Maritime Security in the South China Sea

Regional Implications and International Cooperation

Shicun Wu, Keyuan Zou

• Publisher: Routledge
• Year: 2016
• Print ISBN:
  9780754677277
• eBook ISBN:
  9781317100508
• Topic: Politics & International Relations
• Subtopic: Environment & Energy Policy
• Index: Politics & International Relations

Maritime security is of vital importance to the South China Sea, a critical sea route for maritime transport of East Asian countries including China. The adjacent countries have rendered overlapping territorial and/or maritime claims in the South China Sea which complicate the situation of maintaining maritime security and developing regional cooperation there. This book focuses on contemporary maritime security in the South China Sea as well as its connected sea area, the Straits of Malacca and Singapore. It identifies and examines selected security issues concerning the safety of navigation, crackdown on transnational crimes including sea piracy and maritime terrorism, and conflict prevention and resolution. In the context of non-traditional security, issues such as maritime environmental security and search and rescue at sea are included. The book explores ways and means of international cooperation in dealing with these maritime security issues.

PART I
Introduction

Chapter 1
Maritime Security in the South China Sea: Cooperation and Implications

WU Shicun and ZOU Keyuan

Introduction

Maritime security is a hot issue, attracting the attention of the whole world community. In the modern era, maritime security mainly concerns the safety of navigation, the cracking down on transnational crimes including sea piracy and maritime terrorism, and conflict prevention and resolution. In the context of non-traditional security, issues such as maritime environmental security and search and rescue at sea are included. Maritime security is of vital importance to the South China Sea, which is located in Southeast Asia and is a critical sea route for the maritime transport of East Asian countries including China. While the concept of maritime security can apply to any seas around the world, the South China Sea has its own uniqueness.

The South China Sea is commonly described as one of three flashpoints (together with the Korean Peninsula and the Taiwan Straits) in East Asia for the potential conflict of national interests and threat to peace and security. Security issues around it therefore always remain a focus of international concern. As a semi-enclosed sea, the South China Sea hosts numerous islets and reefs as well as abundant living and non-living marine resources. It also provides key sea routes for maritime shipping and naval mobility. Because of its important strategic location and abundant resources, it becomes a target of contention between/among bordering countries. The picture of the Spratly Islands is even more complicated. Five countries and six parties (Brunei, China, Malaysia, the Philippines, Chinese Taipei, and Vietnam) made claims, in whole or in part, to this group of islets and display their physical presence (except Brunei) on their respectively occupied islets. In 2002, China and ten member states of the Association of Southeast Asian Nations (ASEAN) signed the Declaration on the Conduct of Parties in the South China Sea1 which is designed to consolidate and develop the friendship and cooperation existing between China and ASEAN, to promote a peaceful, friendly and harmonious environment in the South China Sea, and to enhance the principles and objectives of the 1997 Joint Statement of the Meeting of the Heads of State/Government of the Member States of ASEAN and President of the People’s Republic of China. However, unilateral actions of the claimants attempting to consolidate their territorial and maritime claims have never ceased since. The latest move was carried out by the Philippines, which passed a law of archipelagic baselines to embrace some disputed islets of the Spratly Islands into its maritime territory in February 20092 and it invited protests from other claimants including China.

Against this background, people may wonder how to handle effectively the security issues and enhance security cooperation in the South China Sea. Considering two additional factors which affect the discourse of the security paradigm in the South China Sea—one is the intensified fight against terrorism at the global level after the 9/11 terrorist attack and the other is the rapid economic growth and emerging regional integration in East Asia—the task will be very challenging. This book attempts to address maritime security issues in various perspectives and approaches. Maritime security, though covering both traditional security issues such as military activities and non-traditional security issues such as piracy and maritime terrorism, this book places more emphasis on the latter. It is acknowledged that there are so many maritime security issues concerning the South China Sea. With limited space and resources, this book is only able to identify and address some of the most pressing issues of maritime security.

The general legal framework which governs maritime security is centered on the 1982 United Nations Convention on the Law of the Sea (LOS Convention),3 which is commonly known as the constitution of oceans and has incorporated almost all previously existing conventional and customary rules and norms concerning the oceans. Pursuant to the provisions of the LOS Convention, a coastal state has the right to establish maritime zones under its jurisdiction: internal waters inside the baselines which are used to measure the extent of the territorial sea and other jurisdictional waters, the territorial sea of 12 nautical miles (nm), the exclusive economic zone (EEZ) of 200 nm, and the continental shelf of 200 nm (or up to 350 nm in some cases), outward from the baselines.

