Since the beginning of July, a major country’s survey ship, escorted by armed maritime vessels, has illegally encroached on Vietnam’s legal exclusive economic zone (EEZ). The Philippines and Malaysia have also faced intimidation from the same power in the most disputed waters of the SCS.
Who is responsible for this situation? Is there any respect for rule of law? Is war the only solution to rising tensions in the SCS?
Before trying to find answers to these questions, we must understand the universally accepted 1982 United Nations Convention on the Law of the Sea (UNCLOS), under which every maritime state is entitled to have a 200-nautical mile EEZ and a 12-nautical mile territorial sea or continental shelf.
With the exception of Taiwan, all the SCS claimants – China, Vietnam, Malaysia, the Philippines and Brunei – have signed the historic UNCLOS maritime treaty and ratified it a long time ago. Indonesia, the de facto leader of ASEAN, has also signed and ratified the treaty. The UNCLOS treaty prohibits the use of force or threat of using force in resolving maritime disputes.
In a clear violation of the rules of the UNCLOS, China claims more than 90 percent of the SCS based on its controversial Nine-Dash Line, which refers to an undefined, vaguely located demarcation line. Its claim, which is also based on so-called ‘historical rights’ not stated in international maritime rules, overlaps with island and maritime claims of Vietnam, the Philippines, Malaysia, Brunei and even Indonesia, a non-claimant state.
All of China’s claims based on the Nine-Dash Line and historical rights were rejected by the Hague-based Permanent Court of Arbitration in a 2016 ruling. But Beijing rejected this and went on to enforce its claim, according to the US, through unilateral, illegal and coercive actions.
China has illegally built artificial islands through reclamation and constructed military facilities on them. It has tried to obstruct fishing activities and the exploitation of natural resources of other claimant states in their legally entitled territories.
Violation of Vietnam’s EEZ
The latest incident, which occurred in the Vanguard Bank, clearly explains the nature of China’s actions. The Vanguard, located in Vietnam’s EEZ, is less than 200 nautical miles from Vietnam’s coast and is 600 nautical miles away from China’s maritime border. But China, based on its Nine-Dash Line, claims that Vanguard is in its EEZ.Vietnam recently gave a contract to Russian state-owned company Rosneft to look for oil and gas in the Vanguard area. In an effort to block Vietnam’s oil exploration, China deployed the survey ship Haiyang Dizhi 8 and several heavily armed coastguard vessels.
Undaunted, Vietnam called for the immediate withdrawal of the Chinese vessels from the Vanguard area.
“Vietnam has had several appropriate diplomatic exchanges requesting immediate withdrawal from Vietnam’s exclusive economic zone,” Vietnam Foreign Ministry spokeswoman Le Thi Thu Hang said in Hanoi recently.
“Vietnam resolutely and persistently protects its sovereign rights by peaceful means on the basis of international laws,” she said.
This is not the first time China has done this. In 2017 and 2018, China forced Vietnam and Spanish oil firm Repsol to cease oil exploration activities in the area.
A Chinese ship recently rammed and sank an anchored Filipino fishing boat in the Recto Bank, 160 kilometers off the Philippine island of Palawan.
Hundreds of Chinese armed maritime vessels regularly and illegally operate in waters surrounding Pagasa Island (Thitu Island), which threatens the activities of local Filipino fishermen.
Manila has also issued a protest over the illegal passage of four Chinese warships and the aircraft carrier Liaoning through Philippine waters.
In May 2019, Chinese coastguard vessels were patrolling around the Luconia Shoals, which lie within the EEZ of Malaysia.
International condemnation
The US has lashed out at China for its provocative and unilateral actions.“China’s reclamation and militarization of disputed outposts in the South China Sea, along with other efforts to assert its unlawful South China Sea maritime claims, including the use of maritime militia to intimidate, coerce and threaten other nations, undermine the peace and security of the region,” US State Department spokesperson Morgan Deann Ortagus told journalists recently in Washington.
Japan, the European Union, France, Germany, the United Kingdom, Canada, Australia and other countries have condemned China’s unilateral actions in the SCS and called for a rules-based order.
The well-respected International Association of Democratic Lawyers (IADL) has also slammed China for violating the legal rights of Vietnam in the Vanguard area.
“This act has clearly violated the sovereignty, sovereign rights and jurisdiction of Vietnam as stated in UNCLOS 1982,” the IADL said in a statement recently.
“IADL requests that China promptly stop violating the sovereignty, sovereign rights and jurisdiction of Vietnam, stop carrying out activities that further complicate the situation and increase tension between related parties and begin to concentrate on building mutual trust to maintain the security, peace and stability in the South China Sea in particular and in the region in general”.
The IADL, established in 1946, is a nongovernmental organization with consultative status before the Economic and Social Council of the United Nations (ECOSOC). It aims to support and uphold international law, more specifically to uphold the goals of the UN Charter to peacefully resolve disputes.
Despite international condemnation, bellicose Beijing has been conducting many illegal, coercive and provocative activities in the SCS. What can ASEAN and the international community do?
The first and foremost thing is to condemn China’s unilateral provocative actions that violate the international law regarding EEZs and continental shelves of SCS claimant countries from Southeast Asia.
The international community must put pressure on China to withdraw immediately its survey ship Haiyang Dizhi 8 and other vessels from Vanguard to reduce tensions. People were initially hopeful when China recently withdrew voluntarily from the Vanguard area. But the survey vessel returned to the exploration site on Aug.15, sending a strong signal that it would stay until the exploration stops.
It is unfortunate that there is no unity on the SCS conundrum among ASEAN states. Indonesia, Vietnam, Malaysia, Brunei and the Philippines must try hard to forge a common perception among ASEAN states. Since ASEAN is a community, there should be solidarity among ASEAN nations on this troubling issue. A united ASEAN should be in the driving seat in all regional initiatives to maintain peace and stability in the region.
Despite its bullying behavior of small states, China is an important partner to ASEAN in many aspects. There is an urgent need for the full implementation of the Declaration on the Conduct of Parties in the South China Sea (DOC) to reduce tensions and avoid conflict.
If there is peace, both ASEAN and China can prosper together. War is not the solution. It may take a long time to find a solution to the SCS disputes, but for the time being, we need an urgent Code of Conduct (COC) for all parties to reduce tensions. It was good that a joint draft of the COC was read by all parties recently, paving way for further negotiations. All we need is a legally binding, effective COC based on the 1982 UNCLOS and other international rules. There should also be freedom of navigation and overflight in SCS waters.
The IADL has asked all the claimants of the SCS, who are also signatories to the UNCLOS, to obey and respect international maritime rules.
“IADL urges related parties to resolve disputes by peaceful means on the basis of international laws to preserve peace, stability and security in the region,” said the IADL in its statement.
If there is no legal supremacy, small and weak parties will always lose and strong parties will benefit. If that happens, outside parties will enter into the fray and tensions will rise. This is not an option. Peace is the priority.
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