On the Illegality of the Designation of“Nam Yet Island Marine Protected Area”by Vietnam: Also on the Construction of a Cooperation Mechanism for Marine Environmental Protection in the South China Sea

CUI Haoran

Abstract: In May 2010, the Vietnamese government approved the plan to establish the “Nam Yet Island Marine Protected Area” in the waters adjacent to China "s Nansha Islands. This act sabotaged China "s sovereignty and breached many principles of international law. A bundle of evidences suggests that the planning of this marine protected area (MPA) was not made for the purpose of protecting marine environment; rather, it is a step Vietnam took to “legalize” its occupation of the “Nam Yet Island”. The “Nam Yet Island MPA”, in essence, is a political tool Vietnam employed to declare its “sovereignty” over the island. The South China Sea (SCS) faces a serious risk of ecological environment deterioration. However,marine environmental protection is a systematic project that requires interstate cooperation. The States bordering the SCS have reached a consensus with respect to the cooperation on protecting the ecological environment. These States should set aside their disputes and create a bilateral or multilateral cooperation mechanism for environmental protection in the region, by drawing experiences from the cooperation models designed for other semi-enclosed seas. Such a mechanism should neither undermine the eあorts of SCS littoral States to resolve their disputes over the sovereignty of some islands or to delimit their maritime boundaries through negotiations, nor should it prejudice the claims made by these States in the SCS.

Key Words: “Nam Yet Island Marine Protected Area”; Illegality; Environmental protection; Cooperation mechanism

Given that the establishment of marine protected areas (MPAs) has the function to reinforce or expand a State "s control and jurisdiction over relevant sea areas, creating MPAs within national jurisdiction has gradually become a universal practice in the international community. This phenomenon was reported as a “new ocean enclosure movement” by the media.1QIU Jun, The Emerging “New Ocean Enclosure Movement”, at http://www.oceanol.com/A State generally will not,due to obscure jurisdiction, set up MPAs to exercise rights in the waters where there are sovereignty disputes over the islands concerned, or in waters whose boundaries have not been defined. In May 2010, the Vietnamese Prime Minister Nguyen Tan Dung issued Decision No. 742/QĐ-TTg Approving the Planning of Marine Protected Areas System by 2020, hereinafter referred to as “Decision No.742/QĐ-TTg”.2In accordance with the Decision, Vietnam will set up 16 MPAs by 2020. Of the 16 MPAs, the “Nam Yet Island Marine Protected Area” (“Nam Yet Island MPA”) illegally designated in the waters around China "s Nansha Islands has attracted little attention. Since China is focusing its attention on oあshore oil and gas exploitation and military activities in the South China Sea (SCS), not enough attention is devoted to other important aspects.3At present, most articles drafted by Chinese scholars on regional environmental protection and fishery cooperation in the South China Sea (SCS) have invoked the international conventions concluded by the States neighboring the SCS, including Vietnam. Such scholars propose that the littoral States should build regional cooperation mechanisms in the SCS on the basis of international conventions. However, the MPAs of Vietnam are only mentioned sporadically in some scholars " research. For example, WU Yong, in his master dissertation entitled “Study on System of Marine Protected Area in the South China Sea” (Master Dissertation, Hainan University, 2014), introduced Decision No. 57 of the Vietnamese government on MPAs dated 2008, and highlighted the “three-level management mechanism” of MPAs in Vietnam; however, possibly due to the limitation of space, WU did not elaborate on the laws relevant to MPAs in Vietnam. LIU Dan, in her paper Diきculties for Cooperating on Marine Environmental Protection in the South China Sea and Their Solutions: Also a Refutation of the Philippines " Claims in the South China Sea Arbitration (Foreign Aあairs Review, No. 5, 2017), notes that Vietnam, the Philippines,Malaysia, Indonesia and Brunei, which have disputes with China over maritime features in the SCS, have all created protected zones or reserves relating to the seas. Failing to notice the planning of the “Nam Yet Island MPA”, Dr. LIU assumes that the MPAs of ASEAN member States are not located in the “disputed waters” of the SCS. She holds that a State "s unilateral establishment of MPAs in the “disputed waters” of the SCS, without due regard to the overall environmental interests of all the States in the region, will not benefit regional cooperation on marine environmental protection. Dr. SHI Yubing, in his paper titled“Building a Regional Cooperative Mechanism for the Coastal Countries in the South China Sea: A Perspective of Legislation and Enforcement in the Reduction of Greenhouse Gas Emissions from International Shipping” (Humanities & Social Sciences Journal of Hainan University, No. 2, 2018), argues that the establishment of MPAs in the disputed waters of the SCS is a kind of low-sensitive environmental cooperation closely related to the sovereignty and legal status of some maritime features. The nature of the sea areas involved in such cooperation is a major problem troubling all parties. Dr. SHI holds that in the legislative and law enforcement eあorts to reduce greenhouse gas emission from international shipping,SCS littoral States should give priority to cooperation on environmental protection which has little to do with the sovereignty and legal status of maritime features.Nonetheless, Vietnam "s planning of the MPA has given rise to a host of questions: Is it legally eあective for a State,before the resolution of sovereignty disputes over some relevant islands and the delimitation of maritime boundaries, to unilaterally set up an MPA and exercise jurisdiction over it? Can such a behavior constitute the basis to support a State "s claim of sovereignty? How should the marine environment in the disputed waters of SCS be protected? Bearing these questions in mind, this paper, by referring to the United Nations Convention on the Law of the Sea (UNCLOS) and other pertinent international laws, examines the illegality of the designation of “Nam Yet Island MPA”, and then explores the approach to building a cooperation mechanism to help protect marine environment in the SCS.

I. Basic Information about the “Nam Yet Island MPA”

“Nam Yet Island”, or Hongxiu Island as the Chinese call it, is a small oval-shaped island in Zhenghe Reefs of Nansha Islands in the south. Being approximately 12 nautical miles (nm) to the south of Taiping Island, and about 6.5 nm to the southeast of Nanxun Reefs, it is 740 meters in length and 140 meters in width, covering an area of 0.08 km2. This island was first discovered and named by China. In 1935, the Committee of Reviewing Water and Land Maps of the Republic of China named the island “Nanyi”. Some foreign books recorded the island as “Namyit Island”. According to academic research, “Namyit” as recorded by foreigners, actually originated from “Nanyi”, the name used for the island by Chinese fishermen in Hainan dialect.4HAN Zhenhua, Historical and Geographical Evidences of the South China Sea Islands,Hong Kong: Centre of Asian Studies, the University of Hong Kong, 2003, p. 14. (in Chinese)Later, in memory of YANG Hongxiu, vicecaptain ofZhongyewarship sent by the Chinese government to recover Nansha Islands,Nanhai Zhudao Weizhi Tu(Location Map of South China Sea Islands),which was published by the government of the Republic of China in 1947, named the island Hongxiu Island. In 1983, the Committee on Geographical Names of the People "s Republic of China published the standard names for some islands in the SCS, where the island maintained its name of “Hongxiu”. In 1975 when the process of reunification of the South and the North began, Vietnam took the occasion and occupied six maritime features of China "s Nansha Islands, including Hongxiu Island. Vietnam then renamed this island “Nam Yet Island”, where it built lighthouses, watchtowers and other facilities, and deployed military forces.5Foreign Troops on South China Sea Islands: Vietnamese Army Is the Strongest, Which Will Defend Two Islands to Death, and the Philippine Army is the Weakest, at http://war.163.com/14/1217/08/ADLFA60P00014OVF.html, 14 November 2018. (in Chinese)In 2007, Vietnam “placed” the island under the jurisdiction of “Truong Sa county”(Nansha Islands was called “Truong Sa archipelago” by the Vietnamese) of Khanh Hoa Province.

