Shall We Eat Tigers?

SUCH a great idea! This is how it would work; we would breed tigers in captivity, thousands of them. Then we would go into the jungle with big drag nets and catch every animal we could find as feed for the tigers. Some of these animals, big and small, would be thrown into the tigers while still reasonably fresh. Others could be ground up and cooked with other ingredients to be made into tiger-feed pellets. Actually, we would be better off grinding them up in this way because the fresh animal feed could introduce bacteria that increased the mortality rate at our tiger farm.

Of course, we would quickly run out of animals in our local jungle and would have to buy quite a lot from professional hunters who dragged nets through other jungles and forests. Also, tigers being what they are, we would have to feed anything from 5 to 15+ kilograms of squirrels, monkeys, tapirs, orangutans, sun bears, flying foxes etc. for every one kilogram of tiger meat we produced, but that doesn’t really matter because tiger meat is worth so much more in the marketplace than those other animals, many of which are ‘trash’ animals anyway.

Pity about the jungle habitat that we would destroy as trees and other foliage is ripped from the ground by our nets. And of course there are the folk who have sustainably relied for millennia on the jungle and the animals we are now throwing into our pens teeming with tigers, but that’s progress isn’t it? Time they moved on and got a job somewhere else anyway I suppose.

Sounds like a smashing idea doesn’t it! We would make a killing, if you will excuse the puns. Well, for a while anyway. Hopefully, long enough to get rich and move on.

Imagine, if you will, the hue and cry that would be heard around the world were a company to declare triumphally that they had established a business that bred and reared tigers in captivity for food. Imagine further how the clamour would be exacerbated if the company went into the wild jungle as I suggest above capturing animals and feeding them to the tigers.

Would any sane person argue that such a business model is a solution to future food insecurity? And yet, this is more or less what we are doing in the oceans.

Many people mistakenly believe that aquaculture is the equivalent of farming ruminants. That fish farming is like letting cows, sheep, goats etc. graze on grass to give us protein through their meat. However, in many respects this is incorrect, especially for those fish that are fed other fish.

Many of the marine fish bred and reared in aquaculture farms are upper trophic-level predators. Tuna is a carnivore hunter, like the tiger, and in the case of Pacific Bluefin Tuna, is becoming almost as rare.[1] But the Mediterranean Sea is littered with ‘tuna farms’ where tuna are fattened on wild-caught fish before being harvested for sashimi and sushi. FAO reports that, “Feed conversion ratios (FCR) are generally high around 15-20:1 for large specimens and 10-15:1 for smaller fish. Bluefin tuna maintain an unusually high body temperature and their constant movement implies a high energy demand. As a result only a small fraction (5 percent) of the total energy input is used for body growth.[2]

Now, I must admit that my description of tiger farming suffers from some limitations as an analogy for marine finfish aquaculture. For a start, fish species like groupers, barramundi (Asian sea bass) and salmon are not endangered or even threatened. But aquaculture operations using these fish do rely on large quantities of wild-caught fish, which are either fed directly to the farmed fish or turned into pellets containing fishmeal and fish oil.

Of course, an important driver for an increase in aquaculture production is the inability of wild-caught fish to meet human demand for fish protein. According to Steve Hall, Director General of World Fish Centre, “4.5 billion people get at least 15 percent of their average per capita intake of animal protein from fish”.[3]

In 2012, around 91.4 million metric tons of fish were caught globally from the wild; of this, approximately 11.6 million metric tons were caught from inland waters and 79.7 million metric tons were caught in marine fishing areas.[4] The volume of capture fish production has remained roughly the same since at least 2006.

Also in 2012, about 66.6 million metric tons of fish were produced through aquaculture.[5] Of this total, approximately 10 million metric tons were marine fish and diadromous fish that are fed fishmeal and fish oil-based aquafeed.[6] A substantial portion of freshwater aquaculture production also relies on fishmeal, e.g. tilapia.

