The South China Sea (SCS) is a strategic international sea lane that connects the Indian and Pacific oceans, and the route used to transport global crude oil and other goods worth US$1.3 trillion (RM5.5 trillion) in 2013. The regional states and shipping industry are very concerned about the security and safety of this navigational route.
Of immediate concern to the international community today is the overlapping claims in SCS by the six claimants, namely Brunei, China, Malaysia, the Philippines, Vietnam and Taiwan, pursuant to the exclusive economic zone (EEZ) concept in the United Nations Convention on the Law of the Sea (UNCLOS) of 1982. Among the claimants, China happens to be the most powerful, but Vietnam controls the largest number of islands in the Spratlys.
The highly complex overlapping claims are based on historical legacies, strategic interest and a race to exploit its seabed resources, such as hydrocarbon. Malaysia, in this regard, shares the need for stability and cooperative security in SCS because its EEZ lies in this maritime domain.
This article examines the activities of extra-regional powers like China and the United States, which can lead to military skirmishes, and the Asean mechanisms in promoting cooperative security in these strategic waters.
It should be noted that the sea power projection as pursued by some maritime powers could be argued as an effort or obligation to ensure the principle of freedom of navigation is maintained and well observed, so that there is no disruption in the seaborne transportation of strategic commodities, such as oil and gas.
The freedom of sea principle is set out in UNCLOS, which came into force in November 1994. UNCLOS does not resolve all maritime issues; many problems exist because of the differences in understanding and interpretation by the international community.
However, China affirmed that it is guaranteeing freedom of navigation for foreign ships and air routes through and over SCS according to international law as stipulated in the Chinese White Paper of 2002, emphasising the importance of pursuing peaceful external relations through multilateral and cooperative approaches.
Similarly, the US has explicitly stated that the freedom of passage in SCS must not be interrupted because of its strategic and economic interest to the Asia-Pacific region. This is also crucial for its military deployment from the US Pacific Area Command Base in Honolulu, Hawaii.
In realpolitik, the US has to recognise China as a great power in Asia and its current centrality to the regional economic order. It is clear that China is a preeminent power in Asia that could actively strengthen regional stability, security and prosperity.
Accordingly, Beijing acknowledges Washington’s commitment and its strategic alliances in the region in addressing both traditional and non-traditional security threats. At the same time, the US military presence in the region is a force of stability through cooperation and engagement with coastal states like the Philippines, Thailand and Singapore.
However, the use of the high seas for military activities, including marine scientific research (MSR) by other states in the coastal states’ EEZ, needs further analysis. Through Article 58 of UNCLOS, intelligence gathering activities have been regarded as part of the exercise of the freedom of high seas and, therefore, are lawful in the coastal states’ EEZ.
Thus far, maritime powers have been conducting such activities without protest from coastal states concerned, unless they become extremely provocative.
Other states also may use the EEZ, with the concept of “due regard” to the rights and duties of coastal states as stated in Article 58(3) of UNCLOS. As clearly stated in the same article, in exercising their rights and performing their duties in the EEZ, “states shall have due regard to the rights and duties of the coastal state and shall comply with the laws and regulations adopted by the coastal state”.
However, under Article 56(2), the coastal state is required to have due regard to the rights and duties of other states in exercising their rights and performing their duties in the EEZ. In essence, UNCLOS tries to maintain the balance of interests and rights of the coastal state and other states in the EEZ.
Unfortunately, UNCLOS does not clearly define “due regard” or what constitutes permissible military activity.
As a case in point, on March 9, 2009, the USNS (US Navy) Impeccable, while performing acoustics collection surveillance, was confronted by five Chinese vessels about 139km from Hainan Island in SCS. This naval incident clearly showed that China has a right to do so under Article 58(1) of UNCLOS, the fact that Impeccable was well within its EEZ.
However, the US differed in its interpretation of UNCLOS, in particular the convention’s provisions on the coastal states’ right in their EEZ. But, the US has yet to ratify UNCLOS, while China is a party to it. As argued by some, the activities conducted by the USNS Impeccable have contravened Article 58(3) of UNCLOS.
If not properly contained, the incident could lead to military skirmishes between the two maritime powers, given China’s ascending role in Asian security and economic affairs and the US’s desire to maintain its status of regional preponderance. The security architecture in SCS is indeed a challenge to the regional states.
At the same time, activities, such as MSR and military exercises, are being conducted in this maritime domain pursuant to Articles 88, 240 and 301 of UNCLOS by the coastal states’ navies. Also, naval vessels of extra-regional powers (nations with blue-water navies) are manoeuvring in the EEZs of the coastal states in SCS.
