After Macao, will it be the South China Sea?

By Jonathan Power

LONDON (JP): In the month which sees the return to China of Portuguese Macao (on Dec. 19, 1999), the last imperial enclave, the eyes and thoughts of strategists are turned to Beijing's next quest. Will it be Taiwan, a hard nut to swallow? Or will it be the easily digestible small raisins of the Spratlys, the mass of supposedly oil-rich islands that lie scattered through the South China Sea?

In the last couple of weeks there has been a flurry of diplomatic activity over the Spratlys as Chinese premier, Zhu Rongji, has worked his way round the Southeast Asian countries which also lay claim to the islands.

The trip was only a partial success. Zhu did his best with a tight brief to give the impression that China is more interested in conciliation than conflict. Nevertheless, his spokesman indicated that China is not prepared to modify its total and exclusive claim to "the historic waters" of the South China Sea.

Even in recent months there have been clashes or near clashes between China and the Philippines-and also between Malaysia and the Philippines and Vietnam and the Philippines. And all of the smaller countries (bar Taiwan, which in this case associates itself with the interests of a greater China) are united in believing that the threat from China will continue to hang over them until there is a binding legal document settling the respective rights of each and all of them.

The dilemma is easily put: there can be no negotiated solution as long as China justifies its claim only in the vague terms of "historic waters". China appears to realize that if it were more forthcoming it would then have to justify its claim both more legalistically and more narrowly. Beijing knows full well that in the annals of international law and, in particular, in the relatively recent, UN-brokered, Law of the Sea, it has a weak case.

Indeed back in August, 1990, it seemed that China had started to come to terms with the outside world, its legal inheritance and its reasonable demand for specificity. The then premier Li Peng announced in Singapore that China was prepared to put aside the question of sovereignty and develop the Spratly Islands jointly with the other neighboring countries. Coming soon after a clash with Vietnam over the occupation of one of the reefs in which 77 Vietnamese sailors died, it had all the looks of a significant volte-face.

Yet China's deeds have singularly failed to match its words. Shortly after this pronouncement it gave an oil concession on the continental shelf claimed by Vietnam to the Crestone Oil Company- and said it would protect the company with force. But then again in 1995 the Chinese foreign minister said it was prepared to use the Law of the Sea as a basis for negotiations.

Even the most knowledgeable observers find it difficult to keep track of Beijing's changes in policy. As Mark Valencia, an expert at the International Institute of Strategic Studies, has observed in a recent study, "China has acted according to different motives at different times". The trouble is, he says, "the Spratly archipelago has been part of the motherland since ancient times and is embedded in the Chinese national psyche."

The truth is, however, if China had a legitimate claim to repossess Hong Kong and Macao, its claim to Taiwan is much more ambiguous and its claim to the totality of the Spratlys, in any common interpretation of international law, exceedingly flimsy. The islands, for the most part uninhabitable, have never been settled (until the intrusion of recent military garrisons). The Law of the Sea is very clear: rocks that cannot sustain human habitation or an economic life of their own cannot generate exclusive economic zones or continental shelf claims.

U.S. policy has been to stay out of the South China Sea dispute. This makes good sense. But it would be useful if the U.S. would sign and ratify the Law of the Sea-as all its European allies have done. Having been one of its determining forces during the long and intense negotiations that led to its adoption it dropped its zeal and interest during the Reagan years and never rediscovered it. It is bottled up in Senator Helms' Foreign Relations Committee and President Clinton has shown little interest in going into battle over it. Indonesia, Philippines, Vietnam and Singapore have all ratified it. But China, partly if not wholly taking its cue -- or its excuse -- from the U.S., has not.

The Law of the Sea, arguably the international treaty with the least sex appeal as far as the media is concerned, is without doubt the key to ending the Spratly dispute. This would allow for a regional "common heritage" area, encouraging cooperative management of semi-enclosed seas. Indeed, China as the country (if Taiwan is included) with the largest claim should probably have the chairmanship.

China would gain much: legitimacy for at least part of its rather weak claim and the stabilization of a dispute that it could only settle in one way or another by force, putting it in perpetual conflict with most of its neighbors. The time to make peace is now, whilst there is still peace.