Marine Environmental Protection Along the Maritime Silk Road: Prospects and Challenges

By Jay Batongbacal and Catherine S. Panaguiton

Introduction

China’s proposed Maritime Silk Road seeks to establish a sea-based maritime economic highway linking the major port areas of the Eurasian continent. On the upside, such a highway provides for a hemisphere of maritime economic opportunities. On the other hand, establishing and maintaining such a maritime highway, through continuous maritime commercial activity, is certain to increase the pressures and risks of adverse environmental impacts along the coastal and offshore areas of transit.

Fortunately, these risks could be manageable. There is an existing international framework, established through IMO and global environmental instruments that attempt to protect the marine environment from the negative effects of shipping activities. It could not be overemphasised that Environmental Sustainability is critical to stability and economic growth and development. While implementing measures to further maritime economic development in the Maritime Silk Road initiative, it is absolutely necessary to ensure the protection of the marine environment. Thus, it may be beneficial to pay close attention to this international framework in the discussion of said initiative.

The Maritime Silk Road As A Marine Environmental Protection (MEP) Cooperation Area

There are very good ideal reasons to think of the Maritime Silk Road as a maritime cooperation area. Evidently, there will be multiple users from different states in this area, which is a common resource pool of all maritime trading states. The differing regional and global interests that exist in this area necessitate the acknowledgment of common concerns and protection of common interests. Further, actual or potential disputes between coastal and/or user state call for cooperation to ensure stability in areas covered. Cooperation is therefore key to pre-empt and/or address issues that may arise due to the above differences in order to further realise the creation of a workable harmonious relationship with states involved, as this initiative progresses.

Even if it appears though that treating the Maritime Silk Road as a maritime cooperation area is the reasonable way to approach the said initiative, when it comes to marine environmental protection, this remains to be a major challenge. The primary reason for this is that there are very real reasons for competition between states that are to be involved in this initiative. Competition over markets that share a common economic base may pose some challenges to maritime cooperation in the Maritime Silk Road.

Lexmond provides one of the reasons behind such debacle,

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“States are often reluctant to undertake measures for environmental protection as they fear economic detriment should their regional neighbours continue with the offending activity or fail to take equivalent action.” 1

In addition, the diversity of states and interests involved, with varying cultures and laws, may hinder cooperation.

Further, the economic principle of maximisation of gain by states (and stakeholders) involved, combined with no strong imperatives to share under international law, may also be an impediment to said cooperation. In the establishment of marine protected areas in the South China Sea, Hai Dang Vu illustrates this principle. Specifically, the author notes that:

“Restrictions on activities due to the designation of new MPAs in general may

meet with the protests from people working in at least three sectors, namely fisheries, oil and gas and shipping. XXX

Except the city-state of Singapore, all coastal countries have active oil and gas fields in the SCS, some of which have contributed substantially to the overall

national production of relevant energy. As for marine shipping, it was explained

earlier that the SCS is one of the busiest searoutes in the world, where one quarter of the world’s merchandise and half of the world’s oil have been transported

through. (See Wilkinson et al., supra note 89 at 20 and Zhang Xuegang, “Southeast

Asia and Energy: Gateway to Stability” (2007) 3:2 China Security 18 at 19.)

For this reason, the establishment of MPAs in the SCS could potentially meet with

strong protests from fishermen, oil and gas companies and ship operators and have little support from governments if they limit those activities.”2

In the same vein, such a challenge may likewise apply in the establishment of the Maritime Silk Road as a maritime cooperation area.

MEP Cooperation: A Recurring Dream?

Notwithstanding the inherent difficulties though, multiple attempts to cooperate in maritime environment protection along the Maritime Silk Road have been well-documented. Several papers have already come out to discuss these attempts. Briefly, Lyons states that:

“In Southeast Asia, the (only) hard law applicable throughout the regions’ seas flows from international treaties ratified by all States, namely UNCLOS (except Cambodia) and the CBD. These constitute the legal framework for the large and diverse number of marine management programs and initiatives focusing on a few species, a coast or sea area or a polluting activity. (Coastal States generally appear to prefer an ‘Asian way’ focused on regional cooperative mechanisms for the implementation of international instruments on environmental protection (Koh K.L.

1 Lexmond, Shelley. “Review of Instruments and Mechanisms For Strengthening Marine Environmental Cooperation In the South China Sea” [online] available from <http://iwlearn.net/iw-projects/885/evaluations/South-China-Sea-Project-Final-Report.pdf> , at 22.2 Ibid.

