Security and International Politics in the South China Sea: Towards a co-operative management regime

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Security and International Politics in the South China Sea

The South China Sea has long been regarded as a major source of tension and instability in East Asia. Managing the risk of possible conflict over disputed claims in the South China Sea has been a significant challenge for regional relations. In addition, new challenges have emerged of resource management, environmental protection, and most recently, the security and safety of shipping against the threats of piracy and maritime terrorism. This book explores international politics and security in the South China Sea. It outlines the history of the South China Sea disputes, and the efforts that have been made to resolve these, assessing the broader strategic significance of the region for major geopolitical powers. It discusses the convergence of traditional and non-traditional security issues now appearing to provide a basis for cooperation in the South China Sea. It shows how the challenge of establishing cooperative relations is now being met, largely through agreement between the Association of Southeast Asian Nations (ASEAN) and China in 2002 on the Declaration on the Conduct of Parties in the South China Sea, and a range of recent measures for functional cooperation. Sam Bateman is a Senior Fellow and Adviser to the Maritime Security Program at the S. Rajaratnam School of International Studies (RSIS), Nanyang Technological University (NTU) in Singapore, and Adjunct Professorial Research Fellow at the Australian National Centre for Ocean Resources and Security at the University of Wollongong. He retired from full-time service in the Royal Australian Navy with the rank of Commodore (one-star) in 1993. He has written extensively on defence and maritime issues in Australia, Asia Pacific and Indian Ocean, and was awarded his PhD from the University of New South Wales in 2001. Ralf Emmers is Associate Professor and Head of Graduate Studies at the S. Rajaratnam School of International Studies (RSIS), Nanyang Technological University (NTU), Singapore. His research interests are in security studies, international institutions in Asia Pacific, and the international relations of Southeast Asia. His publications include Cooperative Security and the Balance of Power in ASEAN and the ARF (2003) and Non-Traditional Security in the Asia-Pacific: The Dynamics of Securitization (2004). He is also the co-editor of Order and Security in Southeast Asia: Essays in Memory of Michael Leifer (2006) and Understanding NonTraditional Security in Asia: Dilemmas in Securitization (2006).

Routledge security in Asia Pacific series Series Editors: Leszek Buszynski International University of Japan

William Tow

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Australian National University

Security issues have become more prominent in the Asia Pacific region because of the presence of global players, rising great powers, and confident middle powers, which intersect in complicated ways. This series puts forward important new work on key security issues in the region. It embraces the roles of the major actors, their defense policies and postures and their security interaction over the key issues of the region. It includes coverage of the United States, China, Japan, Russia, the Koreas, as well as the middle powers of ASEAN and South Asia. It also covers issues relating to environmental and economic security as well as transnational actors and regional groupings. 1 Bush and Asia America’s evolving relations with East Asia Edited by Mark Beeson 2 Japan, Australia and Asia-Pacific Security Edited by Brad Williams and Andrew Newman 3 Regional Cooperation and Its Enemies in Northeast Asia The impact of domestic forces Edited by Edward Friedman and Sung Chull Kim 4 Energy Security in Asia Edited by Michael Wesley 5 Australia as an Asia Pacific Regional Power Friendships in flux? Edited by Brendan Taylor 6 Securing Southeast Asia The politics of security sector reform Mark Beeson and Alex J. Bellamy

7 Pakistan’s Nuclear Weapons Bhumitra Chakma 8 Human Security in East Asia Challenges for collaborative action Edited by Sorpong Peou

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9 Security and International Politics in the South China Sea Towards a cooperative management regime Edited by Sam Bateman and Ralf Emmers

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Security and International Politics in the South China Sea Downloaded by [INFLIBNET Centre] at 09:05 29 August 2012

Towards a cooperative management regime Edited by Sam Bateman and Ralf Emmers

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First published 2009 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 270 Madison Ave, New York, NY 10016 Routledge is an imprint of the Taylor & Francis Group, an informa business This edition published in the Taylor & Francis e-Library, 2008. “To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.” © 2009 Selection and editorial matter, Sam Bateman and Ralf Emmers; individual chapters, the contributors All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data Security and international politics in the South China Sea: towards a cooperative management regime/edited by Sam Bateman & Ralf Emmers. p. cm. – (Routledge security in Asia Pacific series; 9) Includes bibliographical references and index. 1. South China Sea—International status. 2. South China Sea Region— Politics and government. 3. Security, International–—South China Sea. I. Bateman, W.S.G. (Walter Samuel Grono) II. Emmers, Ralf, 1974– KZA1692.S43 2008 355’.033016472–dc22 2008025473 ISBN 0-203-88524-4 Master e-book ISBN

ISBN10: 0-415-46943-0 (hbk) ISBN10: 0-203-88524-4 (ebk) ISBN13: 978-0-415-46943-2 (hbk) ISBN13: 978-0-203-88524-6 (ebk)

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Contents

List of illustrations List of contributors Acknowledgements List of abbreviations Map of South China Sea Introduction: the South China Sea: towards a cooperative management regime

x xi xiii xiv

xvi

1

SAM BATEMAN AND RALF EMMERS

PART I

Geopolitics in the South China Sea 1 Dangerous ground: a geopolitical overview of the South China Sea

5

7

CLIVE SCHOFIELD

2 The South China Sea dispute: an international history

26

GEOFFREY TILL

3 Maritime territorial disputes and their impact on maritime strategy: a historical perspective

42

BRUCE A. ELLEMAN

PART II

Non-traditional security issues in the South China Sea 4 Fisheries management in the South China Sea DAVID ROSENBERG

59 61

viii

Contents

5 Cooperative development of oil and gas resources in the South China Sea

80

ZOU KEYUAN

PART III

Politics and security in the South China Sea

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6 Southeast Asia and the South China Sea dispute

93 95

CHRISTOPHER CHUNG

7 Sovereignty in ASEAN and the problem of maritime cooperation in the South China Sea

110

J.N. MAK

8 The de-escalation of the Spratly dispute in Sino-Southeast Asian relations

128

RALF EMMERS

9 China’s South China Sea dilemma: balancing sovereignty, development, and security

140

LI MINGJIANG

10 China and joint development in the South China Sea: an energy security perspective

155

LEE LAI TO AND CHEN SHAOFENG

PART IV

Towards a cooperative management regime

173

11 The South China Sea: the long road towards peace and cooperation

175

HASJIM DJALAL

12 The contribution of the South China Sea Workshops: the importance of a functional approach

189

IAN TOWNSEND-GAULT

13 The Declaration on the Conduct of Parties in the South China Sea: a Vietnamese perspective, 2002–2007 NGUYEN HONG THAO

207

Contents 14 Legal regimes for cooperation in the South China Sea

ix 222

ROBERT C. BECKMAN

Conclusion: the prospects for a cooperative management regime

236

SAM BATEMAN

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Index

246

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Illustrations

Figures 4.1 Nominal fish landings in Southeast Asia, 1956–2000 4.2 Top species caught, Pacific West Central Fisheries Region, 1979, 1989, 1999 4.3 Total world catch of southern bluefin tuna, 1954–2000 4.4 Top tuna harvesting countries, Pacific West Central Region, 1950–1999 4.5 Relative contribution of aquaculture and capture fisheries to food fish consumption 10.1 China’s oil imports, 1993–2006 10.2 The area for trilateral seismic survey

63 64 65 65 68 161 168

Tables 4.1 Comparisons of marine biodiversity in Southeast Asia, Great Barrier Reef and Caribbean regions 4.2 Coastal populations in East Asian countries 4.3 Multilateral agencies related to South China Sea fisheries 10.1 Major sources of China’s crude oil imports

62 63 73 161

Map Map of the South China Sea

xvi

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List of contributors

The editors Dr Sam Bateman is a Senior Fellow and Adviser to the Maritime Security Program at the S. Rajaratnam School of International Studies (RSIS), Nanyang Technological University (NTU) in Singapore, and Adjunct Professorial Research Fellow at the Australian National Centre for Ocean Resources and Security at the University of Wollongong. He is a Co-Chair of the Council for Security Cooperation in Asia Pacific (CSCAP) Study Group on Facilitating Maritime Cooperation in Asia Pacific and a member of the ARF Eminent Persons Group. His current research interests include regional maritime security, piracy and maritime terrorism, the strategic and political implications of the Law of the Sea, and maritime cooperation and confidence-building. He recently authored or co-authored the following reports: Future Unknown: The Terrorist Threat to Australian Maritime Security and Common Purposes or Separate Goals? Links Between Piracy, Criminality and Maritime Terrorism in Southeast Asia for the Australian Strategic Policy Institute (ASPI), and Safety and Security in the Malacca and Singapore Straits: An Agenda for Action for RSIS. Dr Ralf Emmers is Associate Professor and Head of Graduate Studies at the S. Rajaratnam School of International Studies (RSIS), Nanyang Technological University (NTU), Singapore. His research interests are in security studies, international institutions in Asia Pacific, and the international relations of Southeast Asia. His publications include Cooperative Security and the Balance of Power in ASEAN and the ARF (Routledge Curzon, 2003) and Non-Traditional Security in the Asia-Pacific: The Dynamics of Securitization (Marshall Cavendish, 2004). He is also the co-editor of Order and Security in Southeast Asia: Essays in Memory of Michael Leifer (Routledge, 2006).

The contributors Dr Robert C Beckman is Associate Professor at the Faculty of Law of the National University of Singapore (NUS). He is an advisor to the Maritime and Port Authority of Singapore (MPA) and to the Legal Committee of the Singapore Shipping Association (SSA).

xii

List of contributors

Chen Shaofeng is a Research Officer at the East Asian Institute and a PhD candidate with the Department of Political Science, NUS. Dr Christopher Chung is Acting Assistant Secretary, Communications and International Branch, Department of the Environment, Water, Heritage and Arts, Australia.

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H.E. Dr Hasjim Djalal currently serves as Chairman of the Finance Committee of the ISBA and is a member of Indonesian Maritime Council. He is also Senior Advisor to the Indonesian Minister for Maritime Affairs and Fisheries, and to the Indonesian Naval Chief of Staff. Dr Bruce A. Elleman is Research Professor in the Maritime History Department, Center for Naval Warfare Studies, US Naval War College. He is currently a Visiting Fellow at the Strategic and Defence Studies Centre, The Australian National University, Canberra. Dr Li Mingjiang is Assistant Professor at S. Rajaratnam School of International Studies (RSIS), Nanyang Technological University, Singapore. Dr Lee Lai To is Associate Professor of Political Science at National University of Singapore (NUS) and President of the Political Science Association (Singapore). Dr J.N. Mak is an independent analyst specializing in maritime security issues in Southeast Asia. Dr Nguyen Hong Thao is lecturer at the Hanoi National University, Hanoi, Vietnam, Faculty of Law and is an Invited Professor at the University of Paris VII, Denis Diderot. Dr David Rosenberg is Professor of Political Science at Middlebury College, Vermont, USA, and Visiting Fellow in the Department of Political and Social Change in the Research School of Pacific and Asian Studies at the Australian National University in Canberra. Dr Clive Schofield is a Queen Elizabeth II Research Fellow at the Centre for Maritime Policy (CMP), University of Wollongong. Professor Geoffrey Till is Professor of Maritime Studies at the Joint Services Command and Staff College and a member of the Defence Studies Department, part of the War Studies Group of King’s College London. Professor Ian Townsend-Gault is Professor of Law at the University of British Columbia, where he is Director of the Centre for Asian Legal Studies. Professor Zou Keyuan is Harris Professor of International Law at the Lancashire Law School of the University of Central Lancashire, United Kingdom. He is also Academic Advisor to the China National Institute for South China Sea Studies.

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Acknowledgements

The editors would like to express their deepest gratitude to the S. Rajaratnam School of International Studies (RSIS), Nanyang Technological University, for funding this project. Special thanks to Ambassador Barry Desker, Dean of RSIS, for his enthusiastic support and to LTC Joshua Ho and Ms Jane Chan for organizing the initial conference entitled ‘The South China Sea: Towards a Cooperative Management Regime’ in Singapore in May 2007. The editors would also like to thank Ms Chan for her excellent and invaluable editorial assistance in the preparation of the final manuscript. Finally, our special thanks to the editors of the series, Professors Leszek Buszynski and William Tow, for their advice on the conceptualization and organization of the edited volume and to the Routledge editorial team for their role in its production. The editors take responsibility for any shortcomings in the book. Sam Bateman Ralf Emmers Singapore, September 2008

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Abbreviations

ACFTA APT ARF ASEAN CCP CIDA CNOOC CNPC CSCAP DGPS DOC EEZ ELINT FAO GBC GDP GEF GEM HF ICJ INCSEA JFC JMSU JOMSRE-SCS KMT MALINDO INCSEA MPAs MSC NGO nm

ASEAN–China Free Trade Area ASEAN Plus Three ASEAN Regional Forum Association of Southeast Asian Nations Chinese Communist Party Canadian International Development Agency China National Offshore Oil Corporation China National Petroleum Corporation Council for Security Cooperation in the Asia-Pacific digital ground positioning system Declaration on the Conduct of Parties in the South China Sea Exclusive Economic Zones electronic intelligence Food and Agriculture Organization General Border Committee gross domestic product Global Environment Facility groups of experts meeting high frequency International Court of Justice Prevention of Incidents at Sea Agreement Joint Fishery Committee Joint Marine Seismic Undertaking Joint Oceanographic Marine Scientific Expedition in the South China Sea Kuomintang Malaysia–Indonesia Prevention of Incidents at Sea Agreement Marine Protected Areas Marine Stewardship Council non-governmental organizations nautical miles

Abbreviations

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OTH OTH-B PLA PLAAF PLAN PLANAF PNOC PRC ReCAAP RFMO RP SAR SIGINT SLOCs SOLAS TAC TWG UN UNCLOS UNEP VHF VLF WCPO WWF

xv

over the horizon over the horizon backscatter People’s Liberation Army People’s Liberation Army Air Force People’s Liberation Army Navy People’s Liberation Army Naval Air Force Philippines National Oil Company People’s Republic of China Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia Regional Fisheries Management Organization Republic of Philippines search and rescue signals intelligence sea lines of communication Safety of Life at Sea Treaty of Amity and Cooperation in Southeast Asia technical working groups United Nations United Nationals Convention on the Law of the Sea United Nationals Environment Programme very high frequency very low frequency Western and Central Pacific Ocean World Wide Fund for Nature

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Map 1 The South China Sea (source: S. Tønneson, “China and the South China Sea: A Peace Proposal,” Security Dialogue 31, 3 (September 2000)).

Introduction The South China Sea: towards a cooperative management regime

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Sam Bateman and Ralf Emmers

The South China Sea has long been regarded as a major source of tension and instability in East Asia. Managing the risk of possible conflict over disputed claims in the South China Sea has been a significant challenge for regional relations. This challenge is now being met, largely through diplomatic consultations between the members of the Association of Southeast Asian Nations (ASEAN) and China.1 In particular, considerable effort has been expended over the past decade or so in building a cooperative management regime for the South China Sea that helps to defuse the potential for conflict that has existed in that sea. Often deriving from international conventions or treaties, regimes are agreements between states to promote common interests in a defined sphere of influence. International regimes can be defined as ‘sets of implicit or explicit principles, norms, rules, and decision-making procedures around which actors’ expectations converge in a given area of international relations’.2 They can regulate conflicting as well as cooperative relations. For example, the United Nations Convention on the Law of the Sea (UNCLOS) aims to establish a maritime regime by calling for closer cooperation on maritime issues, offering procedures for the resolution of territorial disputes and introducing new concepts, rights and responsibilities. For states, the formation of an international regime should be regarded as a restriction rather than an abandonment of sovereignty in a specific area. International regimes are generally self-enforcing through mutual monitoring behaviour, though some can include dispute procedures and sanctions to guarantee their implementation. Formal international organizations can also be established to ensure the respect of international regimes. In the context of the South China Sea, positive cooperative developments have in recent years included especially the agreement between ASEAN and China in 2002 on the Declaration on the Conduct of Parties in the South China Sea, as well as a range of recent measures for functional cooperation. However, problems still abound, and the ideal of an effective cooperative management regime for the South China Sea has still not been achieved. Indeed, much more needs to be done before it could be claimed that a comprehensive regime for managing the South China Sea is in place, and the risks of conflict have been averted. The lack of agreed maritime jurisdiction has clearly complicated the establishment of a management regime for the South China Sea based on

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2

Introduction

customary principles of sovereign rights and obligations. It has also inhibited the development of effective cooperation between the littoral states bordering the South China Sea that would conform with Part IX of the 1982 UN Convention on the Law of the Sea. This convention requires states bordering such a sea to cooperate with each other in the performance of their rights and duties, and to coordinate their activities with regard to resource management, marine environmental protection and marine scientific research. The South China Sea has an obvious strategic dimension. Control by one hegemonic naval power of the maritime communication routes would endanger the security interests of the littoral states as well as those of the United States, Japan, China and other maritime powers that cross these waters. While the strategic significance of the South China Sea endures, contemporary security concerns in the maritime area now dictate that a cooperative management regime should also extend to the maintenance of law and order at sea. The security and safety of shipping needs to be guaranteed against sea piracy, acts of maritime terrorism and the illegal trafficking by sea in arms, drugs or people. The security and safety of navigation also extends to the provision of the navigational aids, hydrographic surveys and search and rescue (SAR) arrangements necessary for the safe and secure passage of shipping through the South China Sea. Beyond the rise of transnational threats in the South China Sea, other challenges have emerged in terms of resource management and environmental protection. In environmental terms, the South China Sea is an area of globally significant marine biodiversity. Attempts are now being made, for example through the UNEP/GEF South China Sea project, to develop regionally coordinated programs of action designed to reverse environmental degradation particularly in the area of coastal habitat degradation and loss, to reduce land-based pollution and to address the issue of fisheries overexploitation. However so far, this project relates only to waters under clear national jurisdiction and not to areas of overlapping claims. While it is primarily the responsibility of the littoral states to establish an effective management regime for the South China Sea, other regional countries have a vested interest in that outcome. In many ways the South China Sea is the center of gravity of economic growth in East Asia. It is the geographical link between Southeast and Northeast Asia, and includes vital sea lines of communication (SLOCs) between these two economically dynamic sub-regions. The strategic significance of the South China Sea has long been appreciated by the major powers present in the region, as was illustrated historically by the secret hydrographic surveys of the area conducted by the United Kingdom, the United States and Japan in the 1920s and 1930s.3 This edited book seeks to contribute to the existing body of scholarship on the South China Sea. It has been some time since there has been a comprehensive study of strategic and political developments in the South China Sea.4 Thus it is timely to review developments in the South China Sea disputes and the efforts that have been made to resolve these. These activities have a considerable impact on regional relations and regional security. It is still true to observe that the South China Sea and the conflicting claims to sovereignty and sovereign

Introduction

3

rights in that sea are important factors in the relations between the Southeast Asian countries and China, as well as within the ASEAN membership itself. The objectives of the edited volume are therefore to: • •

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• •

•

review the history of and geopolitical considerations impacting the South China Sea disputes, and the efforts that have been made to resolve these; consider the impact of these disputes on regional relations and regional security; assess the strategic significance of the South China Sea in the context of the contemporary regional security environment; discuss the convergence of traditional and non-traditional security issues now appearing to provide a basis for cooperation in the South China Sea; and finally identify factors which have either facilitated or inhibited effective cooperation in the South China Sea.

The various chapters in this edited book bring out both the progress that has been made with establishing a cooperative management regime in the South China Sea, and the reasons why an effective regime is still not in place. In that regard, the volume makes an important and original contribution to the existing literature. Key lessons for preventive diplomacy have been learned, particularly with regard to the factors which have either facilitated or inhibited effective cooperation in the South China Sea. Recent progress with cooperative management in the South China Sea provides a useful precedent, as well as some lessons learned, for the establishment of effective cooperation in other seas of East Asia, which are also subject to disputed maritime claims.5 Interestingly, while the situation in the South China Sea is the best known and problematic of the maritime jurisdictional problems in East Asia, it is also the situation where the most progress is being made in establishing effective functional cooperation. Furthermore, this volume highlights the convergence of traditional and nontraditional security issues in the South China Sea. This convergence is a special issue that is worthy of further consideration and several chapters in this volume address this topic. Indeed, the non-traditional security issues potentially offer a sound basis for cooperation in the South China Sea. They are all common interests of the littoral countries and thus may involve lesser sensitivities than those likely to be encountered with more traditional security concerns. In particular, the non-traditional security issues offer potential as the launching pads for measures of preventive diplomacy and confidence building that may serve as ‘building blocks’ to facilitate consideration of more difficult issues of sovereignty and traditional security. Most of the chapters in this book were first presented at a conference, ‘The South China Sea: Towards a Cooperative Management Regime’, hosted by the S. Rajaratnam School of International Studies (RSIS) in Singapore in May 2007. Other papers were subsequently commissioned to fill in possible gaps in respect of the contemporary security and political scene in the South China Sea. The

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4

Introduction

editors have been particularly concerned to have adequate coverage of the current views of the major protagonists in the sovereignty disputes in the sea: China on the one hand and the several Southeast Asian countries on the other. The book is divided into four parts. The first reviews the geopolitics of the South China Sea, including the historical perspective. The second considers nontraditional security issues, especially fisheries and the development of the oil and gas resources of the area. The third part addresses politics and security in the South China Sea with chapters giving the current views of the Southeast Asian countries and China, as well as the impact of the sea on Sino-Southeast Asian relations. The last part of the book considers the progress that has been made towards a cooperative management regime in the South China Sea. As the title of Hasjim Djalal’s chapter in the collection suggests, this has indeed been a long road and we still have some distance to travel. By addressing the current situation in a comprehensive manner, we hope that this book will assist in moving further along the road.

Notes 1 ASEAN was established in Bangkok in August 1967. The original members were Indonesia, Malaysia, the Philippines, Singapore and Thailand. Brunei joined in 1984, Vietnam in 1995, Laos and Myanmar in 1997, and Cambodia in 1999. 2 Stephen D. Krasner, ‘Structural Causes and Regime Consequences: Regimes as Intervening Variables’, International Organization, 36, 2, 1982, p. 186. 3 David Hancox and Victor Prescott, Secret Hydrographic Surveys in the Spratly Islands, Kuala Lumpur: Maritime Institute of Malaysia, 1997. 4 See for example Mark Valencia, China and the South China Sea Disputes: Conflicting Claims and Potential Solutions in the South China Sea, Adelphi Paper 298, Oxford: Oxford University Press, 1995; Bob Catley and Makmur Keliat, Spratlys: The Dispute in the South China Sea. Aldershot, UK: Ashgate Publishing, 1997; and Lee Lai To, China and the South China Sea Dialogues, Westport, CT: Praeger Publishers, 1999. 5 For a discussion on the maritime territorial disputes in Northeast Asia, see Unryu Suganuma, Sovereign Rights and Territorial Space in Sino-Japanese Relations: Irredentism and the Diaoyu/Senkaku Islands, Honolulu: University of Hawaii Press, 2000 and Kimie Hara, Cold War Frontiers in the Asia-Pacific: Divided Territories in the San Francisco System, New York: Routledge, 2007.

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Part I

Geopolitics in the South China Sea

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1

Dangerous Ground A geopolitical overview of the South China Sea

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Clive Schofield

Introduction When the Spratly Islands are mentioned, a number of striking images tend to spring to mind. One notable picture shows a pair of soldiers perched precariously on a tiny inhospitable-looking rock only marginally larger than the sovereignty marker dominating it. Another striking photo shows a flimsy-seeming bamboo shelter, complete with ragged flag, attached to another diminutive rock just breaking the surface of the sea. Rather than being exceptions to the rule, these images are indicative of the true characteristics of many of the insular features among the Spratlys archipelago. Despite their seeming insignificance physically these features have been subject to intense competition between rival claimants among the South China Sea’s coastal states. In terms of the number and complexity of overlapping jurisdictional and sovereignty claims made to it, the South China Sea is among the world’s most disputed areas. Competing claims to maritime space on the part of the littoral states are complicated by the presence of two disputed archipelagos of islands and reefs generally known as the Spratly and Paracel islands, as well as other outlying islands and islets. Sovereignty over these islands is disputed and maritime jurisdictional disputes related to the maritime claims that they may, or may not, be able to sustain also appear to exist. The objective of this chapter is, essentially, to set the geopolitical scene in respect of the South China Sea and in particular of the Spratly Islands area. In light of lingering uncertainties over where the islands of the South China Sea are located and what they comprise, the chapter will, in the first instance, provide a brief examination of the geographical nature of the features that make up the South China Sea islands, particularly those collectively known, in English at least, as the Spratly Islands. The competing claims to sovereignty over these islands will then be briefly alluded to, as this provides a necessary context against which to assess the geopolitical value the claimant states attach to the features in question. Discussion will then turn to examining the key geopolitical interests and factors motivating the claimant states. First, the possible intrinsic worth of the insular features themselves will be briefly examined. The potential value of the disputed islands in terms of the

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8

C. Schofield

claims to maritime zones of jurisdiction that they may generate will be explored. This represents a critical issue as it has direct consequences in terms of access to the resources believed to exist in the South China Sea. The regime of islands as set out in the United Nations Convention on the Law of the Sea (UNCLOS)1 will therefore be considered and the implications of this for the South China Sea “islands” will be discussed. A key related issue here is the possible presence of resources, particularly hydrocarbon, among the Spratly Islands. The conflicting assessments as to the potential resources, especially seabed resources, believed to exist in the South China Sea will therefore be reviewed with regional energy security concerns in mind, as these considerations appear to play a vital role in the geopolitical calculations of claimant states. The significance of the islands with respect to access to living resources and in environmental terms will also be briefly raised; as will their potential value in a military and geostrategic sense, with particular reference to shipping passing through the South China Sea. The crucial role of the nationalism that underlies regional claims to territory, sovereignty and sovereign rights in the disputes over the South China Sea islands is also acknowledged.

The “Dangerous Ground” The islands of the South China Sea include two contested archipelagos, the Paracel Islands in the northwest and the Spratly Islands in the south. Additionally, the isolated features of Pratas Island and Scarborough Shoal (or Reef) are located in the northeast and east of the South China Sea respectively. The present discussion will focus specifically on the Spratly Islands group. Despite the intense examination of the problem these insular features pose in international relations, the substantial research efforts undertaken and the wealth of literature devoted to them, there remains a surprising degree of uncertainty over the nature of the islands, islets, rocks and shoals under discussion. Some of the fog of illusion, half-truths and misinformation associated with discussion of the geographical nature of the Spratly Islands has been lifted by scholars such as Hancox and Prescott.2 The present author is indebted to them, and other scholars, for their meticulous research efforts on which key parts of the remainder of this section are largely based.3 Estimates as to the number of “islands” making up the Spratlys group vary wildly, with a high-tide mark of around 500.4 This figure is on the high side among estimates and appears to substantially overstate the case. A rather more realistic assessment instead puts the number of insular features of various types at 150–180.5 Why such uncertainty? One reason is the practical consideration of what, exactly, to count. The question “how many Spratly Islands are there?” should therefore immediately give rise to a counter-query as to what type of insular feature is meant. The majority of the Spratly Islands are not, in fact, islands in the international legal sense as provided by the relevant provisions of UNCLOS. According to UNCLOS, Article 121(1), an “island” is “a naturally formed area of land,

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Dangerous Ground 9 surrounded by water, which is above water at high tide”. While the requirements that an island be “naturally formed”, an “area of land” and “surrounded by water” appear to be reasonably unambiguous, the requirement that islands be “above water at high tide” is potentially more problematic. The phrase “naturally formed” also serves to exclude from consideration artificial islands or structures (see below).6 The regime of islands provided under UNCLOS also includes, through Article 121(3) a sub-category of islands, the “rock”. Such features “cannot sustain human habitation or economic life of their own”. Differentiating between “islands” and “rocks” is problematic and has generated considerable scholarly debate as well as proving an important factor in numerous maritime and boundary disputes and delimitation questions (see below). Furthermore, UNCLOS Article 13(1) defines a low-tide elevation as “a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide”. Issues related to the relevant vertical datum are fundamental to distinguishing between these various categories of insular feature. The term “vertical datum” refers to the level of reference for vertical measurements such as depths and heights of tide. Choice of vertical datum can have a telling impact on whether a particular feature can be classified as an island (above high tide), a low-tide elevation (above low tide but submerged at high tide) or a non-insular, submerged feature (submerged at low tide).7 Many of the features counted among the Spratly Islands are in fact really lowtide elevations or submerged banks. Only 48 are known to rise above high tide to form uniformally small, and in most cases tiny, islands or rocks.8 The biggest insular feature among the Spratlys, Itu Aba Island, is a mere 1.4 kilometres long and 370 metres wide with an area of approximately 50 hectares, while Spratly Island itself has a roughly isosceles triangle shape, the base measuring 750 metres with the apex 350 metres distant and an area of around 13 hectares.9 The highest point on both islands is 2.4 metres above the high-tide mark.10 Indeed, the total land area of the Spratlys above the highest astronomic tide has been estimated to be less than eight square kilometers (three square miles). These features are located in the southern part of the South China Sea extending for approximately 460 nautical miles (nm) from southwest to northeast and 220 nm east to west.11 They are therefore scattered over an enormous area of around 240,000 square kilometres.12 As noted above, the Spratly Islands encompass a bewildering profusion of different types of feature – islands, rocks, reefs, coral cays, low-tide elevations and submerged banks and shoals. This geographical complexity has made distinguishing between different insular features among the Spratlys group highly problematic. Consequently, commentators have tended to count some features but not others, count several grouped features as one or, alternatively, count each tiny, and often sub-surface, feature as a separate entity. Further sources of confusion are that there is no clear or consistently used definition of the Spratly Islands.13 There are also considerable difficulties over appropriate names for features among the Spratly Islands which may have multiple names in Chinese,

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English, French, Malay, Filipino and Vietnamese as well as variants within these languages.14 Furthermore, it is important to note that for the vast majority of their history, the Spratly Islands have been generally regarded as no more than hazards to navigation. This is evidenced by the number of features among the Spratlys whose names (in English at least) derive from the names of vessels that were wrecked on them.15 The term “Dangerous Ground”, which has traditionally featured on British navigational charts of the area now commonly known as the Spratly Islands group, seems particularly apt both in this regard and in terms of their contemporary role as a focus for conflicting jurisdictional claims. As serious hazards to navigation, the Spratlys represented an area traditionally best avoided. The limits of this perilous part of the South China Sea were thus ascertained with some urgency in the nineteenth century but there was understandably little interest in penetrating what Findlay described in 1889 as a, “labyrinth of detached shoals”.16 Additionally, some of the observations that were made were uncertain, particularly regarding positional information. Plausible explanations here relate to inaccuracies in celestial observations, cumulative and unaccounted errors in ships chronometers and errors arising from dead reckoning.17 This gave rise to numerous features being recorded and appearing on charts that did not (and do not), in fact, exist. Examples of these are two Brown Islets, two Ganges Reefs and no fewer than seven reefs bearing the name Pennsylvania!18 Moreover, when systematic surveys among the Spratlys eventually did occur, they were largely conducted in secret and the information collected was deemed too sensitive to share (even, on occasion, with allies) and classified.19 This was largely because of the emergence of geopolitical rivalries among the distant but interested maritime powers, notably Britain, France, Japan and the USA. These conflicting ambitions prompted secret surveys with differing aims. Thus, Britain was concerned to find safe and speedy passage through the Dangerous Ground for oil supplies from Borneo to Hong Kong. The British Admiralty also held out hope that there might exist a strategically useful concealed fleet anchorage among the Spratlys. Japan was the other main player, especially in the 1930s, scouting safe invasion routes and potential submarine bases, as well as generally attempting to bolster its commercial presence in Southeast Asia. France’s modest surveying efforts appear to have been mainly motivated by a desire to ward off Japan, while the US conducted surveys with the intent of establishing a secure east–west passage through the complex Spratlys group. It has thus been rightly observed that geopolitical rivalries over the Spratlys are nothing new – only the players have changed.20 It is, nonetheless, surprising that major discrepancies remain between charting authorities on the Spratlys and that many charts and maps continue to show features among the Spratlys that simply do not exist. For instance, Hancox and Prescott have identified 22 features which routinely appear on US navigational charts and maps, yet have been conclusively proven not to exist by other hydrographic survey authorities, notably the British Admiralty, decades before. This is especially surprising given that it is common practice for hydrographic survey

Dangerous Ground 11 information with a bearing on safety of navigation to be exchanged among charting authorities (and this is certainly the case between the UK and US agencies) and the survey information in question has been declassified and published (largely in the early 1960s in the British case) and is therefore in the public domain.21

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Competing claims There exist six claimants to all or part of the Spratly and Paracel archipelagos and their surrounding maritime space: China (both the People’s Republic of China (PRC), and separately, the Republic of China, referred to hereinafter as Taiwan), Vietnam, the Philippines, Malaysia and Brunei. Of these six claimants, all save Brunei maintain a military presence on one or more islands. China, Taiwan and Vietnam lay claim to virtually all the geographical features making up the South China Sea islands groups on the grounds of discovery, history and occupation. The Philippines and Malaysia claim parts of the group on the basis of proximity and that certain features lie on their claimed continental shelves. Brunei claims only one feature, also on the basis that it lies on Brunei’s continental shelf. An exhaustive analysis of these claims is not necessary at this point. However, the important point to note is that none of these sovereignty claims is especially compelling.22 The claimant states have, with the exception of Brunei, sought to consolidate their claims by establishing sovereignty claim markers, occupying geographical features, physically building them up (see below), building and upgrading structures, constructing facilities such as airstrips, fortifying them and stationing military personnel on them. As noted, Brunei has not occupied any Spratly Islands feature. However, the five countries with a permanent presence in the Spratly Islands also claim all or some of the other Spratly features that they do not occupy. The claimant states have also sought to bolster their claims in nonmilitary ways, for example adopting legislation related to them, establishing marine scientific research stations or programmes, issuing exploration concessions to oil companies, allowing tourists and journalists to visit the islands and publishing relevant documents.23 In a sense these occupations and related activities can be viewed as being symptomatic of the shortcomings in the claimant states’ cases in international legal terms rather than their strength. Indeed, claimant states give every appearance of operating on the basis of the old adage that possession represents nine tenths of the law. The garrisoning of small, isolated features is also arguably indicative of the military weakness of some of the claimants. It is noticeable that the Philippines and Vietnam, the two major Spratly Islands claimants with arguably the weakest militaries, appear to be the most enthusiastic island occupiers. Overall, it is understood that around 45 insular features among the Spratlys are currently occupied by one or other of the claimant states.24 This is despite the fact that some commentators identify only 36 Spratly “Islands” that appear above water at high tide.25

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Geopolitical interests

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Intrinsic value The vast majority of the Spratly Islands are remote, barren, small and uninhabited islets, rocks, low-tide elevations, reefs and submerged banks and shoals. Even the largest features concerned have not traditionally supported permanent populations, instead being occasionally visited by fishermen and passing mariners, prior to the arrival of garrisons from the 1970s and 1980s onwards. Lack of permanent habitation can largely be attributed to the physical characteristics of the islands, notably their small size and frequent lack of fresh water. Indeed, only a few of the islands are large enough to support significant vegetation, such as trees, and have therefore proved unattractive for potential settlers.26 Similarly, only a few have been exploited for their own resources, for example guano, and even then only briefly. These factors serve to undermine all the claims to sovereignty that have been made as there is little evidence of past occupation.27 It can be stated with confidence, therefore, that the Spratlys have minimal intrinsic value in themselves. Maritime spaces generated Paragraph 2 of Article 121 of UNCLOS provides that islands, in an identical fashion to mainland coasts, are capable of generating a full suite of maritime zones: “[T]he territorial sea, the contiguous zone, the exclusive economic zone [EEZ] and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.” In the context of extended claims to maritime jurisdiction, therefore, even small islands potentially have huge maritime zone generative capacity with significant resource/security implications. Crucially, if an island had no maritime neighbours within 400 nm, it could generate 125,664 nm2 (431,014 km2) of territorial sea, EEZ and continental shelf rights.28 However, as previously noted, Article 121(3) provides for “rocks” as a subcategory of islands and further states that these features “shall have no exclusive economic zone or continental shelf”. If deemed a mere “rock” incapable of generating EEZ and continental shelf rights, therefore, a feature such as that mentioned above, even if similarly isolated, may only generate a territorial sea of 452 nm2 (1,550 km2). The distinction between fully fledged island and mere rock is therefore critical and this goes a long way to explaining both the significance attached to islands in the recent past and the allied rise in the number of international disputes involving islands. With regard to low-tide elevations, UNCLOS Article 13(1) states that where such a feature “is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island” then that low-tide elevation’s own low-water line “may be used as the baseline for measuring the breadth of the territorial sea”. UNCLOS Article 13(2) emphasises that in the case where a low-tide elevation is situated wholly beyond the breadth of the territorial sea,

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commonly 12 nm in line with UNCLOS Article 3, measured from another island or mainland baseline “it has no territorial sea of its own”. A low-tide elevation’s value for maritime jurisdictional claims is therefore geographically restricted to coastal locations and, as such, they have been termed “parasitic basepoints”.29 Artificial islands and permanently submerged features have even less capacity to generate claims to maritime jurisdiction. Clearly, the requirement under Article 121(1) that in order to qualify as an island, a feature must be “naturally formed” serves to disqualify artificial “islands”, such as platforms constructed on submerged shoals, low-tide elevations or reefs, from consideration as islands under UNCLOS. This is reinforced by UNCLOS Article 60(8), which states unambiguously: Artificial islands, installation and structures do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf. Instead, only “safety zones” may be defined around these structures. In accordance with UNCLOS Article 60(5) the breadth of such safety zones is to be determined by the coastal state, though it may not exceed 500 metres. For their part, permanently submerged features have no capacity to generate maritime jurisdictional claims and merely represent hazards to navigation. Furthermore, concerning the role of islands in maritime boundary delimitation, the question of how outstanding geographical features, such as islands significantly far offshore, are treated is often a vitally important one. The important issue to bear in mind in this context is that, even if a feature can be categorised as a fully fledged island under Law of the Sea rules, it may well not be accorded “full effect” in maritime boundary delimitation – achieved either through negotiations or with third-party assistance.30 Indeed, there are numerous examples of state practice and case precedents where islands have received a substantially reduced, frequently half, effect, been partially or wholly enclaved or completely ignored.31 This reduced effect often stems from recognition of a disparity in the relevant coastal lengths of the coastlines involved, for example between a small island and a mainland coastline, and the consequent disproportionate impact an island may have on the construction of a strict equidistance line. Application to the Spratly Islands A reasonable reading of the relevant provisions of UNCLOS would seem to indicate that the vast majority of the Spratly Islands would fall short of the status of fully fledged islands capable of generating continental shelf and EEZ rights. Instead, most of the Spratly “islands” may instead be correctly classified as submerged features or low-tide elevations. Consequently, these insular features should have severely restricted capacity to generate claims to maritime jurisdiction in accordance with UNCLOS.

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It is notable, however, that the South China Sea is host to many pseudoislands, including fully submerged seamounts, that have been subject to “islandbuilding” activities including the erection of above-surface structures and have also been fortified and garrisoned in order to help bolster the occupier’s claims.32 Such island-building antics on the part of some Spratlys claimants will not, under the terms of UNCLOS, lead to the creation of “new” basepoints for the generation of zones of maritime jurisdiction, as outlined above. This clearcut legal situation has not, however, necessarily dissuaded South China Sea coastal states from advancing some remarkable claims. For example, it has been reported that China and Taiwan claim the Macclesfield Banks as islands capable of generating maritime claims to jurisdiction. This is despite the fact that the features in question lie between seven metres and 82 metres below sea level.33 A significant problem does exist in this context in terms of distinguishing, after the passing of time and the deposition of large amounts of concrete in the course of island-building activities, whether a particular island may have been naturally formed in its original condition. A few of the Spratlys do, however, rise above high tide and therefore come under the regime of islands laid down in Article 121 of UNCLOS. Certainly, in light of the (arguably deliberately) ambiguous nature of Article 121(3), a case can be made that some of the Spratlys, at least, are fully fledged islands capable of generating claims to continental shelf and EEZ rights. Equally, however, the alternate, and arguably stronger, view can be advanced (most likely by the neighbouring coastal state).34 If the Spratly Islands are considered fully fledged islands, and an equidistance line is constructed between the Spratly Islands group and the surrounding mainland and island coastlines, the area of land, sea and seabed so enclosed measures approximately 165,000 nm2 (565,000 km2).35 However, as outlined, compelling arguments can be made that, even if it is accepted that some of the Spratlys are indeed islands capable of generating extended jurisdictional claims, in any eventual maritime boundary delimitation, particularly between the Spratlys and the surrounding mainland states, the Spratlys should be accorded a reduced effect. There are therefore good grounds to believe that the figure mentioned above is exaggerated and that generally the capacity of the Spratlys to generate a maritime zone tends to be significantly overstated.36

Ocean resources The lure of the South China Sea oil Whenever the South China Sea, and the Spratly Islands in particular, are mentioned in the media it seems almost inevitable that the preceding words will be “oil rich”. This perception of the Spratly Islands as the key to major seabed hydrocarbon reserves must also be set against the backdrop of rising regional energy security concerns, emphasised by surging global oil prices. For example, although China has succeeded in substantially increasing its oil production over

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Dangerous Ground 15 the last decade, demand, growing at a rate of 4.9 percent annually since 1991, has outstripped increasing supply to a significant degree. China became a net oil importer from 1993, its oil consumption rose by 15.8 per cent in 2004 alone, and it is now the second largest consumer of oil after the United States. This trend appears set to continue unabated, with conservative estimates putting the PRC’s crude oil imports at 150 million tons by 2010 and 250–300 million tons by 2020.37 If current trends continue, China will be importing 50 per cent of its projected oil requirements of 360 million tonnes by 2015 and 58 per cent of its 430 million tonnes of oil requirements by 2020.38 Similar trends are apparent in relation to natural gas consumption which, for China, is set to rise from around 22 billion cubic metres in 1998 to 80 billion cubic metres by 2010. This type of scenario is repeated across the region and go a long way to explaining the lure of possible oil and gas reserves, close at hand, under the South China Sea.39 As a whole, the South China Sea encompasses approximately three million square kilometres of ocean space. Around one third of this area consists of continental shelf of less than 200 metres depth, largely located to the west and south (the Sunda Shelf).40 While the existence of large areas of continental shelf in relatively shallow waters is therefore not in doubt, the presence of substantial oil and gas reserves is. Estimates as to the hydrocarbon resource potential of the Spratlys vary wildly.41 For example, whilst the United States Energy Information Administration analysis of the South China Sea region notes that proven oil reserves are estimated to be of the order of seven billion barrels, Chinese estimates as to the area’s seabed resource potential are considerably higher, with figures in the range of 105–213 billion barrels of potential oil resources mentioned.42 Indeed, some Chinese sources have even described the South China Sea as a “new Persian Gulf ”.43 In this context it is worth observing that in general government estimates may tend to err towards the optimistic side in order to attract international interest and investment. Bold estimates as to the potential oil wealth involved also serve to underpin aggressive and/or inflexible positions on questions of national policy relating to sovereignty and jurisdiction. In contrast, it can be observed that oil companies tend to down-play the potential of a given area in order to help secure more commercially favourable contractual terms.44 Nonetheless, independent scientific institutions, such as the Lamont Doherty Geological Observatory and the German Geological Survey, and extra-regional actors including Russia and the USA have also issued optimistic predictions concerning the South China Sea’s oil and gas potential.45 To a large extent the prevailing uncertainty over the seabed resource potential of the South China Sea, and the Spratly Islands region in particular, stems from a lack of sufficient exploration activity. While commercial discoveries have been made at the margins of the South China Sea, all the estimates relating to the South China Sea as a whole, and the area around the Spratly Islands in particular, are therefore instead probably better described as “best guesstimates”. With regard to the Reed Bank, for example, it has been established that this area is underlain by as much as nine kilometres of sediment and preliminary drilling efforts indicate the presence of good source and reservoir rocks,46 while

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stratigaphic sections point to the existence of the structural traps necessary for oil accumulation, notably faulted anticlines.47 However, despite sporadic survey work from the 1970s, especially under licence from the Philippines,48 it is understood that relatively little has been discovered in the way of seabed hydrocarbons. That is not to argue that commercially viable fields definitively do not exist on the Reed Bank, but neither does this evidence justify the unbridled optimism that frequently pervades media coverage of the Spratlys question in relation to oil. Regarding the central part of the South China Sea, little in the way of drilling or even seismic exploration has taken place, making estimates as to hydrocarbons prospectivity highly uncertain. In contrast, the Vanguard Bank (or Wan’an Bei) is perhaps a promising area. The limited seismic survey information that is available indicates that the area does host geological structures that could contain significant quantities of oil and gas. Indeed, the Vanguard Bank could be considered to be analogous to the adjacent Cuu Long and Nam Con Son basins to the west or the more distant Natuna basins to the south. However, there is considerable doubt as to the presence of appropriate source and reservoir rocks.49 The only way to establish this would be to drill and therein lies a significant problem as this area has been characterised by multiple, overlapping maritime jurisdictional claims. Potential Eldorado or “Moose Pasture”? Overall, while the presence of seabed resources underlying the Spratly Islands is likely, there are notable qualifications: in particular, whether oil and gas deposits are present in sufficient quantities, at appropriate depths of water and in technically manageable situations remains open to question. Depth has been raised as a negative factor counting against oil exploration in the Spratlys region. However, much of the area in question is relatively shallow and in any case the technology for deep-water drilling is improving rapidly – the Malampaya project in deepwater off the Philippines certainly provides good evidence of such developments being applied to the South China Sea. An example from further afield is provided in the Gulf of Mexico, where 49 ultradeepwater discoveries had been made in over 1,524 metres (5,000 feet) of water by late 2006.50 In any case, much of the Spratly Islands area is relatively shallow. It has been estimated that approximately 10,350 square kilometers of seabed lies under less than 200 metres (656 feet) of water on the Reed Bank and associated banks.51 Another key factor relates to demand for and thus the price of oil. The oil price was, at the time of writing, high (in excess of US$100 per barrel) and, as previously noted, in the long term, demand in Southeast Asia is set to rise steadily. These factors are highly likely to drive further offshore exploration efforts as well as enhancing the importance claimant states attach to the South China Sea disputes. Thus, while the Spratlys do not appear to be a priority area for oil companies at present, they may well be in due course.

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Dangerous Ground 17 Nonetheless, it is perhaps enlightening that when the author approached a well-known international oil company on the topic of the oil potential of the Spratlys area a few years ago, the initial reaction of the consultant in question was that the Spratlys area, and particularly the central part of the South China Sea was regarded as “Moose Pasture”. That is, its potential was strictly limited, had been “over-hyped” and it was by no means at the top of his company’s list of priority areas for exploration.52 That view was based partially on the lack of available scientific data on the area, its complex geology, the technical difficulties involved in shooting seismic lines in relatively shallow waters among numerous reefs and the likely costs of exploration in the face of severe weather conditions. However, the key disincentive for the oil companies remains the political uncertainties over to whom the Spratlys and their associated waters belong. Ultimately, while there is a strong likelihood that oil and gas reserves do indeed underlie the Spratlys area, there is little reason to suspect a hydrocarbons Eldorado waiting to be tapped. Nevertheless, the “oil factor” is likely to remain significant in the geopolitical calculations of the claimant states, at least as long as it is perceived that the Spratlys are, or potentially are, oil rich and especially in the context of the heightened energy security concerns among the littoral states of the South China Sea. Indeed, as regional energy demands become ever more pressing, the attractiveness of suspected South China Sea seabed resources will only increase. It remains to be seen whether the Joint Marine Seismic Undertakings involving China, the Philippines and Vietnam will reveal more concerning the seabed resource potential of the South China Sea and perhaps lead towards some kind of mutually beneficial accommodation that facilitates exploration for energy resources. That said, although the joint seismic undertakings undeniably represent an encouraging sign, sensitive questions, for instance relating to sharing any resources discovered and the potential role of the other claimant states, have yet to be addressed. Clearly, while the impetus towards cooperative approaches exists, the ingredients for competition over these resources are also present and it is notable that the conclusion of these trilateral seismic initiatives has not led to a cessation in violent incidents in the vicinity of the disputed islands.53 Beyond the oil factor Fisheries, food security and the environmental dimension The South China Sea as a whole has been termed “an area of globally significant biological diversity”.54 Of particular importance here is the South China Sea’s extraordinary diversity, especially as compared to other ocean spaces.55 Within this context, the Spratly Islands have been identified as an “irreplaceable midocean reef habitat”.56 These reef habitats provide important nursery and breeding grounds for regional fisheries. It is important to acknowledge that the South China Sea supports a fishery of global significance, with capture fisheries accounting for 10 per cent of the world’s landed catch, and fishing remain a major industry in the South China Sea littoral states.57 Furthermore, five of the

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world’s top eight shrimp producers are South China Sea littoral states.58 Djalal does, however, make the point that this species diversity poses a challenge in terms of large-scale commercial fishing targeting a particular species, such as tuna, as “it is not uncommon that in a single trawl haul, 200 species would be caught, around 80 per cent of which would be of no or little commercial value”.59 Nonetheless, fisheries continue to play a critical role in regional food security. The protection and preservation of the environment and biodiversity of the South China Sea in general and the Spratly Islands reef systems in particular should therefore be a first-order priority for the coastal states concerned. The reality, however, is that this certainly does not appear to have been the case in the past and the environment and biological diversity of the South China Sea is under serious threat. Indeed, it is estimated that mangrove habitats are being lost at a rate of 0.5–3.5 per cent per annum, dependant on littoral state, and that fully 82 per cent of coral reef habitats surveyed in the South China Sea suffer from degradation to some extent.60 With regard to the Spratly Islands themselves, though understood to be in a relatively good state at present, these unique coral reef habitats are also under threat – not least from the activities of the garrisons on the occupied Spratlys.61 Strategic and military significance There is also a clear strategic dimension to the dispute over the Spratly Islands and the South China Sea islands more generally. Indeed, it is often asserted that the Spratly Islands are crucial in geostrategic and military terms. In particular, many commentators see a link between control of the Spratlys and freedom of navigation, particularly in respect of the security of Sea Lines of Communication (SLOCs).62 Certainly, the Spratly Islands occupy an important strategic location in close proximity to a waterway of global significance, providing the key maritime link between the Indian Ocean and East Asia. More than a quarter of the world’s trade traverses through these SLOCs, including 70 per cent of Japan’s energy needs and 65 per cent of China’s.63 It is also the case that the importance of the South China Sea as a conduit for energy supplies is likely to be maintained, if not to increase still further, for the foreseeable future. The same also holds true for the import of other raw materials to and the export of manufactured goods from resource-poor Southeast Asian and East Asian economies dependent on sea-borne trade. Freedom of navigation and maritime security therefore constitute critical issues not only for the South China Sea littoral states but for interested non-claimant user states, notably Japan, South Korea and the United States. However, it is worth noting that, unsurprisingly, commercial shipping routes are located well to the west of the Dangerous Ground in the vicinity of the Spratly Islands. It also remains questionable quite what military advantage can be realistically derived from possession of the Spratlys. Although a number of the Spratlys do boast airstrips, the small size of the islands and islets in question undermines their utility as bases or platforms, as compared, for example, to the

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deployment of ships and aircraft. Furthermore, maritime security threats such as piracy and armed robbery against ships are routinely overstated, particularly in respect of the supposed threat to international trade.64 Nonetheless, the perception of a potential threat to freedom of navigation remains important in regional and extra-regional geopolitical calculations. It is also the case that military competition among the Spratlys clearly has, in itself, the potential to disrupt shipping interests. In this context the Sino-Vietnamese clashes in the Paracels (1974) and Spratlys (1988) illustrate that parties to the dispute have in the past not been afraid to use military force to assert their respective claims.65 Domestic, regional and international geopolitical considerations Although securing access to ocean resources and the strategic dimensions of controlling important sea-lanes are important drivers in the dispute, they do not tell the whole story. The domestic dimensions to the South China Sea disputes cannot be ignored. In this context, a particular maritime boundary dispute often reflects the health of the overall bilateral political relationship between the parties concerned, rather than energy security or resource considerations in isolation. Ancel’s dictum relating to land boundaries seems just as apt in relation to maritime boundary disputes: “Il n’y a pas de problèmes de frontières. Il n’est que des problèmes de Nations. [There are no boundary problems. There are only problems of nations.]”66 States are inextricably linked to their territory and any potential loss of claimed territory, however slight, can be construed as a threat to a state’s sovereignty, security and integrity. In consequence, such disputes frequently provide fertile ground for nationalistic rhetoric and flag-waving.67 In the South China Sea context it is also worth observing that China’s lingering sense of injustice over past territorial setbacks plays a potent role and makes compromise extremely difficult to achieve. Similarly, boundary disputes can prove useful as geopolitical pressure points in international relations. Disputes therefore need to be seen both in terms of their domestic political impact and in their wider geopolitical context, including the history of relations between the parties.68

Conclusions Some uncertainty persists in respect of defining where and what the Spratly Islands consist of. This is largely the consequence of the lack of an accepted definition of the Spratlys, uncertainties over place names in a variety of languages and the persistent appearance of features that do not exist on some modern charts. This last issue is the most difficult to reconcile with the hydrographic surveying and geodetically robust positioning techniques available to us in the twenty-first century. With regard to the geopolitical interests of the claimant states in the Spratly Islands, the intrinsic worth of the islands is a non-factor. The Spratlys are generally small, low-lying and lacking in vegetation and thus vulnerable to being overtopped by waves in exceptionally severe weather conditions a phenomenon likely

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to become more frequent in the future given global sea level rise. Unsurprisingly, the Spratlys have traditionally been regarded as little more than navigation hazards and their lack of intrinsic worth is evidenced by the distinct lack of habitation and development on them up to the 1970s and 1980s, when the South China Sea disputes came to prominence. Concerning the ability of these islands to sustain extensive claims to maritime jurisdiction and thus access to the resources of the South China Sea, it appears that the geopolitical calculations of the claimant states are based on a brace of assumptions, neither of which is certain: first, that the Spratly Islands can generate extensive claims to maritime jurisdiction and, second, that significant resources, particularly oil, will as a result fall to the claimant state that secures the islands. The ability of the Spratly Islands to generate claims to the extended zones of maritime jurisdiction under UNCLOS, namely the continental shelf and EEZ, is conditional on their qualifying as fully fledged islands under international law. As discussed, the vast majority of the insular features that make up the Spratly Islands group are not capable of qualifying as fully fledged islands and instead can be more appropriately classified as sub-surface features, low-tide elevations or rocks within the meaning of UNCLOS Article 121(3). An allied consideration here is that even though some of the larger features among the Spratly Islands may arguably be capable of generating continental shelf and EEZ claims, there appears to be little reason to be confident that they would be accorded full weight in any subsequent maritime boundary delimitation exercise – especially one pitting small islands with limited coastal fronts versus long mainland and continental coastlines. Second, the primary importance attached to such extended maritime claims from the South China Sea islands relates to the marine resources that may be contained therein and which the claimant states may, consequently, gain sovereign rights over. In this context, the possible existence of seabed hydrocarbon resources is often cited as a key factor in the disputes associated with the South China Sea Islands. However, as discussed, it is by no means certain that the South China Sea will prove to be the oil bonanza that some of the more optimistic estimates would have us believe. However, protestations from interested geographers and international lawyers that the islands of the South China Sea are inappropriate features to generate claims to continental shelf and EEZ rights appear to discount geopolitical realities. At least some of the Spratlys may be able to generate extended claims and should the sovereignty disputes ever be resolved or set aside, it is possible that the claimants will accord the islands significant weight. This is especially likely in the context of a cooperative regional solution. Not to advance extended maritime claims from these islands would, after all, be disadvantageous to all the claimant states, as the maritime area associated with the Spratly Islands would be much reduced. Additionally, if, for example, the Spratly Islands were to generate no more than 12 nm of territorial seas, a substantial high seas enclave would exist in the South China Sea – something that is likely to be an unwelcome scenario for most if not all the claimant states. Crucially, the maritime

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Dangerous Ground 21 spaces associated with the Spratly Islands may encompass seabed areas with significant hydrocarbons resource potential. Despite the associated uncertainties the tantalising possibility that the Spratlys are indeed “oil rich” therefore remains a potent lure. It has also been argued that the Spratly Islands have great environmental worth and potentially a significant role to play in sustaining regional fisheries and thus, by extension, ensuring regional food security. Important and urgent as this consideration undoubtedly is, it is unclear how weighty this factor is in the claimants’ geopolitical reckonings. In geostrategic terms, much has been made of the proximity of the Spratlys group to key SLOCs. As noted, the true military worth of the Spratlys is questionable. This is not, however, to discount this factor in the geopolitical thinking of the claimant states and other interested parties in light of the crucial importance attached by these actors to ensuring freedom of navigation through the waters of the South China Sea. Finally, the enduring importance of boundary, territorial and sovereignty issues, especially in light of perceptions of potential oil wealth in the context of regional energy security concerns, should not be underestimated.

Notes 1 United Nations Convention on the Law of the Sea, Montego Bay, Jamaica, 10 December 1982 (in force as from 16 November 1994) (New York: United Nations, 1983). 2 See, especially, D. Hancox and J.R.V. Prescott, A Geographical Description of the Spratly Islands and an Account of Hydrographic Surveys Amongst Those Islands, Maritime Briefing 1, 6 (Durham: International Boundaries Research Unit, 1995), and D. Hancox and J.R.V. Prescott, Secret Hydrographic Surveys in the Spratly Islands (Kuala Lumpur: The Maritime Institute of Malaysia, 1997). 3 The author does, of course, nonetheless take responsibility for the views expressed in this chapter. 4 See, for example, G. Hearns and P. Tyedmers, “Poseidon’s Trident: Biological Diversity Preservation, Resource Conservation and Conflict Avoidance in the South China Sea”, in G.H. Blake, W.J. Hildesley, M.A. Pratt, R. Ridley and C. Schofield (eds), The Peaceful Management of Transboundary Resources (London: Graham and Trotman, 1995), pp. 289–300 at p. 290. Similarly, Snyder suggests that there are “400-plus rocks, reefs and islands” making up the Spratly Islands group. See S. Snyder, The South China Sea Dispute: Prospects for Preventative Diplomacy, USIP Special Report, no. 18 (Washington DC: United States Institute of Peace, August 1996), available at www.usip.org/pubs/specialreports/early/snyder/South_China_Sea1.html. 5 For instance Dzurek states that there are “more than 170 features with English names in the Spratly Islands”. See D.J. Dzurek, The Spratly Islands: Who’s On First? Maritime Briefing 2, 1 (Durham: International Boundaries Research Unit, 1996). 6 J.R.V. Prescott and C.H. Schofield, The Maritime Political Boundaries of the World (Leiden and Boston: Martinus Nijhoff Publishers, 2005), pp. 58–61. 7 Neither the Geneva Conventions of 1958 nor UNCLOS specifies a particular vertical datum. This choice of vertical datum is thus left up to the individual coastal state. There is therefore no inherently “wrong” low-water line choice. However, if two countries opt for differing vertical datums, insular features may, for example, be represented as an island or rock on the chart of one state but as a mere low-tide elevation or sub-surface feature on the other state’s chart. See C.M. Carleton and C.H. Schofield,

22

8

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9 10 11

12 13 14 15 16 17

C. Schofield Developments in the Technical Determination of Maritime Space: Charts, Datums, Baselines, Maritime Zones and Limits, Maritime Briefing 3, 3 (Durham: International Boundaries Research Unit, 2001). See also International Hydrographic Organization (with the International Oceanographic Commission and the International Association of Geodesy), A Manual on Technical Aspects of the United Nations Convention on the Law of the Sea, 1982, Special Publication 51, 4th edn (Monaco: International Hydrographic Bureau, 2006), chapter 2, pp. 16–20. Available at www.iho.shom.fr. Hancox and Prescott, 1995, provide the figure of 48. However, some commentators offer lower figures. For example Dzurek, 1996, p. 1, offers the number 36. Hancox and Prescott, 1995, pp. 8 and 14. Ibid. J.R.V. Prescott and C.H. Schofield, The Undelimited Maritime Boundaries of the Asian Rim in the Pacific Ocean, Maritime Briefing 3, 1 (Durham: International Boundaries Research Unit, 2001), pp. 58–61 and Prescott and Schofield, 2005, pp. 456–457. Prescott and Schofield, 2001, p. 58. Dzurek, 1996, pp. 3–4. Ibid., pp. 4–6. Hancox and Prescott, 1997, p. 2. A.G. Findlay, Indian Archipelago and China Directory, 3rd edn (London: Richard Holmes Laurie, 1889), p. vi; quoted in Hancox and Prescott, 1997, p. 1. Hancox and Prescott, 1997, pp. 2–4. The same authors wryly note that in the case of insular features amongst the Spratly Islands named after particular wrecked vessels, A Master and his navigating officers, some of whom were probably rudely and unceremoniously awakened by the grinding impact of a stranding, were not usually too concerned about the navigational niceties of knowing exactly where their ship had run aground!

18 19 20 21 22

J.R.V. Prescott, personal communication, 16 April 2007. Hancox and Prescott, 1997, p. 186. Ibid., pp. 36–58 and 184–186. Ibid., pp. 187–188. Most independent analyses of these claims reach this conclusion. See for example, Dzurek, 1996, pp. 47–55; and M.J. Valencia, J.M. Van Dyke and N.A. Ludwig, Sharing the Resources of the South China Sea (The Hague: Martinus Nijhoff, 1997), pp. 17–40. The latter authors conclude that Each of the claimants has made a claim that has significant weaknesses under international law, and it is highly unlikey that any of the claimants would receive all of its claimed areas in an adjudication by the International Court of Justice or an arbitration tribunal. (pp. 59–60)

23 T. McDorman, “The South China Sea Dispute in the 1990s: A New Multilateral Process and continuing Friction”, International Journal of Marine and Coastal Law 8, 2 (1993), pp. 263–285 at pp. 276–280, and Valencia et al., 1997, pp. 8–9. 24 Some uncertainty exists over the precise figure. For example the CIA suggests that “about 45 islands are occupied” in the Spratly Islands group. See Central Intelligence Agency, CIA World Factbook 2008, available at www.cia.gov/library/publications/theworld-factbook/geos/pg.html. Other sources provide higher figures. For example, Djalal indicates that China occupies 14 features; Malaysia, 10; the Philippines, 11; Taiwan, 1; and Vietnam, 22, for a total of 58. See H. Djalal, “Preventative Diplomacy: Managing Potential Conflicts in the South China Sea”, in C.A. Croker, F.O. Hampton and P. Aall (eds), Herding Cats: Multiparty Mediation in a Complex World (Washington, DC: United States Institute of Peace Press, 1999), pp. 107–133.

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Dangerous Ground 23 25 As previously noted, this figure is provided by Dzurek, 1996, p. 1; Hancox and Prescott, 1995, provide the figure of 48. 26 Based on the British Admiralty South China Sea Pilot, ten features have been identified as apparently sustaining trees naturally, Valencia et al., 1997, p. 43. 27 Ibid., pp. 39–40. 28 For the sake of this theoretical calculation the island in question is represented by a point and thus has no area. 29 C.R. Symmons, Some Problems Relating to the Definition of “Insular Formations” in International Law: Islands and Low-Tide Elevations, Maritime Briefing 1, 5 (Durham: International Boundaries Research Unit, 1995), p. 7. 30 For example see D.W. Bowett, The Legal Regime of Islands in International Law (New York: Oceana, 1979); H.W. Jayewardene, The Regime of Islands in International Law (Dordrecht: Martinus Nijhoff, 1990), pp. 3–12; C.R. Symmons, The Maritime Zones of Islands in International Law (The Hague: Martinus Nijhoff, 1979); Symmons, 1995; C.M. Carleton and C.H. Schofield, Developments in the Technical Determination of Maritime Space: Delimitation, Dispute Resolution, Geographical Information Systems and the Role of the Technical Expert, Maritime Briefing 3, 4 (Durham: International Boundaries Research Unit, 2002). 31 Examples include the substantial Swedish island of Gotland which was accorded a 75 per cent effect on the delimitation between Sweden and the then USSR, the Scilly Isles which were given a half-effect in the Anglo-French Arbitration, the Italian islands of Pantellaria, Linosa, Lampione and Lampedusa in the delimitation agreement between Italy and Tunisia and the Channel Islands which have been wholly enclaved on the French side of a median line between the opposite British and French coasts. See Carleton and Schofield, 2002, pp. 13–20. 32 Prescott and Schofield, 2005, pp. 273–276. 33 Dzurek, 1996, p. 54. 34 This view appears to be supported by the majority of the relevant literature on the issue. 35 Prescott and Schofield, 2005, p. 457. Estimates as to the maritime space that the Spratly Islands may be able to generate vary considerably with some Chinese estimates stating that the maritime area associated with the islands exceeds 800,000 km2 (Dzurek, 1996, p. 2 and fn. 4). 36 See, for example, Prescott and Schofield, 2005, pp. 215–244. For a detailed legal exploration of this issue see, in particular, A.O. Elferink, “The Islands of the South China Sea: How Does Their Presence Limit the Extent of the High Seas and the Area and the Maritime Zones of the Mainland Coasts?”, Ocean Development and International Law 32, 2 (2001), pp. 169–190. 37 BP Statistical Review of World Energy, June 2005, p. 9. 38 Straits Times, 16 February 2001, p. 20. 39 See C.H. Schofield and I. Storey, “Energy Security and Southeast Asia: The Impact of Maritime Boundary and Territorial Disputes”, Harvard Asia Quarterly 9, 4 (Fall 2005), pp. 36–46. 40 H. Djalal, “South China Sea Island Disputes”, in M.H. Nordquist and J.N. Moore (eds), Security Flashpoints: Oil, Islands, Sea Access and Military Confrontation (The Hague: Martinus Nijhoff Publishers, 1998), pp. 109–133 at p. 109. 41 M.J. Valencia and M. Miyoshi, “Southeast Asian Seas: Joint Development of Hydrocarbons in Overlapping Claim Areas?”, Ocean Development and International Law 16, 3 (1986), pp. 211–254 at pp. 215–217; M.J. Valencia, “Taming Troubled Waters: Joint Development of Oil and Mineral Resources in Overlapping Claim Areas”, San Diego Law Review 23, 3 (May/June, 1986), pp. 661–684 at pp. 661–664; L. Odgaard, “Deterrence and Cooperation in the South China Sea” (Department of Political Science, University of Aarhus, Denmark, 2000), p. 94. See also D.J. Dzurek, “Boundary and Resource Disputes in the South China Sea”, Ocean Yearbook 5 (1985), pp. 254–284 at

24

42 43

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44 45

46 47 48 49 50 51 52 53

54 55 56 57 58 59 60 61 62 63 64

C. Schofield pp. 257–264 and D.M. Johnston and M.J. Valencia, Pacific Ocean Boundary Problems: Status and Solutions (Dordrecht: Martinus Nijhoff, 1991), p. 122. Energy Information Administration (EIA), “South China Sea”, Country Analysis Briefs, available at, www.eia.doe.gov/cabs/South_China_Sea/Background.html. Ibid., See also Z. Keyuan, “Joint Development in the South China Sea: A New Approach”, International Journal of Marine and Coastal Law 21, 1 (2006), pp. 83–109 at p. 84. Valencia et al., 1997, p. 10. US estimates of oil reserves in the Spratlys region range between 2.1 and 15.8 billion barrels (Odgaard, 2000, p. 94), while a 1995 Russian Research Institute of Geology of Foreign Countries put the figure at six billion barrels of oil equivalent, of which 70 per cent could be natural gas (Valencia et al., 1997, p. 10). Johnston and Valencia, 1991, p. 122. Valencia et al., 1997, pp. 9–10. Odgaard, 2000, p. 96. The companies involved in this period were Oriental Petroleum and Minerals Corporation of the Philippines, Salen Group of Sweden, Amoco of the USA and London and Scottish Marine Oil Ltd of the UK. Valencia et al., 1997, p. 10. R.J. McLaughlin, “Hydrocarbon Development in the Ultra Deepwater Boundary Region of the Gulf of Mexico: Time to Reexamine a Comprehensive US–Mexico Cooperation Agreement”, Ocean Development and International Law 39, 1 (2008), pp. 1–31 at p. 3. Valencia et al., 1997, p. 11. Interview with oil company representative, 26 May 2000. For example, it was reported that in early July 2007 a group of Vietnamese fishing boats operating near the Spratly Islands had been fired on by Chinese naval vessels, resulting in the death of one Vietnamese fisherman and the sinking of one of the fishing boats. See R. Mitton, “Vietnam, China Clash again over Spratlys”, Straits Times, 19 July 2007. See UNEP/GEF Reversing Environmental Degredation Trends in the South China Sea and Gulf of Thailand project website at www.unepscs.org. For example, the Indo-west Pacific hosts 51 mangrove species and over 700 coral species as compared with five mangrove species and 35 coral species present in the Atlantic Ocean. See www.unepscs.org/SCS_Documents/startdown/381.html. Hearns and Tyedmers, 1995, pp. 289–293. See UNEP/GEF Reversing Environmental Degredation Trends in the South China Sea and Gulf of Thailand project documentation at www.unepscs.org/SCS_ Documents/startdown/381.html. Ibid. These states are, in order of significance as shrimp producers: Indonesia (1st), Vietnam (2nd), China (3rd), Thailand (6th) and the Philippines (8th). Djalal, 1998, p. 110. See UNEP/GEF Reversing Environmental Degredation Trends in the South China Sea and Gulf of Thailand project documentation at www.unepscs.org/SCS_ Documents/startdown/381.html. Hearns and Tyedmers, 1995, pp. 289–293. See, for example, R. Emmers, Maritime Disputes in the South China Sea: Strategic and Diplomatic Status Quo, Institute for Defence and Strategic Studies (IISS) Working Paper No. 87 (Singapore, September 2005), pp. 7–9. Schofield and Storey, 2005, p. 42. For example, analysis of attacks against shipping in the Malacca Strait suggests that many media reports portraying the area as a “hot spot” for piracy and armed robbery against ships, particularly large vessels, transiting the straits engaged in international trade, are misleading as “attacks are actually on smaller, more vulnerable vessels on ‘local’ voyages,” as well as on “fishing vessels and cruising yachts”. See S. Bateman, J. Ho and M. Mathai, “Shipping Patterns in the Malacca and Singapore Straits: An

Dangerous Ground 25

65 66 67

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Assessment of the Risks to Different Types of Vessel”, Contemporary Southeast Asia 29, 2 (2007), pp. 309–332 at p. 311. Far Eastern Economic Review, 13 August 1992, p. 15. Quoted in Prescott and Schofield, 2005, p. 246. The United Kingdom and Argentina’s 1982 conflict and continuing dispute over a hitherto obscure group of islands in the south Atlantic being a case in point. See, for example, Valencia et al., 1997, pp. 7–8; and, Emmers, 2005, pp. 1–2 and 9–13.

2

The South China Sea dispute An international history

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Geoffrey Till

Introduction Consciously and unconsciously, the long-running South China Sea dispute has been used as a means of illuminating the sometimes ambiguous intentions and policies of the countries around it. This is particularly true as far as Chinawatching is concerned. At a time when China was being analysed as either a potential collaborator in the maintenance of the world order or as a possible threat to it, Chinese policy in the South China Sea was seen as a useful indicator of the country’s future role both in the region and globally. Thus the “rise, decline and potential re-birth of China as a maritime power in Asia is the grey eminence lurking behind the scenes of the dispute over the islands and waters of the basin.”1 This approach leads naturally to such questions as: did China’s “acquisition/ occupation”2 of Mischief Reef in 1995 indicate a creeping assertiveness, here as elsewhere, that would, in course of time, lead to China’s emergence as a regional hegemon?3 Alternatively, did its apparent acceptance of a multilateral approach and its proposal of a suspension of sovereignty and shared exploration/exploitation not suggest it was working towards a more benign outcome? But perhaps this approach could be broadened in the same kind of way to encompass consideration of the much larger issue of the light the conduct of this dispute sheds not just on Chinese policy but on the shape of international relations in general, now and in the future. Does the evolution of this dispute suggest we are moving into a different kind of international system – or will it suggest the continuation of normal business? This line of analysis works because the shape and nature of the South China Sea dispute indeed reflects the broader international context in which the dispute is set. As the strategic environment changes, so does the nature of the dispute. At the same time, of course, this is a two-way relationship for the dispute has a significant impact on that environment. Three broad chronological eras in the wider world environment can be discerned, that have been called the “premodern” and the “modern” with a third, the postmodern era, now beginning to emerge.4 Very crudely, the first period is characteristic of agricultural states with limited economic interdependence and

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insufficient surpluses to invest in further development, the second is characterised by the “realist” interactions of states shaped by industrial mass production and the third is animated by aspirations for a cooperative world system of openness and mutual dependence operated by states moulded by, and for, the contemporary information economy. The South China Sea dispute has taken very different forms in the first two of these eras and may be changing again into a possible and particularly complex third.

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The “premodern” era From earliest days the South China Sea was important to China as the route through which trade with India, the Gulf, the Middle East and eventually Europe was conducted. It was “an intersection of history,”5 a vital sea line of communication, and Chinese seafarers were perfectly aware of the navigational hazards of sailing across the area. Early ships coast-hopped with reasonable safety. Later voyages were across the open seas. For them the Spratlys and the Paracels were regarded as a source of danger, something to be avoided, a traffic-divider. While recent archaeological discoveries seem to suggest that Admiral Cheng Ho may actually have visited the islands,6 the essential interest of the time was to avoid the islands, not take them over and settle there. Moreover, the whole idea of “sovereignty” over areas of land or sea, rather than over the people who live there, is a thoroughly anachronistic Western concept which would not have made sense in those early days.7 Indeed, the Chinese state itself was fundamentally premodern in the sense that its merchant classes “of the middling sort”, however important economically, had little influence over the overall direction of national affairs. When it was decided in the early fifteenth century, that the sea represented a contaminating source of ideas and influences that were potentially dangerous, and moreover was a distraction from the more urgent need to defend the land frontier, maritime endeavour was greatly discouraged, even in the immediate aftermath of the extraordinary seven voyages of Admiral Cheng Ho [Zheng He] of 1405–1433. For this reason, “Zheng He and his men did not alter the trajectory of China’s economic development in the pre-modern era.”8 As a result, just as the Europeans began appearing in the Indian Ocean, late Ming China entered a period of relative maritime decline.9 This was largely coincidental but made it much more difficult for the Chinese or indeed anyone else in the area, to contest the newcomers and their new-fangled ideas about territorial sovereignty. From being a “Chinese lake,” the South China Sea became a sea open to anyone else with the strength and interest to claim it. For such reasons, it is perhaps not surprising that many have concluded that in this period the islands of the South China Sea remained essentially res nullius – “a territory belonging to no one but acquirable by appropriation” and there was, in effect, no South China Sea dispute in the contemporary sense of the concept.

