PREVENTIVE DIPLOMACY: MANAGING POTENTIAL CONFLICTS
IN THE SOUTH CHINA SEA
(chapter published in Herding Cats: Multiparty Mediation in a Complex World, Crocker, Hampson, and Aall editors, United States Institute of Peace Press 1999 pp.107-133)
THE CONCEPT: PREVENTIVE DIPLOMACY AND DISPUTES IN SOUTHEAST ASIA
Much of this volume concerns exercises in mediation. Our work focuses on the stage before mediation may be required – prevention, in our case through the promotion of co-operative security and by means of informal diplomacy. The reasons for adopting the informal or track-two approach will be explained below, and it will be seen that the degree of informality attending our efforts is sometimes a matter of perception and degree. Our work can be regarded as "preventative diplomacy", the ambit of which has defined for the purposes of this paper in the words of former UN Secretary General, Mr. Butros Butros-Ghali, thus:
- to prevent disputes from arising between parties;
- to prevent existing disputes from escalating into conflicts;
- to limit the spread of the conflicts when they occur.
In Southeast Asia, "preventing disputes from arising", means managing potential conflicts by promoting cooperation among the states or authorities in the region in as many sectors as possible. The objective is to promote confidence and cohesion so that any problems arising them can be solved peacefully and amicably before degenerate into armed conflict.
The Association of Southeast Asian Nations (ASEAN) has been playing this role for the last thirty years and has in many instances prevented disputes from arising. Whenever they do arise, disputes have been handled in the so-called "ASEAN way". This "way" of preventing disputes from escalating should continue, not only among ASEAN member countries, but also between them and their neighbours.
The goal of limiting the spread of conflicts when they occur can be illustrated by developments over the past decade in Indochina, the South China Sea, and the Southern Philippines. While the situation in the Southern Philippines has been regarded primarily as an internal matter, it has also caught the attention of the Organization of Islamic Countries. Indonesia has been able to play a significant role in finding a solution to the problems in the Southern Philippines, thus reducing the likelihood of the involvement of neighbouring countries. In Indochina, ASEAN devoted more than 10 years to dealing with a succession of issues, beginning with Vietnam’s intervention in Cambodia in 1979 to topple the Khmers Rouges regime, and then contributing to the Paris Peace Accords which paved the way for elections there. And, in the South China Sea, the informal Workshops on Managing Potential Conflicts in the area have formulated various cooperative efforts to convert the potential conflicts into actual areas of cooperation. These efforts are the subject of this chapter.
The Problem : Territorial disputes and Overlapping Claims to Maritime Jurisdiction in the South China Sea
The "potential conflicts" in the South China Sea arise from a complex series of overlapping or multiple claims to the islets and rocks with which the southern part of that sea is strewn, and also to jurisdiction in the sea areas around these features. The jurisdictional position is then overlaid by perceptions, not all of which are sustainable so far as is known, about the resource potential of the seabed and subsoil. It is equally unfortunate that some of the proven resource and other issues are virtually ignored, thus producing a situation which is partly rooted in fact, and part in myth. To explain the context for our work, some background on the South China Sea and its resources is required.
The South China Sea and its Resources
According to the International Hydrographic Bureau, the South China Sea is defined as the body of water stretching from a south-westerly to a north-easterly direction, bordered on the South by 3 degrees South Latitude between South Sumatra and Kalimantan (Karimata Straits) and on the North by the Strait of Taiwan from the northern tip of Taiwan to the Fukien coast of China. For the purpose of this paper, however, the Southern Perimeter of the South China Sea is deemed to be 1 degree North Latitude, thus making it an area of about three million square kilometers of water.
The seabed area of the South China Sea consists of about one million square kilometers of continental shelf of less than 200 meters isobath and about two million square kilometers of seabed area deeper than 200 meters isobath. The continental shelf area is mainly located in the western and southern parts (Sunda Shelf), while the deeper part is located much more to the north-east. The deeper part, in some areas reaching more than 5000 meters (South China Sea Basin), is dotted by various shallow banks and corral reef islands. There are more than 200 islets, rocks and reefs in this area of the South China Sea, most of them not suitable for human habitation. But they are important for economic, strategic, political and legal reasons. Adjacent to the SCS proper, lie various seas of Indonesia and the Philippines which are now parts of their respective archipelagic waters (the Natuna, the Karimata, the Java and the Sulu Seas).
The SCS is rich in natural resources. Its fisheries are based upon large numbers of short-lived species. Unlike in the Banda Sea area in Indonesia (which is characterized by rich grounds for tuna, an important fish in the world market), the species in the SCS are so numerous and this makes large-scale fishing industry of one type of species somewhat difficult. It is not uncommon that in a single trawl haul, 200 species would be caught, around 80 percent of which would be of no or little commercial value. There are more than 2500 fish species in the Indo-Malay region alone.
The subsoil of the seabed of the SCS is also suspected, although not yet proven, to hold extensive deposits of hydrocarbon and fossil oil, including natural gas, especially in the shelf area on the western and southern sides and in shallow patches of the SCS Basin. The exploitation conducted by Malaysia and Indonesia in their own continental shelves as well as by the Philippines in the Reed Banks give weight to such speculations. There is no independent evidence of significant accumulations of hydrocarbons in the Spratly region.
