THE region has certainly had an uncomfortable time in recent years with disputes concerning the South China Sea. Several concepts have dominated the heated debates, with words like sovereignty, borders, maps, islands and rocks, international law and Unclos (United Nations Convention on the Law of the Sea), EEZ (exclusive economic zones), fishing and exploration rights, and stop and search powers, just to name a few.
Most of these terms are of recent vintage and many countries still have difficulty with the definitions and legal implications of some of the terms used. In Asia, the problems are particularly acute, especially on the issue of maritime borders. The leaders of the first post-colonial nations, since the 1950s and 1960s, were engrossed in their own nation-building projects and not in a hurry to define any of the terms more precisely, if they thought about them at all.
Indeed, if all the terms were legally clear and their interpretation obvious, there would be far less turbulence today.
Alternately, if national interests did not overlap and fishing and energy resources were evenly distributed or divided to satisfy the peoples concerned, there might be no disputes at all. Since neither is the case, the problems of maritime borders have unleashed strong emotions everywhere.
We need to be reminded that countries in Asia have never, in the past, had the concept of sovereignty and permanent and legal borders, even on land. As for the sea dividing kingdoms and empires, the problem never seemed to have arisen before the coming of the Europeans. When that issue first arose, sovereign disputes referred to those between different European nations and empires which needed to draw lines to match the ideas of law, rights, borders and economic interests that they had brought with them.
The story began with the Treaty of Tordesillas of 1494 when the Spanish and Portuguese rulers divided newly discovered lands to the west and south of their respective countries. This was sanctioned by the Pope and extended by the Treaty of Zaragoza 35 years later to cover the world, including the Indian and Pacific oceans.
In our region, that meant that some vague line was drawn that placed the Philippines in Spanish hands and left bits of the Moluccas (Maluku) to the Portuguese.
Over the next four centuries, more borders were drawn by the imperial powers or by organs set up by European empires, and some of these became the borders of new nation-states after 1945.
The other famous treaty that focused on maritime borders was the Anglo-Dutch Treaty of 1824, which divided two large parts of the Malay archipelago along the Strait of Malacca. Indeed, the idea of sovereignty was easily grasped for landed territories, but extending the concept to cover the waters around islands was never understood in Asia.
After 1945, the world was transformed and, for the very first time in history, all states, including former colonies, were legally equal and new rules of the game came into play. The victors of the World War II, with the best of intentions, established the United Nations organisation to entrench new legal ideas and limitations in international affairs to prevent future wars.
Among other things, scores of new states were recognised and, since then, atlases have had to be redrawn many times.
Land borders were drawn and sometimes renegotiated, mostly with success, but the sea remained problematical. Hence the need for Unclos, a massive work in progress, with gaps of interpretation still to be tested. And until recently, the countries in our region seemed to have recognised how complicated the negotiations have been and have been patient to work out the principles over time. So why the flurry of aggravations in the South China Sea during the past few years?
It is clear that the pressures for urgent action are not because of the desire for peace, or the concern to affirm principles of international law, or from some breakthrough in ways to resolve the issue of sovereignty and maritime borders.
The urgency has been brought about by two major factors: first, the drive to exploit each country’s undersea energy resources and, second, the reports depicting a rising China about to use naval muscle to get its way in waters that are not recognised as its own, which some think triggered the American “pivot” to Asia.
Both issues touched on the one question that Unclos was never meant to resolve, that is, what does sovereignty mean where maritime borders are concerned? Sovereignty has historically been a matter between claimant nations, and disputants draw maps usually to mark their prime negotiation positions. Unclos negotiators found it too hard and turned to other measures to minimise conflict, effectively leaving sovereignty matters for the states concerned to deal with.
It would appear then that the old adage applies: Possession is nine points of the law. The country in possession keeps what it has and would seek to acquire the power to hold on to it. If that is the position in the South China Sea, the alternatives are clear. If sovereignty is the key issue, both sides should exercise patience and look for peaceful ways to demarcate their maritime borders.
If, however, the need for resources cannot wait, then practical terms have to be negotiated by the interested parties to share their respective interests. But, if patience is not possible and economic negotiations still depend on who is sovereign, what should be done?
The countries in the region face dilemmas for which nothing in their respective histories has prepared them. They depend on a framework of international law that they have been taught to use only recently and no one is confident that they fully understand how that would work for them in the long run.
With each incident, countries can turn to their diplomats to find new ways of drawing lines on the waters. The diplomats would have to be at their best. If they fail, maritime borders will either stay in the too-hard basket or be determined by ships armed to confront one another at sea.
The writer is a professor at the National University of Singapore, and chairman of the managing board of the Lee Kuan Yew School of Public Policy.
By Invitation features leading writers and thinkers from Singapore and in the region.