The South China Sea: From a Regional Maritime Dispute to Geo-Strategic Competition 9780367279479, 9780429331480

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The South China Sea

This book explores the very latest developments in the South China Sea maritime dispute. It examines the South China Sea as an arena for geostrategic competition between China and the US and why the dispute is so important for regional and global geopolitics. It outlines the most recent developments in the sea itself and assesses the role of the Association of Southeast Asian Nations (ASEAN) and the current views of the contesting claimants. It considers the position of countries from outside the region, India as well as Japan; surveys military and naval developments; and examines confidence building, preventive diplomacy, and dispute resolution measures. The book concludes by highlighting the points of greatest risk and by discussing how the situation is likely to develop going forward. Leszek Buszynski is an honorary professor with the Strategic and ­Defence Studies Centre at the Australian National University, Canberra, A ­ ustralia. From 1997 to 2010, he was Professor of International Relations in the Graduate School of International Relations at the International University of ­Japan. He has published widely on Asia-Pacific security issues and is co-­editor of the Routledge series on Asia-Pacific Security. His most recent publications include: The Geopolitics of the Western Pacific: China, Japan and the United States, Routledge 2019, and the edited book The South China Sea Maritime Dispute: Political, legal and Regional Perspectives, Routledge 2014. Do Thanh Hai is Senior Fellow and Assistant Director-General of the Bien Dong Institute for Maritime Studies at the Diplomatic Academy of Vietnam (DAV). He obtained his doctorate from the Australian National University and his master’s degree from Erasmus Mundus Global Studies Program. His previous positions include vacation scholar at the University of New South Wales at the Australian Defence Force Academy in Canberra and Deputy Director of the Centre for Political and Security Studies of the DAV’s Institute for Foreign Policy and Strategic Studies in Hanoi. He is the author of the book Vietnam and the South China Sea: Politics, Security and Legality published by Routledge in 2017. He has published articles in The Pacific Review, The ASAN Forum, CSIS PacNet, Journal of International Review (DAV), and a number of news outlets.

Routledge Security in Asia Pacific Series

Series Editors: Leszek Buszynski, Strategic and Defence Studies Centre, the Australian National University, and William Tow, Australian National University.

Security issues have become more prominent in the Asia Pacific region ­because of the presence of global players, rising great powers, and confident middle powers, which intersect in complicated ways. This series puts forward important new work on key security issues in the region. It embraces the roles of the major actors, their defence policies and postures, and their security interaction over the key issues of the region. It includes coverage of the US, China, Japan, Russia, the Koreas, as well as the middle powers of ASEAN and South Asia. It also covers issues relating to environmental and economic security as well as transnational actors and regional groupings. 30 The New US Strategy towards Asia Adapting to the American pivot Edited by William T. Tow and Douglas Stuart 31 Vietnam and the South China Sea Politics, Security and Legality Do Thanh Hai 32 Japan’s Search for Strategic Security Partnerships Edited by Gauri Khandekar and Bart Gaens 33 Geopolitics and the Western Pacific China, Japan and the US Leszek Busznski 34 The South China Sea From a Regional Maritime Dispute to Geo-Strategic Competition Edited by Leszek Buszynski and Do Thanh Hai

For more information about this series, please visit: https://www.routledge.com

The South China Sea From a Regional Maritime Dispute to Geo-Strategic Competition

Edited by Leszek Buszynski and Do Thanh Hai

First published 2020 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2020 selection and editorial matter, Leszek Buszynski and Do Thanh Hai; individual chapters, the contributors The right of Leszek Buszynski and Do Thanh Hai to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record has been requested for this book ISBN: 978-0-367-27947-9 (hbk) ISBN: 978-0-429-33148-0 (ebk) Typeset in Times New Roman by codeMantra

Contents

List of tables Acknowledgements List of contributors Acronyms Maps Introduction: the development of the South China Sea dispute

vii ix xi xvii xxi 1

L E SZ E K BUSZ Y N SK I

1 Four aspects of the crisis in the South China Sea

9

S T E I N T Ø N N E S S ON

2 ASEAN and the South China Sea

24

NGU Y E N H U NG S ON

3 ASEAN, China, and the Code of Conduct

43

CA R LY L E A . T H AY E R

4 China and the South China Sea: continuities and adaptions

60

NONG HONG

5 Vietnam and the South China Sea

77

NGU Y E N T H I T H A N H H A

6 The Philippines–China joint development

93

JAC QU E L I N E JOYC E F. E S PE N I L L A

7 Japan and the South China Sea B ONJ I OH A R A

108

vi Contents 8 The US and the South China Sea

117

PAT R IC K M. C RON I N

9 South China Sea: geopolitical connectedness to the Indian Ocean

137

GU R PR E E T S K H U R A NA

10 European powers and the South China Sea

151

F E L I X H E I DU K

11 International law, force, and coercion in the South China Sea

169

C ON S TA N T I NO S Y I A L L OU R I DE S

12 Military build-up in the South China Sea

182

DE R E K G RO S SM A N

13 Intelligence, surveillance, and reconnaissance in the South China Sea

201

C OL L I N KOH S W E E L E A N

14 US employment of marine unmanned vehicles in the South China Sea

217

R AU L ( PE T E ) PE DROZ O

Conclusion

230

DO THANH HAI

Index

239

Tables

10.1 Major threat perceptions in Europe (selected countries) 158 10.2 Share of EU member states in Southeast Asian arms imports (in millions of US dollars and at constant 1990 prices) 163 13.1 MPRAs of SCS parties 203 13.2 Postulated UAV inventories of SCS parties 206

Acknowledgements

The editors would like to thank the Diplomatic Academy of Vietnam, the Foundation for East Sea Studies, and the Vietnam Lawyers Association for convening the 10th International Conference on The South China Sea: Cooperation for Regional Security and Development in Da Nang in November 2018, upon which the book was based. This is a series of annual conferences which has contributed to greater understanding of the issues and complexity of the South China Sea dispute. They are grateful to the staff of the Diplomatic Academy of Vietnam who worked tirelessly and diligently behind the scenes to ensure the success of the conference and to prepare the papers submitted for eventual publication. A special note of thanks goes to Ms. Nguyen Thuy Anh for her outstanding work in coordinating the event and for her invaluable assistance in the preparation of the manuscript. Finally, the editors also express their sincere gratitude and appreciation to all the contributors for their cooperation and patience during the editorial process. The preparation of conference papers for publication is always a demanding task, but the enthusiasm, patience, and perseverance of the contributors made this task much easier. To them a special thank you. Leszek Buszynski and Do Thanh Hai Canberra and Hanoi, July 2019

Contributors

Patrick M. Cronin holds a new Chair for Asia-Pacific Security at the Hudson Institute, where he is also a senior fellow. Prior to joining Hudson in January 2019, he was the Senior Director of the Asia-Pacific Security Program at the Center for a New American Security (CNAS) in Washington, DC. Previously, he headed the Institute for National Strategic Studies (INSS) at the National Defense University, where he simultaneously oversaw the Center for the Study of Chinese Military Affairs. He has a rich and diverse background in both Asian and Indo-Pacific security and US defence, foreign, and development policy. Prior to leading INSS, he served as the Director of Studies at the London-based International Institute for Strategic Studies (IISS). He was also Senior Vice-President and Director of Research at the Center for Strategic and International Studies (CSIS). He has also served as the third highest-ranking official at the US Agency for International Development (USAID), Director of Research at the US Institute of Peace, and an intelligence officer in the US Navy Reserve. Jacqueline Joyce F. Espenilla  is a professorial lecturer at the University of the Philippines College of Law, where she teaches courses on Public ­International Law, Property Law, and Administrative Law. She received her LLM from Harvard Law School, and her JD and BA from the University of the Philippines. She concurrently serves as a senior researcher at the University of the Philippines Institute for Maritime Affairs and Law of the Sea. She has recently completed research fellowships on maritime security and marine environmental issues in the Southeast Asian region at the United Nations Division for Ocean Affairs and Law of the Sea, Columbia Law School, and the Faculty of Law at the University of Tokyo. Prior to shifting to academia, Jacqueline was a senior attorney at the Department of Justice in the Philippines, as well as a legal consultant to the Asian Development Bank and the United Nations Development Program. Derek Grossman  is a senior defence analyst at the RAND Corporation ­focused on a range of national security policy and Indo-Pacific security issues. He is particularly interested in China’s relationships with

xii Contributors Vietnam, India, Pakistan, Taiwan, Japan, and the Koreas. Grossman has over a decade of experience in the Intelligence Community (IC), where he served as the daily intelligence briefer to the Director of the Defense ­Intelligence Agency (DIA) and the briefer to the Assistant Secretary of Defense for Asian & Pacific Security Affairs at the Pentagon. Prior to DIA, Grossman worked at the National Security Agency (NSA) where he pioneered a new assessment format to enhance NSA’s intelligence support to policy. He also served at the Central Intelligence Agency (CIA) and on the President’s Daily Brief staff. Grossman worked at the Jamestown Foundation as the China Program Manager and editor of China Brief. He previously supported the then-Center for Northeast Asia Policy Studies at the Brookings Institution. Grossman holds an MA from Georgetown University’s School of Foreign Service in US national security policy and received his BA with Honors from the University of Michigan in Political Science and Asian Studies. Nguyen Thi Thanh Ha is currently Vice Secretary-General of the Vietnam Society of International Law, a non-governmental organization comprised of Vietnamese researchers and practitioners in different fields of international law. In 2015 she retired from the Ministry of Foreign ­Affairs where she served for 35 years in the Department of International Law and Treaties. She was appointed General-Director of the Department of International Law and Treaties in 2012 and accredited with the rank of Ambassador in 2013. Felix Heiduk  is a senior associate in the Asia Research Division at the Stiftung Wissenschaft und Politik (German Institute for Foreign and Security Affairs) in Berlin. His main research focus is on international politics and security affairs in Southeast Asia, specifically on interstate and civil conflicts, arms dynamics, civil-military relations, and regional integration. Dr. Heiduk received his PhD in Political Science from the Free University in Berlin. Prior to joining the Stiftung Wissenschaft und Politik, he was a visiting scholar in the Weatherhead Center for International Affairs at Harvard University and taught International Studies at the University of Birmingham. Nong Hong is Executive Director and Senior Fellow of Institute for China-­ America Studies. She holds a PhD from the University of Alberta, Canada, and held a postdoctoral fellowship in the University’s China ­Institute. She was an International Law of the Sea (ITLOS) Nippon fellow for International Dispute Settlement (2008–2009) and Visiting Fellow at the Center of Oceans Law and Policy, University of Virginia (2009), and at the Max Planck Institute for Comparative Public Law and International Law (2007). She is concurrently a research fellow with China Institute, University of Alberta, Canada, and the National Institute for South China Sea Studies, China. Her research takes an interdisciplinary

Contributors  xiii approach to examining international relations and international law, with focus on international relations and comparative politics in general; ocean governance in East Asia and the Arctic; law of the sea; international security, particularly non-traditional security; and international dispute settlement and conflict resolution. Gurpreet S. Khurana  (Captain Indian Navy) is currently the Executive ­Director of National Maritime Foundation (NMF), New Delhi, India. He is Captain and Missile Specialist in the Indian Navy with a PhD in Defence Studies. He is among the rare active-duty military officers who have earned international acclaim as strategic analysts. He is regarded to be the first to use “Indo-Pacific” in an academic publication writing (2007) and has formulated two seminal Doctrinal Documents for the Navy: Indian Maritime Doctrine (2009) and Handbook on Law of Maritime Operations (2013). He has authored two books: Maritime Forces in Pursuit of National Security (2008) and Porthole: Geopolitical, Strategic and Maritime Terms and Concepts (2016). He is currently writing his third book titled India’s Maritime-Security Strategy: Pretext, Context and Subtext. He has also authored more than 60 research papers on geopolitical, strategic, and naval issues and regularly represents India in various events including the East Asian forum (EAS), the Council for Security and Cooperation in Asia Pacific (CSCAP), and the Indian Ocean Regional Association (IORA). Collin Koh Swee Lean  is a research fellow at the Maritime Security Programme of the Institute of Defence and Strategic Studies which is a constituent unit of the S. Rajaratnam School of International Studies, based in Nanyang Technological University, Singapore. He primarily researches on Indo-Asia Pacific naval affairs, focusing on Southeast Asia, and has published a number of op-eds, policy and academic journal ­articles as well as chapters for edited volumes covering those areas. Bonji Ohara graduated from the National Defense Academy of Japan in 1985 and completed a master’s program at the University of Tsukuba in 1998. He became the leading pilot of the 101st flight division, Maritime Self-Defense Force (MSDF), in 1998. He enrolled in the General Course of the National Institute for Defense Studies (NIDS) in 2001. He was stationed in China between 2003 and 2006 as a Naval Attaché and became a chief of the intelligence section, Maritime Staff Office in Ministry of Defense, in 2006. He was Executive Officer of the 21st air squadron, MSDF, in 2008; and Commanding Officer of the squadron the following year. He joined NIDS as a research fellow in 2010 and worked for IHS Jane’s Defence Weekly from 2011 as an analyst and business development manager, and for the Tokyo Foundation as a director of research before assuming the position of Senior Fellow in the Sasakawa Peace Foundation in June 2017.

xiv Contributors Raul (Pete) Pedrozo (Captain US Navy retired) has an LLM (International and Comparative Law) from Georgetown University Law Center and a JD (Law) from the Ohio State University College of Law. He is the Principal Deputy Staff Judge Advocate of the US Indo-Pacific Command. He previously served as Special Assistant to the Under-Secretary of Defense for Policy, Senior Legal Advisor to Commander of the US Pacific Command, and Professor of International Law at the Naval War College. He has lectured extensively at military and civilian academic institutions and participated in numerous multilateral and bilateral negotiations, including the International Maritime Organization, Transnational Organized Crime Convention, International Civil Aviation Organization, and US-PRC Military Maritime Consultative Agreement. He has written extensively on maritime security and South China Sea issues and is the co-author of International Maritime Security Law (Brill/Martinus ­Nijhoff Publishers, 2013) and The Free Sea: The American Fight for Freedom of Navigation (United States Naval Institute, 2018). Nguyen Hung Son obtained a BA degree from the National Economic University of Vietnam, an MSc degree in International Economics from Birmingham University, and a PhD degree in International Relations at the Diplomatic Academy of Vietnam (DAV). He is Acting Director-General of the Institute for the South China Sea (or Bien Dong Institute for Maritime Studies) in the DAV. Prior to this he was Deputy Director-General of the Institute for Strategic Studies in the DAV. His research focused on major power relations, regional security governance particularly in maritime security, and Vietnam’s foreign policy. He served as Minister Counsellor in Vietnam’s Embassy in Ottawa, Canada, and was Second Secretary in Vietnam’s Embassy in Stockholm, Sweden. He also served in the Association of Southeast Asian Nations (ASEAN) department in the Ministry of Foreign Affairs (MOFA), during which period he extensively participated in regional summits, and the processes and issues involving ASEAN. He was a member of Vietnam’s High Level Task Force delegation which negotiated the ASEAN Charter in 2006–2007. He was head of the ASEAN Standing Committee division in MOFA from July 2000 to July 2001. Carlyle A. Thayer is Emeritus Professor and Visiting Fellow of the School of Humanities and Social Sciences at the University of New South Wales at the Australian Defence Force Academy, Canberra. He is also Director of Thayer Consultancy, a small business registered in Australia that provides political analysis of current regional security issues and other research support to selected clients. He was educated at Brown University in the US (1967). He holds an MA in Southeast Asian Studies from Yale (1971) and a PhD in International Relations from the Australian National  University (ANU, 1977). He studied Vietnamese

Contributors  xv at Yale, Cornell, and Southern Illinois universities; Thai at the University of M ­ issouri at Columbia; and Lao at Southern Illinois University, Carbondale. Stein Tønnesson is Research Professor at the Peace Research Institute Oslo (PRIO). During 2011–17 he served as leader of the East Asian Peace program at the University of Uppsala and published “Explaining the East Asian Peace” (NIAS Press 2017). His recent publications on the South China Sea include “The Tonkin Gulf Model of Conflict Resolution” in C.J. Jenner and Tran Trong Thuy, Eds. The South China Sea. Towards Sovereignty Based Conflict or Regional Cooperation? (Cambridge University Press, 2016); “The South China Sea: Law Trumps Power,” Asian Survey 55(3), 2015; and Song Yann-huei, “The Impact of the Law of the Sea Convention on Conflict and Conflict Management in the South China Sea,” Ocean Development & International Law, 44:3 (2013). Constantinos Yiallourides is an Arthur Watts Research Fellow on the International Law of Territorial Disputes at the British Institute of I­ nternational and Comparative Law (BIICL) and Visiting Scholar in International Law and Public Policy at the University of Tokyo, Japan. His research expertise spans a number of international law fields with a particular focus on the law of the sea, the law of territory, environmental and natural resources law, and the peaceful settlement of international disputes more broadly. He has published widely on these areas and has assisted governments, international organizations, and other entities on matters of international law.

Acronyms

A2AD AAS ADIZ ADMM+ AIS AMDA AMM AOR APEC CEO ARF ASBM ASCM ASEAN ASW AT/FP ATT BRI CBM CCG CENTCOM CFSP CHEOS CMI CoC COLREG CSDP CSIS CUES DDG DoC DoD

anti-access/area denial Armed Attack Situation Air Defence Identification Zone ASEAN Defence Ministers Meeting Plus automatic identification system Air and Maritime Domain Awareness Annual Ministerial Meeting Area of Responsibility Asia-Pacific Economic Cooperation Chief Executive Officer (Forum) ASEAN Regional Forum anti-ship ballistic missile anti-ship cruise missile Association of Southeast Asian Nations anti-submarine warfare antiterrorism/force protection Arms Trade Treaty Belt and Road Initiative Confidence Building Measure China Coast Guard US Central Command Common Foreign and Security Policy (EU) China High-resolution Earth Observation System Comite Maritime International Code of Conduct International Regulations for Preventing Collisions at Sea Common Security and Defence Policy (EU) Center for Strategic and International Studies (Washington, DC) Code for Unplanned Encounters at Sea destroyer, guided missile Declaration on the Conduct of the Parties Department of Defense

xviii Acronyms EAS EEAS EEZ EIA EOS EU EXTRA FFG FFL FOIP FoN FONOP FPDA HALE HUMINT ICAO ICJ IHO ILC IMO INDOPACOM IO IOR IORA ISIS ISPS ISR ISRO ITLOS IUU JAXA JDA JMSDF JSDF LACM LAPAN LCS LMS LPD LRPA LST MAD MALE MARPOL MASS

East Asia Summit European External Action Service exclusive economic zone Environmental Impact Assessment earth observation satellite European Union Extended Range Artillery frigate guided missile frigate light Free and Open Indo-Pacific freedom of navigation Freedom of Navigation Operation Five Power Defence Arrangements high-altitude and long-endurance human intelligence International Civil Aviation Organization International Court of Justice International Hydrographic Organization International Law Commission International Maritime Organization Indo-Pacific Command information operation Indian Ocean Region the Indian Ocean Rim Association Islamic State in Iraq and Syria International Ship and Port Facility Security Code intelligence, surveillance, and reconnaissance Indian Space Research Organisation International Tribunal of the Law of the Sea illegal, unreported, and unregulated (fishing) Japan Aerospace Exploration Agency Joint Development Agreement Japanese Maritime Self-Defense Forces Japan Self Defence Forces land-attack cruise missiles Indonesian National Institute of Aeronautics and Space littoral combat ship littoral mission ship landing platform dock Long Range Patrol Aircraft tank landing ship magnetic anomaly medium-altitude and long-endurance Convention for the Prevention of Pollution Maritime Autonomous Surface Ship

Acronyms  xix MCM MFA MLEA MONRE MoU MPRA MUV NASAMS PACOM PAFMM PCA PEDRO PLAAF PLAN PLANMC PMC PoA PRC QSD RECAAP SABIR SAGAR SAM SAR SCS SLOC SNDT SOLAS SOM SSBN SSN STS SUA SUW TAC TCS TOT TSDA UAV UNCLOS UNGA

mine countermeasure Ministry of Foreign Affairs maritime law enforcement agency Ministry of Natural Resources and Environment (Vietnam) Memorandum of Understanding maritime patrol and reconnaissance aircraft marine unmanned vehicle Norwegian advanced SAM system United States’ Pacific Command People’s Armed Forces Maritime Militia Permanent Court of Arbitration Philippine Earth Data Resource Observation People’s Liberation Army Air Force People’s Liberation Army Navy PLAN Marine Corps Post Ministerial Conference Plan of Action (EU-ASEAN) People’s Republic of China Quadrilateral Security Dialogue Regional Cooperation Agreement on Combating Piracy and Armed Robbery Special Airborne Mission Installation and Response Security and Growth for All in the Region surface-to-air missile International Convention on Maritime Search and Rescue South China Sea Sea Lines of Communication Single Draft Negotiating Text International Convention for the Safety of Life at Sea Senior Officials Meeting nuclear-powered ballistic missile submarine nuclear attack submarine Survival Threatening Situation Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation surface warfare Treaty of Amity and Cooperation Time-Critical Strike transfer-of-technology agreements Timor Sea Designated Authority unmanned aerial vehicle United Nations Convention on the Law of the Sea United Nations General Assembly

xx Acronyms USGS USV UUV VCG VFSF VPA WPNS ZoPFF/C

US Geological Survey unmanned surface vehicle unmanned underwater vehicle Vietnam Coast Guard Vietnam Fisheries Surveillance Force Vietnam People’s Army Western Pacific Naval Symposium Zone of Peace, Freedom, Friendship and Cooperation

Maps

Map 1  Claims to the South China Sea. Prepared by the Bien Dong Institute for Maritime Studies (East Sea Institute) at the Diplomatic Academy of Vietnam.

Map 2  China’s nine dash line.

Introduction The development of the South China Sea dispute Leszek Buszynski

The South China Sea has become the focal point of US-China competition in the Western Pacific, but it was not always like this, and neither was it anticipated to develop in this way. Initially, it was a maritime territorial dispute over an outlier sea area whose ownership was not clear and for that reason did not attract much attention. The demarcation of ownership over maritime areas far removed from the coast is very much a modern concept as in the past the seas were generally waterways for the trade and commerce of all. China raised a claim to the Paracel Islands in the late 19th century which was stimulated by French moves in the area. France was then the colonial overlord of what was then known as Indochina and its moves around the Paracels on behalf of Annam gave shape to Chinese maritime claims. First made in relation to the Paracel Islands, those claims were later extended to the Spratly Islands in response to French as well as Japanese activities in the area in the early 20th century. In the 1950s, competing and overlapping claims to the sea area were made by the littoral states in defining maritime rights as an extension of the process of consolidating statehood after war and decolonization. These claims were triggered as the littoral states moved to outline the maritime borders of the territorial state in a sea where none had existed before. The much-discussed U-shaped or nine-dash line (see map one) that was declared by China’s Nationalist government in 1947 expressed that claim to the entire South China Sea though it was unclear exactly what it meant. Later, China insisted on the first discovery of and historical contact with the entire South China Sea in support of its claim without explaining how historical rights would be compatible with the U-shaped line. Vietnam’s claim to both the Paracel and Spratly islands was made in response to China, and also the Philippines that had occupied an area of the South China Sea called Kalayaan or Freedomland, placing troops on features there. Vietnam’s claim was based on first discovery, historical contact, and effective administration, and in many respects mirrored the Chinese claim. Malaysia’s claim to the resources of exclusive economic zones (EEZs) came later as it also occupied features with troops in response to Vietnamese and Philippine activities.

2  Leszek Buszynski Later, as the hydrocarbon reserves of the South China Sea were understood, those claims became more important as sources of revenue and a means of offsetting a dependence on imported energy. Claims to offshore resources were strengthened by the acceptance of the United Nations Convention on the Law of the Sea or UNCLOS III in 1982 which allowed coastal states to claim EEZs up to 370 kms and continental shelves up to 650 kms. UNCLOS contributed to a scramble in the South China Sea as claims to EEZs were made in a limited area where they would confusingly overlap. Exaggerated Chinese estimates of the oil reserves of the area appeared which were well beyond those of the US Geological Survey (USGS). As a latecomer to the area, China was left out; it had claimed the South China Sea in its entirety, though it was unclear exactly where the boundaries of that claim were, only to see that other claimants were able to access the oil and gas resources well before it could. China was prevented from moving into the Spratly Islands to enforce its claim by the presence of the US in South Vietnam at that stage, and later by the Soviet alliance with Vietnam which was signed in 1978. Moreover, China had no maritime capability to mark out its claim to then distant Spratly Islands though it had seized the Western Paracel Islands from South Vietnam in January 1974. This inadequacy was a spur for China to develop the maritime and air capability to claim what it regarded as its rights, but this came much later. Proposals were raised for a resolution of the maritime dispute based on the assumption that it was basically a dispute over non-renewable marine resources in which compromise was possible. If the right formula could be found, the resources could be shared in an equitable way and conflict and tensions could be avoided. The Chinese have consistently called for joint development of the resources there, but little progress has been made in a proposal that seems eminently reasonable. How joint development would work in practice was never explained. The Association of Southeast Asian Nations (ASEAN) observers hoped it meant shelving claims to sovereignty and moving ahead with the joint development of oil and gas reserves to the benefit of all. To the Chinese, it meant shelving disputes but not sovereignty which was Chinese in any case. Hopeful proposals of a maritime regime were raised that would govern the area, which would include an intergovernmental organization that would decide on fishing quotas and oil and gas exploration and production. Yet others argued for a marine park to ensure sustainable fishing rights that would bring the claimants together similar to the Vietnam-China Tonkin Gulf agreement of 2000. This agreement included a demarcation of the territorial waters and the EEZs of the two sides, and an agreement on fishing. If it was possible in the Tonkin Gulf, why not in the wider South China Sea? Optimistic China watchers argued that China had settled its land borders with Burma, Pakistan, Kyrgyzstan, and also Russia, and had even made major concessions in some areas and would do so in the South China Sea. Many observers thought that a resolution of the South China Sea dispute was only a matter of time, and if China’s rights

Introduction  3 were recognized, it would become conciliatory and even generous as it was towards its neighbours in the settlement of its land borders. For several decades the belief was that China’s good neighbour policy towards ASEAN and the region would bring it into an acceptance of multilateralism and the settlement of disputes according to international law. This notion that a resolution was a matter of time and that eventually China and the ASEAN claimants would resolve their claims according to UNCLOS and international law dominated in these decades. It seemed purposeless for China to do otherwise. When China occupied Mischief in 1994 in the Philippine claim area, ASEAN hoped that the good neighbour policy would bear fruit and that China would contribute to peace and stability in the South China Sea. The Mischief Reef event was treated as an aberration and one that could be overlooked in the interest of good relations with China. In relation to China, provocations were to be avoided, and within ASEAN it was thought that maintaining and fostering good relations would be a way of binding China to the status quo. China’s good neighbour policy could be a constraint against similar actions in the South China Sea. This belief continued to shape ASEAN attitudes towards China, and perhaps there was no other way for a group of small and weak states to deal with the situation. The chief means to bind China to the status quo was the proposal for a legally binding Code of Conduct as promoted by the Philippines and Vietnam. Though differences within ASEAN over its geographical scope, application, and legal significance existed, the Code of Conduct was an expression of an ASEAN consensus on how to approach China over the South China Sea issue. China resisted the proposal and found ways of prolonging the negotiations over it but eventually agreed to the Declaration on the Conduct of Parties (DoC) in November 2002. ASEAN members were hopeful that it signified a change of approach within China, that it was willing to enter into a multilateral arrangement with ASEAN after previously insisting on bilateral negotiations with the ASEAN claimants. Much discussion at many conferences took place affirming benign intentions on the part of the Chinese in the expectation that they would enter into multilateral arrangements including a Code of Conduct that would bring stability to the area. What does China want? There has been some confusion about Chinese claims in the South China Sea. Chinese scholars attending conferences reiterate that China’s intention is to claim its “rights” in the South China Sea, but they are at a loss to define those “rights,” where they begin and where they end, and what those “rights” entail. The U-shaped or nine-dash line has been much discussed, but it was unclear whether China claims all the area within this line as its maritime territory, or whether it claims the features within this line and any maritime zones they may be permitted under UNCLOS. The confusion about the significance of the U-shaped line and China’s insistence on it has not been clarified as China also claims historical rights from “ancient times.” Some commentators interpret this as a claim

4  Leszek Buszynski to fishing rights and access to resources to which China would revert in the interests of compromise and adjustment. However, despite those commentators who may want to give China the benefit of the doubt, it comes down to an insistence on full sovereign rights. The difficulty is that despite the distinctions that scholars would like to make in their hopeful search for a resolution of the issue, one that would be fair to the Chinese while taking account of the claims of others, the Chinese Foreign Ministry and related scholars continue to insist on “indisputable sovereignty.” As long as this continues, those efforts remain futile. While the discussions go on, Chinese maritime enforcement vessels and the coast guard continue to act as though China has full sovereignty over wherever they operate. They have confronted the fishing vessels of the ASEAN claimants and their oil exploration vessels claiming that they were operating in “Chinese waters,” yet there was no clear definition of the extent of those waters. The Chinese coast guard seized Scarborough Shoal from the Philippines in 2012, while the ­Foreign Ministry declared “indisputable sovereignty” over it. Chinese vessels stopped and hoisted the flag at James Shoal and anchored off Luconia reef, both well inside the Malaysian claim area. International oil companies and the naval vessels of other countries have been warned to stay out of “Chinese waters.” Evidently, China’s “rights” in the South China Sea are what these maritime enforcement agencies say they are. In recent times, there have been two major developments in the South China Sea: The first was China’s effort to build artificial islands or China’s reclamation projects beginning in December 2013, and the second was the Arbitral Tribunal’s ruling of July 2016. Seven features China had occupied in the Spratlys area were built up from dredged sand facilitating the construction of various structures and runways of up to 3,000 metres on three of them. This has been described as China’s “militarization” of the South China Sea as these structures included radar facilities, aircraft hangars, berthing wharfs for supply vessels, and missile emplacement. The 3,000-metre runways can take the largest aircraft in the Chinese air force including the nuclear strike–capable H-6K bomber. They also allow Chinese J-11B fighter aircraft to fly from Woody Island in the Paracels on rotation to the Spratly Islands, giving China air cover for its activities there. Why did China undertake such a rapid effort to build up these structures? China’s wider regional strategy enters the picture as the South China Sea is linked to China’s wider strategic posture in ways that concern China’s military and navy. Some Chinese surmise that an opportunity was created for the military and navy in particular to implement its plans to build military facilities in the Spratlys when the Philippines appealed to the Arbitral Tribunal under the Law of the Sea in January 2013. The navy has been pressing for a position in the Spratlys as a deployment area for China’s submarine force against Taiwan to prevent it from becoming independent, as protection for the Malacca strait to secure its oil supplies, and to prevent hostile powers such as the US from imposing a blockade on Chinese oil shipments in

Introduction  5 time of conflict. Indeed, the extensive effort to convert those features in the Spratlys into military outposts makes sense from the perspective of rivalry with the US and a fear of American intrusion into what the Chinese regard as a protective zone. Past discussion of the South China Sea focussed on the issues arising from the area itself, somewhat isolated from the rest of the region. However, the area has been integrated into Chinese and American strategies in the Western Pacific in a way that fosters rivalry between them. The Chinese pointed to hostile intentions on the part of the US and its “interference” in the South China Sea, but the US had little interest in the area until China began pressing the ASEAN claimants, Vietnam and the Philippines in particular, who appealed to Secretary of State Hillary Clinton. The US became involved in the South China Sea when Hillary Clinton took a stand at the ASEAN Regional Forum in 2010 and expressed America’s interest in a legal resolution of the issue. What motivated US involvement? Perhaps the most important reason at that stage was the concern that America would lose influence within ASEAN and the region if it did not take a stand on the legality of the issue and that China would develop influence over ASEAN and displace it from the region. The US insisted on UNCLOS and international law as a basis for the resolution of the dispute. Moreover, US Freedom of Navigation Operations (FONOPs) which China regards as threatening to its position began in October 2015, well after the construction of these military facilities in the Spratly Islands was under way. Chinese pressure in the South China Sea drew in the previously indifferent US which responded to what it saw as a threat to an international waterway, and also to America’s role and position in Southeast Asia. The US was concerned that Chinese dominance of the South China Sea would enhance the bandwagoning effect with China whereby the regional states would gravitate towards Beijing in the belief of China’s inevitable rise and America’s decline. China has not just responded to American actions as Beijing claims, but it has its own agenda in the South China Sea which has brought in the US. China’s construction of these military facilities in the Spratly Islands points to the transformation of the South China Sea from what was previously a regional maritime issue where the issues were mainly between ASEAN and China into strategic rivalry between China and the US. In terms of this rivalry, Western military observers tend to dismiss the significance of these Chinese structures, claiming that in any conflict with the US they would be quickly destroyed. This assessment misses the point. A general war with the US is an unlikely prospect in any case, and if this is the only way the Americans can dislodge the Chinese from the South China Sea, then the Chinese position is protected by the fear of escalation to a wider conflict. Below the threshold of general war, China can exploit the positional and political benefits of its military facilities, particularly in relation to ASEAN. With these structures and military facilities China can claim clear military superiority over the ASEAN claimants and is able to

6  Leszek Buszynski bring military power directly to their doorstep. The narrative of China’s inevitable rise is strengthened, and Beijing is better able to swing ASEAN to its side and to intimidate the ASEAN claimants individually into accepting its position and sovereignty over the area. Already, China has played on the bandwagoning effect with President R ­ odrigo Duterte of the Philippines who seems convinced that China is the way of the future, and the Philippines had better come to terms with it and strike the best deal possible. China is also able to give greater force to its insistence that it be accepted as an external member of ASEAN, with consultation rights in the negotiation of the Code of Conduct and other issues that may affect it. The second major development was the ruling by the Arbitral Tribunal of the Law of the Sea in July 2016. This was the first time that an authoritative body constituted under the Law of the Sea has ruled on the issue, and its conclusions were unexpected for many, and for the Chinese outrageous. The Tribunal ruled that China’s nine-dash line had no legal basis, and claims to historical rights were extinguished when China signed on to UNCLOS. The sheer audacity of the ruling deprived China of legal support and undermined China’s confident belief that international law was behind it or would defer to its position over this issue. Outraged Chinese officials repudiated the ruling, sometimes with an invective that bordered on rancour. Nonetheless, the ruling had two effects. One was that the hopeful proposals based on a legal resolution that had occupied conferences in the past were made irrelevant while China insisted on this attitude towards the ruling. These proposals called for a comprehensive legal system based on UNCLOS, and they assumed that the claimants would bring their claims into conformity with the Law of the Sea. Some Chinese scholars have claimed that the immediate trigger for China’s construction program in the Spratly Islands which began in December 2013 was the Philippine appeal to the Arbitral Tribunal in January the same year. If this was the case, it indicates that Beijing recognized its weak position in international law in view of the lack of clarification of its claim and its distrust of third-party dispute resolution. The proposals for a legal resolution assumed China’s compliance with law and the dispute resolution process in UNCLOS, and proved infeasible when put to the test. Without China’s compliance, no such proposal can be implemented. Deprived of legality, China began to rely on power, and in some instances, intimidation of the regional states in the expectation that they would fall in line with its intentions and accept its position and eventually its sovereignty in the South China Sea. China’s moves in the South China Sea have involved the US more deeply as it contests Beijing’s claims and attempts to obstruct its growing influence. Both the Obama and Trump administrations have resorted to periodic FONOPs which were intended to prevent it from making excessive maritime claims that would impede international traffic in the area and to prevent it from being turned into a Chinese-controlled sea. The US acts to preserve its role and position in the Western Pacific and to protect the

Introduction  7 liberal order that it has sponsored since the Pacific War. America fears that Chinese dominance in the area would bring about a very different order in which the regional states including ASEAN would be oriented to China. It would also entail loss of credibility at a time when the US is regarded as a declining power, undermining its positions elsewhere including Taiwan and the K ­ orean Peninsula. US-China strategic rivalry will shape the future orientation of the wider Asia Pacific and now Indo Pacific region which is inextricably bound to the South China Sea. Japan has become involved and has been alarmed that China would block the sea lanes of the area to force it to make concessions in the Senkaku–Diaoyu Islands dispute or to hold it to ransom over other disputes. Japan has developed security ties with the littoral states, Vietnam in particular, and has provided patrol vessels to it as well as to the Philippines. The US has pressed for Japanese and also Australian participation in FONOPs, but these two countries have resisted though their navies have sailed through the South China Sea as a demonstration of their concern. Both the US and Japan have reached out to India, widening the area of security cooperation in the Indo Pacific concept; trilateral security cooperation has been promoted, though India has been hesitant about becoming entangled in this issue. This strategic rivalry imposes a severe constraint on China’s relations with ASEAN. Whatever adjustments Beijing may consider to its negotiating position in the South China Sea to influence the grouping, they are blocked by the need to secure its military position in the area against the US. The accommodation that ASEAN has hoped for in the South China Sea is prevented by this rivalry which threatens an indecisive outcome to the long and protracted negotiations over the Code of Conduct. It means that ASEAN as an actor in this dispute has been relegated to the sidelines as the real issue relates to China-US-Japan relations. ASEAN as a grouping may devise proposals to ease tensions in the dispute or to work towards a resolution of the issue, but they become irrelevant while this wider contest continues. ASEAN, indeed, is placed in a difficult position as it attempts to maintain autonomy of purpose to avoid being swept into the current of China-US rivalry which could fragment it. Maintaining unity is ASEAN’s prime goal in these trying conditions between the claimants who want the organization’s support and those members who regard the issue as an obstacle to better relations with China. Unity, however, demands autonomy to be effective, and until ASEAN is able to demonstrate autonomy, its unity will be a fragile one. For this reason, the effective implementation of a Code of Conduct, one that would not be emasculated in the course of negotiations with China, is important for ASEAN as a means of maintaining unity and demonstrating autonomy. The papers presented to the 10th International Conference on the South China Sea hosted by the Diplomatic Academy of Vietnam (DAV) in ­November 2018 have reflected this transformation of the South China Sea dispute. The conversion of what was a regional dispute involving China and

8  Leszek Buszynski the ASEAN claimants to a strategic contest between China, the US, and also Japan was the subject of much discussion. In previous years, conference discussions were about the legality of the claims of Chinese, Vietnamese, as well as those of the ASEAN claimants, and how UNCLOS could be applied. There were papers presented on dispute resolution, resource, and fisheries management which were indicative of issues left unresolved in which hopes were raised for the future. This time, the discussion shifted towards the strategic contest that has developed and its impact upon the South China Sea, ASEAN, and the individual claimants. There was discussion about what some regarded as China’s intention to dominate the South China Sea and to rival the US maritime power, about America’s credibility under the Trump Administration and its willingness to stay the course in the South China Sea, about the future of its alliance system, and the concerns of external powers such as Japan, India, and the EU. There was also discussion about the erosion of UNCLOS and international law in view of China’s rejection of the Arbitral Tribunal’s ruling and the failure of multilateralism to offer a path out of this dispute after so many hopes had been invested in its success. These papers have been updated and included in this volume which has been divided into three sections: The first is the overview of the evolution of the dispute, the second section includes regional and country perspectives, and the third section includes papers relating to the strategic contest between China and the US as it impacts upon the South China Sea. Included in this section are topics that rarely appeared in previous conferences on the South China Sea but which reflect the direction in which the dispute has developed. Included are chapters on the military build-up in the area, the use of marine unmanned vehicles (MUVs), and intelligence, surveillance, and reconnaissance (ISR), as well as what international law says about the resort to force.

1 Four aspects of the crisis in the South China Sea Stein Tønnesson

Introduction In the South China Sea, the period since 2009 has been tumultuous. It may be counted as the eighth crisis in the modern history of this contested, semi-enclosed sea. The first crisis occurred in 1909, when Japan occupied Pratas Island (Zhongsha). This provoked strong reactions in China leading to the production of modern-style sovereignty claims to Pratas and the Paracels.1 The second came in 1931, when France claimed sovereignty over the Paracels on behalf of its protectorate Annam (Vietnam), and in 1933 claimed sovereignty over nine islands in the Spratlys on behalf of itself. After the outbreak of the Sino-Japanese war and Japan’s occupation of Hainan in 1939, Japan established a presence both in the Paracels and Spratlys, leading to a Franco-Japanese condominium there during 1940–1945. In January 1947, the third crisis occurred as a standoff between French and Chinese expeditionary forces at Woody Island in the northern Paracels. The French backed off and settled for a division into a Franco-Vietnamese domain in the south (the Crescent group) and a Chinese in the north (the Amphitrite Group).2 The fourth came in 1956, when Thomas Cloma, a Philippines citizen, claimed much of the Spratlys as a Philippine Freedomland (Kalayaan). This provoked protests and countermoves from other claimants. The People’s Republic of China (PRC) established a permanent presence in the northern Paracels. The Republic of China (Taiwan) established a permanent presence in Itu Aba (Taiping Dao), the largest of the Spratly Islands, and South Vietnam took over the French installations in the southern Paracels (the Crescent group). The fifth crisis took place in 1973–1974, when oil had been discovered off the coast of Vietnam and the UN opened its Third Convention on the Law of the Sea, UNCLOS III (1973–1982). This prompted a global race among coastal states to declare vast fishing zones, territorial seas, and continental shelfs. In January 1974, China took the Crescent group in the Paracels by force from South Vietnam. This prompted South Vietnam and the Philippines to quickly occupy a number of islands in the Spratlys. The sixth crisis followed in 1987–1988, when the PRC established itself on reefs in the

10  Stein Tønnesson Spratly area, and in March 1988 engaged in a firefight with Vietnamese forces when occupying Johnson Reef. The seventh crisis began in 1995, this time pitting China against the Philippines. Manila discovered that China was building installations on Mischief Reef, a low-tide elevation on the Philippines’ continental shelf. ASEAN backed up the Philippines’ protests. China maintained its presence but applied a policy of reassuring its Southeast Asian neighbours through a “good neighbour policy.” In 1999, after lengthy negotiations, China and Vietnam signed a land border treaty, and in the following year they concluded a treaty on the delimitation of maritime zones in the Tonkin Gulf. In spite of its construction work on Mischief Reef, China gained much goodwill in Southeast Asia at the time. After the adoption of a China-ASEAN Declaration on the Conduct of Parties (DoC) in 2002, the South China Sea remained calm for six years. No new important initiatives were taken in either the direction of conflict or conflict resolution. The parties had agreed that they would proceed to negotiate a Code of Conduct (CoC), but although talks were held, little progress was made. The only result was a draft guideline for implementation of the DoC (formally adopted only in 2011). In the 2000s, the rest of the world more or less forgot about the South China Sea, and the claimant states lost an opportunity to resolve their differences. Something changed in 2009, ushering in the eighth crisis, which is still with us. The successful Beijing Olympics of the previous year had boosted China’s self-confidence. So did the global financial crisis, which mainly hit the West. Suddenly the global media realized that China was on its way to bypass the US as the world’s largest economy. Western worries over China’s growing power motivated President Barack Obama to launch a “pivot” to Asia, which was largely diplomatic and rhetorical, although it also included some reorganization of US military deployments. One US aim was to bolster faith in US leadership among China’s neighbour states. A key reason why the new crisis became focussed on the South China Sea was the UN deadline on 13 May 2009 for submitting information concerning the outer limits of national continental shelves beyond 200 nautical miles. Vietnam and Malaysia made a joint submission for the southern part of the South China Sea, and Vietnam made a separate submission for the northern part. Such information amounts in fact to claims for sovereign rights to the resources under the seabed. The joint submission by Vietnam and Malaysia led to protests from China and the Philippines, who did not make any submissions of their own for the South China Sea. Together with its protest letter, China for the first time submitted its map with a U-shaped line to the UN. The map seemed to indicate that China claimed 80%–90% of the South China Sea as “maritime territory.” This appalled the Southeast Asian claimants and led them to welcome US Secretary of State Hillary Clinton’s statement at the ASEAN Regional Forum (ARF) in Hanoi 2010 that the US, although it did not have any opinion on sovereignty disputes, was directly interested in three issues: the freedom of navigation, no use of

Four aspects of the crisis in the South China Sea  11 force, and respect for the principle of defining maritime zones on the basis on distance from coasts, not on historic rights. This statement was popular in Southeast Asia but did not go down well in China.

Increased tension and militarisation The crisis in the South China Sea since 2009 has been characterized by many clashes between maritime surveillance vessels and fishing boats, the cutting of seismic cables from oil exploration vessels, and diplomatic quarrels at summits of various kinds. The most serious incidents between the South China Sea claimants were the following: •

•

•

•

May–June 2011: A clash occurred on 26 May between a Vietnamese seismic survey ship and three Chinese maritime surveillance vessels some 120 kilometres off the coast of Vietnam. On 29 and 31 May and again on 9 June, another seismic survey ship had its seismic cables cut. Vietnam went public with its protests. April 2012: A Philippines naval ship intervened to prevent the use of illegal fishing methods at Scarborough Shoal, which was considered to be under the Philippines control. China sent two maritime surveillance vessels who engaged in a standoff with the Philippines naval ship. When the typhoon season approached, the Philippines struck a deal with China to institute a joint fishing ban and have both sides withdraw. Soon after the Chinese were back. They closed off the lagoon and have remained there since. This prompted the Philippines to seek compulsory international arbitration between itself and China under Chapter VII of the Law of the Sea Convention (UNCLOS), leading to the establishment of an Arbitral Tribunal. March 2014: A Chinese deep-sea drilling platform was towed to a location south of the Paracels, within Vietnam’s claimed exclusive economic zone (EEZ) and continental shelf. Vietnam sent fishing boats and coast guard vessels to disrupt the platform’s drilling while Vietnamese activists carried out demonstrations against Chinese and other ­foreign-owned companies in Vietnam. The demonstrations soon turned violent, with several people killed. China assembled an armada of fishing boats and coast guard vessels to ward off the Vietnamese maritime force. Talks were held, and China declared the mission fulfilled, so the platform could leave the area ahead of plan. July 2017: During a visit to Hanoi by General Fan Chanlong, Vice Chair of China’s Central Military Commission, he allegedly threatened Vietnam with using force to take over the islands Vietnam occupies in the Spratlys if Vietnam did not interrupt ongoing gas exploration activities in a part of the Nam Con Son basin. This is an area that Vietnam has good reason to consider part of its continental shelf. The exploration was reportedly suspended.

12  Stein Tønnesson During 2015–2017, when China reclaimed land and constructed military facilities on the seven Spratly features Subi Reef, Mischief Reef, Johnson Reef, Hughes Reef, Gaven Reef, Fiery Cross Reef, and Cuarteron Reef,3 no one did anything to prevent it, so the construction did not provoke any incidents, just protests. Although China’s behaviour in the South China Sea during the crisis since 2009 has been assertive, it is noticeable that China shows some restraint. It pursues a strategy seeking to constantly advance its military presence without giving up any of its legal claims. At the same time, it avoids armed clashes. China seems to manage its relations with the Southeast Asian states as well as the US in ways allowing it to maximize power while avoiding confrontation. In those instances where a clash could escalate, China deploys multiple armed fishing boats and coastguard vessels to the frontline and overwhelms its adversaries. Water cannons are used instead of firearms, and the navy stays at a distance. This serves to prevent US intervention and ward off any claim that China violates the UN Charter’s prohibition against aggression. In the last two decades, China has made a huge leap in its power projection capability. It has constructed and deployed a great number of naval ships and submarines, backed up by land-based precision-guided missiles and by an increasing number of fighter aircraft. At the same time, it has built heavily armed maritime surveillance vessels. In addition, China has expanded its use of maritime auxiliary forces: Armed fishing vessels with crews trained to double as fishermen and paid militias. Although other powers have also increased their capabilities, the combined build-up by the ASEAN member states is dwarfed by the growth in China’s capabilities. Although Vietnam, Malaysia, the Philippines, and Taiwan occupy all those islands in the Spratlys that are bigger than a tiny rock or reef, and have undertaken measures to strengthen their military presence and installations on these islands, China has dominated the recent militarization with its land reclamation and deployment of weapons. At first China declared that its aims were purely civilian, and that no militarization would occur. Yet it has since constructed airfields and hangars, which are used by military aircraft, has installed radar and other surveillance systems, and has deployed cruise missiles and anti-aircraft missiles on Fiery Cross Reef, Subi Reef, and Mischief Reef in the Spratlys, as well as in the Paracels, which is now a forward Chinese military base. This allows China to keep a constant military presence on both sides of the sea lanes through the South China Sea.

A divided ASEAN China’s new power projection capabilities cannot but have an effect on the Southeast Asian governments, who may at some point be forced to choose between compliance with China’s demands and efforts to balance against it. Policies pointing in both of these directions are already evident. Yet, as is widely recognized, most of the Southeast Asian governments seek to hedge

Four aspects of the crisis in the South China Sea  13 against threats by moving closer to China, the US, Japan, and India—all at the same time. While Brunei, Malaysia, and Vietnam have been consistent in their hedging policies, the Philippines has been vacillating between a pro-Chinese and a pro-American stance, while Indonesia keeps a certain distance from both China and the US.4 In 1998, there was already disagreement among the ASEAN member states over whether or not to back up the Philippines’ protests against China’s construction work on Mischief Reef. Malaysia, in particular, was keen to not alienate China. In the following years, ASEAN was able to agree with China on a DoC. It was signed in 2002 and calmed the waters for several years. Since 2009, when the current crisis began, ASEAN has been divided between those that claim islands or maritime zones in the South China Sea (the Philippines, Brunei, Malaysia, Vietnam, and Indonesia) and those that do not (Cambodia, Laos, Myanmar, Thailand), with Singapore in a mediating role. The division came out in the open in July 2012 at an ASEAN Foreign Ministers meeting in Phnom Penh, when Cambodia refused to agree to a statement that could be seen as critical of China. Since then, at every ASEAN meeting, there have been difficulties whenever the Philippines or Vietnam has tried to get the other ASEAN members to back it up vis-à-vis China. The divisions did not, however, prevent ASEAN from agreeing with China on a Framework for a CoC in August 2017, and a “single draft” in August 2018 (a compilation of often contradictory proposals from the various states), which will hopefully form the basis for a treaty at some point in the future. Which are the main factors determining the position taken by the ten ASEAN member states? The first and most important is their own maritime interests: As mentioned, the Philippines, Brunei, Malaysia, and Vietnam are directly engaged in the disputes, the Philippines and Vietnam at the frontline, Brunei and Malaysia a little behind, and Indonesia further back. All of them have an active interest in seeing UNCLOS being loyally applied. ­Myanmar and the landlocked Laos have little such interest, since they cannot make maritime claims in the South China Sea. They are, however, heavily exposed to China’s influence over land, and may see a need for ASEAN to back up their independence, should disputes evolve with the big northern neighbour. Thailand does not share a border with China and has no claims in the South China Sea. In the Gulf of Thailand, it has resolved its disputes with Malaysia and Vietnam, but has an unresolved dispute with Cambodia. Cambodia has interests at sea that tend to converge with China’s. It feels disadvantaged by UNCLOS, which gives it a very small EEZ since the Thai and Vietnamese coasts and coastal islands creep in from both sides to reduce the length and weight of Cambodia’s relevant coast line. Cambodia needs a settlement that takes greater account of equity and precolonial ­h istory—just like China. Any Cambodian government is therefore likely to seek China’s help to get something better than what Thailand, Vietnam, and UNCLOS have to offer. This makes it understandable that Cambodia has been the least inclined to back up Vietnam and the Philippines. Laos,

14  Stein Tønnesson Myanmar, and Thailand navigate between a desire to contribute to ASEAN solidarity and a need to accommodate China. Singapore is special. With its minuscule coast, huge harbour, and a foreign trade that exceeds its GDP, it is strongly interested in the freedom of navigation. This makes it a natural US ally and a determined supporter of UNCLOS. On the other hand, its huge investments in and trade with China, and also its domestic dependence on co-operation among the ethnic Chinese, Malay, and Indian communities draw Singapore in the direction of seeking stability and cooperation among the world’s major powers. Any rift between China on the one hand and the “Indo-Pacific” countries on the other—would threaten Singapore’s cohesion, security, and prosperity. The odd nation out in ASEAN is the Philippines, with its unpredictable political system, its heritage as a former US colony, and its influential ethnic Chinese business community. One presidential administration (Gloria Macapagal Arroyo) signed up in 2004 on a Joint Marine Seismic Undertaking (JMSU) with China (and Vietnam) in an area that was mostly on the Philippines’ own continental shelf. Then the JMSU was accused of being unconstitutional and gave rise to a political scandal so the agreement fell by the wayside. The next administration (Benigno Aquino III) went to a legal attack on China by requesting the setup of an Arbitral Tribunal—and won. Then the win was more or less annulled by Rodrigo Duterte, who moved closer to China in the hope of getting aid and investments. Manila has since talked with Beijing about joint development of gas on the Philippines’ continental shelf—without any prior recognition of the Philippines’ sovereign rights. As the leading country in ASEAN, Indonesia has long sought to facilitate consultation processes among the claimants (including Taiwan). Indonesia does not have any stakes in the sovereignty disputes over the Spratlys, Paracels, or Scarborough Shoal, but it has become directly involved in the dispute over China’s U-shaped line since Chinese maritime surveillance vessels have protected Chinese fishing boats from Indonesian fishing patrol ships in the outermost southwest corner of that line, where it overlaps with ­Indonesia’s EEZ derived from Natuna. Still, as noted by David Shambaugh, Indonesia may also be described as an “outlier” in ASEAN, since it does not seek any closer ties with either the US or China but rather keeps a distance from both.5

Two opposite legal standpoints For China it is worrisome to see how the rest of the world is ganging up against its attempt to regain what it perceives as its lost maritime territory. All Chinese learn at school that it belongs to China. The idea that all the South China Sea islands are Chinese was conceived in the government of the Republic of China during the 1930s. It found its expression in the first publication of a map with the U-shaped line in 1948, was taken up by the

Four aspects of the crisis in the South China Sea  15 PRC after its foundation in 1949, and expanded in the 1960s–1970s to include not just the islands but the waters and seabed as well.6 Today it has become virtually impossible for anyone in China to see a map of the country that does not include the U-shaped line. From the Chinese perspective things got worse in July 2016, when the Arbitral Tribunal in the Philippines versus China case decided against China on a number of essential points. This contributed to crystallizing two opposite views of international law, one held by China, the other by the Southeast Asian claimants and the Arbitral Tribunal, whose award is legally binding. The ASEAN claimant states have converged around the view that (1) the Spratlys are not an archipelagic unit but a number of individual islands, low-tide elevations, and submerged reefs; (2) none of the Spratly Islands can sustain human life or an economic life of their own, and thus do not satisfy the conditions set in UNCLOS 121.3 for generating an EEZ and continental shelf; and (3) China cannot claim historic rights within its U-shaped line. In the 1970s, when Vietnam, the Philippines, and Malaysia seized most of the Spratly Islands, they were open to the possibility that these islands might generate an EEZ and continental shelf—in an area where there could be huge amounts of oil. The prospect of gaining an EEZ constituted a key reason why it was seen as important to possess those islands and prevent others from taking them. However, as China’s power grew and the prospect of losing the islands to China became more and more likely, the Southeast Asian claimants realized the advantage of reducing the disputable waters to just the territorial seas around each island. This makes one of the world’s most complex maritime disputes much easier to resolve. When Vietnam and Malaysia submitted their continental shelf claims to the UN in May 2009, they did not include a continental shelf measured from the islands they occupy in the Spratlys. For the Philippines it was difficult to adapt its maritime claims to U ­ NCLOS, since its constitution used to contain a claim to a “Freedomland” (Kalayaan) delineated on a map with a square-shaped line covering most of the Spratly area. This claim was based on the same kind of thinking as China’s U-shaped line, with the Spratly area constituting an archipelago that could be appropriated as a whole, almost as if it were land. In UNCLOS, however, only a few countries are recognized as “archipelagic states” and given permission to draw baselines around themselves, from one outer point to another, and then claim an EEZ and continental shelf around this whole archipelago. This group of countries includes Indonesia and the Philippines, but the archipelagic baselines of the Philippines are defined in a way that clearly excludes the Spratlys. As for continental states like China or Vietnam, the Law of the Sea Convention does not allow them to draw archipelagic baselines around any offshore groups of islands, although China has done so around the Paracels. For a long time, the Philippines government did little to conform its national laws and practices to its treaty obligations. After it obtained its status

16  Stein Tønnesson as an archipelagic state, it did not—like Indonesia—live up to its obligations to demarcate sea lanes for unhindered navigation through its archipelagic waters. However, in the last decade, it has initiated new legislation to better comply with UNCLOS, and under Benigno Aquino III’s presidency (2011– 2016), after China had taken control of Scarborough Shoal, it decided to bring its disputes with China to international arbitration. China refused to take part, but an Arbitral Tribunal was established by the President of the International Tribunal of the Law of the Sea (ITLOS) in Hamburg, with five judges from Europe and one from Ghana (the chair).7 In a common fashion, the Tribunal used the Permanent Court of Arbitration in The Hague as registrar and held its hearings in The Hague. The Philippines government relied on solid legal advice. It knew that it could not ask the Tribunal to resolve any issue having to do with sovereignty to islands, since sovereignty can only be decided upon under voluntary arbitration. Furthermore, since China had reserved itself, under Article 298 of UNCLOS, against arbitration concerning maritime delimitation, the Philippines could also not ask the Tribunal to resolve any issue related to maritime delimitation. The Philippines therefore only asked the Tribunal to resolve 15 specific questions of interpretation, with implications for the South China Sea disputes. The first issue for the Tribunal to decide was whether or not it had jurisdiction over the questions raised. This depended, firstly, on the Philippines having exhausted every opportunity to resolve its disputes through bilateral negotiations, and secondly, on whether or not the questions touched upon issues of sovereignty or maritime delimitation. On 29 October 2015, the Tribunal ruled that it had power to hear the case, take up seven of the fifteen questions, and decide later if it could also resolve the others.8 On 12 July 2016, 12 days after Rodrigo Duterte had been inaugurated as the Philippines’ new president, the Arbitral Tribunal resolved 14 of the 15 questions, excepting only one that touched on military matters. The Tribunal’s answers were given in a legally binding award that went totally in favour of the Philippines. The three points that most clearly express the contrast between the Arbitral Tribunal’s award and China’s legal position are as follows: • •

•

In the Tribunal’s view, any application of straight baselines to the Spratly Islands (…) would be contrary to the Convention.9 China’s claims to historic rights, or other sovereign rights or jurisdiction, with respect to the maritime areas of the South China Sea encompassed by the relevant part of the “nine-dash line” are contrary to the Convention and without lawful effect to the extent that they exceed the geographic and substantive limits of China’s maritime entitlements under the Convention.10 None of the high-tide features in the Spratly Islands, in their natural condition, are capable of sustaining human habitation or economic life of their own within the meaning of Article 121(3) of the Convention.11

Four aspects of the crisis in the South China Sea  17 The Tribunal also ruled that China’s constructions on Mischief Reef are illegal since it is a low-tide elevation and hence forms a part of the Philippines’ continental shelf. The most controversial part of the Tribunal’s award was its decision that none of the Spratly Islands—not even the Taiwan-held Itu Aba—satisfies the condition for generating an EEZ and continental shelf. This ruling, which was contested by the Taiwan authorities, formed a premise for the Tribunal’s decision that it had jurisdiction over many of the issues raised by the Philippines. If Itu Aba had been capable of generating an EEZ, then the ­Tribunal could not have made any ruling concerning features within 200 nautical miles of that island, since this would touch upon maritime delimitation. At the time when the Arbitral Tribunal issued its award, the Philippines’ new president adopted a new policy diametrically opposed to that of his predecessor. Although trained as a lawyer, Rodrigo Duterte does not believe in the power of law, only in economic and military power. His aim has been to obtain Chinese economic aid and investments, and he has ruled out any attempt to defend his country against China militarily since it enjoys an overwhelming superiority. The Duterte administration has refrained from utilizing the Philippines’ 2016 legal victory, and the other ASEAN members have refrained from referring explicitly to the Tribunal’s binding award in their statements, speaking obliquely instead about “respect for political and legal processes.” The award has become anathema in any audience where China is represented, in spite of the fact that it expresses the same legal standpoint that is held by the ASEAN claimants, a standpoint that would greatly facilitate dispute resolution. It is often said that China has failed to clarify its legal claims in the South China Sea. This is true in the sense that China has not published any geographic coordinates for its claims to a 12 nautical mile territorial sea or 200 nm EEZ and has not clarified if its continental shelf extends beyond 200 nautical miles (it has done that in the East China Sea). Since 2009, however, China has to some extent clarified its legal standpoint in a way that differs from the widespread perception among the Chinese people that the whole area within the U-shaped line is under full Chinese sovereignty. China’s Ministry of Foreign Affairs first clarified its legal position in its letter of protest to the UN in May 2009, where it attached a map with the U-shaped line: “China has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof.”12 In a whitepaper published the day after the Arbitral Tribunal had issued its 2016 award, China further clarified its standpoint: Based on the practice of the Chinese people and the Chinese government in the long course of history and the position consistently upheld by successive Chinese governments, and pursuant to China’s national law and under international law (…) China has, based on Nanhai Zhudao [the four island groups claimed by China. ST] internal waters, territorial

18  Stein Tønnesson sea, contiguous zone, exclusive economic zone and continental shelf. In addition, China has historic rights in the South China Sea.13 So, China claims (1) all islands within the U-shaped line; (2) their “adjacent waters,” which must mean their territorial sea and EEZ; and (3) sovereign rights in “relevant waters,” a term that probably refers to all waters within the U-shaped line. This presentation of the Chinese claim differs from the popular view in the sense that China does not claim sovereignty to the whole area within the U-shaped line as inland waters, archipelagic waters, territorial sea, or EEZ. China’s legal experts have no doubt realized that the popular perception contradicts China’s national legislation, which claims a 12 nautical mile territorial sea and a 200 nautical mile EEZ measured from baselines along its mainland coast and the coast of Hainan. The popular perception would imply that China has a 12 nm territorial sea far inside its own maritime territory, which is absurd. Thus, the widespread allegation that China has “annexed” the South China Sea is misleading. Waters cannot be annexed in the same way as land. With regard to the claim to islands, Chinese documents make clear that it does not consider them as individual features but instead as belonging to four archipelagos (sha or qundao), which China claims in toto: the Southern Archipelago (Nansha/Spratlys), the Western Archipelago (Xisha/Paracels), the Eastern Archipelago (Dongsha/Pratas), and the Middle Archipelago (Zhongsha/Macclesfield Bank and Huangyan/Scarborough Shoal). China has been consistent in describing each group as one unit, even to the extent of using singular verbs after the noun Spratlys in English: “The Spratlys is….” It is therefore clear that China intends—or at least retains the ­option—to draw archipelagic baselines around all four sha and measure its maritime zone claims from those baselines. It is furthermore likely that China considers the four sha (perhaps even the fully submerged Macclesfield bank) as having a capacity to generate an EEZ. The most optimistic Beijing leaders may imagine that in the future, once Taiwan and all the sha are under China’s control, it will be powerful enough to negotiate median lines between each sha and the coasts of Vietnam, the Philippines, Malaysia, and Brunei. The term “relevant waters” covers an alternative option, which may allow China to realize its interests in a shorter term. This is to shelve the issue of maritime delimitation, and exploit the resources within the U-shaped line on the basis of claimed historic rights. This would violate the Arbitral ­Tribunal’s award, which on this point is solidly grounded in international law. Yet, if China were able to persuade the Philippines to jointly explore for oil and gas on the Philippines’ continental shelf without first recognizing the sovereign rights of the Philippines, then this could be said to amount to an implicit recognition by the Philippines of Chinese historic rights. So, what has emerged over the last ten years, are two opposite legal standpoints. One is based solidly on UNCLOS and is now binding international law by virtue

Four aspects of the crisis in the South China Sea  19 of the Arbitral Tribunal’s award. Although the Southeast Asian claimants share that standpoint, they dare not say so openly for fear of antagonizing Beijing. The other standpoint, which is based on principles that do not conform to UNCLOS, maximizes China’s national interests by laying out two parallel ways to achieve China’s goals: One based on the concept of four archipelagos with a right to EEZs around them, and the other on a concept of Chinese historic rights.

Sino-US rivalry The South China Sea has become a hotspot in the China–US naval rivalry. The US retains the advantage of having bases or base rights at Guam, Okinawa, Perth, Changi, and other places, and bilateral alliances with Japan, South Korea, Australia, the Philippines, and Thailand. The US remains more technologically advanced than China in most military fields, and has 11 aircraft carrier groups, while China is now building its second carrier only. China has the advantage of closer proximity to Asian waters, which may be reached quickly from bases on its coast, and of having thousands of land-based precision-guided medium range missiles, as well as a growing fleet of submarines and surface ships. Today no single power enjoys sea control in the South China Sea, but China is the leading candidate to achieve it. Sea control could in peace time allow China to compel its neighbour states to submit to its wishes in conflicts over fisheries, oil and gas or legal disputes. In a limited war China might use sea control to keep sea lanes open for its own trade and block that of others. In a war between China and the US, however, the US could assemble formidable naval forces around its 11 aircraft carriers and deprive China of sea control. The legal disputes between the US and China in the South China Sea differ from the ones between China and the other local claimants. The US has no view on the disputes over sovereignty to the Paracel or Spratly Islands, or to Scarborough Shoal. This means, at least formally, that it also has no opinion concerning sovereignty over the territorial seas of those islands. The US expresses three main interests: The first is that the sovereignty disputes must be managed and resolved peacefully. The second is that national maritime zones must be delimited on the basis of distance from coastal basepoints, in accordance with UNCLOS. The third is freedom of navigation for not just commercial but also military ships in the 200 nm EEZs of other states and a right to “innocent passage” through their 12 nm territorial seas without any prior notification or demand for authorization. As far as freedom of navigation is concerned, the one Southeast Asian state that fully supports the US view is Singapore, with its dependence on international trade. Already at UNCLOS III (1973–1982), states with long or vulnerable coasts and modest navies argued that military exercises or reconnaissance activities in other countries’ EEZ, and passage through their

20  Stein Tønnesson territorial sea, would need the coastal state’s permission or prior notification. Back in 1982, they obtained the inclusion of Article 58.3: In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part. This is used as a legal basis for countries such as China, India, Thailand, and Vietnam to reserve an opportunity to curtail the right to “innocent passage” through their territorial sea or full freedom of navigation in their EEZ. This does not mean that India or Vietnam back up China in its quarrel with the US. India and Vietnam mainly fear future Chinese naval intrusions but ironically this leads them to share the Chinese legal viewpoint. The different interpretations of the freedom of navigation have led to some serious incidents: •

•

• •

8 March 2009: Chinese vessels surrounded the USNS Impeccable, which was mapping the Chinese continental shelf. The US vessel was forced to leave the area, but when it returned the following day with military escort ships it was not harassed any further. 27 October 2015: The destroyer USS Lassen conducted a Freedom of Navigation Operation (FONOP) within 12 nautical miles of an area where China was conducting land reclamation in the Spratlys. New FONOPs were undertaken by the USS Curtis Wilbur in January 2016 and the USS William P Lawrence in May 2016. China issued strong protests. 15 December 2016: A Chinese ship following the survey ship USNS Bowditch in an area outside of Luzon, stole an underwater drone, which was given back after having been examined. The US protested. 30 September 2018: The USNS Decatur conducted a FONOP near North ­ hinese Gaven Reef in the Spratlys, where China has built facilities. C ­destroyers pursued, and one of them came within 41 metres of the US ship and threatened it by radio with “consequences.”

The US Navy does not publicly explain the exact reason why it conducts each of its FONOPs. Sometimes it engages in military activities outside a 12-nautical mile territorial sea in order to challenge a state that has asserted a right to restrict military activities of foreign states in their EEZ. Sometimes it exercises non-innocent passage through the territorial sea of a state that asserts that innocent passage of warships is subject to authorization or notification. Sometimes it exercises FONOPs within 12 nautical miles of artificial islands built on presumed low-tide elevations. In such cases it may undertake some “non-innocent” activities in order to demonstrate that there

Four aspects of the crisis in the South China Sea  21 is full freedom of navigation. And sometimes it sails through island groups such as the Paracels in order to challenge an unlawful use of archipelagic baselines. The risk of a Sino-American naval confrontation in connection with US reconnaissance or FONOPs is a serious concern. A Sino-US clash could also happen if a clash between China and one of the ASEAN claimants provokes a US intervention. It is far from obvious that China made a wise strategic choice when deciding to construct its military facilities in the Spratlys. China cannot be sure that the Southeast Asian claimants are intimidated. Instead they may move closer to an incipient coalition of the US, Japan, India, and Indonesia. The construction work on seven Spratly features must have been costly. The facilities may need extensive repair after tropical storms, if they are not defended on all sides by natural wave-breaking reefs in the way that naturally formed islands are. China will have to rely on long lines of transportation and must secure them against threats from other navies. The facilities will compel China to deploy a huge amount of forces in the South China Sea in a quest for sea control and air supremacy. In war time, the fixed installations in the Spratlys would be vulnerable to attacks by a determined foe. If the US should one day choose to teach China a lesson through a limited war, it might obliterate China’s Spratly bases from the air, and then let China choose to either accept defeat or escalate the war to a larger confrontation. Within a scenario of an all-out confrontation between China and the US, the Spratlys would probably be irrelevant. Any major attack against China would be likely to come through the East China and Yellow Sea, not the South China Sea. One reason for saying this is to keep our eyes open to the possibility that a rational, strategically thinking Chinese government might choose to pacify the South China Sea through good neighbour policies instead of maintaining its current policy, which is costly in both economic and political terms.

Conclusion Few Chinese citizens seem to realize the need to comply with the law of the sea, although China has ratified UNCLOS. A wave of government-­ sponsored nationalism has blinded people and made them think that the law of the sea can be reinterpreted in ways that remove its essence: The principle that maritime zones are defined by distance from coasts, not by any history of usage or control. China, like other major powers, seems to suffer from what has been called “great-state autism.”14 This expresses itself in inability to see a strategic situation from several angles, place oneself in the shoes of other nations, such as the Philippines, Brunei, Malaysia, or Vietnam, and realize how insecure they must feel when facing military installations near their coasts, in areas that they have good reason to claim as maritime zones on the basis of international law. As of now, the smaller states have reacted to China’s behaviour by trying to maintain good relations with the US and

22  Stein Tønnesson China at the same time, without getting too close to any of them. Vietnam, Malaysia, and the Philippines are hedging their bets on the two major powers, while also engaging with Japan, India, and Australia. In this century, none of the Southeast Asian states have sought explicitly to balance against either China or the US, except the Philippines under Aquino (2011–2016). They have all sought a middle way in a world where China and the US are not outright rivals. Yet, if Sino-US relations continue to worsen, and China does not make decisive moves in the direction of reassuring its southern neighbours, we may see the beginnings of a broad, informal coalition to balance against it. For the time being, China’s neighbours remain cautious, desirous as they are of investments and aid, and uncertain about the US determination to respond to China’s maritime expansion. Yet many forms of practical cooperation are developing between ASEAN and external powers, as well as among the claimant states themselves. On the emotional level, China’s neighbours share a sense of anxiety that could develop into fear. It could also, however, be remedied if China came up with a new, more reassuring “good neighbour policy.”

Notes 1 Bill Hayton (2019). ‘The Modern Origins of China’s South China Sea Claims: Maps, Misunderstandings, and the Maritime Geobody,’ Modern China, 45(2): 127–170. 2 Stein Tønnesson (2002). ‘The Paracels: The ‘Other’ South China Sea Dispute,’ Asian Perspective, 26(4): 145–169; (2006). ‘The South China Sea in the Age of European Decline,’ Modern Asian Studies 40(1): 1–57. 3 Island Tracker, CSIS Maritime Transparency Initiative: https://amti.csis.org/ island-tracker/china/ (accessed 4 May 2019). Subi Reef, Hughes Reef, and Mischief Reef used to be submerged reefs, so they are now artificial islands. Cuarteron Reef, N. Gaven Reef, Johnson Reef, and Fiery Cross Reef are tiny rocks or reefs that have been widened through land reclamation. 4 David Shambaugh (2018). ‘U.S.-China Rivalry in Southeast Asia: Power Shift or Competitive Coexistence?’ International Security, 42(4): 85–127: 95. 5 Shambaugh, op. cit.: 101, fig. 3, and 102. 6 Hayton, op. cit. 7 Thomas A. Mensah, Ghana (Presiding Arbitrator), Junge Rüdiger Wolfrum (Germany), Jean-Pierre Cot (France), Stanislaw Pawlak (Poland), and Alfred H.A. Soons (the Netherlands). 8 PCA Case No. 2013–19 in the matter of an arbitration before an Arbitral Tribunal constituted under annex VII to the 1982 United Nations Convention on the Law of the Sea between the Republic of the Philippines and the People’s Republic of China Award on jurisdiction and admissibility. Registry: Permanent Court of Arbitration 29 October 2015: www.pcacases.com/web/sendAttach/1506 (accessed 1 Nov 2018). 9 PCA Case No. 2013–19 in the matter of the South China Sea arbitration before an Arbitral Tribunal constituted under annex VII to the 1982 United Nations Convention on the Law of the Sea between the Republic of the Philippines and the People’s Republic of China Award. Registry: Permanent Court of Arbitration 12 July 2016: https://pca-cpa.org/wp-content/uploads/sites/175/2016/07/PH-CN20160712-Award.pdf (accessed 1 Nov 2018): 573–575, pp. 236–237.

Four aspects of the crisis in the South China Sea  23 10 Op. cit., 1203, B.(2)., p. 473. 11 Op. cit., 1203, B.(7)a., p. 474. 12 The Permanent Mission of the PRC to the UN, CML/17/2009: www.un.org/ depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2009re_mys_vnm_e. pdf (accessed 1 Nov 2018). 13 The State Council Information Office of the People’s Republic of China, “China Adheres to the Position of Settling through Negotiation the Relevant Disputes between China and the Philippines in the South China Sea,” Beijing, 13 July 2016, para 70. 14 Edward Luttwak (2012). The Rise of China vs. the Logic of Strategy (Cambridge MA: Belknap): 13. Thanks to Michael Kovrig (International Crisis Group) who used Luttwak’s expression in a panel under the Beijing Xiangshan Forum, 24 October 2018. Cf. David Shambaugh, who says that in its competition with the USA for influence in Southeast Asia, “…perhaps China’s greatest drawback is its inability to view itself as others view it.” Shambaugh, op. cit., 125.

2 ASEAN and the South China Sea Nguyen Hung Son

Introduction This chapter reviews how the so-called South China Sea issue has evolved over the past ten years, how ASEAN’s understanding, perceptions, and roles over the issue have changed correspondingly. The South China Sea issue has grown both quantitatively and qualitatively, it has become much more complicated and layered over the past ten years. It has meant different things to different countries at different times. The change in perceptions in ASEAN in regard to the South China Sea issue has moved from that of a territorial dispute, which only involves a handful of claimants, to a security issue at the centre of ASEAN’s own existence. This has been the main driver of the change in ASEAN’s attitude and policies on the South China Sea over the past ten years. ASEAN’s attitude has shifted from denial towards a more proactive stance. The South China Sea issue has helped ASEAN by making it more adaptable to new geo-strategic reality and more capable of managing the regional security environment. This ten-year review starts with the sovereign dispute over the features in the South China Sea, the origins as well as the core of the larger problem that the South China Sea issue has grown to become today.

The evolution of the South China Sea issue The South China Sea issue is first and foremost a dispute over sovereignty of the features in the South China Sea. Over the past ten years, although there has been no new major occupation of the features that were previously occupied or claimed by a different claimant, two events are worth mentioning. The first event is the Scarborough Shoal incident in 2012. The unoccupied shoal had been a fishing ground by Filipinos until China established de facto control over it in 2012, barring Filipino fisherman from entering the shoal. Despite later agreement between China and the Philippines to allow fisherman from both countries to fish in the shoal, it was reported that Chinese authorities regulated the fishing and occasionally mistreated and intimidated Filipino fisherman. The second event was the anchoring of a

ASEAN and the South China Sea  25 Chinese coast guard vessel at Luconia Shoal in 2013, well within Malaysia’s exclusive economic zone (EEZ) and continental shelf. Due to Malaysia’s preference not to report publicly on its dispute with China, there was little media coverage about this incident. Nevertheless, the presence of the Chinese vessel raised an alarm bell in Malaysia after it was found that the vessel has not moved in two years,1 despite the claim by Chinese Ambassador to Malaysia that the anchoring was not permanent.2 With the exception of the Scarborough Shoal, where dialogue between China and the Philippines took place and agreement on fishing rights was reached, until recently there have not been any publicly known negotiations, dialogue, or legal processes concerning sovereignty of any of the features ­ edra in the South China Sea. This is to be distinguished from the case of P Blanca, which is located in the South China Sea but not usually seen as being part of the “South China Sea issue,” where the maritime dispute between Malaysia and Singapore was settled in 2008 by the ruling of the International Court of Justice. Whereas few major developments took place with regards to occupation of the features in dispute, there have been subtle but significant changes in the claims to the features. China made the ninedashed-line claim official in 2009 by sending a Note to the UN Commission on the Limits of the Continental Shelf, with an attachment of a map containing the nine-dash-line in response to the Joint Submission of Malaysia and Vietnam on 6 May 2009, A Chinese government publisher, Hunan Map press, introduced a vertical map in 2014 showing the nine-dash-line with an additional line and making it equivalent a land borderline on the map.3 That might imply that China considered the ten-dashed-line to represent China’s territorial boundary. When the Arbitral Tribunal the Philippines initiated under Annex VII of UNCLOS against China delivered its rulings (hereafter Tribunal’s rulings) on 12 July 2016, China changed the basis of its sovereignty claims in the South China Sea. The new claims, the so-called four “sha” (or four islands) claims, first appeared on China’s white paper disputing the Philippines’ claims issued a day after the Tribunal’s ruling came out. The four “sha” claims were also reportedly reiterated in 2017 by Chinese officials during talks with the US Department of State.4 The claims were for four island groups, including the Pratas, Paracels, Macclesfield bank, and Spratlys, which China treated as groups of islands that were entitled to historical territorial waters, EEZs and continental shelves. This might have been China’s attempt to base its claims on the Law of the Sea given the ­Tribunal’s rulings that effectively invalidated the nine-dash-line. Nevertheless, China’s four “sha” claims, which in effect subjected the four islands groups to straight base lines, were just as inconsistent with UNCLOS as the nine-dash-line claim. The Tribunal’s rulings concluded that straight base line cannot be applied to the Spratlys archipelago as if China was an archipelagic state. The Macclesfield bank, one of the four “sha” China claims  is  a fully submerged bank, could not even be appropriated under the UN ­Convention on the Law of the Sea (UNCLOS), because features

26  Nguyen Hung Son that are fully submerged are considered part of the seabed, and not subject to sovereignty claims. Taiwan has updated its claims in the South China Sea as well. In its intervention in the Philippines Arbitral case it argued that Itu Aba was an island capable of sustaining human habitation and qualified as an island with an EEZ and continental shelf in accordance with Article 121(3) of UNCLOS. Taiwan, therefore, based its claim entirely on its interpretation and application of UNCLOS and not on historic rights, and did not make any reference to the nine-dash-line. Taiwan also did not mention the nine-dash-line after the Tribunal’s ruling, an indication that Taiwan might indeed have chosen to differentiate its claim from that of China, and showed that it respected UNCLOS and would abide by the ruling.5 Although there has not been much change in the number of features that each claimant has occupied over the past ten years, the status quo in the sea has changed dramatically due to China’s artificial island constructions, which have massively boosted China’s occupation and presence in the South China Sea. The construction and subsequent militarization of the artificial islands tilted the balance of power in the South China Sea in China’s favour and heightened the fear that China would resort to force to settle sovereignty disputes. History supports that fear. China’s constructions, having permanently changed the nature of the features on which they were built, also further diminished any chance of a future settlement of the disputes. Whereas there have been no changes in relation to sovereignty, there have been two opposing trends in the claimants’ treatment of their maritime claims.