The SCS is surrounded by countries that are mostly independent but are vastly different from one another. Macao is still under foreign rule but this status will soon change. The land sizes of the countries surrounding the sea vary markedly - the smallest being Singapore (633 sq. km) and the largest China (9.5 million sq.km).Their population sizes also vary greatly, the smallest being that of Brunei Darussalam (about 0.3 million) and the largest China (around 1.200 million). Their GNPs per capita also vary, with the lowest being that of Cambodia (US $215) and the highest is that of Singapore (US $26.400). Brunei has the lowest employment in fisheries while China and Indonesia have the highest (there are more than two million fishermen in Indonesia). Brunei has the lowest fish catch while the highest are those of China (17.5 million tons in 1993) and Thailand (3.4 million tons in 1993). The consumption of fish per capita among the nations around the SCS also differs markedly, Indonesia having the lowest per capita consumption of fish of about 17 kg per year and Hong Kong the highest at about 50 kg per year.
The SCS is one of the most strategic waterways in the world. The approaches to the SCS, especially the Malacca-Singapore, Sunda-Karimata, Balabac, Mindoro, Bashi and Taiwan Straits are located in the non-communist countries. These approaches are important for the passage of military and commercial vessels including and especially tankers. In the past, the Soviet Union placed great importance to the right of "transit passage" through the Malacca and Singapore Straits as well as through the surrounding waters in the SCS area, primarily because these passages were important for the communication between western and eastern Russia through the warm waters of the South Seas. The Russian Federation may revive this interest in the future once it is in a position to do so.
For Japan, the SCS and its most important approaches, especially the Straits of Malacca and Singapore, are extremely important for its economic and strategic lifelines since more than 80 percent of its oil imports are transported through these waterways. At the same time, these waterways are also extremely important to Japanese shipping in its trade with Southeast Asia, South Asia, Africa, the Middle East and Europe. Japanese interest in the preservation of peace and cooperation in the SCS may also increase as a result of its new orientation and increasingly intensive relations with ASEAN/Southeast Asian counties.
The People's Republic of China, although basically still a continental country, has also begun to pay increasing attention to the SCS and to a more assertive policy of promoting its interests in the area, either for economic, political or strategic reasons. Recently it has begun to develop its naval capabilities, perhaps in an attempt to strengthen its claim to some islands in the area.
A Summary of South China Sea Claims
Both China and Vietnam claim territorial sovereignty over the Paracel group of islands situated southeast of China. It was occupied by the former regime of South Vietnam until the PRC took it by force in 1974. Vietnam still maintains claim over the group of islands in spite of its occupation by China. Both the PRC and Vietnam rely on historical records to support their respective territorial claims to the Paracel islands. Except for its possible impacts on the situation in the SCS as a whole should it lead to armed conflict, the Paracel issue is generally regarded as a bilateral matter between China and Vietnam.
The other territorial conflict with regard to islands is related to the Spratly islands group which are several hundred miles to the south of the Paracels. Some of the islands, rocks, and reefs are presently occupied by Vietnam (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 island. The occupiers are exploiting fishery resources and conducting intensive and extensive exploration for oil and gas in the area.
China justifies its claim to the Spratly islands on historical grounds. In 1947, the Republic of China published a map of the South China Sea indicating nine rather broad, discontinuous dotted lines, each located close to the coasts of the other littoral states. China claims all the islands encompassed by these lines, although it began to occupy some of them only quite recently. This claim was renewed in 1958 in which China proclaimed a 12 nautical miles territorial sea and declared that "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. At the same time, Bohay Bay (Yellow Sea) and the Chiung Chow Straits (between Hainan and Mainland China) were declared "inland waters" of China in which no rights of innocent passage was recognized. Some maps published by others join up the "dotted lines", but the PRC denies their authority., insisting on that of the 1947 map. However, the lines remain ill-defined, and no coordinates have ever been given. For these reasons, the legality and the precise locations of the lines is far from clear. It is presumed, however, that China claims, at least claimed originally, is the islands, the rocks, and perhaps the reefs, but not the whole sea encompassed by the dotted lines. It is inconceivable that, in 1947, when general international law still recognized only a three nautical-mile territorial sea, that China would claim the entire South China Sea. A careful reading of its Law of February 25, 1992, strengthens this assumption, despite the fact that some of the recent Chinese writers seem also to imply that China also claims the "adjacent sea" of the islands and rocks. Again, the concept of "adjacent sea" has not been clearly defined and therefore it is difficult to understand its legal meaning. The concept of "adjacent seas" is foreign to the Law of the Sea Convention of 1982, and this raises the question of the compatibility of this concept with China’s international obligations as a state party to this treaty.
Taiwan's claim in the South China Sea is basically similar to that of China. In fact, the position of participants from China and Taiwan in the South China Sea Workshops have sometimes been very similar. Taiwan occupied Itu Aba island more than two decades ago but does not appear to have occupied any other features.
Vietnam's claim is also basically historical. It claims the whole of the Spratly Island group together with all its continental shelf. Again, the boundary lines of the claim are not clearly identified by co-ordinates. The claim also covers quite an extensive area of the South China Sea, and Vietnam has also occupied a considerable number of those islands/rocks.
The Philippine's claim is based on the so-called "proximity" principle and "discovery" of the islands concerned by a Philippine explorer Thomas Cluma in the 1950s. Unlike the Chinese claim, the Philippine claim clearly defines the coordinates and therefore it is quite identifiable. However, the coordinates are not measured from base points on land, but from fixed positions at sea which seems to have been chosen also rather arbitrarily. It is therefore also not so clear whether the Philippine claim is limited to islands or rocks within those lines only, or whether it also includes the whole sea within those lines. The Philippines has also occupied a number of those islands and rocks.
