The Peninsula Foundation

Tag: South-China Sea

  • Understanding the ‘Xi Jinping’ thought on Rule of Law: Future Substance of Lawfare and Challenges in the Indo-Pacific

    Understanding the ‘Xi Jinping’ thought on Rule of Law: Future Substance of Lawfare and Challenges in the Indo-Pacific

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    Abstract

    Lawfare aims at using the law and legal systems to hurt or discredit opponents or stop them from reaching their political goals. It is seen that the rule of law has been used to shape the future course of the war as an alternative to traditional military means. Regimes worldwide have started using the law to constrain behaviour, contest circumstances, confuse legal precedents, and gain an advantage. In this paper, the author looks at how China uses “lawfare” in its own country, worldwide and lessons for India.

    Introduction

    While the world focused on the conflict between Ukraine and Russia, China and Solomon Island signed an inter-governmental security pact1 which has been raising concerns regarding the rule-based order2 in the Indo-Pacific region. China, as a rising power, is undoubtedly becoming a significant adversary to various countries bordering it, including India; its growth aims at unipolar Asia, which is causing enormous uncertainty in the region.

    Due to this, it becomes important to understand the multipolar distribution of power in the region since the Indo-Pacific is becoming a site for political contestation and the rise of ‘lawfare’. It is seen that in order to contest for leadership, China has been active on the front to demonstrate, influence, and ideate with different nations. It is actively setting rules and terms of compliance for it through a set of carefully crafted strategies of ‘lawfare’.

    This paper seeks to examine the theoretical underpinnings of lawfare, its internal dimension that influences China’s domestic policy, and its external dimension that has a bearing on China’s strategic and international standing, and finally how China uses lawfare to intimidate other nations and what the world can learn from it.

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  • Vietnam-China Relations in 2022: Continuity and No Change

    Vietnam-China Relations in 2022: Continuity and No Change

    The year 2022 has begun on a positive note for Vietnam and China, and the General Secretary of the Communist Party of Vietnam (CPV) Central Committee Nguyen Phu Trong and General Secretary of the Communist Party of China (CPC) Central Committee and President Xi Jinping exchanged Spring Festival congratulatory messages.

     President Xi Jinping impressed on upholding the “spirits of good neighbours, good friends, good comrades and good partners, consolidate traditional friendship ….push for new achievements in China-Vietnam relations, elevate regional cooperation to new heights, and build a community with a shared future for mankind”.….”, and  General Secretary of CPV Nguyen Phu Trong emphasised on “promoting the sustainable, sound and stable development of relations both between the two parties and between the two countries… inject new impetus into the efforts to push Vietnam-China good-neighbourly friendship and comprehensive strategic partnership of cooperation to a higher level.”

    Both leaders expressed satisfaction with the state of relations between the CPV and CPC, and, looking ahead to 2022, hoped to maintain close communication. Also, Vietnamese Prime Minister Pham Minh Chinh and Premier Li Keqiang agreed to “properly manage differences, to push forward the China-Vietnam comprehensive strategic cooperative partnership”.  While that may be so, the bilateral relationship between the two countries presents a mixed bag of economic opportunities as well as strategic challenges. 

    the China-Vietnam freight train (launched in August 2017) run by the China Railway Nanning Group Co Ltd is a success story. It connects South China’s Guangxi Zhuang autonomous region with the Vietnam border and carries a variety of goods between China and ASEAN countries. In 2021, as many as 346 train trips were made, representing an increase of over 108 per cent from the previous year

     As far as bilateral economic relations are concerned, bilateral trade has grown.  In this regard, the China-Vietnam freight train (launched in August 2017) run by the China Railway Nanning Group Co Ltd is a success story. It connects South China’s Guangxi Zhuang autonomous region with the Vietnam border and carries a variety of goods between China and ASEAN countries. In 2021, as many as 346 train trips were made, representing an increase of over 108 per cent from the previous year. A total of 400 China-Vietnam freight train trips are expected to be made in 2022. China is also willing to provide more “customs clearance convenience for Vietnam’s high-quality agricultural products”, particularly durians, mangosteens, and longans.

