9.

12 South China Sea Managing Territorial and Resource Disputes Aileen Baviera Sometimes called the Mother of all territorial disputes due to the number of claimants and stakeholders, the complexity of the claims and the wide range of interests involved, the South China Sea disputes have the potential to trigger armed conflict in East Asia. The claimants have entered into the early stages of a conflict prevention process, characterized by confidence-building measures and agreement on fundamental principles of conduct. Various Track Two initiatives and proposals point the way forward on how to calm these troubled waters, but the first prerequisite political will on the part of the claimant governments is not yet in place. The South China Sea (SCS) disputes refer to competing territorial and jurisdictional claims over four groups of islands, reefs, and atolls, along with their surrounding waters, lying strategically between China and Southeast Asia. These disputes, which focus specifically on Pratas Island, Macclesfield Bank, the Paracels, and the Spratlys,1 existed prior to World War II, when claims were made by China and the two colonial powers, Japan and France. After the war, France withdrew from the region and Japan renounced its claims in the San Francisco Peace Treaty, without specifying to which country or countries they were being relinquished, therefore triggering subsequent competition among littoral states, with rival claims pursued by Mainland China (PRC), Taiwan and four Southeast Asian states.2 The area is strategically important for various reasons, but most of all because critical sealanes traverse the waters, linking Northeast Asia and the western Pacific to the Indian Ocean and the Middle East. More than half the world's shipping tonnage reportedly sails through the South China Sea each year, including more than 80 percent of the oil destined for Japan, South Korea and Taiwan.3 China and Taiwan share the same historical basis for their claims, citing Ming Dynasty chronicles as well as a 1947 map published by the Republic of China enclosing virtually the entire Sea in nine dotted lines. The two do not appear to compete directly with each other and

have even explored cooperation in the past to advance common claims.4 However, there are recent indications that Taiwan wants to distinguish its claim from those of the PRC.5 Of the four island groups, Pratas and Macclesfield Bank are claimed by both China and Taiwan, with Taiwan occupying Pratas. Macclesfield Bank is completely submerged and therefore unoccupied. The Paracels are the subject of disputes between China/Taiwan and Vietnam, which led in 1974 to brief PRC-South Vietnam armed confrontations, ending with Vietnams expulsion from the islands and their occupation by PRC. The entire Spratly group some 100 islets and outcroppings spread over 410,000 sq. kilometers of the South China Sea with a total land area of less than 5 sq. kilometers is also claimed by China/Taiwan and Vietnam, while only certain parts are claimed by the Philippines, Malaysia, and Brunei. Vietnam and China also clashed in this area in 1988, resulting in the sinking of three Vietnamese vessels and the loss of 70 soldiers. It is believed that Vietnam now occupies around 22 features in the Spratlys, China 14, the Philippines 11, Malaysia 10, Taiwan 1 (the largest feature Itu Aba), and Brunei none.6 Except for a few islands which have been converted into civilian facilities by Taiwan and Malaysia, the islands are occupied by military troops. A fifth area, not previously treated as part of the disputes but considered by China to be part of its claim, is an uninhabited rocky outcrop known as Scarborough Shoal which has recently become a bone of contention between China and the Philippines. (For the basis of the claims, see Table 9.12.1) Collectively, these disputes are perceived to be a regional flashpoint, with the possibility of armed confrontation persisting, although to a considerably lesser degree than in other conflict areas in the region such as the Taiwan Strait or the Korean peninsula. At stake in the disputes are issues of sovereignty and territorial integrity, competition for access to the oceans living resources (fisheries and other marine flora and fauna) and non-living resources (oil, gas and other mineral deposits)7, freedom of passage and navigation in vital trade and communication sea-lanes, and control for the purposes of security against external threats. Vietnam and China have long been at loggerheads over the Paracels and Spratlys, symptomatic of larger historical, cultural and ideological animosities.8 Until 1992, when Chinas passage of its Law on Territorial Sea and Contiguous Zone reiterated extensive claims over the entire South China Sea, the other ASEAN claimants generally viewed the China-Vietnam dispute with concern from the sidelines. That year, following fresh tensions between Beijing and Hanoi, ASEAN issued its first collective official statement commonly 2

referred to as the Manila Declaration on the South China Sea calling on the parties concerned to exercise self-restraint and to commit to peaceful conflict resolution. Larger events in the region during the post-Cold War period contributed to the increasing importance of the South China Sea, raising the stakes for those involved. In 1994 UN Convention on the Law of the Sea (UNCLOS) took effect, hastening competition for extended jurisdictions over ocean areas, at a time when the pressures of population growth and rapid industrialization appeared to increase global demand for ocean-based food and energy sources. The rise of China as a regional power, fueled by over a decade of high economic growth, led to a worrisome combination of renewed nationalism among its people, greater assertiveness in its foreign policy, and a more ambitious military modernization program focused on maritime power projection. These developments occurred concurrent with a reduction in the U.S. military presence, following the closure of U.S. bases in the Philippines and a shift to the so-called places, not bases approach, thus adding an element of uncertainty to the regional security environment. Meanwhile, Vietnam had joined ASEAN (after relations had improved following the end of Hanois occupation of Cambodia), with the perhaps unintended result that the South China Sea disputes became re-framed as a ChinaASEAN problem, since Taiwans role remained unclear and all the four other claimants were now ASEAN members.

