Philippines and China – rather than geo-political competition, a partnership in regional geo-economic cooperation?
The Spratly archipelago disputes currently faces two developments that are intended to help manage the conflict situation while at the same time allow economic activities to carry on. These two activities, now focused between Philippines and China, have their beginnings well before the disputes reached The Permanent Court of Arbitration in The Hague in a compulsory unilateral arbitration case under the United Nations Convention on the Law of the Sea, or UNCLOS, which in January 2013 the Philippines brought against China. On 12 July 2016, The Hague PCA rendered its ruling in favor of the Philippines in what was highly anticipated to be the harbinger of peaceful resolution of the South China Sea disputes under a rule of law.
Fourteen (14) months thereafter, the ruling has had no constructive influence on the conflict situation; it has instead hardened positions and heightened tensions. What is shaping up by this time is a reactivation of the two-pronged but unrelated approaches towards helping manage or resolve the conflict situation. The first and early approach is the development of a Code of Conduct Among Parties in the South China Sea, or Code of Conduct. This was initiated under the ASEAN in the latter part of the nineteen-nineties. In 2002, however, a Declaration of Conduct was signed between ASEAN and China which, aside from a prescribed conduct among the Parties to the Spratly archipelago conflict, also provided for the continued development of the Code of Conduct. Last August, ASEAN-China Senior Officials agreed on a “framework” around which shall be constructed an “enforceable” Code of Conduct which however shall take effect only after there has been a “full implementation” of the Declaration of Conduct. The ASEAN-China track on the development of a Declaration/Code of Conduct has now taken almost two decades with no conclusion in sight despite the recent agreement on a “framework”, and lingering doubts on enforceability. In the meantime, the disputes situation continues to percolate and escalate, with extra-regional interventions.
Although considered an ASEAN-China concern, the principal antagonists are the five (5) claimant countries bordering the South China Sea which are China, Philippines, Vietnam, Malaysia and Brunei. In 2004, three countries among them, China, Philippines and Vietnam, entered into a joint cooperation/development arrangement for energy resources in the contested areas in the Spratly archipelago. This was the Joint Marine Seismic Undertaking (JMSU) with successful and completed results on the exploration aspect (i.e. seismic survey) and was on the verge of graduating towards the joint exploitation stage when it was suddenly suspended unilaterally by the Philippines. The reason for the suspension was the increasing local agitation against the joint project as being unconstitutional and, at the same time, a corruption scandal surfaced in the local media related to commercial dealings with oil companies involved in the exploitation aspect.
In the meantime, the government administration of President Benigno S. Aquino III came into power which altogether scrapped the JMSU while pursuing the unilateral compulsory arbitration case against China before The Hague PCA. The suspension of the JMSU by the Arroyo administration and its scrapping by the Benigno S. Aquino III administration have further hardened the local situation in the Philippines when The Hague PCA handed down its ruling on 12 July 2016 in which the Philippines won with an “overwhelming” and “clean sweep” victory. The ruling carries the implication that the Philippines has no need to resort to joint cooperation/development with China to exploit energy resources in the maritime areas whose jurisdiction the ruling has vested in the Philippines.
China and Philippines are now in discussions over joint exploration/development activities in the Reed Bank for energy resources. In this bilateral initiative, the main concern is on the Philippines side because domestic opposition groups claim that joint exploration or development in the Reed Bank would necessarily disadvantage the Philippines on two counts. Firstly, such arrangements would contravene the Constitution of the Philippines in regard to the exploitation of the country’s natural resources (including energy resources), as such activity is reserved exclusively for Filipino citizens. The argument posits that the Reed Bank is not a contested area as confirmed by The Hague PCA ruling, and hence it is not joint exploration/joint development that is under consideration but simply a partnership arrangement with foreign companies including Chinese companies. Secondly, a big issue for the Philippines presumes and anticipates that China, in a joint exploration development would never accept less than 50-50 share in the resulting commercial arrangement; whereas a Philippines-registered corporation as majority stakeholder in a partnership arrangement would require more than 50% shareholding.
