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Home Conferences & Seminars Second International Workshop, November 2010 Approach for the implementation of regional cooperative activities in the South China Sea: An analysis, by Vu Hai Dang

Approach for the implementation of regional cooperative activities in the South China Sea: An analysis, by Vu Hai Dang

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This paper would like to invite the workshop to reflect on an approach for future initiatives in cooperative activities in the South China Sea region to avoid negative consequences and enhance their effectiveness. This approach is proposed based on the general knowledge relating to marine regional cooperation with consideration of the particularities of the South China Sea’s situation

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Abstract

Although the South China Sea dispute seems to get more complicated recently and the perspective for a definitive resolution is still very far away; many initiatives for cooperation have been undertaken by surrounding countries. Most famous examples of such initiatives can include joint expeditions of marine scientific research by the Philippines and Vietnam, the joint undertaking of seismic survey by petroleum companies from China, Philippines and Vietnam, and the continuing South China Sea Workshops [1] . It is widely recognised that these activities have played an important role in decreasing the tension, enhancing cooperation and encouraging dialogue between participants.[2]For this reason, it is strongly believed that countries surrounding the South China Sea, especially claimants in the South China Sea disputes should develop and implement more cooperative activities. However, if those activities are not conducted in a suitable manner they can raise serious suspicions and lead to strong protestations both from inside the participating country and other concerning states. Examples of such reverse effects are the reaction of China to the Filipino-Vietnamese expeditions during its first phase (from 1996 to 2007) [3] or the severe protestations occurring inside the Philippines and critics from other countries with regard to above the tripartite surveys [4] . There may be many reasons that can explain the reverse effects caused by these two arrangements but the most important one should be that the activities were undertaken in sensitive areas. It is particularly true in the case of the tripartite agreement where the most important rationale for protestations from inside the Philippines was that the government had made “breathtaking concessions in agreeing to the area for study, including parts of its own continental shelf not even claimed by China and Vietnam”[5].

From this perspective, this paper would like to invite the workshop to reflect on an approach for future initiatives in cooperative activities in the South China Sea region to avoid such negative consequences and enhance their effectiveness. This approach is proposed based on the general knowledge relating to marine regional cooperation with consideration of the particularities of the South China Sea’s situation.

Parameters of marine regional cooperation

This part of the paper will provide a brief review of the concept of marine regional cooperation. It is of the opinion of the author that this concept provides very important guidelines about conditions of establishing a regional marine arrangement. Those guidelines are a helpful framework for the adoption of future regional cooperative initiatives in the South China Sea.

Marine regional cooperation or marine regionalism is generally understood as to include two concepts: marine region and marine regional arrangement. For the former concept, there are three types of marine regions: physical marine regions, management regions and institutional regions.[6]

Physical marine regions correspond to the geographic configuration of the coastal area that borders the mass of water. Provided the geographical diversity of the world oceans, it is difficult to have a unique system of grouping physical regions that can be suitable for all uses. Two units of classification of oceans and seas most commonly used are ocean basins and semi-enclosed seas. As such, the world oceans can be divided into nine ocean basins which are North and South Atlantic; Indian Ocean, Arctic, Antarctic; North, South, East and West Pacific.[7]Article 122 of the United Nations Convention on the Law of the Sea (UNCLOS) defined an enclosed or semi-enclosed sea as “a gulf, basin or sea surrounded by two or more States and connected to another seas or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more States”.[8]More recently, the National Administration on Ocean and Atmosphere of the United States has developed the concept of large marine ecosystem which is understood as large regions of the world oceans with distinct hydrographic, topographic and biological characteristics.[9]A total number of 64 large marine ecosystems have also been designated worldwide as a level for implementing management and conservation activities.[10]

Management or functional regions correspond to the determination of a management issue that can be considered as separate and needs to be dealt with under a particular regional action. Management regions exist because there is a problem or a group of problems that deserve an administrative arrangement for action. Management regions may not coincide with existing geographic regions nor with other management regions themselves. Finally, a region can be operational or institutional when it is the site where exists one or many official regional arrangements whether it is a treaty or just a political framework (both of them can be referred to commonly by the term “arrangement”). An operational region starts to exist as soon as a marine regional arrangement that applies to it enters into force.