Complicating maritime claims On the one hand, attempts were made by several claimants to align their maritime claims with the Law of the Sea. The Philippines passed the ­Republic Act 9522 in March 2009 changing its Treaty of Paris base line into an archipelagic baseline consistent with the Law of the Sea. Despite heavy criticism of the Act as having weakened the Philippines’ maritime claims, the Supreme Court of the Philippines still upheld the archipelagic baseline law in 2011. Through its submission of the reports on the outer limit of the extended continental shelf on 7 May 2009, Vietnam jointly with Malaysia clarified implicitly its views on the maritime entitlements of the features in the Spratlys. Although Vietnam did not explicitly clarify its claim, Vietnam did implicitly consider none of the features in the Spratlys to be islands in accordance with UNCLOS Article 121(3) that are capable of generating their own EEZs and continental shelves, therefore these features could not determine the extent of the outer limit of Vietnam’s entitlement to an extended continental shelf. This view was seconded by Malaysia as the co-signer of the report submitted to the UN Commission on the Limits of the Continental Shelf. It significantly limited Vietnam’s maritime claims to the coastal generated EEZ as drawn from its land baselines and the 12 nm territorial

ASEAN and the South China Sea  27 waters of the land features in the South China Sea. Vietnam’s policy to align its maritime interests with the Law of the Sea was further formalized through its Law of the Sea of Vietnam in June 2012. This law said explicitly in Article 2 (Application of the Law) that where Vietnam’s obligations under international treaties conflict with domestic laws and regulations, those obligations under the international treaties shall prevail.6 Whereas the Philippines, Vietnam, and Malaysia downsized or clarified their maritime claims to a certain extent in light of UNCLOS, China stepped up its maritime claims by officially announcing the nine-dash line and the vastly ambiguous maritime claims the line entails. In its Note verbal to the UN dated 7 May 2009, China claimed sovereignty over the islands in the South China Sea and the adjacent waters, and claimed to enjoy “sovereign rights and jurisdiction over relevant waters as well as the seabed and subsoil thereof.”7 The reference to “adjacent waters” and “relevant w ­ aters” was troubling because these were undefined concepts in international law. The significance of China’s admission of the ambiguity of its maritime claims within the nine-dash-line was even greater than the official announcement of the nine-dash-line itself, as it hinted that UNCLOS and the law of the sea in general are not the main foundation of China’s claims. Prior to this date, there were high expectations that the Chinese government would treat the nine-dash-line as a line encompassing its territorial claims in the South China Sea, leaving the maritime claims generated by those features to the work of international law. This could have been the best chance for the ninedash-line to survive the application of the Law of the Sea. A day following China’s official announcement of the map showing the nine-dash-line, Vietnam protested China’s claim as having no legal, historical, and factual basis, and therefore “it is null and void.”8 Indonesia, through its note verbale sent to the UN on 8 July 2010 also protested the nine-dash line as having no legal bases in international law. Indonesia further expressed the view that if “rocks, reefs and atolls isolated from the mainland and in the middle of the high seas” were to be allowed as base points to generate maritime space, this would severely undermine the fundamental principle of UNCLOS and encroach upon the legitimate interest of the global community.9 The Philippines also protested the ambiguous language used by China as having no basis in international law, especially UNCLOS.10 The US, through its Limits in the Seas report, did a thorough study of the history of the nine-dash-line and what that line could mean. The report concluded that the only possible legitimate explanation of the nine-dash-line is that the line reflects “only a claim to islands within that line and any maritime zones that are generated from those land features in accordance with the law of the sea.”11 The official introduction of the nine-dash-line, and the later attempt to advance the “four sha” claims, as mentioned in the previous section, further complicated the South China Sea dispute. Although the Arbitral Tribunal’s ruling denied the nine-dash-line any legal standing, China continued its policy of non-recognition of the

28  Nguyen Hung Son arbitration process. This resulted in expanded competition, even confrontations and incidences over various types of activities by different actors in the South China Sea.

Escalatory incidents at sea A sudden surge in China’s assertiveness in the South China Sea was recorded almost simultaneously with China’s assertion of its maritime claim through the nine-dash-line, officiated with China’s note verbale to the UN on 7 May 2009. Vietnamese and Filipino fishermen were increasingly harassed. Some was captured by Chinese forces where they had gone about their daily business for generations. Water cannoning became regular, even the shooting of Vietnamese and Filipino fisherman took place on some occasions, raising the question of the violation of the non-use of force principle of international law. Chinese forces, sometimes referred to as the “Nine-­dragons”—the various Chinese government agencies operating in the South China Sea—started interfering with Vietnamese oil and gas exploration activities, harassing Filipino survey vessels, confronting the Indonesian navy, unilaterally declaring fishing bans throughout most of the South China Sea,  planting Chinese flags on the sea bed in the middle of the  South  China Sea, taking de facto control of the Scarborough Shoal, conducting naval drills at James Shoal, the southernmost feature that China claims which is just 45 nautical miles off Malaysia’s coast, etc. These incidents at sea increased in both number and severity, and happened at locations further south, away from China’s mainland and closer to other littoral states’ coastline. They included a larger number of targeted countries. From 2009 towards the end of 2013, the Chinese revealed the capability to enforce their claims anywhere in the South China Sea. This reflected China’s determination to assert its nine-dash-line claim. Some incidents were particularly escalatory in nature. China’s call for tenders for 9 oil blocks, all completely within Vietnam’s 200 nm EEZ, was seen at the time (2012) as the most serious encroachment on Vietnam’s sovereign rights. This also proved that China was moving towards unilateralism and further detachment from UNCLOS. This was because some of these nine blocks were located further than 200 nautical miles from any land feature that China claims in the South China Sea. Therefore, in no scenario under UNCLOS could these oil blocks be within Chinese jurisdiction. Yet the most serious incident for Vietnam was China’s dispatch in April 2014 of the Haiyang Shiyou 981 oilrig to an area 120 nautical miles off the coast of Vietnam to conduct drilling. The location where the oilrig landed was in an area of overlapping claims between Vietnam and China. It was quite obvious to legal experts that it was on the Vietnamese side of any possible future delimitation if both sides adhered faithfully to UNCLOS and the application of the equidistance line in practice. The incident was particularly escalatory in the actual use of force involved as the oilrig was accompanied by a full-scale

ASEAN and the South China Sea  29 naval fleet, including frigates and missile launchers. Boat ramming and the use of high-powered cannon were observed, causing serious injuries to Vietnamese civilians and officials. In the Scarborough Shoal incident (2012), the Philippines lost de facto control of the shoal to China. It convinced the country that neither diplomacy nor its long-time alliance with the US would help to protect its territorial integrity, hence the move towards legal means when the Philippines afterwards brought China to the Arbitral Tribunal under Annex VII of UNCLOS. Malaysia was very alarmed when China conducted several naval drills at James Shoal, the southernmost feature of China’s claim in the South China Sea. Malaysia sees the Shoal, a fully submerged feature sitting on Malaysia continental shelf and only 45 nautical miles off its coast, as undisputedly under its jurisdiction.12 However, given its practice of quiet diplomacy on the South China Sea, the incident escaped much media attention and public scrutiny.

Disputes over the laws governing the dispute The arbitration process the Philippines initiated against China in 2013 and the Tribunal’s rulings in July 2016 were perhaps the most important developments on the Law of the Sea in the past ten years. This was a game changer for the South China Sea dispute as many see it, because third party adjudication was called upon in the dispute for the first time. It made huge advances on the explanation and interpretation of the 1982 UNCLOS and how it should be applied in the South China Sea context. It also proved, for the first time, how the UNCLOS’s dispute settlement provisions could be utilized for the peaceful settlement of the South China Sea dispute. To many, the rulings clarified maritime entitlements of the features in the South China Sea and significantly reduced the overlapping or disputed maritime claims. However, the Award and the debates it stirred up both with China and within China also revealed the extent to which the common understanding and interpretation of UNLCOS is disputed by China, and how differently China understands, interprets and applies the law of the sea. Up until 2013, when the Philippines initiated the arbitration process, there was a common understanding among all the parties to the South China Sea issue that the 1982 UNCLOS was the main body of laws governing the sea. Despite occasional different interpretations on certain issues, sometimes referred to as grey areas of the UNCLOS (such as innocent passage of military vessels within territorial seas and the conduct of military activities within one country’s EEZ), all parties to the South China Sea dispute reiterated their commitment to UNCLOS on numerous occasions and at the highest levels. The Joint Statement of the ASEAN-China Summit to commemorate the 10th Anniversary of the Declaration on the Conduct of Parties in the South China Sea in November 2012 “reaffirmed our commitment to… the 1982 UN Convention on the Law of the Sea… which serves as the basic norms governing state-to-state relations.”13

30  Nguyen Hung Son The Arbitral Tribunal’s rulings, aside from delivering a great victory to the Philippines when the ruling came out in July 2016, clarified a number of ambiguities in UNCLOS. It also solidified a certain understanding on the interpretation and application of the law of the sea, particularly with regard to the dispute settlement procedures. Among the several issues the Tribunal clarified, but to which China objected, three were of particular importance in defining the maritime dispute in the South China Sea: They were historic rights, the legal regime of islands in accordance with Article 121(3), and archipelagic base lines. The Tribunal reiterated the common view shared by most legal experts and practitioners that UNCLOS, as a package deal at the time of its negotiation, did consider historic rights that nations might have enjoyed, but that such rights were extinguished and superseded by the Convention. China, on the other hand, argues that the Convention is not the only source of rights that states enjoy on the sea, and that historic rights are regulated by general international law, and continued to exist alongside UNCLOS.14 With regard to the legal regime of islands, the Tribunal clarified one of the most ambiguous provisions of UNCLOS concerning the criteria defining rocks under Article 121(3).15 The Tribunal then went on to apply the best acquired knowledge on the natural state of all the main features of the Spratlys to conclude that none of these features, even the largest feature, Itu Aba, could qualify as an island under Article 121(3). China disputed the Tribunal’s interpretation of the wording and spirit of Article 121(3), accusing the Tribunal of effectively rewriting the article through its interpretation, and China disagreed fully with the conclusions drawn.16 Against China’s view the Tribunal also concluded that the various features of the Spratlys can form a group of islands capable of being treated as an archipelagic state, from which straight baselines could be drawn for EEZ and continental shelf claims. But it said that this practice is limited only to Archipelagic States. China, on the other hand, argued that the Spratlys can qualify as an outlying archipelago related to the continental state of China and made efforts to show this was established practice in customary international law. Not only did China dispute the common interpretation of international law, it also disagreed fundamentally on how international law works. This was revealed in its argument against how the Tribunal claimed jurisdiction to rule on the Philippines submissions. Due to this fundamental disagreement China displayed reluctance to uphold a full commitment to UNCLOS, and has been much less forthcoming in supporting UNCLOS as the foundation of the rules-based order at sea. The Joint Statement of the ASEAN-China Summit to commemorate the 25th Anniversary of ASEAN–China relations issued in September 2016 dropped the language of common commitment to UNCLOS which was seen on the same Joint Statement five years earlier. This time it merely recognized that the Declaration on the Conduct of Parties in the South China Sea is in accordance with the UNCLOS.17 The past ten years saw both the strengthening of UNCLOS as well as its erosion as the foundation of the rules-based-order at sea. In the absence of commonly

ASEAN and the South China Sea  31 agreed “ground rules,” doubts were raised regarding the effectiveness of any dispute management regime in the South China Sea, including the ongoing negotiations over the Code of Conduct on the South China Sea (CoC).

Heightening geopolitical and geostrategic competition China’s desire to expand its sphere of influence in the maritime realm and the US determination to preserve what it sees as the liberal order it helped establish post-Second World War has added another layer of complexity to the South China Sea issue. It was ten years ago that the financial and economic crisis of the West started in the US, severely hitting the US economy at the time and eroding its influence globally. All this happened while China was gaining strength rapidly on every front, surpassing Japan to become the second largest economy and bypassing the US to become the world’s largest manufacturing hub. It was at that time that China believed the age of US global dominance was over, and that its time had come. China then adopted a much more assertive foreign policy to expand its influence while the balance of power continued shifting in its favour. In 2012, the 18th China’s Communist Party Congress declared the goal of making China a maritime power. China started investing heavily into maritime power. China’s naval doctrine had moved from coastal to near seas defence including far seas operations. Its objective was to be able to assert control of the seas within the first island chain, including the South China Sea by 2021 by the 100th year anniversary of the founding of Communist Party of China. Naval modernization took place at unprecedented rate indicating that China’s construction of the artificial islands in the South China Sea, had been planned all along and was not just a mere response to the Philippines’s litigation against China. The artificial islands boosted China’s presence and capacity to assert its maritime and air power throughout the South China Sea. China, therefore, not only became more assertive in pursuing its maritime claim but also the most capable of doing so among the competing claimants in the South China Sea. At the ASEAN-US Post Ministerial Conference in Phuket, Thailand, in July 2009 the US announced that it “is back in South East Asia” after nearly a decade of being diverted to the war on terrorism in Iraq and elsewhere.18 A number of words were used to describe this re-orientation of US foreign policy back to the Asia-Pacific, the “pivot” at the beginning then a “rebalance” at the later stage of the first term of President Barack Obama. The key to this rebalancing policy was the relocation of its military assets from the Atlantic to the Pacific and an updated military doctrine to cope with new threats from the air and the sea. It also included a foreign policy based on “smart power,” a network of allies, and new partners across the Asia-Pacific to strengthen the US’s standing in the region.19 Mutual suspicion between the US and China developed with increasing military activities on both sides. Since China expanded its influence towards the sea and adopted what

32  Nguyen Hung Son the Pentagon calls an “anti-access area denial strategy,” the maritime sphere in both the East China Sea and the South China Sea became a geopolitical and geostrategic competing ground. US-China geopolitical competition further complicated the already complex South China Sea dispute. Dispute of different nature continue to be intertwined in a non-ending vicious cycle. For example, while China argued that its construction of artificial islands was merely defensive, its enhanced presence in the region led to increasing operation of Chinese vessels of all kinds in the South China Sea and heightened the risk of incidents at sea. Whereas ASEAN’s primary purpose of negotiating an effective CoC for the South China Sea was to manage the disputes and prevent such incidents, China’s purpose is to prevent extra-regional powers from interfering into the South China Sea. While the Philippines saw the arbitration process as a purely legal exercise to settle part of the dispute, China saw it as a plot driven by the US to contain China using legal means, thus giving itself another excuse to walk away from the ruling. To summarize, over the past ten years, the so-called South China Sea issue meant different things to different countries at different times. Few serious efforts have been made to segregate the complicated issues or to compartmentalize its components, and to find proper solutions for them, or to find an effective management mechanism for each aspect of the disputes. The reasons for the confusions could be accidental because of a lack of interest and understanding on the part of certain players on the issue, or it could be intentional on the part of others to make use of the issue for political gains or other purposes.

ASEAN’s perception and policies on the South China Sea The first time ASEAN had a common view of the South China Sea issue was in Manila, in July 1992, when ASEAN Foreign Ministers issued a joint declaration calling for parties to resolve the dispute by peaceful means, without resorting to force.20 The declaration was issued in response to China’s increasing assertiveness and confrontational approach in the South China Sea. Back in 1988, China had resorted to force in attempt to take control of Vietnam’s Gạc Ma (Johnson South Reef), Len Dao (Lansdowne Reef) and Co Lin (Collins Reef) in the Spratlys. Earlier in 1992, China passed the Law on the Territorial Sea and Contiguous zone, reiterating its claims on the whole of Spratlys. The same year, it contracted Crestone, a US oil company, to explore in the south-western part of the South China Sea. The Philippines had reasons to worry because it was a major claimant in the Spratlys and was afraid it would soon have to confront China. All this occurred while the US, a key ally of the Philippines, and Russia, the two Cold War powers were withdrawing from the region after the end of the Cold War, leaving a power vacuum that China had exploited. ASEAN at the time had just six members, the original five members plus Brunei Darussalam, which joined

ASEAN and the South China Sea  33 the grouping in 1984. Vietnam, another important claimant, was not part of ASEAN at the time. Faced with the new geo-political reality of a post-Cold War order, ASEAN was strategic rather than territorial in making the declaration on the South China Sea. ASEAN wanted to show solidarity with the Philippines, and at the same time reassert its own role in the changing regional environment. Geopolitics was the main driver of ASEAN’s move. ASEAN was unified on the South China Sea in March 1995 when the ASEAN Foreign Ministers issued a strong statement after China erected a structure on one of the features in the Spratlys, the Mischief Reef. The reef was claimed by the Philippines and had been used as shelter by Filipino fisherman.21 The Philippines was shocked to have found a concrete structure with a Chinese flag on it. The Philippines instigated ASEAN’s first “statement on recent developments on the South China Sea.”22 In July the same year, ASEAN Foreign Ministers’ annual joint communiqué reiterated the statement.23 The difference in the later statement on the South China Sea was that Vietnam had just been admitted to ASEAN, hence added weight to the statement because it also voiced Vietnam’s concern on the South China Sea. ASEAN was as much territorial as strategic in issuing the statement. Although no specific country was named in the criticism, it was obvious to whom the statement was directed. Future ASEAN statements on recent developments in the South China Sea have maintained the practice of not naming any specific country to this day. The admission of Vietnam into ASEAN resulted in ASEAN’s expansion to eventually include all ten South East Asian countries in 1999. The expansion was ASEAN’s response to the post-Cold War order in the region, when regional integration and trade liberalization was a high priority, while the small and medium countries of South East Asia, now freed from the Cold War division also looked to join a regional grouping to elevate their national standing and development. ASEAN’s expansion resulted in diversified views on the South China Sea and made a unified view harder to achieve. ASEAN’s common perception at the time (2000) was that the South China Sea issue was a territorial problem involving a few of its members. Within ASEAN, a subset group of claimant states was created consisting of the four claimants (Brunei Darussalam, Malaysia, the Philippines, and Vietnam). South China Sea related business was usually first given to the claimants group and ASEAN as a group would then proceed to endorse what the claimants could agree on. ASEAN saw that if the territorial dispute was not properly managed, it could threaten regional stability and affect all members. ASEAN therefore wanted the claimants to handle the dispute with China in a way that would not affect the security environment of the whole region. ASEAN supported international law and UNCLOS as the basis for the claims and the management of their disputes, but the claimants were left to interpret and apply that law themselves. ASEAN supported the idea of building the Code of Conduct with China to create a cooperative framework to manage the issue for regional stability rather than to help the claimants

34  Nguyen Hung Son find a resolution to the dispute. When China turned its charm offensive towards ASEAN taking advantage of US inattention to the Asia-­Pacific to focus on the first Iraq war, and agreed to negotiations with ASEAN on the CoC, ASEAN quickly took it as a conciliatory gesture by China and rushed to come to an agreement in 2002. The Declaration on the Conduct of Parties in the South China Sea (DoC) was the result but it was watered down into a political declaration which did not meet the expectation of the key ASEAN’s claimants who had originally planned for a legally binding international treaty.24 ASEAN had perceived the South China Sea as an unwanted problem for ASEAN–China relations and therefore wanted to set it aside. Despite its shortcomings, the DoC gave ASEAN the hope that the South China Sea problem had been framed and contained. ASEAN–China relations took off thereafter. China acceded to the Treaty of Amity and Cooperation in 2003 and became ASEAN’s first strategic partner same year.

From denying the issue to reactively responding to it (2003–2009) From 2003, ASEAN tried to stay low on the South China Sea issue. The name “South China Sea” would not appear officially on ASEAN’s agenda and the issue is customarily placed under the discussions on “Regional and International Issues” in a discrete way. The South China Sea issue also appeared indirectly under discussions on the “Progress on the implementation of the DoC.” The security aspect of the South China Sea would not be discussed, only confidence building and technical cooperation projects were on the agenda. ASEAN Foreign Ministers’ joint communiqués usually carried a paragraph or two on the South China Sea issue but focused mainly on the implementation of the DoC and other cooperative activities. The text stayed more or less the same over the years without any direct correlation to what was happening on the ground. A proposal to place the South China Sea issue directly on the agenda of the Foreign Ministers’ meeting by an ASEAN member sometimes received the following feedback from others: “Do you want to pick a fight with China?” The South China Sea issue was close to becoming a taboo in ASEAN official talk. For a long time over 2003–2009, ASEAN’s dominant perception of the South China Sea was that it was a bilateral problem between certain members and China, or between a few claimants and China. Most ASEAN member states were not concerned about the overlapping maritime claims, the interpretation and application of UNCLOS, or geostrategic competition between the major powers.25 China had been taking a more assertive policy on the South China Sea since 2006, when it reviewed its security environment, issued a Defence White Paper, and began expanding seaward.26 China started the ambitious “Long and Medium Term Plan” on ship building for the period of 2006– 2016 and placed greater emphasis on oceanic scientific research on its medium and long term science and research development plan for 2006–2020.27

ASEAN and the South China Sea  35 China also charged its navy with greater tasks such as to undertake a retaliatory nuclear strike. Sporadic serious incidents, even violence on the South China Sea only received ASEAN’s call for “self-restraint” on all parties concerned. ASEAN still viewed such incidents, though serious, as just bilateral issues between the competing claimants. In 2009 there was a change as ASEAN had been watching with concern China’s nine-dash line claim when the line was made official in May that year. When US Secretary of State Hillary Clinton announced at the ASEAN–US Post Ministerial Conference in Phuket in July that the “US is back in South East Asia,” and that the US had a “national interest” in freedom of navigation in the South China Sea, ASEAN realized that the South China Sea was much more than just a territorial issue between some of its members. On the same occasion in Phuket, the US signed on to the Treaty of Amity and Cooperation, a precondition ASEAN set for deeper engagement with the region. ASEAN understood that the US was not back in Southeast Asia for ASEAN alone but it was because of China. ASEAN responded favourably when Vietnam, the ASEAN Chair in 2010, proposed to formally bring back the South China Sea issue on to the agenda of its meetings. China’s nine-dash-line claim motivated Singapore and Indonesia, the other two South China Sea littoral states who are not claimants, but who nevertheless had a strong interest in a rules-based maritime order and respect for ­UNCLOS. The four ASEAN claimants were joined by Singapore and Indonesia, resulting in a widening consensus that ASEAN had to accept that the South China Sea did impact on regional security, and that ASEAN could no longer conceal or deny the problem. ASEAN agreed in 2010 to expand the East Asia Summit (EAS) to include US and Russia, although the two powers only attended the Summit for the first time in 2011, under Indonesia’s chairmanship. The expansion of the EAS was aimed at creating a “dynamic equilibrium” in the regional security architecture which meant more than a balance of power.28 It meant dynamic environment for countries with various interests on various issues with various partners to seek an appropriate equilibrium. While tension in the South China Sea was building up due to China’s assertiveness, many ASEAN members still hoped that effective implementation of the DoC could help. By this time, several ASEAN members saw the South China Sea issue as a result of a strategic trust deficit, they were convinced that confidence building measures would reduce mistrust, promote cooperation and reduce tension. In 2011, most ASEAN members continued to prioritize working with China to develop a set of Guidelines to implement the DoC, now with a greater sense of urgency. However, the draft Guidelines for the DoC could not be endorsed by ASEAN while China demanded the removal of a clause which allowed members to meet before meeting with China. China reasoned that this was an ASEAN custom that need not appear in an ASEAN–China agreement. ASEAN insisted that having its own meeting before meeting any dialogue partner was part of the

36  Nguyen Hung Son “ASEAN way.” To overcome the deadlock, ASEAN finally agreed to drop that clause in exchange for a commitment from China to regularly review and report on the implementation of the DoC to the ASEAN-China Foreign Ministers meeting. This was a way of bringing about transparency in the implementation of the DoC. ASEAN and China adopted the Guidelines in 2011, nine years after the DoC was signed. The Philippines, however, was not convinced that the Guidelines or the DoC would resolve the South China Sea problem. The Philippines had been having problems with the Chinese at Reed Bank in 2011, where its oil exploratory vessels were harassed, forcing them to desist. The Philippines proposed the idea of a ZoPFF/C, “a Zone of Peace, Freedom, Friendship and Cooperation,” of which the core idea is to segregate disputed maritime areas from undisputed areas based on UNCLOS.29 ASEAN, however, was not interested in overlapping maritime claims, as members did not want to risk bilateral ties and economic benefits with Beijing. ASEAN reacted with hesitation, and eventually did not endorse the Philippines initiative, probably because certain members anticipated a collision course with China. At a key working level meeting which Manila initiated to advance the ZOPFF/C, Cambodia, and Laos did not send their representatives.30 Less than a year after the Guidelines were adopted, the South China Sea issue erupted again in 2012 when China took de facto control of the Scarborough Shoal. Vietnam’s oil exploratory operations deep inside its own EEZ had been the target of harassment and intimation by Chinese law enforcement as well as “fishing vessels.” Vietnam and the Philippines therefore lobbied ASEAN to issue a strong statement on the South China Sea when their Foreign Ministers met in Phnom Penh that year. All other ASEAN members agreed to the Vietnam and the Philippines proposal; however, Cambodia, the ASEAN chair, did not think it was an issue for ASEAN and a consensus could not be reached. For the first time, ASEAN Foreign Ministers could not issue a joint communiqué in July 2012. ­ASEAN’s most valuable asset, the “consensus principle” was exploited to a major power’s advantage, successfully silencing ASEAN’s voice on the South China Sea. However, the “sounds of silence” were surprisingly loud since the experience was an awakening call for ASEAN.31 Two months after the July 2012 failure, Indonesia championed ASEAN’s effort to regain an ASEAN consensus on the issue. After hectic shuttle diplomacy between regional capitals, thanks to respected veteran diplomat and Foreign Minister of Indonesia Marty Natalegawa, ASEAN Foreign Ministers agreed to a 6-point principle Document on the South China Sea, the clearest ASEAN’s statement on the South China Sea to date.32 The statement would serve as the basis for ASEAN’s position on the South China Sea issue. In the statement, ASEAN Foreign Ministers reiterated the need to fully respect UNCLOS, implying respect for member states’ EEZs and rejection of claims not based on UNCLOS, such as the ninedashed-line and China’s claim of historical rights. It was only the second

ASEAN and the South China Sea  37 time in ASEAN’s history that the grouping issued a stand-alone statement on the South China Sea issue.

Taking a more proactive stance ASEAN was determined not to repeat the humiliating failure of 2012 on the South China Sea. The Philippines had just taken China to the Arbitral Tribunal under Annex VII of UNCLOS in January 2013. The South China Sea issue was becoming critical for Brunei in its chairmanship year 2013. Brunei, nevertheless, proactively handled the issue. Sultan Hassanal Bolkia visited the US in March and China in April 2014 to manage ASEAN’s relationship with the two major powers. The visit to China was especially important, as China’s new leader, Xi Jinping, had just taken office. In both, the South China Sea issue was high on the agenda of the discussions. In the US, the need to resolve the dispute by peaceful means in accordance with international law was stressed. In China, Brunei reiterated the need to fully implement the DoC, something China had always insisted when talking about the South China Sea. The Sultan of Brunei also visited the Philippines the same month, when both sides discussed how the South China Sea issue should be handled. For the smallest country of ASEAN, the diplomatic effort exerted to manage the South China Sea issue for ASEAN was considerable. ASEAN member states had been working together since 2011 to push ahead with a binding Code of Conduct to replace the ineffective DoC. Rounds of talks among the ASEAN officials and experts had been taking place to discuss possible elements of the CoC. ASEAN Senior Officials agreed to adopt a blueprint of the Code of Conduct titled the “ASEAN Proposed Elements of a Code of Conduct between ASEAN Member States and China” in June 2012. A noticeable difference in ASEAN’s second attempt to draft the CoC, compared to its effort a decade earlier, was the emphasis on handling maritime disputes and incidents rather than disputes over territories, reflecting a shift in ASEAN’s perception on the South China Sea issue. Problems that were encountered in the discussions on the CoC in 2002, such as the geographical scope and whether the CoC covered the Paracels, did not came up during these discussions. Instead, ASEAN was looking for a common interest shared by all members such as compliance with the rule of law, especially UNCLOS and the prevention of incidents that might destabilize the whole region. The blue print asked the parties to clarify the disputes in accordance with international law and UNCLOS, and called for their proper management to prevent escalation. ASEAN’s priority in the South China Sea thus shifted towards incident prevention and management. ASEAN Foreign Ministers joint communiqué in 2013 noted the suggestions for establishing hotlines of communication, and search and rescue missions for people and vessels in distress at sea.33 When China deployed the Haiyang Shiyou 981 oil rig into Vietnam’s EEZ in an area off the Paracels on 2 May 2014, it sparked a major crisis in

38  Nguyen Hung Son Vietnam–China bilateral relations. ASEAN, then under Myanmar’s chairmanship, reacted strongly and almost immediately. Just a week later, the ASEAN Foreign Ministers issued a statement, only the third such “stand alone” statements on the South China Sea, expressing serious concern on the “on-going development” there, which in the context of the crisis was a direct reference to the oil rig incident. The significance of this statement was that ASEAN was reacting to an incident in the Paracels, an area where ASEAN had always denied involvement as it was a dispute between China and Vietnam. Secondly, the statement was issued under Myanmar’s chairmanship, a member state with the least interest in the South China Sea and with very close ties to Beijing. ASEAN was now seeing the South China Sea more as a geopolitical issue threatening the whole group rather than any individual country where China sent the oilrig, but it was an issue of China’s policy towards neighbouring countries and how it was behaving as a major power. China might have miscalculated in choosing the location to send the HYSY 981 oilrig and underestimated ASEAN’s ability to unite on what China thought was a bilateral issue. Subsequently, during its chairmanship, Myanmar handled the South China Sea proactively and maintained ­ASEAN’s unity on the subject. Contrary to the fear that Myanmar could collapse under Beijing pressure it was well prepared when managing ASEAN’s leadership.34 By 2015, ASEAN was faced with a new reality in the South China Sea. China’s construction of artificial islands on a massive scale could not have been imagined by anyone. Malaysia, which led ASEAN in 2015, had very close ties to Beijing and a tradition of keeping its dispute with Beijing on the South China Sea low key, and out of the public domain. But Malaysia has increasingly been displeased with China’s encroachment into its EEZ by its fishermen, coast guards and most recently with its seemingly permanent anchoring of a coast guard vessel at Luconia Shoal that ­Malaysia claims. The annual joint communiqué of ASEAN Foreign Ministers in ­August 2015 took note of the serious concern expressed by some members in regard to China’s island reclamation. Malaysia also pushed for the actual implementation of incident prevention and management measures, such as the establishment of hotlines between forces “on the ground.” A significant development during Malaysia’s chairmanship was the elevation of the ASEAN–US relationship to a strategic partnership in November 2015. In the ASEAN–US joint statement on the occasion, the two sides reiterated their commitment to a rules-based approach in Asia, respect for international law and peaceful resolution of disputes.35 Though the statement did not mention the South China Sea by name, ASEAN now saw the South China Sea issue in a broader security context of the region, and realized that geo-strategic ambition and competition among the powers was a major determinant of regional security, the South China Sea included. When the Arbitral Tribunal’s rulings were made public in 2016, several ASEAN members spoke out in support. Vietnam welcomed the rulings and

ASEAN and the South China Sea  39 Prime Minister Lee Hsien Loong of Singapore said that “the ruling of the tribunal has made a strong statement on what the international law is.”36 Singapore’s Ministry of Foreign Affairs called for respect for “diplomatic and legal processes.” Myanmar made a statement endorsing the ruling as a way of peacefully resolving the dispute.37 Thailand expressed support for the rulings as a way to deal with the problem. Although ASEAN did not explicitly hail the ruling, judging that this act might be counterproductive, ASEAN Foreign Ministers’ communiqué reiterated ASEAN’s joint commitment to “peaceful resolution of disputes, including full respect to legal and diplomatic processes,” an indirect way of expressing endorsement of the Tribunal’s rulings.38 Realizing that the South China Sea had become a strategic competition ground between the major powers, ASEAN proactively took steps to ensure it would not be side-lined and its centrality over matters concerning its own region would continue. ASEAN held its first ever summit with the US in Sunnylands, California, in February 2016, a move to reinforce the strategic balance given the changing power configuration in the region. In October 2018, ASEAN and the US defence ministers reached agreement to commence joint naval exercises in 2019, a bold move and a clear departure from ASEAN’s tradition of refraining from close defence cooperation with any of its dialogue partners. When the US formally announced its Free and Open Indo-Pacific Strategy (FOIP), it was followed by other regional powers views on the concept such as Japan and India.39 ASEAN actively formulated its own outlook on the Indo-Pacific region to ensure that it would not be trapped in a possible confrontation between the powers. It continued to promote confidence building, strategic reassurance by advocating openness, transparency and inclusivity, as well as cooperation. As the FOIP concept itself is evolving, ASEAN is also consulting among its own members to develop an outlook Document and plans to release it in 2019. As of March 2019, the ASEAN Senior Officials have agreed to a draft of the ASEAN’s outlook on the Indo-Pacific but the text needs to be approved by the ASEAN leaders.40 ASEAN understands that the FOIP has the maritime domain at its core and the South China Sea issue is embedded in a larger geostrategic landscape where changes are taking place, with possible new dynamics and nuances.

Conclusion This examination of ASEAN’s interaction with the South China Sea over the past ten years is by no means a complete and full review. Its aim was to show that ASEAN collectively as a group and individually has been reacting and responding differently at different times to the various aspects of the South China Sea issue. More often than not, depending on the time, ASEAN member states have had different perceptions as to what the South China Sea problem entailed, and hence acted and responded in different ways. On several occasions, a common view and consensus could not be

40  Nguyen Hung Son reached on the South China Sea because member states were talking about different things in the name South China Sea. Even when those views converged, the way to respond to events still differed among them. However, ASEAN’s understanding and perception of the South China Sea issue has developed considerably over the past ten years. This is because the South China Sea issue has escalated and grown in terms of layers of meaning and complexity and has affected ASEAN’s credibility. ASEAN has learned and has become more effective in handling the issue that once was considered a taboo. It has managed to overcome certain institutional limitations and modified the “ASEAN way” to better cope with new challenges. An example is ASEAN ability to appoint a leader among its member states to guide it through those times when the incumbent chairman faces serious difficulties. ASEAN overcame the self-imposed constraints on closer defence cooperation among its members which are based on the fear of sending the wrong signals to the outside world that ASEAN is a military grouping or militarily aligned with outside powers. The increased maturity ASEAN has revealed in dealing with the South China Sea, however, does not imply enhanced efficiency. ASEAN still has much to do to manage the South China Sea issue effectively. For example, ASEAN could try to disassemble the South China Sea issue into components and build an ASEAN common view and policy on each one of these components. ASEAN already has formulated a common policy on some aspects of the issue through its Indo-Pacific Outlook. The 33rd ASEAN Summit emphasized that the Indo-Pacific region needs to embrace the rules-based approach, a reference to system of international law, including the UN Charter and its many conventions and treaties.41 ASEAN also has discussed various components of the South China Sea issues at various times. Since partial consensus on the parts might be easier to reach and more meaningful than having no consensus, a policy on each specific aspect of the South China Sea issue is what ASEAN needs.

Notes 1 Jenifer Laeng, China Coast Guard vessel found at Luconia Shoals, reported by The Borneo Post, 3 June 2015, accessed 15 December 2018, www.theborneopost. com/2015/06/03/china-coast-guard-vessel-found-at-luconia-shoals/. 2 Mariline Ten, China Coast Guard vessel at Luconia Shoals not permanent, reported by The Borneo Post, 11 March 2016, accessed 15 December 2018, www. theborneopost.com/2016/03/11/china-coast-guard-vessel-at-luconia-shoals-notpermanent/. 3 Note verbale sent by Chinese Permanent Mission to the UN, dated 7 May 2009, accessed 15 December 2018, www.un.org/depts/los/clcs_new/submissions_files/ mysvnm33_09/-chn_2009re_mys_vnm_e.pdf. 4 Bill Gertz, Beijing Adopts New Tactic for S. China Sea Claims, reported on 21 September 2017, accessed 15 December 2018, https://freebeacon.com/nationalsecurity/beijing-adopts-new-tactic-s-china-sea-claims/. 5 Chung Li-hua, Tsai to avoid “U-shaped line,” report by Taipei Times on 15 July 2016, accessed 15 December 2018, www.taipeitimes.com/News/front/archives/ 2016/07/15/2003651053.

ASEAN and the South China Sea  41 6 Full text of the Vietnam Law of the Sea (in Vietnamese), Vietnam Government website, http://vanban.chinhphu.vn/portal/page/portal/chinhphu/hethongvanban? class_id=1&_page=1&mode=detail&Document_id=163056. 7 Note No. CML/17/2009 by the PRC to UN, dated 6 May 2009, UN website, accessed 30 March 2019, www.un.org/depts/los/clcs_new/submissions_files/­ mysvnm33_09/chn_2009-re_mys_vnm_e.pdf. 8 Note No. 86/HC-2009 by Vietnam to the UN, dated 7 May 2009, UN website, accessed 30 March 2019, www.un.org/Depts/los/LEGISLATIONANDTREATIES/ PDFFILES/DEPOSIT/-communicationsredeposit/mzn69_2009_vnm.pdf. 9 Note No. 480/POL-803/VII/10 by Indonesia to the UN, dated 8 July 2010, UN website, accessed 30 March 2019, www.un.org/depts/los/clcs_new/submissions_ files/mysvnm33_09/-idn_2010re_mys_vnm_e.pdf. 10 Note No. 000228 by the Philippines to the UN, dated 5 April 2011, UN website, accessed 30 March 2019, www.un.org/Depts/los/clcs_new/submissions_files/ mysvnm33_09/-phl_re_chn_2011.pdf. 11 United States Department of States, Bureau of Oceans and International Environmental and Scientific Affairs, Limits in the seas—No. 143 (2014), accessed 30 March 2019; www.state.gov/Documents/organization/234936.pdf. 12 B.A. Hamzah, “China’s James Shoal Claim: Malaysia the Undisputed Owner,” RSIS Commentaries, dated 1st July 2014, accessed 15 December 2018, www.rsis. edu.sg/wp-content/uploads/2014/07/CO14122.pdf. 13 Joint Statement of the 15th ASEAN-China Summit, Phnom Penh, Cambodia, 19 November 2012. 14 China Society of International Law, The South China Sea Arbitral Award: A Critical Study, Chinese Journal of International Law, Vol. 17, No. 2 (June 2018), para 538, p. 472, accessed on 15 December 2018, https://academic.oup.com/ chinesejil/article/17/2/207/4995682. 15 Clive Schofield’s, A Landmark Decision in the South China Sea: The Scope and Implications of the Arbitral Tribunal’s Award, Contemporary South East Asia, Vol. 38, No. 3 (2016), pp. 339–348. 16 China Society of International Law, op. cit., para 658, p. 525. 17 ASEAN-China Summit Joint Statement to commemorate 25th Anniversary of relationship, https://asean.org/storage/2016/09/Joint-Statement-of-ASEAN-­ China-Commemorative-Summit-Final.pdf. 18 J. Chan, “Clinton’s ASEAN appearance signals US back in Asia,” 28 July 2009, accessed 15 December 2019, www.wsws.org/en/articles/2009/07/clin-j28.html. 19 Hillary Clinton, “America’s Pacific Century,” Foreign Policy, 11 October 2011, accessed 15 December 2018, https://foreignpolicy.com/2011/10/11/americaspacific-century/. 20 “1992 ASEAN Declaration on The South China Sea,” accessed 15 December 2018, https://cil.nus.edu.sg/wp-content/uploads/2017/07/1992-ASEAN-Declarationon-the-South-China-Sea.pdf. 21 Rodolfo C. Severino, ASEAN and the South China Sea, Security Challenges, Vol. 6, No. 2 (Winter 2010), pp. 37–47, accessed 15 December 2018, www.regional security.org.au/Resources/Documents/vol6no2Severino.pdf. 22 Marites Danguilan Vitug, “Rock Solid: How the Philippines Won Its Maritime Case Against China,” Bughaw (2018), p. 32. 23 The 28th ASEAN Foreign Ministers’ Joint communiqué, ASEAN Secretariat website, https://asean.org/?static_post=joint-communique-of-the-twenty-eighthasean-ministerial-meeting-bandar-seri-begawan-29-30-july-1995. 24 Rodolfo C. Severino, op. cit., pp. 37–47. 25 Interviews with various ASEAN officials between 2000 and 2008. 26 “China’s National Defence in 2006,” accessed 15 December 2018, www.china. org.cn/english/features/book/194421.htm.

42  Nguyen Hung Son 27 “China’s Ocean Development Report 2014,” China Ocean Press, p. 192. 28 Dewi Fortuna Anwar, Indonesia’s foreign relations: policy shaped by the ideal of ‘dynamic equilibrium,’ dated 4 February 2014, accessed 15 December 2018, http://www.eastasiaforum.org/2014/02/04/indonesias-foreign-relations-policyshaped-by-the-ideal-of-dynamic-equilibrium/. 29 Statement of the Philippines Secretary of Foreign Affairs Albert F. del Rosario to the ASEAN Foreign Ministers meeting on the FoPFF/C, 15 November 2011, www.officialgazette.gov.ph/2011/11/15/the-secretary-of-foreign-affairs-on-thewest-philippine-sea-november-15-2011/. 30 Barry Wain, “Towards Peace and Prosperity in the South China Sea: Pathways for Regional Cooperation,” Paper presented at Forum on the South China Sea, Manila, October 17, 2011. 31 Tan Seng Chye, After the Phnom Penh AMM Failure: ASEAN needs to regain cohesion and solidarity, RSIS Commentary, dated 16 July 2012, accessed 15 ­December 2018, www.rsis.edu.sg/wp-content/uploads/2014/07/CO12129.pdf. 32 “Statement of ASEAN Foreign Ministers on ASEAN’s Six-Point Principles on the South China Sea,” a copy of which can be found at https://www.asean.org/ storage/images/AFMs Statement on 6 Principles on SCS.pdf. 33 The 46th ASEAN Foreign Ministers Joint Communiqué, ASEAN Secretariat website, accessed 15 December 2018, https://www.asean.org/wp-content/uploads/ images/2013/news/joint communique of the 46th asean foreign ministers meeting 46th amm - final - 30 june 2013.pdf. 34 Jeremie Credo, Myanmar’s ASEAN Leadership: Progress on the South China Sea, Foreign Service Institute of the Philippines, Issue 7, September 2014, ­accessed 15 December 2018, www.fsi.gov.ph/cirss-commentaries/myanmarsasean-­l eadership-progress-on-the-south-china-sea-by-jeremie-credo-issue-7september-2014/. 35 Joint Statement on the ASEAN-US Strategic Partnership, 21 November 2015, ­accessed ASEAN’s website www.asean.org/wp-content/uploads/2015/12/­ASEANUS-Joint-Statement_Adopted.pdf. 36 PM Lee Hsien Loong’s Dialogue at the US Chamber of Commerce/US ASEAN Business Council Reception, Singapore PM website, www.pmo.gov.sg/news room/pm-lee-hsien-loongs-dialogue-us-chamber-commerceus-asean-businesscouncil-reception. 37 Myanmar’s Statement on the Award of the Arbitral Tribunal on the South China Sea under Annexure VII of UNCLOS, Myanmar Prime Minister’s office website, accessed 15 December 2018, www.president-office.gov.mm/en/?q=issues/ foreign-policy/id-6479. 38 The 49th ASEAN Foreign Ministers Joint Communiqué, ASEAN Secretariat website, https://asean.org/wp-content/uploads/2016/07/Joint-Communique-ofthe-49th-AMM-ADOPTED.pdf. 39 US’s President Donald Trump speech at APEC CEO Summit, highlighting US’s Indo-Pacific vision for the first time, accessed 15 December 2018, www. whitehouse.gov/briefings-statements/remarks-president-trump-apec-ceosummit-da-nang-vietnam/. 40 According to the Thailand ASEAN Chairmanship official website, www.asean 2019.go.th/en/news/asean-senior-officials-meeting-som-retreat-on-asean-­ collective-concept-an-indo-pacific-outlook-8-march-2019-chiang-rai-thailand/. 41 Thirty third ASEAN Summit Joint Statement, ASEAN’s website, para 43, https:// asean.org/storage/2018/11/33rd_ASEAN_Summit_Chairman_s_Statement_ Final.pdf.

3 ASEAN, China, and the Code of Conduct Carlyle A. Thayer

Introduction This chapter presents an overview of efforts by the Association of Southeast Asian Nations (ASEAN) to manage disputes in the South China Sea from 1992 to 2018. It is divided into three parts. Part 1 reviews ten major turning points over this 26-year period as ASEAN members and China slowly edged toward the completion of a final Code of Conduct in the South China Sea (CoC). Part 2 discusses six general provisions in the ASEAN-China Single Draft South China Sea Negotiating Text (SDNT) reached in August 2018: duty to cooperate, promotion of practical maritime cooperation, self-­ restraint/promotion of trust and confidence, prevention of incidents, management of incidents, and other undertakings. Part 3 assesses six major outstanding issues that need to be resolved before a final CoC in the South China Sea can be adopted.

Part 1 ASEAN-China and the Code of Conduct, 1995–2018 This part discusses ten key turning points in ASEAN’s protracted quest for a CoC: ASEAN statements of concern on developments in the South China Sea (July 1992 and March 1995), ASEAN-China Draft Codes of Conduct (March 2000), Declaration on the Conduct of Parties in the South China Sea (November 2002), Terms of Reference for the ASEAN -China Joint Working Group to Implement the DoC (December 2004), Guidelines to Implement the DoC (July 2011), ASEAN’s Proposed Elements of a Regional Code of Conduct in the South China Sea (June 2012), ASEAN’s Six Principles on the South China Sea (July 2012), ASEAN Consensus on the South China Sea (July 2016), Hot Lines and the Code for Unplanned Encounters at Sea (August 2016), Framework for the Code of Conduct (August 2017), and the Single Draft South China Sea Code of Conduct Negotiating Text (August 2018). These are discussed in turn. ASEAN statements of concern on developments in the South China Sea ASEAN issued its first statement of concern on the South China Sea in July 1992 following several confrontations at sea between Chinese and

44  Carlyle A. Thayer Vietnamese vessels in the waters near Vanguard Bank.1 The ASEAN statement contained key components that would later be incorporated into the Declaration on the Conduct of Parties in the South China Sea (DoC): the peaceful settlement of disputes, the exercise of restraint, and four basic areas of cooperation. The ASEAN Declaration (1992) included three principles that have been repeated subsequently. First, all parties should resolve their sovereignty and jurisdictional disputes through peaceful means without the resort to force. Second, all parties should exercise restraint to create an environment conducive to the resolution of disputes. Third, without prejudice to existing claims to sovereignty and jurisdiction, all parties explore cooperation in five areas: safety of maritime navigation and communication, protection of the marine environment from pollution, coordination in search and rescue, combatting piracy and armed robbery, and countering trafficking in drugs. In March 1995, in response to China’s occupation of Mischief Reef late the previous year, ASEAN foreign ministers issued their second statement on the South China in which “they expressed their concern over recent events” without directly naming the parties concerned.2 This statement reaffirmed ASEAN’s commitment to the principles in its 1992 statement and added two new elements: refrain from actions that could undermine freedom of navigation and aviation and the promotion of confidence building measures (CBMs). ASEAN-China Draft Codes of Conduct In the aftermath of the Mischief Reef incident ASEAN members and China held diplomatic discussions on a CoC in the South China Sea. In March 2000, ASEAN and China exchanged their respective drafts but were unable to consolidate them into a final agreed text.3 Four major areas of disagreement emerged: the geographic scope, restrictions on construction on occupied and unoccupied features, military activities in waters adjacent to the Spratly Islands, and whether or not fishermen found in disputed waters could be detained and arrested. China’s draft CoC was limited to the Nansha Islands (Spratly Islands), while the ASEAN draft only referred to disputed areas. Declaration on the Conduct of Parties in the South China Sea After two years of negotiations, it became evident that no agreement on a CoC was possible. In November 2002, as a compromise, ASEAN member states and China signed a non-binding political statement known as the Declaration on the Conduct of Parties in the South China Sea (DoC).4 The DoC is a seminal Document whose implementation is regarded by all parties to disputes in the South China Sea as a prerequisite to the final adoption of the CoC by consensus. The DoC introduced the concept of “self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and

ASEAN, China, and the Code of Conduct  45 stability.” Specifically, the DoC called on all parties to refrain “from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features….” The call for self-restraint has been included in all major ASEAN statements on the South China Sea from 2002 to the present. The DoC proposed four CBMs: dialogues and exchanges of views between defence and military officials; humane treatment of all persons who are in danger or distress; voluntary advanced notification of joint or combined military exercises; and the voluntary exchange of relevant information. Finally, the DoC proposed five cooperative activities that later became the basis of working groups between ASEAN members and China. These five activities included marine environmental protection; marine scientific research; safety of navigation and communication at sea; search and rescue operation; and combating transnational crime, including but not limited to trafficking in illicit drugs, piracy and armed robbery at sea, and illegal traffic in arms. Terms of Reference for ASEAN-China Joint Working Group to Implement the DoC In December 2004 ASEAN and Chinese Senior Officials reached an agreement on the Terms of Reference for the ASEAN-China Joint Working Group to Implement the DoC (ASEAN-China JWG).5 At the first JWC meeting in August 2005, ASEAN tabled draft Guidelines to Implement the DoC. Point two of the ASEAN draft called for ASEAN consultations prior to meeting with China. China opposed this and counter-argued that sovereignty and jurisdictional disputes could only be resolved bilaterally directly by the parties concerned. In other words, China opposed any involvement by ASEAN as a multilateral institution. This disagreement became a major sticking point over the course of the following six years and no less than 21 successive drafts were exchanged before ASEAN folded.6 Guidelines to Implement the DoC In July 2011, the Guidelines to Implement the DoC was finally agreed after ASEAN amended Point 2 to read: “to promote dialogue and consultation among the parties.”7 A new point was added to the original ASEAN draft specifying that activities and projects carried out under the DoC should be reported to the ASEAN-China Ministerial Meeting. In all other respects the final guidelines were word for word the same as the original ASEAN draft tabled in 2005. In January 2012, ASEAN and Chinese senior officials commenced discussions in Beijing on the implementation of the guidelines.8 This meeting agreed to set up four expert committees on maritime scientific research, environmental protection, search and rescue, and transnational crime. Significantly no expert committee on safety of navigation and communication at sea was established at that time due to its contentious nature. The adoption of the DoC Guidelines led ASEAN officials to consider

46  Carlyle A. Thayer how to implement a clause in the 2002 DoC to adopt “a code of conduct in the South China Sea… on the basis of consensus.” In January 2012, the Philippines circulated an informal working draft simply titled, “Philippines Draft Code of Conduct.” ASEAN senior officials began discussions on this draft with the intention of reaching a common position before presenting it to China for discussion. China insisted, however, that the DoC Guidelines should be implemented first. China also announced that it would discuss the CoC with ASEAN at an “appropriate timing” or when “appropriate conditions” were met. As ASEAN discussions progressed China changed position and sought to join ASEAN officials in drafting the CoC. China’s demarche quickly became a contentious issue within ASEAN. At the 20th ASEAN Summit in Phnom Penh in April, Cambodia, the ASEAN Chair, pushed for China’s inclusion in ASEAN discussions. The Philippines and Vietnam objected strongly, and a compromise was reached. It was agreed that ASEAN would proceed on its own to draft a CoC, while communication with China would take place through the ASEAN Chair. ASEAN’s Proposed Elements of a Regional Code of Conduct in the South China Sea ASEAN Senior Officials quickly accomplished their task. On 13 June 2012 a special Working Group reached agreement on key elements to be included in ASEAN’s draft CoC in the South China Sea after only seven meetings. This document was formally approved by a meeting of ASEAN Senior Officials in Phnom Penh from 6 to 7 July. The draft was transmitted to ASEAN Foreign Ministers for their approval.9 ASEAN Foreign Ministers held their 45th Annual Ministerial Meeting (AMM) in Phnom Penh from 8 to 13 July 2012. On 9 July, the ministers unanimously approved “ASEAN’s Proposed Elements of a Regional Code of Conduct in the South China Sea (CoC) between ASEAN Member States and the People’s Republic of China.”10 The Foreign Ministers also directed ASEAN Senior Officials to meet with their Chinese counterparts to complete negotiations on the CoC. These positive developments were quickly marred by the extraordinary events at the AMM Retreat held on the evening of 9 July.11 Cambodia’s foreign minister Hor Namhong, as ASEAN Chair, delegated the task of drawing up the joint statement on AMM discussions to a working group composed of the foreign ministers from Indonesia, Malaysia, the Philippines, and Vietnam. When the draft joint statement was tabled at the AMM Retreat Cambodia objected to the wording of two paragraphs summarizing discussions on the South China Sea. The draft mentioned the Philippines’ objections to the deployment of Chinese paramilitary vessels to Scarborough Shoal, and ­Vietnam’s objections to China’s announcement that it was leasing oil blocks that fell within Vietnam’s Exclusive Economic Zone. Cambodia insisted that these were bilateral issues and should not be included in the AMM joint statement. Despite repeated attempts to broker a compromise over the

ASEAN, China, and the Code of Conduct  47 wording of the South China Sea section of the joint statement by Indonesia and Singapore, Cambodia remained firm. Hor Namhong reportedly rejected the wording of 18 successive drafts. As a result, no joint statement was issued. This was unprecedented in ASEAN’s 45-year history. ASEAN’s Six Principles on the South China Sea ASEAN’s disarray proved temporary. Amidst the recriminations that followed the ASEAN’s 45th AMM, Marty Natalegawa, Indonesia’s Foreign Minister, initiated consultations with his ASEAN counterparts in an effort to restore unity and commit ASEAN to a common position on the South China Sea. Marty conducted an intense round of shuttle diplomacy flying to five capitols (Manila, Hanoi, Bangkok, Phnom Penh, and Singapore) over a two-day period (18–19 July). Marty and Philippine Foreign Secretary Albert del Rosario met first and agreed to a six-point proposal that Marty put to his other ASEAN counterparts. After he obtained their agreement Marty informed Cambodia’s Hor Namhong and left it to him as ASEAN Chair to complete the diplomatic formalities. On 20 July 2012, Hor Namhong, officially released ASEAN’s Six-Point Principles on the South China Sea.12 All ASEAN Foreign Ministers reaffirmed their commitment to the following: • • • • • •

The full implementation of the DoC Guidelines for the Implementation of the DoC The early conclusion of a Regional CoC in the South China Sea Full respect of the universally recognized principles of international law including the 1982 United Nations Convention on the Law of the Sea (UNCLOS) Continued exercise of self-restraint and non-use of force by all parties Peaceful resolution of disputes in accordance the universally recognized principles of international law including the 1982 UNCLOS

In January 2013, the Philippines, without consultation with other ASEAN members, filed a claim against China under UNCLOS Annex VII. After several months of diplomatic exchanges, China and ASEAN commenced their first consultations on the CoC under the umbrella of the ASEAN-China JWG to Implement the DoC at a meeting of Senior Officials in Suzhou, on 13 September 2013. At the 12th ASEAN-China SOM held in Quang Ninh, Vietnam on 9 June 2014, Senior Officials discussed the nature of the CoC as well as approaches to designing it for the first time. They also reached agreement to draft guidelines for a hotline to respond to urgent incidents at sea and complete the wording of the ASEAN-China Joint Statement on the Implementation of the Code for Unplanned Encounters at Sea (CUES). ASEAN’s desire to press China to quicken the pace on consultations on the CoC collided with Beijing’s obstructionism at the China-ASEAN Foreign Ministers Special Meeting held in Kunming on 14 June 2016. This meeting

48  Carlyle A. Thayer was co-chaired by China and Singapore, as ASEAN’s country coordinator for China. Prior to the meeting ASEAN ministers signed off on an agreed press statement that expressed their frustration: We noted that 2016 is a milestone for ASEAN-China relations as it marks the 25th Anniversary of ASEAN-China dialogue relations. We look forward to working together with China to bring ASEAN-China cooperation to the next level. But we also cannot ignore what is happening in the South China Sea as it is an important issue in the relations and cooperation between ASEAN and China. This is the context in which this Special ASEAN-China Foreign Ministers’ Meeting was held today.13 (emphasis added) The press statement was anathema to Beijing because China had long argued that the South China Sea was a bilateral matter that did not involve ASEAN. China, therefore, exerted heavy diplomatic pressure on ASEAN ministers to drop their press statement and agree to a Chinese ten-point declaration instead. Cambodia played a willing accomplice to China’s heavy-handedness and scuttled ASEAN’s consensus. The special meeting ended in disarray. Singapore’s foreign minister left early rather than attend the joint press conference. Malaysia, the Philippines, and Vietnam later published copies of the press statement in their media.14 On 12 July 2016, the Arbitral Tribunal hearing the claims brought by the Philippines against China issued a unanimous Award that found against China on all but one matter. Chinese propaganda then went into high gear to attack the probity of the judges and the legal basis of their Award. Initially only two ASEAN members, the Philippines and Vietnam, issued statements acknowledging the Award by name. Since then all ASEAN members have used the circumlocution “legal and diplomatic processes” to avoid offending China by directly referring to the Award by the Arbitral Tribunal. Rodrigo Durtete, newly elected president of the Philippines, set aside the Award in order to placate if not ingratiate himself to China. ASEAN Consensus on the South China Sea ASEAN responded by putting on a show of unity at the 49th AMM in Vientiane in July 2016. They adopted four statements that laid out ASEAN Consensus on a variety of issues: • •

ASEAN Foreign Ministers’ Statement on the Occasion of the 40th ­Anniversary of the Treaty of Amity and Cooperation in Southeast Asia (TAC)15 Joint Communiqué of the 49th ASEAN Foreign Ministers’ Meeting, Vientiane, 24 July 201616

ASEAN, China, and the Code of Conduct  49 • •

Joint Statement of the Foreign Ministers of ASEAN Member States and China on the Full and Effective Implementation of the Declaration on the Conduct of Parties in the South China Sea (25 July 2016)17 Joint Statement of the Foreign Ministers of ASEAN Members States on the Maintenance of Peace, Security and Stability in the Region, 25 July 201618

Hot Lines and the Code for Unplanned Encounters at Sea The following month Chinese and ASEAN Senior Officials met in China for their third meeting of the year and made notable progress in three areas. First, they approved guidelines for a hotline for use during maritime emergencies. Second, they agreed that CUES applied to the South China Sea. Third, they agreed to complete a draft framework for the CoC by mid2017. The ASEAN Foreign Ministers’ new consensus was endorsed by the combined 28th and 29th ASEAN Summits held in Vientiane in September. ASEAN leaders took note of and endorsed the four key documents issued after the 49th AMM. Framework for the Code of Conduct and and Single Draft South China Sea Code of Conduct Negotiating Text In August 2017, ASEAN members and China adopted the Framework for the Code of Conduct, a brief Document that outlined the three-part structure of the future CoC—preambular provisions, general provisions, and final clauses. This Document marked a new phase in ASEAN’s quest for a regional CoC.19

Part 2 ASEAN-China South China Sea Code of Conduct On 3 August 2018, the Foreign Ministers from ASEAN members and China adopted the Single Draft South China Sea Code of Conduct Negotiating Text (Single Draft Negotiating Text or SDNT).20 The SDNT is an unwieldy Document that cobbles together a range of proposals from nine countries: Brunei, Cambodia, China, Indonesia, Malaysia, the Philippines, Singapore, and Vietnam. Laos and Myanmar did not table any proposals for inclusion in the SDNT. The SDNT is characterized as a “living Document” subject to further revision. It is expected to pass through three readings before adoption. A proposal by the Philippines, if agreed, would permit “agreed processes, guidelines and protocols” to be annexed to the final CoC. The structure of the SDNT follows the outline of the Framework for the CoC discussed above. Section 2 General Provisions is the most substantial part of the SDNT as it sets out the objectives and principles of the CoC. Three key objectives are identified. First, the CoC is envisaged as a rules-based

50  Carlyle A. Thayer framework that sets out the norms to guide the conduct of parties in the South China Sea. Second, the CoC aims to promote CBMs, prevent incidents, manage incidents if they occur, and resolve disputes through peaceful means. Third, the CoC aims to “ensure maritime security and safety and freedom of navigation and overflight.” The SDNT sets out four basic principles. First, and significantly, the CoC is not a legal instrument to settle territorial disputes or maritime delimitation issues. Second, all parties to the CoC are to respect “universally recognized principles of international law” including the Charter of the United Nations and UNCLOS. Third, all parties commit to the full and effective implementation of the DoC. And fourth, all parties agree to respect each other’s “independence, sovereignty and territorial integrity… and the principle of non-interference in the internal affairs of other states.” The SDNT sets out a compendium of six basic undertakings based on inputs from nine parties. There is much overlap as well as starkly contrasting proposals. The following sections summarize the initial position of the parties. Duty to cooperate The SDNT directly incorporates provisions from UNCLOS, namely that all state signatories have a duty to cooperate to protect the marine environment in a semi-enclosed sea and, pending settlement of disputes, state signatories should enter into arrangements of a practical nature.21 Promotion of practical maritime cooperation The Philippines, Indonesia, and Singapore jointly, China, and Cambodia submitted individual options for the promotion of practical maritime cooperation. Additionally, Vietnam tabled a separate proposal to replace all these recommendations with its own. The options submitted by the Philippines, Indonesia, and Singapore jointly, and Cambodia overlap substantially. For example, they all include the five areas of cooperation present in the DoC (marine environmental protection, marine scientific research, safety of navigation and communication at sea, search and rescue operation, and combatting transnational crime including but not limited to trafficking in illicit drugs, piracy and armed robbery at sea, and illegal traffic in arms). Indonesia’s option included illegal fishing under transnational crime a major area of concern to Jakarta, while Cambodia added marine connectivity to the list. China proposed six areas of cooperation that overlapped with but in some cases were differently worded from the proposals submitted by the Philippines, Indonesia, and Singapore jointly, and Cambodia. For example, China included the development and conservation of fishing resources and cooperation in maritime law enforcement and security, search and rescue, marine economy, and marine culture. In order to achieve cooperation in these areas China proposed the

ASEAN, China, and the Code of Conduct  51 establishment of three technical committees: navigation safety and search and rescue, marine scientific research and environmental protection, and combating transnational crimes at sea. Most significantly China’s proposal on cooperation on the marine economy states that cooperation is to be carried out by the littoral states “and shall not be conducted in cooperation with companies from countries outside the region.” In contrast, Malaysia proposed that nothing in the CoC “shall affect… rights or ability of the Parties to conduct activities with foreign countries or private entities of their own choosing.” No doubt negotiators will have to draw China out on the details of its proposals and reconcile the obvious differences in approach between China and Malaysia, Self-restraint/promotion of trust and confidence Three countries tabled proposals under this heading—Indonesia, China, and the Philippines. Indonesia suggested the four CBMs included in the DoC. China and the Philippines joined together to address the treatment of fishermen, a contentious issue among claimant states. China and the Philippines drew on the DoC to call for the “just and humane treatment of all persons who are either in danger or in distress in the South China Sea.” The Philippines added an additional point calling for “respect of the exercise of traditional fishing rights by fishermen… [and] access to features and fishing grounds,” an obvious reference to China’s occupation of Scarborough Shoal. China submitted five proposals dealing with cooperation between military and law enforcement officials. These proposals were aimed at legitimizing the presence of Chinese maritime law enforcement vessels and naval ships in the South China Sea and binding ASEAN members to China by excluding so-called outside powers such as the US. For example, China stipulated that military activities should be aimed at enhancing mutual trust including reciprocal port visits, joint patrols and regular joint military exercises. China sought to entrench its naval presence by underscoring that military vessels and aircraft enjoy sovereign immunity and are “immune from the jurisdiction of any State other than the flag state.” Further, military vessels and aircraft are entitled to self-defence, “but should have due regard for the other side’s military vessels and military aircraft…” With respect to outside powers, China sought virtual veto power over their participation in regional military exercises by requiring prior notification and “no objection” by a regional state. Vietnam, on the other hand, suggested that the parties give notification of “impending joint/combined military exercise/drill” in the South China Sea 60 days in advance without requiring the consent of other states. Prevention of incidents Eight countries submitted a total of seven CBMs under this heading. The first proposal was endorsed by Cambodia, China, Indonesia, Singapore,

52  Carlyle A. Thayer and Thailand. It called for compliance with five international laws and instruments: the 1972 International Regulations for Preventing Collisions at Sea (COLREG), the 1974 International Convention for the Safety of Life at Sea (SOLAS), the 1979 International Convention on Maritime Search and Rescue (SAR), the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA), and the 1990 International Convention on Oil Pollution Preparedness, Response and Co-operation. This proposal also called for the application of operational procedures for the promotion of safety of overflight and navigation under the International Civil Aviation Organization (ICAO) and the International Maritime Organization (IMO). The Philippines tabled two proposals. The first called for governments “at the appropriate level” to adopt “processes, guidelines and notification protocols to operationalize the Parties’ obligation to exercise self-restraint in the South China Sea, and mechanisms at the appropriate levels to ensure their implementation.” The second proposal recommended that “these agreed processes, guidelines and protocols… shall be annexed to this Code.” A proposal tabled by China stated that bi- and multilateral cooperation among maritime law enforcement agencies should “adopt an incremental approach and gradually explore the establishment of cooperation mechanisms.” Brunei suggested that the ASEAN-China Maritime Cooperation Fund be used to finance capacity-building projects such as “English language enrichment projects at the operational level, including with naval and law enforcement agencies.” Thailand, called on all parties to “carry out and enhance the early harvest measures…” [to] create a conducive atmosphere for strengthening confidence and mutual trust. The seventh proposed CBM was submitted by ­Malaysia; it called on the parties “to prevent incidents that would affect trust and confidence, and peace and stability in the South China Sea.” Management of incidents This section of the SDNT included the most detailed submissions for the management of incidents at sea. Eight countries contributed 11 proposals with China and Indonesia playing a prominent role. Three of the proposals called for compliance with the international laws and instruments to ensure safety of navigation and the management of incidents/collisions at sea including 1972 COLREG, 1974 SOLAS, International Ship and Port Facility Security Code (ISPC Code), and Code for Unplanned Encounters at Sea. China proposed that the parties “carry out joint exercises for the implementation of CUES” and “develop bilateral and multilateral codes for maritime and air encounters of military ships and aircraft, consistent with the purposes and principles of the CoC.” The use of hotlines featured prominently as a means of managing incidents. Brunei, Cambodia, China, Indonesia, and Singapore all supported

ASEAN, China, and the Code of Conduct  53 the use of the MFA-to-MFA (Ministry of Foreign Affairs-to-Ministry of Foreign Affairs) Hotline established to promote immediate and effective exchange of information and views and coordination among the MFAs of the ASEAN Member States and China with regard to maritime emergencies that require immediate policy-level intervention, in relation to the full and effective implementation of the Code, to promote confidence. China recommended the establishment of bilateral and multilateral military hotlines among the defence authorities at all levels and hotline platforms among maritime law enforcement agencies. China called for the early launch of “the Hotline Platform on Search and Rescue Among China and ASEAN Member states,” and consideration of hotline platforms in other fields where there is a practical need. Indonesia tabled the most constructive and detailed proposals for the rules and procedures to manage and resolve incidents. These included a detailed written chronology by all parties to an incident to be supplemented with visual recordings and an immediate after-action review by the relevant naval authorities. Indonesia also recommended that hotlines between the Ministers of Foreign Affairs or other diplomatic channels be used to facilitate a timely resolution of incidents including formal ASEAN-China mechanisms if necessary. Failing that, Indonesia suggested the parties to an unresolved dispute could take the matter to the High Council established by the ASEAN Treaty of Amity and Cooperation or to an appropriate international dispute settlement mechanism. Other undertakings The SDNT contained two options for monitoring implementation. The first option was supported by Brunei, Cambodia, China, Malaysia, and Singapore; it vested responsibility with the ASEAN-China Senior Officials’ Meeting. The second option, proposed by Vietnam, recommended setting up a Commission led by foreign ministers or their representatives. Alternate to Section 2.c Basic Undertakings Vietnam tabled 21 proposals divided into two sections and recommended that they replace in its entirety all the proposals in Section 2.c (Basic Undertakings) summarized immediately above. Vietnam’s proposals were detailed and formed a coherent whole; many overlapped with those of other countries and could easily be merged when the SDNT is revised. Vietnam, however, also sought to protect its maritime entitlements under international law by calling on parties to the SDNT to respect “the maritime zones as provided for and established in accordance with the 1982 UNCLOS.” This proposal undercut China’s expansive nine-dash line claim to the South China Sea that the Arbitral Tribunal had ruled as without foundation in international law. The second section of Vietnam’s submission on Basic Undertakings contained seven highly detailed prescriptions aimed at curtailing what it viewed

54  Carlyle A. Thayer as aggressive and destabilizing actions by China. For example, Vietnam argued that maritime law enforcement agencies should not use coercion, force, or degrading treatment against foreign nationals in the conduct of their duties. On a more general level, Vietnam argued that no party should allow the use of its territories to “complicate or escalate disputes” such as constructing artificial islands, militarizing land features, blockading supply vessels, conducting simulated attacks, or declaring an Air Defence Identification Zone (ADIZ) in the South China Sea. The SDNT is important because it represents the collective view of 11 states who now share ownership of this Document. The SDNT marks the first time China and ASEAN members have moved beyond the CBMs and cooperative activities in the DoC to address the norms and principles to guide the resolution of disputes in the South China Sea. The most important recent developments have been the establishment of hotlines between foreign ministries and the adoption of CUES for naval vessels plying the waters of the South China Sea. Nonetheless, the SDNT is a work in progress. As soon as it was adopted by the foreign ministers from China and the ten ASEAN member states senior Chinese officials began cautioning that the text was complicated and would take up to three years to complete.

Part 3 what lies ahead? In looking to the future, at least six major issues must be resolved before the CoC can be completed. Geographic scope and disputed areas The SDNT does not clearly define the geographic scope of the South China Sea. Under General Provisions, Vietnam suggested that “the present Code of Conduct shall apply to all disputed features and overlapping maritime areas claimed under the 1982 UNCLOS in the South China Sea.” Indonesia inserted, “the Parties are committed to respect the Exclusive Economic Zone and continental shelf of the coastal states as provided for in the 1982 UNCLOS.” Malaysia proposed, “depending on the operative elements/­ contents of the CoC, the geographic scope/scope of application may have to be defined,” while Singapore inserted the comment “the Parties may wish to consider the utility of including a section defining the terms contained herein.” One possible solution would be to adopt the International Hydrographic Organization’s (IHO) definition that covers the maritime area from the north of Taiwan, the semi-enclosed sea, and the waters off the mouth of the Straits of Malaysia and Singapore. Of the 11 states that approved the SDNT, only two, Cambodia and Laos, are not members of the IHO. In addition to defining the geographic scope of the South China Sea, disputed areas need to be clearly identified and delimited. For example, each claimant could submit a list of all currently occupied features in the South China

ASEAN, China, and the Code of Conduct  55 Sea, their classification (island, rock, low-tide elevation), the baselines to which these features are entitled, and the claimed maritime zone (territorial sea and Exclusive Economic Zone as appropriate). Claimants could identify and define traditional fishing grounds. It should be noted that Indonesia and Vietnam, and Vietnam and the Philippines, respectively, are discussing how to delimit their maritime boundaries. The Philippines and China are poised to discuss joint development. Military activities, exercises, and militarization It is significant that the SDNT makes explicit reference to advance notification of military exercises. As noted, China proposed that states should have the right to object, while Vietnam did not. The SDNT also includes proposals for military cooperation (dialogues, exchanges, port visits, joint patrols, exchange of information), military hotlines at various levels of command, and a code for air encounters. Vietnam suggested the prohibition of a number of military activities, including blockades, establishing an Air Defence Identification Zones, and conducting simulated attacks. While the SDNT includes the injunction for self-restraint, the text needs to be further developed to deal with ongoing militarization. Should there be agreement to freeze the status quo and halt further militarization (including construction of military facilities)? Should the CoC include a commitment by the parties to de-militarize occupied features in the future? In order to operationalize these proposals, it will be necessary to adopt agreed processes, guidelines, and protocols and append them to the final text of the CoC. Cooperation among maritime law enforcement agencies The SDNT contains a number of proposals for cooperation among maritime law enforcement agencies, including the humane treatment of persons in danger or distress at sea, safety of navigation, communication at sea, search and rescue, fisheries cooperation, capacity building, joint exercises, hotlines, exchange of information, and the extension of CUES to Coast Guard–type agencies. These proposals need to be operationalized in guidelines and protocols attached to the final text of the CoC. Dispute resolution The SDNT does not contain any specific reference to the binding dispute mechanisms included in UNCLOS Annex VII. In fact, the SDNT leaves in limbo the obligation of signatories to comply with decisions for binding dispute settlement established under Annex VII of UNCLOS. There are only two proposals in the SDNT related to dispute resolution. The first was tabled by Indonesia who suggested either the ASEAN High Council or existing international disputes settlement mechanism in international law.

56  Carlyle A. Thayer The second proposal by Vietnam recommended that parties settle their disputes “through friendly negotiations, enquiry, mediation, conciliation and other means as may be agreed by the disputing Contracting Parties,” failing that the disputants “utilize the dispute settlement mechanism under relevant provisions of the Treaty of Amity and Cooperation in Southeast Asia.” ­Vietnam concluded that nothing in the CoC “shall prevent” the peaceful ­settlement of disputes under Article 33(1) of the Charter of the United ­Nations. Article 33 includes “other means” such as arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means decided by the parties concerned. In sum, the provisions for dispute resolution in the SDNT are weak because they are voluntary and without means of enforcement. Legal status of the CoC The SDNT does not include reference to the CoC as a treaty under international law. It does contain a proposal by Vietnam that the Contracting States “have consented to be bound by the present Code of Conduct….” Vietnam also suggested that the CoC “be subject to ratification in accordance with the respective internal procedure of the signatory States” and the instrument of ratification be deposited with the ASEAN Secretary General who “shall register” the CoC pursuant to Article 102 of the Charter of the United Nations. Both Brunei and Vietnam separately proposed that no Contracting Party may hold a reservation when signing the CoC. Role of third parties Third parties are states that are not signatories to the CoC. There is no reference in the SDNT about accession to the CoC by third parties. Brunei proposed that “following the Entry into Force of the CoC, the Parties can jointly propose an UNGA [United Nations General Assembly] biennial resolution which would ensure all other countries respect the principles contained in the CoC.” China’s input into the SDNT aims to bind ASEAN member states in the CoC and limit if not exclude the involvement of third parties in resource development and the conduct of military exercises. The final CoC should contain a provision permitting third parties who are major stakeholders in the security and stability of the South China Sea to accede to the CoC.

Summary This chapter presented an historical overview of protracted diplomatic efforts between ASEAN members and China to craft a regional CoC in the South China Sea. Since 1992, when ASEAN issued its first statement of concern on developments in the South China Sea, it has been consistent in promoting the peaceful settlement of disputes, respect for international

ASEAN, China, and the Code of Conduct  57 law, self-restraint, CBMs, and cooperative activities. Part 1 discussed eleven major turning points: ASEAN statements of concern (1992 and 1995), exchange of draft Codes of Conduct between ASEAN and China (2000), Declaration on the Conduct of Parties in the South China Sea (2002), Terms of Reference for the Joint Working Group to Implement the DoC (2004), Guidelines to Implement the DoC (2011), ASEAN’s Proposed Elements of a Regional Code of Conduct (June 2012), ASEAN’s Six Principles on the South China Sea (July 2012), ASEAN Consensus in four joint statements (July 2016), the adoption of hotlines and the Code for Unplanned Encounters at Sea (August 2016), Framework for the Code of Conduct (2017), and Single Draft South China Sea Negotiating Text (2018). Part 2 discussed in detail the SDNT adopted by the foreign ministers of the ASEAN states and China in August 2018. This Document set out the views of all parties in six major areas: duty to cooperate, promotion of practical maritime cooperation, self-restraint/promotion of trust and confidence building, prevention of incidents, management of incidents, and other undertakings. While there was considerable overlap in many of the proposals, there were stark differences regarding military exercises with extra-regional powers and the involvement of non-regional companies in natural resource exploitation. Part 3 presented a forward-looking view of the key issues that need to be resolved prior to the adoption of a formal CoC: definition of geographic scope and disputed areas; military activities, exercises, and militarization; coordination among maritime law enforcement agencies; dispute resolution; legal status; and the role of third parties.

Notes 1 ASEAN Declaration on the South China Sea, Manila, Philippines, 22 July 1992. https://cil.nus.edu.sg/wp-content/uploads/2017/07/1992-ASEAN-Declarationon-the-South-China-Sea.pdf. 2 Statement by the ASEAN Foreign Ministers on the Recent Developments in the South China Sea, 18 March 1995. www.aseansec.org/2089.htm. 3 Regional Code of Conduct in the South China Sea (ASEAN Draft) and Code of Conduct in the South China Sea (Draft of the Chinese side), March 2000, in ‘South China Sea Background to ASEAN-China Code of Conduct,’ Thayer Consultancy Background Brief, 25 April 2017. www.scribd.com/Document/346497873/ Thayer-ASEAN-China-South-China-Sea-Code-of-Conduct-Background. 4 Declaration on Conduct of Parties in the South China Sea, 4 November 2002. www.aseansec.org/13163.htm. 5 Terms of Reference of the ASEAN-China Joint Working Group on the Implementation of the Declaration on the Conduct of Parties in the South China Sea, December 2004. https://asean.org/?static_post=terms-of-reference-of-the-aseanchina-joint-working-group-on-the-implementation-of-the-declaration-on-theconduct-of-parties-in-the-south-china-sea. 6 Tran Truong Thuy, ‘Recent Developments in the South China Sea: From Declaration to Code of Conduct,’ in Tran Truong Thuy (editor) The South China Sea: Towards a Region of Peace, Security and Cooperation (Hanoi: The Gioi Publishers, 2011), p. 104.