As with the forests and jungles that would quickly empty of animals were we to drag nets through them to catch feed for tiger farms, so we are emptying the oceans in part to feed fish in aquaculture farms that often produce less fish than they use as feed. In 2012, a total of 16.3 million metric tons of fish were caught to produce fishmeal and fish oil.[7] The International Fishmeal and Fish Oil Organisation estimate that in 2010, the aquaculture industry utilized 73% of total fishmeal production. In the case of fish oil, the estimates are that 71% is used as aquafeed and 26% for human consumption.[8] Admittedly, not all of this production comes from whole fish; in 2012, about 35% of world fishmeal production was obtained from fish residues (by-products and waste rather than whole fish) but this still leaves around 10.5 million metric tons made from whole fish.[9]

Salmon farming in particular has a high demand for wild forage fish. One of the main attractions of salmon at market is the beneficial effects on health of salmon flesh containing omega-3 fatty acids. However, fish do not actually produce omega-3 fatty acids; rather, they accumulate them from either consuming microalgae that produce these fatty acids, e.g. as do herring and sardines, or, as is the case with fatty predatory fish like salmon, by eating prey fish that have accumulated omega-3 fatty acids from microalgae. To satisfy the requirement for fish that are rich in omega-3 fatty acid, more than 50 percent of the world fish oil production is fed to farmed salmon.

The by-catch of fishmeal and other fisheries is difficult to know but has been estimated globally to total about 27 million metric tons.[10] In January 2015, The New York Times reported Douglas J. McCauley, an ecologist at the University of California, Santa Barbara, as saying that “We may be sitting on a precipice of a major extinction event”.[11] In January 2015, researchers at the University of Sheffield UK released a report finding that “up to a quarter of the planet’s well-known marine species, from the Mediterranean monk seal to the Pondicherry shark, are in danger of being wiped out. This overturns the conventional scientific wisdom that marine species are far safer than others, by establishing that the risk is equally high. In each case, between 20 and 25 per cent of species are threatened with extinction”.[12]  

The Marine Fisheries Service of the US National Oceanic and Atmospheric Administration (NOAA) reports that, “Many commercial fish stocks reveal a pattern of declining populations. Recent trends indicate that about one-third of the resources on which fishers depend are overfished in the United States and worldwide... Without major changes in fishery management, FAO estimates that global landings will not be able to exceed current levels despite increased demand from growing populations, and could be reduced by as much as 25 percent”.[13]

The demand for marine predator fish is not going to disappear and be replaced by consumption only of herbivore fish. Therefore, if the pressure on wild caught fish is to be reduced and sufficient feed is to be available to meet the demand of future aquaculture, we must break the nexus between aquaculture output and the capture of wild fish as feed.

In recent decades, there has been extensive research on ingredients to replace fishmeal, but this research has tended to focus on sources of plant protein such as corn and soya. These crops are now used in some commercial aquaculture feeds. However, some species of fish, such as grouper (e.g. Epinephelus spp., Cromileptesaltivelis and Plectropomus spp.), and fish at certain life stages require high levels of protein and have low metabolic limits for carbohydrate.[14] In these instances, the incorporation of mainstream crops into fish feed has had less than optimal results.[15] In addition, many countries do not grow these mainstream crops and are therefore left in the undesirable position of having to import alternatives to fishmeal, which can be cost prohibitive.

I am currently Research Director of the ‘FishPLUS’ programme at Crops for the Future. In order to help address this problem, our researchers are working with partners around the world to identify fish feed ingredients from underutilised plant species such as Moringa (Moringa oleifera) and Bambara Groundnut (Vigna subterranea), and to explore how insects, such as Black Soldier Fly (Hermetia illucens) and Rhinoceros Beetle (Dynastinae), fed on plant species that can be grown locally might be incorporated into fish feed formulations. The research is at an early stage but holds considerable promise for the future of marine aquaculture as a sustainable source of protein. I am aware that similar work is being done at other institutions around the world, including University of Stirling UK, and universities and private companies in USA. For the sake of the oceans and the future well-being of people around the world, these efforts must succeed.

We can avoid the folly of eating tigers but we are already eating their marine equivalents. We critically need to find an alternative to dragging nets through the oceans to produce their feed.

