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Environmental Management in the South China Sea: Legal and Institutional Developments

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Environmental Management in the South China Sea: Legal and Institutional Developments East-West Environment and Policy Institute Research Report No. 10 Environmental Management in the South China Sea: Legal and Institutional Developments by Douglas M. Johnston East-West Center Honolulu, Hawaii THE EAST-WEST CENTER-officially known as the Center for Cultural and Technical Interchange Between East and West —is a national educa• tional institution established in Hawaii by the U.S. Congress in 1960 to pro• mote better relations and understanding between the United States and the nations of Asia and the Pacific through cooperative study, training, and research. The Center is administered by a public, nonprofit corpora• tion whose international Board of Governors consists of distinguished scholars, business leaders, and public servants. Each year more than 1,500 men and women from many nations and cul• tures participate in Center programs that seek cooperative solutions to problems of mutual consequence to East and West. Working with the Center's multidisciplinary and multicultural staff, participants include vis• iting scholars and researchers; leaders and professionals from the aca• demic, government, and business communities; and graduate degree stu• dents, most of whom are enrolled at the University of Hawaii. For each Center participant from the United States, two participants are sought from the Asian and Pacific area. Center programs are conducted by institutes addressing problems of communication, culture learning, environment and policy, population, and resource systems. A limited number of "open" grants are available to degree scholars and research fellows whose academic interests are not en• compassed by institute programs. The U.S. Congress provides basic funding for Center programs and a va• riety of awards to participants. Because of the cooperative nature of Cen• ter programs, financial support and cost-sharing are also provided by Asian and Pacific governments, regional agencies, private enterprise and foundations. The Center is on land adjacent to and provided by the Uni• versity of Hawaii. THE EAST-WEST ENVIRONMENT AND POLICY INSTITUTE was estab• lished in October 1977 to increase understanding of the interrelationships among policies designed to meet a broad range of human and societal needs over time and the natural systems and resources on which these pol• icies depend or impact. Through interdisciplinary and multinational pro• grams of research, study, and training, the institute seeks to develop and apply concepts and approaches useful in identifying alternatives avail• able to decision makers and in assessing the implications of such choices. Progress and results of Institute programs are disseminated in the East- West Center region through research reports, books, workshop reports, working papers, newsletters, and other educational and informational ma• terials. William H. Matthews, Director East-West Environment and Policy Institute East-West Center 1777 East-West Road Honolulu, Hawaii 96848 Environmental Management in the South China Sea: Legal and Institutional Developments by Douglas M. Johnston Research Report No. 10 - May 1982 East-West Environment and Policy Institute DOUGLAS M. JOHNSTON is a professor of law at Dalhousie University, Halifax, Nova Scotia, Canada. He was a research fellow at the East-West En• vironment and Policy Institute from January throughjune 1980. Library of Congress Cataloging in Publication Data Johnston, Douglas M. Environmental management in the South China Sea. (Research report/East-West Environment and Policy Institute; no. 10) Includes bibliographical references. 1. Environmental law —South China Sea Region. 2. Marine resources conservation — Law and legislation — South China Sea Region. 3. Environmental protection- South China Sea Region. I. Title. II. Series: Research report [ East-West Environment and Policy I nstitute (Honolulu, Hawaii)]; no. 10. Law 344.046'09164'72 82-11507 342.4460916472 © 1982 East-West Center, East-West Environment and Policy Institute. All rights reserved. Printed in the United States of America. iii CONTENTS FOREWORD v PREFACE vii ABSTRACT 1 THE SOUTH CHINA SEA: PROBLEMS AND PRIORITIES OF ENVIRONMENTAL MANAGEMENT 1 The Physical Setting 1 Human Impacts on the Marine Environment 4 Policy Conflicts and Priorities 5 THE REGIONALIZATION OF OCEAN MANAGEMENT 7 Regions and Regionalism 7 Marine Regions and Marine Regionalism 10 Regional Arrangements and UNCLOS III 12 REGIONAL ARRANGEMENTS FOR THE PROTECTION AND CONSERVATION OF THE MARINE ENVIRONMENT .13 Regional Agreements 13 Regional Organizations 15 UNEP AND THE REGIONAL SEAS PROGRAMME 22 Introduction 22 The Mediterranean 30 Red Sea and the Gulf of Aden 33 Kuwait