Non-Traditional Security Issues and the South China Sea

Shaping a New Framework for Cooperation

Shicun Wu, Keyuan Zou

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781409461937
• eBook ISBN: 9781317086888
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Australian & Oceanian History
• Index: Politics & International Relations

While there is abundant literature discussing non-traditional security issues, there is little mention of such issues existing in the South China Sea. This area is vulnerable to natural hazards and marine environmental degradation. The marine ecosystem is threatened by various adverse sources including land-based pollution, busy shipping lanes, and over-exploitation activities which threaten the security of the surrounding population. This area is also threatened by piracy and maritime crimes but law enforcement becomes difficult due to unclear maritime boundaries. This volume is designed to explore the security cooperation and regional approaches to these non-traditional security issues in the hope to build a peaceful environment and maintain international and regional security and order in the South China Sea region.

PART I

Introduction

Chapter 1

Non-Traditional Security Issues in the South China Sea: Seeking More Effective Means for Cooperation

Shicun Wu and Keyuan Zou

Introduction and Background

Non-traditional security has been a catch word after the 9/11 terrorist attack. Also it becomes a main concern of the international community as non-traditional security threats will for sure endanger world peace and security. Although there is no accurate definition on “non-traditional security issues”, the issues usually refer to those emerging and new issues concerning security such as terrorism, sea piracy, human trafficking, mass pollution, epidemics, etc. While there is abundant literature discussing non-traditional security issues in various ways and on various topics, there is little mention of such issues existing in the South China Sea. In order to fill the gap, this edited volume has accommodated contributing papers with high quality from well-known scholars around the worldwide academic community.

As we know, the South China Sea is a semi-enclosed sea¹ vulnerable to natural hazards and marine environmental degradation. Although it possesses one of the most diverse biological marine ecosystems in the world, marine scientists have often warned us that the marine ecosystem is threatened by various adverse sources including land-based pollution, busy shipping lanes, and over-exploitation activities, thus threatening the security of human population in the littoral states around the South China Sea. What makes the existing situation plausibly worse is the increasing threat of global warming to the marine environment. Existing evidences have showed that climate change caused ocean changes such as the increase of the sea water temperature, sea level rise, changes in ocean circulations, and negative impact on marine ecosystems and species. Associated is the frequency of natural disasters such as tsunamis which will predictably occur in the South China Sea with devastating impacts on the littoral states and peoples. Recently a report was issued to confirm potential risk of tsunamis along the entire Pacific, including the South China Sea and pointed out that the subduction zones in the South China Sea could rupture and then cause large tsunamis in the future.

Due to the territorial and maritime disputes in the South China Sea, governments of the littoral states encourage their fishermen to fish in the disputed areas as a symbol of sovereignty demonstration and a means of claim consolidation, but such scramble of marine resources exacerbates the depletion of the resources and causes unsustainability in the South China Sea contrary to the principle of sustainable development. The South China Sea is also exposed to pollution caused mainly by oil spills from deliberate discharging, oil tanker spillage and/or collision or illegal oily waste disposal. The recent incidents include the crude oil spill near the Vietnamese coast in 2006.

Apart from threats to the marine environment and resources, the South China Sea is also vulnerable to other threats such as piracy and maritime crimes. According to the Information Sharing Centre of the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP) in 2009,² piracy in the South China Sea hit a five-year high with tankers and large container ships most prone to attack in recent years. However, there is limitation in international law and national legislation on addressing this non-traditional security issue. The definition of piracy under the United Nations Convention on the Law of the Sea (LOS Convention) does not cover most armed maritime robbery cases occurring in the South China Sea. Piracy is not a statutory crime prescribed in the criminal code such as in China and other littoral states. Law enforcement becomes difficult due to the unclear maritime boundaries there. Piracy and maritime crimes directly threaten the safety of navigation and human life and has become a most threatening of all the non-traditional security threats to the South China Sea.

Though environmental hazards and man-made threats remind us of the importance of regional cooperation on non-traditional security, the complex geo-strategic situation in the South China Sea has considerable impact on the regional cooperative efforts. Overlapping claims by coastal states to islands, natural features and maritime zones continue to be a major challenge in regional cooperation. Unilateral acts by claimant states attempting to consolidate their claims do cause tensions from time to time. Military competition, as displayed by frequent military exercises from 2007 to 2012, also poses some obstacles for regional cooperation on non-traditional security in the South China Sea.

