The following article was published in the May 2023 issue of the International Review of Contemporary Law, the journal of the IADL.
CURRENT SITUATION IN THE EAST SEA (SOUTH CHINA SEA) AND PROPOSAL ON STRENGTHENING INTERNATIONAL COOPERATION
Dr. Lai Thai Binh*
While countries in the region respond to Covid-19 and the many social and economic consequences, ensuring peace and stability in the South China Sea has become even more important due to its role in connecting continents, fostering international trade and ensuring supply chains are not broken. This will allow the economies of the region to quickly recover from the pandemic and address the legitimate needs of the peoples. However, regional maritime security continues to face many uncertainties such as:
Great power competition continues to intensify, about Taiwan in addition to security challenges posed by the militarization of the South China Sea (SCS).
China-U.S.-Taiwan tension is mounting, particularly as former U.S. House Speaker Nancy Pelosi visited the island in August 2022. China responded by holding military drills surrounding Taiwan and it sent 21 fighter jets into Taiwan’s Air Defense Identification Zone (ADIZ). In addition, the president of Taiwan visited Washington D.C. in March 2023.
It is difficult to know what will happen in the future, but should China opt to ignite an armed conflict, the SCS will become a theater of war. It is in the interests of all parties, SCS states and outsiders, that no escalation occurs and that no war be fought over Taiwan.
In March, 2022, U.S. Indo-Pacific Command (INDOPACOM) Chief Admiral John Aquilino stated that China has fully militarized at least three islands in the SCS, arming them with anti-ship and anti-aircraft missile systems, laser and jamming equipment and fighter jets. In April, China announced the deployment of its 5th-gen J-20 fighter jets for patrol operations in the SCS. Many South China Sea watchers, including Asia Maritime Transparency Initiative (AMTI) and Japan’s Ministry of Defense (MOD), reported that China continues to build up the islands it controls. That means the process will not conclude any time soon. As of now, militarization “only” occurs in the Paracel and some islands in the Spratly, but new projects could soon begin in the Scarborough Shoal or Whitsun Reef, further complicating the situation.
The islands’ strategic location allows China to quickly deploy military/coastguard/militia vessels across the region to exercise its claims. This means that China now has a solid base of operation to exert actual control in the South China Sea and further pressure the littoral states. Thus, there are shared concerns for both Viet Nam and the international community. It particularly impacts Viet Nam since this is not simply a matter of security threats but also a violation of its sovereignty.
China has been the quickest among SCS states at military modernization and, more importantly, it has deployed its modern equipment to the region as mentioned above.
The modernization of other states, though occurring at a slower pace, is nevertheless a matter of concern. Indonesia recently bought 36 F-15s from the United States and 42 Rafaels from France to bolster its air fleet. The Philippines purchased Brahmos supersonic missiles which has anti-ship capability and can be deployed in the SCS.
Although improved defense capability for SCS states is a welcome development, it can also present a disturbing side effect. Defense capability is also offense capability, providing countries with a greater ability to assert their power. This means they will be more willing to employ forces in the service of national interests should push come to shove. An arms race between SCS states should not be ruled out, especially when the presence of outsiders is also increasing, further pushing certain nations to amplify their might.
The Covid-19 pandemic brought about an observable increase in transnational crimes such as smuggling (first, pandemic-related medical material, then later food) as well as illegal drug trading and human trafficking. Piracy and armed robbery of ships, a perennial maritime security challenge in Southeast Asia, remains a problem. In 2021, the Singapore Strait saw a six-year high in incidents, although most of them were not ship-jacking episodes and did not involve serious loss of property or casualties.
China’s grey zone tactic is a newish development in the SCS, serving as a novel way to assert control over the SCS through non-military means. At the forefront of this tactic is China’s massive (300-strong) maritime militia fleet, employed to maintain constant presence in the SCS. It has even created major incidents such as the Scarborough Shoal incident and the recent Whitsun Reef standoff. The whole point of grey zone is to provoke a response from the affected state that would lead to escalation, thus achieving its goal(s) as states stand down for fear of mismanagement.
China has regularly conducted numerous maritime scientific surveys in the SCS within nations’ exclusive economic zones (EEZ) without permission, in violation of international law. In light of this illegality, SCS nations are legally entitled to send law enforcement vessels to engage with Chinese survey ships, but this carries the risk of causing an incident and/or escalation with China. Likewise, China itself can (and has) sent its own law enforcement ships to engage with other’s science vessels that “illegally” operate within “its” waters. Thus, maritime survey in the SCS, though itself not a security matter, nonetheless presents a risk of sparking one.
