Soft law to hard law: A model for the South China Sea?

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ambassador to Norway Zhao Jun stated that China is ‘most willing’ to explore possibilities for cooperation with the Arctic’s indigenous peoples. High-level officials have stated that by using their position as permanent observers to promote the rights and interests of Arctic indigenous groups will “strengthen China’s influence over Arctic affairs” (Jia & Shi, 2014). Some cooperation is already taking place. Chinese resource projects in the Arctic, notably in Greenland, where the majority of the population is Inuit, have received the support of indigenous groups (Jun, 2011). In 2013, China hosted the 5th Annual World Reindeer Herders Congress in Inner Mongolia. The Association of World Reindeer Herders is a group representing 100,000 reindeer herders from 20 different indigenous peoples scattered over nine different states including China that maintains close ties to the Arctic Council.²⁴ The conference helped elevate China’s cooperation with Arctic indigenous groups and “illustrated China’s willingness and capability to contribute to the rights and interests of Arctic indigenous peoples” (Jia &

Shi, 2014). Building better relations with Arctic indigenous groups may give China a different door to influencing Arctic affairs.

China’s approach to international cooperation in Arctic governance, namely, stressing the

‘trans-national’ nature of Arctic issues and thus the need for China to be a part of decision-making in the region, is a direct product of its status as an “outsider” in Arctic affairs. China’s recent approach of strengthening relations with Arctic indigenous groups is likely related to China’s attempt to increase its Arctic influence given its “outsider”

status.

13.2 Soft law to hard law: A model for the South China Sea?

When China became involved in the Arctic Council in 2007, the Council had not yet begun its transformation from a purely soft law organization to one that facilitates the promulgation of hard law. China was well positioned to witness this transformation, which began in 2011, and Chinese scholars have closely studied the shift to hard law.²⁵ The two legally binding agreements, the 2011 Search and Rescue Agreement and the

24 The Association of World Reindeer Herders is an observer to the Council, and several prominent indigenous groups make up its membership, including the Inuit and the Saami, who are permanent participants to the Arctic Council. See: http://reindeerherding.org/wrh/.

25 Cheng Baozhi of SIIS has a well detailed summary of the Council’s transformation entitled “试析北极理 事会的功能转型与中国的应对策略” [Analyzing the Arctic Council’s transforming capabilities and China’s strategic response], see: Cheng, 2013a.

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2013 Oil Spill Agreement, and the transformation of a regime from soft law to hard law more generally, have been of special interest to Chinese scholars. Cheng Baozhi of SIIS writes that these two agreements are symbols that the Council has the ability to successfully transform scientific studies and environmental assessments into concrete policy proposals (Cheng, 2013). Chinese MFA Department of Law and Treaty officials write that legally binding measures make the Council more effective in its work (Jia &

Shi, 2014). Moreover, there is a prevailing view that China should itself participate in the creation of legal mechanisms in the region. Scholars from CIIS, a leading Beijing-based think tank, have been quite vocal that China should contribute to Arctic governance,

“especially the establishment and improvement of international legal mechanisms regarding the Arctic issues” (Qin and Chen, 2001). The soft law to hard law transformation is not only relevant to Chinese interests in the Arctic, but also in its relations with its own contentious maritime regions.

The current situation in the South China Sea, a large maritime area marked with seemingly insurmountable tensions, is not very different from the status of the Arctic before the Arctic Council was created. In the late 80s, the Arctic was characterized as a desolate region host to large powers with disputes over how the region should be governed. Several Arctic states had, and some still exist today, territorial and maritime disputes between them that were unresolved. In this potentially volatile region, the Arctic Council started as a modest regime covering soft security issues of climate change research, environmental protection and sustainable development. Common ground was found in areas that allowed the Arctic powers to begin cooperating, albeit in simple, non-controversial ways. It was not until 15 years after the Council was formed that it moved into facilitating legally binding agreements. Moreover, the two legally binding agreements cover issues that are significantly less controversial than territorial disputes:

search and rescue and environmental protection. Now that two agreements have been signed, the Council will build on the momentum and negotiate more expansive agreements, moving into issue areas that are more substantial.

Soft law to hard law in the South China Sea

In November 2002, China and the Association of Southeast Asian Nations (ASEAN) signed the Declaration of Conduct of Parties in the South China Sea (DOC), a political

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text that was designed to prevent further tensions over disputed territories and to reduce the risk of military conflict in the South China Sea (Wu & Ren, 2003). The ten-point declaration stresses the application of international law to resolve conflicts and urges self-restraint of all parties involved. Like the 1996 Ottawa Declaration, the DOC does not impose legally binding obligations on the signing parties but is nevertheless seen as the first step towards the establishment of such obligations. In this regard, the DOC’s tenth point is significant: “The Parties concerned reaffirm that the adoption of a code of conduct in the South China Sea would further promote peace and stability in the region and agree to work, on the basis of consensus, towards the eventual attainment of this objective” (ASEAN, 2002).