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The “modern” era The modern era comprises the European period, the post-European period, the Cold War period and, finally the post-Cold War period, the boundaries between each being inevitably fuzzy. The modern era began with the transformational arrival into the region of the Portuguese and the Spaniards in the sixteenth century, followed soon after by the Dutch, the French and the British. Disputes between them, the adoption of Western military practices and residual resistance of some local rulers delayed the full Europeanization of Asia Pacific in general and the South China Sea in particular until the early nineteenth century. This period of European dominance of the scene lasted, arguably, until the Depression of 1929.10 France, Britain and the Netherlands were the main contenders for influence in the South China Sea region but the level of competition between them, compared, say, to that over Africa, was low. Their local protégés sometimes generated claims of their own to either the Spratlys or the Paracel Islands, for example in 1816 when the Annamese Emperor Gia Long “took possession” of the Paracels. But these efforts were hardly more than symbolic and did not result in sustained presence. Likewise, none of the main European contenders developed coherent claims to, or a sustained presence in, the islands of the South China Sea through the nineteenth century. Both sets of islands were essentially regarded merely as areas of navigational hazard, with very limited commercial possibilities largely based on guano. The French, for example made no objection to the Chinese claim in 1921 that the Paracels came under the jurisdiction of the island of Hainan.11 The impetus to do so, moreover, seem to be the product of the sense of incipient commercial and military decline that marks the onset a few years later of the second period of the “modern” era. This was the time when anti-colonialism was beginning to emerge as a force in the several empires of Europe, when Europe was beset with major economic, social and political problems and when Japan was increasingly seen as the Asian power of the future. The fear that Japan would use its acquisition of Taiwan in 1895 and the current catastrophic weakness of China to advance its interests in the area, decided France, or rather France’s local representatives, to take preventive steps against this danger. In 1930, the French warship Malicieuse took formal possession of the Spratlys, and this formed the basis of a claim that was both vaguely formulated and incompletely declared.12 One of the reasons for the late half-heartedness of this claim was France’s fear of the potential military and economic costs, and the possible international consequences of this action. There were many in Paris who doubted whether the islands and indeed the area were worth the candle, certainly when compared to the other enormous pressures that there were on the budget of the French empire. Plans to build a protective submarine base at Cam Ranh Bay for example were repeatedly delayed for the same sort of reasons.13 The British were concerned that their own claims, which were, if anything, even vaguer, had been ignored by the French but they shared France’s desire to ensure that the

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islands did not fall into the hands of the Japanese, and were reasonably content to rely on France’s actions to ensure they did not. The KMT government in China apparently protested against this claim, although there is no documentary record of this. For their part the Japanese did actively and officially protest against this action; neither were they deterred for long from advancing their interests in the area. Indeed, a significant Japanese presence on Spratly and Itu Abu Islands was discovered by the British in July 1937.14 Even so when seen against the broader strategic issues facing all these contestants, the problem of the South China Sea seemed very minor, and certainly was not seen to warrant the urgent expenditure of the kind of significant treasure, political capital or military force that would have formed the basis of a clear, public and unequivocal presence on any of the islands. The French, the British and the Chinese were anxious about the situation in the South China Sea but not anxious enough to do anything decisive to resolve the problem. The Japanese took things steadily too, establishing a presence in the Paracels on Woody Island in January 1938 and Lincoln Island in April, but being “polite” about it and coexisting alongside French and Chinese presences in the meantime. As far as Britain and France were concerned, the overwhelming strategic issue was the deteriorating situation in Europe itself, not what happened in the far-off waters of the South China Sea. The increasing prospect of a major war with Germany commanded their attention and their resources. Amongst French and British decision-makers, a sizeable constituency concluded that, because the European and Mediterranean situations had to be their top strategic priority, Japan should be appeased rather than confronted, and certainly not over something that did not seem to be all that important. For their part, the Japanese had their hands full in the China war already, were very conscious of developing tensions with both the United States and the Soviet Union and were divided in how far they should push the notion of the Greater East Asia Co-Prosperity Sphere embraced by their more combative decision-makers. For the time being, it was a question of making haste slowly. But, profiting from increasing British and French distractions in Europe, the Japanese ratcheted the pressure up in February 1939 when they seized Hainan, the obvious jumping-off point for a major démarche against Southeast Asia. In the following month they moved into the Spratly Islands, and in April 1939 proclaimed that Pratas island, the Paracels and the Spratlys were all theirs and henceforth to be known as the “New South Archipelago”.15 This time the British did protest – if not very forcefully.16 This was partly from a continuing sense that actually the islands were not very important, and partly from acceptance that it was really the French who should do something about it. But in the background there was that much larger assumption that animated much of British grand strategy in regards to Japan, namely that the Japanese would only dare to attack the majesty of the British Empire if it was clear that the British were definitely losing the central war in Europe. This assumption dominated every aspect of British defence policy in the East, not

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least the neglect of the defences of Singapore.17 Set against this, the fate of the Spratlys and Paracels was “small beer” indeed. It was the same for the French, especially after the fall of France in the summer of 1940. The main priority of the Vichy regime in French Indochina was to survive as an independent political entity that could form the basis for post-war reconstruction but in the meantime this meant accommodating itself, as necessary, to the strategic demands of the currently victorious Japanese. In the South China Sea, the French were squeezed out of some of their island positions, but managed to hang on to a presence on Woody Island until at least March 1945.18 As far as the Japanese were concerned, this vestigial French presence on the islands was completely inconsequential. The strategic fact of the matter was that the temporary success of their armed forces meant that the South China Sea was a Japanese “lake.” As the fortunes of war gradually shifted in favour of the allies, Japanese control of these waters lessened, and an increasingly “uncommanded” sea became what it always does – a dangerous source of strategic and operational vulnerability. In January 1945 Admiral Halsey made this painfully clear with a devastating foray into the South China Sea that was intended to support MacArthur’s landings in the Lingayan Gulf. Although Japan’s major warships in the area, the Ise and the Hyuga, had already fled to Singapore, Halsey sank dozens of smaller French and Japanese ships, and cleaned out the naval base at Cam Ranh Bay. In theory the presence of Japanese airfields all round the South China Sea made this operation “extremely ticklish” but in fact Halsey sailed around the area for 11 days without encountering serious opposition. His foray “showed that control of the South China Sea had changed hands” and once again, the tiny Japanese/French presence on the islands themselves was an irrelevance.19 In effect, the ultimate fortunes of the islands of the South China Sea seemed likely largely to be decided by external events in the success of allied forces elsewhere in the Pacific, in China and in Myanmar.

The post-European period With the Japanese defeated, there was something of a brief, flickering European resurgence in the area as some attempt was made, within severely restricted resources, to recover what had been lost. Again, the question of the sovereignty of the islands was not high in anyone’s strategic priorities, but by the end of 1946 both the Chinese and the French had begun low-level campaigns to re-assert their claims to the Paracels and the Spratlys. This was part of the great flurry of diplomatic activity that always attends the completion of a great war, when there seemed to be so many things that needed tidying-up. The easiest part of the process was removing the defeated and devastated Japanese from the equation. The Treaty of San Francisco of September 1951, was perfectly clear about this, saying, tout court, “Japan renounces all rights, title and claim to the Spratly Islands and to the Paracel islands”. Although

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the separate Japanese peace treaty with China/KMT of April 1952 went a little further, at least according to some readers of the text, the peace treaties left who did actually own the islands in decent obscurity. This was unfinished business, but no one thought it sufficiently important to disturb the process of finishing one war by taking action which just might start another. In theory at least, the French claim on the Spratlys was a direct national one but their indirect pretensions towards the Paracels were based on the nineteenthcentury claims of Annam. The political complexities of sorting out a common position with the successor state in Vietnam, and a certain sense that other things were more important, not least the war with Ho Chi Minh’s regime in the north that began in 1946, conspired to delay positive action. In the event the KMT Chinese were the first to establish a presence on Woody Island in the Paracels in January 1947. A few days later, the French turned up and challenged the Chinese, even to the extent of having their warship, the Tonkinois fire shots in the air, but the diplomatic hullabaloo that resulted made the French reconsider and back off, although they maintained a French/Vietnamese presence in other parts of the group.20 But even this did not resolve the matter, for when Chiang Kai-shek fell back onto Taiwan, the Chinese/KMT presence on Woody Island and Itu Aba was withdrawn in May 1950. The PRC appeared relaxed about the problem. It was over five years before they replaced their presence on Woody Island in December 1955, and some 30 years before a PRC presence was established in the Spratly area. The Philippines became the first new player in the game. Initially, this was essentially a private enterprise venture led by the Cloma brothers and concerned “Freedomland”, an alleged archipelago between the Spratlys and the main Philippine islands. It is generally agreed that private individuals cannot make sovereignty claims and until 1971 the Philippine government was divided about the wisdom of taking such a claim on. Nonetheless these opaque manoeuvrings prompted a cascade of responses that reanimated the dispute throughout the area: the Chinese/KMT returned to Itu Aba in June 1956 and the South Vietnamese and the PRC both re-asserted their claims that the Spratlys and the Paracels belonged to them. Tensions rose between them, ending with the Chinese attack on Vietnamese positions in the Paracels in 1974. Completing the circle of claimants, Indonesia, Malaysia and Brunei entered the competition as well at this time. As a result of all this, the 1980s saw a great many acquisitions, consolidations and claims.21

The Cold War period By now the French strategic presence in the whole area was fading fast and the writing was on the wall for the British and the Dutch as well. The colonial period was drawing to a close and was being succeeded by that of the Cold War. With the struggle between north and south in Vietnam and the onset of the Korean War, the islands of the South China Sea began to be seen, unsurprisingly, as a potential battleground in the struggle between the Communist and Western blocs. The French, certainly, took the line that these islands were just

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another set of dominoes ready to fall to the Communist world. But for the United States, there were more important islands to worry about. The Americans saw the PRC as a threat against which they needed to defend Taiwan. Particularly during the long-drawn-out offshore islands dispute of the late 1950s, China’s focus of attention had accordingly to be on the dangers of the immediate situation, not in the South, but in the East China Sea, for that was where the threat was greatest and where the PRC ran up against American naval opposition. During the Vietnam war moreover, and as part of the exigencies of fighting that war, the South China Sea became something of an American “lake”; this was not therefore an area in which the PRC could easily advance its interests. Moreover the Cultural Revolution and its aftermath was a major distraction for Beijing. The Vietnamese, likewise had other more pressing preoccupations, and the regime in Hanoi was in no position to query any Chinese claims that were made, at a time when it needed Chinese help in its war in the South. The end of the Vietnam war and of the more general Asian Cold War of which it was a significant part, restored an increasing degree of movement into the dispute. Just as in Europe, when the prospect of major confrontation between the superpowers receded, so “a host of disputes and tensions, hitherto suppressed now came to the forefront”22 for the strategic imperatives of the Cold War were far from being the only ones to frame the South China Sea dispute. Just in case, the French and even the British, for example, had chosen to keep their claims under, if not on, the table although they ceased to be major players in the game.23 They decided neither to advance nor to abandon their cause until such time as “the vacuum is filled and some claimant becomes able to exercise a more real and permanent sovereignty than has been possible hitherto”.24 The decay in the bipolar conceptions of the world that animated the Cold War in its “purest” phases became very evident in the deteriorating relations between the two Marxist powers of China and the Soviet Union. Ideology-driven conceptions of the Cold War in Asia made increasingly less sense. Indeed, in 1979 elements of the Soviet navy deployed between Hainan and the Vietnamese coast apparently in order to deter a Chinese sea-based attack on their local ally.25 The Soviet navy used the Macclesfield Bank as an anchorage during this period and shortly afterwards won basing rights at Da Nang and Cam Ranh Bay. Inevitably, this aroused considerable concern in the US navy, but this was directed at the Soviet navy not the PRC.26 Relieved, at least temporarily, of a notional territorial threat from a collapsing Soviet Union,27 and with better relations with the United States, China could now devote rather more attention to its maritime interests across the Taiwan straits and in the South China Sea. It was, moreover, concerned about the many advances made by other claimants in the area during its period of relative inattention. The major worry was the now reunited and apparently assertive Vietnam which seemed to want to make the most of the historic claims of its predecessor regimes. Accordingly, the battle for the Paracels was followed by growing tensions over the Spratlys, a second burst of fighting in 1988–1989 and China’s much discussed Territorial Water Law of February 1992.

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The post-Cold War period With the final end of the Cold War period the South China Sea dispute reverted to being “just” a regional rather than a global issue, albeit one that still had potentially widespread consequences. The series of incidents that perhaps best exemplified what now became a traditional state-centred approach to the dispute included China’s ejection of the Vietnamese from Johnson Reef in 1988, the rise of tension between China and Vietnam during July and August 1994, China’s occupation of Mischief Reef in February 1995, and local reactions to it. Local the dispute may have been, but it could have much wider security consequences. “We are concerned about China’s creeping irredentism or expansionism,” said Masashi Nishara, the Research Director at the National Institute for Defense Studies in Tokyo, exemplifying a traditional “Westphalian” approach. “This is a very important trade route for us, not only with Southeast Asia but with the Middle East and Europe. Our economic security is at stake.”28 Such nation-centred reactions were reinforced by a worry that Mischief Reef and other such events would undermine the new way of managing the problem that had been suggested in the general 1992 agreement that force should not be used to back up claims in the South China Sea. Nonetheless there was little in the way of a nationalistic response by the members of ASEAN; further agreements were made about the non-use of force, including one between the PRC and the Philippines; there appeared to be some rethinking of the issue in the PRC and the United States appeared reasonably relaxed about the incident and the issues it raised.29 All this suggested that early hopes for a new collective approach to solving a set of common problems might, despite everything, yet be appearing through the 1990s.

The causes of the dispute in the modern period The current undecided state of the sovereignty of the Spratly and Paracel Islands reflects a long period in which their economic and strategic value was seen as slight. For that reason, cost–benefit analyses suggested that the claimants should avoid the burden of paying for the infrastructure that would sustain the kind of long-term occupation that would in turn support strong and believable claims. Because the islands were not generally considered important, they were not properly settled; because they were not properly settled, the historic sovereignty claims were weakened by an absence of that “effective control, administration and governance” that could decide ownership.30 This only really began to change in the 1970s. This came about first because of the shifts in the strategic environment already discussed, and second because the nature and strength of the motives of the claimants themselves began to change. The claimants’ motivation was always complex. It was never just a simple matter of the islands’ possible strategic, economic or symbolic value. These things intertwined. The putative military value of islands has actually competed with their commercial value. Illustrating the point,

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it is hard to see how the possible oil and gas resources of the South China Sea could be properly exploited at a time when the area’s strategic value was considered high and relevant. The Vietnam War, for example, severely circumscribed oil exploration of the western side of the Spratly island area, and the surge of interest in exploring the oil prospects of the area, as the Asian Cold War slowly came to its conclusion, is noteworthy.31

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Shifting assessments of the economic value of the islands For much of the time, the comparative lack of interest of the claimants to the islands reflected the sense that economically they had little to offer. The South China Sea, of course, was always a rich fishing ground, but until the concept of the Exclusive Economic Zone appeared on the legal horizon there was little connection between this fact and the ownership of the islands themselves. The islands were regularly visited by turtle fishermen and a variety of crops, including coconut, breadfruit, papaya, pineapple, bananas and tung-oil trees were grown on a few of them. There were, moreover, significant guano deposits to be found in the area. Though useful, none of these economic benefits was of a scale sufficient for local authorities, distracted by much weightier matters elsewhere, to provide serious resources for their protection; this was even more true of distant metropolitan governments. On the other hand, these economic opportunities were, or at least could seem, big enough to interest individual entrepreneurs and adventurers such as the Japanese Nishizawa Yoshiji who took over Pratas Island in 1907 or Sueji Hirato of Takao, Formosa, who was active in the interwar period, although the Dutch suspected that his commercial activities were just a front for the Japanese navy.32 Perhaps, but individual enterprise of this sort could sometimes drive state policy rather than reflect it. Certainly Philippine policy towards “Freedomland” [Kalaya’an] was much influenced by the Cloma brothers who, in the mid-1950s, seemed to want to set up a fishing centre there; at this time, the Philippine government itself was divided about the issue and tabled no specific claim until later.33 Throughout the area, moreover, Chinese merchants of an earlier period and, later, large-boat fishermen from Hainan in their increasingly assertive search for fish, frequently made the running, setting up shelters and bases and falling foul of other fishermen and naval forces, in a manner which made it difficult for the PRC to disown them. It was not altogether clear who was in charge of policy towards the South China Sea – the metropolitan governments who frequently took a relaxed, if not lethargic, interest in such matters or much more activist commercial interests on the spot. But this began to change, with the prospect of significant developments in the Law of the Sea, and, in particular, with the suspected existence of major oil and gas supplies in the area. Oil had been discovered as far back as 1897 in Borneo and companies and governments began to get increasingly interested from the late 1960s in such exciting and important possibilities. Moreover, competition for dwindling fish stocks gradually intensified through the period, with increasingly fierce

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competitions between different sets of independent-minded fishermen and between them and local navies.34 Such possibilities reinforced the developing interest of the countries most involved in the dispute in the concept of a rigorous Exclusive Economic Zone, the prospect of which encouraged a consolidation of their claims.

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Shifting estimates of the strategic value of the islands As Mahan, pointed out “Sea power consists, in the first place of a proper navy and a proper fleet; but in order to sustain a navy, we must have suitable places where a navy can be protected and refurnished.”35 Annam made one of the earliest claims in the area, arguing that the Paracel Islands were “of great strategic importance to our maritime frontiers”.36 On paper, it is easy to see why the Spratly and Paracel Islands, and the South China Sea generally, should be thought strategically important, as places to protect and refurnish naval forces. They could provide a means of maintaining a strong maritime presence in the area, and a route by which to advance on other regions. Cam Ranh Bay, if not a Singapore, was certainly a major point d’appui for naval forces. It served this purpose for the dispirited Admiral Rozhdestvensky on his way to the battle of Tsushima in 1905.37 Much later, the Russians came back to Cam Ranh Bay, of course, when the Americans left, and for a while used it as a base for a modest maritime presence in the area. The Japanese established a small submarine base on Itu Aba during the Second World War and by 1990, the Chinese and the Vietnamese, in particular, had established a variety of military facilities including small ports and runways on the larger islands of the two groups. These could, at least in theory,38 help support efforts to control the waters around them by sustaining a permanent presence in the shape of garrisons, patrol vessels and maritime patrol aircraft with a passing presence by visiting destroyers and frigates. Moreover, crucial sea lines of communication between North East Asia, the Indian Ocean and beyond cross the South China Sea. Shortly after the occupation of the Paracels in 1974, a Chinese journal sought to summarise the position as the Chinese saw it: As it lies between the Indian Ocean and the Pacific, the South China Sea is a vital strategic area. It acts as a gateway to the outside world for the mainland and the offshore islands of China. The [Paracel and Spratly] archipelagos occupy a position central to the shipping lanes connecting Canton, Hong Kong, Manila and Singapore. [Hence] their geographic position is extremely important.39 Accordingly, the islands themselves can, on paper, be seen as stepping stones for a strategic advance from Japan and/or China towards Southeast Asia or vice versa. Bases and listening posts could be established on them both to facilitate and to warn against such advances. Certainly there were those who used such arguments, and sometimes acted on them, even without official sanction. As has already been said, a fear that the

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Japanese would use the islands as a staging post in their deadly advance on French Indo-China was of some concern to both the French and the British authorities in the interwar period. They might provide simple facilities for the refuelling of light forces, anchorages, advance listening posts or minor bases for the operation of sea-planes or submarines.40 In fact, though, this would require extensive investment in infrastructure and would be a source of vulnerability unless the bases were heavily defended. In the event, the Japanese did build a small submarine base in Itu Aba and maintained listening posts in both island groups. But this apart, the islands served no useful military purpose during the Pacific War, as we have seen; both in their operations and their planning, the Americans ignored them. The Paracels, indeed, were not even shown on their maps.41 A postwar British document summarised the point exactly: Strategically they [the islands] were found before the war to be generally unsuitable as bases although one lagoon offered a good stretch of smooth water for flying boats or float-planes. None seemed capable of being used by land-planes except at prohibitive costs; as posts for the observation of ship or aircraft movements they have potential value but are extremely vulnerable.42 Much of this may be explained by the intrinsic characteristics of the islands themselves, especially their small size. For years much of the area had been treated and indeed labelled as “dangerous ground” that it was best to keep away from. Typically, one incentive for the early Annamite claim of 1816 was the valuable salvage rights of ships wrecked in the area.43 On one occasion at least, the British even wondered whether it might not be a good ploy deliberately to lure unsuspecting adversaries to founder in this nightmare place of reefs, shoals and atolls – a fate their own superior seamanship would spare them from. The notion that the Spratlys straddle significant trade routes appears, at the least debatable; however conflict in the area could represent a threat to free navigation, and that might conceivably bring in outsiders.44 The US State Department declaration of May 1995 made such possibilities clear: “Maintaining freedom of navigation is a fundamental interest of the United States,” it said.45 But the real point was that, as Halsey’s foray showed, island bases in themselves do not confer the capacity to command the sea. That takes major naval/air forces able to operate out of, and, crucially, to protect, those bases. In their absence, the bases become a strategic liability as the British discovered in the case of Singapore in 1941–1942. In short the few larger features of the whole area that had “base potential” would prove of abiding value only to a country able to deploy and maintain major naval and air forces into the area. The British continued to believe that the strategic value of the islands was very limited for such reasons well into the Cold War period. However the British military did at least think about using the area as an anchorage for a putative Hong Kong relief effort during the war scare of 1952–1953 and asked the French for hydrographic information about the area. The French Far Eastern Fleet navy also thought the islands could be of greater

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military benefit in the Cold War given the rise in importance of electronic warfare and surveillance. Its senior officers wanted to maintain a French presence in an area they considered of strategic significance. They sought to stay at Cam Ranh Bay and, failing that, establish themselves in small bases elsewhere in the region. – but they did not have the resources, nor did the government have the interest, needed to achieve this.46 These example illustrate the general phenomenon of local navies taking rather more interest in the possible strategic importance of the islands than their more distant political masters. They tended to have their own agendas in the area and used the dispute to advance them. The PLA for example made much of their victory over the Vietnamese in 1974, conferring high honours on the forces who had conducted the operation and commissioning an epic-length poem to commemorate their victory and the valour and value of the PLA navy.47 With the end of the Cold War and the end of any Soviet threat to the north, the Chinese navy has consistently argued that the defence of the country’s maritime interests in the East and South China Sea are China’s top and most immediate priority.48 Hence the expanding academic interest in the growth of maritime power in the area, particularly of the Chinese navy.49 In short, the more overseas trade came to dominate the economy of local countries, the more important their maritime frontiers and life-lines would become and the greater their strategic incentives to defend those interests with the kind of naval power that could make the most of the strategic potential of the islands and their waters. Outside powers, particularly the United States and Japan, whilst maintaining strict neutrality on the substance of the dispute, have expressed considerable concern about its possible implications for general freedom of navigation through the area. Economically vital shipping passing through the area might be affected by possible archipelagic claims, piracy in ungoverned areas or, most dramatically, by conflict between the protagonists. Because “[t]he stakes are too high to permit a cycle to emerge,” the Americans have warned, “we cannot simply sit on the sidelines and watch.”50 As we have seen, the US State Department had already issued a pointed warning to this effect in May 1995: “Unhindered navigation by all ships and aircraft in the South China Sea is essential for the peace and prosperity of the entire Asia Pacific region, including the US.”51

The differing symbolic value of the islands Governments have always felt themselves to have fewer security resources (money, soldiers, etc.) than their full security commitments require. That being so, they tend to concentrate on the security of the land area nearest home and their power to determine the outcome of events on the periphery is greatly conditioned by the strategic realities and limitations of the situation at the centre. Islands are by definition remote from the centre and tend to be neglected, left to their own devices, economically underdeveloped, sparsely populated, indifferently administered and, as in the case of the Spratlys and the Paracels, ambiguously owned. The

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very remoteness of islands tends to mean they are seen as indicators of a government’s performance, a mark of national pride and sovereignty.52 Accordingly, claims to the sovereignty of islands can be important symbolically, perhaps especially in times of national difficulty. When the French and British were essentially unchallenged in the area (except perhaps by each other) they did not feel it necessary to make substantive claims, only doing so when it seemed as though Japan would do so in the interwar period. The Chinese, for their part, discovered the need to re-establish their authority in the area only in the wake of their defeat by the British in the two Opium Wars of 1839–1841 and by the French in 1884–1885. As one analyst has remarked: “The naval catastrophe and the loss of Vietnam, as it were, wrought one of the earliest attempts by China to assert legal title to oceanic space.”53 It was almost as though gaining sea areas would partly compensate for losing land. The much-discussed Chinese “u-shaped line” in the South China Sea is probably an echo of the May 1947 decision by the badly battered China/KMT government definitively to “delimit” its territory in May 1947 in much the same kind of way.54 Certainly, the symbolic value of Itu Aba appears important to the Taiwanese, although they have debated its abandonment from time to time.55 The Philippine démarche and the need to maintain their status vis-à-vis the PRC seem to have persuaded them to hang on the commitment. The South Vietnamese decree of September 1973 that incorporated the Spratlys into Phuoc Thuy province seems to have been similarly motivated, and probably contributed to the dramatic air, naval and amphibious Chinese assault on South Vietnamese positions in the Paracels from 17 to 20 January 1974. The history of the claims shows benign periods of calm being suddenly broken by a particular claim which in turn sparks a variety of responses and counter-claims of this sort, almost as though the claimants did not particularly want the islands themselves but were determined as matters of national pride that no one else would have them.

A new postmodern period? But perhaps now, in the early twenty-first century, we are entering a third, new postmodern period where the traditional preoccupations of the Westphalian national state system become much less evident than they were and multilateral concerns for common security and common prosperity much more evident. Were this to be so, we would expect to see the perceived strategic and symbolic value of the islands to diminish and individual claims to sovereignty over disputed islands and sea areas increasingly subordinated to collective attempts to work round the problem by creating codes of conduct, explorations of a pooling of sovereignty and a sharing of possible resources instead. Such moves indeed became increasingly manifest in the 1990s.56 But, paradoxically, if the postmodern age is dominated by globalisation, then the focus on maritime trade and everything that supports, sustains and might threaten it becomes increasingly important to individual countries, and the more

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they are involved in the global economy, the truer this is. Accordingly energy, and so the putative oil of the South China Sea, becomes something to compete for. For such reasons, the situation in the South China Sea becomes of increasing national concern to all the claimants, and indeed to bystanders as well, and the developments in the international Law of the Sea and of their maritime power might be used to advance such national interests. Whether the result of this collision of assumptions about the twenty-first century will allow things to change in the South China Sea remains to be seen.

Notes 1 Marwyn S. Samuels, Contest for the South China Sea (London: Methuen, 1982), p. 6. 2 No position is taken at any stage in this chapter on the vexed question of who, if anyone, owns what in the South China Sea nor should one be inferred from the island names or particular forms of words used. This is an exploration of the international anatomy of the dispute not of the legal standing of any of the claims. 3 For example, Felix K Chang, “Beijing’s Reach in the South China Sea”, Orbis (Summer 1996), pp. 353–374. Ian Storey, “Creeping Assertiveness: China, the Philippines and the South China Sea”, Contemporary Southeast Asia 21, 1 (April 1999), pp. 95–118. 4 Robert Cooper, The Breaking of Nations: Order and Chaos in the Twenty-first Century (London: Atlantic Books, 2004), pp. 37–43; Barry Buzan and Ole Waever, Regions and Powers: The Structure of International Security (Cambridge: Cambridge University Press, 2003), pp. 22–26. 5 Samuels, op. cit., p. 9; see also Roderich Ptak, China and the Asian Seas (Aldershot: Ashgate, 1998), pp. 21–28, 35–44; Bruce Swanson, Eighth Voyage of the Dragon: China’s Quest for Seapower (Annapolis, MD: Naval Institute Press, 1982), pp. 17–43, 54–72. 6 David Miller, “The Maritime Importance of the South China Sea”, Naval Forces 14, 2 (1993), pp. 32–38. 7 Samuels, op. cit., p. 51. 8 See Deng Gang’s entry on Zheng He in John Hattendorf (ed.), The Oxford Encyclopaedia of Maritime History (Oxford: Oxford University Press, 2007), Vol. IV, p. 468. For fuller discussion see Deng Gang, China’s Maritime Activities and its Socio-Economic Consequences (Westport, CT: Greenwood Press, 1997). 9 Ibid., and for an excellent summary of this period see Samuels, op. cit., pp. 9–30. Modern scholarship suggests there was something of a temporary revival in Chinese maritime endeavour in the eighteenth century, but not enough to reverse the trend. See also Ptak, op. cit. 10 Stein Tønnesson, “The South China Sea in the Age of European Decline”, Modern Asian Studies 40, 1 (2006), pp. 1–57 at p. 2. 11 Ibid., p. 3. 12 Ibid., p. 6. 13 Martin Thomas, “Disaster Foreseen: France and the Fall of Singapore”, in Brian Farrell and Sandy Hunter (eds), Sixty Years On: The Fall of Singapore Revisited (Singapore: Eastern Universities Press, 2003), pp. 68–93 at p. 81. 14 Tønnessen, op. cit., p. 9. 15 Samuels, op. cit., p. 64. 16 Tønnessen, op. cit., pp. 13–14. 17 Brian Farrell, “1941: An Overview”, in Brian Farrell and Sandy Hunter (eds), Sixty Years On: The Fall of Singapore Revisited (Singapore: Eastern Universities Press, 2003), pp. 173–182.

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18 Tønnessen, op. cit., p. 16. 19 E.B. Potter, Bull Halsey (Annapolis, MD: Naval Institute Press, 1985), pp. 324–327; William F Halsey, Admiral Halsey’s Story (New York: Da Capo Press, 1976), pp. 244–246. 20 Ibid., p. 27. 21 John Zeng, “Focus China’s South China Sea”, Asia Pacific Defence Reporter (July–August 1995), pp. 10–13, provides an admirably brief chronology of this process. 22 Eric Morris, “Choppy Seas for ASEAN’s Security Quest”, International Defence Review 11 (1993), pp. 875–878. 23 Tønnessen, op. cit., pp. 42–43. 24 Minute by R.S. Milward, 30 December 1949, FO 371/76038, TNA cited in ibid., p. 42. 25 Samuels, op. cit., p. 149. 26 Denis Warner, “Point Counterpoint in the South China Sea”, Asia Pacific Defense Reporter (August 1984), pp. 53–54. For the prospects of a China–Russia maritime clash in this area see Michael MccGwire, Militray Objectives in Soviet Foreign Policy (Washington, DC: The Brookings Institution, 1987), pp. 208–210. 27 Lee Lai To, China and the South China Sea Dialogues (Westport, CT: Praeger, 1999), p. 5. 28 “Oil Drives Territorial Dispute in South China Sea”, International Herald Tribune, 24 April 1995. Also “Creeping Irredentism in the Spratly Islands”, London: The International Institute for Strategic Studies, March 1995, Strategic Comments. 29 Mark Valencia, China and the South China Sea Disputes; Conflicting Claims and Potential Solutions in the South China Sea, Adelphi Paper 298 (Oxford: Oxford University Press for the International Institute for Strategic Studies, 1995), pp. 26 ff.; Shee Poon Kim “China’s Strategic Thinking and Policies Towards the South China Sea”, Contemporary Southeast Asia 19, 4 (March 1998), pp. 103–105. 30 Captain Lee.G. Cordner, “The Spratly Islands Dispute and the Law of the Sea”, Journal of the Australian Naval Institute (May/July 1994), p. 42. 31 Paul McDonald, “Scrambling for Oil in Asia”, The World Today (October 1992), pp. 174–175; Chang Pao-Min, “A New Scramble for the South China Sea Islands”, Contemporary Southeast Asia 12, 1 (June 1990), pp. 20–39. 32 Tønnessen, op. cit., pp. 13–14. 33 For the Cloma brothers’ role in all this, see Samuels, op. cit., pp. 81–84. 34 Daniel Y Coulter, “South China Sea Fisheries: Countdown to Calamity”, Contemporary Southeast Asia 17, 4 (March 1996). 35 Quoted in William E. Livezey, Mahan on Sea Power (Norman, OK: University of Oklahoma Press, 1981), p. 181. 36 Cited in Samuels, op. cit., p. 44. 37 For a full account of this extraordinary visit, when once again local French and Russian agents took a very different politico-strategic line from their masters back in Europe, see Wladimir Semenoff, Rasplata: The Reckoning (London: John Murray, 1910), pp. 417–435. 38 Gordon Jacobs, “Islands in Dispute”, Jane’s Defence Weekly, 9 June 1990. 39 Kuang-ming jih-pao (Canton) 24 November 1975, p. 2, cited in Samuels, op. cit., p. 139. 40 Tønnessen, op. cit., pp. 12–14. 41 Ibid., p. 17. 42 Minute by R.S. Milward 30 December 1949, FO 371/76038, TNA cited in ibid., p. 33. 43 Samuels, op. cit., p. 43. 44 Daniel J. Dzurek, “China Occupies Mischief Reef in Latest Spratly Gambit”, IRBU Boundary and Security Bulletin (April 1995), pp. 66–67. 45 “US Warns Against Restriction in South China Sea”, Straits Times 12 May 1995. 46 Tønnessen, op. cit., pp. 49–50. 47 Samuels, op. cit., p. 108.

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48 You Ji and You Xu, “In Search of Bluewater Power: The PLA Navy’s Maritime Strategy in the 1990s”, Pacific Review 4, 2 (1991), pp. 137–149. 49 “Marching Forward”, Jane’s Defence Weekly, 25 April 2007, pp. 24–30, usefully summarises common contemporary views of China’s growth as a credible regional military power. 50 “Albright Makes Waves”, Guardian, 27 July 1999. 51 “US Warns Against Restriction in South China Sea”, Straits Times, 12 May 1995. 52 This was certainly the case as far as the Falkland Islands dispute was concerned. See Sir Lawrence Freedman, The Official History of the Falklands Campaign (London: Routledge, 2005), pp. 24–88 passim. 53 Samuels, op. cit., p. 46. 54 Tønnessen, op. cit., p. 29. 55 Gordon Jacobs, “Islands in Dispute”, Jane’s Defence Weekly, 9 June 1990. 56 Alan Shephard, “Maritime Tension in the South China Sea and the Neighborhood: Some Solutions”, Studies in Conflict and Terrorism 17 (1993), pp. 181–211.

3

Maritime territorial disputes and their impact on maritime strategy A historical perspective

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Bruce A. Elleman

China has claimed many of the islands in the South China Sea as its sovereign territory for well over 100 years. Admiral Sa Zhenbing, the Commander-in-Chief of Qing China’s post-1900 navy, even led a naval expedition to these waters in 1907 to enforce China’s claim. During the 1930s, Japan invaded and took possession of many islands, only to lose them later to the Nationalists; to this day, Taiwan has retained control – over PRC protests – of several strategic islands, including Pratas Island and Itu Aba (Taiping Island). To compensate for its former lack of a modern navy, including as yet no seaworthy aircraft carriers, Chinese PLA forces have been stationed on many of the disputed islands and atolls in the South China Sea. To bring unity to these diverse groups, the PRC has gradually networked these bases and has established elaborate signal stations. These facilities, which range from communications relays to radar units, not only demonstrate China’s increasing regional power, but may support further maritime expansion into the disputed waters of the South China Sea. By examining the historical conflicts in the South China Sea, this chapter will argue that these sovereignty disputes may have had a significant impact on both the recent growth of the People’s Liberation Army Navy (PLAN) and on the probable adoption by the PRC of a more aggressive maritime strategy to enclose its territory and prevent outsiders from entering its sovereign waters. In fact, the PLAN’s gradual build-up of these southern island bases may even allow Beijing to one day assert greater sovereignty over the South China Sea. Ominously, on December 4, 2007, China unilaterally announced it had created a new “city” in Hainan Province during November 2007 to administer the Paracels, Macclesfield Bank, and the Spratlys, even though China’s sovereignty over these islands remains in dispute.

Historical claims over the South China Sea to World War II On China’s southern maritime frontier, there are a large number of actual and potential maritime tensions between Beijing and its Southeast Asian neighbors, including disputed sovereignty claims to the Pratas (Dongsha), Paracel (Xisha), Macclesfield Bank (Zhongsha), and Spratly (Nansha) Islands. Open conflict erupted over these islands in 1974, when Chinese forces drove South Vietnamese

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troops out of the Paracels, and again in 1988 when China fought with Vietnamese troops over Johnson South Reef in the Spratlys. Beijing’s official policy is that only China has the right to claim sovereignty over the South China Sea. In particular, Beijing disputes Taipei’s claims to much of the same territory, including Taiwan’s control over Pratas Island and Itu Aba, the largest island in the Spratly group. China’s claim over the South China Sea and the southern islands is longstanding, with extensive maritime trade throughout the region beginning in the Han dynasty (206 BC–AD 220).1 During the Ming dynasty (1368–1644), Chinese expeditions regularly traveled through these waters on the way to Malacca, and Zheng He’s treasure fleets may have visited some of the larger islands. Although estimates of the waters occupied by the Spratly Islands include 180,000 square kilometers of territory, the dozen or so habitable islands total less than ten square kilometers of dry land.2 By the mid-nineteenth century, the Qing dynasty (1644–1911) had established throughout the South China Sea a “flourishing” trade between East and West and “Chinese trading junks and Western merchantmen dominated the region’s economy.”3 Although the South China Sea was visited regularly by Chinese fishermen for the past two millennia, there was no tradition in China of clearly marking maritime territory. Therefore, the first Western country to claim the Spratly Islands officially was Britain in 1864, and it later renewed its claims in 1877 and 1889. These were simply a few of the more than 100 Pacific islands claimed by Britain as possible fueling stations during these years, many of which were later turned over to New Zealand to be administered.4 As a result of the Sino-French conflict in 1884–1885, France made Annam (Vietnam) a protectorate and later a colony, and then during the first Sino-Japanese War of 1894–1895, Japan took permanent possession of Taiwan. China opposed illegal Japanese mining operations on several phosphorite and guano-rich islands in the Pratas and Spratly Islands, and in 1907 Admiral Sa Zhenbing led a naval expedition to reclaim these islands for China. Admiral Sa’s unexpected appearance forced the miners to retreat. Faced with the continued loss of its maritime territory, in September 1909 the Qing government renamed the Naval Reorganization Council the Ministry of the Navy. China’s newly modernized navy conducted several operations in the South China Sea, and in 1909 and 1910 China formally annexed many of these islands to Guangdong province and also sent a ship every year to the South China Sea “to maintain contact with overseas Chinese on these islands.”5 Following the collapse of the Qing dynasty, China was in turmoil for many years. In 1926, the recently established Nationalist navy built a radio station on Pratas Island. Taking advantage of China’s comparative weakness, however, French Indochina annexed the Paracel Islands in 1932, although with Japan’s invasion of China in 1937 the Japanese began to make their own claims to the Pratas, Paracel, and Spratly Islands. During 1937, as part of their occupation of China, Japan seized Pratas Island and captured and interrogated 29 Nationalist soldiers. France, in response to the threat from Japan, sent an expedition to the

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Paracels, officially claiming it as part of Annam on July 4, 1938. Immediately, the Nationalist government in Chongqing and the Japanese government protested France’s action; Japan even stated in its own July 8, 1938 protest that France was violating Chinese sovereignty when it occupied the Paracel Islands. France next claimed the Paracel Islands as part of the French Union in 1939. In response, on March 31, 1939 Japan made a parallel claim on behalf of the Governor General of Taiwan, which was at that point an integral part of the Japanese empire. When France withdrew its forces the next year, however, Japan occupied the Paracels, but this time not on behalf of Taiwan but as Japanese territory based on an earlier territorial claim dating to 1917. Japan also specified that its claim to the Spratly Islands included all of the islands 7–00 and 12–00 north and 111–30 and 117–00 east. From 1939 to 1945, the Japanese occupied Itu Aba, building a fuel depot, submarine base, and radio station there. Near the end of the war, the Japanese were forced to withdraw.

South China Sea territorial claims after World War II Prior to World War II, Chinese governments had largely ignored Hainan, although there was a small naval station at Haikou from the early 1900s. The Nationalist forces under Chiang Kai-shek did not take control of Hainan away from the Guangdong warlord until 1926. But Hainan was not used as a major military or naval base until the Chinese puppet government under Wang Jingwei allowed Japan to occupy it in February 1939. The Japanese quickly built an air base and a navy base at Haikou. During the Japanese occupation in World War II, Hainan experienced an extensive industrial and military buildup. This included large coal and ore mines, as well as the first railroads connecting these industries to a new Japanese submarine base at Yulin. When the Japanese withdrew from Hainan in 1945, a major typhoon the next year destroyed many of the mines, rail lines, and naval structures. The PLA Fourth Field Army subsequently took Hainan after overcoming heavy resistance from Nationalist forces on May 1, 1950.6 A PRC air base at Haikou was inaugurated by the PLAAF commander in June 1952. At this stage, the only South Sea Fleet naval communications link was a low frequency station in Zhanjiang, and the Chinese navy began to expand their facilities on Hainan only in 1957. After World War II the Nationalists retook Pratas Island and once again set up a radio station there. In 1947, the Nationalist government put forward its claim to virtually all of the South China Sea, as outlined by nine dotted lines on a Chinese-produced map. Although in 1949 the Republic of China retreated to Taiwan, the PRC adopted the same view that the South China Sea was Chinese sovereign territory, even while disputing Taiwan’s continued hold over the Pratas Islands. After the war, the international dispute over the Paracel Islands was likewise revived, with the Nationalists initially setting up a base on Woody Island in the northern Amphitrite group, as well as reasserting their claim to the Spratlys by

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basing troops on Itu Aba from 1948 to 1950. Meanwhile, France stationed Annamese marines further to the west on Pattle Island in the Crescent group. When the Nationalists were forced to retreat from Hainan Island in 1950, they also pulled out of Woody Island in the Paracels. Following the Nationalist withdrawal, the PRC made official claims over the islands, as did France on behalf of Vietnam. In 1951, Japan abandoned any claim over the Paracel Islands as part of the San Francisco peace treaty, which left France with tacit control. Once Vietnam was divided into North and South, the islands became part of South Vietnam. Woody Island appears to have remained largely uninhabited through the mid1950s. In 1974, with North Vietnam in a position to overrun the South, a Chinese naval force pushed South Vietnamese troops out of the western Paracels, once again claiming all of the islands. Following the unification of Vietnam in 1975, the Communist government in Hanoi disputed Beijing’s sovereignty and renewed its claim over the islands. When it appeared that a Chinese naval force stationed in the Paracels might participate in China’s 1979 invasion of Vietnam, and perhaps take even more disputed island territory, a number of Soviet warships were sent to Vietnam. On February 22, 1979, the Soviet military attaché in Hanoi, Colonel N.A. Trarkov, even threatened that the USSR would “carry out its obligations under the Soviet–Vietnam treaty”; elsewhere, however, Soviet diplomats made it clear that the USSR would not intervene as long as the conflict remained limited.7 In 1988, the PRC incorporated the Paracels and the Spratlys into a new Chinese province called Hainan province. In March 1988, Chinese naval forces, including three missile-equipped frigates, drove Vietnamese troops from Johnson South Reef in the Spratlys. Although fighting did not recur during the following years, PRC–Vietnamese relations remained tense. For example, in 1992, the Chinese seized a number of Vietnamese cargo ships, while in 1994 a Chinese seismic research ship, operated by China’s oil partner the Colorado-based Crestone Energy Corporation, was ordered at gunpoint by Vietnamese gunboats to leave a disputed zone. During 2002, China and the countries belonging to ASEAN agreed to try to resolve all outstanding disputes peacefully; however, the PRC reiterated its claim to the entire Spratly group. Meanwhile, Taiwan was not invited to sign this agreement, and has previously stated that it would not abide by any multilateral agreement to which it was not a member. Considering that Taiwan retains physical control over several of the largest islands, and its claims to these disputed areas can be backed by a potent naval force if necessary, any lasting resolution will have to take Taiwan into account. The territorial disputes in the South China Sea are complex. The PRC, Taiwan, and Vietnam contest each other’s claims to full sovereignty over the Paracel Islands, while Taiwan and the PRC both have claims on the Pratas Island and the Macclesfield Bank (Zhongsha). Meanwhile, in the Spratlys, the PRC, Taiwan, and Vietnam claim the entire group, while the Philippines, Brunei, Indonesia, and Malaysia have more limited claims. Except for Brunei, all these

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nations have at one time or another supported military actions, and there were almost a dozen reported conflicts during the 1990s alone. However, of all the countries that have claims to these waters, only the PRC has attempted to build a comprehensive support infrastructure in the South China Sea that might allow it to one day obtain its strategic goals by force.

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China’s South China Sea bases Chinese bases in the South China Sea are gradually becoming stronger and more capable. For example, Hainan Island features an embedded, albeit nearly invisible, military electronic infrastructure, and China has been actively expanding south from Hainan Island since 1974, when it seized the Paracel Islands from the Vietnamese. Its activities continued in the 1990s with base construction on several Spratly islands. Extrapolating from the types of electronics and facilities observed, Woody Island and Johnson South Island seem to be the main bases for PLAN activities from the South China Sea through to the Malacca Straits. Other armed Chinese islands or reefs are linked via satellite communications, radio, and even internet to the local and fleet commanders. Meanwhile, the electronics and combat systems of Chinese aircraft, warships, and submarines greatly augment the island-based electronics.8 Hainan Island bases Many major installations on the south China coast are linked electronically to offshore naval operations. The focus of these communications networks appear to be centered mainly on the island of Hainan. Although one of China’s smallest provinces in terms of territory, at just over 35,000 square kilometers, Hainan province includes the Office of West, South, and Central Sands Archipelagos, which oversees the Paracel Islands (Xisha), Macclesfield Bank (Zhongsha), and the Spratly Islands (Nansha). As a result, Hainan’s sea area is approximately two million square kilometers, or over 50 times the size of its land territory, making Chinese administration of these waters especially difficult and time-consuming.9 To protect this enormous region, a large over-the-horizon backscatter (OTH-B) radar faces south near the southern coast of China. In the 1970s, the experimental OTH radar had a 2,300-meter antenna and could pick up surface ships at 250 kilometers.10 To patrol this area, the PLAN ships utilize satellite navigation from their own nation’s satellites as well as foreign networks. Another key set of naval navigation aids are 21 Digital Ground Positioning System (DGPS) radio beacons. DGPS, manufactured by Communication Systems International, can be accurate to within 5–10 meters with a 300-kilometer range. Work started in the late 1970s on three high-power radio navigation aids in south China, while modern marine radio beacon (RBN-DGPS) navigation aids are located at Sanya, Haikou, and Haifou. A more powerful DGPS beacon station of 295 kilohertz was activated in the south during 1999 at Sanya, and two more followed at Yangpu and Baohujiao.

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Beginning in 2000, China launched three satellites to form its own Beidou, or “Big Dipper,” navigation system. Beidou is a regional geostationary satnav, unlike the global American GPS or Russian GLONASS. After this system began operation in 2008, it started to pose a “challenge to US and European satellite navigation efforts”11 It will also give China an alternate navigation system to the US-dominated GPS system during its eight-year operational life. Although limited mainly to the Chinese coastline, it may also cover waters in the South China Sea. Meanwhile, a Vessel Traffic Service (VTS) is located at Zhanjiang. Supporting radar and computer tracking/control stations have been constructed on the west coast at Dong Fang and in Haikou, which “has one local and three remote dual X-band radars, a local and remote very high frequency (VHF) communication system, and a remote VHF direction finder.”12 Since Lockheed Martin is the main supplier, Western imported technology is at the heart of the system. Among other tasks, this vessel traffic management system helps control ships in the constricted waters in the Qiongzhou Channel between Hainan and the mainland. Hainan also has one or more major electronics intelligence (ELINT) stations. Because of the continuing threat of conflict with Vietnam, a major ELINT site was probably built in southwest Hainan. There is also a large ELINT facility at Lingshui air base on the southeast coast. This complex reportedly was established in 1968 and was greatly expanded in 1995, with about 1,000 signal analysts located there. A large satellite downlink facility with an associated computer complex and links to Beijing is probably located at Changcheng, Hainan, although this is purportedly a State Oceanographic Agency site for weather data from a Chinese weather outpost in Antarctica. To support submarine operations in the region, the first high-power low frequency (LF) station was built on Hainan in 1965. The large submarine base at Yulin has extensive communication links for the 32nd Submarine Flotilla headquarters. These include very low frequency (VLF) communications to submarines and surface ships in the South China Sea area. By 1985, five VLF communication sites were located at Fuzhou, Lushun, Ningbo, Zhanjiang, and Yulin, making submerged submarine communications possible. The Paracel bases The Paracel Islands are second in importance only to Hainan for their electronic support systems. A photograph of the Paracel Islands dating to the 1980s shows a huge array of 16 antennas, with each antenna consisted of eight yagi cross arms. This is probably a VHF station, but is described variously either as a satellite communication antenna,13 or as a cross slot early warning radar.14 Woody Island appears to be equipped with the Chinese type 791 X-band precision approach radar (PAR). In June 2001, HY-2 anti-ship cruise missiles were reportedly also brought to the island, which, if true, would require a long-range surface-search radar to detect surface ship targets.15 Initially China constructed a 1,200-foot runway on Woody Island.16 Later, the runway was extended to 7,300 feet, and finally to 7,874 feet.17 This concrete

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runway can probably handle fairly large aircraft, including bombers and large transport planes. Meanwhile, a longer pier has been built to augment the island’s single jetty. Close to the runway is “an aircraft storage facility consisting of four concrete-block hangars, each capable of holding two fighter aircraft, and a hardstand that can accommodate 30 more.” There is also an anti-aircraft site located at Woody Island’s northern end and “since 1991, 67 fighters, spanning 14 deployments, have been deployed to the island.”18 The largest island in the Paracels is Pattle Island, which had for a long time supported a weather station. Meanwhile, the port facilities on Duncan Island, the second largest island, are reportedly being enlarged, which could indicate increased military construction and electronic equipment. Drummond Island, the site of a major Sino-Vietnamese naval battle in 1974, is not known to have any buildings or electronic equipment. But in mid-1995, a new signals intelligence (SIGINT) station reportedly entered service on Rocky Island, which is near Woody Island.19 Although the PRC has repeatedly stated that it will not interfere with freedom of navigation in the South China Sea, it refuses to clarify exactly what areas it claims. By drawing enclosing baselines around the Paracel Islands, Beijing has effectively removed these waters from their previous freedom-of-navigation and overflight regimes. According to Mark Valencia Beijing could be intent on transferring large areas of the South China Sea from a regime in which warships have immunity from its jurisdiction, to one in which permission is required for entry. Of course, China cannot now enforce such a regime. But when it is strong enough, it may try to do so.20 The gradual development of Chinese bases in the Spratly Islands might one day make this more restrictive South China Sea regime possible. Spratly Island bases Although dispersed over an enormous area, several islands in the Spratly group have been turned into Chinese bases. The Spratly Islands were largely uninhabited before World War II, when Japan built facilities on Danger Reef, Tizard Bank, and Namyit Island; many of these areas are occupied by Vietnam and the Philippines today. Itu Aba is one of the most northerly of the Spratly Islands, and one of the few that is large enough to allow for an airfield and submarine base.21 Taiwan continues to control Itu Aba, and has recently lengthened its runway to handle larger cargo planes. The PRC is rapidly changing the delicate balance of power in the region by constructing bases on a number of these small islands. In the 1980s, cruises to the Spratlys by ocean research ships were soon followed by Chinese warships. After civilian and scientific vessels reconnoitered the area in October 1987, China seized Fiery Cross Island (Chigua Atoll) in March 1988. Photographs of a long cement building on Fiery Cross Island reveal what appears to be a standard naval HF yagi radar antenna:

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The Chinese copy, designated Bean Sticks, operates in the 70- to 73-megahertz frequencies with a range of about 180 kilometers. Two other small electronic countermeasures (ECM) radomes on the building appear similar to the RWS-1 mounted on navy destroyers. Several whip communication antennas and taller mast antennas also are on the roof.22 In 1988–1989, several dozen Chinese warships conducted large naval exercises coinciding with the occupation of strategically located reefs in the Spratlys. Later, in November 1990, China completed a lengthy hydrological survey with “research” ships.23 By the 1990s, construction began on a half-dozen reefs of crude huts and octagonal wooden structures on wooden pilings. These were called “typhoon shelters” by the Beijing government.24 Another small base is located at Johnson South Reef. According to photographs, four octagonal huts initially were built on wooden pilings. By 1989, two round cement towers appeared on the ends of a two-story cement building, which are supporting a 2.5-meter satellite communications antenna adjacent to a 2.4-meter mast antenna. Meanwhile, at Subi Reef, the Chinese built a wooden barracks and a two-story building with one satellite communications antenna. This station also houses a “huge round helicopter landing pad and a sturdy cement bridge with cement arches connecting it to the headquarters building.”25 In 1995, China began to build on the circular Mischief Reef, expanding its station there during October 1998 to include 2.5-meter satellite dishes. According to one source, the two-story cement buildings resembled forts, and were outfitted with satellite communication and high frequency (HF) whip antennas.26 Two years later, major electronic and weapon emplacements were added to the smaller northern building. Additional piers, a helicopter pad, and several antiaircraft guns were built, along with an unidentified missile weapon system. Some reports have even suggested that these are Silkworm anti-ship cruise missiles.27 While Hainan Island houses all of the major naval and air bases, the much smaller island facilities on the Paracel and Spratly Islands can still provide substantial communications and intelligence support for future naval Chinese expeditions or submarines transiting the South China Sea. To support its surface fleet, the PRC has gradually increased the number of airplanes, submarines, and marines based in this region. In recent years, the PLAN has conducted naval operations as far away as the Bay of Bengal and Andaman Sea, where China began construction on a SIGINT station in 1993, and “is in control of Myanmar’s Coco Island with a powerful Russian-made radar and electronic surveillance system and has subsidiary electronic listening posts in Man-aung, Hainggyi and Zadetkyi Island.”28

China’s naval air, submarines, and marine forces The PRC’s South Sea Fleet is based in Zhanjiang, in Guangdong Province. Directly to the south, Hainan is the base for many of China’s Su-27K long-range

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interceptors and for the 32nd Submarine Flotilla. From here, the robust Chinese surface forces have been supported by island bases in the Paracels and Spratlys, which can provide communication, signal intelligence, and naval logistics. Such far-flung bases can also help support China’s marine operations, and have recently been referred to as major links in the “string of pearls,” joining the PRC with its most important oil suppliers in the Middle East.29

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Naval air To support China’s maritime goals in the South China Sea, it will need to exert full air control. Naval air supported South China Sea combat operations in the Paracels in the 1970s and in the Spratly Islands in the 1980s. This air support increased over time from supply helicopters up to naval bombers. During these two decades, the number of people in the People’s Liberation Army Naval Air Force (PLANAF) doubled from 15,000 to 30,000 or more, and the number of aircraft increased from 400 to 700. The drive for naval air access to the South China Sea was furthered by the completion of a longer runway on Woody Island. A January 1999 satellite photo showed fuel facilities under construction for naval aircraft.30 In addition to housing as many as 1,000 troops on the Paracels, it has been observed that: “Aircraft based on Woody Island may reach a wide range of targets along the Vietnamese coast and also in the Spratlys.”31 China is making progress with integrating its naval navigation systems, including an extensive Long Range Navigation (LORAN-A) aid network from Korea to Hainan. The daytime effective range is 650–900 miles, which extends out to Taiwan and Japan, while at night it might reach as far as 1,500 miles. During April 1984, China also launched its first communications satellite on a new Long March-3 rocket. Since that time, there have been dozens of additional launches. At least nine communication satellites of three different types have been available to assist naval communications. Although China has not designed or launched its own remote sensing oceanography satellite, it uses downlink data from Japanese GMS, US Landsat, Nimbus-l, and National Oceanic and Atmospheric Administration satellites to provide ocean information. The Chinese Bureau of Oceanography could upgrade ground stations to receive ocean monitoring data from foreign satellites. China also has many ships dedicated to oceanographic research with special equipment. Ten large Xiang Yang Hong (East is Red)-series ocean research ships vary from 15,000 tons down to 1,000 tons. Another dozen or so oceanographic research vessels run about 3,000 tons each, and many other smaller vessels are equipped for ocean surveys. All of these vessels could also be used to support China’s growing submarine fleet. Chinese submarines Potential flash points in the South China Sea could involve submarines, since the 1974 Sino-Vietnamese conflict over the Paracel Islands reportedly included two

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Chinese submarines. During the early 1970s, Yulin became home of the 32nd Submarine Flotilla. By the early 1980s, the 10,000-ton submarine tender R-327 Yong Xing Dao was providing support for Yulin Type 033 boats. Major repairs and maintenance for Hainan-based submarines are performed at Guangzhou submarine construction yards in southern China. In addition to the three Dajang submarine support ships built in 1978–80, China has about ten other submarine rescue or support vessels distributed at various bases. Beginning in the 1990s, Chinese submarines have been able to roam at will in the disputed South China Sea to support Chinese territorial claims. Chinese forward submarine bases could be available not only in the Paracel Islands, including Woody Island, but also as far away as in the Indian Ocean. India has long suspected that a navy base that China began to construct in 1992 in Myanmar could one day be used to support PLAN submarines. Located on Hainggyi Island in the Irrawaddy River, which opens up into the Bay of Bengal and Indian Ocean, this strategic location is connected via a river and road corridor directly to Kunming, China. This base could also provide the PRC with signal intelligence, surface warship basing, or submarine support. China’s procurement of Russian-made Kilo-class submarines and its continued production of indigenous diesel submarines cannot help but represent a growing threat to the other nations claiming sovereignty over all or part of the South China Sea. The PLAN’s support infrastructure in the region for its submarine force has evolved quickly. During May 2005, a nuclear Han class submarine was even observed visiting Hainan Island, which “is the first time that a nuclear submarine has been formally deployed in the South China Sea region, reflecting its strategic importance to China.”32 China’s submarine forces are gradually taking a greater role in the PLAN, with numbers now shifting south for possible South China Sea operations. China’s nuclear submarines initially only had protected facilities in the north fleet, but in the 1990s China built similar hidden submarine tunnels in the south. These tunnels, each with several entrances, are reportedly located at Yalongwan.33 If these reports are true, then these facilities can house large vessels, up to and including nuclear submarines and even Luyang DDGs (guided missile destroyers).34 In February 2008, a 094 Jin-class submarine was photographed at the Yulin base on Hainan Island. During the past decade, the PLAN’s purchase of four Russian-made Sovremenny-class guided missile destroyers and an additional eight Kilo-class diesel submarines has added greatly to China’s rapidly growing capabilities in the South China Sea. The submarine threat is especially important: while the number of active PLAN submarines is currently around 30, compared to 50 active US navy submarines, China has outbuilt the US in new submarines by an eight-to-one ratio over the last five years: “By the end of the decade, experts say, China will have more submarines than the United States, although it will still lag in overall capability.”35 These trends will strengthen China’s ability to use its submarine forces to consolidate territorial control over the South China Sea.

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Chinese marine units Relatively little is known about China’s marine force, beyond the fact that it exists. The first marine brigade of about 4,000 men and armor was reportedly established in Hainan in the 1980s, while a second 5,000-man marine brigade was established in Zhanjiang in 1991. Instead of being based near Taiwan, which would have been a logical location, the first brigade was based in Hainan. This suggests that China was looking to the south, and was perhaps already planning to use its marines to support amphibious operations in the South China Sea. Later events, such as the PRC absorption of certain islands and atolls during the 1980s, would appear to validate this view. Chinese marines have played a major role in the various conflicts in the South China Sea. The Paracel Islands were taken from South Vietnam by force on January 19–20, 1974. The Chinese contingent that defeated the Vietnamese navy was reportedly supported by as many as 42 warships of various sizes and makes. The battle for Duncan Island deployed several torpedo boats, two armed trawlers, and one marine landing craft, and was supported by MiG aircraft based on Hainan Island. By the 1980s, there were some reports that claimed that the Chinese marine corps had grown to three divisions, totaling 56,000 men. In the early 1980s, the PLA also established rapid reaction force light divisions. Most were for internal and border security, but a heavier division intended for littoral offensive operations was established in the Guangzhou Military Region in 1990. In November 1995, one of the largest amphibious landing exercises to date was conducted in this region. To support the marines, a variety of amphibious landing ships have been developed by China. From 1962 to 1972, China had 50 Yuqin class LCM (medium landing craft) built. Beginning in 1968, construction started on over 30 Yuchai and 235 Yunnan class LCMs. Between 1972 and 1974, 23 Yuling class LCUs (landing craft utilities) were built. The first large amphibious ship designed and built in China was the 4,100-ton Yukan class LST (landing ship tank) in 1979. Seven were completed from 1980 to 1995 and, like the American World War II LSTs acquired by the PRC in 1949, the Yukan LST can carry five tanks plus additional vehicles and troops. In 1980, China began the construction of Qiongsha class troop transports of 2,150 tons each that can carry 400 troops, and two other Qiongsha were built as hospital ships for amphibious landing casualties.36 In 1980, construction also began on four 1,460-ton Yudao class LSMs (landing ships medium), while in 1991, construction began on six larger Yuting class of LST, ending in 1996. These were 4,800 tons loaded and could carry ten tanks, four LCUs for the 250 troops, and two medium-size helicopters. This is over twice the load of a US LST or the earlier Yukan class LST. In 2000, China began a new construction run of Yuting class LSTs, known as the Yuting-III, and at least four of these have been completed. The stationing of Chinese marine forces and support ships on Hainan Island shows possible preparation to use the amphibious ships and marines for opposed

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landings in the South China Sea. In March 1992, in response to reports of oil drilling, Chinese marines landed on Da Ba Dau reef, near the Vietnamese-held island of Sin Cowe East, and a clash occurred on March 19, 1992. Four months later, Chinese marines landed on Da Lac reef on Tizard Bank. As one naval expert has hypothesized, China’s actions “were a shrill warning to its neighbors that they could not exclude China from development of the area’s natural resources.”37 As a result of the PLAN naval air wings, submarines, and marine forces based on Hainan Island and on a number of offshore islands, China can now support a wide variety of naval operations in the South China Sea. From these bases, for example, a Chinese force can sail to intercept an opposing force – far away from the Chinese mainland. Such a force can harass shipping, particularly ships carrying petroleum, to Japan and South Korea. Significantly the South Sea Fleet has the largest single swath of exercise areas in the PLAN, seven in total.38 These naval assets may one day assist China in obtaining its long-term strategic goal of controlling all of the South China Sea.

The PRC’s strategic goals in the South China Sea Since making its claim over all of the South China Sea, China has repeatedly argued that it needs to exploit the oil and gas deposits there to develop its own economy. During the 1990s, Vietnam repeatedly protested or sent ships to interfere with Chinese oil surveys. On February 25, 1992, the Chinese National People’s Congress passed the Law of the Territorial Sea and Contiguous Zone. In sharp opposition to claims by Taiwan, Vietnam, Malaysia, the Philippines, Indonesia, and Brunei, the PRC claimed as its own sovereign territory all islands, reefs, and rocks in the Spratly Islands. Diplomacy may be Beijing’s preferred route for settling these disputes, but the rapidly growing PLAN may also play an important role. According to Yuan Jing-dong, China’s strategy is apparently two-fold: “diplomatic initiatives to maintain the status quo and joint development; naval buildup in case diplomacy and force therefore must be resorted to.”39 In 1995, the Philippines and China agreed on eight “principles for a code of conduct.” However, Beijing gradually upgraded its buildings on the Spratlys even while verbally disputing the Philippine’s claim to Scarborough Shoal (Huangyan Dao), a rocky outcrop off Luzon. According to one Rand report from 1999, such incidents showed that “China may use force to vindicate its claim to the South China Sea and its islands.”40 China’s territorial and economic interests arguably go hand-in-hand, since major shipping lanes, extensive fisheries, and a wide variety of energy sources are located in these regions. In particular, a high percentage of China’s petroleum and natural gas reserves lie in offshore waters, and since these areas are outside Beijing’s direct military control, potential threats could only be met by

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naval and air forces. Many offshore energy sources have yet to be explored and Chinese estimates for oil and gas reserves in the South China Sea are impressive, reaching 213 billion barrels for the first and 2,000 trillion cubic feet for the second.41 When put into the context of China’s long history of territorial disputes throughout the South China Sea, the April 2001 EP-3 incident with the United States is simply “the most recent sign that Beijing seeks sovereignty over the entire South China Sea.”42 On April 1, 2001, two Chinese-built F-8 fighters approached an EP-3 US reconnaissance plane flying over the South China Sea about 80 miles southeast of Hainan Island, and one of them accidentally collided with the EP-3. While the EP-3 landed safely on Hainan, the Chinese plane crashed. Chu Shulong, director of the North American division at the China Institute of Contemporary International Relations, stated: “To ordinary Chinese it seems like US planes are coming into Chinese territory to kill our pilots,” referring to the F-8 pilot, Wang Wei, who died in the crash: “There is a feeling that we are being invaded.”43 Although the US plane was well outside China’s 12-mile territorial limit and was flying over international waters, and Chinese officials even agreed that the collision took place nearly 80 miles from Hainan, the Chinese government still claimed sovereignty over these waters because of a number of tiny islands in the South China Sea that it claimed extended its border further out to sea. As one angry PRC citizen stated: “The South China Sea is our territory. We must teach the Americans a lesson and let them know China is not Iraq.”44 Disputing China’s legal interpretation, Lori F. Damrosch, an international law professor at Columbia University, pointed out that the small islands cited by China as part of its boundary amounted to just “a bunch of little specks of rocks,” and are insufficient to retain their own territorial waters.45 During negotiations for the release of the crew, China tried to use the EP-3 incident to weaken the US military posture in Asia. Richard Solomon, president of the US Institute of Peace, even warned: The context [for this airplane incident] goes back to the early 1990s, when the Chinese decided they really needed to get the United States out of the [Asia Pacific] region if they wanted to recover their patrimony, Taiwan and the South China Sea and if China was able to halt US flights near Hainan Island this would “result in a reduction in our overall presence in the region.”46 China’s incremental absorption of the entire South China Sea is continuing. Most recently, on December 4, 2007, China announced that all of its claimed territory in the South China Sea would now be administered as a separate district within Hainan Province. Called, Sansha, this huge new city administration manages the three island archipelagos of Paracel, Spratly and Macclesfield Bank. According to reports, “Shock waves were felt immediately throughout the region: both Vietnam and Indonesia formally protested China’s unilateral and preemptive move.”47 Perhaps in response to China’s unilateral action, during early February 2008,

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President Chen Shui-bian flew to Taiwan’s major island in the Spratlys, Itu Aba. His visit not only proved that the recently lengthened runway could handle C-130 cargo planes, but also reinforced Taiwan’s claim to these disputed territories.48

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Conclusions Taking into account the historical examples of China’s maritime disputes, including those over Pratas Island, the Paracel Islands, and the Spratly Islands, all Chinese claims beginning in 2002 that it will work with the ASEAN countries to limit frictions over these islands and to resolve all differences peacefully should be met with healthy skepticism. In particular, since Taiwan is specifically excluded from this agreement – even though Taipei is a major claimant of these disputed territories and possesses several of the larger islands – no permanent resolution through diplomacy can be expected. This opens the door for China to use force in the South China Sea. Based on the growth of its communications, intelligence gathering, and naval supply structure on its island bases in the South China Sea, China appears to be carrying out a naval strategy of exerting regional maritime control incrementally. Instead of investing only in an expensive aircraft carrier program that might take too long to be put to use, China has created all-purpose bases on a number of strategically placed offshore islands and has linked these bases with a modern electronic communications network. Most outposts have helicopter landing pads and small- to medium-size piers to receive personnel or logistic supplies via ships. If a military conflict were ever to erupt, or if Beijing were to adopt a more aggressive policy, Chinese surface ships, naval air, submarines, and marine forces could make use of these bases to support further expansion. If the past is any lesson, Beijing will not hesitate to take action against what it clearly perceives as an “encroachment” on “its prestige as a great power.” General Mi Zhenyu, former vice-commandant of the PLA’s Academy of Military Science, has even stated that: “China must develop a strong sea power to protect and not yield a single inch of its three million square kilometers of ocean territory. China must ‘build a new Chinese maritime great wall.’ ”49 However, in order to guarantee its extensive maritime claims in the South China Sea, Beijing would first have to overcome many serious technical shortcomings in its naval forces. From purely a military standpoint, the Chinese navy cannot simultaneously challenge all of its Southeast Asian neighbors, but it is perhaps developing a longer-term maritime strategy that will gradually allow it to overcome its shortcomings in doctrine, equipment, and training. As Michael McDevitt has aptly warned: the continued regional competition in the South China Sea regarding sovereignty of the Spratly Islands . . . and the historic memory that China’s “century of humiliation” . . . caused by western nations that came “via the sea” all combine to make emphasis on China’s maritime frontier a strategic necessity.50

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Notes 1 Rafe de Crespigny, Generals of the South: The Foundation and Early History of the Three Kingdoms State of Wu, originally published in Asian Studies Monographs, New Series No. 16 (Canberra: The Australian National University, Faculty of Asian Studies, 1990), chapter 1. 2 www.globalsecurity.org/military/world/war/Spratly.htm. 3 Robert J. Antony, Like Froth Floating on the Sea; The World of Pirates and Seafarers in Late Imperial South China (Berkeley, CA: China Research Monograph, 2003), p. 9. 4 James Truslow Adams, Empire on the Seven Seas: The British Empire, 1784–1939 (New York: Charles Scribner’s Sons, 1940), p. 264. 5 Bruce Swanson, Eighth Voyage of the Dragon: A History of China’s Quest for Seapower (Annapolis, MD: Naval Institute Press, 1982), pp. 117–120. 6 He Di, “The Last Campaign to Unify China: The CCP’s Unrealized Plan to Liberate Taiwan, 1949–1950,” in Mark A. Ryan, David M. Finkelstein, and Michael A. McDevitt (eds), Chinese Warfighting: The PLA Experience Since 1949 (Armonk, NY: M.E. Sharpe, 2003), p. 83. 7 John Blodgett, “Vietnam: Soviet Pawn or Regional Power?” in Rodney W. Jones and Steven A. Hildreth (eds), Emerging Powers: Defense and Security in the Third World (New York, Praeger Publishers, 1986), p. 98. 8 Information for the following sections references James Bussert and Bruce Elleman, “People’s Liberation Army Navy (PLAN) Combat Systems Technology: 1949–2007” (currently being reviewed for publication). 9 “Anti-smuggling Drill in Haikou,” People’s Daily Online, July 28, 2006; http://english.peopledaily.com.cn/200607/28/eng20060728_287664.html. 10 Le-wei Li, “High-frequency Over-the-horizon Radar and Ionospheric Backscatter Studies in China,” Radio Science, 33, 5 (1998), pp. 1445–1458. 11 http://geocarta.blogspot.com/2007/02/china-launches-4th-navigation-satellite.html. 12 James Bussert, “China Expands Influence Through Electronics,” Signal (October 2003), p. 61. 13 Bradley Hahn, “Maritime Dangers in the South China Sea,” Pacific Defence Reporter 11, 11 (May 1985), pp. 13–16 at p. 15. 14 James Dornan, Chinese War Machine (New York: Crescent Books, 1974), p. 158. 15 Bill Gertz, “Woody Island Missiles,” Washington Times, June 15, 2001. 16 Keith Jacobs, “China’s Military Modernization and the South China Sea,” Jane’s Intelligence Review 4, 6 (June 1992), pp. 278–281 at p. 280. 17 http://worldaerodata.com/wad.cgi?runway=PF9777523. 18 “China Unlikely to Launch War in S. China Sea,” Asian Political News, September 27, 1999. 19 www.fas.org/irp/world/china/facilities/shi-tao.htm. 20 Mark J. Valencia, “Tension Increasing in South China Sea,” Honolulu Advertiser, April 5, 2001. 21 Wolfgang Schippke, DC3MF, “Itu Aba Island,” www.425dxn.org/dc3mf/ituaba.html. 22 Bussert, “China Expands Influence Through Electronics,” p. 62. 23 Jacobs, “China’s Military Modernization,” p. 280. 24 Frédéric Lasserre, “Once Forgotten Reefs . . . Historical Images in the Scramble for the South China Sea,” www.cybergeo.presse.fr/ehgo/lasserre.htm. 25 Bussert, “China Expands Influence Through Electronics,” p. 62. 26 Ian Storey, “Manila Looks to USA for Help over Spratlys,” Jane’s Intelligence Review 11, 8 (August 1999), pp. 46–50 at pp. 46–47. 27 Sujit Dutta, “Securing the Sea Frontier: China’s Pursuit of Sovereignty Claims in the South China Sea,” Strategic Analysis 29, 2 (April–June 2005), p. 288. 28 A.B. Mahapatra, “Commanding the Ocean,” NewsInsight, May 16, 2001.

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29 This term is not Chinese, but was coined in a study entitled “Energy Futures in Asia,” commissioned from consulting firm Booz Allen Hamilton in 2005 by the US Department of Defense’s Office of Net Assessment. 30 Bill Gertz, “Beijing Readies China Sea Exercises,” Washington Times, May 17, 2001. 31 www.prio.no/files/file44432_01–07_paracels_isa_hong_kong_paper.pdf. 32 http://cnair.top81.cn/han_xia_kilo_song.htm. 33 “Underground Facilities of Chinese Nuclear Submarine,” Kanwa Intelligence Review (Internet), March 30, 2006 at www.kanwa.com. 34 Kanwa Defence Review, May 2006, p. 56, at www.kanwa.com. 35 David Lague, “US Military Officials Wary of China’s Expanding Fleet of Submarines,” International Herald Tribune, February 7, 2008. 36 www.denaljogja.mil.id/janes/jfs2001/jfs_0637.htm. 37 Lieutenant Michael Studeman, US Navy, “Calculating China’s Advances in the South China Sea: Identifying the Triggers of ‘Expansionism,’ ” Naval War College Review (Spring 1998), pp. 68–90. 38 “Was America Hunting for a New, Killer Submarine?” www.stratfor.com, April 4, 2001. 39 Yuan Jing-dong, Asia-Pacific Security: China’s Conditional Multilateralism and Great Power Entente (Carlisle, PA: Strategic Studies Institute, US Army War College, 2000), pp. 18–19. 40 Zalmay M. Khalilzad, Abram N. Shulsky, Daniel L. Byman, Roger Cliff, David T. Orletsky, David Shlapak, and Ashley J. Tellis, The United States and a Rising China: Strategic and Military Implications (Santa Monica, CA: Rand, 1999), p. 30. 41 www.globalsecurity.org/military/world/war/Spratly-oil.htm. 42 Bruce Elleman and S.C.M. Paine, “A Spy Plane Caught in a Chinese Web of Reviving Grandeur,” International Herald Tribune, April 9, 2001. 43 John Pomfret, “Chinese Driven by Anger, Pride,” Washington Post, April 4, 2001. 44 Calum MacLeod, “Beijing Blames US for Plane Collision,” Washington Times, April 3, 2001. 45 Christopher Drew, “Old Hijinks May Pull the Rug from the US Claim to Plane,” New York Times, April 4, 2001. 46 Jim Mann, “Crisis Forces Bush Team to Speed up Decisions on China Policy,” Los Angeles Times, April 3, 2001. 47 Vu Duc Vuong, “Between a Sea and a Hard Rock,” AsianWeek, January 8, 2008. 48 Brian McCartan, “Roiling the Waters in the Spratlys,” AsiaSentinel, February 4, 2008. 49 Yuan Jing-dong, Asia-Pacific Security: China’s Conditional Multilateralism and Great Power Entente (Carlisle, PA: Strategic Studies Institute, US Army War College, January 2000), pp. 18–19. 50 Michael McDevitt, The PLA Navy: Past, Present and Future Prospects (Alexandria, VA: The CNA Corporation, May 2000), pp. 1–2.

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Part II

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Non-traditional security issues in the South China Sea

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4

Fisheries management in the South China Sea

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David Rosenberg

Introduction For centuries, the South China Sea has provided abundant fisheries for its coastal countries. Flushed all year round by several large rivers, the flat and shallow seabeds of the South China Sea are among the world’s most productive fishing grounds. Fisheries are important around the South China Sea as providers of an inexpensive form of protein, a means of livelihood, and a source of foreign exchange earnings. A large portion of the coastal workforce is dependent on the marine environment through employment in fishing, marine transportation, offshore exploration and extraction of hydrocarbon and other natural resources, recreation, and tourism. As coastal urban populations have grown and as fishing technology has improved, the demand on fish resources has intensified considerably and has led to overexploitation of fisheries in the shared waters of the South China Sea. Fish catch rates (yields per unit of fish catch effort) began to decline in the 1970s with sharper declines registered in the 1980s as bottom trawlers came into widespread use. Fisheries depletion is not only evident in declining catch rates, but also in smaller fish sizes, and market movements down the food chain from large, high-value fish such as tuna, grouper, and snapper to smaller, lower-value fish such as sardines, herring, and mackerel. Aquaculture and other substitutes have expanded enormously in the region, relieving pressure on capture fisheries. However, intensive, large-scale commercial aquaculture is relatively recent; it is not yet clear how sustainable it can be. This analysis summarizes the causes and consequences of fishery resource depletion in the South China Sea, and describes some notable attempts to slow the pressure on declining capture fishery resources.

