Tensions in the South China Sea Series: A Five-Part Series (Part 1)
The South China Sea (SCS) issue is presently one of the hottest flashpoints of the territorial and jurisdictional disputes in this twenty-first century. The area is claimed by China, Taiwan, Vietnam, Malaysia, the Philippines and Brunei. The claims centre mainly on the maritime features in the Spartly and Paracel Islands.
There have been numerous incidents between the claimants in the SCS since the mid of 1970s, including the 1974 Paracel Islands Incidents, the 1988 Johnson Reef incidents, the 1995 Mischief incidents, the 2012 Scarborough Shoal incidents, and the 2014 HSY Oil Rig incident. There were also stand-offs between China and Vietnam in the Vanguard Bank, as well as with Malaysia between the Haiyang Dizhi 8 and MV West Capelle. However, the most obvious action by China that might shaking the stability of the region is China’s reclamation in the SCS.
Another issue is China’s illegal claiming of territories based on historical background. Chinese officials point to maritime documents dating back to dynastic times as support for their claim. Termed the Nine-Dash Lines, these territories were considered to be traditionally China’s fishing grounds.
China Previously Restrained, Accommodating
However, China’s attitude in the region was not always hostile. There was a time when China’s behaviour in the region was described as relatively restrained and accommodating. This attitude was observed between the period after the 1995 Mischief incident to the years of 2007 – 2009, and it contributed to the signing of the Declaration on the Conduct of the Parties in the South China Sea (DOC) in November 2002. China also signed the Treaty of Amenity and Cooperation of ASEAN (TAC) in 2003. These two documents restrained not only China but also other claimant states in making any provocative moves. Moreover, China’s willingness to join the COC negotiations was also China’s assurance towards ASEAN. In short, the SCS experienced a conducive period from the mid of 1990s to 2007 – 2009.
The situation changed due to the stand-off between China and the Philippines in Scarborough Shoal in 2012. This leads to the Philippines seeking legal action at the United Nations Convention of Law of the Sea (UNCLOS) Permanent Court of Arbitration (PCA) Tribunal in 2013.
The External Power – The United States and its ally.
Additionally, the presence of the United States (the US) in the region also plays an important if not an essential role in the SCS. The US presence in the region, according to former US Secretary of State, Hillary Clinton, was merely for maintaining freedom of navigation in the SCS. This principle was announced in the ASEAN Regional Forum (ARF) meeting in Hanoi 2010.
In order to implement this position, the US launched the Freedom of Navigation Operations or FONOPs in the region. These FONOPs are means to enforce UNCLOS by reinforcing freedom of navigation through practice, using ships to sail through all areas of the sea permitted under UNCLOS, including those areas that state(s) have attempted to close off from free navigation. For sure, US FONOPs in the SCS have attracted greater international attention and Chinese anger.
In addition to the US FONOPs, two Indian navy warships and a Vietnamese navy frigate, recently held exercises that started at a port in Vietnam. The exercise is part of the ongoing deployment of Indian Navy ships in the SCS. Also, a Royal Canadian Navy warship joined Australian, Japanese and U.S. naval vessels for a coordinated exercise in January this year. Moreover, ships from Australia, India, Japan and the United States conducted their annual Malabar exercises near Guam recently. All in all, warships from eight countries have passed through or near the SCS since the beginning of this year. Interestingly, those eight countries do not have actual maritime claims to the region. Therefore, this is simply a statement that the US and its allies would like to convey to China.
Despite these developments, in the last 30 years, there was no open war between the navies in the region, as what happened in 1974 and 1988. However, the situation is still regarded as a low-level conflict (or low-level contingency). This may change with the recent situations in the SCS.
For China, activities by the US and its allies are regarded as a foreign interference to a regional issue between ASEAN and China vis-à-vis the SCS. China believes that these actions are beyond the principles of freedom of navigation. For China, it is an act of provocation.
With these foreign navy operations in the area, China fears the dispute is becoming more internationalized. Therefore, China might lose its strategy to discuss sovereignty disputes bilaterally with other Asian states. As we know, China prefers to discuss the issue one-on-one rather than through multilateral mechanism.
