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Djalal, H, 2000. South China
Sea Island Disputes. The Raffles Bulletin of Zoology,
Supplement No. 8 (The Biodiversity of the South China
Sea): 9-21. SOUTH CHINA SEA ISLAND DISPUTES Hasjim
Djalal
The
island disputes in the South China Sea (SCS) are either
bilateral, trilateral or, when they involve more than three
parties, multilateral. The most serious of these disputes,
however, are those on the Paracels and the Spratlys, because
they also involve non-Southeast Asians and, in the case of
the Spratlys, they involve many parties. According
to the International Hydrographic Bureau, the South China
Sea is defined as the body of water stretching from a
southwesterly to a north-easterly direction, bordered on the
South by 3° South latitude between South Sumatera and
Kalimantan (Karimata Straits) and on the north by the Strait
of Taiwan, from the northern tip of Taiwan to the Fukien
coast of China. For the purpose of this paper, however, the
southern perimeter of the South China Sea is deemed to be
1° North latitude, thus making it an area of about
three million square kilometers of water. The
seabed area of the South China Sea consists of about one
million square kilometers of continental shelf of less than
200 meters isobath and about two million square kilometers
of seabed area deeper than 200 meters isobath. The
continental shelf area is mainly located in the western and
southern parts (Sunda Shelf), while the deeper part is
located much more to the north-east. The deeper part, in
some areas reaching more than 5000 meters (South China Sea
Basin), is dotted by various shallow banks and coral reef
islands. There
are more than 200 islets, rocks and reefs in this area of
the South China Sea, most of them are not suitable for human
habitation. But they are important for economic, strategic,
political and legal reasons. Adjacent to the SCS proper, lie
various seas of Indonesia and the Philippines which are now
parts of their respective archipelagic waters (the Natuna,
the Karimata, the Java and the Sulu Seas). The
SCS is rich in natural resources. Its fisheries are based
upon large numbers of short-lived species. Unlike in the
Banda Sea area in Indonesia (which is characterised by rich
grounds for tuna, an important fish in the world market),
the species in the SCS are numerous and this makes
large-scale fishing industry of one type of species somewhat
difficult. It is not uncommon that in a single trawl haul,
200 species would be caught, around 80% of which would be of
no or little commercial value. There are more than 2500 fish
species in the Indo-Malayan region alone. The
seabed of the SCS is also suspected, although not yet
proven, to hold extensive deposits of hydrocarbon and fossil
oil, including natural gas, especially in the shelf area on
the western side and in shallow patches of the SCS Basin.
The exploitation conducted by Malaysia and Indonesia in
their own continental shelves as well as by the Philippines
in the Reed Banks give weight to such speculations. The
SCS is surrounded by countries that are mostly independent
but are vastly different from one another. Hong Kong only
recently reverted to Chinese rule (although it is now
treated as a special administrative region) and Macao is
still under foreign rule. The land sizes of the countries
surrounding the sea vary markedly - the smallest being
Singapore (633 sq. km) and the largest China (9.5 million
sq. km). Their population sizes also vary greatly, the
smallest being that of Brunei Darussalam (about 0.3 million)
and the largest China (around 1,200 million). Their Gross
National Products (GNP) per capita also vary, with the
lowest being that of Cambodia (US$215) and the highest that
of Singapore (US$26,400). Brunei has the lowest employment
in fisheries while China and Indonesia have the highest
(there are more than two million fishermen in Indonesia).
Brunei has the lowest fish catch while the highest are those
of China (17.5 million tons in 1993) and Thailand (3.4
million tons in 1993). The consumption of fish per capita
among the nations around the SCS also differs markedly,
Indonesia having the lowest per capita consumption of fish
of about 17 kg per year and Hong Kong the highest, at about
50 kg per year. The
political systems of the states surrounding the SCS are also
markedly variegated - from the communist/socialist countries
of the northern coastlines, the People's Republic of China
(PRC) and Vietnam (although these countries are also
undergoing changes) to the non-communist southern and
eastern insular countries (Malaysia, Singapore, Indonesia,
the Philippines. Taiwan is a special case in itself. An
important geographical fact is that the insular countries
control maritime approaches to and from the coastlines of
the mainland SCS countries. The
SCS is one of the most strategic waterways in the world. The
approaches to the SCS, especially the Malacca-Singapore,
Sunda-Karimata, Balabac, Mindoro, Bashi and Taiwan Straits
are located in the non-communist countries. These
approaches are important for the passage of military and
commercial vessels including and especially tankers. In the
past, the Soviet Union placed great importance to the right
of "transit passage" through the Malacca and Singapore
Straits as well as through the surrounding waters in the SCS
area, primarily because these passages were important for
the communication between western and eastern Russia through
the warm waters of the South Seas. The Russian Federation
may revive this interest in the future once it is in a
position to do so. For
Japan, the SCS and its most important approaches, especially
the Straits of Malacca and Singapore, are extremely
important for its economic and strategic lifelines since
more than 80% of its oil imports are transported through
these waterways. At the same time, these waterways are also
extremely important to Japanese shipping in its trade with
Southeast Asia, South Asia, Africa, the Middle East and
Europe. Japanese interest in the preservation of peace and
co-operation in the SCS may also increase as a result of its
new orientation and increasingly intensive relations with
Association of Southeast Asian Nations (ASEAN)/ Southeast
Asian counties. The
United States has always been interested in the area because
it offers the shortest route from the Pacific to the Indian
Ocean and because it is essential for the movement of U.S.