The South China Sea’s ecosystem Geology and climate have combined to produce a remarkable amount of biological diversity and immense natural resources in the South China Sea. It has numerous archipelagos, islands, and peninsulas, an abundance of coral reefs, seasonally reversing monsoon winds, and underwater currents, all combining to

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Table 4.1 Comparisons of marine biodiversity in South East Asia, Great Barrier Reef and Caribbean regions Region

Marine fish species diversity

Hard coral species diversity

Southeast Asia Great Barrier Reef Caribbean

2,500 1,500 500–600

400–500 395 100–200

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Source: Sustainable Development Strategy for the Seas of East Asia (Quezon City, Philippines: PEMSEA, Partnership in Environmental Management for the Seas of East Asia, 2003), p. 50.

produce exceptionally favorable conditions for a fertile marine ecosystem. Its high productivity is also due to the fact that 125 major rivers drain into the South China Sea. Over 30 percent of the world’s coral reefs border the South China Sea, especially around the archipelagos of Indonesia and the Philippines. Coral reefs are the foundation of an aquatic food chain; they provide a habitat for the highest biological diversity in the world. They support several thousand different species of organisms and play an important part in buffering wave impact on beaches, thus reducing erosion.1 The South China Sea is in the central ecosystem of the FAO’s Pacific West Central Region (Area 71, encompassing the South China Sea and its eastern archipelago and island waters), the most diverse and extensive shallow-water marine region in the world. Within its waters are 3,500 species of finfish and invertebrates. Of these, 182 are listed by the FAO as having substantial landings. The region also contains 45 of 51 mangrove species in the world, 50 of 70 coral genera, 20 of 50 seagrass species, and seven of nine giant clam species known in the world.2 The region’s extraordinary ecosystem can be distinguished in Table 4.1. Capture fisheries Over 11 million metric tons of fish and invertebrates were harvested from this region in 2000. This was approximately 10 percent of the world’s total marine catch. About half of the coastal population’s protein intake now comes from the sea. In addition, many coastal areas have been converted for aquaculture of shrimp and fish, a booming industry of economic importance in the region. Coastal urbanization is one of the main drivers of fish consumption around the South China Sea. Nearly 300 million people now live in the coastal areas of the South China Sea (see Table 4.2). As more people move to coastal cities around the South China Sea, the demand for and supply of fish has risen. Myanmar, Indonesia, Malaysia, the Philippines, Thailand, and Vietnam all expanded their fish catch from 1956 to 2000. This is illustrated in Figure 4.1. Per capita fish supply has also increased substantially in almost every country bordering the South China Sea.3 Tuna is by far the most valuable and sought-after fish in and around the South China Sea. Over 1,500,000 metric tons of tuna were caught in 1999. This represents a 350 percent increase over the 1979 total of 425,000 metric tons of tuna.

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Country

Coastline Population Coastal population Average annual (km) (millions) (% within 100 km population growth (%) of the coast)

Brunei Darussalam Cambodia China DPR Korea Indonesia Japan Malaysia Philippines RO Korea Singapore Thailand Vietnam

161 435 32,000 4,009 81,290 29,020 9,323 18,000 11,542 268 2,600 3,260

0.30 12.49 1,287.75 23.15 206.26 127.00 24.31 79.94 46.14 4.16 62.31 80.53

99.9 23.8 24.0 92.9 95.9 96.3 98.0 100.0 100.0 100.0 38.7 82/8

2.4 2.2 0.9 0.9 1.4 0.2 2.0 2.1 0.8 1.4 0.9 1.6

Source: Sustainable Development Strategy for the Seas of East Asia (Quezon City, Philippines: PEMSEA, Partnership in Environmental Management for the Seas of East Asia, 2003), p. 19.

4,500 4,000 Landings (in thousands of toms)

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Table 4.2 Coastal populations in East Asian countries

3,500 3,000 2,500 2,000 1,500 1,000 500 0

Myanmar

Indonesia

Malaysia

Philippines

Thailand

Vietnam

Figure 4.1 Nominal fish landings in Southeast Asia, 1956–2000 (Source: compiled from FAO FISHSTAT, ).

Anchovies and sardines were the second-ranked species of fish caught, with a 1999 total of about 925,000 metric tons. Most of these are used as fish in aquaculture or animal feed. Shrimp, prawns, and other crustaceans, grouped together as decapods, accounted for about 380,000 metric tons of the Pacific West Central fish catch for 1999. These data are summarized in Figure 4.2.

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1,600,000 1,400,000

Metric tons

1,000,000 800,000 1979 1989 1999

600,000 400,000 200,000

d ui Sq

s ra b C

el

s

M ac ke r

od

i ec ap

ot on

D

s ne sa r

di

Tu n d

C

Species/group

ch

ov i

es

an

Sc ad

a

0

An

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1,200,000

Figure 4.2 Top species caught, Pacific West Central Fisheries Region, 1979, 1989, 1999 (Source: compiled from FAO FISHSTAT, ).

Japan has long been the world’s leading consumer of bluefin tuna for the most popular Japanese dish, sushi.4 During the 1970s, however, Japanese tuna catch leveled off. Overall Japanese tuna harvesting has steadily declined since then. The total world catch of southern bluefin tuna, the most desirable species, has also declined steadily from 1960 to the present. This trend is indicated in Figure 4.3. To compensate for this trend, Japanese fish processing industries have looked further abroad and further down the list of market preferences. They made major investments in tuna fisheries in Indonesia and the Philippines. The rapid increase in Indonesian and Philippine tuna harvesting – mostly in their own territorial and EEZ waters – has more than offset the Japanese decline. Indonesia and the Philippines are now the top two tuna harvesting countries in the world. Indonesian tuna fishing boats now account for well over 600,000 fish caught in the FAO’s Pacific West Central, the main source of tuna for the world market. This transition is illustrated in Figure 4.4. Depletion of fisheries In addition to the extensive spread of tuna fishing noted above, other indications suggest unsustainable tuna fishing practices. The Fisheries Department of Thailand reported that their tuna catch in the Indian Ocean sharply declined in 2001 for the

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90

Catch (1,000 tonnes)

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80

LL GILL PS Total

70 60 50 40 30 20 10 0 1950

1960

1970

1980

1990

2000

Figure 4.3 Total world catch of southern bluefin tuna, 1954–2000 (Source: FAO, ‘Historical Trends of Tuna Catches in the World’ ). 700,000

Indonesia

600,000

Japan Korea

500,000

Malaysia 400,000

Papua New Guinea

300,000

Philippines Taiwan

200,000

United States 100,000

Thailand

0 1950 1955 1960 1965 1970 1975 1980 1985 1990 1995 Year

Figure 4.4 Top tuna harvesting countries, Pacific West Central Region, 1950–1999 (# caught by year by country).

first time since the agency started keeping records. It was not clear whether the decline was due to increased fishing efforts or harmful fishing techniques or both. Modifications in fishing gear technology can increase fish catch yields in the short run, but may damage habitats that reduce fishery capacity for the long term. For example, Thailand, the world’s largest exporter of canned tuna, has many boats that

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use destructive fishing gear – trawlers, purse seines, and drift gillnets – that kill enormous numbers of small fish which would otherwise feed the tuna caught for human consumption.5 Trawlers which scrape the seabed also weaken fishery support systems. In addition to excessive exploitation of fisheries, land-based pollution also weakens sustainable fisheries by degrading fishery habitats. Discharges from sewage systems, fertilizer run-off, phosphorus detergents, industrial pollutants such as heavy metals, and thermal discharges from the cooling systems of power plants all cause acidification, nutrient overload, the growth of aquatic plant life, and the depletion of dissolved oxygen, or eutrophication.6 Oil spills also cause marine degradation in the South China Sea. In summary, there has been a big increase in commercial fishing efforts around the South China Sea in recent decades. The continued growth in the number and size of fishing vessels and increasingly effective fishing technologies such as electronic fish finders, bigger nets and longer lines, mechanized gear, larger on-board processing facilities, and refrigerated storage have all given fishing fleets more capacity than fisheries can sustain. Fishing vessels travel farther to fill their holds, especially in pursuit of high-value fish stocks such as tuna, swordfish, cod, and pollack which often straddle the waters of coastal states and the adjacent high seas. Overexploitation of fisheries in the shared waters of the South China Sea can be seen in the declining yields for specific species, increasing efforts per fish catch, smaller fish sizes, and market movements down the food chain. As valuable straddling and highly migratory fish stocks have dwindled, the incidence of illegal, unreported, and unregulated fishing have increased. Many fishing areas are also being degraded and damaged by land-based and sea-based human activities, including organic and inorganic pollution, sedimentation, overfishing, and oil spills. At stake is the commercial fishing industry as well as the coastal communities that depend on fishing for their livelihood and security.

Unilateral responses There have been many different approaches to achieving sustainable fisheries around the South China Sea, each with its distinct mix of emphases on scientific, technical, training, educational, policy formulation, and implementation aspects. Unilateral measures by individual governments are considered first here, including the promotion of aquaculture or fish farming, the establishment of Marine Protected Areas, and the imposition of fish bans. Multilateral measures are considered next, from the highly ambitious and extensive efforts of the UNEP/GEF project on reversing environmental degradation in the South China Sea and Gulf of Thailand to the more delineated and intensive agreements between China and Vietnam for joint resource management in the Tonkin Gulf. Finally, two programs are considered that combine state, market, and non-governmental organization efforts to achieve sustainable fisheries, the Sulu-Sulawesi Marine Ecosystem project and the Marine Stewardship Council.

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Standards and indicators for sustainable fisheries It would be prudent to preface any discussion of fisheries management with a few caveats. How many fish can be caught in the South China Sea without reducing the reproductive capacity of a species or the biological capacity of an ecosystem? Determining sustainable fish catch rates would seem to be an obvious place to start looking for solutions; however, fish are hard to count, especially migrating fish. Many fish – bycatch or non-target fish – are simply thrown overboard. Illegal, unregulated, and unreported fishing is widespread. Systematic distortions in fish catch rates have been reported to satisfy bureaucratic quotas. For example, Watson and Pauly found that China had over-reported fish catch for several years, masking dramatic declines.7 Apparently, the same bureaucrats were responsible for counting the catch as well as setting the fish catch targets – so they simply exaggerated the count to match their self-allotted goals. One promising way to measure the human impact on sustainable fisheries and marine ecosystems is through a new research tool called “ecological fishprint” analysis. The sustainability indicator was created by three diverse organisations – Redefining Progress, the Ocean Project, and the Center for Sustainable Economy – and is detailed in their recent report, The Ecological Fishprint of Nations(2006). Like the ecological footprint, the fishprint measures the amount of ocean area needed to sustain the consumption patterns of individual nations and the human population as a whole. The report concludes that unsustainable use of global fisheries most likely began in the mid 1970s, and that marine biocapacity fell by nearly 20 percent between 1950 and 2003. It estimates that 91 countries overfished their marine biological capacity in 2003, with Japan, Indonesia and China leading the list.8 John Talberth, director of the Sustainability Indicators Program at Redefining Progress, said, “The extreme level of overfishing reported in these studies demands swift and decisive action by fishery managers to reduce allowable catches, establish marine protected areas, and ban destructive fishery practices such as factory trawling.”9 The Ecological Fishprint of Nations report suggests that at least 20 percent of countries’ exclusive economic zones should be set aside as Marine Protected Areas.10 Even without complete data or agreement on sustainability indicators, the basic policy options for sustainable fisheries can be simply stated, as Robert Johannes has done:11 (1) Area – Limit fishing areas to feeding grounds; i.e. protect spawning grounds; (2) Season – Limit seasons for fishing; i.e. not during spawning season; (3) Size – Limit catch size; i.e. omit juveniles, regulate fishing gear; and (4) Access – Limit access to sustainable fishery regime participants. The guidelines are simple to say but hard to implement. Given the migratory pattern of many species and the common pool nature of the South China Sea, no single country would be able to manage or conserve their common straddling or migratory fish stocks or the ecosystems that nurture them. Despite historical conflicts and territorial disputes, the coastal countries have good reason to cooperate and avoid a tragedy of the commons in their common waters. Cooperative

68 D. Rosenberg management is necessary, but it is a slow and complex process. In the meantime, several countries have taken unilateral measures to preserve their dwindling capture fishery resources.

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Aquaculture In response to the decline of wild fisheries, there has been a dramatic increase in aquaculture or fish farming in countries around the South China Sea. About 43 percent of all fish consumed worldwide is now derived from aquaculture, including mollusks, crustaceans, seaweed, and other aquatic life.12 These trends – highly amplified in China – can be seen in Figure 4.5. While aquaculture takes place within an individual country, it uses substantial regional inputs of fish feed from the bycatch and trash fish of South China Sea fisheries. Today’s aquaculture includes in-shore systems of clams, oysters and other mollusks, which are wild-caught or hatchery-reared seed grown on the sea floor or on suspended nets, ropes, or other structures. Offshore aquaculture often refers to large intensive fisheries in offshore fish pens. Aquaculture systems targeting low trophic level species such as carp, tilapia, catfish, and mollusks which occupy a low position in the predator–prey food chain can be much more sustainable than systems targeting higher trophic level species such as salmon, tuna, or cod. The “blue revolution” of intensive mono-aquaculture is relatively recent. The environmental effects of fertilizers, pesticides, and genetically engineered stocks are not yet well understood. For example, aquaculture is often invoked as a means to protect wild fish stocks despite the fact that wild fish stocks are themselves a significant input into many aquaculture systems. It is not yet clear how sustainable

Fishery food supply (kg/capital) 30 Aquaculture Capture

25 20 15 10 5 0 70

79

88 World

97

04 70

79

88 China

97

04 70

79

88

97

04

World excluding China

Figure 4.5 Relative contribution of aquaculture and capture fisheries to food fish consumption (Source: FAO, State of the World Fisheries and Aquaculture 2006, p. 40. ).

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some forms of aquaculture – such as intensive monoculture of tuna, salmon, or shrimp – will be.13 The resources put into an aquaculture system may often exceed the resources or fish production harvested from the system. Shrimp farming is a prime example of a formerly extensive fishery that has destroyed fishery habitats, especially mangrove forests. The Ecological Fishprint of Nations report asserts that five pounds of sea creatures are killed for every one pound of shrimp caught, and that shrimp aquaculture damages coastal ecosystems, especially mangroves and sea grasses.14 Marine Protected Areas Perhaps the most widespread policy response adopted by the countries around the South China Sea to achieve sustainable fisheries management has been the establishment of Marine Protected Areas (MPAs). According to the MPA Global Database, 554 MPAs have been declared in countries around the South China Sea. Of these, 172 have been created within the last decade, 145 of them by one country, the Philippines.15 MPAs include marine reserves, fully protected marine areas, no-take zones, marine sanctuaries, ocean sanctuaries, marine parks, and locally managed marine areas. They vary considerably in terms of the levels of protection afforded, and the range of activities permitted and prohibited within their boundaries. According to one study of all declared MPAs in the region, 46 percent have no or little management, 28 percent are under moderate management and 26 percent are well managed.16 One exemplary MPA is the Bunaken National Park in Indonesia, which has largely eradicated blast and cyanide fishing from its territory. Most MPAs, however, are currently not well managed; they have only limited resources to achieve their conservation goals. Several multilateral agencies have established development assistance programmes to improve the effectiveness of MPAs. However, territorial disputes among regional countries present obstacles to conservation efforts for sustainable fisheries. The major example of this in the South China Sea is the Spratly Islands group whose valuable ecosystem resources remain unprotected. Extensive efforts have begun by national and multilateral agencies to strengthen the MPAs of the South China Sea. Despite their large numbers, however, they collectively provide only uneven coverage of regional fishery habitats. Fish bans Temporary and permanent fish bans are reappearing in the Asia Pacific region. Under an ancient system of laws known throughout the South Pacific as tabu or kapu, rulers would forbid fishing in certain areas to let them recover from overuse. Palau, Fiji, the Solomon Islands and Vanuatu have created hundreds of “no take” zones.17 In China, overfishing by local fishermen and a surplus of commercial fishing boats led to a similar but seasonal ban on fishing. By the year 2000, the Chinese

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fleet in the South China Sea had increased to 70,000 boats, a ten-fold increase over the previous 20 years. Yields per vessel steadily decreased over the same time period.18 By 1998, 60 percent of fishing enterprises were losing money and many fishermen were unable to sustain their livelihoods. In 1999, the Guangdong Marine and Aquaculture Department issued limits on any increase in marine production and disallowed introduction of any new fishing boats. A seasonal moratorium on fishing in the South China Seas was imposed from June 1 to August 1 due to failing fishery production. The ban idled upwards of 30,000 boats and approximately one million fishermen, as well as 800 boats from Hong Kong and Macao.19 The seasonal two-month fish ban has been reimposed every year since then. Recent reports suggest that the fish bans may be working by giving fish stocks a chance to recover.20

Multilateral responses Legal frameworks for regional fisheries management The international legal framework for sustainable fisheries is provided in the United Nations Convention on the Law of the Sea (UNCLOS). It grants coastal states the right to declare sovereign rights and resource control over an Exclusive Economic Zone (EEZ) up to 200 nautical miles off its coastlines. All the coastal countries of the South China Sea have ratified UNCLOS and declared their respective EEZs. In the case of countries bordering semi-enclosed seas such as the South China Sea, where EEZ claims overlap, UNCLOS calls for establishing joint resource management areas and provides guidelines for doing so, even where conflicting territorial claims are unresolved. Article 61 of UNCLOS further requires countries to monitor their fish catch in relation to both economic and environmental sustained yields.21 The first binding global agreement to address overfishing was the 1995 UN Fish Stocks Agreement. It gave rise to a number of regional fisheries management organizations (RFMOs) to deal with overexploitation of highly valuable but also highly mobile fish stocks that crossed EEZ boundaries. The first RFMO created was the Convention on the Conservation and Management of the Highly Migratory Fish Stocks in the Western and Central Pacific Ocean. The negotiations included 28 states from around the South China Sea and adjacent Pacific Island countries, all with a major stake in the sustainable management of tuna fisheries.22 The tuna fishery of the Western and Central Pacific Ocean is the largest and most valuable in the world, with a catch of about two million metric tonnes in 2004, including albacore, skipjack, yellowfin, and bigeye tuna. This represents about 51 percent of the global tuna catch, 60 percent of canned tuna for the world market, and 35 percent of the supply for the lucrative Japanese sashimi market. Most tuna migrate extensively throughout the region; however, about 70 percent of the total catch is caught within the EEZs of coastal states.23 The Pacific Island countries are mostly low-income developing countries with very

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limited land-based resources but vast EEZs. Distant-water fishing nations such as Japan, Taiwan, Thailand, and South Korea, with advanced tuna fishing fleets, account for most of the tuna catch and pay substantial license fees to gain access to the EEZ waters of the region.24 The Agreement entered into force in 2004 after 13 states ratified accession. However, several important fishing states around the South China Sea – Thailand, Malaysia, and Vietnam – have not signed the agreement. Others – Indonesia and the Philippines – have been reluctant to include their archipelagic waters within the scope of the convention. Apparently, several governments, highly dependent on their EEZ resources for economic development, have so far been reluctant to forego economic returns for an uncertain share of a common pool resource. The FAO report, The State of World Fisheries and Aquaculture 2006, observes that “RFMOs have failed to achieve their fundamental goal of the sustainable management of stocks.”25 Economic and trade factors have so far superseded considerations for sustainable fisheries. Other international efforts include the UN’s 1995 International Code of Conduct for Responsible Fisheries, the FAO Technical Guidelines for Responsible Fisheries, the 1999 FAO International Plan of Action for the Management of Fishing Capacity, and the 2001 FAO International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported, and Unregulated Fishing. These agreements are largely voluntary to encourage widespread international participation. Without reporting or implementation requirements, however, they have limited effectiveness.26 UNEP/GEF South China Sea Project Perhaps the most ambitious multilateral effort affecting regional fisheries management is the UNEP/GEF project on Reversing Environmental Degradation in the South China Sea and Gulf of Thailand.27 In March 2001, all the coastal states put aside their competing territorial claims and signed an agreement to protect their common marine environment. The project is a US$32 million multilateral conservation effort funded by the Global Environmental Facility (GEF) and implemented by the United Nations Environmental Programme (UNEP). The Regional Working Group on Fisheries (RWGF) was specifically created by the UNEP/GEF South China Sea Project to address overexploitation issues. National committees present periodic reports on their conservation activities and plans. The ultimate objective is the recognition and establishment of fisheries “refugia” – fish sanctuaries – encompassing the critically important marine habitats in the South China Sea. Once the refugia have been identified, they will be protected from overexploitation by a multilateral fisheries management system including all the participant governments. Twenty potential refugia sites have been identified by the RWGF so far. While tangible progress in reversing environmental degradation has been slow, an enormous educational effort is being made to inform stakeholders about the current degradation of the South China Sea and to persuade them of the importance of sustainable resource management.

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There are several other intergovernmental organizations that aim to promote regional cooperation for sustainable fisheries in the South China Sea. These are summarized in Table 4.3. All these intergovernmental efforts are largely voluntary to encourage widespread participation. They have produced a substantial amount of information, education, training, planning, and monitoring through their work. However, given the wide range of participating governments, their varying concerns and capabilities, and the few stringent implementation or enforcement requirements, these multilateral institutions have so far had only limited effectiveness in implementing sustainable fisheries management. The Sino-Vietnamese Tonkin Gulf agreements One of the most significant efforts to achieve sustainable fisheries in the South China Sea began with two bilateral agreements signed on December 25, 2000 between China and Vietnam. The two pacts demarcate territorial waters and EEZs and outline fisheries cooperation in the Gulf of Tonkin, or the Beibu Bay.28 The agreements address three key issues. First, they reaffirm each country’s exclusive rights over fishery resources and fishing activities in its own EEZ. Second, they establish general principles for reciprocal fishing access in each other’s EEZ. Third, the agreements create a cooperative management regime for their shared fishery resources. The agreements established a Joint Fishery Committee (JFC), including representatives from each country appointed by each government, as well as several commissioners. The JFC has the authority to decide on conservation and management measures, including the allocation of fishing quotas and the maintenance of fishing order. It has the responsibility to ensure that fisheries are not endangered through overexploitation. Recommendations and decisions are made by consensus, according to the agreement. JFC meetings are held at least once per year, with additional ad hoc meetings as necessary. It is a permanent body with full operational authority, including a dispute settlement mechanism.29 The major work of the JFC is to determine how many fishing vessels will be permitted access to the joint resource management areas. The JFC employs a quantity control approach that quantifies the total allowable catch (TAC) of several target species, the status of each resource, the extent of traditional fishing activities and modern fishing methods and management, and then derives the allowable number of vessels. Fishing vessels of one country need to apply for a license to fish in the other country’s EEZ. They have to comply with the terms of the joint fisheries agreement as well as the domestic laws and regulations of that country. Any violation is subject to legal procedures of the country controlling the EEZ where the fishing takes place. In the case of seizure or detention, the fishing vessels and crew must be promptly released upon posting a bond or other form of security. These agreements will inevitably limit access to traditional fishing grounds. Thousands of fishing boats will have to be scrapped; hundreds of thousands of

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Table 4.3 Multilateral agencies related to South China Sea fisheries APEC Fisheries Working Group (APEC/FWG) (www.apec.org/apec/apec_groups/ working_groups/fisheries.html)

APEC/FWG policy priorities as of April 2007 included National Programmes of Action; Illegal, Unreported and Unregulated (IUU) Fishing; Monitoring, Control and Surveillance (MCS) measures; Regional Fisheries Management Organisations (RFMOs); Fisheries Resources Monitoring System (FIRMS), and the FAO FISHCODE-STF data collection project.

APEC Marine Resource Conservation Working Group (APEC/MRC) (www.apec.org/apec/apec_groups/ working_groups/marine_resource_ conservation.html)

APEC/MRC has held recent meetings on red tide, seafood safety standards, ocean modeling, destructive fishing practices, coral reef protection, pollution from land-based sources and maritime accidents, and decommissioning offshore oil and gas platforms.

Asia-Pacific Fishery Commission (APFIC) (www.apfic.org)

Established in 1948 by FAO to increase food supply after World War II, APFIC has recently changed emphasis from increasing fishery production to creating sustainable fisheries and environmental management.

INFOFISH (www.infofish.org/)

An inter-governmental effort of 11 countries, INFOFISH provides marketing information and technical advice for fish producers and exporters through trade publications, exhibitions, conferences, workshops, and training programmes.

Network of Aquaculture Centres in Asia and the Pacific (NACA) (www.enaca.org/)

NACA conducts interdisciplinary research for aquaculture centers, operates a regional information system, and trains aquaculture management personnel.

Partnerships in Environmental Management for the Seas of East Asia (PEMSEA) (www.pemsea.org/)

PEMSEA’s 12 East Asian member nations have recently focused on Integrated Coastal Management or ICM, and Risk Assessment and Risk Management, to survey the impacts of human activities on marine ecosystems.

Southeast Asian Fisheries Development Centre (SEAFDEC) (www.seafdec.org)

SEAFDEC’s 11 member countries provide survey services on fishing gear technology, marine engineering, fishing ground and stock assessment, post-harvest technologies. SEAFDEC also has a fleet of sophisticated fisheries research vessels.

UNEP/GEF Project on Reversing Environmental Degradation in the South China Sea and the Gulf of Thailand (www.unepscs.org)

The UNEP/GEF SCS Project’s Strategic Action Programme aims to remedy: ‘The Loss and Degradation of Coastal Habitats, Over-Exploitation of Fisheries in the Gulf of Thailand, and LandBased Pollution.’ The 7 border state members will develop national and regional management plans for specific habitats, demonstration management activities, and pilot projects.

WorldFish Center (www.worldfishcenter.org)

Formerly the International Center for Living Aquatic Resources Management (ICLARM), the WorldFish Center is an international research organisation to increase fish production, guide fisheries management, and reverse habitat degradation.

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fishermen will have to be relocated. Each country has started to take the painful steps necessary to shrink fishing grounds, cut back fishing fleets, and recycle redundant labor in order to conserve and manage a vital resource. The Sino-Vietnamese agreements on fisheries management appear to be working well. They have been renewed and extended until 2019. Registration and record-keeping procedures for local fishing vessels and for fishermen themselves have been simplified. Vietnam and China agreed in January 2006 to conduct a joint survey of fish stocks in joint-fishing areas. These steps are even more impressive given the shooting of Vietnamese fishermen by Chinese naval patrol police in early 2005. In response to the attacks, government officials on both sides of the Tonkin Gulf opted to hold meetings of the Vietnam-China JFC to discuss measures to stabilize the situation. China and Vietnam have conducted joint patrols and are apparently succeeding in reducing illegal fishing and disputes between fishing boats.30 From a resource management perspective, the main limitation of these agreements is that they focus on managing fishing activity in designated areas that only comprise part of the fishery ecosystem. Many fish stocks migrate seasonally from the management zones to unrestricted fishing waters. Unregulated waters still exist for unrestricted exploitation of fish stocks. Another limitation is that the JFC has little transparency or accountability. Decisions are made behind closed doors with no public participation or dispute settlement mechanisms for redress of grievances. The JFC generally does not publish its deliberations or the data upon which its decisions are based, or the results of scientific findings. Hence, it is difficult to fully understand the rationale for the regulations.31 It will remain quite a challenge for authorities to establish routine joint dispute settlement mechanisms and to convince all fishermen that they cannot fish in waters whenever they want where they have done so for years. Notwithstanding these limitations, the agreements are important pioneering efforts. The major significance of these agreements is that they were signed in accordance with UNCLOS and based on two main objectives, namely, the peaceful settlement of fishery disputes and the establishment of a system for sustainable fishing for the communities around the South China Sea. They are the result of political compromise among countries with strikingly different levels of economic development, domestic political systems, and foreign policy concerns. State–market–NGO programmes One way to extend the efforts of individual countries and to overcome the complexity of multilateral regional approaches is to combine state, market, and NGO (non-governmental organization) efforts on a specific project in a specific area. Two notable efforts combining government, business, and NGOs are described below: the Sulu-Sulawesi Marine Ecosystem programme and the Marine Stewardship Council.

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Sulu-Sulawesi marine ecosystem This creative partnership began in 2003 when representatives from the World Wide Fund for Nature (WWF) and the governments of Malaysia, Indonesia, and the Philippines met to produce a shared resource management plan for the Sulu Sulawesi Marine Ecoregion (SSME). The SSME faces several threats, including overexploitation of resources, widespread water pollution, and the use of destructive fishing methods, all of which have extensive consequences for the area’s population. “This region is of massive economic importance as it is home to about 35 million people who are directly or indirectly dependent on the coastal and marine areas for their livelihood,” said a representative from WWF-Malaysia.32 The collaboration has already produced significant results. For example, WWF helped launch a regional enforcement campaign to stop coral reef destruction. They received the support of six Philippine law enforcement agencies to put an end to destructive activities at two key sites in the Philippines – Tubbataha Reef National Marine Park in Palawan and Anilao in Balayan Bay – through increased patrolling, enforcement, public outreach, and user fees. Since the enforcement campaign was launched in 1999, destructive fishing practices have been virtually eliminated in the two pilot areas. Tubbataha was named by Asiaweek magazine as the region’s best marine park, an important acknowledgment that demonstrates to park managers, politicians, and park users that healthy, well-managed coral reefs bring international recognition, which in turn can attract social and economic resources to a region. In Indonesia, at Bunaken National Marine Park, WWF started an initiative called Friends of the Reef to develop innovative partnerships with the newly formed park, the private sector, and local communities to strengthen enforcement patrols against dynamite and cyanide fishers who venture into the park. And similar to efforts in the Philippines’ Apo Reef, illegal fishing from Chinese trawlers has been eliminated in this park.33 Given the variety of ethnic groups, languages, and lifestyles, the SSME programme is a remarkable example of a coordinated tri-national conservation programme.

Marine Stewardship Council (MSC) The MSC is an independent, non-profit certification programme for sustainable fisheries. It was founded in 1997 by the World Wide Fund for Nature and Unilever in response to the collapse of the unregulated North Atlantic cod fishery in the 1990s. It is expanding its outreach efforts to work with developing countries to help them get certification for sustainable fisheries in their waters. The MSC Principles and Criteria for Sustainable Fishing are derived from the FAO Code of Conduct for Responsible Fisheries and other international conservation instruments, and reflect the results of several regional workshops and drafting sessions. The “P & Cs” are based on the maintenance and re-establishment of healthy populations of targeted species; the maintenance of the integrity of ecosystems; the development and

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maintenance of effective fisheries management systems, taking into account all relevant biological, technological, economic, social, environmental and commercial aspects; and compliance with relevant local and national local laws and standards and international understandings and agreements.34 According to its 2005/2006 annual report, more than 50 fisheries were certified to MSC environmental standards or are currently in assessment. A total of 332 MSC-labeled products were available in 25 countries in March 2006. Retail sales of MSC-labeled fish grew 76 percent in 2005–2006, with more than 200 businesses trading sustainable MSC-certified seafood.35 While most MSC-certified fisheries are currently in North America or Europe, the MSC’s activities in Asia are increasing. Certified fisheries in Asia include the Australian mackerel icefish, New Zealand hoki, and Western Australian rock lobster. The Japanese flathead flounder and snow crab fisheries are currently under certification review, as are two pilot projects in Vietnam, the Ben Tre clam fishery and the Phu Quoc anchovy fishery. Preliminary outreach visits have been made in China, Hong Kong, Malaysia, and Thailand.36 Perhaps the most significant recent development came in February 2006 when Wal-Mart, one of the world’s largest sellers of seafood, announced that it would purchase all of its wild and farmed seafood – fresh and frozen – from fisheries certified as sustainable by the MSC over the next five years.37 Wal-Mart, a powerful supermarket chain retailer, has emerged with substantial bargaining power with others in the supply chain. As the last link between producers and consumers, retailers like Wal-Mart have seen their responsibility toward their customers increase, leading to a greater need to control safety, quality, and sustainability to maintain their reputation and market share. They have also been pressured to do so by environmental, health, and consumer advocacy groups, especially after recent reports of contaminated fish products from the South China Sea. “Ecolabelling” of fish products has long existed, for example, in the “label rouge” in France, Quality Mussels in Ireland and Canada, and numerous organic farmed fish labels in small market niches. Now Wal-Mart will expand these efforts worldwide. Initially, Wal-Mart will apply the MSC ecolabel to its 3,800 stores in North America. Meanwhile, WWF and Conservation International will assist noncertified fisheries to qualify as Wal-Mart suppliers. Wal-Mart wants sustainable fisheries for sustainable profits, and it has turned to MSC to coordinate state and market relations to reverse the decline of fish stocks. MSC, in turn, aims to provide a “gold standard” for fisheries and marine conservation through transparency, science, and consultation.

Conclusion The problems of fisheries depletion in the South China Sea have long been noted.38 They include unlimited access to finite natural resources, habitat degradation, multiple use and territorial conflicts, inadequate or inconsistent

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legislation, and ineffective law enforcement. In the past decade, there have been several national and multilateral efforts to respond to these problems. They have been largely voluntary to encourage widespread participation and have succeeded in providing extensive education and training. However, because they are largely voluntary, they often lack the means or incentives to ensure effective implementation or enforcement of sustainable fisheries management. The range of efforts briefly mentioned or summarized here – unilateral, multilateral, and state–market–NGO – indicate that there is no single path to sustainable fisheries management. A carefully monitored, trial-and-error adaptive management approach may be better suited to the diversity of regional conditions. Even with good sustainable catch regulation, there remain strong negative economic incentives to catch as many fish as fast as possible. Major fishing and fish-consuming nations continue to encourage full exploitation of fish stocks in the extensive EEZ waters of developing coastal states around the South China Sea. State–market–NGO efforts such as the Marine Stewardship Council have promise for sustainable fisheries. However, the benefits of this approach are likely to be concentrated in the earnings of large retailers such as Wal-Mart and diffused among millions of consumers. Under these circumstances, there is only a very limited prospect for large-scale, commercial capture fisheries. The only areas where fish stocks and habitats appear to be recovering are in those areas with stringent restrictions on fishing areas, seasons, catch size, and access. Sustainable management of fisheries works better with fewer stakeholders and smaller management areas; for example, within the clearly delineated boundaries of the Sino-Vietnamese Joint Fishery Management area in the Tonkin Gulf, or in the Sulu-Sulawesi Marine Ecosystem, or in several South Pacific island nations. Beyond these few examples of regional fisheries management in the South China Sea, there remains only a limited scope for small-scale fishing for local markets, as well as a luxury trade and recreational fishing for the few remaining top predator fish species. Aquaculture, done properly, may be the best hope for sustainable fisheries around the South China Sea. Fishing traditions around the South China Sea evolved under the assumption of unlimited resources. Fisheries depletion and habitat degradation were already problems before the extension of maritime jurisdictions through EEZ declarations in the 1990s. Now that the limits of fishery resources have been clearly perceived, coastal states are grappling with the challenge of avoiding a maritime tragedy of the commons. In the South China Sea, where ecosystems seldom coincide with territorial boundaries, cooperative fisheries management is more pressing than ever.

Notes 1 “Coral Reefs in Southeast Asia,” Coral Reefs and Mangroves of the World; www.UNEP-WCMC.org/marine/data. 2 Draft Strategic Action Programme for the South China Sea. 1999; www.iwlearn.net/iw-projects/unepscs/southchinasea_sap_1999.pdf/view.

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3 J. Butcher, The Closing of the Frontier: A History of the Marine Fisheries of Southeast Asia, c. 1850–2000 (Singapore: Institute of Southeast Asia Studies, 2004). 4 T. Bestor, “How Sushi Went Global,” Foreign Policy (November/December 2000), p. 54. 5 K. Samabuddhi, “Sharp Drop in Tuna Catch Detected,” Bangkok Post, January 19, 2002. 6 Marine Statistics for Southeast Asia World Conservation Monitoring Center; www.UNEP-WCMC.org/marine/data. 7 R. Watson and D. Pauly, “Systematic Distortions in World Fisheries Catch Trends,” Nature 414, 29 (November 2001), pp. 534–536. 8 J. Talberth, K. Wolowicz, J. Venetoulis, M. Gelobter, P. Boyle, and B. Mott, The Ecological Fishprint of Nations (Oakland, CA.: Redefining Progress, 2006); www.rprogress.org/newpubs/2006/FishprintofNations2006.pdf. 9 “Humanity’s Ecological Fishprint Unsustainable,” Environment News Service (ENS), November 16, 2006; www.ens-newswire.com/ens/nov2006/2006-11-16-03.asp. 10 Talberth et al., The Ecological Fishprint of Nations, p. 7, Figure 4: “Trophic Levels of Commonly Consumed Fish.” 11 R. Johannes, “The Case for Data-less Marine Resource Management: Examples from Tropical Nearshore Finfisheries,” Trends in Ecology and Evolution 13, 6 (1998), p. 243. 12 Food and Agriculture Organization of the United Nations, The State of World Fisheries and Aquaculture 2006 (Rome: FAO, 2007). 13 K. Wolowicz, “The Fishprint of Aquaculture: Can the Blue Revolution Be Sustainable?” Redefining Progress, December 2005. 14 Ibid., p. 5. 15 “MPA Global: A Database of the World’s Marine Protected Areas”; www.mpaglobal.org/home.html. 16 “Marine Protected Areas in Southeast Asia” (Los Baños, Philippines: ASEAN Regional Centre for Biodiversity Conservation, 2002), p. 9. 17 “Pacific Miracles,” International Herald Tribune, April 23, 2007; www.iht.com/ articles/2007/04/23/opinion/edfish.php. 18 “Results of the South China Seas Fishing Ban,” Economic Woes; web.uccs.edu/ mmills/documents/economic_woes.htm. 19 “Second Fishing Ban in South China Sea Ends August 1,” People’s Daily Online, August 1, 2000; english.peopledaily.com.cn/200008/01/eng20000801_46983.html. 20 “Fishing Ban Starts on South China Sea,” People’s Daily Online, June 1, 2006; english.people.com.cn/200606/01/eng20060601_270336.html. 21 United Nations, Oceans and the Law of the Sea; www.un.org/Depts/los/index.htm. 22 Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPFC); www.wcpfc.int. 23 A. Sydnes, G. Hønneland, and T. Henriksen, Law And Politics in Ocean Governance: The UN Fish Stocks Agreement and Regional Fisheries (Leiden: Martinus Nijhoff, 2006), pp. 170–172. 24 Ibid., p. 174. 25 FAO, The State of World Fisheries and Aquaculture 2006, p. 54. 26 P. Chasek, D. Downie, and J. Brown, Global Environmental Politics (Boulder, COL Westview, 2006), pp. 168–175. 27 www.unepscs.org. 28 PRC Foreign Ministry; www.fmprc.gov.cn/eng. 29 Z. Keyuan, “The Sino-Vietnamese Agreement on Maritime Boundary Delimitation in the Gulf of Tonkin,” Ocean Development and International Law 36 (2005), pp. 13–24. 30 “More than 1,540 Vessels Register to Fish in Tonkin Gulf,” Asia Pulse, August 18, 2005. 31 N. Thao, “Maritime Delimitation and Fishery Cooperation in the Tonkin Gulf,” Ocean Development and International Law 36 (2005), pp. 25–44.

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32 “The Sulu-Sulawesi Ecosystem,” Coral Triangle, Featured Projects, World Wildlife Fund; www.worldwildlife.org/wildplaces/ss/projects.cfm. 33 Ibid. 34 “MSC Principles and Criteria for Sustainable Fishing”; www.msc.org/documents/ msc-standards/MSC_environmental_standard_for_sustainable_fishing.pdf. 35 “MSC Annual Report, 2005–06”; www.msc.org/documents/annual-report-archive/ msc_annual_report_05_06.pdf/view. 36 “Certified Fisheries”; www.msc.org/track-a-fishery/certified/msc-certified-fisheries/ ?searchterm=certified%20fisheries. 37 M. Gunther, “Saving Seafood,” Fortune, July 31, 2006. 38 D. Coulter, “South China Sea Fisheries: Countdown to Calamity,” Contemporary Southeast Asia 17, 4 (March 1996), pp. 371–388.

5

Cooperative development of oil and gas resources in the South China Sea

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After the signing of the Declaration of the Conduct of the Parties in the South China Sea between China and ten ASEAN countries in 2002, the situation in this sea area has remained relatively calm and peaceful. Though there are small frictions between relevant claimants, high-profile tensions like the Mischief Event which happened in 1995 have not appeared. According to the Declaration, China and relevant ASEAN countries should work out detailed cooperative plans in the area of their common interest in the South China Sea. Cooperation in the development of oil and gas has no doubt become one of the important areas of China–ASEAN cooperation. Natural resources in the South China Sea are abundant. In addition to marine living resources, mineral reserves including oil and gas have a huge potential. In the Spratly area, there are eight sedimentary basins with an area of 410,000 square kilometers, and 260,000 square kilometers are within China’s unilaterally claimed U-shaped line.1 An incomplete figure from China shows that these eight sedimentary basins contain 34.97 billion tons of petroleum reserves, including the discovered 1,182 billion tons of oil and 8,000 billion cubic meters of gas. Thus the South China Sea is sometimes called a “second Persian Gulf.” Unlike the Chinese estimation, the general view outside China is less optimistic. A 1993/1994 figure provided by the US Geological Survey estimated the sum total of discovered oil reserves and undiscovered resources in the offshore basins of the South China Sea at 28 billion barrels.2 However, if this figure is added with the reserves of natural gas which, according to the US Geological Survey, account for 60–70 percent of the total potential hydrocarbon resources in this region,3 the overall picture of petroleum exploration and development, though within the conservative calculation, is still very encouraging. In addition, there is large quantity of gas hydrate (also known as “flammable ice”) in the South China Sea.4 However, unilateral exploration activities often cause conflicts with interested countries. Taking the Crestone Concession case as an example, we can see how seriously a unilateral act affected the normal relations between the two countries concerned. In May 1992, China signed a contract with the US firm Crestone to explore for oil near the Spratly Islands in an area that Vietnam claimed as its continental shelf. In December 1993 Vietnam demanded that Crestone cancel

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this offshore oil development. In 1994, Crestone joined with a Chinese partner to explore China’s Wan’ Bei-21 (WAB-21 block). While Vietnam protested that the exploration was in Vietnamese waters in their blocks 133, 134, and 135, China offered to split Wan’ Bei production with Vietnam as long as China retained all sovereignty. In August, Vietnamese gunboats forced a Chinese exploration ship to leave an oilfield in a region claimed by the Vietnamese. In April 1996, Vietnam leased exploration blocks to the US firm Conoco, and ruled out cooperation with US oil firms that signed Chinese exploration contracts in disputed waters. Vietnamese blocks 133 and 134 cover half the zone leased to Crestone by China. China protested. In March 1997, Vietnam issued a protest about the Chinese Kantan 3 oil rig drills near Spratly Islands. The drilling was conducted offshore of Da Nang, in an area Vietnam calls Block 113. The block is located 64 nautical miles off Chan May cape in Vietnam, and 71 nautical miles off China’s Hainan Island. The diplomatic protests were followed by the departure of the Chinese rig. In December 1997, Vietnam protested after the exploration ship No. 8 and two supply ships entered the Wan’ Bei exploration block. All three vessels were escorted away by the Vietnamese navy. In September 1998, Vietnam protested after a Chinese report stated that Crestone and China were continuing their survey of the Spratly Islands and the Tu Chinh region (Wan’an Bei in Chinese). This case illustrated how difficult, in practice, it is for a country to carry out unilateral petroleum activity. Conflicts over resources in the South China Sea also occur between other claimants, such as Brunei and Malaysia, on their conflicting EEZ claims. The reason behind is simple: extraction by a single state can deplete the fluid deposit in which other adjacent states are entitled to share.5 Sometimes even a unilateral extraction fully within the area of a state may cause international conflict. The Chunxiao Gas Field Incident illustrates this well. China has conducted gas extraction activities in the Chunxiao Gas Field in the East China Sea, but invited protests from Japan because the gas field is located only five kilometers from the boundary line claimed by Japan. After ten rounds of talks, the two sides reached an agreement in June 2008, which created a joint development zone in the East China Sea adjacent to Japan’s claimed middle line and provides that Japanese enterprises can join in the development of the Chunxiao gas and oil field according to Chinese laws.6

Joint development for the South China Sea The concept of joint development appeared in international law in the 1970s. Joint development is defined as an agreement between two States to develop so as to share jointly in agreed proportions by inter-State cooperation and national measures the offshore oil and gas in a designated zone of the seabed and subsoil of the continental shelf to which both or either of the participating States are entitled in international law.7

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This definition is broad enough to cover all relevant situations in which a joint development is needed and/or required. Generally speaking, the concept of joint development contains several characteristics: (a) it is an arrangement between two countries; (b) it is usually concerned with an overlapping boundary maritime area; (c) it can be used as a provisional arrangement pending the settlement of the boundary delimitation disputes between the countries concerned; (d) it is designed to jointly develop the mineral resources in the disputed area or a defined area shared by two countries. In this sense, joint development is a most feasible mechanism to shelve the dispute so as to pave the way for cooperation pending the settlement of the territorial and/or maritime disputes over a certain sea area due to their overlapping claims. UNCLOS provides a legal basis for joint development in disputed maritime areas pending the settlement of the maritime boundary delimitation. Articles 74 (3) and 83 (3) provide that pending agreement reached between them on the delimitation of the EEZ and continental shelf, the states concerned, in a spirit of understanding and cooperation, are required to “make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement.” This legal norm has been reflected in many existing cases and can apply to the South China Sea. However, UNCLOS leaves other options open to the states concerned about whether they make joint development after the definite maritime boundary delimitation. It is recalled that as early as 1969 the International Court of Justice (ICJ) touched this issue in the North Sea Continental Shelf cases by stating: if . . . the delimitation leaves to the Parties areas that overlap, there are to be divided between them in agreed proportions or failing agreement, equally, unless they decide on a regime of joint jurisdiction, use, or exploitation for the zone of overlap or any part of them.8 Finally, it should be noted that peaceful resolution of international disputes is one of the fundamental principles in international law, as stipulated both in the Charter of the United Nations and UNCLOS. Joint development is one of the options for states to reach a peaceful resolution in the maritime domain. In practice, there are many precedents for such joint development arrangements. The first of this kind was made between Kuwait and Saudi Arabia in 1922, the earliest example of a joint development regime. Based on the 1922 Aqeer Agreement, the two countries were co-tenants in the Neutral Zone, holding shares equally and jointly in condominium and later on they consented to joint development by their concessionaires.9 In summary, there are generally three types of joint development schemes: 1

those where the maritime boundary is already delimited, such as the Bahrain–Saudi Arabia Agreement concerning the Delimitation of the Continental Shelf of February 22, 1958, the France–Spain Convention on the Delimitation of the Continental Shelves of the Two States in the Bay of

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Biscay of January 29, 1974, the Sudan–Saudi Arabia Agreement Relating to the Joint Exploration and Exploitation of the Natural Resources of the Seabed and Subsoil of the Red Sea in a Defined Area of the Two Countries in the Red Sea of May 16, 1974, and the Iceland–Norway Agreement on the Continental Shelf between Iceland and Jan Mayen of October 22, 1981; those devised for the purpose of unitizing hydrocarbon deposits which straddle the boundary line, such as the Norway–United Kingdom Agreement Relating to the Delimitation of the Continental Shelf between the Two Countries of March 10, 1965 and its subsequent agreements for the exploitation of the Frigg Field gas and Statfjord Field and Murchison Field petroleum respectively; those to be worked out with the issue of boundary delimitation shelved or kept unresolved, such as the Japan–Korea Agreement Concerning Joint Development of the Southern Part of the Continental Shelf Adjacent to the Two Countries of January 30, 1974, the Malaysia–Thailand Memorandum of Understanding on the Establishment of a Joint Authority for the Exploitation of Resources of the Seabed in a Defined Area of the Two Countries in the Gulf of Thailand of February 21, 1979, and the Australia–Indonesia Treaty on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia of December 11, 1989.10

The third type is linked to the provisional arrangement stipulations under UNCLOS. It is remarkable that China and North Korea signed an agreement on joint offshore oil development in December 2005.11 It should be noted that this agreement was signed between two governments rather than two state-owned petroleum companies. Some existing joint development arrangements would be suitable as models for the initiation and development of a similar one for the South China Sea. They actually exist all over the world from the North Sea to the Arabic Sea, and from Asia to Latin America.12 In the East Asian region, joint development is also a model of bilateral cooperation between the countries concerned, such as the Japan–South Korea Arrangement in the Sea of Japan and the East China Sea in the 1970s, the Malaysia–Thailand Joint Development Area in the Gulf of Thailand, and the Australia–Indonesia Joint Development Zone for the Timor Gap.13 There are some existing studies on joint development in the South China Sea literature. The British Institute of International and Comparative Law lists the South China Sea as one of the potential areas for joint development.14 In the 1980s there were two workshops organized by the East–West Center, Hawaii, to discuss the possibilities of joint development in the South China Sea. While the majority of the papers presented were within the geological and technical fields, several papers did address joint development from a legal perspective.15 In the 1980 workshop, the panel on “Precedents for Joint Development” contained five papers addressing joint development in the North Sea (by William T. Onorato), in the Persian Gulf (by Fereidun Fesharaki), in the East China Sea (by Choon-ho Park), in the Gulf of Thailand (by Prakong Polahan), and legal aspects (by Masahiro Miyoshi). The panel on “Joint Research, Investigation, and Development” in the

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1983 workshop contains several papers on joint development including, inter alia, “The Malaysian Philosophy of Joint Development” (by Datuk Harun Ariffin), “The Japan–South Korea Agreement on Joint Development of the Continental Shelf ” (by Masahiro Miyoshi), “Reaching Agreement on International Exploitation of Ocean Mineral Resources” (by Willy Østreng) and “Joint Jurisdiction and Development in the Southeast Asian Seas” (by Mark J. Valencia). It is to be noted that the paper presented by Rainer Lagoni at the 1983 workshop was later published separately from the conference proceedings.16 Although the discussions during these two workshops were very preliminary, they provided a pioneer work for possible joint development in the South China Sea. Scholars and governmental officials in the ASEAN countries have also expressed their views on joint development in the South China Sea. Hasjim Djalal, a senior Indonesian diplomat, wrote a paper on the relevance of joint development to the South China Sea.17Another Southeast Asian perspective was reflected in a paper published by two Philippine scholars as they argued that interest in the concept of joint development stems not only from its relevance to the large number of bilateral maritime boundary disputes in the region, but from its possible usefulness in the seemingly intractable multiple claim area of the Spratlys.18 Other proposals relevant to joint development are those concerning the possible resolution to the South China Sea issue, in particular the Spratly Islands. The typical one is put forward by a number of American scholars in a book titled Sharing the Resources of the South China Sea.19 They advocated that “[c]reating a regional multinational resource agency to govern at least part of the Spratly area appears to be the best solution to the present stalemate.”20 Having discussed existing models of multinational cooperation and having provided five scenarios for the allocation option regarding the South China Sea and its resources, the authors proposed to establish a “Spratly Management Authority” in which three allocation options regarding the shares for each claimant are provided: China + Taiwan: 52 percent or 37 percent or 32 percent; Vietnam: 28 percent or 20 percent or 32 percent; Philippines: 11 percent or 28 percent or 32 percent; Malaysia: 8 percent or 14 percent or 4 percent; and Brunei: 1 percent or 1 percent or none.21 The “Authority” has several organs within it: the council, consisting of the claimants, regional non-claimants and global maritime powers; below it there are relevant chambers, secretariat, technical committees and a fiscal committee.22 The intention of such a proposal is very obvious: to internationalize the South China Sea issue. While it is constructive for the resolution of the Spratly dispute, it may not be acceptable to relevant claimants as well as other ASEAN members.

Towards a new model Though difficulties in realizing joint development in the South China Sea exist and it will take a long time to reach such an agreement among the interested

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countries, there are some positive signs that favor a possible joint development in the disputed areas there, as the complicated situation in the South China Sea indicates that joint development may be the only feasible means for regional cooperation for offshore oil and gas development.23 The first significant development regarding the South China Sea is the signing by China and all ASEAN member states of the Declaration on the Conduct of Parties in the South China Sea in December 2002, pledging to explore or undertake cooperative activities in the South China Sea including a. marine environmental protection; b. marine scientific research; c. safety of navigation and communication at sea; d. search and rescue operation; and e. combating transnational crime, including but not limited to trafficking in illicit drugs, piracy and armed robbery at sea, and illegal traffic in arms, pending a comprehensive and durable settlement of the disputes in the South China Sea.24 The modalities, scope and locations, in respect of bilateral and multilateral cooperation, should be agreed upon by the Parties concerned prior to their actual implementation.25 They promise to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force. Second, China’s position on joint development is very favorable. Encouraged or triggered by relevant developments in East Asia, China also put forward the idea of joint development in the disputed sea areas. As early as 1980s, Deng Xiaoping, the former paramount Chinese leader, made the famous statement regarding China’s policy towards disputed areas in China’s adjacent seas by joint development. Deng regarded “joint development” as one of the two most important peaceful means for international dispute resolution.26 Since then, China has been pushing very actively to realize the goal of joint development and has reiterated its proposal on many international occasions, as, for example, in 1990, when Li Peng, former Chinese Prime Minister, during his visit to Malaysia, expressly put forward the joint development proposal as “shelving the disputes and developing jointly” (gezhi zhengyi, gongtong kaifa).27 Similarly, Wu Bangguo, Chairman of the National People’s Congress, during his visit to the Philippines in August 2003, proposed to his Philippine counterpart to jointly develop petroleum in the South China Sea.28 Since then the Chinese government has reiterated this proposal on many occasions when the Spratly issue has been raised and its position has remained unchanged up to date. During the China–ASEAN summit held in Nanning, China in October 2006, China expressed again its position on joint development and called for the discussion of cooperative schemes for the existing agreements concerned and the seeking of effective channels and means for joint development among those who have showed interest in this respect. China’s efforts proved not to be wasted. On November 11, 2003, the CNOOC and the Philippine National Oil Company agreed by a letter of intent to jointly explore for oil and gas in the South China Sea. A joint committee would be set up to help select areas for exploration in the South China Sea. They also agreed

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to a program to “review, assess and evaluate relevant geographical, geophysical and other technical data available to determine the oil and gas potential in the area.”29 As described by the Philippine side, the joint exploration would be conducted in the Northwest Palawan offshore area, “not even close enough to the Spratlys.”30 Third, in addition to the joint development arrangements addressed above, East Asian countries have also concluded bilateral agreements concerning maritime boundary delimitation and on fishery management, which can provide some basis for possible joint development arrangements. Taking China as an example, it has concluded three fishery agreements respectively with Japan (1997), South Korea (2000), and Vietnam (2000) and a maritime boundary agreement with Vietnam (2000). All three fisheries agreements have established joint fishery management zones in the Yellow Sea (with South Korea), the East China Sea (with Japan), and the Gulf of Tonkin (with Vietnam).31 The cooperative experiences accumulated from fishery resource management will no doubt enhance joint cooperation in the management of non-living resources. It is recalled that the initial step for the joint development arrangement between Australia and Indonesia in the Timor Sea was the conclusion of the Memorandum of Understanding for a provisional fisheries surveillance and enforcement in October 1981.32 In this sense, the bilateral fisheries arrangements can become the basis for countries concerned to make joint development arrangements. More significant are agreements concerning maritime boundary delimitation since joint development is usually invoked in state practice as a provisional measure pending the settlement of boundary delimitation. In this sense, the 2000 Agreement on the Maritime Boundary Delimitation in the Gulf of Tonkin between China and Vietnam is notable. In addition to the permanent settlement of the maritime boundary issue in the Gulf of Tonkin, it reflects the idea of joint development of mineral resources in the gulf as it provides that: In case any single geophysical structure of oil and gas or other mineral deposits straddles the demarcation line as provided in Article 2 of this Agreement, the Parties shall, through friendly consultation, reach an agreement on developing the structure or deposit in the most effective way as well as on equal sharing of the profits resulting from the development.33 It indicates that though for the time being there is no imminent prospect of the two sides carrying forward any type of joint development of petroleum resources in the Gulf, the opportunity for cooperation in the future is left open through the boundary agreement. It is recalled that the Sino-Vietnamese boundary negotiations in the 1970s initiated by Vietnam were actually triggered by the prospect for oil and gas in the Gulf when Vietnam intended to grant the exploration rights for some sedimentary blocks in the Gulf to an Italian oil company. In the 1980s Vietnam proposed that the two countries undertake a joint development program in the Gulf of Tonkin.34 With the entry into force of the Agreement from July 1, 2004, a joint development arrangement for non-living resources in the Gulf of

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Tonkin can be made any time whenever the two sides consider it a need based on the above provision. As predicted, the Chinese CNOOC and PetroVietnam signed the Framework Agreement on Oil and Gas Cooperation in the Beibu (Tonkin) Gulf on October 31, 2005 in Hanoi.35 The two sides “agreed to abide by the consensus reached by their leaders and continue consultations on the issues on the South China Sea and study and discuss joint development and cooperation.”36 In the Sino-Vietnamese Joint Communiqué issued in May 2007, the two countries reiterated the importance of oil and gas cooperation in the Gulf of Tonkin based on the 2005 Framework Agreement and of discussing the joint development issue in the sea area beyond the mouth of the Gulf. For the South China Sea, the two sides agreed to maintain the negotiation mechanism and to study and discuss the issue of joint development so as to find out an appropriate model and identify the development area.37 There are also further concerns and considerations in relation to the realization of the joint development idea. First, China’s behavior sometimes worries Southeast Asian countries. Whether or not the smaller claimant countries will have the confidence to negotiate a settlement of the disputes, enter into provisional cooperative arrangements, or feel the need instead to beef up their defense capabilities and unilaterally strengthen their respective positions, depends in large part on what they see as China’s policy and posture towards the issue.38 China’s previous insistence on bilateral talks on the Spratlys issue in fact has blocked the way to seeking any possible joint development on a multilateral basis. However, the recent change of China’s posture from sticking to bilateral talks to accommodating the whole ASEAN region has paved the way to reaching a joint development arrangement in the future. Though with some reluctance, China has realized that regionalization of the Spratlys issue is inevitable and may help break the deadlock in the resolution of the disputes. Second, joint development is mainly used as an interim measure pending the settlement of territorial and/or maritime disputes. Joint development can help stabilize the status quo of the disputed area, and may finally lead to a permanent dispute resolution. Unless such a resolution comes about, the disputes will still happen. But a resolution may, on the other hand, affect from time to time the effective implementation of any joint development arrangement. Third, it is to be noted that all the claimant states surrounding the South China Sea are developing countries with rapid economic growth, which will be accompanied by an increasing demand for energy. It is estimated that oil demand for Asian nations will increase from about 14.5 million barrels per day in 2000 to nearly 29.8 million barrels per day by 2025.39 The demand for energy and increased energy consumption will definitely make the claimants more actively involved in oil and gas exploration and exploitation in the South China Sea. This may cause more conflicts amongst the claimants if any of them conduct unilateral petroleum activities in the disputed maritime area; but on the

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other hand it could create a window of opportunity for joint development when the claimants have realized that the unilateral act becomes a costly, disturbing, and unfeasible option. Fourth, it is clear that joint development between two states in the areas with multiple claims causes problems. It is recalled that when Japan and South Korea signed the joint development agreement for the East China Sea, this invited furious protests from China. The recent move between China and the Philippines regarding possible joint development in the South China Sea met with protests at least from Vietnam. So joint development in the South China Sea launched by only two claimant countries is not a wise option. Indeed, joint development proposals at the bilateral level may not always be welcomed by relevant claimants. It is recalled that China once proposed a joint development with Vietnam for the Vanguard Bank where part of the area was a concession given to Crestone by China, but Vietnam rejected China’s proposal on the ground that the area is close to Vietnamese coastlines and within the limits of its continental shelf. A new model for potential joint development in the South China Sea can thus be designed, which comprises China including Taiwan as one party and ASEAN including all ten member states as the other party. This model is based on the existing formula of the Declaration on the Conduct of the Parties in the South China Sea, which has been signed by China and ASEAN members. If this can stand, then a bilateral but with multiple-parties cooperation between China and ASEAN in the South China Sea can be formulated. Of course, some scholars have already expressed their concerns about whether the interests and rights of China including Taiwan could be guaranteed in any future joint development scheme, as Hurng-yu Chen, a Taiwanese scholar, warned: [w]hat Chinese should remember before they enter into any joint development agreement is that Taipei and Peking occupy far fewer islands than either Vietnam or the Philippines, and joint development with these countries might well prejudice Chinese rights and interests.40 However, with a cooperative framework between China and ASEAN, the interests of all the parties concerned may well be assured. The bilateral scheme of joint development is foreseeable and backed up by a number of favorable factors. On the Chinese side, both mainland China and Taiwan have taken similar political and legal positions on the South China Sea issue based on the same historical evidence and reasons on most occasions and have never launched any challenge against each other regarding territorial sovereignty over the South China Sea islands. The presence of mainland China (PRC) in the Spratly Islands is largely due to Taiwan’s presence there, having occupied the largest island Taiping within the Spratlys. On the other hand, the cooperation between the two sides across the Taiwan Strait regarding petroleum exploration and exploitation has already begun. As early as July 1996 the Taiwan Chinese Petroleum Corporation and the mainland China Offshore Oil Corporation signed an agreement on the exploration of the Tainan Basin and Zhaoshan sunken area, which was finally approved by both

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sides in April 1998.41 As to the utilization of the mineral resources in the South China Sea, the two sides across the Taiwan Strait can develop some form of cooperation and consultation based on their previous joint development experiences in the Taiwan Strait as well as in the sea areas around the Pratas Islands. On the ASEAN side, a concerted and unified policy towards the South China Sea has been formed since 1992 when ASEAN member states issued the Declaration on the South China Sea, which expressed their resolve to explore the possibility of cooperation in the South China Sea and to establish a code of international conduct there.42 In 1995, the ASEAN foreign ministers reiterated the letter and spirit of the 1992 Declaration.43 ASEAN as a whole signed the 2002 Declaration with China. Following this trend, joint development such as between China and ASEAN could be at least one of the feasible options for the South China Sea claimants to consider seriously. Fifth, even if there is a chance of joint development in the South China Sea, difficulties still remain to be tackled. How to create such a mechanism and how to reflect the representation of each claimant in the joint management authority remain problems at the technical level. Questions such as whether the authority should include an equal number of representatives from each claimant state, or whether the allocation of rights and profits should be based on the number of islands each nation occupies, or whether they should be divided equally have been already posed in the South China Sea literature. It is pointed out that the “process of identifying the common interests of the claimant states is an essential prerequisite to the consideration of JDZ (joint development zone) proposals.”44

Final remarks It is predicted that some kind of joint development, no matter in which form, can be arranged for the disputed area in the South China Sea provided that all the interested parties have such an intention and good will so that they can exert the necessary efforts to reach agreement. The existing state practices in East Asia concerning joint development, in particular the tripartite one in the Gulf of Thailand, are good examples to show that joint development is not totally alien in East Asia. While there are a number of difficulties and issues, the window of opportunity always remains. Based on the recently signed Declaration between China and ASEAN countries, the window is now even wider. Once a form of joint development has been reached amongst countries concerned, long-term peace and security in the South China Sea can be definitely guaranteed, which may lead to the final settlement of the territorial and maritime disputes in the area. Any positive achievements for cooperative development in the South China Sea will be conducive to the settlement of maritime disputes in other areas between China and its neighbors. As is well known, China is in dispute with Japan on the maritime delimitation in the East China Sea as well as on oil and gas exploration and development in that area. Though both countries have pledged to solve their disputes in a peaceful manner by using joint development

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as an interim measure prior to the dispute settlement, it is perceived that any concrete arrangement for joint development will take a long time.45 On the other hand, we need to take a cautious view on the possibility of the actual realization of the proposed new model for joint development as obstacles exist and are not easily removed. On Tuesday April 10, 2007 a Chinese Foreign Ministry spokesman expressed China’s concern with Vietnam’s recent agreement with BP to build a gas pipeline in the South China Sea by emphasizing that “Vietnam’s new actions infringing on China’s sovereignty, sovereign power and administrative rights in the Nansha Islands (in the South China Sea) go against the important consensus reached by leaders of the two countries on this maritime issue.”46 It seems that with the continuing growth of its economy, and ever-increasing demand for energy, China has further sped up and intensified its exploration for and exploitation of oil and gas in the South China Sea. Oil companies are encouraged to boost their offshore production. As an official from the Ministry of Land and Resources expressed recently, Chinese firms “should invest more in blocks in the northern part of the South China Sea.”47 China launched the project on the South China Sea deep sea oil and gas exploration and development in late March 2007 as one of its eleventh Five-Year 863 Plans. The main focus for the first stage is the northern part of the South China Sea.48 This may not affect the dispute areas in the South China Sea, but definitely triggers a new round of scrambling for oil and gas by adjacent countries.

Notes 1 For details of this line and its legal implications, see Zou Keyuan, “The Chinese Traditional Maritime Boundary Line in the South China Sea and Its Legal Consequences for the Resolution of the Dispute over the Spratly Islands,” International Journal of Marine and Coastal Law 14, 1 (1999), pp. 27–55. 2 See “South China Sea Region,” Country Analysis Briefs, September 2003, available at www.eia.doe.gov/emeu/cabs/schina.html (accessed October 4, 2004). 3 Ibid. 4 Wu Shicun and Hong Nong, “The Energy Security of China and Oil and Gas Exploitation in the South China Sea,” in Myron H. Nordquist, John Norton Moore, and Kuen-chen Fu (eds), Recent Developments in the Law of the Sea and China (Leiden: Martinus Nijhoff, 2006), p. 148. 5 Masahiro Miyoshi, The Joint Development of Offshore Oil and Gas in Relation to Maritime Boundary Delimitation, Maritime Briefing 2, 5 (Durham: International Boundaries Research Unit, 1999), p. 5. 6 For the full agreement, see www.chinadaily.com.cn/china/2008-06/18/content_ 6774860.htm (accessed June 19, 2008). 7 British Institute of International and Comparative Law, Joint Development of Offshore Oil and Gas: A Model Agreement for States for Joint Development with Explanatory Commentary (London: British Institute of International and Comparative Law, 1989), p. 45. 8 North Sea Continental Shelf Cases, Judgement of February 20, 1969, ICJ Report, 1969, p. 3. 9 See Ibrahim F.I. Shihata and William T. Onorato, “Joint Development of International Petroleum Resources in Undefined and Disputed Areas,” in G.H. Blake,

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12 13 14 15 16 17 18

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M.A. Pratt, and C.H. Schofield (eds), Boundaries and Energy: Problems and Prospects (London: Kluwer Law International, 1998), pp. 436–437. Masahiro Miyoshi, “Is Joint Development Possible in the South China Sea?” in Mochtar Kusuma-Atmadja, Thomas A. Mensah, and Bernard H. Oxman (eds), Sustainable Development and Preservation of the Oceans: The Challenges of UNCLOS and Agenda 21 (Honolulu: The Law of the Sea Institute, University of Hawaii, 1997), pp. 613–614. “China and North Korea signed the Agreement on Offshore Oil Joint Development,” December 24, 2005, available at http://news.sina.com.cn/c/2005–12–24/ 19057808392s. shtml (accessed February 20, 2006). It is unfortunate that the agreement is not yet released to the public. For details of some existing cases, see Miyoshi (1999), note 5 above, pp. 7–41. For details, see Shihata and Onorato (1998), note 9 above, pp. 438–441. See British Institute of International and Comparative Law (1989), note 7 above, p. 160. The two conference proceedings were later published in Energy 6, 11 (1981) and 10, 3/4 (1985) as special issues. Rainer Lagoni, “Interim Measures Pending Maritime Delimitation Agreement,” American Journal of International Law 78, 2 (1984), pp. 345–368. Hasjim Djalal, “The Relevance of the Concept of Joint Development to Maritime Disputes in the South China Sea,” Indonesian Quarterly 27, 3 (1999), pp. 178–186. Aileen S.P. Baviera and Jay L. Batongbacal, “When Will Conditions Be Ripe? Prospects for Joint Development in the South China Sea,” Chronicle 4, 1/2 (1999), available at www.up.edu.ph/cids/chronicle/articles/chronv4n1and2/infocus08baviera_pg3.html (accessed November 1, 2004). Mark J. Valencia, Jon M. Van Dyke, and Noel A. Ludwig, Sharing the Resources of the South China Sea (The Hague: Martinus Nijhoff Publishers, 1997). Ibid., p. 1. Ibid., pp. 211, 220–221. Ibid., p. 207. In a document released in 2002 by the Philippines military, the Philippines revealed that it could develop oil deposits in the Kalayaan Island group because “no sensible foreign investor would come in because the government cannot guarantee a climate of security to underwrite their investments.” See “China Accused over Disputed Spratly Islands,” Energy Compass, July 18, 2002, available at http://80-proquest.umi.com.libproxy1. nus.edu.sg (accessed February 24, 2004). The text of the Declaration on the Conduct of Parties in the South China Sea is available at www.aseansec.org/13163.htm (accessed July 2, 2003). Ibid. The other is “one country, two systems.” See Selected Works of Deng Xiaoping, Vol. 3 (Beijing: Foreign Languages Press, 1994), p. 87. See People’s Daily (in Chinese), December 14, 1990. “Wu Bangguo Proposes a Multiple Cooperation for Oil in the Spratly Islands,” Lianhe Zaobao (Singapore), September 1, 2003. “Chinese, Philippine Firms Join Forces to Look for Oil in South China Sea,” Agence France-Presse, November 13, 2003. “RP–China oil exploration,” BusinessWorld, Manila, November 12, 2003. For relevant details, see Zou Keyuan, “Sino-Vietnamese Fishery Agreement for the Gulf of Tonkin,” International Journal of Marine and Coastal Law 17, 1 (2002), pp. 127–148; and “Sino-Japanese Joint Fishery Management in the East China Sea,” Marine Policy 27, 2 (2003), pp. 125–142. The text is reprinted in Jonathan I. Charney and Lewis M. Alexander (eds), International Maritime Boundaries (Dordrecht: Martinus Nijhoff Publishers, 1993), Vol. 1, pp. 1238–1239.

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33 Article 7 of the 2000 Boundary Agreement. An unofficial English version of this Agreement is attached to Zou Keyuan, “Sino-Vietnamese Agreement on the Maritime Boundary Delimitation in the Gulf of Tonkin,” Ocean Development and International Law 36 (2005), pp. 22–24. 34 See Epsey Cooke Farrell, The Socialist Republic of Vietnam and the Law of the Sea: An Analysis of Vietnamese Behaviour within the Emerging International Oceans Regime (The Hague: Martinus Nijhoff, 1998), p. 251. 35 “CNOOC and PetroVietnam Signed the Framework Agreement on Oil and Gas Cooperation in the Beibu Gulf,” November 1, 2005, available at www.gov.cn/jrzg/ 2005–11/01/content_88855.htm (accessed May 11, 2007). 36 “China, Vietnam accelerates oil project,” China Daily, August 25, 2006, p. 1. 37 See “Sino-Vietnamese Joint Communiqué,” People’s Daily (in Chinese), May 19, 2007, p. 1. 38 Baviera and Batongbacal, 1999, note 18 above. 39 See “South China Sea Region,” Country Analysis Briefs, September 2003, available at www.eia.doe.gov/emeu/cabs/schina.html (accessed October 4, 2004). 40 Hurng-yu Chen, “The Prospects for Joint Development in the South China Sea,” Issues and Studies 27, 12 (1991), p. 125. 41 See People’s Daily (in Chinese), June 1, 1998. 42 “ASEAN Declaration on the South China Sea,” Manila, Philippines, July 22, 1992, available at www.aseansec.org/5233.htm (accessed October 27, 2004). 43 “Recent Developments in the South China Sea,” March 18, 1995, available at www.aseansec.org/5232.htm (accessed October 27, 2004). 44 Baviera and Batongbacal, “When Will Conditions Be Ripe?” See note 18 above. 45 During China’s Premier Wen Jiabao’s visit to Japan in April 2007, China and Japan reached the consensus on the issue of the East China Sea: (1) adherence to making the East China Sea a sea of peace, cooperation and friendship; (2) carrying out joint development, as an interim arrangement before the settlement of maritime delimitation, based on the principle of reciprocity, without prejudice to the positions of either side on issues relating to the Law of the Sea; (3) carrying out higher-level consultations when necessary; (4) carrying out joint development in a bigger sea area acceptable to both sides; (5) speeding the consultation process, trying to report to the state leaders on the concrete scheme of joint development this fall. See “Sino-Japan Joint Communiqué” on April 11, 2007, in People’s Daily (in Chinese), April 12, 2007, p. 3. 46 “Vietnam Warned Against Sea Pipeline,” China Daily, April 11, 2007, available at www.chinadaily.com.cn/china/2007–04/11/content_847749.htm (accessed April 11, 2007). 47 Wang Yu, “Oil Firms Told To Boost Offshore Production,” China Daily, April 3, 2007. 48 “Our Country Launched the Project on the South China Sea Deep Sea Oil and Gas Exploration and Development,” People’s Daily (in Chinese), April 2, 2007, p. 2.

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Part III

Politics and security in the South China Sea

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6

Southeast Asia and the South China Sea dispute

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Christopher Chung

Introduction On 4 November 2002, the foreign ministers of the Association of Southeast Asian Nations (ASEAN) and China’s Vice-Minister of Foreign Affairs signed the Declaration on the Conduct of Parties in the South China Sea. This appeared to herald a new era in relations between the two sides concerning the South China Sea dispute. Philippines Foreign Minister Blas Ople considered the declaration provided ‘a strong foundation for future negotiations with China and our other ASEAN partners on maritime security and territorial issues’1 while China’s ViceForeign Minister, Wang Yi, argued that it sends ‘a positive signal to the outside world that China and ASEAN have full capability to resolve disputes among themselves, peacefully through dialogue’2 and that it was ‘a symbol that would lead to new relations between ASEAN and China’.3 The declaration was a pragmatic move to put the South China Sea dispute in the background while bringing ASEAN–China economic ties to the fore.4 This was affirmed by the signing on the day after the declaration had been concluded of a Framework Agreement on Comprehensive Economic Co-operation between the Association of South East Asian Nations and the People’s Republic of China, whose goal is the establishment of a free trade area. The numbers tell the story. ASEAN–China trade grew from US$39.5 billion in 2000 to an estimated US$190 billion in 2007 while two-way investment in 2007 totaled just over US$45 billion; the two sides are currently each other’s fourth largest trading partner.5 If established, a Pan-Tonkin Gulf or Pan-South China Sea economic cooperation zone would further energise the relationship.6 On a political level ASEAN and China have also drawn closer over time. Through successful prosecution of its ‘periphery policy’ in support of its economic modernisation and national security goals, by the early 1990s China had either inaugurated or resumed diplomatic relations with all the ASEAN member states.7 This provided a foundation for building confidence and trust, providing a counterpoint to the ‘China threat’ thesis.8 China has been a full ASEAN dialogue partner since July 1996 and annual ASEAN–China summits have been held since 1997, the year the two sides signed a joint statement to guide their relations. In 2003 China signed ASEAN’s Treaty of Amity and Cooperation which commits signatories

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to resolve their disputes by peaceful means. This is particularly relevant in relation to interactions with the four Southeast Asian countries directly involved in the South China Sea dispute: Brunei, Malaysia, the Philippines and Vietnam.9 Indonesia’s co-sponsorship with Canada of a series of meetings under the Informal Workshop on Managing Potential Conflict in the South China Sea has also been helpful, enabling the claimants to better understand the opportunities for, and benefits of, functional cooperation.10 Set against this backdrop, this chapter examines the perspectives of countries in Southeast Asia towards the South China Sea dispute. It argues that these countries have at different times and on different issues stood together and apart, with neither stance being mutually exclusive. At times, ASEAN members have projected a single voice on developments in the South China Sea. At other times, this collectiveness has been fragmented by the actions of particular members or inaction by the body as a whole. There have also been occasions when Southeast Asian countries have exhibited concurrently unity and discord, that is, standing together and apart on the same issue.