Published in The Malaysian Insider, 19 July 2015

 

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[1] “Over the last four decades, the Atlantic Bluefin tuna has declined by at least 51% and is now listed as “Endangered”; while the Southern Bluefin tuna adult fish has experienced an 85% decline, resulting in its “Critically Endangered” status. The Pacific Bluefin tuna has also been listed as “Vulnerable” species.” WWF, See:  http://www.wwf.org.hk/en/whatwedo/footprint/seafood/sci/campaigns/bluefinsaver/threats/

[2] Ottolenghi, F. 2008. Capture-based aquaculture of Bluefin tuna. In A. Lovatelli and P.F. Holthus (eds). Capture-based aquaculture. Global overview. FAO Fisheries Technical Paper. No. 508. Rome, FAO. pp. 169–182.

[3] See http://www.seafoodsource.com/news/aquaculture/28195-worldfish-discusses-climate-change-impact-on-aquaculture

[4] World Capture Production, see ftp://ftp.fao.org/FI/STAT/summary/a1a.pdf

[5] World fisheries production, by capture and aquaculture, by country (2012). See, ftp://ftp.fao.org/FI/STAT/summary/a-0a.pdf

[6] Seafish, The Global Picture – World Aquaculture, See http://www.seafish.org/media/publications/SeafishSummary_WorldAquaculture_Globalpicture_201208.pdf

[7]  FAO: The State of World Fisheries and Aquaculture 2014 (244 pages)  http://www.fao.org/3/a-i3720e.pdf

[8] Seafish, ‘The Global Picture – Fishmeal Production’ June 2014, see: http://www.seafish.org/media/publications/seafshsummary_fishmealglobalpicture_201406.pdf

[9] Loc. cit.

[10] NRC By-catch Database reported at FAO, http://www.fao.org/docrep/003/t4890e/t4890e03.htm

[11] Zimmer, C., ‘Ocean Life Faces Mass Extinction, Broad Study Says’, The New York Times, 15 January 2015. See, http://www.nytimes.com/2015/01/16/science/earth/study-raises-alarm-for-health-of-ocean-life.html

[12] As reported in  ‘A quarter of the world’s marine species in danger of extinction’, The Independent, 30 January 2015, see: http://www.independent.co.uk/environment/a-quarter-of-the-worlds-marine-species-in-danger-of-extinction-10014624.html

[13] Hourigan, T.F., ‘Conserving Ocean Biodiversity: Trends and Challenges’, Trends and Future Challenges for U.S. National Ocean and Coastal Policy. See: http://oceanservice.noaa.gov/websites/retiredsites/natdia_pdf/7hourigan.pdf

[14] Tuan, L.A.; Williams, K.C. Optimum dietary protein and lipid specifications for juvenile malabar grouper (Epinephelus malabaricus). Aquaculture, v.267, p.129‑138, 2007.

[15] J. Wood, Project Funding Submission, Crops for the Future, 2014, unpublished.

Indonesia Needs Room to Manoeuvre

The Australian Government has asked Indonesia to spare the lives of convicted drug smugglers Andrew Chan and Myuran Sukumaran. The two Australians are currently on death row, convicted of smuggling heroin at the resort island of Bali. On what grounds should the lives of these criminals be spared?

Well, apart from arguments in mitigation citing good conduct and apparent repentance whilst in prison, the appeals for clemency appear to turn on four points: 1) Australia believes that state-sanctioned execution is barbaric and should not be done; 2) the individuals concerned are Australian citizens, 3) the Australian people will generally be upset if the two men are killed and this could pressure the Australian government to cool relations with Indonesia, and 4) other governments will dismiss as hypocrisy any future call for Indonesians to be spared the death penalty in foreign countries.

Are any of these arguments likely to prevail? No, they are not.

Indeed, any slim chance of leniency was diminished considerably by the comments of Australian Prime Minister, Tony Abbott, in reminding Indonesia of the one billion dollars given by Australia as tsunami aid. If the Australian Government wanted to limit the options of President Joko Widodo, known as Jokowi, essentially tying his hands on this issue, their loud and insistent ‘diplomacy’ could not have done a better job.