The disputes situation in the Spratlys archipelago therefore remains at a virtual stalemate, both on the ASEAN-China Code of Conduct, and on the aspect of joint cooperation/development even on the bilateral context between China and the Philippines. What might be urgently needed is to go around the deadlock and introduce an alternative narrative and approach that is in regard to regional ocean governance cooperation around which Joint Cooperation/Development of shared resources would be pursued. In other words, the ocean governance narrative which is about the conservation and sustainable management of the marine environment, resources and biodiversity, and even transboundary marine pollution, would encompass the exploration and exploitation of marine and seabed resources such as fisheries and energy. This would be a rules-based proposition under the UNCLOS in regard to collective ocean governance cooperation among States bordering enclosed/semi-enclosed seas that transcends maritime jurisdictions and disputes situations.
This alternative ocean governance narrative is a strategy, initially between Philippines and China, to defuse the political tensions caused by the Spratly archipelago disputes. At the same time it will expectedly help shift the political tensions into a more benign atmosphere of collective regional geo-economic cooperation expanded to the Central Indo-Pacific, as dictated by characteristic regional features in this virtual archipelagic continent pursuant to the UNCLOS. This strategic shift could usher in a more permanent resolution of the disputes situation not only in the Spratly archipelago but addressing maritime related disputes endemic elsewhere in the Central Indo-Pacific region albeit in lesser degrees as mostly geo-economic concerns. There is nothing new in this alternative approach as it is already provided for in the UNCLOS at Part IX thereof, in its legal and scientific framework.
Geo-politics or geo-economics? The ASEAN is an economic grouping in maritime Asia and thus maritime geo-economics is a regional core interest. It can take a truly appropriate leadership role in this direction that would conduce towards a peaceful management and resolution of the Spratly archipelago disputes situation contributory in a significant way to a wider regional economic/political integration built upon AEC 2015. This initiative must be fully supported by China as an important component element to the One Belt One Road (OBOR) maritime infrastructure project, as well as the Regional Comprehensive Economic Partnership (RCEP) led by China, which in both aspects about geo-economics.
For the Philippines, on whether to pursue a geo-political or geo-economic approach to the Spratly archipelago disputes situation with China, Senator Ralph Recto, the Senate President Pro-Tempore, urged the Secretary of Foreign Affairs Alan Peter S. Cayetano in regard to the Reed Bank joint development with China, to find a “constitutionally-compliant win-win arrangement” to secure the country’s energy future. This is because the country’s Malampaya oil field that provides power to 45 per cent of Luzon’s electricity grid and within close proximity to the Recto Bank, is expected to run out of natural gas by 2024. This does not seem to be a very complicated formula, and with good faith and goodwill, a mutually favorable arrangement should be within easy grasp between Philippines and China.
And besides, the Philippines may really have no other workable/credible options other than the geo-economic route. Since birth, the Philippines has been a differently-abled State when it comes to national defense, completely deluded by a promised protective umbrella of an extra-regional super-Power treaty ally.
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“(T)he Central Indo-Pacific is one of the world’s principal marine biogeographic realms. It is made up of the eastern and western Pacific oceans, and the seas linking the two – the South China Sea, the seas and straits of Southeast Asia, the Coral Sea, the waters separating Australia from Indonesia and Papua New Guinea, and Australia’s northern continental shelf . . . it is the geographic and geopolitical heart …”.
-Joseph Christensen, Malcom Tull Editors (2014), Historical Perspectives of Fisheries Exploitation in the Indo-Pacific, MARE Publication Series 12, Springer).
Introduction – This is a proposition for a durable legal order to underpin a collective regional maritime security cooperation system for the seas of the Central Indo-Pacific. The seas of the Central Indo-Pacific are enclosed and semi-enclosed seas confronted with all possible threats from human activities and natural events which in no small way are aggravated by its geomorphological and geographical configuration in the setting of a virtual archipelagic continent where the sea dominates the land. This large maritime area is notable not only for the aforestated characteristic circumstances, but especially so for the almost total absence of appropriate ocean management and governance mechanisms. The proposition entails the prompt implementation of UNCLOS Part IX on enclosed and semi-enclosed seas as the legal and scientific framework for regional ocean governance, addressing non-traditional maritime security concerns in the Central Indo-Pacific.
Non-traditional maritime security concerns in the Central Indo-Pacific has direct implications on regional and world trade. The Central Indo-Pacific maritime region is shaping up to be the socio-economic and political fulcrum of the Asian Century that would benefit from greater connectivity in maritime infrastructure and port development, and the good order, safety and security of navigation being constructed/institutionalized under a maritime legal order and science-based ocean governance system under the UNCLOS.