Stances towards the dispute Standing together Between 1992 and 1998 China enacted a comprehensive maritime jurisdictional regime, elements of which catalysed ASEAN states to stand together in protesting their effect. In 1992 China promulgated its Law on the Territorial Sea and the Contiguous Zone of the People’s Republic of China. The law’s geographic scope includes Taiwan, the Diaoyutai/Senkaku Islands, the Penghu Islands, the Dongsha (Pratas) Islands, the Paracel Islands and the Spratly Islands.11 Its publication sparked protests not only from Japan in relation to the Senkakus but also from a number of South China Sea claimants. Malaysia sought formal clarification of the law and its implications while Vietnam sent secret protest notes to Beijing at both the party and government-to-government levels.12 The Philippines and Indonesia also lodged diplomatic protests. On a regional level, ASEAN foreign ministers expressed their strong concern by adopting the Declaration on the South China Sea at their 22 July 1992 meeting in Manila (the so-called Manila Declaration).13 It comprises five elements. First, it emphasises the need to resolve all sovereignty and jurisdictional issues relating to the South China Sea by peaceful means. Second, all parties are to exercise restraint to create a ‘positive climate’ for the eventual resolution of all disputes. Third, without prejudice to the sovereignty and jurisdiction issues, the parties resolve to explore possible cooperation in the South China Sea concerning the safety of maritime navigation and communication, protection against marine pollution, coordination of search and rescue operations, and combating piracy, armed robbery and illicit trafficking in drugs. Fourth, the parties are to apply the principles of ASEAN’s Treaty of Amity and Cooperation as the basis for establishing a code of conduct in the South China Sea. Finally, all parties are invited to

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subscribe to the declaration. Signed by the foreign ministers of Brunei, Indonesia, Malaysia, the Philippines, Singapore and Thailand, the Manila Declaration was the first at an intergovernmental level to promote the establishment of a ‘code of conduct’ in the South China Sea. Vietnam endorsed the declaration even though at that time it was not a member of ASEAN.14 China did not associate itself with the declaration. Nonetheless, it was indirectly associated with it through the Non-Aligned Movement’s endorsement of the document at its summit meeting in Jakarta in September 1992.15 As one commentator notes: it was obvious that the Chinese did not agree with everything in the Declaration. They considered that parts of the South China Sea, notably the Pratas and Paracels, were not really related to ASEAN affairs. They were also concerned that the formal Declaration might be a precursor to discussions on jurisdiction and sovereignty issues, a move that the Chinese would refuse to entertain as this would compromise their claim over the whole Spratly area.16 ASEAN foreign ministers meeting in July 1993 urged ‘all parties directly concerned to subscribe to the principles’ of the declaration,17 a veiled reference to China. Beijing ignored the entreaty. On 15 May 1996 China announced its territorial sea baselines. They included part of its territorial sea near the mainland and also adjacent to the Xisha (Paracel) Islands.18 In the Paracel Islands 28 base points are listed,19 which have the effect of enclosing the area. The remaining baselines of the territorial sea were to be announced ‘at another time’.20 Several Southeast Asian countries expressed concern about China’s baseline declaration. Malaysian foreign minister Abdullah Ahmad Badawi remarked at the inaugural ASEAN–China Post-Ministerial Conference in July 1996 that ‘China’s declaration of 15th May 1996 on its baselines have raised questions in ASEAN. We hope to receive some clarification from China on this declaration and what it means.’21 Qian Qichen, China’s foreign minister and head of delegation to the meeting, offered a vague explanation: ‘To develop long term, good neighborly and friendly relations with ASEAN is an important component of China’s foreign policy’ and ‘both China and ASEAN attach great importance to ensuring a peaceful and stable environment in our region and are making concrete efforts for its maintenance and enlargement.’22 The Philippines, Singapore and Vietnam also voiced concerns about China’s baseline declaration. To Manila, the enclosure of the Paracels disturbed the stability of the area, reversed the spirit of cooperation emerging in the South China Sea and was unhelpful to the resolution of the disputes there.23 Singapore’s concern related to the Paracels baseline claim contravening the provisions of the United Nations Convention on the Law of the Sea, 1982 (UNCLOS), and the implications for freedom of navigation if the same approach was used in the Spratlys.24 In a note verbale transmitted by its Permanent Mission to the United

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Nations, Vietnam stated that China’s establishment of territorial baselines in the Paracels ‘constitutes a serious violation of the Vietnamese sovereignty over the archipelago’ and declared the action null and void.25 Moreover, Hanoi noted that contrary to the UNCLOS, China had given the Spratlys the status of an archipelago and illegally annexed a substantial area of sea as internal waters.26 Further difficulties arose following China’s announcement of its Exclusive Economic Zone and Continental Shelf Act in June 1998.27 Article 14 states that its provisions do not affect China’s ‘historical rights’. Some commentators take this term to refer to Beijing’s claim in the South China Sea. In particular, the geographic features and possibly waters within the U-shaped boundary line appearing on Chinese maps since 1947.28 The term’s precise meaning in the act remains unclear. Vietnam submitted a note verbale to the United Nations on 6 August 1998 protesting the act on two counts. First, it reiterated its position that the establishment of territorial sea baselines around the Paracel Islands violates Vietnam’s sovereignty over the area and is inconsistent with international law. Second, it refused to recognise so-called ‘historical interests’ not consistent with international law and which violate Vietnam’s sovereignty, sovereign rights and legitimate interests in its maritime zones and continental shelf in the South China Sea.29 The Philippines also protested the act. Its objections related not only to infringement of Manila’s exclusive economic zone (EEZ) within its claimed area in the Kalayaan Island Group but also the absence of any boundary delimiting China’s EEZ. In addition, Manila considered that Article 14 of the act concerning historical rights was an attempt by China to ‘surreptitiously underscore’ its claim in the Spratlys.30 The second example of standing together concerns China’s 1995 move on Mischief Reef. In February that year the Philippines made public its discovery of structures built by China on the reef.31 A rock outcrop located 135 nautical miles (nm) west of Palawan, the reef lies within the EEZ of, and on the continental shelf claimed by, the Philippines.32 China, Taiwan and Vietnam also claim the feature. China’s action signaled for the first time a move against an ASEAN member state33 and a departure from its previous pattern of targeting features claimed by Vietnam in the Paracels and Spratlys. Beijing defended the construction by claiming the structures were only shelters for fishermen,34 an assertion rejected by Manila. Because of the poor state of the Philippines’ airforce and navy and its weak economic situation there was little it could do to exert pressure on China to dismantle the structures. Fear of a military confrontation meant Manila made no attempt to evict China from Mischief Reef itself.35 Diplomacy was the only practical option available to the Philippines. This focused on a three-pronged approach: bilateral dialogue with China, including a ‘code of conduct’ concluded in August 1995, regional outreach within the context of ASEAN and the ASEAN Regional Forum (ARF) and extra-regionally through representations to the US and Japan, the Asia–Europe Meeting, the Interparliamentary Union Conference and to UN Secretary-General Kofi Annan.36 Manila successfully gained ASEAN’s support to denounce China’s actions in Mischief Reef. On 18 March 1995 ASEAN foreign ministers issued a statement

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expressing their concern about developments in the South China Sea and urged all concerned to adhere to the letter and spirit of the 1992 Manila Declaration.37 The ministers called on all parties to refrain from actions that destablised the region and further threatened the peace and security of the South China Sea. They also called for ‘the early resolution of the problems caused by recent developments in Mischief Reef’ and urged countries in the region to undertake cooperative activities to build trust, confidence and stability in the area.38 While China was unnamed in the statement, it was clear to whom it was directed. ASEAN’s united stance was displayed again at the inaugural ASEAN–China meeting in Hangzhou in April 1995. The Philippines was especially appreciative of this gesture, and the clear message to China was that ASEAN was speaking as one on the issue.39 In August 1995 the Philippines pushed to have the dispute discussed at the ASEAN Regional Forum’s (ARF) second meeting in Brunei. Not wishing to antagonise China during the fledging group’s start-up phase, there was little support for the Philippines’ proposal for a code of conduct in the South China Sea.40 Prior to the meeting, China’s Foreign Minister Qian Qichen offered several positive remarks: China was willing to discuss the South China Sea dispute in multilateral forums, to resolve territorial disputes according to the UNCLOS, to shelve all development and to publish a paper on its national defence policy.41 One commentator suggests that Qian’s remarks were motivated by a desire not to alienate ASEAN at a time of worsening Sino-US relations and to respond to the membership’s united stance at the April 1995 meeting in Hangzhou.42 Singapore’s reaction to China’s occupation of Mischief Reef is interesting. A strong supporter of closer engagement with China, Prime Minister Goh Chok Tong nevertheless raised Singapore’s concern about Mischief Reef during a meeting with Premier Li Peng in Beijing in May 1995.43 Goh reportedly indicated to Li that China’s actions had negative implications for regional stability and freedom of navigation. This intervention ‘sent a clear signal to the Chinese leadership that Singapore was at one with its ASEAN partners over the issue and that its relations with the Association took precedence over its ties with China’.44 Standing apart In contrast to periods of solidarity on the South China Sea disputes, fragmentation among ASEAN’s members is also apparent. Two examples are considered here: China’s 1998 reinforcement of its presence on Mischief Reef and Malaysia’s 1999 move on Investigator Shoal and Erica Reef. In October 1998 the Philippines discovered that China was reinforcing its presence on Mischief Reef by building frames for concrete foundations beside two existing structures.45 A three-storey building and a helicopter landing pad were subsequently constructed, expanding the size, functionality and capabilities of the reef’s structures. Construction was completed in January 1999. Although Manila protested this action as a violation of the 1995 bilateral code of conduct, Beijing denied this was the case and insisted the work was undertaken to repair the existing fishermen’s shelters. In its defence China stated it had previously

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informed the Philippines Embassy in Beijing of the impending work.46 China also sought to portray the 1998 fortification as work authorised by local authorities and not the central government.47 To Philippines Defense Secretary Orlando Mercado the new development was ‘the farthest projection of China’s power, and a dagger at our underbelly’.48 ASEAN’s interest in the South China Sea dispute was lukewarm by the time of the second Mischief Reef episode. Unlike in 1995, ASEAN issued only a mild rebuke of China’s latest action. The Hanoi Declaration resulting from the Sixth ASEAN Summit held on 15–16 December 1998 contained an oblique reference to the issue, calling ‘on all parties concerned to exercise restraint and to refrain from taking actions that are inimical to the peace, security and stability of Southeast Asia and the Asia Pacific region’.49 An explanation for this muted response is the challenges facing ASEAN at the time: the integration of Cambodia, Laos, Myanmar and Vietnam into the membership, and the Asian financial crisis. As the organisation’s then SecretaryGeneral, Rodolfo Severino, noted, ‘[w]e have bigger problems to deal with, particularly the economy’.50 China’s decision not to devalue the yuan, thereby averting a spiral of competitive devaluations among regional economies, also acted to dampen criticism of its Mischief Reef action. Reflecting its sense of isolation, in an address to the Rotary Club of Manila in April 1999 Philippines Undersecretary of Foreign Affairs Lauro Baja noted: On Mischief Reef, we were left alone. The other countries said that while they sympathize and understand our situation, the issue is only a [bilateral] Philippines–China problem. Even some of our ASEAN friends are either mute, timid, or cannot go beyond espousal of general principles of peaceful settlement of disputes and polite words of understanding given in the corridors of meeting rooms. Understandably, they may have their own agenda to pursue.51 The Philippines’ position of being left an ‘orphan’ by ASEAN52 was in stark contrast to the solidarity that the membership had displayed in relation to the first Mischief Reef episode. As one Philippines commentator notes, ‘the Chinese presence on Mischief Reef serves as a continuing reminder and warning to Manila not to relax its suspicions about and vigilance against further Chinese encroachments’.53 The second example of fragmentation among ASEAN’s members concerns the reaction to Malaysia’s occupation of, and construction on, Investigator Shoal and Erica Reef in mid-1999. This was the first time that a member of ASEAN had moved against the claims of another in the South China Sea, in this case the Philippines and Vietnam. China and Taiwan also claim the feature. Malaysia’s occupation of the features was a continuation of its pre-emptive approach begun in the early 1980s with the seizure of Swallow Reef. Investigator Shoal lies about 460 kilometres from Palawan and approximately 250 kilometres from Kota Kinabalu. It is only 80 kilometres from Malaysia’s principal Spratlys

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outpost of Swallow Reef.54 Erica Reef is west of Investigator Shoal and about 525 kilometres from the Philippine city of Puerto Princesa. In March 1998 the Philippines military observed a basic platform-like structure on Investigator Shoal and a frigate moored close by.55 Manila did not lodge a formal protest after receiving an assurance from Malaysia’s Foreign Minister Abdullah Badawi that Kuala Lumpur had not authorised the action. In June 1999 a two-storey concrete building, helipad, pier and radar antenna replaced the basic structure. China, Taiwan and Vietnam protested Malaysia’s action; Kuala Lumpur ignored them. The Philippines felt deceived by Badawi’s assurance of a year earlier. On 24 June Manila lodged a diplomatic protest stating that not only was Investigator Shoal part of Philippine territory and within the country’s EEZ but also Kuala Lumpur had gone against the 1992 Manila Declaration and subsequent ASEAN agreements aimed at defusing tension in the South China Sea.56 Accordingly, Malaysia was requested to reconsider its action in the spirit of ASEAN solidarity and cooperation and in the interests of regional peace and stability.57 Defending Malaysia’s fait accompli, Prime Minister Mahathir stated on 27 June that ‘[w]e have built on our zone and not outside of the zone, for climatic research and marine-life studies, and also to prevent ship collisions’.58 His foreign minister, Syed Hamid Albar, concurred: ‘Our message is very clear. We are doing nothing more than be present in the area that we consider as ours. So if the Philippines protests against the fact that we are in our own continental shelf, we’ll explain.’59 Almost tit-for-tat, President Joseph Estrada announced that the Philippines would also build on features it claimed. As he put it, ‘If they have been building structures, then we may as well put up our own structures. So we will have a similar solution to this. We will not allow ourselves to be taken advantage of.’60 Estrada’s remark belied division between his foreign affairs and defense ministers about how to respond to Malaysia’s action. While Estrada supported Secretary of Defense Orlando Mercado’s proposal that Manila build structures on its claimed features, Foreign Affairs Secretary Domingo Siazon opposed this.61 The latter argued that such a move would complicate an already sensitive issue and it would erode the Philippines’ moral high ground on the Spratlys dispute in the international arena.62 In the end Siazon’s view prevailed. Mercado and Siazon had earlier reached differing conclusions about whether China and Malaysia had colluded in the ‘construction boom’ in the Spratlys.63 While Mercado doubted the possibility, Siazon suggested construction on Investigator Shoal began when Malaysian Foreign Minister Syed Hamid Albar visited Beijing in May 1998.64 Other foreign affairs officials observed that it was impossible China was unaware of or had not monitored Malaysia’s action.65 In addition, there was a striking contrast between Beijing’s mild protest to Kuala Lumpur and moderate pronouncements of China’s indisputable sovereignty over the disputed area and its strong comments regarding Manila’s claim to Mischief Reef and Scarborough Shoal. Manila’s concern deepened in July 1999 upon discovery that Kuala Lumpur had occupied and built a two-storey building and helipad on another contested

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feature, Erica Reef. The Philippines lodged a diplomatic protest on 20 August.66 Philippines Senate President Blas Ople called for a stronger protest by the Department of Foreign Affairs compared to that lodged against the occupation of Investigator Shoal, including a demand that the structures be dismantled and Malaysia leave the reef.67 Undermining the force of Ople’s remarks, however, was Philippines Defense Secretary Mercado’s admission that Erica Reef lay outside the country’s claimed EEZ and within Malaysia’s.68 Mercado offered no evidence to support this conclusion. The Malaysian Embassy in Manila robustly defended the occupation of both Investigator Shoal and Erica Reef, referring to their location on the 1979 map of Malaysia’s territorial waters and continental shelf boundaries (the Peta Baru), as well as historic and legal factors upholding a sovereignty claim. In addition, the Embassy asserted that no features within Malaysia’s maritime boundaries are part of the Spratlys.69 Manila rejected these assertions and threatened to take the matter to the United Nations.70 Seeking to calm the situation, Malaysian Foreign Minister Syed Hamid Albar stated: We will not take action that will raise tension nor do we have any intention to use the islands for [the] purpose of aggression. The Philippines can take whatever action they want. Our position is clear. [The reef and shoal] are within Malaysian territory. We are there for peaceful purposes.71 Malaysia opposed any discussion of its occupation of Investigator Shoal and Erica Reef at the 1999 meeting of ASEAN foreign ministers. Malaysian Foreign Minister Syed Hamid Albar’s preference was for ‘bilateral issues to be discussed bilaterally’.72 In contrast, Philippines Foreign Secretary Siazon stated ‘the Spratly issue, of course, will always be discussed here [the ASEAN foreign minister’s meeting]. It’s a main area of concern for many countries.’73 Thailand’s foreign minister Surin Pitsuwan concurred, suggesting that countries other than the claimants had reason to be concerned because any conflict in the South China Sea had implications for the security of international sea lanes. In his view: [t]his is the problem for the region as a whole. Opposing claimants may claim that it is an internal issue to be resolved and addressed between us or among us, but the implications of such tension and conflict would be adverse to all of us.74 Several cues for Malaysia’s move on the features can be suggested. First, China’s actions in Mischief Reef demonstrated the benefits of pro-activity. When a contested feature has been seized aand permanent structures built, the reality of possession makes dislodgement by diplomatic, legal, military or moral pressure a difficult task. Prime Minister Mahathir appeared to recognise the value of pre-emption when he stated that Malaysia built on Investigator Shoal as it feared other countries would resort to such action as had occurred on several other reefs in the past.75

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A second cue was the development of a code of conduct in the South China Sea. As detailed in the next section, in May 1999 the Philippines and Vietnam began to prepare a draft of the code. Pre-emption by Kuala Lumpur in occupying Investigator Shoal and Erica Reef before detailed negotiation of the code commenced would protect Malaysia’s gains through a fait accompli. As China had shown in Mischief Reef, once a feature was in the possession of a claimant a return to the status quo ante was extremely difficult. After Malaysia occupied the two features it kept a low profile. This was understandable given that Kuala Lumpur had breached its commitment to the 1992 Declaration on the South China Sea, in particular, Paragraph 2 of the Declaration in which the parties committed themselves to exercise restraint to promote a positive climate for resolving all disputes. Standing together and apart The shift from a code to a declaration of conduct in the South China Sea provides an example of standing together and apart by certain Southeast Asian countries, highlighting that the two stances can coexist rather than being mutually exclusive. The Philippines had long championed a code of conduct in the South China Sea and first raised the idea of developing such a code at the ARF’s second meeting in August 1995. Philippines Secretary of Foreign Affairs Siazon suggested that, as an interim measure to settling the sovereignty issue, the countries involved in the South China Sea dispute should seek to develop a code as an informal arrangement to guide their behaviour in the area.76 As noted earlier, the proposal did not gain traction in the meeting. Meeting in Jakarta in July 1996, ASEAN foreign ministers ‘endorsed the idea of concluding a regional code of conduct in the South China Sea which will lay the foundation for lone [sic] term stability in the area and foster understanding among claimant countries’.77 Subsequently at the Sixth ASEAN Summit in Hanoi on 15–16 December 1998, the Hanoi Plan of Action was adopted. Part VII of the Plan of Action urged members to ‘[p]romote efforts to establish a regional code of conduct in the South China Sea among the parties directly concerned’.78 At the Fifth ASEAN–China Senior Officials Meeting in Kunming in April 1999 the Philippines again raised the idea of a regional code of conduct but was dismayed by the lack of support from ASEAN.79 China reacted coolly to the idea of a regional code of conduct, signalling its preference to use the 1997 Joint Statement between the two sides as the reference document. In May 1999 ASEAN vice-foreign ministers tasked the Philippines and Vietnam to prepare a draft code of conduct. Manila took the lead and prepared a first draft. This was presented to ASEAN foreign ministers and the ARF at their meetings in July 1999, with both bodies declining to endorse it. Tension within ASEAN was already beginning to emerge. Both Malaysia and Vietnam were concerned about how the Philippines was managing the process of formulating the draft code. To Malaysian officials it appeared that

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the Philippines was intent on fast-tracking the approvals process by seeking to submit the draft code to ASEAN foreign ministers, and subsequently to political leaders, without any prior discussion at the level of senior officials.80 Moreover, in the view of Malaysia’s Foreign Minister Syed Hamid Albar, the draft code was overly legalistic rather than being a political document with guidelines. Vietnam was also unhappy with the perceived intention of the Philippines to accelerate the process. Reportedly, this was why Hanoi declined to be identified as the co-author of the draft code.81 In September 1999 the Philippines submitted a second draft of the code. Again, this did not gain support. China in turn presented its own draft code in October 1999, which met with the same fate. Then in November the Philippines presented another draft ahead of the Third Informal Summit of the ASEAN Heads of State/Government in Manila. Both Malaysia and Vietnam reiterated their concerns about the geographic scope of the code but eventually agreed to the text on 24 November, removing the last obstacle to ASEAN consensus. The code was to apply to ‘the disputed areas of the Spratlys and the Paracels in the South China Sea’, referred to as ‘the Disputed Area’. China declined to endorse the text but agreed to use it as a basis for further discussion. Throughout 2000 and 2001 ASEAN and China worked together to develop a consolidated draft code, establishing the Working Group of the ASEAN–China Senior Officials Consultations on the Code of Conduct to progress the work. Treatment of the Paracels continued to be problematic, with Vietnam insisting on their inclusion within the code. Malaysia joined with China in opposing this even though Kuala Lumpur had no claim to the island group. With agreement between China and ASEAN proving elusive, and intra-ASEAN differences more evident, in July 2001 the Philippines presented a new draft code. This called on parties to exercise self-restraint, including refraining from inhabiting currently unoccupied features, and to handle their differences constructively. The text contained no reference to the geographical coverage of the instrument.82 Continuing disagreement about the geographic scope of the draft code impeded any further progress. China opposed the compromise wording developed by the Philippines to allay Malaysia’s concern that the code’s scope could include its non-disputed areas in the South China Sea. In an effort to break the impasse, Malaysian Foreign Minister Syed Hamid Albar proposed a new instrument at the 35th ASEAN foreign ministers’ meeting in Brunei on 29–30 July 2002: a declaration of conduct in the South China Sea. In his view this would declare ASEAN’s position and signal that it was doing something to ease tension. His Foreign Ministry head, Ahmad Fuzi Abdul Razak, concurred, suggesting that calling the proposed instrument a declaration rather than a code ‘would be easier for [ASEAN] member countries to support and accept’ and be ‘least objectionable to all the countries, particularly the claimant countries’.83 While pragmatic, the change in title from a code to a declaration signalled a dilution in political will among ASEAN members to conclude an instrument that had meaning. It was symptomatic of several problems: first, an inability within ASEAN to accommodate the objections of Malaysia and Vietnam concerning

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the geographic coverage of the instrument; second, whether it should have an inclusive or exclusive focus (by applying only to states directly involved in the dispute any intervention by non-claimant ASEAN states such as Indonesia, Singapore or Thailand or extra-regional states or multilateral organizations is ruled out); third, the lack of compromise between ASEAN’s push for a prohibition on building or expanding existing structures and China’s opposition to such a provision. In the end it was agreed that the declaration would contain a reference to a code of conduct as a shared ultimate goal on the basis of consensus by the parties. Despite these problems, ASEAN senior officials endorsed the declaration at their meeting on 31 October in Phnom Penh. China gave its assent on 1 November. This paved the way for the signing of the document at the ASEAN–China Summit on 4 November 2002.84

Conclusion Southeast Asian states have exhibited convergence and divergence in their position on the South China Sea dispute. In some instances, they have stood together and projected a unified voice. Reactions to elements of China’s maritime jurisdictional regime and its 1995 move on Mischief Reef are examples. At other times, solidarity has fragmented and ASEAN members have stood apart. The Philippines was isolated in 1998 when Beijing reinforced its presence on Mischief Reef while Malaysia’s 1999 move on Investigator Shoal and Erica Reef generated little reaction among the membership with the exception of the Philippines. Some have also questioned whether the tripartite seismic survey agreement signed by China, the Philippines and Vietnam in 2005 has had the effect of dividing ASEAN and given implicit recognition of China’s claim to the South China Sea.85 The development of a code/declaration of conduct highlighted how ASEAN members have stood together and apart on the same issue, underscoring that neither stance is mutually exclusive but that both can coexist. While the process of negotiating the code/declaration of conduct helped build confidence among the claimants, it also exposed fissures within the ASEAN membership and between ASEAN and China. Compared to the 1990s, the potential for the South China Sea dispute to flare as a flashpoint threatening regional peace and stability has reduced in the early years of the new millennium. This calm is fragile, however. The juxtaposition between words and deeds continues to generate concern among the claimants. From 16 to 23 November 2007, China conducted military exercises in the Paracels in what it considers its territorial waters, eliciting a strong protest by Vietnam. During this period, China’s Premier, Wen Jiabao, was in Singapore at the ASEAN–China Summit reiterating China’s interest in promoting practical cooperation and joint development, and maintaining stability in the South China Sea. A further complication arose in December 2007 when China’s National People’s Congress established the Sansha administrative district within Hainan Island Province, with responsibility for managing the Paracels and Spratlys. This provoked public demonstrations in front of the Chinese embassy in Hanoi and consulate in Ho Chi

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Min City, compounding the friction that has been re-emerging for some time between China and Vietnam. Choppy seas may again be in prospect regarding the South China Sea dispute. Vigilance remains the watchword.

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Notes 1 ‘Ople Lauds Signing of Declaration on the Conduct of Parties in the South China Sea’, Department of Foreign Affairs, The Philippines, press release no. 246–02, 4 November 2002, at www.dfa.gov.ph/news/pr/pr2002/nov/pr246.htm. 2 Cited in ‘Editorial and Opinion: Beyond Terrorism’, Philippine Daily Inquirer, 7 November 2002. 3 Cited in ‘ASEAN, China Sign Document on Territorial Dispute’, Kyodo News, 5 November 2002. 4 For some reasons why the dispute has diminished in intensity in recent times, see R. Emmers, The De-escalation of the Spratly Dispute in Sino-Southeast Asian Relations, RSIS Working Paper No. 129 (Singapore: S. Rajaratnam School of International Studies, Nanyang Technological University, 2007). 5 Figures from R. Sutter and C.-H. Huang, ‘China–Southeast Asia Relations: Singapore Summits, Harmony, and Challenges’, Comparative Connections. A Quarterly E-Journal on East Asian Bilateral Relations, January 2008, at www.csis.org/media/csis/pubs/ 0704qchina_seasia.pdf; and ASEAN–China Expert Group on Economic Cooperation, Forging Closer ASEAN–China Economic Relations in the Twenty-First Century (Jakarta: ASEAN, 2001), p. 1. 6 See M. Li, Security in the South China Sea: China’s Balancing Act and New Regional Dynamics, RSIS Working Paper No. 149 (Singapore: S. Rajaratnam School of International Studies, Nanyang Technological University, 2008), pp. 17–21. 7 On the periphery policy, see S. Zhao, ‘China’s Periphery Policy and Its Asian Neighbours’, Security Dialogue 30, 3 (September 1999), pp. 335–346. 8 For perspectives on the ‘China-threat’ issue see H. Yee and I. Storey (eds), The China Threat: Perceptions, Myths and Reality (London and New York: RoutledgeCurzon, 2002); R. Bernstein and R.H. Munro, ‘China I: The Coming Conflict with America’, Foreign Affairs 76, 2 (March–April 1997), pp. 18–32; R.S. Ross, ‘Beijing as a Conservative Power’, Foreign Affairs 76, 2 (March–April 1997), pp. 33–44; D. Roy, ‘The “China Threat” Issue: Major Arguments’, Asian Survey 36, 8 (August 1996), pp. 758–771. 9 Analyses of claims in the South China Sea include M. Chemillier-Gendreau, Sovereignty over the Paracel and Spratly Islands (The Hague: Kluwer Law International, 2000); M.J. Valencia, J.M. van Dyke and N.A. Ludwig, Sharing the Resources of the South China Sea (The Hague: Martinus Nijhoff Publishers, 1997), pp. 20–38; M. Samuels, Contest for the South China Sea (New York and London: Methuen, 1982). 10 See H. Djalal, ‘Indonesia and the South China Sea Initiative’, Ocean Development and International Law 32, 2 (April 2001), pp. 97–103; I. Townsend-Gault, ‘Preventive Diplomacy and Pro-Activity in the South China Sea’, Contemporary Southeast Asia 20, 2 (August 1998), pp. 171–190. 11 See Article 2, Law on the Territorial Sea and the Contiguous Zone of the People’s Republic of China, 25 February 1992, Law of the Sea Bulletin 21 (New York: United Nations Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, 1992), p. 24. 12 ‘Testing the Waters’, Far Eastern Economic Review, 12 March 1992, pp. 8–9. 13 ASEAN Declaration on the South China Sea (1992), Manila, Philippines, 22 July 1992, at www.aseansec.org/5233.htm. 14 L.T. Lee, China and the South China Sea Dialogues (Westport: Praeger, 1999), p. 26.

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15 On China’s unsuccessful opposition to the Non-Aligned Movement Summit Meeting endorsing the 1992 ASEAN Declaration on the South China Sea see C. Smith and S.Aznam, ‘Reason and Rhetoric’, Far Eastern Economic Review, 17 September 1992, p. 11. 16 Lee, China and the South China Sea Dialogues, p. 26. 17 Paragraph 13, Joint Communiqué of the 26th ASEAN Ministerial Meeting, Singapore, 23–24 July 1993, at www.aseansec.org/3666.htm. 18 See Preamble, Declaration of the Government of the People’s Republic of China on the Baselines of the Territorial Sea of the People’s Republic of China, 15 May 1996, Law of the Sea Bulletin 32 (New York: United Nations, Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, 1996), p. 37. 19 H.K. Park, The Law of the Sea and Northeast Asia. A Challenge for Cooperation (The Hague: Kluwer Law International, 2000), p. 24. 20 United Nations, Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, ‘Declaration of the Government of the People’s Republic of China on the Baselines of the Territorial Sea of the People’s Republic of China, 15 May 1996’, p. 40. 21 Statement by H.E. Datuk A.H.A. Badawi, Minister of Foreign Affairs of Malaysia, 22 July 1996, www.aseansec.org/4348.htm. 22 Opening Statement by His Excellency Mr Qian Qichen, Vice Premier and Minister of Foreign Affairs of the People’s Republic of China, 22 July 1996, at www.aseansec.org/ 4347.htm. 23 United Nations, Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, ‘Philippines. Statement of the Department of Foreign Affairs on the Ratification by China of the United Nations Convention on the Law of the Sea’, Law of the Sea Bulletin 32 (New York: United Nations, Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, 1996), p. 88. 24 I. Storey, ‘Singapore and the Rise of China’, in H. Yee and I. Storey (eds), The China Threat: Perceptions, Myths and Reality (London and New York: RoutledgeCurzon, 2002), pp. 205–266 at p. 215. 25 United Nations, Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, ‘Vietnam. Objections to the statement of 15 May 1996 made by the Government of the People’s Republic of China on the baselines from which the breadth of China’s territorial sea is measured’, Law of the Sea Bulletin 32 (New York: United Nations, Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, 1996), p. 91. 26 Ibid. 27 For the full text of the act see United Nations, Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, ‘China: People’s Republic of China Exclusive Economic Zone and Continental Shelf Act’, Law of the Sea Bulletin 38 (New York: United Nations, Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, 1998), pp. 28–31. 28 A useful analysis of China’s U-shaped line is K. Zou, ‘The Chinese Traditional Maritime Boundary Line in the South China Sea and its Legal Consequences for the Resolution of the Dispute over the Spratly Islands’, International Journal of Marine and Coastal Law 14, 1 (March 1999), pp. 27–55. 29 United Nations, Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, ‘Vietnam: Dispute regarding the Law on the Exclusive Economic Zone and Continental Shelf of the People’s Republic of China which was passed on 26 June 1998’, Law of the Sea Bulletin 38 (New York: United Nations, Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, 1998), pp. 54–55. 30 ‘Manila to Protest New Beijing Initiative in Territorial Dispute’, BusinessWorld (Philippines), 21 September 1998. 31 R. Tiglao, ‘Remote Control. China Expands Reefs to Extend Claims’, Far Eastern Economic Review, 1 June 1995, p. 20.

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32 M.J. Valencia, ‘Mischief at the Reef’, Far Eastern Economic Review, 20 May 1999, p. 31. 33 Vietnam did not become a member of ASEAN until July 1995, five months after the discovery of China’s structures on Mischief Reef. 34 Tiglao, ‘Remote Control’, p. 20. 35 R. Tasker, ‘A Line in the Sand’, Far Eastern Economic Review, 6 April 1995, p. 14. 36 See for example, I.J. Storey, ‘Creeping Assertiveness: China, the Philippines and the South China Sea Dispute’, Contemporary Southeast Asia 21, 1 (April 1999), pp. 106–109; I. Storey, ‘Manila Looks to USA for Help over Spratlys’, Jane’s Intelligence Review 11, 8 (August 1999), p. 47; D. Zha and M.J. Valencia, ‘Mischief Reef: Geopolitics and Implications’, Journal of Contemporary Asia 31, 1 (March, 2001), p. 89. 37 ASEAN, Statement by the ASEAN Foreign Ministers on the Recent Developments in the South China Sea, 18 March 1995, at www.aseansec.org/2089.htm. 38 Ibid. 39 Storey, ‘Creeping Assertiveness’, pp. 107–108. 40 Ibid., p. 108. 41 Ibid.; S.J. Hay, ASEAN’s Regional Security Dialogue Process: From Expectation to Reality?, Institute of Southeast Asian Studies Working Papers, International Politics and Security Issues No. 1(97) (Singapore: Institute of Southeast Asian Studies, 1997), p. 19. 42 Hay, ASEAN’s Regional Security Dialogue Process, pp. 19–20. 43 Storey, ‘Singapore and the Rise of China’, p. 214. 44 Ibid., p. 215. 45 Storey, ‘Creeping Assertiveness’, p. 98; R. Tiglao, A. Sherry, N. Thayer and M. Vatikiotis, ‘’Tis the Season’, Far Eastern Economic Review, 24 December 1998, p. 18. 46 Ibid. 47 B. Wain, ‘Asean’s Inaction Encourages Chinese Audacity’, Asian Wall Street Journal, 25 June 1999. 48 Tiglao et al., ‘’Tis the Season’, p. 18. 49 Association of Southeast Asian Nations, Sixth ASEAN Summit, Hanoi Declaration of 1998, Hanoi, Vietnam, 16 December 1998, ASEAN Documents Series 1998–1999, Supplementary Edition (Jakarta: ASEAN, 1999), p. 5. 50 Tiglao et al., ‘’Tis the Season’, p. 18. 51 C.A. Thayer, ‘Some Progress, along with Disagreements and Disarray: China–ASEAN Relations’, Comparative Connections – 2nd Quarter 1999, at www.csis.org/pacfor/cc/ 992Qchina_asean.html. 52 Ibid. 53 A.S.P. Baviera, ‘Perceptions of a China Threat: A Philippine Perspective’, in H. Yee and I. Storey (eds), The China Threat: Perceptions, Myths and Reality (London and New York: RoutledgeCurzon, 2002), pp. 259–260. 54 R. Tiglao, ‘Seaside Boom’, Far Eastern Economic Review, 8 July 1999, p. 14. 55 This section draws heavily on Tiglao, ‘Seaside Boom’, p. 14. 56 ‘Philippines Formally Protests Malaysian Action in Spratlys’, Agence France-Presse, 24 June 1999. 57 ‘Malaysia Defends Presence in Spratlys’, Reuters, 24 June 1999. 58 ‘Structure is on Malaysian Territory – Dr Mahathir’, Bernama, 27 June 1999. 59 ‘Malaysia Defends Presence in Spratlys.’ 60 ‘Building on Spratlys? So Will We – Erap’, Manila Standard, 23 June 1999. 61 ‘Manila Drops Plan to Build Structures in the Spratlys’, Asian Political News, 12 July 1999. 62 Ibid. 63 ‘RP Sees China–KL Collusion on Spratlys’, Manila Standard, 25 June 1999. 64 Ibid. 65 Ibid.; ‘Manila Drops Plan to Build Structures in the Spratlys.’

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66 ‘Philippines Hands Protest Note to Malaysia’, Associated Press, 20 August 1999. 67 ‘Philippine Senate Head Wants Malaysia to Tear Down Spratlys Structures’, Agence France-Presse, 20 August 1999. 68 ‘Stronger Protest vs Malaysian Moves in Spratlys Needed, DFA Told’, BusinessWorld (Philippines), 23 August 1999. 69 M. Talosig, ‘Reefs Within Our Territory – Malaysia’, Gulf News, 23 August 1999. 70 Y.L.G. Arpon, N.P. Aquino and C.R.A. Garcia, ‘Manila to Seek UN Intervention in Maritime Tiff with Malaysia’, BusinessWorld (Philippines), 24 August 1999; ‘Philippines Considers Taking Spratlys Row with Malaysia to United Nations’, Bernama, 23 August 1999. 71 ‘No Cause for Tension over Spratlys, Malaysia says’, Kyodo News, 24 August 1999; ‘Malaysia Not Contributing to Tension in Spratlys: Minister’, Agence France-Presse, 24 August 1999. 72 ‘ASEAN seeks progress on S. China Sea code of conduct’, Asian Political News, 26 July 1999. 73 Ibid. 74 Ibid. 75 ‘Structure is on Malaysian Territory – Dr Mahathir.’ 76 Y.-H. Song, ‘Codes of Conduct in the South China Sea and Taiwan’s Stand’, Marine Policy 24, 6 (November 2000), p. 451. 77 Joint Communiqué of the 29th ASEAN Ministerial Meeting (AMM), Jakarta, 20–21 July 1996, at www.aseansec.org/3663.htm. 78 Association of Southeast Asian Nations, Sixth ASEAN Summit, Hanoi Plan of Action, Hanoi, Vietnam, 15 December 1998, at www.aseansec.org/2011.htm. 79 ‘Concern over Spratlys Statement’, Straits Times, 27 April 1999. 80 P. Jacob, ‘Manila Presses ASEAN to Adopt Code of Conduct’, Straits Times, 22 July 1999. 81 ‘Malaysia Feels Members Should Not Be Rushed on Proposed Code’, New Straits Times, 22 July 1999. 82 ‘Philippines Bends to Diluted S. China Sea Code of Conduct’, Kyodo News, 18 July 2001. 83 ‘ASEAN Countries Agree to Study Malaysia’s Proposal on Spratlys’, Bernama, 26 July 2002. 84 For the full text, see Declaration on the Conduct of Parties in the South China Sea, 4 November 2002, at www.aseansec.org/13163.htm. 85 See B. Wain, ‘Manila’s Bungle in the South China Sea’, Far Eastern Economic Review, January/February 2008.

7

Sovereignty in ASEAN and the problem of maritime cooperation in the South China Sea

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J.N. Mak

Introduction Many scholars have showcased ASEAN as an example of a regional body that has not only succeeded in mitigating intra-regional tensions in Southeast Asia, but has brought about a ‘long peace’ in the region.1 Kivimäki and other scholars writing in the constructivist tradition, including Amitav Acharya and Nikolas Busse, have argued that, in spite of potential conflict over a number of territorial and other inter-state disputes, the development of the key ASEAN norms of non-intervention in the internal affairs of another state and the emphasis on respecting the independence and sovereignty of each member are fundamental to the Association’s success in establishing peace, security and stability in Southeast Asia.2 These norms are embodied in ASEAN’s 1976 Treaty of Amity and Cooperation in Southeast Asia (TAC). Besides the emphasis on sovereignty and non-intervention, the TAC, in Article 2, also calls on states to settle disputes peacefully. Not only does the TAC emphasise the non-use of force to settle disputes, it also calls on the ASEAN members to renounce the threat to use force. Although Nischalke sees ASEAN more as a ‘rule-based community rather than a community based on the existence of a collective identity’ (as Acharya, Kivimäki and Busse suggest), he nevertheless also regards the TAC as the central pillar of ASEAN and the source of the norms and principles that have guided its behaviour since its establishment.3 These scholars also regard the ‘ASEAN way’ approach to intra-regional interactions based on non-confrontational dialogue and consensus building as key to ASEAN’s success in maintaining peace, stability and order in Southeast Asia.4 While the ‘ASEAN way’ and TAC have certainly kept the ‘long peace’, I argue that they seem to have done so on land rather than in the maritime realm. The ASEAN norms do not seem to have contributed as much to a working regional order at sea. The key puzzle As Kivimäki observed, ASEAN was still full of ‘conflict potential’, in particular for maritime conflicts, during the ‘long peace’.

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All through the long peace there were several putes between Malaysia and Singapore (Pedra Malaysia (Sipadan and Ligitan), Indonesia and Islands), Malaysia and the Philippines (Sabah), and the Philippines (Spratly Islands).5

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unsettled territorial disBranca), Indonesia and the Philippines (Miatan and Malaysia, Vietnam,

Kivimäki also notes that these maritime disputes became militarised. Nevertheless, despite their militarisation, Kivimäki argued that these disputes did not lead to open war or casualties, thereby reinforcing his constructivist reading of ASEAN’s role in ensuring regional peace and stability. However, while these maritime disputes did not lead to war or open confrontation, the very fact that they were militarised, which I define as involving the threat to use force, military posturing, deployment and military ‘incidents’ or skirmishes short of open confrontation or warfare, is significant and cannot be glossed over. These actions contravene the ASEAN norms, which constructivists and even some of their realist sceptics concede have helped to maintain peace, stability and even a modicum of regional order in ASEAN. Significantly, similar military posturing and threats were rarely encountered with respect to intra-ASEAN disputes outside the maritime realm over a sustained period of time. The question therefore is why ASEAN has managed to maintain a ‘long peace’ on land, in addition to developing significant economic and other forms of functional cooperation, while disputes in the South China Sea and elsewhere have invited aggressive conduct on the part of some ASEAN states against their fellow members. Many analysts have attributed the regional maritime disputes to the race for valuable ocean resources, control of strategic sea lines of communication (SLOCs), attempts to control a sea area of considerable strategic importance, and the rising tide of nationalist sentiments, especially in China. It is generally agreed that one of the most important drivers of the disputes is the race for economic resources, especially gas, oil and fish. Thus, efforts at inducing cooperation have focused on ensuring that states are made aware of the potential collective gains to be had from cooperating at sea. However, what most of the literature on enhancing cooperation in the South China Sea or establishing cooperative norms and institutions does not explain is why such efforts at driving cooperation at sea has, for the most part, failed except for the joint development and exploitation ventures in the Gulf of Thailand. More than that, these ‘explanations’ fail to account for why the ASEAN states, despite adhering fairly closely to the key TAC principles, have failed to behave in accordance with these norms with respect to their maritime disputes and conflicts. In the rest of this chapter, I explain this paradox by arguing that we need to distinguish between two distinct realms in ASEAN – the maritime and the terrestrial – where different norms apply because of the distinct notions of sovereignty that prevail in these two realms. In other words, ASEAN norms that operate in the security realm on land are different from the norms operating in the South China Sea. Evidence of this is that despite the 1976 TAC, ASEAN nevertheless spent considerable time and effort from the 1990s in developing a separate code

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of conduct for the South China Sea, implying therefore that an ‘explicit instrument’ to deal with conflicts and potential conflicts in the maritime sphere was necessary.6 In the next section, I show how intra-ASEAN maritime conflicts became militarized, especially during the 1990s. I then discuss the reasons why security norms are different in the maritime and terrestrial realms in ASEAN. This is because land boundaries are considered sacrosanct because of ASEAN adopting the principle of uti possidetis juris, whereas a ‘state of nature’ still exists at sea (with the exception of the Gulf of Thailand), where clearly delimited or accepted maritime boundaries have yet to be established, and boundary making is still the preoccupation of all claimant states, including ASEAN. In this respect, the chapter therefore argues that two different forms of sovereignty – one pertaining to the land and the other to the sea – coexist in ASEAN. Because of this feature, the ASEAN norms of conflict-avoidance and non-use of force or threat to use force do not apply to the sea. The fact that the sea is regarded as a frontier where boundary making is still taking place is discussed in the following section. Finally, I use these insights to explain why functional maritime cooperation has been very difficult to achieve in the South China Sea and will continue to remain difficult to attain, in contrast with the Gulf of Thailand. In the Gulf, major sovereignty issues had already been settled, and the extension of maritime zones was therefore more a technical than a politicalsovereignty issue.

The militarization of maritime conflicts in ASEAN Intra-ASEAN conflicts on land tend to focus on ‘soft’ security issues such as economics, human rights, good governance and sanctions against recalcitrant member states such as Myanmar. It is in this sense that the term ‘conflict’ is used, since it refers to a state of disharmony between the incompatible interests of nation states. On the other hand, intra-ASEAN cooperation on functional ‘soft’ security issues such as transnational crime, drugs, people smuggling and international terrorism has steadily developed over the years. Moreover, ASEAN ‘hard’ security (or military) cooperation along its land boundaries, especially with regard to the non-interference norm, has continually improved. Although Thailand fought a short border skirmish with Myanmar in the northwest in 2001 over the issue of separatist rebels using Thailand as a base, the problem was sorted out rapidly.7 Indeed, ties between Myanmar and Thailand have become so strong because of vested economic interests that the land boundary issue is no longer a problem, with an agreement for Thai businesses to ‘cultivate millions of acres of land tax-free in Myanmar’s border areas’.8 Thailand and Myanmar have also embarked on a joint hydropower project along the Thai–Myanmar border.9 Similarly, the Thai–Cambodian border dispute has not resulted in the militarization of their common border. Instead, both Thailand and Cambodia agreed to jointly press for UN World Heritage Status for the Preah Vihear temple, the central symbol of the dispute.10

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Malaysia established General Border Committees (GBCs) with all its neighbours to solve trans-border problems. As an illustration, Malaysian Defence Minister Mohamed Najib made it very clear that the separatist problem in southern Thailand is purely ‘an internal problem of Thailand and that Malaysia respects the cardinal principle of non-interference in the internal affairs of our neighbours’.11 Kuala Lumpur, in the same vein, refused to recognise as refugees the Acehnese who fled to Malaysia to avoid the fighting between Indonesia and the Gerakan Aceh Merdeka (Free Aceh Movement) separatist movement since it did not want to interfere in the internal affairs of Indonesia.12 In contrast to confrontation at sea, Malaysia and Indonesia are currently involved in jointly demarcating their international land boundaries in Sabah and East Kalimantan, and between Sarawak and West Kalimantan.13 Indeed, after the overthrow of President Sukarno and the end of Konfrontasi, Malaysian and Indonesian troops jointly patrolled the Sarawak–Kalimantan border and carried out joint operations against communist sanctuaries.14 We see therefore that ASEAN members usually comply with the ASEAN norms of peaceful resolution of conflicts, the non-use of force and non-interference in the internal affairs of another member state with regard to security issues on land. In contrast, maritime boundary tensions continue to bedevil cooperation at sea. While these tensions have not broken out into actual shooting wars between the ASEAN members, a great deal of aggressive military posturing, veiled military threats, confrontations and the occupation of islets and cays in the South China Sea have taken place. This military posturing is a ‘conflict-threat process’ which runs contrary to Article 2 of the TAC that explicitly renounces ‘the threat or use of force’. Vietnamese and Filipino occupation of the Spratly Islands mainly took place in the 1960s and 1970s, before the TAC was signed. However, in December 1979, a Malaysian naval task force occupied Swallow Reef, which is also claimed by China, Taiwan, and Vietnam. The most controversial move probably was the Malaysian occupation of Investigator Shoal and Erica Reef in 1999. As one scholar noted, this was the first time that an ASEAN member had ‘moved against the claims of co-members the Philippines and Vietnam in the South China Sea’.15 The occupation of Investigator Shoal was a ‘major military operation’ involving six frigates and Malaysia’s most modern combat aircraft.16 Manila became even more upset when it discovered that Malaysia had occupied and built a two-storey structure on another feature, Erica Reef, in July 1999. Tension further increased in 1999 when two Malaysian air force fighter jets intercepted and drove off two Filipino military aircraft near Investigator Shoal.17 In addition, there were very aggressive encounters between the Malaysian and Indonesian armed forces during the course of sovereignty patrols around the contested islands of Sipadan and Ligitan in the Celebes Sea, off the eastern Sabah coast, in the 1990s. Recognising that the aggressive encounters could easily turn into open conflict, the Malaysian and Indonesian navies, with intellectual support from the Maritime Institute of Malaysia, worked out and signed the Malaysia–Indonesia Prevention of Incidents at Sea Agreement (MALINDO

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INCSEA) in January 2001. It is extremely significant that a Prevention of Incidents at Sea Agreement (INCSEA) was concluded between two so-called ‘friendly’ navies despite the norms of the TAC. Another illustration of the high level of intra-ASEAN maritime tension was when an Indonesian warship and a Malaysian naval vessel bumped into each other during a ‘robust, confrontational approach’ in the disputed Ambalat area off the southeastern coast of Sabah in April 2005.18 This resulted in some Indonesian officials and the Indonesian public calling for the ‘use of military force’ and the revival of Konfrontasi against Malaysia19 As a consequence of the dispute, both countries increased the deployment of military units to the area. The Indonesian national news agency Antara also reported incidents of Indonesian ships intercepting and successfully driving away Malaysian navy craft that had ‘violated’ Indonesian territory in Ambalat on three occasions in 2007.20 This was a very clear case of military posturing and the indirect threat of the use of force to reinforce the sovereignty claims of each country. While the Ambalat case was not strictly a sovereignty issue, sovereignty was at the heart of the conflict for two reasons: first, because Indonesia felt cheated of its sovereignty over Sipadan and Ligitan after the International Court of Justice (ICJ) awarded the two islands to Malaysia in 2002;21 and second, the anti-Malaysia feelings were also linked to perceptions of Malaysian arrogance over the brutal and unfair treatment of ‘sovereign’ Indonesian migrant labour in Malaysia.22 Besides Ambalat, Malaysia and Indonesia are also involved in maritime disputes off the west coast of Sarawak-Kalimantan in the Gosong Niger zone. Malaysian navy ships were accused by Indonesia of regularly patrolling the area, which the latter claims is its sovereign territory.23 Additionally, tensions continued to rise over the Spratlys between the ASEAN members. Vietnamese troops on Pigeon Reef for instance, apparently fired on a Philippines air force reconnaissance aircraft in October 1999.24 Significantly, there is a move by Malaysia over the next five years to persuade its ASEAN neighbours to adopt bilateral INCSEA agreements in light of the modernisation of all the ASEAN navies. A Malaysian government official noted that the ongoing modernisation and expansion of ASEAN navies, coupled with maritime conflicts especially in areas such as the Ambalat, make future INCSEA agreements essential.25 Given this background, why are some ASEAN member states prepared to increase the risk of conflict at sea in spite of the TAC? Is there a difference between ASEAN norms at sea and their observance on land? In this chapter, I argue that separate and distinct notions of sovereignty apply to ASEAN land territory and its maritime zones. This accounts for the different conflict behaviour seen at sea in contrast with that on land, with implications for the prospect of maritime cooperation.

Two different realms: the maritime and the terrestrial It is clear that ASEAN norms take a back seat to national interests in the maritime realm. One illustration of the primacy of national interests as sea is

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contained in the introduction to the MALINDO Prevention of Sea Incidents Cooperative Guidelines that states:

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both parties [the Indonesian and Malaysian navies] also recognise that despite the sharing of common ideals, the orientations of their respective national interests may at times run at odds against one another . . . Of particular concern are those that could develop from an action–reaction process involving naval forces from both countries during operations to safeguard their respective national sovereignties.26 The argument that two separate sets of norms exist within ASEAN is in contrast to the contructivist approach that considers ASEAN norms as applicable across all realms. Realists, too, fail to recognise the existence of these two separate security realms. From the realist perspective, China is the most recalcitrant actor in the South China Sea because it is the biggest power in the region. However, Malaysia, Vietnam and Indonesia are all equally adamant in asserting their maritime sovereignty claims in the South China Sea. In one sense therefore, the maritime realm is still in a state of nature. Because the norms operating in the maritime realm are distinct from the cooperative norms that operate on land, the many attempts to promote maritime cooperation invariably failed in the past. There are several reasons why I consider the two realms as distinct security entities. The first is the legacy of uti possidetis juris, by which the newly independent ASEAN states inherited and incorporated colonial boundaries as their own borders. Second, while land boundaries were clearly demarcated with the acceptance of the principle of uti possidetis juris, maritime boundaries were not clearly delimited, much less demarcated by Britain, the Netherlands and France. Consequently, ASEAN is still involved in basic maritime boundary making today. In turn, this has implications for ASEAN sovereignty. A sovereign state is defined by specific territorial boundaries. However, since maritime boundaries have yet to be established (demarcated) in large areas of the Southeast Asian seas, maritime sovereignty remains tenuous and therefore highly contested. Finally, there is also the related ASEAN norm of non-interference in the internal affairs of another member state. To my mind, the non-interference concept did not merely refer to a bounded territory but, more important, had the people within that territory as its focus. Since the South China Sea has almost no permanent constituency, i.e. population, nor properly demarcated boundaries, the ASEAN norm of noninterference and respect for state sovereignty does not apply to most of the Southeast Asian maritime sphere. Uti possidetis juris Apart from the 1963–1966 Konfrontasi by Indonesia against Malaysia, there has never been any serious conflict over land boundaries in the ASEAN region.

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While the Philippines claim to Sabah had the potential to become very serious, Manila never really pressed its claims. Indeed, one can argue that there was little attempt by post-colonial states in Southeast Asia to change by force the boundaries that they inherited. In this sense, Southeast Asia’s political boundaries are based on inherited colonial borders, principally the land borders and their immediate territorial seas.27 Although the legal concept of uti possidetis juris (title to territory – ‘as you possess so shall you possess’) was not formally adopted by ASEAN, unlike in Latin America and Africa, its tacit acceptance by Southeast Asia was never challenged by any state within the region. Thus the principle of uti possidetis juris is fundamental to sovereignty and regional peace in ASEAN. As the ICJ stressed in a 1986 ruling, the aim of uti possidetis juris is ‘to secure respect for the territorial boundaries which existed at the time when independence was achieved’, thus freezing title over territory and producing a ‘photograph of the territory’.28 Uti possidetis juris therefore is a principle that transforms colonial borders into international frontiers with the key objective of ensuring stability among newly decolonised states. The significance of uti possidetis juris is that it combines the concepts of non-interference and self-determination based on territoriality (in the ASEAN case, colonial territorial boundaries) ‘rather than ethnic claims’.29 Under the concept of uti possidetis juris, the right to self-determination and sovereignty is based on the acceptance of the pre-eminence of colonial boundaries over ethnicity, culture, religion or even pre-colonial boundaries. Thus, title to colonial territory has constituted the legal basis for the ASEAN norm of sovereignty and non-intervention. So far, no ASEAN country has seriously challenged the legality of existing post-colonial Southeast Asian boundaries, with the possible exception of the 1962 Philippines claim to North Borneo (now Sabah), in which Manila argued that title to the East Malaysian state is still held by the Sultan of Sulu, in Mindanao. Ironically, however, the presumed claimed area is still based on colonial British boundaries. Indonesia also laid claim to Dutch Papua New Guinea because it was part of the Netherlands East Indies Administrative territory in addition to being part of the Sultanate of Tidore before Dutch rule.30 The evidence that ASEAN members have accepted uti possidetis juris as a key principle is reflected in the various legal tussles over maritime claims in the region. For instance, in the Sipadan-Ligitan dispute between Malaysia and Indonesia, both countries cited the 1891 Convention between Britain and the Netherlands which delimited the Dutch and British boundary in Borneo, as the legal basis for their claims before the ICJ in 2001.31 Similarly, the claims and counter-claims made by Malaysia and Singapore over the ownership of Pulau Batu Putih or Pedra Branca before the ICJ in 2007 were based on British colonial administrative boundaries. Arguments to resolve the Cambodia–Thai border dispute, symbolised by the ancient temple of Preah Vihear, which the ICJ decided in favour of Cambodia in 1962, similarly rested on whether the French map showing the boundary or the text of the 1904 Convention delineating the boundary should take precedence.32

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ASEAN sovereignty: periphery and core Just as ASEAN norms operated mainly on land, the ASEAN (or Westphalian) notion of sovereignty also applied largely to land territories and the adjacent strip of territorial seas. Indeed, the ASEAN emphasis on non-intervention in the domestic affairs of another member state did not merely focus on territorial incursions, which have been rare within ASEAN. Members of ASEAN are wary of ‘soft’ intervention, such as criticising the standards of governance of other states, accusing states of human rights abuses; subverting peoples and ethnic groups, or supporting local insurgencies and fomenting domestic dissatisfaction so that a population, or parts of a population, will rise up against the ruling political elites. Non-intervention therefore extends to not providing political, moral and material support for dissidents in neighbouring countries and helping neighbouring states to fight subversive groups.33 Thus, the ASEAN norm of non-intervention is not merely about respecting borders, but has the population or people living within a defined territory as a key focal point. As McCorquodale and Pangalangan noted, boundaries do not merely delimit the area of a state and ‘state sovereignty but also define the inhabitants’.34 In this sense, the actual physical space or geographic boundaries on land are arguably not the key target of the ASEAN non-intervention norm. The focus on people was because many ASEAN states were colonial constructs, with the newly independent states having populations comprising diverse ethnic groups speaking different languages. These ethnic groups often shared blood and religious ties with their kinfolk in neighbouring countries and were separated by colonial boundaries. Thus the primary objective of non-intervention was to prevent external actors from exploiting current or potential domestic unrest, such as the issue of human rights, and to ensure that established governments were not overthrown through the use of force.35 The unilateral extensions of maritime zones by the ASEAN members therefore did not challenge traditional national sovereignty for a number of reasons. First, because of the implicit ASEAN acceptance of uti possidetis juris, the unilateral maritime claims of the 1960s and 1970s did not affect established land borders, which can be regarded as the ‘sovereign’ or ‘territorial core’ of ASEAN. Second, these contested maritime zones did not include large permanent population centres. This is important because the unilateral extensions of maritime zones therefore did not challenge the ASEAN norm of non-intervention and its strictures against creating domestic dissension and overthrowing neighbouring governments. The ASEAN notion of sovereignty and non-intervention in this sense only applies to the grouping’s territorial core, i.e. the borders inherited from France, Britain and the Netherlands that are held to be inviolate.

Maritime sovereignty and boundary making In contrast to territorial boundaries, colonial boundaries were not delimited and demarcated in huge areas of the South China Sea and the Celebes Sea. The

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nineteenth and early twentieth centuries were the era of British supremacy at sea with its emphasis on free trade and freedom of navigation. The open seas regime had existed for nearly 300 years because the world’s maritime powers found that freedom of navigation worked to their mutual benefit. The open seas regime meant that no one owned the ocean, except for a very narrow coastal belt, usually three nautical miles wide. So colonial maritime boundaries seldom extended beyond three nautical miles from the coastline. However, this changed with innovations in seabed mining technology and the growth in the number of newly independent coastal states after decolonisation. These new states saw the adjacent seas as important sources of wealth. The desire to exploit the sea directly demanded not only access to the desired resources, but the ability to exclude others from exploiting it, i.e. the ability to establish sovereignty or property rights.36 Consequently, coastal states, including those in Southeast Asia, were in favour of extending their territorial sea claims from the traditional three-nautical-mile limit up to six, 12 and even 200 nautical miles. This explains the rush to unilaterally ‘fence off’ the oceans in the 1960s, and the need to establish a new ocean regime to restore order in the maritime sphere, which ultimately culminated in the 1982 UNCLOS. However, UNCLOS was not able to and did not establish ownership of the ocean. It provided instead, provisions on how maritime zones could be extended and claimed after sovereignty over territory had been established. Consequently, maritime boundaries and borders do not really exist in the South China Sea. It is important to distinguish between maritime borders/boundaries and maritime frontiers in the maritime realm. Boundaries or borders are where political limits are demarcated, whereas frontiers tend to be rather flexible, since they are geographic zones where states have yet to establish complete political control, or are in the process of doing so. Thus, a significant portion of the various claimed maritime zones in Southeast Asia may be considered maritime frontiers. There are four basic steps involved in boundary making. The first is for a state to define the extent of its claims, i.e. boundary definition. If the boundary definition is not contested and is subsequently marked out on a map, then it is considered to be delimited. Following this, the boundary is considered demarcated if boundary markers are placed on land and turning points, which are not contested, plotted out for sea areas. Importantly, disputes can arise even over a delimited boundary because of ‘differing interpretations of its verbal or cartographic definition’.37 The last step in establishing authority over a demarcated boundary is to administer the territory. In this respect, most claimants have merely defined their boundaries in the South China Sea. Indeed, the ‘significance of international law for solving the dispute seems limited’ while UNCLOS itself assumes that the issue of sovereignty has already been resolved.38 Thus, instead of boundaries, the South China Sea is characterised by frontiers, which can be defined as a zone or ‘tract of territory separating the centres of two sovereignties’.39 Following this line of argument of a ‘sovereign core’ and a ‘sovereign periphery’, threats to ASEAN sovereignty may also be divided into threats to national sovereignty (threats to the core or heartland) and threats to the maritime periphery or maritime frontier. For instance, in a study contrasting ASEAN solidarity with

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respect to the Vietnamese invasion of Cambodia with the Chinese occupation of Mischief Reef, Sharpe noted that in the latter case, the Chinese ‘violation was not as clear-cut [because] Mischief Reef was not uncontested Filipino territory’.40 In contrast, ASEAN had regarded the Vietnamese invasion of Cambodia in 1978 as a clear violation of two key TAC norms that proscribed the use of force and interference in the internal affairs of another state. In 1995, when the Philippines discovered that China had established a military outpost on Mischief Reef, Manila merely managed to evince a rather bland statement from the ASEAN foreign ministers’ meeting, which did not even imply that China had done something wrong.41 This of course could be due to the fact that ASEAN members did not wish to alienate a rising power such as China over a relatively inconsequential maritime squabble.42 Nevertheless, it was also highly likely that the Mischief Reef incident did not resonate with ASEAN because it did not violate the sovereign core of an ASEAN member. Despite the protests of the Philippines, China continued to expand and develop its military facilities on Mischief Reef while ASEAN remained significantly silent over China’s occupation, unlike the vociferous and united stand it took over the Vietnamese invasion of Cambodia that involved two non-ASEAN states. In other words, the Vietnamese invasion of Cambodia was a violation of the ‘sovereign core’ of a Southeast Asian state, whereas Mischief Reef can be regarded merely as a challenge to the maritime frontier, or ‘periphery’, of an ASEAN member. Moreover, the Spratly Islands disputes do not constitute a ‘regime-threatening’ issue for the ASEAN members.43 The tacit ASEAN recognition that its maritime boundaries are in reality frontiers is illustrated by Indonesia’s attempts to properly demarcate and administer its outlying islands following the ICJ award of Sipadan and Ligitan to Malaysia. Although most sources listed Indonesia as possessing 15,000 islands in 2001, after the loss of Sipadan and Ligitan, the Indonesian government claimed that it had more than 17,000 islands. This was followed by a move to name and register 9,000 islands with the United Nations.44 In addition, Jakarta encouraged Indonesians to migrate and settle down in the outer islands since the ‘further losses of islands threatens to redraw Indonesia’s archipelagic territorial borders’.45 Furthermore, a senior Indonesian politician described the collision between a Malaysian and an Indonesian warship off Ambalat in 2005 as indicative of the ‘legal weakness regarding Indonesia’s outer borders’ and stressed that ‘this is a matter of Indonesia’s sovereignty. We have to secure this sovereignty.’46 The fact that two sets of sovereignty norms – one applicable to the land and the second to the maritime frontier – coexist in ASEAN explains why ASEAN states had been able to violate the accepted norms of the TAC. Malaysia is perhaps the one ASEAN member that has dared to go the furthest. The Philippines, in particular, felt cheated by the 1999 Malaysian occupation of Investigator Shoal and Erica Reef, which it considered to be against the 1992 ASEAN Declaration on the South China Sea, which had reiterated the call for the peaceful resolution of all conflicts.47 Equally significant, the ASEAN norms of consultation and consensus also appeared to fail with regard to defusing tensions in the South China Sea. Since

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the Philippines was militarily too weak to stand up to China, and later Malaysia, it resorted to intra-regional and international diplomacy to handle incursions against Filipino ‘sovereignty’. Although it managed to evince from the ASEAN foreign ministers’ meeting in 1995 a vague statement to resolve the Mischief Reef incident amicably, by 1999 ASEAN unity over the Spratlys issue had become ‘fragile’.48 Malaysia thwarted attempts by the Philippines to discuss developments in the Spratly Islands at the 1999 ASEAN foreign ministers’ meeting and insisted on bilateral discussions only. Malaysia also took the side of China in the ARF by arguing that it was not an ‘appropriate venue’ to discuss the South China Sea disputes.49 If anything, this was an example of ASEAN breaking ranks over an issue involving sovereignty on its periphery.

The failure of maritime cooperation Sustained efforts to promote maritime cooperation have produced little result so far except in the closed and restricted waters of the Gulf of Thailand. This is despite the fact that ASEAN officially touted maritime cooperation as a key pillar of its attempt to establish an ASEAN Security Community (ASC). First enunciated in 2003, Paragraph 5, Section A of the Declaration of ASEAN Concord II (Bali Concord II) specifically mentioned that ‘maritime cooperation between and among ASEAN member countries shall contribute to the evolution of the ASEAN Security Community’.50 The stress on ASEAN maritime cooperation was re-emphasised at the ASEAN foreign ministers’ meeting in Jakarta in June 2004. The meeting reiterated that maritime cooperation is ‘vital to the evolution of the ASEAN Security Community’ and agreed to look into setting up a maritime forum.51 The assumption was made that, since maritime problems are invariably trans-boundary in nature, there would be shared interests inherent in the maritime sphere, which theoretically ought to make the institutionalisation of Southeast Asian maritime cooperation easier and more achievable.52 Yet regional efforts to foster maritime cooperation and reduce interstate tensions have met with limited success at best, except in the Gulf of Thailand. The most notable of these regional efforts to foster maritime cooperation was the Indonesian South China Sea workshop series on Managing Potential Conflicts in the South China Sea, the first of which was held in 1990.53 The aim of the South China Sea workshops was to defuse tensions between claimants to the Spratlys by fostering functional cooperation and leaving aside the thorny issue of sovereignty. However, despite a great deal of effort, the Indonesianorganised and Canadian-sponsored South China Sea workshops failed to get the claimant countries to work together meaningfully. Very briefly, obstacles to cooperation included the fact that countries such as Malaysia were more or less happy with the status quo in the South China Sea, while other countries were not prepared to put cooperation before sovereignty claims. As a result, Canada decided in 2001 to stop funding the South China Sea workshop series because of ‘the lack of concrete results’54 while Hashim Djalal, the initiator of the workshops, was reported to have been ‘not optimistic’ by 1998.55 Significantly, the

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issue of sovereignty proved to be a key factor in the inability of the claimant countries to cooperate. Maritime cooperation will be very difficult to achieve in the South China Sea because of the belief that the wealth of the sea could enrich the economies of the countries that happen to own the ‘right’ maritime zones. In short, ownership of potentially rich maritime zones is still seen in zero-sum terms. Although initial attempts by China, Vietnam and the Philippines to cooperate on seismic exploration in the South China seemed to vindicate the belief that functional cooperation in the South China Sea is feasible, subsequent events proved otherwise. The Philippines and China entered into a bilateral agreement in 2004 for a joint seismic exploration for oil in the South China Sea. In 2005, Vietnam decided to join forces with China and the Philippines in the survey, turning it into a tripartite agreement.56 The Joint Marine Seismic Undertaking (JMSU) was initially hailed as a breakthrough and watershed for diplomacy, indicative of ‘the growing level of trust and confidence among [South China Sea] claimants and their commitment to pursue peaceful options’.57 Subsequently, however, the agreement was criticised as another sign of ASEAN members breaking ranks instead of taking a unified stand against China.58 But the fiercest opposition to the agreement came from within the Philippines itself. While this opposition probably has a great deal to do with domestic politics, most opponents to the JMSU criticise it as a sell-out of Filipino sovereignty. Opposition Senator Antonio Trillanes IV even accused President Arroyo of ‘treason for entering into such an agreement with China and Vietnam’.59 Other critics observed that since the JMSU site covered about 80 per cent of the Philippines’ exclusive economic zone, the agreement implied that the Philippines ‘acknowledged the area [involved] as disputed’.60 This would therefore weaken its sovereignty claims in the South China Sea. The fact that this attempt at functional cooperation between three countries in the South China Sea has been so highly contested shows that the issue of sovereignty remains problematic. Although supporters of functional cooperation may argue that the controversy has more to do with domestic opposition to the Arroyo administration, the accusation of selling out Filipino sovereignty cannot be ignored. Why the Gulf of Thailand is an exception Proponents of functional cooperation usually cite the Gulf of Thailand as an example of how ‘political will’ can overcome the problems of conflicting maritime claims in Southeast Asia.61 My own interpretation of the positive developments in the Gulf is that while political will was important, the fact that major sovereignty issues had already been settled in the Gulf because littoral states had accepted the principle of uti possidetis juris was critical. Colonial France and Britain allowed Thailand to continue to exist as an independent state because they needed a buffer state between their spheres of interests in Southeast Asia.62 The Anglo-French Agreement of 1904 clearly ‘decided the British and French spheres of influence at the Kra Isthmus and Malaysia peninsula’.63 The

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subsequent Anglo-Siamese Treaty of 1909 not only ceded four southern Thai states to the British, but also drew up, on paper, the limits of the boundaries between Thailand and colonial Malaya.64 Very significantly, the Boundary Protocol annexed to the 1909 Treaty also included delimiting, or fixing the boundary line, of the territorial seas between Thailand and British Malaya.65 The French and British also set the boundary limits for Thailand and Cambodia and Cochin China. Although the colonial delimitation was grossly unfair, Thailand, Malaysia, Vietnam and Cambodia nevertheless accepted these boundaries as their own after the withdrawal of the French and British. For instance, the Cambodia–Vietnam Historic Waters Agreement of 1982 again resolved the sovereignty dispute between the two countries over the ownership of various islands off their coasts by referring back to colonial administrative boundaries. Under the agreement, both countries accepted the so-called 1939 Brevie Line of the French colonial administration, which had determined then that a ‘number of small islands’ came under the jurisdiction of Cambodia while the island of Phu Quoc belonged to Cochin China, today’s Vietnam.66 Although Thailand lodged a diplomatic protest, the agreement nevertheless resolved a crucial sovereignty conflict between Vietnam and Cambodia.67 Fundamentally, the Gulf of Thailand states had moved a step beyond the South China Sea claimants in that the ownership or sovereignty over land territory, including islands, were generally not disputed because of uti possidetis juris. Clive Schofield had suggested that one reason why functional agreements on resource sharing in the Gulf succeeded, despite the presence of maritime conflicts, was the proven reserves of hydrocarbon resources in the Gulf. Joint agreements not only facilitated access to the proven resources, but negated the possibility that a state could end up owning a zone with no resources at all.68 In other words, absolute gains prevailed. However, many of the ‘conflicts’ in the Gulf that Schofield refers to were technical rather than sovereignty conflicts. They involved technical debates over which turning points or baselines to use as the basis of a country’s maritime claims. For example, the Malaysia–Thai conflict in the Gulf revolved round the issue of whether Thailand’s Ko Losin was a rock or an island, which would directly affect how large a maritime zone Thailand could claim.69 If Ko Losin is a rock, as Malaysia claimed, then it would only generate 12 nautical miles of territorial seas. However, Thailand argued that Ko Losin is an island, which would additionally generate an EEZ as well as a continental shelf for Thailand. Similarly, the overlapping claims between Malaysia and Vietnam in the Gulf resulted from the two countries using different islands as basepoints to extend their continental shelf claims. Malaysia, for instance, used its offshore islands to generate full maritime suites while ignoring the Vietnamese island of Hon Da as a legitimate basepoint.70 The Malaysia–Vietnam dispute was not over who owned what islands, but which islands should be used as the technical basis to extend the continental shelf of each country, which would then impact on how large a continental shelf area each side could claim.

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Overall, therefore, I argue that functional cooperation and the delimitation of maritime boundaries were easier to achieve in the Gulf of Thailand because they did not involve critical sovereignty issues, unlike in the South China Sea. Maritime conflicts arose not from sovereignty disputes over land and islands, but over how large a maritime zone these already claimed and delimited land territories could generate under UNCLOS. The squabbles were therefore mainly legal and technical in nature. However, UNCLOS does not provide precise guidelines for dealing with overlapping maritime boundary claims. Instead, UNCLOS only enjoins all contending parties to use international law to ‘achieve an equitable solution’. However, because there was little conflict over the foundational issue of sovereignty over land territory, the conflicting maritime claims were not militarised in the Gulf.

Conclusion What makes the maritime realm so different from the terrestrial realm is that the issue of sovereignty is still highly contested. Hand in hand with the contestation, ASEAN members are also involved in a ‘conflict process’ that involves militarising conflicting claims in the South China Sea. This process includes overt deployments of military units, confrontation between navies in contested zones and the implicit use of threats. Contructivists will argue that the fact that this ‘conflict process’ has not broken out into open warfare shows that the ASEAN way and the TAC norms are alive and well. However, the fact remains that military confrontations are still taking place at sea, in contrast to attempts to resolve issues cooperatively and peacefully on land. Because of this threat potential, Malaysia is attempting to put in place a comprehensive suite of INCSEA agreements with all its maritime neighbours. The implication of the conflict-process taking place at sea in the ASEAN region is that attempts to establish cooperation at sea, even functional cooperation that puts aside sovereignty issues, will very likely fail. As the JMSU case illustrates, agreements on functional cooperation can be seen as weakening a state’s sovereignty claims. Although national leaders can agree to functional cooperation, critics in the more democratic ASEAN member states can criticise any agreement as a ‘sell-out’. More than that, countries that are already exploiting proven reserves of oil and gas in contested maritime zones will be unlikely to consider functional cooperation. After all, why should they share their proven and ‘sovereign’ resources for the sake of promoting multilateral cooperation in the South China Sea region or other disputed maritime zones? Proponents of functional cooperation are essentially proposing a technical solution that follows the ASEAN approach to conflict management, which is to shelve contentious political issues whilst concentrating on technical cooperation. However, this ignores the fact that the crucial problem of the South China Sea is a foundational political problem about state sovereignty. The exception is the Gulf of Thailand where the foundational issue of sovereignty was resolved, leaving only comparatively minor cases to be settled. As the Gulf of Thailand

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illustrates, the political question of state sovereignty must be settled first before meaningful cooperation can take place, such as the joint exploration and exploitation of resources, or the joint development of areas with proven gas and oil deposits. Thus, prospects for functional and meaningful cooperation in the South China Sea do not look promising given that the foundational political problem – maritime sovereignty – has yet to be solved.

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Notes 1 Timo Kivimäki, ‘The Long Peace of ASEAN’, Journal of Peace Research 38, 1 (2001), pp. 5–25. 2 Amitav Acharya, ‘Ideas, Identity, and Institution-Building: from the “ASEAN way” to the “Asia-Pacific way”?’ Pacific Review 10, 3 (1997), pp. 319–346; Nikolas Busse, ‘Constructivism and Southeast Asian Security’, Pacific Review 12, 1 (1999), pp. 39–60. 3 Tobias Nischalke, ‘Does ASEAN Measure Up? Post-Cold War Diplomacy and the Idea of Regional Community’, Pacific Review 15, 1 (2002), p. 110. 4 Shaun Narine, ‘The English School and ASEAN’, Pacific Review 19, 2 (2006), pp. 203–204. 5 Kivimäki, op. cit., pp. 11–12. 6 Christopher Chung, ‘The Spratly Islands Dispute: Decision Units and Domestic Politics’, unpublished PhD dissertation, Australian Defence Force Academy, University of New South Wales, 2004, p. 310. The evolution of the Declaration on the South China Sea is detailed on pp. 310–348. See www.library.unsw.edu.au/~thesis/ adt-ADFA/public/adt-ADFA20040722.083333/, accessed 12 January 2006. 7 ‘Thai–Burma border talks positive’, BBC News, 4 April 2001, at http://news.bbc.co.uk/ 2/hi/asia-pacific/1255640.stm, accessed 12 April 2003. 8 Clifford McCoy, ‘Capitalizing the Thai–Myanmar Border’, Asia Times Online, 21 June 2007, at www.atimes.com/atimes/Southeast_Asia/IF21Ae02.html, accessed 12 January 2008. 9 ‘Salween Hydropower Project (Thai–Burma border) Briefing Paper’, Foundation for Ecological Recovery, June 2003, at www.terraper.org/articles/BriefingSalweenThai-BurmaJune03.pdf, accessed 7 May 2005. 10 Frances Harrison, ‘Heritage Bid Unites Border Rivals’, BBC News, 4 March 2008, at http://news.bbc.co.uk/2/hi/in_depth/7277928.stm, accessed 19 March 2008. 11 Opening Address by the Honourable Dato’ Sri Mohd Najib Bin Tun Hj Abdul Razak, Deputy Prime Minister and Minister of Defence, Malaysian Joint Chairman at the 47th GBC Meeting Between Malaysia–Thailand, Kuala Lumpur, 21 June 2007, at www.mod.gov.my/index.php?option=com_content&task=view&id=468&Itemid=203 , accessed 19 March 2008. 12 Jonathan Kent, ‘Malaysia Aceh Policy Criticised: Malaysia Does Not Recognize International Treaties On Refugees’, BBC News, 2 April 2004. 13 Speech by Malaysian Prime Minister Abdullah Ahmad Badawi at the Annual Consultations between the Republic of Indonesia and Malaysia, Putra Jaya, 11 January 2008, at www.kln.gov.my/?m_id=25&vid=594, accessed 18 March 2008. 14 Lee Yong Leng, ‘The Razor’s Edge: Boundaries and Boundary Disputes in Southeast Asia’, Research Notes and Discussions [sic] Paper No. 15, Institute of Southeast Asian Studies, Singapore, 1980, p. 6. 15 Christopher Chung, op. cit., p. 116. 16 Michael Richardson, ‘On Eve of Annual Talks, ASEAN Members Are Split Over Spratlys Dispute’, International Herald Tribune, 23 July 1999. 17 For a full description of the Malaysian occupation of two new Spratly islands features in 1999, see Christopher Chung, op. cit., pp. 122–145.

