Confidence Building for Cooperation in an Environment of Conflicting Claims to Jurisdiction

William G. Stormont
Research Associate
Centre for Asian Legal Studies
The University of British Columbia


The track two diplomatic initiative, Managing Potential Conflicts in the South China Sea, is the creation of Ambassador Hasjim Djalal. He envisioned a "two pronged" approach to the territorial and jurisdictional dispute. The first prong was to focus on areas where cooperation involving all the littoral states of the South China Sea could be developed. The second prong was intended to seek ways to prevent tensions in the region developing into armed conflicts and to encourage confidence building measures that would contribute to the creation of an atmosphere conducive to the possible resolution of the conflict. In spite of China's recent occupation of Mischief Reef, the activities of the project in 1994 went further towards the realisation of these goals than in any year since the project's inception.

The South China Sea Initiative and Ocean Governance

Track two diplomatic initiatives come into their own in situations where more formal avenues for discussion are destined to fail or even get started. Such is the case in the South China Sea where a long history of confrontation between the claimants and the sensitive nature of South China Sea issues precluded official discussions on the subject. Recognising that the prospects of convening a successful intergovernmental meeting were negligible, the South China Sea project was designed to bring together academics and government personnel in their private capacities. The potential for a greater degree of formalisation was left open as the project progressed. Whatever the outcome of initial meetings, the South China Sea project would have begun to identify issues of common concern to all the littoral states which require attention and must be addressed whether the boundary impasse is resolved or not.

One of the greatest misconceptions in the South China Sea dispute is the perception that the prerequisite for progress is the resolution of the jurisdictional stalemate. Boundaries may provide some answers but they do not adequately address the broader issue of marine management, particularly when one considers that migratory fish and pollutants pay no regard to boundary lines. Indeed, ocean management conducted unilaterally within the narrow confines of national boundaries will inevitably fall short of optimum management of transboundary resources.

Links between governments and a clear identification of the issues become possible in a non binding track two process. Rather that engage in the pointless posturing and fruitless debate over the justice of claims which would occur in formal surroundings, initiatives such as the South China Sea project allow an entrée into the "real" issues. In the case of the South China Sea, these issues are management of living and non-living resources, navigation and environmental protection among others. Taken as a whole, the challenge of integrating these separate yet intimately linked components may be considered as the objective of an effective ocean management scheme.

The 1982 Convention on the Law of the Sea encourages a regional approach to issues such as resource management whether boundaries exist or not. All the littoral states of the South China Sea have signed the Convention and two, Indonesia and The Philippines, have ratified it. These developments provided the initiative with a convenient point from which to approach the problems of the South China Sea without allowing the outstanding jurisdictional question to unduly intrude.

The law of the sea convention provides a framework governing the rights and obligations of states with regards to ocean space. Prior to the mid-1960s, law of the sea developments focused primarily on the rights of states to act unilaterally in the exploitation of resources. However, with the advent of the 200 n.m. eez, states have also to include the principles of interdependence and sustainable development in developing management schemes.

Ocean management today requires a high level of integration between competing maritime sectors which allows for each activity to proceed without negatively impacting the others. In determining domestic policy, a country must be aware of the potential negative impact of these policies on neighboring states, the immediate region and inter regionally. A clear illustration of the importance of an integrated approach to ocean management is the highly migratory tuna stocks which transit between the waters of the South China Sea and the South Pacific. The negative implications of a state in either region setting irresponsible harvest quotas without taking into consideration neighboring and extra regional state harvest quotas are potentially disastrous for the stock.

The South China Sea, due to the long standing history of antagonism between states in the region, is an extremely challenging arena in which to attempt to fully develop the complicated mixture of rights and obligations in oceans management. Managing Potential Conflicts in the South China sea is one forum which is attempting to develop an atmosphere of cooperation whereby states acknowledge that they have not only rights when it comes to exploiting the wealth of the South China Sea but also obligations. (1)

Potential Avenues for Cooperation

Calls by Indonesia and others to formalise track two discussions on the South China Sea have been consistently rejected by the claimants as premature. Similarly, attempts to internationalise the dispute have also been turned down. Institutions such as the International Court of Justice (ICJ) and the ASEAN Regional Forum (ARF) are considered by some to provide organisational frameworks in which to address the claims and jurisdiction to the rocks and waters of the South China Sea. In 1994, when the Spratly Islands were put on the ARF agenda for the first time, no progress was made. Some analysts have warned that, if the ARF fails to respond to the security challenge in the South China Sea, "it risks becoming no more than a glorified cocktail party" (2).