Table 9.12.1: South China Sea - Claimants, basis and extent of claims China (PROC) Historical grounds, including naval expeditions by Han Dynasty (110 AD) and Ming Dynasty (1403-1433 AD.) A 1947 map published by ROC shows that their claim includes all islands within 9 dotted lines; no specific claims to adjacent waters are mentioned but are presumed by many Same as PRC Historical grounds dating to French colonial period Claims Paracels, whole of Spratlys and its continental shelf Proximity principle, exploration and discovery of territory that was unoccupied at the time Claims only some islands in eastern part of Spratlys Based on continental shelf principle Claims only some islands in southern part of Spratlys Based on continental shelf principle

Taiwan (ROC) Vietnam

Philippines

Malaysia Brunei

Claims only a small corridor and one island overlapping with Malaysian claim

There are other parties that are directly or indirectly concerned with the outcome of the disputes. Many countries have a stake in continued freedom of navigation, safety and security, and some an unstated interest as well in the presumed energy reserves in the ocean floor. At the sub-national level, stakeholders include fisher folk, fishing enterprises, shipping companies, and coastal communities in the littoral states, whose existence and livelihood depend on access to rich fishing grounds and sea-based of communication lanes. Supranationally, the scientific community and environmental conservationists also take an interest in these waters because of what study of them may reveal about how their resources could be better managed. Clearly, though, the rival sovereignty claims and the contest for expanded maritime jurisdictions, backed by armed capabilities, constitute the fundamental source of conflict. (See Table 9.12.2 for a brief chronology on the disputes.)

Table 9.12.2: South China Sea - Selected Chronology of Incidents

1974 1988 1992

1993 1994

1995 1996

1997

1998

1999

Chinese seize the Paracel Islands from South Vietnam Chinese and Vietnamese navies clash at Johnson Reef in the Spratlys. Several Vietnamese boats are sunk and over 70 sailors killed Vietnam accuses China of landing troops on Da Luc Reef. China seizes almost 20 Vietnamese cargo ships transporting goods from Hong Kong between June and September China passes Law on Territorial Sea and Contiguous Zone, laying claim to Paracels and Spratlys, among others Chinas South Sea Fleet conducts major maneuvers in South China Sea China builds a new airstrip on the Paracels China and Vietnam have naval confrontations within Vietnams internationally recognized territorial waters over Vietnams Tu Chinh oil exploration blocks 133, 134, and 135. Chinese claim the area as part of their Wan An Bei-21 (WAB-21) block China occupies Mischief Reef near the Philippines Taiwanese artillery is fired at a Vietnamese supply ship China ratifies UNCLOS but declares baselines around the Paracels Chinese vessels engage in a 90-minute gun battle with a Philippine navy gunboat near Capones Island China sets up an oil rig on Vietnams continental shelf The Philippine navy orders a Chinese speedboat and two fishing boats to leave Scarborough Shoal; later removes Chinese markers and raises Philippine flag China sends three warships to survey Philippine-occupied Panata and Kota Islands China upgrades structures on Mischief Reef Philippines brings U.S. Rep Dana Rohrabacher on overflight of Mischief Reef; U.S. State Dept reportedly tries to prevent him from taking the trip Vietnamese soldiers fire on a Philippine fishing boat near Tennent (Pigeon) Reef A Chinese fishing boat is sunk in a collision with Philippine navy vessel on two separate occasions near Scarborough Shoal Philippine defense sources report that 2 Malaysian fighter planes and 2 Philippine air force surveillance planes nearly engaged over a Malaysian-occupied reef in the Spratly Islands; Malaysian Defense Ministry denies there was a stand-off Vietnam expands structures on three reefs; the Philippines and Taiwan protest Philippines protests Vietnamese troops firing at its Air Force reconnaissance plane Philippine navy ship runs aground on Scarborough Shoal, sparking China to send navy patrol

2000

Philippines files diplomatic protest against Beijing after its navy spots six Chinese vessels loaded with coral anchored off Scarborough Shoal. A navy patrol boat tries to ward off the vessels but later retreats Two Chinese navy vessels and a survey and research ship are sighted in Scarborough Shoal U.S.Philippine joint exercises are held near the Spratly area; China strongly protests

2001

Sources: Energy Information Administration www.eia.doe.gov; Aileen S.P. Baviera, Ocean of Opportunity or Sea of Strife: Transforming the South China Sea Conflict, Paper presented at Seminar on Conflict Prevention and Peacebuilding in Southeast Asia: Regional Mechanisms, Best Practices and ASEAN-UN Cooperation in the 21st Century, 21 February 2002, Manila.

Conflict Dynamics Thus far, the use of force that has been limited to just a few parties and cases and has resulted in relatively small-scale clashes. Apart from the hostilities between China and Vietnam clashes already cited, there have also been occasional stand-offs between opposing navies of the various claimants, warning shots fired by military troops, harassment and arrest of fishermen on grounds of illegal entry or poaching, the sinking or seizure of civilian vessels and properties, and in a few cases, verbal tussles among political leaders.9 But despite signs of continuing military build-up in the area, there have been no actual battles fought between the armed forces of any of the claimant nations since the Sino-Vietnamese clashes in 1988. Recent attention has focused on tensions between the Philippines and China over Beijings 1995 occupation of the Mischief Reef, claimed by the Philippines, and Chinese fishing in both disputed areas and Philippine territorial waters. Yet, although the animosity generated by the Mischief Reef issue is a serious concern, the two governments have not allowed the disputes to disrupt the normal course of relations. A similar reluctance to make the disputes a central issue in their bilateral diplomacy can be observed among all other claimants. ChinaASEAN relations have not, in fact, revolved around this single issue, nor have the disputes hindered the development of comprehensive bilateral relations between China on the one hand and individual ASEAN states on the other hand. Neither have they prevented China and ASEAN from pursuing policy coordination in ongoing multilateral arenas such as the

