Spratly dispute needs democratic settlement<\/p>\n
The following article is based on a paper presented at the
\nannual meeting of the Southeast Asian Program on Ocean Law
\n(SEAPOL) in Bangkok on Dec. 13, 1994, by Dr. Hasyim Djalal. This
\nis the first of two installments.<\/p>\n
JAKARTA (JP): The potential for intense conflict in the
\ndisagreement over the Spratly Islands has come into prominence
\nsince the solution of the Cambodian problem. The Spratly Islands
\nlie in the South China Sea and the dispute over them involves
\nseveral parties.<\/p>\n
China claims them for historical reasons. Recently it has
\nbased its claim on a map produced in 1947 by the Republic of
\nChina, indicating nine undefined, discontinued and dotted lines.
\nChina considers all the islands encompassed by those lines as
\nbelonging to it.<\/p>\n
There was no definition of those dotted lines, nor were their co-
\nordinates stated. Therefore the legality and the precise locations
\nof those lines were not clear. It was presumed, however, that what
\nChina was claiming, at least originally, was limited to the islands
\nand the rocks, but not the whole sea enclosed by those undefined
\ndotted lines.<\/p>\n
It is inconceivable that in 1947, when general international law
\nstill recognized a three mile territorial sea limit that China
\nwould claim the entire South China Sea. A careful reading of its
\n1992 Law strengthens this assumption, despite the fact that some of
\nthe recent Chinese writers seem also to imply that China also
\nclaims the \"adjacent sea\" of the islands and rocks.<\/p>\n
Again, the concept of \"adjacent sea\" has not been clearly defined
\nand therefore it is difficult to understand its legal meaning. In
\nfact, this concept does not exist in the Law of the Sea Convention
\nof 1982 since the convention only stipulates internal waters,
\narchipelagic waters, territorial seas, contiguous zones, exclusive
\neconomic zones, continental shelves and high seas, and that the
\nmeasurements of those waters, or zones start from base points on
\nland, or baselines, and not be arbitrarily drawn at sea.<\/p>\n
Taiwan's claim is basically similar to that of China. In fact,
\nthe positions of the participants from China and Taiwan in the
\nSouth China Sea Workshops have become increasingly similar lately.<\/p>\n
Vietnam's claim is also basically historical. It claims the whole
\nSpratly Islands group together with all its continental shelf.
\nAgain, the boundary lines of the claim are not clearly identified
\nby co-ordinates. The claim also covers quite an extensive area of
\nthe South China Sea.<\/p>\n
The Philippine claim is based on the so-called \"discovery\" by a
\nPhilippine explorer in the 1950's. Unlike the Chinese claim, the
\nPhilippines claim is clearly defined by co-ordinates and therefore
\nit is quite identifiable. However, the co-ordinates are not
\nmeasured from base points on land, but from fixed positions at sea
\nwhich seem to have been chosen rather arbitrarily.<\/p>\n
It is therefore also not so clear whether the Philippine claim is
\nlimited to islands, or rocks, within those lines, or whether it
\nalso includes the whole sea within those lines.<\/p>\n
The Malaysian claim is basically based on the doctrine of
\ncontinental shelf, and it clearly defines the claim by co-
\nordinates.<\/p>\n
Equally, Brunei's claim seems to have been based also on the
\ndoctrine of continental shelf. But the boundary lines are simply
\ndrawn perpendicularly from two extreme points on the Brunei coast
\nlines.<\/p>\n
All these claims overlap with one another and some of them with
\nseveral of the other claims.<\/p>\n
Indonesia is not a claimant to any of those islands, or rocks, in
\nthe Spratly group. But if the Chinese\/Taiwanese unidentified and
\ninterrupted dotted lines of 1947 were to be taken into
\nconsideration, depending upon the nature of the Chinese claim, then
\nthe Chinese\/Taiwanese claims would also intrude upon the Indonesian
\ncontinental shelf as defined in international law and as demarcated
\nin the Indonesian-Malaysian Agreement of 1969.<\/p>\n
All the claimants, with the exception of Brunei, have occupied
\nseveral of the rocks in zig-zag form. There is no clear pattern of
\noccupation. Some of the Chinese occupations have been quite far to
\nthe South.<\/p>\n
The significance of the various conflicting claims is very clear.