     

     

    Prime Minister Pham Minh Chinh and Premier Li Keqiang have agreed to give a boost to their bilateral ties through the Regional Comprehensive Economic Partnership (RCEP) that came into force earlier this year. China has assured Vietnam that it is ready to “push for the effective implementation of the agreement, promote the regional economic integration to a higher level and bring more benefits to the people in the region”.

    at the strategic level, Vietnam continues to confront contentious initiatives by China, particularly on the issue of the South China Sea

     However, at the strategic level, Vietnam continues to confront contentious initiatives by China, particularly on the issue of the South China Sea. On March 7, pursuant to Hainan Maritime Safety Administration’s announcement on China’s military drills in the East Sea, Vietnam requested China to “respect and not to violate the nation’s exclusive economic zone and continental shelf, and not to take actions that complicate the situation, thereby contributing to maintaining peace, security and stability in the East Sea area. Vietnam has exchanged views with China on this issue”.

     Vietnamese Foreign Ministry spokesperson Le Thi Thu Hang observed that part of the area where Chinese military drills are planned is under the jurisdiction of Vietnam (exclusive economic zone and continental shelf of Vietnam) and reiterated that Vietnam always adheres to international law, especially the 1982 United Nations Convention on the Law of the Sea (UNCLOS). This has been refuted by China and it’s Foreign Ministry spokesman Zhao Lijian defended the military exercises by stating that the drill is lawful…“China’s military exercise on its own doorstep is reasonable and lawful. It is beyond reproach.” It is now learnt that China may have cordoned a part of the sea area close to Vietnam ostensibly to salvage a crashed military aircraft “while its forces searched for it, and also to conduct drills”.

     

     

    Notwithstanding the above challenges, it is fair to argue that the trajectory of Vietnam-China bilateral relations will not change in 2022 and can be expected to follow trends of the last year.  Vietnam is steadfast in its adherence to the one-China principle and supports China to play a greater role in regional and international affairs. This should go as a signal to the US which can be expected to send many political-diplomatic-military delegations to Vietnam in 2022 to influence the leadership, but Hanoi can be expected to pursue an independent foreign policy. 

    Feature Image: The Independent

    Map: www.isanrealestate.com

  • Vietnam Successfully Delivers at the UNSC

    Vietnam Successfully Delivers at the UNSC

    Vietnamese leaders and people have every reason to celebrate the successful completion of their country’s role as a non-permanent member of the United Nations Security Council (UNSC) for the years 2020 and 2021. Before assuming the responsibilities at the UNSC it had announced that it will “make the most of its two years to contribute to improving the effectiveness of the Council, to foster dialogue to help find peaceful solutions to conflicts and to bring the voice of small countries to the work of the council” with particular focus on “conflict prevention, preventive diplomacy, peaceful settlement of disputes, and strengthened implementation of Chapter VI of the UN Charter,” By all accounts, the country achieved all set goals notwithstanding the “complicated and unpredictable socio-economic, political, and security developments as well as unprecedented challenges, including the widespread impact of the COVID-19 pandemic”.

    Vietnam has accrued international prestige not only as an important regional actor but also responsible international actor whose focus is on Chapter VI and Chapter VIII of the UN Charter

    During the above period, Vietnam served twice as President of UNSC in January 2020 and April 2021. It led to several events and initiatives, and these were acknowledged by other members of the UNSC; above all, these received an active response. Some of the important proposals led by Vietnam were (a) two resolutions on reappointing the prosecutor and reviewing the two-year operation of the International Residual Mechanism for Criminal Tribunals (IRMCT)  and on the protection of essential infrastructure; (b) three President’s statements on respecting the UN Charter, strengthening the relationship between the UN and regional organisations in promoting trust-building and resolving the consequences of mines; (c) one press statement on the terrorist attack in Indonesia; and (d) the Hanoi declaration on women, peace and security. It also promoted issues concerning UN peacekeeping and called on the international community to “respond to and reduce climate change impacts on international peace and security”.

    Vietnam also supported issues raised by other non-permanent members of the UNSC. For instance, Prime Minister Pham Minh Chinh supported Indian Prime Minister Modi’s Five Principles and assured that Vietnam is “committed to working with India and other Council members in promoting dialogue, cooperation and mutual respect, for global peace and prosperity”. He too made three proposals i.e. (a) sustainably utilizing the oceans and seas; (b) comprehensive and holistic maritime security through “cooperation, dialogue and international law” and led by the UN; and (c) uphold legal obligations in line with international law, especially the United Nations Charter and UNCLOS 1982.

    In the context of the latter, Prime Minister Chinh made known that his country was “determined” to engage with ASEAN and China to “seriously, fully and effectively implement the 2002 Declaration of Conduct of Parties in the South China Sea (DOC) and negotiate an effective and substantive Code of Conduct of Parties in the South China Sea (COC) consistent with international law, in particular, UNCLOS 1982”.