On 17 February 2009, the Philippine Congress passed Republic Act No.9522 (Baseline Law). The Act illegally included into the Philippines " territory China "s Huangyan Island and some insular features of Nansha Islands. Both the Chinese and the Vietnamese Ministries of Foreign Affairs issued statements opposing the Philippines " inclusion of these features. On 6 May 2009, Vietnam and Malaysia jointly submitted to the United Nations Commission on the Limits of the Continental Shelf, hereinafter called “CLCS”, information on the limits of the continental shelf beyond 200 nm from the baselines from which the breadth of the territorial sea is measured in respect of the southern part of the SCS,attempting to bypass China and take advantage of the power of the United Nations to “legitimize” its claims of rights in the SCS. On 7 May of the same year, Vietnam separately submitted to the CLCS information on the limits of the continental shelf beyond 200 nm from the baselines from which the breadth of the territorial sea is measured in respect of the northern part of the SCS.6Submission to the Commission on the Limits of the Continental Shelf Pursuant to Article 76, Paragraph 8 of the United Nations Convention on the Law of the Sea 1982, Partial Submission in Respect of Vietnam "s Extended Continental Shelf: North Area (VNM-N),7 May 2009, at http://www.un.org/Depts/los/clcs_new/submissions_files/submission_vnm_37_2009.htm, 14 November 2018.Vietnam "s Submissions were temporarily suspended only after China submitted notes to the Secretary-General of the United Nations, requesting the CLCS not to consider the aforementioned“Submissions” in accordance with the relevant provisions.7According to the Rules of Procedure of the United Nations Commission on the Limits of the Continental Shelf, in cases where a land or maritime dispute exists, the Commission shall not consider and qualify a submission made by any of the States concerned in the dispute.Since then, Vietnam has not given up its eあorts in this regard, but looking for other ways to “legalize”its occupation of some features, including through domestic legislation and administrative regulations.

MPA is regarded as a new tool to manage the oceans by coastal States. With the establishment of MPAs, a State may restrict the activities of other States by developing corresponding control measures, and may further strengthen its own capacity to control relevant sea areas. The MPA that Vietnam planned to create in the SCS encircles “Nam Yet Island”. The Vietnamese authorities have, on many occasions, reiterated that the MPA had legal eあect on “the protection of national territorial sovereignty and marine resources”.8“Nam Yet” - the Largest Marine Protected Area in Vietnam, at http://baobinhphuoc.com.vn/Content/nam-yet---khu-bao-ton-bien-lon-nhat-cua-viet-nam-54615, 15 November 2018. (in Vietnamese)To put it another way, setting up an MPA in the waters adjacent to an occupied feature is a new way that Vietnam is using to “legitimize” its occupation of such features.

According to Vietnam "s plan, the total area of the MPA encircling “Nam Yet Island” is 350 km2, of which the ocean area is 200 km2. It will be the largest MPA in Vietnam if it is duly “established” in the future. Containing rich wildlife resources and coral reefs, the “Nam Yet Island” and its surrounding waters serve as a major habitat for fish and other marine species in the SCS.9Hongxiu Island and its adjacent waters are the birthplace of many marine species in the SCS. Being rich in wildlife resources, this sea area contains 185 types of phytoplankton,307 types of zooplankton, 86 types of algae, 2 types of seaweed, 225 types of marine sedentary organisms, 414 species of coral reef fish, and 2 types of turtles. It also has 246 types of coral reefs, including 222 types of stony corals, 13 types of soft corals, 9 types of horn corals and 2 types of blue corals, as well as the extremely rare red corals. Marine species such as lobsters, abalone, giant clams, sea cucumbers, nautilus, green turtles,hawksbill turtles are also widely distributed in this sea area. There are 19 kinds of terrestrial plants on the island, including plants aging almost 100 years or more. See “Nam Yet” - the Largest Marine Protected Area in Vietnam, at http://baobinhphuoc.com.vn/Content/namyet---khu-bao-ton-bien-lon-nhat-cua-viet-nam-54615, 15 November 2018. (in Vietnamese)In 2012, the People "s Committee of Khanh Hoa Province submitted a document to the Ministry of Agriculture and Rural Development of Vietnam, asking for permission to set up the “Nam Yet Island MPA”. The committee also formulated a plan for the implementation of the MPA, which, however, has not been made public so far.Vietnam developed its plan for the establishment of “Nam Yet Island MPA”,together with other MPAs lying within national jurisdiction, in the same document(Decision No. 742/QĐ-TTg). All the MPAs listed in the document, except the “Nam Yet Island MPA”, have been set up and put into operation under the plan. This exceptional MPA only stays at the planning stage, and no information has been updated about its follow-up work.

II. Illegality of Vietnam "s Designation of the “Nam Yet Island MPA”

A. Vietnam Has Infringed China "s Territorial Sovereignty

The designation of an MPA is subject to the sovereignty of a State over the area concerned. If Vietnam does not have the sovereignty of the “Nam Yet Island”,how can it exercise the sovereign rights over the waters adjacent to the island through the enacting of government orders? China "s long history of practice in the SCS proved that China is the first to have discovered, exploited and managed the Nansha Islands, and has, in line with the principle of “occupation” on international law, acquired the territorial sovereignty over the group of islands. Following the end of the Second World War, China recovered and resumed the exercise of sovereignty over the SCS Islands which had been illegally occupied by Japan during its war of aggression against China. To strengthen the administration over the SCS Islands, the Chinese government, in 1947, reviewed and updated the geographical names of the islands in the SCS, compiledNanhai Zhudao Dili Zhilüe(A Brief Account of the Geography of the South China Sea Islands), and drewNanhai Zhudao Weizhi Tu(Location Map of the South China Sea Islands) on which the dotted line is marked. This map was oきcially published and made known to the world by the Chinese government in February 1948.