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and N.A. Robinson (2002) Strenghtening sustainable development in regional intergovernmental governance: lessons from the ‘ASEAN Way’, Singapore Journal of International and Comparative Law, 6:640-682) Such initiatives or programmes are often coupled with substantial investments and engagement by international organizations (particularly UNEP and UNDP) and non-governmental organizations as well as national public entities acting at local or national level. Some also involve private entities, such as members of the oil and gas industry. XXX ”3

In addition, Lexmond notes that in terms of maritime environmental protection in the South China Sea,

“Cooperation in the South China Sea takes place under the auspices of international and regional bodies and programmes, with ASEAN, COBSEA, the South China Sea Project and PEMSEA being the major actors at present. There are no legally binding regional instruments, although several action plans and numerous declarations have been adopted. XXX”4

Despite the difficulties, it is still encouraging to see that various cooperation projects have already been attempted, implemented or concluded successfully along the proposed site of the Maritime Silk Road. The examples of such efforts are the following:

Partnerships for Environment Management in The Seas of East Asia (PEMSEA): Sustainable Development Strategy for the Seas of East Asia

United Nations Environment Programme (UNEP) Regional Seas Programme: Reversing Environmental Degradation Trends in the Gulf of Thailand and South China Sea

Tokyo Memorandum of Understanding on Port State Control

These cooperative activities have taken place due to the recognition of shared problems among all coastal states in the region, and by the practical demands of maritime activities, such as shipping and maritime trade, that have occurred in this part of the world throughout history.

3 Lyons, Youna “Marine Biodiversity in SouthEast Asia: An International Law Guide for Marine Researchers”, Centre for International Law, National University of Singapore <http://poseidon01.ssrn.com/delivery.php?ID=894066006095122115070097086115099092118059041019064065110101081089025124007099064121110039062059057028033083024092003122106122108038036022041025096114109029117000087042026042080115017113006075088110114083024083010104001093004024100100071014120020012107&EXT=p>4 Lexmond above n 1.

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Figure 1. Projection of existing maritime trade routes

Further, the Maritime Silk Road Initiative, while relatively new in terms of its concept, scope and purpose, is also relatively old in terms of its location and linkages. The Maritime Silk Road is sure to take advantage of existing maritime trade routes, shown vividly in the above Figure 1, as blue streaks crisscrossing the seas. Such a road will therefore make much more active and intensive use of most of the maritime areas around the Asian continent.

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Figure 2. Projection of maritime trade routes and territorial and jurisdictional zones

As seen in Figure 2, however, these trade routes also criss-cross multiple

territorial and jurisdictional zones recognized in international law. This indicates that the diverse maritime interests of the coastal states along the Maritime Silk Road are sure to be affected one way or another.

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Figure 3. Differing colours show the varying degrees of risks of impacts brought by human activities (largely, by shipping activities) on the marine environment

Figure 3 is based on the assessment of the cumulative risks of adverse impacts of human activities on the marine environment. Areas in red indicate those indicate those areas that are subjected to the highest risks of impacts such as marine pollution; areas in orange and dark yellow are areas of lesser still significant risks; and those in light yellow are of still lesser degrees. Much of these impacts are due to shipping.

As this initiative progresses, more intensive maritime traffic can be expected and will therefore result in increased risks of adverse impact to the environment. An increase in maritime trade is thus likely to result in coastal states becoming much more aware and sensitive to these risks. Such heightened awareness and concerns in this initiative can be best addressed by cooperation in maritime environmental protection through the existing legal framework.

MEP Cooperation Modalities

The task at hand all seems daunting. However, one must be reminded that at the onset, cooperation does not have to be complicated, neither does it need to be complete and comprehensive. It can start from the small things; even basic, lower-level cooperation such as information exchange5 may already be helpful.

From initial cooperation, activities may progressively move on to more coordinated and complex endeavors, such as capacity-building, human resource development and exchange of personnel, thereafter, graduating into coordinated

5 May apply to non-ratified agreements.

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regulation of the maritime sectors; and perhaps in the future, into active and reciprocal enforcement and compliance with internationally-agreed rules.6

From coordinated, reciprocal activities, parties may then move on to joint activities and exercises, including enforcement of obligations, until a region-wide and area-based framework for regulation can be established for the purpose of protecting the marine environment commonly used by all.

As previously mentioned, from lower level cooperation activities, efforts ought to be made to realise the higher goal of escalating cooperation efforts to the regional level along the Maritime Silk Road-which is much stronger in terms of ensuring maritime environmental cooperation. This regional cooperation can be realised if the countries concerned were to accede to/ ratify existing maritime conventions that protect the maritime environment from the adverse impacts of shipping. Unfortunately, there is no uniformity in this across the entire region at the present.

As an illustration, a closer look at the states whereby the maritime distribution centres of the Maritime Silk Road are slated to be located at and the conventions by which they are or are not a party to, reveals significant gaps on ratifications of key conventions on MEP.

