Spratly dispute needs democratic settlement (2)

Spratly dispute needs democratic settlement (2)

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 second of two articles.

JAKARTA (JP): To Indonesia, peace, stability and cooperation
in the South China Sea is important for its development.
Indonesia has just begun its second long term development program
for the next twenty five years. To achieve this, in addition to
the requirement of domestic stability, Indonesia has also to
develop an atmosphere of peace, stability and cooperation in its
surroundings. The South China Sea is one of the areas in which
that peace and stability could be endangered.

When taking the initiative to launch the South China Sea
workshop, I actually wanted to advance the workshop process
through a two-pronged approach. First, by seeking areas where
cooperation involving all the South China Sea countries or
participants could be developed, and secondly, by seeking ways to
prevent potential conflicts in the area from developing into
armed conflicts and, if possible, to try to create through
confidence-building measures an atmosphere that is conducive to
the solution of the conflicting claims. Indonesia did not intend
to solve the problems or mediate in solving them. We have not
been asked to do so by any one. All that it tries to do is to
develop a conducive atmosphere that would facilitate the possible
solution of the conflicts.

The second workshop took place in Bandung in 1991. The
workshop laid the foundation for the second prong of the
approach, namely to agree on non-use of force in settling the
dispute and the commitment to solve the potential disputes by
peaceful means and negotiation. That was an important document
which was later developed into as ASEAN Declaration in Manila in
1992, and was later welcomed and endorsed by the countries around
the South China Sea as well as by the non-South China Sea states,
particularly the United States, Japan, Australia and the European
Union.

With regard to the first prong, namely developing areas for
cooperation, Indonesia attempted to identify the possible areas
of cooperation in various fields, particularly in:

a. Shipping, navigation and communication

b. Environmental, ecology and scientific research

c. Management of the resources.

Political and security issues as well as territorial and
jurisdictional matters and institutional mechanism for
cooperation were also discussed. Spratly and Paracel issues were
discussed in a cooperative way and every effort was made to
prevent the discussion on the Spratly and Paracel issues from
entering into the determination of the legality of the claims
themselves since these would create more confrontation than
cooperation, at least for this stage. In fact, as it later turned
out, the participation from China and Taiwan did not quite like
to have this topic at all.

The third workshop in Yogyakarta in 1992 began to identify a
number of potential areas for cooperation in various fields. The
discussion had entered specifics and there was agreement already
that some Technical Working Groups would have to be organized in
order to study the various proposals more closely and identify
what concrete project proposals could be drafted in which all
South China Sea Workshop participants could be involved. Two
groups were established, namely on Resources Assessment and Ways
of Development and on Marine Scientific Research. The first group
on resources assessment and ways of development was convened in
Jakarta in July 1993 and studied the possibility for cooperation
in four areas, namely in fisheries, hydrocarbon, non-hydrocarbon
and non-mineral resources. To further coordinate activities the
groups have appointed three coordinators, namely the participants
from Thailand on fisheries, including the study on the stock
assessment in the South China Sea, the participant from Vietnam
on the non-living, non-hydrocarbon resources, and the participant
from Indonesia on the hydrocarbon resources. All three
coordinators would cooperate with the respective focal points
that would be appointed in each participating country. The groups
also recommended investigation of the feasibility for setting up
a marine reserve or marine park in an area to be defined within
the multiple claims area, namely in the Spratly Islands group.

The group on Marine Scientific Research has met three times:
In Manila, Surabaya and Singapore. It has suggested three areas
for cooperation, namely on the study of biodiversity, on sea
level and tide monitoring, and on data base, information exchange
and net-working. The group also requested three countries to take
the lead in preparing the relevant papers on the topics, namely
China for data base, Indonesia for sea level and Vietnam for
biodiversity. In Singapore, the group has been able to finalize a
project proposal dealing with biodiversity studies and is
continuing to finalize the project proposals for the other two
subjects, namely on data base, information exchange and net
working, and on the sea level and tide monitoring.

The fourth workshop in Surabaya in 1993 discussed some of
these project proposals as suggested by the group. The workshop
also continued discussions on other topics, including the
Spratlys and the Paracels. The Surabaya workshop decided to
invite participants from Kampuchea, and that "non-South China Sea
states and other regional or global organization would also be
invited, as necessary, to be involved and to participate in the
realization of specific projects of cooperation." The workshop
also decided to convene a special group on the protection of the
marine environment. This group met in Hangzhou, China, on Oct.
6-8, 1994 and has also formulated some suggestions for
cooperation in the environmental area. The Surabaya workshop also
considered the possibility of holding a separate group on safety
of navigation, shipping and communication. The workshop is still
seeking ways on how best to convene this important group. The
Surabaya workshop also discussed the possibility of holding a
group meeting on legal matters, and asked the participant from
Thailand to host it.

The fifth workshop was held in Bukittinggi, West Sumatra, on
Oct. 26-28, 1994. While continuing discussion on the various
topics relating to the South China Sea, including the Spratly
issues, the workshop approved, for the first time, a specific
collaborative study on biodiversity in the South China Sea and
authorized me as the organizer to sound out non-South China Sea
states and organizations to contribute to such a study, by
extending scientific and technical assistance, experts or
financial contributions. The project proposal is now being
conveyed to various potential donors. The Bukittinggi Workshop
also authorized the convening of the fourth group on Marine
Scientific Research in Vietnam in 1995 in order to finalize the
other two project proposals, namely on data base, information
exchange and net-working, and on sea level and tide monitoring.
The Workshop also authorized the convening of the group on legal
matters in Thailand in 1995.