Vietnam is quite conscious of China "s claims of rights in the SCS. Before the reunification of the North and South Vietnam in 1976, Vietnam had no sovereignty disputes with China over the SCS Islands. At that time, Vietnam officially recognized Xisha and Nansha Islands as part of China "s territory. This position was ref l ected in its government statements and notes as well as its newspapers, maps and textbooks.10The evidences that Vietnam explicitly recognized China "s sovereignty over the Xisha and Nansha Islands include: On 15 June 1956, Vice-Foreign Minister Un Van Khiem of the Democratic Republic of Vietnam received LI Zhimin, Chargé d " Aあaires ad interim of the Chinese Embassy in Vietnam, and told him that, “according to Vietnamese data, the Xisha and Nansha Islands are historically part of Chinese territory”. Le Loc, Acting Director of the Asian Department of the Vietnamese Foreign Ministry was present and specifically cited Vietnamese data and pointed out that “judging from history, these islands were already part of China at the time of the Song dynasty”. On 4 September 1958, the Chinese government issued a declaration, stating that the breadth of the territorial waters of the People "s Republic of China shall be 12 nautical miles and making it clear that “this provision applies to all the territories of the People "s Republic of China, including ... the Xisha Islands”. On 6 September, Nhan Dan, the oきcial newspaper of the Central Committee of Vietnamese Workers " Party, published on its front page the full text of the Chinese government "s declaration regarding China "s territorial sea. On 14 September, Premier Pham Van Dong of the government of Vietnam sent a diplomatic note to Premier ZHOU Enlai of the State Council of China, solemnly stating that “the government of the Democratic Republic of Vietnam recognizes and supports the declaration of the government of the People "s Republic of China on its decision concerning China "s territorial sea made on 4 September 1958” and “the government of the Democratic Republic of Vietnam respects this decision”.On 9 May 1965, the government of the Democratic Republic of Vietnam issued a statement with reference to the designation by the US government of the “combat zone” of the U.S.armed forces in Vietnam. It says, “US President Lyndon Johnson designated the whole of Vietnam, and the adjacent waters which extend roughly 100 miles from the coast of Vietnam and part of the territorial waters of the People "s Republic of China in its Xisha Islands as ‘combat zone " of the United States armed forces”, which “is in direct threat to the security of the Democratic Republic of Vietnam and its neighbors.” The World Atlas printed in May 1972 by the Bureau of Survey and Cartography under the Oきce of the Premier of Vietnam designated the Xisha Islands by their Chinese names. The geography textbook for ninth graders published by Vietnam "s Educational Press in 1974 carried in it a lesson entitled “The People "s Republic of China”. It reads, “The chain of islands from the Nansha and Xisha Islands to Hainan Island, Taiwan Island, the Penghu Islands and the Zhoushan Islands ... is shaped like a bow and constitutes a ‘Great Wall " defending the Chinese mainland.” See HAN Zhenhua ed., Compilation of Historical Data on the South China Sea Islands, Beijing: The Oriental Press, 1988, pp. 542～569 (in Chinese); The Operation of the HYSY 981 Drilling Rig: Vietnam "s Provocation and China "s Position, at http://www.fmprc.gov.cn/nanhai/chn/snhwtlcwj/t1163255.htm, 14 November 2018. (in Chinese)Vietnam "s current position towards the SCS is fundamentally different from its previous one. Notably, Vietnam "s designation of the “Nam Yet Island MPA” is based on its illegal occupation of China "s Hongxiu Island. In accordance with international law, illegal occupation certainly does not constitute a law-backed jurisdictional claim, which is a basic norm of international law. In that case, Vietnam "s designation of the “Nam Yet Island MPA” is an obvious violation of China "s territorial sovereignty, and therefore not legally eあective. It cannot serve as a basis for Vietnam "s claim of sovereignty.

B. Vietnam Has Violated the Principle of UNCLOS Article 300 on Performance of Treaty Obligations in Good Faith

Even regardless of Sino-Vietnamese disputes over the Nansha Islands,Vietnam "s unilateral “designation” of the MPA,per se, breached the relevant provisions of the UNCLOS. Vietnam claimed that it planned the MPAs in accordance with its rights conferred by the UNCLOS, which in Part XII provides for each State "s obligation to protect and preserve the marine environment.Particularly, Article 194 stipulates that coastal States may take the measures including “those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.” Such measures, as generally agreed, should include the establishment of MPAs. However, UNCLOS Article 300 articulates that:

States Parties shall fulfill in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right.

This provision implies that when coastal States plan to set up MPAs in accordance with the pertinent provisions of the UNCLOS, they shall be established for the purpose of “protecting and preserving the marine environment”. In fact, Article 300 embodies the principle of “performance of treaty obligations in good faith”,which is an essential principle of international law. Article 26 of the 1969 Vienna Convention on the Law of Treaties expresses the principle as such: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”11Vienna Convention on the Law of the Treaty, at http://www.fmprc.gov.cn/web/ziliao_674904/tytj_674911/tyfg_674913/t83909.shtml, 14 November 2018. (in Chinese)A State "s circumvention of international obligations and exercise of actions contrary to the purposes and aims of a right itself is an abuse of the right and violation of the principle of good faith.12Myron H. Nordquist and Shabtai Rosenne, United Nations Convention on the Law of the Sea, 1982: A Commentary, Leiden: Marinus Nijhoあ Publishers, 1995, p. 152.

In theChagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Mauritius requested the Arbitral Tribunal to decide that the MPA established by the United Kingdom was in violation of UNCLOS Article 300.Mauritius claimed that the real purpose for the UK "s creation of the MPA was not to protect the marine environment, but to exclude the lawful rights of Mauritius in that sea area. In the proceedings on the merits, the Tribunal concluded that the UK had violated its obligations under the UNCLOS with respect to the declaration of the MPA, given the lack of due regard to Mauritius "s lawful rights, such as the right to fishing in the waters around the Chagos Islands, non-performance of its commitments to Mauritius in good faith, and absence of sufficient information provided to Mauritius concerning the establishment of the MPA.13Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award, 18 March 2015, paras. 536 & 541, at https://files.pca-cpa.org/pcadocs/MU-UK%2020150318%20 Award.pdf, 14 November 2018.In the Dissenting and Concurring Opinion jointly submitted by Judge James Kateka and Judge Rüdiger Wolfrum to the Tribunal,14Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Dissenting and Concurring Opinion, 18 March 2015, pp. 21～22, at https://pcacases.com/web/sendAttach/1570, 14 November 2018.the two judges asserted that the UK concealed its real purpose to set up the MPA, which derogated from the principle of good faith.

Vietnam declared the planning of the “Nam Yet Island MPA” for the purpose of excluding China "s legal rights in the area, instead of protecting the marine environment. In order to cement its illegal “occupation” of some features of the Nansha Islands and “safeguard” its unlawful gains, the Vietnamese government has, over years, taken a number of preferential and incentive measures to encourage Vietnamese fishermen to go fishing in the waters adjacent to the Nansha Islands; fishermen who have been punished by Chinese authorities could even get“compensated” by the Vietnamese government. These measures are regarded as an important part of Vietnam "s eあorts to “declare its sovereignty” over these illegally occupied features.15Master Plan on Fisheries Development of Vietnam to 2020, Vision to 2030, at http://asemconnectvietnam.gov.vn/default.aspx?ZID1=14&ID8=30446&ID1=2, 14 November 2018.Article 5 of the newly revised Fisheries Law of Vietnam (2017)provides for the principles of fishery activities. Among them, the first principle is that “fishery activities shall maintain a close integration with national defense and security”.16Fisheries Law of Vietnam (Revised Draft of 2017), Article 5, at https://thuvienphapluat.vn/van-ban/Tai-nguyen-Moi-truong/Luat-Thuy-san-338490.aspx, 15 November 2018. (in Vietnamese)For the purpose of implementing the “national defense at sea” strategy,Vietnam put great efforts into building its paramilitary forces, such as maritime militia; specifically, it assigned maritime militias to fishing vessels operating in the SCS, and these vessels, forming a large fl eet, enter and leave the SCS together.Such operations, actually, have interfered with the normal activities conducted by the fishermen of other States in this sea area. In each summer closed fishing season, when China suspends fishing in the SCS for the sake of conserving fishery resources, the Vietnamese government, contrarily, encourages its fishermen to operate as usual in the disputed waters, and guides them to set up fl eets of fishing boats and dispatches military vessels to escort them at sea, preventing China from enforcing the moratorium.17Objections to China "s Issuance of Fishing Moratorium in the South China Sea, at https://www.vietnamplus.vn/phan-doi-trung-quoc-ban-hanh-quy-che-cam-danh-bat-ca-tren-biendong/494098.vnp, 15 November 2018. (in Vietnamese)It should be noted that many Vietnamese fishermen used illegal fishing methods, including “blast fishing” to harvest fish in the SCS,resulting in great ecological damages. Nevertheless, the Vietnamese government, in most cases, turned a blind eye to such illegal activities.18In recent years, it has been repeatedly reported that Vietnamese fishermen were detained by Chinese law enforcement authorities for illegally blasting fish in waters near China "s SCS Islands. “Blast fishing”, being an illegal fishing method, is quite destructive to the environment. When this fishing method is used, fish, large or small, would all be killed in the sea. Fishermen, in most cases, only keep the species with more weight and higher economic value, leaving a lot of small-size, low economic value ones “dead on the sea”.This method ultimately leads to unsustainable replenishment of fishery resources. See The Vietnamese Fishermen Detained for Intruding into Chinese Territorial Waters Have Received Humanitarian Care from Chinese Side, at http://www.chinanews.com/gn/2012/03-27/3777188.shtml, 14 November 2018. (in Chinese)These behaviors obviously go against the purpose of conserving biological resources and protecting marine environment. All in all, Vietnam "s efforts to seek certain political end under the guise of protecting environment and conserving biological resources have distorted the original intention of establishing MPAs, which thus constitutes a violation of the principle of “good faith”.