The Malaysian claim is basically based on the continental shelf principle and it clearly defines the claim by coordinates. It occupies some of these islands, those that it considers to be situated on its continental shelf Equally, Brunei's claim seems to have been based also on the principle of the continental shelf, although the boundary lines are simply drawn perpendicularly from two extreme points on the Brunei coastlines.
All or most of these claims overlap with one another and some of them with several of the other claims.
Indonesia is not a claimant to any of those islands or rocks in the Spratly group. But if the Chinese/Taiwanese unidentified and interrupted dotted lines of 1947 were to be taken into consideration and continuously connected, depending upon the nature and interpretation of the Chinese claim, then the Chinese Taiwanese claims could also intrude upon the Indonesian EEZ and continental. shelf as defined in the Law of the sea Convention 1982 and as demarcated in the Indonesian-Malaysian Agreement of 1969. The Chinese, however, have assured Indonesia that they do not have maritime boundary problems with Indonesia in the South China Sea.
All the claimants, with the exception of Brunei, have occupied numerous islets, rocks and reefs, but there is no clear pattern of occupation. Some of the Chinese occupations have been quite far to the south. The significance of the various conflicting claims is very clear. It is basically a scramble for territory and resources.
THE ORIGINS OF THE WORKSHOP PROCESS
With the Cambodian settlement through the Peace Agreement in Paris in 1990, the prospects for peace and cooperation in Southeast Asia were higher than ever before. Nature is not alone in abhorring a vacuum, however, and with one problem on its way to solution, it was natural that attention could focus on the next item on the conflict agenda - the South China Sea. Why was this? Several factors suggested that this was going to be the next major item on the regional security agenda:
The Cambodian problem had been more or less confined in geographical terms, but a major confrontation in the South China Sea would be much more serious and would invite the involvement of non-regional states. It was therefore essential to seek ways and means of preventing potential conflicts from erupting into armed conflagration. Since negotiations were unlikely to prove successful in the short to medium term, and the states concerned were unlikely to seek third-party settlement of their various disputes, a different approach was required. It was necessary to find a way of building confidence and promoting a sense of "community" in the South China Sea area. Part of the problem here involved a process of evolution from the "old" law of the sea to the "new" regime encapsulated in the 1982 Convention.
The most salient shift of emphasis between the law of the sea as it developed from 1945 to 1975 was the qualification of previously enjoyed unilateral rights (akin to but distinct from those of sovereignty over land) by concepts which required different forms of collaboration or co-operation. In other words, states had to come to terms with the fact that their rights were qualified by obligations, often to neighboring states. Nowhere were these obligations more tangible than between the littoral states of a semi-enclosed sea. This concept, like that of single ecosystem management, evolved by scientists, posed new challenges for lawyers and policymakers. The most pertinent provisions of the 1982 Convention addressing the need (or obligation) for different forms of co-operation are those dealing with the regimes of the EEZ (Articles 61- 67) and that of Enclosed or Semi Enclosed Seas (Article 123). The problem, however, was not merely one of habituating governments to notions of co-operation (which might, and in areas such as the eastern Mediterranean would, involve governments in relationships with neighbours with which relations were far from cordial), but in comprehending just what these obligations might entail. So far as the South China Sea was concerned, the Convention was clearly going to come into force (October 1994), and would attract ratifications from all the littoral states, just when the jurisdictional issues were moving to centre stage on the regional security agenda.
Thus, by the late 1980s, the consensus was that disputes concerning sovereignty over the Paracels and the Spratlys were becoming prominent issues which might pose threats to Southeast Asian security. Dr. Djalal had been among those who foresaw the possible escalation of a dangerous situation, and had conceived of the possibility of convening informal meetings to discuss not sovereignty and jurisdiction,. But confidence building and co-operation. In part, he was drawing on experiences with the Fisheries Task force off the Pacific Economic Co-operation Council (PECC), of which he was a leading member, in facilitating co-operation between the states of Southeast Asia, the Pacific Islands, and Pacific Latin America, where formal inter-governmental initiatives had foundered. While working together on a workshop on petroleum joint development in Southeast Asia, the two authors developed Dr. Djalal’s idea into a concept document which was submitted to the Canadian Department of Foreign Affairs. This led to modest but sufficient financial support from the Canadian International Development Agency for the first phases of the initiative.
The first step was to investigate the receptiveness of the ASEAN countries to such an initiative, a "testing of the waters". With the blessing and guidance of the Indonesian Foreign Minister Dr. Ali Alatas, the authors visited the ASEAN capitals in late 1989 inquiring whether informal meetings on co-operation and confidence building had any utility. A basic working paper was prepared by Dr. Djalal. It appeared that (l) practically everybody thought that we should do something; (2) there was apprehension that territorial disputes could pose major difficulties in developing cooperative efforts; (3) in view of difficult and sensitive territorial issues, it would be better if the approach were informal, at least at the initial stage; and (4) there was a notion that ASEAN members should coordinate their views and positions first before they engage non-ASEAN states in such efforts.
Consequently, we considered that: (l) regardless of the territorial disputes, we should always try to find out ways to manage potential conflict and to find an area or areas in which everyone could agree to cooperate, no matter how small or how insignificant it might seem to be, (2) We should be guided by the idea that in an instance of conflict there was always an opportunity for cooperation. It was up to all of us to discover it and to develop it for the benefit of all.
