Professor of Law, College of Law, University of the Philippines

　

　

 The Introductory Statement takes note that the fundamental problems arising from the human use and abuse of the oceans brought about the universalizing consciousness that the problematique has gone far beyond national borders. The harmonization of national interests has become an objective necessity. Security concerns in the oceans have evolved into common interests of the international community.

　

 In the second part of the paper, The South China Sea Situation points to the territorial claims of the littoral countries over Spratly Islands as the central focus of security problems in the region. The nature of the dispute is a potential for internationalized impact of its disastrous consequences. Its impact on Southeast Asia and Japan is discussed in relation to the integrated nature of the global economy.

　

 The third part of the paper deals with Piracy in the South China Sea. It is noted as a historically persistent phenomenon. Its increasing incidents have transformed it into a problem of international concern.

　

 The fourth part is devoted to Terrorism, taking into account the relevant developments in Islamic fundamentalism in the region.

　

 The fifth part is a presentation of security issues in Philippine waters, in relation to the changes ushered in by the UN Convention on the Law of the Sea. The situations in the South China Sea outlined above are telescoped into Philippine problems, in particular with respect to the delicate aspects of Philippine-China relations concerning the Spratly dispute.

　

 The paper adds some recommendatory notes.

　

　

 Maritime security problems are as old as the sea. What invites focus is their ever-changing dimension and impact in every stage of human development. The oceans are always there in eternal presence; it is the human use and abuse of the oceans that dynamize their crucial vitality in times of crisis.

　

 It is ironic and logical as well that the law of the sea emerged from the maritime conditions of conflict and chaos in the early Middle Age, in which "freedom of the high seas" consisted of victory over pirates and struggle for precarious peace treaties. War or peace on the sea remained a prerogative of princes and potentates. The order of the ocean that began to consolidate in the 17^th century was upon order of the great maritime powers in their imperial and mercantile interests.

　

 The tension between territorial sovereignty and the freedom of the high seas that dominated the development of the law reflected the uneasy power relations among the European maritime powers that were built into their own rules of the game. The essence of that legal relation defined the security arrangements of mutual interests in their imperializing ventures. The regime of the oceans was an extension of their security relations as they established highways across oceans and occupied the lands of the indigenous peoples as terra nullius.

　

 "Up to the end of the eighteenth century", Colombos observes, "there was no part of the seas surrounding Europe free from the claims of proprietary rights of individual Powers, nor were there any seas over which such rights were not exercised in varying degrees".¹ The shifting demarcation line between national sovereignty and freedom of the sea, as dictated by economic and political interests of individual maritime powers, characterized the conceptual assumptions and positive norms of the law of the sea.

　

 The decolonization process that came in the wake of the Second World War multiplied national sovereignties all throughout the global coast, which later on transmitted its impact into the "territorialization" of the oceans that loomed large in the post-war legal trends. In the revolutionizing context of the United Nations Convention on the Law of the Sea, still the essential elements of the historic security problems are telescoped into the main contours of contemporary law.

　

 Given the predominant context of individual national interests, the crises and dilemmas of the human condition generated by the use and abuse of the oceans in the last five decades have universalized the consciousness that the nature of the problematique has gone far beyond national borders and regional formations. It has grown into a civilizational predicament. Its metamorphosis has reached the point where the integration of humanity with the state of the oceans presents a question of its survival. Thus the integration of national interests in the ocean regime becomes an objective necessity for the protection of the ocean. Whose security interests are involved in the problem? The case of the South China Sea, together with the problems in Philippine waters, demonstrates the national and regional interests that become the medium of the integrated wholeness of the globalized security concerns. The fundamentalist approach of the UN Convention on the Law of the Sea that "problems of the ocean space are closely interrelated and need to be considered as a whole" now acquires the necessary implication: the integration of the human condition into the ocean space.

　

 South China Sea is a semi-enclosed sea ringed by the shorelines of China and Taiwan, the Philippines, Indonesia, Malaysia, Singapore, Thailand, Cambodia, and Vietnam. Its circumference consists of ninety percent land and only ten percent water.² It lies in the cross-road of the Indian and Pacific Oceans. (See Figure 1) It provides the critical sea-lanes through which close to half of the world trade passes.³ (See Figure 2) These consist of navigation routes vital not only to regional and intra-regional trade but to the world economy as a whole: "The east-west route connects the Indian and Pacific Oceans, while the north-south route links Australia and New Zealand to Northeast Asia, ...both routes [involving] critical inputs like oil and other natural resources and export of finished goods to the rest of the world".⁴ Shipping in the South China Sea has to pass through three "chokepoints", namely, the Straits of Malacca, Sunda Strait, and the Straits of Lombok and Makassar. ⁵ (See Figure 3) It is estimated that more than 40 percent of trade from Japan, Australia and the ASEAN countries goes through these chokepoints.⁶ More than 15 percent of the world's maritime trade transits through these Straits or by the Spratly Islands. (See Figures 4) A study finds that maritime traffic through the Strait of Malacca alone is much greater than in either Suez or Panama Canals.⁷

　

 Japan has a specially strategic stake in the security concerns over South China Sea. In the entire life-line of Japan for oil from the Persian Gulf, the South China Sea and its chokepoints are the most vulnerable vis-a-vis its "very existence as a major industrial power."⁸ The world energy crisis following the Middle East conflict in 1973 hit Japan the hardest of all the industrial countries. Still, Japan relies on its oil imports by more than 90 percent of its requirements from Gulf sources across the Indian Ocean mainly through the Malacca Strait and across the South China Sea.