However, despite the threats and obstacles, the door for non-traditional security cooperation always remains open. Regional economic cooperation and integration has become a catalyst for expanding regional cooperation on non-traditional security. We believe that economic collaboration is a catalyst for expanding regional cooperation on non-traditional security. The full-scale implementation of the ASEAN-China Free Trade Zone from 1 January 2010 has provided dynamic and viable facilitation to promote security cooperation in the region. The regimes of “101+” and “103+” have also provided platforms for regional cooperation on non-traditional security. Both the Association of Southeast Asian Nations (ASEAN) and China hope that economic prosperity will inevitably penetrate into other areas of cooperation.

Meanwhile, political will exists on enhancing such cooperation as the coastal states of the South China Sea face common challenges in the field of non-traditional security. In November 2002, the Joint Declaration of ASEAN and China on Cooperation in the Field of Non-Traditional Security Issues was adopted,³ which initiated full cooperation between ASEAN and China in the field of non-traditional security issues and listed the priority and form of cooperation. The two sides pledge to formulate measures and modalities to enhance their capacity handling non-traditional security issues so as to safeguard regional peace and security. They agree to cooperate in information exchange, personnel exchange and training, capacity-building, joint research, and other areas. The priorities at the current stage of cooperation include “combating trafficking in illegal drugs, people-smuggling including trafficking in women and children, sea piracy, terrorism, arms-smuggling, money-laundering, international economic crime and cyber crime”. In addition, China and the ten ASEAN member states adopted the Declaration on the Conduct of Parties in the South China Sea in 2002 (DOC),⁴ in which the signing states pledge to explore or undertake cooperative activities including marine environmental protection, safety of navigation and communication at sea, search and rescue operation, and combating transnational crime such as piracy and armed robbery at sea. China joined the Treaty of Amity and Cooperation (TAC) in 2003. These documents set forth a legal and political foundation for regional cooperation in the field of non-traditional security.

Structure and Contents

The current volume contains five parts. The first part is the introduction with the introductory chapter. The second part provides a general setting for regional cooperation in dealing with non-traditional security issues and contains three chapters. The chapter contributed by Professor Timo Kivimäki discusses joint development and security cooperation from an interpretative angle by looking at the restrictions and opportunities caused by the fact that actions communicate in international diplomacy. It looks at how joint development and security cooperation can promote practices and constructions of common realities that could be most useful for peaceful development of the South China Sea region. According to Kivimäki, in the context of territorial and maritime disputes in the South China Sea, the references in arguments for territorial sovereignty are not natural as they cannot be verified like claims of existence of something objective which can be verified by referring to sense data. Territorial claims are always matters that call for interpretation. The references of these claims need to be interpreted through the logic of international law, historical practice, international recognition, etc. The practice of regional cooperation and joint development also articulates interpretations relevant to the arguments rendered by claimant States, just as historical practices articulate recognition or non-recognition. It also articulates interpretations related to the settings of the territorial claims, such as those settings that relate who negotiate with whom (can the Philippines, for example, negotiate directly with China on joint development or should it involve the ASEAN), as it also articulates realities related to the weight of different issues related to the use and management of the South China Sea.

