By Hasjim Djalal
The Raffles Bulletin of Zoology, Supplement No. 8 (The Biodiversity of
the South China Sea): 9-21. 2000
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 PhilippinesChina 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. has also produced a nine-point code
of conduct between them which was very similar to the eight-point code of
conduct between
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 CartagenaOctober 1 1995. Various
other countries have also indicated support for this initiative. in
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.
Hasjim Djalal is Indonesian Ambassador-at-Large for the Law of the Sea and Maritime
Affairs, President of the International Seabed Authority, and member of the Indonesian National Maritime Council, Jakarta.
(Source: http://www.southchinasea.org/docs/Djalal,%20South%20China%20Sea%20Island%20Disputes.htm
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