    The country can be credited for raising the issue of the South China Sea at the United Nations 

    During its tenure-ship as a non-permanent member of the UNSC, Vietnam concurrently held the Chairship of the ASEAN in 2020.  The country can be credited for raising the issue of the South China Sea at the United Nations. In his message to the High-level General Debate of the UN General Assembly, President Nguyen Phu Trong conveyed that while Vietnam is committed to the “maintenance and promotion of peace, stability, maritime security and safety and freedom of navigation in the East Sea (South China Sea)” and upholding international law, particularly the 1982 UNCLOS, emphasised and called on “all concerned parties to exercise restraint, avoid unilateral acts that would complicate the situation, and settle disputes and differences through peaceful means with due respect for diplomatic and legal processes.” It is not surprising that there was a reaction from Beijing and the Chinese Foreign Ministry spokesperson stated that the “Security Council is not a suitable place to discuss the South China Sea issue,”

    In essence, Vietnam not only addressed international-transnational-global issues at the UNSC, but it also raised regional issues such as the South China Sea which is the collective voice of the ASEAN as well as the claimant States. This is a big politico-diplomatic advantage for the ASEAN and Vietnam has accrued international prestige not only as an important regional actor but also responsible international actor whose focus is on Chapter VI and Chapter VIII of the UN Charter.

     

    Feature Image Credit: VnExpress International

  • Vietnam and Russia Commit to Engagements across Domains

    Vietnam and Russia Commit to Engagements across Domains

    Vietnamese President Nguyen Xuan Phuc has completed a “very successful and meaningful” visit to Russia with both sides making commitments to reinforce the comprehensive strategic partnership that spans multifaceted engagements across domains. Vietnam figures prominently in the Russian foreign policy and their bonhomie is best demonstrated by the fact that President Vladimir Putin has visited the country five times, a number more than any other country.

    Russian President Vladimir Putin and President of Vietnam Nguyen Xuan Phuc made a statement in the wake of their talks in Moscow – “The relations of comprehensive strategic partnership between the Russian Federation and the Socialist Republic of Vietnam are based upon years-long traditions of friendship and mutually beneficial cooperation, laid down by the previous generations. They have been tested by time, they are not affected by conjuncture oscillations, and serve as an example of mutually respectful cooperation that corresponds to the basic interests of the two countries”

    President Nguyen Xuan Phuc’s visit to Russia merits attention from at least five perspectives. First at the politico-diplomatic levels: both sides have a common understanding of international issues; they endorse a multipolar world order; guided by the principles of resolving major conflicts in the world through diplomacy based on respect for international law. Moscow also acknowledges the increasing role of the ASEAN and Vietnam as important Member State. Russia has also agreed to “explore promising areas of cooperation” within the framework of the ASEAN Outlook for Indo-Pacific.

    Second, the Vietnam-Russia bilateral trade has made significant strides. Their bilateral trade reached US$4.05 billion in the first ten months of 2020 and Russia ranked 24 among 129 countries and territories investing in Vietnam. Russia plans to increase its offshore energy business in the country and the joint statement notes that “creation of favourable conditions for the expansion of activities of Russian and Vietnamese oil and gas companies in the territories of the two states and the implementation of joint projects in third countries in accordance with international law, including the 1982 UN Convention on the Law of the Sea, and the national legislation of Russia and Vietnam”;  however, it is important to mention that there are frequent standoffs. For instance, there was a major standoff in the Vanguard Bank involving 50 Vietnamese and 40 Chinese vessels over the operations of the drilling rig Hakuryu 5 operated by Russia’s Rosneft in Vietnam’s oil and gas Block 06-01.

    Third, their bilateral defence and security cooperation is well established and in September this year, Russian Foreign Minister Sergey Lavrov and his Vietnamese counterpart Bui Thanh Son announced plans to ramp up military-technical cooperation including setting up a centre for nuclear science and technologies in Vietnam. Vietnamese military has acquired Russian origin naval and air platforms (Kilo Class submarines and SU-30MKK fighter jets) and the bilateral trade in arms increased from US$ 293 million (1993-99) to US$ 6514 million (1999-2018) and constituted nearly 84 per cent of all its military purchases.