With regard to the second prong, namely to seek ways to avoid
potential conflicts, for the first time the Bukittinggi workshop
discussed confidence building measures within the context of the
Spratly and Paracel issues. There are a number of confidence
building measures that had been identified in previous workshops
which could be attempted in the South China Sea area. In fact,
the agreement to cooperate on specific fields, such as on the
study of biodiversity, sea level and tide monitoring and others,
is regarded by some as already a significant confidence building
measure in itself. Therefore, while other participants are quite
willing to discuss specific confidence building measures within
the context of tension reduction and conflict prevention, there
are also others who opposed such discussion. The Bukittinggi
workshop, however, began to discuss one specific measure, namely
the "non-expansion of existing military presence in the area".
The discussion was lively, but productive.

With regard to the prospect for settlement, I have a feeling
that there is a good and strong and political will to cooperate
actively in less contentious areas for mutual benefit, such as
specific cooperation to study biodiversity, sea level and tide
monitoring, resources assessment, data base, information exchange
and net-working, and even the effort to promote safety of
navigation, shipping and communication. This is the first prong
of the approach to manage the potential conflicts within the
context of promoting "preventive diplomacy". Many observers would
consider this willingness to cooperate as peripheral to the
central issue, namely solving the Spratly Islands dispute. It may
be so. But I think these efforts are important as confidence
building measures, no matter how small or insignificant they may
seem to be. We have to remember that South China Sea states do
not have much experience in cooperating, but they have had plenty
of experience in confronting each other, either among the
Association of Southeast Asian Nations (ASEAN) countries
themselves, or between ASEAN members vis-a-vis Indochina and
China, and perhaps more significantly between Southeast Asia and
China itself. Even within ASEAN, after more than twenty five
years since its establishment, we still have plenty of
territorial and jurisdictional issues, although we are fortunate
to have had the opportunity to develop this important sense of
"ASEAN way, solidarity and cohesiveness". It was only within the
last three or four years that friendly and good relations have
been happily developing between ASEAN and China. In fact,
relations between China and Vietnam still need a lot of
fostering. I believe that we need patience in this endeavor.
There is no alternative. The consequences for the region would be
a lot worse if we did not take appropriate measures or if we took
a confrontational policy toward each other. I feel that our
biggest enemy is impatience and the desire to achieve quick
results.

There has been a lot of talk recently on the possibility of
creating a joint development zone or a zone of cooperation in the
South China Sea and to achieve this, some claimants have even
declared their willingness to shelve the sovereignty issue for a
while in favor of joint development. China has talked about this
all the time. Others also seem to respond positively to the idea.
But when we scrutinize the concept and the willingness more
thoroughly, then we encounter many difficulties, primarily
because each one of us has a different meaning of the concept. In
my view, the notion of joint development is a good one but there
are many aspects that need to be clearly defined and agreed upon
with regard to this concept. First, we have to agree "where" the
concept shall be applied, namely the geographical definition of
the cooperative zone. Second, we have to agree on "what" subjects
the joint cooperation shall involve, namely whether it should be
for fisheries, oil and gas, marine scientific research,
environmental protection, and others or a mixture of all these.
Third, we have to identify and agree on the "participants" in
such a joint development zone or zone of cooperation. Fourth, we
also have a agree on the "modalities" and the "institutional
mechanisms" for such cooperation. There are many problems that
need to be discussed. All these will need time and patience.
Indonesia and Australia needed more than ten years to devise and
establish a bilateral zone of cooperation in the Timor Sea.
Certainly we would need more time to deal with this multilateral
issue in the South China Sea.

I personally have undertaken a study on a possible area or
zone that could be designated as the joint development zone.
Understandably my suggestion encountered various reactions and
therefore should be treated with a lot of caution. A lot of
informal dialogs and consultations would have to be undertaken on
this topic. There may also be plenty of other suggestions which
are being studied and which, I am sure, at appropriate time, may
come to the surface.

With regard to the prospects for the second prong, namely
reduction of tension and developing confidence building measures
in the Spratly, the outlook is more bleak. Mutual suspicion still
lingers on. At the same time, the need by claimants to do
something to reaffirm their claims, as well as to develop the
resources unilaterally for their particular national interests,
is getting stronger by the day. Sometimes I feel that the efforts
to promote cooperation and to contain and reduce tension appear
to be moving a lot slower than the national efforts of building
up capabilities and posturings, which in the end may increase
rather than reduce tension. It is therefore essential for every
participant and for every country in the south China Sea area to
devote more efforts and attention to helping develop confidence
building measures and eliminate potential tension in the area.

In conclusion, let me state that the prospect for the solution
of the territorial sovereignty issues in the disputed Spratly
Islands group is not very bright within the near future, but
there are a good number of measures that could be undertaken to
contain the disputes and to convert them to he potential areas
for cooperation. I believe that every potential conflict contains
in itself elements potential cooperation. It is for us to find
them out, and to develop them into actual cooperation. Hopefully
in the long run the Spratly Islands dispute will not erupt again
into armed conflagration that could engulf the region as a whole,
thus diverting us from the path of economic and social
development. Let us all work in the direction of cooperation and
away from confrontation.

Dr. Hasyim Djalal is an Ambassador at Large for the Law of the
Sea and is also the initiator of the South China Sea workshop.
The views expressed in this paper are personal.