With the affirmation of the pursuit of a legally binding code of conduct, the move from soft law to hard law in the South China Sea was envisioned. Progress on a legally binding code of conduct, however, has been slow. Similar to the early history of the Arctic, the contentious issues of overlapping maritime claims, large quantities of natural resources, and territorial disputes between major states all make a comprehensive agreement between the South China Sea states unlikely in the short term. Regarding the Arctic, to get around the issue of seemingly insurmountable disagreements, the Arctic States instead began shifting to hard law by cooperating on less sensitive issues, namely search and rescue and environmental pollution.

Similar to the Arctic, there are some relatively less sensitive areas in which short-term cooperation could be established in the South China Sea.²⁶ The 2002 DOC listed five areas of potential cooperation: marine environmental protection, marine scientific research, safety of navigation and communication at sea, search and rescue operations, and combating transnational crime (ASEAN, 2002). Search and rescue and emergency oil spill response are two areas in which a transformation to legally binding agreements

26 Hai Min and Zhang Aizhu, writing in the CIIS-published journal China International Studies, write that the South China Sea issue contains four primary components: 1) Non-sensitive issues such as marine environmental protection, scientific research, disaster prevention, piracy, maritime search and rescue;2) Resources, including the development, utilization and protection of fisheries, oil and gas, seabed minerals, and tourism resources; 3) Overlapping claims to maritime jurisdiction. 4) The Nansha (Spratly) Islands territorial disputes. Hai and Zhang suggest “the stakeholders should look for solutions, promote cooperation in fields that are not very sensitive and intensify their efforts in additional areas.” (Hai and Zhang, 2014)

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could be promoted. Currently, there are no current mechanisms to properly deal with these two issue areas.²⁷

There have been some examples of regional SAR cooperation, for example the joint SAR exercise in 2004 between the Philippines and China; the 2006 Joint ASEAN-China Table Top Maritime Search and Rescue Exercise; and the 2010 ASEAN Declaration on Cooperation in the Search and Rescue of Persons and Vessels in Distress at Sea, which encourages further cooperation in coordinating regional SAR centers (Kao, Pearre &

Firestone, 2012b). These mechanisms are the first steps towards a more comprehensive, region-wide SAR agreement. Such an agreement could be arranged in similar fashion to the Arctic SAR Agreement, with the South China Sea carved up into areas of responsibility. Areas of responsibility could be delimited between the coastal states and the delimitation of zones of responsibility could be done in a way that does not prejudice the sovereignty or territorial rights of any state.²⁸ Emergency response to oil spills is also an area where potential cooperation exists. As the South China Sea is a major transit passageway for oil, a regional legal mechanism would help mitigate the damage done by any major spill. The legal arrangements that have emerged in the Arctic during its transition to hard law provide a template for cooperation in the South China Sea, particularly agreements that allow for joint cooperation while not prejudicing any states maritime claims in the region.

There are many issues of contention in the South China Sea. The shift from a Declaration of Conduct to a Code of Conduct is unlikely to happen overnight. That being said, the South China Sea and the Arctic share many similarities. Both are marked by territorial and maritime disputes, have an abundance of natural resources, and have a lack of regional legal mechanisms to deal with potential problems. The Arctic Council skirted around the contentious issue of territorial disputes and military security and instead transitioned from a solely soft law organization to one that facilitates hard law by first addressing non-contentious issues. Chinese Arctic officials and scholars have watched

27 Of the five potential areas of cooperation listed in the 2002 DOC, the first two have been implemented.

Safety of navigation and communication at sea and SAR operations has not been dealt with. Kao, et al.

(2012b) recommend that “cooperation on maritime safety, such as SAR operations and emergency response to an oil spill at sea, is urgently needed.”

28 Due to worries about sovereignty disputes, the 2011 Arctic SAR Agreement included the provision that

“the delimitation of search and rescue regions is not related to and shall not prejudice the delimitation of any boundary between States or their sovereignty, sovereign rights or jurisdiction.” (AC, 2011b).

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this transformation intently, undoubtedly learning lessons on how governance of a contentious maritime region can evolve into one with a more robust legal foundation. The transformation of Arctic governance could be a model for China to follow in the South China Sea.