C. Vietnam Has Violated Its Consensus with China to Jointly Protect the SCS Ecological Environment

China and Vietnam signed an agreement on basic principles guiding the settlement of maritime issues existing between the two countries in October 2011.The agreement explicitly states that the two parties shall proceed from strategic and holistic perspectives to address and resolve maritime issues gradually, through friendly consultations and tackling the simple issues first.19The Agreement on Basic Principles Guiding the Settlement of Maritime Issues between the People "s Republic of China and the Socialist Republic of Vietnam, at http://www.chinanews.com/gn/2011/10-12/3382401.shtml, 14 November 2018. (in Chinese)The agreement further stipulates that the two States should actively promote cooperation in low-sensitive areas, including marine environmental protection and scientific research. These provisions indicate that China and Vietnam have reached a consensus concerning their cooperation on environmental protection in the SCS; it is therefore appropriate and right to resolve environmental issues in this region through consultations and cooperation.

Establishing MPAs in waters surrounding islands whose sovereignty are in dispute would not, in fact, have the effect of protecting marine environment; it may instead amplify the existing disputes. The above-mentionedChagos Marine Protected Area Arbitrationis a perfect example in this case. On 1 April 2010, the UK Foreign and Commonwealth Office (FCO) announced the establishment of the world "s largest MPA in the waters adjacent to the Chagos Islands in the Indian Ocean, covering all the waters extending 200 nm from the Chagos Islands. The UK declared that the measure was a further demonstration of how the UK took its international environmental responsibilities seriously. Commercial fishing and deep-sea mining would be banned within the MPA. However, Mauritius contended that the UK was not entitled to establish an MPA in the waters surrounding Chagos Islands, since Mauritius (not the UK) had the sovereignty over the archipelago.In this context, Mauritius requested the constitution of an arbitration tribunal to arbitrate their disputes in accordance with UNCLOS Article 287 and Annex VII.20Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award, 18 March 2015, at https://files.pca-cpa.org/pcadocs/MU-UK%2020150318%20Award.pdf, 14 November 2018.On 18 March 2015, the Tribunal delivered its award, declaring that the UK "s unilateral announcement of the establishment of an MPA around the Chagos Islands violated relevant provisions of the UNCLOS. The Tribunal held that the UK was obliged to consult Mauritius when establishing the MPA. To put it another way, no matter which party had the sovereignty over this group of islands, both parties were obligated to negotiate and cooperate with each other on relevant issues; otherwise conflicts could possibly arise. In this regard, a Vietnamese scholar once noted that: “Vietnam "s unilateral planning of the ‘Nam Yet Island MPA " oあ the Nansha Islands is highly likely to be met with protests from China and the Philippines,which would spark fresh controversies.”21Vu Hai Dang, Marine Protected Areas Network in the South China Sea: Charting a Course for Future Cooperation, Boston: Martinus Nijhoあ Publishers, 2014, p. 191; Aldo Chircop, Regional Cooperation in Marine Environmental Protection in the South China Sea: A Ref l ection on New Directions for Marine Conservation, Ocean Development and International Law, Vol. 41, Issue 4, 2010, p. 349.A State "s unilateral creation of MPAs in the waters of the SCS, without considering the overall environmental interests of all the adjacent States, would possibly ruin the whole picture of their cooperation on marine environmental protection in the region. This is not only applicable to Vietnam, but also to all disputant States in the SCS.

III. Necessity and Feasibility of Cooperation among SCS Littoral States in Protecting the Marine Environment in the Region

A. The Holistic Nature of the Marine Environment and the Deterioration of the Ecological Environment in the SCS

Due to the holistic nature of the marine environment, marine environmental pollution differs from land or air pollution. Once the oceans are contaminated,the contamination would spread widely across many countries and regions,causing long-standing effects. In addition, marine pollution seriously endangers biodiversity. For example, the obvious degradation of coral reefs in the SCS poses a big threat to ecological security. Coral reefs, covering less than 0.1% of the world "s ocean surface, provide habitat for nearly 30% of marine species. They are also crucial to protecting coastal communities, since they provide a natural “buあer”against hurricanes and rising sea levels, and 275 million people worldwide directly depend on them for food and sustenance.22Marine Plastics: A New Threat to Coral Reefs, at https://www.unenvironment.org/zh-hans/news-and-stories/gushi/haiyangsuliaoduishanhujiaogouchengxinweixie, 14 November 2018.(in Chinese)However, the SCS is facing a fairly grim scenario, considering that it has lost 80% of its coral reefs and 73% of its mangrove since the 1970s.23Restoration of Seriously Degraded Coral Reefs in the South China Sea through Aあorestation of the Seabed of 100 Mu, at http://tech.sina.com.cn/d/n/2017-10-27/doc-ifynfvar4390743.shtml, 14 November 2018. (in Chinese)

Most of the SCS littoral States are rapidly industrializing themselves at the moment, with their coastal areas having a higher degree of economic development.Nonetheless, marine pollution has become increasingly acute as large amounts of waste water and solid wastes arising from intensive population and industry are being dumped into the oceans. In the SCS, common phenomena, such as overfishing, oil and gas exploitation, ship pollution and land reclamation, are causing serious damage to the ecosystem. The UNEP/GEF South China Sea Project pointed out the three major environmental problems facing the SCS: (a)the loss and degradation of coastal habitats; (b) over-exploitation of marine living resources; and (c) land-based pollution.24The UNEP/GEF South China Sea Project, at http://www.unepscs.org/Project_Background.html, 14 November 2018.The grave environmental degradation in the SCS requires all the littoral States to cooperate with each other and take the measures necessary to protect the marine environment.