fleets, either for its own global strategy or for the
purpose of having to defend its allies in the region. The
PRC, although basically still a continental country, has
also begun to pay increasing attention to the SCS and to a
more assertive policy of promoting its interests in the
area, either for economic, political or strategic reasons.
Recently it has begun to develop its naval capabilities,
perhaps in an attempt to strengthen its claim to some
islands in the area. Both
China and Vietnam claim territorial sovereignty over the
Paracel group of islands situated southeast of Hainan,
China. It was occupied by the former regime of South Vietnam
until the PRC took it by force in 1976. Vietnam still
maintains claim over the group of islands in spite of its
occupation by China. Both the PRC and Vietnam rely on
historical records to support their respective territorial
claims to the Paracel islands. Except for its possible
impacts on the situation in the SCS as a whole should it
lead to armed conflict, the Paracel issue is generally
regarded as a bilateral matter between China and Vietnam. The
other territorial conflict with regard to islands is related
to the Spratly islands group which are several hundred miles
to the south of the Paracels. Some of the islands, rocks,
and reefs are presently occupied by Vietnam, the
Philippines, China, Malaysia, and Taiwan. Brunei Darussalam
claims certain portions of the nearby sea as its Exclusive
Economic Zone (EEZ) or continental shelf but does not occupy
any island. The occupiers are exploiting fishery resources
and conducting intensive and extensive exploration for oil
and gas in the area. China
claims them for historical reasons. Recently it has also
based its claim on a map produced in 1947 by the Republic of
China, indicating nine undefined, discontinued and dotted
lines. China claims all the islands encompassed by those
lines, although it began to occupy some of them only
recently. There was no definition of those dotted lines, nor
were their co-ordinates stated. Therefore the legality and
the precise locations indicated by those lines are not
clear. It is presumed, however, that what China claims, at
least originally, is limited to the islands, the rocks, and
perhaps the reefs, but not the whole sea enclosed by those
nine undefined dotted lines. It is inconceivable that in
1947, when general international law still recognised only a
three mile territorial sea limit, that China would claim the
entire South China Sea. A careful reading of its February
25, 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 ("adjacent sea")
does not occur 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 should
start from base points on land, or appropriate baselines,
connecting legitimate points, and not by arbitrarily drawing
them at sea. Taiwan's
claim in the South China Sea is basically similar to that of
China. In fact, the position of the participants from China
and Taiwan in the South China Sea Workshops sometimes were
very similar. Taiwan has occupied Itu Aba since a couple of
decades ago but appears not to have expanded its occupation. 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 SCS, and Vietnam has also
occupied a considerable number of those islands and rocks. The
Philippine claim is based on the so-called "proximity"
principle and "discovery" of the islands concerned by a
Philippine explorer in the 1950s. Unlike the Chinese claim,
the Philippine claim clearly defines the 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 seems 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 only, or whether it also includes the
whole sea within those lines. The Philippines has also
occupied a number of those islands and rocks. The
Malaysian claim is basically based on the continental shelf
principle and it clearly defines the claim by co-ordinates.
It occupies three of these islands, those that it considers
to be situated on its continental shelf. Equally, Brunei's
claim seems to have been based also on the principle of the
continental shelf, although the boundary lines are simply
drawn perpendicularly from two extreme points on the Brunei
coastlines. All
or most of 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 and continuously connected, depending upon the
nature and interpretation of the Chinese claim, then the
Chinese/Taiwanese claims could also intrude upon the
Indonesian EEZ and continental shelf as defined in the Law
of the Sea Convention 1982 and as demarcated in the
Indonesian-Malaysian Agreement of 1969. The Chinese,
however, have assured Indonesia that they do not have
maritime boundary problems with Indonesia in the South China
Sea. All
the claimants, with the exception of Brunei, have occupied
several of the rocks and reefs in a zig-zag pattern. 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. It is basically a scramble for resources, either
living or oil and gas, which are surmised to be abundant in
the area. Exploration efforts are continuing and
exploitation of fishery resources have also taken place.