The second chapter, contributed from Ted McDorman, a leading authority in the law of the sea studies, at first poses questions such as: Will the clarity of claims by two of the South China Sea partners that occurred in May 2009 enhance or reduce the possibility of regional cooperation respecting resolution and/or management of the South China Sea disputes? Or will the status quo continue? Then the chapter looks at these questions and explains the very limited role to be played by the United Nations Commission on the Limits of the Continental Shelf as regards the South China Sea. As he points out, the South China Sea has been the location of uncertain claims respecting the islets and the ocean area. This “conflict” or “dispute” situation has dominated all discussions respecting regional cooperation in the South China Sea. Efforts at management of the conflict/dispute have been undertaken by the regional States through various devices, for example, the 2002 Declaration on the Code of Conduct of Parties in the South China Sea involving the ASEAN and China. In May 2009 Malaysia and Vietnam clarified their ocean claims in the South China Sea. This was done through their joint submission of information to the Commission on the Limits of the Continental Shelf respecting the outer limit of the continental margin beyond 200-n. miles in the southern part of the South China Sea. In the Joint Submission, Malaysia and Vietnam identified 200-nm limits and an area of continental shelf (referred to as the “defined area”) adjacent to these limits that might, in the future, be subject to Malaysian-Vietnam negotiation and maritime boundary agreement. In a separate submission to the Commission, Vietnam clarified its ocean claim in the central part of the South China Sea. China responded to each submission with nearly identical letters claiming that Malaysia and Vietnam had “seriously infringed” on China’s “sovereignty, sovereign rights and jurisdiction” in the South China Sea. The People’s Republic of China attached to its letters a map (the U-shaped dotted lines map) respecting its claims in the South China Sea. The Philippines also responded to the submissions of Malaysia/Vietnam and Vietnam with nearly identical letters noting that the areas claimed “overlap” with areas claimed by the Philippines. Finally, in May 2009, Brunei provided to the Commission preliminary notices respecting possible future submissions to the Commission of information regarding continental shelf areas beyond 200-n. miles.⁵ The claims of the littoral states to the South China Sea extended continental shelves become a new source of interests conflict between/among these states. It could be a barrier to the security cooperation and the chapter suggests some ways of overcoming this barrier.

The final chapter in this part is written by Ramses Amer, a well-known Swedish specialist in Southeast Asian studies. The purpose of this chapter is to assess the possible relevance of the dispute management approach of the ASEAN for the South China Sea situation. This is done by analysing the intra-ASEAN dimension as well as the foreign relations dimension from an ASEAN perspective. The first dimension is addressed by assessing the impact of the South China Sea situation on relations between the ASEAN members. Amer wisely puts emphasis on the relevance of the dispute management approach of ASEAN. The foreign relations dimension focuses on the formulation of ASEAN’s common policy on the South China Sea, which relates to the intra-ASEAN dimension, and to ASEAN’s dialogue with China relating to the South China Sea as this dialogue is vital for managing the overall situation in the area. The chapter is concluded by an assessment of the relevance of ASEAN’s dispute management approach in the context of the South China Sea situation.

The third part focuses on Regional Approaches to the Non-Traditional Security Issues and contains three chapters. The chapter contributed by Johan Saravanamuttu, a Malaysian specialist in conflict management first looks at Malaysia’s foreign policy with respect to law of the sea issues, providing a brief history of various efforts at settlement of disputes in recent times by citing two examples of the adjudication of the International Court of Justice (ICJ) on the Ligitan and Sipadan dispute with Indonesia and the Pulau Batu Puteh-Pedra Branca dispute with Singapore.⁶ With respect to the South China Sea, Malaysia has staked its claims on and occupied a number of reefs and atolls based on the publication of its 1979 map, which extends its continental shelf along the Sabah and Sarawak coast into the Spratlys and Kalayaan area. As we know, there have been no legal settlements in the South China Sea on the part of Malaysia with other claimants up till now. The chapter then explores the overall approach of Malaysia towards conflict management of the disputed areas in terms of its approach to joint cooperation. The ostensible example of cooperation is Malaysia’s agreement with Vietnam on joint development areas in 1992. Vietnamese-Malaysian cooperative efforts seem to emulate the joint development cooperation between Malaysia and Thailand with respect to disputed territories in the Gulf of Thailand. Malaysia’s cooperation with Thailand has gone some distance with the setting up of a Malaysia-Thailand Joint Authority. With respect to the South China Sea, Malaysia has maintained possibly the most consistent cooperation with Brunei, although no agreement has been signed, while the most acrimonious relations have been with the Philippines. The signing in 2006 of an agreement between Petronas, Malaysia’s oil and gas corporation, with China’s Shanghai LNG company has implications for Malaysia-China South China Sea relations and suggests that cooperation rather than confrontation could be the order of the day for the two claimants. The paper finally discusses, in a constructivist vein, Malaysia’s pursuance of norms and objectives directed to the emergence of a cooperative regime for claimants to assets in the South China Sea. It is suggested that such a cooperative regime itself should build upon the confidence building measures instituted by ASEAN through an obeisance to UNCLOS and the Declaration on the Conduct of Parties in the South China Sea.

