The Spratly Islands Dispute: What Role for Normalizing Relations between China and Taiwan?
Christopher C. Joyner*
The Spratly Islands have become a security flashpoint in the South China Sea since the end of the Cold War. These islands are claimed in whole or in part by six states: China, Taiwan and Vietnam assert sovereignty over the entire archipelago, while the Philippines, Malaysia, and Brunei claim portions of the island group. Except for Brunei, all the others have established military garrisons in the Spratlys.(1)
Geopolitical nuances of the Spratly Islands dispute have generated considerable debate in recent years.(2) Even so, little thought has been given to whether or how this potentially volatile situation might be converted into an opportunity for constructive engagement between various claimants, in particular, between the Republic of China (ROC) and the Peoples' Republic of China (PRC). Might the Spratlys' dispute facilitate cooperation on an issue both governments consider important, and thus contribute toward increasing mutual trust toward each other? This question points out the chief purpose of this study: To analyze whether the Spratlys' situation might contribute to lessening tensions and fostering greater cooperation between both sides of the Taiwan Strait, and how it might be made to enhance prospects for more normalized relations between the PRC and Taiwan. Toward this end, Part II briefly treats the background of recent relations between the PRC and Taiwan, and Part III examines the geography and historical assertions to title made by the PRC and Taiwan to the Spratlys. Part IV suggests strategies for constructive Chinese engagement, including resort to confidence-building measures and the possibility of PRC-ROC joint resource development in the Spratlys area. Part V proffers a process for gradual normalization that both governments might adopt through policies affecting their Spratly claims. The final section provides conclusions on the prospects for resolving the Spratlys' dispute and possible implications for the relationship between the PRC and Taiwan.
The geostrategic importance of the Spratlys in the South China Sea is well known. The region contains rich fishing grounds, and the islands straddle sea lanes through which commercial vessels must sail en route to and from Southeast Asian ports. Moreover, the prospect of substantial reserves of hydrocarbons being discovered in Spratlys' continental shelf has recently exacerbated the potential for confrontation. This situation has led to a complex web of conflicting rivalries and assertions of sovereign competence over the South China Sea's waters and access to its living and non-living resources around the Spratly Islands. The dispute involves bilateral conflicts between claimants: China and Vietnam had violent encounters in 1987(3) and March 1988;(4) China and the Philippines confronted each other in 1995.(5) The dispute also has generated confrontations between a pair of regional groups. There are the claimant states from the Association of Southeast Asian Nations (ASEAN)--Brunei, the Philippines, Malaysia, and Vietnam--set against the non-ASEAN countries, China and Taiwan.(6)
Two claimants have identical but separate claims to the Spratlys group. The PRC and the ROC each claim title to the entire archipelago, largely on the same historical bases of discovery, occupation, and centuries-old interest. Indeed, both the PRC and Taiwan contend that the entire South China Sea belongs to "China," and both claim to be that "China." This may not be surprising, since the Chinese on both sides of the Taiwan Strait share a common history, culture, and racial background. They were artificially divided almost fifty years ago by rival leaders and ideological antagonisms. The greatest problem today between the PRC and the ROC, however, is a lack of mutual understanding, driven by mutual distrust. The diplomatic situation became overtly exacerbated in mid-1995 when Taiwan's President Lee visited the United States, which prompted angry denunciation by Beijing and culminated in March 1996 with the PRC firing live missiles offshore Taiwan to intimidate Taiwanese voters, and the United States responding by sending a fleet of sixteen warships to the Taiwan Strait.(7)
Such suspicions aside, relations between the PRC and Taiwan have improved over the past decade. They enjoy today the closest contacts in people-to-people exchanges, commercial transactions, and investments than at any time over five decades. Credit for these positive developments is owed to both governments--to increasing economic growth and democracy in Taiwan and to Beijing's willingness to permit reforms. Both developments have facilitated expansion of friendly interactions between the PRC and ROC.
Since November 1987 the ROC has permitted Taiwan residents to visit relatives on mainland, who have been generally welcomed by the PRC. People-to-people exchanges between the two sides reached nearly 7.3 million visits between 1987-1995.(8) More than 100 million letters and an equal number of telephone calls have been exchanged.(9) By late 1997, Taiwan had invested as much as $14.9 billion, and perhaps as much as $30 billion, in mainland China.(10)
Regarding diplomatic status, Taiwan recognizes the government in Beijing as the political regime governing Chinese mainland, and has openly advocated promotion of national unification through peaceful means.(11) While the ROC still considers itself a sovereign, independent state, it maintains the formal policy position of "One China, two equal political entities."(12) The ROC would like for both Beijing and Taipei to accept the existence and legal authority of the political entity on each side. PRC, however, asserts the position of "One country, two systems," which diminishes the status of Taiwan to that of a province of China and a "runaway, breakaway" province at that. More disturbing to the ROC, Beijing refuses to renounce the use of force against Taiwan. The critical concern, then, is how to reach the condition of peaceful co-existence and co-prosperity that can accommodate the political ambitions of both governments.
The Spratly Islands dispute in the South China Sea, earmarked by the PRC and Taiwan holding like-minded positions on the same claims, offers a unique opportunity for both governments to foster Chinese cooperation on a sensitive national security issue and at the same time lessen mutual suspicions about the intentions of each toward the other. Through functionalist cooperation on the Spratlys question, the two governments might improve their understanding of each other and introduce new patterns of involvement that foster greater collaboration and normalization of relations between Taiwan and the mainland. The study now turns to examine the Spratlys dispute and ways in which it might be transformed into a diplomatic instrument to promote constructive engagement of the PRC and Taiwan into a more collaborative relationship.
The Geography of Sovereign Claims
The Spratly Island group, located between 4° and 11°3' North Latitude and 109°30' and 117°50' East Longitude,(13) contains some 122 scattered islands, isles, shoals, banks, atolls, cays, and reefs, nearly all of which are submerged most of the year. The mapped islands of the Spratly archipelago, having elevations from two to six meters, including shallow territorial waters, are scattered across an area of 180,000 square kilometers (69,500 square miles) of ocean space.(14) The actual land area of these formations comprise only 3.1 square miles in the expanses of the semi-enclosed South China Sea that covers some 800,000 square kilometers (496,000 square miles) of ocean space.(15)
The Spratlys cannot sustain human life. They are too small, too barren, and have insufficient fresh water and land-based resources to support permanent settlement.(16) Yet, for the littoral states in the South China Sea, these islands are still considered strategic, economic, and political assets, principally because they serve as legal base points for states to project claims of exclusive jurisdiction over waters and resources in the South China Sea.
A. Chinese Claims
Claims to sovereignty over the Spratly Islands are based on acts of discovery, occupation, and more recently, on certain inferred rights over continental shelf delimitation. Legal facets of the claims became more salient for both Beijing and Taipei when the prospects for petroleum exploration become real during the 1970s and the 1982 United Nations Law of the Sea Convention emerged as the standard for demarcating offshore jurisdictional limits for resource exploitation.(17) In fact, until the oil shocks of the 1970s, no other governments in the region except for China had the South China Sea claimed on their national maps. Other claims to the Spratlys sprang up after the prospects of oil discovery arose. The PRC's assertions of sovereignty in the South China Sea rest on historical claims of discovery and occupation. The Chinese case is well documented. Archaeological findings about the Xisha Islands during 770-476 B.C. suggest Chinese fishing expeditions visited the region.(18) References made in Chou Ch'u-fei's Ling-Wai-tai-ta (Information on What Lies Beyond the Passes) during the Sung dynasty (12th century)(19) and in the records of Chinese navigators during the Qing dynasty (18th century) also describe considerable naval activity in the area.(20) Notable problems of authenticity and accuracy exist, however, in describing coastal points as implied references for the Spratly Islands. These problems are compounded by the fundamental question of whether proof of historical title today carries sufficient legal weight to validate acquisition of territory. Modern international law clearly recognizes that mere discovery of some territory is not sufficient to vest in the discoverer valid title of ownership to territory. Rather, discovery only creates inchoate title, which must be perfected by subsequent continuous and effective acts of occupation, generally construed to mean permanent settlement.(21) Evidence of such permanent settlement is not compelling in the case of China's claim to the Spratlys.(22)
In 1992 the PRC passed a special territorial sea and contiguous zone act to legalize its claims to the Spratlys. Article Two of this legislation specifically identifies both the Paracels and Spratly archipelagoes as Chinese territory, and even uses the Spratlys as basepoints for drawing baselines delimiting China's territorial waters.(23) To uphold this claim to title, since 1988 China has deployed some 260 marines in garrisons on eight of the Spratly islets,(24) and several helicopter pads have been constructed.
Taiwan's claims to the Spratlys mirror those of the PRC, and both governments apparently have made efforts to coordinate positions on Chinese claims in international discussions of the dispute. The legal bases for Taiwan's claims are its longstanding historic ties to the islands,(25) although it only has control over Tungsha Island and Itu Aba (Taiping Island). Consequently, Taiwan's claims suffer from deficiencies like those of the PRC, namely, that discovery of, and intermittent contact with, scattered island formations are insufficient cause to establish legal title to sovereignty.