58  Carlyle A. Thayer 7 Guidelines to Implement the DoC, www.aseansec.org/Documents/20185DoC.pdf. 8 Carlyle A. Thayer, ‘ASEAN’s Long March to a Code of Conduct in the South China Sea,’ Maritime Issues, Special Issue, No. 1, 3 November 2017. www.mari timeissues.com/politics/aseans-long-march-to-a-code-of-conduct-in-the-southchina-sea.html. 9 ASEAN’s Proposed Elements of a Regional Code of Conduct in the South China Sea (CoC) between ASEAN Member States and the People’s Republic of China, 9 July 2012. 10 ‘Regional Code of Conduct in the South China Sea (CoC) between ASEAN Member States and the People’s Republic of China,’ in Carlyle A. Thayer, ‘ASEAN’s Code of Conduct (Unofficial),’ Thayer Consultancy Background Brief, 11 July 2012. www.scribd.com/Document/101698395/Thayer-ASEAN-sCode-of-Conduct-Unofficial. 11 Details in this paragraph are drawn from Carlyle A. Thayer, ‘ASEAN’S Code of Conduct in the South China Sea: A Litmus Test for Community-Building?’ The Asia-Pacific Journal, Vol. 10, Issue 34, No. 4, 20 August 2012, pp. 1–23. https:// apjjf.org/2012/10/34/Carlyle-A.-Thayer/3813/article.html. 12 ‘Statement of ASEAN Foreign Ministers on ASEAN’s Six-Point Principles on the South China Sea,’ 20 July 2012. www.readhillarysemail.com/Documents/ November2015/C05791412.pdf. 13 Vietnam News Agency, ‘Press statement of ASEAN FMs at meeting with China FM,’ Vietnam Plus, 16 June 2016. https://en.vietnamplus.vn/press-statement-ofasean-fms-at-meeting-with-china-fm/94837.vnp. 14 This discussion draws on Carlyle A. Thayer, ‘The ASEAN-China Special Meeting Mystery: Bureaucratic Snafu or Chinese Heavy-Handedness?’ The Diplomat, 17 June 2016. http://thediplomat.com/2016/06/the-asean-china-specialmeeting-mystery-bureaucratic-snafu-or-chinese-heavy-handedness/ and ­Carlyle A. Thayer, ‘Revealed: The Truth Behind ASEAN’s Retracted Kunming Statement,’ The Diplomat, 19 June 2016. http://thediplomat.com/2016/06/revealedthe-truth-behind-aseans-retracted-kunming-statement/. 15 ASEAN Foreign Ministers’ Statement on the Occasion of the 40th Anniversary of the Treaty of Amity and Cooperation in Southeast Asia (TAC), 24 July 2016. https://asean.org/wp-content/uploads/2016/07/Statement-of-the-40thAnniversary-of-the-TAC-ADOPTED.pdf. 16 Joint Communiqué of the 49th ASEAN Foreign Ministers’ Meeting, Vientiane, 24 July 2016. https://asean.org/wp-content/uploads/2016/07/Joint-Communiqueof-the-49th-AMM-ADOPTED.pdf. 17 Joint Statement of the Foreign Ministers of ASEAN Member States and China on the Full and Effective Implementation of the Declaration on the Conduct of Parties in the South China Sea, 25 July 2016. https://asean.org/wp-content/ uploads/2016/07/Joint-Statement-on-the-full-and-effective-implementation-ofthe-DoC-FINAL.pdf. 18 Joint Statement of the Foreign Ministers of ASEAN Members States on the Maintenance of Peace, Security and Stability in the Region, 25 July 2016. https://asean.org/wp-content/uploads/2016/07/Joint-Statement-of-the-Foreign-­ Ministers-of-AMS-on-the-Maintenance-of-Peace-Security-and-Stability-inthe-Region-AGREED.pdf. 19 Framework of a CoC Adopted at the 14th ASEAN-China Senior Officials’ Meeting on the Implementation of the Declaration on the Conduct of Parties in the South China Sea (SOM-DoC), Guiyang, China, 18 May 2017. www. scribd.com/Document/350500541/ASEAN-China-Draft-Framework-Codeof-Conduct-in-the-South-China-Sea and Framework of a CoC Adopted by ASEAN member states and China, Manila, 6 August 2017 in Carlyle A.

ASEAN, China, and the Code of Conduct  59 Thayer, ‘ASEAN-China: Framework of a CoC,’ Thayer Consultancy Background Brief, 6 August 2017. www.scribd.com/Document/355938565/ThayerASEAN-China-Framework-of-a-CoC-August-6-2017. 20 ASEAN-China Single Draft South China Sea Code of Conduct Negotiating Text, 3 August 2018. All subsequent references to the SDNT are taken from this course. A copy of SDNT was leaked to the author; see: Carlyle A. Thayer, ‘A Closer Look at the ASEAN-China Single Draft South China Sea Code of Conduct,’ The Diplomat, 3 August 2018. https://thediplomat.com/2018/08/a-closerlook-at-the-asean-china-single-draft-south-china-sea-code-of-conduct/. 21 Articles 74, 83, 122 and 123, United Nations Convention on the Law of the Sea, 1982. www.un.org/Depts/los/convention_agreements/texts/unclos/UNCLOSTOC.htm.

4 China and the South China Sea Continuities and adaptions1 Nong Hong

Introduction As a major coastal state in the South China Sea, China’s position and legal claim attracts high attentions in this region and in the world. This chapter explores China’s claims and positions over the South China Sea through reading carefully China’s legislations and official documents. It is understood that China bases its territorial claims over the insular features in the South China Sea on acquisition of territorial sovereignty under customary international law, maritime claims in line with the 1982 United Nations Convention on the Law of the Sea (UNCLOS), and other rights governed by customary international law. China’s claims remain unchanged but its approach to managing the disputes has evolved. The chapter also explains China’s position of no acceptance and no participation in the South China Sea Arbitration case through the angle of its approach to international law, especially the role of third-party compulsory mechanism in solving international disputes. It then moves on to discuss the legal and political implication of the South China Sea Arbitration on regional legal order and security environment and argues that compulsory dispute settlement mechanism may not be the only or the best option that addresses the disputes in the South China Sea.

China’s claims and positions over the South China Sea China’s claims in the South China Sea are grouped in three categories. First of all, it bases its territorial claims over the insular features encircled by the U-shaped line in the South China Sea, namely Xisha (Paracels), Nansha (Spratlys), Zhongsha (Macclesfield Bank), and Dongsha (Pratas) archipelagos through a number of methods of sovereignty acquisition under customary international law, for example, discovery, effective occupation, and prescription.2 As Valencia, Van Dyke, and Ludwig analyzed in detail, China’s claim to the islands is based on historical usage, its ship captains having sailed across the SCS 2,000 years ago and having used

China and the South China Sea  61 the Sea as a regular navigational route during the Han dynasty (206– 220 A.D.), in additional to first discovery and effective exercise of sovereignty.3 They also explained why China did not make any formal claims of sovereignty from the 12th to the 17th century. “Chinese records made occasional reference to the islands, including maps displaying elevations. During this period, China viewed itself as the centre of a universal state which ‘oversaw a hierarchy of tributary states.’ From this perspective, it had no reason to make any formal claim of sovereignty.”4 Some Chinese authors claim that China has met the requirements found in the Isle of Palmas arbitration5 by effectively exercising sovereignty over the Spratly islets without challenges for centuries until the French intrusion in 1933, and that South China Sea islands have “always been part of Chinese territory.”6 If the limited actions required by Emperor Victor Emmanuel in the Clippperton case7 were applied here, then China might well prevail, but the latter cases emphasize effective occupation and control more than original discovery.8 The opposition of foreign states also weakens China’s claims. Other nations did not “acquiesce” to China’s assertions of sovereignty.9 Currently, the Philippines, Malaysia, and Brunei, as well as Vietnam, all have significant claims to all or some of these islets.10 China issued the “Statement of the Government of the People’s Republic of China on China’s Territorial Sovereignty and Maritime Rights and Interests in the South China Sea” in July 2016 which defines the geographic scope of its claims in the South China Sea and states that China has sovereignty over Nanhai Zhudao, consisting of Dongsha Qundao, Xisha Qundao, Zhongsha Qundao, and Nansha Qundao, enjoys internal waters, territorial sea, contiguous zone, and exclusive economic zone (EEZ) and continental shelf, based on Nanhai Zhudao and historic rights in the South China Sea.11 Based on the principle of “land dominates sea,” China claims maritime jurisdiction in the South China Sea in line with UNCLOS. China, after 1949 when the People’s Republic of China (PRC) was founded, began to protest the armed provocation carried out by the US Navy so as to safeguard its sovereignty and jurisdiction over the territorial sea.12 With many strong protests against the encroachments of US warships into China’s territorial sea, the Chinese Government promulgated the Declaration on China’s Territorial Sea on 4 September 1958,13 a very significant legal document in the history of Chinese marine legislation. China declared that 1 The breadth of the territorial sea of China would be 12 nautical miles, which would apply to all territories of China, including the Chinese mainland and its coastal islands, as well as other islands belonging to China. 2 China’s territorial sea would take, as its baseline, the line composed of the straight lines connecting basepoints on the mainland coast and on

62  Nong Hong the outermost of the islands; the water area extending 12 nautical miles outward from the baseline would be China’s territorial sea, and the water areas inside the baseline would be China’s inland waters, including the Bohai Sea and the Chiungchow (Qiongzhou) Strait. 3 No foreign vessels for military use and no foreign aircraft would be allowed to enter into China’s territorial sea or the airspace above without the permission of the Chinese Government. The general position stated in the above Declaration continued to be maintained in China’s Law on the Territorial Sea and Contiguous Zone of 1992.14 Two regulations relating to the passage through China’s inland waters and territorial sea were also promulgated in 1964, namely the Regulations Required to Be Observed by Merchant Vessels and the Regulations on Non-Military Foreign Vessels Passing through the Chiungchow Strait,15 which contained several restrictions, stipulating that the passage of foreign merchant vessels should be subject to prior permission by the Chiungchow Strait Administrative Agency. China, in order to safeguard the security of its territorial sea, publicized a number of prohibited areas for navigation and closed sea lanes. Besides the above, China has promulgated several laws and regulations regarding fishing, navigation, and harbour administration, such as the Order on Prohibited Area Trawl-net Fishing in the Bohai Sea, the Yellow Sea, and the East China Sea of 1957; the Provisional Regulations on the Safety at Sea of the Non-Power-Driven Boats of 1958; and the Provisional Regulations on harbour Administration of 1953. Many of the earlier laws and regulations have been replaced or amended.16 Among all the domestic laws and regulations, the most important is the 1992 Law on the Territorial Sea and the Contiguous Zones17 which has improved the territorial sea regime established under the 1958 Declaration on the Territorial Sea.18 China’s land territory is defined by Article 2 as including the mainland of the People’s Republic of China and its coastal islands; Taiwan and all islands appertaining thereto including the Diaoyu Islands; the Penghu Islands; the Dongsha Islands; the Xisha Islands; the Zhongsha Islands and the Nansha Islands; as well as all the other islands belonging to the People’s Republic of China.19 Based on the defined scope of land territory, China has set its territorial sea at a breadth of 12 nm and the contiguous zone of 24 nm, measuring from the coastal baselines. Merchant ships, according to Article 6, enjoy the right of innocent passage through China’s territorial sea, but foreign warships are subject to the requirement of prior permission.20 When ratifying UNCLOS in May 1996, China promulgated the precise location of straight baselines and the outer limit of that part of its territorial

China and the South China Sea  63 sea adjacent to the mainland and the Paracel Islands in the South China Sea.21 In addition to the above fundamental stipulations, Article 11 of the law provides that all international organizations, foreign organizations, or individuals should obtain approval from China for carrying out scientific research, marine operations, or other activities in China’s territorial sea and comply with relevant Chinese laws and regulations. Article 14 stipulates that the Chinese authorities may exercise the right of hot pursuit against the foreign ship when they have good reason to believe that a foreign ship has committed violations. This law applies to all of China, including Taiwan and the various islands located in waters within China’s jurisdiction. Two years after the ratification of UNCLOS and the declaration of the baselines, China enacted the Law of the People’s Republic of China on the Exclusive Economic Zone and the Continental Shelf on 26 June 1998.22 Among the 16 articles contained in this Law, Article 2 is perhaps the most important relative to the other articles and will surely be referred to during negotiations of maritime boundaries of the EEZ and the continental shelf between China and its neighbouring countries.23 Chinese legislation on maritime jurisdiction is complete with the promulgation of China’s Law on the Exclusive Economic Zone and the Continental Shelf. According to the EEZ/Continental Shelf Law, foreign vessels including warships enjoy freedom of navigation in China’s EEZ provided that they comply with the relevant Chinese laws and regulations as well as international law.24 Chinese EEZ/Continental Shelf Law signals that navigation under the EEZ regime may not be as free as under the high seas regime simply because of the sovereign rights and jurisdiction of the coastal state over its EEZ.25 For example, Article 2 provides that China should have the right to take necessary measures against violations of Chinese laws and regulations, to investigate according to law those who are liable, and may exercise the right of hot pursuit.26 Based on Chinese domestic laws, foreign vessels are granted different degrees and extents of rights with different obligations while navigating in respective maritime zones, for example, territorial sea, contiguous zone, and EEZ.27 The rights are more limited as manifested where a certain zone is closer to the Chinese coasts. In addition to the laws governing rights and obligations of vessels while navigating its respective waters, China also released other laws and regulations relevant to shipping, such as the Regulations with Respect to Sea Port Pilotage of 197628 and the Regulations Governing Supervision and Control of Foreign Vessels of 1979.29 The 1983 Maritime Traffic Safety Law, as the most important so far on the safety of navigation, provides for survey and registration of vessels, manning of vessels and installations, navigation, berthing or carrying out operations, assurance of safety, carriage of dangerous goods, salvage and wreck removal, maritime traffic accidents, and legal responsibilities.30 In 1990, China promulgated the Regulations Governing the Investigation and Settlement of Maritime Traffic Accidents that has become a supplement to the above law in dealing with maritime traffic accidents.31

64  Nong Hong China also promulgated regulations in other areas such as resource management and marine environment protection. The Regulations on the Protection of the Breeding of Aquatic Resources was enacted in 1979.32 The laws and regulations on marine environmental protection are more complete and systematic in comparison with other relevant marine laws and regulations. The Marine Environmental Protection Law33 promulgated in 1982 and amended in 1999 aims at protecting the marine environment and resources, preventing pollution damage, maintaining ecological balance, protect people’s health, and promoting knowledge of marine matters. In addition to maritime jurisdiction provided by UNCLOS, China also explores other non-exclusive historic rights governed by customary international law within the U-shaped line in the South China Sea, such as fishing rights, navigation rights, and priority rights of resource development.34 The prevailing basis for China’s historic claims to the South China Sea is the U-shaped line officially promulgated in 1947 by the then Chinese Nationalist Government.35 After the Communist Party of China took over mainland China and formed the People’s Republic of China in 1949, the line was adopted and revised to nine as endorsed by Zhou Enlai. The line, which has been called a “traditional maritime boundary line”, encloses the main island features of the SCS: the Pratas Islands, the Paracel Islands, the Macclesfield Bank, and the Spratly Islands. No country, including Southeast Asian countries or their past rulers, protested or challenged the validity of the 9-dash line from 1947 to 1970s.36 There are four schools of thought within China’s academia on the interpretation of this line, namely the line of boundary, the line of historic waters, the line of historic rights, and the line of ownership of the features. Currently, “the theory of sovereignty + UNCLOS + historic rights” prevails among the Chinese scholars. According to this theory, China enjoys sovereignty over all the features within this line and enjoys sovereign right and jurisdiction, defined by the UNCLOS, for instance, EEZ and continental shelf when the certain features fulfil the legal definition of Island Regime under Article 121 of UNCLOS. In addition to that, China enjoys certain historic rights within this line, such as fishing rights, navigation rights, and priority rights of resource development.37 Kivimäki argues that China’s historical claim in the SCS based on the “U-shaped line” overlaps with the claims to EEZ and continental shelf areas of Vietnam, Indonesia, Malaysia, Brunei, and the Philippines who base their maritime claims purely on the UNCLOS.38 The perceived excessive claims put forward by other South China Sea countries, such as the Philippines and Malaysia, who have claimed some islands in the SCS based upon the 200 nautical mile EEZ rights of UNCLOS, may have encouraged China to insist that its South China Sea claim is based upon the U-shaped line. “In China’s view, a claim derived from historic rights may

China and the South China Sea  65 seem more forceful and valid in law than claims simply based upon the EEZ concept.”39 While Chinese scholars tend to believe that the historic concept is still relevant in international law and much research has been conducted on “historic waters,”40 Western scholars do not seem to be on the same page. John Moore, a well-known American scholar on the law of the sea, when asked whether historic water is still relevant, noted that only the bays listed in UN 1957 Study on Historic Bays are regarded as legitimate.41 Judge David Anderson and Gudmundur Eiriksson of the International Tribunal for the Law of the Sea (ITLOS) were reluctant to comment on the relevance of historic waters.42 China has not given up maritime claims based on the U-shaped line and recent practice has demonstrated that China is attempting to further consolidate the claim based on this line, in particular by undertaking regular and intensified law enforcement patrols in the South China Sea within the line. “The U-shaped Line map issued by China is strong evidence for China; however, China needs to address its formal position and clarify this map, in order to avoid the misunderstanding of China’s position on the South China Sea dispute.”43 In the South China Sea Arbitration Case, the Tribunal rules out the possibility of treating the geologically defined archipelago of Nansha Qundao (Spratly Islands) as a single unit that China seems to claim as having the status of an archipelagic regime. China argues that under its administration, the four archipelagos have been a single unit and should enjoy the status of an archipelagic regime. First, they meet the criteria for a political, security, and economic entity with interconnectedness. Second, the historic criterion for the identification of the legal archipelago is provided as an alternative in the case that an archipelago cannot meet the other requirement. The four island groups in the South China Sea have been governed as a single entity throughout China’s administrations. Third, there is an emerging customary rule relating to the application of straight baselines to continental States’ outlying archipelagos. Fourth, one of the key elements of an archipelagic regime is the principle of balancing exclusive and inclusive interests of archipelagos (exercise of sovereignty) vis-à-vis those of third States (navigation, traditional fishing rights, etc.). Applying the legal concept of an archipelagic regime to Nansha will serve to guarantee this important principle of balance.44

China’s policy choice over the South China Sea arbitration Peaceful settlement of disputes may be brought about through the good offices and mediation by third parties,45 by consultation and negotiation, or also through legal arbitration. In most cases, China prefers negotiation and/or consultation directly with the other party because of its culture and history. China has always advocated bilateral negotiations as the most practical means of dispute settlement between states. In practice, China has resolved several of its bilateral disputes with other countries through

66  Nong Hong negotiation and consultation, such as border disputes and dual nationality, among other issues. So far as the judiciary is concerned, China’s attitude is very conservative.46 Thus far no dispute between China and any other state has been brought to the International Court of Justice (ICJ) or other international tribunals, except the South China Sea Arbitration Case. During the Sino-India border conflict in 1962, China refused India’s proposal to submit the dispute to international arbitration by stating that Sino-India border dispute is an important matter concerning the sovereignty of the two countries, and the vast size of more than 100,000 square kilometres of territories. It is self-evident that it can only be resolved through direct bilateral negotiations. It is never possible to seek a settlement from any form of international arbitration.47 However, after the 1980s, it changed its policy by consenting to arbitration in treaties that it ratified, but China confined this practice only to economic, trade, scientific, transport, environmental and health areas.48 Some conventions require the contracting states to accept compulsory judicial dispute settlement procedures. For instance, UNCLOS makes it obligatory for state parties to select at least one of the compulsory procedures: either ICJ, ITLOS, arbitration and special arbitration.49 A State Party is free to choose one or more of these means by a written declaration to be made when signing, ratifying, or acceding to UNCLOS or at any time thereafter.50 A State Party that does not make a declaration shall be deemed to have accepted arbitration in accordance with Annex VII.51 If the parties to a dispute have accepted the same procedure for the settlement of the dispute, it may be submitted only to that procedure; unless the parties otherwise agree.52 If the parties to a dispute have not accepted the same procedure, the dispute may be submitted only to arbitration in accordance with Annex VII, unless the parties otherwise agree.53 Upon ratification of the convention, China did not state which mechanism it had accepted, hence it was deemed to have accepted arbitration.54 Meanwhile, China’s perception of the role of international courts in dispute settlement is also passive. In treaties to which it is a party, China has usually made a reservation that it will not accept judicial settlement by the ICJ. On 5 September 1972, China declared that it would not recognize the statement of the former Chinese government (Republic of China) on ­Acceptance of the Compulsory Jurisdiction of the ICJ. In fact, it refused to settle any dispute with other countries through the ICJ.55 On the other hand, as a UN Security Council member, China has nominated judges of Chinese nationality to the ICJ as well as to other international courts, such as ITLOS. Since these courts are composed mainly of judges from the West, developing countries, including China, are doubtful about the impartiality and justice the international judiciary can maintain.56 As for UNCLOS,

China and the South China Sea  67 China declared on 7 September 2006 under Article 298 its exclusion from certain disputes (such as concerning maritime delimitation territorial disputes or military use of the ocean) with other countries relating to international judiciary or arbitration.57 As one Chinese scholar pointed out, there is slim hope for China to change its attitude towards third-party forum in the near future with regard to its dispute in the SCS.58 Nevertheless, some other international legal scholars in China have brought to the discussion the issue of third-party compulsory dispute settlement ­forums. At the “Symposium on China’s Energy Security and the South China Sea” which was held in China in December 2004, Jia Yu, Director of China Institute of Maritime Affairs, explained the reasons why China feels reluctant to go to an international court to address its disputes with other countries, especially on claims of sovereignty and maritime jurisdiction. Unlike the assumption from some Western scholars, China’s hesitation does not come from the lack of evidence in terms of sovereignty claims in the case of its East China Sea and SCS.59 In fact, as the former ITLOS Judge Chan Ho Park pointed out, compared with Vietnam and other SCS countries, China has more historic evidence to support its sovereignty and jurisdiction claim in the SCS.60 Apart from the reasons given by Jia Yu on China’s reluctance to accept compulsory litigation or arbitration, the political culture of China, and many Asian countries—believing in good neighbourly relations will be jeopardized if their differences have to be resolved by a third party, sets a psychological obstacle for pursuing a third-party mechanism.61 China’s position on the South China Sea Arbitration case, namely non-­participation and non-acceptance, has been coherent. On 23 January 2013, the day after the Philippines filed its Notification and Statement of Claims, a Chinese Foreign Ministry spokesman stated that China has “indisputable sovereignty” over the South China Sea under “abundant historical and legal grounds.”62 He blamed the dispute on the Philippines’ “illegal occupation of some of the Chinese islets and atolls of the Spratly Islands” and claimed that China had been “consistently working towards resolving the disputes through dialogue and negotiations to defend Sino-Philippine relations and regional peace and stability.”63 On 19 February 2013, China officially refused to participate in the proceedings.64 In addition, China accused the Philippines of making factually flawed accusations and of violating the DoC.65 Chinese Foreign Ministry spokesman Hong Lei mentioned the consensus that China and ASEAN member states reached when they signed the 2002 Declaration of Conduct of the Parties (DoC) in November 2002 that disputes should be solved through talks between the nations directly involved.66 China regarded the act of initiating arbitration proceedings as unfriendly and damaging to Sino-Philippine relations. China complained that “the Philippine side had failed to notify the Chinese side, not to mention seeking China’s consent, before it actually initiated the arbitration.”67 Reasons why China rejected the arbitration include (1) China has insisted its position on resolving the disputes between Beijing and Manila through

68  Nong Hong bilateral negotiations; (2) under international law, China has the right to turn down the Philippine request to participate in the arbitral proceedings because it has made a declaration under Article 298 of UNCLOS; and (3) the act of filing the arbitration case sets an obstacle for the two countries to develop their friendly relations. In addition, China also questioned whether the Arbitration Tribunal has jurisdiction over this case. Although the Philippines did specifically discuss the territorial issue in its Notification and Statement, it is impossible to discuss most of its claims without first clarifying Chinese and Philippine sovereignty over island features in the South China Sea. For example, the majority of the Philippines’ claims assume that China only has territorial sovereignty over a few “rocks,” such as Chigua Jiao (Johnson Reef), Huayang Jiao (Cuarteron Reef), and ­Yongshu Jiao (Fiery Cross Reef) in the Nansha (Spratly) Islands.68 Those claims intentionally ignoring the fact that China has claimed sovereignty over the entire Nansha (Spratly) Islands based on principles of territorial acquisition under international law, namely first discovery, first occupation, and administration. Hence, the Philippines’ claims are essentially maritime delimitation claims that involve questions of territorial sovereignty. Such questions, however, are excluded from UNCLOS arbitration under article 298. Thus, China believes that its rejection of the arbitration has a solid basis in international law.69

Legal implications The implications of the Award may be analyzed in terms of their direct impact of the merit of the Award, and further implications for international law, especially the role of UNCLOS in settling or managing maritime disputes. First, the Award suggests that China’s history-based claims within the U-shaped line do not include a claim to “historic title” (which bear the characteristics of sovereignty and was supposed to be excluded from the Tribunal’s jurisdiction by China’s declaration of 2006 based on Article 298 of UNCLOS). The Tribunal viewed China’s claim as one of “historic rights” which the Tribunal judged to be an exclusive claim of sovereign rights and jurisdiction in the EEZ of the Philippines. The Tribunal judged that China’s claims were contrary to the UNCLOS and without lawful effect because they exceeded the geographic and substantive limits of China’s maritime entitlements under the Convention. This finding has two major flaws. The Tribunal interpreted the U-shaped line, as a line of “historic right,” though China has never made a public statement about the legal meaning of this line. Second, it supposed that the U-shaped line is regarded by China as a line of “historic right” and the tribunal took a different stance on the China and the Philippines. It did agree that Manila is entitled to reach beyond the text of the Convention to enjoy a non-exclusively exercised traditional fishing right in the territorial sea of the Scarborough Shoal, which was part of the body of general international law preserved by UNCLOS. However,

China and the South China Sea  69 the Tribunal denied China’s historic rights in foreign EEZs and its reasoning was unsatisfactory. Its limitation of artisanal fishing rights to territorial seas rather than other exclusive maritime zones constituted an arbitrary narrowing of the jurisprudence created in Eritrea v Yemen. Second, the Ruling says that no land feature in the northern sector (Scarborough Shoal) or the southern sector (Spratlys) of the South China Sea is capable of sustaining human habitation or economic life of their own.70 As such, none of the land features in the South China Sea meets the definition of an “island” within the meaning of Article 121 of UNCLOS. In other words, there is no entitlement to an EEZ or continental shelf generated by any land feature claimed by China in the northern sector (Scarborough Shoal) or the southern sector (Spratlys) of the South China Sea. One of the most significant elements of the ruling was its finding that Itu Aba (Taiping Dao), the largest feature in the Spratly group, currently occupied by Taipei, is not an “island” but is instead merely a “rock.” As pointed out by Sourabh Gupta, the Arbitral Tribunal threw decades of jurisprudential caution by directly addressing the distinction between “islands” and “rocks,” and added an arbitrary “historical use” test in the case of features that are difficult to define. The Tribunal’s interpretation bears little resemblance to the spirit of Article 121 which was drafted deliberately ambiguous,71 even though some may argue that there were criticisms of its “ambiguity” which had to be resolved. The finding in Article 121(3) had tremendous implications for jurisdictional questions related to a range of activities, including fishing, marine scientific research, reclamation, law enforcement, etc., conducted by China in the South China Sea. Mischief Reef is regarded by the Tribunal as a low-tide elevation and hence cannot be deemed to be sovereign territory, unlike a “rock” or an “island,” as per UNCLOS. Further, because Mischief Reef has now been judged as located on the undisputed continental shelf of the Philippines, China has no possible sovereign rights or jurisdiction that could extend over the sea area of Mischief Reef. How does China justify its reclamation and facility construction activities in Mischief Reef? All the land reclamations and artificial island-building has been within China’s legal rights. They have taken place on “rocks” which are considered to be Chinese sovereign territory. However, the ruling also suggests that China’s land reclamation activities have caused harm to the coral reef ecosystem and thereby—in violation of its international treaty obligations (e.g. Convention on International Trade in Endangered Species of Wild Fauna and Flora Convention on Bio-Diversity)—damaged the marine environment.72 Given the provisions of the international law, including UNCLOS, with respect to the protection and preservation of the marine environment, it becomes a critical issue whether China has fulfilled its obligations. The official statement from China’s Ministry of Foreign Affairs suggested China has conducted Environmental Impact Assessments (EIAs) and that it is continuing to monitor the impact of its reclamation activities. It seems necessary for China to make the EIAs public and acknowledge its duty to cooperate

70  Nong Hong with potentially affected states.73 Dissemination of information about the islands’ presence and appropriate publicity as to their depth, positions, and dimensions should also be encouraged. Chinese officials talked on different occasions about the dual purpose of the facilities constructed on some of features in the South China Sea which had a defensive military purpose as well as a civilian purpose. Some suggest that China should put more emphasis on building civilian facilities on the reclaimed features in the South China Sea and less emphasis on the military function ones to mitigate regional fears about China’s intentions. As China defends its land reclamation as improving China’s capacity to deliver maritime public services, it needs to show evidence or set an example by using the reclaimed construction for maintaining maritime safety and security, offering support for search and rescue, scientific research, etc. Apart from reactions to the Award, other implications should not be overlooked. Article 298 allows states to opt out of the compulsory settlement mechanism in disputes related to sovereignty, maritime delimitation, and military activities, among others. This article was the result of lengthy negotiations and a compromise in meeting the demands of some states that did not wish to submit disputes to a third party. The utilization of Article 287 as South China Sea Arbitration, which obviously involves sovereignty and maritime delimitation, could set an example undermining the true spirit of the dispute settlement mechanism of UNCLOS. Given the obvious and predictable result, any award provided by the Arbitration Tribunal will not be able to solve the real dispute between China and the Philippines—the Arbitration Case is an example of a political game using international law. ­China’s failure to appear in court demonstrates its policy of “non-­acceptance and non-participation” in the arbitration as unilaterally initiated by the Philippines. It does not mean disrespect for the Arbitration Tribunal, the Permanent Court of Arbitration and international law, nor does it reflect China’s inability to fulfil its obligations of peaceful settlement of international disputes. China was one of the first countries to participate in national dispute settlement mechanisms, including the Permanent Court of Arbitration. Since 1980s, the United Nations and other international organizations have called on the international community to set up mechanisms like the Permanent Court of Arbitration to resolve international disputes. To give full play to their functional roles, many international conventions, including the United Nations Convention on the Law of the Sea, have introduced litigation and arbitral procedures in its dispute settlement mechanisms.74 The provisional nature of arbitration determines that the purpose of arbitration is to solve the specific dispute, not to address broader issues. A ­ rbitral Tribunals should limit their jurisdiction to the scope of the dispute rather

China and the South China Sea  71 than expanding their jurisdiction. In the case of the South China Sea arbitration, the Tribunal grants itself jurisdiction even though it is aware of China’s consistent position on resolving the territorial sovereignty and maritime disputes through bilateral negotiations. The country’s will to resort to negotiation in solving the dispute has been unfairly neglected.75 A country that does not accept the arbitral procedures will be unfairly portrayed as “not endorsing international law” by an arbitration initiated by the other party of the dispute unilaterally.76 As far as the South China Sea dispute is concerned, international arbitration has weakened China’s right as a sovereign state in establishing regional maritime order. It is clear to all that the power of arbitration mechanisms has gradually strengthened and continues to expand. As the Arbitration Tribunal expands its jurisdiction and ignores the legitimate and reasonable claims of China, tensions between the member states of UNCLOS will increase. So described, the arbitration will be not prudently implemented. Though the arbitration case may not lead to the settlement of the maritime disputes in the SCS, it does motivate China and ASEAN to speed up the negotiation on the Code of Conduct. The ruling has also created an opportunity for the Philippines and China to restart bilateral talks on the dispute. The temperature of the SCS disputes region has cooled down after July 2016 thanks to the efforts made by the regional states. While China and ASEAN are cooperating to better manage the dispute, the role of other stakeholders should not be ignored. The SCS dispute has evolved from a territorial and maritime dispute among the claimant states to a competition between China and the US. To resolve this paradox, China and the US have no choice but to engage each other and maintain regular communications on how they can coexist and respect each other’s core interests.

Conclusion This chapter has explored China’s claims and positions over the South China Sea through a careful interpretation of China’s legislation and official documents. It is understood that China bases its territorial claims over the insular features in the South China Sea on acquisition of territorial sovereignty under customary international law (first discovery, mapping, occupation, and administration), maritime claims in line with 1982 ­UNCLOS, and other rights governed by customary international law. China’s claims remain unchanged but its approach to managing the disputes has been evolved. China’s position of no acceptance and no participation in the South China Sea Arbitration Case could be explained by its attitude towards international law, especially the role of third-party compulsory adjudication in solving international disputes. China prefers negotiation and/or consultation directly with the other party in solving its international disputes, especially those relevant to sovereignty and also land and maritime boundary delimitation. This preference can be explained by Chinese culture and state  practice.

72  Nong Hong In  addition, China also questioned whether the Arbitration Tribunal has jurisdiction over this case. Another legal and policy implication which deserves attention is China’s attitude towards maritime  dispute settlement. Will China continue its conventional approach towards dispute settlement by stressing bilateral negotiations and consultations, or will it accept that third-party dispute resolution in settling problems with neighbouring countries? The Arbitral Tribunal’s ruling on the SCS provides an opportunity for China to rethink its traditional approach to dispute resolution. The South China Sea Arbitration serves as a test for the efficacy of compulsory dispute resolution mechanism of UNCLOS. Despite the value ascribed to this mechanism, the South China Sea Arbitration Case does not resolve the problem between China and the Philippines or among all claimants. State practice in maritime dispute management in this region suggests that there is not a unique or single answer as to which approach to resolve the dispute is the best. The compulsory dispute settlement mechanism may not be the only, or the best, option to address disputes in the SCS.

Notes 1 Some material in this article was drawn from the author’s previous publications, including UNCLOS and Ocean Dispute Settlement: Law and Politics in the South China Sea (Abingdon, New York: Routledge, 2012); “China’s Legal Policy ­Options and Future Prospects”, in Fu-Kuo Liu, Keyuan Zou, Shicun Wu, and Jonathan Spangler (eds.) South China Sea Lawfare: Post-Arbitration Policy Options and Future Prospects (Taipei: South China Sea Think Tank/Taiwan Center for Security Studies, 2017), pp. 23–34; “Interpreting the U-shape Line in the South China Sea”, China-US Focus, 15 May 2012. 2 Shicun Wu, Solving Disputes for Regional Cooperation and Development in the South China Sea: A Chinese Perspective (Oxford: Chandos Publishing, 2013). 3 M.J. Valencia, J.M. Van Dyke and N.A. Ludwig, Sharing the Resources of the SCS (Boston: Martinus Nijhoff Publishers, 1997), p. 21. 4 Ibid. 5 Island of Palmas Case was a case involving a territorial dispute over the Island of Palmas (or Miangas) between the Netherlands and the US which was heard by the Permanent Court of Arbitration. This case is one of the most highly influential precedents dealing with island territorial conflict. 6 See, e.g., Guoxing Ji, The Spratlys Disputes and prospects for Settlements (Malaysia: Institute of Strategic and International Studies, 1992); Teh-Kuang Chang, ‘China’s Claim of Sovereignty Over Spratly and Paracel Islands: A Historical and Legal Perspective’, Case Western Reserve Journal of International Law, vol. 23, no. 3, 1991, pp. 399–420. 7 Ownership of Clipperton was disputed between France and Mexico. Both countries agreed on 2 March 1909, to seek the arbitration of the King of Italy, Victor Emmanuel, who on 28 January 1931, declared Clipperton a French possession. The French rebuilt the lighthouse and settled a military outpost on the island, which remained for seven years before being abandoned. In 1935 France took possession; it has since been administered by the French colonial high commissioner for French Polynesia. 8 Van Dyke and Ludwig, Sharing the Resources of the SCS, pp. 21, 23. 9 Ibid., p. 24.

China and the South China Sea  73 10 Before 1970s, Vietnam recognized that China has sovereignty over the Spratlys Islands. 11 ‘Statement of the Government of the People’s Republic of China on China’s Territorial Sovereignty and Maritime Rights and Interests in the South China Sea’, Ministry of Foreign Affairs of the People’s Republic of China, 2016, Online. Available www.fmprc.gov.cn/nanhai/eng/snhwtlcwj_1/t1379493.htm (accessed 8 August 2016). 12 Keyuan Zou, Law of the Sea in East Asia: Issues and Prospects (Boston: Martinus Nijhoff, 2005), p. 5. 13 Both Chinese and English versions may be found in “Office of Laws and Regulations, Department of Ocean Management and Monitoring”, in State Oceanic Administration (ed.), Non-Power Collection of the Sea Laws and Regulations of the People’s Republic of China (Beijing: Ocean Press, 1991), pp. 1–4. 14 See more discussion in Nong Hong, UNCLOS and Ocean Dispute Settlement: Law and Politics in the South China Sea, p. 121. 15 See “Office of Laws and Regulations”, pp. 56–63. 16 Zou, Law of the Sea in East Asia: Issues and Prospects, p. 6. See also Nong Hong, UNCLOS and Ocean Dispute Settlement: Law and Politics in the South China Sea, p. 121. 17 The English version may be found in Office of Ocean Affairs, Bureau of Oceans and International Environmental and Scientific Affairs, US Department of State, Limits in the Seas, No. 117 Straight Baselines Claim: China, 9 July 1996, pp. 11–14. 18 Nong Hong, UNCLOS and Ocean Dispute Settlement: Law and Politics in the South China Sea, p. 127. 19 Article 2 of 1992 Law on the Territorial Sea and the Contiguous Zones. 20 Zou, Law of the Sea in East Asia: Issues and Prospects, ch. 3. 21 Zou, Law of the Sea in East Asia: Issues and Prospects, p. 6; For the Declaration of the Government of the People’s Republic of China on the Baselines of the Territorial Sea, 15 May 1996, see Law of the Sea Bulletin, 1996, No. 32, pp. 37–40. 22 Zou, Law of the Sea in East Asia: Issues and Prospects, ch. 3. Referred to herein as the 1998 PRC EEZ/Continental Shelf Law. For the Chinese text, see People’s Daily (in Chinese), 30 June 1998, 2. The English version of the text is published in U.N. Division for Oceans and the Law of the Sea, Law of the Sea Bulletin, No. 38, pp. 28–31. 23 Zou, Law of the Sea in East Asia: Issues and Prospects, ch. 3. 24 See Art.11 of the Chinese EEZ Law. 25 Nong Hong, UNCLOS and Ocean Dispute Settlement: Law and Politics in the South China Sea, pp. 127–128. 26 Article 12 of the Chinese EEZ Law. It is based on Article 111 (2) of the LOS Convention. 27 Zou, Law of the Sea in East Asia: Issues and Prospects, p. 47. 28 Zou, Law of the Sea in East Asia: Issues and Prospects, p. 47. See also “Office of Laws and Regulations”, pp. 52–55. 29 “Office of Laws and Regulations”, pp. 5–29. 30 Ibid., pp. 235–249. 31 Ibid., pp. 268–282. 32 Zou, Law of the Sea in East Asia: Issues and Prospects, p. 19. 33 See “Office of Laws and Regulations”, pp. 69–93. Zou, Law of the Sea in East Asia: Issues and Prospects, p. 19. 34 Nong Hong, “Interpreting the U-shape Line in the South China”, China US Focus, 15 May 2012, www.chinausfocus.com/uncategorized/interpreting-the-ushape-line-in-the-south-china-sea/.

74  Nong Hong 35 At the beginning of the 1930s, most Chinese maps were reproductions or based upon older maps. New fieldwork had not been undertaken for many years. These maps contained errors and some, without analysis, were copies of foreign-­ produced maps. As a result, Chinese ocean and land boundaries were not consistently shown on the various maps. This was obviously problematic for China as regards its sovereignty in the SCS. To respond to this, in January 1930 the Chinese government promulgated Consultation between the Ministry of Internal Affairs, the Foreign Ministry, the Marine Ministry, the Ministry of Education, and the Committee of Mongolia and Tibet led to an extension and revision of the above regulations in September 1931 with The Revised Inspection Regulations of Land and Water Maps (Xiuzheng shuilu ditu shencha tiaoli). Following further consultations, a Land and Water Maps Inspection Committee, whose members were representatives sent by the relevant institutions and departments, was formed and started work on 7 June 1933. The Land and Water Maps Inspection Committee made significant contributions to the defence of China’s sovereignty in the SCS. At the 25th meeting held on 21 December 1934, the Committee examined and approved both Chinese and English names for all of the Chinese islands and reefs in the SCS. In the first issue of the Committee’s journal published in January 1935, they listed the names of 132 islands, reefs, and low tide elevations in the SCS, of which 28 were in the Paracel Islands archipelago and 96 in the Spratly Islands archipelago. At the 29th meeting held on 12 March 1935, based on the various questions raised by the Ya Xin Di Xueshe, the Committee stipulated that except on the large-scale national administrative maps of China that should delineate the Pratas Islands, the Paracel Islands, the Macclesfield Bank and the Spratly Islands, other maps need not mark or note these islands if the locations of the islands were beyond the extent of the maps. 36 Nong Hong, “Maritime Disputes in the Asia-Pacific: A Chinese View”, in Pradeep Kaushiva, Abhijit Singh (eds.), Geopolitics of the Indo-Pacific (New Delhi: KW Publishers, 2014), pp. 59–70. 37 Nong Hong, “Interpreting the U-shape Line in the South China Sea”, China-US Focus, 15 May 2012. 38 Timo Kivimäki (ed.) War or peace in the SCS? (Copenhagen: NIAS Press, 2002), p. 35. 39 Nong Hong, UNCLOS and Ocean Dispute Settlement: Law and Politics in the South China Sea, p. 70. 40 The National Institute for the South China Sea Studies, for example, published in 2006 a book titled as Historic Waters. 41 The author interviewed Professor John Moore in Virginia in February 2009. 42 The author interviewed these former judges of ITLOS in September 2008 in Hamburg. 43 “Interpreting the U-shape Line in the South China Sea”, China-US Focus, 15 May 2012. 44 Nong Hong, “The Applicability of the Archipelagic Regime in the South China Sea: A Debate on the Rights of Continental States’ Outlying Archipelagos”, Ocean Yearbook, vol. 32, 2018, pp. 80–117. 45 Typically, low-key actions by a third party to bring opposing parties to dialogue or negotiation. Good offices may include informal consultations to facilitate communication; offer of transportation, security, or site of venue; or fact-­ finding. The third party may suggest ways into negotiations and a settlement but usually stops short of participating in negotiations. 46 “China’s Legal Policy Options and Future Prospects”, pp. 23–34.

China and the South China Sea  75 47 Gao Yanping, “International Dispute Settlement”, in Tieya Wang (ed.), International Law (Beijing: Law Press, 1995), pp. 611–612. 48 Keyuan Zou, China-ASEAN Relations and International Law (Oxford: Chandos Publishing, 2009), p. 31. 49 “China’s Legal Policy Options and Future Prospects”, p. 26. 50 UNCLOS. Article 287 (1). 51 Ibid., Article 287 (3). 52 Ibid., Article 287 (4). 53 Ibid., Article 287 (5). 54 Ibid., Article 297 (3). 55 Yanping, “International Dispute Settlement”, p. 612. 56 Zou, China-ASEAN Relations and International Law, p. 32. 57 “China’s Declaration in Accordance with Article 298 of UNLOCS,” Ministry of Foreign Affairs of the People’s Republic of China, 7 September 2006, Online. Available www.fmprc.gov.ch/chn/wjb/zzjg/tyfls/wizdtyflgzlzgzhyflydgz/t270754. htm (accessed February 6, 2007). 58 The author interviewed Dr. Wu Shicun, president and senior research fellow of the National Institute for South China Sea Studies. 59 Jia Yu, presentation at the “Symposium on China’s Energy Security and the South China Sea” which was held in China in December 2004. 60 The author interviewed former Judge Chan Ho Park in Shanghai, 2005. 61 “China’s Legal Policy Options and Future Prospects”, pp. 26–27. 62 “China reiterates islands claim after Philippine UN move”, BBC, 23 January 2013, Online. Available www.bbc.co.uk/news/world-asia-21163507 (accessed January 28, 2013). 63 Ibid. 64 “China Rejects Philippines” Arbitral Request’, China Daily, 19 February 2013, Online. Available www.chinadaily.com.cn/china/2013-02/19/content_16238133. htm (accessed March 6, 2013). 65 ‘Declaration on the Conduct of Parties in the South China Sea, ASEAN, 4 ­November 2002. Available www.asean.org/asean/external-relations/china/item/ declaration-on-the- conduct-of-parties-in-the-south-china-sea (accessed March 6, 2013). Article 5 states that [t]he Parties undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features and to handle their differences in a constructive manner. 66 Lei Hong, Regular Press Conference, Ministry of Foreign Affairs of the People’s Republic of China, 28 October 2014, Online. Available www.fmprc.gov.cn/mfa_ eng/xwfw_665399/s2510_665401/t1204813.shtml (accessed October 28, 2014); Lei Hong, Regular Press Conference, Ministry of Foreign Affairs of the People’s Republic of China, 23 November 2015, Online. Available www.fmprc.gov.cn/ mfa_eng/xwfw_665399/s2510_665401/t1317589.shtml (accessed November 23, 2015). 67 Press Conference by Chinese Embassy on Philippines’ Submission of a Memorial to the Arbitral Tribunal on Disputes of the South China Sea with China, Embassy of the People’s Republic of China in the Republic of the Philippines, 1 April 2014, Online. Available http://ph.china-embassy.org/eng/xwfb/t1143166. htm (accessed April 28, 2014). 68 ‘Notification and Statement of Claim, No. 13-0211’, Department of Foreign ­A f­fairs (DFA), Republic of the Philippines, 22 January 2013, pp. 12–13,

76  Nong Hong

69 70

71

72 73 74 75 76

Online. Avai­lable www.dfa.gov.ph/index.php/2013-06-27-21-50-36/unclos/216-sfa­statement-on-the-unclos-arbitral-proceedings-against-china (accessed September 22, 2014). “China’s Legal Policy Options and Future Prospects”, p. 28. 11th Press Release of the South China Sea Arbitration (the Republic of the Philippines v. the People’s Republic of China), Permanent Court of Arbitration, 12 July 2016, Online. Available https://pcacases.com/web/sendAttach/1801 (accessed April 28, 2014). S. Gupta, “No Restraint: Judicial Activism in the South China Sea Arbitration Ruling”, ICAS Bulletin, 31 August 2016, Online. Available http://chinaus-icas. org/wp-content/uploads/2016/08/ICAS-Bulletin-August-31-2016.pdf (accessed July 28, 2017). 11th Press Release of the South China Sea Arbitration (the Republic of the Philippines v. the People’s Republic of China). Chunying Hua, Regular Press Conference, Ministry of Foreign Affairs of the People’s Republic of China, 9 April 2015, Online. Available www.mfa.gov.cn/ce/ cemy/chn/fyrth/t1253375.htm (accessed April 9, 2017). Nong Hong, “Reconsidering the Role of Arbitration in South China Sea”, ­China-US Focus, 18 February 2016. Ibid. Ibid.

5 Vietnam and the South China Sea Nguyen Thi Thanh Ha

Introduction In the past ten years, the South China Sea (Biển Đông in Vietnamese) witnessed a new round of events and disputes that escalated tensions in bilateral relations between coastal states and caused concern among countries from within and without the region. Being a coastal state of the South China Sea and one of the claimants to the disputed features in the middle of the sea, Vietnam has made efforts to protect its legal rights and at the same time to create an environment conducive for peace, security, and development in and around the region. This chapter will take stock of the development of Vietnam’s claims and positions on the South China Sea issues over the last decade in response to the evolving situation in the South China Sea and in keeping with its obligations under international law. It is argued that Vietnam strongly believes that international law, particularly the United Nations Convention on the Law of the Sea (UNCLOS) signed in 1982, provides a good framework for states to define their rights and obligations, to cooperate in managing and settling their disputes, and to share the benefits from the uses and exploitation of the Sea.

Vietnam’s claim to the Paracel and Spratly islands Vietnam has spared no chance to assert its claim to sovereignty over the Paracels and the Spratlys called by Vietnam as Hoang Sa Archipelago and Truong Sa Archipelago, respectively. In its Law on National Boundary promulgated by the National Assembly in 2003, Article 1 states: The national boundary of Vietnam is … to determine the limits of the mainland territory, the islands, the archipelagos including Hoang Sa and Truong Sa Archipelagos, the maritime zones, the seabed and the airspace of the Socialist Republic of Vietnam.1 This territorial claim over the Paracel and the Spratly Islands was also re-­ articulated in Article 1 of the Law of the Sea of Vietnam adopted in 2012.2

78  Nguyen Thi Thanh Ha Four White Papers were published in Vietnam in 1975, 1979, 1981, and 1988, respectively, to lay out in detail the historical and legal basis in support of its sovereignty claim over the Paracels and Spratlys and rejection of the overlapping claims of other states.3 According to these Documents, Vietnam had established sovereignty over these archipelagos since at least the 17th century, by actual administrative acts of the State that fulfilled the requirement of international law at that time. Ancient Vietnamese historical books, such as the Đại Nam Thực Lục Tiền Biên (Truthful Accounts about Dai Nam—Part Reserved for Former Dynasties) and the Đại Nam Nhất thống chí (Geography of Unified Dai Nam), recorded that the Vietnamese Emperors set up a company called “Doi Hoang Sa” and dispatched it to collect marine products and goods from shipwrecks in the Paracels.4 This practice continued into the early 19th century where “Doi Hoang Sa” was also tasked to survey sea lanes to the Paracels in order to ensure the safety of navigation. This task was later performed mainly by the Ministry of Public Works. Vietnam’s historical records also contained reports of the Ministry of Public Works on cartographic activities which stated that Hoang Sa was part of Vietnamese territory.5 It was recorded that the Vietnamese Emperors in the early 19th century had ordered the ships going to Hoang Sa to carry wooden markers and to place them on the visited islands as an assertion of the Vietnamese territorial claim. Following an order in 1833 by Vietnamese Emperor Minh Mang, a temple and a stele were built in one feature of the Hoang Sa archipelago in 1835.6 It is said that the Vietnamese state authority’s exercise of state sovereignty over Paracels met no challenge until the 20th century. During the protectorate and colonial period, France, acting in the name of Vietnam, exercised effective sovereignty over the two archipelagos through a series of administrative measures and the exploitation of the natural resources on the islands belonging to the archipelagos. In 1933, the French Government in Indochina annexed the Spratlys (Truong Sa archipelago) into Ba Ria Province, then a French colony. In 1938, France included the Paracels (Hoang Sa archipelago) in Thua Thien Province for administrative purposes. Exchanges of diplomatic correspondences between France and other states, such as China (relating to the Paracels), Britain, Japan (relating to the Spratlys), during the early decades of the 20th century showed that there existed disputes on the sovereignty over the two archipelagos, but France never acquiesced to the claims of the other states or abandoned Vietnam’s title to the archipelagos. The issue of the sovereignty over the Paracels and Spratlys was not mentioned in the instruments ending the Second World War, including the 1943 Cairo Declaration, the 1945 Potsdam Proclamation, or the 1945 Japanese Instrument of Surrender. In the period between 1954 and 1975, in accordance with the Geneva Agreement on the Cessation of Hostilities in Vietnam, the Paracel and Spratly islands, situated south of the demarcation line, were put under the control of the Republic of Vietnam. The Republic of Vietnam

Vietnam and the South China Sea  79 undertook administrative measures to exercise its authority over the islands, including protesting against China’s armed attacks and occupation of the Paracel Islands in 1956 and 1974. Since 1976, a re-unified Vietnam, named the Socialist Republic of Vietnam, has exercised exclusive authority over the entire territory of Vietnam, including the Hoang Sa and Truong Sa archipelagos. The Socialist Republic of Vietnam has consolidated its claim of sovereignty over the two archipelagos by making statements in protest against any activity of other states in violation of its sovereignty and sovereign rights, and by sustaining its presence in 21 features in the Spratly Islands. While consistently asserting its sovereignty over the Paracels and Spratlys, Vietnam recognizes that there exist territorial disputes in relation to these groups of islands and expresses its willingness to join efforts with all the claimant states to settle these territorial disputes by peaceful means under international law.7 In recent years, as China has intensified activities on the ground to consolidate its claims of sovereignty over the groups of islands in the South China Sea, including the Paracels and Spratlys, there were exchanges of official notes and letters at the United Nations, which shed more light on the views of the different parties to these territorial disputes. In these Documents, China asserted that until the 1970s, Vietnam never challenged China’s claims over the Paracel and Spratly islands and that Vietnam, through its publications in the 1950s and the then Prime Minister Pham Van Dong letter addressed to Chinese Premier Zhou Enlai, in 1958, even recognized China’s sovereignty over the two archipelagos.8 In response, Vietnam asserted that until the early 20th century, China had not claimed sovereignty over the Hoang Sa Archipelago. The exchanges of diplomatic correspondence between China and France, on behalf of Vietnam in relation to French administrative activities on the Hoang Sa Archipelago, only appeared in the 1930s and continued until 1956 when France withdrew from Vietnam. This clearly demonstrated that China’s claim to the Hoang Sa Archipelago had been disputed. China did not officially protest when France took possession of the Truong Sa Archipelago in 1933. During the San Francisco Peace Conference in 1951, China’s proposal to include its claims over the Paracels and Spratlys in the agenda was turned down, while the statement by the Head of the Vietnamese Delegation on Vietnam’s sovereignty over the two archipelagos met with no objection. As for Pham Van Dong’s letter of 1958 Vietnam explained that the letter made no mention of sovereignty over the Hoang Sa and Truong Sa Archipelagos. It only said that the Democratic Republic of Vietnam (DRVN) respected China’s decision with regard to its territorial sea. And the reason for that was at that time the DRVN was not in control of the Vietnamese territories below the 17th Parallel demarcation line under the 1954 Geneva Agreement on the Cessation of Hostilities in Vietnam. According to the Geneva Agreement, these territories, including the Hoang Sa and Truong Sa Archipelagos, were put under authority of the Republic of Vietnam.9 Vietnam insists on the existence of legal disputes regarding the

80  Nguyen Thi Thanh Ha sovereignty over the Paracels and Spratlys and that these disputes should be settled between the claimant states by peaceful means in accordance with international law, including those prescribed in Article 33 of the United Nations Charter.

Vietnam’s claims and positions aligned with the UNCLOS Before its ratification of the UNCLOS in 1994, Vietnam claimed a 12 nautical mile territorial sea, a 12 nautical mile contiguous zone beyond the territorial sea, and a 200 nautical mile exclusive economic zone and continental shelf, measured from a straight baseline adopted by the Vietnamese government in 1982. These maritime entitlement claims were also applied to the islands and archipelagos of Vietnam beyond its mainland territorial sea, including the Paracels (Hoang Sa Archipelago) and the Spratlys (Truong Sa Archipelago). The Government also stated that it would “settle the differences relating to the maritime zones and the continental shelf with the countries concerned through negotiation on the basis of mutual respect for independence and sovereignty, in accordance with international law and practices.”10 In 1994, Vietnam decided to ratify the UNCLOS. Upon ratification, the National Assembly deposited with the Secretary-General of the United ­Nations a Declaration expressing “Vietnam’s determination to join the international community in the establishment of an equitable legal order and in the promotion of maritime development and cooperation.” The National Assembly also requested the National Assembly’s Standing Committee and the Vietnamese Government “to review all relevant national legislation to consider necessary amendments in conformity with the 1982 UN Convention on the Law of the Sea, and to safeguard the interest of Vietnam.”11 Following these instructions, the Government worked for more than a decade on the Law of the Sea of Vietnam, which was adopted by the National ­Assembly in 2012. The Law lays out a principled framework for the definition of the limits as well as the legal regime of Vietnam’s maritime zones, the management and protection of the sea, the development of international cooperation, and the settlement of disputes with countries concerned. The Law of the Sea of Vietnam establishes a 12 nautical mile territorial sea, a 12 nautical mile contiguous zone beyond the territorial sea, a 200 nautical mile EEZ, and a 200 nautical mile continental shelf at the minimum and which could be extended beyond 200 nautical miles where appropriate, but not exceeding 350 nautical miles from the baseline or not exceeding 100 nautical miles from the 2,500-metre isobaths.12 The straight baselines of 1982 as well as the sovereignty over the Hoang Sa and the Truong Sa ­Archipelagoes are reaffirmed by the Law. The Law instructs the Government to determine and submit the baselines in areas where the baselines have not been established to the National Assembly’s Standing Committee for authorization.13 Until today, none of the unestablished baselines have been publicized. With regard to the maritime entitlements of Vietnam’s

Vietnam and the South China Sea  81 islands and archipelagoes outside its mainland territorial sea, the Law of the Sea of Vietnam no longer automatically presumes that they all have an exclusive economic zone and a continental shelf of their own. Instead, the Law follows the provisions of Article 121 of the UNCLOS, differentiating islands that can sustain human habitation or an economic life of their own and are entitled to a territorial sea, a contiguous zone, exclusive economic zone, and continental shelf from rocks which cannot sustain human habitation or an economic life of their own and are not entitled to exclusive economic zone and continental shelf.14 Vietnam, however, has not made clear if any of the features in the Paracels and the Spratlys, or at least any of the Spratly features under Vietnam’s control, are fully entitled islands.

Clarification of Vietnam’s claims and positions Several grave incidents occurred in the South China Sea in the past ten years as a result of China’s enforcement of its maritime claims based on the “nine-dash line” or the disputed groups of geographical features in the middle of the sea. For the first time, these disputes were brought to the attention of an international body, particularly the United Nations or the A ­ rbitral Tribunal under Annex VII of the UNCLOS. As an interested coastal state, Vietnam, on every occasion, made its positions known by diplomatic Documents. A systematic review of these Documents would also help understand the development of Vietnam’s maritime claims and positions in the South China Sea. On 7 May 2009, China circulated a map depicting the “nine-dash line,” attached to its Note Verbale to the UN Secretary-General stating that China has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys the sovereign rights and jurisdiction in the relevant waters as well as the seabed and subsoil thereof (See the nine dash line map attached to China’s note verbales in May 2009).15 In another Note Verbale addressed to the UN Secretary-General on 14 April 2011, China claimed that it had several times publicized the geographical scope of the Spratly Islands, called by China as “Nansha Islands,” and that under the UNCLOS and China’s legislation, “China’s Nansha Islands are fully entitled to a Territorial Sea, Exclusive Economic Zone and Continental Shelf.”16 In response to these claims by China, the Permanent Mission of Vietnam to the United Nations, on 8 May 2009, sent a Note Verbale to the UN Secretary-General stating that “China’s claim over the islands and adjacent waters in the South China Sea as manifested in the ‘nine-dash line’ map has no legal, historical or factual basis.”17 Another Note was sent on 3 May 2011 reaffirming Vietnam’s sovereignty over the Paracel and Spratly islands, but said nothing on China’s claim of full maritime entitlements of the Spratly Islands as a single unit.18

82  Nguyen Thi Thanh Ha On 23 June 2012, the Chinese National Offshore Oil Corporation (CNOOC) invited international tender on nine blocks, which are considered as under Chinese jurisdiction on the basis of the “nine-dash line” but are situated well within Vietnam’s continental shelf. Vietnam immediately addressed a Note Verbale to China protesting the CNOOC’s act of violation of Vietnam’s EEZ and continental shelf.19 When China included a map of this line in its type E-passports in 2012, Vietnam sent another Note Verbale to China protesting the action.20 On 1 January 2014 when the authorities of China’s Hainan Province began to enforce China’s putative maritime jurisdiction in the area as enclosed by the nine-dash line, the spokesperson of the Ministry of Foreign Affairs of Vietnam issued a statement in protest.21 From May to July 2014, China deployed a deep-water oil rig named Haiyang Shiyou 981 in areas about 17 miles from Tri Ton Island (called Zhongjian dao by China) in the southernmost of the Paracels (claimed by China as “Xisha Islands”), about 150 miles from the closest point on the mainland coast of Vietnam. The Chinese move resulted in a serious stand-off between law enforcement vessels of both sides and high tension between the two countries. China claimed that the oil rig was operating in areas “well within China’s territorial sea and contiguous zone measured from the baseline of China’s Xisha Islands.”22 During this serious incident, Vietnam not only reached out to China on different levels to find ways to manage the crisis but also made efforts to articulate its positions to the world. In a series of letters addressed to the UN Secretary-General on the incident,23 Vietnam made clear that the area, in which the Chinese oil rig was operating, was within “the EEZ and continental shelf of Vietnam’s as defined in relation to the coast of Vietnam.” “China’s so-called Xisha Islands” was in fact Vietnam’s Hoang Sa Archipelago, which China had illegally occupied by force since 1974; China’s claimed baselines around the Paracels were not in accordance with the UNCLOS and “a baseline incompatible with international law cannot be used as the basis for a maritime claim.” As the Philippines asked an Arbitral Tribunal established under Annex VII of the UNCLOS to consider the validity of China’s maritime claims within the “nine-dash line” and relating to several features occupied by China in the Spratlys,24 Vietnam felt the need to address the Tribunal to protect its legal rights and positions. In a Statement of the Ministry of Foreign Affairs dated 5 December 2014 and delivered to the Arbitral Tribunal,25 Vietnam reminded the Tribunal that Vietnam, being a coastal state in the South China Sea and a State Party to the UNCLOS, had legal rights and interests in the disputes brought before the Tribunal. The Statement presented some following important legal positions. It said that Vietnam “protests and rejects any claim by China in the South China Sea which is based on the ‘nine-dash line’ since any such claim violates Vietnam’s rights and interests of a legal nature as defined under the Convention [UNCLOS] and general international law.” With respect to the features mentioned specifically in the Philippines’ Memorial, Vietnam considers that none of them “can enjoy

Vietnam and the South China Sea  83 their own exclusive economic zone and continental shelf or generate maritime entitlements in excess of 12 nautical miles since they are low-tide elevations or ‘rocks’ under Article 121(3) of the Convention.” After the Arbitral Tribunal delivered its ruling in July 2016, the spokesperson of Vietnam’s Ministry of Foreign Affairs stated that Vietnam “welcomes the fact that on 12 July 2016, the Tribunal issued its Award” and that “Vietnam will make a statement on the content of this Award.” The spokesperson also reiterated that “Vietnam strongly supports the settlement of disputes in the East Sea by peaceful means, including legal and diplomatic processes, refraining from the use or threats to use force in accordance with international law, including the 1982 UNCLOS.” With regard to the Paracels and Spratlys, the Spokesperson made an interesting and subtle differentiation between “Vietnam’s sovereignty over Hoang Sa and Truong Sa Archipelagos” and “Vietnam’s rights and interests of a legal nature in connection with the geographical features of Hoang Sa and Truong Sa Archipelagos.”26 Until today, Vietnam has not officially commented on the substantive content of the Award, including the Tribunal’s finding that none of the features in the Spratlys are fully entitled islands which can generate an exclusive economic zone and continental shelf of their own. But if we take into consideration the positions Vietnam expressed to the Tribunal in its 2014 Statement, we can say that the Tribunal’s Award did meet Vietnam’s expectations on how the disputes in the case should be defined and settled. And the remark of the spokesperson on Vietnam’s legal rights and interests in connection with the geographical features of the Paracel and Spratly islands showed that for Vietnam, the Tribunal’s approach in defining the maritime entitlements of individual features of the Spratlys could be applicable to the features of the Paracels. Vietnamese lawyers who are close to Vietnam’s agencies in charge of advising the Government on the maritime policy have made positive comments on the implications of the Award of the Tribunal. In an article published in the National Asian Security Studies Program Issue Brief, Nguyen Dang Thang, a member of the Vietnam Association of Lawyers and an expert at the National Boundary Commission of Vietnam Foreign Ministry, was of the view that the Award helps clarify the disputed and the non-disputed waters in the South China Sea. In his view there is no disputed area created by the so-called nine-dash line and the disputed waters in connection with the Spratlys (same with the Scarborough Shoal and the Paracels) are limited to the territorial sea of the high-tide geographical features. The Award enables coastal states to exercise their sovereign rights and jurisdiction in their non-disputed EEZ. The Tribunal’s reasoning in the explanation and application of Article 121 of the UNCLOS could be useful for the consideration of the remaining features in the Spratlys as well as the features in the Paracels. The Tribunal’s finding on traditional fishing grounds for fishermen from coastal states in the territorial sea of the high-tide features in the Scarborough Shoal can shed light on the

84  Nguyen Thi Thanh Ha traditional fishing activities around features in the Paracels and Spratlys. Nguyen Dang Thang believed that if states in the region conduct their activities with goodwill and in good faith, they will find valuable and helpful guidance from the Award for both those questions that have been answered and those that have not. This will help to manage disputes and promote cooperation for the sake of development in the South China Sea.27 As China continues its efforts to deploy military equipment and weapons on the artificial islands recently built by China after massive reclamation activities in the Spratly Islands, Vietnam not only sent diplomatic notes to China in protest but also brought its positions to the attention of the United Nations.28 While reaffirming its sovereignty over the Paracels (Hoang Sa Archipelago) and the Spratlys (Truong Sa Archipelago), Vietnam requested China to settle the disputes relating to the Hoang Sa Archipelago, the Truong Sa Archipelago and other disputes and differences in the East Sea through negotiation, consultation and other peaceful means as permitted under international law, including the Charter of the United Nations. Vietnam also expressed its opposition to “any unilateral action affecting regional peace, security and stability.” At the recent Meetings of the ASEAN Foreign Ministers, together with other ASEAN countries, Vietnam continued to voice grave concerns over the negative impacts of such activities on mutual trust and the maintenance of peace, security, and stability in the South China Sea and “emphasized the importance of non-militarization and self-restraint in the conduct of all activities by the claimants and all other states … that could further complicate the situation and escalate tensions in the South China Sea.”29 In response to reports of recent military real-fire exercises by several states30 and the Freedom of Navigation Operations conducted by the US Navy in the South China Sea,31 the spokesperson of Vietnam’s Ministry of Foreign Affairs made several statements stressing that Vietnam respects freedoms of navigation in and flight over the South China Sea as stipulated by UNCLOS and expects other states to make positive and practical contributions to the maintenance of peace and stability, implement their obligations under the UNCLOS, and respect the rule of law in the seas and oceans.32

Resolving disputes and developing confidence-building measures As parties to UNCLOS, coastal countries of the South China Sea adopted national legislation to establish their national maritime zones and regulate

Vietnam and the South China Sea  85 activities of natural resource exploration and exploitation, scientific research, environmental protection, and other uses of the sea and the seabed. This resulted in a number of overlapped claims of maritime zones, in particular the exclusive economic zone and the continental shelf, between the adjacent or opposite coastal countries. In the case of Vietnam, there existed overlapped maritime zones with China in the Bac Bo (Tonkin) Gulf and in the area beyond the closing line of the Bac Bo Gulf; unsettled maritime boundary with Cambodia and continental shelf boundary with Thailand in the Gulf of Thailand; overlapped continental shelf claims with Malaysia; and overlapped EEZ and continental shelf claims with Indonesia. Vietnam has exerted utmost efforts in negotiating with the countries concerned to reach agreements on maritime boundary delimitation in accordance with the provisions of the UNCLOS and the Law of the Sea of Vietnam. In December 2000, the Agreement on Maritime Boundary and the Agreement on Fishery Cooperation between Vietnam and China in the Bac Bo Gulf was signed after many years of painstaking negotiations. These two Agreements established a clear-cut boundary line delineating the adjacent internal waters, territorial seas, Exclusive Economic Zones, and continental shelves of Vietnam and China within the Gulf and identified certain areas on the sides of the boundary line, where fishermen of both sides could fish under agreed schemes for agreed periods of time. These agreements were ratified and put into force in 2004. In June 2003, Vietnam and Indonesia concluded 25 years of bilateral negotiations with an Agreement on the Continental Shelf Boundary between the two countries, which was ratified and put to force in 2007. Vietnam and Malaysia set out in 1992 to negotiate on the delimitation of the overlapped continental shelf between the two countries in the area off the coast of Borneo, then decided to enter an arrangement of petroleum joint development, pending final delimitation. This arrangement has been carried out in real terms till today. Vietnam, Malaysia, and Thailand, in 1997, also reached an agreement on the principle of joint development in the overlapped continental shelf of the three countries in the Gulf of Thailand. The modalities for such a tripartite scheme have yet to be agreed upon. At present, Vietnam maintains regular talks with China on the maritime boundary between the two countries in the area beyond the closing line of the Bac Bo Gulf. Negotiations on the delimitation of the EEZ boundary between Vietnam and Indonesia, as well as on the maritime boundary between Vietnam and Cambodia are also carried out from time to time. Although these ongoing negotiations are yet to reach final agreements, they offer good venues for Vietnam and the other concerned Parties to improve mutual understanding of each other’s legal positions, domestic interests, and sentiments that could have impacts on such negotiations, or to address issues arising from or in relation to the activities in those overlapped zones. However, the unsettled bilateral and multilateral disputes in relation to claims of territorial sovereignty over geographical features in the Paracels

86  Nguyen Thi Thanh Ha and the Spratlys, as well as disputes on the determination of the maritime entitlements of those features have been complicated by China’s ambiguous claims based on the so-called nine-dash line. China also challenged ­UNCLOS by claiming the full maritime entitlements to what it called as “Four Sha” in the South China Sea, namely Xisha (Paracels); the Nansha including the James Shoal (Spratlys); the Zhongsha including the Scarborough Shoal and the Macclesfield Bank; and Dongsha (Pratas). Such maritime claims cannot be supported by international law, in particular the U ­ NCLOS, and would, in effect, turn large parts of the Exclusive Economic Zone and the continental shelf established under UNCLOS by the other coastal countries including Vietnam into “waters under China’s jurisdiction.” While maintaining these unclarified and unjust claims, China keeps calling for “shelving disputes and jointly exploiting” in the South China Sea. Vietnam remains very cautious with China’s proposals for “joint exploitation.” It is not that Vietnam is not open to the joint development arrangement as a temporary solution pending final boundary delimitation in overlapped EEZs or continental shelves as provided for in Articles 76 and 83 of U ­ NCLOS. ­Vietnam, as mentioned above, has had successful joint development arrangements with China, Malaysia, and Thailand in the areas that could be clearly defined in accordance with the UNCLOS. Vietnam, nevertheless, is of the view that China’s “nine-dash line” is illegal and therefore cannot serve as a legitimate ground for discussing joint exploitation arrangement. In order to manage the escalation of tensions in the South China Sea in the 1990s, Vietnam persistently joined the ASEAN countries and China in the negotiation of a Code of Conduct for the South China Sea. In 2002, the ASEAN countries and China agreed to adopt and sign a Declaration on the Conduct of Parties in the South China Sea (the DoC).33 Although the DoC has been hailed by the signatory parties and countries outside the region, the implementation of its provisions, in particular Articles 5 and 6 concerning self-restraint and confidence-building measures, proved to be difficult. It took the ASEAN countries and China nine more years to discuss and adopt in 2011 the 8-point Guidelines for the Implementation of the DoC.34 The implementation of these two Documents showed mixed results. In January 2012, within the ASEAN-China Working Group on the Implementation of the DoC, ASEAN and Chinese senior officials began talks in Beijing (China) on implementing the Guidelines. The Beijing meeting inked an agreement to set up four committees for cooperative activities outlined in the 2002 DoC. These expert committees work on marine scientific research, environmental protection, search and rescue, and transnational crime. Practical measures to reduce tensions, the risk of accidents, misunderstanding and miscalculation were discussed and proposed to the ASEAN and Chinese Foreign Ministers. A hotline was operationalized among Senior Officials of the Ministries of Foreign Affairs of ASEAN Member States and China in response to maritime emergencies in the implementation of the DoC in the South China Sea. In September 2016, the ASEAN-China Joint

Vietnam and the South China Sea  87 Statement on the Implementation of the Code for Unplanned Encounters at Sea (CUES) was endorsed at the ASEAN-China Summit in Vientiane, Laos. On the other hand, several incidents in which China tried to unilaterally enforce “jurisdiction” in maritime areas within the “nine-dash line” took place.35 Since late 2013, China undertook massive land reclamation and ­island-building activities in the geographical features under China’s control in the Spratlys. These Chinese actions caused grave concerns over the maintenance of peace, security, stability, and the freedoms of navigation in the South China Sea. In July 2012, the ASEAN Foreign Ministers Meeting (AMM) could not reach a consensus on language to flag the concerns of some Member States on the situation in the South China Sea, making it impossible for the ministers to issue a joint communique as usual. Vietnam later supported the then Indonesian Foreign Minister Marty Natalegawa’s initiative to save ASEAN’s central role in such an important issue by the adoption of the Statement on the Six-Point Principles on the South China Sea on 20 July 2012. This statement reaffirmed, among other things, ASEAN’s commitment to the full implementation of the DoC and the Guidelines, and the early conclusion of a regional code of conduct.36 Vietnam has been active in the negotiating process which started in 2013, aimed at concluding a viable and meaningful CoC. Vietnam shares the view of the ASEAN countries that the CoC should be comprehensive, effective, and legally binding, which expectedly could help overcome the situation if incidents occur and the parties concerned blame each other for violating the DoC. Vietnam’s position is that CoC should retain all the objectives and principles stated in the DoC and contain clear sets of rules on what could be done and what could not be done in the South China Sea. It should establish an effective mechanism and procedures that allow states to formally register their consent to the provisions of the CoC and to enforce the implementation thereof. A CoC with such content would serve the purposes of overcoming the shortcomings of the DoC and provide a means to discourage the escalation of incidents of disputes, promoting trust and confidence-building measures in the South China Sea.37 The adoption of the CoC Framework by the ASEAN-China PMC in August 2017 was an important milestone. Based on this framework, the ­ASEAN-China Joint Working Group on the Implementation of the DoC came up with a Single Draft Negotiating Text (SDNT), which was to be submitted to the ASEAN-China PMC for consideration and announcement. The SDNT contains proposals from all the negotiating parties for every section of the CoC framework. The SDNT is said to be an evolving text, but it serves as a starting point for the substantive negotiations on the CoC, reflecting the original positions of the negotiating parties on the nature and content of the CoC. It should be noted that though actively engaging in a range of negotiations, Vietnam did not limit itself to negotiation as the only means to resolve

88  Nguyen Thi Thanh Ha and manage territorial and maritime disputes. The Law of the Sea of Vietnam of 2012 also includes a fundamental change in the provision for dispute settlement relating to the sea and islands with other countries. The previous Government Statements of 1977 and 1982 provided that differences between countries relating maritime zones should be settled “through negotiations on the basis of mutual respect for independence and sovereignty, in accordance with international law and practices.”38 The Law of the Sea of Vietnam of 2012 calls for the settlement of disputes relating to the sea and islands with other countries by “peaceful means, in conformity with the UNCLOS, the international law and practices.”39 That means Vietnam is now open to negotiation, conciliation, arbitration, adjudication, or any other peaceful means agreed upon by the concerned parties. The Law also stipulates that Vietnam will strongly promote international and regional cooperation in its maritime zones on the basis of international law. In practice, Vietnam had shown it had considered legal action as a pathway to resolve disputes. During the oil rig stand-off in mid-2014, Vietnam repeatedly called on China through diplomatic channels to withdraw the oil rig, initiate negotiations on the sovereignty of the Paracel features, adopt appropriate measures to stabilize the situation, and control the maritime issues between the two countries. Amid heightened tensions, Vietnamese government officials, including the then Prime Minister Nguyen Tan Dung, made it clear that Vietnam did not rule out the possibility of resorting to legal action in accordance with international law.40 In response to the legal proceedings initiated by the Philippines against China, in the Statement of the Ministry of Foreign Affairs dated 5 December 2014 and delivered to the Arbitral Tribunal, Vietnam expressed support for “UNCLOS States Parties which seek to settle their disputes concerning the interpretation or application of the Convention through the procedures provided for in Part XV of the Convention” and had no doubt that “the Tribunal has jurisdiction in these proceedings and expects that the Tribunal’s decision could contribute to clarifying the legal positions of the parties in this case and interested third parties.” It further asserted that Vietnam reserved “its right to protect its legal rights and interests in the South China Sea by any peaceful means as appropriate and necessary in accordance with the Convention”; in addition, it reserved its “right to seek to intervene if it seems appropriate and in accordance with the principles and rules of international law, including the relevant provisions of UNCLOS.”41

Conclusion In the past ten years, Vietnam has made great efforts to clarify its territorial and maritime claims and its positions on managing and settling the disputes in the South China Sea. Changes have been made where necessary to bring Vietnam’s maritime claims and positions into conformity with its obligations under international law, including the UNCLOS. Vietnam recognizes

Vietnam and the South China Sea  89 the existence of the territorial and maritime disputes in the South China Sea and is determined to settle them by peaceful means under international law. Vietnam’s view is that pending a final settlement of the disputes, all parties should implement in good faith their obligations and commitments under international law, including the UN Charter, UNCLOS, and other regional agreements, such as the DoC, to seek ways and means to avoid tensions, build trust and confidence, and promote cooperative arrangements for the peaceful use of the South China Sea.