Conflicts have arisen in the past and their recurrence in
the future is not impossible. In addition to the resources,
the island groups also straddle navigation routes in the
South China Sea. These routes are important not only to the
South China Sea countries but also to non-South China Sea
countries, particularly Japan, South Korea and the United
States, since their interests, particularly in the safety of
navigation, could easily be affected by the potential
eruption of conflict in the area. Indonesia
has taken the initiative of trying to manage potential
conflict in the area and to promote actual co-operation
among the claimants since this is one of the possible
flash-points in the region at this time. Indonesia has just
embarked on a long term national development programme which
requires peace, stability and co-operation in the region.
Any conflagration in the area would almost certainly
adversely impact on Indonesia and its national development
programme. Of course, there are plenty of other conflicts of
a territorial or jurisdictional nature in the region but
those are generally bilateral or trilateral in scope. The
prospects of their becoming explosive are considered
generally to be less threatening than the conflicts over the
Spratly islands, particularly because armed conflicts have
taken place there between Vietnam and China in the past. Thus,
at the end of the Indochina war in 1989-1990, the process of
transforming bickering and confrontation into co-operation
began in Indochina. When the solution of the Cambodian
conflict was in sight in 199O, I felt that Southeast Asia,
particularly ASEAN and Indochina, seemed ready for economic
development and co-operative relations. Development efforts
needed peace, stability co-operation. At that time I felt
somewhat uneasy, however, with regard to the situation in
the South China Sea area, primarily because of the existence
of numerous maritime territorial claims and delimitation
issues, particularly with regard to the Spratly and the
Paracel groups of islands. I felt that it was essential to
seek ways and means of preventing those potential conflicts
from erupting into armed conflagration and promoting
instead, as much as possible, co-operation among the
claimants. A sense of "community" in the SCS area should be
developed. There are enough bases for such co-operation in
the Law of the Sea Convention 1982 in both the EEZ concept
(Articles 61-67) and the "Enclosed or Semi Enclosed Seas"
concept as stipulated in Article 123. At
that time it was difficult to say whether ASEAN had a
perspective on the problem of the SCS. I felt, however, that
there was a strong conviction in Indonesia and in ASEAN that
we should concentrate on promoting our development,
particularly economic, as well as ASEAN and Southeast Asian
cohesiveness. We did not want to see a repeat of the
disturbances that had occurred before in Southeast Asia and
in the SCS area. The armed clash between Vietnam and China
in the Spratlys in 1988 in which three Vietnamese boats were
sunk and more than 70 people lost their lives, was a tragedy
that should move us to prevent such an armed clash again in
the future, not only between China and Vietnam but also
between and among all the claimants. I saw
then that the Paracels and the Spratlys were becoming
prominent issues that might turn out to be a threat to
Southeast Asian security. Therefore, with the blessing and
guidance of Indonesian Foreign Minister Ali Alatas, my first
initiative at that time was to go around ASEAN capitals
(1989), inquiring whether we should pay attention to these
problems and whether we should do something to try to manage
the potential conflicts. I
found out that: (1)
Practically everybody thought that we should do something; (2)
There was apprehension that territorial disputes could pose
major difficulties in developing co-operative efforts; (3)
In view of difficult and sensitive territorial issues, it
would be better if the approach were informal, at least at
the initial stage; and (4) There was a notion that ASEAN members should coordinate their views and positions first before they engage non-ASEAN states in such efforts. Consequently,
I felt that: (1)
Regardless of the territorial disputes, we should always try
to find out ways to manage potential conflict and to find an
area or areas in which everyone could agree to co-operate,
no matter how small or how insignificant it might seem to
be. (2)
We should be guided by the idea that in instance of conflict
there was always an opportunity for co-operation. It was up
to all of us to discover it and to develop it for the
benefit of all. Accordingly,
the First Workshop in Bali in 1990 was specifically and
exclusively attended by ASEAN participants so that they
could lay down the groundwork. But in the Second Workshop in
Bandung in 1991 it had become a very "inclusive" group; not
only Vietnam and China were invited but also Taiwan. Even
land-locked Laos was also invited. Cambodia was invited
later after the political situation there became clearer. At
that time, I had two basic objectives: (1)
To manage the potential conflicts by seeking an area in
which everyone could co-operate. (2)
To develop confidence building measures or processes so that
the various claimants would be comfortable with one another,
thus providing a conducive atmosphere for the solution of
their territorial or jurisdictional disputes. I
thought it would be a major achievement for the region that
we had decided to work together to transform the habit of
