South China Sea continues to remain a flashpoint

International discourses on international relations and strategic issues over the last two decades have centred on the rise of China, its increasing assertiveness and its readiness to use force to achieve its foreign policy and economic goals that sometimes impinge on other’s sovereignty and security, and ultimately threaten peace, stability and prosperity in the region. China’s expansive claim on the South China Sea at the expense of the legitimate claim of some other countries in the region, like Philippines, Vietnam and Malaysia, to name a few, it’s the land-grabbing techniques by stealth, artificial island-building  and its subsequent militarization to scare others to stay away from the region have reached a dangerous proportion turning South China Sea a flashpoint that can go out of control any moment, unless checked with institutional arrangements and rule-based order, with a wrong move by any of the actors in the region. Even after establishing de facto control over practically the whole of South China Sea, its greed for land and resources remain un-satiated. Chinais now claiming Thitu Island and a bundle of low-lying sandbars off the Philippines Coast.

While nowhere near the scale of Fiery Cross or Mischief Reefs, this island and bundle of low-lying sandbars is just as significant, as it’s a prosperous fishing spot. And it’s another potential territorial marker in the hotly contested international waterway. Now, China has physically staked its claim over the sandbars that surround it, evident from the claims of the Filipino fishermen, who are being driven away from their traditional fishing grounds, by Chinese ‘fishing militia’.The waters between Thitu Island and Subi Reef, both of which are near the north-western Philippines, have long been claimed as part of its territorial waters.But, since 2015, China simply took over Subi Reef and used land-reclamation engineering to turn it into an enormous naval and air force fortress.

Developments in the Thitu Island

Thitu Island itself is home to a Philippines slipway, jetty, runway and anchorage. The reef is disputed territory, also being claimed by Vietnam. But fishermen attempting to operate from there are being turned back as soon as they approach the nearest sandbar just 3km off the island’s coast.“It means they (the Chinese) think they own it because they refuse to leave. If they’re just really fishing, they can leave for Subi Reef and then come back, but they no longer leave,” to quote a Filipino official.“The presence of Chinese boats is now affecting our fishing activities. It wasn’t that way before. When our fishermen is about to get near Sandbar 3, that is really our fishing ground, a Chinese vessel would immediately come up to us to ward us off so we can’t come closer.” In 2017, China protested that the Philippines had breached an agreement not to occupy the sandbars with the construction of a ramshackle fisherman’s shelter.

The Philippine’s controversial and maverick President, Rodrigo Duterte, whose election to the office was perhaps bank-rolled by the Chinese, and received carrots in the form of funds for infrastructure development ordered his military to tear it down as part of his ongoing policy of appeasement towards Beijing.This is despite the Philippines winning an appeal to the Permanent Court of Arbitration in The Hague in 2016, which had been initiated by President Duterte’s predecessor. The Tribunal rubbished all the claims of Beijing and found China had no traditional or historical right to the South China Sea’s scattering of small islands and reefs. As such, the Philippines had territorial rights over the resources of the West Philippine Sea under the UN’s exclusive economic zone laws. President Duterte, however, has not acted to assert the Philippines rights as defined by the ruling. He has openly stated he has no desire to upset his mighty neighbour by challenging its seizure of his country’s territory. But now as China’s fishing fleet and military-controlled coast guard have begun swarming around Thitu Island, many Filipinos are becoming restless.

Vietnamese Fishing Boat Sunk by China’s ‘Fishing Militia’