The second concept of marine arrangement includes multilateral treaties, conventions, accords of joint research and others arrangements relating to ocean issues and their associated mechanisms.[11]The most important component of a marine arrangement is its scope of activities, its membership and its structure. A marine arrangement can be established for a wide variety of activities: fisheries, protection of marine environment, marine scientific research, exploitation of offshore petroleum resources, shipping or resolution of dispute. The number of participants to the arrangement can be free or restricted; some marine arrangements are limited to coastal states while many regional fisheries convention do allow fishing States to participate. Some authors argue that to be considered “regional”, the arrangement must include at least three states, otherwise it is considered a bilateral one.[12]Others state that this distinction is simply not necessary.[13]In the framework of this paper, both bilateral and multilateral arrangements will be considered as regional. Finally, a regional arrangement can have different levels of institutionalization. It can be a temporary, ad hoc arrangement which does not have any associated administrative mechanism or it can be a regional regime with the adoption of commonly agreed principles, norms, rules and decision-making procedures.[14]

Based on the marine regionalism concept, parameters for the establishment of a marine regional cooperative framework have been proposed by different authors.[15]Their wording may be different but basically they refer to the same thing. For instance, four important parameters that need to be considered for the undertaking of joint development or joint cooperation at the regional level were summarized by Professor, Ambassador Hasjim Djalal, the “father” of the South China Sea workshops as following:

- The geographic location where the cooperative activity will take place;

- The nature of the activity of cooperation in question;

- The institutional framework to undertake the activity; and

- The relevant participants to the implementation of the activity.[16]

Each one of these four parameters will be studied in details in the context of the South China Sea region.

Conditions for Undertaking Cooperative Activities in the South China Sea

Location of Cooperation

In principle, the whole South China Sea itself or any portion of it can be a location for regional cooperation. Pursuant to the International Hydrological Organization, the limits of the South China Sea are defined as extending North to South from the Strait of Taiwan to Singapore and East to West from the coast of Philippines to the coast of Mainland of Asia (Vietnam).[17]The body of water as a whole and two of its biggest Gulfs which are the Gulf of Tonkin and the Gulf of Thailand can be considered as semi-enclosed seas in accordance with article 122 of UNCLOS.[18]

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The biggest issue to be considered while choosing an area for cooperative regional activity is certainly the famous “South China Sea dispute”. People often refer to the “South China Sea dispute” as those disputes relating to the Spratly and Paracel Islands between China, Philippines, Malaysia, Brunei, Vietnam and the territory of Taiwan because of its complexity and seriousness. However, there are other places where overlapping claims exist in the region as well, such as the sea areas located at the opening of the Bay of Tonkin (claimed by China and Vietnam), the Scarbourough Reef (claimed by China and Philippines) or certain areas in the Gulf of Thailand (with claims from Malaysia, Thailand, Cambodia and Vietnam)[19]. It is also noteworthy to mention the Chinese U-shaped map that claims about 80 percent of the South China Sea as historic waters.[20]

At this point, one can easily argue that to avoid complications, cooperative activities would only need to be implemented outside the disputed areas. However, this approach poses two problems:

Firstly, it seems that the exact location of the “disputed areas” in the South China Sea is sometimes already an object of disagreement. For instance, the Chinese official position does not recognize the Paracels as a disputed area with Vietnam.[21]Pursuant to the Chinese claim, the areas of Blue Dragon Bank and Vanguard /WAB-21 off the coast of Vietnam and a portion the Natuna Sea northern of Indonesia are considered as disputed areas. However, this position has been refused by Vietnam and Indonesia which have considered those areas indisputable part of their exclusive economic zones.[22]

Secondly, not all the disputed areas in the South China Sea are hotspots. For instance, the territorial dispute in the Gulf of Thailand is also a very complex one but apparently does not cause as much hostilities between claimants as in the cases of the Spratlys and Paracels. For this reason, engaging cooperative initiatives in the Gulf of Thailand can be much more feasible than in the two former ones.

From this analysis, it may be more suitable to distinguish between two kinds of areas for the sake of determining the geographical location to undertake cooperative initiatives in the South China Sea. They are “difficult areas” where regional cooperative activities would be very difficult and “manageable areas” where regional cooperation is easier. These latter ones would include the coastal and near-shore area of the South China Sea and sub-regions of Gulfs of Tonkin and Thailand. If the coastal and near-shore area is chosen, agreements between participants may be needed to determine what the limits of this area are. The criteria for reference may depend on the concrete cooperative activity to be undertaken. For instance, if South China Sea countries choose to cooperate in the elimination of marine pollution from sewage, the area concerned would be more coastal land regions. Meanwhile, if they want to cooperate in the management of coastal fisheries, the territorial sea can be a good area for cooperation.

This approach is quite different from the other proposals such as the joint development options relating to the Spratlys and the Paracels suggested by Mark Valencia[23]or the Indonesian “Doughnut Formula” which put more emphasis in the cooperation in disputed area.[24]It is not the purpose of this paper to give any evaluation of these suggestions so the only comment it would provide is that they can be hardly implemented due to the unclarity of the claims and again, the disagreement relating to where the “disputed areas” really lie.

