Over the past few years, the South China Sea (SCS) has emerged asa flashpoint for conflict in the Asia-Pacific. Territorial disputes over structures in the Paracel and the Spratly islandshave been difficult to resolve, because SCS users -- including claimant states and extra-regional powers – remain in serious disagreement over sovereign and juridical rights within the critical waterway. This includes vexed questions offreedom of navigation, of over-flight, and the applicability of international laws, most notably the 1982 United Nations Convention on the Law of the Sea (UNCLOS).
China's increasingly assertive moves in the region have been at the centre of all major recent incidents. Chinese law enforcement vessels have conducted frequent patrols in the SCS to interrupt economic activities of Southeast Asian littoral states operating within their exclusive economic zone (EEZ), even driving out Southeast Asian fishermen from their traditional fishing areas. In the face of rising Chinese aggressiveness, the Philippines filed a legal case at an international arbitration court at theHague in 2013. The court made its final award on 12 July 2016, rejecting most of China’s claims, even criticising its land reclamation and artificial island building in the Spratly islands. The ruling was widely viewed to havea profound impact onmaritime disputes settlement procedures in the SCS.
The most recent succession of events began withChina's artificial island building in the SCS. From early 2014, China started a large-scale and fast-paced land reclamation drive in the sevenislands/structures it occupies in the Spratlys. Simultaneously, Beijing began constructing massive infrastructure on the reclaimed islands. By the end of 2015, the total land recovered from the seaswas 20 times as much as that reclaimed by all other claimants (Malaysia, the Philippines, Taiwan, and Vietnam) in the previous four decades. Upon completion of its major work on its artificial islands, Beijing began installing equipment for dual purposes, including helipads, airstrips, surveillance radar, deep-water ports, hospitals, and lighthouses. It also undertook construction of structures to house weapons, missile siloes and warship docks.
Maritime observers regard Beijing's large-scale artificial-island building as a serious challenge to regional security. China may be alone in undertaking maritime reclamation in the SCS, but the scale of its undertaking dwarfs all other attempts by regional states to build infrastructure on the islands they hold in the SCS. The worry for China’s neighbours is that Beijing seems to be making modifications in its islands to turn maritime facilities into bases for the PLA Navy (PLAN) and Air Force (PLA-AF). Apart from expanding the PLA-AF’s reach in Southeast Asia, the surveillance capabilities in the Spratlys would enable thePLA-N to exert operationalinfluence over the SCS, thereby circumscribing freedoms enjoyed by other navies in the region. Regional policymakers believe China’s military outposts in the SC would place Beijing in a position of advantage vis-a-vis other major powers, particularly Japan and the US, which will find it difficult to come to the assistance of smaller Southeast Asian states in any future stand-off with Chinese law enforcement agencies in the SCS.
The island-building activity is intimately related to legal questions surrounding the dispute. For many regional observers, the Permanent Court of Arbitration’s ruling under the Annex VII of the UNCLOSwas as a rebuff to China's legal claim in the SCS.<1>While Beijing rejected the court's decision—adopting a "three no-es" stance (no recognition of the court; no recognition of the award; and no use of the award as a basis for future negotiation) — maritime experts viewed the award as a clear repudiation of Beijing’s maritime posture in the SCS. Yet the Philippines, under newly elected President Duterte, welcomed the award, avoiding any display of triumphalism; Vietnam, for its part, avoided expressing any criticism of China’s position in the SCS.
While Hanoi has been concerned about China’s land reclamation, it chose not to make an official comment on the content of the award. Vietnamese Prime Minister Nguyen XuanPhuc visited Beijing a few weeks after the Tribunal’s verdict, holding talks with his Chinese counterpart, Li Keqiang. As an outcome of that meeting Beijing and Hanoi agreed to hold "sincere and candid exchange of views on maritime issues", "properly manage" their differences over territorial disputes in the South China Sea, and "safeguard stability".<2>
Some Vietnamese scholars are of the view that the court’s ruling is beneficial to conflict management and resolution in the SCS, as it significantly reduces the spatial scope of the territorial disputes. The tribunal’s decision that no structure in the Spratlys is entitled EEZ and that China's nine-dash line has no basis in law significantly settles many disputed principles. Alongside determining the extent of the overlap between EEZs among regional countries, experts say, the decision also facilitates maritime demarcation negotiations. Sovereignty disputes over structures in the SCS can now be negotiated and settled in a separate process. More importantly, the court’s ruling increases the chance for regional countries to find areas for practical cooperation in the SCS.