The Filipinos were not the only ones to face China’s aggressive behaviour.Vietnam’s government claimed early this month that a Chinese vessel rammed and sank a Vietnamese fishing boat in disputed waters in the South China Sea. The fishing boat was around 370 kilometers off Da Nang near Discovery Reef in the Paracel island chain in the first week of this month when it was rammed by a Chinese vessel, the National Committee for Incident, Natural Disaster Response and Search and Rescue said in a statement.The five Vietnamese men on board the fishing boat clung on to the sinking bow until they were rescued, the statement said.Vietnam’s government and state media have previously accused Chinese vessels of attacking Vietnamese fishing boats. In April and May, more than 10 Vietnamese fishing boats were allegedly hit and robbed while fishing in the South China Sea, according to Vietnam’s Tuoi Tre newspaper.Greg Poling, a fellow with the Southeast Asia Program at the Center for Strategic and International Studies, slammed China over the incident.“A Chinese ship reportedly rams and sinks a Vietnamese fishing boat in the Paracels (again),” he said on Twitter.“China’s neighbors have become so numb to the constant exercise of low-intensity violence and intimidation that it will warrant barely a mention in regional press.” Quite a strong indictment on the Chinese international behaviour.

China’s Military Build-up

Beijing’s increased aggressiveness coincides with its just declared major increase in its defence budget. Its stated purpose: “for safeguarding the sovereignty, security and territorial integrity of the country. It is not a threat to other countries,” congress spokesman Zhang Yesui said at the recent Two Houses assembly of Chinese Communist Party members.The problem is, other nations also consider parts of the South China Sea as key parts of their own sovereignty, security and territorial integrity.China’s armed forces have undergone a thorough expansion and modernisation program in recent years, raising concerns among its neighbours. Besides, China also claims ownership of East China Sea islands controlled by traditional rival Japan and threatens to attack self-governing Taiwan to take control of what it regardsas a breakaway Chinese territory.President Xi Jinping has cast himself as an ardent nationalist and foreign policy hawk, protecting himself from accusations of being too soft toward the West.

US accusations against China 

In the meantime, US Secretary of State Mike Pompeo recently suggested that China was blocking energy development in the South China Sea through “coercive means”, preventing Southeast Asian countries from accessing more than $2.5 trillion in recoverable energy reserves. Addressing top energy firm executives and oil ministers in Houston, Texas, last Tuesday, Pompeo criticized “China’s illegal island building in international waterways”, insisting that it was not “simply a security matter”. The statement evoked immediate protest next day from Beijing, which slammed as “irresponsible” claims by the top American diplomat that Beijing was blocking access to energy beneath the South China Sea. China’s Ministry of Foreign Ministry spokesman Lu Kang said that Beijing had started consulting Southeast Asian nations about resolving disputes in the South China Sea, and called on non-claimant nations to keep out of the discussions. At the beginning of this year, Republican Senator James Inhofe of Oklahoma had raised similar concerns and said what many fear: China’s military build-up in the South China Sea looks as though it is “preparing for World War III”.His blunt statement came during a Senate hearing in January this year discussing the new challenges being presented by Russia and China. And Senator Inhofe wasn’t happy about how the world has got to where it’s at. He says the US sat back and watched as China staked its claim on the contested reefs and rocks, and did nothing as it turned them into artificial islands bristling with weapons and fortifications.And the way it has muscled-in on this disputed territory has resulted in a significant change to the balance of power in South East Asia.

China, however, is maintaining its facade.It’s launched a media blitz in an attempt to identify its illegal artificial islands as benign ‘search and rescue centres’.Early last year, Chinese state media circulated images of the completed 2.8km square island fortress for the first time after the completion of its land-reclamation and construction works. Now, Beijing’s state media mouthpiece Xinhua says China’s Ministry of Transport has officially opened a ‘maritime rescue centre’ on Fiery Cross Reef. Vietnam’s sovereignty over this reef, which was invaded and occupied illegally by China during naval skirmishes on March 1988. “The centre will offer better support to maritime rescue operations in the southern part of the South China Sea,” Xinhua quotes the ministry as saying. Completed last year, the island now holds more than 100 buildings.

Dealing with China

How do the international community and the regional countries deal with China’s belligerence? Many attempts have been made in the past and the process is still going on, to restrain China’s behaviour by creating mechanisms and institutional arrangements. Nothing, however, has succeeded so far. Evolution of an open, transparent, inclusive and rule-based Indo-Pacific with freedom of navigation is the latest one to deal with the multifarious problems of the region in terms of peace, stability, and prosperous open trading system.