Standing rock solid against Australia’s opposition to capital punishment is Indonesia’s determined, “anti-colonial” resistance to “interference” in their judicial processes and their unwavering assertion of sovereign independence. Last month, Indonesia executed six convicted drug traffickers — five of them foreigners from Brazil, Malawi, the Netherlands, Nigeria and Vietnam — by firing squad. President Jokowi has said that he intends to show no mercy in his war on drugs, which he claims are killing up to 50 Indonesians a day.

Two weeks ago, the Guardian newspaper reported that Indonesia’s foreign minister, Retno Marsudi, stressed that application of the death penalty is in accordance with due process, “The death penalty is part of the law of Indonesia,” she said. “It is implemented as a last resort for the most serious of crimes. The decision is taken by our judicial system, which is independent and impartial.” Marsudi also said that Indonesia’s fight against drugs had entered a “critical stage” and that drugs had “ruined the lives of many hardworking Indonesians”.

However, Rafendi Djamin, who represents Indonesia on the ASEAN Intergovernmental Commission on Human Rights, argues that official corruption is part of Indonesia's drug problem. That corruption, he adds, also raises the possibility of fatal miscarriages of justice when the death penalty is applied, "There are very serious flaws in our judiciary. We are still working on it. And with this flawed judiciary, you believe you are not, you know, killing the wrong people? This is the tragedy of our society now."

Presumably, Indonesian President Jokowi, Foreign Minister Retno Marsudi, and the Attorney General, Muhammad Prasetyo, all know this, and yet Indonesia’s Attorney General declared on Friday that “nothing whatsoever” could stop the execution of Andrew Chan and Myuran Sukumaran from going ahead, promising they would face the firing squad as soon as possible. Why?

Perhaps to answer this question we need to examine the political situation in Indonesia. President Jokowi enjoys popular support but is possibly the politically weakest post-Suharto president. He is not in control of his own party, and his ruling coalition does not control a majority in parliament. At present, President Jokowi's Indonesian Democratic Party of Struggle, or PDI-P, along with its four smaller allies, have about 44% of the seats. In October 2014, his opposition in the Presidential elections, Lieutenant General (Rtd) Prabowo's coalition used a change to the law and its parliamentary majority to install its own man as speaker. It then took control of all of parliament's influential committees.

In such circumstances, any weakness shown by Jokowi or suggestion that he kowtowed to Canberra over the fate of the drug smugglers would be detrimental to his political standing.

The death penalty for drug smuggling is reportedly popular in Indonesia. Also, Indonesian public sentiment has shown very little tolerance to external ‘interference’. Put simply, President Jokowi cannot afford to meet the Australian request on this issue. He would lose too much face and so would Indonesia.

Presumably, the Australian Government, teeming with SE Asian ‘experts’ would know this. Why then pursue such an approach? The louder Australia appeals and more insistent it becomes, the less the Indonesian President is able to agree. We might conclude that the Australian rhetoric is directed primarily at a domestic Australian audience.

However, Jakarta has sent a typically Javanese message to Canberra that it would prefer not to let this issue lead to a serious rift. A spokesman for Indonesia’s Attorney General said that transfer of the Australian prisoners to Nusa Kambangan for execution had been delayed because the prison is not yet ready. The seemingly inevitable has been postponed probably until next month.

If the Australian Government genuinely cares for the fate of its two imprisoned citizens, perhaps a new and completely different strategy is needed. An Asian approach would be for the Prime Minister to declare publicly that Australia “respects Indonesian sovereignty” and “the independence of the Indonesian judiciary”. Whilst Australia and Indonesia disagree on the use of capital punishment, Australia would “never seek to interfere in the internal affairs of its close and dearly valued neighbour and friend”.

He might then proceed to request that consideration be given to examining the premise behind the death penalties to test whether indeed there is any evidence anywhere in the world that the death penalty actually reduces the incidence of drug-related crime. Australia would be honoured to provide financial support for such a study, which could be undertaken by Indonesian experts with the assistance of the ASEAN Secretariat or Asian Development Bank. Indonesia and many other countries would benefit greatly from such a study.

In private, the Australian Prime Minister could also explain that as an act of friendship and with no conditions attached, Australia would be humbled and deeply grateful were the execution of its citizens and others on death row for drug crimes to be postponed until completion of the study.

