The South China Sea in 2019 and the vision in 2020

tải xuống 1The South China Sea in 2019 can be summed up with the following characteristics: China’s rise and increasing presence after the 2016 South China Sea ruling; the reaction of smaller countries wishing to restore the legal order based on the 1982 United Nations Convention on the Law of the Sea (UNCLOS 1982) when ASEAN has yet to produce an unified stance; the United States and its allies’ attempt to shape the Indo-Pacific strategy, and the desire for more presence of countries outside of the region. The South China Sea with its role of business linkage between two oceans, geostrategic position, economy, and resources still catches the attention of international public opinion.

After the completion of military features in the Spratlys, China expanded its activities to increase the presence of maritime law enforcement forces in the South China Sea to assert its nine-dash line claim. These activities have directly violated the exclusive economic zones (EEZ) and continental shelves of countries in the region as determined in accordance with UNCLOS 1982. From July to October 2019, Haiyang Dizhi 08 vessel conducted illegal exploration activities deep in Vietnam’s continental shelf and EEZ, sometimes only about 80 nautical miles from the Vietnamese coast. The scope of the survey was within the 9 blocks that China National Offshore Oil Corporation called for bidding in 2012 on the basis of its nine-dash line claim which was rejected by the Arbitral Tribunal in 2016. In February and May 2019, Chinese vessels besieged the Thitu island to block Philippine supply vessels and intended to expand construction on the island[1]. Malaysia said that by October 2019, Chinese vessels spent 258 days in waters claimed by Malaysia[2]. In September 2019, there was a rumor about Exxon Mobil withdrawing from a project off the coast of Vietnam[3]. There were also several rumors and pieces of information about fishing boats being sunk. In January 2019, Vietnam accused Chinese coast guard vessels of sinking fishing boats and then leaving[4]. In June 2019, Vietnamese fishing boat rescued Philippine fishermen at sea whose boat got sunk[5]. In December 2019, China returned to Scarborough Shoal to chase away Filipino and Vietnamese fishermen. The bases being built on Scarborough Shoal will create the PSS (Paracels-Scarborough-Spratlys) diamond triangle which gives China control to all maritime and security routes in the South China Sea. China continues to carry out projects on rescue centers, coastal cities, floating nuclear power plants in Spratlys; launch submarines, large underwater research equipment, and do military exercises with aircraft carriers in the South China Sea. These activities are the largest ever in terms of scope, scale, and time. They aim at: (1) asserting the nine-dash line claim and rejecting the 2016 ruling – after the ruling, China made new arguments on the Four Sha that Nanhai Zhudao has an EEZ and continental shelf, which essentially is to defend the nine-dash line claim for a strategic purpose of total control of the South China Sea; (2) pressuring the parties concerned to give up settling disputes by legal means; (3) pressuring foreign investors in oil and gas exploration to abandon projects with countries adjacent to the South China Sea in order to implement the policy which allows no non-regional country to participate in resource exploration and exploitation in the South China Sea; (4) promoting "setting aside dispute and pursuing joint development"; (5) protest against freedom of navigation activities by the US and other countries; (6) promote COC negotiations in a way that benefits China; (7) creating a counterbalance for the "Belt and Road" initiative to the Indo-Pacific strategy of the US and its allies; (8) being a bargaining card when needed in strategic competition among great powers; (9) launching an oceanography research strategy for the next decade. Still, it cannot be denied that China makes itself available for negotiation through channels such as a bilateral consultation mechanism on maritime issues between Malaysia and China established in September 2019[6], the China – Philippines Inter-Governmental Joint Steering Committee and the Inter-Entrepreneurial Working Group on oil and gas development established on August 29th, 2019. The mechanism of the working group on maritime issues between Vietnam and China is still maintained. Nonetheless, given China’s ambition to control the South China Sea, such mechanisms can barely make smaller countries feel at ease.

