Fostering Cooperation

Strategic Vision vol. 10, no. 51 (December, 2021) Fostering Cooperation

Challenges prevent parties from respecting rule of law in South China Sea

Tran Thi Duyen

Lieutenant General Do Ba Ty, Vietnam‘s Vice Minister of the National Defense, takes a tour of Joint Base Lewis-McChord, Washington.

photo: Jacob Jimenez

Although the United Nations Convention on the Law of the Sea (UNCLOS) was signed in 1982, the UN Security Council has also adopted many resolutions on various areas related to maritime security and transnational crime. The security situation at sea, however, still faces many challenges, containing many unstable factors including territorial disputes and unilateral acts by states violating international law at sea—even coercion of one state by another through the threat or use of force, which affects peace, security, safety, freedom of navigation, and commerce. Preserving and enhancing maritime security is the responsibility of the entire international community.

At a high-level open debate of the United Nations Security Council (UNSC) hosted by India on August 9 called “Enhancing maritime security: A case for international cooperation,” Indian Prime Minister Narendra Modi highlighted five issues of concern: (1) removing barriers to maritime trade, (2) resolving disputes peacefully by following international law, (3) countries working together to tackle threats emanating from non-state entities and natural disasters, (4) conserving the environment and marine resources, and highlighting pollution caused by plastic waste and oil spills, and (5) having connectivity and the need for a structure that promotes commerce at sea as well as building up global rules and standards. According to a statement issued by the Indian Ministry of Foreign Affairs, “No country alone can address the diverse aspects of maritime security, it is important to consider this issue holistically in the UNSC. A comprehensive approach to maritime security will protect and support lawful maritime activities to counter traditional and non-traditional threats in the maritime domain.”

Speaking at the aforementioned event, Russian President Vladimir Putin urged countries to establish a structure in the United Nations to deal directly with the problems of transnational crime and prevent the use of the seas and oceans for criminal purposes in different regions around the world. He also vowed that Russia would ensure security in the Atlantic Ocean and the Persian Gulf, where piracyrelated incidents, including robbery on the high seas and the taking of hostages, have become more frequent. While discussing the security situation in the South China Sea (SCS), US Secretary of State Antony Blinken warned the UNSC that any conflict in the SCS—or any ocean, for that matter—would have dire consequences for global security and commerce.

“We have witnessed dangerous encounters between vessels at sea and provocative actions aimed at promoting unlawful maritime claims,” Blinken said, adding, “Washington has been concerned about actions to intimidate and bully other countries and unlawfully accessing their maritime resources.” He also added that it was the responsibility of all countries, not just claimants from the islands and waters in the SCS, to uphold the rules they had all agreed upon, and to peacefully resolve disputes when they arise.

As a coastal country with a long coastline of over 3,000 km running from the North to the South, Vietnam is deeply aware of the great value of the sea and the current challenges to maritime security. In Vietnamese Prime Minister Pham Minh Chinh’s speech at the debate, he said that Vietnam had been implementing strategies for sustainable development of the marine economy to sustainably and responsibly exploit marine resources for the nation’s development, as well as improving law enforcement capacity to protect its sovereignty, jurisdiction, and legitimate interests on the sea. He affirmed that the 1982 UNCLOS is a comprehensive and universal constitution on the seas and oceans that governs all activities at sea and is the basis of international cooperation to address common challenges. From that basis, he made three important proposals to ef-

ASEAN member state maritime forces gather for a photo during the ASEAN-US Maritime Exercise in Singapore.

photo: Jimmy Ong

fectively cope with maritime security. First, raising awareness of the whole of humanity about the importance of oceans and seas, and turning such awareness into policies and actions in countries around the world. Second, the security of the seas and oceans is a global issue, so there must be global solutions, connecting initiatives and mechanisms which protect global maritime security with each other, and the United Nations should be responsible for such connections. Only when the mechanisms and initiatives of all countries are connected into a common system can global security challenges be solved effectively.

