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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.