Taiwan was the first government to establish a physical presence on a Spratly Island following the Japanese departure after World War II. Taiwan announced its claim to the atoll in 1947 and has occupied Itu Aba, the largest island of the Spratlys, constantly since 1956. Interestingly enough, this unchallenged exercise of control over Itu Aba for more than four decades may qualify as a display of continuous and peaceful sovereignty, a condition necessary for supporting a legal claim to the island. From the mid-1950s through 1990, Taiwan maintained a force of some 600 soldiers on Itu Aba.(26) Since then, the ROC has reduced its garrison to approximately 110 troops.(27)
Officials from nationalist China have landed on numerous reefs, islets, and rocks in the Spratly Islands since 1946 as symbolic demonstration of government administration, and thus visible evidence of effective occupation of the claimed islands. Moreover, since the end of the Cold War the ROC government has raised priority for China Sea issues, even while keeping a low profile. In July 1989 the Land Administration Department of the Department of the Ministry of Interior created a special committee for drafting baselines for demarcating Taiwan's territorial sea and exclusive economic zone. In 1990 that committee decided that the waters surrounding the Spratlys should be treated as "historic waters," leaving the clear implication that this maritime area might be considered territorial waters belonging to the ROC.(28) In October 1992 the ROC Ministry of National defense declared a 4000 meter exclusionary zone around and a 6000 meter restricted air zone over Itu Aba Island. In March 1995 shots were fired at a Vietnamese vessel that intruded into the prohibited sea zone around Itu Aba.(29)
The Spratlys situation remains geopolitically complicated by four other national claims that compete with those of Taiwan and the PRC. Vietnam claims the entire Spratlys archipelago and has occupied at least 25 islands, reefs, and cays with 600 troops.(30) The Philippines have garrisoned 595 soldiers on at least nine principal islands and assert claims to some 22 other islets, reefs, and shoals.(31) Malaysia has put 70 troops on three atolls and asserts claims to nine other geological formations in the area.(32) Finally, Brunei claims Louisa Reef.(33) Consequently, the South China Sea has become a patchwork of conflicting national claims, most recently driven by geopolitical considerations over development of potential hydrocarbon resources.(34)
The contentious nature of jurisdictional disputes over the Spratlys has prompted claimant states to take efforts to enforce their claims by stationing a permanent military presence in the archipelago. By 1998, nearly 1650 troops of five claimant governments occupy at least 46 of 51 major land formations in the Spratly archipelago.(35) In the process, the two most frequent antagonists, China and Vietnam, have sought to outdo each other by increasing naval patrols and establishing new military outposts on previously unoccupied islets in the region.(36)
B. Geostrategic Interests
As claimant states, both the PRC and Taiwan assert special geostrategic interests in the South China Sea. Fishing remains an important economic activity for nationals from both mainland China and Taiwan, as these waters hold abundant supplies of numerous fish species. Both the PRC and ROC governments want to maintain unrestricted access to commercial sea lanes throughout the region to sustain their international trade. Likewise, both aspire to share in the exploitation of hydrocarbon resources when it occurs in the South China Sea.
It is the PRC, however, that has become the key player in geopolitics affecting the Spratly Islands dispute.(37) China is the preeminent military actor in the region; it possesses the largest navy, air force, and land army in South Asia. Traditionally, China's national interests in the South China Sea have been geostrategic and security-related, in particular, to prevent becoming encircled by the expanding influence of the Soviet Union (now Russia) and to protect national security from a sea-based attack. The Spratlys archipelago is viewed as a strategic asset. Lying between Vietnam to the west and the Philippines to the east, the Spratlys offer a potential staging location for blocking ships traversing the South China Sea. Aircraft, including helicopters, based in the Spratlys could bring within closer range the Malacca and Sunda Straits, vital choke-points though which shipping from the Middle East must pass to reach Northeast Asia. A military presence in the Spratlys, such as an airfield, could effectively be used to stop all shipping in the South China Sea if armed conflict were to break out in mainland Asia.
For Taiwan, on the other hand, the Spratlys hold little strategic value. Compared to the PRC, Taiwan is weak militarily, with few strategic interests in the South China Sea. The Spratlys are 800 nautical miles southwest of Taiwan and beyond the ROC military's power projection. Taiwan occupies only Itu Aba (Taiping Island), and today has a garrison of 110 troops on it (down from 500 in the 1980s and early 1990s). There is but one helicopter pad; Taiwan has not constructed an airstrip on Itu Aba island, nor does the ROC government intend to increase the number of troops garrisoned there. Interestingly enough, unlike the other claimants, Taiwan alone is not seeking agreements with foreign governments or corporations to undertake oil exploration in the South China Sea. In short, Taipei has engaged in policies of self-restraint and denial in the South China Sea, largely because it lacks the military wherewithal to defend its historical claim.(38)
In general, Taiwan's policy aims seeks peaceful resolution of territorial disputes in the South China Sea, inclusive of the Spratly Islands. In 1993, the ROC government adopted a "South China Sea Policy Guideline," which articulates the five major goals that the ROC seeks in the region. These policy objectives are to: (1) safeguard ROC sovereignty over the islands in the South China Sea; (2) strengthen development and management of the South China Sea; (3) promote cooperation among the littoral states of the South China Sea; (4) resolve disputes peacefully; and (5) protect the region's ecological environment. Toward these ends, the Policy Guideline designates different government agencies to undertake a number of special activities: survey and registration of the islands, protection of fisheries and navigation, establishment of satellite communications and navigational aids, strengthening maritime security, construction of airport and docking facilities, improvement of medical facilities, setting up environmental protection measures, collecting information on natural resources, and examining political and legal issues relating to the South China Sea.(39)
The geopolitical stakes for China and Taiwan in the Spratly Islands have become magnified by the publicized significant potential of deposits of oil, gas, and minerals on and under the surrounding ocean floor.(40) The possibility of extensive hydrocarbon finds in the South China Sea has been geologically presumed since undersea seismic surveys in the late 1960s.(41) Since 1980, the PRC has increasingly turned toward domestic economic reform and development of trade and commerce with the outside world. Promoting an offshore petroleum industry obviously has become a major factor in mainland China's national economic reform policy.(42) "Offshore output is projected to peak in 1997 at [twelve] million tons of oil and [four] billion cu[bic] m[eters] of [natural] gas,"(43) though none of this is expected to come from exploratory efforts in the South China Sea. Even so, the PRC's strategy to move offshore to develop potential oil fields has strained its relations with other littoral states in South East Asia, in particular Vietnam.(44) More recent geological findings suggest, however, that potential hydrocarbon resources in the South China Sea may not be as superabundant as initially believed, and could be prohibitively expensive to exploit for the foreseeable future.(45)
C. Chinese Rivalries
The PRC's main rival in the South China Sea is not Taiwan. That geopolitical distinction belongs to Vietnam, although its armed forces are in "a parlous state" and its military position in the Spratlys has recently been described as "a strategy inspired by desperation."(46) Consequently, Vietnam's indefensible claims in the South China Sea provide China with the opportunity to extend its influence as a maritime power in Asia. Toward this end, the Chinese are developing a blue-water navy and other ocean projection capabilities, including submarine strength, to complement their longer-range aircraft (i.e., Su-27 long-range bombers with in-flight refueling capabilities) that were acquired from the Russians.(47)
Mainland China's desire to preserve economic and political interests through a strategic doctrine of active defense offshore makes it necessary for the naval wing of the People's Liberation Army (PLAN) to be prepared for maritime disputes. Sovereign rights, fishing rights, and offshore hydrocarbon resources have driven the PRC's claims to islands in the South China Sea. There is little doubt that Chinese claims to the Spratlys, which are some 1110 kilometers (600 nautical miles) south of the Chinese mainland, reflect strategic island grabbing. Such claims can give rise to naval diplomacy designed to reinforce China's naval presence in Southeast Asian waters. PLAN warships thus have become a continuation of Beijing's politics in the South China Sea.(48) Moreover, China's intentions clearly are to acquire both an aircraft carrier and improve its long-range, in-flight refueling capabilities to facilitate projection of its influence throughout the region.(49)
Nevertheless, several factors suggest the unlikelihood of large-scale military conflict over the Spratlys in the foreseeable future. For one, there is the geography: These islands are scattered over an immense area, nearly 200,000 square kilometers. Considerable room is available for naval patrols to maneuver and miss contact with one another. Relatedly, the Spratlys are more than 300 kilometers (185 miles) from the Philippine and Vietnamese coasts, and more than 1000 kilometers (600 miles) from mainland China. This distance presents serious difficulties for any claimant government to patrol more than a small area of the Spratly archipelago at any one time, especially given these states' relatively weak capabilities for projecting armed forces. No claimant state possesses sufficient logistical support capabilities to ensure effective occupation and maintain extended control over these islands, which underscores the importance of relative naval size. Even so, these conditions presumably should permit greater opportunities for confidence building measures to be considered as alternative strategies.(50)
The Cold War's passing has also fostered a sense of rapprochement throughout Asia, which makes the political costs of a large-scale military conflict in Spratlys less acceptable to the PRC or Taiwan.(51) The dynamic economic expansion of ASEAN counties, increasingly close links with the international community, and strategically significant shipping lanes through the South China Sea--all converge to dissuade overt attempts by any state, including the PRC, to strive for regional military domination. That the economies of both the PRC and Taiwan have become increasingly interdependent with those of Southeast Asian states, including other claimants to the Spratlys, underscores that reluctance.(52)
D. Sovereignty Obstacles
Efforts thus far to resolve sovereignty disputes in the South China Sea have borne little fruit. The PRC traditionally has opposed multilateral talks on the Spratlys, principally because its sovereignty over the islands is held as non-negotiable, although joint ventures to exploit natural resources of the area can be negotiated on a bilateral basis. Mainland China's no-multilateral negotiation strategy is also driven by strategic bargaining preferences. That is, Beijing sees its interests couched in bilateral terms in the South China Sea since that strategy makes it easier to isolate the disputants and deal with them one-on-one. This erodes the ability of ASEAN to organize around an issue and allows China the freedom to negotiate individually with governments in the region.(53)
Taiwan, on the other hand, has only limited choice in the matter of Spratly negotiations. Despite its tremendous economic growth and extensive commercial reach, Taiwan remains militarily and diplomatically isolated in Eastern Asia. Taipei has no diplomatic relations with any government in the region, nor does it enjoy a relationship with ASEAN or participate in the ASEAN Regional Forum. This exclusion from diplomatic relations in the region has complicated Taipei's ability to conduct bilateral negotiations with other claimant governments on the Spratlys. Taiwan's ambiguous international status undercuts its bargaining position. One could argue that Taiwan has no legal standing in the dispute, since it has no legal standing as a state in international law.(54) Taiwan also is alienated compared to other Spratly claimants in terms of its military posture in the region. Taiwan has neither a bilateral security pact nor a military alliance through which it might receive external military assistance in the event of an armed conflict in the South China Sea.(55)
Might the issue of the Spratlys contribute to greater normalization of Taiwan's relations with PRC? From the vantage points of both governments, the strategy of not negotiating with other claimants on the Spratlys seems understandable. For both the PRC and ROC, a preponderance of historical evidence and artifacts exists to support Chinese claims to the Spratlys. That the South China Sea bears the proper name of China is in itself indicative of the paramount historical influence of that state in the region, and fosters the image of this maritime area being a "Chinese lake" that has belonged to China for centuries. Put tersely, no negotiations mean no compromise on Chinese sovereignty over the Spratly archipelago. The status quo serves Chinese national interests by allowing their historical claims to persist, without fear of having to give up part or all of what the government perceives as historically being rightfully theirs. Moreover, in a future multilateral conference on the Spratlys, if each government were allocated one vote at the negotiating table, China could be outvoted on important issues by a coalition of other claimants.(56)
Sovereignty connotes both legal and political dimensions. For the PRC in particular, political sovereignty is very sensitive. Any challenge to mainland China's claim to the Spratlys is viewed as a challenge to China's domestic sovereignty. Concession is seen as appeasement, with adverse implications both for domestic politics and foreign relations. This point is reinforced by the realization that nationalism and sovereignty remain the strongest political cement holding the "ideologically bankrupt" Chinese Communist Party together in the post-Cold War era.