Asia's reluctance to involve Western institutions in helping arbitrate disputes also limits the potential role for the International Court of Justice (ICJ) in resolving the impasse in the South China Sea. China has left no doubt that she will not accept the ICJ as a mediator. China rejected Viet Nam's offer to submit the bilateral dispute over the Crestone concession let by China to the Crestone Energy Corp. of Denver, Colorado to the ICJ for consideration. Vietnam has retained Covington and Burling, a prominent Washington-based law firm, to determine how the International Court of Justice would settle the dispute. The 100 page decision found, some say inevitably, that, "The strength of Vietnam's claim, compared with that of China, is clear" (3).

Other potential solutions to the impasse have been suggested. Most focus on the joint development of offshore hydrocarbons which may or may not exist in the South China Sea. It has been argued elsewhere that the necessary foundations for joint development do not yet exist in the South China Sea (4). These prerequisites for joint development include a high degree of trust and confidence to be built up between countries and agreement on the area to be subject to development. The preliminary steps to achieving this level of mutual trust must first be established in areas of mutual concern such as marine scientific research, and environmental protection. The Canadian funded, Indonesian-sponsored workshops on Managing Potential Conflicts in the South China Sea seek to encourage such cooperation.

The South China Sea Meetings 1994

There have been five plenary meetings of the Workshop on Managing Potential Conflicts in the South China Sea. Traditionally, these meetings have focused on the following agenda items: shipping, navigation and communication; marine scientific research; territorial and jurisdictional issues; environment; living and non - living resources; and Spratly and Paracel issues (5). A quick survey of these agenda topics will make it readily apparent that some are more easily discussed than others. Rather than adopt a purely academic approach, the meetings are also attended by government officials from the region in their private capacities. These meetings proceed on the assumption that the time to address management of the South China Sea region is now and can't wait until the resolution of the jurisdictional dispute.

The Third Technical Working Group Meeting on Marine Scientific Research - Singapore May 22-23, 1994

In April 1994 the technical working group on marine scientific research met for a third time. Among other issues, the group discussed the possibility of establishing a South China Sea marine park, to be jointly administered by the claimant states. Also at Singapore, the finishing touches were put a biodiversity proposal which was subsequently presented to, and approved by, the Fifth Workshop on Managing Potential Conflicts in the South China Sea held later in 1994 at Bukittinggi, Indonesia. Two other proposals were also reviewed at the Singapore meeting. These focused on the study of tides in the South China Sea and a proposal to cooperate in the exchange of marine data and information between the countries in the region (6).

The First Meeting on Marine Environmental Protection - Hangzhou, China, October 6-8, 1994

This meeting, the first of the initiative to be hosted by the PRC, was convened in response to the perceived need to cooperatively address issues such as the state of the marine environment, regional impacts of global climate change, and the control of marine pollution. In addition, special consideration was given to the development of coordinated activities for marine disaster preparedness and response, and marine eco system protection.

The development of a mechanism or loosely formal organisation which is agreeable to all the littoral states of the South China Sea and will facilitate investigation and study of the marine environment in the region is a significant challenge for the project. In order to facilitate this, it was decided to form a smaller, sub - group, that would investigate the possibility of integration of these initiatives proposed in the South China Sea project with existing regional projects and programmes. The findings and recommendations of this sub-group will be presented at the second meeting of this TWG at a time yet to be determined.