ASEAN Regional Forum, the ASEAN-China dialogue partnership, or the more recent ASEAN + 3 (China, Japan, and Korea) framework. In this context, governments in the region tend to look at the South China Sea problem as a potential conflict perhaps an accident waiting to happen rather than as an active one requiring their urgent attention. Chinas role in the development of the conflict is seen as crucial because it is the most powerful claimant, holds the most extensive claims, and has been known to use military force in pursuit of its other territorial claims. China has also appeared the most unyielding in its position, continuing to assert its indisputable sovereignty and insisting on handling disputes only bilaterally with each of the other claimants. In early 1996, Beijing unilaterally declared baselines around the Paracels and announced that it would do the same for other territories at a later date. The following year, Hanoi protested Chinas construction of an oilrig on part of its continental shelf. In late 1998, China expanded its Mischief Reef presence into what Philippine defense authorities described as an emerging military facility equipped with helipads, gun platforms and radars. China is not, however, the only party guilty of apparent unilateral assertions of sovereignty or provocative acts. In 1999, shortly after holding a consultation with China intended to help build mutual confidence, the Philippine navy in separate incidents in May and June intercepted Chinese fishing boats near Scarborough Shoal, and accidentally sank two vessels.10 Malaysia soon afterwards set up markers and sent scientific and research personnel to areas just outside the Philippine-claimed area.11 It was also reported to have begun building a base on Philippine-claimed Investigator Shoal. In October 1999, Vietnam expanded structures on three of its occupied reefs, triggering protests from the Philippine and Taiwan governments. The costs of the escalating tensions can be measured in terms both of consequences and of opportunities lost. They have contributed to arms build-ups in the region to secure, for the first time, maritime interests. During the 1980s, Indonesia, Malaysia, the Philippines, Singapore, and Thailand joined later on by Vietnam each began gradually to shift its security focus from internal to external concerns, including the control of its territorial waters, assertion of a 200-mile exclusive economic zone and securing trade-related sea-lanes. China also began to develop the ability to mount better-integrated military operations in the South China Sea, fueling suspicion about its intentions not only among the claimants but also among other members of the international community, including major powers such as the 8

United States and Japan. 12 One may even argue that Chinas maritime ambitions in the South China Sea have given credence to a China threat theory and have helped to justify the pursuit of a balance of power strategy for the region. Meanwhile, the harassment of fishermen has led to the obstruction of economic activities, and an increase in diplomatic tensions. The disputes have also impeded more rational development of the oceans resources, as claimants have failed to establish cooperative regimes that could otherwise help promote both better development and more sound environmental practices.

Official Conflict Management Various official initiatives to address the potential conflict have been undertaken since the 1990s, including proposals raised unilaterally by the claimants themselves, bilateral agreements among them, multilateral consultations, and even actions by countries who are not parties to the disputes. The first government to put forward a strategy for resolution was China when, in the late 1980s, it broached the idea of shelving the sovereignty disputes and pursuing joint development of the oceans instead. Unfortunately, no detailed proposal followed, while its continued assertions of indisputable sovereignty belied its words of compromise. In 1995, the Philippines proposed demilitarization of the islands and a freezing of the status quo, i.e., that no further militarization should take place. Such unilateral declarations were largely dismissed as rhetoric, since neither the political will nor the mechanisms for the stakeholders to reach agreement existed at the time. Bilateral consultations have focused on reducing the risk of violence by placing the maritime and territorial disputes on the agenda of normal diplomatic processes. Examples include the China-Vietnam delimitation of the Tonkin Gulf in 2000, and the Philippines-China and Philippines-Vietnam codes of conduct of 1995 and 1996 respectively. The codes of conduct called for peaceful settlement of the disputes in accordance with recognized principles of international law, urged the parties to undertake confidence-building measures while refraining from use or threat of force, and expressed the need to cooperate for the protection and conservation of maritime resources. But however helpful it has been in

encouraging dialogue among the parties, bilateral diplomacy has not prevented claimants from taking potentially provocative actions against each other, nor is it likely to lead to a comprehensive resolution of disputes which are, after all, multilateral in nature. Multilateral ASEAN-China efforts to defuse tensions have also made slow progress in recent years. China apparently started to take ASEAN seriously when, in the aftermath of its occupation of Mischief Reef in early 1995, the Association closed ranks and severely criticized Chinas actions. Consultations that were held in Hangzhou in 1995 marked the first time China agreed to discuss the Spratlys dispute multilaterally with the ASEAN claimants. The disputes have since then become part of the agenda of annual China-ASEAN meetings, involving all of ASEAN and not just the claimants. In 1997, the top leaders of China and ASEAN held their first Summit and issued a Joint Statement for ASEAN-China Cooperation towards the Twenty-first Century. On the subject of the disputes, the statement said that the two sides shall continue to exercise restraint and handle relevant differences in a cool and constructive manner.13 In 1998, the ASEAN governments resolved to work for a regional code of conduct to prevent the further escalation of conflict. Following much internal negotiation among ASEAN members and then between ASEAN and China, a regional Declaration of Conduct on the South China Sea was finally agreed upon in November 2002. While the Declaration is not legally binding and still falls short of specific measures for conflict prevention, it binds the parties to common principles (such as those embodied in the United Nations Charter, the U.N. Convention on the Law of the Sea, the Southeast Asian Treaty of Amity and Cooperation, and the Five Principles of Peaceful Coexistence) as well as to consultative and peaceful processes of dispute settlement. Other provisions of the Declaration include calls for the exercise of self-restraint; mutual notification of military exercises; and the extension of humanitarian treatment to all persons in situations of danger or distress in the area. The Declaration also includes provisions promoting both exploration or cooperation in marine environmental protection, scientific research, safety of navigation, search and rescue, and efforts aimed at combating transnational crime.14 However, the Agreement may be viewed with some degree of skepticism since claimant Taiwan is not a party, it provides for no verification measures, and it fails to spell out any agenda for future action. The ASEAN Regional Forum (ARF), an Asia-Pacific wide security dialogue mechanism initiated by ASEAN in 1993, has also taken a keen interest in the subject of the disputes. 10