The second chapter of this part, contributed by Mingjiang Li touches upon the theme of security cooperation in the South China Sea by looking at goodwill and political willingness of the South China Sea littoral states as for substantive cooperation to occur among the claimant parties in the disputes, a significant catalyst is needed. The chapter analyses some of the possible catalysts that might prompt various parties in the South China Sea to join hands in the area of non-traditional security cooperation and even joint exploitation of natural resources. The major potential catalysts under discussion include the growth of China’s capability in exploring the South China Sea, converging economic interests, and mainland China-Taiwan cooperation. The chapter argues that there is much that China can do to push for a cooperative regime in the South China Sea.

In the last chapter of this part, Nong Hong reviews the early negotiation process of the UNCLOS III (1973–1982) to the recent developments in the South China Sea including the 2001 EP-3 and the 2009 “Impeccable” incident and finds that there has been vague interpretations of the navigation regime in the LOS Convention and there is continuous debate among the academics and policy makers on how to balance coastal states’ interests and the doctrine of “freedom of navigation”. For that reason, her chapter takes a comparative approach by studying the case of the Arctic and the South China Sea which share many similar features, e.g., sovereignty disputes and multiple maritime claims, competition for resources, geopolitics significance, important existing and potential international shipping routes, and threats to maritime security. The chapter elaborates interpretations of the navigation regime by some important countries such as Canada, China, and the United States, and all three play a duel role as both a coastal state and a user state. The author suggests three steps in bridging the gap of the different interpretations on the navigation regime. First, a bilateral coordination mechanism should be initiated between relevant states to build up mutual confidence. Second, third party compulsory forums under the LOS Convention should play its role in defining the scope of freedom of navigation in a foreign state’s EEZ and in addressing the ongoing contention due to advanced development in military technology. Third, “transformation of ways of thinking theory” should be introduced to the policy makers and scholars on the South China Sea and the Arctic as a foundation to lead their policy and research direction in seeking maximizing consensus and bridging the gap on many issues including navigation and maritime security.

The fourth part specifically addresses the lingering issue on piracy and maritime crimes and contains three chapters too. In the first chapter, Sam Bateman and Jane Chan offer the reader some basic information provided by the International Maritime Bureau which recorded a number of incidents of piracy and armed robbery against ships in the South China Sea in 2009 and finds that there was an increase in the number of attacks in Malaysian waters during the year. It is noted that most of these attacks were in East Malaysian waters either in or near the South China Sea. This chapter briefly analyses each of the attacks that occurred in the South China Sea. On the basis of this analysis, it identifies some reasons for the increased attacks, and recommends possible ways of overcoming the problem. Some similarity in the causal factors, including the impact of the downturn in international shipping as a consequence of the global financial crisis, are also noted between the situation in the South China Sea and that off the Horn of Africa. Lastly, the chapter notes that the increased incidence of piracy and armed attacks against ships in the South China Sea demonstrates the importance of cooperation between neighbouring countries to maintain good order at sea.

Following Sam and Jane, Robert Beckman and Tara Davenport look at the problems of the international community in dealing with the threat of Somali piracy in the Gulf of Aden which have demonstrated the need for international cooperation to deal with piracy and maritime crimes such as the hijacking of ships and the holding of ships and crew members for ransom. States in East and Southeast Asia should act now to put measures in place to enable them to cooperate to deal with such threats as well as other threats to the safety of international maritime navigation. As suggested by Beckman and Davenport, this will require states in the region to take at least three types of measures. First, they should review and update their national legislation on piracy and armed robbery at sea. Second, they should expand the activities of the Information Sharing Centre established under the ReCAAP Agreement so that it can deal not just with piracy and armed robbery at sea, but also other threats to the safety of international maritime navigation. Third, they should address the issue not just as a piracy problem, but in the wider context of jurisdiction over international crimes and over transnational organized crime. Therefore, they should cooperate to ratify and effectively implement the 1988 SUA Convention, the 2005 SUA Protocol, the 1979 Hostages Convent...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• List of Tables
• List of Contributors
• PART I INTRODUCTION
• PART II SECURITY COOPERATION IN THE SOUTH CHINA SEA
• PART III REGIONAL APPROACHES TO THE NON-TRADITIONAL SECURITY ISSUES
• PART IV COMBATING PIRACY AND MARITIME CRIMES
• PART V ENVIRONMENTAL SECURITY AND SUSTAINABLE MANAGEMENT OF MARINE RESOURCES
• Bibliography
• Index