The recent developments in the South China Sea (SCS), one of the busiest waterways in the world, are not only alarming but also have great potential to turn into a real war. If this happens, peace and stability will be shattered in Southeast Asia.

Since the beginning of July, a major country’s survey ship, escorted by armed maritime vessels, has illegally encroached on Vietnam’s legal exclusive economic zone (EEZ). The Philippines and Malaysia have also faced intimidation from the same power in the most disputed waters of the SCS.
Who is responsible for this situation? Is there any respect for rule of law? Is war the only solution to rising tensions in the SCS?

Before trying to find answers to these questions, we must understand the universally accepted 1982 United Nations Convention on the Law of the Sea (UNCLOS), under which every maritime state is entitled to have a 200-nautical mile EEZ and a 12-nautical mile territorial sea or continental shelf.
With the exception of Taiwan, all the SCS claimants – China, Vietnam, Malaysia, the Philippines and Brunei – have signed the historic UNCLOS maritime treaty and ratified it a long time ago. Indonesia, the de facto leader of ASEAN, has also signed and ratified the treaty. The UNCLOS treaty prohibits the use of force or threat of using force in resolving maritime disputes.

In a clear violation of the rules of the UNCLOS, China claims more than 90 percent of the SCS based on its controversial Nine-Dash Line, which refers to an undefined, vaguely located demarcation line. Its claim, which is also based on so-called ‘historical rights’ not stated in international maritime rules, overlaps with island and maritime claims of Vietnam, the Philippines, Malaysia, Brunei and even Indonesia, a non-claimant state.

All of China’s claims based on the Nine-Dash Line and historical rights were rejected by the Hague-based Permanent Court of Arbitration in a 2016 ruling. But Beijing rejected this and went on to enforce its claim, according to the US, through unilateral, illegal and coercive actions.
China has illegally built artificial islands through reclamation and constructed military facilities on them. It has tried to obstruct fishing activities and the exploitation of natural resources of other claimant states in their legally entitled territories.

Violation of Vietnam’s EEZ

The latest incident, which occurred in the Vanguard Bank, clearly explains the nature of China’s actions. The Vanguard, located in Vietnam’s EEZ, is less than 200 nautical miles from Vietnam’s coast and is 600 nautical miles away from China’s maritime border. But China, based on its Nine-Dash Line, claims that Vanguard is in its EEZ.
Vietnam recently gave a contract to Russian state-owned company Rosneft to look for oil and gas in the Vanguard area. In an effort to block Vietnam’s oil exploration, China deployed the survey ship Haiyang Dizhi 8 and several heavily armed coastguard vessels.
Undaunted, Vietnam called for the immediate withdrawal of the Chinese vessels from the Vanguard area.
“Vietnam has had several appropriate diplomatic exchanges requesting immediate withdrawal from Vietnam’s exclusive economic zone,” Vietnam Foreign Ministry spokeswoman Le Thi Thu Hang said in Hanoi recently.
“Vietnam resolutely and persistently protects its sovereign rights by peaceful means on the basis of international laws,” she said.
This is not the first time China has done this. In 2017 and 2018, China forced Vietnam and Spanish oil firm Repsol to cease oil exploration activities in the area.
A Chinese ship recently rammed and sank an anchored Filipino fishing boat in the Recto Bank, 160 kilometers off the Philippine island of Palawan.
Hundreds of Chinese armed maritime vessels regularly and illegally operate in waters surrounding Pagasa Island (Thitu Island), which threatens the activities of local Filipino fishermen.
Manila has also issued a protest over the illegal passage of four Chinese warships and the aircraft carrier Liaoning through Philippine waters.
In May 2019, Chinese coastguard vessels were patrolling around the Luconia Shoals, which lie within the EEZ of Malaysia.

International condemnation

The US has lashed out at China for its provocative and unilateral actions.
“China’s reclamation and militarization of disputed outposts in the South China Sea, along with other efforts to assert its unlawful South China Sea maritime claims, including the use of maritime militia to intimidate, coerce and threaten other nations, undermine the peace and security of the region,” US State Department spokesperson Morgan Deann Ortagus told journalists recently in Washington.
Japan, the European Union, France, Germany, the United Kingdom, Canada, Australia and other countries have condemned China’s unilateral actions in the SCS and called for a rules-based order.
The well-respected International Association of Democratic Lawyers (IADL) has also slammed China for violating the legal rights of Vietnam in the Vanguard area.
“This act has clearly violated the sovereignty, sovereign rights and jurisdiction of Vietnam as stated in UNCLOS 1982,” the IADL said in a statement recently.

