4.2 Common threads in the pattern of conflict

Overriding security concerns involving East-West tensions can hinder or help peaceful resolution of these disputes (ístreng, 1985). Competition between the Soviet Union and the United States for influence in the region, and consequently the Kampuchea issue and the Soviet-United States-China triangular relationship, affect the disputes in South-East Asia. Vietnam is an actor in all of the multiple claim areas in the South China Sea. The Soviet Union is an ally of Vietnam and has signed an agreement establishing a joint venture for exploration and exploitation of hydrocarbons from the continental shelf of southern Vietnam (Oil and Gas Journal, 2 August 1982: 84). The United States is an ally of the Philippines and Thailand and a good friend of the remaining ASEAN countries and, until recently, of China. American oil companies hold concessions in all of the multiple claim areas except the Spratlys. Some of these areas are becoming increasingly militarized. All states in the region need to develop the resources to fuel their development drives through foreign exchange earnings. Thus, competition between regional states backed by their respective allies may exacerbate the militarization process.

Fisheries Disputes

CONFLICTING GOALS

Fisheries contribute only a few per cent or less of GNP of the ASEAN countries, but about 65 per cent of the animal protein consumed in Indonesia, Malaysia, and the Philippines; and more than 2 million persons are employed in fisheries (excluding secondary employment). Further, ASEAN countries exported nearly US$1 billion worth of fish in 1980 (Table 4.3) and have an annual potential product of over US$5 billion. Most important, rural coastal peoples in South-East Asia depend on fish for nutrition, employment, and their way of life. Yet the resource is in danger of destruction brought about by overfishing and fishing with destructive methods like explosives, poisons, and very fine mesh nets, pollution, and destruction of coastal breeding areas (Asian Action, March/April 1978: I).

TABLE 4.3 Socio-economic Contributions of the Marine Fishing in ASEAN Countries, 1980

Country	Marine Catch1		Fishery Exports		Percentage of Protein from Fish5	Labour Force in Marine Fishing6 ('000 people)
	Value (US$ million)	Percentage of GNP2	Value3 (US$ million)	As Percentage of Total Exports 4
Indonesia	964	1.4	226	1.0	65	1,650
Malaysia	644	2.7	135	1.1	65	109
Philippines	1,135	3.2	138	3.0	62	315
Singapore	45	nil	707	0.3	35	2
Thailand	382	1.1	354	5.3	n.a.	68
Total ASEAN	3,170	1.7	923	1.4	n.a.	2,144
Total SEA	6,615				n.a.	4,4678
% ASEAN/SEA	47.9				n a.	n.a.

n.a. = not available.
¹From Table 5 in E. Samson (1984), 'Marine Resources and Development', unpublished manuscript, Environment and Policy Institute, Honolulu: East-West Center.
²GNP data from Far Eastern Economic Review, Asia Yearbook 1983.
³From J.M. Floyd (1984), International Fish Trade of Southeast Asian Nations, East-West Environment and Policy Institute Research Report, Honolulu: East-West Center.
⁴Merchandise exports data from Far Eastern Economic Review, Asia Yearbook 1983.
⁵From E. Samson (1985), 'Fisheries', in G. Kent and M.J. Valencia, eds., Marine Policy in Southeast Asia, Berkeley: University of California Press.
⁶Computed from data in Samson (1985).
⁷including re-exports.
⁸Extrapolated from percentage of ASEAN production to SEA production (48 per cent).

Extended jurisdiction offers the possibility of enhanced offshore potential. However, the valuable species such as tuna and mackerel are already fished by distant-water fishing countries, and some national development policies view joint ventures with foreign companies as vehicles for the technically modern exploitation, processing, and marketing of these resources. Thus high-value fish are exported out of the region to developed countries while intraregional offshore and artisanal fishermen compete with each other for dwindling coastal resources, sometimes violently.

The rapid introduction of sophisticated fishing technology by private or state-controlled companies has seriously disrupted the traditional organization of small-scale fishermen. The construction of small trawlers has intensified the pressure on coastal stocks, and small-scale fishing has been neglected in development plans which focus on full-time fishermen. Although policy-makers in these countries are beginning to become more sensitive to the plight of small-scale fishermen, laws prohibiting the use of trawlers close to the coast have not been effectively enforced, and over-exploitation of stocks threatens job opportunities for fishermen.