This would possibly, just possibly open the door for Indonesia to make up its own mind on this question without any hecklers in the gallery trying to force their hand. Sadly, too many words may already have been spoken in public for such an option. But at least this approach might give the Indonesian President room to manoeuvre without loss of face for himself or his country.

Published in The Malaysian Insider, 23 February 2015

Law of the Sea or Law of the Jungle?

My thanks to Juita Ramli for her insightful contribution to this piece.

Recently, I was invited to Hong Kong to participate in a discussion with eminent scholars on the topic of fisheries management in the South China Sea.

In order to broaden our perspective, a dear friend and highly respected Chinese professor kindly talked us through Chinese claims in the South China Sea. Her summary of the salient issues accurately captured the thrust of the arguments put forcefully and frequently in the public domain by government officials and commentators of the People’s Republic of China.

It also helped to explain actions such as the lodging of a complaint by China this week with the United States over a surveillance aircraft that flew over parts of the disputed South China Sea. Chinese Foreign Ministry spokeswoman, Hua Chunying, was reported to have said on Monday, "Freedom of navigation and overflight by no means mean that foreign countries' warships and military aircraft can ignore the legitimate rights of other countries as well as the safety of aviation and navigation."[1]

However, in hearing these arguments yet again in Hong Kong, I was struck by the most telling obstacle to resolution of contending claims in the South China Sea; namely, that seemingly creative, convenient interpretations and distortions of international law are used to support these claims, sometimes in the context of ambiguous guidance from vague wording of the United Nations Convention on the Law of the Sea 1982 (LOSC).

In November 1967, Dr. Arvid Pardo of Malta made a speech in the General Assembly of the United Nations calling for demilitarization of the seabed and recognition of its resources as “the common heritage of mankind”.[2] This seminal speech began a process that led to the third UN Conference on the Law of the Sea (UNCLOS III) and eventually to the LOSC.[3] UNCLOS III involved over 150 States in negotiations that spanned a period of more than 14 years.[4] In the Preamble to the LOSC, these States declared, amongst other things, that they desired “to settle … all issues relating to the law of the sea” and wished to establish “a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment.”[5] China and other South China Sea claimant States were active participants in UNCLOS III, often at the head of the Group of 77 developing countries.[6]

UNCLOS III was an ambitious endeavour; it was the first time that the community of nations had come together to establish a comprehensive global order of law for the seas and oceans. They succeeded in part by navigating around issues that threatened to sink the process with language in certain crucial areas that allows ambiguous interpretation or by remaining silent on some contentious topics. The use of voting was set aside in favour of achieving consensus. Nevertheless, the LOSC provides many unequivocal international rules that appear to be under challenge now through the arguments and conduct of States in the South China Sea.

For example, certain claimant States stubbornly cling to a misunderstanding or deliberate misrepresentation of the relationship between land and maritime sovereignty. Land sovereignty gives rise to maritime sovereignty and sovereign rights; it does not work the other way around. However, we frequently see language suggesting otherwise, e.g. "Brunei claims at least two islands which are situated in its exclusive economic zone."[7] If indeed the features are "islands" and not "rocks which cannot sustain human habitation or economic life of their own" (LOSC Art 121), and Brunei enjoys sovereignty over the islands, then by definition, they must lie within Brunei's EEZ because they give rise to that EEZ along with territorial sea, contiguous zone and continental shelf "determined in accordance with the provisions of [the LOSC] applicable to other land territory" (LOSC Art 121[2]).

Equally, we are frequently told that "China's and Taiwan's claims within the 'U-shaped dotted lines' in the South China Sea overlap to varying degrees with claims to EEZ and continental shelf areas made by (...other coastal States)".[8] For China or Taiwan to enjoy maritime sovereignty or sovereign rights in the South China Sea, they are required to demonstrate the legitimacy and effectiveness of sovereignty over land adjacent to, or situated in (i.e. at least as "islands") the South China Sea. There is no international legal principle that I know of to support a general claim of sovereignty or sovereign rights over an area of sea that in some way gives rise to entitlement over land. And yet, such discourse is repeated over and again as if it enjoys merit under international law.

