Review of the legal aspects of environmental management in the South China Sea and Gulf of Thailand

Abstract

The mandate of the Legal Task Force established under the South China Sea project was to evaluate the present status of legal environmental instruments at national, sub-regional and regional levels with a view to exploring ways to strengthen regional co-operation in the environmental management of the South China Sea. This article provides an overview of: signatory states' obligations for regional co-operation under major global environmental conventions; the status of existing regional co-operative mechanisms and instruments, including regional agreements and ‘soft’ laws11Soft-laws are non-legally-binding instruments, such as Declarations, Guidelines and Action Plans. An example is Agenda 21. They are usually adopted where states will not or cannot agree on the terms for a legally-binding instrument.; national environmental legislation; and an analysis of national environmental legislation regarding major issues and themes of interest. This article demonstrates that, while the global and international conventions to which the countries of the South China Sea are parties convey obligations on the states to co-operate regionally, this obligation has generally not been met. In addition, there is no single legally-binding regional intergovernmental agreement on marine environmental protection that involves all the countries bordering the South China Sea. This review indicates that, while all countries have a suite of legal instruments designed to protect the environment and conserve natural resources, these are often not harmonised and integrated with national policies. Countries continue to be without an integrated coastal/marine management policy that sets clear priorities, principles and guidelines that can steer policy conflicts towards resolution and encourage government agencies and offices to see themselves as part of a larger effort towards proper management of coastal and marine habitats.The article concludes with a review of potential mechanisms for future regional co-operation in environmental management and proposes alternative models. Lessons learned from the global community and regional programmes indicate a growing emphasis on the domestic implementation of global instruments via regional co-operative initiatives and maximising effectiveness. An emerging trend is the proliferation of calls to ‘strategically’ address these two needs. This suggests that an appropriate course of action for a region seeking to strengthen co-operation would be forging a legal agreement that suits regional needs and interests and, in so doing, incorporates ‘effectiveness’ into the design.It is further concluded that the SCS region is in a unique and enviable position. Unlike most other regions, it has never adopted a legally-binding instrument and, consequently, it is free of precedent and other legal baggage. Regional co-operation is gaining momentum and South China Sea states are indicating a greater concern for environmental sustainability. There is also a growing recognition that the inefficient use of resources will only worsen without horizontal and vertical co-ordination and regional co-operation. It seems an appropriate time to consider an effective and region-appropriate course for long-term sustainability of the South China Sea and its resources, including consideration of a regional framework for co-operation, co-ordination and communication. Political commitment will determine whether any new co-operative framework becomes a paper tiger or an Asian tiger.