Captain Sukjoon Yoon[1] and Dr. Wonhee Kim[2]
Ⅰ. INTRODUCTION
The seas are a unique domain where domestic and international law define an arena for competing powers. Although a collectively determined international legal framework exists, this is interpreted and constrained by domestic laws and regulations which attempt to advance individual national interests.
The South China Sea (SCS) is an especially complicated domain, and perhaps the most contentious of all seas, and where physical confrontations occur frequently.[3]
There are several actors involved in the underlying disputes, which arise from competing claims to maritime sovereignty, rights and interests; and such claims are sometimes clearly mendacious.
The United Nations Convention on the Law of the Sea (UNCLOS) has a proved inadequate to resolve maritime issues in the SCS because there are fundamental differences of opinion about the rights and duties of coastal states, and particularly about defining the entitlement to special maritime zones, such as Exclusive Economic Zones (EEZs).
Besides these difficulties, there are further issues concerning Illegal, Unregulated and Unreported (IUU) fishing activities, and also unilateral oceanic surveying for seabed resources.
The SCS is thus a hotbed of intractable maritime problems where national rivals face off regularly, and there is a serious risk of uncontrolled and violent escalation.[4] China is the worst offender, by blatantly violating international law, and by fomenting maritime disorder with its salami-slicing strategy intended to consolidate its excessive claims in the SCS.
Ⅱ. MARITIME ISSUES IN THE SOUTH CHINA SEA
The primary contention in the SCS is between China and some coastal states which are members of ASEAN, including Vietnam, the Philippines, Malaysia, Brunei, and Indonesia. Taiwan also maintains a similar stance, rhetorically, to that of China. The maritime security capabilities of all ASEAN members do not compare to those of China, leading them to look to the US for support. The US has not ratified UNCLOS, however, and acts as a third party following its own national interests: it works to contain China by helping to counter China’s aggressive and extravagant maritime claims in the SCS, though this is contingent on the weaker states acquiring certain maritime security capabilities.
SCS disputes must be understood within two distinct paradigms: the legal and the military. ASEAN members take recourse in the former, whereas China relies upon the latter, using legal language as a cynical cover for its military aspirations. In theory, UNCLOS should be the principal means for resolving maritime disputes, and the rights and responsibilities defined therein should be obligatory for all signatories. In practice, however, SCS stakeholders interpret UNCLOS rules according to their own interests, and those with sufficient naval resources, particularly China, but also the US to some degree, use it to attempt to consolidate their self-serving interpretations.[5]
In July 2016 an arbitral tribunal at The Hague, ruling on a dispute between the Philippines and China, decided that many Chinese claims in the SCS, including the so-called “nine-dash line”, have no lawful effect under UNCLOS.[6] China rejected the ruling, and continues to intrude into the Philippines’ 200-mile EEZ with unwelcome activities such as military exercises, surveying, and ISR patrols and flights.
Chinese rhetoric regards the SCS as essentially an internal sea which is almost entirely under Chinese jurisdiction. China’s actions match its rhetorical claims, especially through its aggressive efforts to entrench Chinese power in the SCS by working stealthily to alter the facts on the ground, most conspicuously by creating artificial islands atop remote reefs and atolls, and then transforming them into forward military bases. These ongoing actions create the biggest risk for military escalation in the SCS.
At present, the China’s People’s Liberation Army Navy (PLAN), is less directly relevant to SCS disputes than the unified Chinese Coast Guard (CCG), command of which was transferred in 2018 from the Maritime Affairs Ministry to the Central Military Commission, which is a paramilitary police organization.[7] The CCG has since played the major role in overturning the established maritime status quo, by enforcing China’s SCS claims which now use a new baseline, dependent on the artificial islands and directly contrary to clear UNCLOS definitions.[8]
Ⅲ. LAW ENFORCEMENT AND NAVAL OPERATIONS IN THE SOUTH CHINA SEA
China’s misbehavior in the SCS sets an unfortunate example of advancing nationalist ends under the cynical cover of putative law enforcement actions. This is all the more egregious because a legal framework exists, UNCLOS, which could have been the basis for a mutually agreed settlement of the outstanding disputes.
