.

three principal purposes:

I ploitation of the living
:pect to the protection and
'

Hasjim Djalal

here appropriate joint

I
the mandate of the proposed
mrces in disputed areas; port
[ nice; and community-based
i d not overlap with that ol

i her a scheduled activity b>

| he Future of Islands" was
since the mid-1980's, making
on ocean law, policy and

wrticularly those who serve as

KJrtant reason for its progress.
i ;encies, SEAPOL is required
i riar commitments, it is not

MANAGING POTENTIAL CONFLICTS IN THE

SOUTH CHINA SEA: LESSONS LEARNED

There are both similarities and differences between the situations in the South China
Sea and Northeast Asia. As in the South China. Sea, there are many territorial and
sovereignty issues between and among the countries in the region. However, the
South China Sea territorial and sovereignty disputes are more multilateral than the
territorial disputes in Northeast Asia, which are mostly bilateral.
The main territorial and sovereignty disputes in the South China Sea concern the
Paracels and the Spratlys. In Northeast Asia they include the Diaoyutai (Senkaku)
Islands between China/Taiwan and Japan, the Tokdo (Takeshima) islands between
Korea and Japan and the four Northern Territories (Southern Kuriles) between
Japan and the Russian Federation. As the result of these disputes over ownership of
islands, difficulties have arisen with regard to the delimitation of maritime
boundaries between the countries concerned.
In both the South China Sea and Northeast Asia there is the issue of divided
states/countries regarding China and Korea. Indeed, the rivalry between China and
Taiwan protrudes into the attempts to manage the potential conflicts in the area. The
role of China is therefore very significant in both regions.
Attempts to formulate "joint development" have already produced an agreement
between Japan and South Korea. But no hydrocarbons have been found in the area
and the agreement is also opposed and protested by China. In the South China Sea,
attempts to seek solution through joint development have produced successful
results, particularly that between Malaysia and Thailand and that between Malaysia
and Vietnam, both without involving China. Thailand, Malaysia and Vietnam have
strong political will to seek solutions primarily because they are all members of
ASEAN. While China has always professed to be willing to shelve territorial
sovereignty disputes in favor of joint development in the South China Sea, in reality
it has not been easy to understand what China really means by "joint development"
and "shelving territorial sovereignty disputes".
Bilateral attempts to seek solutions to clearly bilateral problems such as the

Mark J. Valencia (ed.). Maritime Regime Building, 87-92.

2001 Kluwer Law International. Printed in Great Britain,
87

Hasji\n Djalal

TakeShima/Tokdo and the Northern Territories/southern Kuriles island disputes,

have jnot resulted in any concrete agreement. Similarly, such attempts to settle the
Spratjlys disputes by bilateral negotiations between the parties concerned in the
South China Sea have not yielded positive results.
In both cases, however, efforts to negotiate solutions to land boundaries have
proven more successful than attempts to seek solutions to territorial and sovereignty
disputes over islands. One of the reasons for this different result may be the possible
consequences for maritime zones of settling these island sovereignty disputes.
There seems to be no specific format or forum to discuss the matter in Northeast
Asia,! while in the South China Sea various fora exist but with different degrees of
success. The informal Track.Two Workshop initiated by Indonesia has been one of
the most active forums in developing dialogue, confidence building, and concrete
cooperative efforts and networking in the South China Sea. Attempts to formally
discuss the matters between China and ASEAN, without the participation of
Chinese Taipei, have also made some progress, particularly in discussing a "code of
cond act" and other relevant issues in the ASEAN-China dialogue. The attempt of
the ASEAN Regional Forum (ARF) to deal with the South China Sea issues has
been ineffective, particularly because the ARF involves many non-regional powers
whose motives may be suspect.
The attempts by academics and think-tanks to better understand the issues of the
Souti China Sea have been on the whole useful, although in some cases they have
not c btained full cooperation from China. For example, China attempted to prevent
an ASEAN-ISIS (Institute for Strategic and International Studies), and Philippines
Insti ute for Strategic and Defense Studies conference on the South China Sea. There
is no forum or format to discuss similar issues in Northeast Asia, except through the
ARF which from time to time discusses the issues of the Korean Peninsula and the
Taiwan Strait.
There are also geographic similarities between the South China Sea and the Seas
of Northeast Asia in that they are "enclosed or semi-enclosed seas." Article 123 of
UNCPLOS 1982 requires that:
"States bordering an enclosed or semi-enclosed sea should co-operate with each
othei in the exercise of their rights and in the performance of their duties under this
Convention. To this end they shall endeavour, directly or through an appropriate
regie nal organization:
a. to co-ordinate the management, conservation, exploration and exploitation of
he living resources of the sea;
b. no co-ordinate the implementation of their rights and duties with respect to the
protection and preservation of the marine environment;
c. :o co-ordinate their scientific research policies and undertake where appropriate
_ oint programmes of scientific research in the area;
d. :o invite, as appropriate, other interested States or international organizations
to co-operate with them in furtherance of the provisions of this article."
Most of the countries bordering the South China Sea, except Taiwan; Thailand and
Camjbodia, have ratified UNCLOS 1982, as have all countries in the Northeast Asia
88