The Fifth Workshop on Managing Potential Conflicts in the South China Sea (Bukittinggi, Indonesia 26 - 28 October 1994)

The Fifth Workshop is perhaps the most significant meeting of the project to date. In addition to discussion of the usual agenda items, for the first time, the workshop addressed confidence building measures in the context of Spratly and Paracel issues. At Bukittinggi, a concerted effort was made to focus on specific confidence building measures directly related to the dispute over the Spratly Islands rather than management of the surrounding ocean space. Referring to a resource document produced by the South China Sea Informal Working Group at the University of British Columbia (7), the Workshop reviewed proposed CBMs suggested at previous workshops and technical working group meetings, choosing to focus on the principle of non - expansion of existing military force in the in the South China Sea region.

Although CBMs were addressed at Bukittinggi, the PRC's recent occupation of the Philippine - claimed Mischief Reef underlines the necessity for an increased emphasis on CBMs which encourage the reduction of military tension in the region. The PRC's action vis a vis Mischief Reef was significant, not only for the fact that it has occupied yet another feature in the Spratly archipelago, but also because this is the first time it has moved against a member of ASEAN. The implicit message according to some is, Vietnam's pending membership in ASEAN will not deter China's assertion of its sovereignty in the South China Sea and may in fact increase the likelihood of conflict between the PRC and ASEAN.

Another first from the Bukittinggi meeting was the approval by the Workshop of a joint proposal for biodiversity research in the South China Sea. The object of this proposal is to document and assess the biological diversity in the South China Sea (8). The Workshop gave permission for Ambassador Djalal to seek funding support from international and regional organisations for the project's implementation.

The issue of opening the meetings to extra - regional observers was addressed at Bukittinggi by Foreign Minister Alatas in his opening remarks and subsequently raised in the meeting itself by Ambassador Djalal. As was the case at Surabaya, this proposal did not achieve universal support. Reasons for this reaction vary from participant to participant. A major contributing factor to the decision of some who support the "closed shop" approach is the understanding that the project's mandate is to seek "a regional solution to regional problems". It was argued that allowing Japan and the US to participate would compromise the project's integrity. Some felt that admitting extra regional powers such as these to the meetings would mean that the agenda would no longer be in the hands of the regional states but would be subordinated to the economic and security interests of others. China, never the most eager participant in multilateral fora and a consistent opponent of any form of internationalisation of the project, might interpret the broadening of the participants list as a direct challenge to her by the smaller Southeast Asian states. The workshop process would be much diminished if the initiative became polarised with the PRC openly facing off against the other Southeast Asian states. Canada remains the only non - regional presence at the meetings.

Prospects and Activities for 1995

The South China Sea Project will hold two meetings in the first half of 1995. The Fourth Technical Working Group Meeting on Marine Scientific Research will take place in Hanoi, Vietnam from June 27 - 30 while the First Technical Working Group Meeting on Legal Matters will be held in Phuket, Thailand between July 3 - 5 (9). When the idea for a legal matters meeting was raised at the Fourth Workshop on Managing Potential Conflicts in the South China Sea in Surabaya, it was rejected. At Bukittingi, however the convening of such a meeting met with the approval of the Workshop. The legal matters meeting will be the first on this topic to be held by the South China Sea Project.

The principle focus of the Hanoi meeting will be to finish both the proposal to study tides in the South China Sea and the proposal concerned with the exchange of marine data and information between countries of the region The legal issues meeting will not directly address the matter of jurisdiction and overlapping claims in the South China Sea. It will instead focus on the legal aspects of cooperation in marine affairs with reference to international and regional treaties.

Understanding the Workshop "Mechanism": the Anatomy of a Proposal

The South China Sea project consists of two essential elements: an annual workshop meeting hosted by Indonesia and technical working group meetings which were established in order to more fully consider and develop worthwhile ideas generated in the plenary sessions. These meetings focus on topics of concern to all in the South China Sea region. Proposals and suggested activities of the Workshop are the result of lengthy discussions between the participants and are arrived at by consensus. Activities are not imposed on the Workshop nor must they conform to a set agenda predetermined by the co-sponsors.

The biodiversity proposal, which was approved at the Bukkitinggi Workshop, provides an interesting example of how the workshop "mechanism" operates. Some background: "The biodiversity proposal is intended to collate existing data on the biodiversity of the South China Sea, assess what gaps exist and fill these gaps through a series of collaborative field surveys. The proposal further intends to identify habitats in the South China Sea which are critical for the protection, conservation and replenishment of ecologically and economically important species. The project will address the long term goals of protecting and conserving the biological diversity of the region, and ensure the continued viability of its genetic resources" (10).

At the "Third Workshop on Managing Potential Conflicts in the South China Sea", held in 1992 at Yogyakarta, Indonesia, participants agreed that there was a willingness, "to cooperate in assessing living resources in the South China Sea region" (11). As a result, the First Working Group Meeting on Marine Scientific Research in the South China Sea was convened at Manila in 1993. This meeting was followed by a second meeting of the TWG at Surabaya, held concurrently with the Fourth Meeting on Managing Potential Conflicts in the South China Sea in August 1993, and a third technical working group meeting in Singapore in May 1994. At Manila and Surabaya (12) the idea for the biodiversity proposal was further developed. When the TWG convened its third meeting in Singapore, it finalised a draft proposal to be submitted to the Bukittinggi Workshop for subsequent approval. Thus the most difficult hurdle, the unanimous approval of the project by workshop participants, has been overcome.

The future of the biodiversity proposal now depends on the willingness of outside funding agencies to recognise the proposal's potential contribution towards building confidence in the South China Sea and provide the necessary financial support as well as continued support from the countries of the region. To date, interest has been expressed by a number of regional and international organisations.

Conclusion

Track two diplomacy allows us to venture where formal diplomatic initiatives would likely fail, let alone even get started. The object of the track two approach is to provide a framework and basis for more formal negotiations. In marked contrast to formal initiatives, the track two approach allows states to examine contentious issues without compromising their essential positions. Should informal talks breakdown, nothing has been lost. On the other hand, in the event that informal discussions prove fruitful the stage is set for further progress.

The PECC Fisheries Task Force (PFTF) provides us with an excellent example of what can be achieved employing track two means. The PFTF's initial focus was on assisting in the development of South-South cooperation in interregional fisheries cooperation in the Pacific. Initially the PFTF involved participants from ASEAN countries and the Pacific Islands. Eventually membership was expanded to include Pacific Latin America.

An initial conference led participants to the conclusion that there were ample opportunities for cooperation between the countries, particularly regarding the shared tuna fishery. Subsequently, it was decided to establish an informal body which would be capable of facilitating cooperation between the two regions. The Western Pacific Fisheries Consultative Committee WPFCC was established in 1988 in order to achieve this end. The WPFCC was an informal body in which membership was voluntary. Similarly, a member country retained the option to withdraw without penalty.

The WPFCC was approached by the South Pacific Commission (SPC) to assist in the establishment of linkages between the South Pacific and ASEAN as previous attempts by the SPC to foster contacts with ASEAN on a formal level had failed miserably. Employing a step - by - step approach which included workshops and exchanges of tuna research scientists between the regions, the WPFCC built confidence and cooperation between the regions. Eventually, a research vessel was chartered for the purpose of tagging tuna, making initial ports of call in the Philippines and ultimately Indonesia. The WPFCC initiative was responsible for laying the foundation for inter regional cooperation of tuna fisheries management which had not existed prior to its efforts. This legacy of this initiative is testament to the value and potential of the track two approach where sensitive issues must be addressed (13).

The Managing Potential Conflicts in the South China Sea initiative continues to proceed apace. In 1995 there will be four meetings: three technical working group meetings and the Sixth Workshop on Managing Potential Conflicts in the South China Sea to be held in October. The South China Sea jurisdictional dispute is one of the most intractable of its kind. The divergent and intransigent positions of the disputants has resulted in stalemate. Therefore, any assessment of the relative success of the initiative it should take into account that it has been ongoing for the reasonably short period of five years and therefore any rush to judgment at this point may be rather premature. While it may not be for one so intimately involved with the initiative to pass judgment on its merits, the fact that all of the claimant states and others in the region continue to attend meetings and support the development speaks for the project's success to date. Whether or not clear boundaries exist in the South China Sea, cooperation at some level must be enjoined if transboundary resources are to be effectively protected and exploited. For this to occur the countries of the region must continue to build confidence between each other. It is this foundation for progress that the Managing Potential Conflicts in the South China Sea initiative is attempting to construct.