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18 Clive Schofield and Ian Storey, ‘Energy Security and Southeast Asia: The Impact on Maritime Boundary and Territorial Disputes’, Harvard Asia Quarterly (Fall 2006), at www.asiaquarterly.com/index.php?option=com_content&task=view&id=160&Itemid =1, accessed 12 March 2007. The authors also provide a detailed chronology of the Malaysia–Indonesia spat over Ambalat. 19 ‘Govt Urged to Get Tough in Territory Dispute’, Jakarta Post, 7 March 2005. 20 ‘Malaysian Warships Trespass RI Waters in Ambalat’, Antara, 27 February 2007. 21 Richel Langit, ‘Indonesia: Islands in the STORM’, Asia Times Online, 21 December 2002, at www.atimes.com/atimes/Southeast_Asia/DL21Ae01.html, accessed 12 January 2003. 22 ‘Malaysia: Human Rights at Risk in Mass Deportation of Undocumented Migrants’, Amnesty International, December 2004, at www.amnestyusa.org/news/document.do?id= a41fbb92a536608380256e7c0062b8af, Accessed 3 March 2006. 23 I Made Andi Arsana, ‘Gosong Niger: Is it Another Ambalat?’ Geopolitical Boundaries, 3 March 2006, at http://geo-boundaries.blogspot.com/2006/03/gosong-niger-isit-another-ambalat.html, accessed April 7, 2006. 24 Celeste Lopez and James Conachy, ‘Spratlys Continue to Loom as Asian Flashpoint’, 13 December 1999, World Socialist Web Site, at www.wsws.org/articles/1999/ dec1999/spra-d13.shtml, accessed 16 April 2001. 25 Personal interview, 10 March 2008. 26 MALINDO Prevention of Sea Incidents Cooperative Guidelines, Introduction 1a, 1b. Kuala Lumpur, 2001. Emphasis added. 27 Michael Leifer, International Traits of the World, Vol. 2: Malacca, Singapore, and Indonesia (Alphen aan den Rijn: Sijthoff and Noordhoff, 1978), pp. 10–11. 28 Burkina Faso vs. Republic of Mali, ICJ Reports 1986, 565, cited in Enver Hasani, ‘Uti Possidetis Juris: From Rome to Kosovo’, International Law Under Fire, Fletcher Forum of World Affairs, Summer/Fall, 2003, at http://operation Kosovo.kentlaw.edu/ symposium/resources/ hasani-fletcher.htm, accessed 25 November 2004. 29 Enver Hasani, op. cit. 30 Anthony L. Smith and Angie Ng, ‘Papua: Moving Beyond Internal Colonialism?’ New Zealand Journal of Asian Studies (December, 2002), pp. 92, 97. 31 Opening statement by Agent for Malaysia, Tan Sri Abdul Kadir Mohamad, SecretaryGeneral, Ministry of Foreign Affairs, International Court of Justice; case between Malaysia and Indonesia concerning sovereignty over Pulau Ligitan and Pulau Sipadan: application for permission to intervene by the Philippines, The Hague, 26 June, 2001; Opening speech of the Agent of the Republic of Indonesia, Dr N. Hassan Wirajuda, Minister for Foreign Affairs of the Republic of Indonesia, The Hague, 3 June 2002, www.indonesia.nl/statements.php?rank=6&art_cat_id=10. 32 Lee Yong Leng, op. cit., p. 17. 33 Amitav Acharya, Sovereignty, Non-Intervention, and Regionalism, CANCAPS Papier No. 15 (Toronto: York Centre for International and Security Series, York University, October 1977), p. 3. 34 Robert McCorquodale and Raul Pangalangan, ‘Pushing back the Limitations of Territorial Boundaries’, European Journal of International Law 12, 5 (1 December 2001), p. 874, my emphasis. 35 Acharya, op. cit., p. 9. 36 Daniel Moran, ‘The International Law of the Sea in a Globalized World’, in Sam J. Tangredi (ed.), Globalization and Maritime Power (Washington, DC: Institute for National Strategic Studies, National Defense University, 2002), pp. 221–239. 37 Alastair Lamb, Asian Frontiers: Studies in a Continuing Problem (New York: Frederick A. Prager, 1968), p. 5. 38 Leni Stenseth, ‘The Imagined China Threat in the South China Sea’, Centre for Development and the Environment, University of Oslo. (undated), p. 40. 39 Alastair Lamb, op. cit., p. 6.

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40 Samuel Sharpe, ‘An ASEAN Way to Security Cooperation in Southeast Asia?’ Pacific Review 16, 2 (2003), p. 239. 41 ‘Recent Developments in the South China Sea (1995)’, 18 March 1995, at www.aseansec.org/5232.htm, accessed 12 January 2001. 42 Leszek Buszynski, ‘Realism, Institutionalism, and Philippine Security’, Asian Survey, 42, 2 (May/June 2002), p. 491. 43 This is in direct contrast with China where one scholar has argued that the Spratly Islands had become part of the Chinese national identity, and therefore ‘considered an inseparable part of the motherland, and occupation by others is interpreted as encroachments on Chinese territory’ (Stenseth, op. cit., p. 40). 44 ‘Indonesia to Register Small Islands’ Names to UN on August 18’, Tempointeraktif, 23 July 2007, at www.tempointeraktif.com/hg/nasional/2007/07/23/brk,20070723–104181, uk.html, accessed 25 July 2007. 45 Meidyatama Suryodiningrat, ‘RI Must Make Presence Felt on Islands’, Jakarta Post, 13 March 2006 (my emphasis). 46 ‘MPR Speaker: Indonesia’s Outer Borders Are Weak’, Tempointeraktif, 13 April 2005 (emphasis added), at www.tempointeraktif.com/hg/nasional/2005/04/13/brk, 20050413–04,uk.html, accessed 16 April 2005. 47 ‘ASEAN Declaration on the South China Sea’, Manila, Philippines, 22 July 1992, at www.aseansec.org/1196.htm, accessed 11 May 2001. 48 Christopher Chung, op. cit., p. 145. 49 Ibid. 50 Declaration of ASEAN Concord II (Bali Concord II), www.aseansec.org/15159.htm, accessed 15 November 2004. 51 ‘Indonesia Presses ASEAN to Pursue Security Bloc’, Reuters report, International Herald Tribune, 30 June 2004. 52 For an institutionalist argument, see Mark J. Valencia, ‘Prospects for Multilateral Regime Building in Asia’, in Sam Bateman (ed.), Maritime Cooperation in the Asia-Pacific Region: Current Situation and Prospects, Canberra Papers on Strategy and Defence No. 132 (Canberra: Australian National University, 1999), pp. 27–67 at p. 40. 53 See Liselotte Odgaard, ‘Conflict Control and Crisis Management between China and Southeast Asia: An Analysis of the Workshops on Managing Potential Conflicts in the South China Sea’, at www.southchinasea.org/docs/Odgaard.pdf, accessed March 4, 2001. 54 Yann-Huei Song, ‘The Overall Situation in the South China Sea in the New Millennium: Before and After the September 11 Terrorist Attacks’, Ocean Development and International Law 34, 3/4 (2003), p. 249. 55 Leni Stenseth, ‘Nationalism and Foreign Policy – the Case of China’s Nansha Rhetoric’, unpublished PhD dissertation, Department of Political Science, University of Oslo, 1998, fn. 29. 56 ‘A Tripartite Agreement for Joint Marine Scientific Research in Certain Areas in the South China Sea By and Among China National Offshore Oil Corporation and Vietnam Oil and Gas Corporation and Philippine National Oil Company, 2005’, at www.newsbreak.com.ph/index.php?option=com_remository&Itemid=88889273&fun c=startdown&id=219, accessed 18 March 2008. 57 ‘Secretary Romulo Heralds RP–China–Vietnam Agreement on Joint Seismic Survey of the South China Sea’, official website of the Government of the Philippines, 14 March 2005, at www.gov.ph/news/default.asp?i=7301, accessed 18 March 2008. 58 Christopher Roberts, ‘China and the South China Sea: What Happened to ASEAN’s Solidarity?’ IDSS Commentaries, 26 April 2005. 59 Michaela P. del Callar, ‘No Gloria Order to Suspend JMSU: Chinese Ships to Continue Exploration – Diplomat’, Daily Tribune, 19 March 2008, at www.tribune.net.ph/ headlines/20080319hed1.html, accessed 19 March 2008.

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60 Miriam Grace A. Go, ‘A Policy of Betrayal’ (first of three parts), ABS-CBN NEWS.com/Newsbreak, at www.abs-cbnnews.com/storypage.aspx?StoryId=112137, accessed 18 March 2008. 61 Clive Schofield, ‘Unlocking the Seabed Resources of the Gulf of Thailand’, Contemporary Southeast Asia 29, 2 (August 2007), p. 298. 62 Lee Yong Leng, op. cit., p. 7. 63 Ibid., p. 8. 64 Ibid., pp. 19–20. 65 R. Haller-Trost, The Contested Maritime and Territorial Boundaries of Malaysia: An International Law Perspective, International Boundary Studies Series (London: Kluwer International Law Limited, 1998), p. 68. 66 Clive Schofield, op. cit., p. 295. 67 Ibid., p. 295. 68 Ibid., p. 288. 69 Ibid., p. 290. 70 Ibid., p. 297.

8

The de-escalation of the Spratly dispute in Sino-Southeast Asian relations

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Ralf Emmers

Introduction The territorial dispute over the Spratly Islands was in the 1990s often described as a major regional security flashpoint. The dispute was one of the crucial problems afflicting China and the four Southeast Asian claimant states – Vietnam, the Philippines, Malaysia and Brunei. Part of the defense modernization undertaken by the Southeast Asian states was related to this issue. The seriousness of the matter was demonstrated in February 1995, when China encroached on the Philippine-claimed Mischief Reef in the Spratlys. The then Philippine Defense Secretary Orlando S. Marcado later described the Chinese occupation of Mischief Reef and the fortification of its structures in late 1998 as a strong indication of China’s “creeping invasion” of the “disputed South China Sea chain.”1 In this chapter I argue that the Spratly dispute has de-escalated in recent years. The Spratly question is no longer perceived as a significant security flashpoint capable of undermining order in the region and it has to some extent been shelved in Sino-Southeast Asian diplomatic relations. This chapter does not suggest, however, that the territorial dispute has been removed from the security agenda altogether, but rather that the parties involved have de-escalated what remains inherently a security issue. The distinction is important to note as it implies that the Spratly dispute continues to be regarded as a security question by the claimant states, only one of a much less salient nature. Interestingly, this shift in perception has occurred despite the absence of significant changes in material terms and in the circumstances pertaining to the dispute as well as in the absence of major progress in conflict management and resolution. On the contrary, China has continued to modernize its navy and has constantly repeated that its sovereignty over the South China Sea is indisputable. Likewise, the Southeast Asian claimants have been unwilling to make concessions with regard to their territorial claims. China and the members of the Association of Southeast Asian Nations (ASEAN)2 have also so far failed to agree on a code of conduct for the South China Sea. I have sought here to provide an explanation for the de-escalation of the Spratly dispute in recent years. I claim that it cannot be explained by significant progress in conflict management and resolution, but rather by a combination of

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wider domestic and regional developments. These include the lessening of the China threat image, the limited Chinese power projection in the South China Sea, Vietnam joining ASEAN in 1995, the downplaying of nationalist rhetoric, the limited proven oil reserves in the area, and restrained US involvement in the conflict. I argue that these wider domestic and regional changes have eased the climate of relations over the Spratlys and made possible the signing of the Declaration on the Conduct of Parties in the South China Sea by China and the ASEAN members in November 2002. The Declaration is thus not described as the source of the de-escalation process but rather as the outcome of wider transformations. That said, I conclude that the situation in the South China Sea remains fragile, dynamic, and possibly volatile. While an armed conflict seems unlikely in the short term, the situation could change rapidly again in the longer run, as the de-escalation of the dispute is not derivative of actual progress toward conflict management and resolution. In short, tension could rise if these factors were to change for the worse. This chapter consists of two sections. The first analyzes the Spratly dispute in China–Southeast Asian relations from 1991 onwards. It describes the escalation of the issue in the 1990s, followed by the gradual improvement of relations which led to the signing of the 2002 political declaration and oil pre-exploration surveys in 2005. The second section provides a combination of domestic and regional factors that help us explain the de-escalation of the Spratly dispute today.

The Spratly dispute in Sino-Southeast Asian relations The escalation of the Spratly issue in the early 1990s During the Cambodian Conflict (1978–1991), the problem of overlapping claims in the South China Sea was set aside in Sino-ASEAN relations. The common objective shared by China and the ASEAN countries to isolate Vietnam internationally meant that the territorial question was overlooked during most of the decade. A naval confrontation with Vietnam on March 14, 1988 that led to the first seizure of territory by China in the Spratlys did not cause much concern in most ASEAN capitals. It was commonly assumed that China would not act aggressively against any of the ASEAN claimants. The Paris Accords of October 1991 and Vietnam’s military withdrawal from Cambodia put an end to the complementary security interests that had united China and the Association. Moreover, rather than being seen as a threat to Southeast Asian stability, Vietnam was now keen to reach a détente with the United States and the ASEAN members.3 In the strategic context of the post-Cold War era, the territorial dispute over the Spratly Islands became a regional security flashpoint. The modernization of China’s naval force that had started in the late 1980s, which included the slow acquisition of limited blue water capabilities, was regionally regarded as a source of concern. The ASEAN states sought, however, not to antagonize China or to over-emphasize the South China Sea question in their bilateral and multilateral talks with Beijing. In addition, although all the ASEAN claimant states

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were confronted with China’s rising power in the early 1990s, they did not all share the same threat perception. The Philippines had maintained good ties with China after the opening of bilateral relations in July 1975. The Philippines had supported ASEAN’s tacit alliance with China during the Cambodian conflict. Yet post-Cold War bilateral relations were complicated by the Spratly question. Manila sought to internationalize the issue and proposed in 1992 to organize an international conference on the problem under the auspices of the United Nations.4 China, however, refused any form of international mediation. During the 1980s, Malaysia had been generally suspicious of China. This changed in the post-Cold War era as a result of a more cooperative relationship with Beijing. Political and economic ties were enhanced in the early 1990s, first manifested by the visit of Chinese Premier Li Peng to Malaysia in December 1990. Rather than perceiving China as a threat, Malaysia sought to concentrate on the opportunities provided by its economic growth and expected China to be constrained by regional economic interdependence. Indonesia perceived China as an external security concern. Bilateral relations had only been normalized in August 1990, having been suspended by Jakarta in 1965. Feelings of mistrust and suspicion towards China remained strong in Indonesia, especially among the armed forces. Indonesia feared external interference from China and was concerned about its remaining subversive influence. Bilateral relations between Jakarta and Beijing were complicated in 1993 by the suspected inclusion of the waters above the Natuna gas fields into Chinese claims in the South China Sea. Finally, Brunei generally shared Indonesia’s threat perception toward China. China’s apparent willingness to show restraint vis-à-vis the ASEAN claimants was first questioned in February 1992 when Beijing passed the Law of the People’s Republic of China on the Territorial Waters and Contiguous Areas. It reiterated China’s claims in the South China Sea and stipulated the right to use force to protect islands, including the Spratlys, and their surrounding waters. The law questioned the peaceful management of the territorial dispute and was regarded by ASEAN as a political provocation. Partly in response to the Chinese new territorial law, the ASEAN foreign ministers signed the ASEAN Declaration on the South China Sea in Manila in July 1992. The Declaration did not deal with the problem of sovereign jurisdiction, but was instead an attempt to promulgate an informal code of conduct based on self-restraint, the non-use of force and the peaceful resolution of disputes. It relied on the norms and principles initially introduced in the ASEAN Treaty of Amity and Cooperation (TAC) of 1976.5 The informal code of conduct for the South China Sea was based therefore on the notions of conflict avoidance rather than conflict resolution. While supported by Vietnam, China was not receptive to the Declaration and did not formally adhere to its principles. Beijing repeated its preference for bilateral rather than multilateral discussions on the South China Sea. On February 8, 1995, the Philippines discovered the Chinese occupation of Mischief Reef, located in Kalayaan. China had, for the first time, taken territory

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claimed by an ASEAN member. The Mischief Reef incident also indicated that the Philippines had become the most vulnerable actor in the Spratly dispute since the 1992 US withdrawal from Subic Naval Base and Clark Air Base. The American departure from its military bases in the Philippines had removed a source of deterrence against Chinese actions in Kalayaan. Then Philippine President Fidel Ramos strongly criticized China’s action. Manila responded to the discovery of the Chinese occupation by seeking multilateral support and taking retaliatory measures that included the destruction of Chinese territorial markers and the arrest of Chinese fishermen in March 1995. The Philippines also announced a defense modernization program. China and the Philippines eventually signed a bilateral statement in August 1995 that rejected the use of force and called for the peaceful resolution of their bilateral disputes in accordance with the principles of the 1982 Convention on the Law of the Sea.6 The de-escalation after 1995 The de-escalation of the dispute started in the mid-1990s and was illustrated by a process of multilateral dialogue that began shortly after the 1995 Mischief Reef incident. Culminating with the signing of the Declaration on the Conduct of Parties in the South China Sea in 2002, the matter marked a turning point in China’s management of the Spratly dispute. While it had so far opposed any multilateral discussion, China was, after the diplomatic backlash that followed the Mischief Reef incident, willing to soften its stand to accommodate the Southeast Asian countries. Yet China’s concession did not change its territorial objectives in the South China Sea, as Beijing was still unwilling to address the question of sovereign jurisdiction and repeated its territorial claims over nearly the entire area. Following the Mischief Reef incident and under pressure from the Philippines, ASEAN repeated its commitment to the ASEAN Declaration on the South China Sea during a meeting held in Singapore on March 18, 1995. Though China was not mentioned, the ASEAN foreign ministers expressed their “serious concern over recent developments which affect peace and stability in the South China Sea.”7 They also called “for the early resolution of the problems caused by the recent developments in Mischief Reef.”8 The statement was supported by Vietnam. On the eve of the first ASEAN–China Senior Officials Meeting (SOM) in Hangzhou in April 1995, Chinese and ASEAN officials met for an informal meeting during which the latter expressed their concern about China’s aggressive action. This diplomatic initiative surprised the Chinese representatives who were made to understand the political consequences of the Mischief Reef incident. Prior to the second ASEAN Regional Forum (ARF) meeting in August 1995, China’s Foreign Minister Qian Qichen made some concessions to the ASEAN members. He declared that China was prepared to hold multilateral discussions on the Spratlys, rather than limit its diplomacy to bilateral talks, and to accept the 1982 Convention on the Law of the Sea as a basis for negotiation.9

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At the informal ASEAN Summit of November 1999, the Philippines, supported by Vietnam, proposed a new version of a code of conduct. The initiative was more specific than the 1992 Manila Declaration. It tried to move beyond the simple assertion of standard principles by proposing joint development of the Spratly Islands. The Philippine proposal was rejected by both China and Malaysia. The latter was concerned that such a code would be too legalistic. Malaysia had, until the early 1990s, been critical of China’s actions in the Spratly Islands, but its diplomatic stand on the South China Sea had gradually changed over the subsequent years and come closer to the Chinese position. Malaysia refused to address the question of sovereignty. It favoured bilateral negotiations with China and preferred to avoid a constraining regional code of conduct or external mediation. The chairman’s press statement at the informal summit declared that the heads of state and government “noted the report of the Ministers that ASEAN now has a draft regional code of conduct, and further consultations will be made on the draft with a view of advancing the process on the adoption of the code.”10 Malaysia proposed a declaration for the Spratly Islands at the 35th ASEAN Ministerial Meeting (AMM) in Brunei in July 2002. The non-binding document to regulate conduct in the disputed territory was a watered-down compromise, even failing to mention the Spratlys by name. It was also unclear whether the agreement would be referred to as a code of conduct or as a declaration. The ASEAN foreign ministers hoped to approve the document during their ministerial meeting in order to submit it to China’s Foreign Minister Tang Jiaxuan at the ASEAN–China session. The common position would therefore have served as a basis for negotiations with Beijing. Yet most member states refused to support the Malaysian proposal, Vietnam insisting for instance on the adoption of a binding document on the South China Sea. Unable to reach a consensus, the foreign ministers announced in their joint communiqué their decision to work closely with China towards a Declaration on the Conduct of Parties in the South China Sea.11 The ASEAN foreign ministers and China’s Vice Foreign Minister Wang Yi finally signed a Declaration on the Conduct of Parties in the South China Sea on the sidelines of the ASEAN summit in Phnom Penh in November 2002. As the first political declaration signed by ASEAN and China on the issue, the agreement was intended to prevent further tensions over the disputed territories and to reduce the risks of military conflict in the South China Sea. The parties stipulated their adherence to the principles of the United Nations Convention on the Law of the Sea (UNCLOS), the Treaty of Amity and Cooperation (TAC), and the Five Principles of Peaceful Coexistence, and reaffirmed their respect and commitment to “the freedom of navigation in and over flight above the South China Sea.”12 They agreed to resolve their territorial disputes by peaceful means, “without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law.”13 The parties also pledged to practice self-restraint in activities that could spark disputes, such as inhabiting

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still uninhabited features, while enhancing their efforts to “build trust and confidence between and among them.”14 They agreed to exchange views among defense officials, to provide humane treatment to any person in danger or distress, and to give advance notice of military exercises on a voluntary basis. The political declaration was meant to be a first general step and a platform for further cooperation, as the parties were expected to continue working on the adoption of a code of conduct. As an interim accord, it stated: The Parties concerned reaffirm that the adoption of a code of conduct in the South China Sea would further promote peace and stability in the region and agree to work, on the basis of consensus, towards the eventual attainment of this objective.15 The Philippines and Vietnam were disappointed as they had pushed for a binding document. Moreover, Vietnam had demanded that the declaration include a commitment not to build new structures, which was rejected by China. The political declaration also made no reference to its specific geographical scope, primarily because China opposed any mention of the Paracel Islands. By putting off the question of boundaries, the 2002 Declaration increased the possibility of reaching agreements on joint oil exploration and development schemes. Such an agreement was signed in March 2005 by the state-owned oil companies of China, Vietnam and the Philippines with regard to the conduct of oil pre-exploration surveys in the Spratlys. It is worth noting that the agreement was signed by oil companies rather than states, which simplified the process. Philippine President Gloria Arroyo stated at the time that the agreement was a first implementation of the provisions of the 2002 Declaration.16 The signing of such bilateral agreements guarantees that Manila and Hanoi at least be included in the exploration process in areas where they have overlapping sovereignty claims with Beijing. Yet the discovery of substantial oil reserves for commercial use could raise tensions and leave the Philippines and Vietnam in a fragile situation due to the overwhelming asymmetry in power with China and the absence of an overall agreement on the sovereign rights of the coastal states. Moreover, the signing of such agreements gives legitimacy to the more questionable Chinese claims in the South China Sea. In short, the signing of the Declaration on the Conduct of Parties in the South China Sea in 2002 symbolized a high point in the diplomatic attempt to de-escalate the Spratly dispute. The diplomatic process had started shortly after the Mischief Reef incident. The Declaration indicated a desire by the different parties involved in the Spratly dispute to pursue their claims by peaceful means. It openly denounced the use of force in the South China Sea and sent a signal that the different parties were willing to cooperate in certain functional areas. In that sense, it contributed toward conflict avoidance and the easing of tensions between the claimant states. The Declaration was essentially part of ASEAN’s search “for explicit confirmation that China’s presence in the South China Sea will not jeopardize peaceful coexistence.”17 That said, although an important symbolic document,

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the 2002 Declaration cannot be seen as a major step toward conflict management and resolution as it is unable to prevent territorial clashes or other possible sources of conflict, such as the arrest of fishermen by foreign navies and the expansion of military structures on already-occupied reefs. As Tønnesson points out, the declaration “does not establish a legally binding code of conduct: it is simply a political statement.”18 Despite the process of de-escalation, it should be noted that the claimants have continued to build structures in the disputed territory to assert their sovereignty and that low-level incidents have been recurrent since the signing of the 2002 Declaration. The Malaysian government has used soil from the continent to raise the level of Swallow Reef in order to construct a hotel, airstrip, and facilities for scuba divers.19 The Philippines has likewise expressed interest in developing tourism and has built an airstrip on Thitu Island. Vietnam also announced in 2004 its intention to reopen an airport on Spratly Island. In 2006, it was reported that Taiwan was building a runway on the disputed Taiping Island in the Spratly chain, despite Vietnam’s protest against the construction.20 In November 2007, China staged large military exercises close to the Paracel Islands. In December that year, Beijing upgraded the status of the administrative center in charge of the Paracels, Spratlys, and submerged reefs of Macclesfield Bank. Based on Woody Island, the jurisdiction of the center was relabeled as the city of Sansha. Both actions were strongly criticized by Vietnam. In response, Hanoi tolerated popular demonstrations outside of China’s embassy in Hanoi and its consulate in Ho Chi Minh City in December 2007.21 While the city of Sansha is supposed to include the Spratlys, the Philippines, Malaysia, and Brunei did not protest China’s action, arguably in an effort not to make relations with Beijing worse. In the run-up to the March 2008 presidential elections in Taiwan, Taiwanese President Chen Shui-bian visited the Spratlys in February 2008 and inaugurated a 1,150-meter-long runway on the fortified island of Taiping. Vietnam’s Foreign Ministry spokesperson Le Dung described the visit as “an extremely serious act of escalation, violating Vietnam’s territorial sovereignty over the Spratlys.”22 The Philippines joined Vietnam in condemning Chen’s visit to Taiping while China kept quiet.

Sources of the de-escalation process The previous section has argued that the de-escalation of the Spratly dispute, as typified by the signing of the 2002 Declaration, has not been linked to significant changes in the circumstances pertaining to the dispute nor to major progress in conflict management and resolution. In terms of the former, no mechanism has been put in place to prevent possible sources of conflict or clashes of arms. In terms of conflict resolution, all the claimant states have repeated their sovereignty over the Spratlys and they have been unwilling to make any concessions with regard to their territorial claims. The claimants have not agreed to discuss the problem of sovereign jurisdiction over the islands and the overlapping claims have not been presented to the International Court of Justice (ICJ) or the

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International Tribunal for the Law of the Sea. Circumstances pertaining to the conflict have therefore remained unchanged. In light of these significant limitations, what is the explanation for the de-escalation of the Spratly issue? This section claims that it derives from a combination of wider domestic and regional developments. These include the lessening of the China threat image, the limited Chinese power projection in the South China Sea, the downplaying of nationalist rhetoric, the limited proven oil reserves in the area, and restrained US involvement in the conflict. This section argues that it is this series of wider transformations that has eased the climate of relations over the Spratly dispute and made possible the signing of the Declaration on the Conduct of Parties in the South China Sea in November 2002. First, the perception of China has gradually changed among Southeast Asian policy elites. This has resulted from China acting as a status quo rather than as a revisionist power. Self-restraint and accommodation have characterized China’s foreign policy toward Southeast Asia since 1995. China has added diplomatic activism to its growing economic and military growth. Shambaugh explains that, at both a bilateral and a multilateral level, “Beijing’s diplomacy has been remarkably adept and nuanced, earning praise around the region.”23 China’s “charm offensive” toward ASEAN is in sharp contrast to its previous suspicion of multilateralism. In October 2003, China was the first non-Southeast Asian state to adhere to the Treaty of Amity and Cooperation. This has been part of China’s overall courtship of ASEAN in recent years, as well as a further demonstration of its willingness to respect the Association’s norms of interstate behavior. The relative moderation in China’s foreign policy has also been observed in the context of the Spratly dispute. Although China expanded its structures on Mischief Reef in late 1998, it has not seized additional disputed features in the Spratlys since 1995. The 2002 Declaration was also an indication of Beijing’s willingness to adhere to the principles promoted by the ASEAN countries. China’s readiness to accommodate the Southeast Asian countries over the Spratly dispute can be explained by Beijing’s economic priorities as well as by its difficult relations with Japan and its concern over an increased US military presence in the region, particularly since the terrorist attacks on September 11, 2001. A second factor contributing to the de-escalation of the Spratly dispute has been the weakness of China’s power projection in the South China Sea. China has not extensively increased its ability to sustain naval operations away from its mainland bases. Shambaugh writes that the People’s Liberation Army (PLA) “does not seem to have made much progress in enhancing its power projection capabilities, nor do these seem to be a priority.”24 China has no aircraft carrier battle group to project its power; it has few destroyers and its submarines usually remain within its territorial waters.25 Most features in the Spratly archipelago are too small to offer bases for further naval activities. Hence, China does not currently possess the necessary capabilities to control the Spratly group militarily. Furthermore, command over the maritime communication routes that cross the South China Sea can only result from a significant naval dominance and superiority in the region rather than the occupation of tiny features that may not offer a

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legitimate basis for claiming maritime jurisdiction.26 It is important therefore to dissociate the military control of reefs that can only generate limited maritime zones from the control of sea lines of communication (SLOCs) and wider naval areas. China does not yet possess the technology, military capabilities and power projection to impose such a naval hegemony in Southeast Asia.27 Nonetheless, the so-called weakness of the Chinese navy needs also to be examined in relative terms. The buildup of China’s Southern Fleet, even if it is slow and gradual, is a concern for the other claimants, especially because its geographical area of operation would naturally be the South China Sea. This is particularly true in the context of Vietnam and the Philippines, which feel threatened by China’s actions in the Spratlys. Vietnam perceives its relation with Beijing over the South China Sea to be a reflection of its traditional antagonism and patterns of power with China. It is worth noting that the Chinese navy has acted aggressively against Vietnam to consolidate its position in the South China Sea. In January 1974, China completed its control over the Paracel archipelago by acting militarily against South Vietnam before the expected fall of Saigon and the reunification of the country. A naval confrontation with Vietnam on March 14, 1988 led to a new Chinese seizure of territory.28 Despite being weaker at the time and having a more restricted power projection, the Chinese navy thus used force against Vietnam to strengthen its position. Vietnam does not marshal sufficient naval power to impose its will in the South China Sea, nor does it have access to an external source of countervailing power to constrain China’s actions. Vietnam has not forged a formal or tacit alliance with the United States, despite a significant improvement in ties since the establishment of diplomatic relations on July 11, 1995. Regardless of whether a future de facto alliance is forged, the US has so far been unwilling to get involved in the territorial dispute. The Philippines has remained the weakest military party in the dispute. To strengthen its deterrence capabilities, the Philippines ratified a Visiting Forces Agreement with the United States in May 1999 to resume joint military exercises. A third factor contributing to an improvement of regional relations and to a de-escalation of the Spratly dispute has been the Vietnamese membership of ASEAN. In November 1991, Vietnam’s Prime Minister Vo Van Kiet visited Indonesia, Malaysia and Singapore. Prior to the trip, Vietnam had indicated its desire to become a member of the Association. Regional relations had thus been radically transformed by the early 1990s. Vietnam signed up to the TAC in July 1992 during the annual meeting of the ASEAN foreign ministers and eventually joined the Association in July 1995. This helped transform the Spratly dispute into a multilateral question discussed at an ASEAN–China level. Ang argued in 1998 that “Vietnam’s best and perhaps only solution in order to pre-empt a fait accompli in the Spratlys is to depend on ASEAN support and to ‘internationalize’ the issue as much as it possibly can.”29 ASEAN thus provided Vietnam with an institutional vehicle to internationalize its territorial dispute over the South China Sea with Beijing. Together with the Philippines, Vietnam became actively involved in negotiating a code of conduct on the South China Sea. Yet, as discussed above, Vietnam was forced to accept some concessions. Hanoi failed in

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the context of the Sino-ASEAN negotiations to include the Paracels, as demonstrated by their omission from the Declaration on the Conduct of Parties. Fourth, the various claimant states have in recent years refrained from playing the nationalism card. Significantly, Beijing has been careful not to allow the South China Sea question to become an issue in Chinese domestic politics or to use this point as a subject of domestic propaganda. This is in contrast to the situation over the Senkaku/Diaoyu Islands in the East China Sea, which is associated with Japanese aggression during World War II. With regard to that specific territorial dispute, increased activity from nationalist groups in China and Taiwan has been observed, criticizing the Japanese occupation of the islands as an infringement of Chinese territory. This is not to say, however, that nationalism is not an important factor in the Spratly dispute. The territorial claims are of nationalist importance and the claimant states have been inflexible on the sovereignty issue. Nationalism and its impact on the management of the dispute have in particular remained an important factor in Sino-Vietnamese relations. Retracting territorial claims or a willingness to make concessions on the question of sovereign jurisdiction would be costly domestically and perceived regionally as a sign of weakness. Nonetheless, it is worth noting that the claimants have at least downplayed their nationalist rhetoric in their attempt at managing the dispute. Fifth, the de-escalation of the dispute derives from the limited proven oil reserves of the South China Sea. As exploration techniques have improved, oil reserves lying under the seabed in the deep water have become more viable. Yet the oil reserves of the South China Sea are still uncertain and initial estimates have been lowered. As oil prices have risen substantially over recent years, the situation in the South China Sea could change for the worse, however, if proof was found of sufficient oil reserves for commercial use. Finally, the restrained involvement of the United States has been another source of stability in the South China Sea. Washington does not consider the Spratly dispute as a vital security concern and does not want to further complicate its relations with China by getting involved in the question of sovereign jurisdiction. Though following closely the developments in the South China Sea, the US has consistently limited its interest to the preservation of the freedom of navigation and the mobility of its Seventh Fleet. Following the Mischief Reef incident in 1995, Washington stated, for example, that the Philippine-claimed territories were not covered by the Mutual Defence Treaty of August 30, 1951 that ties the Philippines to the United States. The incident did therefore not lead to a strong US diplomatic reaction, except for a statement on freedom of sealanes. The US Department of State declared on May 10, 1995: The United States takes no position on the legal merits of the competing claims to sovereignty over the various islands, reefs, atolls and cays in the South China Sea. The United States would, however, view with serious concern any maritime claim, or restriction on maritime activity, in the South China Sea that was not consistent with international law, including the 1982 United Nations Convention on the Law of the Sea.30

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Moreover, the United States and China have a common interest in preserving the safety of navigation in the South China Sea. Indeed, due to its own economic interests, China is not expected to interrupt the shipping lanes that cross the South China Sea.

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Conclusion The de-escalation of the Spratly dispute can be explained by a combination of domestic and regional developments rather than by significant progress in conflict management and resolution. These developments include the lessening of the China threat image, the limited Chinese power projection in the South China Sea, Vietnam joining ASEAN in 1995, the downplaying of nationalist rhetoric, the limited proven oil reserves in the area, and the restrained US involvement in the conflict. In the short term, an armed conflict seems unlikely although risks exist of miscalculations or accidents that could lead to limited confrontation. In the longer run, however, the Spratly dispute could again become a primary security concern in Southeast Asia if one sees a reverse process in some of the developments discussed in the last section of the chapter. If China were to increase its power projection capabilities in the area, for instance, and/or there were an upsurge of nationalist rhetoric, the peaceful management of the dispute would become complicated. Moreover, proof of sufficient oil reserves in the South China Sea linked with high energy pressure in East Asia would transform security circumstances in the Spratlys. Finally, the worsening of Sino-US and/or Sino-Japanese relations would undoubtedly increase security competition in the maritime domain and undermine stability in the South China Sea. The United States has in recent years been distracted by the war in Iraq. Yet a more assertive US policy in East and Southeast Asia would be considered a source of great concern in Beijing, which could lead toward more assertive Chinese diplomacy and naval activity in the Spratlys.

Notes 1 BBC Reports, May 25, 1999. 2 ASEAN was established in Bangkok in August 1967. The original members were Indonesia, Malaysia, the Philippines, Singapore, and Thailand. Brunei joined in 1984, Vietnam in 1995, Laos and Myanmar in 1997, and Cambodia in 1999. 3 See Richard K. Betts, “Strategic Predicament,” in James W. Morley and Nasashi Nishihara (eds), Vietnam joins the World (London: M.E. Sharpe, 1997), pp. 94–114. 4 Bob Catley and Makmur Keliat, Spratlys: The Dispute in the South China Sea (Aldershot: Ashgate, 1997), p. 102. 5 Adopted at the first ASEAN Summit held in Bali in 1976, the TAC constitutes a norm-based code of conduct that enunciates ASEAN’s core principles, including respect for sovereignty and non-interference in the affairs of other states. 6 Joint Statement on RP–PRC Consultations on the South China Sea and on Other Areas of Cooperation, August 9–10, 1995. 7 Statement by the ASEAN Foreign Ministers on the Recent Development in the South China Sea, Singapore, March 18, 1995.

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8 Statement by the ASEAN Foreign Ministers on the Recent Development in the South China Sea. 9 Sheldon W. Simon, “ASEAN Regional Forum,” in William M. Carpenter and David G. Wiencek (eds), Asian Security Handbook: An Assessment of Political-Security Issues in the Asia-Pacific Region (New York: M.E. Sharpe, 1996), p. 47. 10 Chairman’s Press Statement, Third Informal Summit of the ASEAN Heads of State and Government, Manila, Philippines, November 28, 1999. 11 Joint Communiqué of the 35th ASEAN Ministerial Meeting, Bandar Seri Begawan, Brunei, July 29–30, 2002. 12 Declaration on the Conduct of Parties in the South China Sea, Phnom Penh, Cambodia, November 4, 2002. 13 Ibid. 14 Ibid. 15 Ibid. 16 Luz Baguioro, “Three Nations Sign Pact for Joint Spratlys Survey,” Straits Times, March 15, 2005. 17 Liselotte Odgaard, “The South China Sea: ASEAN’s Security Concerns about China,” Security Dialogue 34, 1 (March 2003), p. 22. 18 Stein Tønnesson, “Sino-Vietnamese Rapprochement and the South China Sea Irritant,” Security Dialogue 34, 1 (2003), pp. 55–56. 19 Joshua P. Rowan, “The US–Japan Security Alliance, ASEAN, and the South China Sea Dispute,” Asian Survey 45, 3 (May/June 2005) p. 420. 20 “Strategic Reason for Spratly Runway,” Straits Times, January 6, 2006. 21 “Disputes in the South China Sea: Whale and Spratlys,” The Economist, December 15, 2007, pp. 35–36. 22 Quoted in “Chen draws Angry Rebukes over Visit to Spratlys,” Straits Times, February 4, 2008, p. 8. 23 David Shambaugh, “China Engages Asia: Reshaping the Regional Order,” International Security 29, 3 (Winter 2004–2005), pp. 64–99. 24 Ibid., p. 85. 25 Jonathan Power, “The So-called Rise of China,” International Herald Tribune, April 8, 2005. 26 Michael Leifer, “The Maritime Regime and Regional Security in East Asia,” Pacific Review 4, 2 (1991), p. 130. 27 See the International Institute for Strategic Studies, The Military Balance 2004–2005 (Oxford: Oxford University Press, 2004), pp. 161–162, 170–173. 28 See Shee Poon Kim, “The March 1988 Skirmish over the Spratly Islands and its Implications for Sino-Vietnamese Relations,” in R.D. Hill, N. Owen, and E.V. Roberts (eds), Fishing in Troubled Waters: Proceedings of an Academic Conference on Territorial Claims in the South China Sea (Hong Kong: Centre of Asian Studies, University of Hong Kong, 1991), pp. 177–191. 29 Ang Cheng Guan, “Vietnam–China Relations Since the End of the Cold War,” IDSS Working Paper no. 1 (Singapore: Institute of Defence and Strategic Studies, November 1998), p. 28. 30 Christine Shelly, Acting Spokesperson of US Department of State, “Spratlys and the South China Sea,” May 10, 1995.

9

China’s South China Sea dilemma Balancing sovereignty, development, and security

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Li Mingjiang

China has been regarded as the most crucial actor on the South China Sea issue for a number of reasons. First of all, barring interference by other external powers, China is the strongest among all claimant states. Beijing’s words and actions with regard to the South China Sea have a direct and more influential impact on the situation in the region. Second, China claims the largest area of the South China Sea, including the Paracels, the Spratlys, the Macclesfield Bank, and the Pratas. China’s claims overlap with those of all other disputant states. Third, although there have been numerous skirmishes among various parties in the South China Sea, major naval conflicts occurred between China and two of the other competing states, with Vietnam over the Paracels in 1974 and over the Spratlys in 1988, and with the Philippines over Mischief Reef in 1995. Thus, understanding Beijing’s approach to the dispute is very pertinent. Chinese policies towards the South China Sea can be seen as having gone through a few phases, including the “low profile” posture – mainly rhetorical declarations – in the 1950s and 1960s, assertive moves to establish a presence from the 1970s to mid1990s, and “considerable restraint” since the mid-1990s.1 In essence, the Chinese policy since the mid-1990s can be characterized as trying to strike a balance between sovereignty, development, and security interests. On one hand, China, like other disputants, never explicitly compromised its sovereignty claim. This can be illustrated by Chinese actions of erecting markers or other artificial features on some of the reefs in the second part of the 1990s, fishery disputes between China and the Philippines and Vietnam, Beijing’s diplomatic quarrels with Hanoi, and constant Chinese rhetoric of declaring sovereignty in the South China Sea. On the other hand, there have also been important changes in China’s approach, which include gradually engaging in multilateral negotiations in the late 1990s, stronger eagerness to push for the proposal of “shelving disputes and joint exploitation,” and accepting moral as well as legal restraints on the South China Sea. These changes are demonstrated in China’s signing the Declaration on the Conduct of Parties in the South China Sea (DOC), accession to the ASEAN Treaty of Amity and Cooperation, and the recent agreement with the Philippines and Vietnam to jointly explore the prospect of energy resources in the South China Sea. Using extensive Chinese sources, this chapter attempts to analyze the overall pattern in Beijing’s handling of the South China Sea issue over the past decade.

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The focus is on the question of why Beijing has pursued this balanced approach to the South China Sea issue. The first part discusses the strategic importance that China has attached to the South China Sea, which best explains why Beijing firmly holds to the sovereignty claim in the South China Sea. The second section explores China’s overall approach to the South China Sea issue in the past decade or so. I argue that Beijing has scrupulously treated the South China Sea issue as part of its foreign policy imperatives in Southeast Asia and thus pursued a strategy of calculated moderation to achieve its balanced interests in development, security, and sovereignty. China’s own need for economic development, the collective pressures from ASEAN, and the strategic presence of other major powers, particularly the United States, have effectively restrained Beijing from assertively pushing for its interests in the South China Sea. In the third part of the chapter, I examine some of the new regional security and economic dynamics that may have a significant impact on China’s future stance on the South China Sea issue. I conclude that China’s balancing behavior is likely to continue in the near future, which implies that there is a good chance of maintaining peace and stability in the South China Sea, at least premised solely on the Chinese perspective.

The strategic importance of the South China Sea as seen by China According to the Chinese, the South China Sea has always been important to them. Numerous Chinese sources claim that Chinese ancestors over 2,000 years ago had discovered some of the islands in the South China Sea and started various activities in the area. In addition to the official position that China is legitimately entitled to sovereignty over much of South China Sea on historical grounds, the intensity of Chinese claims may have slightly different sources from those of other disputants. It goes without saying that oil and other natural resources and marine economy in the South China Sea are important incentives for Beijing to take an adamant position on the dispute. Another important consideration for China is strategic security. The South China Sea, which connects the Malacca Strait to the Southwest and Balintang Channel, Bashi Channel, and Taiwan Strait to the northeast, is perceived as the “throat” of the Pacific Ocean and Indian Ocean. Chinese analysts believe that the South China Sea is uniquely important to China. First of all, the South China Sea is regarded as a natural shield of China’s security in the south. China’s southern regions are densely populated and relatively developed. Stability and security in this region is critical for China’s national security. Second, having a strong foothold in the South China Sea would give China a strategic defense hinterland of 1,000 kilometers, the security implication of which would be very significant. Some sort of Chinese security leverage in the South China Sea would certainly serve as a restraining factor for the US Seventh Fleet that has been active transiting the Pacific Ocean and the Indian Ocean. Third, geographically, China is surrounded by a chain of islands in the east. Given the fact that the United States has always intended to preserve

142 Li Mingjiang a strong military presence in the west Pacific, Beijing feels that having the South China Sea would give China at least some more strategic maneuvering space. Fourth, Chinese strategists believe that geopolitically, China is vulnerable both on land and from the sea. This double vulnerability has been ameliorated to some extent due to China’s improved relations with various land neighbors. In the future, challenges to China’s territorial integrity and sovereignty will mostly come from the ocean, including the South China Sea.2

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China balances economic, security and sovereign interests The Chinese approach to territorial disputes has never been a separate or isolated endeavor; rather it has always been subject to the more important imperatives of the time, either external or internal.3 The South China Sea is no exception in Beijing’s strategic thinking. Given the political, economic, and strategic importance of the South China Sea for China, many people in China may have wished to use assertive means to push for China’s interests in the area. However, in the past decade, there has been no major military conflict between China and other disputants over the South China Sea. China, on the one hand, held an obstinate position on its claim of sovereignty on all diplomatic occasions, took piecemeal actions to consolidate its presence in the South China Sea, and responded with stern warnings when other disputants acted against Chinese interests. On the other hand, Beijing felt that it had to address other more important goals in its foreign policy towards Southeast Asia, entailing quite a few significant changes in actual behavior. For instance, Beijing has changed its previous adamant insistence on bilateral talks to now gradually accepting multilateralism as an approach. It has signed the DOC. Although the DOC is not a treaty in the legal sense, it does serve as a moral restraint on the parties concerned. China’s signing of the DOC demonstrated to some extent its acceptance of norms to regulate issues concerning the South China Sea, no matter how primitive and informal the norms are. Together with the traditional “joint exploitation” proposal, the DOC indicated further compromise of the Chinese sovereignty claim. Also, by joining the TAC, China has legally committed itself not to use force against members of the ASEAN. The question that ought to be asked is why China would adopt these relatively more moderate policies. It is a question that is important not only to understand the history in the past decade, but also to have some clue for future development in the South China Sea. There are of course numerous reasons that one can come up with to answer the question. One factor that most observers can agree upon is insufficient capability of the PLA. This factor alone does not give us a satisfactory explanation though; after all, China did take forceful actions in 1974, 1988, and 1995 when its navy was far inferior. So, there must be other political or strategic concerns that compelled Beijing to act the way it did. At the risk of over-simplification, one can perhaps argue that three major factors played a crucial role in shaping China’s approach: the need for a peaceful neighborhood for domestic economic development, the importance of ASEAN, and the strategic pressures from other external powers. In the words of Chinese

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analysts, China needs to safeguard its national unification and maritime rights, but at the same time it also faces the task of avoiding potential conflicts with neighboring countries so as not to endanger China’s other strategic interests.4

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The weight of ASEAN in China’s foreign relations First of all, China’s less assertive behavior in the South China Sea in the past decade or so reflects Beijing’s overall concern of creating a peaceful and stable surrounding environment. It is no surprise that Chinese foreign policy became more pragmatic and less assertive roughly at the same time as China launched its domestic economic reform program in the late 1970s and early 1980s. Chinese leaders understood that a conflict-free neighborhood was essential for China to concentrate on domestic economic matters and engage the outside world in trade and other economic exchanges. The late Chinese leader Deng Xiaoping clearly linked peace and development in his grand design of China’s reform and opening-up drive. In the late 1970s, Deng for the first time stated China’s willingness to “shelve disputes and joint development” with the Japanese on the Diaoyu/Senkaku islands. In June 1986, during the visit to Beijing of the then Philippine Vice President Salvador Laurel, Deng proposed that “the South China Sea issue can be put aside at the moment. We will not allow this issue to hamper [our] friendly relations with the Philippines and other countries.”5 China’s caution in the South China Sea also had to do with the role of the ASEAN as a grouping. Although in reality ASEAN as a regional organization may have been more circumspect in dealing with Beijing on the South China Sea issue, Chinese analysts believe that ASEAN has been quite straightforward in putting pressure on China.6 In the Chinese accounts, ASEAN has lopsidedly supported its members that are disputants in the South China Sea, used various ASEAN-related forums to constrain China, and tried to drag external powers into the dispute. The pressures from ASEAN have been effective in changing Beijing’s attitude and behaviors in the South China Sea simply because ASEAN is too important for China to ignore or antagonize. Southeast Asia is the key area in China’s neighborhood essential for China’s goal of creating and maintaining a peaceful environment. Economically, Southeast Asia is also an important partner for China’s modernization. For many years, ASEAN has been China’s fifth largest trading partner. Up to 2005, ASEAN countries had invested in 26,000 projects in China, involving some $38.5 billion total investment.7 Southeast Asia has a fairly large amount of energy reserve and the cost of exploitation is relatively low, for instance, in Indonesia. Energy cooperation with Southeast Asian nations will be significant for China’s energy security. Southeast Asia is also a key region to forestall a US-led containment of China. By the mid-1990s, Beijing was convinced that its good relations with ASEAN were far more important than the benefits that an aggressive Chinese policy might get in the South China Sea region.8 A few concrete actions by ASEAN are frequently mentioned by the Chinese analysts. In February, 1992, China enacted its Law on the Territorial Sea and the

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Contiguous Zone, which states that the territorial land of China includes the Dongsha (Pratas) Islands, the Xisha (Paracel) Islands, and the Nansha (Spratly) Islands. At the ministerial meeting of 1992, ASEAN issued the Declaration on the South China Sea and stated that any adverse development in the South China Sea would directly affect the peace and security in the region. While urging all parties concerned to practice self-restraint, they also emphasized that no use of force should be allowed in any territorial or jurisdictional dispute in the region.9 These early actions by ASEAN put China on the defensive. At the 1992 ASEAN ministerial meeting, then Chinese foreign minister Qian Qichen reiterated China’s policy of “shelving disputes and joint development,” reassuring ASEAN countries that China values friendly cooperative relations with them and does not wish to see conflicts over the disputes.10 Beijing also believed that ASEAN supported the Philippines and Vietnam whenever there was a conflict between China and the two ASEAN members. The Mischief conflict in 1995 was quite destructive to China–ASEAN relations. Many Southeast Asian states were alarmed by China’s show of assertiveness. In March 1995, the Ramos government was able to obtain a statement from ASEAN, in which ASEAN foreign ministers expressed “serious concern” over developments in the South China Sea. The statement was a clear message to China that ASEAN had to be concerned with Chinese assertive actions in the South China Sea. Then, in April, during the first China–ASEAN Senior Officials Meeting, ASEAN again stated that the recent Chinese action affected the stability in the region and was not good for building trust between China and ASEAN. The Mischief issue was again raised at the second ARF meeting in August, 1995, and China, in the face of grievance from ASEAN, stated that it was willing to solve the South China Sea problem on the basis of UNCLOS. The Philippine leaders were happy that ASEAN had stood behind them and dealt with China with “unusually forceful terms” and “with one voice.”11 Starting from the mid-1990s, when Vietnam joined the ASEAN, Hanoi proved its preparedness to use ASEAN as a collective force to deal with China. According to Chinese analysts, Vietnam has been pursuing a three-pronged strategy. First, after becoming a formal member of ASEAN, Vietnam has tried to unite with other claimant states to put pressure on China. Second, after the signing of the DOC in 2002, Vietnam has launched new rounds of sovereignty claims in the South China Sea to play brinksmanship. Third, Vietnam has tried to involve other external powers, such as the United States, Japan, and India. Granting contracts to Western oil companies concerns Vietnamese economic interests, but more fundamentally it is a Vietnamese strategy to internationalize the dispute.12 China has felt the restraint on its actions in the South China Sea. On one hand, Beijing is aware that it simply cannot forego its sovereignty claim. On the other hand, if the situation gets out of control it will surely cause military conflicts with other claimant countries, which would lead to a tense situation in the South China Sea, a deterioration of China’s security in the neighborhood, and the rise of the “China threat” rhetoric in Southeast Asia. This is why Beijing has had to adopt some conciliatory policies towards Vietnam and the Philippines.

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In November 1994, during then Chinese President Jiang Zemin’s visit to Vietnam, China and Vietnam agreed to set up a joint working team to handle the bilateral disputes over the Spratlys. This team was set up in July 1995 and started talks on the Spratlys. In the China–Vietnam joint statement in 2000, the two sides vowed to continue to maintain the existing negotiations mechanisms to seek a durable solution acceptable to both sides. The two sides also agreed to cooperate on issues of maritime environmental protection, meteorology, and disaster prevention. After the Mischief conflict in March 1995, China and the Philippines held talks a few months later. The talks concluded with an eight-point joint declaration, which constitutes a “code of conduct” between the two claimant countries. The agreement included confidence-building and no use of force or the threat of force in solving disputes. In March 1999, during the Sino-Philippine meeting on “confidence-building measures in the South China Sea,” the two sides agreed to further expand their military dialogue and cooperation and build measures to avoid conflicts. At the third meeting in 2002, China and the Philippines reached ten points of understanding and consensus, confirming their willingness to build confidence measures. With regard to Malaysia, Beijing and Kuala Lumpur agreed on some principles in 1994 to solve the Spratlys dispute. In the framework paper on bilateral future cooperation signed by the two countries in May 1999, China and Malaysia noted that they will join hands to maintain peace and stability in the South China Sea. Beijing conceded to subsequent ASEAN pressures. In 1996, ASEAN foreign ministers meeting endorsed the idea of drafting a code of conduct, which was officially accepted in 1998 at the ASEAN summit. China reluctantly agreed to talk about a code of conduct in 1999. Strategic pressure from external powers The strategic presence of the United States in the region has also served as an effective deterrent against any Chinese assertiveness. In the post-Cold War era, the United States has always been a significant factor in China’s regional security. According to Chinese analysts, Washington has been intent on preventing the emergence of any other major power to challenge its global hegemony.13 That is why the US has made tremendous efforts to organize a potential or even de facto containment against China that stretches from the Korean Peninsula, Japan, and Taiwan, to Southeast Asia, including the South China Sea.14 According to Chinese analysts, the purpose of the US military redeployment and its enhancing of military ties with some regional states is to facilitate military intervention if necessary in the Taiwan Strait and the South China Sea.15 These pessimistic views are shared by top Chinese leaders. Former President Jiang Zemin, in an internal meeting, explicitly pointed out that the United States, although a country far away from China’s neighborhood, was a crucial player in influencing China’s security environment in the peripheral regions.16 Chinese observers maintain that historically the United States has always been involved in the South China Sea issue, as far back as the Southeast Asia

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Treaty Organization (SEATO).17 Beijing came to realize that, since the mid1990s, the US has changed its seemingly neutral position to some sort of active involvement. According to Chinese strategists, in a nutshell, the US has three purposes in its South China Sea policy: first, to use the South China Sea dispute as part of its strategy to contain China; second, to use the issue to strike a wedge in China–ASEAN relations; and third, to use the issue as an excuse to keep and strengthen its military presence in Asia Pacific to preserve its hegemonic position in the region.18 Chinese analysts believe that they have sufficient evidence to demonstrate US intention to be involved in the South China Sea. For instance, during the ASEAN ministerial meeting in 1995, then US Secretary of State Warren Christopher stated that the South China Sea dispute was one reason why the US needed to maintain a strong presence in Asia Pacific. The US proposed at the 1999 ARF Senior Officials Meeting to set up a working group to expedite the conflict resolution mechanism on South China Sea. In 2000, at the ARF Senior Officials Meeting, American participants again made the same proposal. The Visiting Troops Agreement between the Philippines and the United States declares that the US will be responsible for defending the Philippines. The new defense cooperation guidelines between Japan and the US implicitly incorporate Taiwan and the South China Sea into the sphere of their joint defense. China takes special note of the military exercises between Southeast Asian nations and the United States. One Chinese report mentions that in the five years prior to 2005, such joint exercises numbered over 30. In March 2004, the Balikatan (literally meaning shoulder-to-shoulder) exercise between the US and the Philippines for the first time was held at a location where China and the Philippines contend for sovereignty. It was also the first time that the objective of the exercise was targeted at defense against invasion by a third party instead of the previous goal of counter-terrorism.19 In the Chinese understanding, the influence of the US on the South China Sea issue has been followed by some Southeast Asian states, in particular Vietnam and the Philippines, to balance Chinese power in the South China Sea.20 According to Chinese analysts, since 2000, India has increased its activities in the South China Sea region, with the purpose of restraining China and is seeking China’s concessions on other important matters and to achieve its goal of being a maritime and a world power.21 In China’s view, Japan has also in recent years expanded its security influence from its main islands to encompass “peripheral areas” that may include the South China Sea. China has taken special notice of the expansion of Japanese naval influence in East Asia, for instance its participation in the Pacific Reach 2000 submarine rescue exercise. There is quite substantial evidence to show that Beijing has been worried about the internationalization of the South China Sea issue due to the involvement of these external powers. And the Chinese did try to limit the influence of other powers in the South China Sea. In November 1999, when the Philippines announced a joint military exercise with the United States near the Spratlys, the Chinese ambassador in Manila immediately opposed the plan. In the process of

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drafting the code of conduct, China proposed that some measures needed to be adopted to limit US involvement in the South China Sea, but ASEAN preferred to keep the option open for military exercises.22 During the negotiations for a code of conduct, the Chinese insisted that disputants should refrain from conducting military exercises at the Spratlys and the adjacent waters that had other countries as their presumed targets.23 Beijing also wanted to ban military patrols in the Spratlys area. While attending the 7th ARF, China’s Foreign Minister, Tang Jiaxuan, raised his country’s concern over the increase in the number of US joint military exercises in the region, saying it was a negative development that was undermining efforts to build confidence and was deleterious to the region’s security and stability.24 In response to the US’s strategy of dominance and its heavy-handed approach to China, Beijing felt that it could not take the risk of being assertive in the South China Sea. For instance, since 1992 ASEAN had attempted to persuade China to engage in a multilateral approach, but China did not respond positively. The multilateral approach was reached in November 2002 when the DOC was signed. China, being a stronger power versus other ASEAN countries, did not have the incentive to agree to a multilateral approach until the United States took part in the balance of power game over the South China Sea. In the meantime, Beijing began to take proactive measures, changing its previous tactic of using economic measures only to using both economic and political tools. China has adopted two strategies on the South China Sea issue, according to a Chinese analyst. First, Beijing has tried to convince ASEAN nations, through concrete actions, of China’s respect for its smaller Southeast Asian neighbors, understanding of their concerns, and wish to help with their needs. Second, China has openly and formally accepted various legal responsibilities and political commitments through signing various treaties or documents to show to ASEAN states that China was willing to practice self-restraint.25 A milestone in China’s policy over the South China Sea was its signing of the DOC with ASEAN in 2002. Chinese analysts maintain that by signing the DOC, China demonstrated its political sincerity to act as a responsible major power. It also, to certain extent, mitigated relevant countries’ misgivings about China’s seeking hegemony in the South China Sea, which in turn was a big blow to the “China threat” thesis.26 After the signing of the DOC, Chinese Vice Foreign Minister Wang Yi proclaimed: signing the declaration is positive in that it sends a clear signal to the outside world: parties in the region are completely capable of properly handling their existing differences through dialogue and maintaining peace and stability in the South China Sea region through cooperation.27 Through these actions, confidence building, improving relations with members of the ASEAN, and openly supporting freedom of navigation, China aimed to give the United States no excuse to intervene and sent a political signal to Washington that China and various ASEAN countries can cooperate in finding a political solution to the disputes and they do not need the US “help.”28

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New regional and domestic dynamics and possible future trajectory

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A central question that we ought to ask is whether the Chinese interest-balancing approach, which carries with it some moderation and relative restraint, is sustainable. This part of the chapter tries to examine China’s views on some of the positive developments that have taken place, China’s perceptions of the larger strategic context, and the role of local Chinese governments. Beijing expects status quo Apparently, China is quite happy with the latest developments in the South China Sea. Despite its initial reluctance to join the negotiations and many objections in the process, Beijing feels that the DOC was the best deal that could be reached with other claimant states. The official newspaper, People’s Daily, proclaimed: The Declaration, the first political document on the South China Sea between China and ASEAN, has positive implications for China to maintain its sovereign rights, maintain peace and stability in the South China Sea region, and enhancing mutual confidence between China and ASEAN.29 Beijing believes that the DOC, although simply a declaration of principles that have no legally binding force, should at least curb or restrain other states from expanding their physical presence and resource exploitation in the South China Sea. Beijing was also quick to use the DOC to censure Vietnam. In early 2004, when it was reported that Vietnam was planning to organize tourist activities in the South China Sea, Chinese foreign ministry spokesman Kong Quan referred to the DOC, saying that “we expect the party concerned to respect the bilateral consensus, respect the principles stipulated in the DOC, . . . and avoid any action that might lead to further complication of the situation.”30 In May the same year, when Vietnam started to construct an airplane runway on one island under its occupation, both China and the Philippines demanded Vietnam to observe the principles of the DOC.31 During the 11th China–ASEAN Senior Officials Meeting in April 2005, China and Vietnam agreed to hold a working meeting on implementing the DOC.32 “Shelving disputes and joint development” continues to be the favored approach by China, as illustrated in Beijing’s attitude toward the newly reached trilateral agreement among China, the Philippines, and Vietnam. According to Chinese reports, to facilitate the conclusion of the Sino-Philippine deal in 2003, China offered a monetary swap arrangement with Manila in case of financial crisis and made a preferential loan of US$500 million to the Philippines.33 According to Chinese Deputy Foreign Minister Wang Yi, “the deal actually symbolizes new progress in China’s relations with ASEAN. It also signals a new level of trust between the two parties.”34 Later, Vietnam joined the agreement and the three parties agreed to conduct seismic surveys to prospect for petroleum

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resources in parts of the South China Sea. The project has been hailed as a success story of China’s “joint development” proposal: Chinese foreign ministry spokesman, Liu Jianchao, said that the trilateral cooperation was an important measure in implementing the DOC and an important contribution to the stability and development of the South China Sea region.35 The Chinese ambassador to the Philippines, Wu Hongbo, noted that China also welcomes other parties involved in the South China Sea issue to participate in the joint venture.36 While feeling positive about the latest developments among parties concerned, Chinese analysts believe that other claimant countries are still using their previous strategies, using ASEAN to put pressures on China at ARF and Asia–Europe meetings and at the same time dragging in other external powers to deter Chinese aggression.37 A Pan-Tonkin Gulf or Pan-South China Sea economic zone? In addition to the Chinese views on the regional and international dynamics mentioned above, it is also useful to examine the role of some local Chinese governments,38 who are passionately pushing for further economic interdependence with Southeast Asia. Chinese analysts believe that closer economic and political ties will reduce the likelihood of open conflicts over the South China Sea and other claimant countries may be more likely to agree to the Chinese proposal of “shelving disputes and joint development,”39 as the Sino-Philippine deal on energy exploration has demonstrated. On the part of China, it is also worthwhile to focus on local provinces to understand some of the new developments that may have a direct bearing on the South China Sea. Local provincial actors, Yunnan, Guangxi, and Hainan, have played an important role in shaping China’s relations with ASEAN countries. Yunnan played a pivotal role in initiating many of the proposals in regard to China’s relations with other continental ASEAN countries, for instance, in the Greater Mekong sub-region cooperation. Guangxi and Hainan are now stepping up efforts to match and compete with Yunnan in drawing more attention, support, and preferential policies from the central government under the framework of China–ASEAN business ties. Originally, Guangxi was proposing a Tonkin Gulf Regional Economic Cooperation Zone to include China’s Guangxi, Guangdong, and Hainan provinces, and Vietnam. Starting in early 2006, Guangxi began to push for a Pan-Tonkin Gulf Economic Cooperation Zone to include parts of China’s southwest and southeast regions, Vietnam, Thailand, Cambodia, Malaysia, Singapore, Indonesia, the Philippines, and Brunei.40 Under the proposed Pan-Tonkin Gulf Zone, China and ASEAN would pursue a physically M-shaped economic cooperation structure: Mekong sub-region, Nanning to Singapore corridor (mainland economic cooperation), and the Pan-Tonkin Gulf Zone (maritime economic cooperation). Former Guangxi Party leader Liu Qibao proposed that the PanTonkin Gulf Regional Economic Zone be officially incorporated into the ASEAN–China cooperation. China’s trade with the other six countries reached

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$130 billion in 2006, accounting for 81.3 percent of China’s total trade with ASEAN.41 The proposal has won approval from other regional state leaders, including Singapore, Malaysia, the Philippines, and Vietnam.42 The scheme has received the support of top Chinese leaders and been approved by the State Council. During an inspection visit to Guangxi in August 2007, President Hu Jintao encouraged Guangxi to further open up and take full advantage of its maritime position to push for multilateral economic cooperation beyond the Tonkin Gulf.43 Chinese Premier Wen Jiabao mentioned that the Chinese government would actively explore the feasibility of the Pan-Tonkin Gulf regional cooperation both at the memorial China–ASEAN summit in November 2006 and at the tenth China–ASEAN summit in January 2007. Hainan Province, the largest special economic zone in China, is also stepping up efforts to benefit from China–ASEAN economic ties. Hainan has made it clear that its local economic future will have to depend on the South China Sea. Hainan delegates to the National People’s Congress in 2002 proposed that China should have an overall comprehensive plan for the South China Sea in its national economic development agenda and support the development of the South China Sea.44 The Hainan government has proposed that by 2010 its maritime economy should reach 32.5 billion yuan, double that of 2003, and by 2020, three times that of 2003. A key part in achieving this strategy is to rely on the oil and gas resources in the South China Sea.45 At the 2005 Boao Asia Forum, Hainan provincial leader Wei Liucheng stated that Hainan, with a focus on petroleumrelated industries, would like to play an active role in pushing for energy cooperation in the South China Sea and provide a platform for dialogue on energy issues in the South China Sea.46 Fearing being marginalized by other economic cooperation schemes, Hainan has also quickened its steps to come up with alternative proposals. More recently, the China South China Sea Institute, based in Hainan, proposed to set up a Pan-South China Sea regional economic cooperation organization to include China’s Pan-Pearl River Delta region, Taiwan, and six other neighboring states, including Indonesia, Malaysia, Singapore, Vietnam, the Philippines, and Brunei. If this organization is created, it will cover a land area of nearly five million square kilometres and 3.5 million square kilometres of sea area; it will have a population of 850 million people, and a total GDP of $1.72 trillion, and nearly $2 trillion of international trade.47 The Hainan proposal is still embryonic. It is unlikely to emerge as a policy at the national level to be supported by the central government, because the Guangxi proposal has already received the approval of Beijing and other countries in principle. More importantly, the Pan-Tonkin Gulf scheme is perceived to be helpful in facilitating the economic growth of many other regions and provinces in China.48 The Pan-Tonkin Gulf cooperation plan, if substantively launched and fully implemented, would be very significant for the security situation in the South China Sea. This is so because the envisioned cooperation would turn the South China Sea into a kind of “internal lake” of the international economic zone. For the regional cooperation scheme to function smoothly, international security coop-

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eration among these countries, particularly those involved in the South China Sea controversy, has to be the prerequisite. More importantly, in the proposed cooperation plan, there are quite a few areas that directly deal with the South China Sea, for instance, a network of ports surrounding the South China Sea, and cooperation in fishery, maritime energy, maritime environment, and tourism around the South China Sea. The realization of any of these functional areas means a major breakthrough in the South China Sea issue among claimant states. According to Zhai Kun, a senior analyst at the China Institute of Contemporary International Relations, the emergence of the Pan-Tonkin Gulf Zone will help initiate China–ASEAN dialogue and cooperation in maritime affairs and will serve as a platform for communication and coordination among various parties in the South China Sea.49 Likewise, in late 2006 CCP Politburo member Li Changchun commented that the fulfilment of the Pan-Tonkin Gulf cooperation plan would be beneficial not only to the China–ASEAN free trade area, but also to cooperation in joint exploitation of resources in the South China Sea between China and other relevant parties.50

Conclusion In the post-Cold War era, while there have been quite a number of military conflicts in many parts of the world, the South China Sea, often believed to be one of the most volatile hot spots, did not witness a fully fledged or large-scale military confrontation, although there have been numerous disputes concerning consolidation of existing presence, fishery, exploitation of resources under the seabed, and environmental protection. Parties involved in the South China Sea issue have been primarily engaged in diplomatic polemics. The absence of major conflict can be explained by many factors, among which the Chinese approach of balancing its sovereignty, development, and security interests has to be given credit. Given the perceived importance of the South China Sea to China’s political, economic, and security interests, many people in China may have wished their government to be more assertive. But circumstances dictated that Chinese decision-makers be more cautious. Beijing essentially placed the South China Sea issue under the larger strategic context in order to achieve other important foreign policy and security goals. China eventually realized that a non-confrontational approach with ASEAN serves national interests better. The perceived presence and involvement of other major powers, voluntary or pulled by other claimant states, has also played an important role in shaping Beijing’s calculated moderation. Beijing realized that because of strong interests from other external powers, in particular the United States, any assertive action in the South China Sea by China would only result in a worsening of the security environment for China. Beijing may not be happy about the fact that it still has the smaller presence in the Spratlys and that it has not been able to dictate recent developments on the South China Sea. Instead, Beijing has often found itself on the defensive. China has scrupulously accepted those declaratory, moral, political, and even legal commitments on the premise that those commitments should not fundamentally

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challenge the bottom line of Chinese sovereignty in the South China Sea. These commitments will not easily lead to a resolution of the issue any time soon, but they do make it harder for China to use coercive means to achieve its interests in the South China Sea in the near future. China still sees the existence of those domestic, regional, and international restraining factors. Coupled with that, local governments in China have made some proposals for regional economic cooperation that would have a profound impact on the South China Sea. The South China Sea would essentially become an “internal lake” of various regional economic zones. With this kind of economic integration, if ultimately realized, together with China’s expressed willingness to accept a formal code of conduct and the intention to expand the “joint development” scheme, we can perhaps have some reason to be optimistic about stability in the South China Sea at least in the near future.

Notes 1 Shee Poon Kim, “The South China Sea in China’s Strategic Thinking,” Contemporary Southeast Asia 19, 4 (March 1998), pp. 369–387. 2 Liu Zhongmin, “Zhongguo haiquan fazhan zhanlue wenti de ruogan sikao” (Some thoughts on the development of China’s maritime power), Journal of Foreign Affairs University 80 (February 2005), pp. 69–74. 3 M. Taylor Fravel, “Regime Insecurity and International Cooperation: Explaining China’s Compromises in Territorial Disputes,” International Security 30, 2 (Fall 2005), pp. 46–83. 4 “Zuzhi nansha yuye shengchan weihu guojia haiyang quanyi” (Organize fisheries in the Spratlys and safeguard the national maritime rights), Zhonguo yuye bao (China Fishery Newspaper), April 3, 2006; Tian Xinjian and Yang Qing, “Zhengque renshi he chuli zhongguo yu dongmeng de haiyang quanyi zhengduan” (Correctly understand and handle the maritime disputes between China and ASEAN), Zhongguo Haiyang Bao (China Ocean Newspaper), June 14, 2005. 5 Wang Chuanjun, “Zhong fei yue dapo jiangju kaifa nanhai” (China, the Philippines, and Vietnam break the deadlock to jointly exploit the South China Sea), Huan qiu shi bao (Global Times), March 16, 2005. 6 Most Chinese analysts believe that ASEAN has been intent on putting pressure on China on the South China Sea issue. See for instance, Zhao Ruiling, “Dongmeng dui nan zhongguo hai wenti de jieru ji qi xiaoji yingxiang” (ASEAN’s interference in the South China Sea issue and its negative impact), Journal of PLA University of Foreign Languages 25, 6 (November 2002), pp. 110–113. 7 Wang Qing, “Zhuanjia: zai dong nan ya xiujian xin de nengyuan yunshu tongdao” (Expert opinion: building a new energy transportation line in Southeast Asia), First Financial and Economic News Daily, October 31, 2006. 8 Tian Xinjian and Yang Qing, “Zhengque renshi he chuli zhongguo yu dongmeng de haiyang quanyi zhengduan” (Correctly understand and handle China’s disputes with ASEAN on maritime rights), Zhongguo haiyang bao (China Ocean Newspaper), June 14, 2005. 9 Wu Shicun and Ren Huaifeng, “More Than a Declaration: A Commentary on the Background and the Significance of the Declaration on the Conduct of the Parties in the South China Sea” Chinese Journal of International Law (2003), pp. 311–320. 10 “Zhu Rongji zhongli chuxi dongmeng youguan huiyi he fangwen jianpuzhai qu de chenggong” (Premier Zhu Rongji’s participation in ASEAN-related meetings and visit to Cambodia successful), People’s Daily, November 5, 2002.

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11 Ian James Storey, “Creeping Assertiveness: China, the Philippines and the South China Sea Dispute,” Contemporary Southeast Asia 21, 1 (April 1999), pp. 95–118. 12 Gu Yu, “Waijiao boyi nanhai shiyou” (The diplomatic game over oil in South China Sea), Ya tai jingji shi bao (Asia-Pacific Economic Times), October 29, 2004. 13 Zhang Xin, “Jingti! Meiguo zai baowei zhongguo” (Be vigilant: the US is encircling China), Dong ya jingmao xinwen bao (East Asian Economic and Trade News), July 7, 2000. 14 Wu Guangyi, “Zhongguo zhoubian anquan de jiyu yu tiaozhan” (Challenges and opportunities in China’s security in neighboring retions), Bulletin of China Academy of Social Sciences (December 28, 2004). 15 Chen Liuning, “Jiedu meiguo dong nan ya zhanlue tiaozheng” (Interpreting US strategic readjustments in Southeast Asia), Shijie bao (The World), May 31, 2005. 16 Jiang Zemin, Selected Works of Jiang Zemin, Vol. 3 (Beijing: People’s Press, 2006), p. 318. 17 Zhang Mingliang, “Cong dong nan ya jiti fangwu tiaoyue kan meiguo de nan zhongguo hai zhengce” (US South China Sea policy as seen in the Southeast Asian Collective Defense treaty), Southeast Asian Studies 6 (2004), pp. 47–50. 18 Qiu Danyang, “Zhong fei nansha zhengduan zhong de meiguo yinsu” (The US factor in China–Philippine Spratlys contention), Contemporary Asia-Pacific 5 (2002), pp. 44–48. 19 Luo Li and Yuan Shulin, “Zhongguo guojia anquan zhong de nanhai wenti chu tan” (A tentative analysis of the South China Sea issue in China’s national security), Journal of Jinan University 114, 1 (2005), pp. 7–11. 20 Wei Hong, “Meiguo yinsu dui zhongguo yu dongmeng guanxi de yingxiang,” Nanyang wenti yanjiu (Southeast Asian Affairs) 1 (2006), pp. 10–15. 21 Wang Chen, “Yindu jiaqiang zai nan zhonguo hai diqu de huodong ji wo guo de duice” (India’s increasing activities in the South China Sea and China’s counter strategy), The World Economic and Political Forum 1 (2001), pp. 63–65. 22 Li Jinming, “Cong dongmeng nanhai xuanyan dao nanhai gefang xingwei xuanyan” (From ASEAN declaration on the South China Sea to the Declaration on the Conduct of Parties in the South China Sea), Dong nan ya (Southeast Asia) 3 (2004), pp. 31–36. 23 Leszek Buszynski, “ASEAN, the Declaration on Conduct, and the South China Sea,” Contemporary Southeast Asia 25, 3 (December 2003), pp. 343–362. 24 Yang-huei Song, “The Overall Situation in the South China Sea in the New Millennium: Before and After the September 11 Terrorist Attacks” Ocean Development and International Law 34 (2003), pp. 229–277. 25 Zhang Xizhen, People’s Daily, October 9, 2003. 26 Nu Anping, Zhongguo canjing xinwen bao (China Industrial and Economic News), March 2, 2004. 27 Li Jinming, “Cong dongmeng nanhai xuanyan dao nanhai gefang xingwei xuanyan” (From ASEAN declaration on the South China Sea to the Declaration on the Conduct of Parties in the South China Sea), Dong nan ya (Southeast Asia) 3 (2004), pp. 31–36. 28 Shi Jiazhu, “Nanhai jianli xinren cuoshi yu quyu anquan” (Confidence-building measures in South China Sea and regional security), Guoji guancha (International Observation) 1 (2004), pp. 42–47. 29 Mi Ligong and Zhang Ruiling, “Zhongguo yu dongmeng qianshu nanhai ge fang xingwei xuanyan” (China and ASEAN sign the DOC), People’s Daily, November 5, 2002. 30 People’s Daily, March 26, 2004. 31 Zhang Mingliang, “Nan zhongguo hai: hezuo zhi hai ruhe hezuo” (South China Sea: how to cooperate on “the sea of cooperation”), Shijie zhishi (World Knowledge) 18 (2006).

