Lost amid the recent cacophony of nationalist rhetoric regarding the disputes in the South China Sea have been calls for the claimants to agree to set aside part of the area for environmental preservation. This suggestion is both idealistic and unrealistic.
Few would deny the exponentially increasing environmental damage and its effects around the world — including, in particular, to increasingly threatened island and near shore marine ecosystems. Humankind must learn to live within its environmental means. But it is becoming increasingly apparent that we will not do so — at least in time to prevent more environmental disasters. The reasons are deep and intrinsic to collective human nature and they find expression in decisions regarding particular options to preserve the environment. The proposals for environmental protection in the disputed Spratlys, while laudable, are a good example of why such cooperative environmental management is so difficult to actualize.
It would be difficult to argue directly against saving the Spratly ecosystem — or what’s left of it. The South China Sea is at the crossroads of the most biologically diverse region on earth — the Indo-Pacific. Its islets and reefs harbor associations of Indo-Pacific flora and fauna — coral, mollusks, fish, seabirds and turtles, including some rare and endangered species. Moreover, some scientists hypothesize that tuna, mackerel, scads, and coral reef fish stocks around the region are replenished from the Spratly area. If so, these spawning grounds would be particularly important for coastal populations of adult fish that are declining. This is why some suggest that these atolls, banks, and reefs are a genetic savings bank where commercially important fish and invertebrates (as capital) supply a constant flow of larvae (as interest) to areas of depletion.
Marine biologist John McManus first introduced the genetic savings bank metaphor and proposed turning the area into an international marine reserve with “a truce to ownership aspirations for a definite period such as 50 years”. According to McManus, the key elements for any agreement “to protect the environment and prevent an impending multispecies fishery collapse across the South China Sea would be a freeze on claims, a freeze on claim supportive activities (nothing a country does during the treaty period can be used in the future to define its claims), and joint management, including coordinated fisheries regulations and standardized environmental protection.” He suggested that the reserve have an international management board, tourism facilities, research facilities, a private surveillance force and a contracted research and management institution.” The enforcement personnel and equipment could be based at the various military facilities already in place.
This sounds like a wonderful idea. So why aren’t the claimants and others embracing it?
First of all, now it is only the sovereignty over the rocks and reefs themselves that is disputed. According to the China-Philippines arbitration decision under the auspices of the dispute settlement mechanism in the UN Convention on the Law of the Sea, none of the Spratly features above high water are entitled to maritime zones around them, except perhaps for 500-meter “safety zones”. There are overlapping claims to extended continental shelves but none of the claims has been recognized by the UN commission on the continental shelf. Thus, the rest of the South China Sea is either within the 200 nm EEZs and continental shelves of the coastal nations, or are high seas and part of the global common heritage. That means the disputes are now about sovereignty over “territory” and that makes nationalism the fundamental driver of national policy in this area.
When the choice for these relatively poor nations is between developing resources or preserving the environment, the latter is a lower priority.
China and Vietnam have proclaimed to their respective populaces, as well as to the world, that these flyspecks in the middle of the South China Sea have been part of their “fatherland” since “time immemorial”. According to Vietnam’s Foreign Ministry, the archipelago is as dear “to Vietnamese hearts . . . as could be any other part of the fatherland.” China’s President Xi Jinping has solemnly stated that islands in the South China Sea “have been China’s territory since ancient times.” When viewed through the prism of history, the dispute over the rocks is a microcosm of the age-old conflict between Vietnam and China. The latest to play a version of this politically dangerous all-in, and probably irrevocable, card is the Philippines. It claims some of these features on the basis of “proximity, vital security, history, indispensable need and effective occupation and control.” However, all of the claims to these features are weak in modern international law. Nevertheless, the respective claimants’ governments cling to them as virtual symbols of their legitimacy.
The international law of ownership is not helpful in this environmental protection versus sovereignty dilemma because it holds that “effectivities” can bolster a claim to sovereignty. Effectivities regarding the acquisition (or attribution) of territory generally require that there be an intentional display of power and authority over the territory by the exercise of jurisdiction and state functions, on a continuous and peaceful basis. Effectivities would be an important consideration by any arbiter considering the question of sovereignty over any of the rocks. Thus, to share or “set aside” sovereignty claims to these rocks could endanger the legitimacy of the ruling government if it were seen to be compromising sovereignty over a portion of the “fatherland.” Moreover, there is lack of mutual trust that voluntarily subordinating sovereignty to a greater human good will not be used against a nation in future claims and negotiations. That is the primary obstacle to agreeing to a sharing or cooperation scheme of any kind for any reason, including for preserving the environment.
A good recent example of this dilemma is China’s unilateral declaration of a fishing moratorium in the South China Sea above the 12th parallel north of the equator. If all claimants really valued environmental protection more than their jurisdictional rights, they would welcome it, or at least accept it. But Vietnam has protested strongly because to acquiesce might make it a legally valid demonstration of China’s jurisdiction.
But there are many subsidiary political obstacles to cooperative environmental management there as well. For example, there is the practical matter of whether the effort to preserve the environment here is worth the time and resources it would take away from other environmental protection efforts in the region. Much of the land and near shore of these features has already been heavily degraded by reclamation and construction, pollution from passing ships and by rapacious fishing techniques such as destructive net fishing (muroami), blast fishing, and the more recent “mining” of giant clams. According to National Geographic, poachers use boat propellers to loosen the valuable bivalves and in the process, destroy the reefs in which they are embedded. Indeed, the arbitral tribunal found that China had “inflicted irreparable harm to the marine environment.” Moreover, there is no proof for the theory that the Spratlys serve as a “genetic seed bank” for coastal or oceanic fisheries. When the choice for these relatively poor nations is between developing resources or preserving the environment, the latter is a lower priority.
Further these degraded features may serve as convenient bases to harvest resources like petroleum and, more likely and important, frozen gas, and metallic sulfides, nodules and crusts bearing valuable minerals like gold, silver, cobalt and mercury. Taiwan and Malaysia have also been eyeing the features as sites for futuristic extraction of ocean thermal energy.
The point is that while agreement among claimants for a cooperatively managed environmentally protected area in the Spratlys, or a portion thereof, seems to be a reasonable and achievable goal, it is unrealistic. In fact, the idea is a faint voice in the wilderness of realpolitik.