Notes 1 Law No. 06/2003/QH11 on the National Boundary, promulgated by the National Assembly of the Socialist Republic of Vietnam on 17 June 2003. See the Vietnamese text in https://thuvienphapluat.vn/van-ban/Bo-may-hanh-chinh/ Luat-Bien-gioi-Quoc-gia-2003-06-2003-QH11-51044.aspx. 2 Law of the Sea of Vietnam promulgated by the National Assembly of the Socialist Republic of Vietnam on 21 June 2012. Article 1 states: Scope of Application: This Law prescribes the baseline, the internal waters, the territorial sea, the contiguous zone, the exclusive economic zone, the continental shelf, the islands, Hoang Sa Archipelago, Truong Sa Archipelago and other archipelago under the sovereignty, the sovereign rights and the national jurisdiction of Vietnam; activities within the maritime zones of ­Vietnam; development of marine economy; management and protection of the sea and islands. (emphasis added); See the Vietnamese text at: www.chinhphu. vn/portal/page/portal/chinhphu/hethongvanban?mode= detail&Document_id=163056 3 White Paper on the Hoang Sa (Paracel) and Truong Sa (Spratly) Islands, published by the Ministry of Foreign Affairs of the Republic of Vietnam, 1975; Chủ quyền của Việt Nam đối với hai Quần đảo Hoàng Sa và Trường Sa (Vietnam’s sovereignty over the the Hoang Sa (Paracel) and Truong Sa (Spratly) Archipelagoes), published by the Ministry of Foreign Affairs of the Socialist Republic of Vietnam, 1979; “Quần đảo Hoang Sa và Quần đảo Trường Sa, Bộ phận của Lãnh thổ Việt Nam,” published by the Ministry of Foreign Affairs of the Socialist Republic of Vietnam, 1981; The Hoang Sa (Paracel) and Truong Sa (Spratly) ­A rchipelagoes and International Law, published by the Ministry of Foreign Affairs of the Socialist Republic of Vietnam, 1988. 4 Đại Nam Thực Lục Tiền Biên (Truthful Accounts about Dai Nam—Part Reserved for Former Dynasties), History Publishing House, Hanoi 1962, p.  22; Đại Nam Nhất thống chí (Geography of Unified Dai Nam) History Publishing House, Hanoi 1970, pp. 354–370. At this time, both the Paracels and the Spratlys were referred to as one group of islands under the name of Hoang Sa. 5 See, e.g., the Report by the Minister of Public Works to Emperor Thieu Tri of 28th May of the 12th month of the 7th year of Thieu Tri’s reign. English translation in ibid., pp. 15–16. The relevant passage in the Report reads ‘Obeying an Edict by Your Majesty, every year we send navy junks to Hoang Sa area which belongs to our territorial waters so as to explore maritime routes’. (Emphasis added). 6 See Dai Nam Thuc Luc Chinh Bien (Truthful Accounts about Dai Nam—Part Reserved for the Present Dynasty), Book 154, original in classical Chinese, English translation in ibid., pp. 16–17. See also Nguyễn Nhã, Quá trình Xác lập Chủ

90  Nguyen Thi Thanh Ha quyền của Việt Nam tại Quần đảo Hoàng Sa và Trường Sa (The Process of Establishing Vietnam’s Sovereignty over the Paracel and Spratly Archipelagos), PhD thesis, Hồ Chí Minh National University 2002, pp. 93–94. 7 See Note Verbale No. 161/HC-2016 by the Permanent Mission of the Socialist Republic of Vietnam to the United Nations, addressed to the Permanent Missions of the Member States to the UN on 10 May 2016; available at: https:// seasresearch.wordpress.com/2016/08/29/note-verbalee-dated-10-may-2016-ofthe-permanent-mission-of-viet-nam/. Also see Letter dated 13 June 2016 of the Permanent Representative of Vietnam to the United Nations, addressed to the Secretary-General of the United Nations, available at: https://seasresearch. wordpress.com/2016/08/29/letter-dated-13-june-2016-from-the-permanent-­ representative-of-viet-nam-to-the-united-nations-addressed-to-the-secretarygeneral/. 8 Letter of the Permanent Representative of the People’s Republic of China to the United Nations, addressed to the Secretary-General of the United Nations on 3 March 2016, available at: https://seasresearch.wordpress.com/2016/08/29/ letter-dated-3-march-2016-from-the-permanent-representative-of-china-to-the-­ united-nations-addressed-to-the-secretary-general/; Note Verbale CML/59/2016 of the Permanent Mission of the People’s Republic of China to the United Nations, addressed to the Permanent Missions of Member States to the United ­Nations on 1 July 2016, available at: https://seasresearch.wordpress.com/2016/08/29/ note-verbalee-dated-01-july-2016-of-the-permanent-mission-of-china. 9 Note Verbale No. 161/HC-2016 of the Permanent Mission of Vietnam to the United Nations, addressed to the Permanent Missions of Member States of the United Nations on 10 May 2016, available at: https://seasresearch.wordpress. com/2016/08/29/note-verbalee-dated-10-may-2016-of-the-permanent-missionof-viet-nam/. 10 Statement of the Government of the Socialist Republic of Vietnam on the Territorial Sea, the Contiguous Zone, the Exclusive Economic Zone and the Continental Shelf, adopted on 12 May 1977, Articles 1, 2, 3, 4, 5 and 7; Statement of the Government of the Socialist Republic of Vietnam on the Baseline used to Measure the Width of Vietnam’s Territorial Sea, adopted on 12 November 1982. 11 Declaration by the National Assembly of Vietnam on 25 July 1994 upon ratification of the UNCLOS, available at: www.un.org/depts/los/convention_­ agreements/convention_declarations.htm#Vietnam Upon ratification. 12 Law of the Sea of Vietnam promulgated by the National Assembly on 21 June 2012, Articles 11, 13, 15, and 17. With regard to Vietnam’s claim of extended continental shelf, in 2009 Vietnam made submissions to the UN Commission on the Limits of the Extended Continental Shelf on two areas of extended continental shelf, one of which is a joint submission with Malaysia, in the middle of the South China Sea. These submissions are pending the consideration of the CLCS. 13 These areas include the Bac Bo Gulf on the Vietnamese side of the maritime boundary with China, the joint historic waters with Cambodia in the Gulf of Thailand, Vietnam’s islands and archipelagoes outside its mainland territorial sea. 14 Law of the Sea of Vietnam, Articles 19 and 20. 15 Note Verbale CML/18/2009 dated 7 May 2009 of the Permanent Mission of the People’s Republic of China to the UN Secretary-General, www.un.org/Depts/ los/clcs_new/submissions_files/vnm37_09/chn_2009re_vnm.pdf. 16 Note Verbale CML/8/2011 dated 14 April 2011 of the Permanent Mission of the People’s Republic of China to the UN Secretary-General, www.un.org/Depts/ los/clcs_new/submissions_files/vnm37_09/chn_2011_re_phl_e.pdf. 17 Note Verbale No. 86/HC-2009 dated 8 May 2009 of the Permanent Mission of the Socialist Republic of Vietnam to the UN Secretary-General, available at: www.

Vietnam and the South China Sea  91

18

19 20 21 22 23

24 25

26 27 28

29 30 31

un.org/Depts/los/clcs_new/submissions_files/vnm37_09/vnm_re_chn_2009re_ vnm.pdf. Note Verbale No. 77/HC-2011 dated 3 May 2011 of the Permanent Mission of the Socialist Republic of Vietnam addressed to the UN Secretary-General, available at: www.un.org/Depts/los/clcs_new/submissions_files/vnm37_09/vnm_2011_re_ phlchn.pdf. Note Verbale No. 455/BNG-UBBG dated 27 June 2012 of the Ministry of Foreign Affairs of the Socialist Republic of Vietnam addressed to the Embassy of the People’s Republic of China in Hanoi. Note Verbale No. 740/BNG-LPQT dated 22 October 2012 of the Ministry of Foreign Affairs of the Socialist Republic of Vietnam addressed to the Embassy of the People’s Republic of China in Hanoi. See full statement of the Spokesperson of the Foreign Ministry of Vietnam at a press meeting on 10 January 2014 at www.mofa.gov.vn/vi/tt_baochi/pbnfn/ ns140111011900. Letters dated 22 May 2014, 9 June 2014, 24 July 2014, of the Permanent Representative of China to the United Nations, https://seasresearch.wordpress.com/ category/official-positions-and-legal-instruments/diplomatic-notes. Letters dated 7 May 2014, 28 May 2014, 6 June 2014, 3 July 2014 and 22 August 2014, of the Permanent Representative of Vietnam to the United Nations, https:// seasresearch.wordpress.com/category/official-positions-and-legal-instruments/ diplomatic-notes. Notification and Statement of Claim, published by the Government of the Philippines on 22 January 2013, https://seasresearch.files.wordpress.com/2014/12/­ notification-and-statement-of-claim-on-west-philippine-sea.pdf. Statement of the Ministry of Foreign Affairs of the Socialist Republic of Vietnam Transmitted to the Arbitral Tribunal in the Proceeding between the Republic of the Philippines and the People’s Republic of China, 5 December 2014, available at: https://seasresearch.files.wordpress.com. See the full text of the Spokesperson’s Statement in Vietnamese at www.mofa. gov.vn/vi/tt_baochi/pbnfn/ns160712171301. Nguyen Dang Thang, “Implications of the July 2016 Arbitral Tribunal Ruling”, National Asian Security Studies Program Issue Brief, Issue 1, No. 5.2 (December 2016). Letter dated 7 January 2016 by the Permanent Representative of Vietnam to the United Nations addressed to the UN General-Secretary transmitting 2 diplomatic notes of Vietnam’s Foreign Ministry to the Embassy of China in Hanoi concerning China’s conduct of test flights to the airfield built illegally by China at the Fiery Cross Reef in the Spratly Islands on 2 and 6 January 2016 and requesting the UN Secretary-General to circulate the Letter and its annexes as official Document of the General Assembly; Letter dated 19 February 2016 by the Permanent Representative of Vietnam to the United Nations addressed to the UN General-Secretary transmitting a diplomatic note of Vietnam’s Foreign Ministry to the Embassy of China in Hanoi concerning China’s construction of a helicopter base on Duncan Island and development of surface-to-air missile batteries on Woody Island (both islands are in the Paracel Islands) and requesting the UN Secretary-General to circulate the Letter and its annex as official Document of the General Assembly. Joint Communique of the 49th and 50th AMM in 2016 and 2017. Such as China during the last week of September 2018, the joint exercise by Australia, Malaysia, Singapore, New Zealand, and the UK in early October 2018. The latest was the ten-hour operation by the USS Decatur in the 12-mile ­waters around the Gaven Reef in the Spratly Islands on 30 September 2018.

92  Nguyen Thi Thanh Ha

32 33 34 35 36

37 38

39 40 41

The operation resulted in an incident when the Chinese destroyer Lanzhou/ PRC 170 swerved just 45 meters in front of the Decatur, forcing the Decatur into an emergency manoeuvre to prevent a collision. See the Vietnamese version of the Spokesperson’s statement on 4 October 2018, available at: www.mofa.gov.vn/vi/tt_baochi/pbnfn/ns181004162945/view. See full text of the Declaration on the Conducts of Parties in the South China Sea at: asean.org/?static_post=declaration-on-the-conduct-of-parties-in-thesouth-china-sea-2. See full text of the Guidelines for the Implementation of the Declaration on the Conducts of Parties in the South China Sea available at: www.southchinasea. com/Documents/law/306-guidelines-for-the-implementation-of-the-DoC.html. See above: section “Vietnam’s claim to the Paracel and Spratly islands” of this chapter. The 6-point principles include (i) the full implementation of the Declaration on the Conduct of Parties in the South China Sea (2002); (ii) the Guidelines for the Implementation of the Declaration on the Conduct of Parties in the South China Sea (2011); (iii) the early conclusion of a Regional Code of Conduct in the South China Sea; (iv) the full respect of the universally recognized principles of International Law, including the 1982 United Nations Convention on the Law of the Sea (UNCLOS); (v) the continued exercise of self-restraint and non-use of force by all parties; and (vi) the peaceful resolution of disputes, in accordance with universally recognized principles of International Law, including the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Nguyen Dang Thang, “Dam phan CoC: Mot so Cau hoi ban dau”, Dai su ky Bien Dong, 16 November 2017, available at: https://daisukybiendong.wordpress. com/2017/11/16/dam-phan-CoC-mot-so-cau-hoi-ban-dau/. Statement of the Government of the Socialist Republic of Vietnam on the Territorial Sea, the Contiguous Zone, the Exclusive Economic Zone and the Continental Shelf, adopted on 12 May 1977; Statement of the Government of the Socialist Republic of Vietnam on the Baseline used to Measure the Width of Vietnam’s Territorial Sea, adopted on 12 November 1982. Law of the Sea of Vietnam promulgated by the National Assembly of the Socialist Republic of Vietnam on 21 June 2012. “Vietnam preparing Documents to sue China: Premier”, Tuoi tre News, 3 July 2014, available at: https://tuoitrenews.vn/politics/20740/vietnam-preparingDocuments-to-sue-china-at-international-tribunal. Statement of the Ministry of Foreign Affairs of the Socialist Republic of Vietnam Transmitted to the Arbitral Tribunal in the Proceeding between the Republic of the Philippines and the People’s Republic of China.

6 The Philippines–China joint development Jacqueline Joyce F. Espenilla

Introduction In recent months, it was widely reported1 that the Philippine and Chinese governments had plans to conclude a joint development agreement (JDA) for Reed Bank,2 an entirely submerged reef formation located in the northeast part of the Spratly Island group and within the Philippines’ 200 nautical mile exclusive economic zone (EEZ). These reports were met with both consternation and curiosity. The consternation was mainly due to the fact that in July 2016, the Philippines won a sweeping legal victory in the compulsory arbitration case3 that it brought against China under Annex VII in relation to part XV of the United Nations Convention on the Law of the Sea (UNCLOS). It may be recalled that the Arbitral Tribunal invalidated China’s claim to “historic rights” in the South China Sea—the basis for its “Nine-Dash Line” policy—and declared the same to be inconsistent with the provisions of the UNCLOS.4 Notably, the award also clarified the status of the various land features in the disputed area. It found that none of them were “islands” capable of generating their own EEZ, and that many of them were not even “rocks” that would entitle their claimant to a territorial sea.5 Consequently, a number of the features analyzed by the Arbitral Tribunal were properly found to be within the Philippines’ EEZ and not subject to any possible Chinese entitlement. The ruling thus effectively affirmed the Philippines’ sovereign rights over resources within its UNCLOS-designated EEZ and continental shelf. The Arbitral Tribunal subtly yet unequivocally negated the existence of overlapping claims—a fundamental condition for joint development arrangements. Against this backdrop, a JDA relating to such areas might be seen as a negation by the Philippines of its own claim to exclusive sovereign rights. JDAs, after all, are traditionally entered into by states pending the settlement of potentially legitimate overlapping claims. Any future deal between the Philippines and China will thus have to be recognized as a purely political accommodation and not one that is justified by either Philippine or international law. On the other hand, many observers are justifiably curious about the terms of the possible agreement. This curiosity was further stoked by the

94  Jacqueline Joyce F. Espenilla fact that during the 20 November 2018 visit of Chinese Foreign Minister Wang Yi to the Philippines, the two countries signed a “Memorandum of Understanding (MoU) on Oil and Gas Development”6 wherein they agreed to “negotiate on an accelerated basis arrangements to facilitate oil and gas exploration and exploitation in relevant maritime areas consistent with applicable rules of international law.”7 A closer look at the MoU shows that it is essentially an “agreement to agree” on a future JDA within 12 months of its signing.8 In order to facilitate the achievement of that goal, the MoU established two bodies: an Inter-Governmental Joint Steering Committee (the Committee) and one or more Inter-Entrepreneurial Working Groups (the Working Group).9 The Committee is comprised of an equal number of Philippine and Chinese members and will be led by their respective Foreign Ministers and Energy Ministers. It will be responsible for “negotiating and agreeing on the cooperation arrangements and the maritime areas to which they will apply, and deciding the number of Working Groups to be established and for which part of the cooperation area each Working Group is established.”10 On the other hand, the Working Group/s will be comprised of representatives of enterprises authorized by the two governments. While China authorized the China National Offshore Oil Corporation for this purpose, the Philippines indicated that it will authorize the enterprise(s) that has/have entered into a service contract with the Philippines with respect to the applicable working area or, if there is no such enterprise for a particular working areas, the Philippine National Oil Company—Exploration Corporation as the Philippine enterprise for the relevant Working Group.11 Each Working Group will “negotiate and agree on inter-entrepreneurial, technical and commercial arrangements that will apply in the relevant working area.”12 Many were surprised by the rather sparse contents of the MoU since it was heavily hinted, in the days leading up to the visit, that the two countries would be signing a comprehensive framework for joint development.13 It was expected that the framework would identify the general principles that will inform future exploration and exploitation activities—ownership and jurisdiction, the process for identifying the contract area, the manner of management and profit sharing, and issues relating to taxation, among others. Many wondered whether a Philippines-China JDA would take a leaf out of existing JDAs or if it would be a sui generis arrangement. The MoU, however, flew in the face of predictions and speculations and instead took a more sedate approach to the issue. In any case, its signing clearly indicates that neither country wants to rush discussions. The apparent deliberateness is a nod to the obvious complexities inherent in joint development and the unique circumstances of the Philippines-China relationship. It should be remembered that in cases where a final agreement on the delimitation of the

Philippines–China joint development  95 continental shelf has yet to be settled, the UNCLOS requires the disputing States to “enter into provisional arrangements of a practical nature” in order to temper tensions and promote cooperation. One of the more popular ways of fulfilling this obligation is to engage in the joint development of hydrocarbon resources located in areas of overlapping legitimate claims. In Asia, such joint development arrangements have met with varying degrees of success. Nonetheless, the Philippines and China still seem fully committed to moving forward with a JDA with respect to certain areas in the South China Sea.

Conceptual and legal approach to joint development of hydrocarbon resources The joint development of hydrocarbon resources has long been regarded as a practical means to manage tensions relating to disputed maritime areas.14 In the Guyana v. Suriname arbitration, the Arbitral Tribunal defined it as …the cooperation between States with regard to exploration for and exploitation of certain deposits, fields or accumulations of non-living resources which either extend across a boundary or lie in an area of overlapping claims.15 Notwithstanding this definition, there is still no universally recognized form for the joint development of hydrocarbon resources.16 The only thing that is clear is that it is usually undertaken between two or more parties that have unresolved, overlapping, and potentially legitimate claims to an EEZ or continental shelf where proven or unproven hydrocarbon resources are located. The sovereignty issues are provisionally set aside for the purpose of maximizing mutual economic benefit. In this sense, the joint development activity is intended to end or at the very least manage an existing dispute by redirecting the disputing parties’ attentions towards a more mutually productive endeavour. This is not to say, however, that joint development is no longer available to States that have already delimited their borders or who have at least come to some sort of understanding about their respective areas of jurisdiction and control.17 Under this scenario, joint development functions more as an affirmance of the parties’ understanding and as a means to prevent a re-ignition of tensions. These two concepts may thus be conflated into the observation that joint development has historically been used as a tool to prevent, manage, or end a dispute over shared borders and/ or shared hydrocarbon resources. Rather than coming up with a single notion of joint development of hydrocarbon resources, it may be instructive for purposes of this chapter to provide a brief survey of such JDAs in order to demonstrate the range of possible contexts in which they may be applied and the general forms that they may take. They may be understood, for example, as cross-border utilization

96  Jacqueline Joyce F. Espenilla over boundary-straddling petroleum resources similar to the arrangement established under the Barents Treaty18 between Norway and Russia, and the Frigg Field Arrangement19 between the United Kingdom and Norway. Under a unitization scheme, claimants would be required to treat their respective property claims as part of a common pool or “unit” that would be developed as a single endeavour by both States. They would then be entitled to a percentage of interest as co-owners of said unit. For such common units, a system of compulsory joint ventures may also be established, as in the agreement between South Korea and Japan.20 Under this agreement, the joint development area pertaining to the common pool is divided into small zones, which are in turn explored and exploited by one or more developers approved by both States.21 Such developers are then required to conclude a joint venture agreement.22 Because both States deem the common resource to be subject to their sovereign rights, the domestic law of both (including tax laws) is applied to the part pertaining to their approved developer.23 Costs and profits are equally shared by both States.24 A third possibility is the creation of a “joint authority” or institution to implement the JDA. Here, States closely cooperate to jointly establish an entity that would have juridical personality under the laws of both States, and which would have the right of regulation and supervision over all activities under the JDA relating to the common resource. This includes the exercise of licensing rights and the award of concessions. An example of this arrangement is the Timor Sea Treaty between Australia and East Timor,25 which created a Timor Sea Designated Authority (TSDA). Finally, JDAs may also have reference to a joint zone identified by the parties in addition to a duly negotiated boundary line. Such a joint zone need not correspond to the area subject to the overlapping claims.26 In the case of the Bahrain-Saudi Arabia Agreement,27 the joint zone was wholly located in the Saudi Arabian side of the boundary where a “single state” model was applied. Under this arrangement, only Saudi Arabia was authorized to manage the development of subject oil fields on behalf of Bahrain. The joint development project was thus fully subject to Saudi Arabia’s laws and jurisdiction. Bahrain and Saudi Arabia would nonetheless share in the total revenues (minus development costs) derived from the production area.28 In relation to the above observations, it should be noted that, at least with respect to cases where a final boundary delimitation has not yet been made, the joint development of hydrocarbon resources may be considered as possible “provisional arrangements of a practical nature” under Articles 74(3) and 83(3) of the UNCLOS. The identical language of these two articles provide Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the

Philippines–China joint development  97 final agreement. Such arrangements shall be without prejudice to the final delimitation. It can readily be seen that the quoted provision speaks of two obligations that “simultaneously attempt to promote and limit activities in a disputed maritime area.”29 The first obligation asks parties to make “every effort to enter into provisional arrangements of a practical nature” pending a final determination. It implies that such provisional arrangement is “without prejudice” to the final delimitation.30 The second obligation requests them to make during that transitional period “every effort…not to jeopardize or hamper the reaching of the final agreement.” Articles 74(3) and 83(3) may also be read together with Article 123 of the UNCLOS, which speaks of a general duty to cooperate. The opening clause of Article 123 provides States bordering an enclosed or semi-enclosed sea should cooperate with each other in the exercise of their rights and in the performance of their duties under this Convention. Although the article does specifically mention joint development in its enumeration of cooperative activities, it has been argued that “the cooperative principle regarding shared marine living resources and the regional marine environment serves a useful function in finding an analogous cooperative nature in the legal regime applicable to common deposits within relatively narrow semi-enclosed seas…”31

Is there still merit to pursuing a Philippines-China JDA? From the outset it should be established that the Philippines and China are not legally obliged to enter into a JDA. This is clear from the language or Articles 74(3) and 83(3) of the UNCLOS quoted in the previous section. While it strongly encourages States, in a “spirit of understanding and cooperation,” to enter into “provisional arrangements of a practical nature,” the UNCLOS does not go so far as to establish a binding obligation to do so. At best, it requires the parties to negotiate in good faith, which may mean making reciprocal concessions in the pursuit of such provisional arrangement.32 In the North Sea Continental Shelf Case, the International Court of Justice (ICJ) observed that States, when dealing with hydrocarbon deposits straddling a boundary line, have taken to entering into JDAs in order to ensure the most efficient exploitation and allocation of the resources.33 However, the inconsistency and total lack of uniformity of state practice likewise calls into question the existence of a binding international custom with respect to the negotiation and conclusion of JDAs.34 This lack of legal compulsion as well as the main implication of the 2016 arbitration (i.e. the non-existence of overlapping Philippine and Chinese claims under the UNCLOS) makes

98  Jacqueline Joyce F. Espenilla it difficult to move forward with joint development. Nevertheless, there may still be merit in pursuing a formal Philippines-China JDA purely as a form of political accommodation on the part of the Philippines. The reasons are as follows. The first reason is political, as a JDA between the Philippines and China may be seen as a strategic act of preventive diplomacy. “Preventive diplomacy” has been defined as “action to prevent disputes from arising between parties, to prevent existing disputes from escalating into conflicts and to limit the spread of the latter when they occur.”35 The instruments of preventive diplomacy vary widely,36 and thus may even include joint development to the extent that such activities help manage or avert potential conflicts between two or more disputing States. It should be emphasized that the ­Philippines-China relationship is a complex one. Although the two countries are now enjoying a relatively good relationship (due in large part to the current Philippine president’s pro-China policy shifts), it is clear that tensions relating to unresolved issues following the Philippines-China arbitral award are simmering beneath the surface. A majority of Filipinos continue to distrust China.37 What all of these mean for the Philippines in practical terms is that it needs to ensure two things: (1) the mutual restraint of both countries in disputed areas and (2) confidence in the Philippines-China relationship. As to the first, a formal JDA can serve to prevent future confrontations in the proposed joint development zone since the arrangement would require each country exercise a certain degree of mutual restraint for the venture to be successful. A JDA, after all, serves to separate issues of sovereignty from issues of economic exploitation. It would therefore not serve the interests of either party to insist on a hard-line, confrontational position. As to the second, the Philippines might be able to minimize the possibility of re-­igniting tensions by grabbing the bull by the horns: Taking active ownership of a process that, done correctly and transparently, can yield real benefits for the country in terms of concretizing China’s various political and economic commitments to the Philippines. This might significantly help allay domestic fears and concerns. The second reason is primarily economic. The Philippines’ Malampaya natural gas field—an offshore deep-water facility located 65 km northwest of Palawan—currently fulfils a huge portion of the country’s power generation requirement. However, industry experts believe that this field will be fully depleted within 5–10 years. The Philippines is therefore on the clock to find an alternative source of energy to offset Malampaya’s dwindling reserves. Failure to do so means that the country will likely have to import natural gas at a tremendous cost or else face disastrous energy shortages. Set against this factual backdrop, a JDA with China in the Reed Bank or some other identified area seems to make plenty of practical sense. In fact, numerous JDAs were impelled by precisely the same reason.38 After all, the South China Sea is estimated to hold about 11 billion barrels of oil and 190 trillion cubic feet of natural gas.39 The same report reckons that

Philippines–China joint development  99 about approximately one-fifth of those resources may be found in the Reed Bank.40 Due to the dispute between the two countries, neither side has been able to exploit the resources in the area. At the height of the tensions in 2015, the Philippines even went so far as to indefinitely suspend all exploration activities in the Reed Bank.41 Entering into a JDA with China could thus potentially achieve three things: (1) Assuming initial joint exploration and exploitation activities prove successful, it could provide a buffer against a future energy crisis by providing an alternative means for fulfilling the country’s growing power generation requirements; (2) it could provide some measure of political and legal certainty for potential investors who have thus far been reluctant to even consider buying in to such a tension-fraught investment environment; and (3) it could be a concrete way for the Philippines to benefit from China’s expertise in resource exploration and exploitation, as well as its more developed legal and physical infrastructure. From the Philippine perspective, another aspect of the economic justification argument is that the conclusion of a Philippines-China JDA might help safeguard the alleged resources from inefficient and inequitable exploitation. Assuming the rumoured oil and gas reserves are actually proved, any action on the part of China to begin unilateral deep-water exploitation activities within its “Nine-Dash line” claim may cause the oil and gas reserves under the Philippine continental shelf to “migrate” toward Chinese-­ controlled areas as a result of hydraulic pressure. Without a well-crafted and legally compliant JDA, there is a possibility that the “law of capture” would prevail. In American oil industry parlance, “the law of capture” means that The owner of acreage which produces oil from a well on that acreage is recognized as having produced or ‘captured’ the oil, even though it is possible that a part of it has been drained from the sub-surface of contiguous property. Where there are owners drilling from a common pool of oil, the rational behavior of each, in the absence of any agreement or regulation, is to extract as much and as fast as possible in order to avoid losing out to one’s neighbor. The producer who moderates his current flow risks allowing other producers to pump oil he could have had. Since each producer in the pool knows this, all may pump too rapidly.42 Thus, the desire to enter into a Philippines-China JDA can actually be considered as a defensive position. Its conclusion would mean that China—the party having a greater chance of exploiting any potential oil and gas reserves in the relevant area—would be constrained from unilaterally appropriating the resource. A formal Philippines-China JDR means that there is greater possibility of building safeguards into the agreement. A unitization arrangement, for example, would require the parties to conduct a thorough mapping and baseline accounting of the shared resource. In so doing, the

100  Jacqueline Joyce F. Espenilla concerned States would be more assured of the equitable distribution of economic benefits.

Legal pitfalls and political challenges According to Philippine legal experts, a Philippines-China JDA will only work if the Philippines overcomes two major legal problems: 1) internationally, how to justify its acceptance that China contingently shares the petroleum resources within its continental shelf after an international arbitration award clearly declared that no plausible claim exists; and 2) domestically, how to accommodate any petroleum development not under its sole jurisdiction, control, and supervision, but rather on a shared, co-equal basis with another state.43 With respect to the second problem, it should be accepted that any JDA with China will almost certainly be challenged before Philippine courts. This is the hard political reality given the widespread paranoia among Filipinos that such an arrangement would ultimately be disadvantageous to the country’s territorial interests. Furthermore, there is a basis for this given that, depending on the specifics of such an arrangement, it may be deemed in violation of Philippine law. Constitutional issues The Philippine constitution is fiercely possessive of the country’s patrimony. This is evident from Article XII, Section 2,44 which unequivocally lays down a number of important ground rules relating to the exploration, development, and utilization of natural resources. The Supreme Court, in the seminal case of La Bugal B’laan Tribal Association vs. Ramos,45 clarified that First, all-natural resources are owned by the State. Except for agricultural lands, natural resources cannot be alienated by the State; Second, the exploration, development, and utilization of natural resources shall be under the full control and supervision of the State; Third, the State may undertake exploration, development, and utilization activities through either of the following: (a) by itself directly and solely, or (b) by co-production, joint venture or production sharing agreements with Filipino citizens or corporations, at least 60 per cent of the capital of which is owned by such citizens; Fourth, small-scale utilization of natural resources may be allowed by law in favor of Filipino citizens; and Fifth, the President may enter into agreements with foreign-owned corporations involving either technical or financial assistance according to the general terms and conditions provided by law for the large-scale

Philippines–China joint development  101 exploration, development, and utilization of minerals, petroleum, and other mineral oils.46 It further noted that the agreements referred to in the fifth clarification are actually “service contracts between foreign corporations acting as contractors on the one hand, and on the other, the government as principal or ‘owner’ of the works.”47 Under this system, the foreign contractors (even though they may be 100% foreign-owned) are allowed to provide capital, technology/technical know-how, and managerial expertise in the creation and operation of large-scale extractive enterprises. The government, through relevant agencies, actively exercises control and supervision over the entire operation.48 In addition to the rather intricate manifestation of jure regalia described above, Article XII, Section 2 of the Constitution also specifically reserves the use and enjoyment of resources in the archipelagic waters, territorial sea, and the EEZ to Filipino citizens.49 However, it should be noted that it does not make a similar reservation for the use and enjoyment of resources on the continental shelf where it exercises sovereign rights under the UNCLOS. This omission may mean that resources on the continental shelf may be the subject of a joint development activity with another State. Nonetheless, this clause must still be read together with the limiting language described in the previous paragraph. Taken together, the clear declaration of exclusivity seems to imply that joint resource development agreements are conceptually prohibited. There can be no other possible interpretation given that the very nature of such agreements necessarily requires that non-Philippine entities share ownership, control, and use of the resources. Issues under Presidential Decree No. 87 50 Presidential Decree (P.D.) No. 87, which was issued by then President ­Ferdinand Marcos on 1 January 1983, is, for all intents and purposes, the Philippines’ main oil exploration and development law. Its declared policy is to hasten the discovery and production of indigenous petroleum51 through the utilization of government and/or private resources, local and foreign, under the arrangements embodied in this Act which are calculated to yield the maximum benefit to the Filipino people and the revenue to the Philippine government.52 All the petroleum produced belongs to the Philippine government.53 In relation to this, the government may directly undertake petroleum exploration and production, or it may do so under a system of service contracts54 in identified contract areas.55 Service contracts, as contemplated in this decree, are commercial contracts where “service and technology are furnished

102  Jacqueline Joyce F. Espenilla by the service contractor for which it shall be entitled to a stipulated service fee.”56 The “contract area” here pertains to “any portion beneath the Philippine territorial waters or its continental shelf, or portion of the continental slope, terrace, or areas which may be subject to Philippine jurisdiction.”57 The general rule is that financing for petroleum exploitation and operations shall be provided by the government but, in cases where it is unable to do so, the service contract may stipulate that the source of the funds will be the proceeds of the sale of the petroleum produced under the contract.58 The net proceeds of the contract will be subject to a 60–40 sharing arrangement in favour of the Philippine government. A number of further observations may be made about P.D. No. 87 that have direct bearing on its compatibility (or lack thereof) with a Philippines-­ China JDA. First, the Philippine government, as the sovereign owner of the resources, has full control over the terms and implementation of the service contracts which are purely commercial in nature. It does not at all contemplate the sharing of such ownership and control with another sovereign power. Second, the service contracts themselves follow a specific template that may not be flexible enough to accommodate terms negotiated under a potential Philippines-China JDA. Terms pertaining to the contract area, contract duration, and profit sharing are clearly slanted in favour of Filipinos. Third, it specifically provides that only Philippine laws on labour, health, safety, and ecology govern any service contract formed under this decree.59 The other provisions of P.D. No. 87 also imply the exclusive application of Philippine criminal, civil, tax, and immigration laws. Finally, service contracts under P.D. No. 87 are awarded via competitive public bidding in contracting rounds administered by the Philippine government. This process will be difficult to reconcile with a possible negotiated agreement under a JDA. Philippines-China arbitration One of the most obvious difficulties of negotiating a Philippines-China JDA is the ability of both parties to agree on terms that would be consistent with their respective interpretations of international law. The award in the Philippines-China arbitration has clarified many issues that, when understood in their plainest sense, nullify China’s claim to “historic rights” in the South China Sea. For a JDA to be concluded, it would seem that China would have to be willing to compromise its claim to entitlements within its “Nine-Dash Line” and recognize the legal possibility of the Philippines’ sovereign rights over its continental shelf and EEZ. For the ­Philippines, it would have to make a similar compromise on the legal effect of the award, insofar as it recognizes the exclusivity of its exercise of such sovereign rights. One of the defining features of other JDAs in Asia and around the world is the presence of a “without prejudice” clause—a clause that effectively

Philippines–China joint development  103 reserves the rights of both States to maintain their claims to the disputed area even as both set it aside for the sole purpose of realizing economic benefits. Such conceptual de-linking is practical in theory yet complicated in reality. Assuming a Philippines-China JDA moves forward for exploration in the Reed Bank, for example, the parties will have to answer questions that will require exhaustive negotiation: Which party would exercise operational control? Whose national laws would apply? Who would have taxing power? Who would have the duty to maintain and secure the facility? Although the answers to these questions are routine in JDA negotiations, they become especially tricky when set against the backdrop of the arbitral award. This is because they relate specifically to the exercise of sovereign rights, and thus would be either an implied negation or affirmation of the award. The Philippines vs. China arbitral ruling, coupled with the possible legal issues presented by a straightforward application of Philippine laws, mean that any future JDA between the Philippines and China will automatically be subject to intense legal and political scrutiny. As a result, such agreements will always give off an air of instability and uncertainty in implementation unless such issues are addressed at the earliest possible stage of negotiations.

Effects of bilateral joint development on ongoing multilateral cooperation efforts Southeast Asian countries have consistently expressed their desire to maintain an environment of peace, stability, and security in the region. This is clear from both official statements60 and actual initiatives of the Association of Southeast Asian Nations (ASEAN) States. Desire, of course, does not always translate to reality. For one thing, some relationships in the region straddle the fine line between rivalry and friendship. For another, extra-­ regional forces continue to shape priorities as well as influence the creation of pressure points. Given the situation, stakeholders are redoubling their efforts to come up with a formal and binding South China Code of Conduct (CoC), the next step after years of trying to implement the Declaration on the Conduct of the Parties (DoC). The drafting of this Document is without doubt the most high-profile of the various multilateral cooperation efforts currently underway. It may be recalled that a Framework CoC was adopted in August 2017 by ASEAN and China.61 This framework was given substance a year later when the parties adopted the Single Draft Negotiating Text (SDNT) for a CoC for the South China Sea.62 According to one report, the SDNT appears to incorporate UNCLOS provisions relating to the duty to cooperate and the duty to enter into maritime cooperation of a practical nature pending the settlement of disputes.63 With respect to the latter, the SDNT envisions such maritime cooperation to refer, among others, to marine environmental protection, marine scientific research, safety of navigation and communication at sea, and combatting of transnational crime.64 At this early stage in the negotiations, it does not

104  Jacqueline Joyce F. Espenilla seem that the SDNT considers joint development to be one such form of maritime cooperation. At the very least, none of the negotiating parties have indicated a desire to codify JDAs as such. Nonetheless, the conclusion of a politically and legally acceptable bilateral JDA between the Philippines and China has the potential to serve the same function as the other forms of maritime cooperation identified in the SDNT: To build trust and confidence among the parties in the interim period in order to help lay the foundation for lasting peace, stability, and security. One could view JDAs (and indeed, other forms of practical maritime cooperation) as a form of preventive diplomacy, meant to forestall the creation or escalation of tensions. As such, they could potentially form key elements of a regional “Infrastructure for Peace” (I4P), which is defined as “a dynamic networking of skills, capacities, resources, tools, and institutions that help build constructive social and political relationships and enhance sustainable resilience of societies against relapse into violence.”65 I4P was originally formulated for application in relation to domestic post-conflict situations where key stakeholders in a given country are required to adopt a cooperative, problem-solving approach to conflict based on negotiation and non-violence.66 Its basic premise is that sustainable peace can only be achieved if certain building blocks/elements are in place to facilitate the achievement of such a goal. The possible negotiation and conclusion of a Philippines-China JDA presents an interesting crossroad. On the one hand, it can be one of the building blocks in a regional I4P. On the other hand, it can be yet another cause for friction if its key provisions are not legally and politically acceptable.

Conclusion It is futile to assert that the Philippines and China, like some other countries dealing with territorial disputes, should conclude a JDA for the exploration and exploitation of hydrocarbon resources in the South China Sea without first considering the unique legal and political context to which it would apply. Indeed, there are sound legal and political reasons for the Philippines’ hesitation to enter into such a JDA. What might have worked for other countries may not necessarily work for these two countries. Context is important and the devil is, as they say, in the details. Nonetheless, joint development can certainly be a tool for promoting cooperation and reducing tensions. However, it can only fulfil this promise if the JDA is able to competently and comprehensively address valid legal and political concerns, including, for example, the Philippines’ constitutional issues and the implications of the 2016 arbitral ruling. Should it be successful, it may be a useful building block of a regional I4P. If the JDA fails to do so, it may instead turn into another flashpoint in the Philippines-China relationship, ultimately having a spillover effect to parallel cooperation endeavours such as the CoC.

Philippines–China joint development  105

Notes 1 See for example I. Cigaral (2018) Cayetano: Philippines, China in Talk about Joint Development in South China Sea, The Philippine Star, www.philstar.com/ headlines/2018/06/02/1820974/cayetano-philippines-china-talks-about-joint-­ development-south-china-sea, last accessed October 30, 2018; P. Esmaquel II (2018) PH to Put Aside Rights in Joint Development with China Rappler, www. rappler.com/nation/209043-philippines-to-put-aside-rights-joint-developmentchina, last accessed October 30, 2018. 2 Known as “Recto Bank” in the Philippines. 3 In re Arbitration between the Republic of the Philippines and the People’s Republic of China, PCA Case No. 2013–19, Award (July 12, 2016), www.pcacpa.org. 4 Ibid. 5 Ibid. 6 V. Lopez (2018) Malacañang Releases Copy of MOU with China on Oil, Gas Cooperation, GMA Network News, www.gmanetwork.com/news/news/nation/ 676093/malaca-ntilde-ang-releases-copy-of-mou-with-china-on-oil-gas-­ cooperation/story/, last accessed March 30, 2019. 7 Ibid. 8 Ibid. 9 Ibid. 10 Ibid. 11 Ibid. 12 Ibid. 13 See for example R. Mercene (2018) Philippines, China Framework Deal on ­Hydrocarbons Near Completion—DFA, Business Mirror, https://businessmirror. com.ph/philippines-china-framework-deal-on-hydrocarbons-nears-­completiond-f-a/, last accessed November 1, 2018; D. Pazzibugan (2018) Cayetano to Sign Framework Deal with China for Joint Exploration, Inquirer, https://global nation.inquirer.net/169106/cayetano-sig n-framework-deal- china-joint-­ exploration, last accessed November 1, 2018. 14 R. Beckman, Legal Framework for Joint Development in the South China Sea, S. Wu, M. Valencia, and N. Hong (editors), UN Convention on the Law of the Sea and the South China Sea, Ashgate Publishing, Surrey, 2015. 15 R. Lagoni, Report on Joint Development of Non-Living Resources in the Exclusive Economic Zone, I.L.A. Report of the Sixty-Third Conference, at pp. 511–512 (1988), quoted in Guyana v. Suriname, Award 1CGJ 370 (PCA 2007), para. 462. 16 D. Nguyen, Joint Development in the South China Sea: Selected Issues, T. Thuy and L. Trang (editors), Power, Law, and Maritime Order in the South China Sea, Lexington Books, London, 2015. 17 C. Schofield, Defining Areas for Joint Development in Disputed Waters, S. Wu and N. Hong (editors), Recent Developments in the South China Sea Dispute: The Prospect of a Joint Development Regime, Routledge, London, 2014. 18 Treaty between the Kingdom of Norway and the Russian Federation concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean, September 15, 2010, www.regjeringen.no/upload/ud/vedlegg/folkerett/ avtale_engelsk.pdf. 19 Agreement Relating to the Exploitation of the Frigg Field Reservoir and the Transmission of Gas Therefrom to the United Kingdom, UK-Norway, July 20, 1978, 1098 UNTS 4. 20 Agreement Concerning Joint Development of the Southern Part of the Continental Shelf Adjacent to the Two Countries, South Korea-Japan, January 30, 1974, 1225 UNTS 113.

106  Jacqueline Joyce F. Espenilla 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37

38

39

40 41 42 43 44 45 46 47 48

Ibid., Arts. 3 and 4. Ibid., Arts. 5 and 6. Ibid., Arts. 16 and 17. Ibid., Art. 9. Timor Sea Treaty, Australia-East Timor, May 20, 2002, 3 UNTS 2258. Supra, note 17. Agreement concerning the delimitation of the Continental Shelf in the Persian Gulf, Bahrain-Saudi Arabia, February 22, 1958, www.un.org/Depts/los/LEGIS LATIONANDTREATIES/PDFFILES/TREATIES/BHR-SAU1958BA.PDF. Ibid. Guyana v. Suriname Award, ICGJ 370 (PCA 2007), para. 459. Supra at note 14, p. 256. D.M. Ong, ‘Joint Development of Common Offshore Oil and Gas Deposits: “Mere” State Practice or Customary International Law?’ The American Journal of International Law 93, no. 4, 1999, 783. Supra at note 29, para. 461. North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 3 at para. 97. Supra at note 31. An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peacekeeping. Report of the Secretary-General pursuant to the statement adopted by the Summit Meeting of the Security Council on January 31, 1992. A/47/277, para. 20. A. Acharya, Preventive Diplomacy: Issues and Institution in the Asia Pacific Region. Paper presented to the 8th Asia Pacific Roundtable, Kuala Lumpur, June 6–8, 1994. L. de Guzman (2018) SWS: Four out of Five Filipinos Dissatisfied with Government Action on the South China Sea, CNN Philippines, http://cnnphilippines. com/news/2018/07/14/SWS-philippines-south-china-sea-duterte.html, last accessed on November 2, 2018. See for example the Treaty on the Zone of Cooperation in an area between the Indonesian province of East Timor and Northern Australia, Australia-­Indonesia, December 11, 1989; 1654 UNTS 105; and the Agreement on the Constitution and other Matters Relating to the Establishment of the Malaysia-Thailand Joint Authority, Malaysia-Thailand, May 30, 1990, https://cil.nus.edu.sg/wp-content/ uploads/formidable/14/1990-Malaysia-Thailand-Joint-Authority.pdf. Energy Information Association Staff (2013) Contested Areas of South China Sea Likely Have Few Conventional Oil and Gas Resources, US Energy Information Administration, www.eia.gov/todayinenergy/detail.php?id=10651, last accessed March 9, 2019. Ibid. Kyodo News (2015) Philippines suspends oil, gas exploration in Reed Bank, ABSCBN News, https://news.abs-cbn.com/business/03/03/15/philippines-­suspendsgas-oil-exploration-reed-bank, last accessed March 9, 2019. C. Morales Siddayao, The Off-Shore Petroleum Resources of Southeast Asia: Potential Conflict Situations and Related Economic Considerations, Springer, the Netherlands, 1978, p. 109. J. Batongbacal (2018) Philippine-China Joint Development Talks at an Impasse Despite Green Light, Asia Maritime Transparency Initiative, https://amti.csis. org/philippines-china-joint-development-impasse/, last accessed March 9, 2019. Phils. Const. (1987) Art. XII, Sec. 2. La Bugal B’laan Tribal Association vs. Ramos, G.R. No. 127882 (S.C., Dec. 1, 2004) (Phil.), http://sc.judiciary.gov.ph/jurisprudence/2004/dec2004/127882.htm. Ibid. Ibid. Ibid.

Philippines–China joint development  107 49 Supra at note 44. 50 An Act to Promote the Discovery and Production of Indigenous Petroleum, and Appropriating Funds Therefor, Pres. Dec. No. 87 (January 1, 1983) (Phil.). 51 Under Sec. 3(a) of P.D. No. 87, “petroleum” is defined as “any mineral oil, hydrocarbon gas, bitumen, asphalt, mineral gas, and all other similarly or natural associated substances with the exception of coal, peat bituminous shale, and/or other stratified mineral fuel deposits.” 52 P.D. No. 87, Sec. 2. 53 Ibid., Sec. 6. 54 Ibid., Sec. 4. 55 Ibid., Sec. 10. 56 Ibid., Sec. 6. 57 Ibid., Sec. 10. 58 Ibid., Sec. 6, in relation to Sec. 7. 59 Ibid., Sec. 9(h). 60 See for example the Joint Statement of the Foreign Ministers of ASEAN Member States on the Maintenance of Peace, Security and Stability in the Region (2016); Joint Statement of the Foreign Ministers of ASEAN Member States and China on the Full and Effective Implementation of the Declaration on the Conduct of Parties in the South China Sea, July 24, 2016; ASEAN Foreign Ministers’ Statement on the Occasion of the 40th Anniversary of the Treaty of Amity and Cooperation in Southeast Asia (TAC), July 24, 2016. 61 R. Dancel (2017) ASEAN, China adopt framework code of conduct for South China Sea, The Straits Times, www.straitstimes.com/asia/se-asia/chinas-­foreignminister-says-maritime-code-negotiations-with-asean-to-start-this-year, last accessed March 9, 2019. 62 X. Bo (2018) China, ASEAN arrive at single draft negotiating text of CoC in South China Sea, Xinhuanet, www.xinhuanet.com/english/2018-08/02/c_1373 64174.htm., last accessed October 26, 2018. 63 C. Thayer (2018) A Closer Look at the ASEAN-China Single Draft South China Sea Code of Conduct, The Diplomat, https://thediplomat.com/2018/08/a-closerlook-at-the-asean-china-single-draft-south-china-sea-code-of-conduct/, last accessed March 9, 2019. 64 Ibid. 65 H.J. Giesmann, ‘Infrastructures for Peace: Approaches and Lessons Learned, UNDP, 2016, 10. 66 Peaceportal.org, “What Is ‘Infrastructures for Peace’?” www.peaceportal.org/ web/i4p/i4p.

7 Japan and the South China Sea Bonji Ohara

Introduction The current South China Sea issue is showing the appearance of a major power game between the US and People’s Republic of China (PRC). On 4 October 2018, US Vice President Pence delivered a speech that is said to be comparable to British Prime Minister Churchill’s “Iron Curtain” speech of 5 March 1946 that heralded the beginning of the Cold War. Vice President Pence accused China of constructing artificial islands and military bases in the South China Sea after President Xi Jinping had declared that the “the PRC has no intention of militarizing the area.” Pence declared that US forces will not withdraw from the “Freedom of Navigation Operations (­FONOPs).”1 However, the US is not a claimant in the South China Sea and does not take sides on the territorial disputes but regards China’s militarization of the South China Sea as a major issue and has been continuing with FONOPs to demonstrate its opposition. Although, Japan is not an actor concerned with the territorial disputes in the South China Sea, the Japanese government has accused China of militarizing the area as “a change in the status quo by force.” Also, Japan’s approach to the South China Sea issues differs from the approach by the US. This chapter aims to consider the implications of Japan’s policy towards the South China Sea. First, it looks back on the territorial disputes in the South China Sea to provide a background. We need to understand the gaps in situational awareness between the US and Japan. Then, it will analyze the significance of US opposition to China’s militarization of the South China Sea since the US attitude may have a huge impact on Japan’s policy towards the South China Sea.

Maritime disputes in the South China Sea The South China Sea comprises the Paracel and the Spratly Islands. The Paracels are spread over a sea area of 15,000–16,000 square kilometres and are claimed by Vietnam, Taiwan, and China, but have been occupied by China since 1974. Most of the features in the South China Sea are in the Spratly Island group which are spread over 160,000–180,000 square kilometres of ocean area. The Spratly Islands are claimed in their entirety by

Japan and the South China Sea  109 China, Taiwan, and Vietnam, and partially by the Philippines, Malaysia, and Brunei. China has been active in both the Paracel Islands and the Spratly Islands. In the South China Sea, abundant fishery resources have been confirmed. The United Nations’ conducts of seabed resource exploration in 1986 and 1987 proved the existence of petroleum and natural gas reserves which spurred the maritime rivalry on the part of the surrounding countries.2 However, experts in the US, Japan, and European countries have questioned the size and extent of these reserves. In addition, the China National Offshore Oil Corporation (CNOOC), which is the mainstay of ­China’s ocean oil development, has not conducted any exploration in the waters around the Spratly Islands since 2002 and was successful in test drilling in the area in the 1990s. In the 1950s, when China first became interested in the possession of the islands in the South China Sea it had great hopes for seabed resources development. However, the situation since at least the early 2000s shows that China has had little intention to engage in seabed resource development. To understand China’s intentions, we should examine China’s activities in the South China Sea and how they have expanded. China occupied the eastern half of the Paracel Islands in the 1950s, when the French troops withdrew from the Paracel Islands. At the same time, South Vietnam (at that time) had also made inroads in the Paracel Islands. However, in 1974, just after the US troops withdrew from the South Vietnam in 1973, China repulsed South Vietnamese military forces and came to control the entire Paracel Islands. In April 1975, as a result of the Vietnam War, the Republic of Vietnam collapsed. After the Soviet Union withdrew from Vietnam in the mid-1980s, China moved into the Spratly Islands, and in 1988, it occupied six rocks or shoals in the Spratly Islands.3 It can be said that China has attempted to control the entire South China Sea, exploiting the power vacuum that occurred there after US forces withdrew from the Philippines in 1992. In 1995, China occupied the Mischief reef, and in the 2000s, China started to expand its influence into the southern South China Sea. In 2012, China established effective control over Scarborough Shoal, and since 2014, China has implemented large-scale land reclamation of seven features and has engaged in infrastructure development in the Spratly Islands. In July 2016, after the Philippines appealed to an Arbitral Tribunal under the Law of the Sea, the Tribunal denied the legality of China’s nine dash line, including China’s claim of historical rights as the basis of the nine dash line. The illegality of China’s activities was recognized in the Tribunal’s ruling. However, China has clarified that it does not intend to follow this judgement. And then China keeps building infrastructure which can be used for military purposes such as runways, hangars, ports, radar facilities, and oil storing facilities, as well as military facilities such as coast batteries and armoured anti-air missile systems. During China’s 19th Party Congress, which was held in October 2017, President Xi Jinping reported China’s progress in terms of maritime development activities in the South China Sea as one of the economic achievements

110  Bonji Ohara of his government. On Fiery Cross Reef, the construction of large-scale ports that allow entry of surface naval vessels is progressing. In addition, in January 2016, China declared that construction of the 3,000-metre runway on which fighter jets and large bombers can land and take off had been completed. While protest voices from surrounding countries were raised, the test flights on this runway included landing and take-off by commercial aircraft. Furthermore, in April of the same year, Chinese military aircraft under patrol in the South China Sea landed on Fiery Cross Reef to give emergency assistance to three severely ill civilian workers.4 In July, on the Subi Reef and Mischief Reef runways, test flights by aircraft were conducted for two consecutive days.5 In January 2018, two Y-7 transport aircraft were confirmed on Mischief Reef, and in April, a Y-8 special mission aircraft was seen on Subi Reef.6 In these features, missile shelters, ports, helipads, radars, and underground storage facilities have been constructed as well as ammunition depots. In addition, in April 2018, anti-ship cruise missiles and surface-to-air missiles were reported to have been deployed on each reclaimed feature and radar jamming devices were deployed on Mischief Reef while a close-in weapon system (CIWS) has been deployed on the other features. China promoted the militarization on the Paracel Islands even before the Spratly Islands. On Woody Island, a runway extension was constructed from 2013, and the deployment of fighters such as the J-11 was confirmed there in October 2015 and October 2017. The presence of surfaceto-air missile (SAM) systems was confirmed there in February 2016 and January 2017. The Chinese Department of Defense in May 2018 announced that H-6K bombers had undergone flight training in the South China Sea and on Woody Island. In Scarborough Shoal, where Chinese vessels confronted Philippine ships in April 2012, Chinese surveillance vessels have been active and it is thought that China would make new reclamations there. If radar facilities and runways are constructed on Scarborough Shoal, the Chinese capability for situation awareness as well as other military functions in surrounding waters would be reinforced and it may result in an ability to control the entire South China Sea. If these reclaimed features are used for full-fledged military purposes, the security environment in the Asia-Pacific region could significantly change. The Japanese government recognized that it is necessary to keep monitoring the situation, China’s militarization of the South China Sea in particular.

Security implications of China’s militarization of the South China Sea China not only builds military facilities on the natural features in the South China Sea but also actively conducts military operations in the surrounding waters and airspace. In March 2009 and December 2013, China’s naval vessels approached and obstructed US naval war ships navigating the South

Japan and the South China Sea  111 China Sea. On 30 September 2018, Chinese warships conducted a series of increasingly aggressive manoeuvres accompanied by warnings for the US warship to depart the area. The guided-missile destroyer USS Decatur was performing a FONOP on September 30, sailing close to Chinese-claimed reefs in the Spratly Islands, when it was approached by a Chinese destroyer, the Lanzhou.7 In May 2016 and February and May 2017, Chinese military aircraft dangerously approached US patrol aircraft. In July and August 2016, after the Arbitration Tribunal issued its ruling, Chinese Air Force’s H-6K bombers carried out a “combat patrol flight” in the airspace near Scarborough Shoal, and China’s Department of National Defence announced that these flights would be “regularized” in the future. In addition, Chinese and Russian naval forces conducted a joint exercises “Joint Sea 2016” in the South China Sea from 12 September 2006, adding a new twist to ongoing tensions over Chinese island-building in the region.8 The eight-day joint Chinese-Russian exercises, which were conducted in the South China Sea for the first time, included Marine Corps units in live-fire drills, island landing operations, and island defence and offense missions. From the end of March to April 2018, the largest naval review on the commemoration of the establishment of the PRC was conducted in the South China Sea. Furthermore, Chinese naval vessels intimidated the fishing boats of neighbouring countries, as they became increasingly active in the South China Sea. Thus, it seems that China has the intention of expanding its military presence and improving its operational capabilities in the South China Sea. Such activities are intended to challenge to change status quo on the way to realize China’s control of the area. Japan, the US, and the international community are seriously concerned. In response to growing concerns over these activities, China has claimed that several ASEAN countries such as the Philippines and Vietnam unfairly seized some natural features in the Spratly Islands, and were engaged in large-scale construction of fixed facilities such as airfields in the features they occupied. However, China’s reclamation projects in the South China Sea are incomparably larger than those conducted by other countries and have been expanded. Japan is concerned about the potential for China to significantly improve its capabilities of surveillance and military operations in the South China Sea. Japan believes that China’s construction of artificial islands will make it possible for Chinese naval vessels and coast guard ships to be supplied from the Spratly Islands. In addition, as a result of building 3,000-­metre runways on several reclaimed features, including Fiery Cross Reef, Mischief Reef, and Subi Reef, Chinese fighters, long-range bombers, large transport planes, and aerial tankers can operate from the Spratly area. Various anti-air and anti-surface radars have been deployed there as well. Japan recognizes that these facilities will enhance China’s capabilities to operate military aircraft in the entire air space over the South China Sea. Japan recognizes that China’s activities over the South China Sea may increase tensions and are the concern of the entire international community

112  Bonji Ohara as they are directly linked to the peace and stability in the Asia-Pacific region. For example, in the meeting with China’s Foreign Minister Wang Yi on 6 August 2015, Foreign Minister Fumio Kishida mentioned that as far as the situation in the South China Sea was concerned, the international community would never accept unilateral attempts to change the status quo or claims and actions not based on international law. Minister Kishida explained that this was a general principle to which Japan adhered, and not what Japan was saying about China alone.9 Japan has consistently upheld the rule of law in regard to the South China Sea. The Japanese Government is calling on the ASEAN countries to quickly formulate an effective Code of Conduct based on international law and will continue to focus on this effort.10

Impact on Japan’s maritime route Japan once claimed territorial rights in the South China Sea. Japan’s role in the South China Sea dates back to 1918, when a Japanese phosphorus mining company began to explore the South China Sea. It conducted mining operations on six islands in the Spratly Islands for nearly 20 years. Focusing on the economic potential of the South China Sea, Japan declared sovereignty over the area around the Spratly Islands in 1938 by naming it “New South Archipelago.” This area was regarded as Japanese territorial waters, but after 1945, Japan withdrew. Japan officially abandoned this maritime territory during the San Francisco Peace Conference held in 1951.11 Since then, Japan has not been involved in any maritime territorial disputes in the South China Sea. Nevertheless, for Japan, the South China Sea’s sea lanes are a vital national interest because Japan’s economic activity relies heavily on trade and, in particular, upon energy imports such as fossil fuels, petroleum, coal, and natural gas. Japan’s energy self-sufficiency rate in 2016 was 8.3%, which is slightly higher than the lowest level of 6% in 2014, but it is considerably lower than other OECD countries. Japan’s energy situation, which depends on other countries for resources, is dependent on the international situation. Having experienced the energy crisis, including the first oil shock of 1973, Japan has since created a society that does not rely too much on fossil fuels. However, due to the shutdown of all nuclear power plants after the Great East Japan Earthquake in 2011, the increased operation of thermal power plants resulted in an 89% reliance on fossil fuels in 2016. Japan’s economic activities still rely heavily on fossil fuels. Japan’s import dependency is 99% for oil and 98% for gas. In particular, Japan’s oil imports, mainly from the Middle East, are extremely high at 85%.12 Maritime transportation supports Japan’s trade, which is 99.6% of Japan’s imports and exports.13 In this way, establishing and maintaining a stable and secure environment transporting energy resources such as crude oil is a high-­priority policy goal. This is one of the reasons why Japan seeks to protect the sea lanes in the South China Sea.

Japan and the South China Sea  113

Japan’s policy towards the South China Sea For Japan, which regards safe and secure maritime transportation as a vital national interest, China’s militarization of the South China Sea has a huge impact not only on Japan’s traditional security but also on the nation’s economic activities. Therefore, Japan should make every effort to oppose China’s activities when they ignore international norms and result in the militarization of the area. But it is easy to imagine the difficulty for China, which regards the South China Sea as a core interest. Given that China is unlikely to yield to political and diplomatic measures over the South China Sea, effective deterrence by military means is necessary to curb China’s unilateral and provocative actions and its militarization. The two pillars of deterrence against China are the US military presence and Japan’s support for it. The US military has already implemented measures such as increasing the distribution of forces to the US Indo-Pacific Command (INDOPACOM) and strengthening military cooperation with regional countries in order to implement an Asia-Pacific-oriented rebalancing policy. US forces in Japan and those deployed from the US mainland can create this deterrent. Japan supports the US military presence in the South China Sea, albeit indirectly, by providing for US bases in Japan and supplying American troops that use the bases. In times of crisis and contingencies, it is essential to establish a system which will allow full support for US military forces by the Japan Self-­ Defence Forces (JSDF). This should include an improvement in joint operational capabilities with the US forces. The Abe administration in 2015 promulgated “Legislation for Peace and Security” because of the change of security environment around Japan. The legislation will enable seamless responses to any situations to secure the lives and peaceful livelihood of the Japanese people. Japan will be able to contribute more proactively to the peace and stability of the international community under the policy of “Proactive Contribution to Peace” based on the principle of international cooperation. The Government of Japan has been trying to get the JSDF to respond to these issues seamlessly and to conduct joint operation with the US military forces smoothly. However, the JSDF cannot respond to an event in the South China Sea seamlessly if the Japanese government does not gain the Diet’s approval. For this to occur, the Japanese Diet has to define the situation as an “Important Influence Situation (IIS)” or a “Survival Threatening Situation/ Armed Attack Situation (STS/AAS).”14 Despite the effort of the Government of ­Japan, the problem has not been completely resolved. The JSDF would conduct logistic support to the US military forces only if the Japanese Diet defines an event as STS/AAS. Only then would it be possible to exercise Japan’s right to collective defence and support directly American operations in the South China Sea.15 If the Government of Japan wants to order the JSDF to conduct military operations in the South China Sea, the

114  Bonji Ohara definition of the situation would become a major issue for the Diet. Even if a military clash occurs in the South China Sea, it would be difficult for the JSDF to become involved because of the difficulty of defining military clashes in the South China Sea as an Armed Attack against Japan. Similarly, it is not easy to define such events as a Survival Threatening Situation for Japan. Because of the Japanese allergy against the use of military force, the Japanese government would have to demonstrate political leadership to obtain Diet support if it tries to order the JSDF to conduct military operation in the South China Sea. In the normal situation of Japanese politics, it is considered realistic to recognize a military conflict in the South China Sea as a threat to Japan’s maritime sea lanes and to define it as IIS. Should it be defined in this way, the JSDF can provide support logistics to US military forces conducting military operations in the name of the US-Japan Security Treaty, as well as providing support to foreign military forces and organizations that contribute to the purposes of the United Nations Charter. Japan may only recognize the military confrontation in the South China Sea as IIS and may only provide logistic support to the US military forces. However, it does not mean that Japan cannot contribute to the security of the South China Sea region. The strategic role of US military forces and the JSDF can be compared to a “pike and shield.” This means that Japan is required to fulfil both missions of homeland defence including ballistic missile, cruise missile and islands defence, and sea lane protection to ensure its own survival as well as securing US military support for Japan. While Japan is carrying out such missions, US military forces may conduct strategic strikes against China, while at the same time conducting military operations in the South China Sea. If this happens, the JSDF and the US military forces will not conduct joint operations but will conduct operations separately. It shows the necessity of coordinating activities between ­Japan and the US. If Japan and the US achieve the goal of coordination, Japan can provide a “free hand” to the US. If Japan could improve its capability for homeland defence and contribute to the sea lane, the US operation could increase its role in other areas. This is the meaning of the “free hand” that Japan can provide the US and it will greatly improve the flexibility of US military operations against China and strengthen US deterrence of China. Japan has many diplomatic options to deal with the situation in the South China Sea, including providing a capacity-building program for the coast guards of the ASEAN countries surrounding the South China Sea. In view of China’s expansion into the South China Sea, there is a significant lack of maritime capability in the littoral countries, particularly in the Philippines and Vietnam. In addition, an improvement of the presently inadequate Air and Maritime Domain Awareness (AMDA) of all the regional countries is urgent. Japan can make a contribution in this area because of the difficulty the regional countries are facing in developing AMDA capabilities. However, Japan will not be satisfied only with what can be done under the present domestic political condition. Even if

Japan and the South China Sea  115 US military forces limit themselves to surveillance and reconnaissance operations in the South China Sea, it may be possible for the JSDF to conduct missions when the US military cannot. Japan can conduct its own maritime exercises in the South China Sea, as well as joint naval exercises with those countries where the JSDF has made port calls. Such exercises may be effective in preventing China from taking provocative actions.

Conclusion Japan can play a leading role on the issues in the South China Sea, even though it is not a major player in the power game between the US and China in the region. China recognizes the US as its only competitor or rival though it understands that it cannot win a war against the US. For this reason, China opposes US’s interference into the issues in the South China Sea and attempts to define it as an intra-regional issue, excluding the US. The resolution of the South China Sea issue requires non-military measures such as politics and diplomacy, but those activities have to be supported by military capabilities. Only with the solid involvement of the JSDF in terms of supporting US military forces and capacity building for the littoral countries as mentioned above would China think seriously about going to the negotiation table to discuss the issues. Hence, Japan’s role in the South China Sea issue is extremely important, in the sense of supporting US military operation and assisting the capacity-building projects of the countries in the region.

Notes 1 “米副大統領、中国助ける時代「終わった」　融和路線転換”, Nikkei Dailies in Japanese, November 2, 2018, www.nikkei.com/article/DGXMZO37243610R01C18A1 M11000/. 2 Koichi Sato “中国と「辺疆」：海洋国境―南シナ海の地図上のU 字線をめぐる問題―”, 境界研究 no. 1(2010) pp. 19–43. 3 “南シナ海情勢 （中国による地形埋立・関係国の動向）”, Ministry of Defense Japan, www.mod.go.jp/j/approach/surround/pdf/ch_d-act_20180202.pdf. 4 “U.S. protests after Chinese military jet lands on South China Sea island”, CNN, April 19, 2016, https://edition.cnn.com/2016/04/18/politics/chinese-military-jetlands-on-island/index.html. 5 “China tests 2 more airfields in South China Sea”, ABS/CBN NEWS, July 14, 2016, https://news.abs-cbn.com/overseas/07/14/16/china-tests-2-more-airfieldsin-south-china-sea. 6 “An Accounting of China’s Deployments to the Spratly Islands”, CSIS Asia Maritime Transparency Initiative, May 9, 2018, https://amti.csis.org/accountingchinas-deployments-spratly-islands/. 7 “Photos show how close Chinese warship came to colliding with US destroyer”, CNN, October 4, 2018, https://edition.cnn.com/2018/10/02/politics/us-china-­ destroyers-confrontation-south-china-sea-intl/index.html. 8 “China, Russia begin joint exercises in South China Sea”, CNN, September 13, 2016, https://edition.cnn.com/2016/09/12/asia/china-russia-south-china-sea-­ exercises/index.html.

116  Bonji Ohara 9 “Japan-China Foreign Ministers’ Meeting”, Ministry of Foreign Affairs of Japan, August 7, 2015, https://www.mofa.go.jp/a_o/c_m1/cn/page22e_000742. html. 10 “Press Conference by Foreign Minister Fumio Kishida”, Ministry of Foreign Affairs of Japan, May 19, 2017, www.mofa.go.jp/press/kaiken/kaiken4e_000375. html. 11 Izumi Chihana “南シナ海をめぐる領有権問題：南シナ海”『アジア動向年報 2014年 版』p. 25, IDE-JETRO Institute of Developing Economy—Japan External Trade Organization. 12 “2017-11-09 日本のエネルギーと中東諸国～安定供給に向けた国際的な取り組み” Agency for Natural Resources and Energy, Ministry of Economy, Trade and ­Industry, www.enecho.meti.go.jp/about/special/tokushu/anzenhosho/middleeast. html. 13 “日本の海運 2018–2019 SHIPPING NOW”, JSA Japanese Shipowners’ Association, www.kaijipr.or.jp/shipping_now/pdf/allpage2018.pdf. 14 “我が国及び国際社会の平和及び安全の確保に資するための自衛隊法等の一部を改 正する法律”, Japan Cabinet Secretariat, www.cas.go.jp/jp/gaiyou/jimu/pdf/­ anbun-heiwaanzenhouseiseibihou.pdf. 15 “我が国及び国際社会の平和及び安全の確保に資するための自衛隊法等の一部を改正 する法律”, Japan Cabinet Secretariat.

8 The US and the South China Sea Patrick M. Cronin

Introduction There is a mounting fear that major-power confrontation may play out in Southeast Asia and spill over into war in the South China Sea. Surely, the intensification of China-US competition, in both the military and economic domains, is a source of some concern. However, the prospects for intentional conflict are overstated: China seeks to advance its goals by means short of war, and the US strategy aims to cooperate where it can but compete where it must. The US goal is a more durable peace, not hostility or cold war. This chapter provides an unofficial American view on the Trump administration’s approach to the South China Sea within its larger “Free and Open Indo-Pacific” vision and relations with other major powers, especially China.

Tenets of US strategy in Southeast Asia There are at least four basic elements to a free-and-open regional strategy, especially in Southeast Asia and around the South China Sea: a rules-based order, sustainable economic development, inclusive diplomacy, and security cooperation. This unofficial formulation may differ from some policy pronouncements. But it is entirely consistent with both a bipartisan, longterm approach to the region and the Trump administration’s core national security Documents.1 The rule of law The rule of law: Upholding and peacefully adapting the rule set chosen freely by strong sovereign and independent nations is the foundation for US engagement with the region. The US has enduring interests in the South China Sea: the rule of law, freedom of navigation, and open commons free from unilateral changes to the existing order and resolving disputes peacefully and free from coercion. The US has been and continues to be ready to work with all nations to uphold the rule of law, freedom of the seas,

118  Patrick M. Cronin and access to the global commons. While the US does not seek to impose its ideology on others, Americans will always cherish democracy and human rights and seek to shine a spotlight on the oppressed and provide hope for those who seek justice. Freedom of navigation operations (FONOPs) are a necessary but insufficient means of helping to shore up a rules-based approach against attempts to unilaterally alter international law. Between 2015 and March 2019, the US conducted 15 FONOPs in the South China Sea, and various US officials have made it clear that America will continue to play a leading role on behalf of the international community to maintain freedom of the seas by sailing, flying, and operating anywhere international law permits. Under the Trump administration, US FONOPs are increasing in number and complexity, and allies and partners are being urged to demonstrate their commitment to freedom of navigation and overflight and access to the global commons in the South China Sea.2 Standing up for the rule of law is not risk-free, however, as the USS Decatur was reminded when a Chinese naval vessel dangerously crossed within 45 metres of its bow in a deliberate attempt to disrupt the US FONOP at the end of September 2018.3 Agreeing on rules of the road and confidence-building measures can help minimize these risks, but only to the extent that governments agree to abide by them. Sustainable economic growth For growth to be sustainable it has to be fair and reciprocal, transparent and accountable, and then pursued in a manner that is environmentally sustainable, especially concerning our global maritime commons. The second tenet of regional policy focuses on sustainable economic growth, fair trade, and high-standard development done transparently, in a manner, far from coercive, that should build skills and capacity and not unduly trap a nation in debt. China’s signature Belt and Road Initiative (BRI) promises major financing for big infrastructure projects, but between the lack of transparency and competition and the potential for co-opting elites and saddling countries with massive debt, Beijing is offering only the sunny side of the real story. But this does not mean the US is opposed to Chinese-led development. Indeed, there is nothing wrong with the BRI that transparency and high standards of accountability cannot fix. Similarly, when it comes to the blue economy on which we all depend, countries need to be far more serious about protecting the marine environment. Minding the blue economy entails increasing transparency, building local capabilities and expertise, and cracking down and enforcing the law that currently is failing to stop rampant illegal, unreported, and unregulated (IUU) fishing. The US should and can help elevate IUU fishing, for instance, by supporting calls for an international consensus to add IUU fishing to the United Nations Convention against Transnational Organized Crime.4 Another initiative that deserves US and regional support alike is the public-private

The US and the South China Sea  119 partnership to fight plastic pollution, especially in our ocean—because “by 2050 there could be more plastic than fish in the ocean.”5 There are other worthwhile initiatives, but plastic pollution highlights a growing problem in need of global cooperation. Meanwhile, the US is increasing and should go further to mobilize public and private financial support for infrastructure as outlined in Secretary Pompeo’s July 2018 speech focusing on infrastructure, energy, and the digital economy.6 In October 2018, the Congress passed and the president signed into law the Better Utilization of Investments Leading to Develop­ evelopment ment (BUILD) Act, which establishes a new US International D Finance Corporation which can make available up to $60 ­billion a year in ­private-sector loans and risk insurance.7 Mobilizing public- and private-­ sector support, teaming up to form new investment consortia, and going beyond interstate complementarity to identify a few leading-­edge joint development priorities: These other steps should be part of the US approach to advancing connectivity and development in the region. The aim should be sustainable, fair, and transparent development. That is why there should be a shared concern among all states committed to upholding rules and norms that big powers should not use economic coercion and inducement to compel a smaller power to accept an unfair deal lacking in reciprocity. Southeast Asia has begun to awaken to some of the dangers of Xi Jinping’s charm offensive and promises of BRI infrastructure investment to influence the foreign and security policies of South China Sea littoral states such as the Philippines, Malaysia, Indonesia, and Vietnam.8 Inclusive diplomacy Inclusive diplomacy includes trust-building with competitors and allies alike. The Association of Southeast Asian Nations (ASEAN) centrality deserves broad support for its unique convening authority. Certainly, that is a major reason why the US embraces its US-ASEAN strategic partnership and will work with Vietnam in 2020, to support what ASEAN likes to call diversity through unity. At the same time, ASEAN members are pragmatic and often cooperate on bilateral, trilateral, and even go beyond the region to find effective responses to real challenges. For instance, the US supports ASEAN having a loud unified voice in support of their Indo-­ Pacific engagement, in opposition to militarization in the South China Sea, and favours a strong, binding Code of Conduct. Of shared concern should be the gaps between China’s actions and words. Chinese Foreign Minister Wang Yi defended China’s position in the South China Sea but heralded Beijing’s “utmost constraint.” Apparently, that restraint includes an unprecedented militarization of artificial features in the Spratly Islands that Xi Jinping told President Barack Obama in the White House Rose Garden in 2015 China would not militarize.9 And that “utmost restraint” also incorporates China’s blistering criticisms of others exercising

120  Patrick M. Cronin their right under international law to sail through and fly over waters wherever international law permits.10 ASEAN speaks loudest when it is united and when that unity is based on private interests and not foisted on it by others. In the South China Sea, ASEAN should continue to stand up against militarization and in favour of a fair and robust Code of Conduct (CoC). The latter requires careful diplomatic and security cooperation, to determine how to make careful trade-offs among provisions calling for trust and others for resolving or managing incidents. Indeed, China’s input into the Single Draft South China Sea Code of Conduct Negotiating Text suggested a desire for Beijing to have a de facto veto over the ability Southeast Asian countries to have exercises or enter into joint marine-­economy development agreements with non-Southeast Asian countries.11 At a minimum, littoral Southeast Asian states need to work closely together to ensure their interests are adequately protected. As Carl Thayer has written, The CoC is supposed to set norms to guide how states conduct themselves in the South China Sea pending the resolution of territorial and sovereignty disputes. The Single Draft South China Sea Code of Conduct Negotiating Text provides many proposals on practical maritime cooperation to build trust and confidence. For example, the current draft CoC includes many general proposals such as practical maritime cooperation, self-restraint, notification of joint military exercises, operational procedures, for reporting, managing and resolving incidents, non-militarization, and prohibiting blockades of supply ships, simulated attacks and declaring an Air Defence Identification Zone. But the draft CoC lacks specific detail on how these measures are to be carried out in real life.12 Security cooperation Finally, the US will and should continue to support security cooperation centred on information sharing, capacity building, and interoperability. Cooperation begins with clarity about a predictable US commitment, and whether with regard to treaty allies such as the Philippines or the region in general, the US can improve upon its messaging.13 Information sharing efforts remain uneven and disconnected, both within nations and across Southeast Asia and the Indo-Pacific. Bolstering the ability of nations to see better what is approaching or happening in their maritime front or backyards, so to speak, can create everything from disaster resilience to higher degrees of reassurance. Capacity building, especially around the basic coast guard and other law enforcement agencies, air defence, naval, and air forces, will give nations a better ability to protect their sovereignty and  EEZs. Through bilateral, mini-lateral, and larger multilateral exercises  and training opportunities states will create a readiness for dealing with future contingencies. In Vietnam, for instance, there is ample scope

The US and the South China Sea  121 for greater cooperation for how to conduct disaster response, search and rescue operations, or UN peacekeeping missions. Capacity building and information sharing can go hand in hand. As Vietnam modernizes its air and maritime forces, including the Vietnam Coast Guard and Fishery Surveillance Force, Hanoi should be aided by others as it enhances its command, control, communications, and computers and intelligence, surveillance, and reconnaissance (C4ISR) capabilities. There is great merit in the recommendation of Carl Thayer that Vietnam could benefit by gaining and integrating real-time satellite coverage, unmanned aerial vehicles (UAVs), ship-borne sensors, and coastal radars.14 In seeking a common operating picture across all elements of Vietnam’s government, moreover, Thayer recommends improving communications between defence and law enforcement agencies with its coastal communities, fishing fleeting, fishing militia, and residents on offshore islands and technical support structures in what Hanoi calls its East Sea. As Thayer explains, “Vietnam’s fishing fleet and militia must be linked into this network through GPS and satellite phones.”15 In sum, the US is more than just a strategic partner with ASEAN. The US seeks to work with all nations on an inclusive rules-based order, achieving greater prosperity in a way to reinforce good governance and sustainable growth, preserving inclusive diplomatic engagement and trust-building. As a permanent Pacific power, the US is committed to preserving a rulesbased peace through better situational awareness, especially in the maritime domain. The basic approach to security cooperation is to help others help themselves with their self-defence needs. The US also seeks to promote a greater ability to operate their forces together should the need to rise, including for disaster response and resilience, maritime safety, search and rescue, and even more contested contingencies. But security cooperation is part of a comprehensive diplomatic, economic, and military policy designed to preserve peace and stability. There is no need for competition to become a war, hot or cold. With the firm backing of US power to help ensure major-power stability, Southeast Asia will remain a fertile region for cooperation.

US recalibration, not retrenchment The idea that the Trump administration is abandoning the prevailing liberal world order that it helped to erect after the Second World War remains a lively debate in Washington, D.C. and other intellectual circles.16 However, despite an unapologetically “nationalist” president who thrives on being unpredictable and often disruptive, and who appeals to a political base comprising both pro-defence internationalists and isolationists, the US is not retreating into a fortress America.17 While retrenching from a few specific and mostly multilateral accords, the US remains actively engaged in global affairs and focused on strengthening economic and military foundations of power to remain competitive in a world increasingly

122  Patrick M. Cronin driven by a growing Indo-Pacific region.18 What some view as retrenchment is often a desire to push back on how others have used rules, institutions, and accords selectively for their own national benefit, as with the World Trade Organization, or ignored them altogether as in Russia and the Intermediate Nuclear Forces agreement. The principal objective of making America more competitive vis-à-vis major-powers runs through the primary Documents on national security and defence strategy produced by the Trump administration. For instance, the National Security Strategy emphasizes a competitive world in which big revisionist powers are changing the rule set through incremental, ambiguous, and unilateral actions; this gradual dismantling of the postwar order requires the no longer preponderant US to find new ways to renew America’s diplomatic, economic, and military competitiveness.19 Likewise, it is noteworthy that the subtitle of the National Defense Strategy is “Sharpening the Military’s Competitive Edge”20 (Italics added). Experts can debate whether the US is achieving its aims through its current approach; they question contradictions between Trump’s security and trade policies and underscore the need for better messaging, but the administration’s fundamental policy builds on longstanding interests and strategy.21 Accentuating the high degree of continuity in US regional policy, President Donald Trump told the Asia-Pacific Economic Cooperation CEO (APEC CEO) Summit in Da Nang in November 2017 that the US has been “an active partner in this region since we first won independence ourselves” and “we will be friends, partners, and allies for a long time to come.”22 The National Security Strategy issued in December 2017 emphasized the overriding goal of working with allies and partners to maintain a favourable balance of power, especially in the Indo-Pacific.23 If actions speak louder than words, then the direction of US economic growth and defence spending should lend weight to the argument that Washington is more rather than less interested in Asia these days. The US economy approached its tenth consecutive year of expansion, reaching an annualized rate of 4.2% growth in the second quarter and 3.4% in the third quarter of 2018, with a world-leading nominal Gross Domestic Product surpassing the $20 trillion mark.24 While the economy slowed to 2.2% growth in the final quarter of 2018, the fact that the US economy grew 3.2% in the first quarter of 2019 surpassed most forecasts and augured well for continued economic expansion.25 At the same time, unemployment dipped to 3.6%, the lowest level in half a century,26 and manufacturing capacity has increased for 16 consecutive months.27 A strong US economy is a prerequisite for giving America the confidence to enter into new international trade agreements, and there is no better region in which to look for long-term commercial success than Southeast Asia, where Indonesia alone is projected to become the world’s fourth largest economy by the middle of the century.28 US defences are moving and modernizing. In 2018, Congress suspended, at least for a year or two, the tight budget limits imposed since 2013 by the

The US and the South China Sea  123 Budget Control Act; this allows for greater investment in current military readiness and longer-term research and development.29 The US is spending $674 billion on military operations fiscal year 2019, the most significant single increase in defence spending since 2001.30 Moreover, there is mounting recognition that defence spending needs to be accompanied by funding for diplomacy and development. As mentioned above, Congress passed the bipartisan BUILD Act, which overhauls the way the US finances foreign assistance and creates a US International Development Finance Corporation with $60 billion in financing authority.31 The administration needs to channel much of this financing toward important investments in Southeast Asia and the wider Indo-Pacific region. Meanwhile, Congress appears to have passed another bipartisan bill designed to bolster US engagement in the Asia-Pacific region. The Asia Reassurance I­ nitiative Act (ARIA) authorizes $1.5 billion in new funding over the next five years for regional diplomacy, development, and defence programs.32 Unfortunately, as of March 2019, Congress had not yet appropriated the funding to accompany this important piece of legislation. In short, rumours of America’s disengagement from the world, and especially from the Indo-Asia-Pacific region, miss the mark. The Trump administration is recalibrating, not retreating. The rejuvenation of economic growth and enhanced defence spending, as well as new programs that can boost US regional engagement, all suggest a continuation of the long-term trend toward greater US engagement in the Indo-Pacific region. Undoubtedly, the US can improve upon its messaging, both concerning US reliability and its positive agenda. But as one long-time keen observer from Southeast Asia notes, in a world returning to “a more historically normal situation of a divided” order marked by “heightened long-term” major-power strategic competition, the US is “determined to compete, not withdraw.”33 Having sought to dispel the myth of a US abdicating its role in Asia, this chapter places the South China Sea into the broader context of US regional policy. After all, there are a few notable attacks on US policy that paradoxically claim both that America is in retreat and on the offence, especially when it comes to the South China Sea.34 This essay then addresses specific ways in which Washington can seek to engage Vietnam, Southeast Asia, and all others seeking peace and prosperity to maintain an open, inclusive, rulesbased system.