confrontation into a habit of co-operation. This could be
the sooner achieved if we had programmes designed to achieve
it. Therefore, it was important to find a common
denominator, no matter how slow the process may be or how
small was the result at the beginning. Patience was
important then as it still is today. In
the beginning, we were working in stages. We opened free
discussion, we identified various areas of possible
co-operation, we dissected every topic and problem and
placed them under various categories, such as protection of
the marine environment, political and strategic issues,
safety of navigation, marine scientific research,
territorial disputes-including the dispute over the Spratlys
and Paracels, institutional mechanisms for co-operation, and
so on. On the Spratlys and the Paracels, in view of the
extremely sensitive nature of the disputes, we limited the
forum to five minutes for each participant to express his
views without entering into discussion. In the end, we found
out that there were quite a lot of things that the
participants would like to co-operate on. After
the Second Workshop in Bandung in 1991 and the Third
Workshop in Yogyakarta in 1992, we decided that we needed to
concretize and materialize ideas. By the Fourth Workshop in
Surabaya in 1993 we had already identified a good number of
topics that we could co-operate on. We then decided to
convene various Technical Working Groups (TWG) to deal with
the various topics in more detail. So far five TWGs have
been established, namely: (1)
The TWG on Marine Scientific Research (MSR) which has met
five times, namely in Manila, Jakarta, Singapore, Hanoi, and
Cebu; (2)
The TWG on Resources Assessment which has met once in
Jakarta; (3)
The TWG on Protection of Marine Environment which has met
once in Hangzhou, China; (4)
The TWG on Legal Matters which has met once in Phuket,
Thailand; and (5)
The TWG an Safety of Navigation, Shipping and Communication
which has met twice-in Jakarta and Brunei Darussalam. In
the end, the effort to look for areas of co-operation bore
fruit. At the Fifth Workshop held in Bukittinggi in 1994, we
approved the proposal of the TWG on MSR to carry out a
co-operative study on biodiversity in the SCS, and at the
Sixth Workshop in Balikpapan in 1995, we approved two more
project proposals by the TWG on MSR, namely: (1)
Co-operation on the study of sea level and tide monitoring
in the SCS within the context of global climatic change, and (2)
Developing database, information exchange and networking
arrangements among scientists. Taking
into account Article 123 (d) of the UNCLES 1982, which
states that "States bordering on enclosed or semi- enclosed
sea (such as the South China Sea) should co-operate with
each other in the exercise of their rights and in the
performance of their duties ... (and) to this end, they
shall endeavor to invite, as appropriate, other interested
states or international organizations to co-operate with
them...", we decided at the Fourth Workshop in 1993 in
Surabaya that participation by non-SCS experts or countries
in implementing any project proposal should be allowed on a
case by case basis. As a result of the three agreed project
proposals, I felt that we had made substantive progress in
devising some co-operative efforts. In
the meantime, at the end of the Sixth Workshop in Balikpapan
in 1995, we had also agreed to undertake various studies
within the context of promoting safety of navigation and
communication in the SCS. Specifically we agreed that: (1)
Singapore look for and prepare a basic outline for ways of
co-operating in improving and coordinating education and
training programmes for our mariners and seafarers; (2)
Malaysia draft a plan for a co-operative effort to fight
illegal uses of the sea, including measures to fight against
piracy and illicit traffic in drugs, and to promote
co-operation in search and rescue operations in the SCS; (3)
China serve as the leading participant in preparing and
promoting co-operation to prevent and control marine
pollution and in coordinating various contingency plans to
prevent and abate marine pollution; and (4)
Taiwan prepare a proposal for exchange of information on
hydrographic data and mapping in the SCS. Within
the context of co-operation on legal matters, we had also
agreed, among others, that "legal officers" of the various
participants should exchange information on their
legislation and their legal documentation in order to
increase transparency in the development of their respective
maritime legislation, thus preventing possible surprises and
confrontation as much as possible. I
have been authorized by the Workshop to communicate with
various interested countries all over the world and with
various regional and international organizations to seek
support and find out whether they are willing to co-operate
with and assist us in implementing the three approved
projects. Subsequently, I have obtained several responses on
the biodiversity project. For instance, Australia has
promised to make available an expert on biodiversity at its
own expense and has kept in escrow some funds that we can
use to help finance activities related to the project. The
United States has sent us some data on biodiversity which
are in its possession; it has also offered to us experts on
project payment basis. Japan has submitted questions to us
with regard to the biodiversity project and, after
consulting the experts group meeting, we have sent our
reply. Japan has indicated to us that it will support the
project financially and through the provision of experts.