Different maritime zones have different legal status. Internal waters and territorial sea are treated as part of the coastal state’s territory and that state enjoys full sovereignty there except innocent passage for foreign vessels in its territorial sea. The sovereignty of the coastal state over the territorial sea extends to the airspace above the territorial sea as well as to its bed and subsoil.4 For some jurisdictional purposes, such as prevention and punishment of infringement of its customs, fiscal, immigration, or sanitary laws and regulations, a coastal state has the right to establish the contiguous zone which may not extend 24 nm from the baselines from which the breadth of the territorial sea is measured. However, it should be noted that in comparison with the territorial sea or the EEZ, the contiguous zone is not a complete maritime zone; rather it is subsidiary to the territorial sea for the coastal state to control certain matters of territorial nature while it is part of the EEZ in other sense. As to the EEZ and continental shelf, the coastal state, according to the LOS Convention, only enjoys sovereign rights and certain kinds of jurisdiction. The coastal state enjoys sovereign rights to the living and non-living resources in the EEZ and continental shelf, and exercises its jurisdiction over the matters relating to the establishment and use of artificial islands, installations and structures, marine scientific research, and the protection and preservation of the marine environment.5 The coastal state has the exclusive right to authorize and regulate drilling on the continental shelf.6 The EEZ and the continental shelf are identical in terms of sovereign rights and jurisdiction of a coastal state. For that reason, the EEZ and the continental shelf are not part of the high seas, or part of the territorial sea. The EEZ is a maritime zone sui generis.

Since the entry into force of the LOS Convention in 1994, the legal situation of maritime zones in the South China Sea has become more complicated. All of its adjacent countries become parties to the LOS Convention, and have enacted their corresponding domestic laws governing the maritime zones entitled under the LOS Convention. However, the South China Sea is a semi-enclosed sea with multiple coastal states, thus maritime boundary delimitation becomes another maritime security issue. Although China and Vietnam have resolved the maritime boundary issue in the Gulf of Tonkin,7 they have disputes over the maritime boundary delimitation beyond the Gulf of Tonkin and in the South China Sea. The maritime boundary delimitation, if involving territorial disputes over islands, will be more difficult to be undertaken. This is the exact case in the South China Sea regarding the Spratly Islands claimed by five countries/six parties.

Securing Navigation in the South China Sea

The role of international law in the resolution of security issues and promotion of security cooperation is indispensable. As China and ASEAN countries have reiterated on many occasions, they pledge to resolve the disputes over the South China Sea in a peaceful manner and in accordance with contemporary international law, including the 1982 LOS Convention. As Sam Bateman rightly comments, all regimes for good order at sea are based on the framework provided by the LOS Convention. In addition, he lists a series of legal instruments that applicable to the South China Sea and its security.8 It is well perceived that all the maritime security issues should be handled through appropriate cooperative mechanisms in accordance with international law.

The most salient of the security issues in the South China Sea in the non-traditional security context is the safety of navigation. The number of vessels sailing through the South China Sea has increased to about 50,000 per annum, and the Malacca Straits, which is directly linked to the South China Sea, is overcrowded with vessels on its narrow waterways, thus making littoral states more difficult to ensure navigation safety. The first part of the book contributes to this crucial topic. The international maritime treaties including the 1974 Safety of Life at Sea (SOLAS) Convention; the 1979 Convention on Maritime Search and Rescue (SAR Convention); the International Convention for the Prevention of Pollution from Ship, 1973, as modified by the Protocol of 1978 relating thereto (MARPOL 73/78); the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Navigation (SUA Convention); and the 1988 Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, as mentioned in Bateman’s chapter in this book, are all applicable to the safeguard of the safety of navigation in the South China Sea. While the LOS Convention guarantees all states to exercise the freedom of navigation on the high seas, the safety of navigation largely depends on the implementation of relevant international treaties by coastal states.

Hong Nong’s chapter links maritime security and the safety of navigation to the global economy with special reference to the countries adjacent to the South China Sea. As she comments, world trade is largely dependent on maritime transport and Asian countries are major players in world maritime transport, with sizeable shares in shipping industry. However, maritime transport is threatened by surging maritime violence in Southeast Asia as well as natural disasters and manmade hazards. Thus regional maritime security cooperation is called for—the theme of Chapter 4, contributed by Erickson, who perceives such negative forces as piracy, smuggling, maritime accidents, and even potentially maritime terrorism to be challenges which directly impinge upon the national interests in Southeast Asia. The author outlines a broad array of cooperative initiatives and places particular emphasis on the interests of the U.S. and China in the South China Sea region and their respective roles in contributing to both regional security as well as their own strategic coexistence, which, Erickson argues, is a prerequisite for the regional stability that all states should seek.