Action Plan Region (The Arabian-Persian Gulf) 33 West Africa 34 Caribbean 35 East Asian Seas 36 Southwest Pacific 37 Southeast Pacific 37 Southwest Atlantic 38 East Africa 38 Conclusions 38 THE SOUTH CHINA SEA: EVOLUTION OF THE UNEP ACTION PLAN .41 The Background 41 The First UNEP Meeting of Experts 44 The ESCAP Regional Meeting on the Protection of the Marine Environment and Related Ecosystems 47 The Second UNEP Meeting of Experts 48 The Intergovernmental Meetings 49 iv OTHER RELEVANT REGIONAL DEVELOPMENTS 51 Conservation of Marine Species 51 Prevention and Control of Marine Pollution 54 NATIONAL RESPONSES 56 Introduction 56 Conservation of Marine Species 57 Prevention and Control of Marine Pollution 61 Coastal Zone Management 65 CONCLUSIONS 66 The Regional Level of Treatment 66 The Role of Regional Cooperation in the Protection and Conservation of the Marine Environment 68 The Role of Regional Arrangements in the Protection and Conservation of the South China Sea 69 Regional Organizations 71 Final Considerations 72 Conservation of Marine Species 74 Prevention and Control of Marine Pollution 76 Coastal Zone Management 77 NOTES 79 V FOREWORD Changing national perceptions of the ocean are resulting in the unilateral extension of national claims to ownership of resources in the seabed and the watercolumn up to 200 nmi from national baselines. Nevertheless, many ma• rine resources such as fish, oil, and environmental quality are transnational in distribution; the ocean, a continuous fluid system, transmits environmental pollutants and their impacts; and maritime activities such as scientific re• search, fishing, oil and gas exploration, and transportation often transcend the new national marine jurisdictional boundaries. Management policies for these national zones of extended jurisdiction may be developed and implemented with insufficient scientific and technical understanding of the transnational character of the ocean environment. Such policies may thus produce an in• crease in international tensions, misunderstandings, and conflicts concerning marine activities, resources, and environmental quality. These issues form the conceptual framework for the EWEAPI Program Ma• rine Environment and Extended Maritime Jurisdictions: Transnational En• vironment and Resource Management in Southeast Asian Seas. The goals of the project are to provide an independent, informal forum for the specific identification and exchange of views on evolving East-West ocean manage• ment issues and to undertake subsequent research designed to provide a knowledge base to aid in the international understanding of these issues. In a semienclosed sea like the South China Sea, entirely encompassed by ex• tended jurisdictional claims, some aspects of marine environmental manage• ment must be approached on an integrated, or at least a coordinated regional basis. Scientific, legal, and policy approaches to regional environmental pro• tection have been formulated by States bordering other semienclosed seas such as the Baltic, the North Sea, and the Mediterranean. The South China Sea region, however, differs from these other regions in its political, economic, and natural environmental characteristics. The sea is surrounded by some ten mostly small, physically adjacent national entities— two are archipelagos, two more are water-separated States and others in part comprise peninsulas. Disputed claims to islands and their attendant jurisdic• tional zones encompass most of the South China Sea. All the nations are devel• oping economies with little available financial resources or inclination towards environmental protection if it means retardation of development. The entire region is tropical monsoonal with tropical organisms and ecosystems; much of the sea is underlain by a shallow continental shelf over which surface currents reverse direction twice each year, limiting their cleansing action. Given these unique circumstances, it was considered useful to critically ex• amine the approaches to regional environmental management used in other VI regions and to suggest how these approaches might be adapted to the natural economic and political circumstances pertaining in the South China Sea. The Project was fortunate to attract Douglas Johnston, Professor of Law, School of Law, Dalhousie University, to undertake this examination. Dr. MarkJ. Valencia Program Coordinator V vii PREFACE This monograph begins by presenting a global context for the description and evaluation of Southeast Asian efforts to establish cooperative arrange• ments for the environmental management of the South China Sea. Special emphasis is given to the evolution of the Action Plan for the Protection and Development of the Marine Environment and Coastal Areas of the East Asian Region, and to the role of the five ASEAN countries in that undertaking. The legislative developments directed to these
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