The region appreciates the cooperation of countries to enhance maritime security. It is anticipated that new forms of international cooperation will help improve the situation.
Many countries expressed their opposition to unilateral actions that complicate the situation and threaten peace, stability, safety and maritime security in the SCS. These include China’s militarization of some structures in the Truong Sa archipelago and the issuance of a fishing ban for more than three months (from May 1) in the South China Sea, including the waters of Viet Nam. In a joint statement after the Germany-India high-level talks, German Chancellor Olaf Scholz and Indian Prime Minister Narendra Modi also affirmed the need to ensure unimpeded trade and freedom of navigation in accordance with international law, especially the 1982 United Nations Convention on the Law of the Sea (UNCLOS), in all seas, including the South China Sea.
A recent study by the U.S. State Department concluded that China’s claims in the SCS have no basis under international law, and found that these claims seriously affect many regulations of international law as enshrined in the 1982 UNCLOS. The State Department said on June 2, 2022 that China’s unilateral fishing ban in the SCS was inconsistent with the 2016 arbitration award and international law. “We urge China to comply with its obligations under international law,” State Department spokesman Ned Price said.
On May 31, 2022, the Philippines sent a diplomatic note to protest China’s unilateral imposition of a fishing ban in the SCS, including the waters within the EEZs of the Philippines and Viet Nam.
In several meetings between national leaders in 2022, press reports indicate that they emphasized the importance of ensuring security, safety and freedom of navigation and overflight in the SCS. They also vowed to resolve disputes by peaceful means, including full respect for diplomatic and legal processes, without the use or threat of use of force, on the basis of international law, especially 1982 UNCLOS; fully, comprehensively and effectively implement the Declaration on the Conduct of Parties in the South China Sea (DOC); and finalize the Code of Conduct in the South China Sea (COC). This demonstrates that the consistency of countries in the SCS continues to increase.
Developments such as the Quad (a diplomatic network between Australia, Japan, India and the U.S.) and AUKUS (the security arrangement linking Australia, the U.S. and the UK) appear to offer new forms of cooperation that will help support the centrality of the Association of Southeast Asian Nations (ASEAN) in promoting comprehensive development in the region. While more thought can be given to how “minilateral” initiatives and multilateral institutions can manage regional disputes or potential conflicts in the long term, economic initiatives and cooperation towards regional development are of equal importance to achieve the same ends. Many people in Viet Nam are highly appreciate of the activities of the United Kingdom, Australia and other countries either on their own or in cooperation with other partners to promote stability and development in the region, including to support the capacity building of regional countries.
However, uncertainties persist. Challenges include the continuous and unusual presence of survey ships operating in the overlapping exclusive economic zones of the various claimants as well as the presence of aircraft in the declared air defence identification zones of other countries. The risk of local conflict remains, complicated by other issues such as piracy, human trafficking, lack of coordination in maritime scientific cooperation, dealing with climate change, and humanitarian assistance and disaster relief.
The actual situation in the South China Sea in general as well as in ensuring maritime security in particular requires countries to continue making great efforts to serve the goal of building a peaceful and secure South China Sea region in compliance with international law and 1982 UNCLOS.
Vietnamese and international scholars have generally agreed on the situation in the SCS in recent years, including China’s maritime behavior, particularly its militarization and unreasonable law enforcement in the sea. The scholars also basically believed that these actions could be prolonged and agreed that it is necessary to further strengthen international cooperation to promote compliance with international law and maintain a rules-based order and peaceful negotiations to resolve disputes.
On the other hand, the scholars may also have differences in assessing the severity of acts at sea, the impact on other countries, and the level of specific responses to those behaviors.
In general, Vietnamese and international scholars believe that states should continue the multi-layer joint efforts we have witnessed recently to maintain regional maritime security. In addition to the need to continue to strengthen cooperation in many fields to simultaneously (i) ensure economic development and (ii) solve traditional maritime security issues, the parties should continue to focus on (iii) promoting the clarification of policies in compliance with international law and contribute to building a rules-based regional maritime order.
* Deputy Director-General, The East Sea (South China Sea) Institute, Diplomatic Academy of Viet Nam
All articles published in the International Review of Contemporary Law reflect only the position of their author and not the position of the journal, nor of the International Association of Democratic Lawyers.