THE CONTESTED SOUTH CHINA SEA

Singapore, 28 December 2012

The on-going dispute regarding control of the South China Sea can be traced to the Treaty of Tordesillas signed in 1494, according to which the then ‘global’ powers Spain and Portugal divided the newly ‘discovered’ lands outside Europe between themselves in an arbitrary manner along a meridian about 2200 kilometres west of the Cape Verde islands (off the west coast of Africa). This line of demarcation was about halfway between the Cape Verde Islands (already claimed by Portuguese) and the islands discovered by Christopher Columbus on his first voyage, Cuba and Hispaniola (claimed for Spain). This treaty was approved and ratified by the Pope.  The other side of the world was divided 35 years later by the Treaty of Zaragoza or Saragossa, signed on 22 April 1529, which specified the anti-meridean to the line of demarcation specified in the Treaty of Tordesillas as the dividing line.The demarcation under this new treaty placed the Philippines under the control of Spain while some part of the Molucas (Maluku) went to the Portuguese. For four centuries thereafter European nations continued to draw borders in South East Asia with no consideration for the historical antecedents that affected (or should have influenced) such actions. In 1824, the Anglo-Dutch Treaty divided the Malay Archipelago along the Strait of Malacca without taking into account the tribal and ethnic affiliations of the population being thus divided. Therefore, the land borders of South East Asia have not been well delineated for centuries; a colonial bequest because the European nations needed to draw lines to demarcate the territories under their influence to enforce the ideas of rights, responsibilities and the enforcement of laws. This was essentially a prerequisite to economically exploit their holdings.   

The end of World War II in 1945 brought about two events of significance to South East Asia— decolonisation started to take place, creating numerous new sovereign states with de-facto borders based on the capricious lines that had been drawn by the European colonial empires being accepted; and the United Nations was established, starting the process of creating new legal concepts and enacting some international laws fundamentally aimed at avoiding conflict between nations. Although the land borders were arbitrary by any standards, the new nations normally settled their differences through negotiations. This was not a surprising development because the ethos of the region tended to avoid physical confrontation as such unless it became unavoidable or was forced on them by an external source. However, sovereignty of the sea was a different issue with the new nations not paying sufficient attention to it. There were two factors that greatly influenced the ambiguous attitude towards the sea in these newly independent nations. First, almost all the nations in the Asian continent were focused on nation-building in the wake of the withdrawal of the colonial powers that left these nations in dire straits with very limited understanding of the concept of self-government. This preoccupation made these nations pay insufficient interest to the issues of sovereignty of the sea. Second, the United Nations was in the process of creating the UN Convention of the Law of the Sea (Unclos) that is a large body of work some parts of which are still being formulated. The lack of interest in governing the seas and the complexity of the newly formulated laws kept the seas in the background for a number of years.

South East Asia has been patient about the exploitation of resources from the sea so far. However, the overlap of national interests in terms of the requirement for natural resources in the late 20th century to fulfil national developmental needs and the inherent quest for even distribution of these resources have made them aware of the exploitation taking place on unequal terms. After four to five decades of independence there is only limited patience for the continuation of this unbalanced distribution pattern. This situation is being made more convoluted by the difficulty in defining the Exclusive Economic Zones (EEZ) and understanding the legal implications of enforcing fishing and exploitation rights. To add to this frustration, most of the nations of the region do not possess navies that are capable of protecting national sovereignty and enforcing the will of the nation, even if they wanted to do so.

It is within these circumstances that the recent emotional responses of most South East Asian to disputes regarding the South China Sea have to be viewed. There is clear understanding that undersea natural resources have to be exploited to further the development of the nation and when this is combined with China’s offensive approach to claiming rights over the sea that are not considered legal; the stage is set for confrontational politics. The fundamental issue revolves round sovereignty and control. China’s claims of waters that are not its own have raised the stakes in the South East Asian region, an area that has so far been spared aggressive confrontations between regional nations. The recent decision of the United States to ‘pivot’ to the Indo-Pacific could well have been influenced by these gradually increasing tensions.

South East Asia is now sailing in in unchartered political waters—most of the nations are comparatively newly independent and therefore, not fully confident about pushing the diplomatic envelope and unsure of the role of the United Nations. At the same time they are unwilling (and rightly so) to barter the sovereign control of areas and natural resources that they believe to be legally belonging to their nations. The Unclos that is still being developed is not clearly understood and there is trepidation regarding approaching the international courts for justice because of a lack of confidence that their side of the argument would be heard properly. Few centuries of European exploitation has left deep colonial scars in the psyche of the nations in the region and the fear of injustice being meted out is palpably real. The ideal solution would be to share the resources in a mutually agreed manner and in an equitable fashion within the region. But that is an utopian solution and highly unlikely to be universally acceptable to all concerned. It is almost certain that this approach will not be pursued. The other solution would be to permit Unclos to be fully developed and then to implement it fully while ensuring that all parties adhere to it. This needs a great deal of patience and good will from all nations, something that is in short currency in the current circumstances.

The question therefore, is whether diplomacy and the logic of reason will ever be given a chance to solve the issues that are becoming ever more entrenched and threatening to engulf the region. China is undoubtedly the South East Asian regional power. When the ‘big boy’ starts being the regional bully, the smaller nations will become anxious. When they start to respond emotionally and not logically, the chances of achieving peaceful solutions recede rapidly. South East Asia and the larger Indo-Pacific region are inexorably becoming areas of contests—large and small—much like the time when European nations fought for influence and creating colonies to be exploited. Has the region come full circle?