Especially delicate for the PRC is the issue of Taiwan's place in a future conference of multilateral discussions. Even if both the PRC and ROC governments were to agree in principle to participate, their respective positions must be reconciled on the format of such discussions. Both the PRC and ROC claim all of the Spratlys as their sovereign territory. Both governments make the same claim to the Spratlys, in the name of "China," based on similar historical evidence. Were they to enter into formal negotiations as two separate and contending parties, that would constitute de facto recognition of two Chinas, which neither government is willing to accept. Moreover, two separate Chinas might be viewed as canceling out claims by both governments to the Spratlys, and could produce squabbles over the recognition of credentials. Yet, neither is the time ripe to consolidate a single, combined Chinese negotiating delegation and crystallize a common position on the Spratlys. The PRC's conduct of combat naval maneuvers and missile firings in the Taiwan Strait in 1996 seriously aggravated political relations and dimmed trust between the two. For its part, the PRC has endorsed diplomatic negotiation in principle, but prefers limited bilateral approaches in fact.
For the foreseeable future, the PRC will remain the predominant actor in the Spratlys archipelago and throughout the South China Sea. Naval strategy in the region is critical. But so too are resource considerations. Another key facet of the PRC's strategy is to conduct policy in order to stake out claims in the South China Sea which can ensure that, if huge quantities of petroleum are discovered, Beijing will have a say in the issue. Thus, technology provides Beijing with motives to control the region (namely, the potential for oil and development and expanded maritime rights) as well as the means to execute those policies (namely, on site naval installations and enhanced military capabilities). Pressures for the PRC to maintain its claim to the Spratlys will come from increasing resource demands from its growing population. China is compelled to expand its industrial base to support greater demands for more goods and services from its burgeoning population. To fuel this industrial expansion, new energy sources are required, which will mean more extensive efforts to explore and exploit offshore petroleum reserves. The Spratlys emerge as a key consideration here, and China has demonstrated its will to use military capability, if necessary, to protect and support such operations.
Strategies for Chinese Cooperation
The ingredient most obviously missing but necessary for improving relations between the PRC and Taiwan is sustained confidence and transparency between the two governments. Confidence and trust are critical for progress in successful bilateral negotiations. How to nurture and advance confidence-building measures between Beijing and Taipei remains critical for launching negotiations aimed at establishing a joint resource development authority for the South China Sea, never mind for normalization. Neither the PRC nor ROC formulate foreign policy for the Spratly Islands in a vacuum. Other governments' actions exert important influence on their actions. Overlapping jurisdictional claims, ongoing military occupation of islands, accelerated military spending by other claimant governments, and the leasing of disputed areas to international petroleum companies have all combined to aggravate tensions over the Spratlys in the region.
This awareness of regional tensions also highlighted the necessity of maintaining a maritime order in the South China Sea predicated on accepted rules of international law--rules that can be used fairly to accommodate the disparate national interests at stake. Toward this end, Beijing and Taipei must become involved in constructive negotiations aimed at solutions for satisfying their different interests through peaceful means.
The Mischief Reef incident between the PRC and the Philippines in February 1995 paradoxically fostered constructive developments in regional relations. The confrontation prompted a unified negative reaction by ASEAN, and prompted the PRC in August 1995 to agree in principle to set up bilateral "codes of conduct" in the Spratly Islands with the Philippines and Vietnam that pledge to resolve the disputes peacefully.(57) At the same time, Taipei voiced concern over any actions that might destabilize the region and jeopardize peaceful resolution of the Spratlys dispute. The ROC government also reaffirmed five main principles that define its policy in the region. These are to: (1) insist on its sovereignty claim to the Spratlys; (2) support actions that settle the dispute by peaceful means; (3) oppose any provocative action in the region that might ignite new conflict; (4) support temporarily shelving the sovereignty dispute in order to develop resources jointly; and (5) continue to participate actively in the Workshop on Managing Potential Conflicts in the South China Sea.(58)
A. Confidence-Building Measures
Presuming that serious military conflict is not likely among governments claiming possessions in the South China Sea, the following questions become relevant: How can the Spratly Islands dispute be used to defuse tensions between the PRC and Taiwan? How can a diplomatic situation be cultivated to produce political conditions that permit meaningful negotiations between the PRC and ROC--negotiations that can contribute to progress toward normalization? What ingredients or factors are necessary for generating the psychological impetus and political framework needed to negotiate issues affecting the status of the PRC and Taiwan?
An important first step is to resort to confidence-building measures (CBMs). Through CBMs, functional cooperation and direct communication could be fostered between the PRC and ROC to preclude territorial disagreements from escalating into military confrontation. Measures for confidence-building can produce a better climate for conducting negotiations between Beijing and Taipei.
Building confidence depends on nurturing mutual trust and understanding. For genuine confidence to be secured, the two Chinese governments must understand the motives and rationales behind the policies of the other side, and this can only come about through increased transparency of national policies and capabilities. Beijing and Taipei must also appreciate that competing self interests and violations of agreed measures can extract political costs by compromising the mutual trust in which confidence-building measures are grounded. Transparency thus becomes key to confidence-building. In regard to the role of the Spratly Islands in relations between mainland China and Taiwan, several measures can contribute to transparency and thus build confidence for those governments.
For one, Beijing and Taipei might consider giving official and informal assurances to restrain the use of military force in the region. Official pronouncements made in the press or to international gatherings provide a public, written record of policy declarations, which makes it more difficult for either government to vacillate, or renege on those commitments. Mutual efforts to declare the South China Sea as a demilitarized zone would do much toward raising confidence and ensuring stability in the region.
Second, the PRC and ROC governments might strive to recognize and respect national sensitivities arising from their military deployments in the region. While China might prefer not to recognize the legitimacy of ROC (and other) claims in the region, Beijing must respect the sensitivities arising from those claims if constructive diplomatic relations are to proceed on the Spratlys.
A third constructive measure involves the need for both China and Taiwan to cease further occupation and annexation of territory in the Spratlys. Seizing and occupying more islets does little to promote either government's strategic position in the region. These features are insignificant as strategic outposts and hold little value for their natural resources. Moreover, new occupations reinforce suspicion and distrust over Chinese disingenuousness toward future diplomatic negotiations. It seems prudent that both Beijing and Taipei accept the strategic status quo as the starting ground for negotiations with each other, as well as with other claimant states.
Fourth, the PRC and Taiwan should reign in efforts to expand military activities in the South China Sea. Military activities are shows of force, not sincere efforts to resolve conflicts peacefully and diplomatically. It seems reasonable and prudent that no maritime military maneuvers by either China or the ROC be conducted without prior notification given to each other (and to other governments). Military operations should not obstruct trade routes, exploration, or commercial use of high seas regions. Along this same line, the PRC and ROC governments might take friendly measures (e.g., direct communication and consultation with each other) when military exercises are being contemplated in the Spratlys area. Both the PRC and ROC might jointly agree not to station additional forces on the Spratlys and to provide notice when they are rotating troops on and off the islands. Similarly, arrangements might be made to notify each other's government about naval patrols in the region. Finally, open agreement should be publicized so that the airspace surrounding the Spratlys area is free for navigation and commercial use.
As a fifth opportunity, both the PRC and Taiwanese governments might establish a joint set of operating procedures for their navies and air forces in the disputed region. Such a "standardized manual of operations" would lessen tensions by reducing the likelihood for accidents and minimizing situations that could spark military conflict in the region. Negotiation of such a handbook, moreover, will require serious bilateral collaboration between Chinese military representatives, which can foster greater appreciation for the interests, sensitivities, and priorities of their counterparts in the other China. Relatedly, greater cooperation between both Chinese navies should be made on curtailing activities of pirates in the region.(59)
Finally, efforts might be made to devise means and mechanisms that improve contacts and communication between both Chinese governments and their local military commanders on islands occupied in the South China Sea. Again, setting up hotlines of communication between Beijing and Taipei could reduce possibilities of misunderstandings and misperceptions of the other government's policy intentions.(60) The establishment of hotlines between the naval chiefs in Beijing and Taipei might also be useful.
B. The South China Sea Workshops
The process of confidence-building between Beijing and Taipei concerning the situation in the South China Sea has already begun. A regional dialogue on disputes, hosted informally through a series of workshops by Indonesia, has been annually convened since 1990 through its Department of Foreign Affairs.
