australia FM questions Duterte’s order vs. joint maritime patrols” dated 15 September 2016 at http://www.gmanetwork.com/news/story /581538 /news /nation /australia-fm-questions-duterte-s-order-vs-joint-maritime-patrols). The only thing to do at this point in time, short of allowing the regional conflict  situation to fester and worsen without any constructive new action or reaction, would be vigilance and to revisit earlier efforts at promoting geo-economics or non-traditional soft security ocean governance cooperation, as suggested at the outset. Otherwise, geo-political competition as an outcome of The Hague PCA arbitral ruling would continue to overtake necessary regional geo-economic cooperative pursuits to the greater detriment of regional peace and security, and the marine environment. To borrow words from Mark Valencia, the current mood is that of “fear racing hope”.
The Hague PCA arbitral ruling, contentious and controversial even among regional countries and claimant States, is unenforceable by its nature and can only possibly carry some moral influence. However, moral suasion is not a very forceful consideration in the conduct of international relations, wherein every player, including extra-regional Powers, have disparate vital national interests to promote or protect.  In inter-State relations, there is no cultural equivalent to a human “face” that can suffer “shame” and motivate or elicit reaction. States would only seek agreement with other States if there is a mutuality of interests. In the current conflict situation in the South China Sea, a commonality of interests among claimant States is in ocean governance. The political/geo-political aspect of the five-way sovereignty/sovereign rights dispute situation must be managed while at the same time allowing that geo-economic/ocean governance regional concerns are being collectively and cooperatively attended to. As earlier suggested, this was the early direction prior to 2010-2016, a subtle and matter-of-fact “bifurcation”. To borrow from the Premier Deng Xiaoping proposition which is also reflected in the Philippines’ own Triple Action Plan (TAP) and restated by President Duterte of the Philippines, and in the “bifurcated” The Hague PCA arbitral ruling, the sovereignty issues may have to be held in abeyance but some ways must be explored to advance the geo-economic/ocean governance aspect. This earlier benign approach is still, very clearly, the way for the future.
 
CONCLUSION . . .  a reiterated, restated (and reprinted) proposition

In the context of the South China Sea disputes situation, the immediate concern of regional/littoral States is not in regard to freedom of navigation, which is no longer about the freedom of maritime communication but a politicized geopolitical issue.  The imminent concerns is about threats to the marine environment and resources in the South China Sea front yard of the ASEAN, and its Pacific Ocean and Indian Ocean outer ring regional backyard. Nevertheless, inasmuch as freedom of navigation have been actively injected into the conflict situation with demonstrations of military muscle beyond mere rhetoric, it might be useful at this time to jettison this contrived political issue. Doing this would necessarily lighten regional political tensions and create a more conducive atmosphere for undertaking constructive “collateral” activities such as ocean governance and maritime security. And initiating constructive engagement with China which must be an indispensable player because of its Belt and Road Initiative (BRI). The immediate threat arising from human activities that are now enhanced with reclamation and building activities on marine geological features would expectedly dissipate.
 
The South China Sea disputes situation is a hodge-podge of sovereignty/sovereignty rights issues and cross-cutting claims, artificially compounded with political color through interjecting the issue of freedom of navigation. The maritime disputes have hamstrung instituting a regional cooperative ocean governance system. The non-traditional maritime security challenges in the South China Sea, by necessity of nature extrapolated to the seas of the Central Indo-Pacific, calls for a collective and cooperative solution, highlighted in terms of:
  • the collective regional breadth
  • sharing characteristic regional features and richness of marine biodiversity
  • the complexity of marine geology and geography
  • the presence and severity of threats arising from human activities, such as shipping
  • vulnerability to adverse effects of climate change and natural disasters
And into the future sooner rather later, concerning pollution from exploration and exploitation activities for seabed resources. 
 
Argued another way, this proposition toward immediate implementation of a rules-based regional governance cooperation has to do with the fact that non-traditional maritime security concerns and geo-economics is important and urgent, essentially non-controversial politically, and immediately implementable. The maritime security concerns in the South China Sea by its sheer magnitude and intensity and acquired political sensitivity, have developed along two separate bundles of issues, labeled as traditional and non-traditional maritime security, or geo-political and geo-economic concerns, both aspects claiming and subsuming freedom of navigation concerns. They can be separately addressed and appropriate in the context of maritime Asia and the Central Indo-Pacific which are interconnected enclosed/semi-enclosed seas, and interconnected archipelagic waters which are also interconnected enclosed/semi-enclosed seas, that sets it apart as a special case among regional seas, especially on two counts:
  • it is an extended marine geological configuration as an interconnected enclosed/semi-enclosed seas with extremely complex and delicate marine biodiversity, and
  • it suffers from aggravated and enhanced threats from human activities, that necessitates special safety of navigation arrangements such as SLOCs and vessel traffic monitoring systems for the protection of the marine environment and regulate freedom of navigation and transit rights

The UNCLOS recognizes that many maritime security concerns are transboundary and global in nature, necessitating governance cooperation. The sense and essence of global and regional maritime governance cooperation can be put into sharpest relief by revisiting preambular paragraphs 3 and 4 of the UNCLOS, the Constitution of the Oceans. In its global aspect, Preambular Paragraph 3 calls attention that . . . “the problems of ocean space are closely interrelated and need to be considered as a whole.” This underlines the connectivity of the ocean. At Preambular 4, the UNCLOS invokes and recognizes . . . “the desirability of establishing through this Convention, with due regard for the sovereignty of all States, a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of its resources, and the study, protection and preservation of the marine environment”. In the South China Sea and the Central Indo-Pacific, that says it all.
 
The South China Sea is a most compelling ocean microcosm encapsulating the foregoing non-traditional maritime security concerns; and the necessity for institutionalized comprehensive and holistic governance cooperation. Perhaps it is opportune to give a benign approach to the South China Sea situation through cooperation and coordination in addressing non-traditional maritime security concerns, geo-economics, and the attention and immediate action it deserves. And it is compelling in another way on account of the necessity for this maritime region to put its maritime security act together as the world economic center of gravity shifts (or pivots) to the ASEAN and the larger Central Indo-Pacific region. At the moment, the only way forward is to lighten the political burden, difficult as jurisdictional issues are, and proceeding to focus on addressing non-traditional maritime security concerns around which safety of navigation and shipping routes and SLOCs must revolve, while managing freedom of navigation. In the latter concern, the geographical spread, to emphasize, would include the archipelagic seas of the Philippines, Indonesia and Papua-New Guinea.
 
A final word, in the maritime Asia and Indo-Pacific archipelagic continent centered around the South China Sea, ocean governance trumps jurisdictional issues. In this regard, the sea dominates the land. And the final message is that ASEAN 2015 through ASEAN Vision 2025 must start to initiate implementation of UNCLOS Part IX for the seas of maritime Asia.
 
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17 January 2017
 

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