Smaller countries in the South China Sea must choose strategically either the US or China so as to not have a war that affects the peace, stability, and economic development. Most countries wish to maintain friendship and business relations with China, the largest market of ASEAN without giving up their sovereignty and legitimate rights based on UNCLOS 1982. Managing conflict through the ASEAN-China mechanism is not really effective. Dealing with great powers’ actions which are below the threshold of war requires great skill and vigilance. UNCLOS 1982 was used as an effective tool to protect national interests in accordance with international law, to ensure peace and security, and to avoid conflicts that could lead to war. In October 2019, Malaysian Prime Minister Mahathir Mohamad implied that the presence of warships in the South China Sea only brought conflict[7]. Given Chinese vessels’ illegal oil and gas surveys in Malaysia’s waters, Prime Minister Mahathir Mohamad said that Malaysia did not want to take a stance against Beijing over the South China Sea, at the same time, admitting that Malaysia is too small to confront China’s power and ambition. Malaysia has sought to rely on the law. The country submitted to the Commission on the Limits of the Continental Shelf (CLCS) of the United Nations a new claim on the continental shelf extending beyond 200 nautical miles from the baseline from which the breadth of the territorial sea is measured in the northern South China Sea. This move was to expand the continental shelf claim drawn in the 1979 map of the Malaysian Department of Survey and Mapping to both the North and South of the South China Sea to almost twice as much of the continental shelf as said in the 1979 claim. This claim constituted a basis to restrict the activities of Chinese vessels in the South Luconia Shoals near the coast of Malaysia. It demonstrated Malaysian support for the Arbitral Tribunal’s ruling in 2016, rejected China's nine-dash line claim, encouraged the CLCS to reconsider the 2009 Vietnam-Malaysia joint submission, and urged parties to clarify their claims in the South China Sea[8]. Right afterwards, Malaysian Foreign Minister Saifuddin Abdullah called China's nine-dash line claim in the South China Sea "ridiculous." The Philippines chose to set aside the ruling in its favor to do business with China but would bring it up when necessary. The Philippines-China "joint operation" mechanism contains each country's own intentions. Article 12, Clause 2 of the Philippines’ Constitution stipulated that all oil and gas resources are owned by the State and not transferable; the State may allow projects to co-produce, co-invest, or agree to share products with Philippine citizens, businesses or associations provided that at least 60% of the total investment capital belongs to its citizens. Lot SC57 is located outside the nine-dash line. Lot SC72 in the area of Reed Bank was found to be “freed from the nine-dash line" by the 2016 ruling. A share purchase contract for CNOOC may be rejected. The two sides still have a lot of work to do with the "joint exploitation" cover, but the inside is not the same. In March 2019, former Philippine foreign minister Albert del Rosario and former ombudsman Omopaman Conchita Carpio Morales filed a lawsuit against Chinese President Xi Jinping to the International Criminal Court (ICC), requesting to initiate a "preliminary examination” to "appraise itself of Chinese crimes committed not only against the Philippine people but also against people of other nations" in the South China Sea[9]. Although the legal barriers did not give the ICC jurisdiction, this case has political significance "to mark the strong response of the Philippines" and to attract international attention. Given Haiyang Dizhi 8 vessel’s violation in Vietnam's waters, Vietnam persisted in protesting diplomatically, urging China to withdraw the vessel and not to undermine security and peace in the area. On site, Vietnam also showed its determination. Vietnam’s position is also affirmed in the statements by its Foreign Ministry’s Spokesperson – "Unlawful maritime claims which contravene UNCLOS 1982 cannot constitute a basis for asserting the existence of disputed or overlapping maritime areas. Disruptive activities in relation to Viet Nam’s oil and gas activities within Viet Nam’s maritime zones constitute violations of international law and UNCLOS 1982".
Vietnam's determination brings up the incident of Haiyang Shiyou 981 rig in 2014. Vietnam proactively, vigilantly, and skillfully handled the situation to protect its sovereignty, avoid war and maintain the friendship, peace, and stability in the South China Sea. Vietnam’s 2019 Defense White Paper doesn’t allow the use and threat of force against another country, but Vietnam will exercise its legitimate right of self-defense. Russian and Indian oil and gas companies continue to expand oil and gas exploitation projects with Vietnam. Countries not directly involved in the dispute also consider UNCLOS to be an appropriate tool to uphold the rule of law. Indonesia built logistics facilities and opened fishing zones in Natuna in order to remove the effect of the nine-dash line to Natuna. Cambodia is the last country in ASEAN to ratify part of UNCLOS on December 24th, 2019. This is a basis to receive help and cooperation to prevent illegal, unreported and unregulated (IUU) fishing in the region.

The tension in the South China Sea when not controlled properly could also damage other social sectors. The cartoon "Abominable" of China Television was canceled by Vietnam, the Philippines, and Malaysia due to having nine-dash line image. There is also a campaign to bring the nine-dash line to international scientific research journals through international published scientific papers of Chinese scientists who co-author with foreigners. The campaign is pushed forth in all fields, even in unrelated areas such as molecular biology. Timer Higher Education found 9 articles with themes about bamboo, butterflies, and plants but still contained nine-dash line maps. Springer Nature, Cambridge University Press, Cells and many other international scientific journals have called for an end to this unusual policy in the international publication, thereby ensuring neutrality in the territorial claims of international articles. Such actions do not add up to the credibility of each party to the dispute.