For the distant-water fishing countries, the negotiation of fishing agreements and joint ventures is often the only way both to use the overcapitalized fleets and to continue to control the importation of fish products. In 1982, Japanese large-scale deepsea fishing enterprises participated in 184 joint ventures in 44 foreign countries. Not coincidentally, Japan supplies more than half of the bilateral fisheries aid given to the countries in the region (Josupeit, 1983). Denmark, Norway, and the Netherlands have also supplied European fishing boats and research boats.

Aquaculture is often seen as a panacea for diminished stocks, lost access to fisheries, and the resultant loss of food and cheap animal protein. However, it would be premature to present aquaculture as a remedy to the problems of maritime fishing. Many of the development programmes for aquaculture have been disappointing. Further, most aquaculture enterprises to date focus largely on highvalue species, e.g. shrimp for export to the developed world. Aquaculture requires a relatively high capital investment, and potential mariculturists are often reluctant to invest because of the uncertainty of ownership laws. Pollution is also a deterrent. Thus the anticipated benefits have not materialized, and the potential of aquaculture remains largely unrealized.

FISHERIES POTENTIAL

Extended maritime jurisdictional claims are shown superimposed on total present marine catch in Figure 4.4, giving a rough picture of the amount being caught in each country's claim area, although not necessarily by the country itself. Several areas of overlapping claims may harbour fisheries potential of significant gross value. For example, the Dangerous Ground (US$8.4 million/yr), the Miangas area (as much as US$7.4 million/yr), and the eastern Gulf of Thailand (about US$7.3 million/yr) are especially promising (Table 4.4).

Potential fish product quantities and values (Table 4.4) range from negative for the Philippines and Thailand to a factor of three for Malaysia. However, these optimistic projections must be tempered by realistic cost estimates as well as the elasticity of demand for fish. Rapid expansion towards the potential goal could depress prices and result in negative returns. Diseconomies of scale can be anticipated in relation to vessel efficiency. Mover, good port space IS a scarce resource, resource, to rising marginal costs. Finally, expansion of the fisheries would draw labour and other resources from other sectors of the economies. It is thus uncertain if the resulting social opportunity costs for any nation would be offset by the increased value of product.

EFFORTS TO PROTECT FISHERIES RESOURCES

The search for fish for export and domestic use by distant-water fishers produces conflict with states trying to protect their newly gained resources. Numerous enforcement actions have resulted in the seizure of fishing vessels, and many of these incidents have been accompanied by gunfire. Thailand's concern is directed toward protecting and regulating its own fishing fleet which has been exposed to armed attack and seizure by Kampuchea, Vietnam, Burma, and now Malaysia (McDorman and Tasneeyanond, 1987). The incidents of gunfire almost all involved Thai fishing vessels as targets of Vietnamese and Kampuchean patrol boats. Exclusion of foreign fishing vessels is clearly the policy of Kampuchea; naval units routinely patrol the Kampuchean EEL, and apparently surveillance duties are also assigned to civilian observers. In nearly all cases involving Thai fishing boats, there was no reported protest by the government of Thailand, suggesting that the boats were in fact fishing illegally.

Figure 4.4 South-East Asian Fisheries Areas of Potential International Conflict.

Source: R. P. Wiedenbach (1983), 'Maritime-Jurisdiction and Total Marine Catch', in Morgan and Valencia, eds.. Atlas for Marine Policy

TABLE 4.4 Rough Approximation of Total Catch and Gross Annual Value in Areas of Overlapping Claims¹

