Unresolved Territorial Disputes In Southeast Asia International Law Essay

In South East Asia (SEA), just like any other regions conflicts still exists. However, compared to other regions, the numbers of unresolved territorial disputes in SEA is still considered small and SEA is considered a relatively safe region with no violence going on due to the unresolved territorial disputes as compared to the Africa region where the conflicts has involved 9 million people causing them to be refugees and internally displaced people (IDP) where hundreds and thousands of people were slaughtered.

The territorial disputes in Southeast Asia consist of the following disputes. The Philippines’ Sabah Claim, the Ligitan and Sipidan dispute, The Pedra Branca dispute and the South China Sea Conflict Zone also known as the Spartly Islands disputes.

This paper will look and discuss generally into the reasons on what is causing the territorial disputes in South East Asia to be left unresolved and zooming in into the domestic and regional factors that is causing the territorial disputes to remain unresolved with focus on the Spartly Islands as a case study.

What causes the territorial disputes?

The territorial disputes in SEA begin with the contesting for the rights of the territory because of countries wanting to claim rights for territories which they believe that it belongs to them. [1] The colonial rulers, by treaties and agreements had drawn lines on maps showing the limit of sovereign authority, but at the margins of imperial authority where the real borders on the ground were often fuzzy and ambiguous. And after World War 2, when newly independent states of Southeast Asia had inherited their national borders as shown on the colonial maps. Along hundreds of miles of these borders, the map lines that have never being physically demarcated through survey and physical marking now poses a territorial dispute between countries as these new states refuse to accept the demarcations.

Why are the disputes unresolved?

National Interest

Resources

Resource is one of the factors that led to the territorial dispute left unresolved. An example is [2] the Spartly Islands dispute where Spartly’s island geographic consists of hundred of islets, reefs and rocks which extends to over 400,000 square kilometres of the central South China Sea. The resources that can be extracted out from Spartly Islands is energy which consists of oil and natural gas reserves which also means money considering the high demand for energy be it oil or natural gas reserves in the current world situation.

Other than energy, another resource that the Spartly Islands provide is fishes. The amount of fishes caught each year in Spartly Islands is five million tons which accounts for ten percent of the global fishery market. As claimant’s inshore fishing resources is facing depletion due to overfishing or pollutions, the Spartly Islands would therefore be a cause worth contesting for because of amount of fishes available in Spartly Islands.

Domestic Issues

Reluctance to present disputes to a higher level for resolution

As times passes and disputes still remaining the same as it is with no major breakthrough to end the disputes, a possible solution would be to present the dispute to a higher level such as to the ASEAN or International Court of Justice (ICJ) just like how the Singapore and Malaysia presented its disputes to the ICJ which thus has ended its 27 years disputes for Pedra Branca.

3While the Asean states among themselves have agreed to the joint development and exploitation of overlapping maritime zones or at least to negotiate their differences, there are still no agreements reached with China or Vietnam.

Different Perspectives from the disputes claimants

The different perspectives and goals among the claimants are an impediment to the progress to a resolution to the Spartly Islands disputes where there is no discussion and agreement to determine on how the claimants want to resolve the disputes.

4The first step forward to resolve the disputes should be to discuss and agree on the desired goal. If the desired goal is a joint development as an interim solution, then several obstacle will have to be addressed and one of the fear among the claimant’s is China’s vision of joint development is development of resources on China’s legal continental shelves and unless China could justify and clarify on these claims, other claimants are not likely to enter into serious discussions of joint development thus hindering the resolutions to the territorial disputes. The current fragile standoff among the claimants could result in military strife and the involvement of outside powers thus it is in the interest everyone involve in the disputes to explore and develop the resources in Spartly Islands cooperatively however these efforts are currently blocked by the stalemate over the competing claims.

Regional Affairs

Claimant’s activities in disputed territories

The [5] claimant’s activities in the disputed territories led to sour relationships between the claimants thus making talks or resolution harder

China’s activities in the South China Seas have increased significantly from 1980s onwards and in 1986, the Chinese navy had conducted two sets of military exercises in the vicinity of Spartly Islands and in late 1987, Beijing had announced that China had set up a number of observation stations in the Spartly Islands which is the first evidence of actual China’s occupation and the Spartly Islands were also incorporated into the new province of Hainan. In 1998, a new phase of the South China Sea conflict began with a naval battle between the Vietnamese and Chinese ships where the China’s navy contingent consists of three frigates equipped with sea to sea missiles and automatic canons. This China’s military move in the Spartly Islands was an effort to obtain some territory before the other contenders had occupied all the significant islands in Spartly.