This does not mean Hanoi is depending entirely on maritime law to address the dispute in the SCS. In the past few years, Vietnam has improved its defence capabilities by purchasing six submarines and a number of surface combatant ships, as well as strengthening security ties with major powers including the US and Japan. Vietnam is even said to have quietly begun dredging work on a reef in the strategic waterway and fortified several islands with mobile rocket artillery launchers capable of striking China's holdings across the vital trade route.<3> While no Vietnamese official statement on this issue has been made, such activity, if indeed any, is incomparable with what China has done in the region in both scale and defensive-offensive nature.
The question, therefore, of how the situation in the SCS will look like in the future remains an issue of concern. Making predictions about the SCS is fraught with risk because future outcomes are likely to be dependent entirely on evolving variables. At the systemic level, the prospect of global security, political and economic trends, and commercial development would have a profound impact on states' foreign policy objectives, priorities, and options, thus influencing their interest and the management of maritime disputes. Some economic research institutions have forecast that the global economy will grow in the coming years, with large economies, namely the US, China, and Japan having positive economic growth rates. Such a scenario would enable these countries to pay more attention to global security issues, including maritime disputes in the SCS.
However, international terrorism, the instability in Syria and Middle East, and continuing migration to Europe could steer Atlantic countries towards issues directly impacting their national security. Some argue that with Brexit and Donald Trump's inward-looking posture, some EU states will turn isolationist, even possibly withdrawing from the Union. This would imply a reduction in commitment to trade and global issues. More importantly, continuing isolationism of the west would worsen uncertainty in other countries about the role of multilateral institutions. China would see these developments as opportunities, jockeying for an advantageous position to settle the maritime disputes in its favour.
At the national level, the coming years will be crucial for the shaping of foreign policy of Southeast Asian states. US projection in the SCS under the Trump administration remains unpredictable, dependent as it is on Trump's own foreign policy prejudices. But changing economic prospects for the US, the role of other influential American politicians, and the behaviour of other states in the SCS are some other factors that will likely define the maritime dynamic. Under the circumstances, it is hard to say if Trump's administration would pursue a stronger position in the SCS in the coming years.
China is also at a crucial juncture in 2017, with the Chinese Communist Party (CCP) scheduled to hold the 19th National Congress. Xi Jinping has made efforts to strengthen his power in the Chinese political system to safeguard his second term in office, but he faces significant domestic economic and political challenges. How China will behave in the SCS in the coming years depends on China's future economic prospects, the Chinese government's assessment of the new challenges and opportunities in the SCS, coordination between different Chinese authorities under Xi Jinping's leadership, and Beijing’s strategic goals and foreign policies.
Going forward, Southeast Asia is likely to continue to experience developments that will affect the situation in the SCS. The most significant one is a radical rebalance in the Philippines' relationship with China. Indications are that President Duterte is attempting a fundamental shift in Manila’s political approach to Beijing, changing it from a hard stance (as previously witnessed under former President Aquino) to a more ‘pragmatic’ and ‘cooperative’ posture. Duterte seems to have downgraded Philippine-US military ties, instead favouring economic cooperation agreements with China.<4> During a recent visit to Beijing, the new president only tangentially touched on SCS issues, instead focusing his energy on securing a fishing agreement around the Scarborough Shoal.<5>
A review of Manila's position in the SCS would have a significant impact on regional development. The Philippines has been a vocal opponent of Chinese maritime policies and is scheduled to take over as ASEAN's rotating Chair, as well as ASEAN's coordinator in Sino-ASEAN relations. Despite doubts that Sino-Philippines ‘springtime’ ties will be long-lasting, growing bilateral warmth between Beijing and Manila could potentially push other Southeast Asian littoral states to follow Manila’s example.<6>
This, in itself, could alter US security policies in Southeast Asia. Under the Obama administration, Washington has adopted strategies in the SCS that have been broadly perceived by Beijing as ways to contain China. Indeed a series of events in the SCS, involving US maritime vessels—including the Impeccableincident in 2009 and USNS Bowditch in 2013 and 2016–have convinced China of America’s attempts to undermine Chinese power and influence in the region.The latest incident occurred on 15 December 2016 when an US Unmanned Underwater Vehicle (UUV) was captured by a Chinese navy ship.<7>
If the US under Trump pursues a ‘peace through strength’ strategy, as is being suggested, Beijing is unlikely to suspend its reclamation activities and island-building in the SCS.<8>If China militarises the islands, by installing heavy weapons as missiles, aircraft, or war-ships, Sino-US ties could be placed at high risk.
