South China Sea

Legal Basis:

There is not a unified framework governing the South China Sea. But with renewed tensions in the region, in July 2010, the foreign ministers of the Member States of the Association of Southeast Asian Nations (“ASEAN”) issued a joint communiqué underscoring the need for a Regional Code of Conduct in the South China Sea. Foreign observers, including the United States, have supported the idea of a binding code of conduct for the South China Sea. Currently, the most relevant, legally-binding agreement governing the South China Sea is the 1982 United Nations Convention on the Law of the Sea (“UNCLOS”).

There are also several multilateral declarations that are relevant to the South China Sea. These declarations include the following:

  • Declaration on the Conduct of the Parties in the South China Sea: This Declaration, issued during the eighth ASEAN Summit in 2002, is the first to include all littoral countries of the South China Sea. The purpose of the declaration is to reaffirm the determination of the governments of the ASEAN Member States and China “to consolidate and develop the friendship and cooperation existing between their people and governments with the view to promoting a 21st century-oriented partnership of good neighbourliness and mutual trust.”
  • ASEAN Declaration on the South China Sea: This Declaration was signed in 1992, with the stated purpose of fostering cooperation in the South China Sea on issues of safety in maritime navigation, protection against pollution, coordination of search and rescue operations, combating piracy, and collaborating against illegal drug trafficking. It references the Treaty of Amity and Cooperation in Southeast Asia as the basis for establishing a code of international conduct over the South China Sea.
  • Treaty of Amity and Cooperation in Southeast Asia: This Treaty was signed in Indonesia in 1976. Its purpose is “to promote perpetual peace, everlasting amity and cooperation among [the people of the Contracting Parties] which would contribute to their strength, solidarity and closer relationship.” In addition, the Treaty is based on the following principles: (1) mutual respect for the independence, sovereignty, equality, territorial integrity and national identity of all nations; (2) the right of every state to lead its national existence free from external interference, subversion or coercion; (3) non-interference in the internal affairs of one another; (4) settlement of differences or disputes by peaceful means; (5) renunciation of the threat or use of force; and (6) effective cooperation among themselves.

The Contracting Parties further agreed to cooperate on matters of common interest (e.g., economic, social, technical, scientific and administrative issues).

In addition to the above-mentioned agreements, there are a number of resolutions and declarations involving the countries surrounding the South China Sea. But, there are myriad disputes over territorial and jurisdictional rights to the South China Sea and none of the agreements contains an enforcement mechanism.

  • Regional Guidelines for Responsible Fisheries in Southeast Asia (“Guidelines”): These Guidelines are an outgrowth of the Code of Conduct for Responsible Fisheries (“CCFR”), which was developed by the Food and Agricultural Organization of the United Nations (“FAO”). The Guidelines were finalized in April 2003 and are non-binding. The signatories include: Brunei, Cambodia, Indonesia, Philippines, Thailand, Malaysia, Myanmar, and Vietnam. In addition to the Guidelines, the FAO also facilitated the creation of the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas. This Agreement, referenced in the Guidelines is binding, but the nations bordering the South China Sea are not Member States.
  • Jakarta Declaration on Environment and Development: This Declaration was signed, inter alia, to reaffirm the ASEAN Ministers’ commitment to sustainable development. There is no enforcement mechanism. The signatories are Brunei, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand, and Vietnam.
  • Bandar Seri Begawan Resolution on Environment and Development: This Resolution was signed with the purpose of adopting the ASEAN Strategic Plan of Action on the Environment. There is no enforcement mechanism. The signatories are Brunei, Indonesia, Malaysia, Philippines, Singapore, Thailand, and Vietnam.
  • Singapore Resolution on Environment and Development: This Resolution was signed with the purpose of “intensify[ing] cooperation in environmental management and protection” for sustainable development purposes. There is no enforcement mechanism. The signatories are Brunei, Indonesia, Malaysia, Philippines, Singapore, Thailand, and Vietnam.
  • Kuala Lumpur Accord on Environment and Development: This Resolution was signed with the purpose of streamlining environmental management, including among other goals, the harmonization of environmental quality standards and the development of joint natural resource management programs.
Member States:

The UNCLOS Member States that border the South China Sea are: Brunei, Indonesia, Malaysia, Myanmar, Laos, China, Philippines, Thailand, Vietnam, and Singapore. Cambodia and Thailand have signed UNCLOS, but have not yet ratified the Treaty. The Parties to the Declaration on the Conduct of the Parties in the South China Sea are Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand, Vietnam, and China.

The Parties to the ASEAN Declaration on the South China Sea are Brunei, Indonesia, Malaysia, Philippines, Singapore, and Thailand.

The Contracting Parties of the Treaty of Amity and Cooperation in Southeast Asia, as amended, which border the South China Sea are: Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand, Vietnam, and China.
Geographical Scope:

None of the agreements reference specific coordinates or have provisions dedicated to geographical scope. But, the South China Sea is generally considered to comprise the portion of the Pacific Ocean that stretches from Singapore and the Strait of Malacca in the southwest to the Taiwan Strait in the northeast.
Legal Personality:

UNCLOS established the International Seabed Authority (“the Authority”). UNCLOS also provides that the Authority, which was created to organize and control activity in areas of the seabed, the ocean floor, and the subsoil thereof that are beyond the limits of national jurisdiction, has international legal personality and the legal capacity necessary to fulfill its functions and purposes. The other agreements do not contain provisions pertaining to legal personality.
Functions:

As there is no centralized framework over the South China Sea, the functions are described in relation to the different agreements that pertain to the region:
  • UNCLOS: The stated purpose of UNCLOS is to “settle, in a spirit of mutual understanding and cooperation, all issues relating to the law of the sea.” Part IX, entitled “Enclosed or Semi-Enclosed Seas,” provides in Article 123 that states bordering an enclosed or semi-enclosed sea should (1) coordinate the management, conservation, exploration, and exploitation of the living sea resources; (2) coordinate rights and duties regarding protection and preservation of the marine environment; (3) coordinate scientific research; and (4) involve other states and international organizations in this process.
  • Declaration on the Conduct of the Parties in the South China Sea: This Declaration notes the Parties desire to peacefully resolve all territorial and jurisdiction disputes between them. It also states that “[p]ending the peaceful settlement of territorial and jurisdictional disputes, the Parties concerned undertake to intensify efforts … to build trust and confidence” in the following ways: (1) holding dialogues and exchanging views between their defense and military officials; (2) ensuring the humane treatment of all persons in danger or distress; (3) voluntarily notifying other Parties of impending military actions; and (4) voluntarily exchanging relevant information. The Declaration further provides that pending the settlement of disputes, the Parties may endeavor to cooperate on the following activities: (1) marine environmental protection, (2) marine scientific research, (3) safety of navigation and communication at sea, (4) search and rescue operations, and (5) combating transnational crime.
  • ASEAN Declaration on the South China Sea: In light of the sensitive territorial and jurisdictional issues surrounding the South China Sea, the stated purpose of this Declaration includes “promoting conditions essential to greater economic cooperation and growth.” The Declaration also urges a positive environment for the resolution of all disputes over the water body. The Parties resolved: to explore the possibility of cooperation in the region in the areas of maritime navigation and communication, to protect against pollution of the marine environment, to coordinate search and rescue operations, to coordinate efforts against piracy and armed robbery, and to collaborate in the campaign against illegal drug trafficking.
  • The Treaty of Amity and Cooperation in Southeast Asia: The purpose of this Treaty is to promote perpetual peace, everlasting amity and cooperation among the Contracting Parties in order to contribute to the Contracting Parties’ strength, solidarity and ever closer relationships.
Organizational Structure:

UNCLOS is composed of four bodies: the Authority, the Commission on the Limits of the Continental Shelf, the Tribunal for the Law of the Sea (“ITLOS”), and the ITLOS Trust Fund. In addition, several sub-bodies—the Assembly, the Secretariat, the Council, and the Enterprise—fall under the Authority. Neither the ASEAN Declaration on the South China Sea nor the Declaration on the Conduct of the Parties in the South China Sea contains provisions pertaining to an organizational structure.
Relationships:

The Declaration on the Conduct of the Parties in the South China Sea references UNCLOS. The Declaration states that all Parties “reaffirm their commitment to the purposes and principles of... the 1982 UN Convention on the Law of Seas.” In addition, the Declaration references the Charter of the United Nations, the Treaty of Amity and Cooperation in South East Asia, and the Five Principles of Peaceful Coexistence and had the Parties reaffirm their commitments to those agreements. The ASEAN Declaration on the South China Sea references the Treaty of Amity and Cooperation in Southeast Asia as the basis for establishing a code of international conduct over the South China Sea.
Decision Making:

Under UNCLOS, the Authority, which is made up of all of the state Parties to UNCLOS, organizes and controls the areas of the seabed, the ocean floor, and the subsoil thereof. The Assembly consists of all the members of the Authority. In addition to handling procedural issues, the Assembly has the power to establish policy, consistent with the provisions of UNCLOS, on any matter within the competence of the Authority. Procedural issues are decided by a majority vote of members present and voting. Substantive issues are decided by a two-thirds vote of the members present and voting. The other agreements do not contain provisions relating to decision-making.
Dispute Resolution:

The Parties to the Declaration on the Conduct of the Parties in the South China Sea agreed that pending the peaceful settlement of territorial and jurisdictional disputes, they would resolve conflicts through “friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea.” The ASEAN Declaration on the South China Sea emphasizes the necessity to resolve disputes peacefully and encourages the Parties to use the Treaty of Amity and Cooperation in Southeast Asia as the basis for an international code of conduct over the South China Sea.

The Treaty of Amity and Cooperation in Southeast Asia also calls for the pacific settlement of disputes. The Contracting Parties are obligated to strive to resolve disputes peacefully through friendly negotiations. To facilitate these negotiations, the Contracting Parties created a High Council, comprised of a ministerial-level representative from each of the Contracting Parties, as a continuing body that will take notice of disputes or situations that are likely to disturb the region. In the event that certain Contracting Parties fail to reach a solution to a dispute through direct negotiations, the High Council shall recommend the appropriate means for settlement (such as mediation, inquiry, or conciliation). If the disputing Contracting Parties choose, the High Council can constitute a committee of mediation, inquiry, or conciliation. The settlement of disputes remains completely voluntary and the High Council cannot bind any party to its decision. Finally, the Treaty of Amity and Cooperation in Southeast Asia does not preclude recourse to the modes of peaceful settlement contained in the United Nations Charter.

An alternative method for dispute resolution involving the South China Sea is provided for under UNCLOS. Under Part XV of UNCLOS, Member States must resolve their disputes through peaceful means, with the Member States being free to choose their means of resolution. A Party to the dispute may also invite the other Parties in the dispute to submit the dispute to conciliation. The other Member State Party, however, is not required to accept the conciliation invitation. But, if no settlement has been reached, conciliation is required, upon demand by any Member State, when the dispute involves the proper conservation and management of the Exclusive Economic Zone (“EEZ”) resources or the determination or allocation of living resources in an EEZ.

