Regional Cooperation in Marine Environmental Protection in the South China Sea: A Reflection on New Directions for Marine Conservation

Abstract

Despite ongoing conflict management and confidence-building efforts in the South China Sea (SCS), there is still no clear path to the resolution of the complex multilateral sovereignty and the maritime boundary disputes. Intergovernmental Panel on Climate Change assessments for the region forecast significant climate and ecological change to the detriment of the region's coastal inhabitants, ecosystems, and economies. SCS states need to place marine conservation cooperation at the center of all development activity in order to enhance the prospects of adaptation to climate change. This article explores and argues for more effective SCS Large Marine Ecosystem cooperation through transboundary networks of marine protected areas.

Keywords:

• Large Marine Ecosystem
• marine protected areas
• Particularly Sensitive Sea Areas

Notes

1. See Hasjim Djalal, “South China Sea Island Disputes,” Raffles Bulletin of Zoology 8 (2000): 9–21. Djalal describes the various working groups established to facilitate dialogue and the various initiatives that were proposed since the Fourth Workshop in Surabaya, Indonesia, in 1993. See also Hasjim Djalal, “Managing Potential Conflicts in the South China Sea: Lessons Learned,” in Maritime Regime-Building: Lessons Learned and Their Relevance for Northeast Asia, ed. Mark J. Valencia (The Hague: Nijhoff, 2001), 87–92 (hereafter, Djalal, “Lessons Learned”). See further Douglas M. Johnston, “Southeast Asia Lessons Learned,” in Maritime Regime-Building: Lessons Learned and Their Relevance for Northeast Asia, ed. Mark J. Valencia (The Hague: Nijhoff, 2001), 73–86.

2. For example, the 2004 Tripartite Agreement for Joint Marine Seismic Undertaking in the Agreement Area in the South China Sea, “China, Philippines, Vietnam Begin Oil Research in S. China Sea,” Chinese Embassy to Pakistan, 26 August 2005, available at www.fmprc.gov.cn/ce/cepk/eng/xnyfgk/t209366.htm (accessed 25 September 2009).

3. Intergovernmental Panel on Climate Change (IPCC), First Assessment Report, 1990, available at www.ipcc.ch/publications_and_data/publications_and_data_reports.htm#1 (accessed 25 September 2009).

4. This is so because of the high human density and extensive infrastructures in many low-lying coastal areas. The main threats will be posed by large tidal variations, increased frequency of tropical cyclones, potential increase in regional precipitation, sea-level rise, and increase in sea surface temperature. These factors will likely lead to flooding, coastal erosion, movement of salinity boundaries, and loss of sensitive ecosystems and species, among other impacts. In the event of a sea-level rise of 1 meter, it is anticipated that millions of people will be displaced. The cost of responding could amount to many millions of dollars per year. IPCC, Fourth Assessment Report, 2007, available at www.ipcc.ch/ (accessed 25 September 2009). See also “The Global Mechanism: United Nations Convention to Combat Desertification—Climate Change Impacts: South East Asia,” available at www.ifad.org/events/apr09/impact/se_asia.pdf (accessed 25 September 2009).

5. IPCC, Fourth Assessment Report, supra note 4.

6. See Chapter 10 of the Fourth Assessment Report, supra note 4, and published as M. L. Parry, O. F. Canziani, J. P. Palutikof, P. J. van der Linden, and C. E. Hanson, eds., Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge: Cambridge University Press, 2007), 484, available at www.ipcc.ch/pdf/assessment-report/ar4/wg2/ar4-wg2-chapter10.pdf (accessed 25 September 2009):

• Projected sea-level rise could flood the residence of millions of people living in the low lying areas of South, South-East and East Asia such as in Vietnam, Bangladesh, India and China (Wassmann et al., 2004; Stern, 2007). Even under the most conservative scenario, sea level will be about 40 cm higher than today by the end of 21st century and this is projected to increase the annual number of people flooded in coastal populations from 13 million to 94 million … [a]bout 20% will occur in South-East Asia, specifically from Thailand to Vietnam including Indonesia and the Philippines (Wassmann et al., 2004).

  A recent authoritative report noted that: “[I]n 2005, the estimated population living within 100 km of the coast reached about 452 million people, equivalent to about 79% of the total population. Most of these people depend on coastal and marine resources for their livelihoods.” Asian Development Bank, The Economics of Climate Change in Southeast Asia: A Regional Review (Mandaluyong City, the Philippines: Asian Development Bank, 2009), 48. A 2% demographic growth rate is projected for the region. See C. Wilkinson et al., Global International Waters Assessment: South China Sea GIWA Regional Assessment (Kalmar, Sweden: University of Kalmar on behalf of UNEP, 2005), 9, available at www.unep.org/dewa/giwa/areas/reports/r54/giwa_regional_assessment_54.pdf (accessed 25 September 2009) (hereafter, GIWA Assessment).

