Moratorium in the South China Sea: Charting a course towards peace

Posted at 08/11/2014 10:00 AM | Updated as of 08/11/2014 10:00 AM

MANILA, Philippines - Last June 16, Foreign Affairs Secretary Albert F. Del Rosario publicly raised the idea of a moratorium on destabilizing activities in the South China Sea.

In a national cable news interview, the Secretary said:

"We ought to maybe consider getting together and saying, 'Let's freeze all activities which escalate tension.’ Let's call for a moratorium in terms of activities that escalate tension. Let's do that while we work on an expeditious conclusion of the COC and effective and full implementation of the COC... I would like to initiate it. It's a reasonable approach."

As the proposal is in the context of the COC, it appears it covers the entire South China Sea and not just the West Philippine Sea.

The world is no stranger to the concept of moratorium. A Chinese scholar, Wenqiang Yin, who earned his Ph.D in International Law from Peking University, in his paper Moratorium in International Law (11 Chinese Journal of International Law 2012, 321-340) said “moratorium has its indispensable values and is particularly relevant to solutions to complex and difficult issues. In other words, moratorium is worthy to be seriously considered an option by policy-makers and lawyers when facing a paradox.”

Moratorium in the Practice of States

The concept of moratorium has been adopted by states involved in territorial disputes. Moratoriums on certain activities are enshrined in the 1959 Antarctic Treaty and the Australia-Timor-Leste Treaty on Certain Maritime Arrangements in the Timor Sea.

The United Nations General Assembly has passed resolutions calling for certain moratoria. The UNGA has several resolutions calling for moratoria in the field of disarmament, including calls for moratoria on nuclear testing, production of fissile material for nuclear weapons and export of anti-personnel mines (there is now a Landmine Treaty).

The UN General Assembly has also passed moratoria resolutions on other issues, including deep seabed mining and high seas driftnet fishing. Other international organizations and regional groupings have also adopted measures that impose moratoria on certain activities.

Judicial Bodies and Interim Measures

Prohibitions on actions that could raise tensions between states are an important part of international law and can be found in orders issued by international tribunals.

It is interesting to note that these are called “interim measures” both by the International Court of Justice and the International Tribunal on the Law of the Sea. These are measures that ask parties to refrain from actions that could increase tensions or aggravate the conflict. These are measures that are interim in nature and that are meant to create the atmosphere where perhaps the main problems or issues could be addressed in accordance with international law.

The ICJ has issued 16 orders on provisional measures. Notable among these cases are the Anglo-Iranian Oil Case (1951), the Fisheries Jurisdiction Case (1972), Nuclear Tests Cases (1973), Case Concerning United States Diplomatic and Consular Staff in Tehran (1979) and Case Concerning Military and Para-military Activities In and Against Nicaragua (1984).

The wording of such orders reflects the concept of moratorium on destabilizing activities. In the 1979 Iran Hostages Case, the ICJ ordered:

The Government of the United States of America and the Government of the Islamic Republic of Iran should not take any action and should ensure that no action is taken which may aggravate the tension between the two countries or render the existing dispute more difficult of solution.

In the 1984 Nicaragua Case, the ICJ told the Parties:

The Governments of the United States of America and the Republic of Nicaragua should each of them ensure that no action of any kind is taken which might aggravate or extend the dispute submitted to the Court.

ITLOS has also issued provisional measures for the very same reason and with the very same objective.

Limiting Certain Actions

The first formal consideration of the notion of putting a limit on certain activities in the South China Sea can be found in the 1992 ASEAN Declaration on the South China Sea adopted by its Foreign Ministers at their 25th meeting in Manila on 22 July 1992.

In this Declaration, the ASEAN Foreign Ministers urged “all parties concerned to exercise restraint with the view to creating a positive climate for the eventual resolution of all disputes.” Restraint in this sense is used in its common meaning, that States concerned should keep their actions within certain limits or parameters. There was no elaboration on what these limits should be.

The concept of limiting certain behavior found renewed life in the 2002 Declaration on the Conduct of Parties in the South China Sea. In the 2002 Declaration, “the Parties undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features and to handle their differences in a constructive manner.”

In the drafting of the 2002 Declaration, the Philippines initiated and relentlessly negotiated that a suspension in occupying new features be included in the Declaration, which provided some clarity on what actions states should refrain from taking in the South China Sea. The inclusion of this Philippine position in the Declaration shows that moratorium is a concept acceptable to both ASEAN and China.

In fact, the notion of such a moratorium has been gestating over the decades since the 1992 ASEAN Declaration called for “restraint”. From “restraint” in the 1992, to “self-restraint” in the 2002 Declaration and other documents issued in the context of ASEAN, perhaps it is now time to begin serious consideration of the notion of a moratorium on other destabilizing activities.

Timely Initiative

Given the increasing tensions in the South China Sea, Secretary del Rosario’s statement to reinitiate the idea of a moratorium in the area is a timely and worthwhile initiative. Such a moratorium would raise the level of confidence in the region, contribute to managing potential conflict and possibly help in charting a course towards peace.

The Secretary also emphasized in another statement in July 2014 that the moratorium initiative is “constructive, it's positive and it's comprehensive. No one will quarrel with you on that right to get a moratorium on exacerbating situation there and ultimately to manage tension."

Secretary Del Rosario has said that he intends to formally raise this proposal at the meeting of the ASEAN Regional Forum on 10 August 2014 in Nay Pyi Taw, Myanmar.

Between the first announcement in June, the second statement in July and the ARF in August, there is sufficient time and opportunities for Philippine diplomacy to work with the individual members of the ARF to get their support. It is also likely that such efforts started even earlier, perhaps on an informal basis.

Not an End in Itself

The Philippine moratorium initiative in the South China Sea would not be an end in itself, but a measure that would be temporary in nature. It would be a measure that could lead to better opportunities to reduce tensions.

With improved confidence brought about by a moratorium on destabilizing activities, cooperative activities could be discussed in earnest in areas that do not touch on sovereignty or sovereign rights and that would raise confidence and understanding. Such discussions should be limited to these areas and not on issues that are difficult and complicated like joint development.

Charting a Course Towards Peace

Tensions in the South China Sea continue to rise. The Philippines has taken a firm decision to resolve the maritime and territorial disputes in the South China Sea through the rule of law, particularly the UN Convention on the Law of the Sea. The Philippines has taken every reasonable means to address its concerns through diplomacy and dialogue. It has resorted to the legal means available to it under international law. In good faith, it has not taken actions on the ground that could increase tensions. It has exercised the self-restraint called for under existing understandings.

The proposal for a moratorium on destabilizing activities comes from a country that has observed its commitments and obligations under international law. It is a country that hopes for a just, meaningful and lasting peace in the South China Sea.

The Philippines knows that this is not an easy task but that it is worth doing. As Dr. Yin stated in his article:

Where countries are faced with international complexities to address such as sovereignty and maritime delimitation disputes which cannot be reconciled in a reasonable term. Moratorium might be a way out if relevant countries are more concerned with peace, friendship and cooperation between them. Yet, it is undoubtedly a challenge to put a moratorium in place, which always needs coordination of political wills of the related countries. However, where countries could not find other better solutions to intractable issues, moratorium might be the most practical one.
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Carlos D. Sorreta is the Director of the Foreign Service Institute.

Mary Fides A. Quintos is a Foreign Affairs Research Specialist with the Center for International Relations and Strategic Studies of the Institute.