Some countries of the European Community have responded to
our approach with very supportive words. Even Russia has
indicated that it is quite willing to provide its experts
for this study. Brunei Darussalam and Indonesia have
provided us some seed money to start with. Canada continues
to financially support the ongoing Workshop process through
the University of British Columbia in Vancouver. The UNDP
has already responded to us in a positive way and in fact
has told us to coordinate the proposed biodiversity project
with two other similar projects in Hong Kong and in Hainan
respectively which are also asking support from the UNDP. We
have carried out discussions with the proponents of the two
other projects. We have found out that our co-operative
project on biodiversity does not overlap with nor conflict
with either the Hong Kong or Hainan project. These two other
projects are basically local in character while ours is
regional in character. In fact, the results of our joint
project could serve as basis for the Hong Kong and Hainan
projects. I feel that the UNDP response has been positive.
The biodiversity project is also under consideration by the
UNEP. At the same time, I have also contacted various
littoral countries of the SCS area to assess their
willingness to participate in the implementation of the
projects approved by the Workshop. The governments of most
littoral countries of the SCS, some at the level of Foreign
Ministers, have written or indicated to us their willingness
to support the co-operative efforts and project proposals,
either by way of providing expertise, and or technical
support and facilities, and/or financial contribution or a
combination of the three. The
second set of the activities that we tried to carry out
consisted of endeavours to promote Confidence-Building
Measures (CBM) or Confidence-Building Process (CBP). Along
this line, in the Second Workshop in Bandung in July 1991,
we issued a Statement on the need to resolve any territorial
or jurisdictional disputes in the SCS by "peaceful means
through dialogue and negotiation", that "force should not be
used to settle territorial and jurisdictional disputes", and
that "the parties involved in such disputes are urged to
exercise self restraint in order not to complicate the
situation." This statement was a precursor to the ASEAN
Declaration on the South China Sea in Manila in July 1992.
In the course of the Workshop discussions various measures
of confidence buildings or processes were mentioned. Some
regarded the Workshop process itself as already an important
CBM. At the Fifth Workshop in Bukit Tinggi in 1994 we also
took up the need for "non-expansion of existing military
presence." This principle was supported by many but opposed
by a few, arguing that this was not a matter for the
Workshop to discuss. This was before the Philippines
"discovered" Chinese occupation of the Mischief Reef in
February 1995. During the Sixth Workshop in Balikpapan in
1995 we talked about more contacts and the possible
"exchange of military commanders" who are responsible for
the security of the multiple claims area in the Spratly
Islands Group. Again, this was supported by some but was
also opposed by others, again arguing that this was not a
matter for the Workshop to discuss. It was suggested,
however, that some transparency of the activities in the
disputed area was needed. In other words, we tried to look
for CBMs or CBPs that could secure the respect and
participation of all. We will continue to look for such
measures. In
the process of organizing these activities, we have also
moved on to a third objective, namely to encourage more
discussion and dialogue among the parties to the territorial
disputes so that, hopefully, they would find the basis for a
solution that would be acceptable to all concerned. China's
position was that the settlement of the territorial disputes
could only be made by the parties concerned bilaterally, not
regionally or multilaterally or internationally. If that was
what the directly concerned parties wanted, then all that we
should do was to encourage the participants concerned to
seek ways and means to solve their problems. Lately, we had
noticed that the bilateral dialogue between China and the
Philippines had produced an eight-point code of conduct
between them. Similarly, bilateral dialogue between Vietnam
and the Philippines has also produced a nine-point code of
conduct between them which was very similar to the
eight-point code of conduct between China and the
Philippines. I understand that there has also been dialogue
between China and Vietnam and Malaysia, and between Malaysia
and other claimants. It is my hope that the various
bilateral codes of conduct would in end produce some common