Respecting the law

Third, upholding the spirit of respecting the law. The policies, regulations, and conduct of countries at sea must be in line with international law, especially the UN Charter and the 1982 UNCLOS. They must respect the sovereignty, legitimate rights, interests, and economic activities of coastal states, settle disputes by peaceful means under international law, respect diplomatic and legal processes, and ensure freedom, safety, and security of navigation and overflight. Current maritime security is challenged by traditional and non-traditional actors. If a state deliberately implements the law of the sea in its own way, these challenges won’t be solved.

The three proposals of the Vietnamese Prime Minister are essential for regional security around the SCS. The international community has long benefited from a rules-based maritime order, and UNCLOS 1982 set out the legal framework for activities at sea. There is still militarization in many seas, however, and sovereignty disputes continue to impede the flow of commerce. The SCS disputes are still a potential source of conflict in the Asia-Pacific region. The SCS is the second-busiest arterial traffic route in the world and is a competitive area for the great powers. China considers the SCS the focus of strategic competition in its Belt and Road Initiative, and Beijing has a plan to establish a Maritime Silk Road to connect the South-eastern coastline of China to the Mediterranean Sea through the South China Sea, the

The Song Han Terminal in Danang is vital to Vietnam’s maritime commerce and trade.

photo: Thang Nguyen

Indian Ocean, and the Suez Canal. At the same time, to contain China’s maritime ambitions, the United States and some Western countries are trying to implement the Indo-Pacific strategy. Some countries such as the United States, New Zealand, Australia, the United Kingdom, France, and Germany have submitted a diplomatic note to the United Nations to reject China’s claims in the SCS.

United face

Despite the jostling for influence by the major powers, as a block, the Association of Southeast Asian Nations (ASEAN) is still trying to show a united face and maintain a consistent stance on the SCS issue without choosing sides. Although not all ASEAN countries are claimants in the SCS disputes, ASEAN itself has an interest in resolving tensions among claimant states to ensure peace, stability, security, safety, and freedom of navigation and overflight in the region, as well as seeking to safeguard ASEAN’s political position in the international arena. However, there are still concerns about the sea lines of communication in the SCS due to unilateral and illegal coercive acts by certain states. If the SCS issue is not properly resolved by following international law, it will adversely affect the entire region. Therefore, ASEAN has increasingly showed solidarity and has promoted collective strength to cope with the security challenges in the SCS.

Great efforts have been made by ASEAN countries, including Vietnam, toward resolving the SCS disputes with the participation of all claimants. It will be necessary to have a South China Sea Code of Conduct and agree on sanctions if a party fails to comply to keep the peace. The SCS issue has received increasing attention from the international community, especially over the past five to ten years. The British and German navies have also been present here.

There have been several serious security situations in the SCS which have affected this vital trade route. Therefore, there should be a common approach to resolving these disputes. China must comply with UNCLOS and take constructive actions. Vietnam has been very proactive in bringing the SCS issue to the discussion at international forums, especially when it took on the role of ASEAN Chair 2020. Vietnam has also made efforts to build consensus among stakeholders, especially among ASEAN countries, and this shows that there is still a constructive option for all countries involved. The SCS is an important strategic maritime route. It is not only the responsibility of countries in the region but also the international community. The 1982 UNCLOS described in great detail exclusive economic zones and the role of a continental shelf, providing a legal framework that all countries need to follow. So far, there have been many disputes that have relied on international law for resolution. India and Bangladesh have also relied on international law to settle maritime disputes, and even India lost some maritime territory after such a dispute. When considering international law as the basis for resolving disputes, all countries involved in that dispute need to comply. International law sets a basic consensus among parties because it considers states as the same, without the preference of a large country over a small country.

In short, respecting international law is paramount to controlling behavior at sea and managing disputes, and ensuring smooth international trade on the oceans. Because the maritime security environment faces serious challenges, there should be more high-level forums for related countries to make commitments toward resolution. Any disregarding of international law can become a trigger for dangerous and uncontrollable conflicts on the oceans. Without a secure maritime space, it is almost impossible to create a livelihood for the more than three billion people around the world whose livelihoods depend on the seas and oceans.

Dr. Tran Thi Duyen is currently a research fellow with the Institute for Northeast Asian Studies, Vietnam Academy of Social Science. She can be reached for comment at duyen@inas.gov.vn