ASEAN and the Free and Open Indo-Pacific The ASEAN and the South China Sea have been and will remain vital concerns for the US. Indeed, all nations have a stake and role to play in ensuring unrestricted transit through international waters. Moreover, although the Trump administration’s regional policy operates under the banner of a “Free and Open Indo-Pacific,” the shorthand slogan is not intended to diminish the centrality of Southeast Asia or ASEAN. It is worth

124  Patrick M. Cronin noting that the “Free and Open Indo-Pacific” concept was borrowed from Japan, a country that includes a growing and comprehensive rapport with ASEAN and its member states. Furthermore, concrete activities, such as the routinization of US freedom of navigation operations (FONOPs) in the South China Sea, demonstrate enduring US commitment to a rules-based order. As National Security Advisor to the President John Bolton explained FONOPs in the South China Sea on US television: The way to handle China for the United States is the existential security question of the twenty-first century. It’s identified as such in the President National Security Strategy. It’s been a focus of much of the preparation of the budget request that will be announced here shortly. We’re looking at exactly the kind of thing that China is doing in the South China Sea, contrary to every pledge it has made before to engage in peaceful negotiation to resolve territorial claims. It is taking over these rocks and shoals and islands and building military bases on them. It’s completely unacceptable. That’s why we continue to do freedom of navigation exercises and look at other ways to stop this effort, in effect an attempt to create a new Chinese province. People may say but the South China Sea is so far away. It’s twice as big as the Mediterranean Sea, and between 40 and 50 percent of the world’s ship-borne commerce goes through the South China Sea. So, if they change it to Chinese territorial waters it’s a huge shift for Southeast and East Asia.35 To ensure that the region and the South China Sea continue to enjoy uninterrupted freedom and openness, Washington is throwing its weight behind the security of a region while simultaneously seeking to deepen connectivity and advance prosperity. As then Secretary of Defense James Mattis said at the 2018 Shangri-La Dialogue, “Standing shoulder to shoulder with India, ASEAN, and our treaty allies and other partners, America seeks to build an Indo-Pacific where sovereignty and territorial integrity are ­safeguarded—the promise of freedom fulfilled and prosperity prevails for all.”36 Referring to the July 2016 ruling of the Arbitral Tribunal under the Permanent Court of Arbitration in The Hague and international maritime law in general, Secretary Mattis added that “Freedom means freedom for all nations, large and small, to transit international airspace, international waters.” The US defence chief singled out the challenge posed by China’s recent “militarization” of land features in the South China Sea. Because such ­m ilitarization—going against a pledge made to former President B ­ arack Obama in 2015—appeared to be undertaken for “the purposes of intimidation and coercion,” Secretary Mattis predicted that there would be “consequences to China ignoring the international community.”37 Although China has been busy promoting a charm offensive among neighbouring states in the immediate weeks before the 2018 ASEAN and APEC summits, Beijing’s actions over time have been increasingly assertive.

The US and the South China Sea  125 One consequence of aggressive behaviour—such as placing anti-ship cruise and surface-to-air missiles on three artificial outposts in the Spratlys with military-grade runways38 —was that China was disinvited from the 2018 biennial Rim of the Pacific (RIMPAC) naval exercise hosted by the US ­Indo-Pacific Command (USINDOPACOM). In light of China’s militarization of the South China Sea, allowing the PLA Navy to participate in an event designed to show peaceful cooperation would have sent a signal of weakness to Beijing and the region. Against the backdrop of intensifying competition, perhaps especially over trade, China has taken several military actions to signal displeasure with the US, from denying a US ship port visit to Hong Kong and cancelling a high-level navy dialogue both in September 2018, to aggressively shouldering a US destroyer conducting a lawful passage in the South China Sea.39 More recently, Xi Jinping called for Chinese military forces assigned to the Southern Theatre Command overseeing the South China Sea to “prepare for war.”40 The US believes the US and China are too big and share too many interests to let competition descend into hostilities. But the Trump administration is determined to stand up to revisionism and not acquiesce to Chinese attempts at coercive change to the existing rule set. It is essential to draw a bright line under what constitutes unacceptable behaviour. Reaffirming rules and norms helps to strengthen a rules-based system. For instance, the US carried on with high-level military-to-military exchanges with China despite rescinding the invitation to participate in RIMPAC 2018. Two major events in September 2018 alone included the Chiefs of Defense (CHODs) Conference at USINDOPACOM and the International Seapower Symposium (ISS) at the US Naval War College. Although the Chinese cancelled an additional bilateral discussion between navy chiefs that was meant to follow the seapower symposium, this author can personally attest to a high degree of frank and useful exchange in both the CHODs Conference in Honolulu, Hawaii, and the ISS in Newport, Rhode Island.41 In stressing America’s enduring allegiance to the US-ASEAN Strategic Partnership, Deputy Secretary of State John Sullivan emphasized the shared commitment to the rule of law, freedom of navigation, and the peaceful resolution of disputes. After co-chairing a US-ASEAN ministerial meeting on the margins of the United Nations General Assembly in New York in late September 2018, Sullivan said, “[T]here is consensus, a commitment by ASEAN and the United States to the rule of law and not unilateral actions by one country to develop features in the South China Sea and, even worse, to militarise them.”42 One expression of America’s commitment to support ASEAN centrality and advance maritime cooperation is the agreement to conduct an inaugural USASEAN naval exercise and training drill in 2019.43 Although broadening the geographical scope of US regional policy from the Asia-Pacific to the Indo-Pacific, the Trump administration adopted a term that recognizes the ever-growing web of linkages between the Indian and Pacific Ocean regions. A 2018 cartogram depicting the size of states

126  Patrick M. Cronin proportionate to their population provides one more reason to elevate the significance of an Indo-Pacific region.44 More to the point, as power continues to shift from the Atlantic to Pacific and Indian oceans gradually, the Indian Ocean is poised to surpass the Pacific as the nexus of most global trade, which brings together Europe, Africa, the Middle East, and Asia. “In a world in which Asia plays an increasingly important economic and political role,” writes Jonathan Ward, “the Indian Ocean provides the foundation for the trading systems that underpin Asia’s economic rise.”45 Nonetheless, these trends remain likely to prove more important in the coming decades; for now, the US remains far more heavily focused and invested in East Asia and the Pacific—on the latter half of the “Indo-Pacific.”

Major-power relations As stated in US administration strategy Documents, America strives—and should undoubtedly attempt with greater consistency—to work closely with other major powers when their interests and values intersect. The US retains robust relations with Europe and is expanding regional cooperation with India and Japan. The US administration also wants fair, open, cooperative but also competitive ties with China and Russia. The Trump administration would like to turn some of that competition toward greater cooperation, but it acknowledges heightened competition with Russia and especially China. From the American vantage point, the competition is a necessary if delayed backlash to creeping assertions of sovereignty, enacted in some cases in the form of hybrid warfare and grey-zone operations.46 Notwithstanding at times intense competition, the Trump administration rejects the idea of a Thucydides’ trap and the notion of inevitable conflict between a rising and a status quo power. Instead, US officials including President Trump believe that leaders have agency and that it is up to them to determine the future course of relations. That is, just because China’s rapid economic growth has created a structural competition that threatens existing powers, it does not follow that leaders will embark on a war in a nuclear era to address that challenge. Competition, in other words, does not and should not mean hostility. Indeed, Washington seeks to develop areas of cooperation with China and Russia, especially when it comes to complex global issues such as transnational terrorism, piracy and illicit trafficking, and humanitarian assistance and natural disaster. Of course, Washington could do more, especially regarding climate change and resilience to climate change, the preservation of the oceans and our maritime commons, and the global environment broadly speaking. But cooperation is likely to receive less attention than the thornier issues of competition. China and America have become each other’s “pacing” threat, the standard against which each country measures its defence, economic, and diplomatic power. But it should go without saying that US policy is not aimed at the containment of China or crafted to restrain the peaceful rise

The US and the South China Sea  127 of China. Americans reject the shibboleth that it seeks to contain China’s peaceful rise. Instead, US policy is designed to provide effective responses to assertive policies that seek unilateral changes to the status quo or exploit international rules or market democracies. Even the hard-hitting speech by Vice President Mike Pence in 2018 at the Hudson Institute concluded with a tough-love message: “Today, America is reaching out our hand to China. And we hope that soon, Beijing will reach back with deeds, not words, and with renewed respect for America.”47 The US wants a constructive relationship with China, perhaps not unlike the one outlined by America’s foremost ally in Asia, Japan.48 Even so, China is the foremost potential challenge to a favourable balance of power, existing rules, and smaller regional states that could be subject to coercion and force, on the one hand, or imprudent inducements, on the other hand. This relationship is not the rosy strategic convergence that the architects of Sino-American relations once envisioned.49 Perceptions matter, and if the US sees China trying to displace it in Asia, China believes America is seeking containment. But the competition with China is also bounded: While the two nuclear powers have no interest in starting a war, the US has belatedly awakened to how Beijing is waging a competition with all instruments of power.50 Congress, like the American body politic, has recently awakened to the multifaceted challenge posed by China. Take the National Defense Authorization Act (NDAA) for fiscal year 2019, signed in August 2018.51 China runs through that legislation like a bright red thread weaving its way into every component of national security. The NDAA is a barometer of the mood in Congress and reflects the striking—and growing—bipartisan consensus that China is the chief long-term threat to the US. This mirrors the Trump administration’s National Security Strategy, which as suggested above prioritizes the return of major-power competition over all other risks. But recognition of the burgeoning competition is not being matched by action. Instead, China is swiftly closing the gap, outmanoeuvring the US in almost every aspect of the emerging great power rivalry.52 China is building ­multibillion-dollar commercial networks across Eurasia and the Indo-­ Pacific region while securing potential military bases and seeking grander political influence further and further from East Asia. At home, the Chinese Communist Party has stimulated economic growth, with its eyes on primacy in tomorrow’s cutting-edge technologies.53 As Vice President Pence observed in his Hudson Institute speech, Now, through the “Made in China 2025” plan, the Communist Party has set its sights on controlling 90 percent of the world’s most advanced industries, including robotics, biotechnology, and artificial intelligence. To win the commanding heights of the 21st century economy, Beijing has directed its bureaucrats and businesses to obtain American intellectual property – the foundation of our economic leadership – by any means necessary.54

128  Patrick M. Cronin Admittedly, as an autocratic state, China has a huge advantage in implementing a top-down grand strategy. Xi Jinping rules by decree, with his statements becoming policy almost overnight. Xi’s consolidation of power only augments this ability.55 Conversely, the glory of democracy is that it incorporates a high degree of inefficiency to give political voice to many and ensure checks on absolute power. Congress and the Trump administration share many concerns about the China challenge, and there is ample evidence of a tightening alignment between senators and representatives deliberating in the Capitol and Trump administration officials toiling away across screens and around conference tables. While Democrats may not agree with some of the administration’s tactics—most notably, tariffs, there is a broadly shared concern about ensuring that China has to “compete, not cheat” on international rules.56 It took nearly a decade for both Congress and the executive branch to wake up to China’s proactive challenge. For example, the warning lights started to brighten in 2011 when then-Secretary of Defense Robert Gates travelled to Beijing to shore up bilateral relations. China welcomed the secretary, but at the same time sent a signal with the test flight of a new stealth fighter jet that bore an uncanny resemblance to America’s F-22 fighter.57 This pattern repeated in 2014 when China unveiled its J-31 aircraft, which appears modelled after stolen F-35 designs.58 Meanwhile, China was becoming unmistakably aggressive in maritime Asia. China’s assertiveness went from declaratory and demonstrative to openly coercive, especially since 2007, and even more markedly from 2012 to the present. It was in 2012 that China shoved the Philippines out of Scarborough Reef in the South China Sea and 2013 when it declared an air defence identification zone (ADIZ) over the East China Sea, offending not only ­Japan but also South Korea. China’s activism in the South and East China Seas continues to this day as Beijing pursues territorial claims based on its narrative of historical rights and the unilateral imposition of its domestic law over disputed maritime areas.59 The improving acuity with which Congress and the Obama administration espied the China challenge produced some early dividends based on cooperation with other countries in the region, most notably on a maritime security initiative announced in 2016 to bolster the self-defence capabilities of South China Sea littoral countries.60 Although the Trump administration has mostly avoided calling it the “Maritime Security Initiative,” the effort has continued from the Obama into the Trump administration, and it remains one of the major new sources of funding for working with South China Sea littoral states.61 Nonetheless, both the executive and legislative branches have been better at piecemeal actions than grand strategy. The 2019 US defence authorization bill sounds the alarm on China’s state-driven strategy to dominate emerging technologies, garner economic and political influence, and weaken and replace US-led alliances and institutions.62 However, not even the fledgling consensus around an intensified rivalry

The US and the South China Sea  129 with China is wholly locked in, much less institutionalized and adequately funded.63 A bipartisan coalition will be required for crafting effective policy, even more so after the 2018 midterm election created a divided Congress with Democrats now controlling the House of Representatives. If Congress and the Trump administration can seize the moment, a genuine strategy for dealing with the long-term challenge and opportunity of China can take root and flourish. The John S. McCain National Defense Authorization Act for Fiscal Year 2019, as the NDAA is officially called, is a good start. Congress and the executive branch should further honour him by following through on its promise to forge a clear-eyed and well-resourced strategy, not just for defence but across the whole of government. That strategy should place an even higher priority on Southeast Asia and the South China Sea.

Conclusion The US and China have already moved from an ineffective bilateral Military Maritime Consultative Agreement to more elaborate understandings enshrined in the 2014 US-China Memorandum of Understanding (MoU) on the Rules of Behaviour for the Safety of Air and Maritime ­Encounters. Both parties are also voluntary adherents to the Code for Unplanned Encounters at Sea (CUES), which among other things enables responses to maritime incidents, something addressed during the August 2018 ASEAN-China table-top Maritime Exercise. Of course, as with other confidence-building measures, CUES is voluntary, and is exclusive to military vice Coast Guard vessels, and can be subverted by effectively providing legitimacy to a power that otherwise resorts to what has been called grey-zone tactics. Even so, perhaps a regular, more direct approach mirroring the 1972 Incidents at Sea agreement that did not prevent all US-Soviet mishaps could still create another mechanism for trust-building and assistance with both averting an unintended crisis and preventing escalation should a dangerous encounter take place. The US supports the countries of the region working with other nations, especially when they help uphold a rules-based system and enhance the capacity of ASEAN members. The Fulbright University, Vietnam’s first independent, non-profit university that grew out of a modest economic teaching program backed by the US State Department in the 1990s, is an exemplary program, and the US should find ways to build upon its success in Vietnam but also elsewhere in the region.64 When Vietnam recently encouraged Japan to play a constructive role in the South China Sea, this was an example of a claimant state encouraging major maritime powers to help reinforce and deserves freedom of navigation and freedom of the seas. Indeed, Vietnam has been taking a leading role in working with all nations. In September 2018, Vietnam hosted naval visits to its ports from South Korea, Canada, the United Kingdom, Japan, India, and New Zealand, and a Vietnamese frigate visited Japan before participating in an international fleet

130  Patrick M. Cronin review and the China-ASEAN maritime exercise. This type of inclusive security cooperation can build both capacity and trust. But cooperation must coexist with competition. As this author wrote together with former colleagues in a report calling for refreshing US relations with all of Southeast Asia: As the competition between the United States and China to shape the course of the 21st century intensifies, Southeast Asia has become a contested space. A region where geopolitical orientations remain fluid, Southeast Asia lies at the front line of Beijing’s expanding diplomatic influence, economic leverage, and military capability. At stake is whether countries across the region can retain their economic sovereignty and freedom of decision and whether governance in the region will broadly trend toward greater freedom and openness, or the opposite.65 This may not be the message Southeast Asians want addressed in public, but from the US perspective it is necessary to confront reality without succumbing to the notion that competition should lead to conflict.

Notes 1 See Caitlin Dornbos, “U.S. to Unveil New Indo-Pacific Strategy This Month in Singapore, Report Says,” Stars and Stripes, May 1, 2019, www.stripes.com/news/ pacific/us-to-unveil-new-indo-pacific-strategy-this-month-in-singapore-reportsays-1.579171. 2 See “Statement by Randall G. Schriver, Assistant Secretary of Defense for ­Indo-Pacific Security Affairs, Office of the Secretary of Defense,” Before the 116th Congress Committee on Armed Services, US House of Representatives, March 27, 2019, https://armedservices.house.gov/_cache/files/e/f/effc8d86-161149c7-9bea-53c7a19b75fe/F92E6F87912814548BF502659CD16299.asd-schriver--opening-statement---03-25-2019---final.pdf. 3 Captain, “Photos Show Confrontation between USS Decatur and a Chinese Navy Warship in South China Sea,” Captain, October 2, 2018, https://­gcaptain. com/photos-show-confrontation-between-uss-decatur-and-chinese-navy-­ warship-in-disputed-south-china-sea/. 4 See the recommendation in Patrick M. Cronin, Abigail Grace, Daniel Kliman, and Kristine Lee, Contested Spaces: A Renewed Approach to Southeast Asia, Washington, DC: Center for a New American Security, March 2019, p. 17. 5 Part of the pitch made by the campaign for a global commitment to a “New ­Plastics Economy,” www.ellenmacarthurfoundation.org/assets/downloads/Ellen MacArthurFoundation_TheNewPlasticsEconomy_Pages.pdf. On related international action, see Faye Leone, “UN Environment Announces Global Plastics Platform, Highlights Countries’ Commitments,” SDG Knowledge Hub, October 2, 2018, http://sdg.iisd.org/news/un-environment-announces-globalplastics-platform-highlights-countries-commitments/. 6 Secretary Pompeo Remarks on ‘America’s Indo-Pacific Economic Vision,” Indo-Pacific Forum, US Chamber of Commerce, Washington, D.C., July 30, 2018, https://kr.usembassy.gov/073018-secretary-pompeo-remarks-on-americasindo-pacific-economic-vision/.

The US and the South China Sea  131 7 Daniel F. Runde and Rumina Bandura, “The BUILD Act Has Passed: What’s Next?,” CSIS, October 12, 2018, www.csis.org/analysis/build-act-has-passedwhats-next. 8 Shibani Mahtani and Gerry Shih, “Xi Launches Philippines Charm Offensive as China Looks to Dislodge U.S. Influence,” The Washington Post, November 20, 2018, www.washingtonpost.com/world/asia_pacific/xi-launches-philippinecharm-offensive-as-china-looks-to-dislodge-us-influence/2018/11/20/40413c10ec92-11e8-96d4-0d23f2aaad09_story.html?utm_term=.6620f29d1cda. Also see Karlis Saina and Arys Aditya, “Indonesia May be Next Asian Country to Spurn China in Election,” Bloomberg, March 31, 2019, https://ca.finance.yahoo.com/ news/indonesia-may-next-asian-country-022951361.html. 9 While Xi Jinping defended China’s right to island-building, he told President Obama “China does not intend to pursue militarization” of the man-made outposts in the Spratly Islands. See Julie Hirschfeld David and David E. Sanger, “Obama and Xi Jinping of China Agree to Steps on Cybertheft,” The New York Times, September 25, 2015, www.nytimes.com/2015/09/26/world/asia/xi-jinpingwhite-house.html. 10 David Brunnstrom and Rodrigo Campos, “China Says ‘No Cause for Panic’ Over US Ties, But Won’t Be Blackmailed,” Reuters, September 28, 2018, www. reuters.com/article/us-china-usa/china-says-no-cause-for-panic-over-u-s-tiesbut-wont-be-blackmailed-idUSKCN1M82LW. 11 Carl Thayer, “A Closer Look at the ASEAN-China Single Draft South China Sea Code of Conduct,” The Diplomat, August 3, 2018, https://thediplomat. com/2018/08/a-closer-look-at-the-asean-china-single-draft-south-china-seacode-of-conduct/. 12 Carlyle A. Thayer, “Vietnam’s New Maritime Strategy to 2030: Ends, Ways and Means,” Thayer Consultancy Background Brief, October 2, 2018, www.scribd. com/document/389998982/Thayer-Vietnam-s-New-Maritime-Strategy-EndsWays-and-Means. 13 On the US-Philippine alliance see Patrick Cronin and Richard Heydarian, “Time for a 21st Century PH-US Alliance,” Inquirer.net, October 27, 2018, https://­o pinion.inquirer.net/117027/time-for-a-21st-century-ph-us-alliance# ixzz5V5cM2zFt. 14 Carlyle A. Thayer, “Vietnam’s New Maritime Strategy to 2030: Ends, Ways and Means,” Thayer Consultancy Background Brief, October 2, 2018. 15 Ibid. 16 Among the more serious and sustained critiques of the Trump administration foreign policy, see Robert Kagan, The Jungle Grows Back: America and Our ­Imperiled World (New York: Knopf Doubleday, 2018); Hal Brands, American Grand Strategy in the Age of Trump (Washington, DC: Brookings Institution, 2018); and Ivo H. Daalder and James M. Lindsay, The Empty Throne: America’s Abdication of Global Leadership (New York: Public Affairs, 2018). 17 Indeed, President Trump describes himself as a “nationalist,” a noncontroversial issue in most of the world but more subject to multiple interpretations in the context of American politics. See Ron Elving, “What Is a Nationalist in the Age of Trump?” National Public Radio, October 24, 2018, www.npr. org/2018/10/24/660042653/what-is-a-nationalist-in-the-age-of-trump. As for the two major camps within the Trump political base, I am indebted to Walter Russell Mead for making this observation: see, Walter Russell Mead, “NATO Is Dying, But Don’t Blame Trump,” The Wall Street Journal, March 25, 2019, www.wsj.com/articles/nato-is-dying-but-dont-blame-trump-11553555665?mod= searchresults&page=1&pos=1. 18 The Trump administration has withdrawn from the Paris Agreement within the UN Framework Convention on Climate Change, the Joint Comprehensive

132  Patrick M. Cronin Plan of Action (JCPOA) regarding Iran’s nuclear program, and the Trans-­Pacific Partnership (TPP), all large multilateral frameworks that President Trump deemed disadvantaging US national interests. But US industry and state and local governments continue to promote reduced emissions that partly offset the current policy of the US federal government; the White House argues that it is working outside JCPOA in order to achieve more far-reaching constraints on Iran’s nuclear program and behavior; and the US has renegotiated the trilateral North American Free Trade Agreement (now the US–Mexico–Canada Agreement) and while pursuing bilateral FTAs for the moment may yet return to a modified version of the TPP (now the Comprehensive and Progressive Agreement for Trans-Pacific Partnership). One of the rare bilateral treaty “retreats” centres on the threat to withdraw from the Intermediate Nuclear Forces (INF) Treaty with Russia after several years of objecting to Russia’s lack of compliance; but if Washington follows through with that threat, it will be based on premise that only the US was adhering to it in the first place. In addition, the fact that the treaty does not place any restrictions on China’s growing military capabilities highlights another limitation of this 1987 agreement. On INF see Eli Lake, “Trump Is Right to Withdraw from that Nuclear Treaty,” Bloomberg, October 23, 2018, www.bloomberg.com/opinion/articles/2018-10-22/ russian-nuclear-deal-trump-right-to-withdraw-from-inf-treaty. 19 The strategy posits a new more wary type of engagement with Russia and China, but it continues to value alliances and partners in order to preserve a rules-based system. As President Donald says in the preamble to the strategy, we will promote a balance of power that favors the US, our allies, and our partners. We will never lose sight of our values and their capacity to inspire, uplift, and renew.” The National Security Strategy of the United States of America (Washington, DC: The White House, December 2017), 45 and passim, www.whitehouse.gov/wp-content/uploads/2017/12/NSS-Final-12-18-20170905.pdf, ii. 20 Summary of the 2018 National Defense Strategy of the United States: Sharpening the Military’s Competitive Edge (Washington, DC: Department of Defense, January 2018), https://dod.defence.gov/Portals/1/Documents/pubs/ 2018-National-­Defense-Strategy-Summary.pdf. 21 For instance, my colleague Robert Kaplan argues the administration unnecessarily undercuts its South China Sea policy by stressing military operations while calling into question American reliability regarding free trade and alliance commitments. See Robert D. Kaplan, “How President Trump Is Helping China Win in the South China Sea,” The Washington Post, October 9, 2018, www.­ washingtonpost.com/news/global-opinions/wp/2018/10/09/how-presidenttrump-is-helping-beijing-win-in-the-south-china-sea/?utm_term=.9a44d ddd1492. 22 “Remarks by President Trump at APEC CEO Summit, Da Nang, ­Vietnam,” November 10, 2017, www.whitehouse.gov/briefings-statements/remarks-presidenttrump-apec-ceo-summit-da-nang-vietnam/. 23 See The National Security Strategy of the United States of America (Washington, DC: The White House, December 2017), 45 and passim, www.whitehouse.gov/ wp-content/uploads/2017/12/NSS-Final-12-18-2017-0905.pdf. 24 Sarah Chaney and Eric Morath, “U.S. GDP Growth Unrevised at 4.2% in Second Quarter,” The Wall Street Journal, September 27, 2018, www.wsj.com/­ articles/u-s-gdp-growth-unrevised-at-4-2-in-second-quarter-1538051831?mod= searchresults&page=1&pos=10; and Akin Oyedele, “The U.S. Economy Grows 4.1%, the Fastest Pace Since 2014,” Business Insider, July 27, 2018, www.­ businessinsider.com/us-gdp-q2-2018-advance-first-estimate-2018-7. And Harriet Torry, “U.S. Economy Grew at 3.5% Rate in Third Quarter,” The Wall Street

The US and the South China Sea  133 Journal, October 26, 2018, www.wsj.com/articles/u-s-economy-grew-at-3-5-ratein-third-quarter-1540557378. The 3.4% number represented the revised quarterly growth figure. 25 Harriet Torry, “U.S. Economy Grew at 3.2% Rate in First Quarter,” Wall Street Journal, April 26, 2019, www.wsj.com/articles/u-s-economy-grew-at-3-2-rate-infirst-quarter-11556281892. 26 Nelson D. Schwartz, “Job Growth Underscores Economy’s Vigor; Unemployment at Half-Century Low,” The New York Times, May 3, 2019, www.nytimes. com/2019/05/03/business/economy/jobs-report-april.html. 27 Eric Morath and Harriet Torry, “U.S. Unemployment Rate Falls to Lowest Level Since 1969,” The Wall Street Journal, October 5, 2018, www.wsj.com/articles/us-unemployment-rate-falls-to-lowest-level-since-1969-1538742766?mod=search results&page=1&pos=5; and Sarah Chaney, “U.S. Manufacturing Capacity Increases for 16th Month in a Row,” The Wall Street Journal, October 16, 2018, www. wsj.com/articles/industrial-production-increased-0-3-in-­september-1539696070. 28 Vikas Shukla, “Top 10 Largest Economies by 2050: Emerging Nations to Dominate,” Value Walk, January 3, 2019, www.valuewalk.com/2019/01/top-10largest-economies-2050-china/. 29 Sharon Parrott, Richard Kogan and Roderick Taylor, “New Budget Deal Needed to Avert Cuts, Invest in National Priorities,” Center on Budget and Policy Priorities, March 1, 2019, www.cbpp.org/research/federal-budget/newbudget-deal-needed-to-avert-cuts-invest-in-national-priorities. 30 Ben Werner, “Pentagon to Start FY 2019 with Defense Spending Bill Signed into Law,” USNI News, September 28, 2018, https://news.usni.org/2018/09/28/36944. 31 Patricia Zengerle, “Congress, Eyeing China, Overhauls Development Finance,” Reuters, October 4, 2018, www.reuters.com/article/us-usa-congress-­development/ congress-eying-china-votes-to-overhaul-development-finance-idUSKCN 1MD2HJ. 32 See Rachel Oswald, “Senate Eyes Passage of Bill to Check China in Asia-­Pacific,” CQ-Roll Call, October 2, 2018, www.chicagotribune.com/sns-tns-bc-senate-­ uschina-20181002-story.html, and Ankit Panda, “Trump Signs Asia Reassurance Initiative Act into Law,” The Diplomat, January 3, 2019, https://thediplomat. com/2019/01/trump-signs-asia-reassurance-initiative-act-into-law/. 33 Bilahari Kausikan, “Strategic Outlook for ASEAN,” Address to 7th ERIA Editor’s Roundtable, October 7, 2018, www.eria.org/uploads/media/News-andViews/Mr-Bilahari-Kausikan_Keynote-Speech_ERT2018.pdf. 34 For instance, consider the self-serving observations of one former Chinese official, Chi Wang, “With America in Retreat and China on the Rise, Is a Cold War on the Way?” South China Morning Post, May 20, 2018, www.scmp.com/comment/ insight-opinion/article/2146802/america-retreat-and-china-rise-cold-war-way. 35 Fox TV News Interview by Maria Bartiromo with John Bolton, March 10, 2019. 36 “Remarks by Secretary Mattis at Plenary Session of the 2018 Shangri-La Dialogue, June 2, 2018, https://dod.defence.gov/News/Transcripts/Transcript-View/ Article/1538599/remarks-by-seceretary-mattis-at-plenary-session-of-the-2018shangri-la-dialogue/. 37 Ibid. 38 David Brunnstrom, “China Installs Cruise Missiles on South China Sea Outposts: CNBC,” Reuters, May 2, 2018, www.reuters.com/article/us-southchinasea-­ china-missiles/china-installs-cruise-missiles-on-south-china-sea-outpostscnbc-idUSKBN1I336G. 39 For the Hong Kong port-of-call denial, see, “China Denies Hong Kong Port Visit for US Navy Ship Amid Trade Tensions,” Reuters, September 25, 2018, www. reuters.com/article/us-china-usa-defence/china-denies-hong-kong-port-visitfor-u-s-navy-ship-amid-trade-tensions-idUSKCN1M513B. For the withdrawal

134  Patrick M. Cronin from high-level Navy talks, see: Jane Perlez, “China Cancels High-Level Security Talks with the US,” The New York Times, September 30, 2018, www.nytimes.com/2018/09/30/world/asia/china-us-security-mattis.html. Regarding the crossing of the bow of USS Decatur, a US Navy guided missile destroyer, by a Chinese combatant, see Steven Lee Myers, “American and Chinese Warships Narrowly Avoid High-Seas Collision,” The New York Times, October 2, 2018, www.nytimes.com/2018/10/02/world/asia/china-us-warships-south-chinasea.html. 40 “‘Prepare for War’, Xi Jinping Tells Military Region that Monitors South China Sea, Taiwan,” South China Morning Post, October 27, 2018, www.scmp. com/news/china/military/article/2170452/prepare-war-xi-jinping-tells-militaryregion-monitors-south?utm_medium=email&utm_source=mailchimp&utm_ c a m p a ig n= e n l z - s c m p _ t o d ay& ut m _ c o nt e nt=2 0181027&MC U I D = d c 75 c f 8232 &MCC a mp a ig n ID=b554b112f 8&MCAc c ou ntID=3775521f5f 542047246d9c827&tc=1. 41 The author was a civilian facilitator for the Chiefs of Defense Conference at Waikiki in Oahu, Hawaii on 10–12 September and a speaker at the 23rd annual International Seapower Symposium in Newport, Rhode Island on 19–21 September. A follow-on navy dialogue was slated to be held in Washington, DC on 22 September but the Chinese recalled their navy chief at the last moment, apparently to signal dissatisfaction with bilateral relations. See Nancy A. Youssef and Gordon Lubold, “China Denies U.S. Navy Ship’s Request for Hong Kong Visit,” The Wall Street Journal, September 25, 2018, www.wsj.com/­ articles/china-denies-u-s-navy-ships-request-for-hong-kong-visit-1537854 797?mod=searchresults&page=1&pos=8. 42 Nirmal Ghosh, “U.S. Fully Committed to ASEAN Partnership, Says Senior Official,” The Straits Times, September 29, 2018, www.straitstimes.com/world/ united-states/us-fully-committed-to-asean-partnership-says-senior-official. 43 Mayuko Tani, “ASEAN to Start Naval Exercise with US in 2019,” Nikkei Asian Review, October 19, 2018, https://asia.nikkei.com/Politics/International-Relations/ ASEAN-to-start-naval-exercise-with-US-in-2019. 4 4 Max Roser, “The Map We Need If We Want to Think about How Global Living Conditions are Changing,” Our World in Data Blog, September 12, 2018, https://ourworldindata.org/world-population-cartogram. 45 Jonathan D. T. Ward, “The Emerging Geopolitics of the Indian Ocean Region,” Asia Pacific Bulletin, East-West Center, No. 386, June 28, 2017. 46 As a 2019 Department of Defense report on Chinese military activities states: China seeks to secure its objectives without jeopardizing the regional stability that remains critical to the economic development that has helped the CCP maintain its monopoly on power. However, China’s leaders employ tactics short of armed conflict to pursue China’s strategic objectives through activities calculated to fall below the threshold of provoking armed conflict with the United States, its allies and partners, or others in the Indo-Pacific region. These tactics are particularly evident in China’s pursuit of its territorial and maritime claims in the South and East China Seas as well as along its borders with India and Bhutan. In 2018, China continued militarization in the South China Sea by placing anti-ship cruise missiles and long- range surface-to-air missiles on outposts in the Spratly Islands, violating a 2015 pledge by Chinese President Xi Jinping that “China does not intend to pursue militarization” of the Spratly Islands. China is also willing to employ coercive measures—both military and non- military—to advance its interests and mitigate opposition from other countries.

The US and the South China Sea  135 Annual Report to Congress: Military and Security Developments Involving the People’s Republic of China 2019 (Washington, DC: Department of Defense, May 2019), ii, https://media.defence.gov/2019/May/02/2002127082/-1/-1/1/2019_ CHINA_MILITARY_POWER_REPORT.pdf. 47 “Remarks by Vice President Pence on Administration’s Policy toward China,” The Hudson Institute, October 4, 2018, www.whitehouse.gov/briefings-statements/ remarks-vice-president-pence-administrations-policy-toward-china/. 48 “Abe and Xi Agree to Promote Economic Cooperation Amid U.S. Trade War Fears,” The Japan Times, October 26, 2018, www.japantimes.co.jp/news/ 2018/10/26/national/politics-diplomacy/shinzo-abe-li-keqiang-agree-­promoteeconomic-cooperation-amid-u-s-china-trade-war/#.W9VGJ6eB1QI. Despite the headline on this story, Prime Minister pressed Xi Jinping for free and fair trade and ways to turn competition into cooperation. 49 Bates Gill, “China Becoming a Responsible Stakeholder,” Carnegie Endowment for International Peace, June 11, 2007, http://carnegieendowment.org/files/ Bates_paper.pdf. 50 See, for instance, Secretary of State Mike Pompeo’s interview with journalist Hugh Hewitt: No, Hugh, the truth of the matter is this has been consistent with the strategy that we’ve had since the beginning of this administration to recognize the competitive nature of the relationship between our two countries, and as China has taken actions that have provided risk to the American people, whether that’s a risk through the stealing of intellectual property, or trade rules that are unfair, or activity in the South China Sea, or their continued expansion in space and their efforts to develop their military. Each of those actions has been met with a strong and vigorous response from the United States of America, and will continue to do so. And there wasn’t a moment, but rather an administration that has recognized the difference in China’s behavior and the requirement for an American response to that changed behavior. “Secretary of State Mike Pompeo,” Hugh Hewitt Show, October 26, 2018, www.hughhewitt.com/secretary-of-state-mike-pompeo/. 51 H.R. 5515 John S. McCain National Defense Authorization Act for Fiscal Year 2019, August 13, 2018, www.congress.gov/bill/115th-congress/house-bill/5515/text. 52 Edouard Morton, “The Trump Effect: China to Eclipse U.S. Power in Asia by 2030, Says Lowy,” South China Morning Post, May 8, 2018, www.scmp.com/ week-asia/geopolitics/article/2145105/trump-effect-china-eclipse-us-powerasia-2030-says-lowy. 53 Keith Bradsher, “China’s Strong Economic Growth Figures Belie Signs of Weakness,” The New York Times, July 15, 2018, www.nytimes.com/2018/07/15/ business/china-economy-gdp.html; and Jessica Myers, “How ‘Made in China 2025’ Became the Real Threat in a Trade War,” Los Angeles Times, April 24, 2018, www.latimes.com/world/asia/la-fg-china-2025-20180424-story.html. 54 “Remarks by Vice President Pence on Administration’s Policy Toward China,” The Hudson Institute, October 4, 2018, www.whitehouse.gov/briefingsstatements/remarks-vice-president-pence-administrations-policy-towardchina/. 55 “China’s Leader, Xi Jinping, Will Be Allowed to Rule Forever,” The Economist, February 26, 2018, www.economist.com/china/2018/02/26/chinas-leader-xi-jinpingwill-be-allowed-to-reign-forever. 56 For an articulate Democratic perspective expressing concern over China, see Representative Joaquin Castro, Remarks at the Asia Society, October 5, 2018, https://www.youtube.com/watch?v=W2cOU8uJpPE.

136  Patrick M. Cronin 57 Elisabeth Bumiller and Michael Wines, “Test of Stealth Fighter Clouds Gates Visit to China,” The New York Times, January 11, 2011, www.nytimes. com/2011/01/12/world/asia/12fighter.html; and Brad Howard, “Here’s a Tasty Glimpse of China’s Secretive J-20 Stealth Fighter,” Task & Purpose, August 1, 2018, https://taskandpurpose.com/china-j-20-stealth-fighter-photos/. 58 “China’s Cyber-Theft Jet Fighter,” The Wall Street Journal, November 12, 2014, www.wsj.com/articles/chinas-cyber-theft-jet-fighter-1415838777. 59 Patrick M. Cronin, Ely Ratner, Elbridge Colby, Zachary Hosford, and Alexander Sullivan, Tailored Coercion: Competition and Risk in Maritime Asia (Washington, DC: CNAS, March 2014), https://s3.amazonaws.com/files.cnas. org/Documents/CNAS_TailoredCoercion_report.pdf?mtime=20160906082032; Patrick Cronin, Daniel Kliman and Harry Krejsa, No Safe Harbor: Countering Aggression in the East China Sea (Washington, DC: CNAS, March 2018), https://s3.amazonaws.com/files.cnas.org/Documents/CNASReport-NoSafe Harbor-Final.pdf?mtime=20180314121037; and Patrick M. Cronin and Melodie Ha, “Toward a New Maritime Strategy in the South China Sea,” The Diplomat, June 22, 2018, https://thediplomat.com/2018/06/toward-a-new-maritimestrategy-in-the-south-china-sea/. 60 Prasanth Parameswaran, “US Kicks Off New Maritime Security Initiative for Southeast Asia,” The Diplomat, April 10, 2016, https://thediplomat.com/ 2016/04/us-kicks-off-new-maritime-security-initiative-for-southeast-asia/. 61 Prasanth Parameswaran, “New Indonesia Drones Spotlight US-ASEAN Maritime Security Initiative,” The Diplomat, February 24, 2018, https://thediplo mat.com/2018/02/new-indonesia-drones-spotlight-us-asean-maritime-securityinitiative/. 62 Joel Gehrke, “Rubio Warns China Close to ‘Destroying Our Alliances’ in ­Pacific,” The Washington Examiner, August 29, 2018, www.washingtonexaminer. com/policy/defence-national-security/rubio-warns-china-close-to-destroyingour-alliances-in-pacific. 63 Peter Mattis, “From Engagement to Rivalry: Tools to Compete with China,” Texas National Security Review, Vol. 1, Issue 4, August 2018, https://tnsr.org/ 2018/08/from-engagement-to-rivalry-tools-to-compete-with-china/. 64 For more on the history of the Fulbright University, see its webpage: https:// fulbright.edu.vn. 65 See Patrick M. Cronin, Abigail Grace, Daniel Kliman, and Kristine Lee, Contested Spaces: A Renewed Approach to Southeast Asia, www.cnas.org/ publications/reports/contested-spaces.

9 South China Sea Geopolitical connectedness to the Indian Ocean Gurpreet S Khurana

Introduction The economic growth story of Pacific-Asia post-Second World War did not include the developing countries of the broader Asia, including the Indian Ocean Region (IOR). For the IOR, therefore, the South China Sea (SCS) has been perceived more symbolically as representing a maritime space of opportunities, leading the major IOR economies like India wanting to connect up with its extended eastern maritime neighbourhood. This led to India’s Look East Policy launched in 1991,1 concurrently with its economic liberalization. The perception is, however, incomplete without the “other side of the coin.” The SCS is also viewed as an arena of competition and rivalry among China and the other littoral countries owing to the overlapping maritime claims, the attendant quest for its bountiful natural resources, and more generally, the strategic value of the SCS, particularly in terms of maritime communications and trade. This is manifested inter alia by the frequent incidents relating to island-building activities and freedom of navigation. Notwithstanding the aforesaid, for an aspiring IOR power like India, the economic rationale—and the attendant maritime security imperatives—to engage with the SCS littorals has been rather overwhelming. Besides, given the adversarial potential in India-China relations, India’s geopolitical presence in the SCS is considered necessary to reinforce “strategic deterrence” against China, at least to offset the Chinese challenge in the Indian Ocean, which is developing nodes of influence in India’s immediate maritime neighbourhood. However, for more than two decades after the launch of its Look East Policy, India remained a marginal actor in the SCS, happy to be included in the “Asia-Pacific” construct on a “case-to-case” basis, mostly owing to the gratitude of the US’ Pacific Command (PACOM),2 whose area of responsibility stretched from the Pacific Ocean (excluding Americas) to ­India. By the time the Modi-led government came to power in 2014, ­India had become too eminent a player to be ignored, leading New Delhi to launch a re-invigorated “Act East” policy. It was only in 2018 that New Delhi realized that the entire Indian Ocean-Pacific Ocean continuum—and not only

138  Gurpreet S Khurana India’s extended eastern neighbourhood—was germane to its national-­ strategic interests. Accordingly, in June 2018, Mr. Narendra Modi made the first-ever Prime Ministerial statement on the “Indo-Pacific” concept.3 This meant that India could no longer be content with its sporadic role in the “ambiguous” Asia-Pacific construct and have its “national-strategic” level policies be driven by—and coincide spatially with—the “military-strategic level” Area of Responsibility (AOR) of the US Pacific Command (PACOM) (though now renamed as Indo-Pacific Command or “INDO-PACOM”). In this context, this chapter seeks to examine the origin and conceptualizations of the “Indo-Pacific” idea, lately qualified further as the concept of “Free and Open Indo-Pacific” (FOIP), and its relevance to the geopolitics relating to the SCS, with particular focus on freedom of navigation.

Erstwhile conceptualisation of “Indo-Pacific” In the geopolitical context, the term “Indo-Pacific” first appeared in an academic work in the 1920s. In his paper, the German geopolitician Karl Haushofer attempted to extrapolate the historical narrative of the Chinese and Indian civilizations to predict the future power relations between China and India on the geopolitics of the “Greater Indo-Pacific Ocean,” which he called Indopazifischen Raum’ (Indo-Pacific Space).4 His writing may be contextualized with the fact that until three centuries ago, China and India together contributed to more than half of the world’s combined gross domestic product (GDP).5 This ratio declined rapidly in the subsequent decades and centuries. The key reasons were the industrialization of the West after the Industrial Revolution in Europe beginning the 18th century, and the colonization of the Afro-Asian countries by the Europeans. The “pendulum is now swinging back,” leading to the coining of the term the “rise of Asia” or “the Asian Century.”6 However, it may be more apt to call it “rise of (­maritime-configured) Indo-Pacific” since new geopolitical realities are arising from the rapid economic growth of the countries in the entire Asia-­ centred rimland, not merely of China and India. Karl’s conceptualization was, therefore, highly relevant, particularly considering that he was referring to a period more than three centuries ago when the Chinese and Indian civilizations did not have any continental interface (Tibet was the buffer). By the turn of the 21st century, the countries of Pacific-Asia realized the important role that India could play in the geopolitics of their region, both in geoeconomic and maritime security terms. It was, therefore, imperative to include India in the new regional architecture, which began as the ASEAN-plus-6 concept, paving the way for the establishment of the East Asia Summit (EAS) in 2005. Although the ASEAN Regional Forum (ARF) was established earlier in 1994, it was geographically stretched beyond the Indo-Pacific region, having the European Union (EU) as one of its members. The ARF was also restricted to security issues and was too ambitious to venture even into dispute resolution, and has thus been

Geopolitical connectedness to the Indian Ocean  139 practically ineffective, as exemplified by its diminutive role during the East Timor crisis of 1999. However, EAS was confined to within the Indo-Pacific region and was conceived with a more comprehensive agenda.7 The setting up of the EAS symbolized the revival of the geopolitical link between ­Pacific-Asia and the IOR, which triggered Peter Cozens (Former Director of the Centre for Strategic Studies at Victoria University in Wellington New Zealand) to write an analytical essay titled “Some Reflections on Maritime Developments in the Indo-Pacific during the Past Sixty Years” (2005).8 The essay offers a new maritime perspective vis-à-vis the established “Atlantic view of the world,”9 thereby rekindling the thoughts of Karl Haushofer in the 1920s.

Prevailing maritime security challenges It is well known that resurgence of Asia (and thereby, of the Indo-Pacific region) is neither preordained nor devoid of challenges. The region is beset by a multitude of maritime security issues ranging from inter-state disputes to maritime crimes, and further on to the adverse effects of climate change, including sea-level rise and increasing scope of natural disasters. Many countries in the IOR lack sufficient capacity to maintain good order in their maritime zones. On the other hand, while most countries littoral to the SCS do possess adequately equipped maritime security forces, major asymmetries exist among countries in terms of maritime-military capabilities. Unlike the West, therefore, the concept of “maritime security” in the Indo-Pacific region is not restricted to non-traditional threats, but also includes the lingering traditional military insecurities. These include a plethora of land and maritime boundary disputes among countries. In this regard, the Bay of Bengal stands in stark contrast to the SCS. Whereas in July 2016, China rejected the verdict of the International Tribunal in the arbitration case initiated by the Philippines in the Arbitral Tribunal of the Law of the Sea,10 the maritime dispute between India and Bangladesh was peacefully resolved two years earlier in July 2014 through international arbitration by the Permanent Court of Arbitration.11 As in the SCS, many maritime disputes exist in the IOR as well. These involve many countries in the western and south-western IOR, the Persian Gulf and the Red Sea. These disputes are presently dormant. However, economic development in these IOR countries in the coming decades will increase both their appetite for marine resources, and the military capacity to assert their maritime claims, possibly leading to an insecure environment alike the SCS. Furthermore, the geographic centrality of the SCS and its inherent characteristics makes it critically important for shaping the geopolitical and security environment in the Indo-Pacific region. The world’s busiest international shipping lanes (ISLs) traverse through this sea, servicing merchandise trade flows among major economies of the world. The SCS is also an area that is witnessing a proliferation of submarines.12 This is leading to and increasing risk to

140  Gurpreet S Khurana commercial shipping, besides aggravating problems of water-space management in this relatively shallow sea.

“Indo-Pacific” in contemporary context Although the term “Indo-Pacific” has been used earlier in varied contexts, the contemporary conceptualization of the “Indo-Pacific” is widely attributed to the address by Japan’s Prime Minister Shinzo Abe in 2007 and is aimed to generate a region-wide benign maritime security environment. Addressing the Indian Parliament in August 2007, he spoke about the “dynamic coupling of the… Pacific and the Indian Oceans… as seas of freedom and of prosperity, … (wherein) both India and Japan have vital interests in the security of sea-lanes (emphasis added).”13 Lesser known is the dialogue between Japanese and Indian analysts on the “Indo-Pacific” idea, which occurred in October 2006, ten months before PM Abe’s articulation. The Dialogue was an annual feature between the Japan Institute for International Affairs (JIIA) and the Institute for Defence Studies and Analyses (IDSA) and was held in New Delhi. Both Japan and India were becoming increasingly wary of China’s growing politico-military assertiveness and its imminent strategic presence in the Indian Ocean, including through deployment of its new-generation Shang-class nuclear attack submarines (SSNs). This posed a direct threat to Japan’s sea lines of communication (SLOCs) in the Indian Ocean. India was worried about the addition of the maritime dimension to the Chinese military threat. Both Japan and India were concerned about the regional balance of power tilting in China’s favour. The two sides discussed the issue of India-Japan sea lane security cooperation, including China’s own vulnerability in terms of its SLOCs passing through the Indian Ocean. This led to the publication of the author’s January 2007 paper titled Security of Sea Lines: Prospects for India-Japan Cooperation the IDSA’s “flag-ship” journal.14 The paper is premised on—and explains—the Indo-Pacific concept, as a means to showcase the Indian Navy’s capability to interdict China’s oil SLOCs, and thereby exert a subtle pressure upon China to moderate its assertive behaviour. It was conceived that Japan-India maritime security cooperation could later be expanded to the IOR countries so as to enable the two regional powers to maintain a favourable balance of power. Notwithstanding the aforesaid “Indian-connection,” New Delhi took more than a decade to internalize the “Indo-Pacific” concept. As mentioned earlier, it was only in June 2018 that Prime Minister Narendra Modi formally articulated the Indian conceptualization of “Indo-Pacific” in his address at the Shangri La Dialogue.15 This delayed response is not surprising since the policymaking in India is well known for a “high specific heat,” leading to measured and well drawn-out responses to “external” stimuli. The Prime Minister’s official articulation of the Indo-Pacific, and its geostrategic stretch “from the shores of Africa to that of the Americas” may be seen as a realization of the need to link up India’s geostrategic “Act East”

Geopolitical connectedness to the Indian Ocean  141 reorientation with his concept of SAGAR (Security and Growth for All in the Region)16 which was meant primarily for the IOR, and enunciated by him in 2015 in Mauritius.17

The US’ geostrategic reorientation Since the beginning of the 21st century, for the US, the geopolitical construct of “Asia-Pacific” was proving inadequate, primarily due to China’s expanding strategic “footprint” in the Indian Ocean, and also the attendant need for India to play a more proactive role in the “pan-Asian” security architecture. Accordingly, in October 2010, the US Secretary of State Hillary Clinton did use the term “Indo-Pacific” during her address at Honolulu; but notably, within the overall context of “Asia-Pacific,” and with specific regard to “naval cooperation with India.”18 However, in the later years, US policymakers were compelled to continue the usage of the term “Asia-­Pacific” in context of President Obama’s “Rebalance to Asia” geostrategy.19 (For the “Western/ Atlantic World,” “Asia” has long been synonymous with “Asia-Pacific”.) By 2013, however, the PACOM leadership began to use the term “Indo-Asia-Pacific.” (Ostensibly, this rather awkward term was essential to maintain the US inclusiveness in the new geopolitical construct.) In November 2017, during his Asia tour, President Donald Trump emphatically endorsed the “Indo-Pacific,” and used the term repeatedly in his speeches. The tone and tenor of his statements—in context of a partnership with India—­explicitly ­conveyed the anti-China connotation of the US conceptualization. This was not very helpful in terms of the original conceptualization of the “Indo-Pacific,” which was to exert subtle persuasive and dissuasive pressures upon China, rather than pushing the other regional countries to take sides.20 The US President’s articulation—­ particularly coinciding with the first meeting of the Quadrilateral Dialogue (involving Australia, India, Japan, and the US) in November 201721—­carried the risk of polarizing the region, leading to scepticism in South Korea and ASEAN.22 The ASEAN was particularly apprehensive of the Indo-Pacific creating fissures among its members, and the marginalization of the multilateral body. Ostensibly to assuage the ASEAN, in August 2018, the US Secretary of State Mike Pompeo e­ mphasized that ASEAN would be central to Washington’s Indo-­Pacific strategy,23 ­leading to ASEAN efforts to craft a common “Indo-­Pacific” policy.24 The address by the Indian Prime Minister at the 2018 edition of Shangri La Dialogue may also have contributed to the ASEAN’s conciliatory posture. Toning down the rhetoric generated by President Trump’s articulation, he stated India’s conceptualization of the “Indo-Pacific” as one of “inclusiveness,” “Openness,” “ASEAN Centrality,” and one that is not directed against any country.25 It is a clear indicator of India’s balanced policy approach, viz. the application of “Strategic deterrence” against China in a more “gentle,” persuasive, and dissuasive manner. Nonetheless, New Delhi

142  Gurpreet S Khurana seeks Washington’s partnership and support in playing the role of “net provider of security in the Indian Ocean and beyond…” as remarked by the then US Secretary of Defense Mr. Robert Gates during the 2009 edition of Shangri La Dialogue.26 Towards this end, the March 2018 announcement by the US Secretary of Defence James Mattis renaming of PACOM to “­Indo-Pacific Command” (INDO-PACOM) was encouraging for New Delhi since it would strengthen the interface between Indian Navy and the US Central Command (CENTCOM), in addition to the INDO-PACOM.

The Quadrilateral Dialogue The Quadrilateral Dialogue (Quad; involving Australia, India, Japan, and the US)27 is widely—though inappropriately—perceived as a quasi-military alliance as the primary instrument of an “Indo-Pacific military-strategy” to counter China. Such perceptions have arisen due to two key reasons. Firstly, the Quad was launched in 2017 as the “Quadrilateral Security Dialogue (QSD),”28 evincing memories of a similar quadrilateral grouping that existed for a short time a decade ago, which is now being referred to as Quad 1.0. The activities of Quad 1.0, particularly the large-scale ­MALABAR exercise conducted by the navies of its members (and Singapore) in September 2007, had invited a diplomatic protest from China and led to widespread regional anxieties. Secondly, the first meeting of Quad (2.0) in November 2017 coincided with President Trump’s “Indo-Pacific” articulation seeking India’s strategic partnership against China, albeit implicitly. India’s approach seems to be to dispel the aforesaid perception that the Quad is a quasi-military alliance against China. In its official usage, India has dropped the term “Security” from the original QSD nomenclature. New Delhi prefers to call it a broad-based informal consultative platform for its members, to share assessments and discuss collaboration on a very wide range of issues including maritime-economic connectivity, preservation of the international and regional maritime order including navigational freedoms, maritime confidence building, and holistic maritime safety and security. Notwithstanding the above, the Quad remains an important tool—in the toolbox comprising a host of other multilateral structures like the EAS, ARF, and the Indian Ocean Rim Association (IORA)—to meet the over­ arching objective of the “Indo-Pacific” vision that was conceived a decade ago, viz. regional peace and prosperity. Although unlike the other multilateral structures, the Quad does not include the ASEAN, it does not include China either, and herein lies its value. The Quad may be used to scale up the persuasive and dissuasive pressures upon China, if and when the need arises. In the coming years, the acceptability of the Quad may be enhanced further by incorporating ASEAN views in the Quad. This may be achieved through ASEAN representation in the Quad meetings as an observer.

Geopolitical connectedness to the Indian Ocean  143

Concept of Free and Open Indo-Pacific Good order at sea in the maritime-configured Indo-Pacific region is the key ingredient for the Free and Open Indo-Pacific (FOIP) concept. It seeks to place restraining pressures upon all actors, whether State or non-State, whose actions—whether pre-meditated or incidental—cause to disrupt freedom and openness of the maritime global common. While the regional countries are unanimous on the way ahead to curb the disruptive actions of malevolent non-State entities, they are not consensual on how to restrain the behaviour of the State actors like China. Nonetheless, they agree that China poses a complex challenge to the FOIP concept. This is so not only because of Beijing’s dissatisfaction with the established global order—at least in terms of the prevailing international law and norms addressing the global maritime common—but also because of its geopolitical weight as a global player and its rapidly growing comprehensive national power. This explains the rather conciliatory statement of the Indian Prime Minister at the 2018 Shangri La Dialogue vis-à-vis China.29 Nevertheless, he conveyed an implicit but clear message to Beijing by stating that States should all have equal access as a right under international law to the use of common spaces on sea and in the air that would require freedom of navigation, unimpeded commerce and peaceful settlement of disputes in accordance with international law.30 This statement is not altruistic. About 25% of India’s seaborne trade transits east of the Malacca Straits.31 Added to this are India’s resource-related endeavours in the area in collaboration with regional countries like Vietnam,32 which make it imperative for India to seek a benign and conducive environment in the South China Sea.

Divergences on concept of “freedom of navigation” The need for freedom of navigation (FoN)33 is among the key elements in ensuring a benign regional maritime order. Lately, a collective commitment to ensuring FoN “in accordance with international law” has become a catchphrase in joint statements issues after high-level political meetings. However, there are multiple divergences among countries on the interpretation of law with regard to FoN. This has led an analyst to aver in a lighter vein that “Freedom of navigation is in the eye of the beholder… (and) adding caveats (like ‘in accordance with international law’) makes little difference as there is no agreement on key points of international law related to particular freedoms.”34 The 1982 United Nations Convention on the Law of the Sea (UNCLOS), in its Article 87, stipulates the provisions for FON in very broad terms, adding that “These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the

144  Gurpreet S Khurana high seas….”35 However, since the days when UNCLOS was being negotiated, major divergences have persisted between the developing countries and major naval powers with regard to the clause “with due regard…” since the security of the coastal States were not addressed. Also, the UNCLOS Articles 17–19 contains no explicit clause assuring the security of the coastal State, when the right of innocent passage through its territorial sea is exercised by foreign warships.36 The major naval powers like the US interpret the UNCLOS provisions (those deemed as customary international law and, therefore, applicable to the US) to bestow more comprehensive navigational freedoms for their naval units in the maritime zones of the coastal States. Such freedoms typically include innocent passage through territorial seas and military activities like military surveys. In context of such freedoms, the more vulnerable coastal States (developing countries) sought permission (or at least prior notification), for innocent passage of foreign warships through their territorial sea and permission for foreign military activities in their exclusive economic zone (EEZ). India-US divergences In case of the US (major naval power) and India (coastal State), India seeks “prior notification” for innocent passage of warships through its territorial sea. Accordingly, Article 4 of India’s Maritime Zones of India (MZI) Act of 1976 states that All foreign warships may enter or pass through the territorial waters after giving prior notice to the Central Government…(which) may if satisfied that it is necessary so to do in the interests of the peace, good order or security of India… suspend… (their) entry….37 However, the US’ official stand states that “all ships, including warships, regardless of cargo, armament, or means of propulsion, enjoy the right of innocent passage, for which neither notification nor authorization is required.”38 Also, India’s declaration while ratifying UNCLOS in June 1995 stated that The Government of the Republic of India understands that the provisions of the Convention do not authorize other States to carry out in the exclusive economic zone (EEZ) and on the continental shelf military exercises or manoeuvres, in particular those involving the use of weapons or explosives without the consent of the coastal State.39 In 2002–2003, India protested against the activities of USNS Bowditch in the Bay of Bengal.40 The US surveillance ship was conducting underwater survey within India’s EEZ. The US has maintained the stand that these are military surveys necessary for navigational safety of warships, and thereby

Geopolitical connectedness to the Indian Ocean  145 lawful. India believed that it was “intelligence gathering.”41 However, the US does not recognize this right to obtain “consent” for military activities in India’s EEZ. Notwithstanding the strengthening India-US strategic partnership, the aforesaid divergences have led to regular US Freedom of Navigation Operations (FONOPS) since 1979 to prevent norm-building against its interest with regard to military mobility in the SCS. The “unique” case of China While China has had similar legal contentions with the US, China’s interpretation of the law seems to be uniquely distinctive. On the one hand, it does not permit innocent passage of foreign warships through its territorial sea or foreign military activities in its EEZ without “advance approval or prior notification.”42 On the other, its own warships undertake both types of activities in the maritime zones of other States. On various occasions, the Chinese navy has conducted military activities including intelligence gathering in the EEZ of other coastal states, including that of the US. China’s use of its intelligence gathering vessels off US territories such as Guam in 2013,43 and off Australia’s Queensland coast in 201744 are cases in point. Also, China has never explicitly articulated its stand on the legal status of the sea areas within the “nine-dash line,” which lie beyond its 12 nm territorial sea and the 200 nm EEZ. However, by laying “historic” claim to the sea area as entitled to “traditional fishing rights,”45 it has implicitly claimed sovereign jurisdiction over the entire sea area enclosed within the nine-dash line. Based on such assumed sovereign rights—even though formally annulled by International Tribunal award in July 201646 —China has been effectively curtailing FoN in these areas, particularly for warships.47 The UNCLOS is not perfect, and may need to be refined. However, it is the best consensual order that the international community has achieved after protracted negotiations spanning over many decades, an achievement that is unlikely to have materialized in the currently prevailing geopolitical environment. The solutions to the imperfections of UNCLOS would, therefore, need to be found within the existing overarching legal framework, as represented by the provisions of UNCLOS itself. As stated in the Indian Prime Minister Narendra Modi’s address at the Shangri La Dialogue in June 2018, “We believe that our common prosperity and security require us to evolve, through dialogue, a common rules-based order for the region.” However, such rules and norms would need to be evolved.48

Conclusion In all probability, the “Indo-Pacific” construct—connecting the Indian Ocean to the SCS and beyond—will prevail and even gather a more widespread acceptance as a concept that seeks to usher a benign and conducive maritime security environment. From the perspective of the IOR, the EAS

146  Gurpreet S Khurana may be most suited to play the key role, while maintaining inclusivity, as also the centrality of ASEAN in the process. The political process within EAS would need to be based on prioritization of issues. The level-1 priority would need to be economic cooperation—including developing maritime connectivity models as more attractive alternatives to the Chinese Belt and Road Initiative (BRI). The EAS members would also need to focus on maritime safety issues arising from the increasing economic activities at sea. Concurrently, the EAS maritime security forces—while cooperating to eliminate maritime crime—would need rededicate themselves to confidence building among themselves. The Western Pacific Naval Symposium (WPNS) would play a key role for such confidence building, which could be linked up with the Indian Ocean Naval Symposium (IONS). The Code for Unplanned Encounters at Sea (CUES) promulgated by the WPNS may need to be extended to other maritime forces, and the same emulated by the IONS. The level-2 priority would need to be to exert subtle pressures upon China to conform to the established tenets and practices of international law, including the UNCLOS. However, to achieve this, the EAS members would need to develop a consensus on the interpretation of law with regard to FoN. It is recommended that foreign military activities be permitted in the EEZ (without prior consent of the coastal State) in accordance with the established principle of High Seas freedoms, except if such activities impinge on the economic resources in the area. In this regard, India will need to amend its declaration of June 1995 (while ratifying UNCLOS, as mentioned above). However, India’s present position on seeking “prior notification” for innocent passage of foreign warships through its territorial sea seems to be a prudent compromise between the requirements of major naval powers and those of the coastal States, and is therefore, recommended. China will also need to be persuaded and dissuaded through resort to international arbitration for settlement of maritime disputes in the SCS, and the smaller countries will need to be encouraged and supported in this regard. The level-3 priority would need to be coordination for capability enhancement (including capacity building) of the regional maritime forces. Such synergized capability enhancement is essential to reduce military asymmetries in the SCS, permitting the smaller countries to fend for themselves, and in broader terms, to preserve the existing balance of power. Although not least, the level-4 priority would be accretion of own maritime-­m ilitary capabilities, in collaboration with select members of the EAS, as may be feasible. The activities could encompass developing operational compatibility (inter-operability) through high-level naval exercises; entering into information-exchange agreements for enhancement of situational awareness at the strategic, and even operational levels; and logistic support arrangements to enhance the reach and sustenance naval units, as and when required. Importantly, such maritime-military cooperation would serve as a mechanism for assurance (including deterrence) and insurance.

Geopolitical connectedness to the Indian Ocean  147

Notes 1 “India-ASEAN Relations”, Ministry of External Affairs (MEA), Government of India website, April 2013, at www.mea.gov.in/Portal/ForeignRelation/­IndiaASEAN_Relations.pdf. See also Thongkholal Haokip, “India’s Look East Policy: Its Evolution and Approach,” South Asian Survey, Vol. 18(2) (September 2011), pp. 239–257. 2 The US PACOM has now been renamed as the “U.S. Indo-Pacific Command”. See US Indo-Pacific Command website, at www.pacom.mil/ 3 Prime Minister’s Keynote Address at Shangri La Dialogue (June 01, 2018), Ministry of External Affairs (MEA), Government of India, 1 June 2018, at www. mea.gov.in/Speeches-Statements.htm?dtl/29943/Prime+Ministers+Keynote+ Address+at+Shangri+La+Dialogue+June+01+2018 4 Haushofer, Karl Ernst, Tambs, Lewis A, Brehm, Ernt J. An English Translation and Analysis of Major General Karl Ernst Haushofer’s Geopolitics of the Pacific Ocean: Studies on the Relationship between Geography and History. (Lewiston, NY: Edwin Mellen Press, 2002). 5 The global contribution to world’s GDP by major economies from year 1 to 2003 according to Angus Maddison’s estimates. Maddison Angus. Contours of the World Economy I-2030AD, (Oxford: Oxford University Press, 2007), ISBN 978-0199227204. 6 “Asia 2050: Realising the Asian Century,” Report of the Asian Development Bank (ADB), 2011, p. 3, at www.adb.org/sites/default/files/publication/28608/ asia2050-executive-summary.pdf 7 Interview with Professor GVC Naidu, Jawaharlal Nehru University, New Delhi, 03 October 2018. See also, Naidu, GVC, “India and the East Asian Summit”, Strategic Analysis, Vol. 29(4) (October 2005), at https://idsa.in/strategicanalysis/ IndiaandtheEastAsianSummit_gvcnaidu_1005 8 Cozens, Peter. “Some Reflections on Maritime Developments in the Indo-Pacific during the Past Sixty Years.” Maritime Affairs, Vol. 1(1) (2005), pp. 15–35. 9 E-mail interview with Dr Peter Cozens, 20 August 2018. 10 ‘Statement of the Ministry of Foreign Affairs of the People’s Republic of China on the Award of 12 July 2016 of the Arbitral Tribunal in the South China Sea Arbitration Established at the Request of the Republic of the Philippines’, Ministry of Foreign Affairs, the People’s Republic of China, 12 July 2016, at www.fmprc. gov.cn/mfa_eng/zxxx_662805/t1379492.shtml 11 Bay of Bengal Maritime Boundary Arbitration (Bangladesh V. India) Award, Permanent Court of Arbitration, The Hague, 7 July 2014, at www.pca-cpa.org/ showpage.asp?pag_id=1376 12 Hardy, Corwin J. At Periscope Depth: Exploring Submarine Proliferation in Southeast Asia (Thesis submitted to Naval Postgraduate School Monterey, California). (2015), at www.dtic.mil/dtic/tr/fulltext/u2/1008956.pdf See also, Groll, Elias and Luce, Dan de. “China is Fuelling a Submarine Arms Race in the Asia-Pacific.” Foreign Policy, 26 August 2016, at https://foreignpolicy. com/2016/08/26/china-is-fueling-a-submarine-arms-race-in-the-asia-pacific/ 13 “Confluence of the Two Seas”, Speech by H.E. Mr. Shinzo Abe, Prime Minister of Japan at the Parliament of the Republic of India, 22 August 2007, Japan Ministry of Foreign Affairs (MOFA) website, at www.mofa.go.jp/region/asia-paci/ pmv0708/speech-2.html 14 Khurana, Gurpreet S. “Security of Sea Lines: Prospects for India–Japan Cooperation.” Strategic Analysis, Vol. 31(1), January/February 2007, pp. 139 and 144, at www.tandfonline.com/doi/abs/10.1080/09700160701355485 15 Prime Minister’s Keynote Address at Shangri La Dialogue (June 01, 2018), Ministry of External Affairs (MEA), Government of India, 1 June 2018, at www.

148  Gurpreet S Khurana

16 17 18 19 20

21

22

23

24 25

26

27

28

29

30

mea.gov.in/Speeches-Statements.htm?dtl/29943/Prime+Ministers+Keynote+ Address+at+Shangri+La+Dialogue+June+01+2018 “SAGAR” means ‘Ocean’ in Hindi language and was used by the Indian Prime Minister as an acronym for ‘Security and Growth for All in the Region’. “Mr Modi’s Ocean View”. The Hindu, 17 March 2015, at www.thehindu.com/ opinion/editorial/mr-modis-ocean-view/article7000182.ece Remarks by Hillary Rodham Clinton, Secretary of State, ‘America’s Engagement in the Asia-Pacific’, US Department of State, 28 October 2010, at https://2009-2017.state.gov/secretary/20092013clinton/rm/2010/10/150141.htm Green, Michael J. “The Legacy of Obama’s “Pivot” to Asia.” Foreign Policy, 3 September 2016, at https://foreignpolicy.com/2016/09/03/the-legacy-of-obamaspivot-to-asia/ Khurana, Gurpreet S. “Trump’s New Cold War Alliance in Asia is Dangerous,” The World Post (The Washington Post), 14 November 2017, at www. washingtonpost.com/news/theworldpost/wp/2017/11/14/trump-asia-trip/? noredirect=on&utm_term=.7de0c9ac7ac3 Panda, Ankit. “US, Japan, India, and Australia Hold Working-Level Quadrilateral Meeting on Regional Cooperation.” The Diplomat, 13 November 2007, at https://thediplomat.com/2017/11/us-japan-india-and-australia-hold-workinglevel-quadrilateral-meeting-on-regional-cooperation/ Hirano, Ko. “ASEAN, S. Korea Open to Indo-Pacific, but Cautious over Ties with China.” ABS-CBN News, 22 November 2017, at https://news.abs-cbn. com/focus/11/22/17/asean-s-korea-open-to-indo-pacific-but-cautious-overties-with-china Hussain, Zakir. “US Remains Committed to Asean Centrality, Mike Pompeo Tells Foreign Ministers.” The Straits Times, 3 August 2018, at www.straits times.com/politics/us-remains-committed-to-asean-centrality-mike-­p ompeotells-foreign-ministers “ASEAN Crafts Position on US ‘Free and Open Indo-Pacific’ strategy”, Nikkei Asian Review, 2 August 2018, at https://asia.nikkei.com/Politics/InternationalRelations/ASEAN-crafts-position-on-US-Free-and-Open-Indo-Pacific-strategy Prime Minister’s Keynote Address at Shangri La Dialogue (1 June 2018), Ministry of External Affairs (MEA), Government of India, 1 June 2018, at www. mea.gov.in/Speeches-Statements.htm?dtl/29943/Prime+Ministers+Keynote+ Address+at+Shangri+La+Dialogue+June+01+2018 ‘America’s Security Role in the Asia-Pacific’, Address by Dr Robert Gates, US Secretary of Defence, Shangri-La Dialogue, 30 May 2009, at www.iiss.org/ en/events/shangri%20la%20dialogue/archive/shangri-la-dialogue-2009-99ea/ first-plenary-session-5080/dr-robert-gates-6609 Panda, Ankit. “US, Japan, India, and Australia Hold Working-Level Quadrilateral Meeting on Regional Cooperation.” The Diplomat, 13 November 2017, at https://thediplomat.com/2017/11/us-japan-india-and-australia-hold-working-­ level-quadrilateral-meeting-on-regional-cooperation/ “Quadrilateral Security Dialogue: India, Australia, Japan, US Hold Talks on Indo-Pacific Cooperation”, Times of India, 12 November 2017, at https://times ofindia.indiatimes.com/india/quadrilateral-security-dialogue-india-australia-­ japan-us-hold-talks-on-indo-pacific-cooperation/articleshow/61616602.cms Prime Minister’s Keynote Address at Shangri La Dialogue (June 01, 2018), Ministry of External Affairs (MEA), Government of India, 1 June 2018, at www. mea.gov.in/Speeches-Statements.htm?dtl/29943/Prime+Ministers+Keynote+ Address+at+Shangri+La+Dialogue+June+01+2018 Ibid.

Geopolitical connectedness to the Indian Ocean  149 31 Chauhan, Pradeep. “How South China Sea Dispute Affects India.” Dailyo News, 14 July 2016, at www.dailyo.in/politics/why-india-should-bother-aboutsouth-china-sea-dispute/story/1/11746.html The proportions cited by other academic sources, mostly non-Indian literature, range from 30% to 50%, which are inflated. The proportion of 25% has been validated by the author’s own analysis. 32 “ONGC Videsh Gets 2-year Extension for Exploring Vietnamese Oil Block.” The Economic Times, 9 July 2017, at https://economictimes.indiatimes.com/­ industry/energy/oil-gas/ongc-videsh-gets-2-year-extension-for-exploring-­ vietnamese-oil-block/articleshow/59512891.cms 33 In this writing, the term ‘FoN’ refers to the broader concept of ‘navigational freedoms’, including the freedom of overflight. 34 Bateman, Sam. “Freedom of Navigation is in the Eye of the Beholder.” East Asia Forum, 24 August 2017, at www.eastasiaforum.org/2017/08/24/freedom-ofnavigation-is-in-the-eye-of-the-beholder/ 35 Convention on the Law of the Sea, 10 December 1982, 1833 United Nations Treaty Series 397. Enacted as: entered into force as the “United Nations Convention on the Law of the Sea” on 1 November 1994, Article 87(2), at www.un.org/ depts/los/convention_agreements/texts/unclos/unclos_e.pdf 36 Convention on the Law of the Sea, 10 December 1982, 1833 United Nations Treaty Series 397. Enacted as: entered into force as the “United Nations Convention on the Law of the Sea” on November 1, 1994, Articles 17–19, at www.un.org/ depts/los/convention_agreements/texts/unclos/unclos_e.pdf 37 Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 (80 of 1976), 25 August 1976, at http://nbaindia.org/ uploaded/Biodiversityindia/Legal/19.%20Territorial%20Water,%20Continental %20Shelf,%20Exclusive%20Economic%20Zone%20and%20other%20Mari time%20Zones%20Act,%201976.pdf 38 Limits in the Seas, US Responses to Excessive Maritime Claims, US Department of State (Bureau of Oceans and International Environmental and Scientific Affairs), No 112, 9 March 1992, p. 5, at www.state.gov/Documents/organization/ 58381.pdf 39 United Nations Treaty Collection, Chapter 21, Law of the Sea, United Nations Convention on the Law of the Sea 1982, Status as on 28 September 2015, at https:// treaties.un.org/Pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXI-6& chapter=21&Temp=mtdsg3&clang=_en. 40 Bhushan, Ranjit. “Port Hole: An American Warship Is ‘Caught’ Spying in the Indian Waters under the Pretext of Research.” Outlook, 7 June 2007, at www. outlookindia.com/magazine/story/port-hole/224131. 41 Ibid. 42 Office of the Legal Affairs of the United Nations, Treaty Section website (Date of most recent addition: 29 October 2013), at www.un.org/depts/los/convention_ agreements/convention_declarations.htm Also see, Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone, No.55, 25 February 1992, at www.asianlii.org/cn/legis/cen/laws/lotprocottsatcz739/ 43 Hille, Kathrin. “Chinese Navy begins US Economic Zone Patrols.” Financial Times, 2 June 2013, at www.ft.com/content/02ce257e-cb4a-11e2-8ff3-00144 feab7de 44 Seidel, Jamie. “A Chinese Spy Ship Has Been Watching Australia’s Talisman Sabre War Games.” News.com.au, 22 July 2017, at www.news.com.au/world/achinese-spy-ship-has-been-watching-australias-talisman-sabre-war-games/ news-story/41db16b1e9f27a55f3c9dfd1ac672bd0

150  Gurpreet S Khurana 45 Thi Lan Anh, Nguyen. “New Ten-Dash Line Map Revealed China’s Ambition.” Thanhnien News, 19 July 214, at www.thanhniennews.com/commentaries/ new-tendashed-line-map-revealed-chinas-ambition-28816.html 46 ‘The South China Sea Arbitration (The Republic of the Philippines V. The People’s Republic of China)’, Permanent Court of Arbitration, The Hague, Press Release, 12 July 2016, at https://pca-cpa.org/wp-content/uploads/sites/175/2016/ 07/PH-CN-20160712-Award.pdf 47 Khurana, Gurpreet S. “China and Freedom of Navigation in South China Sea: The Context of International Tribunal’s Verdict.” National Maritime Foundation (NMF) website, 19 July 2016, at www.maritimeindia.org/View%20 Profile/636044789090304939.pdf 48 Prime Minister’s Keynote Address at Shangri La Dialogue (1 June 2018), Ministry of External Affairs (MEA), Government of India, 1 June 2018, at www. mea.gov.in/Speeches-Statements.htm?dtl/29943/Prime+Ministers+Keynote+ Address+at+Shangri+La+Dialogue+June+01+2018

10 European powers and the South China Sea Felix Heiduk

Introduction The long-standing disputes in the South China Sea over the ownership of its many features, reefs, atolls, and rocks over the last few years have seen tensions rise between China, littoral states as well as external powers such as the US. A total of six parties—China, Taiwan, Vietnam, Malaysia, Brunei, and the Philippines—hold competing territorial and jurisdictional claims over a number of islands, low-tide elevations, rocks, and reefs in the South China Sea. Add to this competing claims over exclusive economic zones (EEZs) and the associated rights to exploit oil and gas reserves and plentiful fishing grounds of the South China Sea, as well as an intense strategic rivalry over regional hegemony by the US and China, and what you have is a protracted, multi-dimensional conflict in a part of the world that, as a mere side note to it all, hosts some of the most important transit routes for global seaborne trade with Asia. EU representatives, as well as representatives of its member states, have repeatedly stated that the EU has a major interest in a stable, peaceful South China Sea. Most of Europe’s trade with Asia transits through the South China Sea. China and the ASEAN states are, respectively, the EU’s second and third largest trading partners. Unlike other external actors like the US or Australia, however, European powers, with the exception of a comparatively small French and British navy presence in the Pacific, lack any significant hard naval power capabilities in the region. EU strategic documents and policy papers have stressed the importance of freedom of navigation in the South China Sea and encouraged the parties to peacefully resolve disputes in accordance with international law, particularly the United Nations (UN) Convention on the Law of the Sea (UNCLOS). The EU has also reiterated its neutrality and has not taken a position on any of the claims to land territory and maritime space in the South China Sea. A view held my many in Southeast Asia was that the EU could and should do more to protect its interest in the South China Sea, and perhaps more importantly, do more to support its partners in the region vis-à-vis an increasingly assertive China. And there were voices inside of Europe, too, that called for an “EU Asia pivot,” including a stronger

152  Felix Heiduk involvement, diplomatically and militarily, in the South China Sea. However, in the context of the award issued by the arbitral tribunal constituted under Annex VII of the UNCLOS and released by the Permanent Court of Arbitration (PCA) in July 2016, herein referred to as the South China Sea Award (in short “SCS Award”), it became apparent that European powers were far from united on such a recalibration of European foreign policy. Quite the contrary, it took the EU three days to come up with a rather weak statement on the award, refraining from even mentioning China, due to resistance by Eastern and Southeastern member states. The lack of coherence and subsequent weak European posturing in the aftermath of the SCS Award has only confirmed the dominant perception of the EU as an economic giant but political dwarf. Europe’s lack of strategic vision and visibility is also reflected in academic publications on the matter. Almost all books, edited volumes, and journal issues published on the South China Sea conflict refrain from discussing the role of the EU and its member states as potential stakeholders. Against the background of the apparent divisions inside the EU, this chapter asks why the EU and its member states have so far failed to exert greater influence, relative to their stated interests, in the South China Sea conflict. The chapter employs a two-level game perspective to explain the extent of the EU’s involvement in the South China Sea. The two-level game links two sets of actors, the EU institutions in Brussels, especially the European External Action Service (EEAS), and the member states in two sets of strategic interactions: First, EU institutions and member states governments, and second member states governments and their respective national constituencies. It specifically aims to investigate the diverging perceptions of the South China Sea conflict and the respective policy preferences drawn from them. The chapter argues that the weak response by Europe to the SCS Award in 2016 is indicative of a wider schism inside Europe over how to position oneself vis-à-vis a rising China. While calls for a stronger engagement in the South China Sea theatre from member states like France have grown louder recently, the chapter finds that Europe’s ambiguity between a rights-based approach promoted by Brussels, on the one hand, and individual states policy preferences (including arms sales to the region) often driven by mainly economic considerations on the other, are set to continue for the foreseeable future. This ambiguity in turn explains Europe’s often seemingly lackluster engagement in the South China Sea.