7. Asian Development Bank, supra note 6, at 48–53.

8. Convention on Biological Diversity, 5 June 1992, 1760 U.N.T.S. 79.

9. Convention on Biological Diversity, Seventh Conference of the Parties (2004), Decision VII/28, “Protected Areas,” para. 18.

10. K. Sherman and G. Hempel, eds., The Large Marine Ecosystem Report: A Perspective on Changing Conditions in LMEs of the World's Regional Seas, UNEP Regional Seas Reports and Studies No. 182 (Nairobi, Kenya: UNEP, 2009), 297.

11. A marine protected area (MPA) is defined by IUCN (The World Conservation Union) as: “Any area of intertidal or subtidal terrain, together with its overlying water and associated flora, fauna, historical and cultural features, which has been reserved by law or other effective means to protect part or all of the enclosed environment.” See G. Kelleher, Guidelines for Marine Protected Areas (Gland, Switzerland: IUCN, 1999), xviii (hereafter, IUCN, MPA Guidelines). An MPA may include terrestrial areas, but is considered marine to the extent that the marine area exceeds the terrestrial portion.

12. “Plan of Implementation of the World Summit on Sustainable Development,” in Report of the World Summit on Sustainable Development, Johannesburg, South Africa, 26 August–4 September 2002, UN Doc. A/CONF.199/20 (2002), para. 32(c), creation of a representative network of MPAs by the year 2012.

13. United Nations Millennium Declaration, UN General Assembly Resolution, UN Doc. A/RES/55/2, 18 September 2000. See, in particular, Target 7.6, MDG Monitor, available at www.mdgmonitor.org/ (accessed 25 September 2009).

14. Vth World Parks Congress, Durban, South Africa, 8–17 September 2003, WPC Recommendation V. 22 (Building a Global System of Marine and Coastal Protected Area Networks), available at www.iucn.org/about/union/commissions/wcpa/wcpa_work/wcpa_wpc/ (accessed 25 September 2009).

15. “Coral Triangle Leaders Adopt Plan to Manage Coastal and Marine Resources,” Asian Development Bank Press Release, 15 May 2009, available at www.adb.org/Media/Articles/2009/12893-coral-triangle-management/ (accessed 25 September 2009).

16. Sherman and Hempel, supra note 10, at 273.

17. Ibid., at 298.

18. Ibid., at 297.

19. Ibid., at 304.

20. Ibid., at 304.

21. Ibid., at 304–305.

22. Parry et al., supra note 6, at 485.

23. Ibid., at 481.

24. Sherman and Hempel, supra note 10, at 301.

25. Ibid., at 302–303. See also GESAMP, A Sea of Troubles (Nairobi, Kenya: UNEP, 2001), 14, available at unesdoc.unesco.org/images/0012/001229/122986e.pdf (accessed 25 September 2009).

26. GESAMP, supra note 25, at 1. Overfishing appears to have a more far-reaching impact than coastal activities.

27. Sherman and Hempel, supra note 10, at 303–304.

28. Ibid., at 304.

29. Peter K. L. Ng and K. S. Tan, “The State of Marine Biodiversity in the South China Sea,” Raffles Bulletin of Zoology, Suppl. 8 (2000): 3–7, available at http://www.southchinasea.org/docs/Ng%20&%20Tan,%20SCS%20Marne%20Biodiversity.htm.

30. Ibid.

31. Ibid.

32. IUCN, World Commission on Protected Areas—Southeast Asia, available at www.wcpasea.org/?q=node/95 (accessed 25 September 2009).

33. See Ben Boer, Ross Ramsay, and Donald Rothwell, International Environmental Law in the Asia-Pacific (Leiden, the Netherlands: Kluwer Law, 1998), 196.

34. Convention on Wetlands of International Importance Especially as Waterfowl Habitat, 2 February 1971, 996 U.N.T.S. 245.

35. Convention Concerning the Protection of the World Cultural and Natural Heritage, 16 November 1972, 1037 U.N.T.S. 151.