The US has engaged in a rhetorical battle with China, challenging China’s excessive claims in the SCS and criticizing its reckless and dangerous disruption of rules-based maritime good order and stability.[9]US actions have so far been limited to Freedom of Overflight and Freedom of Navigation Operations (FONOPs), which the US considers in lawful accord with Article 87 of UNCLOS and also with Innocent Passage as defined in Article 17.[10] China sees FONOPs as unlawful, citing its own its domestic laws, and therefore considers its resistance to FONOPs to be justified. Likewise, Chinese harassment of vessels belonging to other disputing SCS parties are portrayed as law enforcement maneuvers in accordance with Chinese domestic
laws.
China maintains that its SCS claims are a matter of historical rights and an ongoing historical imperative. The use of the CCG to bully other parties into accepting China’s extravagant claims are similarly justified. The PLAN stands behind these ‘law enforcement’ activities of the CCG as the ultimate backstop. Indeed, Chinese military doctrine confirms the expediency of this approach under the slogan of Three War fares: media and public opinion warfare, psychological warfare, and legal warfare.
China’s disruption of regional stability by upending the existing rules-based international order is no accident, but rather a deliberate challenge to the SCS status quo, using grey-zone tactics to gradually create a fait accompli in which the SCS has become an internal Chinese sea: China claims “indisputable sovereignty” over the SCS. Unfortunately, however, China’s obsessive pursuit of the historical status it believes it deserves could easily escalate into a regional or even a global emergency.[11]
China denounces lawful naval operations by other SCS nations and by third parties as evidence of a Cold War mentality, calling them reckless, coercive, aggressive, provocative and dangerous. In fact, of course, it is China itself which is behaving in this way, as seen from recent intensive confrontations between China and the Philippines near Mischief Shoal, Scarborough shoal, and Second Thomas Shoal. The CCG has conducted intrusive patrols into the Philippines’ territorial waters and its 200-mile EEZ, and wantonly harassing smaller Philippine vessels with high-pressure water cannons, long-range acoustic devices, and ramming and shouldering tactics.[12]
China is likely to become ever more aggressive in asserting its excessive maritime claims in the SCS, and will also vigorously pursue the associated fishing and energy-exploration rights as part of its agenda to alter the territorial and maritime status quo of the SCS. China lied repeatedly about the militarization of its artificial SCS islands, and such protestations of peaceful intent are now extremely difficult to believe. China already dominates the SCS through its ‘law enforcement’ and naval operations, and it seems clear that China’s ultimate aim is to expand its maritime power until it also dominates the entire Indo-Pacific region.[13]
These Chinese ambitions pose a troublesome challenge for the US, since a direct confrontation with China in the SCS would divert US resources away from the ongoing wars in Europe and the Middle East which are already stretching US capacities rather thin. The FONOPs conducted by the US and its allies have now degenerated into a token protest which China believes it can ignore.
China’s neighbors are also in difficulties, although the US still supports many of these weaker coastal states whose capabilities cannot match Chinese coast guard and naval forces. Since 2012, when China occupied the Scarborough Shoal, a traditional Philippine fishing ground located within the country’s EEZ, the trend has been clear. The US presence and naval power in the SCS is becoming marginalized, and China has already gained such a strong foothold by weaponizing its putative law enforcement activities and by militarizing the artificial islands it has created that restoring the status quo ante of the early 21st century is all but impossible without a full-scale war.[14]China’s regional maritime hegemony is practically a foregone conclusion: China has managed to expand its maritime borders unilaterally without firing a single shot.
As a consequence of China’s blatant military expansionism, which it justifies by excessive maritime claims, security in the SCS has deteriorated markedly. China is determined to become the dominant regional maritime power, and has long been pursuing a gradualist strategy which is now approaching a fait accompli.
The US, meanwhile, is resisting China’s efforts, and many other interested parties in the Indo-Pacific region have been affected by China’s coercive and provocative behaviors, and by the challenge of maintaining a strategic balance between the two great powers. Among these stakeholders is the Republic of Korea, which is deeply concerned with regional maritime issues, as stipulated by its National Security Strategy and its Indo-Pacific Strategy.[15]
The ROK’s National Security Strategy, announced in 2023, envisions the ROK becoming a Global Pivotal State.[16]With this aspiration, the ROK declares its intention to move beyond established strategic patterns and to take a transformative approach to maintaining maritime peace and stability. This new role will likely require the ROK’s involvement with the issues, and the status quo of the maritime disputes of SCS maintained through international law-based negotiation among parties.