At that time, we had two basic objectives: (l) to manage the potential conflicts by seeking an area in which everyone could cooperate, (2) to develop confidence building measures or processes so that the various claimants would be comfortable with one another, thus providing a conducive atmosphere for the solution of their territorial or jurisdictional disputes. It was thought that it would be a major achievement for the region that we had decided to work together to transform the habit of confrontation into a habit of cooperation. This could be the sooner achieved if we had programmes designed to achieve it. Therefore, it was important to find a common denominator, no matter how slow the process may be or how small was the result at the beginning. Patience was important then as it still is today.
On the basis of support evinced during the 1989 meetings, the First Workshop on the South China Sea was organised in Bali in January,1990. Participants from ASEAN countries alone were invited. In this meeting, we devised the possible area for discussion namely: 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 mechanism 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, Laos and Cambodia. Indonesian Foreign Minister Dr. Ali Alatas opened the Workshop. In his opening remarks as the Convenor of the Workshop, Dr. Djalal emphasized that "the Workshop is intended as a platform for policy oriented discussions, not only for academic exchanges of views" . Leading participants from each of the ASEAN countries prepared papers on an assigned topic. No statement was issued, but an informal set of proceedings were prepared.
Participants vs. Delegates
The workshop process could not have been initiated, much less developed, had there been any attempt to establish it as an official activity taking place on an inter-governmental basis. The most obvious problem would have been the participation of Taiwan, and it is probably true to say that any such meeting would have involved the littoral states alone (as those invested with any rights available over the South China Sea), and not the entire region. The most formidable obstacle, however, would have been the attitude of officials. For the claimant governments concerned, the view going into such a meeting would be: "Our claims are just, clear and unambiguous, and therefore the only issue worthy of discussion is the adjustment of the position of everyone else to accord with ours." Such a position would not necessarily be taken by governments in other marine areas where overlapping claims to jurisdiction exist. However, in the South China Sea, these claims have been maintained and promoted with an assiduity which amounts to virulence that they dominate any meeting where any aspect of South China Sea activities is discussed. Those who have participated in purely academic meetings on South China Sea issues (or Gulf of Thailand issues, for that matter) will understand this point immediately. For those who have not, one can only emphasise that the situation in the South China Sea is not merely "another" maritime jurisdictional dispute.
Everyone participating in a Meeting held under the aegis of the Workshop process does so in their personal capacity: no-one is a delegate or representative. But far from removing the process from the attention of senior officials, this device allows such officials to attend and participate. The "personal capacity" designation can wear rather thin, but this does not matter. The point is, the region is meeting, and senior people are at the table, evidencing not only the status of the endeavour, but providing the essential link to the governments and authorities concerned.
In the beginning, in managing the potential conflicts, we were working in stages. We opened free discussion, we identified various areas of possible cooperation, we dissected every topic and problem and placed them under various categories, such as protection of the marine environment, political and strategic issues, safety of navigation, marine scientific research, territorial disputes - including the dispute over the Spratlys and Paracels, institutional mechanisms for cooperation, and so on. On the Spratlys and the Paracels, in view of the extremely sensitive nature of the disputes, we limited the forum to five minutes for each participant to express his views without entering into discussion. In the end, we found out that there were quite a lot of things that the participants would like to cooperate on.
Accordingly, the First Workshop in Bali in 1990 was specifically and exclusively attended by ASEAN participants so that they could lay down the groundwork. In preparing the Second Workshop it was thought that China and Taiwan should be included in view of the fact that they have claims in the South China Sea and that they also occupied some spots in the area. But it was not easy at that time to bring in China into the discussion, primarily because China considered that the South China Sea issues should not be "internationalized" and that China would discuss whatever problems it had directly and bilaterally with the countries concerned. In the view of China, 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 an international meeting like the South China Sea Workshop, if it were to be a "formal" meeting. As a matter of fact, by the Second Workshop in Bandung in 1991 it had become a very "inclusive" group; not only Vietnam and China were invited but also Taiwan. Even land-locked Laos was also invited. Cambodia was invited later after the political situation there became clearer.
Thus, by the Second Workshop in Bandung in 1991, we were already able to bring in China, Vietnam, Laos and Taiwan to the Workshop Process. In the Bandung meeting we went into more detail discussing the various topics listed above, the roles of major non-South China Sea powers in the region, as well as confidence building measures. Participants were invited to make statements on jurisdiction over the Spratlys and Paracels, though again, no discussion was permitted. More technical discussions took place on the issues of marine scientific research, marine environmental protection and safety of navigation as well as on resources management. Some ideas to establish a secretariat as well as to formalize the meeting were aired. 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 parties to the disputes shall exercise restraint in order not to exacerbate the potential conflicts. This statement was a precursor to a much more formal ASEAN Declaration on the South China Sea in Manila in 1992 and has become guiding principles for efforts to manage potential conflicts in the South China Sea through cooperation.
The Emergence of the Technical Working Groups
By the Third Workshop in Yogyakarta in 1992, more specific discussions took place on the various topics. By this time, we thought that devising cooperative projects would have to be work out in more details by specific technical working groups and experts groups. Thus, the meeting in Yogyakarta agreed to establish 2 technical working groups (TWG), namely the TWG on Marine Scientific Research and the TWG on Resources Assessment. 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 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 (directed by Dr. Djalal), should continue to be the focal point for the Workshop Process. With regard to formalizing the Workshop Process, some countries also have difficulties, particularly China, perhaps due to its difficulties to sit down together with Taiwan in a formal set-up. Thus, the informal set-up of the Workshop Process is a necessity and perhaps the only possibility for bringing in China and Taiwan together. Moreover, it was generally thought that discussions and ideas could flow more freely in an informal set-up while in a more formal meeting participants would be extremely constrained by the policies of their respective Governments.