36. Convention on International Trade in Endangered Species of Wild Fauna and Flora, 3 March 1973, 993 U.N.T.S. 243.

37. United Nations Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 396.

38. Ibid., in particular, Parts V, IX, and XII.

39. Declaration on the Conduct of Parties in the South China Sea, adopted at Phnom Penh, 4 November 2002, available at www.aseansec.org/13163.htm (accessed 25 September 2009). During a 2009 state visit of Malaysian prime minister Najib Tun Razak to China, Chinese premier Wen Jiabao was quoted as stating that the Declaration should be strictly followed. “China Calls for Dialogue, Cooperation over South China Sea,” People's Daily Online, 4 June 2009, available at english.peopledaily.com.cn/90001/90776/90883/6671212.htm (accessed 25 September 2009).

40. Declaration on the Conduct of Parties, supra note 39, para. 7.

41. Convention on Biological Diversity, supra note 8, arts. 8–9.

42. Ramsar Convention, supra note 34.

43. World Heritage Convention, supra note 35.

44. Ger Bergkamp and Bret Orlando, “Exploring Collaboration Between the Convention on Wetlands (Ramsar, Iran, 1971) and the UN Framework Convention on Climate Change” (IUCN, October 1999), available at 195.143.117.139/key_unfccc_bkgd.htm (accessed 25 September 2009).

45. For the Montreux List, visit the Ramsar Convention site, available at www.ramsar.org.

46. Hwey-Lian Hsieh, Chang-Po Chen, and Yaw-Yuan Lin, “Strategic Planning for a Wetlands Conservation Greenway Along the West Coast of Taiwan,” Ocean and Coastal Management Journal 47 (2004): 257–272.

47. World Heritage Convention, supra note 35, art. 4.

48. Ibid., art. 11. The World Heritage List is available at whc.unesco.org/en/list (accessed 25 September 2009).

49. Indonesia: Komodo National Park, Ujung Kulon National Park, Lorentz National Park; the Philippines: Tubbataha Reefs Natural Park, Puerto-Princesa Subterranean River National Park; Vietnam: Ha Long Bay. World Heritage List (as of 3 July 2009), supra note 48.

50. UNESCO, “The Statutory Framework of the World Network of Biosphere Reserves,” available at www.sovereignty.net/tline/statutory-framework.htm (accessed 25 September 2009). The objectives are set at a regional scale, and specifically in Article 3 as follows, for

• (i) conservation—contribute to the conservation of landscapes, ecosystems, species and genetic variation; (ii) development—foster economic and human development which is socio-culturally and ecologically sustainable; (iii) logistic support—support for demonstration projects, environmental education and training, research and monitoring related to local, regional, national and global issues of conservation and sustainable development.

51. UNESCO, Man and the Biosphere Programme (MAB), Asia-Pacific, available at portal.unesco.org/science/en/ev.php-URL_ID=5821&URL_DO=DO_TOPIC&URL_SECTION=201.html> (accessed 25 September 2009).

52. UNESCO, “Statutory Framework,” supra note 50, Introduction.

53. UNESCO, “Biosphere Reserves World Network” (Paris: UNESCO, May 2009), available at www.unesco.org/mab/doc/brs/BRList2009.pdf (accessed 25 September 2009). See also the Asia-Pacific region where additional sites appear under each country link (e.g., Cambodia and China), available at portal.unesco.org/science/en/ev.php-URL_ID=5821&URL_DO=DO_TOPIC&URL_SECTION=201.html (accessed 25 September 2009).

54. CITES, supra note 36.

55. Convention on the Conservation of Migratory Species of Wild Animals, 23 June 1979, 1651 U.N.T.S. 355.

56. CITES, Conf. 13.3, “Cooperation and Synergy with the Convention on the Conservation of Migratory Species of Wild Animals (CMS),” available at www.cites.org/eng/res/13/13-03.shtml (accessed 25 September 2009).

57. Migratory Species Convention, supra note 55.

58. Memorandum of Understanding on the Conservation and Management of Dugongs and Their Habitats Throughout Their Range, 31 October 2007, available at www.cms.int/species/dugong/index.htm.

59. Memorandum of Understanding Concerning Conservation Measures for Marine Turtles and Their Habitats of the Indian Ocean and South-East Asia, 1 September 2001, available at www.cms.int/species/iosea/IOSEAturtle_mou.htm.

60. 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 December 1995, 2167 U.N.T.S. 3.

61. Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, 24 November 1993, 2221 U.N.T.S. 120.

62. Code of Conduct for Responsible Fisheries (Rome: FAO, 1995), available at www.fao.org/docrep/005/v9878e/v9878e00.htm (accessed 25 September 2009).

63. Regional Plan of Action (RPOA) to Promote Responsible Fishing Practices (including Combating IUU Fishing) in the Region, Asia-Pacific Fishery Commission, 10 June 2008, available at www.apfic.org/modules/wiwimod/index.php?page=Regional%20Plan%20of%20Action%20for%20%20Responsible%20Fishing (accessed 25 September 2009).

64. See United Nations Environment Programme: Regional Seas Programme East Asian Seas, available at www.unep.ch/regionalseas/regions/eas/easint.htm. The Action Plan for the Protection and Development of the Marine Environment and Coastal Areas of the East Asian Seas Region was adopted in 1981, was revised in 1994, and is available at www.cobsea.org/documents/action_plan/ActionPlan1994.pdf.

65. Johnston, supra note 1, at 76.

66. “New Strategic Direction for COBSEA (2008–2012),” available at www.cobsea.org/aboutcobsea/newtrategicdirection.html (accessed 25 September 2009).

67. Strategic Action Programme for the South China Sea, UNEP/GEF/SCS Technical Publication No. 16 (Bangkok, Thailand: UNEP, 2008), available at www.unepscs.org/SCS_Documents/startdown/1965.html (accessed 25 September 2009) (hereafter, SAP).

68. Ibid, at 5.

69. Established as the Indo-Pacific Fisheries Council in 1948, it was renamed in 1976 as the Indo-Pacific Fisheries Commission, and renamed again with its current title in 1994. The Commission was established by an international agreement under the auspices of the Food and Agricultural Organization of the United Nations (FAO). See Agreement for the Establishment of the Asia-Pacific Fishery Commission, last amended by the Commission in 1996 and approved by the FAO Council in 1997, available at ftp.fao.org/FI/DOCUMENT/apfic/apfic_convention.pdf.

70. For an overview of the history and future directions, see Deb Menasveta, “APFIC: Its Evolution, Achievements and Future Direction,” RAP Publication: 1998/15, available at www.fao.org/DOCREP/003/X6942E/x6942e00.htm#Contents/ (accessed 25 September 2009).

71. Regional Plan of Action, supra note 63.

72. ASEAN Declaration on Heritage Parks, adopted at Yangon, Myanmar, 18 December 2003, available at www.aseansec.org/15524.htm (accessed 25 September 2009). This Declaration succeeds and replaces the ASEAN Declaration on Heritage Parks and Reserves, 29 November 1984.

73. Ibid.

74. “Regional Action Plan to Strengthen a Resilient Network of Effective Marine Protected Areas in Southeast Asia: 2002–2012,” IUCN/World Commission on Protected Area—Southeast Asia, available at www.wcpasea.org/?q=node/85 (accessed 25 September 2009).

75. Ibid.

76. For example, the SAP, while allowing for an invitation to a limited number of observers from regional and international organizations, is clearly grounded in the regional political reality that a management framework: “[R]estricts the membership of the policy/decision making body to government representatives only.” SAP, supra note 67, at 64.

77. World Database on Marine Protected Areas, available at www.wdpa.org/Default.aspx (accessed 25 September 2009). The database is the most authoritative list of terrestrial and marine protected areas. It was established by UNEP and the World Commission on Protected Areas of the World Conservation Union (WCU/IUCN). The database is maintained with the cooperation of governments and nongovernmental organizations.

78. IUCN, MPA Guidelines, supra note 11, at xviii, create the following categories of MPAs:

• I(a): “Strict Nature Reserve: protected area managed mainly for science;”

• I(b): “Wilderness Area: protected area managed mainly for wilderness protection;”

• II: “National Park: protected area managed mainly for ecosystem protection and recreation;”

• III: “Natural Monument: protected area managed mainly for conservation of specific natural features;”

• IV: “Habitat/Species Management Area: protected area managed mainly for conservation through management intervention;”

• V: “Protected Landscape/Seascape: protected area managed mainly for landscape/seascape conservation and recreation;”

• VI: “Managed Resource Protected Area: protected area managed mainly for the sustainable use of natural ecosystems.”

79. See Local Government Code of the Philippines, available at www.lga.gov.ph/downloads/downloadables/LGC%20Code%20Book%20III.pdf (accessed 25 September 2009). Coastal municipalities have 15 kilometers of jurisdiction over adjacent marine resources.

80. See Kevern L. Cochrane, “Marine Protected Areas as Management Measures: Tools or Toys?” in Law, Science and Ocean Management, eds. Myron H. Nordquist, Ronán Long, Tomas H. Heidar and John Norton Moore (Leiden, the Netherlands: Nijhoff, 2007), 701–737, especially at 705 et seq.