If a settlement cannot be reached, a dispute concerning the interpretation or application of UNCLOS can be submitted, upon the request of any party to the dispute, to a court or tribunal with appropriate jurisdiction. Upon signing, ratifying, or acceding to UNCLOS, Member States may choose between the following means of dispute resolution: (1) ITLOS; (2) the International Court of Justice, (3) an arbitral tribunal constituted in accordance with Annex VII of UNCLOS; or (4) a special arbitral tribunal constituted in accordance with Annex VIII of UNCLOS. If Member States to a dispute have selected the same procedure for settlement, the dispute must be submitted to that procedure. However, where Member States have selected different procedures, or if a selection has not been made at all, the dispute must be submitted to an arbitral tribunal pursuant to Annex VII. A decision rendered by a competent court or tribunal is final and binding, though only between the Member States to the dispute.

Annex VIII arbitrations are of particular relevance to water use issues, as the only disputes that may be referred to “special arbitrations” involve: (1) fisheries, (2) protection and preservation of the marine environment, (3) marine scientific research, and (4) navigation, including pollution from vessels. The special arbitral tribunal is comprised of recognized experts in the relevant fields.
Data Information Sharing, Exchange, and Harmonization:

UNCLOS obligates Member States to cooperate directly and through competent international organizations to exchange information and data acquired about pollution of the marine environment. In addition, under the Declaration on the Conduct of the Parties in the South China Sea, the Parties agreed to share data on a voluntary basis. However, such data sharing is to begin “pending the peaceful settlement of territorial and jurisdictional disputes.”

The ASEAN Declaration on the South China Sea simply states that the Parties shall resolve to explore the possibilities of cooperation in the South China Sea. It does, however, urge the Parties to apply the principles contained in the Treaty of Amity and Cooperation in Southeast Asia as the basis for establishing a code of international conduct over the South China Sea.

The Treaty of Amity and Cooperation in Southeast Asia states that the Contracting Parties shall “strive to achieve the closest cooperation on the widest scale and shall seek to provide assistance to one another in the form of training and research facilities in the social, cultural, technical, scientific and administrative fields.” The Treaty further states that the Contracting Parties shall “maintain regular contacts and consultations with one another on international and regional matters with a view to coordinating their views actions and policies.”
Notifications:

Parties to the Declaration on the Conduct of the Parties in the South China Sea agreed that after jurisdictional and territorial conflicts are settled, they will notify each other, on a voluntary basis, of any impending joint or combined military exercise.
Funding and Financing:

Under UNCLOS, the Assembly has the power to assess contributions from Member States for the administrative budget of the Authority, based on an agreed assessment scale, until the Authority has sufficient income from other sources to meet its administrative expenses. The other agreements do not contain a specific provision pertaining to funding and financing.
Benefit Sharing:

UNCLOS has a general provision entitled “Benefit of mankind,” which states that the areas of the seabed and ocean floor and subsoil thereof should benefit mankind as a whole, regardless of the geographical location of a state. The other agreements do not contain any specific provisions pertaining to benefit sharing. They all emphasize the necessity of close cooperation and the peaceful sharing of resources, but also explicitly state that this shall be done on a voluntary basis.
Compliance and Monitoring:

No specific provision.
Participation and the Role of Multiple Stakeholders:

No specific provision.
Dissolution and Termination:

No specific provision.
Additional Remarks:

There are a number of Joint Statements regarding issues involving the South China Sea. Each is non-binding. The Joint Statements include:
  • Joint Statement, RP-PRC [Philippines-China] Consultation on the South China Sea and Other Areas of Cooperation, coordinated on 9-10 August 1995;
  • Joint Statement on the Fourth Annual Bilateral Consultation between the Socialist Republic of Vietnam and the Republic of the Philippines, signed on 7 November 1995;
  • Joint Statement of the Meeting of Heads of State/Government of the Member States of ASEAN and the President of the People's Republic of China, signed on 16 December 1997;
  • Joint Statement between China and the Philippines on the Framework of Bilateral Cooperation in the Twenty-First Century, signed on 15 November 2000; and
  • Joint Declaration of the Heads of State/Government of The People's Republic of China and The Member States of ASEAN on Strategic Partnership for Peace and Prosperity, signed on 8 October 2003.
Websites and References: