The Spratly islands dispute
The writer is a senior fellow at the East-West
Centre in Honolulu. He has been analyzing issues of
ocean policy and international relations in Asia for
30 years.
The decision on Dec. 17 by the International Court of
Justice, or World Court, to award the tiny Celebes Sea
islands of Ligitan and Sipadan to Malaysia may have
some implications for the resolution of the disputes over
the ownership of the Spratly and Paracel islands in the
South China Sea. But the claimants aren't going to like
them.
The 40-odd Spratly Islands are claimed wholly or in
part by six governments--China, Taiwan, Brunei,
Malaysia, the Philippines and Vietnam--and military
forces of all but Brunei occupy the islands in a
crazy-quilt pattern. The Paracels are occupied by
China, which seized them from Vietnam in 1974. The
islands are situated near strategic but vulnerable
sealanes--which has drawn the attention of maritime
powers--and the surrounding seabed may harbour oil
and gas.
The World Court's 16-to-1 decision regarding the
sovereignty dispute between Malaysia and Indonesia
was based primarily on the superior "effectivites" of
Malaysia and its predecessors (principally, the British
colonial government in the area). That is, it based its
decision on the evidence of actual, continued exercise
of authority over the islands--in this case for some 88
years--and the absence of protest by others until 1969,
when the dispute arose. Indeed, the court rejected
almost all arguments by both sides based on
colonial-era maps and vague treaties. Evidence by
Malaysia that swayed the court included a 1917
ordinance regarding the taking of turtle eggs, the
licensing of fishing, the 1933 establishment of a bird
sanctuary on Sipadan and construction of lighthouses
on the two islands in 1962 and 1963. While the Spratly
and Paracel claimants have undertaken some of these
activities on their occupied islands, they have all been
more recent, mostly after the disputes arose and
certainly were not continuous for 88 years, nor without
protest.
This Dec. 17 decision reinforces those reached in
previous cases before the court. In the absence of a
clear allocation by a treaty, the decisions taken together
all but ignore "discovery," "historic" claims and
contiguity in favour of specific evidence of continuous,
effective occupation, administration or control over a
considerable period of time and the absence of protest
from others or their successful exclusion from the area.
On this basis, all the claims to the Spratlys as an island
group have significant weaknesses. Taiwan has
exercised effective control over the largest island,
Taiping Dao, since 1956, which may or may not qualify
as a "considerable period of time." But Taiwan has no
standing with the court. And anyway this claim, if
successful, would apply only to that island and would
have little effect on the drawing of maritime boundaries
because of the surrounding islands claimed by others.
The rest of the occupations and "effective control,"
including that by China of the Paracels, began in the
1970s, and were certainly protested from then until
now. Although these occupations and activities may
eventually ripen into a legitimate assertion of
sovereignty, the result would still be the current
crazy-quilt pattern. And disputes would continue
regarding jurisdiction over the adjacent maritime space
and resources.
This court decision has several other implications for the
Spratly claimants. If the claimants were to agree to take
their disputes before the World Court, they would be
wise to not ask--as Indonesia and Malaysia did--for an
"either/or" decision. Indeed, since it is highly unlikely
that the court would award all of the islands to any one
claimant, it would be better to ask for an equitable
allocation of the features. But because of the lack of
control of the decision-making process and national
sensitivities that would be aroused by a failed claim, the
claimants are unlikely to trust the fate of these islands to
the court.
It would therefore be in the claimants' interest to
negotiate an equitable solution to this dangerous
standoff. Such "equitable solutions" might include
demilitarization of the islands and their agreed
allocation, as well as the protection of their fragile
ecology. An interim solution would involve setting aside
the sovereignty question, leaving this for future
generations to resolve, and proceeding with some form
of joint development of the marine resources within the
disputed area.
In sum, the recent decision by the World Court does
not currently favour any particular claimant to the
Spratlys or Paracels. What it does, however, is to
highlight the weaknesses of their claims. It is high time
the claimants resolved these issues among themselves.
By Mark J. Valencia - The Far Eastern Economic Review - January 02, 2003.
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