81. UNEP, ed., The Status of Coral Reef Management in Southeast Asia: A Gap Analysis, report prepared by Heidi Schuttenberg and David Bizot (Bangkok, Thailand: UNEP, 2002), in particular at 17, available at www.cobsea.org/documents/report_coral_reef/Status_Coral_Reef_Management_in_SEA.pdf (accessed 25 September 2009).

82. Marine Protected Areas in Southeast Asia (Los Baños, the Philippines: ASEAN Regional Centre for Biodiversity Conservation, Department of Environment and Natural Resources, 2002), available at www.southchinasea.org/docs/marine%20protected%20areas_in_South%20East%20Asia.pdf (accessed 25 September 2009)

83. “Regional Action Plan to Strengthen MPAs in Southeast Asia,” supra note 74.

84. GIWA Assessment, supra note 6, at 10.

85. IUCN World Commission on Protected Areas, Establishing Marine Protected Area Networks—Making It Happen (Washington, DC: IUCN-WCPA, National Oceanic and Atmospheric Administration and the Nature Conservancy, 2008), 11.

86. FAO, Report and Documentation of the Expert Workshop on Marine Protected Areas and Fisheries Management: Review of Issues and Considerations, Rome, 12–14 June 2006, FAO Fisheries Report No. 825 (Rome: Food and Agriculture Organization, 2006), 5.

87. For example, claims for cleanup and compensation (including fishing losses) to the 1992 International Oil Pollution Compensation Fund included: Mary Anne, the Philippines (US$2.5 million and PHP 1.8 million); Natuna Sea, Indonesia (US$2.8 million), Malaysia (RM 2.2 million), and Singapore (US$8.4 million); Solar I, the Philippines (PHP 957.5 million). IOPCF, available at www.iopcfund.org/npdf/AR08_E.pdf#page=202 (accessed 25 September 2009).

88. “Dongsha Atoll and Marine National Park, Research Data,” available at dongsha.cpami.gov.tw/en/emain4_1_1.aspx?study_id=10 (accessed 25 September 2009).

89. The protection consists of a Particularly Sensitive Sea Area (PSSA) designation and accompanying routing measures, which are published regularly in IMO, Ships’ Routeing, 9th ed. (London: IMO, 2008). See also Aldo Chircop, “The Designation of Particularly Sensitive Sea Areas: A New Layer in the Regime for Marine Environmental Protection from International Shipping,” in The Future of Ocean Regime-Building: Essays in Tribute to Douglas M. Johnston, Aldo Chircop, Ted L. McDorman, and Susan J. Rolston (Leiden, the Netherlands: Nijhoff, 2009), 573–608.

90. International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto, 17 February 1978, 1340 U.N.T.S. 61. A consolidated version of the amended text is available in MARPOL (Consolidated Edition, 2006) (London: IMO, 2007).

91. See Chircop, supra note 89.

92. Guidelines for the Designation of Special Areas Under MARPOL 73/78, IMO Doc. A 22/Res. 927, 15 January 2002, available at www.imo.org/includes/blastDataOnly.asp/data_id%3D10469/927.pdf.

93. Ibid., para. 2.4.

94. Ibid., para. 2.6.

95. Ibid., para. 2.1.

96. MARPOL 1973/78, supra note 90, Annex I, Reg. 10 (7)(a)(i) and Reg. 12.

97. Memorandum of Understanding on Port State Control in the Asia-Pacific Region, Tokyo, December 1993, available www.tokyo-mou.org (accessed 25 September 2009).

98. See IMO, Ship's Routeing, supra note 89.

99. Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas, IMO Doc. A.982(24), 1 December 2005 (hereafter, PSSA Guidelines), available at www.imo.org/includes/blastDataOnly.asp/data_id%3D14373/982.pdf.

100. See Chircop, supra note 89, at 602 et seq.

101. LOS Convention, supra note 37, art. 211(6).

102. See, generally, Chircop, supra note 89, at 594 et seq.

103. PSSA Guidelines, supra note 99.

104. Declaration on the Conduct of Parties, supra note 39.

105. Australia's Great Barrier Reef is a good example. Stretching over 344,400 square kilometers, the entire system is covered by a PSSA. “Protection of the Great Barrier Reef Region,” MEPC Resolution, IMO Doc. MEPC.45(30), 16 November 1990. See Great Barrier Marine Park Authority, available at www.gbrmpa.gov.au/ (accessed 25 September 2009).

106. MOU Concerning Conservation Measures for Marine Turtles, supra note 59.

107. SAP, supra note 67.

108. Ibid., at 62.