denominators that could be developed into an agreed regional
code of conduct in the effort to solve multiple conflicting
claims in the SCS. One
of the most important issues is the question of Joint
Development (JD) or Joint Co-operation (JC). I personally
support this approach in overcoming the territorial
problems. We have even formed a Special Technical Working
Group (TWO) on Resources Assessment and Ways of Development
to deal with this topic and the TWG has met once in Jakarta
in July, 1993. The TWG has agreed to ask Vietnam to
co-ordinate activities dealing with the study of "non-living
non-hydrocarbon" resources, Indonesia to coordinate the
activities on the study of "non-living hydrocarbon"
resources, and Thailand to coordinate the activities on the
study of the "living resources," namely fisheries in the
SCS. It appears that developing co-operation on resources
study and management is so sensitive that it is difficult to
make progress. This
TWG on Resources Assessment has also agreed on several
points: (l)
That the Joint Development Concept has excellent potential,
being in line with the statement of Chinese Prime Minister
Li Peng in Singapore, expressing China's willingness to
shelve territorial or Sovereignty claims in favour of joint
development. (2)
That we should study the various concepts or models of joint
development around the world and to learn from them what
could be applied to the SCS area. (3)
That we should apply the Joint Development Concept to a
"zone to be defined". The problem is how to define the
"zone" for the Joint Development or Joint Co-operation. In my
mind, the concept of Joint Development would not be very
meaningful unless we are able to formulate and agree on at
least four points: (1)
The "zone'' where we are going to co-operate or jointly
develop; (2)
The "nature," the "subject" or the "topics" that we are
hoping to co-operate on (fisheries, minerals, gas, oil,
environment, marine scientific research, marine parks,
etc.); (3)
The "mechanism" for such joint development, which could be
an Authority or a loose coordinative organization or
arrangement; and (4)
"Who" shall participate in such Joint Development or Joint
co-operation activities. The
four points, it seems to me, are sine qua non for a
JD concept. If one is missing, it does not make much sense.
On the basis of the decision of the TWG on Resources
Assessment I have attempted to find out and define the
"zone" where every participant, at least those having
overlapping claims, can co-operate on the basis of the Law
of the Sea Convention 1982. For obvious reasons, I have
never made public my suggestion on this subject. Some
claimants were happy with my suggestion. Others said that
they might have some reservations and amendments but they
were willing to look into it and to discuss it. But one
claimant did not even want to talk about the "zone" as I
suggested although it expressed its willing to co-operate. In
the end, we have arrived at a situation where we realize
that the concept of Joint Development, from an academic as
well as a practical point of view, still needs a lot of
discussion and researching. Many people are talking about
the concept, but many details still do not make much sense.
In fact, the JD concept means different things to different
people. The
whole process of managing potential conflicts in the SCS and
transforming it into an area of actual co-operation has
worldwide support. The 25th ASEAN Ministerial Meeting in
Manila in July 1992 "noted that the workshop on managing
potential conflicts in the South China Sea initiated and
hosted by Indonesia had contributed to a better
understanding of the issues involved". Following the
Workshop statement in Bandung in 1991 on the need to resolve
territorial and jurisdictional disputes in the SCS by
peaceful means through dialogue and negotiation and that
force should not be used, the ASEAN Ministerial Meeting also
issued the ASEAN Declaration on the SCS, emphasizing the
"necessity to resolve all sovereignty and jurisdictional
issues pertaining to the South China Sea by peaceful means,
without resort to force." This position has been repeated on
a number of occasions, including at the ASEAN Summit Meeting
in Bangkok in December 1995 in which the Summit stated that
ASEAN should seek an early peaceful resolution on the SCS
dispute and shall continue to explore ways and means to
prevent conflicts and enhance co-operation in the SCS". The
European Community has also supported the initiative. In a
statement issued after the ASEAN-EU Dialogue in October
1992, it was stated that the EC Ministers endorsed the ASEAN
Declaration on the South China Sea issued in Manila in July,
1992 and called on the regional powers to work to this end.