Some academic papers also purport to make a case of ‘historic title’ and acquiescence to the ‘dotted line’ claim by South East Asian states, often newly emerging with weak institutions from colonialism and the ravages of war, with whom such maps and claims were not formally lodged. I am reminded in this regard of the comedy play by Douglas Adams, 'The Hitch-hiker's Guide to the Galaxy', where the Captain of a Vogon planet-demolition spacecraft that is about to destroy Earth says, "There's no point in acting all surprised about it. All the planning charts and demolition orders have been on display at your local planning department in Alpha Centauri for fifty of your Earth years so you've had plenty of time to lodge any formal complaints and it's far too late to start making a fuss about it now."

In addition, principles of historic title that apply to sovereignty over land appear to be extended without qualification to areas of ocean space, with LOSC Article 15 distorted to discount a requirement first to establish that a claimant State in a territorial sea boundary delineation process actually has sovereignty over land giving rise to a territorial sea at all.[9] Spheres of influence, whether at land or sea sit more comfortably with principles of 'suzerainty' than with the modern legal principle of 'sovereignty'.

China and the other claimant States of the South China Sea have ratified the LOSC. Article 309 of the LOSC states, “No reservations or exceptions may be made to this Convention unless expressly permitted by other articles of this Convention.” In other words, the LOSC is a “package deal”, it’s all or nothing. States cannot ‘cherry pick’ the rights and obligations of the LOSC that they find convenient or advantageous. This is reinforced by Art 310 that provides, “Article 309 does not preclude a State, when signing, ratifying or acceding to this Convention, from making declarations or statements, however phrased or named, with a view, inter alia, to the harmonization of its laws and regulations with the provisions of this Convention, provided that such declarations or statements do not purport to exclude or to modify the legal effect of the provisions of this Convention in their application to that State” (emphasis added).

If indeed China is confident of arguments under the principle of ‘historic title’ – and we must allow that a comprehensive case on South China Sea sovereignty has neither been put nor decided upon by any international juridical body – why would it not agree to allow a ruling on the question of sovereignty over claimed islands in the South China Sea by the International Court of Justice (ICJ)? With such questions resolved, the delineation of maritime boundaries in the South China Sea could proceed with greater clarity through the processes and rules provided in the LOSC.

Also, discussion of the Spratly and Paracel group of islands, reefs and cays is often coined in terms of them being "archipelagos" (which of course they certainly are called in Mandarin, ie. 'qundao' - [群岛 pronounced 'choondow']). Technically, an argument based on historical usage of the term 'archipelago' might perhaps be attempted, especially with reference to the Chinese names of Xisha Qundao  (西沙群岛 pronounced “c-sha choondow”, ie,  western archipelago) and Nansha Qundao (南沙群岛 southern archipelago).

Setting aside the contentious issue of which features in these areas actually satisfy the criteria of being an island, the LOSC Art 46(b) stipulates that an archipelago means "a group of islands, including parts of islands, inter-connecting waters and other natural features which are so closely inter-related that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such."

However, the concern in accepting a description of the two groups as "archipelagos" is the possible confusion that arises when connecting baselines are claimed between such features that resemble "archipelagic baselines", e.g. those claimed by China in its Territorial Sea Law (May 1996) for the Paracel Islands (Xisha Qundao). These land and reef features do not satisfy the ratio of water to land area required for the application of archipelagic baselines by LOSC Art 47(1). Moreover, such groups are clearly not "a fringe of islands along the coast in its immediate vicinity" as they would need to be to allow the use of "straight baselines" (LOSC Art 7). Therefore, we are left unclear as to the claimed status under international law of the Paracel Islands' connecting baselines, and thus also the waters contained within them. A legitimate concern might be that usage of the term "archipelago" subtly conditions opinion in a manner that paves the way for application to the Spratly Group of connecting baselines similar to those already claimed for the Paracel group. The potential consequences for the maritime sovereignty and sovereign rights of other littoral States to the South China Sea of any such future claim by China would be significant and worrying indeed.