6 Whereby Sectoral regulation: i.e. common standards applied within jurisdictions is done by either the flag state or the private sector.

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Figure 4. Map highlighting MSR Maritime Distribution Centres7

7 East By Southeast website (online) available from <http://www.eastbysoutheast.com/wp-content/uploads/2014/11/SMDC-map.jpg> (24 February 2015)

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Figure 5. Summary Table of Ratification Status of MSR Maritime Distribution Centre States (First Part)

Figure 6. Summary Table of Ratification Status of MSR Maritime Distribution Centre States (Second Part)

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Figure 7. Table depicting the Acronyms used for the Conventions stated in above Figures 5 and 6 and the Full Title of the Conventions

Figures 5 and 6 indicate, at least partially, which maritime conventions currently have little or no support from the states whereby the Maritime Distribution Centres in the MSR are located in. Clearly, there is still room for further efforts to effect more participation from states in these conventions, especially in the areas of marine pollution prevention. Universal acceptance of these conventions by all the coastal states along the Maritime Silk Road is a very important first step in promoting cooperation.

But from the foregoing, at least it appears that it is possible that despite differences; some conventions have in fact gained wider acceptance as shown in Figures 4 and 5. Regardless of their issues, states largely involved in the MSR have clearly identified key areas of common concern, by virtue of their accession to some of these maritime conventions.

Of course, there is still a long way to go. There are still many other important agreements that the same states could and should be acceding to and implementing. Perhaps, steps toward regional conformity with these international standards and frameworks could even contribute to better understanding and relations between them.

Possible Take-Off Points

It is proposed that maritime cooperation along the Maritime Silk Road be promoted on the basis of the conventions that have already gained acceptance among most of the maritime states. The most basic and important of these agreements are the following: the SOLAS8, MARPOL9, BASEL CONVENTION10, CLC11 AND IOPC12, RAMSAR CONVENTION13, UNESCO WHC14, CBD15 AND UNFCCC16.

The SOLAS and the MARPOL both deal with regional standardization. On top of that, SOLAS likewise centres on enforcement. Further, the Basel Convention, CLC and IOPC, Ramsar Convention, and UNESCO WHC are concerned with capacity building and information exchange. The CBD concentrates on coordination of 8 The International Convention for the Safety of Life at Sea9 Marine Pollution, 1973 and 1978.10 The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal11 Convention on Civil Liability for Oil Pollution Damage12 International Oil Pollution Compensation Funds13 The Convention on Wetlands 14 United Nations Educational, Scientific, and Cultural Organization-World Heritage Convention15 The Convention on Biological Diversity16 The United Nations Framework Convention on Climate Change

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measures and information exchange. The Ramsar Convention also goes into the topic of coordination of measures. The UNFCCC focuses on documentation and investigation.

Current Challenges

One must have no illusions that what is proposed will be easy. The greatest challenge that the Maritime Silk Road faces is the level of suspicion and distrust, especially among the more important maritime states along the proposed route, and certain measures17, given the political climate, may be unlikely to build confidence at the present time.

But these should not be considered as insurmountable; and all the more do they give reason for efforts to be undertaken immediately to promote understanding and cooperation.

As an approach to the issue at hand, it may be then be more practicable to consider maritime cooperation along the Maritime Silk Road based on coordinating efforts to address marine environmental protection- including the exchange of information and personnel necessary to carry it out; as opposed to an area-based focus- which will bring up territorial and jurisdictional issues.

Certain measures appear more feasible, i.e. the coordinated efforts and the exchange of information/personnel.

And instead of the uniformed services that may be more difficult to organise in terms of active cooperation at sea, the private sector industry would be the best conduit through which such cooperation should be promoted. This is to avoid any possible connection between the Maritime Silk Road and the disputes, especially in the South China and East China Seas. The need for states to act “without prejudice” has to likewise be addressed.

17 Joint designation of a specific area, no matter how environmentally sound on disputed areas; Unilateral regulation by state agents within disputed areas.

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In addition, it appears that the best and most feasible route for cooperation to ensure marine environment protection must be the universal acceptance and application within the region of the global agreements concerning marine environmental protection. Since they implement global standards, they can be carried out without prejudice to any possible territorial or jurisdictional issues. They are also directed toward private activities and the private sector for the most part, and so there is no need to involve consideration of the various disputes in the concerned areas.

Most importantly, for the Maritime Silk Road initiative to work, commonly agreed and applied standards are needed among the participating states. Unilateral standards will not work and will only engender suspicion and hesitation. Global conventions immediately provide the basis for standards that are immediately acceptable to the international community at large, and thus, should not be subject to serious objections by the participating states.

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