“IADL requests that China promptly stop violating the sovereignty, sovereign rights and jurisdiction of Vietnam, stop carrying out activities that further complicate the situation and increase tension between related parties and begin to concentrate on building mutual trust to maintain the security, peace and stability in the South China Sea in particular and in the region in general”.
The IADL, established in 1946, is a nongovernmental organization with consultative status before the Economic and Social Council of the United Nations (ECOSOC). It aims to support and uphold international law, more specifically to uphold the goals of the UN Charter to peacefully resolve disputes.

Despite international condemnation, bellicose Beijing has been conducting many illegal, coercive and provocative activities in the SCS. What can ASEAN and the international community do?
The first and foremost thing is to condemn China’s unilateral provocative actions that violate the international law regarding EEZs and continental shelves of SCS claimant countries from Southeast Asia.

The international community must put pressure on China to withdraw immediately its survey ship Haiyang Dizhi 8 and other vessels from Vanguard to reduce tensions. People were initially hopeful when China recently withdrew voluntarily from the Vanguard area. But the survey vessel returned to the exploration site on Aug.15, sending a strong signal that it would stay until the exploration stops.
It is unfortunate that there is no unity on the SCS conundrum among ASEAN states. Indonesia, Vietnam, Malaysia, Brunei and the Philippines must try hard to forge a common perception among ASEAN states. Since ASEAN is a community, there should be solidarity among ASEAN nations on this troubling issue. A united ASEAN should be in the driving seat in all regional initiatives to maintain peace and stability in the region.

Despite its bullying behavior of small states, China is an important partner to ASEAN in many aspects. There is an urgent need for the full implementation of the Declaration on the Conduct of Parties in the South China Sea (DOC) to reduce tensions and avoid conflict.
If there is peace, both ASEAN and China can prosper together. War is not the solution. It may take a long time to find a solution to the SCS disputes, but for the time being, we need an urgent Code of Conduct (COC) for all parties to reduce tensions. It was good that a joint draft of the COC was read by all parties recently, paving way for further negotiations. All we need is a legally binding, effective COC based on the 1982 UNCLOS and other international rules. There should also be freedom of navigation and overflight in SCS waters.

The IADL has asked all the claimants of the SCS, who are also signatories to the UNCLOS, to obey and respect international maritime rules.

“IADL urges related parties to resolve disputes by peaceful means on the basis of international laws to preserve peace, stability and security in the region,” said the IADL in its statement.
If there is no legal supremacy, small and weak parties will always lose and strong parties will benefit. If that happens, outside parties will enter into the fray and tensions will rise. This is not an option. Peace is the priority.

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There is no denying that the last few months have been extremely tense for the South China Sea (SCS) region. China has been undertaking what can only be described as unilateral, provocative manoeuvres that threaten regional peace and security. A Chinese survey ship Haiyang Dizhi 8 accompanied by Chinese coast guard vessels and often supported by Chinese military aircraft — including H-6K bombers — has not just traversed the contested waters but also intruded deep inside Vietnam’s 200 nautical mile Exclusive Economic Zone (EEZ).

   At the 33rd ASEAN Summit on 13 November 2018 in Singapore, heads of state/government of ASEAN member states reached consensus on further developing the ASEAN Community on three pillars, namely political-security, economic and socio-cultural, while emphasizing the importance of non-militarization and self-restraint in the conduct of all activities in the South China Sea.

7 documents adopted

The leaders reaffirmed their commitment to the full and effective implementation of the ASEAN Community Vision 2025 and the ASEAN Leaders' Vision for a Resilient and Innovative ASEAN. At the summit, they adopted 7 documents at the summit, including ASEAN Smart Cities Framework; ASEAN Declaration on Promoting Green Jobs for Equity and Inclusive Growth of ASEAN Community; ASEAN Enabling Masterplan 2025: Mainstreaming the Rights of Persons with Disabilities; ASEAN Joint Statement on Climate Change to the 24th Conference of the Parties (COP 24) to the United Nations Framework Convention on Climate Change (UNFCCC); ASEAN Joint Statement to the Fourteenth Meeting of the Conference of the Parties to the Convention on Biological Diversity; ASEAN Declaration on the Adoption of the ASEAN Youth in Climate Action and Disaster Resilience Day; and Declaration on the Guidelines on Consular Assistance by ASEAN Member States' Missions in Third Countries to Nationals of Other ASEAN Member States.

