Turbulence in South China Sea: Need to Enforce UNCLOS

The expansive South China Sea, covering an area of more than 3.5 million square kilometres consisting of atolls, reefs is arguably the most contested waters of Asia. The reserve of hydro carbons and its strategic location in the vicinity of shipping lanes have added strategic and security dimensions to the region. South China Sea has a rich reservoir of marine resources including hydrocarbon and fisheries. The US Energy Information Administration estimates that approximately 11 billion barrel of oil resources and 190 trillion cubic feet of natural gas reserve in South China Sea.^[1]

Tension in South China Sea was exacerbated in 1974, when China forcefully occupied from South Vietnam the Spratly and the Paracel islands which China calls Nansha and Xisha. Tension and turbulence, however, continue to surface in South China Sea every now and then due to China’s belligerence and defiance of established maritime laws and conventions. As recently as on 25th September, the Philippines Coast Guard removed a floating barrier that China had installed at Huang Dao (an island in the Scarborough Shoal) in South China Sea triggering Chinese retaliation which added to the turbulence in the South China Sea. On 6th October, a Chinese coast guard ship came within a metre of colliding with a Philippine patrol ship BRP Sindngun. This incident fuelled fears that maritime disputes could trigger a large crisis. The Philippines strongly condemned the Chinese ship’s manoeuvres near Second Thomas Shoals, which the Asian neighbours both claim. Again on 22nd October collusion took place between Chinese and Philippines vessels in the disputed South China Sea. The incidents took place near Second Thomas Shoal in the Spratly Islands. A Philippines government task force said, the “dangerous blocking manoeuvres of China Coast Guard vessel 5203 caused it to collide with the Armed Forces of the Philippines”.^[2]

United Nation’s Convention on the Law of the Sea (UNCLOS)

In order to put the South China Sea issue in perspective, it is worthwhile to refer to the United Nations Convention on the Law of the Sea, 1982 (UNCLOS 1982). According to the stipulation of the UNCLOS, each coastal state has the right to have a 12-miles territorial sea, 200 nautical miles exclusive economic zone (EEZ) and the continental self. The UNCLOS further envisaged that: “Information on the limits of the continental self beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured shall be submitted by the coastal state to the Commission on the Limits of the Continental Self set up under UNCLOS on the basis of equitable geographical representation. The Commission shall make recommendations to coastal states on matters related to the establishment of the outer limits of their continental shelf. The limits of Continental Self established on the basis of these recommendations shall be final and binding.” The time of the submission to the Commission on the Limits of the Continental Shelf was within ten years of the entry into force of the UNCLOS 1982 for coastal state parties. However, the dead line for submission of claims by state parties was subsequently extended to 13 May 2009. China submitted its claim on the last day and urged the United Nations Commission on the Limits of the Continental Shelf not to review the submission from Vietnam and a joint submission from Vietnam and Malaysia.

The Chinese claims in the South China Sea can be attributed to a number of factors including meeting the energy requirements and rising nationalism in the military. China treats South China as its core interest like Taiwan and Tibet. In 2002 China and the Association of the Southeast Asian Nations signed the Declaration on the Conduct of Parties in the South China Sea, in which they resolved to jointly safeguard regional stability, cooperate in the area and resolve disputes through peaceful talks between claimants. China very adroitly avoided having a multilateral approach to solve the problem while pleading for joint responsibility to maintain regional stability.

The South China Sea issue shot into prominence and acquired greater degree of strategic salience at the Seventeenth ASEAN Regional Forum (ARF) meeting in Hanoi in July 2010 where the then US secretary of State Ms. Hilary Clinton articulated that the United States has a national interest in freedom of navigation, open access to Asia’s maritime commons, and respect for international law, a position which was resoundingly supported by the overwhelming majority of the ARF representatives participating in the meeting. The Chinese Foreign Ministry criticized the idea as ‘attack on China’,

China’s Infrastructural Development in South China Sea

While China claims indisputable sovereignty over the islands and their adjacent waters, China’s claim is contested by many of the South –East Asian Countries including Malaysia, Brunei, Vietnam, the Philippines and Indonesia. Taiwan is also a claimant on the South China Sea. China occupied in 1995, the Mischief Reef, a submerged feature in South China Sea. China has heaped thousands of tons of sand and concrete and built a military grade runway and port facility on the artificial island which impelled Philippines to lodge a complaint with the Permanent Court of Arbitration in 2013.