Because of Chinas objection to the involvement of other parties, the South China Sea issue has not been included on the ARF agenda. Nevertheless, other countries such as the United States and Australia have used the meetings to express their concerns about the apparent escalation of the disputes. The disputes were also discussed during the 1999 United Nations General Assembly, after the Philippines had earlier called for UN assistance for their resolution. During the meeting, China, with the support of Malaysia, stressed that it advocated settlement through peaceful means but opposed intervention from nations outside the region. Vietnam and the Philippines, meanwhile, called for restraint and peaceful settlement but asserted before the General Assembly their rights as coastal states.15 Disagreement among the four major claimants at the said General Assembly is indicative of the difficulties the United Nations faces as it attempts to define a role for itself with respect to the conflict. Interestingly, parties to the disputes have not considered the question of whether the Hamburg-based International Tribunal on Law of the Sea (ITLOS), an institution created by the UNCLOS, might also eventually play a role16. Nonetheless, their common adherence to UNCLOS already binds the claimants to some form of cooperation with the United Nations on this issue. As far as the official track is concerned, only the bilateral consultations and the ChinaASEAN dialogue can claim to have made any real progress however modest perhaps reflecting the claimants preferences for a solution that will be crafted by the parties directly concerned.

Multi-Track Diplomacy Unofficial or Track-Two diplomacy has also played a role in the conflict management efforts. Foremost among such initiatives is the Indonesian-initiated and Canadian-supported Workshop on Managing Potential Conflicts in the South China Sea (MPCSCS), which at first involved only ASEAN countries but eventually expanded to include Taiwan, China, and the new ASEAN members. Most participants in the meeting are officials acting in their personal capacities and technical experts working at the behest of their governments. It is considered Track-Two because it has no official standing, and any conclusions or recommendations arising from the discussions are non-binding to the governments represented.

11

The workshops, which have been held regularly since 1990, have focused on such areas as resource assessment; marine scientific issues; safety of navigation, shipping and communication; and legal matters, under the principle of addressing the less sensitive issues first and saving the most difficult ones until after the parties have attained higher comfort levels in dealing with each other. The goal of the MPCSCS is not to resolve the sovereignty or the jurisdictional disputes, but rather to address areas of co-operative marine management and thereby promote a political environment more amenable to the resolution of jurisdictional conflicts.17 Confidence-building measures and proposals for practical cooperation are thus also discussed. Many cooperative projects have been proposed but their implementation has been snagged by the reluctance of governments to compromise on the issue of sovereignty.18 On the other hand, as an indirect result of the talks, certain parties have been inspired to explore functional cooperation with each other, such as the Philippines and Vietnam, which have held joint oceanographic and marine scientific research expeditions in the disputed areas. Unfortunately, the Canadian government ended its funding for the Indonesian workshops in 2002 after more than a decade, placing the future of the process in question. Another Track Two initiative is that of the Council for Security Cooperation in the Asia Pacific (CSCAP), a regional network of security scholars and practitioners. CSCAP has been active in submitting policy recommendations to governments in the region, particularly in the promotion of confidence building. Its Maritime Cooperation Working Group is currently involved in drafting a maritime security cooperation agreement for the Asia Pacific. The Working Group has produced a number of publications and two reports that were submitted to the ARF CSCAP Memorandum No. 4 entitled Guidelines for Regional Maritime Cooperation, and CSCAP Memorandum No. 5 entitled Cooperation for Law and Order at Sea.19 While the recommendations are non-specific to the South China Sea, they have particular significance because of their comprehensive coverage and the involvement in the process of participants from all the South China Sea claimant countries. The ASEAN Institutes of Strategic and International Studies (ASEAN-ISIS) is a network of think tanks in Southeast Asia that also takes an interest in conflict resolution processes. Established in 1984 and now composed of nine member institutes representing each of the ASEAN countries (except Burma/Myanmar), it has submitted several memoranda to

12

ASEAN, including a 1995 memo entitled The South China Sea Disputes: Renewal of a Commitment to Peace, which directly addresses the issues. By placing the South China Sea conflict on its agenda of international conferences involving security specialists from the Asia Pacific region, ASEAN-ISIS has also encouraged the exchange of information and explored ways of mitigating the security threat perceptions surrounding the maritime disputes. It has convened three meetings of an ASEAN Experts Group on the Law of the Sea. Its separate dialogues with counterpart research institutes in China and Taiwan periodically touch upon the disputes, but are not limited to the subject. The main handicap of ASEAN-ISIS is that most of its members are organizations which either fall under or are very close to their respective governments, and therefore cannot stray too far from official positions. It has also been difficult to sustain cooperation between Track Two and ASEANs official track on maritime issues, because, relative to new troubles such as the effects of the 1997 Asian financial crisis, terrorism, and political instability in some member countries, maritime concerns in general and the South China Sea disputes in particular are viewed with less urgency. A new regional initiative, created in 1999, with some prospects for contributing to the development of new approaches to conflict resolution is the Southeast Asia Conflict Studies Network. The SEACSN is a network of individuals and institutions involved in Peace and Conflict Resolution research and practice. It promotes research on various conflict situations through fellowships or exchanges, and organizes workshops and seminars to compare and discuss experiences in conflict analyses and resolution.20 Though it is more academic, rather than policy-oriented, as compared to the ASEAN-ISIS, SEACSN may also be well positioned to engage in peace advocacy, as its networks extend not only to peace researchers and strategic studies experts, but to the non-governmental sector as well. The Network held its first workshop on inter-state conflicts in Penang in 2002, including a session on the South China Sea. Its programs are currently supported by the Swedish International Development Agency. Engagement on the South China Sea issues is not restricted to personnel in the diplomatic and defense establishments, scholars, or Law of the Sea experts; fisheries experts, oil and energy specialists, marine scientists and environmentalists have become involved as well. The MPCSCS or Indonesia Workshops may be seen as a model for how technical experts can work in tandem with officials. Over time, the process has underlined what has become a 13