By the Fourth Workshop in Surabaya in 1993, the issue of participation of non-South China Sea countries was already discussed. It was agreed that non-SCS participation would be allowed on a case by case basis to implement specific agreed programes of cooperation. In the meantime, the TWG on Marine Scientific Research (TWG-MSR) had already began discussions in Manila and the TWG on Resources Assessment (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 follow-up meeting of the TWG-MS in Singapore. It also agreed to establish the TWG on Marine Environmental Protection (TWG-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 on the basis of a step-by-step approach. . . ".
The Fifth Workshop in Bukittinggi in 1994 had already approved some specific projects for cooperation formulated by the Technical Working Groups, particularly a program for cooperation on the study and conservation of bio-diversity in the South China Sea (end of this instalment)
The Bukittinggi Workshop further agreed, inter alia, to authorize Dr. Djalal to seek support and funding for the project proposal on bio-diversity; to convene another meeting of the TWG on Marine Scientific Research to finalise proposals on sea level and tide monitoring, and on database, information exchange and networking, and to convene the first meeting of the TWG on Legal Matters in Thailand. The Workshop also further discussed confidence building measures.
As of January 1, 1999, the Technical Working Group on Marine Scientific Research has met six times: Manila (June 1993), Surabaya (August 1993), Singapore (April 1994), Hanoi (June 1995), Cebu (July 1996), and Manila again (November 1998 – technically, this was a joint meeting with the TWG on Marine Environmental Protection: see below). In addition to the proposed project on biodiversity protection, this TWG has developed two additional projects of co-operation, namely "Study on Tides and Sea-level Change", and "Regional Co-operation in the field of Marine Science Data and Information Network in the South China Sea". These proposals were adopted by Sixth Workshop in Balikpapan in 1995. Contributions by the governments of Brunei Darussalam, Indonesia and Singapore has made it possible to commence implementation of the project on biodiversity protection, but full execution of this activity will require major funding, and negotiation to obtain such support were in an advanced stage when this book went to press.
In addition to the TWG on Marine Scientific Research, other TWGs have been established, namely:
TWG on Marine Environmental Protection. This TWG has met three times: Hangzhou (China) in 1994, Hainan (China) in 1997, and Manila in 1998 (the joint meeting with Marine Scientific Research). We convened a Group of Experts Meeting on Environmental Protection in Phnom Penh in 1997. This TWG has formulated a project of co-operation on training program for ecosystem monitoring in the South China Sea. The project was been approved in principle by the Eighth Workshop in Pacet, Puncak (Indonesia), December, 1997. At the Joint Meeting in Manila, 1998, it was agreed that an ad hoc group of five or so experts would meet to subject the proposal to thorough revision in light of comments, and the final version should be reconsidered and adopted in 1999.
The TWG on Resources Assessment has met two, in Jakarta, first in 1993, then in December 1998. The 1993 meeting agreed to appoint 3 co-ordinators: namely Indonesia for the study of geological basin with regard to hydrocarbon potentials, Vietnam to prepare a study on hard minerals in the South China Sea, and Thailand to prepare study on living resources. The efforts of Indonesia and Vietnam stumbled on the difficulty in overcoming territorial and jurisdictional issues due to the sensitive nature of the subjects. On living resources, Thailand prepared a proposal for a stock assessment in the South China Sea which was discussed at meetings of the TWG on Legal Matters as well as the Workshops. Thailand was requested to continue with the preparation for the study on stock assessment and its program for implementation.
The 1998 Meeting considered a proposal from Indonesian experts to compile a data-base on non-living non-hydrocarbon resources of the South China Sea, in which the Committee for the Co-ordination of Offshore Prospecting in Bangkok would be invited to collaborate. This proposal was adopted by the Meeting, and then by the 9th Workshop (Jakarta, 1998). We believe that it will be possible to implement his project fully with our existing resources, and hope to commence this process in 1999.
The TWG on Safety of Navigation met three times: in Jakarta in 1995, Brunei Darussalam in 1996, and Singapore in 1998. The work of this TWG has concentrated on four areas, namely:
The TWG on Legal Matters has met three times: Phuket in 1995, in Chiang Mai in 1997, and Pattaya in 1998. Numerous legal issues involved in developing the co-operative efforts have been discussed. It has agreed that legal officers of the South China Sea countries should exchange information and documentation as well as collect various legislation regarding the South China Sea, particularly on environmental matters. The Fourth Meeting, proposed for 1999, will focus on environmental legislation.
A new activity, which falls loosely under the heading "legal matters" was commenced in 1998 – the Study Group on Zones of Co-operation, which was convened in Vientiane, Laos, in May 1998. This idea arose from a proposal made at the 8th Workshop. The reasoning was that "joint development" was a much-used phrase, but not all participants were aware of the many different arrangements which fell into this category. The title ‘zones of co-operation’ was adopted to allow coverage of the full range of co-operative jurisdictional arrangements at sea, including joint fishing zones, cross-boundary oilfields, and the like. Resource persons prepared a comprehensive set of materials, comprising the texts of relevant treaties, as well as academic writings, and presentations covered developments in all parts of the globe. Some issues were discussed in detail, e.g. the application of civil and criminal law on installations within a joint development area. This Meeting was a considerable success, and its results discussed at the Pattaya meeting of the TWG on Legal Matters as well as the 9th Workshop. The latter agreed to convene a Second Meeting of the Study Group in 1999.