Nature of cooperative activities

In general, any activity undertaken relating to the sea should be conducted in a way that respects the legitimate rights and interests of relevant States (except when implemented in the High Sea or Area) pursuant to international law, in particular the UNCLOS. As for areas still under dispute, the UNCLOS states that “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”.[25]

Article 123 of the UNCLOS lists the concrete activities that States bordering an enclosed or a semi-enclosed sea shall coordinate regionally to implement as following: management, conservation, exploration and exploitation of the living resources; protection and preservation of the marine environment and marine scientific research.[26]The Declaration of Conduct of Parties in the South China Sea (DOC) also provides an enumeration of concrete cooperative activities that relevant countries may explore or undertake. They include marine environmental protection, marine scientific research, safety of navigation and communication at sea, search and rescue operation and combating transnational crime, including but not limited to trafficking in illicit drugs, piracy and armed robbery at sea, and illegal traffic in arms.[27]

Despite all the existing disputes, a variety of cooperative arrangements has been implemented by South China Sea coastal states in fields such as oil and gas exploration and exploitation, fisheries, marine scientific research, maritime security and protection of the marine environment. These arrangements can take different forms, ranging from simple joint activities to the conclusion of treaties between relevant countries. Examples of these arrangements can include:

- The Memorandum of Understanding between Malaysia and Thailand on the Establishment of a Joint Authority for the Exploitation of the Resources of the Sea-bed in a Defined Area of the Continental Shelf of the Two Countries in the Gulf of Thailand, 1979 and the Agreement between Malaysia and Thailand on the Constitution and other Matters Relating to the Establishment of the Malaysia Thailand Joint Authority, 1990;[28]

- Memorandum of Understanding between Malaysia and the Republic Socialist of Vietnam for the Exploration and Exploitation of Petroleum in the Defined Area of the Continental Shelf Involving the Two Countries, 1992;[29]

- Agreement between the People Republic of China and the Socialist Republic of Vietnam on Cooperation in Fisheries in the Gulf of Tonkin, 2000;[30]

- A Tripartite Agreement for Joint Marine Scientific Research in Certain Areas in the South China Sea between China National Offshore Oil Company, Philippine National Oil Company and Vietnam National Oil Company (JMSU), 2005;[31]

- Joint Oceanographic and Marine Scientific Research Expeditions in the South China Sea between Philippines and Vietnam (JOMSRE) from 1996 to 2007;[32]

- The GEF/UNEP Project “Reversing the Environmental Degradation Trend in the South China Sea and Gulf of Thailand“ (South China Sea Project);[33]

- Different projects implemented under the Indonesian Workshops on Managing Potential Conflicts in the South China Sea (the South China Sea Workshops) including the Anambas Expedition (done in 2002),[34]Marine Database Information Exchange and Networking, Study of Tides and Sea Level Rising and the Coastal Environment in the South China Sea Affected by Potential Climate Change;[35]

- The Cooperative Mechanism for the Straits of Malacca and Singapore established by Indonesia, Malaysia and Singapore in 2007;[36]and

- Different joint patrols between coastal countries such as those realised by Vietnam and China in the Gulf of Tonkin[37]or by Indonesia, Malaysia and Singapore in the Malacca and Singapore Straits[38].

Among those above-mentioned initiatives, those relating to the activities of exploiting the marine resources seem to draw more attention of South China Sea states so far. While this is understandable as South China Sea’s countries are having a very high demand for natural resources, it is of the opinion of the author of this paper that more efforts should be spent to preserve and protect the South China Sea’s environment. An enhanced cooperation for the preservation and protection of the marine environment in the region should be encouraged for all practical, political and legal reasons:

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Firstly, the marine habitats and species of the South China Sea are seriously degraded and need urgent action. Pursuant to statistics, 70 percent of the region’s mangroves have been lost; 80 percent of the region’s coral reefs degraded or under serious threats and up to 50 percent of the seabed grasses damaged in many areas.[39]Besides, wetlands of the South China Sea have also suffered widespread loss due to land conversion and ecosystem degradation.[40]Relating to marine living species, fisheries in the region have been heavily unsustainable due to overfishing, excessive by-catch and discard, and destructive fishing methods (such as using dynamite or poison)[41]. Finally, the South China Sea coastal region is under some serious threats due to climate change. Pursuant to predictions, by 2050, various regions in China would see the sea level increased from 40 to 90 cm and from 15,000 to 20,000 km2 of the Mekong Delta River is expected to be flooded.[42]

Secondly, unlike these activities of exploiting marine resources (whether they are oil and gas or living resources), protection of the marine environment has an unexploitative nature. It does not require any type of sharing of benefits between participants. For this reason, countries can participate in relevant initiatives more easily without worrying about the risk of having their potential resources exploited by others unfairly.