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32 Wei Yudong, “Di shi yi ci zhongguo-dongmeng gaoguan chuoshang juxing” (The 11th China–ASEAN Senior Officials Meeting held), People’s Daily, April 30, 2005. 33 Chen Ting, “Zhong fei kaifa nan zhongguo hai xieyi qianshu” (China and the Philippines sign South China Sea exploitation agreement), 21st Century Economic Reports, November 13, 2003. 34 Wu Shicun and Ren Huaifeng, “More Than a Declaration: A Commentary on the Background and the Significance of the Declaration on the Conduct of the Parties in the South China Sea,” Chinese Journal of International Law (2003), pp. 311–320. 35 Zhou Lei, “Zhongguo licu nanhai hezuo shi zhi chengwei youyi zhi hai” (China endeavors to make the South China Sea into a sea of friendship), People’s Daily, March 16, 2005. 36 Wang Chuanjun, “Zhong fei yue dapo jiangju kaifa nanhai” (China, the Philippines, and Vietnam break the deadlock to exploit the South China Sea), Huan qiu shi bao (Global Times), March 16, 2005. 37 Luo Li and Yuan Shulin, “Zhongguo guojia anquan zhong de nanhai wenti chu tan” (A tentative analysis of the South China Sea issue in China’s national security), Journal of Jinan University 114, 1 (2005), pp. 7–11. 38 One study has shown the usefulness of focusing on local provincial actors in China–ASEAN relations. Daojiong Zha, “Localizing the South China Sea Problem: The Case of China’s Hainan”, Pacific Review 14, 4 (2001), pp. 575–598. 39 Wen Wen and Li Peng, “CAFTA jianli guocheng zhong de jiyu he tiaozhan” (Opportunities and challenges in the course of CAFTA establishment), Cai jing jie (The Financial World) 2 (February 2006), pp. 224–225. 40 Chen Shanzhe, “Fan beibuwan: zhongguo-dongmeng M xing zhanlue gouxiang” (Pan-Tonkin Gulf: the M shape strategic proposal for China and ASEAN), 21st Century Economic News, July 28, 2006. 41 Lianhe zaobao (Singapore), July 27, 2007. 42 Liu Kun and Yang Rong, “Bei bu wan (guangxi) jingji qu jianshe jishi” (A factual account of the Tonkin Gulf (Guangxi) economic zone construction), Guangming Daily, January 18, 2007. 43 Gu Xiaosong (ed.), Report on the Cooperation and Development of Pan-Beibu Gulf Area (Beijing: Social Sciences Academic Press, 2007), p. 1. 44 “Jin nian renda shoudao she hai yi’an er shi si jian” (People’s Congress receives 24 sea-related proposals this year), Zhongguo haiyang bao (China Oceans Newspaper), March 19, 2002. 45 “Hainan yao ba haiyang jingji zuo da” (Hainan to expand marine economy), Zhongguo jingji dao bao (China Economic Herald), September 20, 2005. 46 Chen Faqin, “Hainan sheng shengzhang Wei Liucheng: dajian nanhai nengyuan hezuo duihua pingtai” (Hainan provincial governor Wei Liucheng: to set up a platform for energy cooperation and dialogue in the South China Sea), Economics Daily, April 24, 2005. 47 Tan Lilin, “Zhongguo nanhai yanjiu yuan xin liang yi zhang ‘nanhai pai’ ” (China South China Sea Institute casts a new card on South China Sea), Hainan Daily, 9 Janurary 2007. 48 Author’s interviews with local officials and scholars in Hainan, November 2007. 49 Chen Shanzhe, “Fan beibuwan: zhongguo-dongmeng M xing zhanlue gouxiang” (Pan-Tonkin Gulf: the M shape strategic proposal for China and ASEAN), 21st Century Economic News, July 28, 2006. 50 Gu Xiaosong (ed.), Report on the Cooperation and Development of Pan-Beibu Gulf Area (Beijing: Social Sciences Academic Press, 2007), pp. 1–2,

10 China and joint development in the South China Sea An energy security perspective

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Introduction If one were to trace the origins of the proposal to conduct joint development in the South China Sea by China, one could go back to the days of Deng Xiaoping in the late 1970s. By then China under Deng was faced with quite a number of territorial disputes, including the ones with Japan in the East China Sea and the much more complicated ones with some Southeast Asian states in the South China Sea. While China insists that it has “indisputable” sovereignty rights over the territories, Deng was pragmatic enough to indicate that China was prepared to put off the territorial disputes for the sake of peace, development, and friendship. Chinese analysts would suggest that the idea of shelving the disputes was first mooted by Deng in response to a question on the Sino-Japanese conflict over the Diaoyu Islands (Senkaku Islands in Japanese) at a Tokyo press conference in late 1978.1 Later on, in early 1984, Deng suggested for the first time that in trying to resolve territorial disputes, the countries concerned should “jointly develop the disputed areas before discussing the question of sovereignty” in a talk with a delegation from the Center for Strategic and International Studies of Georgetown University in Washington, DC.2 More importantly, Deng proposed in a speech at the third plenary session of the Central Advisory Commission of the Communist Party of China in October 1984 that “new solutions to international disputes be devised to meet new situations and new problems.”3 Following the principle to resolve disputes by peaceful means, he suggested that the policy of “one country, two systems” could be adopted in some cases and the policy of “joint development” in others.4 For the former policy, it would be applied to Hong Kong and Taiwan and for the latter, the Spratly Islands in the South China Sea. It should be noted that Deng made an effort to elaborate on this “joint development” proposal in the same speech by recalling that he had suggested at a press conference during his visit to Japan in 1978 that China and Japan could put off the sovereignty dispute over the Diaoyu Islands and jointly develop the disputed areas. He said that the joint development of the disputed islands between Japan and China would be for things like prospecting for undersea oil,

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for mutual benefit. In the case of the Spratly Islands, he insisted that they belong to China but noted that Taiwan had occupied one of them and that the Philippines, Vietnam and Malaysia had taken a few. Deng continued by asking what could be done in the future. Interestingly, his answer was that one solution was for China to claim back all these islands by force and the other was to shelve the sovereignty problem and jointly develop the area.5 According to Deng, since China preferred and hoped to use peaceful means to resolve disputes, he would opt for “joint development” for the Spratly Islands, or for that matter, “one country, two systems” for Hong Kong and Taiwan.6 Like many sayings and suggestions from China’s paramount leaders, this proposal of “shelving the disputes and conducting joint development” in contested areas by Deng has become the guiding principle or policy for China in dealing with territorial conflicts in the South China Sea. It is the purpose of this chapter to examine the practice of this proposal by China. Since initial signs for joint development only surfaced at the turn of the century, the analysis would mainly be on China’s role and thinking in the twenty-first century. Quite obviously, one of the major concerns, if not the major concern, of China and the other claimants is oil and gas in the South China Sea when coming to joint exploitation and exploration of resources. Therefore, the analysis on joint development given here will concentrate on energy security with special reference to China. This chapter will scrutinize not only the views from China but also Chinese concerns and problems in putting joint development, especially that of oil and gas reserves, into practice. Finally, the chapter will address the question of whether joint development with special reference to oil and gas exploration and exploitation in the South China Sea will take off eventually. As a backdrop to the analysis, it would be useful to note very briefly China’s progress, or the lack of it, in implementing Deng’s suggestion for the Spratly Islands before the turn of the century.

Follow-up actions With Deng’s proposal for joint development, China’s leaders as a whole followed essentially the same suggestion in their encounters with other claimant states of the South China Sea. Thus, Deng himself conveyed this to the Philippines in his meetings with Foreign Secretary Romulo and President Aquino in 1986 and 1988 respectively.7 In addition, Li Peng, then Premier of China, made the same proposal on behalf of the Chinese government during his visit to Singapore in 1990. Last but not least, when Qian Qichen, then China’s Foreign Minister, began to join the ASEAN dialogue processes in the 1990s, he also delivered the same message about managing the disputes.8 From all indications, post-Deng leaders have also adhered to the same guiding principle. Notably, President Jiang Zemin, when he attended the Second Informal ASEAN Summit in Kuala Lumpur in December 1997, stated that if differences between China and ASEAN could not be resolved for the time being, they should be shelved temporarily in order to seek common ground.

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The Joint Statement signed by China and ASEAN at this summit declared that both sides agreed “not to allow existing differences to hamper the development of friendly relations and cooperation.”9 The most important move taken by the post-Deng leaders is no doubt the signing of the Declaration on the Conduct of Parties in the South China Sea with ASEAN in Phnom Penh in November 2002. While the Declaration is not legally binding, it does state that “the parties concerned may explore or undertake cooperative activities” in a number of areas, pending the settlement of the disputes and that China and ASEAN would work on the adoption of a code of conduct in the South China Sea.10 A joint working group which will help translate the provisions of the Declaration into cooperative activities was set up in December 2004 by the senior officials from China and ASEAN.11 It must be noted that all these were basically statements of intent and that concrete measures for Sino-ASEAN joint development of the South China Sea remain elusive, in spite of the numerous proposals put forward by various parties, notably those suggested by the informal workshop on “Managing Potential Conflicts in the South China Sea” hosted by Indonesia in the 1990s.12 In the meantime, it should also be noted that while the intention to look into cooperative activities has been expressed by the claimants, the developments in the South China Sea in the 1980s and 1990s did not augur well for joint development. There was competition among the claimants to consolidate their hold on what they could claim by constructing airstrips, lighthouses, fishing ports, and organizing sightseeing tours on some of the islands and atolls. They also started to prospect for oil and gas in cooperation with foreign oil companies in their own coastal waters nearby. As far as China and the Spratly Islands were concerned, Beijing managed to establish its presence in the area for the first time from the later 1980s. Thus, it clashed with Hanoi near Johnson Reef and took control of several reefs and islets subsequently in 1988. In addition, it seized Mischief Reef, also claimed by the Philippines, in 1995 and consolidated its hold in 1998 in spite of a 1995 bilateral code of conduct between Beijing and Manila. China also consolidated its hold on the Paracels, a group of islands and reefs that it took over in 1974 by ousting the South Vietnamese. It has stationed troops on Woody Island, the largest island in the group. A runway on the island has also been built.13 Although the overall political climate between China and ASEAN had improved for the better by the turn of the century, as analyzed later on, China’s determination to press on with its sovereignty claims over the South China Sea by all possible means remains unabated. A tourism development plan for the South China Sea, including visits to the Paracels, was reportedly approved in 2007.14 Administratively speaking, the Paracels and Spratlys are parts of Hainan province in China. In an apparent move to upgrade the importance of the South China Sea and its islands, a new county-level city, Sansha, was created, with its base in Woody Island, in late 2007. According to the official website of Sansha City, the new administrative unit was set up by China’s State Council in November 2007. It covers the Paracels, the Spratlys, and Macclesfield Banks.15

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Changing political atmospherics in Sino-ASEAN relations While the South China Sea had been a thorny issue in Sino-ASEAN relations, it should not be taken as a bone of contention that could upset the agenda of China, or for that matter, ASEAN, for working closely with each other. In fact, overall Sino-ASEAN relations have improved since the 1990s. As part of its strategy to focus on its own development, notably the Four Modernizations, China has been emphasizing in its foreign policy the importance of having friendly neighbors. As such, Southeast Asia and ASEAN, the regional organization encompassing all the Southeast Asian states, would naturally be an important area not only for economic purposes but also for security reasons.16 ASEAN has also made a deliberate effort to engage China starting with the invitation to China’s Foreign Minister Qian Qichen to attend the ASEAN Foreign Ministers’ Meeting as a guest in 1990. Eventually, China became a member of the ASEAN Regional Forum (ARF), a dialogue partner of the ASEAN Post Ministerial Conference (PMC) and a member of the ASEAN Plus Three (APT) process in the 1990s. For ASEAN, it is important and useful to engage China in security dialogues and bank on its Four Modernizations. In fact, it is meaningless for ASEAN to talk about security without the presence of the Chinese. Apparently, China was receptive to ASEAN’s overtures. In spite of its penchant for bilateralism, it has been willing to take part in numerous ASEAN’s multilateral processes. From all indications, it is particularly comfortable with the ASEAN way. The emphasis on the consensual approach and noninterference in domestic affairs suits China well. The consensual approach allows China to tread gradually in security matters and veto any move that could be seen to be moving too fast or detrimental to its national interests. Obviously, the principle of non-interference in internal affairs coincides with China’s religious belief in the practice. China may also find its relations with ASEAN more manageable, unlike its relations with the US and other actors in international politics. And it seems that ASEAN has given due respect to the place of China in the Asia Pacific. China has therefore had no problem in supporting ASEAN as the driving force of the ARF, APT, and later on, the East Asian Summit and the proposed East Asian Community. It remains to be said, however, that while taking part in ASEANled multilateralism, China emphasizes that territorial claims of the South China Sea should not be discussed in such forums or meetings for fear of internationalizing the conflicts. Nonetheless, it is not against the discussion of issues related to peace and stability in the area in such international and regional meetings.17 In addition, it should be noted that China has been seen to be helpful to ASEAN in the area of finance and economics. Notably, it did not devalue the yuan after the Asian financial crisis so as to lessen the economic and financial challenges to some of its East Asian neighbors. More importantly, China made a deliberate effort to enhance closer trade and investment relations with ASEAN which was not really a major economic partner of China especially when compared with the US, Japan, and the European Union. In this regard, the percent-

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age of China’s overall external trade with ASEAN was increased from single to double digits (11 percent) by 2003. Most importantly of all, China, under then Premier Zhu Rongji, was the first state to sign the Framework Agreement for Comprehensive Economic Cooperation in November 2001 to establish a free trade area, namely, the ASEAN–China Free Trade Area (ACFTA) in ten years. In the area of security, it seems more was done by China with ASEAN at the turn of the century. This was demonstrated by, among other things, the signing of the Joint Declaration of China and ASEAN on Cooperation in the Field of Non-Traditional Security Issues, and, more related to this chapter, the Declaration on the Conduct of Parties in the South China Sea. Moreover, China was the first extra-regional power to accede to the Treaty of Amity and Cooperation in Southeast Asia in 2003 and became ASEAN’s strategic partner by signing the Joint Declaration of the Heads of State/Government of the ASEAN and the PRC on Strategic Partnership for Peace and Prosperity in the same year. Last but not least, consultations are being conducted to see if China could accede to the Protocol to the Treaty on Southeast Asia Nuclear Weapons Free Zone. Although the above agreements on security may take time to bear fruit, they do demonstrate that China is prepared to work with ASEAN and vice versa by putting aside past differences and trying to work together for cooperative security. It can also be seen that, in spite of the fact that ASEAN is not a major power and there is competition for foreign investments and markets between China and ASEAN, Beijing is making a deliberate political and strategic move to emphasize and elevate the importance of ASEAN. China is using its newly gained economic strength to bring ASEAN into its power ambit and, if possible, to wean ASEAN off its heavy reliance on the West, particularly, the US. If that is the case, to what extent and in what way, if at all, will this propel China to actualize joint development with other ASEAN claimants in the South China Sea in the twenty-first century? Initial signs show that China may be inching into joint development with other claimants to prospect for oil and gas. This was demonstrated by the joint venture proposal between China and the Philippines in the Spratlys in 2004 and that between China and Vietnam in the Beibu Gulf starting in 2005. More importantly, perhaps, China has agreed with the Philippines and Vietnam to conduct seismic surveys in parts of the Spratlys for three years starting from 2005. Will these initial joint development projects help launch cooperative ventures for mutual benefit? With reference to the joint prospecting for oil and gas with other claimants, or for that matter, energy security in the South China Sea, what are the views and worries of Beijing under the new regional and international environment as analyzed earlier?

Chinese views and concerns Following the policy of “shelving the disputes, conducting joint development” in dealing with the Spratly Islands, as noted above, two broad consensuses seem to have surfaced within post-Deng China. One is that China has “indisputable”

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sovereignty rights over the South China Sea from the perspectives of history and international law.18 The other is that, on condition that it would stick to its sovereignty claims if and when they were raised, China considers joint development as the most viable policy to address the Spratly disputes.19 For the latter consensus, it should be noted it is a very general and vague guide and that there could be different views on it, some more subtle than others, within China. In this regard, it would be useful to examine the views of the central leadership from the Chinese Communist Party (CCP) and the state under its direction, the military, selected local governments, and major oil companies in China. While the central leadership plays the major role in deciding and adjusting China’s policy towards the South China Sea issue, and other actors like the military, local governments, and oil companies follow suit, these other actors may at times express views, ideas, or concerns that could influence central policy making. Since initial moves towards joint development are primarily in the field of energy, the analysis of the remaining part of the chapter concentrates on China’s views on energy, with special reference to those related to energy security. The central leadership has at least two major concerns with regard to the energy security ramifications of the South China Sea on China. One is related to China’s surging appetite for fossil fuel resources, particularly oil, as a result of its doubt-digit GDP growth in the past two decades. In fact, since 1993, it has been a net oil importer. To satisfy its growing demand for energy, Beijing has been trying to expand oil and gas supplies both at home and abroad by every means available. It is also trying to improve its energy use efficiency. For a long time, the Chinese leadership has wanted the country to become self-sufficient in energy production.20 Accordingly, exploiting domestic oil and gas resources has been seen as a way to ensure the country’s energy security. As most onshore oilfields in eastern China began to age and decrease in production, by the late 1990s or even earlier, Beijing had to shift its attention to prospecting for energy in western China and the offshore areas.21 In the case of offshore energy, it was believed that Chinese coastal waters had great potential as sources for quality oil and gas which were adjacent to energy consumption centers. Crude oil and gas from China’s waters would play a larger role in its energy equation in the near future. The South China Sea is described by some Chinese as the “second Persian Gulf” as it is believed that the area has substantial oil, gas, and combustible ice resources. According to the Ministry of Land and Resources of China, there are more than 200 oil- and gas-bearing structures and 180 oil and gas fields in the South China Sea. It is estimated that the oil reserves there could reach 23 to 30 billion tons, accounting for one third of China’s aggregate oil and gas resources.22 Rich reserves of combustible ice, a new form of clean energy to be tapped in the future, have also been discovered in the area.23 Such optimistic estimates no doubt have reinforced China’s firm stance towards the South China Sea. The other concern is related to the impact of the South China Sea on the security of China’s energy transportation. As shown in Figure 10.1, the proportion of

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Domestic production

Imports 100

Percentage

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40

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2001

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Figure 10.1 China’s oil imports, 1993–2006. Table 10.1 Major sources of China’s crude oil imports Region

1995

2005

Middle East Africa Southeast Asia Central Asia and Russia South America Others Total Total Imports (billion tons)

43.3 per cent 7.2 per cent 38.8 per cent 0.2 per cent 0.0 per cent 10.5 per cent 100 per cent 17,090

47.2 per cent 30.2 per cent 7.4 per cent 11.1 per cent 3.4 per cent 4.0 per cent 100 per cent 126818

Source: 1995 data: The Editorial Board of the Almanac of China’s Foreign Economic Relations and Trade, Almanac of China’s Foreign Economic Relations and Trade 1997/98, Beijing: China National Economy Publishing House Economic Information & Agency, 1997; 2005 data: The Editorial Board of the China Commerce Yearbook, China Commerce Yearbook 2007, Beijing: China Commerce and Trade Press, 2007.

foreign oil imports in China’s total oil consumption rose from 43 percent in 2000 to 56 percent in 2006. Crude imports from the Middle East and Africa alone skyrocketed from 50 percent to 77 percent of the total oil imports for 1995 and 2005 respectively as shown in Table 10.1. It is estimated that more than 70 percent of China’s oil imports have to pass through the sea route via the Straits of Malacca and sea lanes in the South China Sea. Nearly 60 percent of the ships passing through this same route every day are from China, according to some Chinese sources.24 With rising oil imports and growing reliance on the sea route, the South China Sea is of vital importance to China’s energy security. Just like Japan and

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other oil importing states, the route is regarded by China as its lifeblood and the safety of its oil transport would be jeopardized if the South China Sea were controlled by other states.25 To safeguard the security of the sea lines of communication for its own oil imports, China has been looking for alternative routes. Notably, it is considering the construction of other ports that would help ship its oil. The ports under construction with Chinese help and advice included Gwadar Port in Pakistan, Shitte Port in Myanmar, Chittagong Port in Bangladesh and Hambantota in Sri Lanka.26 In addition, China is interested in the construction of the Kra Canal in Thailand.27 In view of the strategic importance of the South China Sea to China’s national, economic, and energy security, it is clear that China will not relinquish its sovereignty claims in the area. In addition, the growing nationalism of the Chinese, particularly when it comes to territorial issues, would caution the central leadership not to make concessions in the maritime disputes. In the Chinese view, it is largely because of the lure of oil and gas that the Southeast Asian claimant states, notably Vietnam, want to have a piece of the pie and change their previous stance of acknowledging China’s legitimate claim over the South China Sea.28 As far as the Chinese military is concerned, the People’s Liberation Army (PLA) is behind the Chinese government in exerting its sovereignty claims over the South China Sea. There are always, of course, views expressing the official line of support for the joint development of the Spratlys. However, there are others, the “hawks,” advocating the use of force in recovering the islands. After all, that was one method suggested by Deng Xiaoping himself. The “hawks” can hardly stomach the fact that other countries are unscrupulously extracting oil and gas resources from what they consider to be Chinese territory.29 In fact, when Liu Huaqing was the Vice Chairman of the Military Commission of the Central Committee of the CCP, he wanted to develop the Chinese navy. Specifically, he stated, in the early 1990s, that for China, the most probable place to have a war in the next ten years was the South China Sea, and therefore it would be necessary for China to have an aircraft carrier battle group. He emphasized that an aircraft carrier battle group was not meant to compete with Washington or Moscow, but was to perform missions in the struggle against Taiwan, in territorial conflicts in the South China Sea, and for safeguarding the oceanic rights and benefits of China.30 With the increase of the budget for the military in recent years, it is not surprising that there have been calls for more funding to modernize the Chinese navy, including the construction of an aircraft carrier to safeguard, among other things, China’s energy security and overseas businesses.31 Finally, it should be noted that some Chinese local governments, namely, provinces bordering the South China Sea like Hainan and Guangxi Autonomous Region, and Chinese oil companies have been keen on conducting oil exploration and production in the South China Sea. In fact, such enthusiasm has become stronger in the light of the Sino-ASEAN agreement to establish the ACFTA in ten years, as noted earlier, and the surging oil prices. Hainan and Guangxi Autonomous Region, being adjacent to the South China Sea, will

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suffer if there are conflicts and tensions in the area. The disputes will not only restrain the central leadership from approving their ambitious developmental plans but will also scare away foreign investments. Delegated to govern parts of the South China Sea by Beijing, both Hainan and Guangxi have been trying to utilize offshore oil and gas resources to upgrade their provinces on the economic ladder. In fact, in the case of Hainan, the energy resources produced offshore have helped it to be self-sufficient in oil and gas. It has the ambition to be the petrochemical center for China. As the province designated by Beijing to govern most parts of the South China Sea, Hainan will be the largest beneficiary if joint development projects manage to take off in the area. In this regard, Hainan proposed to the National People’s Congress in 2002 that China should work out a comprehensive plan for developing the South China Sea.32 It regarded the maintenance of peace and stability in the South China as conducive to inter-state joint development of energy. Thus Hainan was heartened to learn about the signing of the trilateral agreement between China, Vietnam, and the Philippines to conduct joint seismic surveys in the South China Sea and the governor, Wei Liucheng, pledged at the Boao Forum in 2005 that Hainan would be happy to play an active role in pushing forward inter-state and regional energy cooperation.33 Likewise, Guangxi is also very proactive in promoting joint development in the South China Sea as it is physically closest to Southeast Asia. Notably, it is pushing for the formation of a Pan-Beibu Gulf Regional Economic Cooperation Scheme encompassing Guangxi, Guangdong, Hainan, Vietnam, Thailand, Cambodia, Malaysia, Singapore, Indonesia, the Philippines, and Brunei. Guangxi’s proposal, covering all the claimant states, is part of its drive to develop its coastal area into a new economic powerhouse for China.34 Endorsed by the Chinese government, the proposal will include, inter alia, cooperative activities in maritime energy, maritime environment, and port networking among the South China Sea states. As to Chinese oil companies, the China National Offshore Oil Corporation (CNOOC) is the dominant player in offshore energy production. Created in 1982 to attract foreign investment, CNOOC has been monopolizing offshore oil and gas exploration and production rights until recently. Foreign investors were allowed to engage in Chinese offshore exploration and production on condition that they cooperated with the CNOOC. Initial exploration and production in the South China Sea contracted by CNOOC with foreign investors in the early 1980s were disappointing. Subsequent exploration and production contracted by the CNOOC concentrated mostly on shallow coastal waters, notably those in Beibu Gulf and south of the Pearl River Basin. However, with the glowing reports of the oil and gas potential in the South China Sea, notably those of China’s Ministry of Land and Resources as noted earlier, it is natural that CNOOC would have renewed interest in plunging into deepwater exploration and production in the area. There are reasons to suggest that the CNOOC would be receptive to joint development among the claimant states in this regard. First, the CNOOC does not have the deepwater technologies even after years of collaboration with

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foreign oil companies. As of 2005 or thereabouts, it was believed that the CNOOC could not prospect for oil in waters deeper than 350 meters.35 Therefore it will have to continue to rely on foreign companies if it wants to go for deepwater exploration and production. However, foreign investors would find it too risky to invest in contested areas in the South China Sea. For example, the CNOOC contracted the Denver-based Crestone Energy for oil exploration in the southwestern Spratlys (Wan’an Bei-21 block) in 2002. The area overlapped with the block granted to ConocoPhilips by Vietnam. In the end, neither deal proceeded.36 Thus, it will help ease the worries of investors if there were joint development among the claimants, although the latter would still have to sort out the formula for sharing the spoils. Second, more than 1,000 wells had been drilled in the Spratlys by the claimants, except China, by the end of the 1990s. Obviously, these other claimants have gained tremendous economic benefits from the several hundred million tons of crude oil produced annually. However, China has not received one drop of oil from the Spratlys so far and its oil companies have been barred by claimants like Vietnam and Malaysia from bidding for their exploration and production contracts. As a result, it is hoped that joint development of the Spratlys will provide Chinese oil companies, notably CNOOC, with a chance to share the energy resources in the Spratlys. Third, from all indicators, the Chinese government would like to push for offshore oil and gas production. According to CNOOC, China’s offshore petroleum reserves and gas resources are 27.53 billion tons and 10.6 trillion cubic meters respectively. However, the discovery rate was 18.5 percent for the former and 9.2 percent for the latter. Thus, offshore oil, including that in the South China Sea, could be a major source of energy for China.37 To encourage more offshore drilling, two more oil companies, namely, China National Petroleum Corporation (CNPC) and China Petrochemical Corporation (Sinopec), were given licenses for offshore exploration and production by Beijing in 2004. Faced with more competition, the CNOOC has taken a variety of measures in order to keep its lead in offshore exploration and production. One of the most important of these is the decision to upgrade its technology and ability in deepwater drilling. The company planned to spend ten billion yuan to develop its deepwater oil extraction platforms in 2007 and the first deepwater rig is expected to be ready by 2010.38 With the increase of exploration and production difficulties in land and shallow waters and the advance in deepwater exploration technologies, it seems that the CNOOC is now keen to develop its own capability in drilling oil and gas in deep waters. This is especially true in view of rising oil prices and the belief that deep seas will be major areas where big oil and gas reserves could be discovered in the future. Nonetheless, the CNOOC may not want to do it alone in the South China Sea because of the many overlapping claims. Instead, it may not be a bad idea to go for joint development with oil companies of other claimant states so as to lessen the tensions and, perhaps more importantly, spread the investment and financial risks in deepwater exploration and production.

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Joint development in the South China Sea in the twenty-first century? Before examining China’s move to conduct joint development in the South China Sea, it is appropriate to ask if China would use force to resume its claims, given Beijing’s strong belief in its sovereignty rights, and the strategic importance as well the rich resources of the Spratlys. It may be recalled that it was indeed an option that crossed the minds of Deng Xiaoping and the “hawks,” as analyzed earlier. In fact, force was used by China to take over the Paracels in 1974 and skirmishes aiming to establish China’s control over a few Spratly islands and atolls took place in the 1980s and 1990s. With China’s firm and consolidated control of the Paracels and its physical presence in the Spratlys, it is argued here that it is not likely that China will use force to recover the other Spratlys in the near future. After all, most, if not all, of the islets, atolls, and reefs that could be occupied physically are already taken over by the various claimant states. More importantly, Sino-ASEAN relations are at their best since World War II and China wants a peaceful environment and amicable relations with its neighboring states and regions so as to concentrate on its own economic development, so it is unlikely that China would want to rock the boat by launching an expedition to recover the other Spratlys. Even a “quick, accurate and ruthless” campaign in this regard as advocated by some “hawks” is bound to strain relations not only with the claimants concerned but also within the overall Sino-ASEAN “strategic partnership.”39 The use of force may also draw in other extra-regional powers like the US or Japan; the latter are interested in preserving peace and stability in the South China Sea for their own purposes. Last but not least, the use of force to resolve the South China Sea dispute would no doubt provide ammunition to those who have been talking about the “China threat.” It will tarnish China’s image and create barriers for the “peaceful rise” of China. It remains to be noted that the low power projection capability of the PLA, at least at this point, would affect China’s success in launching a military expedition into the Spratlys.40 Even if China could use force to recover more islets and reefs, it would have considerable difficulties, both in military and financial terms, in maintaining and governing them, given the fact that the Spratlys are far away from China and that there is limited land space in the area suitable for human habitation. In addition, it should be noted that when coming to territorial integrity and sovereignty, China’s major concern is the Taiwan issue. While Taiwan and the South China Sea are considered to be Chinese territories, China has evidently given a higher priority to recovering the former and the reunification of Taiwan with China is its “core interest.” It is also more urgent and pressing for China to tackle the Taiwan issue in the light of the move towards independence in the island. To prevent Taiwan’s independence, China is trying, among other things, to garner more support from other countries, including those in the ASEAN region. Confrontation with, not to say the use of force against, the claimants

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over the South China Sea may derail its “smiling diplomacy” towards ASEAN. It may also induce ASEAN to be more receptive to the so-called “go south” policy conducted by Taiwan in winning friends in Southeast Asia thus affecting adversely China’s efforts to gain more support for recovering Taiwan.41 As emphasized by some analysts within the PRC, China’s policy towards the South China Sea should be subordinated to its strategy of cultivating and maintaining cooperative relations with ASEAN. Therefore the conflicts of the South China Sea should not affect the overall close political and economic relations between China and ASEAN. The proper political strategy under existing conditions is to search for a “win–win” solution and adhere to the policy of “qiutong cunyi” (seeking common grounds while accepting differences). The road ahead with regard to the Spratlys should be to maximize China’s economic benefits by trying to promote joint development with other claimants in the area.42 From all indications, this suggestion seems to be the policy mapped out by Beijing at the moment and probably in the near future as well. Joint development of the Spratlys dovetails with China’s grand strategy emphasizing peace, development, and the reunification of China by diluting international support for the independence of Taiwan in general, and friendly relations with neighboring regions like ASEAN in particular. It is hoped that China and other claimants will benefit from the resources, notably oil and gas, thus promoting regional economic cooperation and mutual trust and confidence. As announced by the spokesman of the Chinese Ministry of Foreign Affairs after the signing of the trilateral agreement to conduct seismic surveys in the South China Sea in 2005, China would work with relevant states of ASEAN to change the South China Sea into a “sea of friendship” and a “sea for cooperation.”43 Nonetheless, it should be highlighted that, in conducting joint development with other claimants, China is basically talking about such ventures in contested areas in the Spratlys, not in shallow waters near China, nor waters under its control like those near the Paracels. In addition, for China, joint development will be conducted by shelving the sovereignty disputes. Any suggestions or models to carve up the sovereignty of the South China Sea among the claimants would not be acceptable to Beijing.44 In fact, once the sovereignty issue were raised, China would have no choice but to reiterate its sovereignty rights over the South China Sea.

Problems and prospects As China sizes up the situation in the South China Sea, it cannot help but notice that the other claimants continue to spare no efforts to reinforce their sovereign jurisdictions and actual control over the Spratlys in spite of their expressed desire to have joint development in the area. Large-scale oil and gas exploration and production have also been conducted by these other claimants in selected waters off the Spratlys. By contrast, while consolidating its hold on a few Spratly islets and reefs, China has not drilled a single well nor has it controlled a single oil or gas field there.45 Beijing is worried that other contestants may not be

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really interested in sharing resources based on joint development and even if they do, they will take advantage of the prolonged negotiations for joint development to strengthen their actual control and legal occupation of selected Spratlys. Therefore, there are reasons to suggest that China would opt for joint development of at least parts of the Spratly waters sooner rather than later. Nonetheless, China will have to tread carefully in plunging into joint development of the South China Sea because of the rise of nationalism and reservations and even opposition at home.46 Moreover, there is Beijing’s concern that the South China Sea disputes may be internationalized. Most of the claimant states, including China, have invited foreign oil companies to conduct oil and gas exploration and production. In this way, there is already “limited internationalization” of the South China Sea. What is of concern to China, and maybe to some other claimants, is that the governments of these foreign oil companies may intervene in the South China Sea disputes on their behalf in order to protect their interests. More importantly, there have been suggestions to submit the South China Sea issue to international meetings and organizations for discussion and/or adjudication. Moves have been taken by claimants like the Philippines to bring in the US to protect their claims or to counteract the influence of China. Although there are doubts whether the US, or for that matter Japan or India, would like to get involved directly in the South China Sea quagmire, there is every reason to believe that these extra-regional powers are interested in maintaining the freedom and security of the sea lines of communication in the Straits of Malacca and the South China Sea. Thus tensions or disputes affecting the security of the area may invite other powers to get involved in the search for peace and stability in the South China Sea. Putting joint development into practice would also entail finding an area for joint development, specifying the mission of the joint venture, agreeing a formula to share the costs and resources, if discovered, appointing a management body, and finding solutions to other practical details. As far as China is concerned, it seems that it is primarily interested in conducting joint development in contested waters in the Spratlys and not in shallow waters near China, nor waters effectively under its control, as noted earlier. Thus the area chosen for seismic survey by China’s CNOOC, Vietnam’s PetroVietnam, and the Philippine National Oil Company lies in the eastern region of the Spratlys (see Figure 10.2) and is relatively far away from China when compared with the Philippines and Vietnam. The most intractable problem remains the sovereignty issue. China has declared that joint development has to be based on the recognition by other claimants that the sovereignty of the South China Sea belongs to China. However, since this is a non-starter as a basis for joint development, it seems that China is prepared to put aside temporarily the sovereignty dispute and concentrate on exploiting the resources in the seabed for the time being. However, this may not be fully accepted by the others. For example, the Philippines, which seems to have less of a problem with the Chinese approach, has still found it difficult to put aside the issue of sovereignty completely when it comes to joint development.

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Figure 10.2 The area for trilateral seismic survey (in black).

A case in point is the trilateral agreement among China, Vietnam, and the Philippines to conduct seismic surveys of the eastern part of the Spratlys, signed in 2005. By 2008, if not earlier, the first phase or “exploration phase” of the resources in the area has already been completed and the “developmental phase” is ready to begin. In a meeting with Philippine President Gloria Macapagal-Arroyo in Singapore in late 2007, Chinese Premier Wen Jiabao had expressed hope that further cooperation among the three states would continue.47 In this regard, Philippine Speaker Jose C. de Venecia Jr announced that the trilateral agreement should be expedited and completed so as to pave the way for exploratory oil drilling by oil companies of China, the Philippines, and Vietnam.48 The problem was that Antonio M Cailao, President of the Philippine National Oil Company, declared that his country would invoke “sovereignty rights” over the area, giving it the authority to decide on which parties could eventually be involved in the project. In fact, he said that the Philippines would exert its sovereignty and that his government “will invoke its right to develop the oil/gas prospect because the area lies within its jurisdiction.”49 If Manila is going to insist on its sovereignty rights over the area, it does not augur well for continued joint development in the area. Likewise, the sovereignty issue created problems when China decided in late 2007 to set up Sansha City to govern the Paracels, Macclesfield Banks and the Spratlys. The decision sparked off unprecedented street demonstrations against China in Vietnam.50 Joint development, especially the joint exploration and production of oil and gas reserves in the South China Sea, will require strong political will and wisdom

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and a lot of give and take, based on very pragmatic calculations by the political leaders involved, if ever it is going to take off. The road ahead for joint development of natural resources in the South China Sea will be long and tortuous.

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Notes 1 See, for example, Lin Zhong, “Zhongguo yu gongtong kaifa de xueshu tantao” (An academic treatise on China and joint development), Xiandai Faxue (Contemporary Law) 1 (1998), p. 74. 2 Deng Xiaoping, Fundamental Issues in Present-Day China (Beijing, Foreign Languages Press, 1987), p. 42. 3 Ibid., p. 74. 4 Ibid. 5 Deng Xiaoping, Deng Xiaoping Wenxuan (Selected Works of Deng Xiaoping), Vol. 3 (Beijing: Renmin Chubanshe (People’s Press), 1993), p. 87. Interestingly, the English translation of the speech has deleted this part on the Diaoyu and Spratly Islands. See Deng Xiaoping, Fundamental Issues, pp. 74–76. 6 Ibid. 7 Liu Xueming, “Gezhi zhengyi, gongtong kaifa” (Shelve the disputes and develop jointly), in Zhongkung Yunnan Shengwei Dangxiao Xuebao (Journal of the Party School of Yunnan Provincial Communist Party Committee) 2 (2001), p. 21. 8 Lin Zhong, “Zhongguo yu gongtong kaifa de xueshu tantao,” p. 75. 9 Lee Lai To, China and the South China Sea Dialogues (Westport, CT: Praeger Publishers, 1999), pp. 51–52. 10 See www.aseansec.org/13163.htm, retrieved on March 6, 2008. 11 See www.aseansec.org/16888.htm, retrieved on March 6, 2008. 12 For details of the informal workshop, see Lee Lai To, China and the South China Sea Dialogues, pp. 59–89. 13 See, for example, www.thefreelibrary.com/The+South+China+Sea+disputes:+implication, retrieved on March 6, 2008. 14 China Daily, August 10, 2007. 15 www.sanshashi.com, retrieved on March 6, 2008. 16 The following is extracted from Lee Lai To, “ASEAN, China and the East Asian Community,” translated into Chinese in Chu Yun-han and Jia Qingguo (eds), Cong Guoji Guanxi Lilun Kan Zhongguo Jueqi (An examination of the rise of china from the perspective of international relations theory) (Taipei: Wunan Book Publishing Company, 2007), pp. 262–264. 17 Lee Lai To, China and the South China Sea Dialogues, pp. 51–52. 18 See, for example, “The Issue of South China Sea,” a statement issued by the Chinese Ministry of Foreign Affairs in June 2000 at www.fas.org/news/china/2000/china000600.htm, retrieved on March 9, 2008. 19 See, for example, Shijun Li, “Woguo de Xisha, Nansha, Zhongsha Qundao” (China’s Paracels, Spratlys, and Macclesfield Banks), Hainan Tongji (Hainan Statistics), June 1996, available at: www.nansha.org.cn/publications/2/05.html, retrieved on March 6, 2008. 20 Erica S. Downs, “The Chinese Energy Security Debate,” China Quarterly 177 (March 2004), pp. 24–29. 21 “Li Peng Zongli tan Zhongguo shiyou gongye de fazhan” (Premier Li Peng talks about the development of China’s oil industry), Liaowang (Outlook) 41 (October 13, 1997), pp. 4–5. 22 Jia Quanxin, “Zhongguo Nanhai Shiyou chuliang keguan, Zhonghaiyou Meiguo Danwen xieshou kaifa” (Oil reserves in the South China Sea of China has great promising prospect, CNOOC collaborated with American Danven Oil to develop it),

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25

26 27 28 29 30 31

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Zhongguo Xinwenshe (China News Agency), December 7, 2005. Available at www.chinanews.com.cn/news/2005/2005–12–07/8/661981.shtml, retrieved on March 5, 2008. “Xin Kangtan jieguo xianshi – Nanhai keranbing chuliang da lushang shiyou yibang” (New prospecting results show – reserves of Combustible ice reach one half of onshore oil reserves in South China Sea), Zhongguo Shiyou Wang (China Oil News), March 18, 2004. Available at: www.cnooc.com.cn/zhyww/xwygg/208290.shtml, retrieved on March 9, 2008. See, for example, Wang Yiwei, “Yuan you jin lu kunrao Zhongguo shiyou, 2020 nian duiwai yicundu jiejin 60 percent” (Worrying about China’s oil, foreign dependency rate approximates 60 percent by 2020), Zhongguo Gongshan Shibao (China Business Times), August 27, 2004. Available at http://news.xinhuanet.com/fortune/ 2004–08/27/content_1897776.htm, accessed on March 16, 2008. “Pinglun: Mei yu kongzhi Maliujia, Nanhai hui fasheng chongtu?” (Review: The US wants to control the Strait of Malacca, Will any conflict come about in the South China Sea?), Guofang Zhishi Bao (National Defense Knowledge), April 13, 2004; Du Wenlong and Shi Zhikun, “Nansha qundao – yaoyuan de lanse guotu” (The Spratly Islands – our distant blue territory), Bingqi Zhishi (Weaponry Knowledge), 1 (2008), pp. 25–28. Bill Gertz, “China Builds up Strategic Sea-Lanes,” Washington Times, January 18, 2005. See, for example, Franz Schurmann, “China’s Demand for Oil May Make Thailand Canal a Reality,” at http://news.pacificnews.org/news/view_article.html?article_ id=101ae63f, retrieved on March 10, 2008. Tan Zaiwen, “Nanhai gongtong kaifa de guoji zhengzhi jingjixue” (International political economy of the joint development in South China Sea), Nanyang Wenti Yanjiu (Southeast Asian Affairs) 3 (2005), p. 10. See, for example, Du Wenlong and Shi Zhikun, “Nansha qundao – yaoyuan de lanse guotu.” “Nanhai wenti de yuanyin ji muqian de Nanhai jushi” (Sources of South China Sea problem and the current situation in the South China Sea)” at www.smxpt.cn/dyw/ Article_Show.asp?ArticleID=271, retrieved on March 10, 2008. Author unknown. See, for example, Du Wenlong and Shi Zhikun, “Nansha qundao – yaoyuan de lanse guotu”; Mengxia Wang, “ ‘Haiyang quanyi’: yige mingan er chenzhong de huati” (Marine rights: a sensitive but distressing topic), Zhongguo Chuanjian (China Ship Survey) (April 2004), pp. 4–7; “Zonghe pingshu” (Comprehensive Review), Xiandai Jianchuan (Modern Vessel) 12 (2004), pp. 4–7; Lu Xiangyang, “Fennu hou de sisuo! Qian tan Woguo haiyang quanyi de baohu” (Reflections after anger: Preliminary analysis of protecting China’s marine rights), Shipborne Weapons (October 2004), pp. 12–16. “Jinnian Renda shoudao she hai yi’an er shi si jian” (People’s Congress received 24 sea-related proposals this year), Zhongguo Haiyang Bao (China Oceans Newspaper), March 19, 2002. Pu Yuntong, “Wei Liucheng: Hainansheng ke wei Nanhai nengyuan hezuo duihua tigong pingtai” (Wei Liucheng:: Hainan can provide platform for energy cooperation and dialogue in the South China Sea), Xinghua Wang, April 22, 2005, available at: www.cnooc.com.cn/zhy. Li Mingjiang, “Making a ‘lake’ of South China Sea,” Straits Times, January 15, 2008. “Zhonghaiyou lianshou Mei Jia gongsi kaifa Nanhai youtian” (CNOOC collaborated with American and Canadian companies to develop oilfields in SCS), Guoji Shang bao (International Business Newspaper), December 13, 2005. Alan Boyd, “South China Sea: It’s Not All About Oil,” Asian Times, September 6, 2003. CNOOC, “Woguo zixing sheji jianzao zuida dunwei fushi shengchan chuyouchuan wenshi” (“The largest floating production oil tanker designed and manufactured by China was in place”), June 9, 2004, available at www.cnooc.com.cn.

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38 “Zhongguo shiyue jiang shouci shenhai duli kang you” (China would independently conduct oil exploration in deep sea in October), Beijing Chenbao (Beijing Morning Daily), August 20, 2007. 39 For the views of the “hawks,” see, for example, Zhongguo Heping Luntan (China Peace Forum), “Zhongguo shifou yinggai zai Nanhai dui Yuenan dongshou? (Should China taken action against Vietnam in the South China Sea?” at http://forum/ Chia.com.cn/CIICBBS/read.php?tid=287037, retrieved on March 12, 2008. 40 Lu Minghui, “Nanhai zhengduan yu Dongnanya guojia de kuojun” (South China Sea dispute and military expansion of Southeast Asian countries), Nanyang Wenti Yanjiu (Southeast Asian Affairs) 4 (2006), pp. 35–42. 41 See, for example, Yang Qing, “Zhengque renshi he chuli Nanhai quanyi zhengduan” (Correctly understand and manage the disputes on oceanic rights and benefits in the South China Sea), at http://politics.people.com.cn/GB/30178/4030534.html, retrieved on March 12, 2008. 42 Tian Xinjian and Yang Qing, “Zhengque renshi he chuli Zhongguo yu Dongmeng de haiyang quanyi zhengduan” (Correctly understand and manage the disputes on oceanic rights and benefits between China and ASEAN), at www.comra.org/dyzl/ 050614.htm retrieved on March 12, 2008. 43 Hainan Rihbao (Hainan Daily), March 16, 2005, at www.cnooc.com.cn/zhyww/xwygg/ 212697.shtml retrieved on March 13, 2008. 44 For the analysis of China’s attitudes regarding the application of these models to the South China Sea, see, for example, Guo Peiqing, “ ‘Nanji moshi’ neng yongyu Nanshaqundao ma” (Can the “Antarctic model” be applied to the Spratlys?) Haiyang Kaifa yu Guanli (Ocean Development and Management) 3 (2004), pp. 34–36; Lin Zhong, “Zhongguo yu gongtong kaifa de xueshu tantao” (Scholarly exploration of China and joint development), Xiandai Faxue (Modern Law) 1 (1998), pp. 73–79. 45 Xu Longdi, “21 shiji diyuan zhengzhi zhong de Nansha qundao” (Geopolitics and Nansha Islands in the twenty-first century), Shanghai Jiaotong Daxue Xuebao (Journal of Shanghai Jiao Tong University; Philosophy and Social Science) 13, 5 (2005), p. 42. 46 One of the few channels for the Chinese public to voice their opinions is the internet forum, where some radical views can be seen regarding the South China Sea issue. See, for example, Zhongguo Heping Luntan (China Peace Forum), “Zhongguo shifou yinggai zai Nanhai dui Yuenan Dongshou?” (Should China use force against Vietnam in the South China Sea?), posted on February 4, 2008, available at: http://forum.china.com.cn/ CIICBBS/read.php?tid=287037, retrieved on March 10, 2008. 47 Asia Pulse, November 21, 2007. 48 BusinessWorld, January 10, 2008. 49 Manila Bulletin, January 6, 2008. 50 See, for example, Andrew Symon, “China, Vietnam Churn Diplomatic Waters,” at www.atimes.com/atimes/China/IL20Ad01.html, retrieved on March 13, 2008.

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Part IV

Towards a cooperative management regime

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11 The South China Sea The long road towards peace and cooperation

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Hasjim Djalal

Background The long road towards peace and cooperation in the South China Sea started back in the late 1980s. This was after several decades of disputes and confrontation that began soon after the end of World War II when countries around the South China Sea first started making claims to sovereignty over features within the sea. In the late 1980s, before the conclusion of the Cambodian war through the Peace Agreement in Paris in 1991, I recognized that prospects for peace and cooperation might finally have come to Southeast Asia despite worrying developments and conflicts in the South China Sea. The countries around the South China Sea have a long history of confrontation and very little experience of cooperation. Armed clashes between China and Vietnam occurred in 1974 and again in 1988. Multiple territorial claims to islands existed, as well as claims to national maritime zones of jurisdiction, particularly in and around the Spratly Islands group. The island disputes were bilateral, trilateral, or even in some instances, multilateral. The rapid economic development of the countries around the South China Sea, particularly China, led to a scramble for the natural resources of the South China Sea, both living and non-living. Strategic issues were also at stake. The strategic significance of the South China Sea to non-littoral countries could not be ignored. The sea lines of communication through the area are significant both for the region and for world trade and the global economy. Consideration needed also to be given to increasing problems of pollution and the safety of navigation as well as to the protection of the marine environment and fragile marine ecosystems. Then there were the political factors that inhibited the process of cooperation. The South China Sea is surrounded by countries that are vastly different from one another, in land size, population, per capita income, employment in fisheries, fish catch and consumption of fish per capita. Political systems also vary markedly from the communist/socialist countries of the northern littoral, China and Vietnam, to the non-communist southern and eastern insular countries (Malaysia, Singapore, Indonesia, the Philippines, and Brunei Darussalam). There is also the complicating factor of Taiwan/Chinese Taipei as a claimant.

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An important geographical fact is that the insular countries control maritime approaches to and from the coasts of the mainland South China Sea countries.

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The interests of major powers The South China Sea is one of the most strategic waterways in the world. The approaches to the South China Sea, especially the Straits of Malacca–Singapore, Sunda–Karimata, Balabac, Mindoro, Bashi and Taiwan Straits are located in non-communist countries. These approaches are important for the passage of military and commercial vessels, including especially oil tankers. For Japan, the South China Sea and its approaches, especially the Straits of Malacca and Singapore, are extremely important since more than 80 percent of its oil imports are transported through these waterways. Japanese interest in the preservation of peace and cooperation in the South China Sea may increase as the result of its new orientation and increasingly intensive economic, trade, and investment relations with ASEAN, South Asian, and Middle Eastern 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 United States fleets, both for its own global strategy and for defending its allies in the region. The US also has large trade, economic, and investment relations with the countries around the South China Sea. In May 1995, the US Department of State announced the US policies on the South China Sea, including the statements that the US takes no position on the legal merits of competing sovereignty claims but considers it essential to resist any maritime claim beyond those permitted by UNCLOS.1

Conflicting territorial and jurisdictional claims Both China and Vietnam claim territorial sovereignty over the Paracel group of islands situated southeast of Hainan. It was occupied by the former regime of South Vietnam until China took it by force in 1974. Vietnam still maintains a claim over the islands in spite of their occupation by China. Both China and Vietnam rely on historical records to support their respective territorial claims to the Paracels. Except for the possible impact of any dispute on the situation in the South China Sea as a whole, the issue of the Paracels is generally regarded as a bilateral matter between China and Vietnam. The Spratly Islands are the main source of territorial dispute. Some of the islands, rocks, and reefs in the group are presently occupied by Vietnam (22), the Philippines (11), China (14), Malaysia (10), and Taiwan (1). Brunei Darussalam claims certain portions of the nearby sea as its EEZ or continental shelf but does not occupy any feature. China claims the South China Sea islands for historical reasons. It has based its claim on a map produced in 1947 by the Republic of China, indicating nine undefined, discontinued, and dashed lines. This claim was renewed in 1958 at which time China claimed a 12-nautical-miles territorial sea and declared that

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The South China Sea 177 “no foreign vessels for military use and no foreign aircraft may enter China’s territorial sea and the airspace above it without the permission of the government of the PRC.”2 China claims all the features encompassed by those nine undefined and dashed lines, although it began to occupy some of them only recently. There was no definition of those dashed lines, nor were their coordinates stated. Therefore the legality and the precise locations indicated by these lines are not clear. It was presumed, however, that China’s claim, at least initially, was limited to the islands, the rocks, and perhaps the reefs, but not the whole sea enclosed by those nine undefined dashed lines. Some recent Chinese writers seem to imply that China also claims the “adjacent sea” of the islands and rocks but again, the concept of “adjacent sea” has not been clearly defined. Taiwan’s claim in the South China Sea was basically similar to that of China. The Chinese claim was originally described in the Taiwanese/KMT map of 1947. Therefore, the positions of the participants from China and Taiwan in the South China Sea Workshops were sometimes very similar. Taiwan has occupied Itu Aba, the largest island in the group, since 1956. Vietnam’s claim is also basically historical. It claims the Paracel Islands as well as the whole Spratly group together with all its continental shelf. Again, the boundary lines of the claim are not clearly identified, either by description or by coordinates. The claim also covers quite an extensive area of the South China Sea, and Vietnam has also occupied a considerable number of features. The Philippines’ claim is based on the so-called “proximity” principle and “discovery” of the islands concerned by a Philippine explorer, Thomas Cloma, in the 1950s. Unlike the Chinese claim, the Philippine claim clearly defines the coordinates and therefore is quite identifiable. However, the coordinates are not measured from base points on land, but from fixed positions at sea. The Philippines has also occupied a number of islands and rocks. The Malaysian claim is primarily based on the continental shelf principle and is clearly defined by coordinates. It occupies islands that it considers to be situated on its continental shelf. Equally, Brunei’s claim seems to have been based also on the principle of EEZ and continental shelf, although the boundary lines are drawn almost parallel from, and are the continuation of two points at sea at the 100 fathoms depth contour that were announced in 1958 by the British as the continental shelf boundaries between Brunei and Sarawak and north Borneo (Sabah). All or most of these claims overlap with one another and some of them with several other claims. All the claimants, with the exception of Brunei, have occupied several rocks and reefs. There is no clear pattern of occupation. Some 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 space and resources, either living or oil and gas, which are believed to be abundant in the area. Exploration efforts are continuing for oil and gas and fishery resources are being exploited. Conflicts have arisen in the past and may arise again in the future.

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Indonesian initiative Indonesia is not a claimant to any islands or rocks in the Spratly group. But if the Chinese/Taiwanese dashed lines of 1947 are taken into consideration and continuously connected, then the Chinese/Taiwanese claims could also intrude upon Indonesia’s EEZ and continental shelf as defined in the 1982 UN Law of the Sea Convention (UNCLOS), and as demarcated in the Indonesian–Malaysian Agreement of 1969 and the Indonesian–Vietnam Agreement of 2003. China, however, has assured Indonesia that they do not have any maritime boundary problems with Indonesia in the South China Sea. Indonesia took the initiative to try to manage the potential conflicts in the area and to promote actual cooperation among the claimants. Indonesia saw that the end of the Indochina war in 1989–1990 provided the opportunity to transform an environment of bickering and confrontation into one of cooperation. When the end of the Cambodian conflict was in sight in 1990, ASEAN and Indochina seemed ready for economic development and cooperative relations. Development efforts needed peace, stability, and cooperation. Indochina later joined ASEAN. However, with regard to the South China Sea, it was essential to seek ways and means of preventing potential conflicts from erupting into armed conflagration. I thought that a sense of “community” in the South China Sea area should be developed. There was the basis of cooperation in UNCLOS, especially in the EEZ regime (Articles 61–67) and the “Enclosed or Semi Enclosed Seas” concepts as stipulated in Article 123. It was difficult at that time to see whether ASEAN had a perspective on the South China Sea. However there was a strong conviction in Indonesia and in ASEAN that we should concentrate on promoting development, particularly economic development, as well as the ASEAN and Southeast Asian principles of resilience and cohesiveness. At about the same time, the issues of the Paracels and the Spratlys were attracting attention and posing a threat to Southeast Asian stability. In the meantime, I had developed contact with Professor Ian TownsendGault of the University of British Columbia in Vancouver who was willing to seek Canadian support to help manage potential conflicts in the South China Sea if the countries around the sea were interested. The Canadian International Development Agency (CIDA) was later willing to support all the meetings. The South China Sea Informal Working Group (South China Sea-IWG) was established in Vancouver and the Center for Southeast Asian Studies, which I had established and directed in Jakarta, would collaborate and help develop the agenda for the meeting, prepare background papers, and arrange for the participation of “resource persons.” I felt that regardless of the territorial disputes, we should try to find ways to manage potential conflict and to find an area or areas in which everyone could agree to cooperate, no matter how small or how insignificant they might seem. We should be guided by the idea that, despite potential conflict, there was always an opportunity for cooperation. At that time, I had three basic objectives:

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to manage the potential conflicts by seeking an area in which everyone could cooperate; 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; and to exchange views through dialogue on the issues involved in order to increase mutual understanding.

It would be a major achievement for the region to work together to transform the habit of confrontation into a habit of cooperation. This could be achieved sooner if we had programs designed to achieve it. Therefore, it was important to find a common denominator, no matter how slow the process might be or how small the result at the beginning. Patience was important then as it still is today.

The workshop process Despite many concerns and reservations at that time, all of us in ASEAN agreed to try to manage the potential conflicts in the South China Sea and to convert them as much as possible to cooperation. We all agreed informally to come to the First Workshop on the South China Sea in Bali in 1990. This was basically a meeting among ASEAN participants only. The following areas were identified for discussion at the first meeting: (a) territorial and sovereignty issues (b) political and security issues (c) marine scientific research and environmental protection (d) safety of navigation (e) resources management, and (f) institutional mechanisms for cooperation. We also discussed whether and how to include other non-ASEAN countries in the discussion on the South China Sea, particularly Vietnam, China, Taiwan (Chinese Taipei), Laos, and Cambodia. The Workshop was acknowledged as a platform for policy oriented discussions, not only for an academic exchange of views. The First Workshop laid the groundwork and it was apparent that there were quite a few areas where participants were prepared to cooperate. In preparing the Second Workshop, I thought that China and Taiwan should be included as they have claims in the South China Sea and also occupied some features in the area. But it was not easy at that time to bring China into the discussion, primarily because China considered that the South China Sea issues should not be “regionalized” or “internationalized,” and that it would discuss whatever problems it had directly and bilaterally with the countries concerned. In China’s view, its claims to sovereignty over the South China Sea islands were “undisputable.” In addition, it would be difficult for China to sit down with Taiwan in international meetings like the South China Sea Workshop, if these were “formal” meetings. But by the Second Workshop in Bandung in 1991, it had become an allinclusive group; not only Vietnam and China were invited and participated but also Taiwan (Chinese Taipei). Even landlocked Laos was invited. Cambodia was invited later after the political situation there became clearer.

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Thus, by the Second Workshop in Bandung in February 1991, we were able to bring China, Vietnam, Laos and Chinese Taipei into the Workshop Process. The Bandung meeting went into more detail with the topics mentioned above, including the problems of sovereignty over the Spratlys and the Paracels, the roles of major non-South China Sea powers in the region, and confidencebuilding measures. More technical discussions took place on marine scientific research, marine environmental protection, safety of navigation, and resources management. Some ideas on establishing a secretariat as well as formalizing the meeting were mentioned. More significantly, the participants attending the Bandung meeting agreed to issue a statement saying that the South China Sea disputes should be settled peacefully, that force shall not be used to settle the disputes, and that the parties to the disputes shall exercise restraint in order not to exacerbate potential conflicts. This statement was a precursor to a much more formal ASEAN Declaration on the South China Sea in Manila in July 1992, which provided guiding principles for efforts to manage potential conflicts in the South China Sea through cooperation. At the Third Workshop in Yogyakarta in 1992, more specific discussions took place on the various topics. By this time, I felt that devising cooperative projects would have to be worked out in more detail by specific technical working groups (TWGs) and groups of experts meetings (GEMs). Thus, the meeting in Yogyakarta agreed to establish two TWGs, one on Marine Scientific Research (TWG-MSR) and the other on Resources Assessment (TWG-RA). Some participants continued to consider that it was necessary to establish a secretariat for the Workshop Process as well as to formalize the process. There was no consensus to establish a secretariat because many participants were not yet willing to institutionalize or formalize the process. In addition, there were also many technical reasons for not establishing the secretariat. It was generally felt that the Center for Southeast Asian Studies (Pusat Studi Kawasan Asia Tenggara) in Jakarta should continue to be the focal point for the Workshop Process. Some countries also had difficulties with regard to formalizing the Workshop Process, particularly China, primarily due to its problems with sitting down with Taiwan/Chinese Taipei in a formal process. Thus, the informal set-up of the Workshop Process was a necessity and perhaps the only possibility for bringing in China and Chinese Taipei together. Moreover, it was generally thought that discussions and ideas could flow more freely in an informal process. In a more formal meeting participants would be extremely constrained by the policies of their respective governments. The Fourth Workshop in Surabaya in 1993 discussed the participation of non-South China Sea countries. It agreed that these countries would be allowed to participate on a case-by-case basis to implement specific agreed programs of cooperation. In the meantime, the TWG-MSR had already begun discussions in Manila and the TWG-RA had been convened in Jakarta. The Surabaya meeting also discussed the results and recommendations of the two TWG meetings, and further agreed to convene a follow-up meeting of the TWG-MSR in Singapore. It also agreed to establish the TWG on Marine Environmental Protection (TWG-

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The South China Sea 181 MEP), and the TWG on Legal Matters (TWG-LM) and discussed the possibility of establishing the TWG on Safety of Navigation, Shipping and Communications (TWG-SNSC). Finally, the participants also indicated that the workshop series had reached a stage where it would have to concretize programs or projects to realize cooperative efforts through a step-by-step approach. The Fifth Workshop in Bukit Tinggi in 1994 approved some specific projects, which had been formulated by the TWGs, particularly a program for cooperation on the study and conservation of biodiversity in the South China Sea. The Bukit Tinggi Workshop also agreed, among others things, to authorize me to seek support and funding for the project proposal on biodiversity; to convene another meeting of the TWG-MSR to finalize proposals on sea-level and tide monitoring, and on a database, information exchange, and networking; and to convene the first meeting of the TWG-LM in Thailand. The Workshop also further discussed confidence-building measures, including discussion in detail on the need for non-expansion of existing military presence in the South China Sea. The Sixth Workshop in Balikpapan in 1995 approved the two project proposals drawn-up by the TWG-MSR, namely “study on tides and sea level change” and “regional cooperation in the field of marine science data and information network in the South China Sea.” The participants also agreed to forward these project proposals to their respective authorities for their consideration and support in their implementation. I was asked to solicit support from various sources for these projects. The Seventh Workshop in Batam in 1996 further discussed the problems of implementing the agreed project proposals. After 1995 there were some difficulties in implementation, because of both financial problems and political issues. Practically all countries in the South China Sea have indicated their willingness to participate in the implementation of the agreed programs by providing expertise, facilities, or some even financial aid. But China believed that the implementation of the agreed programs should be left to national institutions alone, particularly due to the sensitive nature of the issues dealing with territorial and sovereignty claims. It was only at the Eighth Workshop meeting in Pacet Puncak, in December 1997 that the participants agreed to jointly implement the agreed programs for cooperation. I was asked to continue to approach various international, regional, and national agencies, governmental or non-governmental, to support the implementation of the agreed programs. The Ninth Workshop in Ancol, Jakarta, in 1998, continued discussion on implementing the agreed projects. A representative of UNEP indicated to the meeting that UNEP could help with the implementation of some components of the biodiversity project. The meeting also continued discussion on the Code of Conduct for the South China Sea. On the safety of navigation, the participants agreed to recommend to their respective authorities to consider ratification of the Rome Convention on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 1988, of the International Convention on Civil Liability for Oil Pollution Damage, 1992, of the International Convention on the Establishment of International Fund for Compensation for Oil Pollution Damage, 1992,

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and of the International Convention on Oil Spill Pollution and Preparedness, Response and Co-operation, 1990. The Tenth Workshop in Bogor in 1999 noted that the atmosphere of cooperation had improved, despite some difficulties. The Workshop also discussed and endorsed the recommendations of the various meetings of the TWGs and GEMs. The issues of the formulation of the Code of Conduct for the South China Sea and the issues of implementation, as well as linkages with other activities, continued to be the subject of discussion. In order to avoid difficulties with regard to implementation of a biodiversity expedition in the South China Sea, it was agreed to conduct the expedition in and around the undisputed Indonesian islands of Anambas in the South China Sea. The Eleventh Workshop was held in Cengkareng in March 2001. This meeting, while discussing and endorsing the reports and recommendations of the various TWGs and GEMs, was also confronted with the decision of Canada, for reasons unknown to us, not to extend its financial support to the Workshop Process beyond the current support (early 2001). In view of this situation, the Eleventh Workshop decided unanimously to make all efforts to continue the process and to hold a Special Meeting to explore various options to continue the process. The Special Meeting, which took place in Jakarta in August 2001, agreed to continue the Workshop activities in an informal, unofficial, and Track Two way, focusing on building confidence and cooperation while avoiding controversial, political, and divisive issues. Track Two processes bring together academics, NGOs and the private sector, possibly also including officials acting in their private capacity, whereas Track One .meetings are formal, involving officials and ministers only. The Workshop could continue to be held in Indonesia, but if Indonesia was not in a position to hold such a Workshop, it could be held in other places, at the expense of the host authorities concerned. With regard to funding, the Workshop Process should seek voluntary donations from participating authorities, non-governmental organizations, foundations, or private companies from the South China Sea region, and voluntary donations from similar organizations from outside the South China Sea region, provided no political conditions were attached. It was also decided that the Workshop Process should function more as a “think-tank” group and should develop implementable projects, taking into account the limited availability of financial and human resources. They also agreed to recommend the establishment of a special fund to be administered by Pusat Studi Asia Tenggara (the Center for Southeast Asian Studies) in Jakarta. In the meantime, the Anambas Expedition to study biodiversity in the South China Sea was conducted on March 11–22, 2002. The expedition discovered a number of marine species unknown before. The scientific results of the expedition were published in the Raffles Bulletin of Zoology in Singapore in March 2004. The Twelfth Workshop in Jakarta in October 2002 agreed to continue efforts to manage the potential conflict in the South China Sea and to implement agreed projects by their own means and with voluntary support from various sources. They also agreed to establish the special fund for this purpose.

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The South China Sea 183 The Thirteenth Workshop was held in Medan in September 2003. It discussed the preparation for the Palawan Biodiversity Expedition as a continuation of the Anambas Expedition. It continued discussion on the database information exchange and networking (coordinated by China), the sea level and tide monitoring project (coordinated by Indonesia), and the training program for marine ecosystem monitoring (coordinated by the Philippines). It was agreed to revise the projects in the light of comments by participants. The Workshop discussed further the development of the special fund. The Fourteenth Workshop held in Batam in November 2004 reviewed the projects so far planned, namely (1) marine science data and information networking (2) biodiversity studies (3) study of tides and sea level change (4) training program for marine ecosystem monitoring (5) training program for seafarers (6) fisheries’ stocks assessments (7) hydrographic survey (8) search and rescue and illegal acts at sea including piracy and armed robbery at sea. China reported that it had convened a working group meeting in Hainan in September 2004 to discuss the marine database program and in the light of the discussion, has revised the program. The Workshop decided to endorse the revised proposal and requested China to continue with the preparation to implement the project. With regard to the Palawan Biodiversity Expedition, the Philippines informed the Workshop that it had changed the implementation of the expedition from a Track Two activity to a Track One activity and had widened the area of the expedition to include Luzon. This announcement created problems, and the Workshop decided not to continue discussion on this matter since Track One activity is outside the purview of the Workshop. As it turned out, some participants later withdrew their participation in the Luzon–Palawan expedition. The Workshop also asked Indonesia to continue with the preparation for the study of sea level rise and asked Malaysia to initiate works on cooperation with regard to search and rescue. At this occasion, Chinese Taipei proposed the establishment of South East Asian Ocean Network for Education (SEAONE) for training purposes to promote ocean science research. China has difficulties with this proposal, and due to lack of consensus, the proposal was not discussed further, noting that Chinese Taipei could initiate the program as its own by inviting all other participants to make use of it. The Fifteenth Workshop was held in Anyer, Banten, in November 2005. The workshop discussed and endorsed the result of the TWG meeting on the database information exchange and networking project, held in Tianjin, China, on October 11–12, 2005. The workshop also discussed and endorsed the result of the TWG meeting on the study of tides and sea level change and their impact on coastal environment in the South China Sea, held in Anyer, Banten, Indonesia, on November 22–23, 2005, and agreed to begin its implementation. All participants acknowledged the importance of the Workshop Process as a confidence-building measure and a preventive diplomacy mechanism which is still relevant to the current situation. In addition, after the implementation of the biodiversity project in Anambas (and later in Palawan), China, Chinese Taipei, the Philippines, and Vietnam were encouraged to consider the possibility of conducting biodiversity

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expeditions that will include the northeast and northwest area of the South China Sea in order to complete the picture of biodiversity in the South China Sea as a whole. The Sixteenth Workshop was held in Bali in November 2006. It discussed regional cooperation in the field of marine science and information, and China undertook to organize a technical training course on constructing a website and sub-website with data on the South China Sea area. Indonesia is continuing its preparation for cooperation on the study of sea level change and the coastal environment in the South China Sea affected by potential climate change. The participation of certain authorities, as in the Fifteenth Workshop, was already covered by the special fund which was established in 2004. A Seventeenth Workshop was held in Indonesia in November 2007. Participants reiterated the importance of the informal and unofficial nature of the workshop and the “consensus” rules of procedure. They discussed the sea level change project, received a progress report on the South China Sea Database Project, and considered a Chinese proposal for a South China Sea marine science education, training and exchange program.

Dialogue between the parties We have also encouraged more discussion and dialogue among parties to the territorial disputes to find the basis for a solution that would be acceptable to all concerned. The bilateral dialogue between China and the Philippines in August 1995 produced an eight-point code of conduct between them. Similarly, bilateral dialogue between Vietnam and the Philippines has produced a nine-point code of conduct, which in many respects is similar to the China and the Philippines code of conduct. I understand there has also been dialogue between China, Vietnam, Malaysia, and between Malaysia and other claimants, although the dialogues have not led specifically to bilateral codes of conduct. In this context it is encouraging to note the signing of bilateral agreements between China and Vietnam on December 25, 2000 regarding the maritime boundaries between the two countries in the Gulf of Tonkin, covering the boundaries of their respective territorial seas, EEZs, and continental shelves, and another agreement on fishing cooperation in the Gulf. There is no agreement yet, however, regarding the delimitation of contiguous zones between the two countries. The Fishing Cooperation Agreement is interesting because it establishes a “common fishing area,” or some kind of “joint development zone” in the Gulf and a “buffer zone” for small fishing boats. The Agreement also covers the right of passage of Vietnamese vessels through the Qiangzhou Strait between Hainan and mainland China, which China so far has always regarded as part of its internal waters. Equally interesting, on the same day, the foreign ministers of the two countries signed a joint statement regarding relations between their countries, which is tantamount to a bilateral code of conduct. In the statement, the two sides recalled their “time-honored traditional friendship,” comprehensive cooperation, mutual trust, equality, and mutual benefits between them. They

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The South China Sea 185 reaffirmed that they will follow the guidelines and principles of the UN Charter, the five principles of peaceful coexistence, and the principles of international relations, independence, sovereignty, full equality, mutual respect, and noninterference. They agreed to regularly hold high-level meetings, to exchange visits, and to continue to broaden cooperation in economic, commercial, scientific, and technical spheres. They also agreed to strengthen cooperation and coordination at multilateral, regional, and international forums, to carry out multilevel military exchanges, and to expand cooperation in the security field and many other areas. Specifically on maritime issues, and apparently with the disputes in the South China Sea in mind, the two countries will continue to seek lasting solutions acceptable to both sides through peaceful negotiation. Pending that solution, the two sides “will not take action to complicate or aggravate disputes, nor will they resort to force or threat of force.” They will consult each other “in a timely manner in case of disputes and adopt a cool and constructive attitude to handle them properly in order not to allow disputes to impede the normal development of bilateral ties.” It appears that in formulating any code of conduct, several elements should be included, such as: (1) peaceful settlement of disputes; (2) prohibition against the use of force or threats of force; (3) the exercise of self-restraint; (4) development of confidence-building measures; (5) cooperation; (6) consultation; (7) transparency; (8) respect for international law and freedom of navigation in the South China Sea; and (9) the area of application of the code.

Joint development concept One of the most important issues in the South China Sea was the question of joint development or joint cooperation. I personally supported this approach in overcoming the territorial problems. We even formed a Special Technical Working Group on Resources Assessment and Ways of Development (TWGRA) to deal with this topic and the TWG met twice in Jakarta in July 1993 and in 1999. The TWG-RA also established a study group to better understand the concept, and this group met twice, in Vientiane in June 1998 and in Tabanan, Bali in July 1999. The TWG-RA agreed that joint development had excellent potential, and that we should study the various concepts or models of joint development around the world and learn from them what could be applied to the South China Sea area. I believed the concept should be formulated with agreement on at least four points: 1 2 3

The zone where the joint development will take place; The nature, the subject, or the topics of the cooperation (fisheries, minerals, gas, oil, environment, marine scientific research, marine parks, etc.); The mechanism for such joint development, which could be an authority or a loose coordinative organization or arrangement; and

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These four points, it seemed to me, were the sine qua non of joint development. In 1996 I suggested several principles for joint development and attempted to find out and define the zone where every participant, at least those having overlapping claims, could cooperate on the basis of UNCLOS. Theoretically this was that part of the South China Sea beyond 200 miles from undisputed coastlines or islands – the so-called “Donut hole.” On the basis of various comments and reactions by participants, I submitted a revised proposal in 1998 to the participants directly concerned, which in essence reduced the zone and the number of possible participants. For some reasons, discussion of the joint development or joint cooperation concept stalled in the Workshop. However, some bilateral agreements have been reached on joint development, such as between Malaysia and Thailand and between Malaysia and Vietnam in the Gulf of Siam, and between China and Vietnam in the Gulf of Tonkin.

Conclusion Preventive diplomacy In view of our experience with developing cooperation to promote preventive diplomacy in the South China Sea, some conditions for successful efforts can be identified. First, the parties to the disputes should realize that conflict, especially armed conflict, will not settle the disputes and will not bring benefits to any/either party; in fact they only bring mutual damage or loss to the parties. I feel that the parties to the disputes in the South China Sea are now aware of this. Second, political will is required to settle the disputes peacefully and to prevent the disputes escalating into armed conflicts. The parties must realize that their interests lie in finding a solution for the disputes rather than in prolonging them. I feel that we still have to do a lot to strengthen political will, although some progress has been made. Third, the parties should not legislate any territorial claims especially in areas where claims are clearly disputed. Legislating territorial claims and seeking support through public opinion tend to harden the position of all sides and make it more difficult to seek solutions or compromises, or even temporary solutions such as joint development. I feel that this point still needs to be appreciated. Fourth, there is a need to increase transparency in national policy, legislation, and documentation with more frequent meetings among the legal officers of the various regional countries in order to exchange documentation and information, including with legislative planning. Fifth, successful efforts often begin with informal activities, either through the Track Two informal processes. After such efforts have had some success, a more formal Track One approach could be attempted. Preventive diplomacy requires patience, tenacity, and consistent efforts.

The South China Sea 187 Finally, preventive diplomacy should be undertaken by all parties who have an interest in the solution of problems, both regionally and internationally. Solutions that take into account only national and regional interests but ignore the interests of states outside the region are not necessarily effective in the long run. I feel that this point is slowly being appreciated. Current prospects

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The current situation of the Workshop Process on managing potential conflicts in the South China Sea could be summarized as follows: 1

2

3

4

5

Discussion on territorial and jurisdictional issues, after several meetings, has stalled in the Workshop Process, because of the objections of China and certain other participants. China and Vietnam, however, have reached bilateral agreement on maritime delimitation in the Gulf of Tonkin, and Indonesia and Vietnam have reached bilateral agreement on the delimitation of their continental shelf boundary in the South China Sea. Discussion and bilateral dialogues among parties concerned have achieved results. As indicated above, there are already an eight-point code of conduct between the PRC and the Philippines and a nine-point code of conduct in the South China Sea between the Philippines and Vietnam. In fact the six-points basis for settlement of disputes agreed upon by the Second Workshop in Bandung in July 1991 and the five-points ASEAN Declaration on the South China Sea in Manila in July 1992 have became elements for the formal ASEAN–China Dialogue resulting in the Declaration on the Conduct of Parties in the South China Sea, adopted in Phnom Penh in 2002. Discussion on confidence building with regard to military activities has also slowed down, although there is still agreement to continue discussion on this matter. Discussion on formulating cooperation in technical matters has made a lot of progress in the various Technical Working Groups. In fact, three projects of cooperation have been agreed, namely on biodiversity, climatic change, and sea level monitoring, as well as on preparing a data base and networking. A biodiversity expedition took place in 2002 in Anambas area, followed by the Philippines Biodiversity Expedition near Palawan Island. The efforts to develop cooperation through joint development have also produced concrete results, such as the agreement between China and Vietnam on the common fishery area in the Gulf of Tonkin in 2002. An agreement between China and Philippines to conduct a joint exploration survey for oil by the oil companies of the two countries was signed in Beijing in 2004, and a similar agreement for three years on marine seismic undertakings between the oil companies of China, the Philippines, and Vietnam, was signed on March 14, 2005.

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Throughout the discussion of South China Sea issues, China has played a key role. I am happy to note that China has moved away from being reluctant and skeptical to become an ardent supporter of the Workshop Process. China’s neighbors in the South China Sea areas have responded positively, and the policy of the Southeast Asian countries of “constructive engagement” with China seems to be working. China and its neighbors in Southeast Asia may see closer relations and cooperation in the future.

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Concluding remarks There are good opportunities for promoting cooperation in various areas and developing confidence-building measures and processes for the South China Sea. The more that discussion takes place on relevant issues, the better are the prospects for managing potential conflict in the area. The prognosis for the future would be much worse if South China Sea countries were not prepared to talk about the issues, and to transform them into actual cooperation. It has indeed been a long road towards peace and cooperation in the South China Sea but it has all been worthwhile. In this context, it is hoped that Indonesia, together with all its partners in the South China Sea Workshop, will continue to exercise wisdom and leadership to promote peace, stability and cooperation in the South China Sea and South East Asia in general, for their own respective good and common interests. There are also good prospects for the model of the South China Sea Workshops to be used to deal with similar problems, including in the East China Sea and the Sea of Japan (East Sea).