Summary of Results, 1990-98
As of January 1999, 32 meetings have taken place under the aegis of the Workshop process. These meetings have been held in every part of the South China Sea region except Taiwan, and it is hoped that it will be possible to accept the offer from Taipei to host a meeting there in the future. Four agreed project proposals have been approved, one has been approved in principle, and three other initiatives are in an advanced stage of preparation. As will be clear from the above summary and chronology, several areas – illegal acts at sea, search and rescue - remain to be explored. In addition, further study of zones of co-operation should go a long way towards illuminating the flexible and functional responses of states to jurisdictional challenges, some of which may well be applicable in or capable of adaptation to the South China Sea.
Reviewing the work programme to date of the Workshop process, we are struck by the scope and scale of ideas and proposals for co-operation which have been advanced since our work began. We do not consider it immodest to state that, in a great many cases, these ideas might not have emerged if the Workshop process had not offered a forum for airing them. In choosing which ideas to pursue, we have been guided first and foremost by the opinions of experts in the field. It should be emphasised that we have succeeded in attracting the participation of a great number of the most senior experts in the region in a variety of fields: marine science, ecology, marine environmental protection, navigational safety, hydrography, geology, law, and so on. Many of the participants in the GEM on the Exchange of Hydrographic Data and Information are the Hydrographers for their respective countries. The fact that regional authorities facilitate their participation is further evidence of the degree to which the region is committed to the search for peace in the South China Sea.
The Seventh Workshop in Batam (1996) discussed the modalities of implementing the agreed project proposals. The most salient problems are financial support and the transformation of the perception of political obstacles into political will. Another, less obvious issue was identified in 1998: capacity. This in turn can be sub-divided, but, to our mind, the question of domestic capacity to participate is less problematic than lack of domestic capacity to comprehend why co-operation is necessary at all. In such cases, states and their officials tend to be hostile more or less by instinct, and allow shallow political obstacles and vague reference to financial difficulties to act as a smokescreen to hide inaction.
Practically all countries in the South China Sea have indicated willingness to participate in the implementation of the agreed programs either in providing expertise, facilities or even financial resources. But there is also a school of opinion which holds that implementation should be left to national institutions alone, due to the sensitive nature of the issues dealing with territorial and sovereignty claims – a perfect example of the deployment of the ‘smokescreen’.
Only at the Eighth Workshop in Pacet, Puncak, (1997) did participants agree to seek and promote joint implementation of the agreed programs for cooperation. In his Keynote Address, Minister Alatas recommended that participants approach this issue with a new sense of purpose. This theme was taken up by Mr. Gary Smith, then Canadian Ambassador to Jakarta. Speaking on behalf of the Canadian International Development Agency, Ambassador Smith not only added his voice to those urging a focus on implementation, but indicated that CIDA was willing to make available ‘modest support’ in aid thereof. Accordingly, Dr. Djalal was asked to continue to approach various international, regional and national agencies, governmental or non-governmental, in search of support. As previously noted, our activities have drawn the interest of a large number of organisations, governmental and non-governmental, domestic and international. Many have indicated willingness to pay a useful role in the Workshop process, and this places the onus on us to enter into discussions with them in an attempt to marry their priorities and interests to our own. Beginning in 1999, we are devoting additional resources to this task.
We referred above to the question of capacity and all the shades of meanings connoted by this term. The Law of the Sea Convention has been part of the international landscape – in draft or qua Convention – that we are perhaps apt to take it for granted. We are particularly inclined, perhaps, to see implementation as a task for the future, preferably the undefined future. In the South China Sea, however, one can argue that this future has arrived. The Convention is a treaty in force between all the states of the region except Cambodia and Thailand, and both intend to ratify. Arguably, implementation has commenced. But this process has focused to date on states rights, rather than obligations. However, this is not at all what the Convention provides. Once a state ratifies, it is bound by all the provisions of the treaty, many of which relate to co-operation.
This is perhaps where the problems arises. What forms of co-operation? Under what rules? To what end? In the Workshop process, as with all other meetings in the region on marine affairs, official and otherwise, one is struck by the vast disparity in levels of knowledge, experience and expertise displayed not only from country to country, but from agency to agency within one state. These ‘weak links’ in the chain – domestically and internationally – must now be helped to come to grips with the realities of this imposing and perhaps daunting treaty to which they have freely subscribed. The Workshop must assist with this process. Arguably, a start was made with the Study Group on Zones of Co-operation in 1998. With a quasi-lecture style supported by a 400pp set of materials, a framework was created whereby participants could absorb information from experts, ask questions, and – most importantly of all – volunteer information. We have seldom had a meeting marked by such a high degree of collegiality and success. We need hardly say that we learned much from this experience.
Co-operation is enjoined on all coastal states, but especially those that are littorals of an enclosed or semi-enclosed sea. Article 123 (d) of the Convention states that "States bordering on enclosed or semi-enclosed sea should co-operate with each other in the exercise of their rights and in the performance of their duties..(and) to this end, they shall endeavour to invite, as appropriate, other interested states or international organizations to co- operate with them...". The first question is, of course, whether or not the South China Sea constitutes an ‘enclosed or semi-enclosed sea" within the meaning of this Article. Much of the debate on this issues has been highly politicised – some countries wish to answer in the negative to escape the obligations. Others produce highly legalistic textual analyses in support of one contention or the other.