Finally, regional cooperation for the protection of the marine environment is both a conventional duty of coastal States and encouraged by international and regional instrument. The encouragement of cooperative activities of coastal states relating to the conservation of the marine environment is provided by the Article 123 of the UNCLOS and paragraph 6 of the DOC which were listed above. Besides, Article 197 of the UNCLOS imposes a general obligation to States to cooperate globally and regionally for the protection and preservation of the marine environment.[43]

The Institutional Framework for the Implementation of Cooperative Activities

There are different types of institutional arrangements for the implementation of marine regional cooperation. The most basic institutional level consists simply of a coordination of action and joint activities between participating states such as joint scientific research or exchange of information and no formal framework created. A higher integration involves the creation of a regional regime which includes the establishment of norms and allocation of cost and benefits. At this level, a commonly agreed regional text (which can have different forms: treaties, memoranda of understanding or plan of actions) can be adopted expressing the convergence of mutual expectations of parties. The highest level of cooperation is the creation of a regional organization to implement and monitor the agreed norms and regulations.[44]

Relating to the cooperative initiatives implemented in the South China Sea, examples of all the three above-mentioned institutional arrangements can be found. There are simple coordinated activities such as the joint patrols in the Tonkin Gulf, the Anambas expedition and JOMSRE and adoption of commonly agreed texts such as the JMSU and Malaysia-Vietnam MOU in 1992. Finally, in some cases, a cooperative body was also created to implement and supervise the adopted agreement between relevant parties such as the Malaysia-Thailand Joint Authority[45]and the China-Vietnam Joint Fishing Commission[46]. The practice in the South China Sea shows that a cooperative activity between two countries in the region is more likely to be established by a legally-binding treaty and implemented under a formal institutional framework. Meanwhile, the cooperation involving three countries or more is most of the time established by political or administrative instrument and implemented under looser institutional framework. The reason of the preference of South China Sea states for less formal approach in multilateral cooperation is the traditional “ASEAN way“. It refers to the style of building multilateral institutions of Asian countries which put emphasis on discretion, informality, pragmatism, consensus-building and non-confrontational bargaining.[47]The typical example of this practice is the South China Sea Workshops where informality has been one of the most important guiding principle.[48]

From this perspective, it is clear that any initiative for multilateral cooperation in the South China Sea should start within a framework relatively less binding. Countries can meet and discuss relevant issues in more or less informal meetings such as experts meeting, regional fora or workshops and express their common agreement via non-legally binding instruments such as memorandum of understanding, plan of action or declaration. For the procedure of decision-making, consensus should always be the norm.

While the advantage of informality is undeniable, it is of the opinion of this writer that for the long-term interest of the region, countries surrounding the South China Sea should aim towards more law-based practices. Having a legally-binding regional treaty with the formation of organized institution will help the regional mechanism to deal more effectively with complex issues (in particular environmental issues) and enhance the cooperation of countries in the region. Of course, such a structure has to be built gradually depending on the evolution of the regional political situation and the development of mutual trust between the parties.

Participants

This section of the paper will discuss the question of involving other countries or international organizations into the process of regional cooperation in the South China Sea. It is clear that regional cooperative arrangements in the South China Sea should be open to all relevant coastal states. However, as the second busiest searoute in the world,[49]the South China Sea seems to draw attention of other countries than those bordering the water body. Writers about the region agree that some major maritime powers in the world such as the United States, Russia, Japan, South Korea, India and Australia do have shipping and strategic interests in the South China Sea.[50]Recently, the American position relating to the South China Sea has been reaffirmed by its Secretary of State Hillary Clinton at the 17th ARF Meeting in Hanoi on the 23 of July of this year. During the press availability after the meeting, she said “The United States, like every nation, has a national interest in freedom of navigation, open access to Asia’s maritime commons, and respect for international law in the South China Sea. We share these interests not only with ASEAN members or ASEAN Regional Forum participants, but with other maritime nations and the broader international community.”[51]Besides, regional cooperation in the South China Sea also draw attention from international organizations such as FAO, UNDP, IMO, UNEP, IOC, the World Bank, GEF and Asian Development Bank.[52]Currently, UNEP and GEF are playing an important role in the development of a regional mechanism for the protection the South China Sea’s environment with the implementation of the South China Sea Project.

In international law, various texts call for the involvement of interested parties into marine regional cooperative arrangements. For instance, Article 123 line d of the UNCLOS stated that states bordering an enclosed or semi-enclosed sea shall invite other interested states and international organizations to participate to their regional activities.[53]Other fisheries-related instruments such as The United Nations Fish Stocks Agreement of 1995[54]and the FAO Code of Conduct for Responsible Fisheries of 1995[55]equally asked for cooperation between coastal states and states fishing in the high seas for the management and conservation of straddling fish stocks and highly migratory fish stocks. Besides, from a practical point of view, as most of the coastal states in the South China Sea are developing countries, a more open international cooperation can help provide financial support and technological experiences to the development of marine activities in the region.