　

 Japan has the biggest share of super-tankers (or VLCC, Very Large Crude Carriers) for the carriage of oil from around the Persian Gulf. By the early seventies, about 200 super-tankers were already passing through the Straits of Malacca and Singapore.⁹ Overall, with increasing oil imports in the region, close to "15 percent of the world's supertanker capacity already routinely transits Southeast Asian waters en route from the Gulf, with 1,100 fully-laden supertankers passing eastbound through the Strait of Malacca every year."¹⁰ (See Figures 5.1 and 5.2)

　

 With such strategic centrality, the South China Sea brings the highly integrated world economy into a state of fragile stability, vulnerable to shocks of territorial conflicts, terrorism, piracy, and maritime accidents that may involve environmental disasters. The tension and contingency created by the geopolitical situation in South China Sea are heightened by the globalization of production processes, involving the relocation of various segments of manufacturing a single product to different countries. ¹¹

　

 Japan has taken the lead in worldwide "strategic industrial sourcing" which entails the expansion of its industrial subcontracting system to low-wage developing countries, particularly the ASEAN countries.¹² This trend of industrial relocation is shown, for example, in the results of the survey undertaken by Japan's Ministry of International Trade and Industry in 1993, based on 161 leading Japanese companies representing 20 industrial sectors in Japan. The survey shows that "companies are dealing with the yen's appreciation by increasing their overseas procurement of parts, shifting production bases to offshore locations and promoting reverse imports from their overseas units."¹³

　

 The high degree of integration that has taken place in ASEAN economies through Japan's "strategic industrial sourcing" virtually transforms them into an extension of Japan's industrial system as a subcontracting sphere of interest, a reality requiring continuity of transport and communication facilities. The South China Sea situation may prove to be a critical gap in Japan's strategy in global competitiveness, if not survival. Freedom of navigation and the capability to counter or remove threats to maritime commerce in the sea-lanes of the South China Sea become part of that strategy in a very real sense in which the littoral countries have a vital stake together with the international community.

　

 Inevitably by reason largely of their interests integral to the South China Sea, the littoral countries are interlocked in a complex relationship of cooperation and conflict. The countries in Southeast Asia t astride the South China Sea have been described in a recent policy analysis as "the venue of a conflict that has shaped an entire generation, ... more volatile today than at any time since the Vietnam War .... a troubling landscape of political turbulence and economic fragility".¹⁴

　

 The South China Sea is dotted with islands and group of islands. (Figure 6) Taking the center-stage of potential conflict and security threats is the overlapping territorial claims of the People's Republic of China, Taiwan, the Philippines, Vietnam, Malaysia, and Brunei over Spratly Islands. (See Figures 7 and 8) Experience has demonstrated that the use of military force looms large as a potential trigger to a larger field of conflict; it has been employed in the past¹⁵ and, owing to the fact that the claimants maintain their interests in some parts or all of the Spratly by military presence, armed conflict is likely to be the opening scene and what remains is the question of the scale of the confrontation and the magnitude of the consequences.

　

 The dimension of the conflict extends to the dispute between China and Vietnam over the Paracels, one of the four groups of coral islands in the South China Sea. The armed seizure of the western part of the Paracels by the Chinese navy from the South Vietnamese in January 1974 marked Chinese occupation of the whole archipelago consisting of 30 islets, occupying 15,000 square kilometers.¹⁶

　

 Philippine-Chinese relations continue to be marred by conflicting claims to Scarborough Shoal, only about 120 nautical miles from the western coast of Zambales province, Philippines, but about 473 miles from Hainan, China. In the last decade, Philippine naval patrols have had confrontation with Chinese fishing vessels in the Shoal's vicinity in countless incidents, at times marked by diplomatic protests.

　

 By reason of its military superiority and on account of its extensive territorial claims virtually encompassing the entire expanse of the South China Sea, China becomes a key figure in holding the balance between stabilizing peaceful prospects or increasing tension toward confrontation. But in particular with respect to China, the interconnection of national interests of littoral countries, built into the geostrategic role of the South China Sea, is a compelling force that dictates the elimination of triggering conditions to conflict and strengthening the freedom of passage through the South China Sea.

　

 Although it has its own context, China-Taiwan relation, a potential trigger of military confrontation, has a direct bearing on the security of passage through the Luzon Strait between the South China Sea and the Pacific Ocean, let alone the Taiwan Strait. The peculiar character of this conflict situation lies in the expected military involvement of the United States. Thus the grim prospect of a United States-China standoff on the brink of a major encounter. In this scenario the South China Sea routes of international navigation would come to a dead-end. Its totalizing impact on the role of the South China Sea in the world economy would be disaster no country would ever hope to happen.