Surely this is besides the point? This Article attempts to put in legal language a concept which derives from single ecosystem management, and hence the requirement to co-operate is functionally driven. The lego-political element arises from the natural state off the body of water in question, not the other way around. This is not the place for a major analysis of Article 123, but we raise the issue to illustrate the problem. The Workshop process, and indeed other initiatives focusing in policy, management, and law, however defined, must assist the authorities of the region to come to a better understanding of the relationship between the norms of the law of the sea and the human security/food security imperatives in confronting the challenge of ocean management in the South China Sea. To put it bluntly: less politics, more substance. The consequences of the continuation of the status quo in human terms are horrible indeed.
Our second area of focus is the promotion of Confidence-Building Measures (CBM) or a Confidence-Building Process (CBP). In the Second Workshop in Bandung in July 1991, we issued a Statement on the need to resolve any territorial or jurisdictional disputes in the South China Sea by "peaceful means through dialogue and negotiation", that "force should not be used to settle territorial and jurisdictional disputes", and that "the parties involved in such disputes are urged to exercise self-restraint in order not to complicate the situation". This statement was adopted as the ASEAN Declaration on the South China Sea in Manila in July 1992 one illustration of how accomplishments in "track two" can find their way to "track one" fora).
In the course of Workshop discussions over the years various confidence building measures or processes have been raised. Some regard the Workshop process itself as an important CBM. At the Fifth Workshop in Bukittinggi in 1994 we took up the need for "non-expansion of existing military presence." This principle was supported by many but opposed by a few, arguing that this was not a matter for the Workshop to discuss. (This was before the Philippines "discovered" Chinese occupation of the Mischief Reef in February 1995). During the 6th Workshop in Balikpapan in 1995 we talked about more contacts and the possible "exchange of military commanders" who are responsible for the security of the multiple claims area in the Spratly Islands group. Again, this was supported by some but was also opposed by others, again arguing that this was not a matter for the Workshop to discuss. It was suggested, however, that some transparency of the activities in the disputed area was needed. In other words, we tried to look for CBMs or CBPs that could secure the respect and participation of all. We will continue our efforts to identify such measures.
It might be argued that, if our process is truly informal, there cannot be any limit placed on what he Workshop can discuss. This is true in theory, and not all participants are by any means convinced that the argument of our "mandate" has any validity. However, ours is a consensual process, and we try to steer the debate into areas where all participants feel free to exchange views. If some try to limit these areas, and the others – overtly or covertly – agree, then perhaps we see a limit to the extent to which any process can be unofficial while attracting the participation of senior officials, whether in their personal capacity or otherwise. We do not regard the "mandate" issue as being in any way settled, and have noted that issues regarded as taboo one year can be on the agenda with the support of all one or two years hence.
Dialogue Between the Parties
Our third, and more recent area of focus is that of encouraging discussion and dialogue among the parties to the territorial disputes with the aim of finding the basis for a solution that would be acceptable to all concerned. China's position has been that the settlement of territorial disputes could only be accomplished by the parties concerned bilaterally, not regionally or multilaterally or internationally. If that was what those directly concerned wanted, then all that we could do would be to encourage the participants concerned to seek ways and means to solve their problems.
This brings us to the subject of joint development. Much has been written on this topic, which seems to be used by some international lawyers as a panacea for the solution of any and all intractable maritime boundary problems. Comparatively few commentators appear to realise that such arrangements must provide a firm basis for resource exploitation, and are therefore an integral part of a resource management regime over the period of the arrangement which might be as long as fifty years. Furthermore, all such arrangements are essentially sui generis, and comparatively untried and untested.
Our own work on joint development, through the First TWG on Resource Assessment and the Study Group on Zones of Co-operation agreed:
Sooner or later, agreement on the following four points will be required:
Agreement on these four points would be the sine qua non for serious consideration of the possible role of joint development arrangements in the South China Sea (the plural is used deliberately: there is no reason why the concept should not be deployed if different areas, and for different purposes). Following the First Meeting of the TWG on Resource Assessment, Dr. Djalal suggested a possible "zone" where every participant, at least those having overlapping claims, could cooperate on the basis of the Law of the Sea Convention of 1982. For obvious reasons, the suggestion has never been made public. Some claimants were happy with the suggestion, while others said that they might have some reservations and amendments but they were willing to examine and discuss the idea. But one claimant did not want to talk about the proposed "zone" at all, although it expressed its willingness to cooperate.
Joint development is one of those concepts which means different things to different people, and some of these ideas have little basis in reality. For these reason, we see the work of the Study Group on Zones of Co-operation as filling an important gap in the knowledge base of a number of participants with regard to an approach which is being urged from all sides, but is perhaps too little understood.
The Workshop Process and the situation now
The situation with regard to the Workshops Process now is as follows:
The Workshop Process and Other Fora
The situation in the South China Sea is kept under review by various fora, official and otherwise, and is also much scrutinised by researchers and academics. We can claim to have made a contribution to the overall debate by identifying aspects of the whole picture which are sometimes ignored, or neglected because of insufficient (and accessible) data. South China Sea issues now is also being discussed, although informally, in other fora, formal and informal, such as in the ASEAN-China Dialogue, in the Informal Talks within ARF and in CSCAP, as well as in ASEAN-ISIS. There is no direct link between our work and these activities, but it is not necessary that there should be one. There is an obvious overlap in participating personnel, which would usually be sufficient to ensure a two-way exchange of views and information.