The South China Sea Informal Working Group aims to encourage confidence among South China Sea states in order to ease tensions arising from sovereignty and jurisdictional disputes over the Spratly and Paracel Islands. The hope is to foster regional cooperation such that the South China Sea might be made legally compatible with a semi-enclosed sea, as provided for in the 1982 LOS Convention.(61)
Areas for potential cooperation between South China Sea littoral governments include marine scientific research, marine environmental protection, safety and sea communications, fisheries assessment and development, defense and security issues, territorial and jurisdictional issues (other than claims to islands and ocean space), and creation of institutions for cooperation.(62) Workshop participants attend in their own private capacity and have been drawn from governments (particularly the foreign affairs ministries), diplomatic corps and military services, academia, and research organizations. Technical working groups have additionally convened to discuss issues affecting cooperation in marine scientific research, resource assessment and means of development, marine environmental protection, and navigational safety. Issues raised at these meetings are then re-circulated back to the annual workshop plenary meeting and adoption. The process is geared toward informal diplomacy, with the expectation that completed agreements on an issue can be returned to normal inter-governmental diplomatic channels for eventual negotiation.
The Indonesian workshop initiative operates though an informal process, which offers participants the advantage of greater freedom to discuss ideas and an atmosphere of greater community. In so doing, the tendency has evolved to promote opportunities for consensus by avoiding adversarial situations; that is, the workshops eschew issues on which consensus obviously cannot be reached. For example, no discussion has taken place over issues relating to sovereignty over the Spratlys, or conflicting claims of jurisdiction over ocean space, or continental shelf drilling rights. Since no agreement within the workshop could be forthcoming, and tensions among the participants might result, such sensitive issues are not even brought up.
The seven workshops convened since 1991 have made notable accomplishments in producing measures that foster a confidence-building process. This can be seen in the parties' decision to create technical working groups to discuss ocean law and maritime navigation in the South China Sea and agreement on the priority for continued diplomatic cooperation, notwithstanding the sovereignty issue. The formation of a Special Technical Working Group (TWG) on Resources Assessment and Ways of Development represents the early effort to deal with the joint development issue. The TWG has asked Vietnam to coordinate activities concerning "non-living non-hydrocarbon resources," Indonesia to coordinate activities on the study of "non-living hydrocarbon resources," and Thailand to coordinate activities concerning the study of "living resources," namely fisheries, in the South China Sea. These discussions are intended to produce greater agreement on: the zone that is to be developed; the nature of the issues on which cooperation is necessary (i.e., on fisheries, oil and gas, environmental protection, marine scientific research, and marine parks); the mechanism or authority for joint development; and who shall participate in such joint development or joint cooperation activities.(63) These issues surfaced more directly at the first meeting of the Technical Working Group on Legal Matters, which met in Phuket, Thailand in early July 1995. It was there that participants agreed that the 1982 Law of the Sea Convention furnished a suitable means for fostering cooperation among South China Sea littoral states, particularly in terms of the framework regime it creates for semi-enclosed seas.(64)
The December 1996 workshop was notably productive in producing a working outline for cooperation on many fronts, including meetings that convened in 1997 by the Groups of Experts on Training and Education of Mariners and Seafarers (In Singapore); the Group of Experts on Hydrography, Data and Mapping (hosted by Malaysia); the Group of Experts on Marine Environmental Protection (hosted by Cambodia); the Second Technical Working Group Meeting on Legal Matters (in Thailand); The Second Technical Working Group Meeting on Marine Environmental Protection (hosted by China); and the Eighth Workshop on Managing Potential Conflict in the South China Sea.(65) Given these regional cooperative activities generated by the Indonesian workshops, a strategy of confidence building is in progress, and has produced tangible results--at least in terms of the number of ancillary discussions being convened among the participants.
The attitude of Mainland China toward the workshop process is critical. Thus far, the PRC has supported the workshop process, although Beijing apparently feels that the process is going too far, too fast. For China, protracted patience is diplomatic virtue for formulating arrangements in the South China Sea. The Chinese have also supported efforts to promote cooperation on various issues, but it remains difficult to tell whether China is actually willing to participate in the implementation of any of the agreed upon collaborative projects.(66) Likewise, China acknowledges the need to develop confidence building among states in the region, but seems to regard the workshop process as that end in itself. China is thus unwilling to discuss other confidence-building measures, which it feels lie beyond the competence of the workshop. Perhaps most significant, China has shown a willingness in principle to put aside territorial claims in favor of joint development. Still not clear, however, is the location and meaning of the "zone" that China is willing to jointly explore or bilaterally develop. "Joint development" to China apparently means just that: Bilateral development undertaken jointly with another claimant in an area of the South China Sea claimed by the other state.(67)
The invitation for Taiwan to participate in the South China Sea Workshops can be viewed as informal recognition of its role as a Spratlys' claimant. Accordingly, since 1991 Taiwan has actively taken part in five derivative technical working group meetings that concern legal matters, marine scientific research, the marine environmental protection, resource assessment and means of development, and safety of navigation, shipping and communication. The Indonesian workshops represent the most serious regional effort thus far for promoting peace and cooperation in the South China Sea. These meetings serve as informal, private fora for confidence-building among nationals from states involved in Spratly Islands jurisdictional disputes. They have been purposefully designed to bring together representatives from concerned states in the region to discuss nonpolemical issues affecting environment, navigation, pollution control, marine research, and possible means of cooperation. The major contribution of the Indonesian workshops is that they have moved away from political confrontation, military conflict, and diplomatic inertia toward a process of dialogue and cooperation on the long road to dispute settlement. In that manner, these workshops have also fostered more salient appreciation of joint development as a potentially useful regional approach towards eventual resolution of the Spratly Islands dispute.
C. Joint Resource Development
Creation of a joint authority dedicated to common development of resources within the Spratlys area is an appealing and logical solution for forging closer Chinese cooperation. Establishing a Spratly Resource Development Authority would be consistent with statements by the PRC government which aver that while sovereignty over the Spratly Islands is non-negotiable, joint ventures to exploit the natural resources of the South China Sea may be discussed.(68) There are key questions, though, concerning how to implement this principle in multilateral practice, and what role Taiwan should have in the process.
Essential for establishing a cooperative joint development regime in the South China Sea is agreement by the PRC and Taiwan (and the other claimants as well) to set aside, without prejudice, their claims to the Spratlys and form a "Spratly Resource Development Authority" for jointly managing resource exploitation, including fisheries, environmental protection, and safety of navigation. To this end, defusing the Spratly Islands dispute would not require resolution of the protracted sovereignty question. Rather, a kind of multilateral "Authority" analogous to that for mining the deep seabed in the 1982 Convention on the Law of the Sea might be established.(69)
A joint development authority for the Spratlys would well serve both PRC and ROC interests. Costs involved in unilateral exploration are enormous; other claimants' military bases on islands impede extraction of resources in the area; and so long as the dispute persists, the region will remain threatened with instability. A cooperative regime such as a joint resource development authority would offer a relatively quick solution and palatable compromise. Such an authority could freeze all claims for the indefinite future, ensure demilitarization of the zone, facilitate resource exploitation, and provide acceptable mechanisms for dispute resolution.(70)
Fundamental to joint resource development is the condition of interstate relations and the genuine willingness of claimant governments to cooperate. Good relations generally open the door for cooperation: Malaysia, the Philippines, and Vietnam have tenuous, albeit not openly hostile relations and are able to discuss the Spratly issue. China is interested in cultivating better relations with ASEAN governments, but its relations with Vietnam presently are not good. Taiwan in large part remains diplomatically isolated with little role to play in regional affairs. Joint participation in a South China Sea development body would permit greater opportunities for intergovernmental cooperation by both the PRC and Taiwan in the region.
Still another significant ingredient is political pragmatism. Patience and genuine commitment are required for integrating legal, financial, economic, and customs arrangements between governments and successful implementation of any agreement. Inclusion of Taiwan into these relations would furnish opportunities for greater political contract, potential cooperation, and further incentives for collaboration between both Chinese governments, as well other Asian states. For the PRC and Taiwan, support for a joint management arrangement lies in the perceived sense of urgency to secure access to potential oil or gas deposits, coupled with the aim of improving relations with other Asian states. Obviously, the duration of the agreement is important, as well as the reasons and procedures for terminating it.
Strategies for Normalization: The Balance Sheet
If peaceful normalization of relations between Taiwan and the mainland is to happen, it must occur a gradual process that respects the rights and interests of peoples on both sides of the Taiwan Strait. Such a strategy for normalization, be it toward either reunification of Taiwan with the mainland or Taiwanese independence, should be guided by functionalist principles.(71) In the early phase, which might last over the next decade, the normalization process would work toward increased exchanges and reciprocity between the ROC and PRC. Repeated, regularized exchanges over time should contribute to establishing the legitimacy of each side in the mind of the other. When done reciprocally, each side will become enmeshed into a mutually beneficial relationship. During this early period, Beijing and Taipei should align their political positions on the Spratlys vis-a-vis other claimants. Resort to the aforementioned confidence-building measures will hold most potential in the early phase for fostering a better working relationship and lessening mutual suspicions between the two governments.(72)
The medium term phase, perhaps extending from 2010 through the year 2020, would involve establishing conditions that foster mutual trust and cooperation between the PRC and ROC. This cooperative phase would involve opening up official channels of communication, facilitating direct postal, transportation and commercial links, and encouraging both sides to participate in joint development of resources in offshore areas. At the same time, Chinese officials should use opportunities in international organizations to work together and assist each other. Mutual visits by high ranking government officials could contribute to deeper reciprocal trust and cooperation. For the Spratlys, this mid-phase would occur during the period in which the Spratly claimants are likely to undertake joint resource development in the South China Sea. Cooperation of both Beijing and Taipei in joint resource development ventures would engage both governments in a mutually beneficial cooperative venture, thus giving each greater stakes in a positive outcome for the process.(73)
The long term phase, lasting beyond 2020, should strive for closer consultation between the two governments over normalized relations. A special body might be established by each side to facilitate the political, economic and social metamorphosis into one China,(74) or an independent Taiwan. During this normalization period, Chinese policies on the Spratlys could be consolidated into a single, unified Chinese position.