The Ministers "noted that the Workshop on the South China
Sea held in Indonesia had contributed to a better
understanding on the issues involved. They hoped that
further talks among the concerned parties to explore the
possibility for JC in the SCS could be held at an
appropriate date". This was repeated again in the ASEAN-EU
Ministerial Meeting in 1994 in Karlsruhe, Germany. Even the
Non-Aligned Movement (NAM) has also consistently supported
the Workshop process since its tenth Summit in Jakarta in
September 1992. The Summit welcomed the ASEAN Declaration on
the SCS and all constructive proposals put forward by the
countries in the region and China. The Ministerial meeting
of the Coordinating Bureau of the NAM in Bandung in April
1995 also "welcome the Indonesian initiative in sponsoring
the workshop". This position was later reaffirmed by the
11th NAM Summit in Cartagena in October 1 1995. Various
other countries have also indicated support for this
initiative. Finally,
the Chinese position on the SCS issues and co-operation
remains significant: (1)
China has been supportive of the Workshop process. It has
hosted one meeting and will be hosting another in 1997. Yet
it seems to feel that the process has gone too far, too fast
and has discussed too many topics; therefore it seems that
it would like the Workshop process to slow down and reduce
its meetings and activities. (2)
China supports the efforts to promote co-operation on
concrete technical issues as formulated by the TWG meetings
in which China participated actively. Yet, to my knowledge,
it has not yet decided whether to participate or not in the
realization or implementation of the agreed collaborative
projects. (3)
China seems to acknowledge the need to develop CBM or CBP
among the countries of the SCS region, but it seems to take
the position that the workshop process itself is already a
CBM, and that the workshop should not discuss other CBMs or
CBPs which it considers to be beyond the competence of the
Workshop. (4)
China is willing to shelve territorial claims in favour of
JD, but it is not clear to me where the "zone" is that China
is willing to jointly explore or exploit. It appears that
what China means by Joint Development is that China will
jointly and bilaterally develop with the other claimant
concerned the resources of the SCS in the area claimed by
the other. (5)
While China wishes to develop co-operation with Southeast
Asian countries, China continues to exercise a policy of
assertiveness in the South China Sea and seems to be
developing a habit that before a dialogue with ASEAN, China
would take a unilateral decision that could upset ASEAN
countries. Before
the ASEAN-PMC Meeting in Manila in July 1992, China
published its law on Territorial Sea and Contiguous Zone in
February 1992 that reaffirmed its claims over the Paracel
and the Spratly islands and issued a license to Crestone Oil
Company to explore for oil and gas in an area very far from
China or from the Spratlys. These created consternation in
Southeast Asia and led to the issuance of the ASEAN
Declaration on the SCS in July 1992. Again, after the
discovery by the Philippines of the Chinese occupation of
Mischief Reef in February 1995, the ASEAN Foreign Ministers
Meeting in Singapore issued another statement in March 1995. Recently,
before the ASEAN-China Dialogue in Bukittinggi on June
10-12, 1996, China announced on May 15, 1996 parts of its
baselines for measuring its territorial sea adjacent to the
mainland and around the Paracel Islands, stipulating further
that China Will announce the remaining baselines of the
territorial sea of the PRC "at another time". It is not
clear what China means by the "remaining baselines". If it
is going to be around the Spratlys, it will be a
tremendously daring policy and perhaps "dangerous". Even
drawing baselines around the Paracels would already be
"problematic". If it does consider drawing baselines around
the Spratlys, it would be arrogating unto itself a
substantially large part of the sea as its "internal waters"
and thus would not be in conformity with UNCLOS 1982,
particularly Article 89 which states that "No state may
validly purport to subject any part of the high seas to its
sovereignty." The drawing of such straight baselines around
the Spratlys, and possibly also around the Paracels, for the
purpose of claiming internal waters, would neither be in
line with UNCLOS 1982 which states that baselines must be
"determined in accordance with the Conventions (Article 3),
that "normal baseline ..... is the low water line along the
coast ..."(Article 5), that "in the case of islands situated
on atolls or of islands having fringing reefs, the baseline
... is the seaward low water line of the reef ..." (Article
6). "Straight baselines" can only be employed "in localities
were the coastline is deeply indented and cut into, or if
there is a fringe of islands along the coast in its
immediate vicinity ..." (Article 7(1)) or "where because of
the presence of a delta and other natural conditions the
coastline is highly unstable" (Article 7(2)), or if a river
flows directly into the sea, "across the mouth of the river"
(Article 9), or "where the distance between the low water
marks of the natural entrance points of a bay exceeds 24
nautical miles", then "a straight baseline of 24 nautical
miles" may be employed (Article 10(5)). There is no
provision in UNCLOS 1982 allowing states to draw straight
baselines around a widely scattered small and tiny islands
or rocks in the middle of the sea or ocean, except in
specific cases of "archipelagic states" which are allowed to
draw straight archipelagic baselines "which chart
archipelagic waters", not "straight baselines" which chart
intenal waters. Despite