B. Obligations of Cooperation for States Bordering a Semi-Enclosed Sea under the UNCLOS

The SCS is a semi-enclosed sea. UNCLOS Article 123 mandates that States bordering an enclosed or semi-enclosed sea should: cooperate with each other in the exercise of their rights and in the performance of their duties under this Convention; coordinate the management, conservation, exploration and exploitation of the living resources of the sea; and coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment. Scholars, both home and abroad, have also proposed that SCS littoral States should, in accordance with their obligations under the UNCLOS,implement regional cooperation on environmental protection in the SCS, including establishing a fishery cooperation mechanism.25Prof. Kuenchen FU argues that the States bordering the SCS should, on the basis of his“three-tier” theory concerning the legal status of the SCS, cooperate on the management of the fishery resources in the region. He also proposes the possible approach to and basic principles for the establishment of a mechanism for regional cooperation on fishery resources management. For the research about the cooperation on marine environmental protection in the SCS, please see Kuen-chen FU, A Study on Regional Cooperation on Fishery Resources Conservation and Management in the South China Sea, China Oceans Law Review, No. 1, 2005, pp. 314～340; ZHANG Xiangjun, On Framing a Legal Regime for Marine Environmental Protection through Regional Cooperation in the South China Sea, China Oceans Law Review, No. 1, 2011, pp. 180～203; LIU Dan, Difficulties for Cooperating on Marine Environmental Protection in the South China Sea and Their Solutions: Also a Refutation of the Philippines " Claims in the South China Sea Arbitration,Foreign Affairs Review, No. 5, 2017, pp. 113～140 (in Chinese); REN Hongtao, On the Conf l ict and Coordination of the Jurisdiction of the Marine Environmental Protection in the South China Sea, Hebei Law Science, No. 8, 2016, pp. 118～119 (in Chinese); NTA Hu,Semi-enclosed Troubled Waters: A New Thinking on the Application of the 1982 UNCLOS Article 123 to the South China Sea, Ocean Development and International Law, Vol. 41,No. 3, 2010, pp. 281～314; Hai-Dang Vu, A Bilateral Network of Marine Protected Areas between Vietnam and China: An Alternative to the Chinese Unilateral Fishing Ban in the South China Sea?, Ocean Development and International Law, Vol. 44, No. 2, 2013, pp.145～169; Aldo Chircop, Regional Cooperation in Marine Environmental Protection in the South China Sea: A Reflection on New Directions for Marine Conservation, Ocean Development and International Law, Vol. 41, Issue 4, 2010, p. 349; Christopher Linebaugh,Joint Development in a Semi-enclosed Sea: China " s Duty to Cooperate in Developing the Natural Resources of South China Sea, Columbia Journal of Transnational Law, Vol. 52,No. 2, 2014, pp. 542～568.

Despite their disputes over island sovereignty and maritime delimitation, the States surrounding the SCS are not incapable of collaborating on the conservation of living resources and the protection of the marine environment. Actually, the UNCLOS fully supports such cooperation. UNCLOS Article 74(3) and Article 83(3) provide that, pending agreement on delimitation, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature, and such arrangements shall be without prejudice to the final delimitation.26It is argued that the obligations under UNCLOS Article 63(1) and Articles 74(3)/83(3) are not mutually exclusive. State practice has clearly demonstrated that fisheries cooperation can meet the objectives of conserving and developing fish stocks. The benefit of a fisheries arrangement in the SCS is evident. When the prospect for joint development of oil and gas in the SCS remains elusive, fisheries arrangement is a suitable provisional arrangement,given the low-profile character of fisheries cooperation. See Thang Nguyen Dang, Fisheries Cooperation in the South China Sea and the (Ir)relevance of the Sovereignty Question,Asian Journal of International Law, Vol. 2, No. 1, 2012, pp. 59～88.UNCLOS Article 63(1) stipulates that where straddling stocks occur within the exclusive economic zones of two or more coastal States, these States shall seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary to coordinate and ensure the conservation and development of such stocks. Notably,given that all the commercial fish species in the SCS are straddling stocks, an eあective mechanism for regional fishery resources conservation and management could be established only when all neighboring States cooperate with each other.

C. Feasibility of Cooperation among States Bordering the SCS in Protecting the Marine Environment

Given that the majority of the SCS littoral States are members of the Association of South East Asian Nations (ASEAN), an association which has achieved much and played a critical role in the field of marine environmental protection, the multilateral cooperation in the SCS could be carried out under the framework of China-ASEAN cooperation. Before building such a multilateral cooperation mechanism on environmental protection, we should first examine the feasibility of cooperation among these States in the SCS.

We will start from the perspective of ASEAN. This association began to pay attention to the protection of marine environment since its creation. Indonesia,Malaysia, the Philippines, Singapore and Thailand adopted, in 1981, the Action Plan for the Protection and Development of the Marine and Coastal Areas of the East Asian Region prepared by the United Nations Environment Programme(UNEP). By 1994, five countries, including Australia, Cambodia, China, South Korea and Vietnam, had joined the programme, and their cooperation covered the entire SCS. Then, in 2008, UNEP developed the Strategic Action Programme for the South China Sea,27United Nations Environment Programme, Strategic Action Programme for the South China Sea, at http://www.unepscs.org/remository/Download/20_-_Strategic_Action_Programme_for_the_South_China_Sea/Strategic_Action_Programme_Document/Strategic_Action_Programme_for_the_South_China_Sea.html, 14 November 2018.which covers all the States neighboring the SCS and focuses on issues such as the source and consequences of marine pollution. The ASEAN Ministerial Meeting on the Environment has adopted successively since 1994,a series of binding documents including, among others, ASEAN Environmental Education Action Plan, Jakarta Resolution on Sustainable Development, and ASEAN Vision 2020. An institutional framework of ASEAN environmental cooperation took its initial shape. ASEAN also set up the Working Group on Coastal and Marine Environment to manage and coordinate marine environmental affairs. In recent years, ASEAN could be said to have gradually established and improved the integrated management system of the regional oあshore waters, and have accomplished much in the areas such as protection of ecological reserves,and management of eco-tourism, coastal marshes and coastal degradation, and marine wastes.28ASEAN: To Explore the Ways to Survive, Develop and Protect the Marine Environment, at http://www.cafs.ac.cn/info/1053/25097.htm, 14 November 2018. (in Chinese)These experiences can provide useful insights into the cooperation between ASEAN and China. In addition, the ASEAN Socio-Cultural Community Blueprint 2025, released at the end of 2015, emphasizes cooperation not only among ASEAN member States, but also with other States in the region in the fields of marine environmental protection and biodiversity conservation, marine scientific research and technology transfer, sustainable exploitation of marine resources and collective response to marine threats.29The ASEAN Secretariat Jakarta, The ASEAN Socio-Cultural Community Blueprint 2025,March 2016, p. 11.