Notes 1 These policies were mentioned in the House of Representatives Resolution No. 114 of the 104 Congress, First Session, submitted by Congressman Gilman of the Foreign Affairs Committee, and in the Statement of the US Department of State on the Spratlys and the South China Sea on May 10, 1995. 2 Point 3 of the Declaration of the People’s Republic of China on China’s Territorial Sea, dated September 4, 1958. This point was repeated in Article 6 of the Chinese Law No. 55/1992 on Territorial Sea and the Contiguous Zone of China, passed by the 24th meting of the Standing Committee of the 7th Congress of the PRC on February 25, 1992.

12 The contribution of the South China Sea Workshops The importance of a functional approach

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Introduction This chapter offers some reflections on the importance of the functional approach in the specific context of the Track Two preventive diplomacy initiative “Managing Potential Conflicts in the South China Sea.” This will be an insider’s view. From the time the initiative gathered steam in October 1989 to the tenth workshop in 2000, I had the pleasure and privilege of working closely with Ambassador Hasjim Djalal in the organization of our meetings, including the setting of agendas, the selection of resource persons, and the compilation of meeting reports. I was also responsible for the financial support we received from the Canadian International Development Agency (CIDA).1 It may be too soon to attempt a comprehensive assessment of the initiative. But I think much can be said about the process: what its aims were, how precisely it worked, why certain matters were addressed and others not.2 In so doing, I hope to justify the crucial importance of the functional approach. I think it can be argued that the Workshop Process (as it came to be called) made and continues to make a valuable contribution not only to the maintenance of regional peace and security: apart from encounters with illegal fishers and pirates, there have not been any naval clashes in the South China Sea for more than a decade and a half. But it also managed to focus the attention of the more informed and careful commentators on a much wider range of South China Sea issues than had been considered widely before. The experts on fisheries had of course been concerned about the fishery; marine environmentalists about the continuing degradation of the ocean and the lack of oil spill response capacity; and there were well-known problems with search and rescue. But I believe that the Workshop Process was one of the ways in which these issues became more broadly appreciated, and hence gained in stature and importance as opposed to endless preoccupations with oil reserves, the presence of which in commercial quantities has yet to be determined in large parts of that ocean. The First Workshop on Managing Potential Conflicts in the South China Sea was organized in Bali, Indonesia, in February 1990. Since then, there have been close to 50 meetings – workshops, technical working groups, and meetings of groups of experts – organized in almost all parts of the South China Sea region,3

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190 I. Townsend-Gault all devoted to exploring modalities for cooperation between the littoral states. Although attention seems to have focused on the annual workshops, the vast bulk of the substantive work accomplished by the process took place in other fora. The Workshop Process has attracted its share of criticism, but much of this springs from partly digested and ultimately erroneous assumptions about what it was we were trying to do. For instance, we were not trying to “resolve” the jurisdictional dispute over the Spratly Islands.4 That would have been impossible, and those who think we should have tackled it are noticeably almost wholly unable to suggest an acceptable (not to say workable) modus operandi for such a gargantuan task. And those who saw the process solely in terms of confidence building and regional peace and security are simply failing to realize or acknowledge some very salient facts: • • • • • • •

the South China Sea is one of the world’s most important waterways with more than half of the world tanker traffic navigating through it annually; maps routinely used by some vessels contain errors; littoral state capacity for pollution response and search and rescue is grossly inadequate; 500 million people depend on the South China Sea for 80 percent of their daily protein needs; fishing is virtually unregulated in some areas (and illegal fishing techniques are ubiquitous); reef systems are damaged by illegal fishing and building artificial islands results in their destruction; the Sea’s biological diversity is astounding and ultimately of enormous value: it produces one quarter of the global supply of phytoplankton.

These assertions – which the Workshop Process did its best to publicize – can be made on the basis of ascertainable data. All the talk of the enormous reserves of oil will remain in the realm of speculation until verifiable discoveries are made. In the meantime, environmental, ecological, and human security crisis looms.

The early days – the status quo in 1989 I have recounted elsewhere the circumstances in which the workshop initiative was conceived.5 In the course of discussions regarding the possibility of encouraging ocean cooperation in Southeast Asia, Dr Hasjim Djalal suggested that, if funds were found, it would be interesting to see whether the (then six) ASEAN countries would allow government officials, academics, researchers, etc. to attend an unofficial meeting convened to discuss the possibility of exploring opportunities for maritime cooperation in the South China Sea. It was thought that, if the approach being advocated should prove unacceptable to an ASEAN audience, there was little chance for it in the broader littoral context. We wrote a document outlining our proposed strategy, and were able to interest some senior officials in the Canadian Department of Foreign Affairs. I have to say right away that the

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The South China Sea Workshops 191 name of Hasjim Djalal was essential to getting any sort of hearing for the proposal. A small fund in the Canadian International Development Agency established to give “seed” money for interesting projects gave us the funds to travel around the ASEAN capitals with a concept paper which Dr Djalal produced, and the First Workshop – to which only participants from the six ASEAN countries were invited – was duly convened in February 1990. The Second Workshop, attended by participants from China, Chinese Taipei, Laos and Vietnam was convened a year later (the then uncertain state of affairs in Cambodia precluded participation of individuals from that country). The process did not have an easy birth. It is necessary to appreciate the political and legal status quo when the project got under way.

Defining the “South China Sea region” Our definition of the “South China Sea” includes the Gulf of Thailand, because the two areas of water have strong ecological links. The functional approach requires the abandonment of convenient but unhelpful or (in this context) ephemeral limitations imposed by geography or politics. Between them, the seas are semi-enclosed by the Asian mainland and the archipelagos of Indonesia and the Philippines. The fact that the water is almost completely enclosed by this land means that there is little exchange with the Pacific or Indian Oceans, and this has numerous consequences, which will be touched upon later. Ideally, we wanted to work with participants from all parts of the South China Sea region thus defined. It was deemed essential to include participation from Taiwan, and our colleagues in Beijing raised no objection to this provided that the “Chinese Taipei” formula was adhered to. Since everyone attending meetings did so in her or his personal capacity, various difficulties arising in a more formal context could be avoided altogether. Including the Gulf of Thailand with the South China Sea therefore gives an impressive list of littoral states: China/Taiwan, the Philippines, Malaysia, Brunei, Indonesia, Singapore, Thailand, Cambodia, and Vietnam. We included participants from Laos because landlocked countries have rights at international law in the ocean areas of neighbouring states, and because Laos is part of the “region.” We have become habituated by now to more or less free and unhindered travel in many parts of East and Southeast Asia. Honeymooners go to Ha Long Bay in Vietnam for a romantic week or so, people like to celebrate the New Year in the extraordinary beauty of Luang Prabang or Angkor. In 1989, little or none of this was possible. Tourist visas for Vietnam were becoming available slowly, but the vast bulk of any tourists that might be there were the favoured few from the Soviet bloc. This was not a country which, officially at least, was particularly welcoming to those from countries with different political ideologies, which would certainly have included the six members of ASEAN. If Vietnam was somewhat closed, Laos was more so. The country was certainly uninterested in the potentially corrupting influence of people from outside the communist fold, and of course Cambodia was still in a certain amount

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of turmoil – the Khmer Rouge was still active, and people were being kidnapped and killed. The three countries of the former French Indochina tended to look inwards, and to ideological soulmates in other parts of the world. Until the coming to power of the reforming Prime Minister Vo Van Kiet in Vietnam, the country might have been geographically part of Southeast Asia, but in almost no other way. Regional meetings on Law of the Sea issues organized by the SEAPOL network6 had plentiful representation from the then six ASEAN countries, and even China, but I remember one sole representative from Vietnam, from the Legal Department of the Foreign Ministry. It was almost as if Vietnam did not exist. And of course this lack of trust and indeed latent hostility – not to mention sheer ignorance and misunderstanding – were mutual. All of this was of course to change, with Vietnam becoming a member of ASEAN rather quicker than many had thought possible. But when our participants met in Bandung in 1991, it was clear that links between, for example, the ASEAN and non-ASEAN marine scientists were few. Bridges had to be built between those with common interests on both professional and personal levels. In other words, what we blithely called “the region” was one in name only, and this of course had to change, which it did.

The impact of international law From the outset, it was clear that we were going to need to use the principles of the Law of the Sea in order to establish means whereby maritime cooperation could take place between the countries, should they elect to engage in it. While we are inclined today to regard the United Nations Convention on the Law of the Sea7 of 1982 as a document which has been in existence within living memory, it is important to remember that this is not the case. When we began our work, most countries from which our participants came had not yet ratified the Convention, and it was not in force. It is also important to point out that while the lawyers and diplomats might have been happy with the final product, it was becoming increasingly clear that the Convention’s science-based provisions – including those requiring functional cooperation in order to ensure a uniform and harmonized system of marine management – were going to pose political difficulties for some countries. The exact nature and extent of some of the obligations in the Convention were not immediately clear and, in my view, this remains the situation today.8 Much more work needs to be done, for instance, on the regime of enclosed and semi-enclosed seas, particularly with respect to the injunctions as to cooperation in certain sectors. Academic and juridical debate rages on also about the precise meaning of Article 121(3),9 the provision that denies rocks which cannot sustain human life or an economic existence of their own an exclusive economic zone or continental shelf.10 The Convention is a lengthy and complex document – the largest multilateral treaty ever negotiated – and some countries had at their disposal endless teams of experts in every conceivable field, while others were much less richly

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The South China Sea Workshops 193 endowed. There could not therefore be a common understanding of the nature and extent of legal rights and obligations owed by co-littorals to their neighbors. This asymmetry – encountered in many topics in which the Workshop Process interested itself – had to be addressed by what amounted to “catch-up” sessions which were, in effect, lectures on the Law of the Sea. Initiatives like this cannot be pursued successfully if those responsible for them delude themselves as to the extent to which everyone in a given room at a given time is equally well informed or briefed. The reference to Article 121(3)11 is most appropriate in this context, because the majority of the named features in the Spratly group have no jurisdictional significance at all because they are submerged at high tide and are not therefore considered “islands.” Those islands which are merely “rocks” can generate a territorial sea, but not an EEZ or continental shelf. It is open to doubt whether any of the other islands are able to sustain human life or have an economic existence of their own.12 The jusrisprudence of the International Court of Justice suggests that relatively insignificant features should not have an appreciable impact on the course of maritime boundaries, especially vis-à-vis zones generated from larger areas of land. The Convention makes a very clear distinction between islands (naturally formed areas of land, surrounded by water, and above water at high tide) and artificial islands, but what if state practice was to blur this distinction? What if the process of building on a low-tide elevation would “convert” it into an island? The wording of the Convention makes clear that this cannot happen – an island is a naturally formed area of land. Furthermore, the fact the Convention clearly recognizes the distinction between islands and artificial islands indicates that the framers meant there to be no crossover between the two. In other words, building on a low-tide elevation, following the scheme of the Convention, does not “create” an island. The feature remains “artificial.”13 Furthermore, nothing in the Convention suggests that it is ever possible to “convert” an artificial island to an Article 121 island. Therefore to “read it in,” or to imagine it possible, actually subverts the clear meaning and intent of the Treaty in maintaining a difference between natural and artificial features. It is, after all, a normative document, not a set of guidelines. Its rules are intended to be firm – this is how lawyers read and interpret legal instruments, because any other way of doing so lessens their normative force, and ultimately calls their utility into question. Why go to the trouble of establishing clear and specific rules if states are going to be permitted to circumvent them? The practice of many South China Sea littoral states seemed to be moving in the direction of building on low-tide elevations or reefs in order to produce structures which clearly were above water at high tide. What they wanted to do, and so far as the popular media was concerned had accomplished, was to invite everyone to draw the appropriate jurisdictional conclusion from this – to assume that these features could be used to generate a claim to a territorial sea and EEZ/continental shelf. If the Convention had not entered into force, or if the extent of ratification had been much less widespread than was to prove the case, it was perfectly possible for at least a regional custom of international law to arise whereby building

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on reefs and low-tide elevations would indeed be recognized as the basis for claiming the more extensive zones of maritime jurisdiction. My own guess is that this would have been resisted by countries elsewhere: I cannot imagine the United States, the European Union, Australia, and Japan refraining from issuing vigorous protests. But it could, at the very least, have introduced an element of ambiguity and doubt into the debate. With the acceptance of the Convention, in my view, there is virtually none at all, albeit that we have yet to arrive at a satisfactory way of addressing the troublesome Paragraph 3 of Article 121. To conclude on this point, the status of the Law of the Sea Convention was by no means a foregone conclusion in 1990, and there was much difference of opinion as to what a number of its provisions meant in practice. However, the clear intention of the Treaty was to promote maritime cooperation where this was functionally required.

Setting the agenda As remarked above, we thought it essential (a) to make it clear that sovereignty/jurisdictional issues would not be discussed, but also (b) to identify areas where it was not only possible, but required either by international law or because of functional considerations. By this I mean that cooperation is not merely a desirable outcome, but a sine qua non of achieving a given goal. Cooperation for the sake of cooperation, while valuable in its way, commands much less respect and attention than coordinated action undertaken for a common purpose. I will return to this point below. We therefore identified sectors of ocean activity relevant in the South China Sea, and invited regional experts to bring their minds to bear on opportunities for a regional approach. We identified fairly broad but salient topics: marine scientific research, environment and ecology, sea lines of communication, living and non-living resource management and conservation, and institutional mechanisms for cooperation. By the end of the First Workshop we had a list of ideas which showed that, in the view of sectoral experts, a regional approach was highly desirable.

The evolving structure of meetings These results were considered at the Second Workshop, but it was now becoming clear that a plenary meeting which included diplomats, scientists, lawyers, seafarers, resource management experts, and others, was unlikely to achieve much, since the level of discussion could not be very high without many participants being out of their depth. The Third Workshop (1992) therefore recommended that a meeting of the region’s marine scientists be convened to permit the priority proposals in this sector to be further developed. The results of this meeting would be conveyed to the Fourth Workshop. The Marine Science Institute at the University of the Philippines had played a leading role in this sector from the very beginning, so it was natural for the

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The South China Sea Workshops 195 government in Manila to offer to host what would be the First Meeting of the Technical Working Group on Marine Scientific Research. This took place in Manila in 1993.14 From this point on, meetings proliferated, with Technical Working Groups (TWGs) being established for other sectors (with Legal Matters being added in 1995). But even these meetings might be too general in tone. With this in mind, we convened meetings of Groups of Experts (GEMs) to examine very specific issues. For example, a Group of Experts was established to consider ways in which hydrographic information might be exchanged. Participants included the chief hydropgraphers of several regional navies. The pattern then emerged that a Group of Experts would report to its parent Technical Working Group, which in turn reported to the next (now annual) Workshop. These reports would include details of what had been accomplished, and recommendations for the future. It was up to the Workshop to decide to adopt formally proposals for cooperation which “could be recommended to their respective authorities.” Thus, the Workshop itself became the guiding instrument for the Process as a whole. My research team at the University of British Columbia (UBC) acted as rapporteurs, and we produced complete meeting reports with summaries of sessions, papers presented or tabled (some of which we researched and wrote), as well as details of who attended and the agenda. We also worked with Dr Djalal on the final consensus statement, the negotiation of which could be highly contentious and might require several hours.15

The participants One absolutely key ingredient required to establish the Workshop Process was the participation of senior individuals. Reference has already been made to the involvement of chief hydrographers of some regional navies. The names of some of the marine scientists who worked on those issues would be known to any expert in the field anywhere in the world. It was not unusual for the heads of the departments of international law and treaties of regional Ministries of Foreign Affairs to attend the annual Workshops. The fact that senior officials were given leave to attend attests to the value placed on project meetings by regional authorities. It also meant that the impact of decisions was greater (and perhaps better disseminated) than might be expected with more junior participants. Against this, it might be argued that senior officials from foreign ministries can never be truly “in an unofficial capacity” even in a closed setting such as the Workshop. There was a degree of formality in the early years, but this eased as participants got to know one another: there was also a relatively reliable continuity as regards the personnel dispatched to the meetings (the choice was up to each authority). A final point concerning participants further illustrates the value of the Process to the region. Our budget allowed us to invite three participants from eligible states to Workshops (all expenses covered). We decided to use our funds to

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facilitate the involvement of two participants in TWG meetings, and one for a GEM. However, as the list of participants for the various meetings shows, by 1995, we were funding fewer than half of the total of those who attended. Furthermore, regional authorities incurred significant costs in arranging and hosting meetings.

Results

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By 2000, after roughly a decade of work, we had achieved agreement for cooperative initiatives in the following areas: • • • • • • • • • • • • •

biodiversity protection; sea-level rise monitoring; marine scientific research information and data exchange; marine environmental monitoring; standardizing education and training standards for mariners; a regional protocol on the exchange of hydrographic data and information; a joint hydrographic survey of parts of the South China Sea; zones of marine cooperation including different models of joint offshore petroleum development; harmonization of marine environmental laws and policies; fisheries stock assessment; exchanging information on non-living non-hydrocarbon resources; issues arising from the “semi-enclosed” status of the South China Sea as per Article 123 of the Law of the Sea Convention; regulations to promote the protection and preservation of marine habitat.

Arguably, the Workshop Process fulfilled its objectives. It was always intended that the task of putting these ideas into practice would be left to others, though initial work on biodiversity protection was undertaken under our auspices. The theory was that the work of the second track would be available for adoption – or otherwise – at the official level. This is also the intention with the work of the Council for Security Cooperation in the Asia-Pacific (CSCAP).

Maritime cooperation – but to what end? It is at this point that the “functional approach” must be considered. Commentators who are not particularly knowledgeable about the substantive issues arising in the various sectors we addressed tend to put a gloss on the end results of our activities which suggest that they were first and foremost confidence-building measures in the classic mould. This is not untrue: at the time of the Second Workshop, when participants from nearly the entire region except for Cambodia were in the same room to discuss South China Sea issues for the first time, there was no confidence between some groups of participants, and it is difficult to see how there could have been. But confidence-building measures can take many

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The South China Sea Workshops 197 forms, ranging from the purely symbolic to the highly functional and practical. We were much more interested in the latter, and challenged our sectoral experts to identify them. To discover either opportunities for cooperation or, perhaps more relevantly, areas where cooperation is an absolute requirement, one does not convene a meeting of international lawyers and diplomats. This question is best posed to the technical experts in the fields concerned. In order to ensure that we were going to have a substantive discussion of issues whose relevance could not be denied – at least by other technical experts – from the very beginning, we urged those responsible for selecting participants (we played virtually no role in this) to ensure that relevant experts would be included. At the First Workshop, this was relatively easy. Because we had identified six potential areas for cooperation, or context in which joint activities could be discussed, it was easy to allocate one to each of the six participating authorities. I referred earlier to the lead role of the Philippines in marine scientific research issues, and showed how this came about. Something similar happened with the Legal Matters TWG – lawyers from the Foreign Ministry of Thailand emerged as the leaders, and, with the full agreement of all participants, that country hosted all meetings of that group. But where was the cooperative imperative to come from? For our technical experts, the answer lay in the activity itself. For the marine scientist, the encouragement of marine scientific research is self-evidently valuable, and more is required. But from the very beginning, it was possible to note a fair degree of political opposition to the notion that cooperation was in any way necessary; certain forces were tending in absolute opposition to the notion that it was mandatory – required by international obligations. It might be as well to consider the source of these sentiments, which certainly were unhelpful in the early years of the workshop initiative. The first problem lies in the nature of state sovereignty, and the ways in which many states view their rights and their relationship with other countries, and hence the interplay between rights and obligations appertaining to all. For those who approach sovereignty as an absolute concept, one that cannot be divided or diminished, and which requires any attack or variation to be resisted vigorously, the idea that cooperation is anything other than an option to be entered into or not as each state desires is inherently objectionable. For such people, there are few more important provisions in the Charter of the United Nations than Article 2(7) – no state can interfere in matters essentially within the domestic jurisdiction of another. In the eyes of some, the fence represented by this provision is large and strong, and not to be tampered with. The Law of the Sea, prior to the coming into force of the 1982 Convention, reflected and reinforced this view. Before the doctrine of the continental shelf became a rule of international law, state sovereignty was confined to a territorial sea of usually three nautical miles in extent, and many countries were inclined to regard these waters as an integral part of the national territory (the right of innocent passage notwithstanding). The conceptual underpinnings of the doctrine of the continental shelf included the notion that this feature was the natural prolongation of the land-mass – land covered by water – and state

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rights over it accrued accordingly. Those rights did not amount to sovereignty, but were nonetheless absolutely exclusive, and inherent.16 As the Convention on the Continental Shelf of 1958 had it, the state rights regarding the exploration for or exploitation of natural resources do not require express proclamation or claim. This is a powerful concept, one which conveys something rather more than simply a bare right to undertake or control resource activities. It was natural that continental shelf boundaries (or the seaward extent) came to be seen as something akin to terrestrial lines of demarcation. International law stated that, provided there was no egregious harm inflicted on fishing, shipping, or the marine environment, states can do precisely what they wanted on the continental shelf. There is in fact one exception to this, which arises when an oil and gas field is located across a boundary line in such a way that it can be exploited from either side – good oil field practice requires the highest possible degree of cooperation between the states concerned and their licensees, and it appears that a rule of customary law which prohibits unilateral exploitation of such a field in the absence of consultation with the other side has come into effect by virtue of the provisions of many continental shelf boundary agreements, but this has affected relatively few countries to this point. The conceptual change in this came about with the development of extensive fishing zones, and the rise of the environmental movement in the 1960s and 1970s. As national capacity to overfish became worldwide, and with the enormous growth of tanker traffic and other uses of the sea, the vulnerability of the marine environment became obvious to all. Furthermore, extensive fishing zones meant that fishers were no longer free to pursue fish wherever they might be found, and issues of straddling stocks between fishing zones, and between the zones on the high seas, started to arise. In other words, the marine management task became a formidable one, requiring careful consideration of various maritime sectors as well as overarching concerns for the marine environment, the ecosystems under national jurisdiction, the preservation of biological diversity, and so forth. The point is, however, while oil and gas activities can be conducted on different areas of shelf more or less independently of each other (except where a field is located across a continental shelf boundary), the same factual considerations may not apply with respect to living resource, environmental, ecological and similar considerations. This applies with particular force in enclosed and semi-enclosed seas, or where a number of maritime zones are adjacent to each other. Ocean management for Australia and New Zealand is almost entirely free of the considerations which apply to countries in the Gulf of Thailand, the Arabian Gulf, the Baltic, the Mediterranean, the North Sea, and the Caribbean, to take some examples. This changing management task is reflected in provisions of the Law of the Sea Convention which either encouraged, or in some cases calls for, cooperation between neighboring states. Consider the provisions of the regime of enclosed and semi-enclosed seas. There is no doubt that the South China Sea (and the Gulf of Thailand) are semi-enclosed within the meaning of Article 123 of the Convention, an assertion vigorously contested by government officials from more than

The South China Sea Workshops 199 one country (these individuals were not technical experts).17 What they meant, of course, was they did not want the South China Sea to qualify as semi-enclosed because they did not want to be under an obligation to cooperate. But the obligation is there. The word “should” clearly indicates the existence of one.

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Introducing international law I referred above to the introduction of the TWG on Legal Matters in 1995. This was a significant development for the Workshop Process. Hitherto, discussions on cooperation had been almost entirely technical. Now there was the chance to move into the realm of policy. It was made clear that matters such as sovereignty and jurisdiction would still not be discussed, but other things could be. For instance, if there was going to be cooperation in areas such as ecology, environmental protection, safety at sea, etc., legal issues would arise with respect to how this was going to be accomplished. This TWG would therefore look at some of these matters. It was at the Second Meeting of the TWG in Pattaya, Thailand, that the idea of producing a code of conduct for the South China Sea arose. The credit for this must go to Professor Robert Beckman of the National University of Singapore and a colleague from the Attorney General’s Chambers of that country, who assembled a series of provisions from treaties already enforced in the region, such as the Charter of the United Nations, the 1971 Declaration on the Zone of Peace, Freedom and Neutrality (ZOPFAN), the ASEAN Treaty itself, and so forth. The thinking was that if these concepts were current, it would be rather hard for anyone to object to them in the context of the South China Sea. When the Foreign Minister of the Philippines decided to try and push for a code of conduct on the official track, the Pattaya draft formed the basis of his proposal. What emerged was certainly different from the suggestions made during these meetings, but there seems little doubt that the Workshop Process had an impact on the discussion of codes of conduct for the region as a whole (as opposed to purely bilateral agreements), and even in the lesser formulation eventually arrived at. This of course is precisely what we hoped would happen – the freedom of the Track Two venue might produce results which could then be adopted (or ignored) by Track One. But the Legal Matters TWG also gave us opportunities to discuss other issues. For example, Robert Adamson, a member of my research team at UBC, produced a paper on the use of “without prejudice” clauses in international agreements. The insertion of these words simply means that the legal position of the parties is unaffected in any way by whatever it is they have agreed to do. The classic example of this for us was the series of agreements between the United Kingdom and Argentina relating to maritime cooperation in the area between the Falkland Islands and the South American mainland. These two countries had fought a short but bitter war when the military junta in Argentina attempted to take the islands from Britain by force: casualties were heavy, and good relations severely strained. Yet in the interest of furthering the resource

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base of the region as a whole, the countries were able to agree on cooperation without prejudice to their respective claims to sovereignty over the islands.18 This particular issue is important because the discussion of Adamson’s paper revealed some things to me. First, as I had suspected, there was a wide degree of variance in the legal experience (and knowledge) of the various participants. This is seldom a problem if the question under discussion is not serious, but if it is, to put it simply, some participants will not be keeping pace with the discussion. They will not understand what is being discussed, and what people do not understand they tend to reject. In other words, it was going to be necessary to undertake a certain degree of legal education and fill in the knowledge gaps of a number of participants, particularly with regard to experience of what works and what does not in other parts of the world. This is sometimes rather difficult to bring off, because often the first reaction that people have is that the Baltic is the Baltic, the Mediterranean is the Mediterranean, and the Caribbean is the Caribbean – they are not the South China Sea. And sometimes “models” turn out to be no such thing – but sometimes they do, and the great quest is for those that are appropriate and illustrative while ignoring those that are merely a distraction. It was also at this time that participants seemed to be increasingly eager to use the South China Sea Informal Working Group at UBC as a means of broadening the knowledge base. I recall in particular the meeting where the senior participant from China asked us to arrange a meeting on joint development of offshore petroleum, the very subject that was being discussed on the day I first met Ambassador Djalal. He wanted to know how exactly did these zones work. What were the correlative rights and obligations of the parties? Who conducted operations? Accordingly, we arranged to establish a Group of Experts on a broader concept than offshore joint petroleum operations, namely zones of cooperation. We convened this meeting in Vientiane, Laos, and participants included speakers from the then Australia–Indonesia Timor Gap joint development arrangement, Malaysia and Thailand’s joint development in the Gulf of Thailand, and my research team assembled copies of treaties and other documents for participants. In other words, we subjected the topic to a very full and critical survey, after which the utility and flexibility of the concept would be much more apparent than hitherto. Furthermore, we were able to tie in this approach with Paragraph 3 of Articles 74 and 83 of the Law of the Sea Convention, the provisions relating to the delimitation of maritime boundaries. Paragraph 3 provides that when an agreement on delimitation cannot be entered into, the states concerned should, in the spirit of cooperation, enter into “provisional arrangements of a practical nature” in the interim. Most joint development zones come about because of the inability of the countries concerned to agree on a maritime boundary. They also have some set clauses – but they are provisional arrangements, and they are eminently practical. The history of fisheries cooperation and other forms of joint undertakings in East and Southeast Asia illustrates the enthusiasm with which this useful concept has been embraced. It is not for me to claim that the Workshop Process deserves the credit for this, but we must certainly have helped to

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The South China Sea Workshops 201 illustrate the uses to which the concept could be put. In other words, it was not an outlandish and totally alien procedure fraught with danger and difficulty. On the contrary. It brought the sources on-stream that might otherwise remain in situ, unused, for the foreseeable future. In the course of our legal meetings we were also able to engage in a process that I thought of as “clearing the undergrowth” – ridding the debate of irrelevant or erroneous material. For instance, insisting on the difference between islands and artificial islands, and exploring the application of Paragraph 3 of Article 121 of the Convention arguably changed the jurisdictional picture in the South China Sea to some degree. Frankly, I think some countries could have gone further with this. During the mid-1990s there was a period of extended diplomatic exchange between the Philippines and China with respect to the aptly named Mischief Reef. Both sides claimed that it was an “an inalienable part of their national territory.” It seemed to me that something could have been gained by one government or the other pointing out that it was not territory at all – it was an artificial island built on a reef, the jurisdictional significance of which was zero. In other words, if we apply, as Professor Prescott, did the rules of the Convention to the named features in the South China Sea regardless of what they are called, the number of “islands” is very much fewer than hitherto suspected. Of these, the greater number clearly come within the meaning of Article 121 Paragraph 3 of the Convention – they can generate territorial sea, but not the larger zones of exclusive economic zone or continental shelf. Building on a submerged feature does not change its juridical status – it remains an artificial island which is entitled to a safety zone (but no maritime jurisdiction for resource purposes), which is presumably the point of the exercise in the first place. The question has sometimes been asked – could the countries of the South China Sea develop a “regional custom” which varies the Convention’s rules on islands and artificial islands? In my view, the bulk of the international community would reject such a move, because it could be adopted elsewhere, and would be an open invitation for coastal states to fortify and develop every rock, thus eating away at what is left of the concept of the freedom of the seas and the patrimony of the world as a whole. The global commons would inevitably suffer, and it was the intention of the Law of the Sea Convention that this would not happen. Allowing this practice to develop would therefore be incompatible with one of the greater aims of the Convention, and would therefore be contrary to it. Furthermore, as the importance of the reef systems of the South China Sea becomes increasingly obvious, the call should be for a complete moratorium on construction of these features, not simply because this is a potential provocation, but also because it is ecologically very damaging. In other words, we were able to put together a rough equation which suggested that building on reef systems brought with it no gains in terms of jurisdiction and had harmful effects on the marine ecology and environment. It therefore appeared to be a doubly pointless exercise to engage in, no matter how stirring and romantic it might look in terms of asserting claims to national jurisdiction. In the last analysis, modern international law displays many of the characteristics of functionalism. In today’s world, variations in national approaches can

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be highly dangerous and dysfunctional. Consider, for example, the possibility of variations in rules applicable to air traffic control – such a state of affairs would lead to disaster. Treaties designed to act as templates for domestic legislation have been produced on an ever-widening range of topics to ensure that states adopt measures which are substantively identical. The need for the universal approach arises from the nature of the subject matter. It is not a case of seeking uniformity for its own sake.

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Conclusion It is suggested that the ability of the Workshop Process to identify opportunities for maritime cooperation which were achievable and valuable enabled it to gain the momentum it displayed at the zenith of its activities (during one exceptional year there were eight meetings). But it was very important to establish the value of these proposals, and to emphasize that they were not “second best” alternatives to what might have been perceived as the primary issue in the South China Sea – the sovereignty/jurisdictional dispute. Experts in the sectors we chose to focus on were vehement as to the urgency of the measures they were advocating. It was hard to see how or why resources should be diverted instead to attempts to resolve the sovereignty dispute which, in my view, would have been unavailing. This is because such resolution requires the consent of the states concerned to engage in a settlement process, and to abide by the result. No such consent has been forthcoming. To the contrary: senior officials of some littorals have stated that since the claim of their country is beyond dispute, there is nothing to discuss, never mind litigate.19 Our ability to identify achievable, valuable, and necessary areas of cooperation was essential, and something of the sort would be an absolute requirement if other preventive diplomacy initiatives are considered. But we can point also to other factors: the commitment of many participants and their authorities to the Process; the involvement of neutral resource persons who were able to insert facts and ideas into the dialogue; the experienced, wise, and tenacious leadership of Dr Djalal; the provision of continuous funding. In the final analysis, I think that once participants wrenched their minds away from what they had been told were “the issues at stake” and concentrated instead on the problems identified in an earlier section of this chapter, the overwhelming need to find some means of moving forward became increasingly a shared preoccupation.

Appendix I List of project meetings by subject matter Marine Scientific Research • • • •

TWG 1 – Manila, Philippines, 1993 TWG 2 – Surabaya, Indonesia, 1993 TWG 3 – Singapore, 1994 TWG 4 – Hanoi, Vietnam, 1995

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TWG 5 – Cebu, Philippines, 1996 TWG – Biodiversity proposal, Cebu, Philippines, 1996 TWG – 6/GEM, Manila, Philippines, 1998

Marine Environmental Protection

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• • • •

TWG 1 – Hangzhou, China, 1994 GEM – Phnom Penh, Cambodia, 1997 TWG 2 – Hainan, China, 1997 GEM – Monitoring proposal, Manila, Philippines, 1998

Safety of Navigation, Transportation and Communication • • • • • • • •

TWG 1 – Jakarta, Indonesia, 1995 TWG 2 – Bandar Seri Bagawan, Brunei Darussalam, 1996 GEM – Training of Mariners, Singapore, 1997 GEM 1 – Exchange of Hydrographic Data and Information, Kuching, Malaysia, 1997 GEM – Exchange of Hydrographic Data and Information, Singapore, 1998 TWG 3 – Singapore, 1998 GEM – Search and Rescue and Illegal Acts at Sea, Kota Kinabalu, Malaysia, June 1999 GEM 2 – Exchange of Hydrographic Data and Information, Singapore, October 1998

TWG on Resource Assessment and Ways and Means of Developmen • • • •

TWG 1 – Jakarta, Indonesia, 1993 GEM 1 – Zones of Cooperation, Vientiane, Laos, 1998 GEM – Non-mineral Hydrocarbon Assessment, Jakarta, Indonesia, 1998 GEM 2 – Zones of Cooperation, Bali, Indonesia, June 1999

Legal Matters (all held in Thailand) TWG 1 – Phuket, 1995; • • •

TWG 2 – Chiang Mai, 1997 TWG 3 – Pattaya, 1998 TWG 4 – Hua Hin, 1999

Workshops on Managing Potential Conflicts in the South China Sea (all held in Indonesia) 1 – Bali, 1990, • • • •

2 – Bandung, 1991, 3 – Yogyakarta, 1992, 4 – Surabaya, 1993, 5 – Bukit Tinggi, 1994

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I. Townsend-Gault 6 – Balikpapan, 1995, 7 – Batam, 1996, 8 – Pacet Puncak, 1997 9 – Jakarta, 1998 10 – Bogor, 1999 11 – Cengkareng (follow-up meeting in Jakarta in August) both 2001 12 – Jakarta 2002 13 – Medan 2003 14 – Batam, 2004 15 – Anyer, Banten, 2005 16 – Bali, 2006 17 – Yogyakarta, 2007 18 – Menado, 2008.

Appendix II Law of the Sea Convention – selected articles Article 74 (and 83) 3. Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation. Part VIII, Regime of islands Article 121 Regime of islands 1 2

3

An island is a naturally formed area of land, surrounded by water, which is above water at high tide. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.

Part IX Enclosed or semi-enclosed seas Article 122 Definition For the purposes of this Convention, “enclosed or semi-enclosed sea” means a gulf, basin or sea surrounded by two or more States and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States.

The South China Sea Workshops 205 Article 123 Cooperation of States bordering enclosed or semi-enclosed seas

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States bordering an enclosed or semi-enclosed sea should cooperate with each other in the exercise of their rights and in the performance of their duties under this Convention. To this end they shall endeavour, directly or through an appropriate regional organization: (a) to coordinate the management, conservation, exploration and exploitation of the living resources of the sea; (b) to coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment; (c) to coordinate their scientific research policies and undertake where appropriate joint programmes of scientific research in the area; (d) to invite, as appropriate, other interested States or international organizations to cooperate with them in furtherance of the provisions of this article.

Notes 1 This amounted to some $5 million (Canadian) over 11 years. “Managing Potential Conflicts in the South China Sea” was the title given to the first tranche of funding we received, made available by the Management for Change Programme of CIDA – officials like to insert a variant of “Managing” in every initiative the program (now defunct) supported, and we retained it. 2 Some critics of our endeavors have called us to account for what they think we did, or should have done, as opposed to what we did or said we were trying to do, to which little or no attention was paid in some cases. This tends to render the views of these commentators of doubtful value. The University of Aarhus scholar Liselotte Odgaard has published some well informed analysis of the initiative: see her paper “Deterrence and Co-operation in the South China Sea,” Contemporary Southeast Asia 23, 2 (2001), pp. 292–306, and her more comprehensive The Balance of Power in Asia-Pacific Security: US–China Policies On Regional Order (London: Routledge, 2007), and “The South China Sea: ASEAN’s Security Concerns About China,” Security Dialogue 34, 1 (March 2003), pp. 11–24. 3 A complete list of meetings can be found in Appendix I to this chapter. 4 A very great deal has been written on this topic. The legal issues are well discussed in R. Haller-Trost, The Spratly Islands – A Study on the Limitations of International Law, Centre of South-East Asian Studies Occasional Paper No. 14 (University of Kent at Canterbury). Some idea of the passions that can be aroused (and are hence best left well alone) can be gleaned from Leni Stenseth, “Nationalism and Foreign Policy – The Case of China’s Nansha Rhetoric,” Centre for Development ands Environment, University of Oslo, 1999. 5 See Ian Townsend-Gault, “Preventive Diplomacy and Pro-Activity in the South China Sea,” Contemporary Southeast Asia 20, 2 (August 1998), pp. 171–190. For a detailed account of the genesis and modus operandi of the project, see Hasjim Djalal and Ian Townsend-Gault, “Managing Potential Conflicts in the South China Sea: Informal Diplomacy for Conflict Prevention,” in C.A. Croker, F.O. Hampton, and P. Aall (eds), Herding Cats: Multiparty Mediation in a Complex World (Washington DC: United States Institute of Peace Press, 1999), pp. 107–134. 6 The Southeast Asia Programme in Ocean Law, Policy, and Management, which was established in 1983.

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7 United Nations Convention on the Law of the Sea, Montego Bay, December 10, 1982, in force October 16, 1994, United Nations Treaty Series, Vol. 1833, p. 3. As of July 22, 2007, the website of the United Nations lists 155 states as parties to this Agreement. 8 For example, a web search for “semi-enclosed seas” shows the extent of scientific concern for these areas and their management, but comparatively little interest on the part of international lawyers. 9 See Appendix II for the text of this provision. 10 The term “rock” is not defined in the Convention. However, the rules of interpretation enshrined in the Vienna Convention on the Law of Treaties confine the interpretive urgings of the more fanciful analysts somewhat: the range of meaning encompassed by this term cannot be especially broad. For a more detailed treatment, see the chapter by Dr Schofield in the present volume, and his references at notes 50–53. 11 Article 121 is reproduced in its entirety in Appendix II. 12 For a feature-by-feature evaluation in terms of Article 121, see D. Hancox and J.R.V. Prescott, A Geographical Description of the Spratly Islands and An Account of Hydrographic Surveys Amongst Those Islands, Maritime Briefing 1, 6 (Durham: International Boundaries Research Unit, 1995). 13 The Convention does not offer a definition of “artificial island,” but none is required. Jurisdictional significance attaches only to “islands” as defined by Article 121(1). 14 See the list of the meetings in Appendix I. This Technical Working Group had more meetings than any other, the results of which are considered in Tom Naess, “Environmental Cooperation around the South China Sea: The Experience of the South China Sea Workshops and the United Nations’ Strategic Action Programme,” Pacific Review 14, 4 (2001), pp. 553–573; and the same author’s “Dangers to the Environment,” in Timo Kivimäki (ed.), War or Peace in the South China Sea? (Copenhagen, NIAS Press, 2002), pp. 42–53. 15 This again illustrates the value participants ascribed to the Process. If the Workshops did not matter to participants or the authorities which sent them, why would anyone spend time on (sometimes minor) differences of opinion on the wording of the Statement? Copies of meeting reports are available from the author. 16 State rights over the living and non-living resources of the EEZ and the continental shelf amount to “sovereign rights for the purposes of” exploration and exploitation. See Convention on the Continental Shelf, Article 2; Law of the Sea Convention, Articles 56 (EEZ) and 77 (Continental Shelf). 17 See Appendix II for the text of Article 123. 18 Since drafting these remarks, the Argentine government has announced the termination of the Agreement! That does not alter the fact that it was made. 19 For an alternative view of how this matter might be settled, see L. McManus, “The Spratly Islands: A Marine Park?” Ambio 23, 3 (May 1994), pp. 181–186. Seen by some as a Quixotic notion when published, Dr McManus’ idea might now be regarded as a principled proposal, and one most suitable to capturing the true potential of these features in an entirely sustainable way.

13 The Declaration on the Conduct of Parties in the South China Sea A Vietnamese perspective, 2002–2007

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Nguyen Hong Thao

Introduction In the last three decades of the twentieth century, the South China Sea became known as a significant “hot spot” in the world where risks of conflict were deemed to exist. There were at least three military clashes during these decades involving the use of force or the threat to use force: in 1974 on the Paracels archipelago, in 1988 at the Fiery Cross Reef, and in 1995 at Mischief Reef in the Spratly archipelago. Tension has been increased by the strategic position of the sea, by territorial conflicts over the Paracels and Spratlys, by the battle for natural resources, and by developments in the Law of the Sea that have allowed countries to claim wider areas of maritime jurisdiction. The South China Sea is the second largest sea in the world with an area of 648,000 square nautical miles.1 This makes it twice as large as the Sea of Japan. The sea encompasses vital sea routes linking the Pacific and the Indian Ocean. Over half of the world’s merchant fleet (by tonnage) sails through the South China Sea every year,2 especially to or from the Strait of Malacca, which is one of the most important straits in the world. This sea is the route for most fuel transported by sea from the Middle East and Africa to Japan, China, and South Korea.3 If the sea lines of communication were cut by armed conflict in the Spratly/South China Sea area as a result of territorial and/or jurisdictional disputes, the economic interests of countries in the Asia Pacific region, including the United States, would be adversely affected.4 The South China Sea is surrounded by ten coastal states, including some of the world’s most rapidly industrializing and fastest-growing countries. Their economic growth depends to some extent on the exploitation of fish and oil resources of the sea.5 In 1987 the South China Sea Institute of Oceanology conducted a geophysical survey of portions of the Spratlys and confirmed strong evidence of commercial oilfields. The Chinese in 1989 sent a survey vessel through the South China Sea and estimated that the Spratlys held deposits of 25 billion cubic meters of natural gas, 370,000 tons of phosphorus and 105 billion barrels of oil with an additional 91 billion barrels of oil in the James Shoal area off the North Borneo coast. In 1988, US geologists estimated reserves of 2.1–15.8 billion barrels of oil while Russian estimates are 7.5 billion barrel of oil equivalents, 70 percent of which are probably gas resources.

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The South China Sea has also two strategically important archipelagos, the Paracels and the Spratlys (Hoang Sa and Truong Sa in Vietnamese), spreading over a large area. These islands have been the subject of disputes for a long time. Apart from those disputes, the region is also an area requiring a great number of maritime boundary delimitations – about 20 boundaries need to be settled. Finally, piracy and armed robbery are present in the region with about half of the world’s reported cases of piracy occurring in Southeast Asia.6 In addition, coastal countries face transboundary issues such as marine pollution, and the management of straddling and highly migratory fish stocks. The South China Sea constitutes an arena for competing security interests. It is in the interest of all the claimants to actively seek solutions to the transboundary problems, to avoid military action, and to promote the peaceful settlement of disputes and cooperation.

Progress towards the Declaration on the Conduct of Parties in the South China Sea (DOC) From 1990 to 2003, Indonesia and Canada promoted the Workshops on Managing Potential Conflicts in the South China Sea.7 This Track Two mechanism helped to promote friendship and understanding between technical and juridical experts from the various claimant and non-claimant countries on joint research projects. However, this informal meeting mechanism did not touch on the sovereignty issues. It invited the claimant parties to consider a code of conduct as one of the confidence-building measures. In the same spirit, the 1992 ASEAN Declaration on the South China Sea8 and the 1995 Statement by the ASEAN Foreign Ministers on the Recent Developments in the South China Sea9 contended that all parties should apply the principles contained in the Treaty of Amity and Cooperation in Southeast Asia (TAC) as the basis for establishing a code of international conduct for the South China Sea. The code of conduct of concerned parties would have the purpose of creating an atmosphere of security and stability in the region. The first code of conduct was concluded between China and the Philippines in the Joint Statement RP–PRC Consultations on the South China Sea and on Other Areas of Cooperation on August 1995.10 The joint China–Philippines statement, in May 2000, on the framework for bilateral cooperation, section 9 said: The two sides commit themselves to the maintenance of peace and stability in the South China Sea. They agreed to promote a peaceful settlement of disputes through bilateral friendly consultations and negotiations in accordance with universally recognized principles of international law, including the 1982 United Nations Convention on the Law of the Sea. They reaffirmed their adherence to the 1995 joint statement between the two countries on the South China Sea and agreed not to take actions that might complicate or escalate the situation. The two sides expressed their determination to follow through the work of the China-Philippines Working Group on Confidence-building measures to enhance peace and stability in the

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region. They reiterated that they will contribute positively towards the formulation and adoption of the regional Code of Conduct in the South China Sea.”11 Three months later, the second code of conduct was approved by the Joint Statement on the Fourth Annual Bilateral Consultations between the Philippines and Vietnam in November 1995.12 In spite of difference of phrases and wording, the two codes of conduct demonstrated the willingness and determination of the parties concerned to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea (UNCLOS).13 The claimant parties undertook also to promote suitable forms of bilateral and multilateral cooperation in the fields of protection of the marine environment, safety of navigation, prevention of piracy, marine scientific research, disaster mitigation and control, search and rescue operations, meteorology, and maritime pollution control. The two codes served as a firm basis for the ASEAN–China consultations on the regional code of conduct. The Philippines and Vietnam were actively involved in the ASEAN–China dialogue. However the success of the talks depended much on the attitude of China, which as a claimant country preferred to hold talks on the South China Sea issues on a bilateral basis rather than on a multilateral one. At the ASEAN–China experts meeting held in Nanning, China, on April 6, 1999, Beijing deleted the question of having an ASEAN–China code of conduct from the meeting agenda. However, efforts by the Philippines, Vietnam, and other ASEAN members, and a slight change in Chinese foreign policy,14 led to the first ASEAN–China consultations on the code of conduct in the South China Sea in March 2000, at Hua Hin, Thailand. ASEAN desired a code of conduct for concerned parties to avoid any expansion of the existing military presence and to promote transparent cooperation in the whole South China Sea, including in the Spratlys and Paracels. In the Joint Communiqué of the 35th ASEAN Ministerial Meeting, Bandar Seri Begawan, July 29–30, 2002 (paragraph 40) ASEAN foreign ministers, inter alia, reaffirm that the adoption of a code of conduct in the South China Sea would further promote peace and stability in the region and agreed to work towards a Declaration on the Conduct of Parties in the South China Sea. In this regard, we agreed to work closely with China with a view to adopting the Declaration. China focused attention on cooperation and how to promote the exploitation of resources in the Spratly area. Two years of discussions brought a compromise result. The DOC was adopted on November 4, 2002, during the Eighth ASEAN Summit in Phnom Penh, Cambodia. It is more political and general than a code

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of conduct. It is limited in showing the desire of concerned parties for peaceful settlement of disputes and for cooperation in some less sensitive fields. It has not demanded any obligation and commitment, and some difficulties might lie ahead with its implementation. The DOC has been welcomed as a “major leap for peace,”15 a necessary step in the process aiming at establishing and agreeing on a code of conduct in the South China Sea. It became the first political document relating to the South China Sea concluded between ASEAN and China. Both parties consider that this event has made an important contribution to the maintenance of peace and security in the region and in promoting development and cooperation. The major achievement of the DOC was on de-escalating the sovereignty and jurisdictional disputes and preventing potential conflict in the South China Sea.16

The content of the DOC The DOC is a political document designed to reduce tensions, promote cooperation, build confidence between ASEAN and China, and create favorable conditions for the settlement of disputes in the South China Sea through peaceful negotiations, consultations, cooperation, and other confidence-building measures. It contains provisions to govern the conduct of parties to reduce tensions in the settlement of the territorial and jurisdictional disputes in the South China Sea. Paragraph 4 of the DOC states: The parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea. The key principles mentioned by the Declaration on the Conduct of Parties in the South China Sea are as follows: • • • • • • •

prohibition of the use of force and threats of force; exercise of self-restraint; peaceful settlement of international disputes; search for and adoption of confidence building mesures; cooperation; consultation; respect for the freedom of international air and maritime navigation.17

The DOC provides a framework of conduct for all parties, ASEAN members, whether directly or indirectly concerned in the disputes, and China. It aims to avoid military actions and to promote both the implementation of confidencebuilding measures in less sensitive fields and mutual understanding between

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ASEAN and China. The parties concerned may explore or undertake cooperative activities such as the following:

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• • • • •

marine environmental protection; marine scientific research; safety of navigation and communication at sea; search and rescue operation; combating transnational crime, including, but not limited to, trafficking in illicit drugs, piracy and armed robbery at sea, and illegal traffic in arms.

Implementation of the DOC Self-restraint and reduction of tension in the disputed areas Since 2002, the DOC has been regularly mentioned in official speeches where, for example, claimant countries have made commitments to efforts to maintain peace and stability in the region. At the ASEAN–China Senior Officials Meeting held in Fukien, China on August 18–19, 2003, China officially submitted the application form to join the Treaty of Amity and Cooperation in Southeast Asia (TAC).18 ASEAN countries considered this development to be highly significant for peace, stability, and prosperity in the region. Both sides emphasized the need to implement the spirit of the DOC for keeping peace and stability in the region.19 “More contacts, less confrontation” has become the main idea for ASEAN–China relations. Thailand, Vietnam, and Malaysia have established mechanisms for security dialogues with China. New hotlines have been set up between the naval forces of China and the ASEAN countries. The Philippines and Vietnamese officials have had talks about organizing sports competitions between the garrisons in the Spratlys.20 In April and November 2006, the two first joint patrols were conducted by the Chinese and Vietnamese naval forces in the Gulf of Tonkin. The level of tension in the South China Sea has been considerably reduced since 2002. However, it is naïve to believe that the parties ceased activities that could complicate the situation. China has renewed its annual prohibition on fishing in the South China Sea for two months June 1–July 31, which has applied since 1999. Each year China has conducted programs of marine research in areas adjacent to the coasts of other countries in the South China Sea. These include the activities of the research vessel Nanhai 215 with the oil drilling platform Kantan 3 near the central part of Vietnam in November 2004, and the research vessels Nordic Explore from April to July 2005 and Nanhai 3 and Nanhai 4 in April 2007. All these actions were implemented without Vietnamese consent. China Maritime Information Radio advised on November 19, 2004 that the oil drilling platform Kantan 3 of China, hauled by the Nanhai 215 from Shanghai to an area with the coordinate position of latitude 17o26’’42? N and longitude 108o19’05? E, 63 nautical miles off the coast of Vietnam and 67 nautical miles off the coast of China’s Hainan Island, would operate from November 19, to December 31, 2004. The Vietnamese Foreign Ministry’s spokesman made a protest on the same day:

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According to international law, particularly the 1982 United Nations Convention on the Law of the Sea, this area lies entirely within the exclusive economic zone and continental shelf of Vietnam. That China puts its oil drilling rig into operation in this area is a serious violation against the sovereign rights and national jurisdiction of Vietnam. Prompted by the relations of friendship and cooperation between the two countries, Vietnam has contacted China and requested her to strictly abide by the agreements reached between the two parties, not to move the Kantan 3 oil drilling platform to the above-mentioned area and to refrain from complicating the situation in detriment to the bilateral ties.21 In November 2003, the Filipino naval force discovered marks erected by China on some uninhabited islets of the Spratly group.22 However, the affair was controlled by both parties to avoid any adverse influence on the progress of contact between Chinese National Offshore Oil Company (CNOOC) and the Philippines National Oil Company (PNOC).23 On April 3, 2004, the Chinese Liberation Army News announced that a new type of maritime lighthouse was put up in the Spratlys on the Hoa Duong shoal. Chinese–Vietnamese relations were negatively affected by the events of January 8, 2005 when some Vietnamese fishermen were attacked, killed, injured, or captured by Chinese naval patrol police in the western side of the Tonkin Gulf delimitation line in the common fishing area. The Vietnamese Foreign Ministry considered the use of weapons by Chinese naval patrol police to kill innocent Vietnamese was a serious violation of international law, the Agreement on the Delimitation of the Tonkin Gulf, the Vietnam–China Fishery Cooperation Agreement, and agreements by high-level leaders of the two countries, hurting the friendship between the peoples of the two countries. However, both parties showed a high level of self-restraint to prevent any negative escalation.24 In November 2006, China constructed sovereignty markers at some basepoints of territorial waters including those in the Hoang Sa archipelago of Vietnam. China announced those actions were in accordance with the “Ordinance on territorial waters and adjacent areas of the PR of China in 1992” and the “Statement of the Government of the PR of China on the territorial baseline of the PR of China in 1996.” In response, Vietnam reaffirmed its sovereignty over the Hoang Sa and once again reiterated its policy of resolving all disputes at sea with countries concerned through peaceful means on the basis of mutual respect for independence and sovereignty, in accordance with international law and practice, especially UNCLOS and the DOC, in order to enhance friendship and cooperation and maintain peace and stability in the Eastern Sea.25 On January 16, 2007, the Hydrometeorology Authority of Hainan announced its construction of an automatic meteorology station in the Spratlys. In 2007, China opened the concession and invited bids for 22 petroleum blocks in the South China Sea, up to 1,000 miles from Hainan. However, in April 2007, Chinese Foreign Ministry’s spokesman protested Vietnam’s concession and bidding invitations and its cooperation with British Petroleum to build a gas

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pipeline near the southern coast of Vietnam that China considered an adjacent maritime area of the Spratlys, although it is over 200 nautical miles from the archipelago.26 China’s Foreign Ministry spokesperson Qin Gang said Vietnam’s action “goes against the important consensus reached by the leaders of the two countries on the maritime issue.”27 With the following phrase, “any unilateral action taken by any other country in these waters constitutes infringement into China’s sovereignty, territorial rights and jurisdiction,” Qin slipped back into Chinese rhetoric to claim most of the South China Sea by the so-called nine dotted lines.28 Vietnam reaffirmed that the project between Vietnam Petroleum and British Petroleum, realized since 2000, is located in Vietnam’s exclusive economic zone and continental shelf, which are entirely within Vietnam’s sovereignty rights. All activities conducted by Vietnam in its archipelagos and waters including concessions and gas exploration and exploitation are absolutely normal activities, in conformity with Vietnamese laws and international laws and practices, particularly UNCLOS and the spirit of the DOC.29 The next Chinese response was new propaganda with 418 maps showing the dotted lines in the South China Sea on the public website.30 In April 2007, both Chinese and Vietnamese spokesmen continued to exchange comments over the upgrading of the Spratlys to a higher administrative level by Vietnam. China refers to 2007 as the year of moving to the seas and oceans while Vietnam approved the Resolution on making a Maritime Strategy of Vietnam to 2020 on January 24, 2007.31 However, the two countries successfully showed their self-restraint in achieving an agreement on keeping peace and stability in the South China Sea during the official visits of the Vietnamese National Assembly Chairman, Nguyen Phu Trong, to Beijing from April 9–17 and of the President of Socialist Republic of Vietnam, Nguyen Minh Triet, on May 16, 2007.32 On August 19, 2003 a satellite control post was installed by Taiwan on Itu Aba and this was witnessed by the Taiwanese Minister of Interior Affairs.33 On October 31, 2003, a Vietnamese Foreign Affairs spokesman protested against activities by Taiwan in putting up an observation post on Banthan, a low-tide elevation near Itu Aba.34 In April 2004, a tourist tour to the Spratlys was organized by the Vietnam National Administration of Tourism. Participants on the trip were only Vietnamese tourists – foreigners were not invited yet. Vietnamese authorities considered that It was a normal civil activity of Vietnam to organize tours to the Spratly Islands, a part of Vietnam’s territory, to meet tourist needs of the people. As a signatory to the November 2002 Declaration of Conducts of Parties in the South China Sea between ASEAN and China, Vietnam is committed to joining efforts with other parties to strictly observe the DOC in order to maintain peace and stability in the Eastern Sea.35 Beijing immediately voiced objections to the Spratly tour organized by Vietnam while the Philippine’s Foreign Minister made his statement that the Philippines would not object to Vietnam’s plan to bring tourists to Truong Sa island.36

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At the same time, Taiwan built a so-called simple birdwatching stand in the Spratlys. This action was rejected by a Vietnamese spokesman on April 15, 2004:

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Any act taken at Truong Sa archipelago without Vietnam’s approval is a violation of Vietnam’s territorial sovereignty. Vietnam expresses its strong protest and demands Taiwan immediately put an end to its violation of Vietnam’s territorial sovereignty, not execute similar activities at Truong Sa archipelago of Vietnam.37 In December 2005, Taiwan announced the plan to construct a runway on Ba Binh island (Itu-Aba).38 On February 12–13, 2007 Taiwan conducted a naval artillery exercise to the west of Itu Aba.39According to some researchers, these acts by Taiwan have the objective of strengthening their independent policy in response to the exclusion of Taipei from the process of formulating a regional code of conduct.40 In April 2006, the Chinese fishing vessel Jinghai 03012 was shot at by a strange vessel near the Philippines. Four fishermen were killed and three others wounded. The Chinese newspapers reported that it seemed to be an organized attack. The Chinese Foreign Ministry demanded an immediate investigation and called on the coastal states of the South China Sea to ensure the safety of fishermen working normally in the area. The Philippines authority denied any involvement of their naval forces and considered that the attack was an act of piracy.41 On June 25, 2006, the Philippines army confirmed that it was carrying out the maintenance and construction of a runway on Pag-Asa Island. A group of journalists was invited to fly over this island and other islands whose sovereignty is claimed by the Philippines.42 Malaysia also has plans to run tourist tours and to reconstruct features under its control. Paragraph 5 of the DOC indicates that parties must exercise self-restraint in conducting activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from occupying presently uninhabited islands, reefs, shoals, cays, and other features, and must handle their differences in a constructive manner. However the provisions of the DOC have not given a clear answer on questions about what kind of activities might complicate or escalate the disputes. The parties concerned have continued to erect new structures or consolidate existing ones on features they already occupy. The judgment of the International Court of Justice (ICJ). “Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia),” on December 17, 2002, finds that the sovereignty over the islands belongs to Malaysia by virtue of the effectivité done by them. This judgment urges concerned parties in the South China Sea to carry out more activities to prove their presence, their effectivité in disputed areas.43 Military actions have considerably reduced. However the struggle for sovereignty and control has not declined. It has been escalated by civilian actions of concerned parties, from research actions to the birdwatching stand. The unclear provisions of the DOC have complicated the situation. To achieve the

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objective of restraining disputes, the concerned parties must not be satisfied only with the DOC. They must develop new guidelines for its implementation.

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Specific cooperation Cooperation in less sensitive fields is an important aspect of the DOC. However until 2006, the concerned parties had only agreed to provide a list of cooperative projects. The second meeting of the ASEAN–China Joint Working Group on the implementation of the Declaration on the Conduct of Parties in the South China Sea held in Sanya City, Hainan, China, on February 8–9, 2006, agreed six projects to be implemented from 2006: 1 2 3

4 5 6

Joint ASEAN–China Table Top Maritime Search and Rescue Exercise. The Philippines are in charge of preparing a paper on the project. Workshop on Marine Ecosystems and Biodiversity. This workshop will be funded by the ASEAN–China Cooperation Fund (ACCP). Workshop on Regional Oceanographic and Climate Exchanges in the South China Sea. Vietnam is responsible for preparing and circulating the paper on the project. Workshop on Disaster Prevention and Reduction, Establishing Disaster Monitoring and Warning System in the South China Sea. Training Program on Ecosystem Monitoring and Monitoring Technology. Regional Oceanographic Exchange around the South China Sea. China will take charge of providing further details on the three last projects for consideration at later meetings.44

The second ASEAN–China Senior Officials’ Meeting on the Implementation of the Declaration on the Conduct of Parties in the South China Sea recommended that these six DOC projects should be considered as joint ASEAN–China projects. They would receive funding support from the ASEAN–China Cooperation Fund (ACCF). In addition, ASEAN member countries and China would provide in-kind contributions in implementing the projects.45 This is a new step in implementing the DOC. The projects seem have evolved from those carried out under the framework of the Workshop on Managing Potential Conflicts in the South China Sea. However the projects now have an official character rather than one in Track Two. This character will ensure the success of the projects with a commitment of parties to move forward with the implementation of the DOC. In the second meeting of the Technical Working Group (TWG) on the implementation of the Declaration on the Conduct of Parties in the South China Sea, the proposal of the Philippines to convene a Seminar on Elements of the Regional Code of Conduct in the South China Sea and the proposal from China to hold a Workshop on Geosciences Cooperation were set aside for the time being.46 While ASEAN has not forgotten their objective to move toward a regional code of conduct, China seems more focused on developing the resources in the disputed areas.

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On August 31, 2003, during the visit of the Chinese Peoples’ Congress Chairman to the Philippines, the two national petroleum companies, the Chinese National Offshore Oil Company (CNOOC) and the Philippines National Oil Company (PNOC), had contact to discuss joint action in the South China Sea. As a result, the agreement between the two companies on the seismic survey of the South China Sea was signed on September 1, 2004.47 The area of the seismic survey covers some parts of the Spratly archipelago. Vietnam immediately reiterated its claims to sovereignty over both the Spratly and the Paracel archipelagos. It has officially stated that the agreement was concluded without consulting other parties and was not in the spirit of the DOC.48 Vietnam has requested China and the Philippines to be transparent about the content of the agreement and has called on all other signatories of the DOC to join Vietnam in “strictly implementing the DOC.”49 Marine scientific research for peaceful purposes can be carried out with the consent of concerned parties and without prejudice to the sovereignty claims of the parties concerned. Six months of active Vietnamese pressure, supported by other countries, produced a so-called “turning point” in the South China Sea issue. On March 14, 2004 a Tripartite Agreement for Joint Marine Seismic Undertaking in the Agreement Area in the South China Sea was signed between PNOC, PetroVietnam, and CNOOC. This agreement covered three years of seismic survey and research over a 143,000-square-kilometer area in the South China Sea, which included the disputed Spratlys. The three national oil firms will equally share the costs involved in conducting seismic research within the agreement area, which come to around $7.14 million over the three-year period.50 Philippine President Gloria Arroyo called the tripartite agreement “a historic event because it is the first, it is the breakthrough in implementing the provisions of the Code of Conduct in the South China Sea” that was signed in 2002 by China and the 10-member Association of Southeast Asian Nations (ASEAN).51 The signing of the agreement “would not undermine the basic position held by the Government of each party on the South China Sea issue.” However, the parties expressed their “resolve to transform the South China Sea into an area of peace, stability, cooperation and development.”52 At the thirteenth round of the Vietnam–China border and territory negotiations held in Nanning, China, January 19–20, 2007, Vietnam and China made a positive assessment on the result of the implementation of the Tripartite Agreement for Joint Marine Seismic Undertaking in the Agreement Area in the South China Sea and agreed to continue cooperation in executing the agreement.53 The initiative taken by the three national oil companies seems to lay the ground for joint cooperation in the development of resources without prejudice to the sensitive sovereignty issues at the intergovernment level. However this activity has been carried out within the framework of marine scientific research and has so far avoided any joint arrangement to exploit the resources of the disputed areas. The Joint Oceanographic Marine Scientific Expedition in the South China Sea (JOMSRE-SCS) is another example of cooperation in the spirit of the DOC. The

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initiative was launched by the agreement entered into in 1994 by then Philippine President Fidel V. Ramos and Vietnamese President Le Duc Anh to cooperate in marine scientific research and environmental protection of the South China Sea. The first expedition was undertaken in April 1996, and the second in May 2000. Marine research fellows from the two countries carried out their joint research activities on the same ship. JOMSRE-SCS III, which was realized between April 6 and 9, 2005,54 also had outside participants, including American and Canadian observers. On March 11, 2005, in response to a question on China’s views on the reports that Vietnam and the Philippines would conduct “joint marine research” in the South China Sea, the spokesman of China’s Ministry of Foreign Affairs announced China’s “concern” about the joint marine research and that the “relevant parties” should follow the “principles enshrined in the Declaration on the Declaration on Conduct of parties in the South China Sea.”55 In April 2007, for the JOMSRE-SCS IV, China expressed willingness to join the research as a signatory of the DOC. Korea also showed interest in order to learn from the experience of JOMSRE-SCS in dealing with disputes in East Sea (the Sea of Japan). The scientists held a press conference in Manila after visiting North Danger Reef and Jackson Atoll in the disputed Spratly Islands, from April 16 to May 1, on board the BRP Hydrographer Ventura of the National Mapping and Research Information Authority (DENR NAMRIA). They said that while the Spratly Islands were thought to be one of the most important fishing grounds in Southeast Asia, studies have shown that most of the fish and marine organisms have started to disappear. The scientists noted that there was a need for continued dialogue between Vietnam and the Philippines, as well as with the other claimant nations, in order to come up with the necessary steps to protect the reefs in the Spratlys.56 In the field of anti-piracy cooperation, the spirit of the DOC has also been respected. The ASEAN states, China, and five other countries (Japan, Korea, India, Bangladesh, and Sri Lanka) have developed a Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP) since 2004. The Agreement is based on three pillars: information sharing, capacity building, and cooperative exercise. Search and rescue operations for fishermen in the South China Sea have also received more attention. In March 2004, 11 Filipino fishermen aboard the fishing boat MP Rene Boy severely damaged by bad weather were rescued by Vietnamese fishing vessel, BD 1297. The Philippines government sent a letter to thank the government of Vietnam for that rescue and assistance.57 The Vietnamese garrison in the Spratlys has given assistance to Chinese fishing boats that have sunk in the area. In response, the Vietnamese government and people did not forget the assistance of China for the Vietnamese victims of Chanchou typhoon in 2005.58

DOC institutions and guidelines for the implementation The DOC is gradually being recognized as a guideline for behavior and state-tostate relations over the South China Sea issue. The implementation of the DOC

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has a double objective: to formulate trust and confidence among the claimants and to lead to the establishment of a Regional Code of Conduct in the South China Sea. For realizing these objectives, the first ASEAN–China Senior Officials Meeting on the implementation of the DOC, held on December 7, 2004 in Kuala Lumpur, decided to establish the ASEAN–China Joint Working Group. The mandate of the JWG is to recommend guidelines for the implementation of the DOC and concrete cooperative activities. At the first meeting of the ASEAN–China Joint Working Group held on August 4–5, 2005 in Manila, Philippines, ASEAN presented the draft of guidelines for discussion. This proposal consists of seven points as follows: 1 2 3 4 5 6

7

The implementation of the DOC should be carried out in a step-by-step approach in line with the provisions of the DOC. ASEAN will continue its current practice of consulting among each other before meeting China. The implementation of the DOC should be based on activities or projects clearly identified. The participation in the activities or projects should be carried out on a voluntary basis. Initial activities to be undertaken under the ambit of the DOC should be confidence-building measures. The decision to implement concrete measures or activities of the DOC should be based on consensus among parties concerned, and lead to the eventual realization of the Code of Conduct. In the implementation of the agreed projects under the DOC, the services of the Experts and Eminent Persons, if deemed necessary, will be sought to provide specific inputs on the projects concerned.

At the second ASEAN–China Senior Officials Meeting in Siem Reap, Cambodia, May 2006, signatories of the DOC discussed and exchanged views on the guidelines proposed by ASEAN. The meeting approved the six DOC projects. However those projects will not be implemented until there is a consensus on the guidelines for the implementation of the DOC.

Conclusion The implementation of the DOC has both advantages and challenges. The DOC has created an important platform for the reduction of tension and for cooperation between claimants. The DOC provided a clear signal to the international community that ASEAN and China can work together in looking for a peaceful and acceptable solution to disputes in the South China Sea. The implementation of projects in the framework of DOC is built on past and existing activities amongst ASEAN members and between ASEAN and China. It will create more frequent and intensive contacts between claimants, as well as more trust and confidence between them. They can help to realize the step-by-step building of

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functional cooperative arrangements. The success of implementation of the DOC can lead toward a regional code of conduct. However, the implementation of DOC projects depends on approval of the ASEAN–China guidelines and the good faith of all claimants. ASEAN member countries should unify their position on the implementation of the DOC, and must be active in working together with China to move forward with the implementation of the DOC. The transformation of the South China Sea into a sea of peace and cooperation requires that the concerned parties exercise self-restraint and avoid any complicated or escalatory action; follow the provisions and guidelines of the DOC for their behavior; and proceed through a step-by-step process to achieve the regional code of conduct.

Notes 1 Yves Lacoste, “Mer de Chine ou Mer de l’Asie du Sud-Est,” Heredote 2ème Trimestre, Paris 1981, pp. 8–13. 2 John H. Noer and David Gregory, Chokepoints – Maritime Economic Concerns in Southeast Asia (Washington, DC: National Defense University Press, 1996), p. 3. 3 “The New Energy Strategy for the Peaceful Development of China,” Economy and World Policy (China) 1 (2005). About 70 percent of the fuel imports of Japan, China, and South Korea are transported by sea throughout the South China Sea. 4 Yann-huei Song, “Confidence Building and Confidence Management: US Approaches to Resolving the South China Sea Disputes,” Presentation at the conference “Human and Regional Security around the South China Sea,” Oslo, June 2–4, 2000. The conference was organized by the Centre for Development and the Environment, University of Oslo, and sponsored by the European Science Foundation Asia Committee, the Norwegian Research Council, and Statoil. 5 Bruce Blanche and Jean Blanche, “Oil and Regional Stability in the South China Sea,” Jane’s Intelligence Review 7, 11 (November 1, 1995), p. 511. 6 Jakarta Post, October 22, 2003. According to the report of the ASEAN Conference on anti-piracy cooperation held in Medan, Indonesia, there were 42 cases of pirate attacks recorded in the Strait of Malacca in 2002. For recent information, see Joshua Ho and Jane Chan, “Report on Armed Robbery and Piracy in Southeast Asia 2006,” RSIS (S. Rajaratnam School of International Studies), Singapore, 2007. 7 Ian Townsend-Gault, “The Contribution of the South China Sea Workshops – Importance of a Functional Approach” and Hasjim Djalal, “The South China Sea: The Long Road Towards Peace and Cooperation” – papers presented at the RSIS conference, “The South China Sea: Towards a Cooperative Management Regime,” Singapore, May 16–17, 2007. 8 Liselotte Odgaard, “Deterrence and Cooperation in the South China Sea. An Analysis of the Spratly Dispute and Its Implications for Regional Order between the PRC and Southeast Asia after the Cold War,” University of Aarhus, Denmark, 1997, p. 316. 9 Ibid., p. 318. 10 Ibid., p. 328. 11 BBC/FE/3843:G/3. 12 Odgaard, “Deterrence and Cooperation,” p. 329. 13 Nguyen Hong Thao, “Vietnam and the Code of Conduct for the South China Sea,” Ocean Development and International Law 32, 2 (2001), pp. 105–130; See also Nguyen Hong Thao, “Declaration on Parties’ Conduct in South China Sea (the East Sea) – A Step Towards the Establishment of the Code of Conduct for the Region,” Vietnam Law and Legal Forum 9, 99 (2002), pp. 19–21.

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14 China’s Prime Minister Zhu Rongji’s speech at the meeting with Singapore Prime Minister Goh Chok Tong on November 29, 1999; Asian Wall Street Journal, November 30, 1999. 15 The words used by the Philippine Secretary of Foreign Affairs, Blas F. Ople, to call the Agreement on DOC. The Chinese Vice Foreign Minister Wang Yi said the Agreement would not solve territorial conflicts, but would allow peace to reign and help claimant countries focus on economic development. See “Asean, China Sign Pact on Disputed Spratly,” www.CNN.com, November 4, 2002. 16 Robert Beckman, “Joint Development in the South China Sea: Time for ASEAN and China to Promote Cooperation?” RSIS Commentaries, May 29, 2007. 17 For the text of the ASEAN–China DOC 2002, see Nguyen, “Declaration on Parties,” pp. 19–21. 18 Xinhua News Agency, “China Joins Treaty on Cooperation with ASEAN Countries,” June 29, 2003. 19 Hanoi Moi (New Hanoi), August 20, 2003. 20 Yomiuri, Tokyo, March 3, 2003. Talks between Minister of Foreign Affairs of SRV, H.E. Nguyen Dy Nien, and Assistant to the Minister of the State Department of the Philippines, H.E. Antonio Rodriguez, February 26–28, 2003 in Manila. 21 Speech of the Vietnamese spokesman on December 19, 2004, see www.mofa.gov.vn. 22 Associated Press and Agence France-Presse (Manila) on November 7, 2003. Voice of America,November 7, 2003. 23 Radio France Internationale (RFI), November 13, 2003. 24 Sankei (Taipei), January 12, 2005; BBC, RFI, January 13, 2005; speech of the Vietnamese spokesman on January 13, 2005, see www.mofa.gov.vn. 25 Speech of the Vietnamese spokesman on December 28, 2006, see www.mofa.gov.vn. 26 Andrew Symon, “China, Vietnam Spar Over Gas,” Asia Times Online, May 1, 2007. 27 Ibid. 28 Ibid. 29 Speech of the Vietnamese spokesman on April 11, 2007, see www.mofa.gov.vn. 30 BBC, July 13, 2007, with the comment on the speech of the Vietnamese spokesman protesting that action. 31 Nguyen Hong Thao, “Vietnam Determines to Acquire Wealth from the Sea,” Vietnam Law and Legal Forum, 13, 152 (April 2007), pp. 13–16. 32 Nhan Dan, May 18, 2007. 33 Sankei (Taipei), August 20, 2003. 34 Speech of the Vietnamese spokesman on October 31, 2003, see www.mofa.gov.vn. 35 Speech of the Vietnamese spokesman on April 8, 2004, see www.mofa.gov.vn. 36 Kyodo News, April 8, 2004. Nguoi Lao Dong (Laborers), April 9, 2004. Philippine Foreign Minister, Delia Albert, is quoted as saying: There is nothing wrong in Vietnam’s plan to make the Spratly Islands into a tourist spot. Any tourists can be eligible to visit if they don’t have other purposes. Vietnam does not violate the Declaration on the Conduct in the East Sea signed in 2002 by ASEAN member states and China. (www.vov.org.vn/2004_04_10/english/datnuocquabaochi%20.htm) 37 Speech of the Vietnamese spokesman on April 15, 2004, see www.mofa.gov.vn. 38 Taiwan News, December 16, 2005, 13:42:12. Speech of the Vietnamese spokesman on December 29, 2005, see www.mofa.gov.vn. 39 Radio Free Asia, February, 2007. 40 Yann-huei Song, “South China Sea Code of Conduct and Taiwan,” Pacific Forum CSIS, PacNet Newsletter 40, October 6, 2000; Stratfor, November 4, 2006; www.stratfor.com. 41 Southern Daily Newspaper on April 27, 2006; AFP on April 27, 2006; Beijing Youth Daily, May 2, 2006; Manila Standard, ABS-CBN, May 2, 2006. - a‚o, Hong Kong – June 26, 2006. 42 Tinh – D

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43 ICJ press release 2002/39 on December 17, 2002, The Court notes that the activities relied upon by Malaysia . . . are modest in number but . . . they are diverse in character and include legislative, administrative and quasi-judicial acts. They cover a considerable period of time and show a pattern revealing an intention to exercise State functions in respect of the two islands in the context of the administration of a wider range of islands.