Managing Potential Conflicts in the South China Sea: Lessons Learned

except North Korea. Under UNCLOS 1982, all countries in Northeast Asia are
obliged to cooperate and seek peaceful settlement to disputes. As in the South China
Sea, Article 123 of UNCLOS 1982 could be used as a basis for co-operative
initiatives in Northeast Asia.
When I took the initiative to launch the workshop process on Managing Potential
Conflicts in the South China Sea in 1989, endorsed by the Indonesian Minister of
Foreign Affairs and financially supported by Canada, Indonesia and I had no
ulterior motive except to promote peace, stability and cooperation in the South
China Sea. We saw this as important for the development of the region as a whole,
including Indonesia. I was therefore motivated by the conviction that everyone in the
region should be guided by the principle that the promotion of regional peace,
stability and cooperation in the South China Sea is part of the national interest of the
respective countries, and that cooperation is preferable and better than confrontation. My perception was largely shared by the countries in the region. Therefore the
first lesson that can be learned regarding Northeast Asia is the need to find someone
with similar perceptions, preferably someone from* the region whose country is not
directly involved in the territorial or sovereignty disputes. It may be difficult to find
this personality in Northeast Asia. Nevertheless, it would be ideal if Northeast Asian
countries could agree to have one or two of their prominent personalities take the
initiative and for the initiative to be supported by disinterested countries, such as
Canada or Norway, Sweden or Finland. This initiative should be assisted by other
leading personalities from neighboring countries within the context of promoting
wider regional peace, stability and cooperation.
The experience of the South China Sea countries is replete with conflicts and
potential conflicts very similar to the experience in Northeast Asia. Yet, the spirit to
promote cooperation and to avoid conflicts may be stronger in the South China Sea
than in Northeast Asia due to historical and cultural differences. In taking the
initiative in the South China Sea, Indonesia benefited greatly from the ASEAN
experience in managing the conflicts in Indo-China, particularly in Cambodia, and
by its own experience in managing and seeking a. solution to the conflicts in the
southern Philippines. There are perhaps lessons that could be drawn with regard to
the potential conflicts in Northeast Asia, from the experience on the Korean
Peninsula, and in the border conflicts between the then Soviet Union and China and
between China and Vietnam. The Antarctic model is not appropriate to either region
because it entails a moratorium on exploitation which no South China Sea or
Northeast Asian country wants.
The attempts to manage potential conflicts in the South China Sea began with
second track diplomacy and some agreements became formal intergovernmental
positions. For example, the principles of cooperation agreed by the South China Sea
Workshop in 1991 became in 1992 the formal ASEAN Declaration on the South
China Sea. The Workshop attempts to study and promote a "code of conduct" in
the South China Sea resulted in the current willingness of China and ASEAN to
discuss a "code of conduct" in the formal ASEAN-China dialogue." The Workshop
efforts also laid the groundwork for the formal bilateral "codes of conduct" between
the Philippines and Vietnam. The Workshop's formulation of cooperative efforts in
89

Hatfim Djalal
\ resolve the Spratlys issues bilaterally but it cannot do so because the issues are
i multilateral in nature. The compromise is that China can discuss the issues
| bilaterally but a solution must be multilateral.
13. i Third party mechanisms for dispute settlement should also be explored and
| utilized, such as good offices, mediation, arbitration, and if necessary, eventual
i adjudication through the International Court of Justice or the Law of the Sea
Tribunal where China, Japan and South Korea are well-represented. The
i ASEAN Treaty of Amity and Cooperation (TAG) has already formulated
i mechanisms for dispute settlement among ASEAN countries. If mechanisms for
dispute settlement in the Northeast Asian region do not exist or are not
satisfactory, a new mechanism should be considered, by drawing from the TAC
or other models.
14. The cpuntries in the region should, wherever and whenever possible, attempt to
settle their land, maritime and jurisdictional boundaries as soon as possible and
i respect the agreed boundaries. They should not settle boundary problems
i through unilateral enactment of national legislation, because enacting legislation
\ tends to harden positions -rather than enabling parties to seek a solution.
15. In some disputed areas, the application of the joint development concept may be
| useful as long as the zone of the dispute is or can be identified.
16. While encouraging Track One activities in Northeast Asia to be more responsive
L and imaginative in dealing with potential conflict, more discussion by the Track
I Two fora, including by academics and think tanks can be helpful.
ll[ The interests of non-regional countries should be taken into account and their
i potential contribution to conflict avoidance in the region should not be
| discounted.
To conclude, I would encourage the development of linkages and networking, not
oily among academics, experts and strategic think-tanks in Northeast Asian
countries, but also linkages between and among various regional and sub-regional
initiatives, particularly between Southeast Asia and Northeast Asia. Developing
linkages and networks among the various Track-One and Track-Two activities and
initiatives is essential. For this purpose, patience, persistence, consistency and
ptfudence are necessary to overcome the many obstacles to peace.