The EU’s interests in the South China Sea Europe’s involvement in the South China Sea had not always been predominantly in the sphere of trade and commerce. European powers competed for access to, and later the control of, the lucrative seaborne trade with East and Southeast Asia from the 16th century onwards. With demand in Europe for

European powers and the South China Sea  153 raw materials increasing and a growing accumulation of surplus goods due to Europe’s rapid industrialization the colonial powers turned to Southeast Asia which happened to be rich in in resources and offered the potential to develop overseas markets to sell off surplus goods. This led to the establishment of colonial territories as monopoly markets by the respective colonial power.1 During the Second World War both the Spratlys and the Paracels were occupied by Japanese forces and Europe’s colonial empires began to erode thereby fundamentally changing Southeast Asia’s regional order. Over the next two decades the naval presence of the colonial powers in Southeast Asia ended, not only of Japan (1945) but also of the Netherlands (1949), France (1957), and Great Britain (1968). Hence, Europe’s renewed interest in the South China Sea has little to do with attempts to reclaim colonial dominions or to exercise naval control. Europe’s interest in the South China Sea is predominantly economic. A large share of merchandise imported by the EU is coming from East and Southeast Asia. Similarly, East and Southeast Asian states are major destinations for EU exports.2 A quick glance at current trade statistics reveals that among the EU’s trading partners, China was the largest partner for EU imports of goods and the second largest partner for EU exports of goods in 2017. Japan in 2017 was the seventh largest source for EU imports and the sixth largest destination for exports from the EU. South Korea, respectively, took rank 8 for EU imports and rank 8 among the largest export destinations, too. Taken together, the ten ASEAN member states would actually be the third largest trading partner for EU. The EU is also the biggest provider of FDI to ASEAN. Given the fact that large quantities of the cargo between Europe and Asia travel via maritime trade routes, open and secure sea lanes are of crucial importance not only to the economic security of the littoral states of the South China Sea but also to the EU itself.3 In particular, the sea lanes running from the Straits of Malacca through the South China Sea to East Asia are vital for the EU’s trade with its partners in Asia. It was estimated by the Center for Strategic and International Studies (CSIS), a US think tank, that one-third of global maritime trade passes through the South China Sea and that despite the geographical distance for some European member states it still is an essential maritime trade route. These estimates point out that almost 12% of Great Britain’s total trade passes the South China Sea, while the figure is only slightly less for Germany (9%), France (7.7%), or Italy (8.1).4 In its Maritime Security Strategy, the EU warns that as much as €4.74 trillion per year in maritime trade could be affected by an outbreak of armed conflict in the South China Sea.5 More generally, with economic interdependence between Europe and Asia increasing, the importance of a stable, prospering Asia for Europe’s economic security is set to grow further in the coming years. Especially since the economic growth rates of over 5% in East and Southeast Asia have far outstripped those of Europe (below 2%).

154  Felix Heiduk Secondly, the primary economic interests in the region do not negate a security dimension. As any disruption of the maritime trade with Asia, via the outbreak of a military conflict, via a military blockade of chokepoints or via other coercive measures would have a significant short-term negative impact on Europe’s economic well-being, the stability and security in the region is closely intertwined with Europe’s economic security. Various European observers have highlighted the negative impact that an outbreak of military conflict in or around the South China Sea would have on the global economy.6 The interlinkages between the EU’s economic well-being as predominantly a trading power and stability and security in Asia are clearly accentuated in the EU’s Global Strategy. It is argued in the Global Strategy that “There is a direct connection between European prosperity and Asian security. In light of the economic weight that Asia represents for the EU – and vice versa – peace and stability in Asia are a prerequisite for our prosperity.”7 And thirdly, the EU has declared an interest in preserving what it commonly refers to as the “rules-based international system,”8 specifically the international law of the sea. The EU’s self-image as a “force for good” and a “normative power” in international politics are reflected in many of its principled statements on the South China Sea.9 While not taking a position on claims to land territory and maritime space in the South China Sea, the EU urged all claimants to resolve disputes through peaceful means, to clarify the basis of their claims, and to pursue them in accordance with international law including UNCLOS and its arbitration procedures. Hence, the EU has constantly reiterated general principles such as the observance of international law, in particular UNCLOS, peaceful dispute settlement, the promotion of a rules-based international system, and the principle of freedom of navigation.10

European perceptions of the South China Sea conflict Based on the EU’s declared interests derived from an analysis of current policy documents and strategy papers, most European government representatives or representatives of the EEAs do not imagine the EU, or its member states, playing a significant military role in the South China Sea. The view held by many in Asia, namely that the EU is an economic giant but political dwarf in the region, is by and large shared in Brussels, too. During a discussion with University students in Singapore in 2018, the EEAS High Representative Federica Mogherini even went as far as stating that “When you think of the European Union you think of the economic power, but you don’t see us as a military power, and that is natural, Europe’s soft power has always been strong and it is here to stay.”11 European representatives, such as German Minister of Defence Ursula von der Leyen, have also stressed the linkages between economic prosperity and security in a globalized economy: “Stability and security in East and Southeast Asia is

European powers and the South China Sea  155 first of all your concern but it is ours too.”12 Similarly, German Chancellor Angela Merkel called upon all sides to seek confidence-building measures in order to prevent an incalculable escalation. This isn’t a purely bilateral or regional issue. The sea and trading routes link Europe to this part of the world. Their security thus has a direct impact on us in Europe.13 Hence, the prevailing view in Europe is one that predominantly interprets the South China Sea as “vital” for European “economic interests in the region” as recently reiterated by French Minister of Defence Florence Parly at the Shangri-La Dialogue 2018.14 Furthermore, EU member states have reiterated their commitment to international law, specifically freedom of navigation, and peaceful conflict resolution. For example, Parly went on to stress the importance of “two tenets of the rule-based international order: disputes should be resolved by legal means and negotiation, not by fait accompli, and freedom of navigation must be upheld.”15 In the same way, Federica Mogherini at this year’s ASEAN Regional Forum (ARF) emphasized the “need to respect the principles of international law when it comes to maritime security, as enshrined in the United Nations Convention on the Law of the Sea.”16 Over the last years, Europe has grown increasingly concerned over threats to regional security and freedom of navigation and overflight emanating from the increasing tensions in the South China Sea. In response, the EU has called “on all claimants to refrain from militarisation in the region, from the use or threat of force, and to abstain from unilateral actions.”17 The EU and its member states have also avoided taking sides in the South China Sea disputes and do not hold any position on territorial sovereignty. This prism has remained unchanged for quite some time and is stipulated in key strategic documents published by Brussels, such as, for example, the 2012 “Guidelines on the EU’s Foreign and Security Policy in East Asia” or the EU’s 2016 “Global Strategy.”18 The EU has employed this approach in response to major developments in the South China Sea, such as the 2014 “Oil rig incident” when China deployed an oil rig in disputed waters, resulting in clashes between Chinese and Vietnamese boats, or the 2016 SCS Award on the so-called South China Sea arbitration case, too, thereby illustrating its “stickiness.” While this seems to confirm the stereotypical notion of the EU playing its role of “economic giant, political dwarf” in Asia, there are some in Europe that hold divergent views. Most importantly France has taken a different viewpoint in recent years. Starting with the Defence White Paper published in 2013, Paris has regarded the Asia-Pacific “geopolitical entity” as crucial for French (and European security) interests because of the growing economic interdependence between Europe and Asia. As a result, the White Paper states that the prosperity and security of Europe and Asia are

156  Felix Heiduk inextricably linked. France’s Asia-Pacific security strategy, published in 2016, perceives the growing general instability in the region and numerous security hotspots, including a possible disturbance of the “security of global sea lanes of communication” in the South China Sea, as having led “France to play an active role in ensuring the region’s security and stability.”19 Also, the strategy paper states that Paris has a duty to protect its citizens in Asia-Pacific countries whose number has increased by 220 percent over the last twenty years, to exceed 120,000 in 2012 – almost as large as the French population in sub-­ Saharan Africa’ as well as ‘its territories and populations.20 The latter thereby refers to French overseas territories in the Indian Ocean (e.g. Reunion) and in the Western Pacific (e.g. French Polynesia and New Caledonia), which together host almost 1.5 million French citizens. The country’s former defence minister, Jean-Yves Le Drian, declared at the 2016 Shangri-La Dialogue in Singapore that Paris would send regular navy patrols to the area to counter Chinese militarization of the South China Sea. Since then French navy ships have repeatedly sailed through the South China Sea—though without exercising freedom of navigation operations near Chinese-claimed features. Le Drian also pushed for coordinated EU patrols in the South China Sea; an initiative that has not come to fruition yet.21 Similar concerns have been voiced by Great Britain, which also considers itself an Asia-Pacific power and whose Defence Minister Gavin Williamson in 2018 criticized “increasingly aggressive states infringing regional access, freedoms and security through coercion and malign influence” and announced the dispatch of Royal Navy ships to the region “to protect international rights and freedoms.”22 However, it seems safe to state that those in the EU actively seeking to play a military role in the South China Sea are few and far between. For example, in her remarks at the EU-ASEAN Post-Ministerial Conference in Manila in 2017, EEAS High Representative Mogherini did not even mention the South China Sea conflict. Instead she chose to highlight the Korean peninsula in general, and the threats of a nuclear conflict and of nuclear proliferation in particular, as areas for a stronger European security engagement in the region. She only spoke of naval affairs in the context of disaster relief exercises and of the EU’s participation in “ASEAN plus” naval military exercises.23 In addition, the European Union made no public mention of the South China Sea issue at all at its 19th EU-China summit in 2017. And in the joint declaration, published at the end of this year’s summit in July 2018, the paragraph dealing with the South China Sea merely states that the “EU welcomes the ongoing consultations between China and ASEAN countries aimed at the conclusion of an effective Code of Conduct (CoC).” Furthermore it states that the “EU and China call upon all relevant parties to engage in dialogue, to settle disputes peacefully, and to refrain from actions likely to increase tensions.”24

European powers and the South China Sea  157 And in many ways this apparent lack of strategic urgency or ambition within Europe with regard to the South China Sea seems understandable if one examines the prevailing dominant threat perceptions. The primary external focus of the EU’s foreign and defence policy has been on ­Europe’s southern and eastern immediate neighbourhood and not on Asia. At ­Europe’s southern flank, at the time of writing, a civil war is raging in parts of Syria. The Civil War in Libya which erupted in 2011, and then again in 2014, is still ongoing with warring factions competing over the control of Libya’s territory. Furthermore, from 2014 onwards the militant group “­Islamic State in Iraq and Syria (ISIS)” drove Iraqi and Syrian government forces out of key cities in Western Iraq and large parts of Syria and subsequently erected a fundamentalist Salafi proto state from which launched numerous attacks in the region and in Europe. While ISIS’ proto state was largely defeated militarily by 2017, militants do still carry out occasional attacks under the ISIS banner in parts of Syria and Iraq. The impact of the ongoing instability in Libya, Iraq, and Syria has caused millions to seek refuge in neighbouring countries as well as in the European Union. Since 2014 over 1 million refugees, displaced persons, and other migrants have made their way to the EU, either escaping conflict in their country or in search of better economic prospects. The resolution of the “refugee crisis” and the fight against “ISIS” have been on top of Europe’s political and security agenda ever since. In the EU’s Eastern neighbourhood, Russia’s annexation of the Crimean peninsula in 2014, the escalation of pro-Russian protests in Eastern Ukraine into a civil war between the Ukrainian government and Russia-backed separatist forces of the Donetsk and Luhansk People’s Republics and repeated Russian military incursions into Ukraine stoked fears of a revisionist, aggressive Russia in European capitals. Especially in the Baltic states, in ­Poland but also in the Scandinavian countries, the threat of a possible ­Russian annexation or invasion has become the primary security concern of policy makers and analysts alike (Table 10.1). The dominant threat perceptions correspond with the locations of (military and civilian) EU overseas missions and operations as part of the EU’s Common Security and Defence Policy (CSDP). Only 2 out of 18 completed EU overseas missions and operations have taken place in Asia.25 Out of the currently ongoing 17 missions and operations none is taking place in Asia. They operate in Northern Africa, the Middle East, and Europe’s Eastern neighbourhood (Ukraine and Georgia). No EU member state holds any naval bases in the region, and, with the exception of France and Great Britain (with the latter potentially exiting the EU in 2020), no EU member state has sent naval vessels through disputed areas of the South China Sea in recent years. Far from it, the reasons for Europe’s renewed interests lie at the crossroads of Europe’s maritime trade with East Asia and associated economic interests, its strategic interests in the maintenance a stable and prosperous Asia, and more normative considerations over the promotion of peaceful conflict management, the rule of law and the rules-based international order.

88 77 79 64 85 67 66 88 54 70

France Germany Greece Hungary Italy The Netherlands Poland Spain Sweden The UK

72 63 79 59 65 64 42 89 64 59

Global climate change (%) 64 66 51 36 43 57 47 65 44 61

Cyber-attacks from other countries (%) 45 22 88 37 56 21 25 72 20 37

Condition of the global economy (%) 39 28 67 66 65 31 60 42 22 36

Large number of refugees (%)

Source: PEW: Spring 2017 Global Attitudes Survey, Q 23 “What is a major threat to our country?”

ISIS (%)

Country

Table 10.1  M  ajor threat perceptions in Europe (selected countries)

36 35 44 22 20 26 15 59 22 35

US power and influence (%)

45 33 24 28 31 44 65 47 39 43

Russia’s power and influence (%)

37 21 31 26 39 19 29 51 13 32

China’s power and influence (%)

European powers and the South China Sea  159

Internal divisions and “Chinfluence” The EU’s lack of strategic urgency or ambition with regard to the South China Sea, however, is not simply the result of disputes over whether ­Europe should engage in FONOPS or not. Underlying the quarrels over the EU’s strategic alignment and posturing in the South China Sea are deeper internal divisions within the EU. These deep divisions are rooted in mainly two interlinked internal factors: First, the perception that the dominance of the so-called German model, whereby a combination export-oriented manufacturing, tight fiscal policies aimed at a balanced budget, low public debt and low wages is promoted as a model for other EU member states to follow, is the main reason for stagnating economic growth rates, wage cuts and a general decline in economic security. The austerity imposed on countries like Greece as a result has created resentfulness and mistrust towards what is perceived as “German hegemony” amongst elites and ordinary citizens alike. Additionally, Germany’s go-it-alone approach during the 2015 refugee crisis, had earned her the criticism of many of its European ­counterparts— especially in Eastern and Southeastern Europe. Merkel’s decision to unilaterally welcome hundreds of thousands of refugees to Germany was viewed as yet another “Germanocentric” approach by Berlin. As a result, the EUwide refugee quota system, which was only established months later under German leadership by Brussels, was flat-out refused by a number of Eastern European countries such as Poland and Hungary. And with Brexit looming, many feared that the UK’s exit from the EU would tilt the balance of power even further towards Germany and establishing de facto German (economic) hegemony inside the EU. Second, dissatisfaction over the current state of affairs within the EU has led numerous European states, predominantly in Eastern and Southeastern Europe, to look elsewhere for new partnerships. Both issues, resentments over a “Germanocentric” austerity-laden EU, and the search for new partnerships outside of the EU, are interconnected in the sense that after years of austerity and futile resistance against a perceived German hegemony many Eastern and Southeastern European states have embraced the advances of China into Europe in the context of the Belt and Road (BRI) initiative and the economic prospects that are associated with it. Countries like Greece and Hungary have been forerunners in renewing and extending their relations with China in the hope of creating alternative sources for major investments and trade.26 For example, China promised to spend billions on a railway in Hungary and plans to make the Greek port of Piraeus the “dragon head” of its maritime silk road from East Asia into Europe. China’s COSCO Shipping took a 51% stake in Greece’s largest port in 2016. Over the last couple of years Eastern and Southeastern EU member states have signed new investment agreements with Chinese companies worth billions of Euros. While the promised Chinese investments have yielded few actual results for the time being27—the aforementioned Hungarian railway

160  Felix Heiduk was supposed to be operational by 2017 yet construction in Hungary had not even begun by 2018—great expectations remain. This in turn has given China a political foothold in parts of Europe. China’s increasing diplomatic influence in parts of the EU came out in full force in the aftermath of the SCS Award in July 2016.28 Prior to the award European Council President Donald Tusk and Western European governments had called for a “clear and tough stance” on China’s maritime claims. Greece, Hungary, and Croatia in particular, however, stopped the EU from issuing a statement that would have directly criticized Beijing for not respecting the court’s decision. It took the EU 72 hours of intense negotiations to come up with a declaration, which was widely regarded as too weak.29 For example, the declaration merely “acknowledged” the award of the court and it avoided any direct reference to China.30 The declaration, which fell much behind the expected tough stance, reflected discord amongst member states over how strongly to respond to a court ruling viewed as illegitimate and not binding by China. Adding insult to injury, the official statement released by Hungary’s Ministry of Foreign Affairs and Trade in the aftermath of the SCS Award essentially copied the Chinese position by stating, “disputes should be addressed in a peaceful manner by the countries concerned through direct negotiations” … “while external pressure and interference may have an adverse effect on the current situation.”31 The Hungarian statement eschewed any reference to “international law,” “UNCLOS,” or the “rule of law” prevalent in the EU’s official positioning on the South China Sea and Hungary effectively broke ranks. “Chinfluence” again came to the fore in July 2017, when Greece blocked an EU statement at the United Nations (UN) Human Rights Council in Geneva criticizing China’s human rights record. It marked the first time the EU had failed to make its statement at the UN Human Rights Council. A representative of Greece’s Foreign Affairs Ministry was quoted arguing that the blocking was undertaken by Athens in response to “unconstructive criticism of China” and “that unproductive and in many cases, selective criticism against specific countries does not facilitate the promotion of human rights in these states, nor the development of their relation with the EU.”32 Other Eastern European countries have made similar statements. Czech President Milos Zeman, for example, called for a reset of Sino-Czech relations. Previous Czech governments, he argued, had been “very submissive to pressure from the US and the European Union.” Conversely, his government would not interfere in the internal affairs of any other country.33 China’s parlaying of its growing economic strength in parts of Europe into diplomatic dividends, as exemplified by the watered-down EU statement on the SCS Award and the stoppage of a EU statement at the UN Human Rights Council, however, does not mean that countries like Greece or Hungary are moving fully into China’s orbit. After all, investments from

European powers and the South China Sea  161 China in those countries are still dwarfed more than tenfold by investments coming from inside the EU. Recognizing the challenge coming from China, Western European countries, as well as the US, have begun to shore up economic and defence cooperation.34 Also, as anti-Communist attitudes still loom large in many countries of the former Eastern bloc, governments in formerly Communist countries are still wary to be seen as too closely aligned with Communist China. Nonetheless, the EU’s internal divisions are an often-overlooked factor in analyzing European foreign policy and have contributed to what many in Asia and beyond have perceived as ­Europe’s lack of coherence and its weak strategic posturing with regard to the South China Sea conflict.

European engagement in the South China Sea conflict The EU and its member states, however, are not to be reduced to the role of bystanders in the South China Sea conflict. As a member of the ARF and with its accession to the Treaty of Amity and Cooperation (TAC) in 2012, the EU has committed itself to working with partners in the region to address virulent political and security concerns and to contribute to the peaceful settlement of disputes. Brussels has stepped up its engagement with Asia, including the South China Sea’s littoral states, over the last decade especially in the field of non-traditional security. Based on the EU’s stated preference for multilateralism and inclusive security architectures, ASEAN has played a central role in the EU’s engagement in maritime security and is considered by the EU as the cornerstone of the evolving security architecture in the region. However, the ASEAN–EU Plan of Action (PoA) for 2018–2022 reveals that engagement in the field of maritime security is limited to dialogue forums and the exchange of best practices through formats such as seminars and workshops. The PoA specifically mentions the ASEAN-EU High Level Dialogue on maritime cooperation and the Co-Chairmanship of the ARF Inter-Sessional Meeting on Maritime Security (2017–2020) “as well as sharing knowledge and expertise in the sustainable joint management of marine resources.”35 The dialogues on maritime cooperation have so far addressed mostly technical aspects of maritime security, such as, for example, port security, the development of regional maritime policies or inter-agency cooperation.36 It furthermore includes declarations of intent on the exchange of best practices on maritime safety and search and rescue (SAR), cooperation in fighting piracy, and a passage emphasizing the importance of the respect for the rule of law, sovereignty and territorial integrity of States, maritime security and safety, freedom of navigation and overflight, peaceful resolution of disputes, in accordance with the universally recognized principles of international law, including the 1982 United Nations Convention on the Law of the Sea (UNCLOS).37

162  Felix Heiduk The EU has also lent support to regional ASEAN-led mechanisms such as the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against ships in Asia (RECAAP). With China, a key actor in the South China Sea disputes, the EU has yet to establish any dialogue platform on maritime security with it. Despite the EU’s strategic partnership with China, the EU, and the cooperation with the Chinese navy, including military exercises, in the Gulf of Aden, Brussels holds no bilateral talks on maritime security in Asia with Beijing. It has, however, in July 2018 signed an ocean partnership agreement with China to improve the international governance of the oceans in all its aspects, including combating illegal fishing and promoting a sustainable blue economy. With the exception of the ARF, the EU is not a member of any important multilateral security forum such as the East Asia Summit (EAS) and the ASEAN Defence Ministers Meeting Plus (ADMM+). More so, high-­ ranking representatives of the EU as well as of its member states have been notably absent at the regional summitry (ARF, Shangri-La Dialogue, etc.) with the exception of regular participation by the French and the British. There are also no joint military exercises or naval exchange programs held under the EU flag with countries in the region. A subset of EU member states, however, has begun to pursue bilateral cooperative efforts with countries in the region. France, for example, has initiated a defence dialogue with Vietnam in 2016. Cooperation in the maritime security realm has been an important component of the defence relationship, including increasing visits by French vessels to Vietnam as part of a broader effort to boost defence interactions and France’s support of Vietnam as it contends with growing Chinese assertiveness in the South China Sea.38 More so, France and the UK have begun to conduct regular freedom of navigation patrols in the South China Sea. In 2018, for example, France and the UK conducted a joint freedom of navigation patrol through Mischief, Subi, and Fiery Cross reefs in the Spratly Islands in June and the British HMS Albion conducted a freedom of navigation patrol near the Paracel Islands in August. London also announced that it would dispatch its Queen Elizabeth-class aircraft carrier to the South China Sea upon completion in the early 2020s. However, observers have argued that the recent naval posturing by Paris and London holds more symbolic than military weight as both nations’ long-range capabilities are limited, and many of their weapon systems are becoming outdated.39 Overall it seems safe to argue that the EU and its member states punch way below their (economic) weight when it comes to their engagement in Asian maritime security. This is furthermore illustrated by the annual implementation report of the EU’s Global Security Strategy. In the report, which provides a discussion of EU-led activities in various security theatres around the world, the South China Sea conflict is not even mentioned.40 The current report on the implementation of the EU Maritime Security Strategy Action Plan only mentions EU support for capacity building amongst

European powers and the South China Sea  163 Southeast Asian states in anti-piracy operations in the context of the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP) as well as support for capacity building in the field of maritime disaster response initiative as EU contributions in the field maritime security in Asia.41 Nonetheless, EU member states do hold considerable stakes in hard, military security affairs in the region. Often ignored, deliberately or not, by observers and policy makers alike, is the fact that in addition to Europe’s aforementioned soft power instruments and its engagement in mostly non-traditional security affairs, European arms manufacturers have a large share in the regional arms build-up. For the seven littoral states of the South China Sea, the volume of arms imports from the EU’s member states has grown rapidly in absolute terms between 2007 and 2017. More so, for the majority of states a considerable part of their total arms imports stem from EU manufacturers. Between 2007 and 2017 Malaysia imported armaments for a total of $3.719 billion, including $2.166 billion from the EU, which amounted to 58%. Brunei imported military goods worth $490 million in total, of which $403 million (82%) came from the EU states. Even the Philippines, which purchases most of its weapons from the US, spent US$219 million or 25% of the total of US$854 million on arms imports between 2007 and 2017 from the EU. China imported arms worth a total of US$14.576 billion over the same period, of which US$2.488 billion (17%) was spent on arms from EU member states. Of the South China Seas littoral states only Vietnam and Taiwan continued to import the vast majority of their arms from Russia and the US, respectively. Thus, arms imports from the EU only accounted for 5% (Taiwan) or even under 2% (Vietnam) of total imports. The majority of EU arms exports to the South China Sea states originate from the so-called big three (Germany, France, and the UK), but a whole host of other EU states also exported arms in significant amounts over the last decade (Table 10.2).42

Table 10.2  Share of EU member states in Southeast Asian arms imports (in millions of US dollars and at constant 1990 prices) Country

Arms imports (total) 2007–2017 (in millions of US$)

Of which from EU member states (in millions of US$)

Of which from EU member states (%)

Brunei China (PRC) Indonesia Malaysia The Philippines Taiwan Vietnam

490 14,576 5,972 3,719 854 3,648 6,206

403 2,488 2,748 2,166 219 187 112

82 17 46 58 25.6 5 1.8

Source: “SIPRI Arms Transfers Database”, SIPRI (online), www.sipri.org/databases/arms transfers (accessed 1 March 2018).

164  Felix Heiduk The majority of Europe’s arms exports to the littoral states of the South China Sea concerned the naval sector. For example, Malaysia has decided to purchase six Littoral Combat Vessels from France. The on-board weapons systems for the vessels ordered by Malaysia were manufactured in Sweden. Vietnam purchased four Sigma Corvettes from the Netherlands. Indonesia ordered two Dutch frigates and obtained the associated Exocet anti-ship missiles from France. The frigates’ diesel engines in turn were built in Germany, and their weapons systems in Italy. German diesel engines also power Chinese submarines. Additionally, many of the recent armament deals between European arms firms and Southeast Asian customers, such as the frigate-deal between Indonesia and the Netherlands, include ­transfer-of-technology agreements (ToT), some of them extensive. Hence, Europe’s direct involvement in the military upgrading of the region challenges the widespread view in both Europe and Asia that the old continent plays no part in Southeast Asia’s “hard” (i.e. military) security policy. However thus far the arms export policies of EU member states have by and large been predominantly guided by commercial interests, while the strategic impact EU of arms exports on the military balance or on regional security has been widely neglected. Rather than to follow a coherent strategic approach to arms transfers, European states in reality often act as competitors over lucrative deals in Asia. As the granting or denying of arms exports is exclusively in the hands of the member states, a coherent EU policy on arms exports to the region is absent. The European Commission’s Southeast Asia paper of 2015, for example, touches on disarmament and the ATT (Arms Trade Treaty) in a mere half-sentence and does not even mention the EU’s arms exports to Southeast Asia.43

Conclusion EU representatives, as well as representatives of member states, have repeatedly stated that the EU has a major interest in a stable, peaceful South China Sea. Most of Europe’s trade with Asia transits through the South China Sea. China and the ASEAN states are, respectively, the EU’s second and third largest trading partners. Unlike other external actors like the US or Australia, the EU, with the exception of a comparatively small French and British navy presence in the Pacific, lacks any significant hard naval power capabilities in the region. The EU so far has been most active in the field of non-traditional security. It has sought to transfer its own ideas and experiences in conflict resolution, the management of the seas and their resources, and marine protection via multilateral forums to its partners in the region. Moreover, the EU perceives itself as a staunch promoter of international law and diplomacy in settling international disputes. The EU and its member states, however, have so far had very little impact on the conflict dynamics in the South China Sea conflict itself. A stronger engagement of the EU and its member states in the South China Sea conflict has been thwarted by a number of factors. First, threat

European powers and the South China Sea  165 perceptions held in Europe differ markedly from those of Asian states. Europe’s main perceived security threats do not stem from Asia, but from its immediate neighbourhood. This pertains to the threat of militant Islamist groups such as ISIS, the “refugee crisis,” and neighbouring countries such as Russia. China, on the other hand, is not predominantly perceived as a strategic competitor. Second, the dominant prism through which Europeans look at the South China Sea and the surrounding region is economic. Trade, investments, and commerce have so far taken priority over more strategic considerations. For the time being in their foreign policy conduct towards Asia, the European states rarely appear to integrate their respective economic and foreign and security interests into a more strategic approach. This lack of a strategic approach has become visible, for example, with regard to Europe’s role as a major arms exporter to Asia. Third, internal divisions inside the EU and a creeping “Chinfluence” have softened the stance of a number of EU member states towards China at EU level. This has become most visible in the aftermath of the SCS award. It has in turn further undermined the EU’s principled, rights-based approach to the South China Sea conflict. Despite demands for a stronger engagement in the South China Sea from member states like France, the paper finds that Europe’s ambiguity between a rights-based approach as promoted by Brussels, on the one hand, and individual states policy preferences, often driven by mainly economic considerations, on the other, are set to continue for the near future. As long as the EU lacks a Common Foreign and Security Policy (CFSP), and its member states locate their immediate foreign policy concerns geographically close to Europe, it will fall short of devising a coherent strategic approach to the South China Sea conflict anytime soon. Instead, individual member states, foremost France, will continue their bilateral efforts in the hope that other EU member states will eventually follow suit.

Notes 1 Stein Tønnesson, “An International History of the Dispute in the South China Sea” (Singapore: East Asian Institute, March 2001), 7. 2 Gerhard Will, “Distant Partners: Europe and the South China Sea”, in Power Politics in Asia’s Contested Waters, eds. E. Fels, Truong-Minh Vu (Heidelberg: Springer, 2016), 473. 3 Gisela Grieger, “China and the South China Sea Issue” (Brussels: European ­Parliamentary Research Service, September 2016). 4 CSIS, “How Much Trade Transits the South China Sea?” ChinaPower ­Project (blog), August 2, 2017, https://chinapower.csis.org/much-trade-transits-southchina-sea/. 5 Council of the European Union, “European Union Maritime Security Strategy” (Brussels, June 24, 2014). 6 Daniel Keohane, “The EU’s Role in East Asian Security,” in Look East, Act East: Transatlantic Agendas in the Asia Pacific, ed. Patryk Pawlak, ISS Report 13 (Paris: European Union Institute for Security Studies, 2012), 47; Bruno Hellendorff, “South China Sea Disputes: What Is in It for Europe?” European Geostrategy

166  Felix Heiduk (blog), 2014, www.europeangeostrategy.org/2014/06/south-china-sea-disputeseurope/. 7 European Union, “Shared Vision, Common Action: A Stronger Europe. A Global Strategy for the European Union’s Foreign and Security Policy” (Brussels, June 2016), 37. 8 Council of the European Union, “Guidelines on the EU’s Foreign and Security Policy in East Asia” (Brussels, 2012). 9 Mathieu Duchâtel, “Europe and Maritime Security in the South China Sea: Beyond Principled Statements?” Asia Policy 21, no. 1 (February 12, 2016): 54–58, doi:10.1353/asp.2016.0004. 10 European Union, “Shared Vision, Common Action: A Stronger Europe. A Global Strategy for the European Union’s Foreign and Security Policy.” 11 Federica Mogherini, “Public Lecture at the Rajaratnam School of International Studies (RSIS) in Singapore,” (August 3, 2018), www.federicamogherini. net/public-lecture-at-the-rajaratnam-school-of-international-studies-rsis-in-­ singapore/?lang=en. 12 Ursula von der Leyen, “Strengthening Regional Order in the Asia-Pacific” (May 31, 2015), /events/shangri-la-dialogue/shangri-la-dialogue-2015. 13 Angela Merkel, “Speech by Federal Chancellor Angela Merkel at the Lowy Institute for International Policy” (November 17, 2014), www.bundesregierung. de/breg-en/chancellor/speech-by-federal-chancellor-angela-merkel-at-the-lowy-­ institute-for-international-policy-601928. 14 Florence Parly, “Speech at Shangri-La Dialogue” (June 3, 2018), www.defense. gouv.fr/english/actualites/communaute-defense/f lorence-parly-shangri-ladialogue. 15 Ibid. 16 European External Action Service, “HR/VP Federica Mogherini Participates in the ASEAN Regional Forum and Holds Bilateral Meetings in Singapore” (Brussels, August 4, 2018), https://eeas.europa.eu/headquarters/headquartershomepage_en/49131/HR/VP Federica Mogherini participates in the ASEAN Regional Forum and holds bilateral meetings in Singapore. 17 Council of the European Union, “Declaration by the High Representative on Behalf of the EU on Recent Developments in the South China Sea” (Brussels, March 11, 2016), www.consilium.europa.eu/en/press/press-releases/2016/03/11/ hr-declaration-on-bealf-of-eu-recent-developments-south-china-sea/. 18 European Union, “Shared Vision, Common Action: A Stronger Europe. A Global Strategy for the European Union’s Foreign And Security Policy”; Council of the European Union, “Guidelines on the EU’s Foreign and Security Policy in East Asia.” 19 Ministry of Defence of France, “France and Security in the Asia-Pacific” (Paris, June 2016), p. 2, www.defense.gouv.fr/content/download/475376/7615622/ file/201606-PlaquetteAsiePacifiqueEN.comp.pdf. 20 Ministry of Defence of France, 6. 21 Jean-Yves Le Drian, “Speech Mr. Jean-Yves Le Drian, Minister of Defence, at the Shangri-La Dialogue” (Singapore, June 5, 2016), https://ae.ambafrance. org/Speech-Mr-Jean-Yves-Le-Drian-Minister-of-Defence-at-the-Shangri-La-­ Dialogue. 22 Gavin Williamson, “Raising the Bar for Regional Security Cooperation” (June 3, 2018), www.gov.uk/government/speeches/raising-the-bar-for-regionalsecurity-cooperation. 23 European Union External Action Service, “Opening Remarks by High ­Representative / Vice-President Federica Mogherini at the EU-ASEAN Post­M inisterial Conference” (Manila, August 7, 2017). https://eeas.europa.eu/

European powers and the South China Sea  167

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25

26

27 28

29 30

31

32 33 34 35 36

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headquarters/headquarters-homepage_en/30827/Opening Remarks by High ­Representative/Vice-President Federica Mogherini at the EU-ASEAN PostMinisterial Conference. European Union, “Joint Statement of the 20th EU-China Summit – EEAS – European External Action Service – European Commission” (Brussels, July 17, 2018), https://eeas.europa.eu/delegations/china_en/48424/Joint statement of the 20th EU-China Summit. The two missions were EUPOL Afghanistan, which ran from 2007 until the end of 2016, and the Aceh Monitoring Mission (AMM) in Aceh, Indonesia, which ran from 2005 to 2006. For an overview of all CSDP missions, see: https:// eeas.europa.eu/topics/military-and-civilian-missions-and-operations/430/ military-and-civilian-missions-and-operations_en. John Seaman, Mikko Huotari, and Miguel Otero-Iglesias, eds., Chinese Investment in Europe: A Country-Level Approach, Report by the European Think-Tank Network on China (ETNC), (Berlin: French Institute of International Relations (Ifri), Elcano Royal Institute, Mercator Institute for China Studie, 2017). Veronika Jozwiak, “China’s Role in Hungarian Foreign Policy,” Bulletin (Warzaw: The Polish Institute of International Affairs, July 21, 2017), www. pism.pl/publications/bulletin/no-71-1011. Theresa Fallon, “The EU, the South China Sea, and China’s Successful Wedge Strategy,” Asia Maritime Transparency Initiative (Washington DC: Center for Strategic and International Studies, October 13, 2016), https://amti.csis.org/ eu-south-china-sea-chinas-successful-wedge-strategy/. “EU’s Statement on South China Sea Reflects Divisions,” Reuters, July 15, 2016, www.reuters.com/article/southchinasea-ruling-eu-idUSL8N1A130Y. European Commission, “Declaration on the Award Rendered in the Arbitration between the Philippines and China” (Brussels, July 15, 2016), https://eeas. europa.eu/generic-warning-system-taxonomy/404_fr/6873/Declaration on the Award rendered in the Arbitration between the Philippines and China. Ministry of Foreign Affairs and Trade, “Statement on the Situation in the South China Sea” (Budapest, July 16, 2016), www.kormany.hu/en/ministryof-foreign-affairs-and-trade/news/statement-on-the-situation-in-the-southchina-sea. “Greece Blocks EU Statement on China Human Rights at U.N.,” Reuters, June 19, 2017, www.reuters.com/article/us-eu-un-rights/greece-blocks-eu-statementon-china-human-rights-at-u-n-idUSKBN1990FP. “Zeman Calls for ‘restart’ of Chinese Relations,” Prague Post, March 28, 2016, www.praguepost.com/czech-news/52415-zeman-calls-for-restart-of-chineserelations. “Trump’s Message to Tsipras: US May up Investment in NATO Ally Greece,” CNBC, October 17, 2017, www.cnbc.com/2017/10/17/trumps-message-to-tsiprasus-may-up-investment-in-nato-ally-greece.html. European External Action Service and ASEAN, 3. Matthieu Burnay and Marta Hermez, “The South China Sea: Rule of Law as a Tool of Preventive Diplomacy,” in Prevention Better than Cure: The EU’s Quiet Diplomacy in Asia, eds. Eva Pejsova and Guy Banim, Issue Report No. 33 (Paris: EUISS, 2017), 42, www.iss.europa.eu/content/prevention-better-curetheeu%E2%80%99s-quiet-diplomacy-asia. European External Action Service and ASEAN, “ASEAN-EU Plan of Action (2018–2022),” 3. Prashanth Parameswaran, “What’s Next for Vietnam-France Military Cooperation?” The Diplomat, January 13, 2018, https://thediplomat.com/2018/01/ whats-next-for-vietnam-france-military-cooperation/.

168  Felix Heiduk 39 Michael Peck, “The Next South China Sea Crisis: China vs. Britain and France?” The National Interest, June 9, 2018, https://nationalinterest.org/blog/the-buzz/ the-next-south-china-sea-crisis-china-vs-britian-france-26189. 40 European Union, “Implementing the EU Global Strategy—Year 2” (Brussels, June 2018). 41 European Commission, “Second Report on the Implementation of the EU Maritime Security Strategy Action Plan” (Brussels, June 14, 2017). 42 For example, only six exporters currently divide up the (growing) global market for submarines between themselves: China, France, Germany, South Korea, Sweden, and Russia. Japan joined the circle in 2015 but has concluded no export deals to date (as of March 2018). 43 Felix Heiduk, An Arms Race in Southeast Asia? Changing Arms Dynamics, Regional Security and the Role of European Arms Exports (Berlin: Stiftung Wissenschaft und Politik, 2017).

11 International law, force, and coercion in the South China Sea Constantinos Yiallourides

Introduction Few issues have become the focus of such heated contestation and conflict amongst states than the determination of disputed claims of territorial sovereignty (generically referred to in this chapter as “territorial disputes”).1 In international law, sovereignty constitutes the ultimate authority over a territory, be it continental or island.2 The notion of territory is a concomitant of a state’s sovereignty, namely those geographical areas over which sovereign authority may be exercised to the exclusion of all other states.3 The fundamental norms of sovereignty and territorial integrity enable a state with sovereignty over a given territory to act freely over that territory and to prevent other states from acting upon it. The same norms protect the sovereign state from unilateral territorial incursions and violations of its territory by other states.4 But what if that state’s territory is disputed by another state and there is no clear answer as to which state has sovereignty over the territory in question? In practice, states might often disagree over the definition of the course of a land boundary (i.e. delimitation) or over the way it is positioned on the ground (i.e. demarcation). However, not all territorial disputes are mere boundary problems relating to the delimitation or demarcation of a land boundary line. Territorial disputes can involve much wider issues than just the location of a land boundary. For instance, a territorial dispute may involve competing claims of sovereignty over an island and parallel disputes over the exercise of sovereign rights in surrounding ocean space and the exploitation of offshore natural resources. The South China Sea is an illustrative example of such multidimensional territorial dispute with several states claiming both territorial and maritime areas as well as underlying natural resources. At some point, the sovereignty status of the disputed territorial features has to be settled for the territory in question and surrounding ocean space (e.g. territorial sea) to be attributed; until then the essential basis for the protection of sovereignty, namely a title to territory, remains obscure.5 This raises several important legal questions, the chief among which, and indeed the crux of the South China Sea territorial disputes, is whether or not, a

170  Constantinos Yiallourides claimant state can lawfully establish a military presence on disputed territorial features to the exclusion of other claimant states and what other claimant states can do in response? Whichever way it is addressed, this question has far-reaching practical implications for a number of areas of international law, extending beyond the possibility of self-defence, to the possibility of countermeasures and the law relating to state responsibility. This chapter combines an examination of international jurisprudence and state practice in addressing three separate legal issues that have arisen in the context of disputes over territory with a special focus on the South China Sea: (1) the applicability of the rules on the use of force to territorial disputes; (2) the legality, or illegality, of establishing a military presence on a disputed territory as a means of coercion; and (3) the implications, as a matter of law, of characterizing such coercive conduct as a prohibited use of force.

The applicability of the rules on the use of force to territorial disputes The principle that force must not be used or threatened to be used to settle international disputes, including territorial disputes, is well established under both treaty law and customary international law. It is embodied in Article 2(4) of the UN Charter, which provides that All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations6 The obligation in Article 2(4) supplements Article 2(3) of the UN Charter, which requires states to settle their disputes through peaceful means.7 The rules of international law on the use of force make no exception in respect of disputed territories and territories not subject to dispute. According to the Eritrea-Ethiopia Claims Commission, recognizing such an exception would significantly weaken the fundamental rule of international law prohibiting the use of force.8 This finding was restated in the Guyana/Suriname arbitration of 2007.9 In this case, Surinamese naval vessels boats had threatened Guyana’s concessionaires operating an oil rig in the disputed areas to “leave the area in 12 hours” or “the consequences will be [theirs].”10 Suriname believed it had a valid claim to the area in question and, thus, that it had the right to forcibly expel the operators of the rig as part of legitimate law enforcement measures.11 The Guyana/Suriname arbitral tribunal found that the action by Surinamese Navy was more akin to a threat of force than a law enforcement activity.12 While this is a law of the sea case, it is remarkable in that a threat of force by Suriname within the maritime area it claimed, also represented a breach of Article 2(4) of the UN Charter, which the Guyana/

International law, force, and coercion  171 Suriname arbitral tribunal found remains applicable in the context of both territorial and maritime boundary disputes.13 That the prohibition of the use of force applies to territorial disputes is also supported by state practice, as shown in the following indicative examples. The UN Security Council Resolutions 242 (1967)14 and 298 (1971),15 adopted in response to the Israeli-Palestinian conflict, stressed the inadmissibility of acquiring territory by force whilst calling for the “[w]ithdrawal of Israel armed forces from territories occupied in the recent conflict” and “[t]ermination of all claims or states of belligerency.”16 The majority of the members of the Security Council strongly condemned Argentina’s 1982 military invasion of the Falkland Islands, to recover them from the United Kingdom, whose title over the Falklands Argentina rejected.17 In relation to the military conflict in the former Yugoslavia, the UN Security Council also restated the inadmissibility of the alteration of international boundaries through the use force.18 In connection to the armed conflict between Eritrea and Ethiopia over the disputed town of Badme, the Security Council passed Resolution 1177 (1998) expressing its “grave concern at the conflict” and stressing that “the use of armed force was not acceptable as a means of addressing territorial disputes or changing circumstances on the ground [emphasis added].”19 In 1999, after the conflict escalated to a full-scale war, the Security Council, in Resolution 1227 (1999), condemned the recourse to force by Ethiopia and Eritrea and demanded an immediate end to the hostilities.20 That the use of force as a means of acquiring territory and settling international disputes, including disputes over territory, is contrary to international law, is stipulated in the “Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations” (“Declaration on Friendly Relations”). This provides that Every State has the duty to refrain from the threat or use of force to violate the existing international boundaries of another State or as a means of solving international disputes, including territorial disputes and problems concerning frontiers of States. [emphasis added]21 Therefore, a threat or use of force by one state against another would not escape the scope of Article 2(4) of the UN Charter simply because it takes place in, or is directed at, a disputed territory. As the Eritrea-Ethiopia Claims Commission and the Guyana/Suriname arbitral tribunal respectively confirmed, the legal status of the territory in question (delimited or undelimited, demarcated or not clearly demarcated, disputed or not subject to a dispute) does not affect the characterization of a certain conduct as a threat or use of force in the sense of Article 2(4) of the UN Charter.22

172  Constantinos Yiallourides Last but not least, the Association of Southeast Asian Nations (ASEAN) issued a Declaration on 22 July 1992 calling for the “resolution of all sovereignty and jurisdictional issues pertaining to the South China Sea by peaceful means, without resort to force.”23 Furthermore, in the “ASEAN Declaration on the Conduct of Parties in the South China Sea,” adopted on 4 November 2002, both ASEAN and China underscored their commitment “to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force.”24 Although these are non-legally binding declarations in the sense that they do not produce legally enforceable obligations, nonetheless they are important evidence of the parties’ general opinion and legal perception of the existence of territorial and jurisdictional disputes in the South China Sea and the applicability of the rules of international law on the use of force to those disputes. Moreover, the legally binding “Treaty of Amity and Cooperation in Southeast Asia,” adopted on 24 February 1976 and entered into force on 26 April 2012, provides The High Contracting Parties shall have the determination and good faith to prevent disputes from arising. In case disputes on matters directly affecting them should arise, especially disputes likely to disturb regional peace and harmony, they shall refrain from the threat or use of force and shall at all times settle such disputes among themselves through friendly negotiations.25 It is clear, therefore, that both ASEAN members and China have undertaken legally binding commitments to refrain from the threat or use of force in relation to “disputes likely to disturb regional peace and harmony,” including ostensibly the South China Sea territorial disputes.26

Military deployment in a disputed territory as a means of coercion Tensions in the South China Sea have steadily increased in recent years in light of China’s enhanced island building activities, conducted to make room for what is now military facilities, equipped with airstrips, electronic warfare equipment, and long-range anti-ship and anti-air missiles.27 In response to the placement of weapons systems on the disputed features, the Defense Ministers of Australia, Japan, and the US issued a joint statement on 3 June 2018, conveying their governments’ “strong opposition to the use of force or coercion as well as unilateral action to alter the status quo, and to the use of disputed features for military purposes in the South China Sea.”28 Moreover, US Defense Secretary Jim Mattis accused China of using its military “for the purposes of intimidation and coercion” and warned there would be “consequences” if it continued.29 According to ­Mattis, “[d]espite China’s claims to the contrary, the placement of these weapons systems is

International law, force, and coercion  173 tied directly to military use for the purposes of intimidation and coercion.”30 On 23 February 2019, Taiwan’s President Tsai Ing-wen went a step further to issue a warning about “China’s aggression and ambitions” towards Taiwan, the region, and worldwide.31 She noted that “[a]ny country in the region - if it no longer wants to submit to the will of China, they would face similar military threats.” The choice of this particular language, particularly the use of word “coercion” in relation to China’s militarization and placement of weapon systems on the Spratlys is important and may carry far-reaching implications in international law. “Coercion” is one of the criteria by which the actions of a state can be deemed to be in violation of the prohibition on the use of force in international law, as laid out in Article 2(4) of the UN Charter. As a matter of law, the essential feature which characterizes the prohibition of the use of force is the “application of military force as a means of coercion [emphasis added].”32 Coercion reflects the objectively discernible aim or effect of “forcing the will of another state” to accept a new status quo, according to use of force specialist Professor Olivier Corten.33 Identifying the element of “coercion” becomes particularly relevant in situations where troop deployment in, and occupation of, a disputed territory is not accompanied by the use of non-violent armed force, such as the “swift” takeover of Goa by India in 1961,34 the annexation of Crimea by Russia in 2014,35 and the United Arab Emirates’ non-violent military deployment and occupation of the Yemeni Island of Socotra in 2018.36 This is largely because, even in situations where no shots are fired and no damage is inflicted to people or property (often referred to as “bloodless invasions”), the deployment of military forces in the disputed territory by one claimant is likely to create a fait accompli that coerces the other claimants into accepting the new situation on the ground and, as Mikanagi explains, “makes it materially impossible for other claimants to restore the status quo ante without risking human injury or damage to property.”37 As an example, in its 2004 advisory opinion on the Israeli Wall case, the International Court of Justice (ICJ) found, by 14 votes to 1, that the construction of the wall by Israel “in the Occupied Palestinian Territory, including in and around East Jerusalem” was an acquisition of territory through force, in contravention of Article 2(4) of the UN Charter. In spite of the assurance given by Israel that the wall was temporary, the ICJ found that “the construction of the wall created a fait accompli on the ground that could well become permanent”—as has proved to be the case—which would be “tantamount to de facto annexation.”38 The ICJ found that Israel was under a duty to cease construction of the wall and dismantle the parts that extend past the Green Line into the West Bank, including East Jerusalem.39 Whilst the Israeli Wall advisory opinion has no binding force on the parties,40 it does nonetheless provide an authoritative and a legally reasoned exposition which makes it clear that an “occupying state does not acquire sovereignty over the occupied territory but is, rather, subject in its administration of the

174  Constantinos Yiallourides territory to a number of substantial limitations upon its power and authority imposed by international law.”41 According to Sir Arthur Watts, while Israel and a handful of other states rejected the advisory opinion, “the great majority of the international community accepted it as a valuable statement of the legal position.”42 As another relevant example, although in 2015 the ICJ avoided ruling on whether Nicaragua had used force in sending and deploying troops in a territory disputed with Costa Rica,43 Judge Robinson provided a separate opinion on this question and said, “[n]o shots need be fired, no heavy armaments need be used and certainly no one need be killed before a state can be said to have violated the prohibition.”44 He also posited that the “intention and purpose” and the “motivations” of the intruding state are amongst the relevant factors that may be considered when judging whether an unlawful incursion in the disputed area, even when not accompanied by an actual armed confrontation, falls within the scope of Article 2(4).45 In that particular case, the combination of the “prolonged presence” of Nicaragua’s military camps and personnel in the disputed territory, its refusal to withdraw its troops from the disputed territory, and the “pointing of weapons” at the Costa Rican aircraft clearly signalled Nicaragua’s “coercive purpose,” namely its “readiness to apply force, whenever Nicaragua considered it necessary” as a means “to challenge Costa Rica’s sovereign rights.”46 According to Judge Robinson, Nicaragua’s conduct warranted a finding of use of force in breach of Article 2(4) of the UN Charter.47 Judge Owada opined, likewise, that “it would have been more appropriate for the Court to have gone further by declaring that these internationally wrongful acts by Nicaraguan authorities constituted an unlawful use of force under Article 2(4) of the United Nations Charter” because the action of Nicaragua sought to “alter the existing status quo through unilateral means.”48 Therefore, for these reasons it is possible to argue that despite China’s assurances that it “will not resort to the use of force” to resolve its territorial disputes,49 its unilateral land reclamation activities and continuous military build-up in the disputed territories necessarily create a fait accompli on the ground and coerce the other claimant parties into accepting the new status quo. Indeed, by militarizing the disputed islands, China presents its opponents a Hobson’s choice of falling into line with the new territorial status quo, or facing a costly war with a powerful state, strategically positioned in the region.50 Even after an international tribunal, constituted under U ­ NCLOS, invalidated China’s maritime entitlements in the South China Sea through an award in 2016, China has continued to steadily and progressively expand its military assets in the region.51 According to leading political scientist Professor M. Taylor Fravel, China’s use of force in its territorial disputes aims “to create a reputation for toughness over territory and deter its opponents in all other disputes.”52 This reputational logic fits nicely in the South China Sea context where

International law, force, and coercion  175 several states compete over a host of issues, thus, a powerful state like China might choose to apply force in a territorial dispute with a rival not necessarily to strengthen its position in the territorial dispute but to coerce that rival, and other rivals, over other issues, such as trade and energy resources. The territorial dispute becomes, in essence, “a proxy for the broader rivalry.”53 China’s decision to attack and to seize Vietnamese-held hilltops on the ­China-Vietnam border in 1979 and China’s occupation of all of the disputed Paracels features since the 1974 clash with South Vietnam are ample examples of China’s coercive purpose especially since Vietnam lacks the means to challenge China militarily.54

Legal implications Having outlined the specific contours of the prohibition on the use of force in the particular context of the South China Sea territorial disputes, it is important to ascertain why does this categorization matter in international law? What difference does it make, as a matter of law, to qualify China’s actions in the South China Sea as a use of force in the sense of Article 2(4) of the UN Charter? First, qualifying China’s military actions in the Spratlys as a use of force under international law opens up the possibility that forcible action in self-defence may be taken in response to it. However, self-defence is only justified in the face of an armed attack (Article 51 of the UN Charter), which is, as the ICJ stated in Nicaragua v United States, one of “the most grave forms of use of force” and which would have to be distinguished from other “less grave forms.”55 China’s use of force is, relatively speaking, of too small a scale to qualify as an armed attack in a legal sense, but is instead part of a pattern of progressive military actions and activities which lead cumulatively to a strategic territorial transformation in China’s favour.56 Thus, even if each single military deployment alone is insufficiently grave to be regarded as an armed attack, when taken cumulatively, these actions may come within the scope of an armed attack envisaged in Article 51 of the UN Charter (the so-called accumulation of events doctrine).57 A commentator notes that very few states have expressly endorsed this doctrine but in the Oil Platforms case, the ICJ seemed inclined to accept it, hence, its statement, that “even taken cumulatively” a series of incidents did not qualify as an armed attack on the US.58 Thus, there seems to be a trend towards the recognition of the “accumulation doctrine.”59 Indeed, an armed attack can be effected, not only when a full-scale, “all-out” type of armed attack has been initiated on the disputed territory, but also when smaller units of a claimant state’s military forces take over the territory in question, and strategically position themselves in key locations and, thus, gain an important strategic advantage vis-à-vis another claimant state. In such a case, as Dinstein suggests, it would be fallacious to deny the right of the victim state to take forcible action in self-defence that complies with the conditions of necessity and proportionality.60

176  Constantinos Yiallourides Second, a breach of the obligation enshrined in Article 2(4) of the UN Charter gives rise to state responsibility and imposes the duty on the violator to cease the unlawful behaviour and guarantee non-repetition.61 The rules concerning the law of state responsibility are codified in the International Law Commission’s (ILC) Articles on State Responsibility (adopted in 2001)62 and endorsed by consensus by the General Assembly Resolution 56/83 2002).63 According to a commentator, “the 2001 ILC Articles represent the starting point for a discussion on the application of the law of state responsibility to territorial disputes.”64 It is instructive that among the examples of continuing wrongful acts given by the ILC is that of the “unlawful occupation of part of the territory of another state or stationing armed forces in another state without its consent.”65 Third, a violation of the prohibition of the use of force might open the door for third-party countermeasures. There is a wide consensus that the prohibition on the use of force is an obligation erga omnes (i.e. an obligation under general international law which a state owes to the “international community as a whole”).66 Where a breach of an erga omnes obligation occurs, this means all other states are entitled to take non-forcible countermeasures to bring the breach to an end, just as if they were directly injured by that use of force.67 There are various examples in state practice demonstrating that states can respond to breaches of obligations erga omnes by resorting to lawful countermeasures: The sanctions imposed by the US against the Soviet Union because they regarded the latter as responsible for a threat to international peace by amassing its troops along the Polish border in 198168; the sanctions imposed by the European community against Argentina following its armed invasion of the Falkland Islands in 1982, which was condemned as a “breach of the peace” by the UN ­Security Council69; and the sanctions imposed by the European Union and the US against Russia for annexing Crimea and intervening in Eastern Ukraine in 2014.70 Accordingly, if China’s unilateral deployment of military forces in the Spratlys qualifies as a use of force against other claimant states, hence constituting a breach of an erga omnes norm, third-party states can, even if they are not specially affected by the breach, invoke China’s international responsibility. This would mean that states, other than the South China Sea claimants (i.e. Vietnam, the Philippines, Malaysia, Brunei, and Taiwan), can also impose an array of sanctions on China. Whether any states are prepared to take such countermeasures remains to be seen.

Conclusion and recommendations Territorial disputes are more prone to escalation and armed conflict that any other type of international dispute; their resolution, or at least containment, is essential to international peace and security. Under the UN Charter and customary international law, the resort to force is never an acceptable means of altering an existing territorial status quo, including in situations

International law, force, and coercion  177 of disputed territories. The UN Charter system prohibits the use of force for territorial expansion on the ground.71 Forcible means cannot be used to gain control over a disputed territory or to alter in any way the existing factual situation on the ground in the aggressor state’s favour, pending the full and final resolution of the territorial dispute. This obligation applies to the South China Sea territorial disputes. Island reclamation and an advanced military build-up on disputed territorial features is likely to create a fait accompli that could well become permanent since it makes it materially impossible for other claimants to restore the status quo ante without themselves engaging in forcible means. Overall, this chapter strengthens the idea that states involved in territorial disputes must exercise maximum restraint and refrain from any unilateral military action aimed at changing the character of the disputed territory through coercion. Preserving the existing territorial status quo also helps to preserve the integrity and effectiveness of the final resolution of the territorial dispute, whether through judicial or diplomatic means. The duty to exercise restraint has featured prominently in recent jurisprudence featuring border and cross-border military activities or the actual use of force between states. State practice also confirms that parties to a territorial dispute, expressly or impliedly, recognize the requirement to exercise restraint in the disputed area pending the final settlement of the dispute.72

Notes 1 ‘A territorial dispute can be defined as a legal dispute between two or more states over the acquisition or attribution of territory (continental or island), or to the creation, location and effect of territorial boundaries’, see Yiallourides, Gehring and Gauci (2018) 3–4; On the distinction between ‘boundary disputes’, ‘delimitation disputes’, and ‘territorial disputes’ more broadly, see Victor Prescott and Gillian Triggs, International Frontiers and Boundaries (BRILL 2008) 138–140; Anthony Oye Chukwurah, The Settlement of Boundary Disputes in International Law (Manchester University Press 1967) 6; Norman Hill, Claims to Territory in International Law and Relations (Oxford University Press 1945) 25; Surya Prakash, Territorial Acquisition, Disputes and International Law (Springer 1997) 21–8; Hugh Thirlway, ‘Territorial Disputes and Their Resolution in the Recent Jurisprudence of the International Court of Justice’ (2018) 31(1) Leiden Journal of International Law 117–146. 2 Besson defines sovereignty as the ‘supreme authority within a territory’ pursuant to which states can enjoy ‘the plenitude of internal jurisdiction, their immunity from other states’ own jurisdiction and their freedom from other states’ intervention on their territory (Art. 2 (4) and (7) UN Charter), but also their equal rank to other sovereign states’, Samantha Besson, ‘Sovereignty’ in Max Planck Encyclopedia of Public International Law (online edition, updated 2011) paras 1–2 http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/ law-9780199231690-e1472?prd=EPIL. 3 ‘[O]ne of the essential elements of sovereignty is that it is to be exercised within territorial limits, and that, failing proof to the contrary, the territory is co-­ terminous with the Sovereignty’, North Atlantic Coast Fisheries Case (1910) 948; see also Malcolm Shaw, Title to Territory in Africa (Clarendon Press 1986) 1–11.

178  Constantinos Yiallourides 4 Island of Palmas Case (or Miangas) (United States v Netherlands) (Award) (1928) II Reports of International Arbitral Awards 829; Santiago Torres Bernárdez, ‘Territorial Sovereignty’ in Encyclopedia of Public International Law Vol 10 (North Holland 1987) 487–494; Territorial integrity constitutes, according to the ICJ, ‘an essential foundation of international relations’ and ‘an important part of the international legal order’, Corfu Channel [1949] para 35; Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 403. 5 Yiallourides, Gehring and Gauci (2018) 3–4. 6 Charter of the United Nations (signed 26 June 1945; entered into force 1 August 1965) (1945) 1 United Nations Treaty Series XVI [hereafter, UN Charter]. 7 It is worth mentioning here that Art 279 of UNCLOS provides that ‘States Parties shall settle any dispute between them concerning the interpretation or application of this Convention by peaceful means in accordance with Article 2, paragraph 3, of the Charter of the United Nations [emphasis added]’. 8 Eritrea-Ethiopia Claims Commission, Partial Award, Jus ad Bellum: Ethiopia’s Claims 1–8 (19 December 2005) para 10. 9 Guyana/Suriname Arbitration (Annex VII Tribunal) (Award) (2007) 47 International Law Reports 166 para 423. 10 Ibid., paras 433, 445. 11 Ibid., para 433. 12 Ibid., paras 433, 445. 13 Ibid., paras 423, 483–484. 14 Security Council Resolution 242 (1967) (22 November 1967) – adopted unanimously, https://unispal.un.org/unispal.nsf/0/7D35E1F729DF491C85256EE7006 86136 15 Security Council Resolution 298 (1971) (25 September 1971) – only Syria abstained, https://unispal.un.org/DPA/DPR/unispal.nsf/0/441329A958089EAA852 560C4004EE74D 16 Security Council Resolutions 242 (1967) (22 November 1967) and 298 (1971) (25 September 1971). 17 Security Council Official Records S/PV 2345 (1 April 1982); Security Council Official Records S/PV 2346 (2 April 1982); Security Council Resolution 502 (3 April 1982) noted that the ‘invasion on 1982 by armed forces of Argentina’ and demanded Argentina to withdraw its forces from the Falklands; Security Council Resolution 505 (26 May 1982), noting ‘with the deepest concern that the situation in the region of the Falkland Islands (Islas Malvinas) has seriously deteriorated’. 18 Security Council Resolutions 752 (15 May 1992) and 757 (30 May 1992), ‘no territorial gains or changes brought about by violence are acceptable’. 19 Security Council Resolution 1177 (26 June 1998). 20 Security Council Resolution 1227 (10 February 1999). 21 ‘Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations’ 2625 (XXV) (24 October 1970). 22 Eritrea-Ethiopia Claims Commission, Partial Award, Jus ad Bellum: Ethiopia’s Claims 1–8 (19 December 2005) para 10; Guyana v Suriname (2007) para 423. 23 ASEAN Declaration on the South China Sea (adopted 22 July 1992) https:// cil.nus.edu.sg/wp-content/uploads/formidable/18/1992-ASEAN-Declarationon-the-South-China-Sea.pdf; for a discussion, see R C Severino, ‘ASEAN and the South China Sea’ (2010) 6(2) Security Challenges 37–47. 24 ASEAN Declaration on the Conduct of Parties in the South China Sea (adopted 4 November 2002) https://asean.org/?static_post=declaration-on-the-conductof-parties-in-the-south-china-sea-2.

International law, force, and coercion  179 25 Art 13, Treaty of Amity and Cooperation in Southeast Asia (signed 24 February 1976; entered into force 26 April 2012) http://ec.europa.eu/world/agreements/ prepareCreateTreatiesWorkspace/treatiesGeneralData.do?step=0&redirect= true&treatyId=9261. At the time of writing this paper, contracting parties to the Treaty of Amity are the following: the European Union, Australia, Bangladesh, Brunei, Cambodia, China, Democratic People’s Republic of Korea, East Timor, France, India, Indonesia, Japan, Laos, Malaysia, Mongolia, New Z ­ ealand, ­Pakistan, Papua New Guinea, the Philippines, Republic of Korea, Russia, Singapore, Sri Lanka, Thailand, Turkey, the US, and Vietnam. 26 Tomohiro Mikanagi, ‘Establishing a Military Presence in a Disputed Territory: Interpretation of Article 2(3) and (4) of the UN Charter’ 67(4) (2018) International and Comparative Law Quarterly 1021–1034. 27 Oliver Holmes, ‘South China Sea Images Reveal Impact on Coral of Beijing’s Military Bases’ (The Guardian 2018) www.theguardian.com/world/ng-interactive/ 2015/sep/17/south-china-sea-images-reveal-impact-on-coral-of-beijingsmilitary-­b ases; Daniel Bishton, ‘Spratly Islands Military Bases Revealed (Spatial Source 2018) www.spatialsource.com.au/gis-data/satellite-images-reveal-­ completed-military-bases-spratly-islands; Ankit Panda, ‘South China Sea: China Deploys Jamming Equipment’ (The Diplomat 2018) https://thediplomat. com/2018/04/south-china-sea-china-deploys-jamming-equipment/; Steven Stashwick, ‘China Deploys Long-Range Anti-Ship and Anti-Air Missiles to Spratly Islands For First Time: Missiles Are Unambiguous ‘Militarization’ of Disputed Islands’ (The Diplomat 2018) https://thediplomat.com/2018/05/china-deployslong-range-anti-ship-and-anti-air-missiles-to-spratly-islands-for-first-time/; Hannah Beech, ‘China’s Sea Control Is a Done Deal, ‘Short of War with the U.S.’ (The New York Times 2018) www.nytimes.com/2018/09/20/world/ asia/south-china-sea-navy.html?smprod=nytcore-ipad&smid=nytcore-ipadshare. 28 Joint Statement—Australia–Japan–United States Defence Ministers Meeting (3 June 2018) www.minister.defence.gov.au/minister/marise-payne/statements/ joint-statement-australia-japan-united-states-defence-ministers. 29 The Telegraph, ‘US Defense Secretary Mattis accuses China of “intimidation and coercion” in South China Sea’ (12 June 2018) www.telegraph.co.uk/news/2018/ 06/02/us-defense-secretary-mattis-accuses-china-intimidation-coercion/. 30 Ibid. 31 Matt Rivers, Steven Jiang and Ben Westcott, ‘Facing an Aggressive Beijing, ­Taiwan’s President Issues a Warning to the World’ (CCN, 21 February 2019). 32 O Dörr, ‘Use of Force, Prohibition of’, in Rüdiger Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (Oxford University Press 2012) 607; see also C Tomuschat ‘Purposes and Principles, Article 2 (3)’ in B Simma and others (eds), The Charter of the United Nations: A Commentary, Volume I (3rd edn, Oxford University Press 2012) para 19. 33 Olivier Corten, The Law Against War: The Prohibition on the Use of Force in Contemporary International Law (Bloomsbury Publishing 2010) 76–77. 34 Keesing’s Record of World Events (formerly Keesing’s Contemporary Archives), Volume 8, 1962: 18623. 35 Jeffrey Mankoff, ‘Russia’s Latest Land Grab’ (Foreign Affairs, 2014) www.foreign affairs.com/articles/russian-federation/2014-04-17/russias-latest-land-grab; for a legal analysis, see Mary Ellen O’Connell, ‘The Crisis in Ukraine 2014-’ in Olivier Corten and Tom Ruys (eds) International Law and the Use of Force: A CaseBased Approach (Oxford University Press 2018). 36 Al-Jazeera News, ‘UAE Forces Occupy Sea and Airports on Yemen’s Socotra’ (5 May 2018) www.aljazeera.com/news/2018/05/uae-forces-occupy-sea-airportsyemen-socotra-180504181423573.html.

180  Constantinos Yiallourides 37 On the definition and meaning of ‘coercion’ in the context of territorial disputes, see Mikanagi (2018) 1–13. 38 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136 paras 87, 121. 39 Ibid., paras 149–151; for a commentary, see Geoffrey R Watson, ‘The “Wall” Decisions in Legal and Political Context’ (2005) 99 American Journal of International Law 6–26. 40 Hugh Thirlway, ‘Advisory Opinions’ in in Max Planck Encyclopedia of Public International Law (online edition, updated 2006) http://opil.ouplaw.com/ abstract/10.1093/law:epil/9780199231690/law-9780199231690-e4?rskey=lXEuxp 41 Sir Arthur Watts, ‘Israeli Wall Advisory Opinion (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory)’ in in Max Planck Encyclopedia of Public International Law (online edition, updated 2007) para 44 http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law9780199231690-e150?rskey=bEdPo4&result=32&prd=OPIL 42 Ibid., para 43. 43 For a brief factual background, see Thomas Escritt, ‘Nicaragua Must Compensate Costa Rica for Territory Violations’ (Reuters 2015) www.reuters.com/ article/us-costa-rica-nicaragua-court-idUSKBN0TZ2D420151216. 44 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica) (Judgment) (Sep Op Judge Robinson), paras 43, 58–59. 45 Ibid. 46 Ibid., para 62. 47 Judge Robinson criticized the Court for not making an express and discrete finding on the claim that the prohibition of the use of force had been breached as a result of Nicaragua’s ‘army encampment’ and presence of military personnel within the disputed territory, ibid para 63. 48 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica) (Judgment) (Sep Op Judge Owada) paras 10–12. 49 BBC News Asia Pacific, ‘China “Will Not Use Force” in South China Sea Disputes’ (14 June 2011) www.bbc.co.uk/news/world-asia-pacific-13759253; see also Andrew Chubb, ‘The South China Sea: Defining the “Status Quo”’ (The Diplomat 2015) https://thediplomat.com/2015/06/the-south-china-sea-defining-thestatus-quo/. 50 Brahma Chellaney, ‘Camouflaging Stealth Aggression as Defence’ (The National 2018) www.thenational.ae/opinion/comment/by-camouflaging-stealth-­ aggression-as-defence-china-offers-a-hobson-s-choice-of-suffering-territorialloss-or-facing-a-costly-war-1.742608. 51 The South China Sea Arbitration (Philippines v China) (Merits) (Award of 12 July 2016); because of China’s declaration under Article 298 of UNCLOS, the South China Sea Arbitral Tribunal had no jurisdiction to deal with military-related activities and so the Philippines refrained from raising the issue of the use of force in the proceedings. 52 M. Taylor Fravel, ‘Power Shifts and Escalation: Explaining China’s Use of Force in Territorial Disputes’ (2008) 32(3) International Security 44, 79–81. 53 Ibid. 54 Ibid. 55 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Judgment) [1986] ICJ Rep 14 para 228; see also Armed Activities on the Territory of the Congo (Congo v Uganda) (Judgment) [2005] ICJ Rep 168 para 191; for a commentary, see Karl Zemanek, ‘Armed Attack’ in Max Planck Encyclopedia of Public International Law (online edition, updated 2013) http:// opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e241.

International law, force, and coercion  181 56 According to Professor Alexander Vuving, ‘China’s militarization of the South China Sea has been a gradual process, with several phases where alternative actions by the US, as well as other countries, could have changed the course of history’. Chief among these moments was ‘China’s takeover of Scarborough Shoal’, see Hannah Beech, ‘China’s Sea Control Is a Done Deal, ‘Short of War with the U.S.’ (The New York Times 2018) www.nytimes.com/2018/09/20/world/asia/ south-china-sea-navy.html?smprod=nytcore-ipad&smid=nytcore-ipad-share. 57 For a discussion, see Tarcisio Gazzini, The Changing Rules on the Use of Force in International Law (Manchester University Press 2006) 144. 58 Christian J. Tams, ‘The Use of Force against Terrorists’ (2009) 20(2) European Journal of International Law 359, 388; Case Concerning Oil Platforms (Islamic Republic of Iran v United States of America) (Judgment) (Sep Op Simma) [2003] ICJ Rep 161 paras 13–14. 59 Tams, ibid. 60 Yoram Dinstein, War, Aggression and Self-Defence (3rd edn, Cambridge University Press 2001) 174–175. 61 James R Crawford, ‘State Responsibility’ in Max Planck Encyclopedia of Public International Law (online edition, updated 2006) http://opil.ouplaw.com/ view/10.1093/law:epil/9780199231690/law-9780199231690-e1093?rskey=aF3dkS& result=1&prd=OPIL 62 James R Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge University Press 2002) 96–197. 63 General Assembly Resolution 56/83 (28 January 2002) www.un.org/ga/search/ view_doc.asp?symbol=A/RES/56/83 64 Enrico Milano, ‘Territorial Disputes, Wrongful Occupations and State Responsibility: Should the International Court of Justice Go the Extra Mile’ (2004) 3 Law and Practice of International Courts and Tribunals 509, 512. 65 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries (2001) 2(2) Yearbook of the International Law Commission 31, 60. 66 Barcelona Traction, Light and Power Co Ltd (Belgium v Spain) (Second Phase) [1970] ICJ Rep 3; Jochen A Frowein, ‘Obligations Erga Omnes’ in Max Planck Encyclopedia of Public International Law (online edition) paras 11–13 http:// opil.ouplaw.com/abstract/10.1093/law:epil/9780199231690/law-9780199231690e1400?prd=EPIL, citing Art 54, United Nations International Law Committee ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries’ (2001) GAOR 56th Session Supp 10, 43; and Art 5, Institut de Droit International ‘Resolution on Obligations Erga Omnes in International Law’ (2005) 71(2) Annuaire de l’Institut de Droit International 286. 67 see Christian J Tams, Enforcing Obligations Erga Omnes in International Law (Cambridge Studies in International and Comparative Law 2005). 68 Lee Lescaze, ‘Reagan Takes Economic Action Against Poland’ (The Washington Post 1981) www.washingtonpost.com/archive/politics/1981/12/24/reagan-takeseconomic-action-against-poland/77d14879-cc44-4682-bc3f-5717c70bc845/?nore direct=on&utm_term=.c4e999831e5e. 69 Raymond Walter Apple Jr., ‘Europeans Ending Argentine Imports in Falkland Crisis’ (The New York Times 1982) www.nytimes.com/1982/04/11/world/­ europeans-ending-argentine-imports-in-falkland-crisis.html. 70 BBC News, ‘Ukraine Crisis: Russia and Sanctions’ (19 December 2014) www. bbc.co.uk/news/world-europe-26672800. 71 Myres S. McDougal and Florentino P. Feliciano, Law and Minimum World Public Order: The Legal Regulation of International Coercion (Yale University Press 1961) 14–18. 72 On the obligation to exercise restraint in relation to territorial disputes, see ­Yiallourides, Gehring and Gauci (2018) 101–128.

12 Military build-up in the South China Sea Derek Grossman*

Introduction Since China announced its expansive sovereignty claims in the South China Sea (SCS) in 2009, the region has become steadily militarized as Beijing seeks to legitimize and defend its claims. Other key maritime counter claimants within the Association of Southeast Asian Nations (ASEAN), including most notably Vietnam, but also Indonesia, Malaysia, and the Philippines, have sought to modernize their naval and coast guard capabilities to preserve the status quo in the SCS. Their improvements, however, have been decidedly miniscule in comparison to Beijing’s dramatic military upgrades. Indeed, only Vietnam stands apart from its ASEAN brethren in the depth and breadth of its military modernization to offset China’s growing military footprint. Even so, Hanoi remains a very distant second to China. ­Taiwan—considered by Beijing to be a renegade province of China—has also been quietly upgrading its military infrastructure in the SCS. And major powers outside of the region, including Australia, France, India, Japan, the UK, and the US, are heightening their military presence in the SCS, though without installing permanent military structures to rival China’s expansion. Their activities take the form of periodic joint exercises, freedom of navigation operations (FONOPs), or both to uphold international law and rules of behaviour. This chapter will demonstrate that when considering force build-up in the SCS, China has been the most active by all reasonable indicators such as quantity and quality of weapons deployed, land reclaimed, and military facilities constructed or upgraded on disputed outposts. As Dr. Alexander L. Vuving has noted, describing the situation in the SCS as a regional “arms race” is simply inaccurate.1 For it to truly be a race, there would have to be some measure of competition and there is virtually none. China’s outsized military might have contributed to its growing confidence to act assertively in the region against ASEAN maritime counter claimants, such as Vietnam * The author would like to express his deep appreciation to the Diplomatic Academy of Vietnam and his home organization of RAND Corporation for their generous support of this research.

Military build-up in the South China Sea  183 in 2019 at Vanguard Bank or the Philippines in 2012 at Scarborough Shoal. Thus, going forward, ASEAN claimants will either have to step up their military modernization efforts to exploit Chinese vulnerabilities, prioritize partnering with major powers external to the region to improve their ability to balance China, or preferably do both. Otherwise, Beijing will continue to dominate—and perhaps one day attempt to severely limit access to—these vital strategic waterways to the detriment of everyone else.