symbiotic relationship between the former, whose knowledge base helps guide the decisionmakers through a better understanding of the costs of conflict and the benefits of cooperation, and the latter, whose decisions will ultimately affect the advocacy for sustainable ocean development. The United Nations also provides environmental experts opportunities to indirectly contribute to peace in the South China Sea at the Track Two level. The UN Environmental Program (UNEP) has an East Asian Seas group that is working on a Strategic Action Programme for the South China Sea. Similarly, the UN Development Program (UNDP) is supporting a major regional initiative known as Partnerships in Environmental Management for the Seas of East Asia (PEMSEA), whereby 12 countries in the region (Brunei, Cambodia, North Korea, Indonesia, Japan, Malaysia, China, the Philippines, South Korea, Singapore, Thailand and Vietnam) are working together to protect the life support systems of the Seas of East Asia and to enable the sustainable use of their renewable resources through intergovernmental, interagency and intersectoral partnerships.21 The Global Environmental Facility (GEF) has provided funds for the program to address marine pollution problems and to engage in partnership-building activities. But the participants avoidance of activities that will require cooperation in the disputed areas precludes GEF from playing a more useful role in addressing the disputes; the projects have instead been limited to coastal locales. Perhaps due to the complex nature of these conflicts, and the urgent need to address internal social and political problems, it has been difficult for other non-government organizations (NGOs) or civil society groups to establish a clear stake for themselves vis vis the South China Sea dispute, not to mention delineating a role which they might fill. The nature of civil society itself varies widely among the claimant countries, with autonomous organizations quite active in the Philippines, Taiwan, and Malaysia but largely still irrelevant in the social and political contexts of China, Vietnam and Brunei. Even in the first three countries where civil society might have an impact on peace advocacy, the inclination of certain groups has instead been to promote nationalist objectives and support state sovereignty rather than encourage compromise with their neighbors. Public opinion in the claimant states is also more likely to favor strong state action to defend national interests, rather than to view the disputes as international conflicts requiring resolution. In the Philippines, local environmentalist NGOs in its SCS-frontline province of Palawan have pressured Manila to

14

punish fully the Chinese fishermen who are often apprehended in both the countrys internal waters and in nearby disputed areas. Instead of coming from civil society, the non-state conflict prevention initiatives have arisen from the emergence of epistemic communities22 of security specialists, Law of the Sea experts, marine scientists, and environmentalists in the region and beyond, who through their pooled knowledge, shared beliefs, and common norms, have themselves become engaged in the confidence-building and dialogue processes. Such epistemic communities may not always be able to influence policy outcomes, but in the case of the South China Sea disputes they have certainly helped enlarge the constituency for the peaceful and cooperative resolution of these disputes. Many proposals for management of the disputes have emerged from these epistemic communities, the most prominent of which are very briefly discussed here. Ambassador Hasjim Djalal, prime mover of the MPCSCS Workshops, has in an unofficial capacity proposed a formula for defining the areas of jurisdiction of the claimant states. His formula suggests that each state claim a 200-nautical mile exclusive economic zone from its baselines, then delimit overlaps with neighboring countries by negotiating median lines. His proposal has become known as the donut formula because of the hole it leaves in the middle of the disputed maritime region, marking the high seas area for common use. Mark Valencia of the Honolulu-based East-West Center has suggested establishing a cooperative regime to be managed by a multilateral Spratlys Development Authority, under which China and Taiwan would lay down their historic claims in exchange for a 51 percent stake in the proceeds from the resources that are developed.23 Stein Tonnesson of Norway suggests a sixstage strategy for China that will lead to shelving its sovereignty claim over Scarborough Shoal and the Spratlys in exchange for others recognizing its sovereignty over the Paracels. All claimants will then transfer the Spratlys to a regional or international authority, which will manage it as a marine park.24 Marine scientists such as John McManus have also proposed transforming the seas into a marine park. 25 Some proposals emphasize the need for parties to negotiate the delimitation of their boundaries, where possible, and to pursue confidence building and conflict prevention measures in the interim. In areas where the multilateral claims and the military occupations so greatly overlap, thereby making delimitation difficult, the proposed formula is for parties to establish joint development zones (JDZ).26 JDZs are motivated by practical rather than 15

political considerations, and therefore take the form of provisional arrangements. They may be implemented with or without the final settlement of a maritime boundary. The JDZ approach is attractive because, by its flexible and provisional nature, it is able, in principle, to reconcile the needs of parties to simultaneously preserve sovereignty and territorial integrity, promote peace and security with their neighbors, and advance profitable economic uses of the ocean.27 The main value of these proposals from the scholars and scientists is that they compel policy makers to open their minds to the realm of the possible, as well as the necessary and desirable, rather than to be constrained by what might, in a bureaucrats view, seem only impolitic or insurmountably difficult. Their main shortcoming is the lack of influence over, or even support from the official track. Nonetheless, even if the political will to implement the proposals is sorely lacking at this point, it is important to continue to refine them and bring them to the attention of governments, not only highlighting their technical sophistication, but more importantly their peace-building potential.