Countries	Area of Overlap sq. km (sq. nmi)	Present Average Fishing Intensity (kg/sq km)	Total Present Catch (tonnes)	Main Species2	Total Annual Gross Value3 (US$ million)
Taiwan/Philippines	49 392 (14,440)	36.8	1 818		1.40
Taiwan/Philippines	13 274	4 5	60	Small pelagics, skipjack, squid, demersal species	0.46
	(3,870)
Japan/Philippines	2 058	4.5	9		0.10
Philippines/China/Taiwan/	240 615	45 5	10 950	Tuna, small pelagics	8.40
Malaysia/Indonesia	(70,150)
Vietnam/Indonesia	38 656	220	8 504		3 00
Kampuchea/Thailand	19 887	> 1 000	> 19 887		> 4.40
	(5,798)
Thailand/Vietnam	799	> 1 000	> 799	Demersal species, small pelagics	> 0.20
	(233)
Thailand/Vietnam/Kampuchea	12 382	> 1 000	> 12 382		> 2.70
Philippines/Indonesia	14 749	450	6 637	Tuna, small pelagics4	5.10
	(4,300)
Philippines/Indonesia	21 266	450	9 570		7.40
	(6,200)
Malaysia/Philippines	8 301	4.5	37		0.03
	(2,420)
Indonesia/Australia	41 160	1.6	66		0.02
	(12,000)
Indonesia/Australia	74 088	1.5	111		0.04
	(21,600)
Total	536 627	n.a.	70 830		> 48.11

Source: Valencia and Marsh (1986), Table 2.
n.a. = not available.
¹This catch is included in the total catch for each country's claimed area. Rough approximations from Ronald Weidenbach (1983), 'Fisheries', in J.R. Morgan and M.J. Valencia, eds., Atlas for Marine Policy in Southeast Asian Seas, Berkeley: University of California Press, pp. 56-79.
²Expansion possible.
³Values calculated following method in Table 4.5. Of two or more countries, the higher price is used.
⁴Mackerels, roundscads, sardines.

Figure 4.5 South-East Asia: Vessel Seizures.

Source: H. F. Olson and J. R. Morgan (1985), 'Enforcement of Maritime Jurisdiction', in G. Kent and M.J. Valencia, eds., Marine Polity in Southeast Asia, Berkeley: University of California Press.

Figure 4.5 shows the regions where vessel seizures have taken place. The Tenasserim coast of Burma, the Gulf of Thailand, the Gulf of Tonkin, and the Luzon Strait have been the principal areas. Indonesia seized at least 77 foreign fishing vessels between 1974 and 1980 (Olson and Morgan, 1985). Burma has been pursuing an active campaign against foreign fishing vessels within its EEZ, including those that may only be in transit to destinations beyond Burmese waters. The seizure by the Philippines of at least 162 foreign fishing vessels between 1972 and 1980 show that government's determination to enforce its jurisdiction in the EEZ.

The Malaysia/Thai fisheries dispute has disturbed relations between the two countries. Malaysia declared its EEZ and a new Fisheries Act in 1985. Malaysian seizures of Thai fishing boats intensified in mid1986. One incident involved a Malaysian coastal patrol craft firing at a Thai trawler, leaving a crewman dead and another wounded. Some 824 Thai fishermen were arrested in 1986. Thai protesters in Pattani demanded the government despatch navy gunboats for their protection while fishing lobbies in Peninsular Malaysia's east coast states demanded more arrests of Thai fishermen. Malaysia has not only been arresting Thai fishermen caught fishing illegally but has been seizing and confiscating their vessels and equipment as well.

In addition, Malaysia has insisted that passage of Thai fishing vessels through its EEZ is conditional on prior notice. The problem is unlikely to disappear in the long term. The Thai fishing fleet has the sixth largest catch in the world, and a lucrative export industry to developed world markets. To maintain this, it must at least transit Malaysian waters and fish in other countries' waters because it has exhausted its own resources (Sricharatcharya, 1987).

Use of Ocean Space: Straits and Sea-lane Access

THE SETTING

The South-East Asian region is a nexus of maritime routes used by the navies of the superpowers and their allies. Strategic straits abound, and with extension of jurisdiction many fall within the territorial or archipelagic waters of the region's states. Competition between the superpowers for access to these straits will be an integral part of the realpolitik here for the foreseeable future. Figure 4.6 superimposes the major shipping routes through the region over extended maritime jurisdiction zones and highlights critical straits and sea lanes encompassed by the claims of the Philippines and Indonesia. The following straits in the region are strategic because they all serve as entrances to and exits from SouthEast Asian seas and are choke points where naval forces could interfere with enemy shipping with relative ease: Malacca-Singapore, Lombok, Makassar, Taiwan, Luzon (including the Bashi, Balintang, and Babuyan channels), Ombai, Wetar, San Bernardino, Verde Island Passage, and, of lesser importance, Sunda and Torres. The most important and frequently used of the straits is the Malacca-Singapore combination, which funnels traffic from the Indian Ocean into the South China Sea.

