This article is part of Evolving Threats to Southeast Asia’s Maritime Security, a series of analyses produced by experts convened by the S. Rajaratnam School of International Studies.
How have the threats associated with interstate disputes evolved over the last 20 years?
Most territorial and maritime disputes between Southeast Asian states seem to have stabilized over the last twenty years. Many have been resolved, and most outstanding disputes have been relatively well-managed and do not cause tension between claimants. Occasionally, some disputes will make the news: the Lahad Datu standoff in 2013 between Jamalul Kiram III forces from the Philippines and the Malaysian police, and the friction between Vietnamese and Indonesian maritime law enforcement forces in their undelimited waters are both examples. However, these are singular incidents which do not affect regional stability. Maritime disputes did not prevent Malaysia and Vietnam to undertake joint development of oil and gas, and the North Borneo/Sabah sovereignty dispute does not prevent Malaysia-Philippines cooperation to protect marine turtles.
The clear exception to this trend toward stabilization is the South China Sea disputes. These have evolved in three directions. First, they have increasingly become a contest between maritime law enforcement forces. In the 1970s, 1980s, and to a certain extent the 1990s, the main forces involved in the confrontation at sea between claimants were navies. There were two military confrontations involving warships: the battle of the Paracels between China and South Vietnam in 1974 and the Spratly skirmish between China and Vietnam in 1988. In the 1990s, the navies were still present in incidents such as the 1992 China-Vietnam oil exploration incident in the Vanguard Bank and in China’s 1995 occupation of Mischief Reef to the detriment of the Philippines. Since the 2000s, maritime law enforcement forces, in particular coast guards and fishery surveillance organizations, have become the main forces assigned responsibility to advance and defend state claims. For instance, in recent standoffs over petroleum activities between China and Vietnam (2019), China and Malaysia (2020), and China and Indonesia (2021), coast guards have been at the frontline. Taiwan also sought to “demilitarize” its occupied Itu Aba island by supporting it with coast guard units rather than military vessels. Along with the change in the forces to be used, tactics used to defend national claims on the water have also changed from shooting with hot weapons to other maneuvers such as firing water cannons, ramming, lasering aircraft, and using crowd control devices.
Second, the South China Sea disputes have become a regional issue with global implications. Up to the 1990s, frictions at sea occurred mainly between China and Vietnam. In the 1990s, with the seizure of Mischief Reef by China, the Philippines became involved. Starting in the 2000s, incidents began to occur in the waters near the southern part of the South China Sea between China and Malaysia, Brunei, and Indonesia. Today, as incidents occur more frequently in the southern part of the South China Sea, it is obvious that these disputes have become a regional issue. Most recently, the United States, the United Kingdom, France, Germany, Australia, Japan, and New Zealand have also engaged with the disputes by sending notes verbale to protest China’s claim in the South China Sea on the occasion of Malaysia’s submission of outer limits to its continental shelf in the South China Sea.
Third, the focus of “lawfare” within the South China Sea disputes has changed. The milestone for this change in the legal battle or “lawfare” in the South China Sea was the 2016 award by the Arbitral Tribunal of Annex VII of the United Nations Convention on the Law of the Sea. Before that date, the focus of lawfare in the South China Sea was on whether China had historic titles and rights as embodied in its nine-dotted line. After 2016, the focus of lawfare has changed to how China can explain its claims in a manner consistent with the United Nations Conventional on the Law of the Sea (UNCLOS). Though it publicly refuses to recognize the award, China has tried to justify its claims using UNCLOS terminology rather than referencing the nine-dotted line, specifically by claiming maritime entitlements extending from four island groups it has defined in the South China Sea (“Four Sha”): the Paracels, the Spratlys, Pratas Island, and Macclesfield Bank.
What are the primary governance tools that are being used in response to interstate disputes?
Two primary governance tools are being used in response to interstate disputes in Southeast Asia: UNCLOS, which concerns all maritime disputes in Southeast Asia, and ASEAN-led agreements related to the South China Sea, which includes the existing Declaration on the Conduct (DOC) and the under-negotiation Code of Conduct (COC).
China and all Southeast Asian States except Cambodia are parties to UNCLOS, the most important legal framework governing all activities of states at sea. While UNCLOS is the basis for the management and resolution of all maritime disputes in Southeast Asia, it is especially relevant to the South China Sea disputes as the 2016 South China Sea arbitration award states that the Convention is the only legal framework for the determination of maritime entitlements in the South China Sea.
The DOC adopted between the ASEAN Member States and China in 2002 and the COC currently under negotiation are expected to serve as “rules of engagement” between relevant parties in the South China Sea. But the DOC has proven toothless and negotiations toward the COC, which is expected to be more enforceable, have not yet achieved concrete results. Still, the negotiations for the implementation of the DOC and adoption of the COC have value in maintaining robust diplomatic contact between China and the ASEAN states on the South China Sea. Indeed, this is currently the only track-one forum that deals directly and specifically with the South China Sea disputes at the regional level. The fact that the COC negotiations are slow to make progress means that relevant parties take the process seriously and they want to achieve a substantive agreement. Under this process, several measures have been adopted by China and ASEAN to avoid miscalculations and incidents at sea, namely the Joint Statement on the Application of Code for Unplanned Encounters at Sea (CUES) in the South China Sea and Guidelines for Hotline Communications among Senior Officials of the Ministries of Foreign Affairs of ASEAN and China in Response to Maritime Emergencies in 2016.
What are the primary harms that interstate disputes pose to regional stakeholders?
Interstate disputes are endangering of safety of navigation, preventing economic development, and obstructing regional cooperation. While the current maneuvers used by claimants to advance and defend their maritime claims have been kept in the grey zone beneath the threshold of war, there have been many incidents between law enforcement forces and fishing vessels reported, in particular near the Paracel Islands, leading to the sinking of ships and loss of life.
Interstate disputes have prevented the exploitation of hydrocarbon reserves and fisheries by coastal Southeast Asian states. For instance, the Philippines has been prevented from undertaking oil and gas activities in Reed Bank; Malaysia, in block SK316; Indonesia, in the Natuna area; and Vietnam, in Vanguard Bank. Vietnamese and Filipino fishermen have been prevented from fishing in traditional fishing grounds at the Paracels and Scarborough Shoal. As the exploitation of marine resources is important to the economy of Southeast Asian countries, this has made them lose income and miss opportunities for development.
The South China Sea disputes have also eroded trust between regional states, creating obstacles to advancing cooperation, especially in maritime areas. For example, the tensions have prevented the implementation of cooperative measures to prevent pollution and conserve marine biodiversity.
How has maritime awareness developed to reduce interstate dispute threats?
Many initiatives to increase maritime domain awareness in Southeast Asia have been developed both at the national and regional levels specifically so that states can assert themselves in the dispute. Examples include the creation of the Philippine National Coast Watch Center, as well as the Indonesian Maritime Security Agency (BAKAMLA). Help to enhance maritime awareness in Southeast Asia in dealing with interstate disputes has come from extra-regional partners, especially the United States, under the form of sharing of intelligence. In particular, the United States has developed the SeaVision platform to allow its partner countries’ government agencies to monitor global ship movements.
What additional context is necessary to understand the maritime security challenges associated with interstate disputes?
The ocean is important for the development of many Southeast Asian countries and many of them, such as Indonesia, Malaysia, and Vietnam, have developed a comprehensive ocean governance strategy. These strategies underscore the importance of the ocean for the country and how they plan to use the ocean for national development. It is also important to review what Southeast Asian countries have not been able to do because of interstate disputes and opportunities Southeast Asia is missing.