Prospects The international communitys interest in the maritime disputes has waxed and waned in the last decade or so, mirroring the pattern of tensions among the claimants. Since 1999, there has in fact been an overall improvement in China-ASEAN relations, bilaterally (particularly Chinas relations with Vietnam, the Philippines, Malaysia and Indonesia) and multilaterally, as seen in ASEAN-China Free Trade Area initiatives and the ASEAN + 3 cooperation. Following the 1997 Asian crisis, China gave much-needed financial support to Thailand and Indonesia, and has emphasized building economic links with Southeast Asia. Moreover, since the terrorist attacks on the United States, concern in the world and the region has shifted from the so-called China threat to the dangers of terrorism and weapons of mass destruction. Given the improved relations among the parties to the disputes, the challenge is for governments to avoid becoming complacent or ignoring the continuing potential for conflict escalation. Instead, the November 2002 China-ASEAN Declaration of Conduct on the South China Sea should mark the beginning of new efforts to further institutionalize cooperative and consultative mechanisms for dealing with the disputes. There is a need for the parties to translate the agreed principles of self-restraint and constructive approaches into measures that 16

will further de-escalate tensions, including conversion of military presence into civilian presence, negotiation of boundaries and overlapping zones, and development of a modus vivendi on fishing and oil exploration in disputed areas. Notably, it will only be possible to begin considering the economic potential of the area and promoting its sustainable use when the perceptions of threats to security have been minimized. Apart from state security, human security including the protection and promotion of the welfare of peoples of the littoral states must be a priority concern.28 Indeed, there are stakeholders who remain under-represented in the process. Among these are coastal communities, fishermen, maritime traders, and other seafarers whose survival may depend on the oceans (as the oceans survival depends on them) far more than their nations politicians realize. Thus far, their voices have barely been heard.29

Recommendations While the disputes over ownership of territory remain intractable, a number of constructive proposals have been raised in relation to the settlement of the maritime jurisdiction issues. One is that the parties should learn from the already successful experiences of maritime delimitation and joint development in the region. They should focus on building resource management regimes, perhaps low-level and informal initially but ultimately geared to formal cooperation. The process should be multi-track and involve diplomatic, military, management, scientific and technical personnel, among others.30 In the process, the parties should refrain from unilateral provocative acts, including passing new legislation and making major military moves. Instead, they should try to build mutual trust as well as encourage domestic public opinion away from hard-line nationalist sentiments and towards a desire for principled compromise and cooperation. Given the power asymmetry among the parties and the history of the use of force among them, some experts deem it helpful to consider convening a non-partisan international body to either help organize the agenda and the process of conflict prevention and conflict resolution, or to engage in actual mediation or arbitration. Canada and the Scandinavian countries appear to have built track records in promoting research and dialogue on this issue, and their physical distance, middle power status and their non-controversial relations with the

17

littoral states enhance their credibility to act as honest brokers. There are also existing formal mechanisms for dispute settlement that may be tapped such as the International Court of Justice (ICJ), the International Tribunal on the Law of the Sea (ITLOS), and ASEANs very own High Council.31 In view of the sensitivity of some parties to direct external intervention, other countries such as the United States, Japan, or Australia, should focus their contributions to peace in the South China Sea on encouraging a positive atmosphere for claimants to enter into negotiations, while discouraging any one country from unilaterally seeking a solution by use of force.32 Ultimately, however, building peace in the South China Sea requires a transformation of the understanding of security from one that is state-centered and guaranteed only by the ability to assert sovereignty backed up by military means, into one that reconciles the needs of each human being, each community and each state with the needs of both neighboring peoples and our ocean environment.

Service Information Publications Managing Potential Conflicts in the South China Sea: Informal Diplomacy for Conflict Prevention, by Hasjim Djalal and Ian Townsend-Gault. In: Chester A. Crocker, et al., eds. Herding Cats: Multiparty Mediation in a Complex World. Washington DC: United States Institute of Peace Press, 2000. Maritime Cooperation in the Asia-Pacific Region: Current Situation and Prospects, by Sam Bateman (ed.). Canberra Papers on Strategy and Defence No.132, Strategic and Defence Studies Centre, Australian National University, Canberra, 1999. Special Report. The South China Sea Dispute: Prospects for Preventive Diplomacy, by Scott Snyder. United States Institute of Peace, Washington DC, August 1996. Conflict Situations and Conflict Management in the South China Sea, by Ramses Amer. Universiti Kebangsaan Malaysia Strategic and Security Studies Unit, UPSK Occasional Paper No. 5/00, 2000.

18

The Sino-Vietnamese Approach to Managing Boundary Disputes, by Ramses Amer. Durham, International Boundaries Research Unit, Maritime Briefing Vol. 3, Number 5, 1997. Chinas Ocean Frontier. International Law, Military Force and National Development, by Greg Austin. St. Leonards, Allen & Unwin, 1998. Calming the Waters: Initiatives for Asia Pacific Maritime Cooperation, by Sam Bateman and Stephen Bates (eds). Canberra Papers on Strategy and Defence No.114, Strategic and Defence Studies Centre, Australian National University, Canberra, 1996. The Kalayaan Islands (Spratlys) in Philippine Foreign Policy, by Aileen S.P. Baviera. Panorama, Manila, Konrad Adenauer Stiftung, Vol.2, 1999. The Spratly Islands Dispute: Whos On First, by Daniel Dzurek. Durham, International Boundaries Research Unit, Maritime Briefing Vol. 2, Number 1, 1996. The Spratly Islands: A Study on the Limitations of International Law, by R. Haller-Trost. Occasional paper No. 14, University of Kent at Canterbury, 1990. Taiwan's South China Sea Policy, by Cheng-yi Lin. Asian Survey Vol. 37, No. 4, April 1997. China, the Philippines and the South China Sea Dispute: The Implications for Regional Security, by Ian James Storey. Info lacking China and the South China Sea: A Peace Proposal, by Stein Tnnesson. Security Dialogue, vol. 31, no. 3, September 2000, 307-326. China and the South China Sea Disputes, by Mark J. Valencia. Adelphi Paper 298, Oxford University Press for the IISS, 1995. The Spratlys: A Test Case for Chinas Defense and Foreign Policy, by Ji You. Paper presented at the Workshop on the Spratly Islands: A Potential Regional Conflict, Institute of Southeast Asian Studies, Singapore, 8-9 December 1993. Websites www-ibru.dur.ac.uk/index.html (International Boundaries Research Unit, University of Durham) http://faculty.law. ubc.ca/centres/scsweb/ (University of British Columbia Faculty of Law South China Sea Working Group) www.cscap.org/maritime.htm (CSCAP Maritime Cooperation Working Group) www.taiwansecurity.org (Taiwan Security Research) www.asean.or.id (ASEAN Secretariat) 19