A major manifestation of that is the high-level dialogue on the Indo-Pacific that Jakarta has organized this week to discuss various initiatives and concepts of cooperation in the Pacific and Indian Oceans and Rims, leading to mutually beneficial concrete cooperation and collaboration, based on the principles of openness, transparency, inclusiveness, and respect for international law, a concept that India has promoted for some time, and particularly after Prime Minister Modi articulated his vision of Indo-Pacific at the Shangri-La Dialogue last June in Singapore. “The High Level Dialogue will serve as a dynamic and interactive dialogue platform for deeper and more inclusive cooperation in the Indo-Pacific region,” to quote an analyst covering the Dialogue. But the success of such an effort will depend to a large extent on the ability of these countries to bring Beijing under leash and persuade its paramount leader to accept a rule-based regional order. China adopts a divide and rule policy by making a distinction between those countries that have claims on South China and those who do not have.

Over and above that it also buys of the loyalty of the countries in the region by offering carrots in the form of huge financial grant out of its deep pockets. Cambodia and Laos are already under the influence of the Chinese because of its heavy financial dependence on Beijing. Myanmar, though, recently has demonstrated some independence in its foreign policy, but still very reticent to take any stand against the Chinese. Malaysia is somewhat exception to this. Malaysian Prime Minister Mahathir Mohamadhas not only cancelled some of the high value projects like the east coast railway link that would have connected the South China Sea with strategic shipping routes in Malaysia’s west, providing an essential trade link. The other was a natural gas pipeline in Sabah, a Malaysian state on the island of Borneo. He cancelled them for the project being too expensive for his debt-ridden countryand also for the lack of transparency. Mahathir also said recently after the Thitu episode that China should define its “so-called ownership” in the disputed South China Sea so other claimant countries can start to gain benefits from the resource-rich waters.

What about a ‘Code of Conduct’ on South China Sea?

More than two and half years have passed since the Permanent Court of Arbitration (PCA) gave its landmark ruling on the South China Sea dispute that could have been the template for a rule-based maritime order and a basis for determining a country’s claim to the Exclusive Economic Zone (EEZ) and territorial waters. Yet China’s outright rejection of that judgement and blatant disregard of rules and norms of maritime engagement, militarization of the artificial islands, and the exercise of might over its much smaller and weaker neighbours has turned the South China Sea a dangerous flashpoint. With the characteristics of a bully, the Chinese president, Xi Jinping, said China’s “territorial sovereignty and marine rights” in the seas would not be affected by the ruling, which declared large areas of the sea to be neutral international waters or the exclusive economic zones of other countries. He insisted China was still “committed to resolving disputes” with its neighbours, yet his government threatens Vietnam of dire consequences if Hanoi did not cancel the oil-drilling operations with the Spanish and Russian companies; his coast guard personnel boarded a Filipino fishing boat at Scarborough Shoal, which it took forcibly from the Philippines in 2012, and took some of its catch. In May2017, Philippine president Rodrigo Duterte said his Chinese counterpart Xi Jinping had warned him there would be war if Manila tried to enforce tribunal ruling and drill for oil in disputed areas. To establish its right over practically the entire South China Sea, the Chinese Navy constantly challenges foreign navies’ right to freedom of navigation. Possibly this is China’s demonstration of ‘peaceful resolution of disputes,’ with Chinese characteristics like many other things under Emperor Xi.

To ease tension and manage the conflict, ASEAN and China have been holding talks on a COC to ease tensions arising from competing claims over the South China Sea for more than a decade. Talks have been slow, with consensus among ASEAN states elusive and China insisting on terms such as that any code should not hinder its naval patrols. The concept of a code of conduct was first raised in the 1990s; but it was not until 2002 at a gathering of foreign ministers from ASEAN countries and China in Phnom Penh, Cambodia, that a code of conduct was mandated by the non-binding China-ASEAN Declaration on Conduct of the Parties in the South China Sea. Since then, little progress on a code of conduct has been made while tensions have intensified as reports of fishing disputes in the area grow commonplace. It was not until 2013, when Beijing, in an apparent attempt to ease its tensions with its Southeast Asian neighbours, agreed to begin formal consultation on the code of conduct.

