Ambassador Nina Hachigian’s Remarks at the 4th Maritime Institute of Malaysia South China Sea Conference

Kuala Lumpur, Malaysia

The Connectivity of Common Rules in the South China Sea

Thank you to MIMA and its Director General First Admiral Dato Chin Yoon Chin for inviting me today, and to Vice Admiral Dato’ Kamarulzaman for moderating this panel.

The Importance of Norms, Rules and Standards

Today I’m going to talk about maritime connectivity.   Now, in ASEAN, “connectivity” most often refers to the physical infrastructure that allows ASEAN Member states to connect.  In the maritime realm, projects like ports or bridges and ferries come to mind.  Internet connectivity is obviously also important for the region, as everywhere.  But what I want to talk about today is another sort of connectivity which supports this physical and ICT connectivity and is critical in the maritime space.  This I will call the connectivity of common rules and norms.

What binds ASEAN together is a shared commitment to a set of principles set out in its key documents—the Bangkok Declaration, the Treaty of Amity and Cooperation, and the ASEAN Charter.  I want to call out three of these principles: respect for the rule of law, non-violent resolution of disputes and the upholding of international law. These three principles connect ASEAN, and they form the framework for a shared set of rules, norms and standards.  This set of rules and norms support all the other connections among ASEAN nations.  They create what ASEAN Deputy Secretary General Hirubalan of ASEAN has called “the rules-based, norms-based security architecture.”

ASEAN’s mutual acceptance of these shared rules and norms has created a stable and peaceful environment for the development of some of those more tangible forms of connectivity like infrastructure.  ASEAN’s motto, “One Vision, One Identity, One Community,” underscores this point.

How does this work?  It’s fairly simple.  Rules and norms create predictability. They create a sense of fairness because all countries have the same burden of compliance and responsibility.  Rules and norms can tame rivalry—they set parameters for behavior.  Over time, when countries follow common rules and norms, they create habits of cooperation. Rules and norms, in other words, create trust.

Foreign relations theory, common sense and historical observation all tell us that nations are not inclined to trust one another.  Some analysts go so far as to say that nations can never trust each other.  In any case, we know it is not easy to create even basic, what I’ve called in the past, “tactical trust.”  That is, enough trust that countries can cooperate to solve common problems.

It is not easy to create trust, but ASEAN has done it.  In ASEAN, because the ten countries have agreed to basic principles, and because around these principles they have built up a thick net of rules and norms, they have developed trust.  This trust has propelled the ASEAN Community that will launch later this year.  The process of creating the Community has, in turn, led to thousands of additional shared rules, norms and standards—from aviation to zoology and everything in between.

ASEAN connects itself to the broader region and the globe in a similar way, through its principles; but also through institutions, another form of critical but intangible connectivity.  “ASEAN is really at the very center at the Asia Pacific’s multilateral architecture.  And that is where the United States of America wants it to remain,” as Secretary of State John Kerry stated a little over a month ago here in KL at the ASEAN Regional Forum (ARF).  Through the ARF, the East Asia Summit and related ASEAN processes such as the ASEAN Defense Ministers Meeting Plus, and the Expanded ASEAN Maritime Forum, ASEAN has furthered connectivity between ASEAN states and the entire Asia-Pacific region.

Norms, rules and institutions—these have been the fabric, the net, that has helped keep the region peaceful and increasingly prosperous.

Unfortunately, there are major holes in this net of norms when it comes to the South China Sea.  In some cases, the shared rules and norms are not adequate to the task.  In other cases, rules and norms exist, but countries and individuals are not heeding them.  In many cases both of these problems exist. I’ll talk about these holes in the net when it comes, first to the marine environment in the South China Sea and, second, to the political situation.  These are obviously closely interrelated.

The Marine Environment in the South China Sea

Let’s start with the state of the marine environment in the South China Sea, which deserves more attention than it usually gets, in my view.

Southeast Asia is home to more marine biodiversity than anywhere else in the world.  The oceans provide the people of Southeast Asia a critical source of protein.  Fish protein accounts for more than 22 percent of the average Asian diet according to a 2013 study, and in South East Asia, the numbers can be higher.  Indonesians get over half of their protein from fish.[i] Forty percent of the world’s tuna are born in the South China Sea, mostly in the Spratlys.  Fisheries in the South China Sea are a multibillion dollar industry.

