It is hard to forget those graphic images of sea turtles and giant clams being poached to be traded illegally, their habitats being polluted and destroyed — in the backdrop of heightened territorial dispute in the South China Sea, which the Philippines now refers to as the West Philippine Sea.  

On one hand, the deplorable state of sea turtles and giant clams represents the environmental ills of the South China Sea and depicts a bigger problem: the global oceans crisis.

On the other hand, it is a classic tragedy of the anticommons. The ownership of the islands and reefs in the sea is disputed by five Asean countries, including China, Taiwan and an unknown number of closet sovereign claimants. As a consequence of the territorial contest, environmental regulation cannot be implemented leading to damage and waste.

Studies show that uncontrolled overfishing, blasting of coral reefs and illegal harvests of endangered species deplete the fisheries of the sea. Oil sludge and discharges foul the water’s surface while on the margins, the unregulated industrialisation and urbanisation bring floods of toxic effluent runoff. Aquaculture reduces coastal mangrove forests which affects the marine food chain.

Globally, according to the Food and Agriculture Organisation, around 80% of the fisheries are fully exploited, over exploited or significantly depleted and some species have already been fished to or on the verge of commercial extinction. Marine biodiversity is even more threatened by expanding industrial fishing, deep sea bed mining and other human activities beyond areas of national jurisdictions.

While there are efforts to address environmental, political and other conflicts in South China Sea, lasting solutions remain elusive given the overlap of the issues.

In 1990, Indonesia led a workshop process of all country claimants and identified resource and environmental managements as areas of cooperation. In 2002, the United Nations Environment Programme, with huge funding support from Global Environment Facility, launched the project "Reversing Environmental Degradation Trends in South China Sea and Gulf of Thailand" through habitat protection and management; fisheries protection; and land based pollution and project managements. However, the coordination in the two initiatives was based merely on members’ good will. Hence, the lack of mandatory processes and rules was the common limitation identified in the two efforts.

The challenge is the same in the implementation of states’ obligation to control illegal harvest of species classified as endangered under the United Nations Convention on International Trade in Endangered Species (Cites) and to regulate activities in territorial waters and exclusive economic zones and certain activities in the high seas and the sea bed under the United Nations Convention on the Law of the Seas (Unclos). There is however an additional recognised gap in the Unclos to protect marine biodiversity beyond national jurisdiction. Thus, UN meetings are being held to get the consensus of governments next year whether or not to commence a negotiation for an international instrument to address the same. Nonetheless, while there are no policing, regulatory and dispute mechanisms under the conventions, norms evolved in addressing violations such as formal warning by the secretariats on reports of violations and undertaking of corrective measures before resumption of cooperation or trade with erring governments.

Some ideas can also be drawn from four earlier cases of disputed sovereignty in Southeast Asia. These are however limited to political settlements as environmental concerns were absent in the circumstances.

Diplomacy contained the Philippines-Malaysia conflict over Sabah.

Indonesia and Malaysia agreed to refer its dispute over Ligitan and Sipadan islands to the International Court of Justice (ICJ). The court handed down its decision in favour of Malaysia in 2002 on the basis of continuous pattern of legislative, administrative and judicial authority exercised by Malaysia over the islands in the absence of a clear title.

The dispute over Pedra Branca between Malaysia and Singapore was resolved in favour of Singapore by the ICJ in 2008.

It took summit diplomacy between Indonesia and Malaysia to move the conflict away from sovereign claims to joint development discussions.

At this point, the revealing fact that may be worth emphasising is the need to address the overlapping issues with equally overlapping approaches. Environmental solutions and conflict resolution through diplomatic, legal and other channels must go hand in hand. All governments in the South China Sea dispute owe these solutions to the present and future generations not only because of their treaty commitments but also because they are in the position and have the mandate and resources to address the problems decisively.

Pending the resolution of the territorial aspect of the dispute, it is urgent for governments to form a multinational policing mechanism and regulation to prevent and apprehend acts of illegal harvest of Cites-classified endangered species, acts of destructive fishing and other environmental crimes in South China Sea. Complimentary to this, the governments in dispute must support the negotiations for an implementing agreement under the Unclos to protect marine biodiversity beyond national jurisdictions.

The tragedy of the anticommons must be reversed because in the first place the sea turtles, giant clams and all marine species in the South China Sea do not recognise national boundaries and jurisdictions.

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Atty Zelda Soriano is a political adviser for Greenpeace Southeast Asia.

Originally published in The Bangkok Post