　

 Sovereignty claims of littoral countries in the South China Sea are substantiated by exploration and exploitation of living and non-living resources of the sea.

　

 The potential for energy resources in the South China Sea continues to fuel territorial disputes, principally in the Spratly. In 1994, the Chinese Ministry of Geology and Mineral Resources estimated oil equivalent to be 225 billion barrels, either in the Spratly area or in the entire South China Sea.¹⁷ A study conducted in 1995 by Russia's Research Institute of Geology of Foreign Countries indicated an estimate of six billion barrels of oil equivalent, 70 percent of which would be natural gas.¹⁸ Earlier Chinese sources placed resources reserve in Spratly alone at 25 billion cubic meters of natural gas and 105 billion barrels of oil.¹⁹ Phosphorus reserves are said to be about 370,000 tons in Paracels.²⁰

　

 The advent of the United Nations Convention on the Law of the Sea (UNCLOS) has expanded the ocean space that passed into national control or jurisdiction. It has opened the way for the littoral countries to place the resources of the South China Sea under their sovereign rights, and thus intensifying the struggle to strengthen or advance territorial claims towards this objective and creating conditions for boundary disputes.²¹ (See Figures 9.1 and 9.2)

　

 Under the UNCLOS, coastal states gain functional sovereignty over 32 percent of the world oceans. The delimitation of 200 nautical miles from the baseline for the breadth of the exclusive economic zone spells the extension of sovereign rights on the part of the littoral countries to the living resources in the South China Sea.²² To the same extent they push forward their jurisdictional control to such matters as environmental protection and scientific research.²³ For the exploration and exploitation of mineral and other natural resources, the littoral countries enjoy a 200-mile legal continental shelf from the baseline or up to the outer edge of the continental margin.²⁴ They may even claim an extension of continental shelf up to 350 nautical miles.²⁵

　

 A claim to an island in the South China Sea under the UNCLOS carries with it a claim to its maritime zones, namely, a territorial sea not exceeding 12 nautical miles, a contiguous zone not exceeding 24 miles, an exclusive economic zone and continental shelf not more than 200 miles, all measured from the baselines. ²⁶ Even a rock would bring with it a claim to its territorial sea and contiguous zone.²⁷

　

 Very little space may be left of the entire South China Sea outside of the sovereign rights and jurisdictional control of littoral countries (See Figure 10). China's claim alone virtually covers the whole expanse of the Sea. (See Figure 11)

　

 Piracy in the South China Sea has a long history extending back to the 16^th century.²⁸ Into the 21^st century, it has persisted and continues to be a major security problem in the region.

　

 While piracy is recognized as an international concern,²⁹ the present focus of urgency is that piracy incidents are concentrated in the South China Sea and its sea-lanes. The Piracy Reporting Center of the International Maritime Bureau (IMB) has reported that in the first six months of year 2003, there were 234 actual and attempted piracy incidents.³⁰ IMB registers it as the highest since its monitoring facilities were established in 1992.³¹ This is higher than the 171 attacks in the first half of 2002. Indonesia and the Malacca Strait are among the areas in which two-thirds of the incidents occurred, with bulk carriers and oil tankers as the most frequent targets.³² In this latest IMB report, Indonesia remains the "world's most pirate-infested".³³ (See Figure 12)

　

 The shift of piracy focus to South China and East China Seas appears to have emerged in 1992-94.³⁴ In the 1996 IMB report this is noted as a "worsening trend" in Asia-Pacific region. ³⁵ Reported pirate attacks worldwide reached 300, three times the 1991 record, "two-thirds [of which] ... occurred in the Asia-Pacific, with Southeast Asia (especially waters near Indonesia) accounting for the majority of 'piracy attacks". The IMB 2000 report indicates "a 56 percent increase over 1999 and a 450 percent increase since 1991".³⁶ Of the 469 piracy incidents in 2000, 1 19 took place in Indonesian waters or about 25 percent, and 75 in Malacca and Singapore Straits.³⁷ Thus, more than 40 percent of the piracy incidents of the world's total occurred in Southeast Asian waters.

　

 Initiatives in dealing with the piracy problem have not been wanting, highlighting the serious concern not only of the littoral countries of the South China Sea and Japan but of the international shipping as well. From the viewpoint of the international community. despite the hostis humani generis appellation of piracy, its established formula in international law deters a collective operational action. The UNCLOS is of the view that illegal acts constituting piracy are committed "on the high seas" or "in a place outside the jurisdiction of any State".³⁸ On the other hand, a great number of "piracy" incidents take place within the territorial waters of coastal states, a problem complicated by the circumstances of such incidents that do not fit the definitional formula of the UNCLOS . The burden may come back to reliance on national laws with varying content. With particular concern on the conditions in the South China Sea, intergovernmental measures may have to take some organizational form for a concerted and sustained operational program, perhaps of the nature suggested below.