That said, the ROK is facing steadily increasing nuclear and missile threats from North Korea, and although the ROK is committed to playing a constructive supporting role in the SCS, its first priority has to be deterring North Korea. In fact, the North Korean situation has recently grown more complicated, with a very tricky geostrategic game now playing out between China and Russia, and the US and Japan. Australia, Japan, Canada, India and some EU countries are becoming more directly involved in SCS issues, but the ROK will likely avoid any such direct military or law enforcement activities.[17]
Ⅳ. CAN THE SOUTH CHINA SEA DISPUTES BE RESOLVED?
There are fundamental contradictions in the SCS which make it difficult to implement maritime law while simultaneously preserving maritime security. Problems include: overlapping EEZs in the semi-enclosed seas of the region, with maritime boundaries yet to be delimited; extensive IUU fishing by the vessels of several states but especially those of China; and several territorial disputes made more complex by China’s creation of artificial islands. There is often confusion about whether force is being used to exercise national jurisdiction, based on a maritime legal regime, or to safeguard national defense, based on a national security regime.[18]
The SCS has seen many naval operations in the past, such as the China-Vietnam clashes at the Paracel Islands in 1974 and 1988, but following the ratification of UNCLOS in November 1997 such confrontations between naval forces, typically involving China and other parties, have gradually declined. Once UNCLOS was codified, it was hoped that law enforcement in the SCS would rely upon a rules-based order applicable to all the surrounding countries.
Unfortunately, China’s determination to restore its historical regional hegemony has prevented this from happening. Even after the 2016 ruling that China’s “nine-dash line,” which was not documented before the 1940s, has no legal significance, China has continued to use its overwhelming maritime forces to mistreat its neighbors. China’s main adversary is, of course the US, the current hegemon which China is attempting to displace.
Resolving the intractable maritime issues persisting in the SCS will require a major rethinking of how law enforcement entities and naval forces cooperate and combine. It is hard to see this happening, unless China commits to effective and legitimate international maritime dispute settlement mechanisms.
Ⅴ. SOME POLICY AND OPERATIONAL RECOMMENDATIONS
As an absolute minimum, China should engage in good faith with existing bilateral and multilateral risk-reduction mechanisms such as the Code of Conduct (COC) between China and ASEAN, the Code for Unplanned Encounters at Sea (CUES) among Western Pacific naval powers, and the Military Maritime Consultative Agreement (MMCA) between China and the US.[19]These agreements are good practical tools for preventing physical conflicts in the SCS, where the boundary between domestic laws and international law is sometimes ambiguous, and the distinction between law enforcement and naval operations is often blurred. China’s grey-zone activities are creeping closer to hybrid warfare, and the US-led FONOPs are not a constructive solution. UNCLOS has proved insufficient to preserve security in the SCS, and all parties should support any and all other instruments with potential to stabilize the situation.
Also, China should cease its current practice of unilaterally imposing its domestic laws on all parties and situations in the SCS, as if it were an internal Chinese sea without any international involvement.[20] On the contrary, UNCLOS is the primary legal regime applicable to the SCS, and China should acknowledge this fact. Whatever may have been true in the past, China’s ongoing attempts to change the 20th-century status quo through main force clearly demonstrate that China is an irresponsible actor which cannot be trusted to cooperate in partnership with other nations in upholding international law.
China’s coercive and tyrannical approach to the complicated maritime terrestrial disputes with its much weaker neighbors is shameful and unnecessary. China should move away from its current “might is right” philosophy and start to treat its neighbors with the respect they deserve.
If China wants to be seen as an honest and trustworthy member of the international community, the best way to prove this is by fully accepting the primacy, in the SCS, of UNCLOS over its own domestic laws. UNCLOS provides the fundamental paradigm for resolving the SCS disputes, and China should negotiate within this framework to reach mutually agreed solutions with its neighbors, treating them as partners on an equal footing, rather than as nuisances to be disciplined.
Moreover, China should abandon its practice of deliberately blurring the distinction between the military operations of its naval forces and the constabulary role of its maritime militia and its coast guard forces. This is a cynical strategy to allow the use of overwhelming force in the SCS disputes without obviously crossing a line into actual warfare.
