The decision on December 17 by the World Court to award the tiny Celebes
Sea islands of Ligitan and Sipadan to Malaysia may have some
implications for the resolution of the disputes over the ownership of
the Spratly and Paracel islands in the South China Sea. But the claimants are not going to like them. The Spratly
Islands are claimed wholly or in part by 6 governments - China, Taiwan,
Brunei, Malaysia, the Philippines, and Vietnam - and military forces of
all but Brunei occupy the islands. The World Court decision reinforces
those reached in previous cases before the court. In the absence of a
dear allocation by a treaty, the decisions taken together all but ignore
discovery, historic claims, and contiguity in favor of specific
evidence of continuous, effective occupation, administration, or control
over and the absence of protest from others or their successful
exclusion from the area.
The decision on Dec. 17 by the International Court of justice, or
World Court, to award the tiny Celebes Sea islands of Ligitan and
Sipadan to Malaysia may have some implications for the resolution of the
disputes over the ownership of the Spratly and Paracel islands in the South China Sea. But the claimants aren't going to like them.
The 4o-odd Spratly
Islands are claimed wholly or in part by six governments-China, Taiwan,
Brunei, Malaysia, the Philippines and Vietnam-and military forces of
all but Brunei occupy the islands in a crazy-quilt pattern. The Paracels
are occupied by China, which seized them from Vietnam in 1974. The
islands are situated near strategic but vulnerable sealanes-which has
drawn the attention of maritime powers-and the surrounding seabed may
harbour oil and gas.
The World Court's 16-to-1
decision regarding the sovereignty dispute between Malaysia and
Indonesia was based primarily on the superior "effectivites" of Malaysia
and its predecessors (principally, the British colonial government in
the area). That is, it based its decision on the evidence of actual,
continued exercise of authority over the islands-in this case for some
88 years-and the absence of protest by others until 1969, when the
dispute arose. Indeed, the court rejected almost all arguments by both
sides based on colonial-era maps and vague treaties. Evidence by
Malaysia that swayed the court included a 1917 ordinance regarding the
taking of turtle eggs, the licensing of fishing, the 1933 establishment
of a bird sanctuary on Sipadan and construction of lighthouses on the
two islands in 196:z and 1963. While the Spratly
and Paracel claimants have undertaken some of these activities on their
occupied islands, they have all been more recent, mostly after the
disputes arose and certainly were not continuous for 88 years, nor
without protest.
This Dec. 17 decision
reinforces those reached in previous cases before the court. In the
absence of a dear allocation by a treaty, the decisions taken together
all but ignore "discovery," "historic" claims and contiguity in favour
of specific evidence of continuous, effective occupation, administration
or control over a considerable period of time and the absence of
protest from others or their successful exclusion from the area.
On this basis, all the claims to the Spratlys as an island group have
significant weaknesses. Taiwan has exercised effective control over the
largest island, Taiping Dao, since 1956, which may or may not qualify as
a "considerable period of time." But Taiwan has no standing with the
court. And anyway this claim, if successful, would apply only to that
island and would have little effect on the drawing of maritime
boundaries because of the surrounding islands claimed by others. The
rest of the occupations and "effective control," including that by China
of the Paracels, began in the 1970s, and were certainly protested from
then until now. Although these occupations and activities may eventually
ripen into a legitimate assertion of sovereignty, the result would
still be the current crazy-quilt pattern. And disputes would continue
regarding jurisdiction over the adjacent maritime space and resources.
This court decision has several other implications for the Spratly
claimants. If the claimants were to agree to take their disputes before
the World Court, they would be wise to not ask-as Indonesia and
Malaysia did-for an "either/or" decision. Indeed, since it is highly
unlikely that the court would award all of the islands to any one
claimant, it would be better to ask for an equitable allocation of the
features. But because of the lack of control of the decision-making
process and national sensitivities that would be aroused by a failed
claim, the claimants are unlikely to trust the fate of these islands to
the court.
It would therefore be in the
claimants' interest to negotiate an equitable solution to this dangerous
standoff. Such "equitable solutions" might include demilitarization of
the islands and their agreed allocation, as well as the protection of
their fragile ecology. An interim solution would involve setting aside
the sovereignty question, leaving this for future generations to
resolve, and proceeding with some form of joint development of the
marine resources within the disputed area.
In
sum, the recent decision by the World Court does not currently favour
any particular claimant to the Spratlys or Paracels. What it does,
however, is to highlight the weaknesses of their claims. It is high time
the claimants resolved these issues among themselves.