The South China Sea is the arena for major countries, especially the United States and China, to compete for influence over maintaining or changing the current order. In 2019, the United States conducted 8 freedom of navigation operations (FONOP) in the South China Sea. This is a huge gap in term of scale as compared to only 5 operations under Obama’s administration. 2019 also marks the first time a US warship entered the Paracel’s waters. During the visit to Asia at the end of 2019, the US Secretary of Defense affirmed that 2019 was the year the US conducted FONOP most frequently in the South China Sea within the past 25 years. US’ allies – the UK, France, and Australia – also sent warships to participate in FONOP activities in the South China Sea. The French naval commander said that they came to the South China Sea because the law of the sea here was being violated. The Indo-Pacific policy creates a “diamond” to restrain China using strong measures. The United States has the advantage of weapons and economic power, while China has the advantage of proximity, backyard and already set-up cards. The United States has not yet taken effective measures to deal with the "gray zone" tactic which utilizes Chinese coast guard and maritime militia. FONOP activities are not sufficient to affirm or make parties respect the value of the 2016 ruling. The United States increases the cooperation with and assistance to other countries’ maritime law enforcement forces and coast guard to overcome weaknesses. The first-phase deal on the Sino-American trade war will be welcomed, but it also creates doubt about a bargaining deal on the issue of the South China Sea in the future.

In 2020, the situation doesn’t seem to be yet brighter. The race to the White House will take the US’s attention. Vietnam assumes the Chairmanship of ASEAN in the following term while the ASEAN has yet reached a consensus on the South China Sea issue as well as the final COC. There are five major challenges for Vietnam on the international, regional, and bilateral levels. Vietnam will have to contribute to the balance of major powers as a non-permanent member of the UN Security Council (UNSC), especially as a Chair of the UNSC in January 2020. Vietnam has to arrange a meeting of ASEAN-US leaders at the invitation of President Donald Trump; ensure the progresses of ASEAN Conferences on the joint statement; keep the COC negotiation process on track, especially on issues of application scope, bindingness, dispute resolution mechanism, and the role of a third party. China will urge ASEAN countries to soon accept proposals in its favor and conclude the COC negotiations before 2022 while President Duterte is still in office and the Philippines plays the role of coordinator of ASEAN-China cooperation, Brunei and Cambodia will be ASEAN Chairs after 2020[10]. 2022 is also the 20th anniversary of signing DOC; it’s time for the parties to make a big step forward. The big goal of the 2020 Chairmanship is to increase solidarity and unity in ASEAN, contributing to the promotion of peace, security, and stability in the region, responding promptly and effectively to emerging challenges. Vietnam needs to become the core connecting ASEAN countries together while they are under great pressure from China and have very different views on how to deal with China in the South China Sea issue. ASEAN has to well perform its central role, asserting its principles, including ensuring the regional peace, stability, security, safety, freedom of navigation, and building trust. All parties also refrain from complicating the situation and comply with international law and UNCLOS.

In bilateral relations, Vietnam still has to maintain the principle of "cooperating and struggling” with China while preparing for the Party Congress, and doesn’t let the situation in the South China Sea affect the terms of UNSC non-permanent member and ASEAN Chairmanship. Vietnam needs to find more effective ways to fight, utilize UNCLOS and take advantage of international support to limit violations in its waters. Vietnam hopes that by 2020, Beijing will show restraint and prudence, not causing much tension in the South China Sea with Hanoi or neighboring countries[11].

In 2020, China will continue to realize the “setting aside dispute and pursuing joint development” idea with the Philippines in order to achieve an exemplary model for other countries. China will continue to expand the island building in Spratly, Paracel and Scarborough islands and gradually "civilize" these entities before the UN and the international community by building and registering meteorology stations, search and rescue facilities to the international system so that the United States and other countries would have no excuse to attack as they are "civilian bases". China proactively initiated a legal propaganda battle, seeking to justify its claims. Beijing’s military activities aren’t large scale but enough to suppress surrounding countries to show the world that the security of the South China Sea is under control and that instability is due to external factors. The Philippines may submit a continental shelf limit beyond 200 nautical miles in the South China Sea. This will cause nominal overlapping issues in the South China Sea, not territorial disputes. The parties may negotiate or agree on a joint proposal on the continental shelf in the South China Sea. China will react, but the impact of the 2016 ruling cannot be totally dismissed. UNCLOS has always been an effective legal tool for countries to establish a just rule of law, on the basis of respect for the sovereignty and legitimate interests of coastal countries, for peace, security, stability, and prosperity in the region.

The situation in the South China Sea will develop continuously and constantly, requiring the parties to closely monitor to have proper response to incidents.

[10] Carlyle A. Thayer, “South China Sea Forecast for 2020,” Thayer Consultancy Background Brief, December 16, 2019