For normalization of relations to occur between Taiwan and the mainland, certain fundamental principles must be accepted by Taipei and Beijing. Both governments must accept that the mainland and island of Taiwan are parts of Chinese territory. Normalization of PRC-Taiwanese relations must be regarded as for the common good of all Chinese people, and must be done in such a manner that it preserves Chinese culture, protects fundamental human rights, fosters democratic freedoms, and upholds the rule of law.(75) Given these guiding principles, prospects for normalization become linked to prospects for attaining functional cooperation. Thus relations between the PRC and ROC must focus on expanding economic exchanges and commercial transactions. The Spratly Islands situation offers a unique opportunity in this regard.
Expanding cultural and educational exchanges permit each side to learn more about the other's society and culture. By expanding contact, media reporting, mutual sporting competition, and exchanges in field of science and technology, the two Chinas can build networks of functional interdependence. By advancing consultations on practical matters, e.g., agreements on how to deal with aircraft hijackers, fishing disputes, and protection of intellectual property rights, Beijing and Taipei will be more able to foster mutual trust and confidence.
The critical realization for producing an acceptable diplomatic solution for the Spratlys is evident. Conflicting claims are governed by politics. Irrespective of the talents and personalities of negotiators around a table, if national government leaders lack the political will to produce a solution, such an outcome cannot happen. If leaders in Beijing or in any other claimant state are not willing to compromise at all on sovereignty issues for the sake of a long-term agreement, then no agreement will be made. Governments must genuinely want to resolve the dispute--to negotiate an agreement that brings acceptable benefits to each party, albeit not at the expense of any vital interests to another.
The peoples of China live in a divided country. This division, coming as a product of the Cold War era, remains exacerbated by antagonisms between two different political systems, profound disparities in levels of economic development, and mutual distrust by each government of the other's intentions. Relations between Taiwan and the PRC are highly complex, interactive, and critical in determining the future development of East Asia. People from Taiwan and mainland China share the same roots, race, culture, history, and bloodlines. But Taiwan is small and mainly urban, the PRC is large and mainly rural; Taiwan is democratic and pluralistic, PRC is communist and dominated by one party; Taiwan poses no military threat to any state in the region; the PRC appears throughout Asia as a military colossus. Thus, any realistic prospects for reunification of China through a nonviolent process will be elusive until the PRC and ROC governments are willing to trust one another, a condition that can come only after compelling evidence of trust is demonstrated by both sides.
The Spratlys issue offers a salient opportunity to demonstrate and improve the degree of trust required for a unified Chinese position on the South China Sea. The precondition for that coordinated effort is that both sides must accord mutual respect to each other. It is very possible that a joint resource development authority might be created to conduct exploration and exploitation of subsurface hydrocarbon and living natural resources in waters around Spratlys. The PRC and Taiwan could cooperate in such a joint venture, with the ROC contributing needed start-up capital to launch the enterprise. If a condominium concept for the South China Sea evolves into accepted regional policy, questions of geopolitics are more likely to devolve into questions of international law, as specifically regards the legal implications for claims made by the PRC and Taiwan. One reasonable conclusion suggests that Taiwan cannot be expected to protect its claim to the Spratlys on its own. If the PRC and ROC can negotiate willingly on an equal basis, the Chinese claim to the Spratlys may well become more secure. There may well be Chinese strength in Chinese unity on the Spratlys issue.
Chinese claims to the Spratlys are deliberately vague. Beijing and Taipei contend that sovereignty derives from historical occupation and administration of the South China Sea region from ancient times. PRC maps suggest that China not only claims the surface land features, but the surrounding seas as well. These are claims of historic sovereignty over the region. In this respect, the issue of China's claim to sovereignty over the Spratlys reveals insight into the Chinese national consciousness. It highlights the importance attached to the Spratlys, especially as linked to the aim of eschewing humiliations from losing territory as had occurred in the past. Nor can the place of Taiwan in this psychological prism be overlooked.
Joint resource development is neither a permanent nor optimal solution for Beijing and Taipei fixing their own international boundaries or jurisdictional disputes with other states over rights to resources. Joint development may provide, however, a better alternative to no action at all--and thus no resource development--or to confrontation and conflict. Joint development will look increasingly attractive as more oil is needed by disputant governments and successful precedents for cooperative arrangements occur. Joint resource development in the South China Sea will also provide a practical opportunity for both Chinese governments to cooperate on an issue of mutual concern, in a mutually face-saving situation. If this collaborative arrangement works, the preeminent long-term benefit is more likely to be enhanced political trust than acquisition of more hydrocarbon resources.
Functional cooperation between the PRC and Taiwan on the South China Sea can have spillover effects on relations across the straits. The main caveat is the oil issue. If superabundant, cost-effective deposits are discovered in the continental shelf surrounding the Spratlys, the likelihood is that each claimant government will go its own ways to maximize national gains (and presumably invite conflictual situations). If, however, regional development is viewed as the more efficient means for getting at potential petroleum resources, then the prospects for long-term cooperation between Beijing and Taipei, as well as with the other claimants, seem more probable.
Conflict over the Spratlys can be resolved, but only over the long term and if policy makers in the PRC and Taiwan have the political will and genuine determination to do so. So it is also for Chinese normalization. Both the PRC and Taiwan confront common problems, among them political succession, economic development, and rising expectations from their people. In this regard, the Spratlys question can be used as a symbol to foster greater Chinese unity, rather than division. Further, such constructive collaboration seems able to contribute to a political climate more conducive to the establishment of a joint development authority with other claimants for exploiting resources in the South China Sea. That ambition has been successfully obtained for other contentious sovereignty disputes elsewhere--for example, in shelving claims to and managing resources in Antarctica, the Svalbard archipelago, and the Timor Gap region--and it is not impossible to conceive that such a management agency could evolve for the South China Sea as well. The critical challenge is for both the PRC and ROC governments to make it happen.
*Professor of International Law, Department of Government, Georgetown University; Ph.D. University of Virginia (Foreign Affairs 1977); M.A. Florida State University (Government 1973); M.A., Florida State University (International Relations 1972); B.A., Florida State University (International Relations 1970). The author would like to thank Professor Victor Cha for his comments on an earlier draft of this Article. Any errors of commission or omission remain, of course, the sole responsibility of the author.
1. For historical assessments of claims to the Spratlys, see Steven Kuan-tsyh Yu, Who Owns the Paracels and Spratlys?--An Analysis of the Nature and Conflicting Territorial Claims, 9 Chinese Y.B. Int'l L. & Affrs. 1-27 (1989-90) (substantiating the Chinese claims); Scott Snyder, The South China Sea Dispute: Prospects for Preventive Diplomacy: A Special Report of the United States Institute of Peace (1996); Teh-Khang Chang, China's Claim of Sovereignty Over the Spratly and Paracel Islands: A Historical View and Legal Perspective, 23 Case W. Res. J. Int'l L. 399-420 (1991).
The People's Republic of China and Taiwan also both claim the Diaoyu Islands, located about 170 kilometers northeast from Taiwan and 410 kilometers west from Okinawa. See Daniel Dzurek, The Senkaku/Diaoyu Islands Dispute, (last modified Oct. 18, 1996) (visited Nov. 11, 1997) <http://wwwibru.dur.ac.uk/docs/-senkaku.html>. The sovereignty dispute between Japan and China (including Taiwan) over these small volcanic islands flared up in July 1996 when the Japanese Youth Association erected an aluminum lighthouse on one of the islets, prompting serious diplomatic protests from both Beijing and Taipei. See id. Along with the Spratlys, coincident mainland-Taiwanese claims to the Diaoyu Islands have reinforced "a Chinese claim" against Japan. Id.
2. See generally Bob Catley & Makmur Keliat, Spratlys: The Dispute in the South China Sea (1997); Lu Ning, Flashpoint Spratlys! (1995); Mark J. Valencia, China and the South China Sea Disputes (1995); Mark J. Valencia et al., Sharing the Resources of the South China Sea (1997); Mark J. Valencia, South-East Asian Seas, Oil under Troubled Waters: Hydrocarbon Potential, Jurisdictional Issues and International Relations (1985); Barry Hart Dubner, The Spratly "Rocks" Dispute--A "Rockapelogo" Defies Norms of International Law, 9 Temp. Int'l & Comp. L.J. 291 (1995); H. Harry L. Roque, Jr., China's Claim to the Spratly Islands Under International Law, J. Energy & Natural Resources L. 189 (1997).
3. The first such clash came on February 8, 1987, when Chinese and Vietnamese warships opened fire on each other in the area. On March 14, a more serious confrontation occurred off Union Reef, as each navy lost a vessel and 120 Vietnamese sailors drowned. See Peter Forrest & Eric Morris, Maritime Constabulary and Exclusive Economic Zones in the South China Sea: Some Strategic and Technical Considerations, in Fishing in Troubled Waters: Proceedings of an Academic Conference on Territorial Claims in the South China Sea 302, 311 (R. D. Hill et al. eds., 1991) [hereinafter Fishing in Troubled Waters].
