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Effective Diplomacy and Cooperation on the Oceans: Lessons for the South China Sea?


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There is something special about Hobart, Tasmania—a place where the authors spent more than a decade as academics at the University of Tasmania. In addition to its natural beauty and friendly people, one cannot help but be influenced as well by the history of the place. That history is reflected in place and street names, including ‘Constitution Dock’ which commemorates the central role played by Tasmanian Attorney-General Andrew Inglis Clark in preparing in 1891 the seminal draft which eventually became the Australian Constitution, which the most important legal document impacting the lives of all Australians.

National constitutions typically are evoked by men and women supporting a noble cause. They are projects of strong advocacy, intense negotiation and difficult compromise. Over a century later, Hobart is again a linking point to another noble cause--an important agreement that was reached a few weeks ago between the EU and 24 other countries (including the US, China and Russia) to protect more than 1.5 million square km of the Ross Sea in the Southern Ocean seas of Antarctica. The vast area is to become a Marine Protected Area (MPA). The agreement was signed at the annual meeting of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR). This is the first marine park of its kind created in international waters.

Tensions between nations over the South China Sea have pre-occupied commentators, academics and statesmen in recent times. But there are other areas in the world’s oceans where diplomacy is at work and effective, and where international cooperation is working for the common good. Earlier this year, the signing of the Paris Agreement was a landmark decision with China, India and the US among the countries leading the way.

The Ross area has been described as an oceanic ‘garden of paradise’ because of its richness in bio-diversity. The agreement will ban all commercial fishing in this zone for a period of 35 years. As such, this area will be the largest marine park in the world. More than that, it is estimated that the Ross Sea produces a large percentage of the nutrients upon which a major share of the rest of the world’s oceans depends.

As the world becomes more aware of the importance and fragility of our environment, it is vitally important that nations cooperate in order to protect and preserve the environment so that future generations may benefit.

One of the most important characteristics of the success of the human species is our ability to work cooperatively. In early times that cooperation occurred in small groups of hunter gathers. With the development of agriculture, stable and larger communities and cooperation on a greater scale could be achieved. With the rise of the nation state and Industrial Revolution, large scale cooperation became possible. Today in an Information Age characterised by the globalization, growth in international trade, increased interdependence, and the flattening network effects of modern communications, cooperation across national borders and the formation of digital tribes are realities.

Environmental protection and sustainability must be on government, industry and personal agendas if our planet is to survive, less more thrive. Environmental justice demands that nations continue the present momentum and overcome national differences for the common benefit of all citizens in the world.

After what one official describes as ‘an incredibly complex negotiation which required a number of Member countries bringing their hopes and concerns to the table’, the 25 members of the organisation including China agreed to establish the MPA. The agreement has been hailed as ‘ an almost unprecedented level of international cooperation regarding a large marine ecosystem comprising important benthic and pelagic habitats.’

The new MPA, comes into force in December 2017, and will limit, or entirely prohibit, certain activities in order to meet specific conservation, habitat protection, ecosystem monitoring and fisheries management objectives. Seventy-two percent of the MPA will be a 'no-take' zone, which forbids all fishing, while other sections will permit some harvesting of fish and krill for scientific research.

Seven nations (Australia, France, Norway, United Kingdom, Chile, Argentina and New Zealand) have made claims to territory on Antarctica with implications for the Southern Ocean. At least three of the claims (United Kingdom and Argentina, United Kingdom and Chile) are overlapping or conflicting. Most of the other nations including China, Russia and the United States do not recognise the validity of the claims made. Indeed Antarctica and the Southern Ocean area have always posed a potential source of international conflict. But in spite of the conflicting strategic and competing national interests of the claimants, the counterclaimants and nations that refuse to recognize claims count, the countries have managed to put aside their differences and concerns and establish the MPA.

The Ross Sea, the Southern Ocean and Antarctica are not, and need be, compared to the South China Sea. They may be best described as ‘aspirational’ global commons or global commons ‘in the making’: They belong to all nations and belong to none. On the other hand the South China Sea is subject to competing territorial claims. But nonetheless there are important lessons and parallels. The new MPA agreement teaches us that even where nations have competing maritime or territorial claims, they can find common ground in the interest of the common good. Above all, the agreement teaches us that dialogue, diplomacy and cooperation can still play critical roles in the search for compromise when national interests are in conflict.

As China and the Philippines and indeed other claimants in the South China Sea consider their options for compromise and settlement, the MPA agreement in the Ross Sea in the Southern Ocean comes at an opportune time. The parties might perhaps fish for a lesson or two in this sea of opportunity in the interest of the common good.

Author:
Dr Eugene Clark is Dean and Professor of Law, Sydney City School of Law: eugene.clark@top.edu.au 
Dr Sam Blay is Deputy Principal and Professor of Law, Top Education Institute: sam.blay@top.edu.au

Section:
General

Comments:
A version of this article also appeared in China.Org.CN

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29th November 2016