\nIs it basically a scramble for resources, either living, or oil and
\ngas, which are considered to be abundant in the area. Exploration
\nefforts are continuing, and exploitation of fishery resources also
\nhave taken place.<\/p>\n
Conflicts have arisen in the past and their recurrence in the
\nfuture is possible. In addition to the resources, the island group
\nalso straddles navigation routes in the South China Sea. As such,
\nthe sea is important not only to the South China Sea countries, but
\nalso to non-South China Sea countries, since their interests,
\nparticularly the safety of navigation, could easily be affected by
\nthe potential conflicts in the area.<\/p>\n
Indonesia has taken a keen interest in the management of
\npotential conflicts in the Spratly Islands since this is one of the
\nmost explosive spots in the region at this time. Of course there
\nare plenty of other conflicts of territorial or jurisdictional
\nnature in the region, but those are generally bilateral or
\ntrilateral in scope. Therefore, their prospects of becoming
\nexplosive are considered generally to be less threatening than the
\nconflicts over the Spratly Islands, particularly because armed
\nconflict has taken place between Vietnam and China in the past, the
\nlatest incident being in 1988.<\/p>\n
Therefore, when Indonesia took the informal initiative in 1990,
\nsupported by the Canada International Development Agency through
\nits grants to the University of British Columbia in Vancouver, to
\nconvene a workshop among participants from ASEAN countries in Bali,
\nthe issue immediately came up as to whether the workshop should be
\nlimited to the ASEAN participants, or whether it should be expanded
\nto Southeast Asia, or even to immediately include China\/Taiwan.<\/p>\n
There were participants at that time who thought that the
\nworkshop should be limited to the ASEAN participants, and only
\nafter they were able to forge common positions, should the
\nparticipation in the workshop be extended to Indochina, and, in the
\nmore distant future, to China and Taiwan, before it could engage
\nthe non-South China Sea participants. It was later felt, however,
\nthat this four-tiered approach could be divisive since it could
\nform certain blocs, and therefore could be confrontational.<\/p>\n
In the end, this approach was not adopted, and therefore, an all-
\ninclusive approach was accepted rather than the limited and
\nexclusive approach. As it turned out, the second workshop in
\nBandung in 1991, already included participants from China and
\nTaiwan, as well as Vietnam and Laos. It was hoped that this
\ninclusive approach would facilitate the consultation and the
\narrival at a solution.<\/p>\n
The issue of whether a solution could be achieved sooner
\nbilaterally or through a regional approach still haunts the
\nworkshop. China is particularly keen on seeking bilateral solutions
\nwith each claimant, while the Southeast Asian claimants are not so
\nsure whether this is the right approach.<\/p>\n
There are participants in the South China Sea workshop who feel
\nthat bilateral solutions could facilitate the overall solution, but
\nthere is also fear that bilateral solutions would form certain
\nblocs in the disputes and therefore might create more problems with
\nthe other participants.<\/p>\n
I feel that the Southeast Asian claimants seem to have come to
\nthe conclusion that while bilateral dialogs and consultations would
\nbe useful, the solution to the Spratly disputes will have to be in
\na regional context involving all claimants.<\/p>\n
Another problem is whether the cooperative efforts could be
\nundertaken without first solving the territorial disputes. There
\nare quite a few opinions that consider it impossible to undertake
\ncooperative efforts without first solving the territorial disputes.<\/p>\n
However, there is also the opinion that cooperation could be
\nundertaken even though territorial disputes exist. The experience
\ngained in promoting safety of navigation and pollution control in
\nthe straits of Malacca and Singapore in the 1970's could be useful
\nin this regard; the coastal states agreed to promote the safety of
\nnavigation and pollution control in the straits regardless of the
\nlegal status of the straits.<\/p>\n
Equally, the South China Sea is replete with territorial boundary
\nissues, but these should not prevent them from developing
\ncooperation. In fact, if we have to wait for the solution of the
\nterritorial issues before we can undertake cooperation, that
\ncooperation may never take place since the territorial disputes may
\nnot be solved within the foreseeable future.<\/p>\n
In the end the participants agreed to advocate cooperation
\ndespite the fact that territorial disputes over the Spratlys have
\nnot been settled.<\/p>",
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