By: James Borton

James Borton is the editor of the recently-published Islands and Rocks in the South China Sea: Post-Hague Ruling., published in April by Xlibris. He supplied this portion of the preface to the book to Asia Sentinel.

Ocean governance remains a critical issue in the contested South China Sea attributed to the continued territorial disputes, fishing exploitation, coral reef destruction and ASEAN’s power shift alignment towards China.

The Hague’s unanimous ruling last July made clear that under the United Nations Convention on the Law of the Sea, China had no legal basis to claim historic rights over most the contested waterway. In the favorable sweeping ruling for the Philippines, the decision stated that China had breached several UNCLOS articles, governing safety, the marine environment and navigation at sea.

UNCLOS was adopted in 1982 and by June 2011, 162 nations have accepted it. The convention succeeded in defining such terms as “territorial sea,” “exclusive economic zone” (EEZ), and “continental shelf.” It also plainly set the rules on the utilization, exploitation, and conservation of maritime resources.  The law of the Sea Convention remains the most important international agreement on ocean policy, since it codifies accepted international law and spells out generally accepted rules of law of the sea such as the right of free passage, demarcation of the territorial sea, and freedom of the high seas.

The five-judge tribunal roundly condemned China’s behavior for its aggressive attempts to establish sovereignty by its dumping tons of dirt and crushed coral to transform small reefs and rocks into artificial islands complete with airstrips and other military structures. Beijing already has established at least seven such bases, all of them equipped with access channels, helipads, radar facilities, gun and missile emplacements, piers, and other objects of strategic importance.

For all claimant nations and for the world these actions are disturbing. However, the Philippines and other nations appear to be reluctant to challenge China and even address the significance of The Hague’s ruling. The Law of the Sea treaty sets rules for establishing zones of control over oceans based on distances to coastlines. In addition to China and the Philippines, Malaysia, Vietnam, Brunei, Indonesia and Taiwan all make territorial claims in the South China Sea. However, the tribunal’s mandate is to address only maritime disputes, not the underlying land claims to the islands, reefs and rocks.

With no authority to enforce its ruling, China defied the verdict and boycotted the legal process. China’s continued policy of “might makes right” is reflected in the increased number of coast guard ships and fishing trawlers. Their actions serve only to heighten rather than diffuse the tensions.

Of course, Vietnam and other Southeast Asian nations, who were not party to the arbitration, find their own sovereign EEZ rights bolstered by the ruling. This includes Indonesia and Malaysia, since both have experienced encroachment into portions of their EEZ by Chinese fishing vessels in areas China claims as their traditional fishing grounds.

Philippine President Rodrigo Duterte’s failure to pursue his nation’s maritime claims against China in the post ruling and coupled with his stunning U-turn in foreign policy befriending Beijing and berating Washington has led other ASEAN members to join ranks in not criticizing China’s continued aggressive actions on maritime matters.  Some analysts and SCS watchers speculate that Duterte is merely waiting patiently to assess how the new President-elect Donald Trump may handle the current South China Sea crucible.

It’s worrisome for all to wait. With each passing week, China steadily digs in a larger footprint until its dominance of the sea is an incontestable fact.

With the exception of Vietnam, the Association of Southeast Asian Nations have remained on the sidelines and have avoided any references to the tribunal’s ruling at any recently held multilateral summits. However, if there is any potential for a unified response front from ASEAN membership to China it may be from the systematic and continued damage to the marine environment associated with reclamation and the continued damage done to coral reefs.

According to Professor John McManus, a marine biologist at the University of Miami and who provided scientific analysis to the international tribunal, believes the South China Sea contains “highly productive fisheries and extensive coral reef ecosystems, which are among the most bio diverse in the world.”

The scientific consensus is clear: the marine environment in the Scarborough Shoal and Spratlys includes, fish, corals, mangroves, and sea grasses as well as giant clams and sea turtles. Scientists, policy experts and governments may be better served listening to the voices of the their own fishermen. There’s a growing food security issue looming with the current overfishing practices and the present fishery collapses.