It was also reported in April 2016 that China is edging close to building its first floating maritime nuclear power platforms with the prospect of deploying it in the disputed South China Sea to boost the efficiency of the country's construction work on islands in the strategic South China Sea. In May this year, it was, however, reported that China has suspended the plan to build the floating nuclear reactor in South China Sea.^[3]

Besides, reiterating its historical claim on South China Sea from time to time, China has been taking legislative measures and developing infrastructure in the South China Sea to buttress its sovereign rights. In December, 2012 the Hainan Province of China under which jurisdiction South China Sea falls passed a law “Coastal Ship Frontier Defence Law and Order Management Ordinance", which empowers the provincial authority to board, inspect, seize, deport or force ships to alter course out of areas within China's claimed territorial waters. The regulation stipulates that it applies to ships that enter under the jurisdiction of Hainan 'illegally', especially territorial waters. China has also set up an international maritime judicial centre to protect its sovereignty and make it a maritime power.

Ruling of the Permanent Court of Arbitration (PCA)

In July 2016, the Permanent Court of Arbitration at The Hague gave its ruling on the dispute lodged by Philippines against China. The Philippines obtained a sweeping victory in its favour almost on all its submissions. The panel found that China’s claims of historic rights within nine dash lines were without legal foundation. The Panel also concluded that Beijing’s activities within Philippines two hundred nautical miles Exclusive Economic Zones (EEZ) such as illegal fishing and environmentally ruinous artificial island construction infringed on Manila’s sovereignty rights. The Tribunal further ruled that the Spratly islands are not islands in the legal sense of the term, but rather rocks or low tide elevations. This includes the Mischief Reef forcefully occupied by China.^[4]

India’s Foray into South China Sea

Besides, articulating its position on freedom of navigation in the South China Sea, India has also been engaged in the South China Sea. As symbolic and substantive gesture of India’s engagement in South China Sea, ONGC Videsh had been present in Vietnam for quite some time, since 1980s including in a major oil venture for offshore oil and natural gas exploration.^[5] The cooperation between ONGC Videsh and Petro-Vietnam led to the signing of the production sharing contract between Hydrocarbon India Ltd, renamed later as ONGC Videsh, and Petro-Vietnam in Phu Kan basin in Vietnam through regular bidding process.

India concluded the agreement with Vietnam during the visit of the Vietnamese President, Truong Tan Sang, to India on 12 October, 2011. The state-owned ONGC Videsh Limited (OVL) and its Vietnamese counterpart, Petro-Vietnam, inked a three-year agreement for long-term cooperation in the oil and gas sector. The agreement was intended for developing long-term cooperation in effect for three years. Some of the key areas in which both the companies are desirous to cooperate are related to: the exchange of information on the petroleum industry; exchange of working visits of authorities and specialists in various fields of the petroleum industry; new investments; expansion and operations of oil and gas exploration; and production, including refining, transportation, and supply in Vietnam, India, and third countries according to the laws and regulations of their countries. The visiting President of Vietnam, Truong Tan Sang, said that all the disputes with China, including claims over South China Sea, would be solved peacefully through negotiations and code of conduct for good relations in the region.^[6] The cooperation between ONGC Videsh and Petro-Vietnam goes back to the 1980s, which led to the signing of the production sharing contract between Hydrocarbon India Ltd, renamed later as ONGC Videsh, and Petro-Vietnam in Phu Kan basin in Vietnam through regular bidding process. As there was not much prospect of hydrocarbons in South China Sea, India of late is going slow in the hydrocarbon exploration in South China Sea.