Figure 4.6 South-East Asia: Shipping Routes, Maritime Jurisdictional Zones, and Important Areas for Protection and Management.

Source: J. R. V. Prescott (1983), 'Maritime Jurisdictions', H. F. Olson and l. R. Morgan,'Shipping', and A. White, 'Valuable and Vulnerable Resources', all in Morgan and Valencia, eds., Atlas for Marine Policy in Southeast Asian Seas.

THE LEGAL CONTEXT

The UN Convention on the Law of the Sea (UNCLOS) defines the rights of aliens for different activities in different jurisdictional zones. Internal waters are of two types-those inside straight baselines of normal coastal states, and those within closing base-lines of archipelagic states. 'Innocent passage' is that which is not prejudicial to peace good order, and the security of the coastal state, and it can be suspended if these conditions are violated. A foreign ship is considered to have violated the innocent passage regime of a coastal state if within its territorial sea it engages in any threat or use of force against the sovereignty, territorial integrity, or political independence of the coastal state, or in any other manner violates the principles of international law embodied in the Charter of the United Nations (UN, 1982: Article 19).

There is no innocent passage regime for normal internal waters unless those waters have been delimited by new methods of drawing straight baselines. There are two types of territorial sea-those territorial waters not used for international navigation, in which the regime of innocent passage is applicable, and those waters used for international passage, where the transit passage regime is applicable. An archipelagic state may designate sea lanes and air routes suitable for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea (UN, 1982: Article 53); however, in all other archipelagic waters, the regime of innocent passage remains applicable. All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes and air routes. 'Archipelagic sea lanes passage' means the exercise of the rights of navigation and overflight in the normal mode. The archipelagic state is also obligated to promote the adoption of routeing systems designed to minimize the threat of accidents that might cause pollution of the marine environment, including the coastline, and pollution damage to the related interests of coastal states (UN, 1982: Article 211).

POINTS OF LEGAL CONTENTITON

The UNCLOS text adopts most of the views promoted by the maritime powers, clarifying the right of innocent passage, codifying the rights of transit passage through international straits and of archipelagic sea lanes passage, and protecting navigational rights in the EEZ However, the United States has refused to sign or ratify the UNCLOS. Although UNCLOS is specific about navigational rights and responsibilities, several states in the region have practices or positions on navigation that are not covered by or are counter to UNCLOS provisions. For example, there are no provisions in the UNCLOS or other treaties for air defence and military warning zones. Yet Burma, Thailand, Indonesia, and Taiwan have extensive air defence zones. Burma, India, and Vietnam have also established military warning zones 24 nmi wide, and Kampuchea has declared such zones 12 nmi wide. Alien warships and military aircraft are prohibited from these waters; in the Vietnamese zone, other vessels also must secure permission to traverse these waters (Prescott, 1983: 45), and Vietnam also restricts the access of foreign warships in a 24-nmiwide contiguous zone (Dzurek, 1985). China also disputes the right of innocent passage through its 12-nnli territorial sea, and after 1997 it will require permission for foreign warships to cuter 1 long Kong waters (Far Eastern Economic Review 4 October 1984).

Although the Philippines and Indonesia have ratified UNCLOS, they assert that non-signatories of UNCLOS like the United States do not have the right of transit passage in straits and sea lane passage in archipelagos. Meanwhile, the United States does not recognize territorial sea claims of other countries more than 3 nmi from shore and has stated it will challenge such claims with US Navy ships, including specifically the claims of Burma and the Philippines (Wilson, 1979: 17). The United States has repeatedly made good on its threat, most notably in the Gulf of Sidra, which is claimed as a historic Gulf by Libya. Thailand, Malaysia, and Indonesia claim 12nmi territorial seas, which in some places encompass straits used for international navigation.