The vast expansion of the CCG, supposedly to enforce Chinese domestic laws and regulations is, in practice, a means to conduct physical operations blocking or harassing the vessels of other parties. China already has the most powerful navy and coast guard in the region, and is essentially turning the CCG into an alternate navy, but with plausible deniability. Taken as a whole, the quantity and the quality of Chinese maritime resources represents a serious threat to all stakeholders in the SCS.
China has made extensive use of the coast guard instead of formal naval forces, deploying the CCG especially in sensitive areas off the Spratly and Paracel Islands, and near Scarborough shoal, Mischief Reef, and Second Thomas Shoal. China should refrain from using its maritime law enforcement forces to stir up trouble in the SCS.[21] Until mutual agreement has been reached, under UNCLOS, on appropriate maritime governance mechanisms, China’s so-called constabulary forces are acting as aggressively militaristic bullies. China’s true interests would be far better served by cooperating with its neighbors in managing bilateral and multilateral agreements designed to maintain maritime good order and stability.
China’s current strategy in dealing with the SCS disputes is certainly not making it any friends in the region: at best, China is seen as a trouble-maker to be appeased; at worst, as an implacable enemy. Its powerful coast guard capabilities do not provide any real benefits to China, and this approach is not helpful in reaching peaceful and long-lasting solutions for the problems of the SCS. The risk of unintended military escalation is increasing, year by year, and China would be best advised to scale back the size of its coast guard forces and to reconsider its expansionary use of its naval forces in the SCS.
Furthermore, China should get serious about agreeing the COC.[22] China’s current attitude on the negotiations is utterly disingenuous, and its high-flown aspirational rhetoric is nothing but a delaying tactic. This is blatantly obvious to all parties involved, both to China’s neighbors and to the international stakeholders with an interest in preserving stability and free navigation in the SCS. This kind of non-binding multilateral mechanism is exactly what is needed to deal with unintended contingencies and other crises in the SCS. To implement the COC effectively, it will require some appropriate identification system, such as Automatic Identification System (AIS), and all vessels should be so equipped, and operating the system 24/7 without any limitations.
As to CUES, when it was first agreed, some commentators hailed it as a major contribution towards peace and stability in the SCS, though China was insistent that no hint of legal force could be imputed to CUES. While it is true that some physical encounters between US and Chinese naval forces have been successfully avoided by means of CUES communication channels, the voluntary nature of CUES and its limitation to purely military naval forces have limited its usefulness. China has sidestepped the application of CUES by using the CCG and its maritime militia in quasi-military roles and operations. CUES was intended only as an interim mechanism to avoid unintended conflict in vessel-to-vessel and aircraft-to-aircraft encounters, until a more comprehensive diplomatic agreement could be reached. A broader protocol for dealing with such incidents is in all parties’ interests, China included.
Lastly, the US has relied upon FONOPs to assert its legal standing in the SCS but also to demonstrate its military commitment to the region. These are independent aspects of US policy, however, and the use of a single tool to achieve both ends is unfortunate and unsophisticated. The US is a major stakeholder in the region, but its legal position is merely as a third party. If the US were to accede to UNCLOS, however, it would be better placed to maintain peace and good order in the Indo-Pacific. For example, it would be easier to build an alliance within UNCLOS to resist and reject China’s attempt to use a new baseline derived from its artificial islands for its territorial and jurisdictional claims. These claims rely upon UNCLOS definitions and conventions, despite the fact that the artificial islands are merely shoals or reefs under UNCLOS, and so do not qualify. The US military presence in the SCS, and in the wider Indo-Pacific, is a distinct issue, which should not be entangled with such legal matters.
Ⅵ. CONCLUSION
The South China Sea has become a major theater for geopolitical machinations, but peace and good order in the SCS can only secured by legal means. UNCLOS provides a good basis, but there are gaps in its application to the SCS which all parties of good intent should work together to fill. Failure to cooperate may well result in a major conflict, but it is not too late for negotiation. Most importantly, a way needs to found to integrate the law enforcement activities of the coast guard with the naval operations essential for national defense, so that force is always and only used in a measured and appropriate fashion. This will be challenging, but only through closer cooperation can the security and stability of the SCS be preserved, and only by supporting the international maritime legal regime can conflict be avoided.