This not only contravenes Article 58(3), which states that “other states shall have due regard to the rights and duties of the coastal state and shall comply with the laws and regulations adopted by the coastal state”, but also demonstrates their disregard for the convention.
The freedom of navigation and stability in Southeast Asia waters are equally important in strengthening security cooperation in SCS, such as maritime security confidence-building measures (MSCBM) to promote economic development of sea resources. This is well noted by maritime historian Thayer Mahan, who said: “control of the sea means access to the strategic assets of virtually the entire world”.
In this respect, Asean’s concept of Zone of Peace, Freedom and Neutrality (ZOPFAN), adopted in Kuala Lumpur in 1971 as the foundation of the confidence-building measures (CBM) framework on maritime security, sets a bold commitment to establish “a zone of peace” in the region. Therefore, Asean’s cooperative security in maintaining peace and stability in regional maritime domain can be examined in three commitments.
A formulation of a framework of Prevention of Incident at Sea is the first commitment — an extension of MSCBM on navigation or navigational code of conduct. These arrangements comprise more positive connotations to promote a culture of cooperative security at sea. Therefore, an Incidents at Sea Agreement (INCSEA) should be established between Asean and China. At the international level, the first INCSEA was established between the Soviet Union Navy and the US Navy on May 25, 1972, during the Moscow Summit, and has proven effective in regulating the interaction of both fleets on the high seas.
INCSEA called upon the two navies to refrain from aggressive actions when operating in close proximity. INCSEA underwent its first true test in October 1973, when war broke out in the Middle East. Both the former Soviet Union and the US navies deployed their fleets in the Mediterranean Sea. Despite the influx of more than 150 warships into a small body of water in the Mediterranean Sea, the two navies conformed to INCSEA.
Similarly, Indonesia and Malaysia signed an INCSEA in 2001. In reality, the value of regional INCSEA lies in the obligation of the Southeast Asian coastal states to consult regularly on security matters, prevent collisions at sea and in the air that could affect relations.
Developing more predictable standard operating procedures at sea will reduce the likelihood of inadvertent clashes and promote understanding.
Thus, from Malaysia’s experience, using peaceful means like INCSEA has solved the “naval deployment in general area of Batuan Unarang” in Sulawesi Sea between Indonesian and Malaysian navies in March 2007 concerning oil exploration in the overlapping claims by the two countries. Therefore, it is the question of security cooperation versus economic development of the coastal states and how best to enhance cooperation to promote stability.
The second commitment is the establishment of a robust “Force-Over-the-Horizon” for maritime peacekeeping operations in maritime domains like SCS. The formation of a Force–Over-the-Horizon is pursuant to Article 52 of Chapter VIII of the Charter of the UN that states “the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action”.
The military forces of Asean member states have attained two recognised efforts in terms of credibility and capability. The Malaysian and Singaporean navies have participated in the Gulf of Aden surveillance in support of the UN Security Council Resolution 1816 of 2008 to combat piracy attacks in the Gulf pursuant to Chapter VII of the Charter of the UN. In terms of capability, the three littoral states of Straits of Malacca — Indonesia, Malaysia and Singapore — have adopted a security mechanism, Eyes in the Sky (EiS), in 2005, using military aircraft to patrol the straits to combat piracy.
Significantly, Force-Over-the- Horizon meets the UN peacekeeping requirement, with quick response and sustainable capabilities to meet the challenges of today and tomorrow.
Thirdly, the commitment of SCS coastal states to the common interest of security and safety of navigation through joint military activities. At the regional level, the claimants put aside differences and engaged in multilateral responses or joint exercises to boost ties.
At the international level, multilateral naval/maritime military exercises like CARAT (Cooperation Afloat Readiness And Training) and SEACAT (Southeast Asia Cooperation Anti-Terrorism), have been organised regularly in SCS since 2002 between Asean members and the US not only to promote confidence-building measures, but also to combat maritime scourges. This directly strengthens regional security cooperation. In essence, the participating countries are united.
In conclusion, the security cooperation with the regional states and the US has transformed into a “de facto” strategic partnership. Their navies have built or developed “interoperability” with each other in ways that facilitate their ability to perform as part of a formal multinational maritime response force. Cooperative security can be a source of unity in SCS for Asean, China and extra-regional powers like the US through political will, and strengthening of international maritime regimes and regional agreements.
Ramli H. Nik, a former military adviser at the Permanent Mission of Malaysia to UN, New York, is a senior fellow at Department of Strategic Studies, National Defence University of Malaysia