Yet, this marine bounty, and by extension, the food security of the people of the region, is under attack.  Illegal, unreported, and unregulated (IUU) fishing and overfishing in the area is widespread.  Destructive fishing practices such as dynamite fishing and cyanide poisoning have wreaked havoc in regional ecosystems and threaten the future of the regional fishing market.

Devastating effects to humans accompany this illicit trade.  Human trafficking victims, including from landlocked Laos, provide labor on these unscrupulous vessels.  Recent investigative reports in the New York Timesand other media describe the plight of young men held against their will on remote islands or ships that remain at sea, forced to work as many as 22 hours a day, exposed to the elements, for little to no pay.   The ASEAN Convention Against Trafficking in Persons, which ASEAN leaders are expected to adopt this November, will become a new element of legal connectivity to help in this battle.

Because there are fewer and fewer fish to be found in traditional fishing grounds, fishing boats are travelling farther from their shores, and the South China Sea ecosystems have suffered.  40 percent of the South China Sea’s fish stocks have already disappeared and 70 percent of the South China Sea’s coral reefs, which are critical to generating new fish, are rated to be in fair or poor condition.  Tuna are consistently overfished.  Millions of sharks, which occupy a vital role at the top of their ecosystem’s food chain, are slaughtered just for their fins each year.  The list of endangered species in the South China Sea keeps growing.

China’s massive land reclamation in the South China Sea around ecologically sensitive areas in the Spratlys, which has been grinding up the seabed and everything that lives there to transform reefs into land, adds to this depressing scene.  These features’ abundance of coral make ideal breeding and feeding grounds for a wide variety of commercial fish, as well as a multitude of other marine species.  But, according to an article by marine scientist Ed Gomez, as of March of this year, land reclamation had destroyed 311 hectares of coral reefs.

That’s equivalent to more than 3 million square meters.  These corals can take up to 100 years to generate under normal climate conditions.[ii]   He estimates that damage to these corals from reclamation has led to a $100 million annual loss of value to the region.[iii]   One U.S. marine scientist at the University of Florida has said “This is devastating.  It’s the worst thing that has happened to coral reefs in our lifetime.”  And another at Scripts has said “they are burying the ecosystem and destroying it.”[iv] I’ll come back to land reclamation later.

On top of these direct, daily assaults to ocean ecology, the increasing carbon in our atmosphere is also taking a slow, steady destructive toll on the world’s oceans.  Recent research shows that increased carbon dioxide levels are leading to the acidification of ocean waters at an unprecedented rate.  The rising acidity makes it more difficult for corals to grow their skeletons, making them more susceptible to erosion and attacks by other organisms.  So we are witnessing dead zones of coral to an extent we never have in recent memory.

Ocean acidification also impacts shellfish, and the current and potential economic losses are not well understood yet but likely significant.

The good news is that scientists tell me that though scale of the damage is large because of these multiple stressors, it is not too late for the region to save the sea and ensure the food security of future generations.  The ocean has tremendous powers of regeneration, and many smart and experienced people in all the maritime countries of Southeast Asia know how to address these issues.

Individually, all ASEAN countries must act to enforce the regulations in their own waters.  In some cases, better national laws may be needed to protect remaining stocks so they can sustain themselves.  But national action is not enough, of course, because fish move, and they don’t care whose waters they are swimming in.  So there has to be a regional approach as well.

The Politics of the South China Sea

This is where the political side of the South China Sea comes in.  Overfishing and IUU fishing interact with the unstable political situation in the South China Sea to create a vicious cycle. Part of the reason the claimants want to assert sovereignty over islands is precisely because of the fish in the surrounding waters.

But because more than one country claims them, there is no incentive to conserve.  In fact, if anything, claimants may want to encourage even more fishing boats in an attempted assertion of sovereignty.  Politics has even prevented some civilian scientific research about marine species in the South China Sea – research policymakers need to devise solutions.

And so, unlike in other parts of the world, there is no multilateral binding agreement on fishing regulations in the South China Sea about when you can fish and when not, or what size fish you can haul in, or how many, or what species.  The short term political and economic incentives for fishing boats are to fish as much as they can, as fast as they can and take all living matter, whether endangered or not.

It is the role of governments to step in and create regimes of rules to change unhealthy incentives, but they have not been able to here.