these assertive practices of China, there has been some
encouraging signs: (1)
China has indicated that it is willing to resolve the issue
of its territorial claim in the SCS on the basis of
International Law, including the UNCLOS 1982; (2)
China has also ratified the UNCLOS 1982. This means that
China would have to observe the provisions of the UNCLOS
1982 on baselines (Articles 3-14), on status of islands and
rocks in its relation to EEZ and continental shelf (Article
121), and on enclosed and semi-enclosed seas (Articles 122
and 123), on high seas, particularly Articles 87, 88, 89 and
90. Perhaps more important is that China's willingness to
abide by the UNCLOS provisions would also mean its
acceptance of the obligation to "settle any dispute
concerning the interpretation or application of the
convention by peaceful means" (Article 279) and to abide by
the "compulsory procedures entailing binding decision" as
indicated in article 286 of UNCLOS, to the effect that if
recourse to dispute settlement mechanism chosen by the
parties has not resulted in a settlement, the dispute "shall
be submitted at the request of any party to the dispute to
the court or tribunal having jurisdiction over the case. (3)
Perhaps also significant is China's willingness to discuss
informally the South China Sea issues with ASEAN and within
the context of ASEAN Regional Forum (ARF), although China
still refuses to discuss the issue formally or
internationally. In fact, China has now indicated its
willingness to discuss its recent legislation on the SCS
with Indonesia at expert level. I hope that discussions
could also be held on this matter later on between China and
ASEAN. On
the basis of the above observations, at this stage in
managing the potential conflict in the SCS it would be very
helpful if China could clarify certain basic points, namely: (1)
That what China is claiming in the South China Sea is
limited to the islands and the rocks within its nine-dotted
undefined lines of 1947 and that it does not claim the sea
itself within those dotted lines; (2)
That whatever maritime zone or zones are generated by those
scattered tiny islands and rocks would be determined by the
provisions of UNCLOS 1982; (3)
That China's territorial claim over the islands and rocks in
the SCS is not in the same nature or similar to the Chinese
policy over Taiwan, and therefore a commitment by China not
to use force in settling its claim to the SCS islands is
necessary; (4)
That pending resolution of the conflicting territorial
claims, China and other claimants will not occupy new rocks
or reefs in the disputed area; and (5)
That China clarifies its willingness to shelve territorial
disputes in favour of loins Development. It
would also be helpful if other claimants make similar
clarifications, individually or collectively. If such
clarifications could be made, then the process of building
up confidence and co-operation in settling the disputes
could be significantly improved. To
conclude, let me state that we are still very far from
settling the multiple territorial disputes in and around the
Spratlys area. In fact, the workshop process is not trying
to solve those disputes. What it is trying to do is
primarily to promote co-operation and confidence in areas
where the parties to the disputes could and would
co-operate, hoping that by this initiative we would be able
to create a better climate for the parties concerned to
promote dialogue so that, hopefully, they would be able to
solve their disputes peacefully by themselves without
resorting to force. We have devised a number of projected
co-operative efforts and we hope this will advance the
confidence building process which could be one effective way
to manage the potential conflict in the South China Sea and
transform it into an area of actual co-operation. Yet, there
are a lot more issues that need to be clarified by the
parties concerned, particularly with regard to their
respective claims and their willingness to seek solution.
Clarification through national legislation has not proven to
be effective in settling disputes. In fact, national
legislation tends to consolidate and harden national
position which make it more difficult to seek a solution or
a compromise. Looking
into the future, the seventh Workshop held in Batam,
Indonesia, last December 14-16, 1996, outlined the work
programme for 1997 on managing the potential conflict by
promoting co-operation in the SCS as follows: (1) A
small meeting of experts to initiate activities under the
Biodiversity Project to be hosted by Thailand; (2) A
meeting of a Group of Experts on Training and Education of
Mariners and Seafarers to be hosted by Singapore; (3) A
meeting of a Group of Experts on Hydrography, Data and
Mapping to be hosted by Malaysia; (4) A
meeting of a Group of Experts on Marine Environmental
Protection to be hosted by Cambodia; (5)
The Second Technical Working Group Meeting on Legal Matters
to be hosted by Thailand; (6)
The Second Technical Working Group Meeting on Marine
Environmental Protection to be hosted by China; (7)
An eight day Training Programme on Biodiversity to be
organized and hosted by Singapore; and (8)
The Eighth Workshop on Managing Potential Conflict in the
South China Sea to be hosted by Indonesia toward the end of
1997. In
short, the situation with regard to multiple territorial
disputes in the South China Sea is still confusing. There
are possibilities for promoting co-operation in various
areas and developing confidence building measures and
processes. The prognosis for the future could still be worse
if the South China Sea countries would not do enough to
manage the potential conflicts in the area and to transform
them into actual co-operation.
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