Second, on the part of China, the State Oceanic Administration (SOA)of China issued the document entitled “The Framework Plan for International Cooperation for the South China Sea and Its Adjacent Oceans” in 2012 and 2016, respectively.30State Oceanic Administration (SOA) Issued The Framework Plan for International Cooperation for the South China Sea and Its Adjacent Oceans, at http://www.soa.gov.cn/xw/dfdwdt/jgbm_155/201611/t20161108_53692.html, 14 November 2018. (in Chinese)Cooperation under the plan encompasses, among others,marine and climate change, marine environmental protection, marine ecosystem and biodiversity, marine resources exploration and exploitation, marine disaster prevention and mitigation, regional oceanographic studies, and marine policy and management. The National Development and Reform Commission (NDRC) and the SOA of China jointly issued, in 2017, the Vision for Maritime Cooperation under the Belt and Road Initiative. According to the document, the Chinese government will use the new concept of green development to guide maritime cooperation under the “Belt and Road Initiative”; it will further international cooperation with States along the Maritime Silk Road in the areas including, marine ecological protection and restoration, marine endangered species protection, prevention and control of marine environmental pollution and ocean acidification, red tide monitoring, and developing response measures to climate change and blue carbon sink, and it will provide technical and financial assistance to such efforts.31The Interpretation of the Vision for Maritime Cooperation under the Belt and Road Initiative by SOA Director General WANG Hong, at http://www.soa.gov.cn/xw/ztbd/ztbd_2017/gjhyj21sczl/gzbs/201706/t20170621_56620.html, 14 November 2018. (in Chinese)Since 2015, China "s Sansha Municipal Government has raised more than 500 million yuan to carry out projects for treating waste and sewage and desalinizing seawater on all the islands or reefs under its jurisdiction, and to implement ecological restoration projects on Zhaoshu Island, Lingyang Reef and other insular features.32Sansha: The Change from Decentralized to Centralized Waste Treatment Made a Big Diあerence in the Sanitary Environment of the Islands and Reefs Concerned, at http://www.hinews.cn/news/system/2016/11/13/030822168.shtml, 14 November 2018. (in Chinese)

Finally, both bilateral and multilateral agreements between China and ASEAN member States have expressed their support for practical maritime cooperation.In July 2016, China and ASEAN jointly published the Joint Statement of the Foreign Ministers of ASEAN Member States and China on the Full and Eあective Implementation of the Declaration on the Conduct of Parties in the South China Sea. The Parties reaffirmed that they may “explore or undertake cooperative activities, in fields such as navigation safety, search and rescue, marine scientific research, environmental protection, and combating transnational crimes at sea.”33Joint Statement of the Foreign Ministers of ASEAN Member States and China on the Full and Effective Implementation of the Declaration on the Conduct of Parties in the South China Sea, at http://www.fmprc.gov.cn/ce/ceat/chn/zgyw/t1384157.htm, 14 November 2018. (in Chinese)In order to eあectively implement the Declaration on the Conduct of Parties in the South China Sea (DOC), China initiated in 2011 the establishment of three special technical committees, respectively, on marine scientific research and environmental protection, navigation safety and search and rescue, and combat of transnational crimes at sea. In the same year, China established the China-ASEAN Maritime Cooperation Fund to promote cooperation among SCS littoral States on maritime search and rescue, marine scientific research and environmental protection, as well as other domains.34WEN Jiabao: China Will Set up a China-ASEAN Maritime Cooperation Fund of Three Billion Yuan, at http://www.chinanews.com/gn/2011/11-18/3470532.shtml, 14 November 2018. (in Chinese)At present, China is negotiating and consulting with ASEAN member States regarding the Code of Conduct in the South China Sea (COC).Aiming to preserve the spirit embodied by the DOC, negotiations on the COC will be directed towards the creation of a long-term mechanism for cooperation on marine environmental protection.

IV. The Approach to Building a Mechanism for Cooperation on Marine Environmental Protection in the South China Sea

A. Bilateral Mode

1. Experiences of Fisheries Cooperation in Beibu Gulf

Considering the deterioration of the marine environment and the decline of biological resources in the SCS, conducting bilateral cooperation between China and Vietnam would be an eあective strategy to tackle these problems. Such bilateral cooperation can be carried out also by other countries bordering the SCS, such as between the Philippines and Malaysia, and between Malaysia and Indonesia. Due to limited space, this paper only discusses the bilateral cooperation between China and Vietnam.

The issue mentioned above has already been discussed in the academia.For example, Hai-Dang Vu, a Vietnamese scholar, believes that the success of the regional MPA established by Indonesia, Malaysia and Singapore in the Sulu-Sulawesi Marine Ecoregion could provide some valuable insights for China and Vietnam. After analyzing the benefits of building a bilateral network of MPAs, Vu suggests that China and Vietnam establish such a network in the northwest of the SCS (Beibu Gulf).35Hai-Dang Vu, A Bilateral Network of Marine Protected Areas between Vietnam and China:An Alternative to the Chinese Unilateral Fishing Ban in the South China Sea?, Ocean Development and International Law, Vol. 44, No. 2, 2013, pp. 145～169.Beibu Gulf is the traditional fishery grounds for both Chinese and Vietnamese fishermen. While trying to settle their maritime boundaries in the Beibu Gulf, China and Vietnam signed the Agreement on Fishery Cooperation in Beibu Gulf, which made transitional arrangements for fishery activities in Beibu Gulf. Through the establishment of common fishing zones, waters in transitional arrangements and buあer zones for small fishing vessels, the agreement alleviated,to some extent, the impact of the maritime delimitation in Beibu Gulf on the current fishing activities of both sides. The China-Vietnam Joint Commission on Fisheries in the Beibu Gulf was created, in accordance with the agreement, to discuss and negotiate on matters pertinent to fishery cooperation, and conservation and sustainable exploitation of fishery resources in the agreed waters.36Agreement between the People "s Republic of China and the Socialist Republic of Vietnam on Fishery Cooperation in Beibu Gulf, at http://www.fmprc.gov.cn/web/ziliao_674904/tytj_674911/tyfg_674913/t556668.shtml, 14 November 2018. (in Chinese)

On 12 January 2017, Chinese President XI Jinping, also General Secretary of the Communist Party of China Central Committee, met Nguyen Phu Trong,General Secretary of the Communist Party of Vietnam Central Committee. The two sides signed the Memorandum of Understanding on Cooperation in the Proliferation, Release and Conservation of Fisheries Resources in Beibu Gulf,37China-Vietnam Joint Proliferation, Release and Conservation of Fishery Resources in Beibu Gulf Was Formally Launched at Beilun Estuary, at http://www.shuichan.cc/news_view-322131.html, 14 November 2018. (in Chinese)and decided to jointly proliferate and release fishery resources in Beibu Gulf. Both sides agreed to embark on their journey of cooperation from joint conservation of fishery resources in Beibu Gulf first, and then to comprehensive collaboration in fish harvesting, fingerling breeding, fish feedstuあ research and other fields. By doing so, they aim to conserve the marine resources in the region together. On 8 May 2017, China and Vietnam jointly launched a project at Beilun estuary in Dongxing City, Guangxi Province, pursuing to proliferate, release and conserve fishery resources in Beibu Gulf. Thanks to this project, “the recapture rate of black porgy reached 15.7% and the figure for long-haired prawn reached as high as 39%; the overall output of the released species increased by 20%, and the main commercial fish species were effectively replenished, resulting in the significant increase of fishermen "s income.”38China and Vietnam Jointly Carry out Activities to Proliferate and Release Fishery Resources in Beibu Gulf, at http://www.farmer.com.cn/jjpd/yy/zyhb/201805/t20180514_1376721.htm,14 November 2018. (in Chinese)Vietnamese media spoke highly of the project, saying that it contributed much to fish farming and fishery resources conservation, as well as the improvement of the livelihood of fishermen and the ecological environment of Beibu Gulf.39Vietnam and China Jointly Released 43 Million Fish Fingerlings to Conserve Fisheries in the Beibu Gulf, at https://www.vietnamplus.vn/viettrung-tha-43-trieu-con-ca-giong-de-baoton-thuy-san-vinh-bac-bo/501506.vnp, 14 November 2018. (in Vietnamese)This project has also received lavish praise from both parties, which was reflected in documents such as the Sino-Vietnamese Joint Communique of May 2017 and Sino-Vietnamese Joint Statement of November 2017. On 8 May 2018, China and Vietnam carried out such joint activities in Beibu Gulf one more time, releasing nearly 43 million grouper and other fish and shrimp seedlings into the waters of the Beibu Gulf.