India’s Advocacy of Freedom of Navigation

India has been articulating it’s considered views on South China Sea in both bilateral and multilateral fora. South China Sea issue found mention in the Joint Statement issued by India and USA during the visit of Prime Minister Narendra Modi to the USA in September, 2014. The Joint Statement reaffirmed the shared interest of the two countries "in preserving regional peace and stability, which are critical to the Asia Pacific region's continued prosperity."^[7] India and USA expressed concern about rising tensions over maritime territorial disputes and affirmed the importance of safeguarding maritime security and ensuring freedom of navigation and over flight throughout the region, especially in the South China Sea. The two sides called on parties to avoid the use, or threat of use, of force in advancing their claims. Further, both urged the concerned parties to pursue resolution of the territorial and maritime disputes through all peaceful means, in accordance with universally recognised principles of international law, including the United Nations Convention on the Law of the Sea. Four months after the Joint Statement, the Joint Strategic Vision Statement issued during the visit of President Barak to India in January 2015 also reaffirmed the convergence of stance between the two countries on the issue. The Joint Statement also said India's Act East Policy and US' rebalancing to Asia provide opportunities for India, the US, and other Asia-Pacific countries to work closely to strengthen regional ties.^[8] Earlier in September this year, India’s Ambassador to Philippines expressed solidarity with Manila by pointedly rejecting Chinese Communist Party’s new extended ten-dash lines map of its sovereignty claims in the South China Sea and Line of Actual Control (LAC). He criticised the move as unhelpful “cartographic expansionism”. ^[9]

As a facet of India’s ‘Act East’ policy, India in recent years has also started the practice of sending its warships to South China Sea. Singapore India Maritime Bilateral Exercise (SIMBEX) is held each year, alternatively in the Bay of Bengal and South China Sea. SIMBEX-15 was held in the South China Sea in May 20, 2015 with Singapore Navy. India’s annual Malabar naval exercise should also be seen in this context of stratagem of Indo-Pacific aimed to promote and facilitate freedom of navigation and sea lanes of communication.^[10]

Conclusion

It is high time China complies with the recommendations of the UNCLOS for maintenance of peace, stability, security, safety and freedom of navigation and aviation and upholding international law. In particular the Declaration on the Conduct of Parties in the South China Sea should be fully and effectively implemented. The ongoing Code of Conduct negotiations need to be concluded earliest. Further, the rulings of the Permanent Arbitration Court should also be complied with by China.

End Notes

^[1] “South China Sea”, U.S. Energy Information Administration, https://www.eia.gov/international/analysis/regions-of-interest/South_China_Sea [3]
^[2] “Manila, Beijing trade blame over collisions in disputed Sea”, The Hindu, 23rd October, 2023, https://epaper.thehindu.com/ccidist-ws/th/th_delhi/issues/56793/OPS/GH9BTQ3DD.1+GEOBTQOCM.1.html [4]
^[3]Stephen Chen, “China suspends plan to build floating nuclear reactor in South China Sea”, South China Morning Post,31st, May, 2023, https://www.scmp.com/news/china/science/article/3222289/china-suspends-plan-build-floating-nuclear-reactors-south-china-sea [5]
^[4] “The Hague Tribunal’s South China Sea Ruling”, Council of Foreign Affairs, https://www.cfr.org/councilofcouncils/global-memos/hague-tribunals-south-china-sea-ruling-empty-provocation-or-slow-burning-influence [6]
^[5]Rup Narayan Das, ”India in South China Sea”, China Brief, Volume 13, Issue 20, October 10, 2013, https://jamestown.org/program/india-in-the-south-china-sea-commercial-motives-strategic-implications/ [7]
^[6]Agreement of Cooperation between ONGC Videsh Limited and Vietnam Oil and Gas Group (PetroVietnam), ONGC Videsh News, 13th September, 2011, available at http://www.ongcvidesh.com/NewsContent.aspx?ID=893 [8], accessed on 14 February 2012.
^[7]https://www.indiatoday.in/world/story/china-warns-india-south-china-sea-modi-obama-us-209087-2014-10-08
^[8]https://obamawhitehouse.archives.gov/the-press-office/2015/01/25/us-india-joint-statement-shared-effort-progress-all
^[9]Peter Chalk, “ Beijing’s aggression Behind Emerging India-Philippines Defence Relationship”, China Brief , October 6, 2023, https://jamestown.org/program/beijings-aggression-behind-emerging-india-philippines-defense-relationship [9]
^[9]Rup Narayan Das, https://www.rediff.com/news/column/rupnarayan-das-malabar-exercise- [10]
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