www.csis.org/html/pacnet/html (Pacific Forum-CSIS Online Journal Comparative Connections/China-ASEAN Relations) <Resource Contacts lacking; or are the ones mentioned below with their e-mail address meant as such?> Organizations Council for Security Cooperation in the Asia Pacific/ Maritime Cooperation Working Group Commodore Sam Bateman (ret.), Co-chair Admiral Sunardi, Co-chair www.cscap.org/maritime.htm ASEAN Institutes for Strategic and International Studies Dr. Clara Joewono, Head of Secretariat www.aseanisis.org/ Southeast Asia Program on Ocean Law and Policy (SEAPOL) Dr. Phiphat or Dr. Frances Lai www.seapol.org/

UNDP Partnerships in Environmental Management for the Seas of East Asia (PEMSEA) Dr. Chua Thia Eng www.pemsea.org/ Southeast Asia Conflict Studies Network(SEACSN) Dr. Kamarulzaman Askandar www.seacsn.net/ Philippine Center for Marine Affairs Atty. Jay Batongbacal E-mail:[email protected]

20

Archipelagic and Ocean Studies Network, University of the Philippines Dr. Gil Jacinto www.geocities.com/arcoast/ Hainan Research Institute for the South China Sea Dr. Wu Shicun www.hriscs.com.cn/index_en.asp China Institute for Marine Affairs State Oceanic Administration Dr. Gao Zhiguo E-mail: [email protected] Institute of Strategic and International Studies Malaysia (ISIS Malaysia) Dr. Jawhar Hassan www.jaring.my/isis Center for Strategic and International Studies Jakarta Dr. Jusuf Wanandi www.csis.or.id Academia Sinica, Taiwan Dr. Yann-huei Song E-mail: [email protected] Institute of International Relations Ministry of Foreign Affairs, Vietnam Dr. Nguyen Nam Duong E-mail: [email protected] Faculty of Law National University of Hanoi 21

Dr. Nguyen Hong Thao E-mail: [email protected] Aileen San Pablo-Baviera is an Associate Professor and Dean at the Asian Center, University of the Philippines. She holds a Ph.D degree in Political Science. Her main research interests are contemporary China studies, Asia-Pacific security, and regionalism in East and Southeast Asia.

Notes

22

The claimants have their own place-names for the islands in their respective languages. Since the

simple use of names already reflects assertions of sovereignty on the part of the claimants, this paper shall use only the names most commonly used in international sources.
2

Kimie Hara, Cold War Wedges of China?: The San Francisco System and the Cold War Frontiers in the Asia-Pacific Chinas Territorial Problems as a Case Study, East-West Center Politics and Security Working Paper Series No 2. Honolulu: East-West Center, September 2000.

Brad Glosserman, Cooling South China Sea Competition, PACNET Newsletter #22A. Pacific

Forum-Center for Strategic and International Studies, 1 June 2001.

Mark Valencia, China and the South China Sea Disputes, Adelphi Paper 298. Oxford University

Press, 1995, pp. 39-41. There were discussions between Chinas CNOOC, Taiwans China Petroleum Corporation, and U.S.-based Chevron for an exploration joint venture in the East China and South China Seas. In 1994, a joint academic conference on the SCS was held. Taiwan at some point even proposed the formulation of a joint legal position. Djalal and Townsend-Gault also note that Taiwan and China shared similar positions in the Indonesian-sponsored Workshops on Managing Potential Conflicts in the South China Sea.
5

Ibid., 23. Such indications include the conversion of the Pratas and Itu Aba military garrisons into

civilian facilities, participation by Taiwan representatives in unofficial meetings concerning the disputes involving ASEAN but not China, and recent writing by Taiwan scholars. Taiwan had earlier been reported to be considering changing its claim to only those islands already occupied by itself and China. For details of Taiwans position, see Lin Cheng-yi, "Taiwan's South China Sea Policy," Asian Survey Vol. 37, No. 4 (April 1997) at <www.catsic.ucsc.edu >.
6

Hasjim Djalal and Ian Townsend-Gault, Preventive Diplomacy: Managing Potential Conflicts In The

South China Sea, in Herding Cats: Multiparty Mediation In A Complex World, Chester A. Crocker, ed. Washington D.C.: United States Institute of Peace Press, 2000, pp. 107-133.
7

The South China Sea is estimated to produce ten percent of the world's annual fisheries catch over

five million tons a year, according to the UN Environmental Program, as cited in Environment News Service (ENS), 2000, Asian Nations Put Quarrels aside to Save South China Sea, at <www.hartcons.com/http:// www.hartcons.com/>. On the other hand, estimates of oil and natural gas reserves differ from one source to another, with most not too hopeful and the most optimistic estimates coming from China. Chinese media sources have referred to the Sea as the "second Persian Gulf", and

some experts assert that it could contain as much as 130 billion barrels of oil and natural gas, although the costs of exploring and exploiting would be immense.
8

These include 1000 years of Chinese domination of Vietnam, land border issues and Vietnams close

ties with the then Soviet Union, among others.

Aileen S.P. Baviera, Ocean of Opportunity or Sea of Strife: Transforming the South China Sea

Conflict, paper presented at Seminar on Conflict Prevention and Peacebuilding in Southeast Asia: Regional Mechanisms, Best Practices and ASEAN-UN Cooperation in the 21st Century, Manila, 21 February 2002.
10

China still wants to get paid for fishing boat that sank in the Spratlys, Today, 5 June 1999, p. 12. Malaysia lays reef markers, Today, 20 June 1999, p. 1 and Malaysia admits sending scientists to

11

Spratlys, Today, 21 June 1999, p. 12.