[1]
Captain Sukjoon Yoon, ROK Navy, retired,Senior Fellow at the Korea Institute for Military Affairs.
[2]
Dr. Wonhee Kim, Director of the Ocean Law Research Department, KIOST.
[3]
Oriana Skylar Masto, “In the South China Sea, the US Needs to Call Beijing’s Bluff before It’s too Late,” The New York Times International Edition, July 27-28, 2024, p. 10.
[4]
See Maj Gen Rajiv Narayanam & Gp Capt Sharad Tewari, From Contest to Cooperation: A Vision for Shared Prosperity in the Indo-Pacific Region (USI, India: Vij Books India Pvt Ltd, 2018).
[5]
See George Galdorisi, Doug Bandow, M. Casey Jarman, The Law of the Sea Institute Occasional Paper No.38, The United States and the 1982 Law of the Sea Convention: The Cases Pro & Con (Hawaii, HO: William S.Richardson School of Law, University of Hawaii, 1994).
[6]
Camille Elemia, “Beijing’s Ships Hover Offshore,” The New York Times International Edition, August 14, 2024, pp. 1-2.
[7]
See Ian Bowers and Swee Lean Collin Koh, Grey and White Hulls: An International Analysis of the Navy-Coastguard Nexus (London: Palgrave Macmillan, 2019).
[8]
Damien Cave, “China Uses Coast Guard to Exert Its Power at Sea,” The New York Times International Edition, June 14, 2023, pp. 1-2.
[9]
See Department of Defense United States of America, Department of Defense Report to Congress: Annual Freedom of Navigation Report Fiscal Year 2022 (DoD, USA: Department of Defense, 2022).
[10]
See Division for Ocean Affairs and the Law of the Sea Office of Legal Affairs United Nations, The Law of the Sea: United Nations Convention on the Law of the Sea (New York, USA: United Nations, 1997).
[11]
See Tran Truong Thuy, John B. Welfield, Le Thuy Trang, Building a Normative Order in the South China Sea: Evolving Disputes, Expanding Options (Cheltenham, UK: Edward Elgar Publishing, 2019).
[12]
See Philippine military condemns China air force for 'dangerous' acts in South China Sea - CNA(channelnewsasia.com).
[13]
Agens Chang and Hannah Beech, “The Chinese base that isn’t there: Satellite images from shipping hubs show clear signs of Beijing’s growing global influence,” The New York Times International Edition, August 17-18, 2024, p. 3.
[14]
See Bill Hayton, The South China Sea: The Struggle for Power in Asia (New Haven, USA: Yale University Press,2014).
[15]
Scott A. Snyder, “What South Korea’s Indo-Pacific Strategy Says About the Development of a ‘Yonn Doctrine’,” in Council on Foreign Relations, December 29, 2022.
[16]
The Yoon Suk Yeol Administration’s National Security Strategy: Global Pivotal State for Freedom, Peace and Prosperity (Seoul, Officer of National Security, President of Republic of Korea, June 8, 2023).
[17]
David Pierson and Amy Chang Chien, ‘China hones its ability to put Taiwan in a chokehold,’ The New York Times International Edition, October 18, 2024, p. 1-2.
[18]
See Gordon Houlden, Scott N. Romaniuk, Nong Hong, Security, Strategy, and Military Dynamics on the South China Sea (Bristol, UK: Bristol University Press, 2021).
[19]
See C.J. Jenner and Tran Truong Thuy, The South China Sea: A Crucible of Regional Cooperation or Conflict-making Sovereignty claims? (Cambridge, UK: Cambridge University Press, 2016).
[20]
Chris Buckley and Camille Elemia, ‘China deploys fleet to block Philippine protest flotilla,’ The New York Times International Edition, May 19, 2024, p. 4.
[21]
Camille Elemia, “On a Philippine Boat, Pummeled by China,” The New York Times International Edition,December 16-17, 2023, p. 3.
[22]
See Emeritus professor Carlyle A. Thayer, Diplomatic Challenges in the South China Sea, A paper of PPT of presentation to Contemporary Challenges in Diplomacy Coral Bell School of Asia-Pacific Affairs ANU College of Asia-Pacific. The Australian National University Canberra, May 16, 2023.