4. The most serious clash over the Spratlys came between China and Vietnam in March 1988. After a small contingent of Vietnamese opened fire on Chinese military and construction personnel working on Fiery Cross Reef (Chigua atoll), the Chinese dispatched warships to the area, further hostilities erupted, and three Vietnamese vessels were sunk, with the loss of 74 lives. See generally Chang Pao-Min, A New Scramble for the South Sea Islands, 12 Contemporary Southeast Asia, June 1990, at 20; Straits Times, Mar. 26, 1988, at 3. China emerged as the clear victor from this episode. Not only did the Fiery Cross Reef confrontation reaffirm the PRC's determination to assert sovereignty over the Spratlys, it also demonstrated the superiority of Chinese naval power over that of Vietnam. See generally Justus M. van der Kroef, Territorial Claims in the South China Sea: A Strategic Irrelevance?, in Fishing in Troubled Waters, supra note 3, at 21-35; Shee Poon Kim, The March 1988 Skirmish over the Spratly Islands and Its Implications for Sino-Vietnamese Relations, at 177-91. The incident touched off a naval buildup between China and Vietnam in the islands, as well as a series of competing occupations of more islets by troops from both states. See Clive Schofield and William G. Stormont, An Arms Race in the South China Sea?, 12 Ocean Year Book 303 (Elisabeth Mann Borgese et al. eds., 1996).
5. In January 1995, the PRC occupied Mischief Reef, a South China Sea shoal located well inside the 200-mile exclusive economic zone (EEZ) claimed by the Philippines. This action, viewed by the Philippines as tantamount to an "invasion," revived fears that the South China Sea could become a tinderbox in the region. See Daniel J. Dzurek, China Occupies Mischief Reef in Latest Spratly Gambit, 3 Boundary and Security Bulletin, Apr. 1995, at 65-71. The Philippines reacted by diplomatically protesting China's "invasion of their EEZ" and sending a symbolic force of ten aircraft and three patrol boats to the island of Palawan. Abby Tam, Manila Tries Diplomacy In Confronting China, Christian Science Monitor, Feb. 22, 1995. The Mischief Reef incident in February 1995 so alarmed the ASEAN states that it mobilized them into a united stand critical of China's occupation of territory well within the Philippines's EEZ. Thus, while the crisis over Mischief Reef has waned over time, that act has provoked regional concern and suspicion over China's long-term intentions and geostrategic objectives in the Spratlys. See Snyder, supra note 1, at 15.
6. The full membership of ASEAN in 1998 includes Brunei, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand, and Vietnam. Cambodia's inclusion was delayed pending resolution of the domestic political upheaval that overthrew the governing coalition in mid-1997.
7. See Steven Mufson, China Eases Stance on Taiwan, Wash. Post, Oct. 23, 1997, at A25. But compare Richard Bernstein & Ross H. Munro, China I: The Coming Conflict with America, 76 Foreign Aff. 18 (Mar./Apr. 1997) (arguing that present Chinese conciliation is only a cover to buy time for a military build-up to confront the United States in the next century). More recently, Taiwan's President Lee exacerbated the controversy when he publicly asserted that "Taiwan is Taiwan. We are an independent, sovereign country." Keith B. Richburg, Leader Asserts Taiwan is `Independent, Sovereign', Wash. Post, Nov. 8, 1997, at A1.
8. See Vincent C. Siew, Chairman of Mainland Affairs Council,
"Cross-Straits Relations: Reprospect [sic] and Prospects" 1 (Apr. 1995).
10. See Richburg, supra note 7, at A20. Between 1991 and 1996, the sum of Taiwanese investments in China reached at least $14.9 billion--about equal to what the United States and Japan have invested there. See id. That makes mainland China the largest foreign investment market for Taiwan. See id.; see also Morton I. Abramowitz, China: Can We Have A Policy? 30 (1997).
11. See Siew, supra note 8, at 1.
12. Id. at 2.
13. See generally Dieter Heinzig, Disputed Islands in the South China Sea (1976).
14. See J.K.T. Chao, South China Sea: Boundary Problems Relating to the Nansha and Hsisha Islands, in Fishing in Troubled Waters, supra note 3, at 77. The total number of the Spratly Islands, reefs, shoals, and cays is variously reported. See J.R.V. Prescott, The Maritime Political Boundaries of the World 218-19 (1985).
15. See William J. Dobson & M. Taylor Fravel, Red Herring Hegemon: China in the South China Sea, 96 Current History 258-63 (Sept. 1997).
16. See generally David Hancox & Victor Prescott, A Geographical Description of the Spratly Islands and an Account of Hydrographic Surveys Amongst Those Islands, in 1:6 Maritime Briefing (International Boundaries Research Unit, special issue) (1995); Tao Cheng, The Dispute Over the South China Sea Islands, 10 Tex. Int'l L.J. 267 (1975).
17. See generally United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, entered into force Nov. 16, 1994, UN Doc. A/CONF.62/122 (1982), reprinted in The Law of the Sea: United Nations Convention on the Law of the Sea with Index and Final Act of the Third United Nations Conference on the Law of the Sea (New York: United Nations, 1983), UN Sales No. E.83.V.5. [hereinafter cited as 1982 LOS Convention].
18. See Wang Hengjie, Archaeological Discoveries of Remains of the New Stone Age, the Warring States Period, the Qin and Han Dynasties in the Xisha Islands and the History of the South China Sea, in Symposium on the South China Sea Islands: Selected Papers 29-38 (Haikou Province ed., Nov. 1991, and published by the Institute for Marine Development Strategy, State Oceanic Administration, Beijing, Mar. 1992).
19. See Chou Ch'u-fei, Ling-Wai- tai-ta, Information on What Lies Beyond the Passes, 1178, cited in Marwyn Samuels, Contest for the South China Sea 15-16 (1982); Shao Hsun-Cheng, Chinese Islands in the South China Sea, 13 People's China 26 (1956).
20. See Samuels, supra note 19, at App. C; Chi-Kin Lo, China's Policy Towards Territorial Disputes: The Case of the South China Sea Islands 30 (1989); see also generally Collection of Historical Materials on China's Islands in the South China Sea (Z. Han et al. eds., 1988); Jianming Shen, "International Law Rules and Historical Evidences Supporting China's Title to the South China Sea Islands," paper prepared for "Security Flashpoints: Oil, Islands, Sea Access and Military Confrontation" (21st Annual Seminar of the Center for Oceans Law and Policy) (New York, N.Y., Feb. 7-8, 1997).
21. See Legal Status of Eastern Greenland Case (Denmark v. Norway), Permanent Court of International Justice, Series A/B, No. 53 (1933), 3 Hudson, World Court Reports, 148. For discussion, see Gerhard von Glahn, Law Among Nations 296-98 (7th ed. 1996).
22. See generally Michael Bennett, The People's Republic of China and the Use of International Law in the Spratly Islands Dispute, 28 Stan. J. Int'l L. 425, 425-50 (1992).
23. The Law of the People's Republic of China on the Territorial Sea and Contiguous Zone became effective on February 25, 1992. See People's Daily (Beijing), Feb. 26, 1992, at 4, reprinted in United Nations, Law of the Sea Bulletin No. 21, Aug. 1992, at 24-27. China used the Spratly Islands to draw its baselines for the territorial sea, an error inconsistent with the 1982 United Nations Convention on the Law of the Sea given that the Spratlys are mid-sea island formations. Article 7 of the 1982 Convention provides that "the drawing of baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within in the lanes must be sufficiently linked to the land domain to be subject to the regime of internal water." LOS Convention, supra note 17, at art. 7. Since none of the islands can support human habitation, the islands individually can only have respective territorial seas, but no exclusive economic zones or continental shelves. See id. at art. 121(3). For discussion of this law's legal ramifications, see Chen Jie, China's Spratlys Policy, 34 Asian Survey (1994); Liyu Wang & Peter H. Pearse, The New Legal Regime for China's Territorial Sea, 25 Ocean Dev. & Int'l L. 431, 438-39 (1994).
24. See Cheng-yi Lin, Taiwan's South China Sea Policy, 37 Asian Survey 324 (Table 1); Central Daily News (Taiwan), Dec. 2, 1992, at 4.
25. See Peter Kien-hong Yu, Reasons for Not Negotiating on the Spratlys: A Chinese View from Taiwan, in Fishing in Troubled Waters, supra note 3, at 139-49.
26. See Central Daily News (Taiwan), Dec. 2, 1992, at 4.
27. See Lin, supra note 24, at 324; National Defense Report (Taipei: Li Ming Cultural Enterprise Co., Republic of China) 1996, at 26.
28. Reference to "Chinese" claims to historic waters in the Spratlys might be deemed to be both those of the PRC and Taiwan, since the PRC maintains that Taiwan is a part of China (though a "renegade" province), and Taiwan maintains that it is a part of China and will eventually return to Nationalist rule over all China. (Taiwan islanders maintain that Taiwan is separate and should be independent). Should Taiwan someday in the future declare its independence and legal separation from China, the clear implication is that Taiwan would have to renounce its "historic claim" to title and turn to other legal bases on which to assert a claim to the Spratlys.
29. See R. L. Chen, Vietnam, Spratly Protest Rejected, China Post (Taipei), Apr. 3, 1995, at 1; Tammy C. Peng, ROC Will Protect Its Air and Sea Zones, Free China Journal (Taipei), Oct. 16, 1992, at 1.
30. See Lin, supra note 24, at 324. The legal grounds for Vietnam's claims to South China Sea islands flow from historic activities during the Nguyen Dynasty (17th-19th century). Maps and other supporting historical evidence for Vietnam's claims were compiled and set out by the government in two white papers, Vietnam's Sovereignty Over the Hoang Sa and Trung Sa Archipelagoes, issued in 1979 and 1982, respectively. Vietnam's evidence for asserting claims to title is diluted by the failure to specifically identify and distinguish between the Spratly and Paracel archipelagoes. Both island groups are treated generically, without one being geographically distinguished from the other, which has compounded the difficulty of assessing the lawfulness and propriety of claims. Considerable doubts also arise over the authenticity and accuracy of the historical record itself. See Geraldo M. C. Valero, Spratly Archipelago Dispute: Is the Question of Sovereignty Still Relevant?, 18 Marine Policy 314-22 (1994). Such doubts explain why international law usually regards mere historical claims, without evident occupation and permanent settlement, as only arguably binding and susceptible to legal challenge for assuring valid claim to title over territory in the oceans. See Douglas M. Johnston, The History of Ocean-Boundary Making 5 (1988); see also Mark J. Valencia & Jon M. Van Dyke, Vietnam's National Interests and the Law of the Sea, 25 Ocean Dev. & Int'l L. 217-50 (1994).