To balance the situation, the People’s Liberation Army Navy ships are expected to travel the SCS more often as well as to step up the frequency of its navy exercises. In fact, China already held its naval exercises since January to September 2021. Unsurprisingly, China will react with something comparable to what the US and its allies are doing in the region which might change the situation. China would also bolster its diplomatic protests against the non-Asian naval exercises.
Brunei, Malaysia, the Philippines, Taiwan and Vietnam lay claims in the SCS. Mostly they value the sea for its fisheries, undersea fossil fuel reserves and marine shipping lanes. In fact, all are militarily weaker than China. Out of those countries, Vietnam and the Philippines have spoken out against China’s ship movement and land reclamation at disputed islets.
Without any clear domestic policy on how to “handle” China, these claimant states, for the time being, benefit from the presence of the US and its allies in the region. The Southeast Asian maritime claimants now have some leverage and “protection” from the US, India, Australia, the British and others. They also have the “power” not to engage China bilaterally. This is the reason, for example, why Vietnam might now feel emboldened to step up its drilling for undersea oil and gas exploration. The US actions are certainly offsetting China’s dominance in the region and also counterbalancing or even attacking China’s hegemonic desire in the SCS.
The Non-Claimant: Indonesia
Even though Indonesia is directly bordering the SCS (Indonesia named the sea north of Natuna Island as North Natuna Sea), however, Indonesia has no maritime features claim to the territory. Also, Indonesia persistently rejects China’s claim of the Nine-Dash Line, and secured Indonesia’s Exclusive Economic Zone (EEZ) as defined by UNCLOS 1982, in which China is a signatory to. This position was reinforced by the decision made by the PCA of 12 July 2016 that there are no maritime features that has the right of EEZ and Continental Shelf. In short, there is no overlapping claim between Indonesia and China, therefore, there is no territorial claim issue to be negotiated between the two countries.
In addition, since 1993 to 2020, Indonesia has continuously objected China’s Nine-Dash Lines map by emphasizing that the map clearly lacks international legal basis and is against UNCLOS. Through persistent objections, Indonesia would like to prevent such claim to become an embryonic and systemic claim, that Indonesia is ultimately not bounded to.
Indonesia’s interest in the SCS remains the same, namely, to maintain peace and security in the SCS. As an honest broker to the conflict, Indonesia would like to create an enabling environment to engage dialogue for peaceful dispute resolution in the SCS based on international law – especially UNCLOS. With its Free and Active Foreign Policy, Indonesia calls on all parties to exercise restraint, refrain from escalatory activities and secure Southeast Asia from military activities that could threaten peace and stability.
The Hague PCA Tribunal 2016 and the presence of the US and its allies in the SCS bestow a positive advantage to Vietnam, the Philippines, Malaysia, Brunei Darussalam, Taiwan and even, to Indonesia. But the questions remain: for how long? How long will the US and its allies be in the region? What happened if the US and its allies change their policies on the SCS? What will happen if China withdraws from UNCLOS? What will the claimants’ states do if China declares its Air Defence Identification Zone (ADIZ) in the SCS?
Unlike Indonesia, the other claimants need to define its own strong policy on the SCS and on how to “deal” with the People’s Republic of China, with and without the back-up of other states. Without a clear, strong policy, there is no doubt that those claimants will always be the objects of disputes.
These ASEAN Claimant states, together with Indonesia, need also to push China to adhere to the Declaration of Conduct (DOC) 2002 in order to establish mutual trust as well as commitment to the freedom of navigation and overflight principles. Though the Code of Conduct of the SCS (CoC) is not aimed to settle the territorial disputes, CoC is important in managing the conduct of the states in the region. Thus, ASEAN and China need to quickly finish the formulation of COC.
Additionally, Indonesia also needs to develop its national policy on Natuna Islands, its EEZ and surrounding. The national policy should include, among others, policy on economy activities development, military and non-military law enforcement, the enforcement of maritime sovereign rights in Indonesia’s continental shelf and EEZ, maritime domain awareness policy, as well as developing an effective and strong defence and sovereignty diplomacy. The policy must also send a strong message that Natuna Islands, North Natuna Sea and its EEZ belong to Indonesia.
The view expressed is his own.