China’s militarization of the South China Sea Starting in 2009, Beijing has sought to legitimize and secure its disputed territorial claims in the SCS. In pursuit of these objectives, China has engaged in a multi-pronged sea control strategy comprised of upgrading or building new military facilities on its outposts in the Paracel and Spratly islands as well as conducting exercises and sovereignty patrols of the disputed region. To date, Beijing is yet to permanently deploy People’s Liberation Army Navy (PLAN) or People’s Liberation Army Air Force (PLAAF) forces to these forward operating bases. But given the breathless advances in Chinese militarization of the SCS over the last nine years, doing so seems inevitable and raises concerns amongst senior US military leaders. In April 2018, for example, the then-incoming Indo-Pacific Command (INDOPACOM) Commander Admiral Philip Davidson noted in Congressional testimony that “once occupied [by PLA forces], China will be able to extend its influence thousands of miles to the south and project power deep into Oceania,” threatening traditionally secure US sea-lines of communication.2 Admiral Davidson further offered that the PLA will be able to use these bases to challenge [the] U.S. presence in the region, and any forces deployed to the islands would easily overwhelm the military forces of any other SCS claimants. In short, China is now capable of controlling the SCS in all scenarios short of war with the United States. For the time being, Beijing has fortified multiple forward operating bases with anti-ship cruise missiles (ASCMs) and surface-to-air missiles (SAMs) along with underground storage facilities, hangars, radars, and sensor arrays.3 In late June 2019, Beijing conducted anti-ship ballistic missile (ASBM) tests in the vicinity near the disputed Spratly islands to showcase the Chinese military’s growing counter-intervention capabilities to deter the US and its allies.4 China conducted major dredging operations between 2013 and 2017 at many of its SCS outposts. By deepening port facilities, Beijing can now berth deeper draft ships at these new bases, such as those responsible for resupply and maintenance as well as intelligence, surveillance, and reconnaissance (ISR) missions.5 Land reclamation from dredging has also produced at least 3,200 acres of new land in the Spratlys (as well as hundreds

184  Derek Grossman of additional acres in the Paracels), clearing the way for construction of air strips on three of the seven Beijing-controlled Spratly Island features, including on Fiery, Mischief, and Subi reefs.6 On Woody Island in the Paracel Islands, which is the largest of 20 features controlled by China and disputed with Vietnam in the island chain, Beijing benefits from a decades-old airport. It completed runway extension work there in 2014 to accommodate military aircraft.7 Beijing in 2016 also deployed HQ-9 missile defence batteries to Woody Island, though it is unclear whether they remain in place today or are deployed on a rotational basis.8 Regardless, these deployments and upgrades across the SCS have significantly enhanced PLA power projection against regional adversaries. If ever faced with armed conflict in the SCS, China has significant naval, marine, coast guard, and maritime militia forces to bring to bear. According to the US Department of Defense, the PLAN is the largest navy in the Indo-Pacific, featuring at least 300 ships along with numerous submarines, amphibious ships, patrol craft, and specialized ships.9 The Pentagon further notes that the PLA command in charge of SCS operations, known as the Southern Theatre Navy, maintains in its inventory four nuclear-­ powered ballistic missile submarines (SSBN), two nuclear-powered attack submarines (SSN), 16 diesel-powered attack submarines, 11 destroyers (DDG), 19 frigates (FFG), 11 corvettes (FFL), three amphibious transport docks (LPD), ten tank landing ships (LST), nine medium landing ships, and 24 missile patrol craft.10 PLAN modernization also encompasses the deployment of a diverse array of anti-access/area denial (A2AD) capabilities such as ASCMs, ASBMs, land-attack cruise missiles (LACMs), and mines as well as accompanying ISR support technologies. China’s first aircraft carrier, the Liaoning, has been the object of intense media scrutiny in recent years. A conventionally powered ex-Ukrainian carrier with a ski jump runway configuration, Liaoning has conducted multiple deployments to the SCS since becoming operational in 2012. In April 2018, the Liaoning participated as part of at least 40 surface ships in live-fire exercises in the SCS.11 Beijing in January 2017 claimed it launched J-15 Flying Shark fighters from Liaoning’s deck.12 China is further reportedly conducting sea trials for its second carrier, which may join the fleet as soon as 2019, and is constructing a third carrier to be completed by late 2020—with additional carrier construction likely in the coming years.13 The Pentagon notes that the PLAN is actively constructing other smaller surface combatants, including DDGs, FFGs, and FFLs that the South Sea Fleet that “will provide a significant upgrade to the PLAN’s air defence, anti-ship, and anti-­submarine capabilities.”14 In particular, having more and modern FFLs on hand and outfitted with towed array sonar should enhance the PLAN’s ability to conduct effective anti-­submarine warfare (ASW) operations—­considered an acute vulnerability for the PLAN, especially against the US.15 The PLAN is also putting an emphasis on improving its amphibious warfare ships as well as associated armour vehicles and helicopters.16 Although mostly to augment its expeditionary

Military build-up in the South China Sea  185 capabilities, Beijing has recently expanded its PLAN Marine Corps (­PLANMC) from 10,000 to 30,000 personnel that can certainly contribute to the amphibious forces it can project into the SCS.17 Finally, Beijing operates dozens of attack submarines capable of launching a variety of ASCMs against targets with little to no notice.18 Although China’s submarines—especially their diesel-powered ones, which constitutes the majority of its fleet—are notoriously noisy and thus easily discoverable, the PLAN is actively enhancing the quietness of these boats to avoid detection.19 According to a recent Chinese military journal article, the South Sea Fleet is now able to immediately deploy the fleet’s submarines to address contingencies in the region.20 The China Coast Guard (CCG) is another highly formidable force that Beijing has deployed to enforce its SCS sovereignty claims. Originally established in 2013 as a civilian-run law-enforcement agency, the CCG as of March 2018 was officially transferred from being a civilian to military-run organization—likely holding significant implications for rules of engagement against maritime counter claimants.21 Beijing’s coast guard fleet is at least 190,000 tons, making it by far the largest coast guard force in terms of tonnage in the region and in the world.22 As of May 2019, the Pentagon estimated that the CCG was comprised of more than 130 ships (at one thousand tons displacement or greater), more than 70 fast patrol combatants (at 500 tons or greater), 400 coastal patrol craft, and approximately 1,000 inshore and riverine vessels.23 The Pentagon further assesses that the majority of newer CCG ships are outfitted with helicopter facilities, high-capacity water cannons, and guns ranging from 30 to 76mm, and that it is likely to add another 25–30 patrol ships by the end of 2020.24 Beijing has stated that the CCG enlists at least 17,000 personnel, though this may be a conservative estimate according to my RAND colleague Lyle Morris, and most officers carry light arms.25 In addition to CCG, for years the People’s Armed Forces Maritime Militia (PAFMM) has served as Beijing’s “third sea force.”26 Described by the Pentagon as a subset of China’s national militia, the PAFMM mobilizes armed reserve forces of civilians to pressure counter claimants.27 The Department of Defense notes that PAFMM has played a critical coercive role in all major SCS clashes in recent years, including harassment of the USNS Impeccable in 2009 as well as the Scarborough Reef and Haiyang Shiyou-981 oil rig standoffs in 2012 and 2014 respectively.28 Although not publicly acknowledged by Beijing, PAFMM does indeed fall under the PLA’s chain of command. Going forward, the CCG and PAFMM will almost certainly remain at the forefront of armed clashes in the SCS. According to one US think tank estimate, from 2010 to 2016 there were 45 major SCS incidents, of which 71% involved at least one CCG or maritime law enforcement (MLE) vessel.29 This is because the CCG gives Beijing a less risky way to enforce its claims and adds another layer of engagement before an escalation in conflict to the PLAN is required. Commonly referred to as “grey zone” tactics, Beijing understands the benefits of this subtler approach, and has sought to use non-military means as well, most notably by relying on its deep-sea fishing

186  Derek Grossman fleet—now the world’s largest—to establish a de facto presence in disputed areas.30 Finally, the PLA Naval Aviation and PLAAF are increasing their activities in the SCS. China’s has flown numerous H-6K bomber flights throughout the region, and in May, landed one for the first time at Woody Island.31 Beyond the obvious symbolism of the event, the PLAAF demonstrated that these runways will assist in extending the range of its power projection capabilities in a military conflict. Beijing has also repeatedly landed J-10 and J-11 fighter aircraft on Woody Island.32 Notably, China is yet to land either bombers or fighter aircraft on its Spratly possessions (though it has landed a Y-8 military transport plane), but this seems inevitable. In addition, the hangars China has constructed at Fiery Cross, Mischief, and Subi reefs are identical to facilities on Woody Island.33

Vietnam’s response The Vietnam People’s Army (VPA) has responded to China’s militarization of the SCS by procuring offsetting and retaliatory capabilities. For example, the VPA is building A2AD capabilities that currently includes six Russian-built Kilo-class submarines along with a complementary network of anti-access missiles. Most notably, Russian-built Bastion-P shorebased ASCMs seek to guarantee that PLAN and PLAAF operations within ­Vietnam’s exclusive economic zone (EEZ) would encounter lethal and heavy resistance in the event of an attack. The VPA has also procured systems capable of close naval encounters, such as the Russian-built Gepard-class frigates and Tarantul V (Molniya) class corvettes. In the air domain, the VPA has modernized its fleet with Sukhoi Su-30MK2 multirole aircraft, which have the range to strike targets throughout the SCS as well as on the Chinese mainland. Vietnam has also greatly expanded its Vietnam Coast Guard (VCG) presence, now fielding the second largest regional force which is larger than those of the Philippines, Malaysia, and Indonesia combined. These paramilitary maritime vessels are lightly armed with deck-mounted gun turrets and crew members carrying firearms to conduct maritime law-enforcement activities as well as tactical reconnaissance and maritime surveillance in the SCS.34 Hanoi is separately building up its civilian-led Vietnam Fisheries Surveillance Force (VFSF) to rival China’s PAFMM. While primarily serving in a constabulary role, these forces can also quickly and expensively “flood the zone” of a potential maritime standoff. They are reportedly armed with machine guns and explosives to augment the VCG’s capabilities.35 By fielding these capabilities, Vietnam has probably achieved its core objective, which is to demonstrate the ability to inflict great harm against PLA forces in order to deter China from initiating a confrontation in the first place.36 If Beijing does so anyway, then Hanoi likely plans to carry out

Military build-up in the South China Sea  187 a spectacular attack—for example, sinking a PLAN surface ship with a torpedo launched from one of its submarines—to convince Beijing to back down and return to the status quo ante as quickly as possible. It is less certain, however, that ­Vietnam is sufficiently prepared to confront China in a broader, high-­intensity conflict lasting months. Finally, Vietnam is conducting some land reclamation at outposts in the region. Hanoi, for example, has expanded some infrastructure and dredged the northern channel at Ladd Reef.37 Vietnam has also reportedly militarized some of the SCS features under its control. In August 2016, Vietnam apparently deployed Israeli-built Extended Range Artillery (EXTRA) guided rocket artillery launchers on several of the disputed features it controls.38 These systems have sufficient range to destroy Chinese military infrastructure throughout the Spratly Islands. By November 2016, Vietnam had also extended its sole runway in the Spratly Islands—on Spratly Island itself—and built a new aircraft hangar there.39

Indonesia, Malaysia, and the Philippines’ responses Although not technically a counter claimant in SCS disputes, Indonesia in recent years has increasingly felt pressured by Chinese fishing incursions north of the Natuna Islands. As such, Jakarta in July 2017 controversially renamed the waters north of the Natuna Islands the “North Natuna Sea” to emphasize Indonesian interests in keeping the peace within its EEZ that intersects with Beijing’s “nine-dash line” territorial claims.40 In addition, Indonesia under President Joko Widodo has pursued military modernization commensurate with turning Indonesia into a “global maritime axis (or fulcrum).”41 He has called for the establishment of a “Minimum Essential Force” by 2024 that would ensure Indonesia has the requisite naval, air, and maritime capabilities to defend its claims and conduct other missions.42 Progress thus far, however, has been slow and difficult for a variety of reasons, including a limited defence budget, focus on land rather than maritime security, and bureaucratic wrangling—especially in the sea domain between the Indonesian Navy and many disparate government organizations responsible for maritime security.43 Nevertheless, Jakarta at the end of 2018 opened a new military base at Natuna Besar Island off the coast of Borneo near the southern tip of China’s claims in the SCS, ostensibly to challenge Beijing, though there is debate on this point.44 Regardless, Indonesia now fields three modernized Nagapasa-class attack submarines.45 It has further been attempting to retire its outdated Ahmad Yani-class frigates in favour of more modern Martadinata-class guided missile frigates, but this process has been delayed.46 Despite numerous fishermen clashes with China and others in the SCS, Indonesia only in the summer of 2019 consolidated its coast guard to focus on these challenges.47 In the air domain, Indonesia maintains Su-30MK2 multirole aircraft and it hopes to acquire Su-35 fighters in

188  Derek Grossman spite of possible US sanctions to make up for maintenance problems with its F-16s and inability to buy the F-15.48 Jakarta has further acquired Kongsberg Norwegian advanced SAM system (NASAMS), a medium-range air defence system, as well as the Oerlikon Skyshield system—a shorter range SAM system that protects mainland Indonesia, but that could eventually be deployed to Natuna Island.49 At least outwardly, Malaysia had not expressed much concern over ­China’s SCS claims until Beijing in 2013 conducted a military exercise at James Shoal and the CCG began to patrol South Luconia Shoal—both disputed features.50 Since then, Kuala Lumpur has sought to modernize its aging naval fleet, such as the acquisition of large (3,100 ton displacement) littoral combat ships (LCS), with the first of six arriving in 2019 and the last in 2023.51 Despite the leadership transition from Razak Najib to Mahathir Bin Mohamad, Kuala Lumpur has continued to work in collaboration with China to procure four littoral mission ships (LMS)—the first two of which it received in April 2019, and the next two arriving by 2021.52 Malaysia’s coast guard as of 2017 was slated to grow by 62% in tonnage and 11% in the number of ships over the ten year period between 2008 and 2018. Total tonnage by the end of 2018 was slated to number approximately 12,900 tons, with new patrol craft as part of the fleet.53 Finally, in the air, Malaysia is looking to retire its MiG-29N with new multirole fighter aircraft, but the process has been slow due to budget constraints, and there does not appear to be a viable replacement at this time.54 Even though Filipino concerns were heightened following China’s takeover of the disputed Scarborough Shoal in 2012, and Manila brought and won an international arbitration case against Beijing in the SCS, it continues to lack virtually any power projection capability into the SCS. Other than the acquisition of two former US coast guard Hamilton-class cutters that have been reclassified as frigates along with two new South Korean frigates and one former corvette, the vast majority of the Philippines Navy is comprised of ships that range from four decades old to Second World War era commissioning.55 Manila has shown interest in modernizing its navy, laying out an ambitious Strategic Sail Plan 2020 to procure new frigates, corvettes, offshore vessels, maritime patrol aircraft, patrol gunboats, strategic sealift vessels, diesel-electric submarines, and many other new assets.56 To date, however, there has been little progress on these initiatives. Indeed, although Manila used to have the strongest navy coming out of the Second World War, according to Philippine Navy chief Robert Empedrad, it now is “one of the weakest (navies), even in the Southeast Asian region.”57 ­Manila similarly has ambitious plans for the coast guard, though there it has probably been more successful. In October 2016, for example, the Philippines started acquiring the first of ten multi-role response vessels (MRRVs) with funding assistance from Japan.58 Manila has further purchased from France one large offshore patrol vessel and four fast patrol

Military build-up in the South China Sea  189 boats, among other modernization programs.59 Meanwhile, its Flight Plan 2028 for air force modernization envisions procurement of multirole fighters for air superiority missions. However, at present, the Philippines has very limited combat-capable aircraft in its fleet. Indeed, with the retirement of the F-5 in 2005, the Philippines did not have a viable replacement and became effectively combat-incapable for ten years until, in 2015, it acquired two light attack aircraft.60

Australia, India, Japan, and the US (or “Quad”) responses There are several key extra-regional powers with security interests in the SCS dispute. Four of these—including Australia, India, Japan, and the US—are members of the so-called Quadrilateral Security Dialogue or “Quad” talks.61 The Quad is an informal dialogue to quietly coordinate security and military policy, with China in mind, the existence of which simultaneously signals that the group plans to balance against Chinese claims in the SCS and elsewhere throughout the Indo-Pacific region.62 The Quad has met five times since November 2017. However, the Quad has refrained from conducting joint patrols or exercises, as it did during its first iteration in 2007. The Quad collapsed back then due to domestic political forces within each of the Quad member countries. Thus, the future of this reincarnation is unclear. Regardless, each Quad member conducts their own robust defence engagement of the region on a bilateral basis, and with each other. Australia’s BERSAMA LIMA 18, for example, has been described by the Australian Department of Defence as being “a multinational response to a regional security threat.” It included Malaysia, New Zealand, Singapore, and the UK—members of the so-called Five Power Defence Arrangements (FPDA).63 In general, Australia has favoured exercises to demonstrate its resolve in the SCS. Unlike the US Navy, Canberra resists conducting FONOPs and is yet to fly or sail within 12 nautical miles of claims Chinese features.64 The US continues to try to convince its long-time ally to participate in FONOPs, but to date, this has not happened.65 In recent years, India has sought to heighten its military role in the SCS through its formerly “Look East” policy and now “Act East” policy. Although seemingly ambivalent about its Quad membership, New Delhi has nevertheless made remarkable strides to bolster defence relations with the other members as well as with key ASEAN counter claimants.66 India, for example, is part of a new India-Australia-Indonesia trilateral security dialogue.67 Regarding ASEAN bilateral relationships, India in May 2018 dispatched warships to Vietnam and, for apparently the first time ever, conducted a joint exercise with it in the SCS.68 The two sides have apparently reached an understanding of the importance of maintaining a “free and open” Indo-Pacific and have correspondingly deepened their already robust defence cooperation.69 During his keynote address at the annual

190  Derek Grossman Shangri-La Dialogue meeting in June 2018, Indian Prime Minister Narendra Modi underscored the importance of ASEAN centrality toward maintaining peace and stability in the Indo-Pacific. New Delhi has followed up by conducting joint exercises with Indonesia as well as pushing for trilateral India-­Singapore-Thailand exercises in the future.70 New Delhi’s connectivity to Indonesia is particularly interesting as it struck a deal to develop ­Jakarta’s strategic Sabang port, on the tip of Sumatra, presumably to counter Chinese port access deals in the region.71 A more forward-leaning Japan under Prime Minister Shinzo Abe has also increased the visibility of its presence in the SCS. Over the summer in 2019, Japan deployed its Izumo-class helicopter carrier—its largest ship—along with two frigates to participate in exercises with the US in the SCS.72 Similarly, in the summer of 2018, Japan sent the helicopter carrier and a flotilla of battle ships including destroyers through the SCS, with the goal of stabilizing the region.73 In May 2017, Tokyo conducted a passing exercise (PASSEX) with the US in the SCS, designed to bolster interoperability and secure communications.74 Japan in October 2018 conducted joint military exercises with the US and Philippines only 250 kilometres across from the disputed Scarborough Shoal.75 Japan also made its first-ever submarine port call to Vietnam in mid-September 2018, and Hanoi the following week made a return frigate visit to Japan in a sign of strengthening defence ties.76 Finally, the US has sought to balance Beijing in the SCS through exercises and stepped up FONOPs. In a dangerous incident in early October 2018, the USS Decatur, which was conducting a FONOP, was tailed by a PLAN Luyang-class destroyer that closed within 45 yards of the Decatur.77 An informal tabulation of FONOPs suggest that these activities are on the rise since 2015, and US military commanders have consistently said that the US will continue to challenge Chinese sovereignty claims in the SCS. 78 In August 2018, for instance, the US Navy on Twitter commented that “we will sail, fly and operate wherever international law allows.”79 As such, the US Air Force also routinely flies through the region to uphold international law. In late September 2018, the US flew B-52H Stratofortress bombers in a show of force.80 Apart from FONOPs, the US also plans to continue holding military exercises in the region to challenge Beijing’s claims.81 In August 2018, for example, the US Navy and Japanese Maritime Self-Defense Forces (JMSDF) practiced formation sailing and manoeuvring.82 Washington has also tried to revive the Quad to find ways of quietly balancing China, and has strengthened defence and maritime security ties with key US allies and partners in the region. For his first trip as Secretary of Defense, Mark Esper in August 2019 visited the Indo-­ Pacific region to shore up alliance ties with Australia and Japan. Washington seems to be doing the same with other allies and partners as well. Despite the Philippines’ apparent drift away from its alliance with the US since Filipino President Rodrigo Duterte came to power in 2016, recent

Military build-up in the South China Sea  191 military exercises and working-level discussions appear to have bilateral defence ties firmly intact.83 The US for the first time since the end of the Vietnam War sent an aircraft carrier, the USS Carl Vinson, to Da Nang in a highly symbolic demonstration of the growing closeness of US–Vietnam relations.84 Then-Secretary of Defense James Mattis referred to Washington and Hanoi as “like-minded partners” in the SCS, suggesting ties will continue to ramp up.85 In August 2018, Mattis also hosted his Indonesian and Malaysian counterparts recently at the Pentagon.86

Others respond too There are other countries that are playing a military role in the SCS as well. One within the region is Taiwan. Because of its frayed relationship with China, which claims ownership of Taiwan, Taipei has assiduously avoided unnecessarily antagonizing Beijing by not challenging its extraordinary claims.87 Nevertheless, Taipei in recent years has sought to bolster its military presence in the SCS, particularly on Itu Aba (also commonly known as Taiping Island)—the largest natural island in the Spratly archipelago. In 2012, for example, Taiwan completed a runway extension project there, enabling C-130 Hercules military transport planes to access the island.88 Taiwan also likely put in place anti-aircraft artillery and tried to mask its activities by blurring Google Earth images of the island.89 Finally, Taiwan routinely conducts military exercises off Itu Aba, whether to deter counter claimants or to practice search and rescue operations. A live-fire exercise in August 2017 prompted a stern rebuke, not from China, but from Vietnam, which also disputes Itu Aba along with the Philippines. For its part, Taiwan said it will continue to uphold its sovereignty there.90 Other Western countries, including the UK and France, have participated in numerous FONOPs to challenge Chinese claims in the SCS. In late August 2018, for example, the British Royal Navy’s HMS Albion tested Beijing’s claims to the Paracel Islands.91 London is reportedly considering plans to dispatch the HMS Queen Elizabeth aircraft carrier to the region in 2020 to support Australian operations.92 The UK and the US in January 2019 also held joint exercises in the SCS.93 Meanwhile, the UK along with France in June 2018 conducted joint FONOPs near all three of China’s Spratly Island possessions, including at Fiery Cross, Mischief, and Subi reefs.94 France appears to have sailed at least five ships through the SCS in 2017.95 From a broader perspective, Admiral Davidson, Commander of US ­INDOPACOM, said in February 2019: “We’ve had allies and partners in the region — the U.K., Japan, Australia, New Zealand, Canada, France, all in one form or another step up their operations in the SCS, and I think that shows the international community’s willingness to push back.”96

192  Derek Grossman

Concluding thoughts Considering the above analysis, there are at least three major points that can be inferred going forward. First, when compared to SCS counter claimants, China’s militarization of the region is without parallel, and therefore begs the question: What will be Beijing’s likely next steps? Some of these points are obvious, perhaps others less so. For instance, it is very likely China will eventually land fighter aircraft on Spratly Island possessions and potentially store them in the newly-built hangars now available there. If this occurs, then it would be the clearest sign yet of Chinese militarization of the SCS— in clear contravention of Chinese President Xi Jinping’s pledge to the US in 2015 not to militarize the Spratly archipelago.97 Additional logical steps for Beijing include increased air and sea patrols, using not only conventional PLAAF and PLAN assets, but CCG and PAFMM forces as well. It is less clear whether China would implement a long-rumoured SCS air defence identification zone (ADIZ) to complement Beijing’s ADIZ established in 2013 over the East China Sea in the heat of the Senkaku/Diaoyu island dispute with Japan.98 However, the SCS is many times larger than the East China Sea and therefore would probably require continuous coverage in greater numbers of patrol assets than China has available now. Even in the case of the much smaller East China Sea region, Beijing is either unwilling or unable to enforce the ADIZ to address every unauthorized incursion.99 Second, other than Vietnam, ASEAN counter claimant states have not developed the A2AD capabilities one might hope for to complicate future Chinese land grabs or expanding its de facto control in the region as it did at Scarborough Shoal in 2012. Countries like Indonesia, Malaysia, and the Philippines should consider acquiring these capabilities—particularly ASCMs, SAMs, and modern submarines—by developing closer relations with the US and other major powers that might supply them with arms, including Russia. They would have to increase their defence spending levels to accommodate these new arms, which, as we have seen, would be extremely difficult. Outside of A2AD capabilities, ASEAN counter claimants should consider the high value of coast guards to operate in grey zones. Indonesia’s recent coast guard consolidation should be applauded. On the naval side, modern frigates, besides the combat benefits, can conduct maritime domain awareness (MDA) functions in conjunction with other air and naval assets, such as submarines and surveillance drones, to improve counter claimants’ understanding of Chinese activities. ASEAN states would greatly benefit from a common operating picture, derived from shared MDA data. Third, and finally, the Quad, along with other major powers, should conduct FONOPs to enforce international law and norms of behaviour. They should also proceed with joint exercises to underscore deterrence and resolve. However, the Quad, without any ASEAN countries included, gives the impression that major powers are working in concert to “contain” China and pursue great power rivalry rather than enforce international law and

Military build-up in the South China Sea  193 norms of behaviour. Therefore, integrating at least one ASEAN state—even if not a party to the SCS dispute—would be helpful. During the first iteration of the Quad in 2007, the mechanism hosted a joint naval exercise with Singapore as a plus one. Furthermore, recent interest from the UK and France in FONOPs should be approached delicately. The dark history of European imperialism and colonialism in the region could provoke a backlash if these actions are not properly calibrated to address China’s excessive claims in the SCS—and only this issue. In general, however, the region and Quad should welcome these and other countries that might be interested to reinforce international concerns over China’s behaviour.

Notes 1 Alexander L. Vuving, “Force Build Up in the South China Sea: The Myth of an Arms Race,” CogitAsia, October 12, 2017, www.cogitasia.com/forcebuildup-in-the-south-china-sea-the-myth-of-an-arms-race/. 2 “Advance Policy Questions for Admiral Philip Davidson, U.S. Navy, Expected Nominee for Commander, U.S. Pacific Command,” Senate Armed Services Committee, April 17, 2018, p. 18, Unclassified, www.armed-services.senate.gov/ imo/media/DoC/Davidson_APQs_04-17-18.pdf. 3 Amanda Macias, “China Quietly Installed Defensive Missile Systems on Strategic Spratly Islands in Hotly Contested South China Sea,” CNBC, May 2, 2018, www.cnbc.com/2018/05/02/china-added-missile-systems-on-spratly-islands-insouth-china-sea.html and “A Constructive Year for Chinese Basing,” Asia Mari­ time Transparency Institute (AMTI), December 14, 2017, https://amti.csis.org/ constructive-year-chinese-building/. 4 Ankit Panda, “China’s South China Sea Anti-Ship Missile Tests Up the Stakes,” The Diplomat, July 15, 2019, https://thediplomat.com/2019/07/chinas-southchina-sea-anti-ship-missile-tests-up-the-stakes/. 5 “China’s Activities in the South China Sea,” Japan’s Ministry of Defense, January 2018, www.mod.go.jp/e/d_act/sec_env/pdf2/ch_d-act_SCS_20180604e.pdf. 6 Gregory Polling, “Potential New Runway Presents New Headaches,” AMTI, September 15, 2015, https://amti.csis.org/new-imagery-release/ and “Updated: China’s Big Three Near Completion,” AMTI, June 29, 2017, https://amti.csis.org/ chinas-big-three-near-completion/. 7 Kong Defang and Yao Chun, “Construction of Air Strip Completed on Yongxing [Woody] Island,” People’s Daily Online, October 9, 2014, http://en.people. cn/n/2014/1009/c90882-8792271-2.html. 8 Timothy R. Heath, “Beijing Ups the Ante in the South China Sea Dispute with HQ-9 Deployment,” China Brief, Jamestown Foundation, Vol. 16, No. 6, March 28, 2016, https://jamestown.org/program/beijing-ups-the-ante-in-southchina-sea-dispute-with-hq-9-deployment/. 9 Department of Defense, Annual Report to Congress: Military and Security Developments Involving the People’s Republic of China 2018, May 16, 2018, p. 28, https://media.defence.gov/2018/Aug/16/2001955282/-1/-1/1/2018-CHINA-­ MILITARY-POWER-REPORT.PDF. 10 Annual Report to Congress, May 16, 2018, p. 32. 11 Philip Wen, “China’s Xi Presides Over Large-Scale Naval Display in South China Sea,” Reuters, April 12, 2018, www.reuters.com/article/us-china-­militaryxi/­c hinas-xi-presides-over-large-scale-naval-display-in-south-china-seaidUSKBN1HJ27M.

194  Derek Grossman 12 Sam LaGrone, “Beijing Confirms Chinese Carrier Launched Fighters in South China Sea,” USNI News, January 3, 2017, https://news.usni.org/2017/01/03/ chinese-carrier-launches-aircraft-south-china-sea-wide-ranging-deployment. 13 Ronald O’Rourke, “China Naval Modernization: Implications for U.S. Navy Capabilities—Background and Issues for Congress,” Congressional R ­ esearch Service, August 1, 2018, https://fas.org/sgp/crs/row/RL33153.pdf. Also see Liu Zhen, “Satellite Images Show China is Expanding Shipyard ‘to build more aircraft carriers,’” South China Morning Post, October 17, 2019, www.scmp.com/ news/china/military/article/3033434/satellite-images-show-china-expandingshipyard-build-more. 14 Annual Report to Congress, May 16, 2018, p. 29. 15 Ibid. For the PLA’s challenges in ASW, see Michael S. Chase, Jeffrey Engstrom, Tai Ming Cheung, Kristen Gunness, Scott W. Harold, Susan Puska, Samuel K. Berkowitz, China’s Incomplete Military Transformation: Assessing the Weaknesses of the People’s Liberation Army (PLA), RAND Corporation, Santa Monica, California, 2015, p. 93, www.rand.org/pubs/research_reports/RR893. html. 16 Annual Report to Congress, May 16, 2018, p. 30. 17 Ibid., p. 28. 18 Ibid., p. 28. 19 See for example, Minnie Chan, “Why Chinese Submarines Could Soon be Quieter than U.S. Ones,” South China Morning Post, July 4, 2017, www.scmp. com/news/china/diplomacy-defence/article/2098986/why-chinese-submarinescould-soon-be-quieter-us-ones. 20 Zhou Qiqing [周启青], Gan Jun, [甘俊], Zheng Yule [郑胤乐], “Splitting the Waves and Smashing the Swells, the Heroic Fleet Moves Towards the Deep Blue—New Changes in the South Sea Fleet in the Past Five Years [英雄舰队劈波斩浪向深 蓝—海军南海舰队五年来新变化],” Ordinance Knowledge, No. 1, 2018, pp. 24–28. 21 “Important! Plan for Deepening Inter-Civil Military Reform Released [重磅！ 深化跨军地改革方案公布],” China Military, March 21, 2018, http://jz.chinamil. com.cn/n2014/tp/content_7979925.htm. For context on the important of the militarization of the CCG, see Lyle Morris, “China Welcomes its Newest Armed Force: The Coast Guard,” War on the Rocks, April 4, 2018, https://waronthe rocks.com/2018/04/china-welcomes-its-newest-armed-force-the-coast-guard/. 22 For an authoritative analysis on projected CCG total tonnage, see Lyle J. Morris, “Blunt Defenders of Sovereignty: The Rise of Coast Guards in East and Southeast Asia,” Naval War College Review, Vol. 70, No. 2, Spring, 2017, pp. 4 and 10, https://digital-commons.usnwc.edu/cgi/viewcontent.cgi?referer=&httpsredir= 1&article=1016&context=nwc-review 23 Department of Defense, Annual Report to Congress: Military and Security Developments Involving the People’s Republic of China 2019, May 2, 2019, p. 53, https://media.defense.gov/2019/May/02/2002127082/-1/-1/1/2019_CHINA_ MILITARY_POWER_REPORT.pdf 24 Annual Report to Congress, May 16, 2018, p. 71 and Annual Report to Congress, May 2, 2019, p. 53. 25 Morris, “Blunt Defenders of Sovereignty,” p. 10. Morris bases these numbers on “State Council Circular on the Main Functions, Internal Bureaucracy and Staffing Provisions of the State Oceanic Administration,” Central People’s Government of the PRC [People’s Republic of China], June 9, 2013, www.gov.cn/. 26 For an authoritative analysis of the PAFMM, see Connor M. Kennedy and Andrew Erickson, “China’s Third Sea Force the People’s Armed Forces Maritime Militia Tethered to the PLA,” China Maritime Report No. 1, China Maritime Studies Institute (CMSI), US Naval War College, Newport, Rhode Island,

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27 28 29 30

31

32 33 34 35

36

37 38

March 2017, www.andrewerickson.com/wp-content/uploads/2017/03/Naval-WarCollege_CMSI_China-Maritime-Report_No-1_People%E2%80%99s-ArmedForces-Maritime-Militia-Tethered-to-the-PLA_Kennedy-Erickson_2017 03.pdf Annual Report to Congress, May 16, 2018, p. 72. Ibid., p. 72. “China Power: Unpacking the Complexity of China’s Rise,” Center for Strategic & International Studies (CSIS), May 31, 2018, https://chinapower.csis.org/ maritime-forces-destabilizing-asia/. For an explanation of gray zone conflict, see David Barno and Nora Bensahel, “Fighting and Winning in the ‘Gray Zone,’” War on the Rocks, May 19, 2015, https://warontherocks.com/2015/05/fighting-and-winning-in-the-gray-zone/. China has the world’s largest deep sea fishing fleet according to John Coyne, Ashleigh Sharpe, and Dione Hodgson, “Mice that Roar: Patrol and Coastal Combatants in ASEAN,” Australian Strategic Policy Institute, August 2018, www.aspi.org.au/report/mice-roar. “China Lands First Bomber on South China Sea Island,” AMTI, May 18, 2018, https://amti.csis.org/china-lands-first-bomber-south-china-sea-island/. For an authoritative overview of the drivers behind China’s bomber flights in the SCS and elsewhere, see Derek Grossman, Nathan Beauchamp-Mustafaga, Logan Ma, and Michael S. Chase, China’s Long-Range Bomber Flights: Drivers and Implications, 2018, RAND Corporation, Santa Monica: CA, www.rand.org/pubs/ research_reports/RR2567.html. “An Accounting of China’s Deployments to the Spratly Islands,” AMTI, May 9, 2018, https://amti.csis.org/accounting-chinas-deployments-spratly-islands/. Ibid. “Images of Fearsome Weapons on Vietnam Coast Guard Ships [“Ảnh hỏa lực đáng gờm trên tàu Cảnh sát biển Việt Nam],” Kien Thuc News, trans. Nguyen Nhat Anh, April 27, 2016. “Vietnam Fisheries Surveillance Force Vessels to Be Equipped with Weapons: New Decree,” Tuoi Tre News, August 1, 2014; “Joint Circular No. 01/2015/TTLTBCA-BNNPTNT January 13, 2015, on Regulation on Equipping, Managing and Using Military-Grade Weapons, Supporting Equipment and Specialized Apparatus by the VFSF and Directorate of Fisheries [Thông tư liên tịch số 01/2015/ TTLT-BCA-BNNPTNT: Quy định về trang bị, quản lý, sử dụng vũ khí quân dụng, công cụ hỗ trợ và thiết bị chuyên dùng của lực lượng kiểm ngư],” trans. Nguyen Nhat Anh, January 13, 2015; and Lam Son, “Vietnam Fishery Resource Surveillance Is Equipped with Military-Grade Weapons [Lực lượng kiểm ngư được trang bị vũ khí quân dụng],” Lao Dong, trans. Nguyen Nhat Anh, February 26, 2015. For an overview of Vietnam’s military modernization and its intentions vis-àvis China in the SCS, see Derek Grossman, “Can Vietnam’s Military Stand Up to China in the South China Sea?,” Asia Policy, National Bureau of Asian Research, Vol. 13, No. 1, January 2018, www.rand.org/pubs/external_publications/ EP67504.html. Also see Derek Grossman and Nguyen Nhat Anh, “Deciphering Vietnam’s Evolving Military Doctrine in the South China Sea,” AMTI, May 11, 2018, www.rand.org/blog/2018/05/deciphering-vietnams-evolving-military-­ doctrine-in.html. “Vietnam Expands Another Outpost,” AMTI, June 13, 2018, https://amti.csis. org/vietnam-expands-another-outpost/. Greg Torode, “Exclusive: Vietnam Moves New Rocket Launchers into Disputed South China Sea—Sources,” Reuters, August 9, 2016, www.reuters.com/article/ us-southchinasea-vietnam-idUSKCN10K2NE.

196  Derek Grossman 39 “Updated: Vietnam Responds with Spratly Air Upgrades,” AMTI, November 15, 2016, https://amti.csis.org/vietnam-responds/. 40 For additional context on Indonesia’s change in approach in vis-à-vis China in the Natuna Islands, see Joe CoChrane, “Indonesia, Long on Sidelines, Starts to Confront China’s Territorial Claims,” The New York Times, September 10,  2017, www.nytimes.com/2017/09/10/world/asia/indonesia-south-china-sea-­ military-buildup.html. 41 Vibhansu Shekhar and Joseph Chinyong Liow, “Indonesia as a Maritime Power: Jokowi’s Visions, Strategy, and Obstacles Ahead,” The Brookings Institution, November 7, 2014, www.brookings.edu/articles/indonesia-as-a-maritime-powerjokowis-vision-strategies-and-obstacles-ahead/. 42 “Indonesia” entry in “Chapter 6: Asia,” of The Military Balance, IISS, February 2018, p. 266. 43 Emirza Adi Syailendra, “A Nonbalancing Act: Explaining Indonesia’s Failure to Balance Against the China Threat,” Asian Security, Vol. 13, No. 3, September 5, 2017, p. 244, www.tandfonline.com/doi/pdf/10.1080/14799855.2017.136 5489?needAccess=true. 44 SCMP Reporter, “Indonesia Opens Military Base on Edge of South China Sea to ‘deter security threats,’” SCMP, December 19, 2018, www.scmp.com/news/ asia/southeast-asia/article/2178741/indonesia-opens-military-base-edge-southchina-sea-deter. For an alternative explanation on Indonesia’s construction of a base in the SCS, see Evan Laksmana, “Why Indonesia’s New Natuna Base is Not About Deterring China,” AMTI, January 25, 2019, https://amti.csis.org/ indonesias-natuna-base-not-about-deterring-china/. 45 Franz Stefan-Gady, “Indonesia Launches Third Nagapasa-Class Diesel Electric Attack Submarine,” The Diplomat, April 11, 2019, https://thediplomat. com/2019/04/indonesia-launches-third-nagapasa-class-diesel-electric-­attacksubmarine/. 46 Ridzwan Rahmat, “Indonesia Delays Decommissioning of Ahmad Yani-Class Frigates Amid South China Sea Obligations,” Janes 360, October 19, 2017, www. janes.com/article/75032/indonesia-delays-decommissioning-of-ahmad-yaniclass-frigates-amid-south-china-sea-obligations. 47 Zoe Reynolds, “Indonesia New Coast Guard Announced,” Safety at Sea, May 13, 2019, https://safetyatsea.net/news/2019/indonesias-new-coastguard-announced/. 48 “Indonesia’s AF Expresses Continued Interest in Su-35s,” Defense Industry Daily, August 14, 2018, www.defenceindustrydaily.com/indonesias-air-force-addsmore-flankers-03691/. Also see Jon Grevatt, “Indonesia Signals Progress in Deal to Procure Su-35s,” Jane’s 360, June 4, 2019, www.janes.com/article/89045/ indonesia-signals-progress-in-deal-to-procure-su-35s 49 Emanuele Scimia, “Indonesia Boosts its Air and Sea Denial Capabilities,” Asia Times, November 20, 2017, www.atimes.com/indonesia-boosts-air-seadenial-capabilities/. 50 “Tracking China’s Coast Guard Off Borneo,” AMTI, April 5, 2017, https://amti. csis.org/tracking-chinas-coast-guard-off-borneo/. 51 Michael Peck, “South China Sea Drama: One Nation Is Building Up its Military Because of It (Not China),” The National Interest, June 23, 2018, https:// nationalinterest.org/blog/the-buzz/south-china-sea-drama-one-nationbuilding-its-military-26383. 52 “Construction of 1st Littoral Mission Ship for Malaysia Started in China,” Navy Recognition, August 16, 2018, www.navyrecognition.com/index.php/news/ defence-news/2018/august-2018-navy-naval-defence-news/6424-­c onstructionof-1st-littoral-mission-ship-for-malaysia-started-in-china.html. Also see Tashny Sukumaran, “Malaysia Must Prepare Navy for Possible Conflict in South China

Military build-up in the South China Sea  197

53 54

55

56 57 58 59 60 61 62

63 64

65

66 67 68

Sea, Foreign Minister Warns,” SCMP, October 17, 2019, www.scmp.com/weekasia/politics/article/3033417/malaysia-must-prepare-navy-possible-conf lictsouth-china-sea. Alexander L. Vuving, “Tracking Malaysia’s Force Build-Up in the South China Sea,” CogitAsia, October 17, 2017, www.cogitasia.com/tracking-malaysias-forcebuild-up-in-the-south-china-sea/. Malaysia’s budget is severely limited, and it is unable to maintain the Su-30s ­currently in the fleet. See for example “Malaysia Air Force Says Low Maintenance Rate of Fighter Jets Partly Due to Lack of Operating Funds,” Straits Times, August 3, 2018, www.straitstimes.com/asia/se-asia/malaysia-air-forcesays-low-maintenance-rate-of-fighter-jets-partly-due-to-lack-of. Alexander L. Vuving, “Tracking the Philippines’ Force Build-Up in the South China Sea,” CogitAsia, October 24, 2017, www.cogitasia.com/tracking-thephilippines-force-build-up-in-the-south-china-sea/. Also see Felix K. Chang, “Building from Scratch: Rebirth of the Philippine Navy,” Geopoliticus, Foreign Policy Research Institute, October 10, 2019, www.fpri.org/article/2019/10/ building-from-scratch-rebirth-of-the-philippine-navy/ Vuving, “Tracking the Philippines’ Force Build-Up in the South China Sea,” “Philippines Upgrades Navy Amid Chinese Maritime Threat,” Myanmar Times, May 30, 2018, www.mmtimes.com/news/philippines-upgrades-navy-amid-­chinesemaritime-threat.html. Ibid. Ibid. Ibid. Derek Grossman, “Quad Supports US Goal to Preserve Rules-Based Order,” The Strategist, Australian Strategic Policy Institute, February 7, 2019, www.­ aspistrategist.org.au/quad-supports-us-goal-to-preserve-rules-based-order/. For a good overview of the Quad, see Tanvi Madan, “The Rise, Fall, and Rebirth of the ‘Quad,’” War on the Rocks, November 17, 2017, https://waronthe rocks.com/2017/11/rise-fall-rebirth-quad/. Indrani Bagchi, “‘Quad’ of India, US, Japan, Australia to Meet Soon,” Times of India, September 12, 2018, https:// timesofindia.indiatimes.com/world/rest-of-world/quad-of-india-us-japan-­ australia-to-meet-soon/articleshow/65768074.cms. Department of Defence, “Regional Security in Focus for Exercise BERSAMA LIMA 18,” Media Release, October 1, 2018, https://news.defence.gov.au/media/ media-releases/regional-security-focus-exercise-bersama-lima-18. Primrose Riordan, “Australian Navy to Hold Joint Exercises in South China Sea,” The Australian, September 24, 2018, www.theaustralian.com.au/nationalaffairs/australian-navy-to-hold-joint-exercises-in-south-china-sea/newsstory/952d3be46272b90bd69c35b4726cc719. David Wroe, “U.S. Would ‘Absolutely’ Welcome Australian Naval Operations in South China Sea, General Says,” The Sydney Morning Herald, June 8, 2018, www.smh.com.au/politics/federal/us-would-absolutely-welcome-australian-­ naval-operations-in-south-china-sea-general-says-20180608-p4zkfu.html. For Indian ambivalence on the Quad, see Derek Grossman, “India Is the Weakest Link in the Quad,” Foreign Policy, July 23, 2018, https://foreignpolicy. com/2018/07/23/india-is-the-weakest-link-in-the-quad/. Shruti Godbole, “What About India, Indonesia, Australia Trilateral?” The Brookings Institution, September 19, 2018, www.brookings.edu/blog/up-front/ 2018/09/19/what-about-india-indonesia-australia-the-new-trilateral/. Prashanth Parameswaran, “India-Vietnam Defense Ties in the Spotlight with Naval Exercise,” The Diplomat, May 22, 2018, https://thediplomat.com/2018/05/ india-vietnam-defence-ties-in-the-spotlight-with-naval-exercise/.

198  Derek Grossman 69 Vietnamese interlocutors have informed me that India is now considered Vietnam’s “most reliable defence partner,” having surpassed Russia, which only sells arms and does not offer the sought-after geostrategic alignment against China in the SCS. 70 Modi’s keynote speech can be found at: “Prime Minister’s Keynote Address at Shangri-La Dialogue,” Ministry of External Affairs, June 1, 2018, www. mea.gov.in/Speeches-Statements.htm?dtl/29943/Prime+Ministers+Keynote+ Address+at+Shangri+La+Dialogue+June+01+2018. For India’s forging ahead with ASEAN joint exercises, see for example Dinakar Peri, “Rise in India-­ ASEAN Naval Games,” The Hindu, June 11, 2018, www.thehindu.com/news/ national/rise-in-india-asean-naval-games/article24130015.ece. 71 Agustinus Beo Da Costa, “Indonesia, India Plan to Develop Strategic Indian Ocean Port,” Reuters, May 30, 2018, www.reuters.com/article/us-indonesia-­ india/indonesia-india-plan-to-develop-strategic-indian-ocean-port-idUSKCN 1IV0S9. 72 “Japan Flexes its Military Muscle on Edge of South China Sea with Joint Naval Drills Involving Warships, Marines,” South China Morning Post, July 3, 2019, www.scmp.com/news/asia/east-asia/article/3017124/japan-flexes-its-militarymuscle-edge-south-china-sea-joint 73 See Steven Staswick, “Japan Deploys Flotilla to the South China Sea,” The Diplomat, August 30, 2018, https://thediplomat.com/2018/08/japan-deploys-flotillato-south-china-sea/ and Franz Stefan-Gady, “Japan’s Largest Aircraft Carrier to Operate in South China Sea for 2 Months,” The Diplomat, July 4, 2018, https:// thediplomat.com/2018/07/japans-largest-aircraft-carrier-to-operate-in-southchina-sea-indian-ocean-for-2-months/. 74 Franz Stefan-Gady, “South China Sea: Japan’s Largest Warship Concludes Drill with U.S. Navy Littoral Combat Ship,” The Diplomat, May 20, 2017, https:// thediplomat.com/2017/05/south-china-sea-japans-largest-warship-concludesdrill-with-us-navy-littoral-combat-ship/. 75 “Japan Military Joins Historic PH-US War Games,” ABS-CBS News, October 6, 2018, https://news.abs-cbn.com/news/10/06/18/japan-military-joins-historicph-us-war-games 76 Prashanth Parameswaran, “Why Japan’s First Submarine Visit to Vietnam Matters,” The Diplomat, September 19, 2018, https://thediplomat.com/2018/09/ why-japans-first-submarine-visit-to-vietnam-matters/ and Vu Anh, “Vietnamese Frigate on Long Naval Journey DoCks in Japan,” VN Express, September 28, 2018, https://e.vnexpress.net/news/news/vietnamese-frigate-on-long-navaljourney-DoCks-in-japan-3815991.html. 77 Luis Martinez, “Chinese Warship Came within 45 Yards of USS Decatur in South China Sea: US,” ABC News, October 1, 2018, https://abcnews.go.com/ Politics/chinese-warship-45-yards-uss-decatur-south-china/story?id=58210760. 78 Washington has conducted at least five FONOPs through late August 2019 as well as six FONOPs in 2018. This is in comparison to four in 2017, three in 2016, and one in 2015. See Collin Koh (@collinSLkoh), https://twitter.com/ CollinSLKoh/status/1166881038275989504 79 US Navy, Twitter (@USNavy), August 10, 2018, https://twitter.com/usnavy/statu s/1028018527381475328?lang=en. 80 Ryan Pickrell, “U.S. Sends B-52 Bombers Ripping through the Contested South China Sea Twice in Less than a Week as Tensions Soar,” Business Insider, September 26, 2018, www.businessinsider.com/us-sends-b-52-bombers-rippingthrough-south-china-sea-twice-in-a-week-2018-9. 81 See for example Ben Westcott, “U.S. Plans ‘Steady Drumbeat’ of U.S. Exercises in South China Sea: Mattis,” CNN, May 31, 2018, www.cnn.com/2018/05/30/ asia/mattis-south-china-sea-intl/index.html.

Military build-up in the South China Sea  199 82 Ryan Pickrell, “U.S. and Japanese Warships are Drilling in the South China Sea in a Show of Force in China’s Backyard,” Business Insider, September, 1, 2018, www.businessinsider.com/us-japanese-warships-put-on-show-of-force-insouth-china-sea-2018-9. 83 Richard Javad Heydarian, “Duterte and the Philippines’ Contested Foreign Policy,” AMTI, August 20, 2018, https://amti.csis.org/duterte-philippines-contestedforeign-policy/. 84 Greg Torode and Mai Nguyen, “Vietnam Seeks to Pacify China as Landmark U.S. Carrier Visit Signals Warming Ties,” Reuters, March 3, 2018, www.­reuters. com /article/us-usa-vietnam- carrier/vietnam-seeks-to-pacify- china-as-­ landmark-u-s-carrier-visit-signals-warming-ties-idUSKCN1GG03W. 85 Department of Defense, “Mattis Calls U.S., Vietnam ‘Like-Minded Partners,’” Defense Media Activity, January 25, 2018, https://dod.defence.gov/News/Article/ Article/1424401/. 86 Department of Defense, “Mattis, Indonesian Counterpart Reaffirm Defense Relationship,” Defense Media Activity, August 28, 2018, https://dod.defence.gov/ News/Article/Article/1615141/mattis-indonesian-counterpart-reaffirm-­defencerelationship/ and Department of Defense, “Mattis and Malaysian Counterpart Reaffirm Defense Relationship,” Defense Media Activity, September 25, 2018, https://dod.defence.gov/News/Article/Article/1644471/mattis-malaysiancounterpart-reaffirm-defence-relationship/ 87 Interestingly, there appears to have been a subtle policy shift since 2016 under Taiwanese President Tsai Ing-wen to recognizing “law of the sea” instead of “historical rights” defined by China’s nine-dash line in the SCS. But Taipei has remained guarded about its true policy. For more, see Chi-ting Tsai, “Taiwan’s South China Sea Policy Evolution,” AMTI, April 12, 2018, https://amti.csis.org/ taiwan-scs-policy-evolution/. 88 Michael Gold and Greg Torode, “As Taiwan Beefs Up Prized South China Sea Outpost, Barely a Peep from China,” Reuters, May 25, 2014, www.reuters. com/article/taiwan-southchinasea/as-taiwan-beefs-up-prized-south-china-sea-­ outpost-barely-a-peep-from-china-idUSL3N0O70AV20140525. 89 “Taiwan Asks Google to Blur Island Images,” Reuters, September 22, 2016, www.reuters.com/video/2016/09/22/taiwan-asks-google-to-blur-island-images? videoId=369920675. 90 Abraham Gerber, “Foreign Ministry Defends Itu Aba Live-Fire Exercises,” ­Taipei Times, August 26, 2017, www.taipeitimes.com/News/taiwan/archives/ 2017/08/26/2003677199. 91 “British Navy’s HMS Albion Warned Over South China Sea ‘Provocation,’” BBC, September 6, 2018, www.bbc.com/news/uk-45433153. 92 “South China Sea: UK Could Send Aircraft Carrier to Back Australian Vessels,” The Guardian, July 21, 2018, www.theguardian.com/world/2018/jul/21/southchina-sea-uk-could-send-aircraft-carrier-to-back-australian-vessels. 93 Commander Task Force 70 Public Affairs, “American, British Navies Sail Together in South China Sea,” Commander, US 7th Fleet, January 16, 2019, www. c7f.navy.mil/Media/News/Display/Article/1732757/american-british-naviessail-together-in-south-china-sea/. 94 “France, UK Announce South China Sea Freedom of Navigation Operations,” Naval Today, June 6, 2018, https://navaltoday.com/2018/06/06/france-ukannounce-south-china-sea-freedom-of-navigation-operations/. 95 Tuan Anh Luc, “Are France and the UK Here to Stay in the South China Sea?” The Diplomat, September 14, 2018, https://thediplomat.com/2018/09/ are-france-and-the-uk-here-to-stay-in-the-south-china-sea/. 96 Ben Werner, “Future South China Sea FONOPs Will Include Allies, Partners,” USNI News, February 12, 2019, https://news.usni.org/2019/02/12/41070.

200  Derek Grossman 97 David Brunnstrom and Michael Martina, “Xi Denies Turning Artificial Islands into Military Bases,” Reuters, September 25, 2018, www.reuters.com/article/ us-usa-china-pacific/xi-denies-china-turning-artificial-islands-into-military-­ bases-idUSKCN0RP1ZH20150925. 98 See for example Harry J. Kazianis, “Why China Could Declare a South China Sea ADIZ Right About Now,” The National Interest, February 1, 2017, https://nationalinterest.org/blog/the-buzz/why-china-could-declare-southchina-sea-adiz-right-about-now-19273. 99 For an authoritative examination of Chinese enforcement in the East China Sea, see Michael Pilger, “ADIZ Update: Enforcement in the East China Sea, Prospects for the South China Sea, and Implications for the United States,” US Economic and Security Review Commission, March 2, 2016, www.uscc.gov/ sites/default/files/Research/ADIZ%20Update_0.pdf.

13 Intelligence, surveillance, and reconnaissance in the South China Sea Collin Koh Swee Lean

Introduction Compared to the “sexier” kinetic weapons, intelligence, surveillance, and reconnaissance (ISR) is a less appreciated aspect of the forces build-up in the South China Sea. Yet its importance cannot be overstated. In the contemporary era of full-spectrum operations ranging from peace to war, ISR constitutes an indispensable force multiplier. Especially when armed services contend with the need to do more with fewer assets—and may even have less instead—ISR facilitates the deployment and employment of limited platforms which in today’s context have become more flexible and mobile yet may also be equipped and threatened by long-range standoff weapons. Simply put, ISR relates to not just the ability to detect, identify, track and engage targets of interest, but also allows the synthesis and sense-making of time-sensitive data, thereby contributing to decision-making from the strategic down to tactical levels, while denying the same to adversaries where applicable. ISR is multi-dimensional, dealing with not only the terrestrial elements: air, surface, and underwater; but also other domains such as space and increasingly, the cyberspace. And ISR is not merely confined to the electromagnetic spectrum because human intelligence (HUMINT) in particular also complements technical intelligence sources. That said, while kinetic assets are already costly to begin with, building the necessary ISR supporting infrastructure remains a complex undertaking. Unlike kinetic assets, the capability asymmetry between contending parties in the ISR realm can potentially be wider and more varied than expected, fraught with surprises and uncertainties. While the risks posed by the deployment of kinetic military capabilities are obvious and well debated, those risks associated with the growth of ISR capabilities are much less so. Yet at the same time, it would be unwise to discount the ramifications the growth of ISR capabilities have on SCS peace and stability. On the one hand, ISR capabilities provide early warning, detection and helps in the enhancement of one’s overall maritime domain awareness, which therefore results in more decisive and swifter response to contingencies in the contested waters. In a way, this could be argued as

202  Collin Koh Swee Lean aiding in the maintenance of peace and stability, since any party’s action— including force build-up that could be a pre-warning sign of an aggressive operation—could be picked up at the earliest opportunity, allowing the governments to pre-empt, prevent or mitigate such developments. On the other hand, however, it is also clear that ISR capabilities enhance not only maritime domain awareness in the SCS, but also targeting—allowing kinetic military capabilities to come into play in a more efficacious yet also, more lethal, manner. This also makes any military clash, be it accidental, inadvertent or premeditated, deadlier, and potentially more escalatory in nature. This chapter focuses mainly on the SCS littoral states which are not only claimants but also professed non-claimants such as Indonesia, whose exclusive economic zone off the resource-rich Natuna Islands overlaps part of China’s nine-dash line claim. Given that the SCS is an international waterway, other key stakeholders which are maritime users are given due mention because of the roles they play in the SCS ISR scene. This chapter certainly does not profess to cover every single aspect of this salient field, thereby acknowledging the significant research gaps where it comes to data collection since ISR capabilities are often closely guarded state or military secrets. As such, it emphasizes maritime domain awareness (MDA) capabilities in the SCS,1 with particular focus on maritime patrol and reconnaissance aircraft (MPRA), unmanned aerial vehicles (UAVs), as well as earth observation satellites (EOSs).

Maritime patrol and reconnaissance aircraft Until recently, investments in MPRAs, a key type of airborne ISR asset that operates over the SCS, have largely been an afterthought when it came to maritime forces capacity development in the region. It is necessary to properly distinguish the type of MPRA because the right type of capability matters in the SCS context. Long-range MPRAs with the requisite range and endurance are essential for wide-area ISR over a considerable maritime body.2 The American P-8A Poseidon is what one would categorize as a long-range MPRA, usually based on a wide-bodied airliner body and crammed internally with a multitude of sensors including a multi-function surface search and targeting radar, electro-optics, magnetic anomaly detector (MAD),3 sonobuoys and associated acoustic signals processor, and at least a limited electronic warfare suite. Usually such MPRAs, because of their size, can carry a considerable payload to bestow a limited offensive capability, such as anti-ship cruise missiles carried on underwing and fuselage hardpoints. But what is particularly distinctive about long-range MPRAs is the internal weapons bay, which may carry lightweight anti-­submarine torpedoes and mines. Given such capabilities, it is little wonder that longrange MPRAs would fetch a premium price tag, for example, the Poseidon

Intelligence, surveillance, and reconnaissance  203 at around US$125 million as per FY2016 flyaway cost.4 Such high costs naturally put MPRAs in the class of the Poseidon out of reach for many countries in the region, especially those in Southeast Asia. The ubiquitous Poseidon and its predecessor, the Cold War-era P-3C Orion, are often seen flying over the SCS alongside equivalent planes serving in allied services such as those of Australia and Japan. These aircraft remain the dominant aerial players over the SCS waters, augmenting surface assets in projecting these regional powers’ presence. While MPRAs exist in the inventories of SCS militaries and maritime law enforcement agencies (MLEAs), they are not considered the most up-to-date. Newer ones were procured in the early 1990s, whereas many were vintage airframes. Table 13.1 shows, not counting the extra-regional actors, Taiwan arguably possesses the most capable MPRA fleet, after the newly built Orion from the US replaced the antiquated S-2T Tracker. MPRAs in Southeast Asian service by comparison, are not only of older vintage but do not serve in appreciable quantities for some countries proportional to their needs. Moreover, most of these models might be more accurately designated “maritime surveillance aircraft” or MSA—they do not possess the complex mission suites that can be found on board longrange MPRAs as outlined earlier in the P-8 example such as Poseidon. Instead, they have typically modest outfits—a multi-function surface search radar, electro-optics, and at times limited electronic warfare sensors—and Table 13.1  M  PRAs of SCS parties Country

Type

Quantity

Brunei Darussalam China

CN235M Y-8Q/GX6 MA60H Y-12 C212-200 CN235 PATMAR N-22B/SL Searchmaster B/L Boeing-737-200 B200T King Air CL415MP BN-2A Defender C-90 (formerly TC-90) Fokker-27–200MPA N-22SL Searchmaster L C-130 (SABIR) P-3C Orion DHC-6–400 Twin Otter C212–400MPA

1 4+ 1+ ? 3 6 14/6 3 3 2 4 3 1 1 1 12 6 3

Indonesia

Malaysia The Philippines

Taiwan Vietnam

Source: Based on International Institute for Strategic Studies (IISS), Military Balance 2018, and corroborated with other reports.

204  Collin Koh Swee Lean they do not tout internal weapons bay. External hardpoints are all that are available to carry limited stores. Most glaringly in view of the submarine proliferation, these planes are also not optimized for anti-submarine warfare, lacking essential equipment such as MAD, sonobuoys (if any, they are mounted externally), and the ability to prosecute enemy submarines on their own. Instead, the most observed Southeast Asian countermeasure is to buy surface assets and especially submarines, not ASW-optimized MPRAs. The Chinese Y-8X, a tactical airlifter mounted with an awkward-­looking nose radome housing a Cold War-vintage surface search radar, would have been analogous to whatever Beijing’s Southeast Asian rivals in the SCS could muster by far. This capability is changing, however. The PLA Navy Air Force now touts the new Y-8Q/GX6 that could be roughly equivalent to the early P-3 Orion variant at least. It represents China’s first true long-range MPRA, being equipped with not only a multi-function surface search radar but also a visible MAD “tail” as well as internal weapons bay. Four Y-8Q/ GX6s were spotted at the PLA Lingshui Airbase on Hainan Island in June 2017.5 The Y-8Q/GX6 thus places China next in line after Taiwan in terms of resident MPRA capability in the SCS. An upcoming newcomer to ­China’s gradually expanding MPRA fleet is the indigenous AG600 amphibious plane, which has lately undergone successful water flight trials. The AG600 would replace the vintage SH-5, and an MPRA variant is envisaged amongst several functions. Non-claimant, SCS littoral state Indonesia comes third, especially following an influx of new CN235 PATMAR (PATroli MARitim, or maritime patrol in Bahasa) built around state-owned aerospace firm PT Dirgantara license-built Airbus CN235 outfitted with a French Thales mission suite. The situation is not as rosy for the other SCS parties, however. Malaysia has long recognized the need to monitor its vast maritime zone,6 an urgency considering the existing fleet of Beechcraft B200Ts has reduced from its original five to just three planes due to accidents. In November 2017 the Royal Malaysian Air Force mooted plans to acquire four new MPRAs.7 But as part of its recent austerity drive to cope with considerable national debt, the government cancelled those plans.8 Vietnam has outstanding plans for a long-range MPRA to augment the “short-legged” ones in service. For some time, second-hand P-3s from either Japan or the US had been considered by Hanoi. However, the acquisition foci for both Malaysia and Vietnam have been on acquiring more surface assets. In recent years, it has been the Philippines which is making noteworthy progress in the MPRA realm. Facing not just problems in the SCS but also the Philippine Rise off its eastern archipelagic seaboard, Manila has sought to rectify the long neglect on its airborne MDA capabilities. Japan provided much help—leasing and eventually transferring TC-90s (re-­designated C-90) to the Philippine Naval Air Group. But the C-90 in its original service with the Japan Maritime Self-Defense Force is built for training, not maritime surveillance. Nonetheless, the C-90 remains newer and possesses

Intelligence, surveillance, and reconnaissance  205 longer range than the antiquated Britten-Norman Defenders, and Manila is eager to obtain more.9 As the Long Range Patrol Aircraft (LRPA) program appears to have stalled, interim stopgap measures have been undertaken. To this end, the air force recently took delivery of a converted C-130 Hercules airlifter retrofitted with the US-funded Special Airborne Mission Installation and Response (SABIR), a bolt-on mission suite comprising a surface search radar and an electro-optical surveillance system.10

Unmanned aerial vehicles One promising solution towards addressing capacity shortfalls in expensive manned ISR platforms such as MPRAs has been in the development of UAVs. Use of drones can be less manpower-intensive (pilots for manned aircraft can be costly to train) and potentially less complex to operate and maintain. At the same time, drones exploit dual-use technologies that are readily available on the global commercial market thus bringing about potential cost reductions. Operationally, drones can put operators out of harm’s way especially when confronted with hostile defences. For persistent MDA in the SCS, it is necessary to highlight that UAVs alone may not necessary be able to supplant manned MPRAs, and it is necessary to point out that high-altitude and long-endurance (HALE)-type and medium-­altitude and long-endurance (MALE)-type UAVs would be essential for such purposes. Short-range, typically battlefield tactical UAVs, usually characterized by low endurance, would not suffice for the type of persistent MDA missions over considerable water bodies such as the case of the SCS. Table 13.2 highlights the postulated UAV inventories of the SCS parties.11 In the SCS, China is clearly in the lead where it comes to unmanned aerial maritime surveillance, after years of its comprehensive unmanned systems programmes have finally paid off. It is able to not only deploy the less capable light UAVs but more notably, the MALE- and HALE-type drones for persistent MDA. The PLA reportedly deployed the Yaoying (Harrier Hawk) II Air Sniper UAV to the SCS.12 The BZK-005 MALE drone was spotted via satellite imaging on Woody Island in May 2016 and 2017.13 Both types of MALE drones. The EA-03 is a HALE drone analogous to the American RQ-4 Global Hawk and is reportedly designed with tracking and possibly targeting of US Navy carrier strike groups as part of its versatile plethora of long-range, standoff missions.14 Not only is Beijing capable of fielding MALE and HALE drones for maritime surveillance in the SCS, it is also able to deploy armed UAV for limited strikes, in particular the Caihong (Rainbow) and Wing Loong (Winged Dragon) I/II series. This would include lightweight ASCMs giving these drones the ability to strike at coastal and patrol combatants as well as small landing craft—typically the mainstay of Southeast Asian navies in the SCS. Taiwan lags behind its estranged mainland brethren in developing especially MALE- and HALE-type UAVs for persistent MDA not just around

206  Collin Koh Swee Lean Table 13.2  P  ostulated UAV inventories of SCS parties Country

Type

Category

China

BZK-005 Changying ASN-209 Yinying Yaoying Modified S-100 Camcopter (?) AV-500W* GJ-1 EA-03 Xianglong ScanEagle Skeldar V-200 Rajawali 720 Rajawali 350 Aerostar Wulung Wing Loong I Aludra UAV-RS* Chung Shyang II Fulmar X Blue Horizon II ScanEagle Hung Chueh Chung Shyang II Teng Yun Orbiter 2 HS-6L

MALE MALE MALE Tactical Tactical MALE HALE HALE Tactical Tactical Tactical Tactical Tactical Tactical MALE Tactical Tactical Tactical Tactical Tactical Tactical Tactical Tactical MALE Tactical HALE

Indonesia

Malaysia

The Philippines Taiwan Vietnam

Source: Compiled by author through consolidation and corroboration across multiple sources of data. *  denotes programmes that are possibly experimental and not yet operational.

the main Formosan island but also in the SCS. The navy so far operates light UAVs, in particular the Chung Shyang II. Cognizant of its weakness in this capability area, Taiwan has stated its intent to emphasize developing UAVs for maritime surveillance, as part of its 2019 draft defence budget.15 The focus of this reinvigorated emphasis centres on the Teng Yun MALE drone, which Taiwanese defence authorities intend to not only be used for maritime surveillance but also armed for coastal defence strikes. Taiwan’s Coast Guard Administration (CGA), however, would be more crucial to watch given that the agency has since taken over SCS garrison duties from the Marine Corps and spearheads presence operations. In December 2017, the CGA was cleared to acquire 20 rotary-winged UAVs over the next two years for SCS operations.16 There is wider asymmetry between China and its Southeast Asian rivals in the SCS, in terms of the level of sophistication and, of course, the scale of those UAV programmes. Some of these militaries have identified longterm requirements of operating both manned and unmanned aerial MDA

Intelligence, surveillance, and reconnaissance  207 assets, and they certainly view UAVs as a key solution that makes up for key shortfalls in relatively more expensive MPRAs. But so far, these Southeast Asian SCS parties operate light UAVs handicapped by short -range and low endurance, the same qualitative characteristics of their MPRA fleets as well. A number of these navies operate the UAVs as a shipborne ISR tool, complementing the vessels’ shipboard sensors, for example the case of the Malaysian Maritime Enforcement Agency (or Malaysian Coast Guard) Bagan Datuk-class Next-Generation Patrol Craft equipped with launch catapult for Thales Fulmar X light UAV which is in the same category as, say, the popular American ScanEagle which also serves the militaries of Indonesia, the Philippines and Singapore. None of these UAVs in service are equipped for strike missions. Their lightweight build contributes to limited payload capacity for the necessary sensors required for maritime surveillance. Some of the UAVs may also be extremely useful in providing ISR support for coastal defence, such as the case of Vietnam’s Israeli-built Orbiter 2 light UAVs that provide targeting functions for shore-based coastal defence weapons units, in particular the Israeli-built EXTRA long-range artillery rocket system that has reportedly been deployed to the Spratlys. Purchasing UAVs from abroad would be expensive and potentially at risk of cut-off in supply in times of political tensions, unless reliable partners can be secured. Vietnam has reportedly collaborated with Belarus for the development of a HALE drone, ostensibly for maritime surveillance amongst other ISR purposes. If the project comes into fruition, Vietnam would become likely the first Southeast Asian operator of HALE drones. Interestingly, Indonesia reportedly acquired the Chinese-made Wing Loong I UAVs in 2017,17 which would have conferred a MALE drone capability. These would serve the air force, which has traditionally been sharing aerial MDA duties with the Indonesian Naval Aviation. It is likely that Indonesia has decided on such a move more as a way to catalyse its domestic UAV programmes, which involve multiple government and academic institutes.18 So far Indonesia has multiple UAV programmes across these various institutes, albeit covering mainly light UAV types, and with uneven progress. The Wulung light UAV for example had been cleared for mass production in April 2016.19 Notwithstanding the urgings by the incumbent President Joko Widodo administration, there is thus far lukewarm enthusiasm on domestic products. Government agencies continue to prefer foreign makes. Malaysia has identified future aerial MDA force mix to include both manned and unmanned systems. Especially in the wake of the accidents involving its small fleet of Beechcraft planes, and cognizant of funding constraints that would militate against timely acquisition of new MPRAs for replacement, the interest in UAVs for maritime surveillance has increased. “RMAF is planning to use UAV in future especially in monitoring strategic areas such as South China Sea, Straits of Melaka and Sulu Sea near Sabah,” Air Force chief Tan Sri Affendi Buang said in November 2017.20 To that end, Malaysia’s domestic UAV efforts can be at best said to be in infancy stage,

208  Collin Koh Swee Lean revolving around the Aludra drone project. In late 2016, Taiwanese media claimed that Kuala Lumpur acquired Taiwan’s Teng Yun UAV technology, though this was unconfirmed by Malaysian authorities.21 With or without such foreign assistance, clearly Malaysia is seeking to rectify shortfalls in persistent MDA capabilities through the procurement of MALE drones.

Earth observation satellites Space-based remote-sensing capabilities provide a critical area of ISR in the SCS, and of growing importance. Earth observation satellites are generally capable of numerous functions, for instance agricultural and forestry monitoring, support for disaster relief, and also vessels surveillance. Their mission payloads are considered modest, even if they can support a limited range of military applications. Ostensibly civilian-specification EOS may generate militarily significant data. For example, Singapore’s TeLEOS-1 EOS, developed by ST Electronics and aimed at spurring the country’s forays into the lucrative commercial space industry, can capture ground images of resolution as high as 1 metre. Such high-resolution images, furnishing astonishing details, would be extremely valuable for military ISR support. EOS is thus one grey area where it concerns ISR developments in the SCS. Most of the concerned parties have their own domestic EOS programmes, which are motivated in no small part by the need to wean reliance off expensive, not always real-time available, satellite images that are procured through commercial avenues. EOS cannot replace terrestrially bound ISR assets, such as MPRAs and UAVs; it at best complements them in filling certain sensor gaps. In short, EOSs alongside these systems, amongst others, constitute a comprehensive, multi-layered array of ISR capabilities that generate a comprehensive situational picture that informs decision makers at the tactical, operational and strategic levels. Generally, EOS can be categorized into various roles useful for ISR purposes, for example, imaging (optical or synthetic aperture radar) and signals intelligence (capable of picking up electromagnetic transmissions). The first type, imaging satellites, appears to be more widely observed in the region. By far, China again possesses a strong edge in the EOS arena over its SCS claimants, and this is also an ISR capability that has seen phenomenal growth over the years especially as Beijing could tap on dual-use technologies and knowhow that can be readily acquired from the open commercial market, much in the same vein as for unmanned systems, to develop a series of small satellites in the micro- and nanoscale. These programmes, which are scattered across state-owned and tertiary technical institutes nationwide, receive generous government funding and of course, benefit from the country’s most talented scientists and engineers in the satellite S&T fields. The primary EOS programmes revolve around the Gaofen-series (optimized for high-resolution imaging) and Yaogan-series. They have clear civilian and military applications. The Gaofen-series forms part of China

Intelligence, surveillance, and reconnaissance  209 High-resolution Earth Observation System (CHEOS) conceived of in 2010 to achieve all-weather, round-the-clock coverage by 2020 using a constellation of optical and synthetic aperture radar satellites. But most notably would be China’s Hai Yang (Ocean) series EOS programme, which began in May 2002, with the HY-1A providing the country’s first remote-­sensing system dedicated to ocean surveillance. The HY-1B satellite was launched in April 2007, followed by the HY-2 in August 2011 and HY-3 in August 2016.22 In September 2018, the HY-1C was launched, and HY-1D is slated for the same in 2019.23 The Hai Yang-series ocean surveillance EOS would not only benefit civilian marine research (the major beneficiaries being the First, Second, and Third Institutes of Oceanography), but also generate militarily useful data, for instance hydrometeorological conditions of the SCS that could facilitate planning of military and MLEA deployments in the contested waters. In December 2017, as part of the Hainan Provincial Government’s key S&T projects an EOS programme dedicated to the SCS ocean surveillance was launched. Implemented by the Sanya Institute of Remote-Sensing, the programme envisages a constellation of ten Hainan-1 and Sanya-1 optical, multispectral, and radar-imaging satellites within 4–5 years, which would give full coverage of the SCS. The first batch of three Hainan-1 optical imaging satellites would be launched in 2019.24 According to the institute, three such satellites would provide coverage on key areas of interest in the SCS, whereas if the constellation is expanded to 8–10 satellites, it is feasible to attain round-the-clock full coverage of the SCS.25 The completion of this constellation would grant China unfettered access to persistent space-based remote-sensing capabilities over the SCS, further widening the gap with its rivals already lagging in other ISR areas. By contrast, Southeast Asian SCS parties have only in the recent years begun in earnest with their domestic EOS programmes, which are also regarded as a potentially promising area for improving MDA. Vietnam has arguably the one of the most advanced EOS programmes of all Southeast Asian countries, in no small part benefitting from mainly Japanese assistance. The latest EOS placed into orbit was the Micro Dragon, launched in January 2019, with Japanese help. EOS has been explicitly listed as part of Vietnam’s plan to develop the necessary capabilities to effectively monitor Vietnam’s coastal and maritime zones. Typical of such satellites found under development or used in Southeast Asia, Vietnam’s EOS models are built to civilian specifications. But they clearly possess both civilian and military purposes, especially when one notes that the EOS programme encompasses institutes from the government, defence, and academic sectors. In the meantime, while the EOS programme has yet to come to fruition, Vietnam has forged links with external powers to improve its space-based remote-­sensing capabilities. Notably, the Indian Space Research Organisation (ISRO) has an agreement to build a satellite tracking station in Vietnam, which would allow the latter access to Indian remote-sensing data on

210  Collin Koh Swee Lean the SCS.26 According to Vietnam’s Ministry of Natural Resources and Environment (MONRE), the project was conceived under the ASEAN-­India Cooperation Fund framework, which provides the funding support, and that remote-sensing data generated by the station would be provided free of charge to ASEAN member states.27 However, the Asahi Shimbun quoted an anonymous source close to the Vietnamese Ministry of Defense as saying that the construction of the facility represents part of Hanoi’s efforts to “strengthen intelligence-gathering capabilities in the South China Sea.”28 In September that year, about two months after the Permanent Court of Arbitration ruling on the SCS disputes, Vietnam and India inked an Inter-­ Governmental Framework Agreement for Exploration and Use of Outer Space for Peaceful Purposes, whereby ISRO and MONRE would conclude an Implementing Arrangement on Establishment of Tracking and Data ­Reception Station and Data Processing Facility in Vietnam.29 In January 2018, ISRO and Vietnam’s National Remote Sensing Department inked an implementation agreement to establish a Data Reception, Tracking, and Telemetry Station in Ho Chi Minh City.30 Indonesia is also another significant Southeast Asian SCS player in EOS development. The Indonesian National Institute of Aeronautics and Space (LAPAN) began the programme with its personnel being trained in Germany, before LAPAN A1 was launched in 2007, followed by LAPAN A2— which was indigenously developed—in 2014. In June 2016, LAPAN A3 was launched. Notably, LAPAN A2 and LAPAN A3 are microsatellites that possess vessel monitoring capabilities via automatic identification system (AIS). The former flies on an equatorial orbit whereas the latter on a polar orbit, thus giving more comprehensive ship tracking coverage, especially over the vast Indonesian archipelagic region.31 This should naturally include the SCS, where Jakarta has been grappling with foreign illegal fishing activities and whose maritime forces have had close encounters with rival counterparts in waters off the Natuna Islands especially. By contrast, the other Southeast Asian SCS parties more modest EOS programmes. Notably, the Philippines had made significant strides in its nascent programme, launching the first of the Diwata-series EOS and most recently, the Maya-1—all of which having benefitted from Japanese assistance. The Philippine Earth Data Resource Observation (PEDRO), housed within the University of the Philippines-Diliman campus, is the facility ­responsible for tracking the Diwata-1 satellite and downloading data, which is applicable across a wide spectrum of functions including fishery monitoring. Though not strictly speaking a militarily optimized microsatellite, the Diwata-1 is capable of capturing images of 3 metre resolution at nadir (lowest point of its orbit), which could generate quite reasonable information that could contribute to defence and security planning purposes. What is noteworthy is the capacity-building role played by Japan in support of EOS programmes in Southeast Asia. Aside from being an important stage in the Philippine space program, Diwata-1 is also the inaugural microsatellite of

Intelligence, surveillance, and reconnaissance  211 Japan Aerospace Exploration Agency (JAXA) 50-microsatellite constellation initiative for the purpose of monitoring the entire Southeast Asian region and Bangladesh.32

Other notable developments Warranting special mention in this paper are some new developments, especially considering China’s ability to undermine foreign ISR activities in the SCS. Long wary of foreign surveillance on its possessions in the contested waters, especially following the construction and militarization of artificial islands attracted much international interest, Beijing has continued to warn off approaching foreign aircraft—in particular American MPRAs. There were potentially incendiary moments during some of the aerial close encounters, such as the warning issued by the Chinese forces in the Spratlys to a US Navy P-8 in May 2015,33 and the alleged unsafe intercept conducted by Chinese fighters against a US Navy signals intelligence aircraft off Hainan in May 2016.34 China does not appear to roll back on measures aimed at denying foreign forces from getting too close to those sensitive sites for intelligence collection. Jamming of those ISR devices should not have come across as anything new. In May 2014, amidst the standoff at the Second Thomas Shoal that was occupied by the Philippines, China allegedly employed communications jammers against a pair of Filipino military planes in the area.35 Then the following year, US officials alleged that China attempted to jam US drone flights over the SCS.36 In mid-2018, Chinese GPS jammers reportedly disrupted US Navy flight operations in the area. Little was known about the exact nature and characteristics of Chinese deployment of jamming equipment to the SCS waters, but it is not implausible to surmise that at least the more critical far-flung outposts, such as the military hub on Woody Island in the Paracels, would be equipped with such capabilities. Even much less was known about the equivalent capabilities employed by China’s Southeast Asian rivals in the SCS, and whether they had indeed been deployed to those occupied features. But the latent capability does exist, even if not uniform across Southeast Asia. For instance, the Vietnam People’s Navy established a dedicated electronic warfare unit in May 2017, ostensibly directed at the SCS.37 Taiwan’s counter-ISR capabilities deployed to its largest possession, Itu Aba, were also not known even though it is possible to postulate that if necessary, it may deploy a type of locally developed jammer vehicle designed to counter China’s Beidou satellite navigation network which would facilitate satellite-guided weapons strikes. If not ground-based ISR sensors deployed to the occupied SCS features, lately the Philippines besides notable acquisition of the C-90 from Japan and C-130 SABIR from the US, has also ramped up its other ISR capabilities. In July 2017, the Philippine Air Force obtained a pair of modified Cessna-208B Grand Caravan EX ISR aircraft that serve with the 300th Air

212  Collin Koh Swee Lean Intelligence Wing. Though not as sophisticated as those which serve the PLA for instance (the Gao Xin-series electronic warfare aircraft), the pair of planes provide a dedicated ISR capability that can be deployed across multiple roles, not least maritime photo-surveillance.38 Prior to the arrival of these specialized ISR assets, the Philippine Air Force would have to rely on non-specialized airframes to conduct visual observation close to the targets of interest.