There are clear signs of support for the Workshop Process, e.g. from the ASEAN-European Union Dialogue, the Non Aligned Movement and various governments and international organizations. We have received indications that this support might assume tangible dimensions in the near future.
The pre-conditions for conflict prevention in the South Chin Sea have not changed since we began are work. They can be summarised as follows:
Our experience suggests that, to facilitate the achievement of these goals, the following lessons have - or should have – been learned:
Indicia of Progress
The Workshop process was initiated almost a decade ago. What conclusions can be offered on the basis of this experience?
The major questions would include the following:
Some possible responses to the above are common to both questions, and would include the following:
We would argue that points 1-3 are well established, and 4-5 are now the ones at issue.
Point four has two aspects: first, are states acting on any of the recommendations made by participants, and second, is there a discernible commitment to implementation? Perhaps it would be true to say that there should be two aspects to his question, but it appears to us that the participating authorities see them as linked, in that they appear to be waiting for concrete developments with the second aspect before concluding that the process has sufficient saliency to justify dealing with the first. The recommendations resulting from the Workshop process may have greater force if it can be shown that it is possible to devise projects for co-operation, and bring them at least to the brink of implementation, which means secured funding, the identification of executing and implementing agencies, etc.
As regards increased confidence, it might be argued that the continuing dispute over Mischief Reef, and the events which led up to it, are hardly evidence of growing trust and a decline in the role of the armed forces of the states of the region. On the other hand, it must be recognised that, especially in the case of the larger countries, there are several actors at work, and confidence and co-ordination between them is sometimes notably lacking. If the Workshop process is to succeed in influencing the parties, then it must deliver results. We have no quarrel with this, but would point out that we always considered that our work would complement activities on the formal track, not replace them. The continuing impasse at the Track One level forces attention on Track Two – the Workshop process – which is being asked to assume a greater burden than had been envisaged at the outset. We do not object to this, but are surely entitled to insist that analysts and commentators, inside or outside the process, maintain a degree of realism as to the consequences.
It has been suggested, for example, that our work is promising much but delivering little, the meetings are essentially anodyne exercises: a "talking-shop". In common with some experts, we do not see the objection to a ‘talking shop’ – where is the objection to a forum which brings people together? If the region’s experts are not to meet face-to-face at our meetings, then where? Some ‘talking-shops’ have proved their value, time and again. This point has little substance, because it assumes that significantly more could have been achieved under our banner than has been the case. We are not sure we agree: with secured funding (almost as much as we would like, but certainly enough to work with), our only constraints have been political. We are now working in five sectors simultaneously, but we built up to this: it simply would not have been possible to have launched the process with an agenda of eight meetings per annum in 1990.
Part of the problem with advancing points four and five has been identified the some of the above sections: states are not using the Law of the Sea Convention as much as they might and should; it has to be recognised that the obsession with sovereignty issues is essentially a dead end; and the lack of capacity to appreciate the consequences of the status quo as well as the benefits (and imperatives) of the co-operative approach pose significant obstacles to progress. We recognise this, and will take these factors into account in planning future activities. Continued progress with implementation, confidence-building, and the avoidance of confrontation, like the maintenance of the degree of commitment represented by points 1-3 is a matter first of continuing political will, and the ability of the initiative to respond to and reflect the changing wishes and priorities of participants. Arguably, the initiative has adapted in this way since 1990, and hence the degree of support it enjoys.
This is not to say that the absence of a threat to peace and security in the South China Sea would mean that Workshop Process is no longer needed, and there would be no need to implement agreed projects of cooperation which had been so painstakingly discussed and formulated. First, we do not agree that it is necessary to wait until the disputes erupt into armed conflict (or nearly so) before something can be done to prevent it. Preventive diplomacy is a long-term, continuing process. Second, we should not forget that co-operation is not being employed merely as a device to encourage confidence and good relations: it is necessary anyway.
Finally, commentators must hesitate before they assume that the truths of maritime co-operation are indeed self-evident. Implicit in the Workshop Process is the requirement that participants leave outside the door some of their most cherished beliefs and aspirations. They are being asked to think around a regional problem which engages the most difficult issues facing any group of people: sovereignty and access to resources. Few issues pose such challenges or rouse passions to such an extent. This cannot be achieved overnight.
As this chapter goes to press, we are planning for at least nine meetings in 1999, on zones of co-operation, illegal acts at sea, search and rescue, environmental legislation, other legal matters, marine scientific research and marine environmental protection, non-living non-hydrocarbon resources, and of course the 10th Workshop. Our funding is secure until at least 2001, and it appears that this support will continue while we continue to make progress. We have given some indications of how that progress might be measured, and how the value of the Workshop Process assessed. At the end of the day, it comes down to the authorities of the South China Sea region: how and in what ways do they value this initiative? How and in what ways do they wish to use it? How and in what ways can it be used, now, and in the future? The answers to these questions do not lie with us: like all good functional instruments, our process attempts to steer a course, while accommodating a somewhat over-crowded bridge served by too many (and quite different) charts. Different hands are on the throttle or wheel from time to time. We are perhaps now sailing somewhat more confidently than in the past through the dangerous waters of the South China Sea.