Hasjim Djalal
the fields of marine science, environmental protection, safety of navigation and
others have similarly been initiated in the larger context by other formal fora,
including the dialogues between ASEAN and China and in the ASEAN Regional
Forum and the Council for Security Co-operation in the Asia-Pacific. The good
lesson that can be learned from this process is that informal initiatives can be very
useful in inducing formal cooperation, albeit in other fora.
In launching an informal initiative, it is important to take into account several
basic principles.
1.

2.

3.
4.
5.

6.

7.
8.
9.

Use an all inclusive approach and do not exclude any directly interested
countries or parties. The South China Sea Workshop dialogue even included
Laos as a land-locked country and it proved helpful in creating a sense of
regional community regarding the issues.
Start with less sensitive issues which participants feel comfortable discussing
without incurring the animosity of their respective governments or authorities.
Our experience showed that oil and even marine scientific research proved to be
too sensitive. Environmental protection is a more comfortable topic.
The participants should be senior or important personalities in their governments or authorities although they are participating in the process in their
private capacities.
Do not institutionalize the structure of the process by creating a permanent or
well-organized mechanism but keep the process as flexible as possible.
Differences should not be magnified and cooperation should be emphasized.
Bringing "provocative international attention" to, or immediately internationalizing the process may be detrimental in the long run. China is particularly
opposed to internationalization because it may mean involvement of the United
States in the issues.
In view of the delicacy and sensitivity of some issues, it is wise to follow a step by
step approach and take into account the principles of cost effectiveness. In
Northeast Asia, it may be wise to start with the Sea of Japan (East Sea) which
may be somewhat less controversial than the Yellow or East China Seas. China
may wish to participate because of its fishing interests and access via the Tumen
River but it would not be a dominant player.
It should be understood that the process of managing potential conflicts is a
long-term continuing process where lack of immediate concrete results is not
cause for despair and frustration.
Keep the objectives simple. The South China Sea Workshops have two
objectives: to learn how to co-operate; and to implement co-operation. The goal
is to build confidence through dialogue.
The roles of the initiator and the convener of the process as well as the roles of
disinterested supporters and sponsors are very crucial. The initiator or the
convenor must have patience and dedication as well as tenacity and sufficient
knowledge of the delicate issues involved. At the same time, me convener must be
able to retain the respect and the continued support and cooperation of all
participants.

Managing PoJenliaLCojiJJicts in the South China Sea: Lessons Learned

In mar aging the potential conflicts in the South China Sea over the last ten years,
I have learned lessons that could be relevant to the Northeast Asian region. Some of
those lessons follow:
1. More powerful countries in the region should be mindful of the views of their
neigr bors. In particular, the powerful countries should be careful that they are
not perceived to be dominating or bullying their weaker neighbors.
2. Attempts should be made to broaden participation in cooperative programs and
to deepen the areas of cooperation. The more the cooperative efforts are
perceived as mutual benefits, the more likely the efforts are to be successful.
3. Ther: should be an emphasis on regional and common interests. The countries
of the region should learn how to pursue their national interests within their
regional context; in fact they should perceiveJhe pursuit of,regional interests as
part, ofatheir,.jiational interest. ,Thus^aj^nse,,,of community" should, be
develop Imlong the participants." * *" 1SJT^ "" *****
4. Thet e should be a gradual progression from the concept of national resilience to
the concept of regional resilience and regional cohesion. ASEAN's positive
experiences in this regard have been very instructive and could be useful for the
countries of Northeast Asia.
5. The countries in the region should be less sensitive to the concept of national
sovereignty, since issues which in the past might arguably be solely of a national
character, are now increasingly becoming regional and have regional implications, including environmental issues, domestic political stability issuesrand
monetary and financial issues.
6. Within the true sense of Asian good neighborliness, the countries in the region
should be helpful to their neighbors in need.
7. The countries in the region should also avoid an arms race and coordinate their
defense needs, thus bolstering regional harmony and transparency.
8. Major external powers, wherever possible and practicable, should support the
development of a constructive atmosphere for peace, stability and progress.
9. Countries in the region should exercise preventive diplomacy by preventing
disputes from becoming open conflict and preventing conflict from spreading or
intensifying.
10. Cointries in the region should develop concrete cooperative programs or
pro.ects so that potential conflicts can be managed by converting them to
coo serative efforts.
11. Countries in the region should develop various fora for dialogue - bilateral or
multilateral, formal or informal. The more fora the better. The various fora for
dialogue should eventually be able to produce an agreed code of conduct for the
region.
12. Countries should pursue various avenues of peaceful settlement of disputes,
either through bilateral negotiation, if the disputes are bilateral, or multilateral if
the (disputes are multilateral. For example, Vietnam wanted to include the
Parcels in the Workshop discussions but it was pointed out that this was a purely
bilateral issue between Vietnam and China. On the other hand, China wants to
91