However, there has been worry about the risk of “multilateralizing” and “internationalizing” the South China Sea issue.[56]This worry over multilateralism has produced a “spill-over” effect on the regional cooperation process in the South China by becoming an obstacle for the advancement of the South China Sea Project at different stages.[57]In this context, the position of this paper is to advocate for an open regionalism in the South China Sea but in the same time there must be some limits on it so that it can be acceptable to everyone. Concretely, two issues should be taken into consideration:

Firstly, the “South China Sea issue” is a too hazy word. There is not one issue in the South China Sea but rather a variety of issues: the South China Sea disputes most obviously but also many other ones such as the degradation of the marine environment, piracy and sea level rise. Some issues should be resolved bilaterally such as maritime dispute that concerns only two claimants. Some others must be dealt with under a plurilateral framework such as disputed areas where there are overlapping of claims of more than two countries. There are also issues for which the involvement of interested countries other than coastal states of the South China Sea is really necessary such as the management and conservation of straddling and highly migratory living marine resources. Finally, for some issue areas the participation of other interested states should be highly encouraged. They include the protection of the environment, shipping and marine scientific research.

Secondly, not all third-party participations have been unwelcomed in the South China Sea regional process. In the past, the support of Canada to initiatives of regional cooperation in the South China Sea in particular through the establishment of the Southeast Asian Programme in Ocean Law, Policy and Management[58]and the funding of the South China Sea workshops[59]had been highly appreciated by their participants. As for international organizations, the important contribution of UNEP to the success of the South China Sea Project so far cannot be denied and its participation to the further implementation of the Project was accepted by all participating countries.[60]However it is regrettable that beside UNEP, all other international organizations such as FAO and IOC were prevented to participate further in the implementation of the South China Sea Project.[61]From the opinion of the writer of this paper, their participation can only be beneficial to the success of the Project.

Conclusion 

To sum up, this paper is yet but another advocate for the increase in cooperative activities in the South China Sea. They can help ease the tension in this region and improve the mutual trust and understanding between different claimants of the South China Sea disputes. However, for those cooperative initiatives to achieve the highest effectiveness and avoid any reverse effects, a certain conditions should be taken into consideration. Cooperative activities should be implemented in “manageable areas”, preferably relating to the protection of the South China Sea’s environment and other interested countries and international organizations should be encouraged to participate at a certain extent. As for the institutional framework for the implementation of these activities, a loose mechanism can be established at first but it should evolve gradually to an organized and efficient regional organization.

Finally, among the four parameters, the most fundamental one is the geographic location of the cooperative activity. Due to the disagreement between the claimants in the South China Sea about the limits of the disputed area, there are locations where any kind of regional activity could be interpreted as indirectly recognizing the claims of other parties. Once, these “difficult areas” can be avoided, the other parameters of regional cooperation will be determined with more or less flexibility. The complexity will come when a country wants to push for cooperative activities in difficult areas and the situation will become really problematic when a country wants to push for cooperative activities of exploitative nature in these areas./.

* This paper expresses the personal opinion of the author.

Author’s biography

Mr. Vu Hai Dang  is currently a candidate of Doctorate of the Science of Law in Marine Environmental Law at Schulich Law School, University of Dalhousie, Canada. His latest degree was a Master in International Law, specializing in Exportation Law and Practice awarded in 2005 by University of Paris 5–René Descartes, France. His current research interest focuses on marine environmental law and ocean governance at the global and regional level. His publications include Regional Marine Environmental Protection and Regime Building Failure in the South China Sea: Explanation and Perspectives for Solutions (co-author, journal article, in press); From Hong Kong (coauthor, journal article in French, CCE International magazine, n° April-May 2005, Paris).

 


[1]In this paper, the denomination of “South China Sea Workshops“ will be used to refer to the the Workshops of Managing Potential Conflicts in the South China Sea, to be distinguished with the recent South China Sea Workshops organized by Vietnam.

[2]See for examples: Ian Towsend-Gault, “The Contribution of the South China Sea Workshops: The Importance of a Functional Approach” in Sam Bateman & Ralf Emmers (ed.), Security and International Politics in the South China Sea: Towards a Co-operative Management Regime (London: Taylor and Francis, 2009) 189; “Philippines celebrates its National day: Viet Nam News interviewed Filipino Ambassador Laura Q. Del Rosario on the occasion of the Philippines’ National Day” Vietnamnet (12 June 2008), online: Vietnamnet Bridges , accessed 15 August 2010.

[3]See for example: Karsten von Hoesslin, “A View of the South China Sea - From Within: Report on the Joint Oceanographic Marine Scientific Research Expedition (III) in the South China Sea” (2005) 7: 1 Culture Mandala.