There are two more chapters in Part II of this book. One is addressing the piracy issue in the South China Sea by looking into the factors contributing to the rise and fall of maritime piracy in the Straits of Malacca and the South China Sea from 1991 to 2007. The other is concerning the passage security in the South China Sea. As Xu Ke observes in his chapter, “the myth of piracy and terrorism nexus has made anti-piracy cooperation in the Straits of Malacca and the South China Sea integrated into the global anti-terrorism framework. The myth has also driven the littoral states to shift their paradigms on anti-piracy policies, thus changed the reality of this region tremendously.”9 Wu’s chapter examines a different but related issue in the context of maritime security, i.e., the passage security for all ships through the South China Sea. Free navigation in that sea area is guaranteed by the LOS Convention, and the coastal states have the responsibility to maintain the safety of navigation. However, while there is freedom of navigation on the high seas and in the EEZs, the passage through the territorial sea of a coastal state is qualified by the conditions set forth by the LOS Convention in the stipulations on innocent passage, which is different from free passage.10 According to Wu, China shares the responsibility with other countries in the region for safeguarding passage security in the South China Sea and regional cooperation is necessary.

Regional Cooperation Combating Maritime Terrorism and Piracy

Part III of this book concerns the fight against piracy and maritime terrorism, which is a key issue in the whole picture of maritime security. Moreover, maritime security in the South China Sea is indispensably linked to maritime security in the Straits of Malacca and Singapore, as the latter is a chokepoint to the passage to the South China Sea. Song’s lengthy chapter depicts recent developments relating to the responses of the littoral states of the Straits of Malacca to the Regional Maritime Security Initiative (RMSI) proposed by the United States in 2004, attempting to apply it to the Straits in the name of maintaining the maritime order there by the presence of American military personnel. This was obviously opposed by the two key littoral states—Indonesia and Malaysia. Though the initiative was finally aborted without the support of the key littoral states, it has political and legal implications for future developments concerning the maintenance of maritime security. In considering the vitality of the Proliferation Security Initiative (PSI) and the recent multinational naval presence in Somali waters to crack down on piracy under the authorization of the United Nations Security Council, its implications are even greater. Zou’s chapter is more focused on the suppression of maritime piracy. By examining the legal definition of piracy provided for in the LOS Convention and state practices in the crackdown of piracy, he calls for a more effective mechanism both at the regional and global levels for the prevention and suppression of piracy and maritime terrorism.

Closely related to this is the security of the sea lanes in the South China Sea and the Malacca Straits. Ho’s chapter specifically addressing this issue and give us a comprehensive picture of how and to what extent the littoral states as well as user states have made efforts individually, jointly, regionally or through international mechanisms in maintaining the sea lane security. He concludes by citing the remarks made by Singapore’s Defense Minister Teo Chee Hean to the effect that littoral states have the primary role in addressing maritime security issues, other stakeholders have important roles to play, and consultation should be pursued and the rule of international law observed in the implementation of any new initiatives.11 Juras’s chapter offers us an American perspective regarding the maritime security issue in the South China Sea. She discusses various national responses of the United States to maritime security including legislative response represented by the Maritime Transportation Security Act of 2002, agency response represented by the C-TPAT and the Container Security Initiative, and the executive response represented by the PSI. By additionally examining the 2005 National Strategy for Maritime Security and the Reducing Crime and Terrorism at America’s Seaports Act of 2005, she concludes that “the United States cannot act in isolation to protect its maritime transportation system. Protection can only be achieved through the collective efforts of the international community”.12 The commentary chapter of this part is contributed by Bao and Zhu, who call for the enhancement of Sino-American cooperation for regional maritime security in the South China Sea.

Environmental Security and Maritime Rescue

The final part of this book touches upon one important aspect of maritime security relating to the environment and human life. With rapid economic growth, China is eager to get sufficient energy including oil and gas to support its dynamic national development. According to a recent report, China’s demand for oil reached a new record of 5.62 million barrels per day (mb/d) in August 2003.13 China replaced Japan to bec...

Table of contents

• Cover Page
• Half-Title Page
• Title Page
• Copyright Page
• Table of Contents
• List of Editors and Contributors
• Part I: Introduction
• Part II: Securing Navigation in the South China Sea
• Part III: Regional Cooperation Combating Maritime Terrorism and Piracy
• Part IV: Environmental Security and Maritime Rescue
• Index