And it took almost four years for senior officials from China and the ASEAN nations to agree on a framework for the code of conduct, though the framework’s contents remain unreleased to the public. The ASEAN foreign ministers said they were “encouraged” by the adoption of the framework which would “facilitate the work for the conclusion of an effective COC on a mutually-agreed timeline”. ASEAN Secretary-General Le Luong Minh said he hoped the framework would “pave the way towards meaningful and substantive negotiations towards the conclusion of a COC” but added that if the code was to be effective at preventing and managing incidents in the South China Sea it would have to be legally binding—a phrase that does not appear in the framework as it is anathema to China. At that time, the Chinese foreign minister Wang Yi  had rather warned that substantive negotiations on the contents of the code could only begin if there was “no major disruption from outside parties”, an obvious reference to the United States which China has consistently accused of “meddling” in the dispute.

The difference between the DOC and the proposed COC was never made clear, though some ASEAN members, especially the Southeast Asian claimants, envisaged a legally-binding agreement that would be more comprehensive and effective than the DOC which was a non-binding political statement. The Framework agreement seeks “to establish a rules-based framework containing a set of norms to guide the conduct of parties and promote maritime cooperation in the South China Sea”. It is significant to note that the phrase “rules-based framework” is used rather than “legally binding” which some ASEAN states had long envisaged the COC to be.  The second objective is “to promote mutual trust, cooperation and confidence, prevent incidents, manage incidents should they occur, and create a favourable environment for the peaceful settlement of the disputes.” In this case also, China would like to initiate confidence-building measures in a manner that does clash with its core interests.

The third objective aims to “to ensure maritime security and safety and freedom of navigation and overflight”. Some ASEAN states like Vietnam are deeply concerned that Beijing’s view of freedom of navigation will actually undermine the very concept enshrined in the UNCLOS, particularly if China declared an Air Defence Identification Zone (ADIZ) over the South China Sea as it did over parts of the East China Sea in November 2013. China’s position is that the dispute does not threaten freedom of navigation. The framework does not mention the geographical scope of the COC, including whether it will apply to both the disputed Paracels and Spratly Islands or only to certain areas. During negotiations for the DOC, Vietnam had argued that the names of the two archipelagos be included, but as consensus could not be reached they were omitted. So long as the COC applies to the entire South China Sea, this may not present a problem.

Singapore as the outgoing ASEAN Chair and ASEAN country coordinator for China, played an important role to develop cooperative activities envisaged in the 2002 DOC, a prerequisite for the implementation of the COC. It has also succeeded in focusing the attention of ASEAN member states and China on completing a Single Draft COC Negotiating Text on a mutually agreed time line including at least three readings of the draft text. While preparing that single draft ASEAN must show unity and insist that the Permanent Court of Arbitration’s (PCA) ruling on the South China Sea, particularly its reference to illegality of China’s historic rights and land reclamation, should be a precondition for the draft of the CoC. In the meantime, China must cease all military activities in the South China Sea, as its militarization has caused instability and tension in the region. All disputes in the area must be settled through peaceful means in compliance with international law, including UNCLOS. It should be the duty of the major powers, like the United States, Britain, France, Australia and Japan who have stakes in the South China Sea for peaceful commerce and freedom of navigation to see that China accepts the spirit of the PCA and respect international law.

Significantly Beijing’s indignant response to the PCA ruling on South China Sea contrasts unfavourably with New Delhi’s acceptance of the PCA judgment on its maritime boundary dispute with Bangladesh. The PCA ruling of July 2014 had awarded nearly four-fifths of the disputed maritime waters to Bangladesh. India displayed its commitment to global norms by accepting the ruling, unlike China, a difference that was not be lost on other countries as India seeks its place at various global forums.

Prof. Baladas Ghoshal is Secretary General, Society for Indian Ocean Studies and former Professor and Chair in South and Southeast Asian Studies, Jawaharlal Nehru University

(The views expressed in this article are solely those of the author)



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Baladas Ghoshal