Regional economic integrationist developments focused on the region such as the AEC2015, APEC, EU, ASEM, FTAAP, the TTP and RCEP, highlight the importance of the Central Indo-Pacific maritime region. These regional economic arrangements, obviously with varying trade and financial agenda but a congruence of economic goals in large part played out in the Central Indo-Pacific region, share a common concern in establishing a safe and secure maritime connectivity to support a wider economic/political integration.
Relatedly to the concern for unhampered maritime connectivity and safety/security of navigation as a a primordial concern in the Central Indo-Pacific, the aforementioned economic groupings have also long expressed concern over outstanding maritime jurisdictional disputes in the South China Sea, the Spratly archipelago in particular, that could hamstring development of maritime connectivity and adversely affect the overall regional economic/political integration process.
In light of the foregoing considerations, it is further proposed that ASEAN take a leadership and ownership role in this regional ocean governance undertaking inasmuch as the seas of ASEAN are the predominating sea area in the Central Indo-Pacific. It is the regional breadth of the Central Indo-Pacific where the impacts of any existing regional maritime legal order and ocean governance system, or the absence of any such, is most critical and directly affecting the aspirations of regional States especially the ASEAN countries, for a wider regional economic/political integration. It also has direct impacts on the three pillars of AEC 2015, especially in regard to food security and disaster mitigation in coastal areas.
Ocean governance concerns in the Central Indo-Pacific - The Central Indo-Pacific non-traditional maritime security concerns relates to an “anxious” regional maritime security situation which is also affected by the South China Sea disputes situation. More specifically, the seas of the Central Indo-Pacific, which are inadequately charted, is heavily traversed by international maritime traffic (a significant volume involves the transport of oil and noxious/toxic cargo), a burgeoning intra-regional trade, hundreds of unregulated fishing vessels from regional States, a developing cruise tourism and an unwarranted build-up of military naval activities that involves extra-regional Powers. The foregoing human activities altogether present clear danger and concomitant threats to the marine resources, environment, biodiversity, the coastal zone economy, and overall maritime security. Another pervasive threat situation includes natural events wherein cooperative regional ocean governance, including search and rescue and ocean modelling for example, would be a critical factor in disaster mitigation, relief and recovery.
In the Central Indo-Pacific region where the marine geology and geography presents natural safety and security of navigation hazards and challenges as non-traditional maritime security concerns, approximately one-half of the totality of the Central Indo-Pacific regional seas are archipelagic waters. Under UNCLOS Part IV on the regime of the archipelagic State, transit rights of foreign vessels through archipelagic waters as well as other rights and duties of archipelagic States stands to be reconciled “mutatis mutandis” (UNCLOS Article 54) with other transit passage regimes under the UNCLOS. Hence there is need to tidy-up and better define, reconcile, or harmonize the rights and duties of archipelagic States in regard to transit passage in archipelagic waters, with the equally important ocean governance regime under UNCLOS Part IX, especially in regard to freedom of navigation.
The seas of the Central Indo-Pacific, sharing “characteristic regional features” and with extraordinary marine biodiversity and bountiful marine resources would qualify this large marine ecoregion/ecosystem as a Particularly Sensitive Sea Area (PSSA) or a Regional Marine Park, necessitating associated protective measures against shipping activities such as Marine Environment High Risk Areas (MEHRAs) for ports and other complementary maritime infrastructure. In regard to maritime security management system and infrastructure to serve shipping/port activity, dangerously lacking or deficient are Traffic Separation Schemes (TSS), Vessel Monitoring Systems (VMS), Monitoring, Control and Surveillance (MCS) systems, designated sea lanes of communications (SLOCs), and an efficient maritime communications network, not to mention critical navigational aids.
A rules-based legal and scientific regional ocean governance framework - The broad legal and scientific framework for cooperation among States bordering enclosed/semi-enclosed seas is already established under the UNCLOS at Part IX thereof. UNCLOS Part IX is a compelled cooperative undertaking among States bordering such seas whether or not there are maritime disputes of whatever nature among concerned States. Most of the concerned Central Indo-Pacific participating States, all bordering interconnected enclosed/semi-enclosed seas, are Parties to the UNCLOS and thereby already bound to cooperate in a collective and cooperative ocean governance scheme. This means that the otherwise laborious process of organization is therefore rendered simplified for the principal participating States concerned, inasmuch as the cooperation framework and mechanism in its legal and scientific aspects are already prescribed under UNCLOS Part IX and merely awaiting implementation. Furthermore, the ocean governance system for the seas of the Central Indo-Pacific must be collectively and cooperatively managed through an “appropriate regional organization” (UNCLOS Article 123) adapting a centralized system as in the EU and the Arctic Council structural model.