Vietnam also bases its claims to sovereignty over the Spratlys by right of cession from a French claim to the islands first made in the 1933. The French, however, made no subsequent efforts to perfect title to the Spratlys by occupation. Nor did the French act by returning after Japan's departure following World War II, or by acting after Japan formally relinquished all title and future claims to the islands at the San Francisco Conference of 1951. See Hungdah Chiu & Choon-Ho Park, Legal Status of the Paracel and Spratly Islands, 3 Ocean Dev. & Int'l L. 18 (1976); Lee G. Cordner, The Spratly Islands Dispute and the Law of the Sea, 25 Ocean Dev. & Int'l L. 65 (1994). The consequence was that France possessed no lawful title to the Spratly group to which Vietnam could succeed.
In 1975 Vietnam moved to secure its claim to the Spratlys when it occupied 13 islands. In September 1989 Vietnam occupied three more islets, and has since taken at least nine additional atolls. By 1998, Vietnam had stationed 600 troops on at least 25 islands. See Inter Press Service, July 19, 1991; Shirley Horn, Southeast Asia, Highlighting Paracel and Spratly Islands, Christian Science Monitor, July 15, 1991, cited in Valero, supra, at 316, n.5. See also Central Daily News (Taiwan), Dec. 2, 1992, at 4.
31. See Lin, supra note 24, at 324. The Philippines claim to the Spratlys rests on the "discovery" in 1947 of certain islands by Thomas Cloma. An enterprising Filipino businessman and owner of a fishing fleet and private maritime training institute, Cloma wanted to open a cannery and develop guano deposits in the Spratlys. It was principally for economic reasons, therefore, that he "discovered" and claimed the Kalayaan Islands and established colonies on them by 1950. See Samuels, supra note 20, at 81-86. In 1956, Cloma proclaimed a new island state, "Kalayaan" (Freedomland), making himself chairman of its Supreme Council. Even though no government ever recognized the lawfulness of this "state," Cloma persisted with his claim until 1974, when its "ownership" was officially transferred under a "Deed of Assignment and Waiver of Rights" to the Philippine government. The first official claim by the Philippine government came in 1971, after a Philippine fishing vessel was fired upon by Taiwanese forces stationed on Itu Aba Island. The Philippine government reacted by protesting the incident and then asserted legal title by annexing islands in the Spratly group based on Cloma's claim. See Gil S. Fernandez, The Philippines' South Sea Island Claims, in The South China Sea Disputes: Philippine Perspectives 19-24 (Aileen San Pablo-Baviera ed., 1992); Wilfrido V. Villacorta, The Philippine Territorial Claim in the South China Sea, in Fishing in Troubled Waters, supra note 3, at 207-15. In 1978, the Marcos government formally annexed the archipelago to the Philippines and placed it under the administration of Palawan province. Presidential Decree No. 1596, "Declaring Certain Areas Part of the Philippine Territory and Providing for Their Government and Administration, June 11, 1978," reprinted in The South China Sea Disputes: Philippine Perspectives, supra at 55. The Philippine government asserts that the Kalayaan Islands group is separate and distinct from the Spratlys and Paracels. This Philippine claim is predicated on a geological assertion that the continental shelf of the so-called Kalayaan Island group is juxtaposed to the Palawan Province and extends some 300 miles westward, into the heart of the Philippines' exclusive economic zone. See Fernandez, supra, at 20. The Philippines currently has nearly 600 marines stationed on nine islands, which have been fortified with heavy artillery and equipped with radar facilities, a weather station, and ammunition depots. See Central Daily News (Taiwan), Dec. 2, 1992, at 4.
32. Malaysia claims sovereignty over twelve islands in the Spratly group, but these claims are ill-founded. The legal propriety of Malaysia's assertions is dubious in that its claims to certain islands are predicated on ocean law principles associated with the prolongation of a continental shelf seaward. The clear inference from Malaysia's claims is that a state possessing a continental shelf also possesses sovereign rights over land formations arising seaward from that shelf. That inference is misguided under contemporary international law. The 1982 Law of the Sea Convention neither stipulates nor invites such an interpretation. The Convention does establish a regime for an island, which is defined as a "naturally formed area of land, surrounded by water, which is above water at high tide." 1982 LOS Convention, supra note 17, at art. 121(1). The Convention also gives to a state with established sovereignty over an island the right to exploit living and non-living resources in the water column and on the seabed within that island's territorial sea, contiguous zone, and exclusive economic zone. The critical legal consideration for acquisition of sovereign title over an island formation, however, is not the geological affinity of a coastal state to island formations arising from continental shelves offshore. Rather, ownership derives from occupation, demonstrated by a continuous and effective display of sovereignty through permanent settlement. Establishing military outposts may be considered vestiges of occupation. Yet, for that military presence to meet the test of "effective occupation" through permanent settlement remains dependent on the length of presence, and whether settlers can be "permanently" attracted to inhabit the region. Such a condition for occupation has not yet been established by Malaysia. Furthermore, while Malaysia may use the continental shelf provisions in the 1982 Convention to support its claims to seabed resources, those provisions cannot support lawful assertions to sovereignty over land formations that are permanently above sea level. See generally R. Haller-Trout, Limitations of International Law: The Case of Malaysia's Territorial Claims in the South China Sea, in Fishing in Troubled Waters, supra note 3, at 216-36.
Malaysia is the most recent claimant to occupy the Spratlys militarily. In late 1977, Malay troops landed on Swallow Reef. Since then, about 70 soldiers have been stationed on three of the twelve islets claimed by Malaysia. See Lin, supra note 24, at 324; Central Daily News (Taiwan), Dec. 2, 1992, at 4.
33. Brunei claims only a feature of the Spratlys, a naturally submerged formation known as Louisa Reef. Like Malaysia, Brunei's claim is legally premised on continental shelf provisions in the 1982 Law of the Sea Convention. Unlike Malaysia's claims to island formations, however, Louisa Reef is a submarine feature fixed to the seabed. Hence, it may be regarded legally as an extension of a continental shelf. The critical point here, though, is Brunei's ability to demonstrate that Louisa Reef actually extends from its national continental shelf. Settlement here is neither necessary nor possible. The key test to be met for title is whether the continental shelf can be substantiated as a natural prolongation seaward from the coastal territory of Brunei. Granting that, Brunei would enjoy the exclusive right to exploit resources of the reef. In any event, in 1998 Brunei did not have actual possession of the reef. While Brunei remains the only claimant without a military presence in the Spratly Islands, Louisa Reef is also claimed by Malaysia, which seized it in 1984. See Khadijah Muhamed & Tunku Shamsul Bahrin, Scramble for the South China Sea: The Malaysian Perspective, in Fishing in Troubled Waters, supra note 3, at 237-50.
34. See generally Tao Cheng, The Dispute Over the South China Sea Islands, 10 Texas Int'l L. J. 265 (1975); Hungdah Chiu & Choon-ho Park, Legal Status of the Paracel and Spratly Islands, 3 Ocean Dev. & Int'l L. J. 1 (1975).
35. See Lin, supra note 24, at 324. Many of these are not military bases as such, but rather raised man-made platforms constructed on and secured to barren projections of natural coral outcroppings. Such structures are highly vulnerable to sea and weather conditions, and must be continually resupplied since there is a dearth of fresh water available. A photograph of a Chinese Navy outpost in the Spratlys is in 15 Asian Defence J. 22 (Nov. 1992).
36. Figures for the troop levels deployed by Spratly claimants are taken from Lin, supra note 24, at 324; see also Zhiguo Gao, The South China Sea: From Conflict to Cooperation?, 25 Ocean Dev. & Int'l L. 346-48 (1994).
37. See Esmond D. Smith, Jr., China's Aspirations in the Spratly Islands, 16 Contemporary Southeast Asia 274-94 (Dec. 1994).
38. See Lin, supra note 24, at 323-31.
39. See Kuan-ming Sun, Policy of the Republic of China Towards the South China Sea, 19 Marine Policy 402 (1995).
40. At least 29 oil fields and 4 gas field have been developed in the South China Sea over the past four decades. See Territorial Dispute Simmers in Areas of South China Sea, Oil & Gas J., July 13, 1992, at 20-21.
41. Corazon Siddayao, The Off-Shore Petroleum Resources of South-East Asia 22-31 (1978). According to a survey of the Nanhai Oceanography Research Institute, the continental shelves around the Spratlys could contain 25 billion cubic meters of gas reserves and 105 billion barrels of oil reserves. See Catley & Keliat, supra note 2, at 46.
42. Since promulgation of a law in 1982 permitting foreign participation in offshore petroleum exploration, the China National Offshore Oil Corporation has held four rounds of contract bidding, and signed 100 contracts with 59 companies from 16 countries, covering 350,000 square kilometers. See China's Upstream Programs Advance Onshore and Offshore, Oil & Gas J., Sept. 25, 1995, at 29.