Asean Way

The Southeast Asia’s territorial disputes should be represented in the Asean level if bilateral talks are not working out. However due to the structure of Asean where the principle of Asean is through non-interference, it thus leaves disputes open.

6The current practice of “Asean Way" within Asean in which non-interference on domestic affairs, consultation and consensus are among its strictest principle which is believed as the ultimate cementing point that unites Asean and thus leading to any intrusive idea to discuss be regarded as unnecessary and thus rejected. Asean must be able to consolidate itself if it intends to tackle all of those incoming challenges that Asean members is facing, from both inside and outside Asean and thus remaining its current standing and status. However, Asean’s current mechanism which is primarily centralised on heavy inter-governmental political and diplomatic calculations wrapped in an overcautious diplomatic manner seems insufficient to handle these problems and disputes. A new mechanism and this direction and thus direction of relationship is perhaps required. This new mechanism requires a more open and frank atmosphere in which even the most sensitive issues can be discussed among the members freely, openly and be debated is necessary.

7The unique concept of a High Council to help devise Asean solutions to intra-Asean problems has remained a concept, not an achievement. The TAC broke new ground for providing a mechanism for the pacific settlement of disputes. It called for the establishment of a high council consisting of ministerial-level representatives from each contracting party. The high council would cognizance of disputes and the situations likely to disturb regional peace. It is authorized to recommend appropriate means of settlements on agreements of the parties to the dispute which can offer its own good offices, mediation or conciliation. The Asean’s foreign ministers have felt no urgency to make concrete the pacific settlement of the TAC as their country might be held accountable in the future for the decisions made. The commitment to non-interference may also make members unwilling to have to sit in judgement on others especially so if the adverse decisions would bring a negative political response from an aggrieved party. There may also be a reluctance to assign a new continuing Asean ministerial body formal function. The high council was never used for dispute settlement. The high council will not have a legal basis , but only a political one because of the many conflicting interests. Even if the high council should be invoked in the future, TAC’s article 18 states that its pacific settle provisions will apply only if all parties to the dispute agree to their application. If one party does not agree to this application, the TAC settlement mechanism cannot be applied. Asean states do not rely on the TAC for the methods they have developed of informal intervention in the name of the Asean way. The TAC’s real value is in providing a contractual basis for the rules of the peace game, even if there is no enforcement authority.

Maintaining good relationship among claimants

In order to maintain a good relationship with other claimants, the claimants choose to leave these territorial disputes aside and proceed with other joint cooperation which thus benefits both parties.

8Asean strategy is to maintain the status quo in the South China Sea without alienating China. Asean emphasised the necessity to resolve by peaceful means and without resorting to force all of the sovereignty and jurisdictional disputes. It put China on notice that a unified Asean position was emerging from which Asean would view the bilateral issues through regionalist eyes and the declarations suggests that functional cooperative activities could be undertaken without prejudicing the sovereignty and jurisdictional problems in areas such as pollution, navigation, piracy and other transnational issues.

9It is shown and highlighted that China’s relations with ASEAN got off to a fresh start from the start of the 1990s. The year 1990 was considered to be one in China that had already developed full-blown relations with the ASEAN states and it was also expected there would be more opportunities for dialogue and cooperation China and ASEAN which was especially true when ASEAN, having different perceptions of its member states about China and the fact that there was economic competition between China and some of the ASEAN states begun to take a very pragmatic approach in dealing with China. China was given a much higher priority in due recognition to China’s rising importance in regional issues despite worries that China is still considered a long-term threat by some ASEAN members. It was under these circumstances that China and ASEAN claimants begun to conduct dialogues and negotiations to the territorial disputes.

Conclusion

In conclusion, the Southeast Asia region is still a relatively safe region even with the disputes remains unresolved. It can also be seen that these disputes would not cause any instability to the region due to the fact that Southeast Asia region is becoming a more mature region and the focus would be on economic progress and the emphasis of stability for the region. Although an end to these disputes is still not possible in the near future, claimants are looking at the possibilities to benefits the individual the most and it will require more dialogues and initiatives between the claimants to end the disputes.