Shawn Crispin, Arms: On their Marks, Far Eastern Economic Review, 5 October 2000. Joint Statement of the Meeting of Heads of State/Government of the Member States of ASEAN and

the President of the Peoples Republic of China, Kuala Lumpur, 16 December 1997.
14

Declaration on the Conduct of Parties in the South China Sea, 4 November 2002. Thalif Deen, China Insists Spratly Islands Dispute is Regional, IPS Report, 7 December 1999. Since its establishment in October 1996, the International Tribunal on the Law of the Sea (ITLOS)

15

16

has passed judgment on cases involving questions of commercial activities in exclusive economic zones, the right of hot pursuit, conservation of highly migratory fish stocks, and freedom of navigation.
17

Website of the South China Sea Working Group, University of British Columbia at <http://faculty.

law. ubc.ca/centres/scsweb/>.
18

For a detailed report of the workshop process and outcome until 1998, see Djalal and Townsend-

Gault, Preventive Diplomacy. For analysis, see Liselotte Odgaard, Conflict Control and Crisis Management between China and Southeast Asia: An Analysis of the Workshops on Managing Potential Conflict in the South China Sea, at <www.stanford.edu/~fravel/chinafp/scs.htm.>, also printed in Dieter Mahncke et. al., eds. ASEAN and the EU in the International Environment, Nomos Verlagsgesellschaft, Baden-Baden, 1999.
19

Website of CSCAP Maritime Cooperation Working Group at <www.cscap.org/maritime.htm>. Website of the Southeast Asia Conflict Studies Network at < http://www.seacsn.net/>.

20

21

Website of UNDP-Partnerships for Environmental Management of the Seas of East Asia (PEMSEA)

at <www.pemsea.org/>.
22

Tom Naess, Epistemic Communities and Environmental Cooperation in the South China Sea,

Centre for Development and Environment, University of Oslo at < www.sum.uio.no/southchinasea/Publications/pdf-format/Naess.pdf>. See also Peter M. Haas, ed., Knowledge, Power and International Coordination, International Organisation, Special Issue, Vol. 46, No. 1, Winter 1992. Peter M. Haas defines epistemic communities as channels through which new ideas circulate from societies to government as well as from country to country, through a network of professionals with recognized expertise and competence in a particular domain and an authoritative claim to policy-relevant knowledge within that domain or issue-area.
23

Valencia, China and the South China Sea Disputes, pp. 50-67. Tonnesson, Heres How to Settle Rocky Disputes in the South China Sea, International Herald

24

Tribune, 6 September 2000. For details, see Tonnessons article China and the South China Sea: A Peace Proposal, Security Dialogue Vol. 31, No. 3 (September 2000): pp. 307-326.
25

John W. McManus, The Spratly Islands: A Marine Park?, Ambio, Vol. 23, No. 3 (May 1994): pp.

181-186.
26

Joint development refers to an agreement to develop together or through some form of cooperation

the resources of a designated zone which is the subject of conflicting claims. Townsend-Gault defines joint development as the pooling of sovereignty or sovereign rights exercised by two or more States over the {mineral} resources of an area. Jagota offers a more general definition within the context of the Law of the Sea Convention, that joint development zones are provisional arrangements covering the whole or part of the overlapping claimed areas, with or without the settlement of a maritime boundary. S.P. Jagota, Maritime Boundary and Joint Development Zones: Emerging Trends, Ocean Yearbook 10. University of Chicago Press, 1993, p. 112.
27

Aileen S.P. Baviera and Jay Batongbacal, When will Conditions be Ripe? Prospects for Joint

Development in the South China Sea, in Mely C. Anthony and Mohamed Jawhar Hassan, eds. Beyond the Crisis: Challenges and Opportunities Vol.II. Kuala Lumpur: ISIS Malaysia, 2000.
28

Interest in human security concerns in the South China Sea has focused largely on environmental

degradation. Only a third of the regions mangrove forests remain. Rising levels of sedimentation and nutrients, and destructive fishing practices, have devastated sea-grass communities like mangroves,

another key breeding ground for fish. Two-thirds of the waters major fish species are being overexploited, with the over 5 million tons of fish that are harvested from the Sea each year. Since the South China Sea provides 25 percent of the protein needs for 500 million people 80 percent of the protein in the Philippine diet alone - and a livelihood for some 270 million, one scholar commented that this is a human security concern of enormous significance. Glosserman, Cooling SCS Competition, citing the Fourth South China Sea Workshop, a Track 2 meeting conducted by the Institute of Strategic and Development Studies. (Manila) and the Pacific Forum CSIS (Honolulu), and hosted by the Institute of International Relations, National Chengchi University in Taipei in late April 2001.
29

A rare study of the impact of the disputes on local fishing communities in Chinas Hainan province

can be read in Zha Daojiong, Localizing the South China Sea Disputes: The Case of China and Hainan, The Pacific Review, Vol. 14, No. 4 (December 2000): pp. 575-598. A similar study on how fisheries disputes in the South China Sea have affected Palawan in the Philippines is being undertaken as of early 2003 by Baviera and Batongbacal of the University of the Philippines.
30

David Ong and B.A. Hamzah, Disputed Maritime Boundaries and Claims to Offshore Territories in

the Asia Pacific Region, in Sam Bateman and Stephen Bates, eds. Calming the Waters: Initiatives for Asia Pacific Maritime Cooperation, Canberra Papers on Strategy and Defence No.114. Australian National University, Canberra: Strategic and Defence Studies Centre, 1996, p. 41.
31

Djalal and Townsend-Gault, Preventive Diplomacy, Conclusions. Scott Snyder, The South China Sea Dispute: Prospects for Preventive Diplomacy. United States

32

Institute of Peace. Special Report. Washington D.C.: U.S.I.P., August 1996, pp. 15-16.