[4]See for example: Jerome Aning, “Lawyers group slams Palace on NBN, Spratlys Issues” Philippine Daily Inquirer (08 March 2008), online: Philippine Daily Inquirer

, accessed 15 August 2010; Fr. Joaquin G. Bernas, “Solon slams US statement on JMSU “ Philippines Daily Inquirer (04 February 2008), online: Philippine Daily Inquirer

, accessed 15 August 2010.

[5]Barry Wain, “Manila’s Bungle in The South China Sea”, Far Eastern Economic Review (January/February 2008 ).

[6]For more details,see: Lewis Alexander, “Regionalism at Sea: Concept and Reality” in Douglas Johnston (ed.), Regionalization of the Law of the Sea: Proceedings (Honolulu: University of Hawai, 1977) 3; Lewis Alexander “Regional Arrangements in the Oceans” (1977) 71 American Journal of International Law; Joseph Morgan, “The Marine Region” (1994) 24 Ocean and Coastal Management 51.

[7]Lewis Alexander, La Coopération Régionale dans les Sciences de la Mer, Report prepared for the Inter-governmental Ocean Committee of the UNESCO (1978)13.

[8]United Nations Convention on the Law of the Sea, 10 December 1982,1833 U.N.T.S. 3, Art.122

[9]Kenneth Sherman & Lewis Alexander (eds), Variability and Management of Large Marine Ecosystems (Boulder: Westview, 1986).

[10]Large Marine Ecosystem in the World, online: NOAA <http://www.lme.noaa.gov/>, accessed 12 November 2009.

[11]Lewis Alexander, La Coopération Régionale dans les Sciences de la Mer, supra note 8at 20.

[12]Lewis Alexander, Marine regionalism in the Southeast Asian seas (Honolulu: East-West Environment and Policy Institute, 1982)3.

[13]Edward Miles, “On the Utility of Regional Arrangements in the New Ocean Regime” in Douglas M. Johnston (ed.), Regionalization of the Law of the Sea: Proceedings (Honolulu: University of Hawaii, 1977) 255at 259.

[14]For a definition of regime, seeStephen D. Krasner (ed.), International Regimes (Ithaca: Cornell University Press, 1983)1.

[15]See for example: Alexander, “Regionalism at Sea: Concept and Reality”, supra note 7; Douglas Johnston & Lawrence Enomoto, “Regional Approaches to the Protection and Conservation of the Marine Environment” in Douglas Johnston (ed.), The Environmental Law of the Sea (Berlin: Erich Schmidt Verlag, 1981) 285 at 288; Mark Valencia, “Regional Maritime Regime Building: Prospects in Northeast and Southeast Asia” (2000) 31 Ocean Development and International Law223at 232 .

[16]See Hasjim Djalal, “The South China Sea: Long Road towards Peace and Cooperation” in Sam Bateman & Ralf Emmers (eds.), Security and International Politics in the South China Sea: Towards a Co-operative Management Regime (London: Taylor and Francis, 2009) 175.

[17]International Hydrographic Organization, Limits of the Oceans and Seas, 3rd ed., Special Publication No.23 (Monte-Carlo: IHO, 1953)31.

[18]United Nations Convention on the Law of the Sea, supra 9Art. 122.

[19]For a detailed account of the dispute relating to the Paracels and Spratlys, see Mark J. Valencia, Jon M. VanDyke & Noel A. Ludwig, Sharing the resources of the South China Sea (The Hague: Kluwer Law International 1997)and for a summary of all maritime disputes that currently exist in South China Sea, see Victor Prescott & Clive Schofield, The Maritime Political Boundaries of the World, 2nd ed. (Leiden: Martinus Nijhoff Publisher, 2005)431.

[20]For details see CML/18/2009, New York, Note of the Permanent Mission of the People’s Republic of China to the Secretary General of the United Nation on the 7 May 2009.

[21]See People Republic of China’s Ministry of Foreign Affairs, Border problems with Vietnam, online: People Republic of China’s Ministry of Foreign Affairs

 <http://www.mfa.gov.cn/eng/wjb/zzjg/yzs/gjlb/2792/>, accessed 16 August 2010.

[22]For the Blue Dragon Bank and Vanguard/WAB-21 area, see Brice M. Clagett, “Competing Claims of Vietnam and China in the Vanguard Bank and Blue Dragon Areas of the South China Sea” (1995) 13 Oil and Gas Law and Taxation Review 1; for the Natuna Islands, see Johnson Douglas, “Drawn into the Fray: Indonesia's Natuna Islands Meet China's Long Gaze South “ (1997) 24: 3 Asian Affairs: An American Review153.

[23]Valencia, VanDyke & Ludwig, Sharing the resources of the South China Sea, supra note 20at 204.

[24]For a description of the “Doughnut Formula” see Ji Guoxing, Jurisdiction in the Three China Seas: Options for Equitable Settlement, IGCC-PP No. 19 (1995), online: University of California-Institute on Global Conflict and Cooperation , accessed 18 August 2010.