 

Notes

 

1. Part Five of the Law of the Sea Convention addressses the issue of rights and duties vis a vis the exclusive economic zone.

2. Robert A. Manning and Jame J. Przystup "The China Challenge" FEER, July 6, 1995, p. 30

3. See Barry Wain, "Vietnam Fires New Weapon in Oil Dispute: the Law" in The Asian Wall Street Journal, 16 June 1995

4. Ian Townsend-Gault, William G. Stormont "Ocean Diplomacy, Joint Development, and International Law" presented at the K.L Roundtable June 1995 (CHECK DATES)

5. This last listed agenda item is included in order to allow participants the opportunity to express their respective states' positions on the Spratly and Paracel Islands. Recent plenary meetings of the Managing Potential Conflicts in the South China Sea project have witnessed an increased reluctance to restate entranched positions. Instead, the discussion tends towards less contentious issues. This is not to imply that the sovereignty and jurisdictional issue is ignored, but rather fruitless arguments over the justice of respective claims is not permitted in the meetings.

6. The titles of the the three proposals arisinf out of the Singapore TWG are as follows:

Regional Cooperation in the Field of Marine Data and Information Among the Countries and regions Around the South China Sea;

Cooperative Program on the Study of Tides in the South China Sea;

Proposed Collaborative Research Project on the Biodiversity of the South China Sea.

7. David R. Nevin and William G. Stormont "Proposals for Building Confidence in the South China Sea: A Summary" prepared for the Fifth Workshop on Managing Potential Conflicts in the South China Sea, October 1994

8. The long term objectives of the research project shall contribute to:

a. Protection of the biological diversity of the region and to ensure the long term viability of genetic diversity;

b. Protection of endangered, and rare, species;

c. Protection and management of areas of signifigance in the life - cycles of important species; and;

d. The provision of possibilities for future research and training in the field of marine sciences.

(From the Report on the Fifth Workshop on Managing Potential Conflicts in the South China Sea, Bukittinggi, Indonesia 26-28 October, 1994, p. 75)

To acheieve theses objectives the project proposes to:

a. Assess the biological diversity of the South Chin aSea Sea including, inter alia,

i. the species compositionn of the living resources, both faunan and flora, with a particular emphasis on the endemic species; and

ii. the relationships of the various ecosystems;

b. Identify critical habitat areas of biological diversity in the region, and determine necessary action for conservation;

c. Study the human impact on the flora and fauna;

d Provide a basis for formulating guidelines and manuals with respect to human activities in the region.

9. During the period between the presentation and publication of this paper, both of these meetings have taken place. The statements from these two meetings are appended.

10. See Hearns, Glen and William Stormont forthcoming in Marine Policy"Report: Managaing Potential Conflicts in the South China Sea 1994"

11. Furthermore, "It was suggested that, due to the semi - enclosed nature of the South China Sea, and the overlapping EEZs that result from the region's geography, a joint stock assessment will necessarily br conducted in areas of national jurisdiction. Such an assessment would likely require the South China Sea states to convene a preparatory workshop involving regional experts to develop a detailed plan of action, formulate a budget, and identify funding sources. This meeting could also assess the extent to which information needs could be met by compiling data previously collected by individual countries, and regional and international organisations."

It is not meant to suggest that the allocation of tuna harvest quotas, for example, is not a difficult issue to confront. Living resources were chosen due to their relatively non - controversial nature relative to non living resources particularly hydrocarbons.

12. At the Manila meeting participants began discussing suggestions in order to determine what form cooperation would take on biodiversity. Suggestions ranged from a personel exchange to a paper rpesented by Dr. Kasijan entitled "Cooperative Marine Scientific Research in the South China Sea (COMARPS)".

The main points of of Dr. Kasijan's proposal were as follows:

13. For a more in depth treatment of the PECC Fisheries Task Force and the Western Pacific Fisheries Consultative Committee and the issues surrounding transboundary tuna management please see Gordon R. Munro "The Management of Tropical Tuna Resources" in The Peaceful Manangement of Transboundary Resources Blake et al eds., Kluwer, London: 1995.


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