In regard to joint ocean management of enclosed/semi-enclosed seas, which is an aspect of non-traditional maritime security concerns, UNCLOS Part IX lays down the principal collective obligation, a coordinating function among States bordering such seas; that such States should cooperate as follows:
Institution-building for regional maritime security cooperation in the Central Indo-Pacific – UNCLOS Article 123 presents two options in undertaking the collective and cooperative obligations contained therein, among States bordering enclosed/semi-enclosed seas, namely : (1) directly among States bordering enclosed and semi-enclosed seas, or (2) through an appropriate regional organization. In the context of the Central Indo-Pacific sea areas sharing characteristic regional features (UNCLOS Article 197) complicated by the South China Sea disputes situation, the aforestated second option, especially in considering complex administrative and policy coordination aspects of a collective and cooperative ocean governance and security, is the only effective way to guarantee a durable maritime security system. Coordination of both the conservation and exploitation of the living resources of the sea, and the implementation of the rights and duties of States in the special situation and context of the Central Indo-Pacific region is an infinitely complicated and sensitive balancing act with implications on regional/international peace and security.
Instituting and coordinating joint management of the marine environment and sharing of resources in the context of the regional seas of the Central Indo-Pacific as a network of interconnected enclosed/semi-enclosed seas, with interconnected archipelagic waters within, is not a one-off effort. It requires continuous and dynamic cooperative ocean governance management in order to forestall geo-economic issues from compromising the cooperation arrangement in all its aspects including joint cooperation/joint development arrangements. The seas of the Central Indo-Pacific, which is a natural magnet of geo-political/geo-economic and socio-cultural influences, in its collectivity must be treated and managed in the concept of a regional “common heritage of mankind” under a central governing authority, in some ways with adaptations from the International Seabed Authority (ISBA) and the Arctic Council. Adapting the concept of a regional “common heritage of mankind” for the seas of the Central Indo-Pacific would also make for democratizing the sharing of its resources with “geographically disadvantaged States” (an UNCLOS conference notion) within the region such as Laos, Cambodia and Bangladesh with very limited access to the sea and its resources.
To complete the protective loop applicable to the marine environment, resources and biodiversity for the seas of the Central Indo-Pacific, there are two ongoing initiatives under the United Nations that address the seabed and the water column, namely :
Conclusion : a new maritime international order - regard to collective and cooperative regional ocean governance, awareness must already be inculcated among policy-makers and scientists in regard to anticipated expansion of the writ for the protection of the marine environment, resources and biodiversity under the aforementioned Biodiversity Beyond National Jurisdictions (BBNJ) Agreement. This is but the latest manifestation of expansion of ocean protective mechanisms going further out to sea, and impervious to maritime dispute situations or maritime national jurisdictional limits. As noted earlier, the Central Indo-Pacific community can avail of the efforts of this BBNJ exercise and consider melding or adopting appropriate implementing mechanisms from this ongoing UN exercise, thereby to establish in the Central Indo-Pacific maritime region the tone and beginnings of a new international maritime order. These new parameters for ocean conservation and governance is not about a revision or amendment of the UNCLOS. This is about maximizing and optimizing the application of scientific tools in a legal framework under the UNCLOS, incorporating the latest scientific methods and approaches appropriately suited to the characteristic regional features of the Central Indo-Pacific sea area. This would dramatize the “pivot” from managing human activities to facilitate commercial shipping, to regulating shipping and other human activities, including circumscribing military naval operations such as freedom of navigation, towards protecting the ocean environment to sustainably manage and conserve marine resources and biodiversity. This would be a progressive development of international law encouraged under the Charter of the United Nations, and through a universal, collective and cooperative ocean governance . . . sans frontieres. Ocean governance must increase, maritime sovereignty issues must decrease.
Finally, it is further suggested that the foregoing regional ocean governance proposition for the seas of the Central Indo-Pacific can be anchored initially on a Philippines-China-ASEAN maritime security treaty alliance; an Alliance for Ocean Conservation appropriate to the seas of the Central Indo-Pacific.
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01 October 2017