Beijing will realise that the reason most Southeast Asian countries adopted moderate positions, was to assuage Chinese indignation at having its stand rejected by the Arbitral Tribunal. YetChina’s rejection of the court's ruling and continuing assertion in the SCS has meant that the fundamental causes of conflict remain unresolved. The key question about the future of the SCS disputes is not whether peace and cooperation will sustain, but when and how new causes for conflicts and tension will arise.Direct armed confrontation between any two states in the SCS might be unlikely, but in the absence of strategic trust, not improbable. As such, any misperception, miscalculation, or misbehaviour at operational level, if not properly managed, could escalate into serious political confrontation at a higher level.
Securing peace and stability in the SCS is in the common interest of all countries in the region, especially littoral states, so that they can pay more attention and invest more resources on economic and social developments.
There are opportunities for regional cooperation in the SCS. To begin with, littoral stakeholders around the SCS haveabundant experience in maritime cooperation. Some outstanding examples include the Sino-Vietnamese border demarcation in the Gulf of Tonkin and bilateral fishery cooperation agreement, the Malaysia-Philippines agreement on turtle protection zone, and the Philippines-Taiwan agreement on maritime law enforcement cooperation. Looking at the global level, a lot of countries have engaged in maritime cooperation in many areas, including joint-development, petroleum exploration cooperation, and fishery cooperation.These cooperation agreements could provide practical lessons to foster cooperation in the SCS.
In addition, regional countries have already reached a number of political agreements and frameworks to exchange views and settle disputes in the SCS. The 2002 Declaration of Conduct of Parties in the South China Sea (DOC) is certainly the most prominent document signed between China and ASEAN in this regard. The DOC sets out basic principlesto regulate conducts of signatoriesin the SCS. Apart from the DOC, China and ASEAN engaged in a number of other security agreements and mechanisms in which the SCS disputes have been discussed, including the ASEAN Plus (ASEAN+), ASEAN Defence Ministerial Meeting Plus (ADMM+), and the ASEAN Regional Forum (ARF). The arbitral award in the legal case between the Philippines and China in the SCS could also be seen as one important reference for future cooperation in the SCS, although the Chinese government has still not officially recognised it.
However, given the challenges and some uncertainties in the future of security in the SCS, it is important for regional countries to have strong political will to foster cooperation and manage differences and disputes in the region. Four principles should be adhered to facilitate cooperation in the SCS. The first principle is the rule of law, which has long been the most important principle in modern international relations, ensuring equality between states. The second principle is self-restraint, which has been well-addressed in the DOC.
The third is a gradual approach.As maritime disputes in the SCS are unlikely to be resolved in theforeseeable future, adopting a graded approach is the most pragmatic strategy. Here countries try to reach preliminary agreements on less sensitive issues, which assist in building confidence, resulting in deeper cooperation on more sensitive issues. Finally, cooperation in the SCS must be inclusive. Certainly, issues concerning bilateral relations, such as territorial disputes over some features in the South China Sea between two countries should be resolved directly and bilaterally between concerned parties. However, the complexity of the disputes requires all stakeholders to be part of the process so that any cooperative agreement reached would be sustained.
SCS cooperation projects could be conducted either at the political or operational level. At the political level, the efforts by China and ASEAN to reach a framework for COC in 2017 appears promising. However, many observers do not have genuine belief in the significance of the COC, given the lack of mutual confidence and the significant divergence of national interests of parties in the SCS.China and Southeast Asian states may also find opportunities to foster cooperation multilaterally or bilaterally. At the operational level, cooperation between maritime law enforcement agencies (MLEAs) is of particular importance as a majority of recent incidents in the SCS have involved the MLEAs. Regional countriesmay work towards producing a certain code of conduct for MLEAs operation and encounter at sea, a CUES-like document as what the Singaporean government proposed.
