The solution for the Spratly Islands ought to look like this

By Mark J. Valencia, Jon M. Van Dyke and Noel Ludwig
International Herald Tribune
10 October 1995

HONOLULU: China's pledge in July, at the annual meeting of the Association of South East Asian Nations, that it would negotiate disputes over ownership of the Spratly Islands in the South China Sea according to international law, and discuss the issue with ASEAN as a group, has set the stage for a solution.

The six claimants — China, Taiwan, Vietnam, Malaysia, the Philippines and Brunei — start fresh talks with Indonesian officials this Tuesday to try to ease renewed tension over the disputed area, a potentially rich zone for undersea oil and natural gas.

What does international law say about possible solutions? The main guidance is provided by previous international agreements, rulings by the International Court of Justice, and the 1982 United Nations Convention on the Law of the Sea. Beijing has said it will use the convention as a basis for negotiations, although of the six claimants only the Philippines and Vietnam have actually ratified it.

The precedents in international law suggest that all the claims to sovereignty over the Spratly Islands — a group of tiny islets, sand cays and reefs scattered widely over the southern sector of the South China Sea — are weak.

The historic record supporting the claims of China, Taiwan and Vietnam is incomplete and intermittent, and would probably be unconvincing to the International Court of Justice.

None of the claims to the Spratlys, including the more recent claims of Malaysia, the Philippines and Brunei, is supported by the requisite continuous and effective control, administration and governance.

Even if some of the sovereignty claims were to prevail, these tiny outcrops in the sea do not appear to be legally qualified to generate surrounding exclusive economic zones out to 200 nautical miles, or the even more extensive continental shelves. According to the Law of the Sea Convention, rocks that cannot sustain human habitation or an economic life of their own cannot be the basis for such zones; nor can artificial islands.

Only some 26 features in the Spratly chain are above water at high tide. The largest has a land area of less than half a square kilometer, and only six others are bigger than 0.1 square kilometer. None of them has ever sustained a permanent population. Vietnam has already taken the position that these islets should not generate extended maritime zones, and other countries in the region seem to be moving toward this view.

Even if the Spratlys were deemed to be the source of extended zones, they would not have equal weight to do so in relation to the larger land masses that surround the South China Sea. The International Court of Justice and other tribunals have consistently ruled that small islands do not play an equal role in determining maritime boundaries, and sometimes are ignored altogether.
For example, Vietnam and Malaysia have continental shelf claims extending well into the Spratly area, and these claims would be considered superior to any claims based on the islets.

If the court were asked to determine the maritime boundaries in the area, it would probably define the area in dispute, measure relevant coastlines and identify significant geographical features to be taken into account. It would develop provisional boundaries based roughly on median lines, check to see whether those lines violated "equitable principles," focusing in particular on the relative coastline lengths and relying on a rough sense of fairness to each claimant. It would then adjust the lines accordingly.

In a maritime boundary settlement following such principles and ignoring the Spratlys and the Paracel Islands in the northern part of the South China Sea (which Chinese forces seized from Vietnam in 1974), China-Taiwan, Vietnam and the Philippines would gain roughly equal areas.

Although most of the Macclesfield Bank southeast of the Paracels would go to China-Taiwan, it would not get any of the Spratly geologic block further to the south. The Philippines would get the northwestern portion of the Spratlys, including the Reed Bank. Malaysia would get two sizable sectors off its states of Sarawak and Sabah separated by Brunei's narrow corridor.

Sovereignty over the Spratlys themselves might be allocated based on the sector in which they are situated, or might eventually fall to the present occupants. But in either case, sovereignty would be limited because the islets would generate only a 500-meter safety zone or perhaps a territorial sea out to 12 nautical miles. The Spratlys would be demilitarized and open to access for peaceful purposes by other claimants.

If the claimants could not agree to an allocation scheme, the UN Law of the Sea Convention requires them to establish a provisional arrangement. The convention also urges cooperation in semi-enclosed seas as well as sharing of the resources in areas beyond 200-nautical-mile exclusive economic zones.
These principles taken together favor a dramatically different option — multilateral joint development of an agreed area.

One logical approach would be for China, Taiwan, Vietnam, Malaysia, the Philippines and Brunei to set aside their claims for now and establish a multilateral Spratly Management Authority.

The authority would administer the contested area, which could be defined in several possible ways. Our preferred option would be to define it as the area beyond a line halfway between the coastline of the South China Sea and the disputed features in the Spratlys.

The claimant states could be given weighted voting shares in a governing council and financial responsibility in the authority in rough relationship either to their coastline lengths or the original extent of their claims. In either case, China-Taiwan would have a substantial portion of shares, benefits and costs.
Decisions would normally be made by consensus, but when voting became necessary, substantive decisions on matters affecting the entire area would be taken by a two-thirds vote of the assigned shares.

Decisions affecting a particular location might require a majority of the votes in the governing council as well as a majority of the claimants to the affected area. Nonclaimant states in the region — and perhaps concerned maritime nations outside the region — might have a voice, but not a vote, in the operation of the Spratly Management Authority.

The multilateral joint development solution to the Spratlys imbroglio should be attractive, since all claimants would be sharing in the proceeds from the exploitation of resources in and under the disputed waters. The continuing discord and threat of conflict now dominating the region are discouraging investors.

If a cooperative solution could be developed, the claimants would be working together to explore and develop oil and gas, manage fisheries and maintain environmental quality. Such cooperation would greatly reduce the chances of miscalculation and dangerous confrontation.

Other powers not involved in the Spratlys dispute, including the United States and Japan, would be highly supportive because safety and freedom of navigation would be assured through the South China Sea, which is an important maritime highway for naval and commercial shipping of many nations.

Mr. Valencia is a senior fellow in the program on international economics and politics at the East-West Center in Hawaii. Mr. Van Dyke and Mr. Ludwig are specialists on international law and resources at the University of Hawaii. They contributed this comment to the International Herald Tribune.