[25]United Nations Convention on the Law of the Sea, see supra note 9, Arts. 74 &83.

[26]Ibid.Art. 123.

[27]Declaration of Conduction of Parties on the South China Sea, 4 November 2002,online: ASEAN, accessed 16 November 2009, line 6.

[28]Drafts of these two documents can be found in the Appendixes of David Ong, “Thailand/Malaysia: Current Legal Developments” (1991) 6 International Journal of Estuarine and Coastal Law57

[29]National Boundary Committee - Ministry of Foreign Affairs of Vietnam, Giới thiệu một số vấn đề cần biết của Luật Biển ở Việt Nam [Introducing Important Law of the Sea Issues relating to Vietnam] (Hanoi: NXB Chính Trị Quốc Gia [National Politics publisher], 2004)111.

[30]Agreement between the People Republic of China and the Socialist Republic of Vietnam on Cooperation in Fisheries in the Gulf of Tonkin, 25 December 2000, online: National Boundary Committee - Ministry of Foreign Affairs of Vietnam <http://www.biengioilanhtho.gov.vn >, accessed 6 April 2010.

[31]A draft of the document can be found online at:Chương Trình Nghiên Cứu Biển Đông [the South China Sea Programme], A Tripartite Agreement for Joint Marine Scientific Research in Certain Areas in the South China Sea between China National Offshore Oil Company, Philippine National Oil Company and Vietnam National Oil Company<http://nghiencuubiendong.vn/trung-tam-du-lieu-bien-dong/cat_view/137-legal-documents?orderby=dmdate_published>, accessed 6 August 2010.

[32]Angel C. Alcala, “The Philippines-Vietnam Joint Research in the South China Sea, 1996-2007” Manila Bulletin (27 April 2008), online: The CBS Interactive Business Network , accessed 27 August 2010.

[33]UNEP, Strategic Action Programme for the South China Sea, UNEP/GEF/South China Sea Technical Publication No.16 (Bangkok: UNEP, 2008).

[34]Ex Anambas and the Biodiversity of the South China Sea: An Initiative of the Workshop on Managing Potential Conflicts in the South China Sea, online: National University of Singapore <http://rmbr.nus.edu.sg/exanambas/>, accessed 18 December 2009.

[35]Statement, The 19th Workshop on Managing Potential Conflicts in the South China Sea, Makassar, Indonesia, 13 - 14 November 2009.

[36]Sam Bateman, “Regime Building in the Malacca and Singapore Straits: Two Steps Forwards, One Step Back” (2009) 4: 2 The Economics of Peace and Security Journal45at 48.

[37]Hou Lei, “China, Vietnam hold joint patrol in Beibu Gulf“ China Daily (21 August 2009), online: China Daily , accessed 15 August 2010.

[38]Bateman “Regime Building in the Malacca and Singapore Straits: Two Steps Forwards, One Step Back”Bateman, “Regime Building in the Malacca and Singapore Straits: Two Steps Forwards, One Step Back” , see supra note 37at 48.

[39]For details see: Kenneth Sherman & Gotthilf Hempel (eds), The UNEP Large Marine Ecosystem Report: A perspective on changing conditions in LMEs of the world of Regional Seas(Nairobi: UNEP, 2009); UNEP, Strategic Action Programme for the South China SeaUNEP, Strategic Action Programme for the South China Sea , see supra note 34; C. Wilkinsonet al., South China Sea, GIWA Regional Assessment 54 (Kalmar: University of Kalmar, 2005).

[40]UNEP, Strategic Action Programme for the South China Sea,see supra note 34.

[41]For details see: Sherman & Hempel (eds), The UNEP Large Marine Ecosystem Report: A perspective on changing conditions in LMEs of the world of Regional Seas; Wilkinson et al., South China Sea, see supra note 40; Sulan Chen, Instrumental and Induced Cooperation: Environmental Politics in the South China Sea (PhD, University of Maryland, 2005)

 [unpublished].

[42]Herminia Franciscoet al., Climate Change: Impacts, Adaptation, and Policy in South East Asia with Focus on Economics, Socioeconomics and Institutional Aspects, EEPSEA Climate Change Conference, February 2008 (Singapore: International Development Research Centre, 2008)5.

[43]United Nations Convention on the Law of the Sea, seesupra note 9, Art. 197.

[44]See for example: Alexander, “Regionalism at Sea: Concept and Reality”, supra note 7; Valencia, “Regional Maritime Regime Building: Prospects in Northeast and Southeast Asia” , supra note 16.

[45]Established by the Malaysia – Thailand MOU of 1979, see Ong, “Thailand/Malaysia: Current Legal Developments”, supra note 29, Appendix I, Art.III.