While regional solutions are yet forthcoming, there are two international agreements that will help address this regional issue.  First, the Trans Pacific Partnership (TPP) is on track to establish unprecedented environmental protections, including the prohibition of the most harmful fisheries subsidies and standalone commitments to combat IUU fishing while promoting sustainable fisheries management.  Four ASEANs are involved in negotiating that agreement: Brunei, Malaysia, Singapore, and Vietnam.

Second, the United States is hopeful that an international agreement, the Port State Measures Agreement, will soon enter into force.  Once in force, it will be the first ever agreement to set minimum standards for countries to prevent IUU seafood products from entering their ports.  Myanmar has already ratified this treaty and many other ASEANs are considering it.  We hope they sign on soon.

For our part, the United States is supporting these two agreements and is ready to support ASEAN directly as it takes on the challenge of the marine environment.  Sustainable marine environmental management is essential to ensuring food security and sustainable communities in the region.  There are many facets of sustainable management to consider, but one of the most pressing is combating illegal, unregulated, and unreported fishing, also called IUU fishing.

This past spring, President Barack Obama’s Task Force on Combating IUU Fishing and Seafood Fraud, led by the Departments of State and Commerce, unveiled an ambitious new action plan that, among other things, promotes international engagement and enforcement, will eventually put into place a system in the U.S. that will better account for the legality of the seafood entering our market.

Complimentary to this effort, Secretary Kerry at the ARF last month announced a new Oceans and Fisheries Partnership – a multi-year program, beginning with an initial $4.3 million commitment to combat IUU fishing and seafood fraud in Southeast Asia.  This partnership will develop an electronic catch documentation and traceability system to track species at a high risk of being illegally traded or mislabeled, in an effort to ensure fair treatment for honest fishers while at the same time protecting vulnerable fish stocks.

The Partnership will also engage in complementary activities in the area of sustainable fisheries management, capacity-building, public-private partnerships, and improving social benefits to address labor, gender equity, and related issues.  American private sector companies and consumers are increasingly attentive to the sources of their seafood.  And at the ARF, all 27 countries endorsed a statement the U.S.-sponsored pledging their commitment to protect the marine environment. The State Department also has launched a Southeast Asia Maritime Law Enforcement Initiative to enhance the regional maritime law enforcement cooperation needed to bring human traffickers and illegal fishers to justice.

With that, let me turn now to talk more about the political-security side of the South China Sea.  The United States is not a claimant, but as a Pacific nation and a major maritime power, the U.S. has a strong interest in the maintenance of regional peace and stability, respect for international law, freedom of navigation, and unimpeded lawful commerce.  For us, the South China Sea is about rules, not rocks.

The DOC and COC

The region has developed principles and norms for countries to apply in helping them manage tensions related to territorial and maritime disputes in the SCS.  In 2002, claimant states came together to negotiate and sign the Declaration on the Conduct of the Parties in the South China Sea (DOC).  In this DOC, they committed to a variety of rules and norms, such as respect for and commitment to freedom of overflight and navigation in the South China Sea and the resolution of disputes by peaceful means in accordance with international law, including the UN Convention on the Law of the Sea.

Importantly, in Article V of the DOC, claimants undertook “to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from … inhabiting the presently uninhabited… features and to handle their differences in a constructive manner”.

The DOC is a sensible set of common norms.  The problem is, not all the claimants are heeding them.  In particular, over the past 18 months, China has engaged in unprecedented and unparalleled land reclamation, and it now occupies well over three times as much dry space in the Spratlys as the three other claimants combined – more than 2900 acres or 1170 hectares and has reclaimed about 20 times land as much as other three combined.

This is unfortunate because the relationship between trust and rules goes both ways—you need rules to build trust between countries.  But if a country appears to disregard the rules, that can quickly degrade trust.  The joint communique from the ASEAN Foreign Minister’s Meeting here in Kuala Lumpur last month, echoing the statement from the ASEAN leaders summit in April, noted that ministers “remained seriously concerned” over recent developments including land reclamation because it has eroded regional trust and confidence.

China isn’t the only claimant that has reclaimed land; others have undertaken such action but on a dramatically smaller scale.  Of more importance to regional stability, the region needs a commitment by all claimants to not only halt reclamation, but to halt further militarization and the construction of new facilities on features they occupy.