44. Expectations of developing large offshore oil deposits in the region have encouraged aggressive oil exploration efforts by China and Vietnam, sometimes in overlapping areas, but usually supported by naval patrols. For example, in 1992 the Crestone Energy Company of the United States signed an offshore contract with the China National Offshore Company that covered an area of 25,155 square kilometers in the Vanguard Bank area of the South China Sea, an area also claimed by Vietnam as its continental shelf. See N.D. Kristof, China Signs U.S. Deal for Disputed Waters, N.Y. Times, June 18, 1992, at A8; M. Vatikiotis, China Stirs the Pot, 155 Far Eastern Econ. Rev. 14-15 (1992). When Vietnam moved an oil rig into that area in June 1994, China threatened to use naval force to protect the Crestone concession. See Philip Shenon, China Sends Warships to Vietnam Oil Site, N.Y. Times, July 21, 1994, at A1; Barry Wain, Tension Mounts as Vietnam Vies With Beijing Over Oil Exploration, Wall St. J., July 25, 1994, at A10. Violent confrontation was avoided when both governments, under pressure from ASEAN governments, pledged not to escalate tensions. Even so, vituperative rhetoric has pricked concern about contracted oil exploration activities triggering open hostilities between China and Vietnam. See Adam Swartz & Matt Forney, Oil on Troubled Waters: Vietnam's Conoco Deal Draws Fire from China, 159 Far Eastern Econ. Rev. 65 (1996); Prospect of Oil Makes Spratlys Hot Property: Storm Brews Around the Islands, South China Morning Post, July 26, 1994, at 7; Sino/Viet Nam Territorial Dispute Flares up Again, Oil & Gas J., June 14, 1993, at 17.
45. As one expert on the Spratlys and the South China Sea recently concluded,
the alleged oil potential of the Spratly Islands is exaggerated. However, there is little hard evidence--one way or the other--because there has been little drilling and seismic data are proprietary. . . .
Of course, because the geographic definition of the Spratly Islands is a matter of dispute, estimates of the hydrocarbon resources are subject to even greater uncertainty. There have been wire service and newspaper accounts of oil industry disappointment with prospecting along the margins of Vietnam and China in the South China Sea. However, there are significant finds off the coasts of Malaysia and Brunei. Indonesia's Natuna gas field looks enormous. I suppose the $64,000 question will be how the Spratly dispute affects jurisdiction along the southern margin of the South China Sea.Daniel J. Dzurek, personal electronic mail communication with the author, Nov. 11, 1997 (on file with the New England Law Review).
46. Vietnam possesses only seven frigates and 40 patrol boats, many of which are non-operational because of the lack of spare parts. Its air force, "the major deterrent against the Chinese navy," is comprised of 175 MiG-21 Fishbeds, 36 MiG-23 Floggers, and 65 Su-20/-22 ground attack fighter aircrafts. This paucity of air and naval support renders Vietnamese outposts in the Spratlys "highly vulnerable to blockade, assault and piecemeal capture." Clive Schofield, An Arms Race in the South China Sea?, (International Boundaries Research Unit), 2 Boundary and Security Bull. 43-44 (July 1994).
47. The People's Liberation Army (Navy) reportedly contains 37 frigates, 450 fast attack craft, 67 minesweepers, 160 landing ships, and 81 patrol craft, with at least 800 other vessels in reserve. See Joseph R. Morgan, Chinese Navies, in 12 Ocean Yearbook 279 tbl.1 (Elisabeth Mann Borgese et al. eds., 1996). China has already acquired Russian in-flight refueling technology and long-range aircraft, including Backfire bombers, SU-27 bombers, and Mig-31 fighters. See Victor Cha, Defining Security in East Asia: History, Hotspots, and Horizon-Gazing, in The Four Asian Tigers in East Asia: Economic Development and the Global Political Economy 21 (Eun Mee Kim ed., 1998) (draft text).
48. See generally Jun Zhan, China Goes to the Blue Waters: The Navy, Seapower Mentality and the South China Sea, 17 J. Strategic Studies 180-208 (1994); T.M. Cheung, Growth of Naval Power, Pacific Papers No. 1 (Singapore: Institute of Southeast Asian Studies, 1990), at 270-87; see also Morgan, supra note 47, at 270-87.
49. With most of its naval air force in "decrepit" condition, in 1992 China purchased 26 Su-Flanker fighter aircraft from Russia. Since then, China has sought to acquire another batch of 26 Flankers, as well as a specified complement of MiG-31 Foxhound interceptors and several supersonic Tu22M Backfire bombers. These additions would provide China with a formidable array of air power in the South China Sea and ensure air superiority over the Spratlys region. See Schofield, supra note 46, at 41-42. Moreover, China has sent signals over the past decade about its desire to acquire aircraft carrier capability. After its purchase in 1985 from Australia for scrap, the HMAS Melbourne was reportedly meticulously examined. See M. Spick, Dangerous Ground!, Air Forces Monthly, Dec. 1993, at 14. In June and December 1992, Chinese delegations visited the Ukraine in an unsuccessful bid to purchase the former Soviet carrier Varyag. See id.; see also G. Greenwood, Carried Away, 155 Far Eastern Econ. Rev. 8, 9 (1992); T.M. Cheung, Loaded Weapons, 155 Far Eastern Econ. Rev. 21 (1992); T.M. Cheung, Arm in Arm, 155 Far Eastern Econ. Rev. 28 (1992).
50. See Cha, supra note 47, at 23-25 (draft text).
51. See R.L. Cheng, ROC Seeks Cooperation on Islands, China Post, May 12, 1995, at 1.
52. This era of rapprochment throughout the south Asia region makes China's avowed maritime strategy and its 1995 confrontation with the Philippines over Mischief Reef appear all the more confusing.
53. For example, in the Mischief Reef episode, ASEAN did put pressure on China and advocate the adoption of "codes of conduct," but in the end China was able to negotiate bilaterally with the Philippines to secure its objectives, and paid only lip service to the "rules of conduct." See Joint Statement, RP-PRC Consultations on the South China Sea and on Other Areas of Cooperation, Aug. 9-10, 1995. I am indebted to Professor Victor Cha of Georgetown University for bringing this to my attention.
54. See B. A. Hamzah, Conflicting Jurisdictional Problems in the Spratlys: Scope for Conflict Resolution, in Second Workshop on Managing Potential Conflicts in the South China Sea, Bandung, Indonesia 200 (July 15-18, 1991).
55. The United States does not have a formal defense pact with the ROC. Pursuant to the Section 6 of the Taiwan Relations Act of 1978 (P.L. 96-8, 93 Stat. 14, 22 U.S.C. 3305 (1994)) and Executive Order 12143, 44 Fed. Reg. 37191, a number of international agreements between the United States and Taiwan are administered on a nongovernmental basis. While none of those are tantamount to a mutual defense treaty agreement, the United States sells weapons to Taiwan and has sent US warships into the Taiwan Straits when the PRC has shown hostile intent.
56. See Peter Kien-Hong Yu, "Reasons for not Negotiating and for Negotiating on the Spratlys: A Chinese View from Taiwan", in Fishing in Troubled Waters, supra note 3, at 139-49.
57. See Petroleum Economist, July 1995, at 16; see also Snyder, supra note 1, at 8.
58. Cheng, supra note 51, at 1.
59. On recent piracy in the South China Sea, see N.Y. Times, Apr. 20, 1997, sec. I, at 3, col. 1.
60. See B. A. Hamzah, The Spratlys: What Can Be Done to Enhance Confidence?, in Fishing in Troubled Waters, supra note 3, at 320-47.
61. See Ian Townsend-Gault, Brokering Cooperation in the South China Sea, in Oceans Law and Policy in the Post-UNCED Era: Australian and Canadian Perspectives, 313-16 (Lorne K. Kriwoken et al., 1996).
62. See id. at 318.
63. See id. at 9.
64. The 1982 LOS Convention provides that States bordering on enclosed or semi-enclosed seas should cooperate with each other and "endeavour, directly or through an appropriate regional organization":
(a) to co-ordinate the management, conservation, exploration and exploitation of the living resources of the sea;
(b) to co-ordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment;
(c) to co-ordinate their scientific research policies and undertake where appropriate joint programmes of scientific in the area;
(d) to invite, as appropriate, other interested states or international organizations to co-operate with them in furtherance of the provisions of this article.1982 LOS Convention, supra note 17, at art. 123. It is important to note, however, that the Technical Working group excluded any specific reference to semi-enclosed seas from its final statement. While a draft paragraph containing a reference to Article 123 was deleted from the final statement, the tentative agenda of the second meeting of the Technical Working Group did contain a reference to marine scientific research in "semi-enclosed seas," which gives rise to the expectation that the applicability of Article 123 may likely be discussed at subsequent meetings. I am grateful for Dan Dzurek for bringing this point to my attention. Personal communication to the author from Daniel J. Dzurek, Apr. 30, 1997, via e-mail.
65. See Hasjim Djalal, South China Sea Island Disputes, at 13 (Statement made at the Conference on "Security Flashpoints: Oil, Islands, Sea Access and Military Confrontation," 21st Annual Seminar of the Center for Oceans Law and Policy, New York, N.Y., Feb. 7-8, 1997).
66. See id. at 10.
67. Id. at 11.
68. As early as September 1992 Chinese Foreign Minister Qian Qichen indicated that China is prepared to negotiate joint development of South China Sea resources. See Chinese Drilling Ship Leaves Disputed Waters, Japan Economic Newswire, Nov. 4, 1992, available in LEXIS, Nexis Library, UPI File.
69. Mark J. Valencia, A Spratly Solution, 157 Far Eastern Economic Rev. 1 (Mar. 31, 1994).
70. See generally Mark J. Valencia & Masahiro Miyoshi, Southeast Asian States: Joint Development of Hydrocarbons in Overlapping Claim Areas?, 16 Ocean Dev. & Int'l L. 211 (1986).
71. These conditions mirror the "Guidelines for National Unification" adopted by the Republic of China in 1991. See "Guidelines for National Unification, adopted by the National Unification Council at its third Meeting on February 23, 1991, and by the Executive Yuan Council (Cabinet) at its 2223rd Meeting on March 14, 1991," reprinted as Appendix II in King-yuh Chang, Mainland Affairs Council, The Executive Yuan, Republic of China, Cross-Strait Relations: Past, Present and Future, at 40-44 (Jan. 1997).
72. See id. at 42-43.
73. See id. at 43-44.
74. See id. at 44.
75. See id. at 41.