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44 45 46 47

48 49

50 51 52

53 54

55 56 57 58

The Court further states that “at the time when these activities were carried out, neither Indonesia nor its predecessor, the Netherlands, ever expressed its disagreement or protest.” Report of the 2nd meeting of the ASEAN–China Joint Working Group on the implementation of the Declaration on the Conduct of Parties in the South China Sea held in Sanya City, Hainan, China on February 8–9, 2006. Summary Record of the 2nd ASEAN–China Senior Officials’ Meeting on the Implementation of the Declaration on the Conduct of Parties in the South China Sea, May 30, 2006, Siem Reap, Cambodia. Report of the 2nd meeting of the ASEAN–China Joint Working Group. The official announcement of the agreement was made by the Philippines on September 6, 2004 (“RP–China agreement on joint marine seismic undertaking in the sea constitutional – Rumulo/DFA hails PGMA’s successful state visit to China; Signed agreements to boost trade and investment between RP and China” SAF-AGR-524–04, September 2004, press release, Department of Foreign Affairs, see www.dfagov.ph/news/pr/ pr2004/sep/pr524.htm). www.mofa.gov.vn/en/tt_baochi/pbnfn/ns041028222202. Vietnam’s reaction to the agreement between China and the Philippines came on September 9, 2004 in response to a question raised by the correspondent of Agence France-Presse to the spokesperson of the Ministry of Foreign Affairs of Vietnam (“Answer to correspondent by Mr Le Dzung, the spokesman of the Vietnamese Ministry of Foreign Affairs on September 9, 2004”) see www.mofa.gov.vn/en/tt_ baochi/pbnfn/ns041028222202. Abigail L. Ho, “RP, China, Vietnam pursue Spratlys Project,” Inquirer, February 2, 2007. “China, Philippines, Vietnam Sign Joint South China Sea Oil Search Accord,” Manila Times, March 14, 2005. Information derived from “Tripartite Agreement for joint marine seismic undertaking in the agreement area in the South China Sea. Answer to correspondent by Mr Le Dzung, the spokesman of the Vietnamese Ministry of Foreign Affairs on March 14, 2005,” see www.mofa.gov.vn/tt_baochi/pbnfn/ns050314164241. “Vietnam, China Hold Government-Level Border Negotiations,” www.mofa.gov.vn, January 21, 2007. Information derived from “DFA-MOAC to host third joint scientific research expedition in the South China Sea,” SAF-AGR-133–05 (March 17, 2005), press release, Department for Foreign Affairs, see www.dfa.gov.ph/news/pr/pr2005/mar/pr133.htm. The Vietnamese counterpart was the Academy of Science and Technology of Vietnam. See “Information on Vietnam-Philippines joint scientific expedition in April 2005 in the East Sea. Answer to correspondent by Mr Le Dzung, the spokesman of the Vietnamese Ministry of Foreign Affairs on March 15, 2005,” www.mofa.gov.vn/tt_ baochi/pbnfn/ns050315170200. Information derived from “Foreign Ministry spokesman Kong Quan’s comment on Philippines-Vietnamese joint marine research in the South China Sea, 2005/03/11,” see www.fmprc.gov.cn/eng/xwfw/s2510/t186844.htm. Alex Pal andVisayas Bureau, “Spratly’s Fish Stock Dwindling, Say Scientists,” Inquirer, May 3, 2007. SFA-DDA-18704, March 25, 2004, at www.dfa.gov.ph/news. www.laodong.com.vn.

14 Legal regimes for cooperation in the South China Sea

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Robert C. Beckman

Introduction Any discussion on legal regimes for cooperation in the South China Sea must begin with a discussion of the United Nations Convention on the Law of the Sea 1982 (UNCLOS).1 I first explain the limitations of UNCLOS and international law in resolving the sovereignty and jurisdictional disputes in the South China Sea. I then examine the relevant provisions of UNCLOS on the claims and maritime boundary issues. I then analyze the 2002 Declaration on the Conduct of Parties in the South China Sea, which sets out the fundamental principles upon which cooperation can be based. I then summarize the lessons that can be learned from the Workshops on Managing Potential Conflicts in the South China Sea, and examine selected legal regimes from inside and outside the region to try to identify features that could be used as precedents in cooperative arrangements in the South China Sea. Finally, I make two proposals for cooperative arrangements to provide better order in the South China Sea.

Limitations of UNCLOS and international law UNCLOS establishes a comprehensive legal framework for uses of the oceans. It entered into force in 1994 and as of April 4, 2007, there are 153 states parties,2 including the five claimant states, China, Brunei Darussalam, Malaysia, Philippines, and Vietnam. The sixth claimant, Chinese Taipei, is not eligible to become a party to UNCLOS, but to the extent that it is an entity with rights and obligations under international law, it is bound to comply with the relevant provisions of UNCLOS, as they would be binding under customary international law. The potential disputes in the South China Sea relate primarily to (1) sovereignty disputes over geographic features in the Spratly Islands archipelago; and (2) overlapping maritime boundaries. UNCLOS has clear limitations with respect to both categories of disputes. UNCLOS has no provisions setting out how sovereignty disputes over offshore islands are to be resolved. UNCLOS establishes rules for uses of the oceans adjacent to continental land territory and islands. UNCLOS assumes that

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there is no dispute over which state has sovereignty over the land territory and islands. If the sovereignty disputes over offshore islands were decided by a court or tribunal according to international law, they would be decided by the rules of customary international law on the acquisition and loss of territory. UNCLOS does have provisions on disputes over maritime boundaries, and such disputes can generally be referred to compulsory dispute settlement under UNCLOS. However, UNCLOS contains an optional exception for maritime boundary delimitation disputes that would necessarily involve the concurrent consideration of any unsettled dispute concerning sovereignty over land territory including offshore islands.3 On August 25, 2006, China made a declaration under Article 298 stating that it does not accept the compulsory dispute settlement procedures in Part XV with respect to all the categories of disputes referred to in paragraph 1 of Article 298.4 Therefore, the compulsory dispute settlement procedures in UNCLOS will not be available to determine any dispute with China with respect to the maritime boundaries in the South China Sea. Sovereignty disputes can only be referred to an international court or arbitral tribunal for resolution with the express consent of the states parties to the dispute. Disputes over the sovereignty of offshore islands are sometimes referred by the parties to the International Court of Justice (ICJ). In this region, two disputes concerning sovereignty over offshore islands have been referred to the ICJ in recent years. In 1998, Indonesia and Malaysia asked the ICJ to decide who had the better claim to sovereignty over the islands of Ligitan and Sipadan, and the court made its decision in 2001.5 In 2003, Malaysia and Singapore agreed to refer their sovereignty dispute over Pedra Branca/Pulau Batu Puteh to the ICJ and the court made its decision in May 2008.6 It is highly unlikely that the states claiming sovereignty over some or all of the islands in the South China Sea will consent to submitting the dispute to an international court or tribunal. If the dispute were referred to any international court or tribunal, it would decide the case solely on the basis of which state has the better legal claim under international law. Also, the result would not be a compromise solution, but a decision that the islands belong to one state or another. Given the strategic importance of the islands and potential wealth of the surrounding seabed for hydrocarbon resources, it is highly unlikely that the claimant states will be willing to agree to decide the dispute solely by the rules of international law in such a zero-sum game. Most claimants, especially China, are much more likely to want to resolve the dispute through negotiation, where a compromise is possible and where political, economic, and military factors can be taken into account.

UNCLOS and maritime zones around “islands” in the South China Sea Given that the claimant states are bound by its provisions, UNCLOS does contain provisions that set out the extent to which states can claim maritime

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zones around the offshore geographic features in the South China Sea. Some of these provisions create potential legal obstacles for the claimant states. First, under Article 121 of UNCLOS an “island” is a naturally formed area of land surrounded by water at high tide. The general principle is that islands are entitled to the same maritime zones as other land territory. Therefore, a state can claim a 12-nautical-mile territorial sea, a 200-nautical-mile exclusive economic zone, and a continental shelf from islands over which they have sovereignty. Second, there is an exception in UNCLOS for certain types of islands. Under Article 121(3), “rocks which cannot sustain human habitation or economic life of their own” have no EEZ or continental shelf. Therefore, if an island is a “rock” within Article 121(3), it is only entitled to a 12-nautical-mile territorial sea. Third, “low-tide elevations” are geographic features that are surrounded by water at low tide but submerged at high tide. If they are situated wholly or partly within 12 nautical miles of the mainland territory or from an island, they may be used as base points in measuring the territorial sea.7 However, if they are situated more than 12 nautical miles from the mainland or from an island, they may not be used as base points in determining maritime zones. Fourth, geographic features such as shoals, reefs, and sand bars are normally below water even at low tide. Therefore, they would not be subject to a claim of sovereignty, but even if they could be claimed, they would not be entitled to maritime zones. If reefs or shoals are built up artificially so that they are above water at high tide, they would not be islands entitled to maritime zones because they would not be “naturally formed.” Fifth, a coastal state has exclusive jurisdiction over “artificial islands, installations and structures” within its EEZ, and may claim a safety zone of up to 500 meters around them.8 However, the coastal state may not claim any maritime zones around artificial islands, installations, or structures. The states making claims in the South China Sea have conducted themselves as though all of the geographic features that are occupied or claimed are “islands” entitled to an EEZ and continental shelf. However, it appears that many of the geographic features in the South China Sea could be more accurately classified as rocks, entitled only to a territorial sea, or as low-tide elevations, reefs, or shoals entitled to no maritime zones.9 A legal dispute between two states parties to UNCLOS over whether a particular geographic feature is an island entitled to a 200-nautical-mile EEZ, a rock entitled to a 12-nautical-mile territorial sea, or a low-tide elevation or other feature entitled to no maritime zone of its own, is subject to the binding compulsory dispute settlement procedures in Part XV of UNCLOS. If a decision were made by an international court or tribunal on these legal issues, the decision would technically be binding only on the two states parties to the dispute. However, in practice such an authoritative interpretation of the provisions of UNCLOS would require all states parties to review their practice to determine if it is consistent with the decision of the court or tribunal. The prospect of such an authoritative ruling should be of concern to states claiming sovereignty over “islands” in the South China Sea.

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In conclusion, there are legal uncertainties surrounding the status of some of the geographic features in the South China Sea and the maritime zones that can be claimed around them. This is another reason why the claimant states should be more interested in negotiating cooperative arrangements on the management and use of the South China Sea rather than resolving the legal issues relating to their claims by referring the dispute to a court or tribunal.

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UNCLOS and the delimitation of maritime boundaries in the South China Sea Under UNCLOS, states are entitled to claim an EEZ of up to 200 nautical miles from the same baselines from which the territorial sea is measured. The normal baseline is the low water line along the coast.10 However, Article 7 of UNCLOS provides that in certain circumstances states can use the straight baseline method. According to Article 7, states may draw straight baselines (a) in localities where the coastline is deeply indented and cut into; or (b) if there is a fringe of islands along the coast. In addition, the drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the straight baselines must be sufficiently closely linked to the land domain that they can be subject to the regime of internal waters. Many states in Asia, including some of the claimants to the geographic features in the South China Sea, have employed the straight baseline method despite that fact that they do not meet the criteria laid down in Article 7. This casts some doubt on the validity of the outer limit of their EEZ claims in the South China Sea. States in Asia that have used the straight baseline method in claiming their maritime zones should note the following statement in paragraph 212 of the judgment of the International Court of Justice in the Qatar–Bahrain case (emphasis added): 212. The Court observes that the method of straight baselines, which is an exception to the normal rules for the determination of baselines, may only be applied if a number of conditions are met. This method must be applied restrictively. Such conditions are primarily that either the coastline is deeply indented and cut into, or that there is a fringe of islands along the coast in its immediate vicinity.11 There are also overlapping claims on adjacent EEZ boundary claims in the South China Sea. To the extent that the adjacent boundary claims are not the result of the use of questionable straight baselines, the states should be able to negotiate those sections of the adjacent boundaries that are near the coasts. UNCLOS is silent as to what effect offshore islands will have when the area between the islands and the mainland continental land mass is less than 400 nautical miles. However, the maritime boundary delimitation cases decided by the ICJ suggest that small offshore islands will not be given full effect when delimiting opposite boundaries with continental land territory.12

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In conclusion, the states with sovereignty claims over geographic features in the South China Sea would be well advised to review their use of the straight baseline method in light of the statement of the ICJ in the Qatar–Bahrain case. In addition, it appears that the claimant states would be mistaken to assume islands in the South China Sea will be treated the same as continental land territory in determining the maritime boundary between the island and mainland territory. The legal uncertainties regarding the use of straight baselines and boundary claims is another reason why the claimant states should be more interested negotiating cooperative arrangements on the management and use of the South China Sea rather than resolving the legal issues relating to their boundary claims.

UNCLOS as the legal basis for cooperation amongst claimant states Since all the claimant states are parties to UNCLOS, the convention establishes a common legal foundation upon which any cooperative mechanisms can be constructed. There are two articles which can be used a legal basis for cooperation among the claimant states. First, Article 74 on the delimitation of the EEZ between states with opposite or adjacent coasts provides in paragraph 1 that the boundaries should be effected by agreement on the basis of international law. Article 74 also contains a transitional provision in paragraph 3 that reads as follows (emphasis added): Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final determination. This provision places claimant states under an obligation to make an effort to enter into provisional arrangements of a practical nature, and ensures that such provisional arrangements will not jeopardize the final boundary agreement. States could use this provision as the legal basis for negotiating cooperative arrangements to enhance navigational safety, protect and preserve the marine environment, and manage and conserve the natural resources in a sustainable manner. Second, Article 123 of UNCLOS places a general obligation on states bordering a “semi-enclosed sea” to cooperate in the exercise of their rights and performance of their obligations under UNLCOS, and to this end they shall endeavour: a to coordinate the management, conservation, exploration and exploitation of the living resources of the sea; b to coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment;

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c to coordinate their scientific research policies and undertake where appropriate joint programmes of scientific study in the area.

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It is generally agreed that the South China Sea meets the definition of a semienclosed sea as defined in Article 122. Therefore, Article 123 can also be used as the legal basis under UNCLOS for cooperative arrangements between the claimant states in the South China Sea.

Declaration on the Conduct of Parties in the South China Sea 2002 The second instrument that can serve as a basis for cooperative arrangements in the South China Sea is the 2002 Declaration on the Conduct of Parties in the South China Sea.13 This document is significant because the parties include China and the four claimant states who are members of ASEAN – Brunei Darussalam, Malaysia, Philippines, and Vietnam. It also includes the members of ASEAN who are not claimants but who border the South China Sea – Cambodia, Indonesia, Singapore, and Thailand. This instrument is important for several reasons. First, the parties reaffirm their respect for and commitment to the freedom of navigation in and overflight above the South China Sea as provided for by the universally recognized principles of international law, including UNCLOS. This assures major maritime states like India, Japan, and the United States that the claimants recognize that their claims and conduct cannot interfere with freedoms that exist in the high seas and in the EEZ in the South China Sea. Second, the parties concerned declared that they undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law, including UNCLOS. Third, the parties undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability, including, among others, refraining from action of inhabiting the presently uninhabited islands, reefs, shoals, cays, and other features and to handle their differences in a constructive manner. This clause is very important, as it calls a halt to the practice of occupying new reefs and shoals, an action which created serious tensions in the early 1990s. Fourth, pending final settlement of the territorial and jurisdictional disputes, the parties undertake to intensify efforts to seek ways, in the spirit of cooperation and understanding, to build trust and confidence between and among them. The “confidence-building measures” mentioned are critically important to maritime security. They include arranging dialogues and exchanges of views between military and defense officials, voluntarily giving notice of impending joint or combined military exercises, voluntary exchange of relevant information, and ensuring just and humane treatment of all those who are in danger or

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distress. The final item implies cooperation in search and rescue operations, without mentioning those words. Fifth, pending a comprehensive and durable settlement of the disputes, the parties concerned may explore or undertake cooperative activities, which may include the following: a b c d e

marine environmental protection marine scientific research safety of navigation and communication at sea search and rescue operation combating transnational crime, including but not limited to trafficking in illicit drugs, piracy and armed robbery at sea, and illegal traffic in arms.

Cooperation in the listed areas would be in the common interest of the entire international community and would not be contrary to the interests of the claimant states. In summary, in the 2002 Declaration, the parties confirmed the rights of all states to freedoms of navigation and overflight in UNCLOS and declared that they will resolve territorial disputes by peaceful means in a manner that is consistent with UNCLOS and international law. The parties also declared that they will exercise restraint and refrain from activities that would complicate or escalate the disputes, undertake efforts to establish confidence-building measures, and explore or undertake cooperative activities that are in the common interest. In other words, the 2002 Declaration establishes a framework for de-escalating the disputes and developing cooperative arrangements. The actions called for in the 2002 Declaration are also consistent with cooperation under Article 123 of UNCLOS and “provisional arrangements of a practical nature” within Article 74. The 2002 Declaration does not mention possible cooperative arrangements to manage and conserve living resources or to explore and exploit oil and gas resources. However, such cooperative arrangements would not be inconsistent with the Declaration or with UNCLOS.

Other legal regimes that could be models for cooperation In the negotiation of cooperative arrangements for management and use of the South China Sea, it will be useful to look to other legal regimes that contain features which could be followed. 1959 Antarctic Treaty Official claims to sectors of the ice-covered continent of Antarctica have been made by seven states – Argentina, Australia, Chile, France, New Zealand, Norway, and the United Kingdom. A sector was also claimed by Admiral Byrd on behalf of the United States, but the United States never officially adopted Byrd’s claim, and refused to recognize the claims of the six claimant states. In 1959 the seven

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claimant states, together with five other states whose scientists had been conducting research in Antarctica (Belgium, Japan, South Africa, the United States, and the USSR) entered into the Antarctic Treaty.14 The Antarctic Treaty “froze” the claims of the seven claimant states, and stated that Antarctica should be used for peaceful purposes only. It permits states parties to conduct scientific research in Antarctica. A similar agreement could be concluded as the basis for cooperative arrangements in the South China Sea. In the agreement the states could set aside the existing claims to sovereignty over the islands, set out principles for cooperation and use of the South China Sea, and agree that such cooperation is without prejudice to the sovereignty claims. Article 4 of the Antarctic Treaty sets aside the existing territorial claims and provides that any cooperation under the treaty is without prejudice to existing claims to territorial sovereignty. It reads as follows: 1 Nothing contained in the present treaty shall be interpreted as: a a renunciation by any Contracting Party of previously asserted rights or claims to territorial sovereignty in Antarctica; b a renunciation or diminution by any Contracting Party of any basis of claim to territorial sovereignty in Antarctica which it may have whether as a result of it activities or those of its nationals in Antarctica, or otherwise; c prejudicing the position of any Contracting Party as regards the recognition or non-recognition of any other state’s right of or claim or basis of claim to territorial sovereignty in Antarctica. 2 No acts or activities taking place while present treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica. No new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present treaty is in force. 2004 China–Vietnam Boundary and Fisheries Agreements for the Gulf of Tonkin In June 2004 China and Vietnam ratified both a maritime boundary agreement and a fisheries cooperation agreement for the Gulf of Tonkin. The fisheries cooperation agreement contains provisions for a common fishing zone, a transitory fishing zone, and a joint fishing commission. Given that this agreement is between the two states whose past conflicts in the South China Sea involved the use of armed force, this is a very significant agreement which should contain many features which might be used as precedents for similar arrangements in the South China Sea.15 2005 China–Philippines–Vietnam National Oil Companies Agreement Another important development took place on March 15, 2005, when the stateowned oil companies of China, Vietnam, and the Philippines signed a landmark

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agreement to conduct a “pre-exploration survey” in a disputed area of the South China Sea. The agreement is between the China National Offshore Oil Corporation, Vietnam Oil and Gas Corporation (PetroVietnam) and Philippine National Oil Company (PNOC).16 This agreement seems to have been an effort to lay the ground for possible joint activities in future. Because it was structured as an agreement between the national oil companies, rather than the governments, it avoided sensitive sovereignty issues. Since there was no public outcry from Malaysia and Brunei, speculation is that the area in question was in an area claimed by China, the Philippines, and Vietnam, but not Malaysia or Brunei. Such “innovative solutions” are exactly what is required to promote cooperation in the common interest. Bilateral agreements establishing joint development zones With respect to offshore hydrocarbon resources, there are several bilateral arrangements in Southeast Asia whereby states have created joint development zones in disputed waters. They include the following: • 1979 Malaysia–Thailand Memorandum of Understanding on Joint Cooperation • 1989 Australia–Indonesia Timor Gap Treaty • 1992 Malaysia–Vietnam Memorandum of Understanding on Joint Cooperation. These arrangements are usually made when states are not able to reach agreement on a maritime boundary. The arrangements usually apply in a zone where all or part of the boundary claims of the two states overlap. The arrangements can be made for a fixed term or permanently. They usually provide for joint management and exploitation of fishing resources or the joint exploration and/or exploitation of oil and gas resources. The arrangements providing for the joint development of oil and gas resources are usually referred to as “joint development agreements” and the areas where joint development takes place are referred to as “joint development zones.” In some cases the cooperative arrangements establish a joint commission to manage the joint development zone.17 1995 Argentina–United Kingdom Joint Declaration on Cooperation over Offshore Activities in the South West Atlantic Even states which have fought a war over sovereignty disputes over offshore islands have entered into cooperative arrangements relating to the exploration and exploitation of oil and gas resources. Although Argentina and the United Kingdom engaged in armed conflict over the Falkland Islands in 1982, the two states were able to agree on a joint declaration on cooperation over offshore activities in the disputed area. The 1995 UK–Argentine Joint Declaration concerns cooperation over offshore activities in the southwest Atlantic.18 The two

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governments had previously entered into cooperative arrangements with respect to search and rescue of ships and persons in distress. The joint declaration contains a “no prejudice clause” similar to that in the 1959 Antarctic Treaty. Under the joint declaration the two governments agree to cooperate in order to encourage offshore activities in the southwest Atlantic. Under the joint declaration, exploration for and exploitation of hydrocarbons by the offshore oil and gas industry would be carried out in accordance with sound commercial principles and good oil field practice, drawing on the governments’ experience both in the southwest Atlantic and in the North Sea. Cooperation would be furthered by means of the establishment of a Joint Commission, composed of delegations from both sides. There was little joint activity under the declaration, and in March 2007, the Argentine government formally announced its decision to withdraw from the joint declaration. The UK government stated that the Argentine decision was a backward step which would make it more difficult for the two states to cooperate on practical issues of mutual benefit in the exploitation of hydrocarbon resources.19 Although the joint declaration did not in fact result in much cooperative action relating to the exploration and exploitation of hydrocarbon resources, the terms of the joint declaration may nevertheless be useful as a precedent for cooperative arrangements in the South China Sea.

Lessons from the Workshops on the South China Sea The series of Workshops on Managing Potential Conflicts in the South China Sea20 succeeded in breaking down much of the suspicion and distrust among the claimant states. The Workshops also established a practice for enhanced cooperation. First, it was agreed from the outset that all discussions regarding sovereignty claims and maritime boundaries would be set aside. Second, it was agreed that participation in the discussions or in cooperative arrangements were without prejudice to existing sovereignty claims. Third, it was agreed that progress would be more likely if the states took an incremental, functional approach, focusing on issues or problems that could only be resolved through cooperation at the regional level. Issues which meet these criteria include search and rescue, protection and preservation of the marine environment, enhancing the safety of navigation, marine scientific research, and combating illegal activities at sea such as piracy, arms smuggling, and maritime terrorism. States are rarely willing to enter into cooperative arrangements that involve sensitive issues of sovereignty unless there are practical reasons for doing so and there is a sense of urgency. We may be reaching that stage in the South China Sea. States are beginning to realize that the marine environment is being degraded, and that cooperation is necessary to preserve and protect it. Also, as overexploitation of fishing resources continues, states should realize that the fisheries resources of the South China Sea cannot be conserved and managed in a sustainable manner unless the states surrounding the South China Sea cooperate

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with one another. However, the fisheries issue is very complex because of the 1995 Fish Stocks Agreement and the need for regional fishing organizations. The most complex of all the issues is the exploration and exploitation of the natural resources of the seabed. However, as the need for energy resources to fuel the economies in Asia increases, there will be an incentive for states to negotiate cooperative arrangements such as joint exploration zones or joint development zones. This has begun through cooperation between national oil companies to explore certain areas of the South China Sea. When such cooperation moves from joint exploration to joint development the negotiations will become more difficult, but should not be impossible, given the common interests. When states see that is in their interests to enter into cooperative arrangements regarding the South China Sea, the lessons from the Workshops on Managing Potential Conflicts will be useful. Similarly, ideas and principles can be taken from existing precedents to develop the legal frameworks necessary to establish cooperative arrangements.

Proposals for cooperative arrangements to improve order at sea In my opinion there are two areas which threaten good order at sea and which should be addressed. The first area concerns enforcement measures taken by one claimant state against vessels flying the flag of another claimant state in disputed waters. The second area concerns fishing activities in the waters of the South China Sea and includes a proposal to establish a Marine Protected Area in the South China Sea. Enforcement measures in disputed waters With respect to the enforcement activities of two competing states in disputed waters, I believe that the 2002 Declaration should be supplemented by a protocol designed to impose self-restraint and minimize the risk of conflict. Disputed waters include areas surrounding disputed “islands” and areas of overlapping maritime boundaries between opposite states and adjacent states. The problem of overlapping maritime boundary claims is not limited to the South China Sea. It is also a potential problem in areas such as the northern half of the Malacca Strait, the waters near Litigan and Sipidan islands, and many areas of disputed waters in the East Asian seas. A risk of potential conflict arises where State A and State B have an overlapping claim in their EEZ and a fishing vessel or marine scientific research vessel flying the flag of one claimant state is intercepted in the disputed waters by a patrol vessel from the other claimant state. From the perspective of State A, a vessel flying its flag, engaged in fishing or research activities in the disputed area, is lawfully exercising its sovereign rights within its own EEZ. However, from the perspective of State B, an unlicensed foreign vessel from State A, engaged in activities in its EEZ, is in violation of its laws and regulations. The

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problem is exacerbated when the authorities believe that they must vigorously enforce their laws in the disputed area or their conduct will be interpreted as acknowledging the legitimacy of the other state’s maritime boundary claim. This can give rise to serious problems and may even result in the use of armed force if a patrol vessel from one state comes to the aid of a vessel flying its flag that is being arrested by a patrol vessel of the other state. Under the 2002 Declaration, the parties undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability. A protocol to the 2002 Declaration should be drafted to make it clear that the self-restraint clause applies to fishing activities, research activities, and enforcement activities in all disputed waters in the region. The protocol could also set out more details on the conduct of the two states in the disputed waters as well as rules of engagement for enforcement vessels. Such a protocol could be developed through a Track Two mechanism such as the CSCAP Legal Study Group on Maritime Security Cooperation, using precedents from regions where the two states have agreed on a code of conduct for their vessels. Proposal for a Marine Protected Area in the South China Sea My second proposal concerns the need to manage and preserve the living resources and protect the marine environment of the South China Sea and to deal with the problem of illegal, unreported, and unregulated (IUU) fishing in the disputed areas of the South China Sea. It does not seem possible in the short run to establish a legal regime to conserve and manage the fisheries in the disputed areas of the South China Sea in a sustainable manner. It would be extremely difficult for the states concerned to agree on a legal regime to manage the living resources by setting quotas, etc. However, it might be possible for all of the claimant states to agree to declare an area of the South China Sea a “marine protected area” where no exploitation of living resources is permitted by any state so that the living resources in the Marine Protected Area and the surrounding waters can be restored. The precise location of the Marine Protected Area could be decided after consultation with marine scientists and fisheries experts. The Marine Protected Area could be established through an agreement signed and ratified by the five claimant states as well as by other states whose vessels exploit living resources in the South China Sea. The agreement could also include a Chinese Taipei clause which would allow “other entities whose vessels exploit living resources” in the South China Sea to unilaterally declare that they support the agreement and will pass domestic legislation to make it a serious offence for their nationals or vessels to exploit living resources in the Marine Protected Area.21 The five claimant states could make it an offence under their laws for any foreign ship to exploit living resources in the Marine Protected Area. They could also agree to prosecute foreign vessels from states other than the claimant states. The policing and enforcement of the Marine Protected Area could take place

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through cooperative arrangements among the claimant states to conduct joint patrols or coordinated patrols in the area. Such cooperation would also serve as a confidence-building measure between the military forces of the claimant states. There will be legal obstacles that would have to be addressed to make such a scheme work, but if the political will is present among the claimant states, it should be possible for lawyers to overcome the legal obstacles.

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Conclusion The potential legal obstacles under UNCLOS with respect to the sovereignty and jurisdictional disputes in the South China Sea should send a clear message that it is in every claimant state’s interest to establish cooperative arrangements to resolve common problems in a spirit of understanding and cooperation. Articles 123 and 74 of UNCLOS provide a legal basis for cooperative arrangements in the South China Sea. The 2002 Declaration establishing a code of conduct in the South China Sea sets out common principles which provide the foundation for such cooperation. Precedents from both within and outside the region contain features that can be incorporated into new cooperative arrangements, and the Workshops on Managing Potential Conflicts in the South China Sea provide valuable lessons for negotiating cooperative mechanisms. Priority should be given to establishing new cooperative arrangements in two areas. First, a protocol to the 2002 Declaration should be adopted to ensure restraint by states in enforcing their laws and regulations in disputed waters against vessels flying the flag of another claimant state. Second, the claimant states and other states whose vessels fish in the South China Sea should take steps to negotiate an agreement to establish a Marine Protected Area in the South China Sea.

Notes 1 The text of UNCLOS is available online at the home page of the UN Division of Ocean Affairs and Law of the Sea, www.un.org/Depts/los/convention_agreements/ convention_ overview_convention.htm. 2 Status of the Convention is also available online on the UNDOALOS web page, ibid. 3 UNCLOS, Article 298, paragraph 1(a). 4 The Declaration is available online on the home page of UN Division of Ocean Affairs and Law of the Sea at www.un.org/Depts/los/convention_agreements/ convention_declarations.htm. 5 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia). Detailed information on the case, including the Court’s judgment, is available on the home page of the International Court of Justice at www.icj-cij.org. 6 Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore). Detailed information on the case, including the Court’s judgment, is available on the home page of the ICJ, ibid. 7 UNCLOS, Article 13. 8 UNCLOS, Article 60. 9 D. Hancox and J.R.V. Prescott, A Geographical Description of the Spratly Islands and An Account of Hydrographic Surveys Amongst Those Islands, Maritime Briefing 1, 6 (Durham: International Boundaries Research Unit, 1995).

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10 UNCLOS, Article 5. 11 Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain, ICJ, 2001). 12 R.R. Churchill and A.V. Lowe, The Law of the Sea, 3rd edn (Manchester: Manchester University Press, 1999), p. 188. 13 The text is available online at www.aseansec.org/13163.htm. 14 The Antarctic Treaty was signed in Washington on December 1, 1959. It came into effect on June 23, 1961, has been joined since that time by 34 other countries and now has 46 parties in all, 28 of which are consultative parties. The text of the treaty is available on the homepage of the Secretariat at www.ats.aq. 15 Nguyen Hong Thao, “Maritime Delimitation and Fishery Cooperation in the Tonkin Gulf”, Ocean Development And International Law 36 (2005), pp. 25–44. 16 “Three Nations Sign Pact for Joint Spratlys Survey”, Straits Times Interactive, March 15, 2005. 17 See generally, Mark J. Valencia, and Masahiro Miyoshi. “South East Asian Seas: Joint Development of Hydrocarbons in Overlapping Claim Areas?” Ocean Development and International Law 16 (1986), p. 211. 18 The text of the declaration is available on the home page of the UK Foreign and Commonwealth Office, under the country profile for the Falkland Islands. See www.fco.gov.uk. 19 UK Foreign and Commonwealth Office, press release, Wednesday March 28, 2007: FCO Spokesperson Statement on Cooperation over Offshore Activities in the South West Atlantic. 20 See South China Sea Informal Working Group, http://faculty.law.ubc.ca/scs. 21 The phrase “other entities whose vessels exploit living resources” would allow Chinese Taipei to join the agreement by making a unilateral declaration and passing the necessary implementing legislation. Similar language was used in the 1995 United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of December 10, 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, which is usually referred to as the Fish Stocks Agreement.

Conclusion The prospects for a cooperative management regime

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The chapters in this book range from the pessimistic to the optimistic about the prospects for a cooperative management regime in the South China Sea. However, this conclusion leans towards the pessimistic. While the risks of conflict may have fallen, there is still no effective regime in the area for providing key elements of cooperative marine management: the safety and security of shipping; the preservation, protection and conservation of the marine environment; agreed arrangements for the exploration and exploitation of marine resources; the prevention of illegal activity at sea; and the conduct of marine scientific research. And with growing concern over access to oil and gas reserves and increased awareness of threats to the marine environment and its resources, time is running out for the development of an effective regime. The lack of agreed maritime jurisdiction in the South China Sea is an important factor that explains slow progress towards a cooperative management regime. This is partly a consequence of the problematic nature of maritime boundary-making. The geography of the region, with its concave areas of coast and numerous offshore islands subject to conflicting sovereignty claims, means that straight line maritime boundaries of a conventional nature are quite unlikely in many parts of the area. Many boundaries, or at least their end points or turning points (‘tripoints’), will require the agreement of three, or even more, countries.1 Past experience in Asia and in other parts of the world shows that this agreement can be very hard to achieve. Because straight line boundaries are unlikely, it is necessary to find some other means of managing the area in dispute and exploiting its resources, which is not based on unilateral jurisdiction and sole ownership of the resources. Unfortunately however, and as several chapters in this volume demonstrate, the littoral countries to the South China Sea remain committed to a nationalistic approach to their claimed waters and are reluctant to embark on initiatives that may appear to compromise their sovereignty. As Ken Booth accurately observed over 20 years ago, It may take half a century but unilateralist drives to parcel parts of the ocean will continue and will be legitimized by the territorialist mood of the international community. As this development unfolds, and as state control

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intensifies over larger patches of the sea, greater meaning will be invested in the new boundaries which are inevitably the outcome of the process. Nations will feel protective and sensitive – indeed patriotic – about these patches of ocean.2 This remains the situation in the South China Sea.

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The elements of an effective management regime The pressures for an effective management regime for the South China Sea are increasing. Two of the contributors to this book have pointed out in a previous joint paper that “the number and intensity of regional maritime security problems in the South China Sea are increasing”.3 The transboundary issues that cannot be managed by one country acting alone include, for example, arrangements for the safety and security of the increasing levels of shipping traffic through the sea, illegal or excessive fishing, trafficking across the sea in drugs, arms or people, piracy and terrorist threats, and a range of environmental threats, including pollution and the destruction of marine habitats. And all indications are that the demands for an effective management regime in the South China Sea will become more acute in the future. Volumes of shipping traffic will continue to increase significantly with greater risks of ship-sourced marine pollution, as well as of shipping accidents, and there will be increased pressure on the resources of the South China Sea, both living and non-living. As David Rosenberg has described in his chapter, fisheries depletion is emerging as a major problem and there is a pressing need for more cooperative fisheries management. The notion of an effective management regime for the South China Sea can be linked back to Michael Leifer’s concept of a stable maritime regime in East Asia.4 It involves several elements. First, it means the absence of illegal activity at sea with the reduction and suppression of piracy and armed robbery against ships, illegal fishing, illicit trafficking in drugs, arms, people or weapons of mass destruction, and illegal ship-sourced pollution. Second, it requires arrangements for the safety of shipping transiting both through and within the region. The requirements for safety include the availability of effective search and rescue (SAR) services, good hydrographic surveys, reliable meteorological forecasts, and the provision of the necessary navigational aids. A recent requirement for security is a system covering the South China Sea that provides a response to an emergency on board a ship (such as a pirate or terrorist attack) notified through the ship security alert system introduced with the International Ship and Port Facility Security (ISPS) Code.5 Effective environmental and resource management is the third element of good order at sea. Under the provisions of UNCLOS, this is primarily the responsibility of the coastal state in exercising its rights and fulfilling its obligations in its exclusive economic zone (EEZ). However, in areas such as the South China Sea where maritime boundaries have not been agreed and there are overlapping EEZ claims, management becomes problematic. It is also a specific and joint responsibility of

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countries adjacent to an enclosed or semi-enclosed sea under the regime for those seas in UNCLOS Part IX. Specific tasks required for marine environmental and resource management include the monitoring and prevention of ship-sourced marine pollution, the mitigation of the effects of major spill of oil or other hazardous or noxious substance, the reversal of the degradation of marine habitats, the control of illegal, unreported or unregulated (IUU) fishing; and the establishment as required of Marine Protected Areas and marine parks. Finally and most basically, good order at sea means that nations are able to pursue their legitimate maritime interests in accordance with agreed principles of international law. However, this is another problematic area due to certain ambiguities with relevant regimes under the international Law of the Sea. While legal regimes in the South China Sea must begin with UNCLOS, it is unfortunately the case, as Bob Beckman points out in his chapter, that UNCLOS has certain limitations with regard to resolving the sovereignty and jurisdictional disputes in the South China Sea. Regional countries have also failed to ratify or adequately implement relevant international treaties. While these regimes have been developed at the global level, they depend fundamentally on implementation at the regional and national levels and it is at these levels that the problems lie. Agreed maritime boundaries or, if boundaries cannot be agreed, arrangements for joint management are associated requirements of this last element of good order at sea. Despite some progress over the years with cooperative arrangements, we are still well short of good order at sea in the South China Sea. With the Global Environmental Facility (GEF) project only relating to areas under accepted national jurisdiction, there is no effective environmental management regime for the South China Sea. There is a relatively high level of illegal activity in the area with illegal, unreported and unregulated (IUU) fishing, arms and drug trafficking, and some incidents of piracy and armed robbery against ships, as well as anecdotal reports of ship-sourced marine pollution. This illegal activity can flourish, and maritime safety can fall short of what is required, because there is no effective maritime surveillance and enforcement regime for the disputed areas of the South China Sea. There must be concern about how a major maritime incident, such as an accident involving a cruise liner or a terrorist attack, or even the crash of an airliner at sea,6 would be handled in the South China Sea. ASEAN and China have talked about SAR cooperation but so far this has been limited to “table top” exercises. With current search and rescue regions, Singapore has accepted SAR responsibility for a large part of the South China Sea.7 However, the current low level of ratification of the SAR Convention by countries that are littoral to the South China Sea suggests that there could be problems with mounting a large-scale maritime SAR operation.8 It is also important that the user states of the South China Sea have some involvement in relevant aspects of the cooperative management regime. Geoffrey Till, in his chapter, describes how the strategic significance of the South China Sea has long been appreciated by the major powers in the region. Surprisingly the main colonial powers in the area of the South China Sea, France and Britain,

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chose to keep their claims “under the table”.9 Paradoxically, this is a pity as a sovereignty claim by one of these colonial powers might have clarified some of the sovereignty issues that are with us to the present day.

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Positive developments Several authors in this volume have identified positive developments over the past decade or so that have contributed to an easing of tension in the South China Sea. These include the Declaration on the Conduct of Parties in the South China Sea (DOC), as well as a range of bilateral arrangements. The Joint Marine Seismic Undertaking (JMSU) is one example of a trilateral arrangement although it appears, from recent developments in the Philippines, that it may be under threat.10 This controversy in the Philippines shows just how fragile the process of cooperation and de-escalation might be. However, some analysts had pointed out earlier that the JMSU agreement broke ranks with the other ASEAN claimants and had lent credence to China’s claims.11 The DOC and the process leading to its achievement are discussed in several chapters in this book, particularly the chapter by Nguyen Hong Thao who explains that the DOC was “a necessary step in the process aiming at establishing and agreeing on a ‘code of conduct’ in the South China Sea”.12 Chris Chung, in his chapter, suggests that the DOC was a pragmatic move to put the disputes in the background and bring ASEAN–China ties to the fore. Furthermore, it provided an example of solidarity among the ASEAN members but, as several chapters in this book also mention, it is not a binding code of conduct. It is a political gesture rather than a major step towards conflict management and resolution. Nguyen Hong Thao believes that it would be naïve to believe that because of the DOC, the parties have ceased activities that could complicate the situation. A code of conduct that provides a binding obligation to avoid conflict still remains desirable. Developing economic, financial and trade links is another factor which has created a more favourable atmosphere for cooperation and dialogue between ASEAN and China. In part these are associated with a common interest in increased energy security. Li Minjiang has described moves towards a Pan-Tonkin economic cooperation zone involving China’s southernmost provinces. These would help China–ASEAN relations and build on the common economic interests of the various parties to the South China Sea disputes. He ends his chapter on a note of optimism that China’s preparedness to accept a formal code of conduct and the intention to embrace joint development may yet lead to greater stability in the South China Sea. Similarly Lee Lai To and Chen Zaofeng in their chapter identify China’s search for energy security and prospects for joint oil and gas exploration and exploitation in the South China Sea as keys to future stability.

Factors that inhibit progress It is not hard to identify factors that inhibit progress with the development of a cooperative management regime for the South China Sea. The most intractable

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are the claims to all features in the sea by China, Taiwan and Vietnam. These mean that there are few prospects for resolving sovereignty in the foreseeable future but even more seriously, they make functional cooperation more difficult. Other stumbling blocks include the desire for countries to see maritime boundaries as “fences in the sea” separating areas of sovereign control, growing concerns over energy security and competition for resources, divisions within ASEAN and the nationalising and militarising of the disputes.

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China’s claims China’s claims in the South China Sea are very important to China strategically. Bruce Elleman has discussed the impact of the disputes on the development of the PLAN and its maritime strategy, specifically referring to the growth of its communications, intelligence gathering and naval support structure in the islands. For China, the South China Sea disputes are more than just about resources. They are also about strategic freedom to manoeuvre and the need to circumvent, to some extent, the strategic “locking in” of China by the archipelagic island chain lying off the east coast of continental Asia. Lee Lai To and Chen Shaofeng conclude in their chapter that it is clear that China will not relinquish its sovereignty claims in the South China Sea. Li Mingjiang notes that China has been regarded as the most crucial actor in the South China Sea because it is the strongest player with a claim to the largest part of the sea. However, China has also been sensitive to the traditional geopolitical role played by ASEAN as a collective grouping. While there have been divisions within ASEAN on claims to features, the forum has also showed some solidarity in its dealings with China and the potential to gang up against China. However, from a Chinese perspective, the “10:1 approach is completely unfavourable to China and will be unproductive”.13 Vietnam’s claims Nguyen Hong Thao has explained the current position of Vietnam in the South China Sea disputes and the various bilateral and trilateral arrangements that Vietnam has entered into. He also addresses the adverse reaction by Vietnam to several recent initiatives in the area by China and Taiwan. Recent protests have been against the establishment by China of a higher level of administrative control over the Spratlys and Paracels,14 and the opening of an airstrip by Taiwan on Itu Aba (Taiping Island) in February 2008.15 Tensions also arose in July 2007, when a group of Vietnamese fishing boats in the Spratlys came under fire from Chinese patrol vessels.16 Ralf Emmers has noted Vietnamese membership of ASEAN as a factor contributing to an improvement in regional relations. There is however, a downside to this as Li Mingjiang, for example, would see ASEAN membership and exploitation of ASEAN solidarity as part of Vietnam’s attempts to internationalise the disputes. While other ASEAN members claim features in the South

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China Sea claimed by Vietnam, Hanoi has expectations that ASEAN collectively might support it claims to other features against those of China.

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Resources competition Resources competition, as levels of energy self-sufficiency in East Asia fall and the pressures of energy security increase, will lead claimant countries to become more assertive about their claims in the South China Sea. This situation will be aggravated further should commercially significant reserves of oil and gas be found in the area. As J.N. Mak points out in his chapter, littoral countries still see ownership of potentially rich maritime zones in “zero-sum terms”.17 This approach must change. A particularly serious issue associated with this “zerosum” approach is the lack of agreement on some fundamental legal principles relating to boundary delimitation, the regime of islands18 and maritime jurisdiction in the South China Sea. And the obligations under UNCLOS Part IX are still largely being ignored. Divisions within ASEAN Chris Chung has talk in his chapter about the elements that have caused the ASEAN states to stand together, particularly their strong concern over moves by China over the years but he has also identified occasions when the ASEAN countries have stood apart. These include the muted response by ASEAN to the Mischief Reef episode in 1999 and the reaction by other ASEAN members to Malaysia’s building of structures on features claimed by other ASEAN members. Nevertheless, the ASEAN emphasis on the consensual approach and non-interference in one’s domestic affairs is one that Lee Lai To and Chen Shaofeng suggest has suited China well.19 Nationalism As we have seen also with other island disputes in the East Asian Seas, notably the disputes between Japan and Korea over the Takeshima/Tokdo islets and between Japan and China over the Senkaky/Daioyu islands, nationalism can become a major stumbling block to the resolution of disputes and even functional cooperation. Public expressions of nationalism destroy political will and militate against cooperation and dialogue that might be perceived as compromising national sovereignty. Several authors in this volume have made this point. Geoffrey Till observes “claims to the sovereignty of islands can be important symbolically, perhaps especially in times of national difficulty”,20 and J.N. Mak refers to the “rising tide of nationalist sentiments”. The unrest in the Philippines over the JMSU is a clear manifestation of nationalism at work, while similar attitudes were evident in February 2008 when President Chen Shi-bian from Taiwan made a landmark visit to Itu Aba accompanied by what press reports referred to as about half the

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Taiwanese navy, including two submarines.21 The symbolic value of Itu Aba appears particularly important to Taiwan, which has a clear preparedness to assert a territorial claim despite the likely reaction from China, Vietnam and other nations.22

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Militarising the disputes Along with increased nationalism, the process of militarising the disputes in the South China Sea has continued, with additional military facilities being established in the island groups. As has just been noted, there was a heavy naval presence when President Chen visited Itu Aba; more recently, the Philippines has embarked on a programme to upgrade its military facilities in the Spratlys.23 J.N. Mak has argued in his chapter that this militarising of the disputes cannot be glossed over. Furthermore, it is probably wishful thinking that it might be curbed by a code of conduct.

The “end game” It is fair to say that time is running out for the South China Sea. The pressures are mounting and a much greater effort is required to develop cooperative regimes for the sea. International pressure from international organisations and NGOs will likely increase for a break-through that provides effective management of this large marine ecosystem. While time and a “waiting game” may have been part of the Chinese strategy in the South China Sea in the past,24 time may also be against China – and by extension, also for Vietnam and Taiwan with their allencompassing claims. Developments in international law may weaken the historical usage argument in favour of arguments based on geographical proximity. It is also likely that were issues of sovereignty ever to be taken to international arbitration, equitable principles could tell against China. In bilateral negotiations China might be prepared to concede sovereignty of individual features, particularly those that lie on the continental shelf of another claimant, but the all-encompassing claims of Vietnam and Taiwan make this most unlikely. According to Li Minjiang, a policy of “shelving disputes and joint development” is China’s favoured approach.25 The trilateral agreement between China, the Philippines and Vietnam was an example of this, although developments in the Philippines have introduced some doubt about the ongoing viability of that agreement. Some concept of an “end game” that the littoral countries may work towards is required. There is a need to acknowledge that sovereignty claims and hence maritime boundaries will not be resolved in the foreseeable future. A cooperative management regime is the only solution. But what might such a regime look like? The only acceptable framework for such a regime would appear to be a web of provisional arrangements covering cooperation for different functions and perhaps even with different areas for each function. The functions to be considered might include development of oil and gas resources, fisheries management, marine

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safety, law and order at sea, and preservation and protection of the marine environment – all the elements of an effective management regime identified earlier in this conclusion. A number of contributors to this work have discussed the process of functional cooperation in general while others have addressed particular elements. Joint development of oil and gas resources was discussed by Zou Keyuan, although Lee Lai To and Chen Shaofeng concluded that, “the road ahead for the joint development of natural resources in the South China Sea will be long and tortuous”.26 Robert Beckman proposed a Marine Protected Area (MPA) for the South China Sea involving the five claimant states as well as the other states whose vessels exploit the living resources of the sea. With this web of functional cooperation, bilateral arrangements should be avoided except in areas where there is clear acceptance that only two parties are involved. For the same reason that maritime boundaries are unlikely in the South China Sea, joint development between two parties can cause problems in areas with multiple claims. Unfortunately a bilateral agreement between two parties can disadvantage a third party, but then negotiating a joint arrangement between three or more parties can prove extremely difficult.

Concluding remarks Chapters in this volume have provided comprehensive coverage of the issues and challenges that are still present in the South China Sea. While there has been no progress towards resolving the sovereignty claims, generally there has been a more cooperative approach to managing the common interests of the claimant countries. To that extent, the Spratly dispute has de-escalated in recent years. Nevertheless some recent events show how fragile the process of de-escalation might be. Resolution of the sovereignty claims and agreement on maritime boundaries are quite unlikely in the foreseeable future. Instead a cooperative management regime for the South China Sea is required, based on a functional approach that exploits the common and pressing interests of claimant countries. To achieve this “end game”, work is required by Track One to promote functional cooperation and joint development. The work involved should not be underestimated. It requires identifying the particular function for cooperation, defining the area for joint management, identifying the specific mission of the joint venture, finding a formula to share costs and resources and establishing a management body. Track Two can provide vital assistance in progressing this work. Rather than establishing new forums, ongoing support is required for the Workshop Process hosted by Indonesia and discussed in this book by Hasjim Djalal and Ian Townsend-Gault. Preventive diplomacy is still very much a requirement in the South China Sea. Time is running out for the environment of the South China Sea. The claimant countries must set aside their sovereignty claims and work together on developing an effective regime for cooperative management.

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Notes 1 When several countries are opposite or adjacent to each other, a bilateral boundary between any two of them will inevitably reach a point where it intersects with the claim of another country (or countries) (the “tripoint”). 2 Ken Booth, Law, Force and Diplomacy at Sea (London: Allen and Unwin, 1985), pp. 44–45. 3 David Rosenberg and Christopher Chung, “Maritime Security in the South China Sea: Coordinating Coastal and User State Priorities”, Ocean Development and International Law 39, 1 (January, 2008), p. 61. 4 Michael Leifer, “The Maritime Regime and Regional Security in East Asia”, Pacific Review 4, 2 (1991), pp. 126–136, reprinted in Joseph Liow and Ralf Emmers (eds), Order and Security in Southeast Asia: Essays in Memory of Michael Leifer (London: Routledge, 2006), pp. 327–344. 5 Thomas Timlen, The Use of SOLAS Ship Security Alert Systems, RSIS Working Paper No. 154 (Singapore: S. Rajaratnam School of International Studies, 5 March 2008). 6 The loss of the Adam Air B737 aircraft in January 2007 is an example. Although the incident involved an aircraft, it occurred over the sea off the west coast of Sulawesi. The initial SAR operation appears to have been less than effective. “Fate of Adam Air Plane Carrying 102 Remains Mystery”, Indanesia.com, 5 January 2007: http://news.indahnesia.com/item/200701053/fate_of_adam_air_plane_carrying_102_remains_mystery.php. 7 See map in Sam Bateman, Catherine Zara Raymond and Joshua Ho, Safety and Security in the Malacca and Singapore Straits – An Agenda for Action. (Singapore: Institute of Defence and Strategic Studies, May 2006), Fig. 11, p. 28. 8 Of the littoral countries to the South China Sea, only China, Singapore and Vietnam are parties to the SAR Convention. 9 Geoffrey Till, “The South China Sea Dispute: An International History”, this volume, p. 000. 10 Michael Punongbayan, “Opposition Asks Senate to Probe GMA’s ‘Spratly DEAL’ with China”, Philippine Star online, 4 March 2008; http://philstar.com/scripts/ article_ print.php?PhilStar&id=20080303199&type=2. 11 Barry Wain, “Gloria Arroyo at Sea with China”, Far Eastern Economic Review, March 2008. 12 Nguyen Hong Thao, “The Declaration on the Conduct of Parties in the South China Sea”, this volume, p. 000. 13 Liu Meng, “General Review of Security Situation between China–ASEAN and in the South China Sea”, paper presented at Workshop on “Secure Trade and SLOCs in Southeast Asia” between the Institute of Asia Pacific Studies, Shanghai Academy of Social Sciences (SASS) and the S. Rajaratnam School of International Studies (RSIS), Nanyang Technological University, Singapore, held in Shanghai, 28–29 March 2008, p. 2. 14 “Vietnamese Rally Outside China Embassy over Disputed Islands”, Straits Times, 9 December 2007. 15 Shih Hsui-chuan, Hsu Shao-hsuan and Jimmy Chuang, “President Visits Disputed Islands”, Taipei Times, 3 February 2008, p. 1. 16 Roger Mitton, “Vietnam, China Clash over Spratlys – Chinese Navy Fires at Vietnamese Fishing Boats in Oil-Rich Region”, Straits Times, 19 July 2007. 17 J.N. Mak, “Sovereignty in ASEAN and the Problem of Maritime Cooperation in the South China Sea”, this volume, p. 000. 18 The determination of which features qualify as “islands” under the regime of islands in Part VIII of UNCLOS, and thus generate a full suite of maritime zones, remains a major issue. 19 Lee Lai To and Chen Shaofeng, “China and Joint Development in the South China Sea: An Energy Security Perspective”, this volume, p. 000. 20 Till, “The South China Sea Dispute”, p. 000.

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21 Shih, Hsu and Chuang, “President Visits Disputed Islands”. 22 “Chen Flies to Spratly Islands ‘to Assert Taiwan Sovereignty’ ”, Taiwan Security Research, Reuters, 3 February 2008; http://taiwansecurity.org/Reu/2008/ Reuters-030208.htm. 23 “RP to Upgrade Facilities at Disputed Spratlys: Military”, Agence France-Presse, 5 April 2008; www.abs-cbnnews.com/storypage.aspx?StoryId=113376. 24 Chris Roberts, Chinese Strategy and the Spratly Islands Dispute, Working Paper No. 293 (Canberra: Strategic and Defence Studies Centre, Australian National University, April 1996), p. 27. 25 Li Minjiang, “China’s South China Sea Dilemma: Balancing Sovereignty, Development, and Security”, this volume, p. 000. 26 Lee Lai To and Chen Shaofeng, “China and Joint Development in the South China Sea”, this volume, p. 000.

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Index

Academy of Military Science (China) 55 Acharya, Amitav 110 Adamson, Robert 199–200 agencies in South China Sea fisheries 73 Albar, Syed Hamid 101, 104 Anambas Expedition 182, 183 Anglo-French Agreement (1904) 121–2 Anglo-Siamese Treaty (1909) 122 Anilao 75 Annam see Vietnam Annan, Kofi 98 Antarctic Treaty (1959) 228–9 aquaculture 68–9, 71, 77 Aquino, President 156 Argentina–United Kingdom Joint Declaration on Cooperation over Offshore Activities in the South West Atlantic (1995) 230–1 arms trafficking 2 Arroyo, Gloria 121, 133, 168, 216 ASEAN: economic interdependence with China 149–51; maritime cooperation 120–3, 196–9; order at sea 232–4; see also Workshops on South China Sea ASEAN 1, 3, 4n1, 33, 45, 80, 84, 87–9, 95–106, 117, 128–38, 140–52, 158–9, 166, 175, 239 ASEAN–China Free Trade Area (ACFTA) 159 ASEAN–China Joint Working Group 215, 218 ASEAN Declaration on the South China Sea 180, 187, 208 ASEAN Regional Forum (ARF) 98, 99, 120, 146 Association of Southeast Asian Nations see ASEAN Badawi, Abdullah Ahmad 97, 101

Baja, Lauro 100 Balayan Bay 75 Bali Concord 120 Bandar Seri Bengawan 209 Beckman, Robert 199 Beibu Gulf see Tonkin Gulf biological diversity 17–18, 182, 183 Boao Forum 163 Booth, Ken 236–7 boundary making 117–20, 236, 244n1 BP (British Petroleum) 90, 212–13 Britain: during Second World War, 29–30; and Opium Wars 38; and Spratly Islands 10, 38 Brunei: and China 53, 81, 96; and oil 81; and Paracel Islands 11; and Spratly Islands 11, 53, 176–7 Bunaken National Marine Park 75 Busse, Nikolas 110 Cailao, Antonio M. 168 Cam Ranh Bay 28, 30, 35, 37 Cambodia–Vietnam Historic Waters Agreement (1982) 122 Cambodian Conflict 129 Canada 120 Canadian Department of Foreign Affairs 190 Canadian International Development Agency (CIDA) 178, 189, 205n1 Center for Southeast Asian Studies 180, 182 chart inaccuracies 10 Chen Hurng-yu 88 Chen Shi-bian 55, 134, 241 Chen Zaofeng 239 Cheng Ho, Admiral 27 Chigua Atoll 48 China: and ASEAN 1, 3, 80, 88, 89, 95–106, 128–38, 140–52, 158–9, 166,

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Index 247 239; and Brunei 53; Central Advisory Commission of the Communist Party 155; Cultural Revolution 32; and disputed areas 85; economic interdependence with ASEAN 149–51; ELINT stations 47; and fisheries agreements 72–4, 85–6; foreign policy on South China Sea area 142–7, 155–9; and France 43; GPD 160; Hainan Province Islands 44, 45, 49, 51, 53, 54, 81; and Indonesia 53; and Itu Aba 43; and Japan 89, 92n45, 155–6, 241; and Joint Marine Seismic Undertakings 17; and Korea 241; Law of the Territorial Sea and Contiguous Zone 53, 96, 130, 143–4; and Macclesfield Banks 14, 42, 54; and Malaysia 53; marine research 211; military communications bases 46–9; military forces in South China Sea 49–53, 55, 135–6; in Ming dynasty 27, 43; Ministry of Land Resources 163; Ministry of the Navy 43; and Mischief Reef see Mischief Reef; Naval Reorganization Council 43; navigation systems 47; oil and gas resources see oil and gas; and Opium Wars 38; and Paracel Islands 11, 38, 42, 45, 54, 133, 136, 240; and Philippines 33, 53, 121, 140, 145, 159, 208, 214; and Pratas Islands 43; pressure from external powers 145–7; in Qing dynasty 43; radar systems 46; Sansha district 54; satellites 47; and security in ASEAN 158; and Seventh Fleet 141; South China Sea bases 46–9; sovereignty in South China Sea 42, 54, 140–52, 159–60, 165, 166, 176–7; and Soviet Union 32, 37; and Spratly Islands 11, 18, 24n53, 29, 31, 42, 43, 45, 53, 54, 88, 126n43, 136, 155, 159, 240; strategic importance of South China Sea 141–2, 175; submarine operations 47; and Taiwan 28, 32, 53, 165; u-shaped line 38, 80; and USA 54, 141; Vessel Traffic Service 47; and Vietnam 3, 33, 37, 38, 42–5, 52, 53, 72–4, 88, 129, 136, 140, 145, 175, 212, 216; on Woody Island 31, 45; see also CNOOC; Declaration on the Conduct of Parties in the South China Sea; Hainan Islands; PLA; PLAAF; PLAN; PLANAF; UNCLOS China–ASEAN summit (2006) 85 China Institute of Contemporary International Relations 54

China National Offshore Oil Corporation see CNOOC China–Philippines–Vietnam National Oil Companies Agreement (2005) 229–30 Christopher, Warren 146 Chu Shulong 54 Chunxiao Gas Field Incident 81 Cloma brothers 34 CNOOC 85, 87, 88, 163–4, 167, 212, 216 coastal populations 62–3 Coco Island 49 Cold War period 31–2, 36 conditions for preventive diplomacy 186 conflict potential 110 Conoco 81 Convention on the Continental Shelf (1958) 198 Convention on the Law of the Sea (1982) 131, 197 cooperative initiatives in South China Sea 196, 215–17, 226–7, 232–4 Crestone Concession 80–1 Crestone Energy Corporation 45 Cuu Long basin 16 Da Ba Dau Reef 53 Da Lac Reef 53 Damrosch, Lori F. 54 Danger Reef 48 Dangerous Ground 8–11, 18 Declaration on the Conduct of Parties in the South China Sea (DOC) 1, 80, 85, 89, 95–9, 103, 119, 129–33, 135, 137, 140, 142, 148, 207–19, 227–31, 239; implementation of Declaration on the Conduct of Parties in the South China Sea 211–15, 217–19 Declaration on the Zone of Peace, Freedom and Neutrality (ZOPFAN) 199 Deng Xiaoping 85, 155–6, 162, 165 DGPS 46 dialogues 184–5 Diaoyu Islands 96, 155 Digital Ground Positioning System see DGPS Djalal, Hasjim 20, 120, 189, 190–1, 200 Dongsha Island see Pratas drugs trafficking 2 Drummond Island 48 Duncan Island 48, 52 The Ecological Fishprint of Nations 67 ecosystem, South China Sea 61–6

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EEZ 12, 13, 14, 20, 34, 70–1, 77, 82, 98, 178, 184 Erica Reef 100, 102, 103, 113, 119 Estrada, Joseph 101 Exclusive Economic Zones see EEZ extensive fishing zones 198 Falkland Islands 199–200 FAO International Plan of Action (fisheries) 71 FAO Technical Guidelines for Responsible Fisheries 71 Fiery Cross Island/Reef (Chigua Atoll) 4, 48, 207 fish bans 69–70 Fish Stocks Agreement (1995) 232 fisheries 17–18, 34–5, 43, 61–77, 177, 190, 238; extensive fishing zones 198 Fishing Cooperation Agreement 184 Five Principles of Peaceful Coexistence 132, 185 Framework Agreement for Comprehensive Economic Cooperation 159 Framework Agreement on Oil and Gas Cooperation in Beibu Gulf 87 France: and China 43; and China/Taiwan dispute 28; and Pratas 44; and Spratly Islands 10, 28, 38 French Indochina 43 gas resources see oil and gas GEF 2, 66, 71, 238 General Border Committees (GBC) 113 German Geological Survey 15 Gia Long, Emperor 28 Global Environment Facility see GEF globalisation 38–9 Greater East Asia Co-Prosperity Sphere 29 Groups of Experts meetings (GEM) 180, 195 Guangxi 162–3 Gulf of Thailand 111, 121–4 Gulf of Tonkin see Tonkin Gulf Hainan and Guangxi Autonomous Region 162–3 Hainan Province 44, 45, 49, 51, 53, 54, 105, 150, 157 Hainggyi Island 51 Halsey, Admiral William 30, 36 Hanoi Declaration 100 Hanoi Plan of Action 103 historical claims 42–6 Hoang Sa archipelago 212

Hon Da island 122 Hu Jintao 150 hydrographic surveys 2, 10–11, 36, 206n12, 237 Hydrometeorology Authority of Hainan 212 Hyuga 30 ICJ see International Court of Justice INCSEA 113–14, 123 Indonesia: and China 53; Exclusive Economic Zone (EEZ) 178; and Gerakan Aceh Merdeka 113; and Malaysia 113–14; and Spratly Islands 53 Informal Workshop on Managing Potential Conflict in the South China Sea 96 interests of major powers 176 international conventions 181–2 International Court of Justice (ICJ) 82, 114, 116, 119, 125n28, 134, 193, 214, 221n43, 225 international law and South China Sea 192–4, 199–202 International Ship and Port Facility Security (ISPS) Code 237 International Tribunal for the Law of the Sea 134–5 Investigator Shoal 100, 101, 102, 103, 113, 119 Ise 30 island, UNCLOS definition 8–9, 12–13, 14, 122, 224 Itu Aba island (Taiping Island) 35, 36, 42, 48, 55, 213, 214, 240, 241–2 Jackson Atoll 217 Japan: and China 241; defense of Taiwan 146; and island sovereignty 42, 155–6; and Itu Aba 35, 36; and Korea 88, 241; and Paracel Islands 30–1, 43, 44; and Pratas Island 43–4; in Second World War, 29–31, 35–6, 44, 48, 137; and Spratly Islands 10, 18, 29, 30–1, 43–4 Jiang Zemin 145, 156 Johnson Reef 33, 43, 45, 157 Joint Declaration of China and ASEAN on Cooperation in the Field of NonTraditional Security Issues 159 Joint Declaration of the Heads of State/Government of the ASEAN and the PRC on Strategic Partnership for Peace and Prosperity 159 joint development: concept 185–6; defined 81–2; in disputed areas 85–6; examples

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in practice 82–4; in South China Sea 155–69 joint development zones 230 Joint Fishery Committee (JFC) 72 Joint Marine Seismic Undertakings (JMSU) 17, 216, 239 Joint Oceanographic Marine Scientific Expedition (JOMSRE-SCS) 216–17 jurisdictional claims 176–7 Kalayaan Island group 91n23 key principles of Declaration on the Conduct of Parties in the South China Sea 210 Kivimäki, Timo 110 Ko Losin Island 122 Korea 88, 217 Korean War 31 Lamont Doherty Geological Observatory 15 Law of the Sea see UNCLOS Law of the Territorial Sea and Contiguous Zone (China) 53, 96, 130, 143–4 Le Duc Anh 217 Le Dung 134 Lee Lai To 239 legal regimes 222–34 Leifer, Michael 237 Li Changchun 151 Li Minjiang 239 Li Peng 85, 130 Ligitan Island 113, 114, 116, 119, 214, 232 Lincoln Island 29 Liu Huaqing 162 Liu Jianchao 149 Liu Qibao 149 “long peace” 110–11 low tide, UNCLOS definition 9 MacArthur, General Douglas 30 Macclesfield Banks 14, 32, 42, 54, 140–52 McDevitt, Michael 55 Mahathir, Prime Minister 102 major power interests 176 Malampaya project 16 Malaysia: and China 53, 96; and Indonesia 113–14; and oil 81; and Paracel Islands 11; and Philippines 113, 119, 120; and Spratly Islands 11, 53, 120, 176–7; and Vietnam 122 Malaysia–Indonesia Prevention of Incidents at Sea Agreement (MALINDOINCSEA) 113–15

Malicieuse 28 management regimes, need for 237–9 Managing Potential Conflicts in the South China Sea 120, 157, 189 Manila Declaration 96 Marcado, Orlando S. 128 Marine Protected Areas (MPA) 67, 69, 233–4, 238, 243 Marine Science Institute (Philippines) 194–5 Marine Stewardship Council 66, 74, 75–6 maritime cooperation 120–3, 196–9 maritime jurisdiction 1–2 maritime space 12 maritime terrorism 2 maritime trade 27, 38–9, 43 maritime trade routes 27 Masashi Nishara 33 Mercado, Orlando 100, 101, 102 Mi Zhenyu, General 55 militarisation of disputes 111, 112–14, 147, 152 military forces, China 49–53 military issues 2, 18–19, 33–4, 35–7 Mischief Reef 26, 33, 49, 80, 98, 100, 101, 105, 119, 128, 130–1, 137, 144, 145, 157, 207, 241 modern era 26, 28–30, 33–4 Mutual Defence Treaty (USA and Philippines) (1951) 137 Myanmar 30, 49, 51, 112 Nam Con Son basin 16 Namyit Island 48 Nansha see Spratly Islands National Institute for Defense Studies (Tokyo) 33 Natuna basin 16 Natuna gas fields 130 Nguyen Hong Thao 239, 240 Nguyen Minh Triet 213 Nguyen Phu Trong 213 Nischalke, Tobias 110 Nishizawa Yoshiji 34 North Danger Reef 217 oil and gas: Chinese consumption of 160–3; Chinese imports 161; joint development 155–69; prices 16; resources/reserves 15, 16, 17, 21, 34–5, 39, 54, 80–90, 137, 156, 160, 207; in Spratly Islands 14–16, 21, 177; supplies 10, 15 Opium Wars 38

250

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Ople, Blas 95, 102 order at sea 232–4 Pag-Asa Island 214 Palawan 75 Palawan Biodiversity Expedition 183 Pan-Beibu Gulf Regional Economic Cooperation Scheme 163 Pan-South China Sea economic zone 149–51 Paracel Islands/Archipelago 7–8, 11, 19, 28, 30, 32, 33, 35, 42, 43, 44, 47–8, 51, 54, 55, 96, 133, 140–52, 157, 207, 208 Paris Accords (1991) 129, 175 Pedra Branca 116 Penghu Islands 96 People’s Liberation Army see PLA People’s Liberation Army Air Force see PLAAF People’s Liberation Army Navy see PLAN People’s Liberation Army Naval Air Force see PLANAF people trafficking 2 Petro Vietnam 87, 167, 216 Philippine National Oil Company (PNOC) 85, 167, 168, 216 Philippines: and China 53, 96, 121, 145, 159, 208, 214; denial of piracy 214; and Freedomland 34; and Joint Marine Seismic Undertakings 17; and Malaysia 113, 119, 120; Marine Protected Areas 69; Mutual Defence Treaty with USA (1951) 137; and Paracel Islands 11; and South China Sea code of conduct 103; and Spratly Islands 11, 16, 53, 113, 120, 159, 176–7; and USA 131, 136, 167; and Vietnam 209; and Visiting Forces Agreement (USA) 136, 146, 167 Phu Quoc island 122 Pigeon Reef 114 piracy 2, 24n64, 217, 219n6, 237 PLA 37, 42, 44, 55, 135, 142, 165 PLAAF 44 PLAN 42, 46, 49, 51, 53, 240 PLANAF 50 political factors in South China Sea 175 post-Cold War period 33 post-European period 30–1 postmodern era 26 Pratas Islands 8, 29, 34, 42, 43, 55, 96, 140–52 PRC see China Preah Vihear temple 112, 116 premodern era 26, 27

Prescott, Professor 201 Prevention of Incidents at Sea Agreement (INCSEA) 113–14, 123 preventive diplomacy 186 Protocol to the Treaty on Southeast Asia Nuclear Weapons Free Zone 159 Pulau Batu Putih 116 Qatar–Bahrain case 225, 226 Qian Qichen 131, 144, 156, 158 Qin Gang 213 Ramos, Fidel V. 217 Razak, Ahmad Fuzi Abdul 104 Recent Developments in the South China Sea 208 Reed Bank 15–16 regime of islands 9, 204 Regional Code of Conduct in the South China Sea 218 Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP) 217 regional fisheries management organizations see RFMO Regional Working Group on Fisheries (RWGF) 71 RFMO 70 rock, UNCLOS definition 9, 122, 224 Rocky Island 48 Romulo, Foreign Secretary 156 Rozhdestvensky, Admiral 35 S. Rajaratnam School of International Studies (RSIS) 3 Sa Zhenbing, Admiral 42, 43 safety zones 13 San Francisco peace treaty (1951) 30, 45 Sansha City 157, 168 Sansha district 54 Scarborough Shoal (or Reef) 8, 53, 101 Sea Lines of Communication (SLOCS) 2, 18, 21, 111, 136 search and rescue services (SAR) 237, 238, 244n6 Seminar on Elements of the Regional Code of Conduct in the South China Sea 215 Senkaku Islands 96, 169 Severino, Rodolfo 100 Shambaugh, David 135 Sharing the Resources of the South China Sea 84 shipping security 2 Siazon, Domingo 101, 103

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Index 251 SIGINT 49 Signals Intelligence see SIGINT Sino-Vietnamese Tonkin Gulf agreements 72–4, 77, 229 Sipadan Island 113, 114, 116, 119, 214, 232 Solomon, Richard 54 South China Sea: control of illegal activities 237; ecosystem 61–6; effective management 237–9; extensive fishing zones 198; freedom of travel within 191–2; and international law 192–4, 199–202; as major shipping lane 207; maritime cooperation 120–3, 196–9; order at sea 232–4, 237; peace and cooperation 175–88; region defined 191–2; size of area 207; sovereignty of 110–24, 140–52, 159–60, 165, 166, 176–7, 212, 223, 224, 239–40; Strait of Malacca 207, 219n6 South China Sea Informal Working Group (at UBC) 178, 200 South China Sea Institute of Oceanology 207 South China Sea Workshops 179–84, 187–8, 189–205, 208, 215, 231–2, 243 South East Asian Ocean Network for Education (SEAONE) 183 Southeast Asia Programme in Ocean Law, Policy, and Management (SEAPOL) 192 Southeast Asia Treaty Organization (SEATO) 145–6 Soviet Union: and China 32, 37, 45; GLONASS navigation systems 47 Soviet–Vietnam Treaty 45 Spratly Islands/Archipelago 7–21, 28, 29, 30, 32, 33, 35, 42, 48–9, 54, 55, 80, 84, 87, 96, 113, 120, 126n43, 128–38, 140–52, 155, 157, 159, 175, 176–7, 190, 207, 208, 217 Spratly Management Authority 84 Strait of Malacca 207, 219n6 strategic issues 2, 18–19, 35–7, 53–5, 141–2, 175 Subi Reef 49 Sueji Hirato 34 Sukarno, President 113 Sulu-Sulawesi Marine Ecosystem project 66, 74, 75, 77 Sunda Shelf 15 Swallow Reef 100–1, 113, 134 The South China Sea: Towards A Cooperative Management Regime conference 3

The State of World Fisheries and Aquaculture 2006 71 Tainan Basin 88 Taiping Island see Itu Aba Taiwan: and China 28, 32, 53, 165; defense by USA and Japan 146; and island sovereignty 42, 96; and Macclesfield Banks 14; and Paracel Islands 11; and Pratas Islands 44; and Spratly Islands 11, 53, 176–7, 214 Taiwan Chinese Petroleum Corporation 88 Tang Jiaxuan 132, 147 technical working groups (TWG) 180, 181, 185, 195, 199, 202–4 territorial claims 176–7 territorial limits 224 Territorial Water Law (China 1992) 32 terrorism, maritime 2 Thailand 112, 121; see also Gulf of Thailand Thitu Island 134 Tizard Bank 48, 53 Tonkin Gulf 66, 72, 74, 86–7, 159, 163, 184, 212 Tonkin Gulf Regional Economic Cooperation Zone 149–51 Tonnesson, Stein 134 trade routes 27 trafficking: arms 2; drugs 2; people 2 Trarkov, Colonel 45 Treaties of Amity and Cooperation (TAC) 95, 96, 110, 111, 130, 132, 135, 140, 159, 208 Treaty of San Francisco (1951) 30, 45 trilateral seismic survey 168 Trillanes, Antonio IV 121 tripoint boundaries 236, 244n1 Tubbataha Reef National Marine Park 75 TWG see technical working groups UBC see University of British Columbia UN Charter Article 2(7) 197, 199 UN Fish Stocks Agreement 70 UN International Code of Conduct for Responsible Fisheries 71 UN and joint development 82 UNCLOS: acceptance by China 144; aims of 1; Article 3 12; Article 5 235n10; Article 7 225; Article 13(1) 9, 12; Article 13(2) 12, 234n7; Article 60(5) 1, 13, 234n8; Article 60(8) 13; Article 61 70; Article 74 200, 226, 228, 234; Article 83(3) 200; Article 121(1) 8–9,

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UNCLOS continued 13; Article 121(2) 12; Article 121(3) 9, 12, 14, 20, 192, 193, 194, 198, 201, 204, 224; Article 122 204, 227; Article 123 205, 206n17, 226, 227, 228, 234; and boundary claims 123, 225; complexity of 192; and cooperation among states 226–7; definition of island 8–9, 193, 224; definition of rock 9, 122, 193; and fisheries 70–1, 74; and Indonesian boundaries 178; and joint development 82, 83, 186; jurisdiction 20, 118; limitations of 222–3; and maritime boundaries 225–6; and maritime zones 223–5; and oil exploration 213; and Paracels claim 97–8; part IX 2, 238, 241; regime of islands 9 UNEP 2, 66, 71, 181 UNEP/GEF South China Sea Project (environment) 71–2 United Nationals Environment Programme see UNEP United Nations Convention on the Law of the Sea see UNCLOS United States Energy Information Administration 15 University of British Columbia (UBC) 195, 200 US Institute of Peace 54 USA: and China 54; defense of Taiwan 146; interests in South China Sea 176; Mutual Defence Treaty with Philippines (1951) 137, 167; and Philippines 131, 136, 167; in Second World War, 30, 36; Seventh Fleet 141; and Spratly Islands 10, 37; State Department 37; and Visiting Forces Agreement (Philippines) 136, 146 uti possidetis juris 112, 115–16, 121, 122 Vanguard Bank 16, 88 Venecia, Jose C. de 168 Vietnam: and ASEAN membership 136,

138, 240; and BP 90; and China 3, 33, 37, 38, 42–3, 42–5, 52, 53, 72–4, 96, 129, 136, 145, 175, 212, 216; and Declaration on the Conduct of Parties in the South China Sea 207–19; and fisheries agreements 72–4; and France 43; and Joint Marine Seismic Undertakings 17; and Malaysia 122; and oil 81; and Paracel Islands 11, 31; and Philippines 209; and Spratly Islands 11, 24n53, 31, 53, 113, 176–7 Vietnam–China Fishery Cooperation Agreement 212 Vietnam Petroleum 213 Vietnam War 31, 32 Visiting Forces Agreement (USA and Philippines) 136, 146 Vo Van Kiet 136, 192 Wal-Mart and fisheries 76 Wan’an Bei (Vanguard Bank) 16 Wang Jingwei 44 Wang Yi 95, 132, 147, 148, 220n15 Wei Liucheng 163 Wen Jiabao 92, 105, 150, 168 Woody Island 29, 30, 31, 44–5, 47, 48, 51, 157 Workshop on Geosciences Cooperation 215 Workshops on South China Sea 179–84, 187–8, 189–205, 208, 215, 231–2, 243 World Wide Fund for Nature 75 Wu Bangguo 85 Wu Hongbo 149 Xisha see Paracel Islands Zhai Kun 151 Zhaoshan sunken area 88 Zheng He (Cheng Ho), Admiral 27, 43 Zhongsha see Macclesfield Bank Zhu Rongji 159 ZOPFAN see Declaration on the Zone of Peace, Freedom and Neutrality