An Inclusive Maritime Order

The European Union is seeking to promote maritime security cooperation between China, members of the Association of Southeast Asian Nations (ASEAN), and further countries through various initiatives in the Indo-Pacific. ASEAN countries and Japan have multi-faceted and long-running experiences in engaging China on maritime cooperation. Despite several decades of consultations on a code of conduct, resource-sharing, and crisis communication measures, these countries made little tangible progress in overcoming tensions in the South and East China Sea in the last few years. Claimant states are aware that concrete arrangements are needed to prevent incidents and govern natural resources. But China has never indicated to what extent it would reduce pressure on Southeast Asian claimants if those states were to cooperate on specific maritime issue areas. The latter feared and, in some cases, experienced that the price for maritime cooperation with China is the extension of China’s influence in the maritime domain rather than the taming of its ambitions.

In 2005, China, the Philippines and Vietnam agreed on the Joint Marine Seismic Undertaking, an agreement to probe the potential for oil and gas resources in certain eastern parts of the South China Sea. When the suspicion arose in Manila that the participating Chinese research team did not share all seismic data from the most promising areas in the Reed Bank, the Philippines let the agreement expire. Manila assessed that China’s claim to the Reed Bank hardened as a result of the seismic data. This experience has burdened Sino-Philippine negotiations on substantive cooperative measures ever since. While joint exploration of oil and gas resources should have obvious benefits such as the reduction of escalatory risks, China’s insistence on geographic zones for joint activities exceed its entitlements set out in the UN Convention on the Law of the Sea (UNCLOS). The price Manila would then have to pay for joint development with China is twofold: consent to China’s access to resources beyond China’s maritime entitlements, and signal recognition of China’s claims inside the so-called Nine-dash line.

The 1999 Sino-Japanese fisheries agreement in the East China Sea offers another example illustrating the double-edged character of maritime cooperation. The agreement established a common framework for Chinese and Japanese fishing activities and proved effective in preventing incidents between coast guard vessels and fishermen in various parts of the East China Sea. But the fisheries agreement also legitimised the presence and authority of China’s Coast Guard over Chinese fishing vessels, including in southern parts of the East China Sea outside the territorial waters of the disputed Senkaku/Diaoyu Islands. Did China leverage this arrangement to increase the presence of Coast Guard vessels in the vicinity of the Senkaku Islands? In some cases, China’s Coast Guard did indeed escort a larger Chinese fishing flotilla in the waters around the Senkaku/Diaoyu Islands with fishing vessels intruding into the territorial waters. It is doubtful as to whether this behaviour is consistent with the letter and spirit of the fisheries agreement, or an attempt to expand the presence and activities of China’s Coast Guard under the cover of the agreement. As the carefully calibrated fisheries order of the East China Sea rests on the strict separation of fishery issues and territorial claims, any attempt by China to take advantage of fisheries cooperation to increase China’s presence in vicinity of the Senkaku/Diaoyu Islands undermines the very foundation of this arrangement.

The negotiations on the South China Sea Code of Conduct (CoC) offer a third example. Previous documents such as the 2002 Declaration on Conduct called for self-restraint and practical cooperative activities, but until today the disputing parties have not agreed on specific terms implementing these objectives. Specific provisions “with teeth” that China and ASEAN members put forward often restricted the tactics and behaviour the respective opponent relied on to advance or defend their claims. In 2018, China proposed restrictions on navy and military activities in the South China Sea but only for non-regional states.  This proposal sought to enlist ASEAN members in China’s efforts to restrict the navigational freedoms that non-regional states enjoy under UNCLOS. China also proposed limits on the involvement of non-regional energy companies in offshore oil and gas projects. Such a step would diminish the ability of Southeast Asian claimants to freely choose partners for the development of their UNCLOS-guaranteed entitlements. Together, these provisions aim at re-purposing the CoC to assist in the creation of a China-led maritime order that excludes non-regional states and interests.

The fact that China’s assertive policy in pursuit of claims and interests has continued and quantitatively intensified aggravates this picture. The West Capella standoff or the Whitsun Reef incident, the extension of China’s domestic laws over the South China Sea, as well as an increased number of coast guard operations at the Senkaku/Diaoyu Islands profoundly contradict China’s rhetoric of “shelving disputes developing jointly”.

China’s rhetoric of “shelving disputes” is further and substantively undermined by the fact that it has never indicated to what extent it would reduce pressure on Southeast claimants if Southeast Asian states were to cooperate on specific maritime issue areas. China has also never signalled to what extent joint governance of parts of the South China Sea would satisfy China’s claims or to the extent it could accept unilateral activities of Southeast Asian claimants in their Exclusive Economic Zones (EEZs). The lack of signals to this effect cannot but contribute to the fear of Southeast Asian neighbours that China will use whatever leverage it can derive from the shared governance of the South China Sea to increase influence rather than to tame ambitions.

East and Southeast Asian nations have, however, continued consultations with China about maritime security cooperation in various formats. As China will not leave the South China Sea, engaging with it on maritime governance remains a core element of ASEAN’s regional agenda. East and Southeast Asian countries share with Europe and other non-regional states an interest in ensuring that the cooperative transformation of South China Sea disputes be conducted in line with UNCLOS and will not create a China-led alternative legal maritime order. Southeast Asian states and Europe share, for instance, an interest in a Code of Conduct that is consistent with UNCLOS and the South China Sea Arbitration, respecting navigational freedoms and maritime entitlements, and spells out the constraints on the threat or use of force will have on coercive activities in the contested maritime domain. Europe and ASEAN members should deepen their efforts to build a broad consensus around the principles that the Law of the Sea lays out for maritime cooperation in the East and South China Sea.

By Dr Christian Schultheiss, visiting scholar, Centre for Geopolitics, Department of Politics and International Studies, University of Cambridge

Article category: Governance of the Global Commons