Often, in general reporting and even academic discussions, satisfaction of three criteria is said to be necessary for a Spratly feature to be accepted as an island, i.e. "size, human habitation and economic life".[10] The LOSC Art 121 does not directly stipulate a criterion of size, but certainly supports the latter requirements of an ability to sustain human habitation and economic life of their own for an island to generate an EEZ or continental shelf. However, the LOSC also states explicitly that an island is "a naturally formed area of land, surrounded by water, which is above water at high tide" (emphasis added). Certain drying reefs and other shallow-water features of the Spratly Group have been built up by claimant States in such a way that they now remain above water at high tide and are inhabited. Natural materials such as rock and coral pieces have been used to raise the 'islands'; thus, should we consider whether they are "naturally formed"? The extent to which such features might in the future give rise to claimed maritime sovereign rights remains to be seen.

Finally in this all too brief review of such a complex and comprehensive issue, I note the frequent assertion by China that "direct bilateral consultation and negotiation" appears to be preferred by South China Sea claimant States, and especially China, to resolve disputes. Indeed, China has steadfastly rejected third-party involvement, including judicial settlement, good office, mediation, conciliation, or multilateral negotiation.

From a realpolitik perspective, such a policy is eminently sensible for China, which is much stronger by any measurable criteria than any of the other claimant States. However, noting the important international legal principle of pacta tertiis nec nocent nec prosunt, (essentially meaning that a treaty or agreement cannot be binding, impose obligations or affect the rights of non-parties to that treaty), and the express prohibition in the LOSC of bilateral agreements that affect “the enjoyment by other States Parties of their rights or the performance of their obligations” (Art 311[3]), one is left wondering to what extent bilaterally negotiated agreements can resolve disputes that involve the interests, claims and rights of multiple parties.

The question of sovereignty, sovereign rights and jurisdiction in the South China Sea is a difficult topic. The overall impression left by reflection on the issues at hand is the importance of clarity in international law and discipline in application of that law. To this end, progress may depend as much on decisions made by bodies such as multilateral treaty Conferences of Parties (COPs) (or States Parties to LOSC), ICJ and the International Tribunal of the Law of the Sea (ITLOS) as it will upon the immediate outcome of negotiations between the claimant States.

To the extent that State practice in the South China Sea by virtue of precedent holds the potential to undermine the delicately crafted rule of international law over the seas and oceans of the world, the international community has a right to participate in this debate.

The choice is stark. Either we respect and preserve the international legal regime of the LOSC that was negotiated over many years and that established a codified law for the first time in human history over the seas; or we abandon this law in favour of the rule of power and assertion. Indeed, the choice threatens to become one of ‘law of the sea’ or ‘law of the jungle’.

In that context, we would do well to remember one final article from the LOSC; Article 301 stipulates, “In exercising their rights and performing their duties under this Convention, States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations.”

[1] ‘China lodges complaint with U.S. over spy plane flight’ (Beijing: Reuters, 25 May 2015) See: http://www.reuters.com/article/2015/05/25/us-southchinasea-china-usa-complaint-idUSKBN0OA0DY20150525
[2] UN Doc. A/C.1/PV.1515(1967)
[3] United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 21 I.L.M.  1261 (hereafter cited as LOSC). The text is reprinted in The Law of the Sea: Official Text of the United Nations Convention on the Law of the Sea, with Annexes and Index (New York: United Nations, 1983), 1-157.
[4] B. Zuleta, ‘Introduction’ in Law of the Sea. ixx.
[5] LOSC, Preamble
[6] “The Group of 77 (G-77) was established on 15 June 1964 by seventy-seven developing countries signatories of the “Joint Declaration of the Seventy-Seven Developing Countries” issued at the end of the first session of the United Nations Conference on Trade and Development (UNCTAD) in Geneva.” See: http://www.g77.org/doc/. Accessed 27 May 2015.
[7]  Jianwei Li and Ramses Amer, ‘Recent Practice in Dispute Management in the South China Sea’. Paper discussed at Maritime Energy Resources In Asia conference, August 5-7, 2010, Ho Chi Minh City.
[8] Loc. cit.
[9] Li Jinming & Li Dexia (2003) ‘The Dotted Line on the Chinese Map of the South China Sea: A Note’, Ocean Development & International Law, 34:3-4, 287-295
[10] Loc. cit.