ASEAN leaders underscored the importance of strengthening ASEAN Centrality and unity in the ASEAN Community-building efforts and engagement with the block's external partners. They reiterated their commitment to a rules-based regional architecture that is open, transparent and inclusive, building on ASEAN-led mechanisms including the ASEAN Plus One, ASEAN Plus Three (APT), East Asia Summit (EAS), ASEAN Regional Forum (ARF), and ASEAN Defense Ministers' Meeting-Plus (ADMM-Plus).
ASEAN leaders reaffirmed their shared commitment to maintaining and promoting peace, security and stability in the region, as well as to the peaceful resolution of disputes, including full respect for legal and diplomatic processes, without resorting to the threat or use of force, in accordance with the universally recognised principles of international law, including the 1982 United Nations Convention on the Law of the Sea (UNCLOS).
Vietnamese Deputy Foreign Minister Nguyen Quoc Dung told reporters that leaders at the 33rd ASEAN Summit, summits between ASEAN and China, Japan, South Korea, the US, Russia, Australia, and India, the ASEAN Plus 3 meeting with China, Japan and South Korea, the East Asia Summit, and the meeting of the Regional Comprehensive Economic Partnership (RCEP) member states adopted a total of 63 documents to lay a foundation for ASEAN cooperation and its collaboration with partner countries in the fields of politics, security, economy, and socio-culture in coming years.

COC negotiations to be concluded in next 3 years?

Regarding China's proposal to conclude the negotiations on a Code of Conduct in the South China Sea (COC) within the next three years, the deputy minister said the negotiations need a favorable environment towards reaching a practical and effective COC in compliance with international law and the UNCLOS, making effective contributions to peace, stability and security in the region in general and in the sea in particular.
On November 15, after the conclusion of the 33rd ASEAN Summit, Philippine President Rodrigo Duterte and Japanese Prime Minister Shinzo Abe had a bilateral meeting, reaffirming to maintain freedom of navigation in the South China Sea. "Both leaders also discussed issues pertaining to the disputed South China Sea, during which President Duterte stressed the Philippines' commitment to uphold the principles of freedom of navigation and overflight, freedom of commerce and other lawful activities, exercise of self-restraint, and the peaceful resolution of disputes,' stated Philippine presidential spokesperson Salvador Panelo.
On November 16, US Vice President Mike Pence on November 16 called on ASEAN to soon finalize an effective and binding COC.
Most of ASEAN partners have pledged to join hands in creating a favorable environment for dialogue, cooperation and trust building in a bid to turn the sea into a sea of peace, cooperation and development through the effective and practical negotiations on the COC based on international law, including UNCLOS. At the 33rd ASEAN Summit, Chinese Premier Li Keqiang also affirmed that China will continue working with ASEAN in completing the COC within the next three years and in fully implementing the Declaration on the Conduct of Parties in the South China Sea (DOC), thus contributing to peace, stability, safety and freedom of navigation and aviation, and free trade in the sea.

ASEAN voices concern

However, ASEAN leaders voiced concern about the land reclamations and militarization in the South China Sea. "We discussed the matters relating to the South China Sea and took note of some concerns on the land reclamations and activities in the area, which have eroded trust and confidence, increased tensions and may undermine peace, security and stability in the region,' reads the Chairman's Statement of the 33rd ASEAN Summit
The ASEAN leaders reaffirmed the need to enhance mutual trust and confidence, exercise self-restraint in the conduct of activities and avoid actions that may further complicate the situation, and pursue peaceful resolution of disputes in accordance with international law, including the UNCLOS. "We emphasised the importance of non-militarization and self-restraint in the conduct of all activities by claimants and all other states, including those mentioned in the DOC that could further complicate the situation and escalate tensions in the South China Sea,' the chairman's statement reads./.