The Philippines' territorial sea claim reaches up to 284 nmi in width and includes all its critical straits. Although the Philippines ratified UNCLOS, it did so with reservations (Republic of the Philippines, 1982; Tolentino, 1982; Foz, 1983: I, 14). The Philippines feels that sea lanes denigrate the integrity of the archipelagic concept and the unity of the nation. However, it has agreed to designate two sea lanes through the heart of the archipelago -one extending from the Sibutu passage through Mindoro Strait and the other from the Surigao Strait through the Balabac Strait (Figure 4.7). However, the United States wants a third sea lane, particularly for nuclear submarines-San Bernardino Strait through the Verde Island passage. The Philippines does not want the submarines and other warships passing close by Manila. It feels its case is different from that of Indonesia because it borders the Pacific and its straits are internal to the country and less than nmi wide and so could be declared territorial waters.

It is not only the indigenous and maritime powers that face conflict over the use of sea lanes. The declaration of the archipelagic principle by Indonesia has implications for most of its neighbours. In particular, Peninsular Malaysia is separated from Sarawak and Sabah by Indonesia's baselines enclosing the Natuna Islands. Malaysia and Indonesia have concluded a treaty providing Malaysia with, among others, the right of access and communication for Malaysian ships and aircraft in and over designated sea lanes and traditional fishing rights. However, the treaty provides Indonesia with the right, in the interest of its security, to suspend temporarily the exercise of the right of access by Malaysian ships (Hamzah, 1984).

Environmental Aspects

Environmental degradation and conflicts over diminishing shares of renewable natural resources are now an important cause of violent human conflicts both within and between states (Honolulu Advertiser, 29 November 1984: BI). In South-East Asia, oil is a major pollutant, and the major at-sea source is tankers traversing the region. Eastbound tankers proceeding along the Malacca-Singapore straits-South China Sea route are for the most part loaded with crude petroleum from the Arabian Gulf area bound for East Asia, with some originating in Malaysian west coast ports or Indonesian ports on the north-east coast of Sumatra. South and west-bound traffic either carries refined products or is in ballast.

Figure 4.7 Indonesia and the Philippines: Possible Sea Lanes

The physical restrictions imposed by channel depths of less than 23 m (75 ft) in the straits, and the safety limitation of a 3.5-m under-keel clearance added by the three coastal states. effectively preclude the use of this route by fully laden tankers of more than 200,000 d.w.t. which commonly have a draft of 19 m (62 ft) or more. The alternative route for these Very Large Crude Carriers (VLCCs) is through the deep (150 m) and wide (12.5 nmi minimum) waters of the Lombok and Makassar straits and the Celebes Sea south of Mindanao.

The Malacca-Singapore straits, greatly preferred because of the shorter distance involved, is used by 72 per cent of the eastbound, loaded tankers; the Lombok-Makassar straits by only 28 per cent. At any one time, there would be approximately 51 loaded or returning VLCCs in the region (Olson and Morgan, 1984). This creates a likelihood of 24.5 spills per year averaging 1 000 tonnes each within 50 miles of land and 5.6 spills per year averaging 3 338 tonnes each outside of 50 miles (Hann et al., 1981).

Between 0.35 and 0.50 per cent of a tanker's cargo settles to the bottom of the tank during long sea voyages, and unscrupulous operators discharge this residue into the sea. Approximately 1,000 tons or 300,000 gallons on a single voyage of a 200,000-ton tanker could be discharged into the sea with tank wash water. In South-East Asia this phenomenon results in major concentrations of ballast discharge at each end of the Malacca Strait, in the western Java Sea, west of Madura, off Balikpapan, and off Brunei and Sabah. Also, plumes of tank washings are generated along the two major tanker routes (Figure 4.8).

World-wide between 1978 and 1983, there were 473 reported marine accidents. Of this total, liquefied propane gas (LPG) ships accounted for 224 of the accidents, and specialized tankers accounted for 242 accidents. The accidents involving LPG carriers have been useful in designing better ships, but LNG carriers are still an unknown quantity. Even less is known about nuclear waste carriers, which carry spent nuclear fuel in steel flasks. The major hazard these ships pose is that, in the event of a loss of cooling water, the flasks would heat up and eventually breach the container. If this were to happen in a confined waterway, the ecological results could be catastrophic (Lauriat, 1985).

Figure 4.8 South-East Asia: Ballast and Tank Washings.

Source: R. W. Hann, Jr. et al (1981), 'The Status of Oil Pollution and Oil Pollution Control in the Southeast Asian Region', Texas A&M University, April, p. 182 (Figure 5-25).