A third comprehensive way for fostering cooperation in the SCS is the combination of political and operational approaches to repair ties. Traditionally, governments often focus on a top-down approach, which comes from global guidance to regional adoption and local enforcement. However,many efforts in recent years to apply global regulations, laws, and norms into the SCS have not brought about fruitful results. It is the time to think about fostering cooperation in the reverse order:creating norms, rules, and principles at the local level, proposing them to regional governments for adoption, and if successful, then turning them intoglobal norms. Such a scenario, however, would require the evolution of mechanisms to manage disputes in the SCS.
Two potentialareas of cooperation in the SCS are fishery management and confidence-building at the operational level between MLEAs. Fish stock in the SCS has been rapidly depleting as regional countries continue to expand their deep-water fishing fleets, and cooperation to preserve fish resources is urgently needed. Fishery preservation is a non-traditional, less sensitive, and no-lose area for cooperation. In the initial stage, regional countries could establish a joint-study group to conduct research on fishery stock, and total annual fish catch volumes, and make recommendations for coordinated policies between governments. Regional countries could then think of more practical cooperation, such as setting up maritime preservation zones in the SCS to allow fish stock to recover. With regards to MLEAs’ confidence-building at the operational level, littoral states in the SCS could establish a platform for MLEAs to regularly meet so they can better understand each other's role and policy. Personal contacts at the operational level are also important for crisis management should accidents or incidents occur at sea. In the long run, through regular meetings, regional MLEAs would develop a set of basic principles and protocols for cooperation and incident prevention at sea. This document would then be submitted to their countries' respective government agencies for adjustment and adoption.
In short, recent developments in the SCS have presented significant challenges and potential risks for regional security. However, opportunities are still available for states to foster cooperation and manage potential conflicts. Based on the rule of law, self-restraint principle, and inclusiveness and gradual approach, regional countries may strengthen cooperation in such less sensitive issues as fishery preservation and confidence building between maritime law enforcement agencies of littoral states. A successful result would lead to deeper cooperation in more challenging issues in the future.
Mr. Ha Anh Tuan, PhD Candidate, The University of New South Wales, Sydney (South China Sea) Studies, Diplomatic Academy of Vietnam
This article was originally published in GP-ORF's Line in the Waters
<1>China's claims in South China Sea invalid, tribunal rules, in victory for the Philippines, Asia Maritime Reviews, July 12, 2016 http://asiamaritime.net/chinas-claims-in-south-china-sea-invalid-tribunal-rules-in-victory-for-the-philippines/
<2>China, Vietnam to 'properly manage' differences over South China Sea, The Times of India, September 13, 2016 http://timesofindia.indiatimes.com/world/china/China-Vietnam-to-properly-manage-differences-over-South-China-Sea/articleshow/54311854.cms
<3>Vietnam Begins Dredging On South China Sea Reef, NDTV, December 9, 2016 http://www.ndtv.com/world-news/risking-beijings-ire-vietnam-begins-dredging-on-south-china-sea-reef-1635803
<4>PiaRanada, What Duterte accomplished in China, Rappler, October 23, 2016 http://www.rappler.com/nation/150049-duterte-accomplishments-china-visit
<5>Duterte and Xi talked about fishing rights in Scarborough Shoal , Rappler, October 23, 2016 http://www.rappler.com/nation/150052-duterte-brought-up-fishing-rights-china-xi
<6>Will Duterte's 'Springtime' in China-Philippines Relations Prove Short-Lived? Forbes, November 3, 2016 http://www.forbes.com/sites/riskmap/2016/11/03/will-dutertes-springtime-in-china-philippines-relations-prove-short-lived
<7>China Captures a U.S. Navy Drone in the South China Sea, SRATFOR, December 16, 2016 https://www.stratfor.com/sample/snapshots/china-captures-us-navy-drone-south-china-sea
<8>The Trump Doctrine: Peace through Strength, The National Interest, March 31, 2016 nationalinterest.org/feature/the-trump-doctrine-peace-through-strength-15631
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