Spratly dispute needs democratic settlement

Spratly dispute needs democratic settlement

The following article is based on a paper presented at the annual meeting of the Southeast Asian Program on Ocean Law (SEAPOL) in Bangkok on Dec. 13, 1994, by Dr. Hasyim Djalal. This is the first of two installments.

JAKARTA (JP): The potential for intense conflict in the disagreement over the Spratly Islands has come into prominence since the solution of the Cambodian problem. The Spratly Islands lie in the South China Sea and the dispute over them involves several parties.

China claims them for historical reasons. Recently it has based its claim on a map produced in 1947 by the Republic of China, indicating nine undefined, discontinued and dotted lines. China considers all the islands encompassed by those lines as belonging to it.

There was no definition of those dotted lines, nor were their co- ordinates stated. Therefore the legality and the precise locations of those lines were not clear. It was presumed, however, that what China was claiming, at least originally, was limited to the islands and the rocks, but not the whole sea enclosed by those undefined dotted lines.

It is inconceivable that in 1947, when general international law still recognized a three mile territorial sea limit that China would claim the entire South China Sea. A careful reading of its 1992 Law strengthens this assumption, despite the fact that some of the recent Chinese writers seem also to imply that China also claims the "adjacent sea" of the islands and rocks.

Again, the concept of "adjacent sea" has not been clearly defined and therefore it is difficult to understand its legal meaning. In fact, this concept does not exist in the Law of the Sea Convention of 1982 since the convention only stipulates internal waters, archipelagic waters, territorial seas, contiguous zones, exclusive economic zones, continental shelves and high seas, and that the measurements of those waters, or zones start from base points on land, or baselines, and not be arbitrarily drawn at sea.

Taiwan's claim is basically similar to that of China. In fact, the positions of the participants from China and Taiwan in the South China Sea Workshops have become increasingly similar lately.

Vietnam's claim is also basically historical. It claims the whole Spratly Islands group together with all its continental shelf. Again, the boundary lines of the claim are not clearly identified by co-ordinates. The claim also covers quite an extensive area of the South China Sea.

The Philippine claim is based on the so-called "discovery" by a Philippine explorer in the 1950's. Unlike the Chinese claim, the Philippines claim is clearly defined by co-ordinates and therefore it is quite identifiable. However, the co-ordinates are not measured from base points on land, but from fixed positions at sea which seem to have been chosen rather arbitrarily.

It is therefore also not so clear whether the Philippine claim is limited to islands, or rocks, within those lines, or whether it also includes the whole sea within those lines.

The Malaysian claim is basically based on the doctrine of continental shelf, and it clearly defines the claim by co- ordinates.

Equally, Brunei's claim seems to have been based also on the doctrine of continental shelf. But the boundary lines are simply drawn perpendicularly from two extreme points on the Brunei coast lines.

All these claims overlap with one another and some of them with several of the other claims.

Indonesia is not a claimant to any of those islands, or rocks, in the Spratly group. But if the Chinese/Taiwanese unidentified and interrupted dotted lines of 1947 were to be taken into consideration, depending upon the nature of the Chinese claim, then the Chinese/Taiwanese claims would also intrude upon the Indonesian continental shelf as defined in international law and as demarcated in the Indonesian-Malaysian Agreement of 1969.

All the claimants, with the exception of Brunei, have occupied several of the rocks in zig-zag form. There is no clear pattern of occupation. Some of the Chinese occupations have been quite far to the South.

The significance of the various conflicting claims is very clear. Is it basically a scramble for resources, either living, or oil and gas, which are considered to be abundant in the area. Exploration efforts are continuing, and exploitation of fishery resources also have taken place.

Conflicts have arisen in the past and their recurrence in the future is possible. In addition to the resources, the island group also straddles navigation routes in the South China Sea. As such, the sea is important not only to the South China Sea countries, but also to non-South China Sea countries, since their interests, particularly the safety of navigation, could easily be affected by the potential conflicts in the area.

Indonesia has taken a keen interest in the management of potential conflicts in the Spratly Islands since this is one of the most explosive spots in the region at this time. Of course there are plenty of other conflicts of territorial or jurisdictional nature in the region, but those are generally bilateral or trilateral in scope. Therefore, their prospects of becoming explosive are considered generally to be less threatening than the conflicts over the Spratly Islands, particularly because armed conflict has taken place between Vietnam and China in the past, the latest incident being in 1988.

Therefore, when Indonesia took the informal initiative in 1990, supported by the Canada International Development Agency through its grants to the University of British Columbia in Vancouver, to convene a workshop among participants from ASEAN countries in Bali, the issue immediately came up as to whether the workshop should be limited to the ASEAN participants, or whether it should be expanded to Southeast Asia, or even to immediately include China/Taiwan.

There were participants at that time who thought that the workshop should be limited to the ASEAN participants, and only after they were able to forge common positions, should the participation in the workshop be extended to Indochina, and, in the more distant future, to China and Taiwan, before it could engage the non-South China Sea participants. It was later felt, however, that this four-tiered approach could be divisive since it could form certain blocs, and therefore could be confrontational.

In the end, this approach was not adopted, and therefore, an all- inclusive approach was accepted rather than the limited and exclusive approach. As it turned out, the second workshop in Bandung in 1991, already included participants from China and Taiwan, as well as Vietnam and Laos. It was hoped that this inclusive approach would facilitate the consultation and the arrival at a solution.

The issue of whether a solution could be achieved sooner bilaterally or through a regional approach still haunts the workshop. China is particularly keen on seeking bilateral solutions with each claimant, while the Southeast Asian claimants are not so sure whether this is the right approach.

There are participants in the South China Sea workshop who feel that bilateral solutions could facilitate the overall solution, but there is also fear that bilateral solutions would form certain blocs in the disputes and therefore might create more problems with the other participants.

I feel that the Southeast Asian claimants seem to have come to the conclusion that while bilateral dialogs and consultations would be useful, the solution to the Spratly disputes will have to be in a regional context involving all claimants.

Another problem is whether the cooperative efforts could be undertaken without first solving the territorial disputes. There are quite a few opinions that consider it impossible to undertake cooperative efforts without first solving the territorial disputes.

However, there is also the opinion that cooperation could be undertaken even though territorial disputes exist. The experience gained in promoting safety of navigation and pollution control in the straits of Malacca and Singapore in the 1970's could be useful in this regard; the coastal states agreed to promote the safety of navigation and pollution control in the straits regardless of the legal status of the straits.

Equally, the South China Sea is replete with territorial boundary issues, but these should not prevent them from developing cooperation. In fact, if we have to wait for the solution of the territorial issues before we can undertake cooperation, that cooperation may never take place since the territorial disputes may not be solved within the foreseeable future.

In the end the participants agreed to advocate cooperation despite the fact that territorial disputes over the Spratlys have not been settled.