To their credit, all the claimants have begun work to negotiate a new regional set of rules—a Code of Conduct.   But the pace of these tasks has been quite slow.  China and the U.S. were able to conclude a contentious and technical understanding on climate change in a matter of months.  But these discussions over a Code of Conduct have continued for 13 years and judging from the recent ASEAN Joint Communique, the parties have not yet discussed many “difficult and complicated” issues.  We have a saying in the US—justice delayed can be justice denied.

Nevertheless, the Code of Conduct represents exactly the kind of rules-based connectivity the United States supports, because it represents a framework of meaningful commitments regarding the actions of all states, regardless of size.  So we hope that ASEAN and China can conclude a meaningful Code of Conduct soon, even by the 2015 East Asia Summit this November.

We think that to create the right environment for conducting serious negotiations on a Code of Conduct, all claimants should commit to a reciprocal halt of land reclamation in the South China Sea, of further militarization of existing outposts, and of large scale construction.  The specifics would be up to the claimants to negotiate, of course.  But we believe that these actions will help rebuild the trust in the region that has been lost in recent months.

International Maritime Law in the South China Sea

I don’t need to remind this crowd that whatever happens with the COC, international maritime law governs in the South China Sea.  All States are entitled to all the rights, freedoms, and lawful uses of the sea and airspace under customary international law as reflected in the United Nations 1982 Law of the Sea Convention.

It is the law of the sea that tells us what kinds of maritime rights a given feature in the South China Sea has.  Thus, in terms of the way forward, another very helpful action the claimants could take is to bring their claims into conformity with international law as reflected in the Law of the Sea Convention.  This means, among other things, because “land dominates water,” all maritime entitlements in the SCS must be derived from a coastal State’s land territory.

China has not clarified a legal basis for its ambiguous “Nine-Dash Line” claim.  To be consistent with the law of the sea, China would need to clarify that its claim is only to the islands within that line, along with any maritime entitlements those islands generate consistent with the Law of the Sea Convention.  The “Nine Dashed Line” is not consistent with the law of the sea if it purports to represent a national boundary, or a claim to all the water within that line.  Similarly, with respect to the drawing of coastal baselines, both Vietnam and China have made maritime claims in the South China Sea that are not consistent with the international law of the sea.

The law of the sea is clear about the legal implications of land reclamation too.  An artificial island does not generate entitlements to a territorial sea, an exclusive economic zone, or continental shelf.  No amount of sand can create sovereignty.

International law, which, again, is a foundational principle for ASEAN, also provides ways to manage disputes and the U.S. supports the peaceful resolution of disputes, which includes the use of available dispute settlement processes. Under the Law of the Sea Convention, the Philippines’ has the right, which it has exercised, to ask an arbitral tribunal to consider whether it has jurisdiction over any of the claims the Philippines raised in its case and, if so, whether the Philippines’ arguments have merit.

In keeping with their obligations under the Law of the Sea Convention, both the Philippines and China are obligated to abide by whatever decision may be rendered in the case.  And I would expect ASEAN nations to welcome the decision too, whatever it is, based on their oft-repeated principles of respect for international law and non-violence.

ASEAN nations have successfully turned to international tribunals even to resolve difficult underlying questions of territorial sovereignty.  For example, Malaysia and Singapore asked the International Court of Justice to resolve a sovereignty dispute over certain offshore islands, which the ICJ did in 2008.  The issue was resolved, tension was diffused, non-violence prevailed, international law was upheld, trust was bolstered and the region benefitted.

Conclusion

One of the reasons that President Obama created my position was because he understands how important ASEAN is as a region and because he sees ASEAN as a key steward of the rules-based order in Asia.  Indeed, all states in ASEAN and beyond benefit from the connectivity forged through adherence to common rules and norms, both regional and international.  The U.S. stands ready to support ASEAN as it continues to build rules, and trust, in Southeast Asia and beyond.

End Notes


[i] http://www.thejakartapost.com/news/2013/10/22/global-aquaculture-and-indonesia-s-role.html

[ii] http://www.barrierreef.org/about-reef/reef-qas

[iii] http://opinion.inquirer.net/84595/destroyed-reefs-vanishing-giant-clams

[iv] http://www.washingtonpost.com/national/health-science/what-happens-to-a-coral-reef-when-an-island-is-built-on-top/2015/07/06/d409493c-168b-11e5-9518-f9e0a8959f32_story.html