• Asean sea region Sea of constraint or sea of environmental cooperation

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    Amado S. Tolentino Jr.

    IN 1974, the United Nations Environment Program (UNEP) spearheaded a Regional Seas Program. It is an effort to involve countries bordering the seas to meet the challenges of environmental degradation in the sea, coastal area and inland, and to link sustainable marine resource management with development. To that end, an action plan and legal framework are expected to be built up.

    For Southeast Asia, the regional seas identified for the purpose of the program was the “East Asian Seas,” referring to the Asean seas in the South China Sea. |

    UNEP’s role is not only as a funding agency but to coordinate activities, ensuring an integrated approach and taking care that the interdisciplinary character of environmental problems is not neglected. At the same time, environmental law (national legislation and bilateral, regional and global agreements) was thought of to provide a firm commitment from States to maintain the environmental quality of the shared seas. Efforts to achieve this may include the promotion of harmonization of national legislations, the encouragement of the adoption of regional agreements to foster cooperation as well as in the implementation of existing international agreements.

    Sadly, while numerous inter-governmental meetings resulted in the adoption by the Asean member countries at the time (Indonesia, Malaysia, the Philippines, Singapore, Thailand) of an Action Plan for the Protection and Development of the Marine Environment and Coastal Areas of the East Asian Seas Region, it became evident by 1990 that the adoption of a legal framework (draft Convention for the Protection and Development of the Marine and Coastal Areas of the East Asian Seas Region) would not materialize due to, among others, overlaps of competing claims of some Asian countries in the Spratly islands area of the South China Sea.

    After 25 years, the situation has worsened, brought about by China’s assertion of ownership of almost all of the resource-rich waters of the South China Sea despite rival claims from Asian countries. Time and again, China has reiterated its “indisputable sovereignty” claim over the Spratly islands and its adjacent waters. It is even of the view that freedom of navigation and overflight for military aircraft does not apply to the South China Sea because of its claimed ownership of the area.

    The US does not recognize China’s claim. Its military aircraft have repeatedly flown over, and its ships repeatedly sailed in, the South China Sea, passing through islets where China has built runways and set up military outposts. Clearly, the US is out to assert its right to navigation in the South China Sea through which thousands of commercial vessels pass carrying some $5 trillion worth of goods a year. The US aircraft carrier USS Carl Vinson, with its supporting ships and planes, has moved into the area. Sovereignty and freedom of navigation are about to clash in the South China Sea.

    Actually, the South China Sea serves as a constraint on naval and maritime cooperation in Southeast Asia. Differences over threat perceptions relative to China have been at the root of increasing Asean disunity on security issues. Enmity between Cambodia and the Philippines at the 2012 Asean Ministerial Meeting in Phnom Penh was emblematic of a deeper emerging divide between continental and maritime states comprising Asean.
    In this regard, Cambodia is generally oriented towards China, with Vietnam being the major exception. The situation limits Asean solidarity with respect to territorial claimants in the South China Sea.

    Clearly, the four Asean claimants to the disputed island territory in the South China Sea (Brunei Darussalam, Malaysia, the Philippines, Vietnam, which are all claimants with China and Taiwan) are also divided among themselves such that none has recognized the sovereignty claims of the others in the region. Add to that the aggravating territorial dispute over Sabah between Malaysia and the Philippines which spilled into a violent incursion in 2013.

    The situation described above further limits the opportunity for Asean claimants to agree on common positions vis-à-vis the South China Sea.

    Be that as it may, the South China Sea also has some unifying potential within Asean. For one, the UN Convention on the Law of the Sea stipulates that littoral states around semi-enclosed seas should cooperate on natural resource conservation and environmental protection. In this, the Gulf of Thailand littoral states have been successful in setting aside boundary disputes to pursue joint development. Cambodia and Thailand manifested sincere cooperation despite tensions over their disputed land territory near the Preah Vihar temple complex (ultimately decided by the International Court of Justice in favor of Cambodia). Likewise, Vietnam and Malaysia’s joint submission of their extended continental shelf claim to the relevant UN committee in 2009, demonstrate oneness between Asean claimants.

    Asean’s effectiveness as a vehicle for cooperation will eventually be tested by the progress in concluding a legally binding Code of Conduct with China over the South China Sea. The 2002 Asean Declaration on a Code of Conduct with China was non-binding and ultimately failed to reduce tensions over the disputed sea. At this point, it is not clear if the Code of Conduct’s terms will improve on those of the Declaration or if it will restrain the rival claimants’ activities in the region. Nor is it clear how the desired legally binding Code will be enforced.
    Be that as it may, for the Spratly island group, rich in marine and mineral resources but the object of overlapping ownership claims, there is the argument in favor of cooperation to preserve/conserve the ecological wealth of the area. In this connection, it is time that serious thought be given to the longstanding recommendation for an Asean Area of Cooperation in the Spratlys as well as the possibilities for the designation of an internationally protected area status, i.e. International Marine Peace Park, through multilateral options available. These could further the elaboration of confidence- and security-building measures in both the military and civilian sectors by the adoption of less offensive military postures in defense of the environment.

    Ambassador Amado Tolentino served as Coordinator, UNEPs Coordinating Body for the Seas of East Asia (COBSEA). He is currently the national focal point of the International Center for Comparative Environmental Law (Limoges, France) which enjoys special consultative status with the United Nations Economic and Social Council (UN ECOSOC).

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