Conclusions ISR capabilities will become increasingly more critical in the execution of peace- and wartime missions in the SCS. For long, these assets are often paid less attention than the kinetic weapons that have largely grabbed headlines reporting on the SCS military and MLEA build-ups, and still ongoing spate of militarization. Most significant of all has been the phenomenal achievements made by China within a short span of time in this area. The ISR asymmetry it has long enjoyed vis-à-vis its Southeast Asian rivals is only going to further widen in the coming years as more long-range MPRAs, UAVs, and EOS constellation enter service to furnish comprehensive, if not perfect, maritime domain or situational awareness in the SCS. Overall, it contributes to further shift in military power balance towards China’s favour in the SCS, even against the prospect of extra-regional intervention. This development is worrisome to say the least, especially considering the scale of comparable ISR programmes and existing capabilities amongst Beijing’s SCS rivals in Southeast Asia. For a long time, these Southeast Asian parties have endured persistent shortfalls in their maritime defence and security capacities, especially in terms of the number of aircraft and vessels they could deploy at any one time, across key spots. Southeast Asian countries with vast maritime zones, not least Indonesia, Malaysia, and the Philippines always have to contend with daily, transnational and transboundary maritime challenges that require attention. Southeast Asian SCS claimant states’ force capacities are disproportionately limited vis-àvis the extent of the maritime zones these governments have to police. Consequently, ISR—especially one concerning maritime domain or situational awareness—­becomes crucial because it could allow these forces to deploy scarce resources optimally across such a wide multitude of daily tasks, including coping with exigencies in the SCS. Without the necessary eyes and ears, there is no way of knowing where to channel or divert physical assets to deal with maritime law enforcement scenarios when there is a dearth of platforms out there conducting round-the-clock on-station surveillance. Not only has China managed to boost its capacity for physical power projection, that is, having an increased pool of vessels and aircraft to deploy out in areas of interest in the SCS, but it is also fast gaining the ISR supporting architecture to facilitate more optimal, more effective employment of these assets. Not only does the growing plethora of ISR capabilities allow Beijing to respond in a timelier manner to exigencies in the SCS, but it

Intelligence, surveillance, and reconnaissance  213 also allows pre-­emptive knowledge of the other parties’ force movements and possibly, overall i­ ntent—thereby allowing China to devise necessary counters. It is also now in a better position to target these foreign forces, through an enhanced ISR “sensor shooter” loop thanks to the multitude of different assets it could muster in both terrestrial, space, and even cyber domains. All in all, it is a double checkmate on Beijing’s Southeast Asian rivals in the SCS. It is essential to note that the funding climate for Southeast Asian ISR capabilities is foreseeably going to remain dismal to say the least. Limited defence and security budgets do not necessarily head into ISR programmes but still mainly other “big ticket” purchases such as multi-role fighter jets, guided missile warships, and submarines, whereas platforms such as MPRAs continue to be relegated as an afterthought. It is heartening to see some reinvigorated interest amongst Southeast Asian governments in investments into ISR capabilities, especially MPRAs, and even UAVs and EOS. But the future funding commitments are going to be uncertain at best. Malaysia’s MPRA programme being placed on the government austerity drive chopping board is just one such example. Until these Southeast Asian players finally get around with funding commitment challenges and acquire sufficient capacities, they are still going to rely heavily on extra-regional ISR support in the SCS. The involvement of key extra-regional players such as Australia, Japan, and the US will foreseeably continue and may be further enhanced as these powers increase their interest in the SCS. Under pre-­existing and new arrangements, the data collected by the ISR assets deployed by these extra-regional militaries would be shared with their Southeast Asian counterparts. Still, this is a less-than-optimal solution in the long run. It will have to run in parallel with national self-help programmes to bolster ISR capabilities. With the continued forays of these extra-regional powers’ ISR assets in and over the SCS, it is possible to also envisage potential risks to crisis stability. In recent years, there appear to be not only unabated presence of foreign ISR activities in the SCS but also increased involvement of unmanned systems that could potentially result in new forms of tensions. The PLA Navy’s seizure of an American underwater drone in waters off the Philippines in December 2016 being another. It is not only plausible to see foreign drones plying the skies over the SCS watching with interest the occupied features and other forces’ movements, but also that at least some of the claimants may seek to do the same. And they may not take kindly to the other parties’ attempt to counter such activities. Notably, for example, following an incident involving a Chinese UAV flight over the disputed ­Senkaku/Diaoyu Islands in October 2013, Chinese defence authorities warned Japan against shooting down its drones: Resorting to the enforcement measures including the shooting down of airplanes as stated by the Japanese side constitutes serious provocation, and is an act of war. We will definitely adopt resolute counterstrike measure, and perpetrator shall bear all the consequences.39

214  Collin Koh Swee Lean Such a stance could possibly apply to the SCS as well. And should such a contingency ever happen, the consequences could be potentially direr than the aftermath of the Sino-US drone incident in December 2016.

Notes 1 Maritime domain awareness (MDA) refers here to the effective understanding of anything associated with the maritime domain that could impact the security, safety, economy, or environment. It is a key component of an active, layered maritime defence in depth, and typically achieved by improving the ability to collect, fuse, analyze, display, and disseminate actionable information and intelligence to operational commanders. There are various definitions of MDA used by countries worldwide. But this chapter adapts the American version outlined in US National Plan to Achieve Maritime Domain Awareness, published in ­October 2005. 2 Long-range MPRA typically has a flight endurance of 16 hours, as opposed to 4–7 hours for a short- and medium-range equivalent. It also has over 50 tons take-off weight, which allows it to carry more payload compared to short- and medium-range MPRAs at less than 20 tons and 20–30 tons respectively. A. Nejat Ince, Ercan Topuz, Erdal Panayirci and Cevdet Isik, Principles of integrated maritime surveillance, Boston, MA: Kluwer Academic Publishers, 1999, pp. 189–190. 3 A magnetic anomaly detector or MAD is a military-grade magnetometer that is mounted on an aerial platform, designed to detect changes to the Earth’s magnetic field caused by the ferro-magnetic properties of a submarine. 4 US Navy Awards Boeing $2.5 Billion Contract for 20 More P-8A Poseidon Aircraft, Boeing News Releases/Statements, 29 January 2016. 5 Mike Yeo, “China deploys new anti-submarine aircraft to fringes of South China Sea,” Defense News, 22 June 2017. 6 Martin Carvalho, Hemananthani Sivanandam and Rahimy Rahim, “Mat Sabu: RMAF looking to boost maritime surveillance assets to monitor shipping routes,” The Star Online, 9 August 2018. 7 “RMAF: We’re buying four maritime patrol aircraft,” The Star Online, 8 ­November 2017. 8 Neily Syafiqah Eusoff, “Defence Ministry cancels Maritime Patrol Aircraft ­project,” The Edge Markets, 13 August 2018. 9 Priam Nepomuceno, “JMSDF to give PH Navy more TC-90 planes,” Philippine News Agency, 16 June 2018. 10 US Government Provides New SABIR System to Enhance Philippine Air Force Capabilities, US Embassy in the Philippines, 14 August 2018. 11 It needs to be caveated here that this mapping of inventory is only tentative, based on available information, and could be subject to revisions. 12 “GAIC Air Sniper UAV probably deployed to South China Sea, been monitoring foreign warships,” Alert5.com, 19 May 2016. 13 Lucas Tomlinson and Yonat Friling, “New satellite imagery shows Chinese drone on contested island,” Fox News, 26 May 2016; Mike Yeo, “China deploys new anti-submarine aircraft to fringes of South China Sea,” Defense News, 22 June 2017. 14 This could mean the EA-03 may provide crucial targeting data for the PLA’s anti-ship ballistic missiles which are reported to have been developed for the purpose of destroying American carrier strike groups. 15 “濱海決勝抵抗共軍 國軍籌建戰鬥無人機飛行載具 [Littoral defence against the PLA, military develops unmanned aerial systems],” 聯合報 [United Daily News]

Intelligence, surveillance, and reconnaissance  215

16

17 18

19 20 21 22 23

24 25 26 27 28 29

30

31 32

31 August 2018; Scott Morgan, “Taiwan plans military drone fleet to protect coast,” Taiwan News, 4 September 2018. Lo Tien-pin, “Coast guard to begin operating drone fleet next year,” Taipei Times, 12 December 2017. In fact, the CGA has long evinced interest in getting UAVs for maritime surveillance, since the early 2000s. Rich Chang, “CGA unveils plan to buy UAVs,” Taipei Times, 5 October 2005. Ridzwan Rahmat, “Indonesia acquires four Wing Loong I UAVs from China,” IHS Jane’s Defence Weekly, 25 February 2018. These entities include the Ministry of Research and Technology, in collaboration with Bandung Institute of Technology, National Institute of Aeronautics and Space (LAPAN), and Technology Assessment and Application Agency (BPPT). “RI focuses on UAV development for border security,” LKBN ANTARA, 16 January 2017. Arya Dipa, “RI aircraft manufacturer’s military drones approved,” The Jakarta Post, 27 April 2016. Amrizan Madian, “RMAF plans to use high-tech UAV to strengthen national air defence,” The Star Online, 21 November 2017. “中科院銳鳶無人機　獲馬來西亞訂單 [NCSIST’s Teng Yun UAV obtains Malaysia’s contract],” 上報 [Upmedia], 31 October 2016. ““海洋二号”卫星完成对地定向 [Hai Yang 2 satellite completes orbital positioning],” 中国海洋报 [China Ocean Report], 6 February 2017. According to the State Administration of Science, Technology and Industry for National Defense (SASTIND), the HY-1C will help monitor ocean colour and water temperatures, providing basic data for research on the global oceanic environment. Its data will also be used in the survey of the resources and environment of China’s offshore waters, islands and coastal zones, marine disaster relief and the sustainable utilization of ocean resources. “China launches new marine satellite,” Xinhua News Agency, 7 September 2018. “海南卫星星座项目在三亚启动 [Hainan satellite constellation programme activated in Sanya],” 中国新闻网 [China News], 14 December 2017. Ibid. Dipanjan Roy Chaudhury, “New base: Satellite monitoring station in Vietnam to give India room in South China Sea region,” Economic Times, 4 January 2016. Setting up station for remote sensing surveys, data collection and processing, Ministry of Natural Resources and Environment of the Socialist Republic of Vietnam, 8 January 2016. “India teams up with Vietnam in South China Sea territorial row,” Asahi Shimbun, 29 March 2016. This deal will allow Hanoi access to data from India’s constellation of civilian and military remote-sensing satellites such as the radar-imaging satellite ­RISAT-2 (despite Indian officials’ insistence that it is used solely for disaster management, this satellite is capable of monitoring objects with dimensions as small as 10cm), more as a stop-gap measures before the more capable ­LOTUSat-2 comes on line. “Vietnam, India cooperate in remote sensing technology,” Ministry of Natural Resources and Environment of the Socialist ­Republic of Vietnam, September 6, 2016. The facility would link up with ISRO’s existing station established in Indonesia’s Biak to help New Delhi track and downlink data from the organization’s ­remotesensing satellites. “India moves closer to activate satellite tracking station in Vietnam, inks pact despite objection by China,” Deccan Herald, January 24, 2018. “Indonesia`s Lapan-A3 satellite launched in India,” ANTARA News, 23 June 2016. Deyana Goh, “Philippine Microsatellite Diwata-1’s First Year in Space,” SpaceTechAsia, 28 March 2017.

216  Collin Koh Swee Lean 33 Jim Sciutto, “Exclusive: China warns U.S. surveillance plane,” CNN, 21 May 2015. 34 Sam LaGrone, “China Contests Pentagon Account of ‘Unsafe’ Intercept of U.S. Navy Surveillance Plane by PLA Fighters,” USNI News, 19 May 2016. 35 Sammy F. Martin, “Gatchalian denounces China’s use of jammers,” Philippine News Agency, 9 May 2014. 36 Bill Gertz, “Chinese Military Using Jamming Against U.S. Drones,” Radio Free Beacon, 22 May 2015. 37 “Politics: Vietnam Navy Sets up Electronic Warfare Units amid East Sea Rising Tension,” Vietnam News Brief Service, 5 May 2017. 38 Dempsey Reyes, “US planes to monitor West PH Sea – Lorenzana,” The Manila Times, 29 July 2017. 39 “China to strike back if Japan shoots down unmanned aerial vehicle – official,” BBC Monitoring Asia Pacific, 26 October 2013.

14 US employment of marine unmanned vehicles in the South China Sea Raul (Pete) Pedrozo*

Introduction The use of marine unmanned vehicles (MUVs) has grown exponentially in the 21st century in terms of both the number of maritime systems being employed by the world’s navies, as well as the complexity of the missions they are designed to accomplish. This trend is expected to continue for the foreseeable future as unmanned systems have demonstrated their ability to “enhance situational awareness, reduce human workload, improve mission performance, and minimize overall risk to both civilian and military personnel, and all at a reduced cost.”1 US Department of Defense (DoD) funding for unmanned systems across all domains, for example, increased to $9.6 billion in Fiscal Year (FY) 2019,2 an increase of over $2.1 billion from FY2018. Of this total, $1.3 billion has been earmarked for MUVs.3 The pervasiveness and uses of unmanned systems continue to expand as new technologies have increased system persistence, stealth, mobility, versatility, and survivability. Moreover, because they reduce risk to human life, unmanned systems are becoming the preferred alternative for dull, dirty, or dangerous missions. In this regard, the DoD Integrated Roadmap states that unmanned systems: •

•

provide an ideal platform to conduct dull missions that “involve long-­ duration undertakings with mundane tasks that are ill suited for manned systems,” such as intelligence, surveillance, and reconnaissance (ISR) missions4; can better perform dirty missions, such as operations to detect chemical, biological, and nuclear material, by significantly reducing the risk of exposure of personnel to hazardous conditions; and

* Captain Raul (Pete) Pedrozo, USN (Ret.), is the Principal Deputy General Counsel for US ­Indo-Pacific Command and is a Non-Resident Scholar at the Stockton Center for the Study of International Law at the US Naval War College. The views expressed in this paper are those of the author and do not necessarily reflect the views of the US Department of ­Defense or US Indo-Pacific Command.

218  Raul (Pete) Pedrozo •

particularly autonomous systems can be used to conduct missions that are inherently dangerous—such as mine clearing operations, deactivating improvised explosive devices—to reduce the risk exposure to personnel.

The US Navy currently employs a variety of MUVs—both autonomous or remotely navigated unmanned surface vehicles (USVs) and unmanned underwater vehicles (UUVs)—that can be launched from aircraft, submarines, or surface ships to perform a number of missions in support of the Fleet. In the South China Sea, MUVs are deployed from US Special Mission Ships, like the Ocean Surveillance Ship USNS Impeccable (T-AGOS-23) and the Survey Ship USNS Bowditch (T-AGS-62), and from the three Littoral Combat Ships (LCS) currently operating out of Singapore. Varying in size and displacement, ranging from “man-portable systems to systems 40 feet in length and several thousand pounds of displacement,”5 MUVs can operate in bad weather and low visibility. This allows MUVs to perform a wide range of functions, such as harbour security, mine sweeping, securing critical waterways, scanning a ship’s hull for problems, and ocean tracking. Possible mission assignments for USVs in the South China Sea include “laying undersea sensor grids, antisubmarine warfare (ASW) prosecution, barrier operations, sustainment of carrier operating areas, mine countermeasures [MCM], [ISR]…, bottom mapping and survey [hydrographic surveys], and special operations support.”6 Similarly, UUVs deployed to the South China Sea can perform a variety of tasks including ISR, MCM, ASW, “inspection [and] identification, oceanography, communication/navigation network nodes, payload delivery, information operations (IO), time critical strike, barrier patrol (homeland defence, antiterrorism/force protection (AT/FP)), and barrier patrol (sea base support).”7 Although MUVs have been used for decades by both the military and commercial sectors, a number of legal issues arise with regard to their status and navigational rights and duties that are not specifically addressed in the United Nations Convention on the Law of the Sea (UNCLOS) or other international legal instruments, such as the Western Pacific Naval Symposium (WPNS) Code for Unplanned Encounters at Sea (CUES). The remainder of this chapter will examine (1) the characterization and status of MUVs as ships/vessels or other devices/objects under various maritime law conventions, (2) whether MUVs are entitled to sovereign immunity as a government ship/vessel or other government property, and (3) the navigational rights and freedoms that MUVs may exercise, as well as the corresponding duties and obligations, under the international law of the sea. This chapter will conclude with an examination of a real-world application of these issues—the seizure of a US Navy UUV by a People’s Liberation Army Navy (PLAN) vessel off the coast of the Philippines in December 2016.

US employment of marine unmanned vehicles  219

Characterization and status The term “military aircraft” includes both manned and unmanned aircraft.8 Unfortunately, DoD has not provided a similar bright-line definition for MUVs. Consequently, the seminal question is whether MUVs should be considered “ships” or “vessels” under international law and, if so, do they qualify as “warships” as that term is defined in UNCLOS Article 29. The terms “ship” and “vessel” are not defined in UNCLOS. They are defined, however, in differing ways in a number of other international instruments. For example, Regulation V/2 of the Safety of Life at Sea Convention (­SOLAS) defines “ships” as “any ship, vessel or craft irrespective of type and purpose.”9 Article 2 of the Convention for the Prevention of Pollution from Ships (MARPOL) is a bit more precise, defining “ship” as “a vessel of any type whatsoever operating in the marine environment and includes hydrofoil boats, air-cushion vehicles, submersibles, floating craft and fixed or floating platforms.”10 Similarly, Rule 3 of the Collision Regulations (­COLREGS) provides a more expanded definition of the term “vessel” to include “every description of water craft, including non-displacement craft, WIG [wing-in-ground] craft and seaplanes, used or capable of being used as a means of transportation on water.”11 A more expansive definition is also found in Article 1 of the London Dumping Convention, which provides that the term “vessels” means “waterborne…craft of any type whatsoever…[and] includes air-cushioned craft and floating craft, whether self-propelled or not.”12 Finally, Article 1 of the SUA Convention provides that “ship” means “a vessel of any type whatsoever not permanently attached to the sea-bed, including dynamically supported craft, submersibles, or any other floating craft.”13 One obvious takeaway from these various definitions is that the distinction between manned systems and unmanned systems—such as the means of propulsion, type of platform, capabilities, durability, persistence, human versus autonomous control, and potential mission sets—is not an essential characteristic of what constitutes a “vessel,” “ship,” or “craft” under international law. Consequently, lacking a definitive statement to the contrary, it is conceivable that most, if not all, MUVs can be characterized as a “ship,” “vessel,” or “craft” under international law. This conclusion is supported by the work of the Comite Maritime International (CMI), which has stated that existing international conventions that define the term ship do not include references to crewing and at national level…the definition of a ship is usually disconnected from the question of whether or not the ship is manned. It would…seem unjustified that two ships, one manned and the other unmanned, doing similar tasks involving similar dangers would not be subject to the same rules that have been designed to address those dangers.14

220  Raul (Pete) Pedrozo Similarly, 17 or 19 nations responding to a CMI questionnaire prepared for the International Maritime Organization (IMO) indicated that unmanned ships would constitute a ship under their national laws.15 In this regard, UNCLOS envisions the use of MUVs in the marine environment. Article 19, for example, provides that ships engaged in innocent passage may not launch, land, or take on board any military device.16 Similarly, Article 20 requires submarines and “underwater vehicles” to navigate on the surface and show their flag when transiting the territorial sea in innocent passage.17 Nonetheless, UNCLOS suggests that ships should be manned by a crew and under the control of a master. Article 94 provides that flag States are required to take necessary measures to ensure safety at sea with regard to their flag vessels, to include the “manning of ships…and the training of crews, taking into account the applicable international instruments.”18 Such measures shall include those necessary to ensure, inter alia, •

•

That each ship is in the charge of a master and officers who possess appropriate qualifications, in particular in seamanship, navigation, communications, and marine engineering, and that the crew is appropriate in qualification and numbers for the type, size, machinery, and equipment of the ship. That the master, officers, and, to the extent appropriate, the crew are fully conversant with and required to observe the applicable international regulations concerning the safety of life at sea, the prevention of collisions, the prevention, reduction, and control of marine pollution, and the maintenance of communications by radio.19

In taking these measures, the flag State “is required to conform to generally accepted [i.e., IMO-approved] international regulations, procedures and practices and to take any steps which may be necessary to secure their observance.”20 There is nothing in UNCLOS, however, that specifically requires that the master or crew be physically present on board the ship. It is not uncommon for Unmanned Aerial Vehicles (UAVs) to be remotely piloted by personnel that are, in some cases, on a different continent thousands of miles away.21 It is therefore not inconceivable that an MUV could similarly be remotely operated by a crew and under control22 of a master that is shore-based, far removed from the area of operation, or embarked on a warship or naval auxiliary in the vicinity of the MUV. There is nothing to prevent a flag State from ensuring that the master, officers, and crew that are remotely manning and operating an MUV are fully conversant with and required to observe the applicable international regulations in SOLAS, COLREGS, MARPOL, and the maintenance of communications by radio. CMI would agree that the requirements of Article 94 can “arguably be met in case of remotely operated ships.”23 With regard to training, MUV operators undergo extensive

US employment of marine unmanned vehicles  221 instruction at several training centres, such as the Mine Warfare Training Centre,24 the Naval Surface and Mine Warfighting Development Center,25 or at the Warfare Center26 that is the core support center for the specific system—Naval Air Warfare Center,27 the two Naval Undersea Warfare Centers,28 or the eight Naval Surface Warfare Centers.29 MUV operators are exposed to a wide range of methodologies in both the classroom (e.g. fundamentals of operation and maintenance) and hands-on training (e.g. practical application of classroom instruction), thereby providing students with an optimal learning environment. Follow-on and refresher computer-­ based training, to include online simulations of actual operations, is provided as needed.30 The surface combatant with the greatest number of unmanned systems in its inventory is the Littoral Combat Ship (LCS). These systems support a variety of missions, including surface warfare (SUW), anti-submarine warfare (ASW), and mine countermeasures (MCMs).31 The unmanned systems detachment on board the LCS consists of 15 officers and technicians assigned to each of the respective mission modules—SUW, ASW, MCM. Prior to deployment the detachment receives classroom and hands-on training in each of the areas at the Shore Based Trainer in San Diego, California, and computer-based modules are available on board the ship for refresher training while the ship is deployed.32

Are MUVs warships? Assuming an MUV can be characterized as a “ship” or “vessel,” the next question is whether the MUV qualifies as a “warship” as that term is defined in international law. The tern “warship” is defined in UNCLOS as a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline.33 Although Article 29 is qualified by the phrase “for the purposes of this Convention,” US Navy doctrine recognizes this definition as authoritative.34 Certainly, an MUV can belong to the armed forces of a State and can bear external markings regarding its nationality. Are MUVs, however, capable of being “under the command” of a commissioned officer and “manned” by a crew subject to armed forces discipline? Although, as previously mentioned, DoD classifies UAVs as military aircraft, it has not adopted a similar position with regard to MUVs. Rather than designate MUVs as warships, US Navy doctrine categorizes MUVs engaged exclusively in government, non-commercial service as sovereign immune “craft.”35 That said, as discussed above, there is nothing in UNCLOS that requires that the commander or crew be physically on board the warship.

222  Raul (Pete) Pedrozo Thus, if UAVs can be remotely piloted and still qualify as a military aircraft, there is nothing that would prohibit the US from taking a similar position with regard to MUVs. That is, MUVs can be remotely manned by a crew and under the command of a commissioned officer that is not physically present on the MUV, and still be considered a “warship” under both domestic and international law. As MUV use and mission sets expand in the coming years, DoD may need to re-examine its policy with regard to the status of MUVs. Under current Navy doctrine, warships are the only vessels that may exercise belligerent rights, to include the right to conduct offensive attacks, during international armed conflict at sea.36 Naval auxiliaries, merchant vessels, and presumably MUV crafts may only defend themselves from enemy attacks—they may not conduct attacks in offensive combat operations in an international armed conflict.37 Yet, the Navy Unmanned Underwater Vehicle (UUV) Master Plan identifies Time Critical Strike (TCS) as one of the nine UUV mission areas.38 TCS provides the capability to deliver ordnance to a target with sensor-toshooter closure measured in seconds, rather than minutes or hours. … Launching a weapon from a UUV, or a UUV delivered weapon cache, allows a launch point closer to the target resulting in quicker response time for prosecution.39 A UUV’s stealth and long-standoff distance and duration features allow for clandestine weapon delivery and remote launch, thus making the UUV an ideal weapon platform or weapon cache delivery vehicle for TCS missions.40 Underwater weapons cache or buoyant missile launch capsules delivered by an UUV can “loiter in place awaiting launch instructions, or the UUV itself could carry the weapons and loiter.”41

Rights and freedoms As a sovereign immune craft, MUVs enjoy the immunities and all the navigational rights and freedoms enjoyed by manned warships and other ­government-owned or operated vessels used on non-commercial service. A similar conclusion has been reached by the CMI: [assuming]…unmanned ships are ‘ships’ and ‘vessels’ within the meaning of UNCLOS, it follows that they are subject to the same rules of the law of the sea as any ordinarily manned ship. The same obligations apply to unmanned ships and their flag states with respect to compliance with international rules. On the other hand, they also enjoy the same passage rights as other ships and cannot be refused access to other states’ waters merely because they are not crewed.42

US employment of marine unmanned vehicles  223 Additionally, seventy (70) percent of the nations responding to a CMI questionnaire indicated that unmanned ships would enjoy the same rights and duties as manned ships under UNCLOS.43 Incidentally, the US maritime law association stated that under US law “ship” is defined without regard to manning and that unmanned ships are probably subject to the same rights and obligations under the law of the sea.44 Accordingly, MUVs may exercise the right of innocent passage in foreign territorial seas and archipelagic waters.45 Additionally MUVs may be deployed from another military platform that is engaged in innocent passage as long as their employment is consistent with UNCLOS Articles 19 (employment not prejudicial to the peace, good order or security of the coastal State) and 20 (no submerged transit in innocent passage).46 Likewise, MUVs enjoy the right of unimpeded transit passage, in the normal mode, through straits used for international navigation between one part of the high seas or an exclusive economic zone (EEZ) and another part of the high seas or an EEZ and their approaches.47 Similarly, MUVs may exercise the right of archipelagic sea lanes passage (ASLP), in the normal mode, while transiting through, under or over archipelagic sea lanes, which include all routes normally used for international navigation and overflight.48 Finally, beyond the territorial sea, MUVs poses the full range of high seas freedoms of navigation and other internationally lawful uses of the sea guaranteed to all ships, vessels, or crafts—manned or ­unmanned—by international law.49

Sovereign immunity As a matter of customary international law, all manned and unmanned vessels and aircraft owned or operated by a State, and used, for the time being, only on government non-commercial service are entitled to sovereign immunity. As previously discussed, the US views MUVs engaged exclusively in government, non-commercial service as sovereign immune craft. Moreover, the US takes the position that an MUV’s sovereign status is not dependent on the status of its launch platform, but rather is inherent in the MUV.50 Accordingly, MUVs, wherever located, are immune from arrest, search, inspection, and foreign taxation. Additionally, MUVs retain exclusive control over persons onboard with respect to acts performed on board, cannot be required to fly a foreign flag when entering a port or while engaged in innocent passage, and have the authority to protect the identity of personnel, stores, weapons, or other property on board the craft.51 The principle of sovereign immunity is reflected in various provisions of UNCLOS. Article 32, for example, specifies that nothing in UNCLOS “affects the immunities of warships and other government ships operated for non-commercial purposes.”52 Similarly, Articles 95 and 96 make clear that warships and government owned or operated ships used only on government non-commercial service operating on the high seas have complete

224  Raul (Pete) Pedrozo immunity from the jurisdiction of any State other than the flag State.53 Article 58 applies the immunities described in Articles 95 and 96 to the EEZ—“Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone….”54

Duties and obligations With these rights and freedoms come a number of corresponding duties and obligations that MUVs must observe. First, with regard to innocent passage, passage is considered prejudicial to the peace, good order, or security of the coastal State if a ship engages in a number of proscribed activities listed in Article 19. Thus, MUVs engaged in innocent passage are prohibited from: •

• • • • • •

using force (or threatening the use of force) against the sovereignty, territorial integrity, or political independence of the coastal State or in any other manner in violation of the principles of international law embodied in the UN Charter; exercising or practicing with weapons of any kind; collecting information to the prejudice of the defence or security of the coastal State; engaging in acts of propaganda aimed at affecting the defence or security of the coastal State; launching, landing, or taking on board of any aircraft or military device; carrying out of marine scientific research or hydrographic survey activities; and conducting acts aimed at interfering with any systems of communication or any other facilities or installations of the coastal State.55

UUVs engaged in innocent passage must also navigate on the surface and show their flag.56SOLAS and UNCLOS allow coastal States to designate traffic separation schemes (TSS) and sea lanes in the territorial sea or international straits to regulate shipping, if such measures are necessary to ensure safety of navigation.57 Warships, naval auxiliaries, and other government-owned or government-operated ships used only on government non-commercial service, including MUVs, however, are not legally required to comply with such sea lanes or TSSs. SOLAS Regulation V/1 exempts such vessels from compliance.58 Sovereign immune vessels, including MUVs, that elect not to comply with IMO-approved, designated sea lanes and TSSs must still exercise due regard for the safety of navigation. Similarly, while exercising high seas freedoms of navigation and other internationally lawful uses of the seas in the EEZ, MUVs must do so with due regard to the rights and duties of the coastal State.59 Although MUVs are sovereign immune craft, if an MUV does not comply with the laws and regulations of the coastal State concerning innocent passage (e.g.

US employment of marine unmanned vehicles  225 intelligence collection) and disregards any request for compliance therewith that is made to it, the coastal State may require the MUV to leave the territorial sea immediately.60 Likewise, the flag State bears international responsibility for any loss or damage to the coastal State resulting from the non-compliance by a warship or other government ship operated for non-commercial purposes, including MUVs, with coastal State laws and regulations concerning passage through the territorial sea or with the provisions of UNCLOS or other rules of international law.61

Why is this important? The aforementioned issues do not exist in a vacuum—they have real-world application today and have the potential for serious miscalculation and possible conflict if not addressed correctly and holistically by the nations concerned. On December 16, 2016, People’s Liberation Army Navy (PLAN) Dalang-III class submarine rescue vessel illegally seized a US Navy UUV in the Philippine EEZ about 50 nautical miles (nm) northwest of Subic Bay. The UUV—an unclassified “ocean glider” system used by a number of navies to collect “military oceanographic data such as salinity, water temperature, and sound speed”—had just completed a pre-­ programmed military oceanographic survey route in international waters and was returning to the nearby USNS Bowditch (T-AGS 62).62 As the crew of the Bowditch, an unarmed naval oceanographic vessel, was attempting to recover the UUV and a second UUV, the PLAN vessel launched a small boat and retrieved the UUV.63 At the time of the incident, the Bowditch was legally conducting routine operations in international waters off the coast of the Philippines in full compliance with international law. Moreover, the seized UUV was clearly marked as US Navy property. The ­D alang-III ignored repeated calls from the Bowditch to return the UUV and departed the area indicating she was “returning to normal operations”64 The following day, the US Government demanded that China immediately return the unlawfully seized UUV using appropriate diplomatic and military channels. DoD Press Secretary Peter Cook stated that the incident was “inconsistent with both international law and standards of professionalism for conduct between navies at sea” and “called on Chinese authorities to comply with their obligations under international law and to refrain from further efforts to impede lawful US activities.”65 Cook further elaborated that “the UUV is a sovereign immune vessel of the United States.”66 Three days later, on December 20, a PLAN Type 056 Jiangdao class corvette 510 returned the UUV to the USS Mustin (DDG 89). Nonetheless, Press Secretary Cook reaffirmed that the US was committed to upholding the accepted principles and norms of international law and freedom of navigation and overflight and will continue

226  Raul (Pete) Pedrozo to fly, sail, and operate in the South China Sea wherever international law allows, in the same way that we operate everywhere else around the world.67 China’s seizure of the UUV violated three norms embedded in international maritime law and reflected in UNCLOS and other treaties. First, the seizure of the UUV, which was clearly marked as US Navy property, reflects China’s willingness to brazenly steal another sovereign’s property that was operating legitimately in the Philippine EEZ conducting lawful military activities. Second, China intentionally violated the hallowed, long-standing principle of sovereign immunity—as a sovereign immune craft, the UUV enjoyed sovereign immune status and no nation, including China, has the right to assert jurisdiction over it (see UNCLOS Articles 32, 95, and 96). Finally, the seizure confirms China’s status as a serial violator of the rules based order that governs the world’s oceans, and further demonstrates ­China’s proclivity to disrupt the freedom of navigation on, and other lawful uses of, the high seas guaranteed to all nations by international law (see Articles 58, 86, and 87).68

Conclusion Unmanned systems are here to stay. If anything, their use and mission sets will continue to expand as new technologies, including greater stealth, persistence, autonomy, and durability, are developed and employed. Although it can be argued that the current state of international law is adequate to regulate these newly emerging systems, there remain gaps in both domestic and international laws and regulations that need to be filled in order to better control the employment of unmanned systems in the marine environment. This may require the intervention of the International Maritime Organization (IMO) and its various committees and sub-committees to provide definitive guidance on matters such as safety of navigation and protection of the marine environment that are acceptable to all nations, or simply a reinterpretation of the meaning and scope of existing law of the sea instruments and domestic laws and regulations. In this regard, the IMO’s Maritime Safety Committee (MSC) agreed at its 98th session to include in its 2018–2019 biennial agenda and the provisional agenda for MSC 99 an output on “Regulatory scoping exercise for the use of Maritime Autonomous Surface Ships (MASS),” with a target completion year of 2020.69 The scope of the exercise will focus on identifying relevant instruments and regulations that are related to MASS and, in particular, those that may have an impact on, or may limit the introduction of, MASS.70 The Legal Committee (LEG) has similarly undertaken a regulatory scoping exercise of the IMO conventions under its purview to determine whether the existing international regulatory framework should be modified to integrate the new and advancing technology of MASS.71Nonetheless, until these gaps are filled,

US employment of marine unmanned vehicles  227 the international community can expect that the US will continue to uphold the accepted principles and norms of international law and freedom of navigation and overflight and will continue to operate its MUVS in the South China Sea wherever international law allows, in the same way that US forces operate everywhere else around the world.

Notes 1 US Department of Defense Unmanned Systems Integrated Roadmap FY20132038 [hereinafter DoD Integrated Roadmap], p. 20, https://digital.library.unt. edu/ark:/67531/metadc949794/m2/1/high_res_d/DOD-USRM-2013.pdf. 2 John S. McCain National Defense Authorization Act for Fiscal Year 2019, H.R. 5515, 115th Cong, 2nd sess. (2018), www.gpo.gov/fdsys/pkg/BILLS-115hr5515enr/ pdf/BILLS-115hr5515enr.pdf. 3 David Klein, Unmanned Systems and Robotics in the FY2019 Defense Budget, Association of Unmanned Vehicle Systems International, Aug. 14, 2018, www.­ auvsi.org/%E2%80%8Bunmanned-systems-and-robotics-fy2019-defence-budget. 4 DoD Integrated Roadmap, supra note 1, p. 20. 5 DoD Integrated Roadmap, supra note 1, p. 109. 6 The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M (Aug. 2017), sec. 2.3.4, [hereinafter NWP 1-14M]. 7 Ibid., sec. 2.3.5. 8 Department of Defense Instruction (DoDI) 4540.01, Subj: Use of International Airspace by US Military Aircraft and for Missile and Projectile Firings, Jun. 2, 2015, p. 11. 9 International Convention for the Safety of Life at Sea, reg. V/2, Nov. 1, 1974, 32 U.S.T. 47, T.I.A.S. 9700, 1184 U.N.T.S. 278 [hereinafter SOLAS]. 10 International Convention for the Prevention of Pollution from Ships, art. 2, Nov. 2, 1973, 12 I.L.M. 1319 and Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, Feb. 17, 1978, 17 I.L.M. 546 [hereinafter MARPOL]. 11 Convention on International Regulations for Preventing Collisions at Sea, Oct. 20, 1972, rule 3, 28 U.S.T. 3459, T.I.A.S. 8587, 1050 U.N.T.S. 17 [hereinafter COLREGS]. 12 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, art. 1, Aug. 30, 1975, 26 U.S.T. 2403, 1046 U.N.T.S. 120, 11 I.L.M. 1294 (1972) [hereinafter LDC]. 13 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, Mar. 10, 1988, art. 1, 27 I.L.M. 672 (1988), 1678 UNTS 221 [hereinafter SUA Convention]; IMO DoC. LEG/CONF. 15/21, Adoption of the Final Act and Any Instruments, Recommendations and Resolutions Resulting from the Work of the Conference, Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, Nov. 1, 2005 [hereinafter SUA Protocol]. 14 In order to ensure that the required regulations are in place once unmanned ships become a reality, the CMI Executive Council has established an International Working Group to study the current international legal framework and consider what amendments, adaptions or clarifications are required in relation to unmanned ships to ensure the use and operation of such vessels is consistent with international law. CMI International Working Group Position Paper on Unmanned Ships and the International Regulatory Framework, p. 3, [here­ inafter CMI Position Paper], file:///C:/Users/raul.pedrozo/Documents/CMI-­ Position-Paper-on-Unmanned-Ships.pdf.

228  Raul (Pete) Pedrozo 15 MSC 99/INF.8, Feb. 13, 2018, Annex 1, p. 1, 16 United Nations Convention on the Law of the Sea, Dec. 10, 1982, art. 19.2(f), UN DoC. A/CONF.62/122 (1982), 1833 U.N.T.S. 3, 397, 21 I.L.M. 1261 (1982) [hereinafter UNCLOS]. 17 Ibid., art. 20. 18 Ibid., art. 94. 19 Ibid. 20 Ibid. 21 Ed Pilkington, Life as a drone operator: “Ever step on ants and never give it another thought?”, The Guardian, Nov. 19, 2015, www.theguardian.com/world/ 2015/nov/18/life-as-a-drone-pilot-creech-air-force-base-nevada. 22 The term used in UNCLOS Article 94 is in the “charge” of a master. 23 CMI Position Paper, supra note 14, p. 6. Have you explained what this is? [­RESPONSE; YES, SEE EN 14] 24 Mine Warfare Training Center homepage, www.public.navy.mil/netc/centers/ cscs/mwtc/Default.aspx. 25 Naval Surface and Mine Warfighting Development Center homepage, www. public.navy.mil/surfor/nsmwdc/Pages/Home.aspx. 26 Naval Sea Systems Command homepage, www.navsea.navy.mil/Home/WarfareCenters/. 27 Naval Air Warfare Center homepage, www.navair.navy.mil/nawcad/. 28 Naval Undersea Warfare Centers homepage, www.navsea.navy.mil/Home/­ Warfare-Centers/NUWC-Newport/; www.navsea.navy.mil/Home/WarfareCenters/NUWC-Keyport/What-We-Do/. 29 Naval Surface Warfare Centers homepage, www.navsea.navy.mil/Home/WarfareCenters/. 30 DoD Integrated Roadmap, supra note 1, p. 109. 31 Ibid. 32 Ibid. 33 UNCLOS, art. 29, supra note 16. 34 See NWP 1-14M, sec. 2.2.1, supra note 6. 35 Ibid., sec. 2.3.6. 36 Ibid., sec. 2.2.1. These limitations do not apply to non-international armed conflicts. 37 Ibid. 38 The Navy Unmanned Underwater Vehicle (UUV) Master Plan, Nov. 9, 2004, p. xvi, [hereinafter Navy UUV Master Plan], www.navy.mil/navydata/technology/ uuvmp.pdf. 39 Ibid. 40 Ibid., p. 15. 41 Ibid., p. 48. 42 CMI Position Paper, p. 3, supra note 14. 43 MSC 99/INF.8, Feb. 13, 2018, Annex 1, p. 4. 44 Ibid. 45 NWP 1-14M, sec. 2.5.2.5, supra note 6. 46 Ibid., UNCLOS, art. 19.2 and art. 20, supra note 16. 47 NWP 1-14M, sec. 2.5.3.2, supra note 6; UNCLOS, art. 38, supra note 16. 48 UNCLOS, art. 53, supra note 16. 49 Ibid., art. 58, 86 and 87. 50 NWP 1-14M, sec. 2.3.6, supra note 6. 51 Ibid., sec. 2.1. 52 UNCLOS, art. 32, supra note 16. 53 Ibid., art. 95–96. 54 Ibid., art. 58.

US employment of marine unmanned vehicles  229 55 56 57 58 59 60 61 62 63 64 65

66 67 68 69 70 71

Ibid., art. 19. Ibid., art. 20. Ibid., art. 22; SOLAS, Chap. V, supra note 9. SOLAS, reg. V/1, supra note 9. UNCLOS, art. 58, supra note 16. Ibid., art. 30. Ibid., art. 31. Terri Moon Cronk, DoD News, Defense Media Activity, Dec. 16, 2016, www. defence.gov/News/Article/Article/1032823/chinese-seize-us-navy-underwaterdrone-in-south-china-sea/. Ibid. Ibid. Statement by Pentagon Press Secretary Peter Cook on Return of US Navy UUV, News Release, Press Operations, Release No: NR-451-16, Dec. 19, 2016, www.defence.gov/News/News-Releases/News-Release-View/Article/1034224/ statement-by-pentagon-press-secretary-peter-cook-on-return-of-us-navy-uuv/. Ibid. Ibid. James Kraska and Raul “Pete” Pedrozo, China’s Capture of US Underwater Drone Violates Law of the Sea, Lawfare, South China Sea, Dec. 16, 2016, www. lawfareblog.com/chinas-capture-us-underwater-drone-violates-law-sea. MSC 99/5, Mar. 13, 2018. Ibid. LEG 105/11/1, Jan. 19, 218.

Conclusion Do Thanh Hai

A decade after the stand-off between the USS Impeccable and a handful of Chinese vessels in the vicinity of Hainan Island, the South China Sea remains a critical flashpoint in regional politics. It is no longer confined to a set of disputes over territories and resources among the coastal states bordering the South China Sea, but it has been transformed into a battleground for diplomatic and strategic manoeuvres for regional primacy, or for strategic realignments shaping the maritime order in a vast swathe of oceanic space. As laid out by Stein Tønnesson, the South China Sea conundrum is both a historical and contemporary problem. Since the beginning of the 20th century, the South China Sea has evolved from an unhindered waterway that connects coastal communities to a dangerous maritime area that divides nations. The latest episode of tension has taken place in the context of China’s rise and was centred on the legitimacy of China’s historic rights in the form of its nine-dash line map legally and politically. The entire region is now divided into two opposite legal stances: One is based on the universally accepted United Nations Convention on the Law of the Sea (UNCLOS), and the other is China’s own interpretation of international law. Although the case was brought to arbitration, the legal battle has not ended as China did not accept the court’s verdict. The wrangle was not confined a range of high-profile standoffs and incidents and the substantial military build-up at sea but has also been translated into a rising nationalism in all the claimant states and exchanges of reproaches at diplomatic forums. As a regional grouping, the Association of Southeast Asian Nations (ASEAN) has found it difficult to hold its members together as their interests have diverged under China’s push and pull. As the strategic waterway turned perilous, other major powers became entangled since they had vested interests in maintaining the existing maritime order. With the advantage of hindsight, Tønnesson argues that China’s maritime expansionism constituted the major destabilizing force which was again driving its small and medium sized neighbours to lurch closer to its rivals, particularly the US and the Western powers. Subsequent chapters have substantiated Tønnesson’s line of reasoning. Despite a decade of intense exchange of views and after the delivery of the arbitral award, the coastal states’ claims and positions remained wide apart.

Conclusion  231 No progress has been made on the sovereignty disputes over the Paracels and the Spratlys. Sovereignty claims are often carved in stone, and this is the case in the South China Sea. As indicated in chapters by Nguyen Thi Thanh Ha and Nong Hong, both Vietnam and China have asserted sovereignty over these island chains in their entirety on the basis of past interaction. Yet, their historical arguments are so far mostly used for political discourse and have not been empirically verified or impartially attested. There seemingly exists almost no hope for such disputes to be resolved in the near future. Then, history continues to serve as the key medium for contestation. In this sense, rigorous and thorough investigation into the history and historiography of the South China Sea problem would be important to identify where sovereignty lies. Beyond the land features, the coastal states have moved to clarify their sovereign rights and jurisdictional claims as most dangerous stand-offs have taken place at sea. By lodging its case to the Arbitral Tribunal established under Annex VII of UNCLOS, the Philippines refuted China’s claim to historic rights within its nine-dash line and that China-controlled features were either rocks or low-tide elevations. According to Nguyen Thi Thanh Ha, Vietnam also moved to clarify and align its claims to UNCLOS. Though not joining the Philippine case, Vietnam lodged a statement of interest to the court to defend its rights and interests, which rejected the nine-dash line concept and argued that all the features mentioned in the Philippines’ Memorial to the court are not full-fledged islands. In other words, they are not entitled to exclusive economic zones (EEZs) of their own. The arbitral ruling also made China to clarify its stance and claim, and later to change its approach. Through its official documents and its scholars, China now presented its claim as a combination of sovereignty over “Nanhai Zhudao,” maritime rights under UNCLOS, and historic rights. Yet ambiguity is the rule. China has still avoided clarification of the extent of its maritime claim and whether it is an entitlement to the land features or one based on historic rights. Such generality leaves no room for others to question or contest. The nine-dash line has rarely been mentioned in the official documents, yet as Nong Hong has opined, China has never stepped back, and its claim was still being enforced on the ground. The row was not just about the legitimate owners of the sea’s area and resources but also how overlapping claims should be settled. On the one hand, China objected to the use of adjudication in the belief that this way of dispute resolution would drive a wedge among neighbours, further deteriorating their relations. Nong Hong opined that China generally views direct negotiation and/or consultation between parties concerned as the “most practical means” to settle disputes. On the other hand, the Philippines considered legal proceedings as a legitimate pathway in case negotiations failed and took the case to the courtroom. As Nguyen Thi Thanh Ha argues, though being engaged in a number of bilateral talks with ­Beijing, Hanoi never ruled out other peaceful means, including legal actions, to

232  Do Thanh Hai resolve the disputes. In practice, the option was already tabled during the crisis of the Haiyang Shiyou oil rig in 2014. Another point of controversy is about how to manage the dispute and undertake interim measures to build trust. For a long time, China advocated “joint exploitation” as a temporary ­confidence-building measure. However, it is observed that Hanoi and Manila did not agree with Beijing’s concept. In the Vietnamese and Philippine vocabulary, the proper term is “joint development” which indicates all types of maritime cooperation, not just exploration and exploitation of hydrocarbon resources. Besides this, the key concern for any joint undertaking is the legality of the relevant claims under UNCLOS. Vietnam exercised a high level of distrust of China’s “joint exploitation” proposal mainly because it simply did not legally accept China’s nine-dash line, as Nguyen Thi Thanh Ha has pointed out. Jacqueline Joyce F. Espenilla noted that from the Philippine point of view, any joint development with China in the Reed Bank area, or other places within the Philippine EEZ, would be merely a form of political accommodation, which would mean giving in to China’s claim in the light of the arbitral award of 2016 and the current Philippine constitution. As the dispute deteriorated and the scope of disagreement expanded, the South China Sea became a regional headache which entangled ASEAN. The uncontrolled disputes undermined ASEAN’s objective and role because of frequent and dangerous skirmishes at sea and destabilizing power rivalry. ASEAN issued its first joint statement on the South China Sea in 1992 after China adopted the Law on the Territorial Sea and Contiguous Zone which allowed the use of force to protect its oil and gas activities in the South China Sea. After the Mischief Reef incident in 1995, ASEAN played a central role in engineering a code of conduct for the region. Cracks within ASEAN surfaced in July 2012 when the member countries’ ministers were not able to forge a common stance on the China-Philippines stand-off at the Scarborough Shoal. Stein Tønnesson argues that intra-ASEAN divisions were driven by disparities in members’ intrinsic interests. While some ASEAN members were at the frontline to resist China’s assertiveness, others were reluctant to challenge China directly, and yet others had a greater interest in bandwagoning with China for their own benefits. Nevertheless, as Nguyen Hung Son argues, ASEAN was resilient in its own way and was still relevant to the South China Sea issue. After its annual foreign ministerial meeting failed to come up with a joint communiqué in July 2012, ASEAN moved forward with a stronger, but subtler position which expressed concern over the militarization of the area and called for respect for “diplomatic and legal processes,” which was understood as implicit endorsement of the Tribunal’s ruling. The mismatch in interests is reflected in the different positions of the parties in the ongoing negotiations on the code of conduct. Analyzing the Single Draft South China Sea Negotiating Text (SDNT) adopted by ASEAN and China in 2018, Carlyle A. Thayer opined that such a diplomatic process

Conclusion  233 was far from a conclusion as major obstacles have not been cleared. The first and foremost point of dispute is the delineation of the geographical scope of the South China Sea and disputed areas, which is associated with the recognition and validation of all sovereignty and maritime claims. It is also a question as to the extent UNCLOS and arbitral ruling of 2016 are applicable in defining the coastal countries’ maritime entitlements and the legal status of the offshore features. Besides, negotiators differed on a range of issues including the conduct of military activities and the militarization of the area, cooperation among maritime law enforcement agencies, dispute resolution, and the legal status of the COC. Basically, key ASEAN members supported a meaningful and viable COC which would stipulate the stricter application of UNCLOS, specific rules for self-restraint and prohibition of militarization and unilateral military activities, specific instruments for dispute resolution and enforcement, and options for third-party accession. However, while evading the quest for clarity on the scope of application, China put the emphasis on the promotion of cooperative activities between China and Southeast Asian nations and the exclusion of external powers in terms of joint military exercises and hydrocarbon development in the South China Sea. No doubt, China utilized such an exclusive forum to impose its own rules and aimed to expel other major powers out of the region. China’s assertive actions in the strategic waterways and beyond were met with opposition from the major powers. Despite their neutrality in relation to sovereignty disputes, they all viewed safe and secure seaborne transportation as a vital national interest. None accepted the South China Sea as an area of exclusive Chinese control. For them, peace, stability, and the rule of law in the sea are critical elements of the security environment across the Indo-Pacific region. As Bonji Ohara elaborated, Japan considers the protection of sea lanes for energy transportation a high-priority goal because of its dependence on energy supplies from the Middle East. Tokyo was concerned about China’s military build-up, its unilateral efforts to undermine the status quo, and its claims and actions which were unrelated to international law. As a result, Japan adopted a policy of deterrence underpinned by the US military presence, and the supporting role of the Japanese Self-Defense Force. It also provided littoral countries, particularly Vietnam and the Philippines, with patrol craft and assistance in maritime domain awareness to resist China’s coercion. Still, the key player in the South China Sea is the US, which declares itself as a Pacific power and considers freedom of navigation through the sea as its national interest. Patrick Cronin disputed the speculation of a US retreat from Southeast Asia and argued that the Trump administration has adjusted its posture in the region by accepting the concept of ­Indo-Pacific. The US does not to seek a war or armed conflict with a rising China, but it is determined to compete with China economically and strategically. Awakened to the comprehensive challenge of China in the maritime domain, US political elites have increasingly accepted the need to prevent China from bending

234  Do Thanh Hai international rules by supporting regional countries to stand up to Chinese pressure. Against this backdrop, a bipartisan coalition within US politics has been working for a genuine whole-of-government strategy to cope with the challenge from China. Two interested but more prudent players in the South China Sea are India and the European Union (EU). As Felix Heiduk explained, the EU’s involvement in the South China Sea affairs was rather limited though a high proportion of its trade transits through the area. The EU efforts in the South China Sea were mostly confined to multilateral cooperation on tackling non-traditional security challenges, managing sea spaces and resources, and protecting the marine environment and ecology. The EU’s role was confined to the promotion of multilateral cooperation in the non-traditional security realm because it was constrained by a number of factors, most significantly by its focus on its immediate neighbourhood, its lack of hard power and strategic vision, and the divisions among its member states as a result of China’s increased influence. European powers such as France and the United Kingdom, have to act alone or resort to bilateral efforts in many circumstances to assert their voices over the South China Sea affairs. Gurpreet Khurana argues that India has played a more active role in the South China Sea under the Modi government which subscribed to Indo-­ Pacific vision as part of its “Act East” policy. From his perspective, the ­Indo-Pacific is a geopolitical construct which is defined by the rise of China and India as significant geopolitical actors, the greater need for maritime and navigational security, and the US’ geostrategic responses to China’s challenge. While being more willing to engage with the US and its allies to assure maritime security, India made it clear that it would not seek an anti-China coalition that would demote ASEAN. As a matter of fact, ­India was critical of both the US and China, denouncing US military activities in its EEZ and disapproving of China’s excessive claims and assertive behaviour in the South China Sea. In this vein, Khurana believes that the East Asia Summit would be the most suitable platform to enhance maritime security in the Indo-Pacific region through inclusivity and ASEAN centrality. In a snapshot on all major powers, it is clear that there is no consensus on how to restrain the destabilizing behaviour of a state like China. Though the US, Japan, India, and Australia all adopted the concept of Indo-Pacific as a new geopolitical construct, they differ on how to view China and how to address the challenges to maritime security and freedom of navigation. While the Japanese put emphasis on deterrence in military terms, the US is working toward a more broad-based and effective strategy to cope with China as a competitor. India widened its policy toolkit by cooperating with the US and its allies while avoiding any perception of colluding with them against China. Instead, India overtly supports ASEAN and protests against any attempts to contain China. The most disturbing fact is not about the tense trading of accusations and dangerous encounters at sea, but the significant arms build-up which would make the South China Sea a powder keg.

Conclusion  235 It remains debatable whether an arms race exists, but for whatever purpose, the region has been heavily militarized over the last decade or so. So far, the arms build-up is a regional problem, but not necessarily of an adversarial nature. Derek Grossman contended that China was by far the most active and aggressive arms builder in terms of ship production, the building or upgrading forward-operating bases in the Paracels and Spratlys, the massive deployment of naval, coast guard, and maritime militia forces, and the high frequency of patrols and military exercises. Other Southeast Asian nations such as Vietnam, Malaysia, Indonesia, and the Philippines were by no means peer competitors of China. They purchased and fielded new capabilities to develop a minimum deterrent and to prepare for contingencies in the maritime domain. Among them, Vietnam stood out as the most aggressive modernizer with the acquisition of Kilo-class submarines, coastal defence batteries, advanced surface combatants and multirole aircraft for defensive purposes as well as the significant expansion of its coastguard to cope with China’s grey zone operations. When it comes to intelligence, surveillance, and reconnaissance (ISR) capabilities, Collin Koh argues that China is no doubt in the lead. His research shows that China was well ahead other coastal states in the number of and the quality of long-range maritime patrol and reconnaissance aircraft, unmanned aerial vehicles, and earth observation satellites. Such an advantage in maritime domain awareness gives Beijing a critical edge in projecting power effectively over the entire South China Sea in terms of optimizing the deployment and employment of assets, gaining the initiative vis-à-vis adversaries’ moves, and facilitating precision strikes if necessary. The balance has been tipped in favour of China because its ISR investments have dwarfed that of its regional rivals in the area. Without the support of extra-regional powers, the Southeast Asian states would find it difficult to offset the imbalance in maritime domain awareness vis-à-vis China. As the overall balance of power was tipping in favour of China, extra-regional powers expanded their military footprints the South China Sea to prevent its domination by Beijing. Under the Trump administration, the US increased the frequency of its freedom of navigation operations or FONOPs, it conducted joint exercises with allies and partners and assisted regional countries to build up their maritime capabilities. US activities are designed to challenge China’s excessive maritime claims and to support the rule-based system. The US has worked hard to persuade its key allies to join forces to balance against China. Japan and Australia actively worked together to bolster regional capabilities and both have sailed warships through the South China Sea as a show of defiance to China. Distant powers such as the United Kingdom and France also sent warships to the region in support of the principle of freedom of navigation. For a long time, India has been a partner for maritime security with Southeast Asian countries, conducting joint exercises with Indonesia, Singapore, Thailand, and Vietnam. While there are indications of coordination among Western powers in their operations in the South China

236  Do Thanh Hai Sea, all tried to avoid the perception of a collusion or a collective attempt to contain China. US allies and partners all expressed support for the rulebased order but refused to join US FONOPs, which are considered as provocative of China. The rapid military build-up was making the South China Sea a combustive ground which was more prone to stand-offs and conflicts. The concentrated disposition of military assets in the strategic waterway of international importance eventually gave rise to the question about the rules for using force to resolve disputes and the rules for interactions among different forces to avoid collisions and armed clashes at sea. As analyzed throughout this volume, China has utilized the coastguard and militia, a military build-up, and the deployment of military assets as “forcible means” to create a fait accompli in the disputed areas. Examining international jurisprudence and state practices, Constantinos Yiallourides adopted a broad definition of the use of force and argued that China’s activities, particularly unilateral land reclamation and its continuous military build-up in the disputed features in the South China Sea, were of a coercive nature and could be considered as a resort to force against the other claimants to alter the existing status quo. Clearly, the case of the South China Sea presented a range of legal issues with regard to practices of intimidation and coercion which are not specially addressed in the United Nations Charter and other international legal instruments. Thus, in the dichotomy of war and peace, China’s coercion was located clearly in a grey area of the international legal system. Risks have arisen not only from the loopholes of current international law but also from its outdatedness. Technological advancement has added layers of complexity to the security and legal seascape in the South China Sea. The most striking development, which has been understudied, was the increased deployment and employment of marine unmanned vehicles (MUVs), both surface and underwater ones, for a broad range of combat and non-combat functions such as installing undersea sensors, conducting anti-submarine warfare operations, ISR, mine countermeasures, bottom mapping, geographical surveys, oceanography, and special operations support. Due to their advantages in terms of persistence, stealth, versatility, and survivability, more MUVs would be deployed in the near future, and unmanned systems would become an open ground for competition and conflict among states. Yet, their status, navigational rights, and duties have not been precisely addressed in the existing international legal instruments, including the UNCLOS. In sum, the South China Sea has proved to be an intractable hotspot which is actually a complex set of multiple correlated disputes. The escalating tensions in the maritime domain over the last decade have harmed the overall security environment and impaired relations among coastal states as well as among the big powers. Disagreement evolved from the overlapping sovereignty and maritime claims and has expanded to an all-round contest on marine resources, navigation, airspace control, military activities,

Conclusion  237 marine environmental protection, code of conduct, and ultimately rules and norms that govern regional politics. With the advantage of hindsight, it is clear that China has the strategic design to turn the South China Sea into its own backyard. However, the more China has tried to assert its physical control, the more prominent the South China Sea becomes on the ASEAN and international agenda. Over the past decade, a new setting has emerged. The South China Sea is no longer just a problem between China and some Southeast Asian littoral states but a regional issue that involves many extra-regional powers. Though the possibility of big armed conflict remains low in the near future, it was significantly higher than in previous periods as frequent encounters increased the risk of miscalculation and mishap. The prospect for final and full settlement of disputes appeared further distant as China is committed to push through its excessive claims. In response, other claimants’ stances and perspectives have become more rigid and nationalistic. After all, might gains ground as a preferred way to resolve disagreements at the expense of diplomacy and law. The collapse of trust is devastating to interdependence as every country now turns inward to protect its relative gain rather than looking for an absolute gain. However, the South China Sea is not owned by the coastal states. It is a strategic waterway that links the Indian and Pacific oceans, serving as a seaborne trade lifeline for many countries beyond the region. Also, there is anxiety that developments in the South China Sea would affect other regions, and the collapse of the legal order in the South China Sea would undermine the integrity of UNCLOS as the universal oceanic constitution. As theirs are at stake, extra-regional powers have gradually become entangled into the South China Sea squabble. The case of the South China Sea is indicative of a broader systemic change that is under way. The day of American mastery over the South China Sea might be over. Its primacy in the Pacific and Indian oceans also comes under serious challenge. In the maritime domain, China’s power has grown to a considerable extent which enables it to subdue its neighbouring countries while causing difficulties preventing US forceful intervention. What has happened in the South China Sea over the past decade shows that China has somehow managed to bend the law of the sea to its advantage, breaking it in many circumstances, without facing substantial punitive actions. In many circumstances, Southeast Asian nations were left alone to do the work of protecting the integrity of the UNCLOS system. The US has been slow to catch up with the new strategic seascape. In an open and all-out war with China, the US may prevail with substantial costs. But in peacetime, the US finds it difficult to counter China’s “grey zone” operations and to support Southeast Asian claimants to stand up to China physically and mentally. Beyond the maritime sphere, China’s influence over the Eurasian landmass and in the ocean arena is growing at the expense of the US. For some time now, the US has not been seen as the future, while China is seen as a rising power with enormous potential and stronger confidence. Though it might

238  Do Thanh Hai be more the effect of propaganda than reality, it is clear that the US is facing a real trust deficit in Southeast Asia. No one can contest US military and economic superiority, but no country is confident of the US resolve to go all the way against a rising China to defend its legitimate interests and the existing rules. Consequently, Washington has to double down on the trade war and rally its allies and partners to counter China. As the power structure shifts, so does regional order; the South China Sea has transformed from a storm in the teacup into one of the main arenas of geostrategic rivalry of the present time.

Index

Abe, Shinzo 113, 190; Indian Parliament speech 2007 140 Air and Maritime Domain Awareness (AMDA) 11 Air defence Identification Zone (ADIZ) 54, 55, 120, 128, 192 Aquino, Benigno 14, 15, 22 Anti Access/area denial strategy 32, 184 Arbitral Tribunal of the Law of the Sea see UNCLOS, Philippines, China ASEAN 2, 4, 5, 8, 12, 13, 22, 24, 32–40, 103, 119, 142; Anti access/area denial (A2AD) 192; Arbitral Tribunal 39; CBMs 44, 45, 50, 51, 54, 57; Centrality 141, 146, 156, 190; Code of Conduct (CoC) 3, 6, 10, 31–4, 37, 44–57, 86, 87, 103, 104, 112, 120, 172, 182; Declaration on the conduct of the parties (DoC) 3 10, 13, 30, 34, 43–7, 50, 51, 86, 87, 89, 103, 172; EU 161; Defence Ministers Meeting Plus 162; Foreign Ministers meetings 13, 32–4, 38, 39, 47–9, 84; Foreign Ministers meeting 2012 36, 46, 87; Free and Open Indo Pacific (FOIP) 123, 124; Indo Pacific 141; Indo Pacific Outlook 40; Treaty of Amity and Cooperation (TAC) 34, 53, 56, 161, 172; Regional Forum 5, 10, 138, 155, 161; Security cooperation 120–23; Summit 40 Asia Pacific Economic Cooperation (APEC) 122, 124 Australia 19, 22, 96, 141, 142, 151, 164, 172, 182, 189, 190, 203, 213; Bersama Lima exercise 189; FONOPs 189; Timor Sea Treaty 96; US 190; see also Quadrilateralism and Trilateralism Bolton, John (US National Security Advisor) 124 Britain see United Kingdom

Brunei 13, 21, 32, 33, 37, 49, 52, 53, 56, 61, 64, 109, 151, 176 Cambodia 13, 50; ASEAN Foreign Ministers meeting 2012 36, 46, 49, 51–4 China National Offshore Oil Corporation (CNOOC) 82, 94, 109 China, Aircraft carriers 19, 84; Air force (PLAAF) 183, 186, 192; Anti-access/ area denial (A2AD) 184, 192; Arbitral Tribunal 6, 8, 15, 16, 30, 60, 65, 67–72, 139; ASEAN 34, 35, 44–57, 71, 86, 87, 103, 115, 124–5, 129, 172; ASEAN maritime exercise 129, 130; Belt and Road (BRI) 118, 146, 159; Claim 1–5, 9, 14, 17–18, 25, 60–5, 8; Coast Guard (CCG) 185, 192; Declaration on Territorial Sea (1958) 61; Four sha 18, 25, 86; Grey zone tactics 185, 192; Indian Ocean 140; innocent passage 145; Jamming devices 211; Land reclamation projects 4, 12, 21, 26, 31, 32, 38, 70, 87, 109–11, 183; Maritime enforcement 11, 12, 28, 185; Maritime Militia (PAFMM) 185, 186, 192; Navy (PLAN) 125, 140, 183, 184, 186, 192, 204, 213, 225; Philippines 11, 24, 25, 28, 31, 67–72; Power projection 12, 183, 184; Sea control 19, 35; Law of Territorial Sea and the Contiguous Zone (1992) 62–4, 66; Party Congress (19th 2017), 109; South China Sea militarisation 110–11, 124, 125, 172–4, 182, 183, 186, 192; Sea control strategy 183; Woody Island 186; U shaped (nine dash) line 1, 3, 10, 15, 17, 18, 27, 35, 64–5, 68, 81, 82, 93, 99, 102, 109, 187, 202; UNCLOS 62, 63; US 5, 71; Vietnam 10, 11, 28, 37, 38, 81–2, 85, 175 (see also US, navy, Code of Conduct, ASEAN)

240 Index Clinton, Hillary 5, 10, 141 Code for Unplanned Encounters at Sea (CUES) 49, 52, 54, 55, 87, 129, 146, 218 Code of Conduct for the South China Sea see ASEAN Crestone oil company 32 Davidson, Philip (US Admiral) 183, 191 Duterte, Rodrigo 6, 14, 15, 17, 48, 190 Earth Observation Satellites (EOS): China 208–9, 212; Indonesia 210; Japan 210–11; Philippines 210; Vietnam 209 East Asian Summit (EAS) 35, 138, 139, 145, 146 Esper, Mark (US Defence Secretary) 190 European Union (EU) 8, 138, 161–5; Arbitral Tribunal 160; Arms exports to South China Sea states 163, 164; ASEAN 156, 161; Asia Pacific 155; Asia pivot 151; Belt and Road (BRI) 159; China 156, 159, 160; “Chinfluence” 160, 165; Common Security and Defence Policy (CSDP) 157; Defence White Paper 155; East Asia 167; Global strategy 154, 155, 162; Lack of urgency 159; Maritime Security Strategy Action Plan 162; Non-traditional security 164; Southeast Asia paper (2015) 164; UNCLOS 154, 155 Five Power Defence Arrangements (FPDA) 189 Freedom of Navigation Operations (FONOPs) see Australia, United States, Vietnam France 1, 9, 61, 78, 109, 151, 152, 157, 164, 165, 182; FONOPs 191, 192; Freedom of navigation patrols 162; Vietnam 162, 189 Gates, Robert (US Defence Secretary) 128, 142 Haushofer, Karl (German geographer 1869–1946) 138, 139 Hor Namhong (Cambodian Foreign Minister) 46, 47 India 8, 20, 22, 39, 126, 137–46, 182, 189; ASEAN 210; Act east policy 137, 189, 140; Asia Pacific 137; China 137, 141; Geopolitics 138; Indian

Ocean Region (IOR) 137, 139, 145; Indo Pacific 138, 140; Indonesia 190; Japan 140; Look east policy 137, 189; Navy 140; Quadrilateralism 142, 189; Singapore-Thailand exercises 190; Vietnam,143, 189, 210; US 145; US-differences with 144–5; USPACOM 137; UNCLOS 146; see also trilateralism Indian Ocean Rim Association (IORA) 142 Indo Pacific 39, 139, 140, 145; Free and Open Indo Pacific (FOIP) 39, 117, 123, 124, 138, 143, 189 Indonesia 14, 27, 35, 36, 46, 49, 50, 51, 53, 55, 64, 85, 87, 119, 164, 162, 191, 192, 212; Air and naval capabilities 187–8; Natuna islands 14, 187, 188, 202 Intelligence, Surveillance and Reconnaissance (ISR) 201–14 International Court of Justice (ICJ) 66, 97, 173–5 International law and force 170–7; China’s breech of 176 International Maritime Organisation (IMO) 220, 224, 226 International Tribunal of the law of the Sea (ITLOS) 67 Japan 8, 19, 22, 39, 78, 141, 172, 182, 203, 213; ASEAN 112, 114; China 106, 111–13; Code of Conduct 112; Free and Open Indo Pacific (FOIP) 124; India 140; Izumo (carrier) 190; Philippines 188, 190; Self Defence Forces (JSDF) 113–15; SLOCs 140; South China Sea 106–15; US defence cooperation 113–15, 126, 127, 190; Vietnam 190 Joko Widodo (Indonesian President) 187, 207 Kishida, Fumio (Japanese Foreign Minister) 112 Laos 13, 49, 54 Lee Hsien Loong (Singapore’s Prime Minister) 39 Mahathir Mohamad (Malaysian Prime Minister) 188 MALABAR naval exercises 142 Malacca Strait 4, 143 Malaysia 1, 4, 12, 13, 15, 21, 25, 27–9, 33, 38, 46, 48, 49, 51, 53, 54, 61, 64,

Index  241 85, 86, 109, 119, 181, 163, 164, 176, 182, 189, 191, 192, 212; James shoal 188; South Luconia shoal 188 Marcos, Ferdinand (Philippine President) 101 Marine Unmanned Vehicles (MUVs) 217–26; International regulation of 219–20, 221, 224; Legal status 220–4, 226; UNCLOS 218–21; US 217–18, 222, 223 Maritime Domain Awareness (MDA) 192, 202, 209; Indonesia 207; Malaysia 207; Vietnam 207 Maritime Patrol and Reconnaissance Aircraft (MAPRAs) 202–7, 211, 212; China 204, 212, 213; jamming devices 211; Japan 204; Malaysia 204, 213; Philippines 204–5; Taiwan 204–5; Vietnam 204 Mattis, James (US Defence Secretary) 14, 124, 142, 172, 191 Merkel, Angela 155 Modi, Narendra (Indian prime minister) 137, 138, 140, 143, 145, 159 Mogherini, Frederica (EU High Representative,) 154–6 Myanmar 14, 38, 39 Najib Razak (Malaysian Prime Minister) 188 Natalegawa, Marty (Indonesian Foreign Minister) 36, 47, 87 New Zealand 189, 191 Obama, Barack 119, 124 Pence, Mike (US Vice President) 106; Hudson Institute speech 127 Permanent Court of Arbitration 70, 124, 139, 152, 210 Pham Van Dong (Vietnamese Prime Minister) 79 Philippines 13, 15, 18, 19, 21, 26, 27, 33, 36, 37, 46–9, 50, 52, 55, 61, 64, 109, 111, 114, 119, 120, 151, 163, 176, 182, 192, 211; Air force 189, 212; Arbitral Tribunal 4, 6, 11, 14, 15, 25, 28, 37, 48, 68, 82, 98, 102–4, 109, 139, 188; China 11, 24, 25, 28, 31; China Joint development Agreement (JDA) 67–72; Constitution 100–1; Joint Marine Seismic Undertaking (JMSU) 14; Infrastructure for peace (14P) 104; Kalaayan 1, 3, 9, 15, 82; Malampaya gas field 98; Navy 188;

Presidential Decree no. 87 (1983) 101–2; Scarborough Shoal 4, 11, 24, 25, 29, 35, 51, 109, 110, 128, 183, 188, 192; Treaty of Paris (1898) 26; US 190; Second Thomas shoal 211; see also UNCLOS Pompeo, Mike (US Secretary of State) 39, 119, 141 Quadrilateralism (India, Japan US Australia) 141, 142, 189, 190, 192 San Francisco Conference (1951) 79, 112 Senkaku/Diaoyu Islands 192, 213 Shangri la Dialogue 124, 140, 141, 143, 145, 155, 162, 190 Singapore 35, 39, 48–54, 189, 208 South China Sea features (shoals, reefs and banks); Collins 32; Cuarteron 12, 68; Fiery Cross 12, 68, 110, 111, 162, 184, 186, 191; Gaven 12; Hughes 12; Itu Aba 9, 17, 69, 191; Johnson 10, 12, 32, 68; James 4, 28, 29, 86, 188; Ladd 187; Landsdowne 32; Luconia 25, 38, 188; Macclesfield 18, 25, 60, 86, 86; Mischief 3, 10, 12, 33, 44, 69, 110, 162, 184, 186, 191; Pratas 9, 25, 60, 86; Reed Bank 93, 98, 99, 103; Scarborough 4, 11, 14, 18, 19, 24, 25, 29, 36, 68, 69, 83, 110, 128, 183, 188, 190, 192; Subi 12, 110, 111, 162, 184, 186, 191; Tri Ton 82; Vanguard 4, 183; Woody 110, 184, 186, 205, 211 South China Sea, Geographic centrality 139; International law and force 170–7; Militarisation 172–82; Paracel Islands 1, 2, 9, 14, 18, 19, 25, 37, 60, 77–9, 81, 82, 83, 84, 86, 109; Oil reserves 2, 98; Spratly Islands 1, 9, 14, 17, 18, 19, 21, 25, 32, 33, 37, 44, 60, 68, 68, 77–9, 81, 83, 84, 86, 109, 111, 162, 183; see also Intelligence, Surveillance and Reconnaissance (ISR); Unmanned Aerial Vehicles (UAVs); Earth Observation Satellites (EOS); Marine Unmanned Vehicles Taiwan 9, 12, 17, 26, 54, 106, 151, 163, 173, 176, 203, 208, 211; Coast guard 206; military presence 191 Thailand 14, 19, 20, 39, 85, 86 Thucydides trap 126 Tonkin Gulf see Vietnam Trilateralism (India, Australia Indonesia) 189

242 Index Trump, Donald 122, 126, 141, 142; see also US Tsai Ing-wen (Taiwanese President) 173 Tusk, Donald (EU council President) 160 UNCLOS 2, 3, 8, 9, 13, 15, 18, 19, 26–30, 33, 35–7, 50, 54, 60, 61, 63, 66, 68–72, 77, 80–1, 84, 88–9, 93, 95, 97, 101, 144, 145, 151, 154; Arbitral Tribunal 4, 6, 11, 14, 16–17, 25–7, 29–30, 37, 39, 47, 53, 58, 66, 68, 81–3, 93, 95, 124, 139, 145, 152, 155; Articles 17–19 144, 220, 223; Article 20 220; Article 29 219, 221; Article 32 223; Article 58 224, 226; Article 74 97; Article 76 86; Article 83 86, 97; Article 86 226; Article 87 143, 226; Articles 88–115, 224; Article 94 220; Articles 95–96 223, 224, 226; Article 121(3) 16, 64, 69, 81, 83; Article 123 97; Article 287 70; Article 298 67, 68, 70; Innocent passage 20, 144; Freedom of navigation 19, 143–4; Maritime boundary agreements 96 United Kingdom 78, 151, 156, 157, 164, 182; Freedom of navigation patrols 162; FONOPs 191, 192 United Nations 56, 125; Continental shelf commission 15, 25, 26; Human Rights Council 160; Peacekeeping 121; Security Council 66, 171, 176 United Nations Charter 12, 40, 50, 56, 80, 84, 89, 114, 170, 171, 173, 175, 177, 224; Article 2(4) 170, 171, 173, 174, 176; Article 33, 56, 80; Article 102 56 United States 117–30; Alliances 19; Arbitral Tribunal 124; ASEAN 38, 39, 51, 119–20, 121, 123, 125; Asia Pacific 123, 125, 141; ASW 218, 221; Australia 190, 191; CENCOM 142; China drone incident (2016) 213, 214, 218, 225–6; China MoU 129; China naval Incidents 20, 111, 118, 190; China strategic rivalry 5, 6, 19–21, 31–2, 117, 124–8; Department of Defense (DoD) 217, 219, 221; East Asia 126, 127; FONOPS 5, 21, 84, 106, 111, 118, 125, 145, 182, 190; Free and Open Indo Pacific (FOIP) 39, 117, 138, 143; Freedom of navigation 19, 227; Grey-zone operations 126; Indo Asia Pacific 123, 125, 141; Indo Pacific 39, 117, 119, 120, 122–4, 127; INDOPACOM 113, 125, 138, 142,

183, 191; Japan 106, 191; Obama Administration 10, 31, 128, 141; National Defense Authorisation Act 2019 (NDAA) 127; National Security Strategy 122, 127; Navy 218, 221, 223; PACOM 137, 138, 141, 142; Pentagon estimates of China’s capabilities 185; Pivot (rebalance) 10, 31, 141; Philippines 190; Quadrilateralism 190, 192; RIMPAC 125; Russia 125, 129; Trump Administration 6, 8, 117, 118, 121–3, 125–9, 141, 142 Unmanned Aerial Vehicles (UAVs) 202, 206–7, 220, 227; China 205, 212, 213; Indonesia 207; Malaysia 207, 208; Philippines 207; Singapore 207; Taiwan 206 Unmanned Underwater Vehicles (UUVs) 218, 223, 224 Vietnam 12, 13, 15, 21, 22, 33, 36–8, 46, 48, 50, 55, 56, 61, 77–89, 106, 111, 114, 119, 120, 129, 143, 151, 163, 164, 176, 182, 191, 211; Arbitral Tribunal 82–3, 88; ASEAN 84; Capabilities 186–7; Coast guard 186; Claim 1–3, 8, 9, 27, 77–84; China 10, 11, 28, 81–2, 85, 175; China land border 10, 175; China Haiyang Shiyou 981 oil rig incident (2014) 28, 37, 38, 82, 155; China fisheries agreement in Tonkin Gulf (2000) 85; Diplomatic Academy (DAV) 8; Fisheries Surveillance force (VFSF) 186; France 162; Israeli weapons 187; Japan 129; Kilo class submarine 186; Ladd reef 187; land reclamation 187; Law of Sea (2012) 80–1, 88; Maritime boundary agreements 85; National boundary law (2003) 77, 223; Military modernisation 121; Naval visits 129; Russian weapons 186; Spratly Island 187; Tonkin Gulf 2, 10, 85; UNCLOS 80–1, 88; US 191; US FONOPs 84 Wang Yi (Chinese Foreign Minister) 94, 112, 119 Western Pacific 1, 5 Xi Jinping 37, 106, 109, 119, 125, 128; Pledge not to militarise South China Sea (2015) 108, 119, 192 Zhou Enlai 79