2. Initiating SCS Environmental Protection Cooperation in the Waters at the Mouth of Beibu Gulf

The experiences of fishery cooperation in the Beibu Gulf can be gradually applied to a wider area of the SCS. Given the complex nature of the disputed waters, China and Vietnam should shelve their disputes over insular sovereignty,and cooperate solely on matters relating to fishery conservation and environmental protection. The location of the cooperation area is of great importance. The author believes that, based on the following grounds, the “waters oあ the mouth”40Being located to the south of Beibu Gulf, the waters off the mouth of Beibu Gulf is the sea area outside the southern end of the Gulf. This sea area is bordered on the northwest by the southern boundary line between China and Vietnam in the Beibu Gulf, i.e., the line connecting the Yingge Sea to the southwest of Hainan Island with Con Co Island of Vietnam. The waters off the mouth of the Gulf, being adjacent to China "s Xisha Islands in the southeast, is surrounded by Hainan Island, Xisha Islands and Vietnam. See the Investigation of the Marine Ecological Environment in the Beibu Gulf, Guangxi Province by the “Beautiful China” Ecological Environment Research and Practice Team, at http://today2.hit.edu.cn/news/2017/08-21/6374725180RL0.htm, 14 November 2018. (in Chinese)of Beibu Gulf is an ideal location in the early stage of cooperation.

First and foremost, a number of agreements and documents between the governments of the two countries, including the Agreement on the Basic Principles Guiding the Resolution of Maritime Issues between China and Vietnam (2011),Sino-Vietnamese Joint Communique (2017), and Sino-Vietnamese Joint Statement(2017), have mentioned that the two countries should push forward negotiations on maritime delimitation in waters oあ the mouth of the Beibu Gulf and actively promote joint development of this sea area. Being an item that has gained extensive consensus from high-level leaders of the two countries, fishery cooperation is a primary type of cooperation on low-sensitive areas that is feasible between the two sides in the SCS. More importantly, after the final settlement of their maritime boundaries in Beibu Gulf, the first possible maritime delimitation in the SCS between the two countries is most likely to be effected in the waters around the mouth of the Beibu Gulf. This sea area, basically, does not involve the offshore oil areas available for bidding as designated by China and Vietnam respectively.Without disputed islands and reefs in the relevant waters, it is far from the oil-rich and highly sensitive waters surrounding “Wan-an Bank”. Therefore, no conf l icts of sovereignty and jurisdiction would possibly arise from their joint conservation of biological resources.

Second, there is a practical basis for fishery cooperation in the waters oあ the mouth of the Beibu Gulf, as compared with other disputed waters in the SCS. On 19 December 2015, China and Vietnam oきcially launched the joint inspection of the waters off the mouth of Beibu Gulf, and completed the mission on 23 April 2016. Up to now, the China-Vietnam working group on waters off the mouth of the Beibu Gulf has held nine rounds of consultations on many issues, such as the delimitation and joint development of the waters in this area. The experiences gained from the joint inspection and consultations could provide valuable insights into the future creation of closed fishing areas, moratorium, and other fishery resources conservation mechanisms, as well as the establishment of technical cooperation agencies in this area, including fishery information monitoring centers and data exchange platforms.

Upon the determination of the location of the cooperation area, MPAs, with biological resources conservation as their core purpose, may be designated on the basis of fishery cooperation. Such MPAs should have the following features: first,by learning from the experiences of advanced protected areas worldwide, diあerent types of protected zones, such as “strict protected zones”, “buffer zones” and“scientific research zones” should be set up in the MPAs; second, the regulatory authority of the MPAs should be composed of experts and oきcials from fishery,maritime, environmental protection and scientific research institutions of both China and Vietnam, who should negotiate and work together to build and manage the MPAs; and third, prior to the completion of maritime delimitation, it should be emphasized that the establishment of such MPAs should neither prejudice the claims of both parties, nor aあect any future maritime delimitation.

B. Multilateral Model

Reviewing the successful experiences of cooperation in other enclosed or semi-enclosed seas around the world, many scholars believe that, when constructing MPAs in the SCS, the “Mediterranean cooperation model” could be used as a reference.41For the research on the “Mediterranean cooperation model”, please see Mitja Grbec, The Extension of Coastal State Jurisdiction in Enclosed or Semi-enclosed Seas, London:Routledge, 2014; Michelle E. Portman and Daniel Nathan, Conservation “Identity” and Marine Protected Areas Management: A Mediterranean Case Study, Journal for Nature Conservation, Vol. 24, April 2015, pp. 109～116; Sofia Frantzi, What Determines the Institutional Performance of Environmental Regimes?: A Case Study of the Mediterranean Action Plan, Marine Policy, Vol. 32, Issue 4, 2008, pp. 618～629. Many Chinese scholars contend that States neighboring the SCS should learn from the “Mediterranean cooperation model” and conduct cooperation in low-sensitive areas in the SCS. See ZHANG Xiangjun,On Framing the Legal Regime for Regional Cooperation on Protecting Marine Environment in the East Asian Seas, Journal of Guangdong Ocean University, No. 2, 2011, pp. 7～12 (in Chinese); WANG Xiuwei, A Preliminary Exploration on the Mechanism for Cooperation in Low-Sensitive Areas in the South China Sea, Journal of Henan University of Economics and Law, No. 3, 2013, pp. 151～155 (in Chinese); ZHENG Fan, Regional Cooperation on Environmental Protection in the Mediterranean: Development and Experiences, Journal of China University of Geosciences (Social Sciences Edition), No. 1, 2016, pp. 81～90 (in Chinese); DENG Yingying and LAN Shihuang, Inspiration of Mediterranean Action Plan for the Construction of the South China Sea Marine Protected Areas, Academic Exploration,No. 2, 2017, p. 24 (in Chinese); LIU Dan, Difficulties for Cooperating on Marine Environmental Protection in the South China Sea and Their Solutions: Also a Refutation of the Philippines " Claims in the South China Sea Arbitration, Foreign Aあairs Review, No. 5,2017, pp. 113～140. (in Chinese)Mediterranean States, like the SCS littoral States, have disputes over their maritime delimitation. Based on the 1995 Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean and the subsequent protocols, the Mediterranean cooperation model is a two-tier(integrated and separate) legal system for marine protection.42DENG Yingying and LAN Shihuang, Inspiration of Mediterranean Action Plan for the Construction of the South China Sea Marine Protected Areas, Academic Exploration, No. 2,2017, p. 24. (in Chinese)This model has two main features. First, MPAs are divided into two types: general MPAs (those in waters involving no disputes) and those in disputed sea areas. For the construction of the first type of MPAs, the relevant parties should bear the responsibility for protecting regional biodiversity. In contrast, the establishment of the second type should be decided by consensus of the parties to a plan of action; and the pertinent responsibility should be borne by well-defined administrative bodies.43Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean, 10 June 1995, at http://www.minambiente.it/sites/default/files/archivio/allegati/biodiversita/protocollo_ASP.pdf, 14 November 2018.Second, by drafting the “reservation of rights” clause, disputes caused by maritime delimitation and other issues have been effectively avoided and the cooperation between Mediterranean States has been promoted to the greatest extent. Article 2 of the 1995 Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean provides that:

Nothing in this Protocol nor any act adopted on the basis of this Protocol shall prejudice the rights, the present and future claims or legal views of any State relating to the law of the sea, in particular, the nature and the extent of marine areas, the delimitation of marine areas between States with opposite or adjacent coasts, freedom of navigation on the high seas, the right and the modalities of passage through straits used for international navigation and the right of innocent passage in territorial seas, as well as the nature and extent of the jurisdiction of the coastal State, the fl ag State and the port State.44 Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean, 10 June 1995, at http://www.minambiente.it/sites/default/files/archivio/allegati/biodiversita/protocollo_ASP.pdf, 14 November 2018.

Notably, in September 2017, under the auspices of the Asia Maritime Transparency Initiative (AMTI),45The Asia Maritime Transparency Initiative (AMTI) was conceived of and designed by the Center for Strategic and International Studies (CSIS). It is a regularly-updated source for information, analysis, and policy exchange on maritime security issues in Asia. CSIS "newly-launched working group on the South China Sea brings together prominent experts on maritime law, international relations, and the marine environment. The group members hope that the claimants and the relevant parties can reach a consensus and jointly seek feasible measures to enhance maritime cooperation and manage their disputes. The group meets regularly to tackle issues that it considers necessary for the successful management of the SCS disputes and produces blueprints for a path forward on each. The group hopes to produce a robust model for managing the disputes that would be both legally and politically feasible - in effect, a blueprint for an eventual code of conduct. See Asia Maritime Transparency Initiative, at https://amti.csis.org/about/, 14 November 2018.an expert working group on the SCS produced a Blueprint for Fisheries Management and Environmental Cooperation in the South China Sea. As a multilateral cooperation initiative, the Blueprint asserts that fishery and environmental protection in the SCS should encompass six aspects of cooperation. In other words, claimants and littoral States in the region should:

(a) Establish a fishery and environmental management area in the SCS with implementation and enforcement drawing from successful precedents including the Great Barrier Reef Marine Park and the OSPAR Convention;

(b) Emphasize that participating in the building and management of the fishery and environmental management area neither constitutes a judgment about sovereignty over occupied features or their legal status as islands, rocks or low-tide elevations, nor a recognition of the claims of other States;

(c) Split enforcement responsibilities between occupiers and fl ag States;

(d) Agree not to use subsidies to encourage fishing within the already overfished SCS;

(e) Avoid activities that damage the marine environment or alter the seabed of the SCS; and

(f) Cooperate in marine scientific research in the SCS.46A Blueprint for Fisheries Management and Environmental Cooperation in the South China Sea, at https://amti.csis.org/coc-blueprint-fisheries-environment/#, 14 November 2018.

Based on the experiences of the cooperation models designed for other semienclosed seas and the unique situation of the SCS, the author argues that the key to the creation of a multilateral cooperation mechanism for marine environmental protection in the SCS lies in how to deal with disputes over island sovereignty and maritime delimitation. On 18 May 2017, China and the 10 ASEAN member States adopted the draft framework for a COC. An important consensus was reached among these States. That is, the parties aきrmed that the COC did not involve the sovereignty of islands or maritime delimitation, and insisted on managing disputes through the framework of regional rules and deepening cooperation in low-sensitive areas at sea. In other words, the “COC” to be reached in the future is a mechanism for dispute control and cooperation, rather than a problem resolution mechanism.Since disputes over sovereignty of islands and delimitation of maritime boundaries are not of the same nature as cooperation in such low-sensitive areas as marine environmental protection, they could be handled delicately and shelved eあectively in maritime cooperation.

In conclusion, the future multilateral mechanism for cooperation on marine environmental protection in the SCS should contain the following elements. First,through drafting “reservation of rights” clause, existing disputes could be skillfully set aside, and the relevant States may cooperate to construct MPAs in the SCS.Priority should be given to cooperation in fishery management, biological resource conservation and marine scientific research. Second, considering the important role of ASEAN in SCS aあairs, it should be recognized that the future multilateral cooperation mechanism should be complementary and compatible with the existing bilateral cooperation mechanism, as well as the multilateral consultation mechanism between China and ASEAN member States within the framework of the DOC. In other words, the future cooperation mechanism will complement the existing bilateral and multilateral mechanisms and provide a new platform for relevant technical cooperation.

V. Conclusion

As this paper was about to be completed, Malaysian media reported that the Sarawak authorities decided to set up a marine national park at the Zhongkang Shoals at the southern end of China "s Nansha Islands. The Sarawak authorities would increase law enforcement efforts in this area, since many States were coveting the rich oil resources in the vicinity of Zhongkang Shoals, the media added.47Grabbing Territory While Stressing Amity? Malaysia Is Enclosing Marine Areas in the South China Sea and Prohibiting China from Entering, at http://www.sohu.com/a/254342516_100200965, 14 November 2018. (in Chinese)With the SCS disputes turning increasingly into legal battles, it is predictable that in the future, other disputes will emerge in this region in the name of marine protection, but with the real purpose of stealing resources. In the final analysis, although MPAs could be taken as an important measure by a State to protect biological resources and marine environment, the establishment of such a mechanism in disputed waters is often contrary to its purpose. The “Nam Yet Island MPA” has been proposed by Vietnam as early as 2010 in its planning of MPAs. Up to now, neither have the specific location or scope of this MPA come to light, nor have the relevant protection measures and regulations been formulated. These facts indicate clearly that the planning of this MPA is not for the purpose of protecting marine environment, but rather a political propaganda tool employed by Vietnam to declare its sovereignty.

The SCS is a scene of disputes over the sovereignty of some islands and maritime delimitation. It is undeniable, nevertheless, that the survival and development of all SCS littoral States depend on this sea to some extent.Additionally, the deterioration of the ecological environment and the holistic nature of the marine environment in the SCS require these States to pool their efforts toward a common goal: to conserve the biological resources and protect the marine environment in the area. In the process of building a mechanism for regional cooperation on environmental protection in the SCS, there is a huge room for all SCS littoral States, including China and Vietnam, to cooperate with each other.The key to deepening cooperation lies in the design of a clause on “reservation of rights”. China and Vietnam could, on the basis of their fishery cooperation in Beibu Gulf, seek bilateral cooperation in the SCS on a larger scale, and use their exemplary eあects to attract other States in the region to join in these eあorts. States surrounding the SCS, while enjoying the rights conferred by the UNCLOS, should fulfill relevant international obligations and jointly build a mechanism for regional cooperation on environmental protection in the SCS. Although such cooperation may not ultimately resolve the SCS disputes, it could provide, at least, a solution to the dilemma caused by the absence of marine environmental protection in the disputed waters in the SCS.