[46]Established by the Agreement between the People Republic of China and the Socialist Republic of Vietnam on Cooperation in Fisheries in the Gulf of Tonkin of 2000, supra note 31, Art.13.

[47]Amitav Acharya, “Ideas, Identity, and Institutions-Building: From “ASEAN way“ to the Asia-”Pacific Way”“ (1997) 10 The Pacific Review319at 320.

[48]Sulan Chen, Instrumental and Induced Cooperation: Environmental Politics in the South China Sea, supra note 42at 218.

[49]Hong Thao Nguyen & Ramses Amer, “A New Legal Arrangement for the South China Sea ?” (2009) 40 Ocean Development and International Law333at 334.

[50]See for example: Walter C. III Ladwig, “Delhi’s Pacific Ambition: Naval Power, “Look East,” and India’s Emerging Influence in the Asia-Pacific” (2009) 5: 2 Asian Security87; Bateman “Regime Building in the Malacca and Singapore Straits: Two Steps Forwards, One Step Back”, see supra note 37at 38; David Rosenberg & Christopher Chung, “Maritime Security in the South China Sea: Coordinating Coastal and User State Priorities” (2008) 39 Ocean Development and International Law51; Hasjim Djalal, “Managing Potential Conflicts in the South China Sea“ Seoul, October 8-10 2008 ; Joshua P. Rowan, “The US - Japan Security Alliance, ASEAN and the South China Sea Dispute “ (2005) 45: 3 Asian Survey414; Lai To Lee, “China, the USA and the South China Sea Conflicts” (2003) 34: 1 Security Dialogue25.

[51]Remarks at Press Availability of the U.S Secretary of State Hilllary Clinton at the 17th ARF Meeting (23 July 2010), online: United States Department of State

 , accessed 3 September 2010.

[52]Lewis Alexander, Marine regionalism in the Southeast Asian seas, supra note 13at 40.

[53]United Nations Convention on the Law of the Sea, seesupra note9, Art. 123 line d.

[54]The United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4 August 1995, online: United Nations Division for Ocean Affairs and the Law of the Sea

http://www.un.org/Depts/los/convention_agreements/convention_overview_fish_stocks.htm,( accessed 10 February) 2010, Art.8 (it should be noted that among the South China Sea States, only Indonesia has ratified this Agreement).

[55]FAO, Code of Conduct for Responsible Fisheries, 28th FAO Conference 31 October 1995 (Rome: FAO, 1995), online: FAO, http://www.fao.com, (accessed 13 February 2010) Art. 7.1.3 at 8.

[56]Ministry of Foreign Affairs of the People Republic of China, Foreign Minister Yang Jiechi Refutes Fallacies On the South China Sea Issue (26 July 2010), online: Ministry of Foreign Affairs of the People Republic of China http://www.fmprc.gov.cn/eng/zxxx/t719460.htm,( accessed 3 September 2010).

[57]For detail see: Tom Næss, Environment and Security in the South China Sea Region: The Role of Experts, Non-governmental Actors and Governments in Regime Building Processes (Oslo: University of Oslo, 2000)at 62 and Sài Gòn Tiếp Thị [Saigon Marketing],“Hội nghị COBSEA 20: Đồng ý cho bên ngoài tham gia dự án Biển Đông [The 20th COBSEA: Outside Countries Can Participate in the South China Sea Project]” Sài Gòn Tiếp Thị [Saigon Marketing] (6 November 2009), online: Saigon Marketing <http://www.sgtt.com.vn>, accessed 12 October 2009.

[58]France F. Lai, “The SEAPOL Gulf of Thailand Project: A Summary with Appendices” in Douglas Johnston & Ankana Sirivivatnanon (eds.), Ocean Governance and Sustainable Development in the Pacific Region: Selected Papers, Commentaries and Comments Presented to the SEAPOL Inter-Regional Conference held in Bangkok on March 21st - 23rd 2001 (Bangkok: SEAPOL, 2001) 83.

[59]Djalal, “The South China Sea: Long Road towards Peace and Cooperation”, supra note 17at 178.

[60]For details see: COBSEA, Report of the 14th meeting of COBSEA, Bangkok, 23 - 25 November 1999, Doc No.UNEP (DEC)/EAS IG.10/3, 25 November 1999 ; COBSEA, Report of the 15th meeting of COBSEA, Special Session for the UNEP GEF Project on the South China Sea, Pattaya, 11 - 12 September 2000, The Meeting of National Experts for the UNEP GEF Project in the South China Sea, Pattaya, 7 - 9 September 2000, Document No. UNEP (DEC)/EAS IG.11/3, UNEP(DEC)/EAS/South China Sea-exp/3, 12 September 2000 .

[61]For details seeibid. COBSEA, Report of the 15th meeting of COBSEA.


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