China's continued reclamation and militarization in the South China Sea are undermining mutual trust and regional peace and stability, said experts.
The increasing deployment of drones and underwater unmanned vehicles to the South China Sea is further complicating the situation, while regulations on the use of such vehicles and a code of conduct for claimants remain absent.
Scholars attending a seminar on the South China Sea in Da Nang City, Vietnam, last week raised concern that increasing militarization and presence on the sea, under the seabed and in the air remain the biggest threat to the South China Sea. Such activities have been taking place at very fast pace. Dual facilities under the name of civilian works, such as meteorological stations, have also been expanded rapidly.
China's new moves raise concern
China's deployment of drones and underwater unmanned vehicles to the South China Sea to improve real-life combat ability, collect samples from the seabed and reconnaissance have raised concerns among neighbor nations. In particular, the increasing use of underwater unmanned vehicles to the South China Sea is fueling new legal debates. The lack of international standards in the use of such vehicles is likely to increase the risk of conflict in the future.
"In 2018, China continued to consolidate the infrastructure on its seven artificial islands and progressively militarize these features; it deployed electronic jamming equipment and installed surface to air and anti-ship missiles,' stated Professor Carlyle Thayer at the University of New South Wales.
Though the South China Sea has appeared to be quieter recently, various dangerous incidents raise risks of miscalculation. The U.S. Navy destroyer USS Decatur had to maneuver to avoid a collision on September 30 after a Chinese warship came within 45 yards of its bow as the American ship transited Gaven Reef of the Spratly. CCTV on September 29 reported that Chinese Navy deployed tens of fighters and bombers to join a live fire drill on the South China Sea. Experts expect that Chinese leaders may choose to raise tensions in the South China Sea again to distract domestic criticism from the trade war between the US and China.
The Philippines has quietly pivoted back to the US since Beijing has not exercised self-restraint despite President Rodrigo Duterte's efforts to show goodwill toward China.
China has recently opened weather observation stations on Fiery Cross, Subi and Mischief reefs in the Spratly. Jay Batongbacal, director of the University of the Philippines Institute for Maritime Affairs and Law of the Sea, did not think that the stations would be used to "provide public service' as China said. "Weather stations on military bases also serve the purpose of the military base,' he stated.
Effective COC should be concluded soon
Scholars agreed that the situation on the South China Sea demand China to give up excessive claims which violates international laws, including UNCLOS 1982, so as to narrow disputes, gradually solve disputes by peaceful means. China and Asean have attempted to negotiate the COC, but this process may take years to be finalized. China and Asean members drew up a Framework COC and then reached agreement on a Single Draft South China Sea Code of Conduct Negotiating Text.
Washington-based Center for Strategic and International Studies has recently brought together prominent experts on maritime law, international relations, and the marine environment to propose a blueprint for a South China Sea COC. Any proposal to manage the disputes needs goodwill of claimants to come into practice. Besides COC, Asean could also actively propose other initiatives for the sea, such as a code for unplanned encounters at sea or standards for treating plastic waste at sea, experts said.
Since certain countries have different interpretations of UNCLOS 1982 so as to avoid abiding the Arbitral Tribunal's decision, scholars suggest Asean to actively invite other countries to join dialogues in order to reach common interpretation and application of UNCLOS on the South China Sea as well as other regulations on freedom of navigation.
On 12 July 2016, the Arbitral Tribunal hearing the claims brought by the Philippines against China issued a unanimous Award that found against China. According to the ruling, there is no legal basis for China to claim historic rights to resources within the sea areas falling within "nine-dash line". Also according to the ruling, China violated its obligations to refrain from aggravating or extending the parties disputes during the pendency of the settlement process.
In their annual summit to be held in Singapore in mid-November, leaders of Asean countries and and China will touch upon developments in the South China Sea amid China's continued reclamation and militarization in the sea.
Asean leaders are expected to adopt a statement expressing concern over China's illegal activities in the South China Sea, because the activities, including the completion of artificial islands in the sea are undermining mutual trust and regional peace and stability, said experts./
(Souce: theusnews.com)

The forthcoming ASEAN Summit in Singapore

From 11-15 November 2018, Singapore will host the 33rd ASEAN Summit and related conferences. It is expected that there will be about 12 meetings of ASEAN leaders and between ASEAN and its partners (China, Japan, South Korea, India, Australia, United States, Russia, UN and invited guests such as EU, Canada, IMF, Chile ...). Approximately 60 instruments will be adopted or recognized, with a broad range of areas of ASEAN cooperation and those with Partners, as well as regional and international issues of common interest.