Garett Hardin, author of The Tragedy of the Commons, best reflects the dilemma. “The oceans of the world continue to suffer from the survival of the philosophy of the commons. Maritime nations still respond automatically to the shibboleth of the ‘freedom of the seas.’ Professing to believe the “inexhaustible resources of the oceans,” they bring species after species of fish and whales closer to extinction.”

Vietnam’s Professor Nguyen Chu Hoi, a Vietnamese marine biologist, argues that environmental security issue is central to understanding how essential marine cooperation is for the future of the region. He claims, “ the SCS is also one of the most important large marine ecosystems in the region and the world. About 300 million people in 9 countries (China, Vietnam, the Philippines, Brunei, Indonesia, Singapore, Malaysia, Thailand and Cambodia), and one territory (Taiwan) surrounding the SCS depends on the marine natural resources, especially the fishery resources are daily livelihood sources for the coastal communities and islanders.”

According to the U.S.-China Economic and Security Review Commission, although dredging, land reclamation, and the building of artificial islands are not unique to China, the scale and speed of China’s activities in the South China Sea, the biodiversity of the area, and the significance of the Spratlys to the ecology of the region make China’s actions of particular concern. Even the international tribunal reaffirmed that the contested sea contains “highly productive fisheries and extensive coral reef ecosystems, which are among the most diverse in the world.”

As an environmental policy journalist, I do not believe that maritime law alone will save the sea. After all, the tribunal ruling ignored by China, lacks any legal authority to resolve underlying and potentially explosive conflicts about sovereignty claims over land features; nor can it address the geopolitical issues at stake. Simply put. Dangerous days lie ahead as more fisheries clash with Chinese authorities.

However, there’s increasing evidence to suggest that science can provide confidence- building steps through diffusion and exchange of information on marine resources. What is known is that continued economic and population growth, often coupled with depletion of natural resources, intensifies conflicts like this one in the South China Sea.  It’s now time to engage the regional scientific community of maritime experts to initiate and to formulate policy choices in a series of confidence-building marine workshops. 

Policy shapers need to take a page or two from the region’s fishermen since they understand the transnational and multilateral nature of South China Sea environmental issues.

An excellent case study is Vietnam’s successful marine protected area on Cu Lao Cham, an island located about 20 kilometers from Hoi An’s central coast. In this fishing community of 2,300, the islanders are harmoniously connected to the water. These fishers, some in their small wooden trawlers and many in the traditional round woven basket boats or “thung chai” cast their nets and lines for abalone, sea bass, grouper, lobster, squid and sea cucumber. Their home of more than 1,500 hectares of natural forest houses a critical ecosystem that includes healthy coral reefs, seaweed and sea grass beds. During typhoons their protected harbor is a sanctuary for other fishermen, including those from China.

For now, ASEAN is the logical institution in the region to provide a framework and to champion environmental security in Southeast Asia. China’s unilateral actions in their dangerous reclamations violate the terms of the ASEAN-China Declaration on the Conduct of Parties in the South China Sea (DOC-SCS). Unfortunately, China’s attack on the ecological heart of Southeast Asia has not resulted in any censure or condemnation from ASEAN.

Of course, ocean governance does lend itself to specific cooperative measures found on islands like Cu Lao Cham and in other areas. ASEAN may rise to the occasion to broadly embrace these model ocean governance cooperative measures like establishing information exchange/data mechanisms, enforcing fishing agreements, protection of endangered species, joint patrolling, and training of manpower on environment/conservation management.

Marine scientists and the fishermen know that healthy coral reefs provide food, storm protection, and cultural identity to coastal communities and islanders. The challenge for all is to find a regional solution to protect these rain forests of the sea before it is too late.

James Borton is an environmental policy writer and was the recipient of a National Endowment for the Humanities fellowship at Yale University.