Duty To Cooperate And Practical Cooperation In The South China Sea – Analysis


Last July 25, I felt privileged to join an international workshop to commemorate the 20th anniversary of the Declaration of Conduct (DOC) of Parties in the South China Sea. The event was organized by the Department of Boundary and Ocean Affairs of the Chinese Foreign Ministry, Wuhan University China Institute of Boundary and Ocean Studies, and the National Institute for South China Sea Studies. It gathered officials, scholars, and experts from ASEAN countries and China, including those who played key roles in negotiating the document. 

The South China Sea (SCS) dispute is one of the world’s longest-running multi-party flashpoints. Persistent incidents thus marked the DOC for criticism. Set against high– and sometimes unrealistic– expectations, it is easy to dismiss its contribution to pacifying the stormy sea. But no one can deny that no major conflict erupted in the hotspot, even in the most tense and heated moments in the past. While loose and non-binding, the specter of regional backlash from committing grave infringements of the Declaration kept assertive impulses at bay. However, the filing of an arbitration case in 2013 and the building of massive artificial islands between 2013 and 2016 unraveled the agreement. 

The DOC may have served its purpose, especially in its early years, but times have changed. Nationalism is on the rise. The capacity of littoral states is growing. Demand for access to more resources is increasing. Great power rivalry also intensified with the semi-enclosed sea emerging as one of its key arenas. Making the SCS a sea of peace, stability, and prosperity becomes more daunting. Fast forward two decades, many have lost faith in the DOC and are now pinning hopes on its successor, the Code of Conduct (COC). 

The first reading of the Single Draft Negotiating Text of the COC was an important milestone. But despite the desire to conclude it at the soonest possible time, many recognize the serious sticking points, notably the accepted modes for dispute settlement, the role of third parties, and the nature of the document. Even the segment that covers duty to cooperate and practical maritime cooperation also harbors both overlaps and variances. Nonetheless, that section can still serve as the glue to bind parties together. Taking into account the potentials and recent relevant developments, three areas hold promise: maritime connectivity and trade, marine scientific research, and conservation of fisheries resources. 

Maritime connectivity and trade 

The SCS links mainland China and Southeast Asia with insular Southeast Asia. It connects the Gulf of Thailand and Mekong Delta with the Sulu-Sulawesi Seas, and the Lancang-Mekong Cooperation with the Brunei-Indonesia-Malaysia-Philippines East ASEAN Growth Area (BIMP-EAGA). Ports and ships are to BIMP-EAGA what roads and railways are to Indochina. However, roll-on roll-off (“ro-ro”) ferry routes in the maritime sub-region suffer from low cargo volumes, among other challenges. Reaching out to peninsular Southeast Asia is one way to make it more viable. 

Manila-based shipping company Reefer Express Line Filipinas Inc. proposed adding Ho Chi Minh City to its journey to get a wider loop. The revised route would run from Davao in Mindanao to Bitung in north Sulawesi, after which the vessel calls in Ho Chi Minh City in southern Vietnam. From there, it turns to northern Borneo, stopping by Muara in Brunei and Lahad Datu in Sabah, before going back to Bitung and Davao. This longer service can even include more mainland Southeast Asian ports, like Kuantan in peninsular Malaysia, Sihanoukville in Cambodia, and Laem Chabang in Thailand. The route can even be extended further north to reach the Hainan Free Trade Port. Doing so can help deepen ASEAN-China maritime traffic and increase trade complementation. 

Aside from boosting intra-regional trade via the SCS, the expanded itinerary can also serve marine cruise tourism. The latter is expected to get a boost as borders reopen and travel constraints due to the Covid-19 pandemic are being eased. The Philippines, Indonesia, and Malaysia have been making efforts to enhance the security of the Sulu-Sulawesi Seas. Such a trilateral arrangement helped stabilize this maritime area, making inter-island trade more conducive. Investments in ports and economic zones along the route, especially in BIMP-EAGA as they are traditional backwaters in their respective countries, are vital. Providing support and assistance in building and enhancing customs, immigration, quarantine, and security (CIQS) in frontier ports along the course and harmonizing measures and standards are also valuable. 

Marine scientific research 

This endeavor can focus on the study of the impact of climate change on the marine environment and fisheries resources in the SCS. It is relevant and timely, especially for coastal communities and industries dependent on the sea. Such science diplomacy is an important confidence-building measure. It activates a key constituency –marine scientists and fisheries experts in the region – which can encourage and advise their respective governments on the merits and salience of pursuing non-prejudicial and mutually beneficial practical cooperation in the resource-rich sea. Such a constituency can take part in relevant Track 1.5 and 2 dialogues in aid of policy of participating countries. The capacity of ASEAN countries and China to undertake MSR has grown over the years, and everyone can benefit from pooling resources and learning from one another. Joint findings can be shared by way of conferences, publications, or exchanges. Reports and recommendations made by a panel of regional experts can be submitted to concerned state authorities for appropriate action. 

A welcome development concerning this was the revival of the Joint Oceanographic and Marine Scientific Research Expedition (JOMSRE) in the SCS between the Philippines and Vietnam last November 2021. Between 1996 to 2007, the first phase of JOMSRE conductedfour expeditions in the sea. This initial phase covered much of the southern SCS, so a proposal to study the northern part was made with China’s participation. Three preparatory meetings were held in Manila, Guangzhou, and Nha Trang, but a fourth one was not convened. Politics got in the way, frustrating efforts to expand cooperation to cover the rest of SCS. The renewed JOMSRE can take off from its earlier iteration and open up for other countries and even international organizations. 

Conservation of fisheries resources 

The SCS is an integrated marine ecosystem, and the life cycle and movement of living marine species in the semi-enclosed sea know no boundaries. Hence, efforts to conserve, preserve and manage the waters’ dwindling fisheries resources should also be transboundary if it is to be more effective. ASEAN and China can consider some salient steps. One, the 11 parties can undertake joint fish stock assessment in the SCS and propose restocking and stock enhancement measures. Two, they can negotiate for a joint or coordinated fishing ban to replace much-resented unilateral impositions. Three, they can identify marine sanctuaries in the SCS where fishing would be prohibited, if not seriously limited. Four, they can negotiate for fishing capacity reduction, making allowances for traditional or artisanal fishing, and matching commercial fishing volumes with the sea’s sustainable bearing capacity. In all these, the input of marine and fisheries experts will be critical. 

The DOC was signed in Cambodia and there initially was some hope that the COC would be ratified there as well.      But the pandemic complicated in-person diplomacy crucial in delicate talks. Hence, finishing the COC this year is more aspirational than anything. The hurdles, especially the involvement of non-regional parties, are significant. Enticing incentives on the section on duty to cooperate and promotion of pragmatic cooperation, including in the above cited three points, can appeal to the parties. Such rewards may motivate countries to stay when negotiations get rough.

Lucio Blanco Pitlo III

Lucio Blanco Pitlo III is a Research Fellow at the Asia-Pacific Pathways to Progress Foundation. He was a lecturer at the Chinese Studies Program at the Ateneo de Manila University and the International Studies Department at the De La Salle University and contributing editor (Reviews) for the journal Asian Politics & Policy. He is also a member of the Board of Directors of the Philippine Association for Chinese Studies. He obtained his Master of Laws from Peking University and is presently pursuing his MA International Affairs at American University in Washington D.C.

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