    Fourth is about the COVID-19 pandemic that continues to rage in the world and its new variant Omicron bringing new fears. Vietnam has been impacted severely by the pandemic and has recently begun to open up. The US and China have provided it with vaccines. During President of Vietnam Nguyen Xuan Phuc visit to Russia, the  Russian Direct Investment Fund has signed an agreement for the “expansion of cooperation with partners in Vietnam aimed at the production of the Russian Sputnik V vaccine” involving the Russian pharmaceutical company Binnopharm Group and Vietnam’s T&T GROUP. RDIF, leading to creating a full-cycle production of Sputnik V in Vietnam.

    Fifth is the US-led Indo Pacific initiatives that clearly target China.  It merits mention that the joint statement issued at the end of the Summit notes that Russia and Vietnam “do not enter alliances and do not sign agreements with third countries to carry out actions that harm each other’s independence, sovereignty, territorial integrity and basic interests,” and that “the development of Russian-Vietnamese relations is not aimed against any third side.”

    Vietnam has no plans to align with the US’ Indo Pacific strategy or any US initiatives that target China even though it has disputes with China in the South China Sea. Russia has stayed clear of the South China Sea disputes and has not supported China. It is conscious that it enjoys cordial relations with the majority of the ASEAN Member States.

    Meanwhile, the Russian Navy recently conducted joint exercises with the ASEAN navies including the Vietnamese Navy. The Russian ambassador to the ASEAN has stated that the exercises were about “peace, stability and prosperity in the region,” and the Indonesian first fleet commander said the exercise “enhance the interoperability and understanding between the Russian and ASEAN militaries”. Interestingly, these exercises are also being viewed as signalling ASEAN’s principle of non-alignment, particularly in current times of high regional tensions given that the ASEAN navies held similar exercises with the PLA Navy. The ASEAN Member States routinely conduct bilateral military-naval exercises with the navies of the US, Japan, Australia, India, France and the UK.

    Vietnam has adopted a pragmatic foreign policy and successive leadership have successfully managed tensions in the South China Sea. Likewise, Russia has major stakes in augmenting regional stability which provides for crucial convergences between Hanoi and Moscow.

     

    Feature Image Credit: tass.com

  • Cambodia Assumes Chairmanship of the ASEAN

    Cambodia Assumes Chairmanship of the ASEAN

    While there is euphoria in Phnom Penh over the new responsibility, Prime Minister Hun Sen inherits at least five challenges from the previous ASEAN Chairmanship under Brunei.

    The gavel representing the ASEAN has arrived in Phnom Penh and it is a proud moment for the country to hold the position of Chairmanship of the Association of Southeast Asian Nations (ASEAN) for the third time after joining the grouping in 1999. In his customary remarks, Prime Minister Hun Sen announced that his country is “committed to leading ASEAN by championing the 2022 theme of “ASEAN Act” – Addressing Challenges Together – to increase harmony, peace and prosperity across the whole region”. He also assured to “uphold the core spirit of ASEAN’s basic principles of “One Vision, One Identity and One Community,”

    While there is euphoria in Phnom Penh over the new responsibility, Prime Minister Hun Sen inherits at least five challenges from the previous ASEAN Chairmanship under Brunei. First is the South China Sea.  Prime Minister HunSen did not hesitate to refer to it as “an unwelcome guest which now turns up on ASEAN’s doorstep annually and without fail”. He even labelled it a “very hot rock” amid fears that his country could be  “tossed” requiring sophisticated diplomacy wherein it is necessary to “catching it to avoid getting burned”

    In this context, it is useful to recall the 26 October 2021 Chairman’s Statement of the 24th ASEAN-China Summit which emphasised the “importance of non-militarisation and self-restraint in the conduct of all activities by claimants and all other states, including those mentioned in the DOC that could further complicate the situation and escalate tensions in the South China Sea”. China continues to engage in exploration activities in the region much to the discomfort of the Philippines. Malaysia, Vietnam and Indonesia. Also, the Chinese coast guard vessels have engaged in coercion and their operations potentially undermine the ongoing negotiations on the Code of Conduct in the South China Sea (COC).

    The second is about ASEAN’s post-pandemic economic recovery. So far ASEAN Member States’ economic indicators are quite promising and marked by positive growth rates. Cambodia has an opportunity to prepare the region and the human resources for the impending disruption that will be marked by Industry 4.0 technologies. It requires regional digitalisation and impetus to fintech through innovation pivoting on resilience across sectors. This issue is also highlighted in the Chairman’s Statement of the 38th and 39th ASEAN Summits. The ASEAN Leaders’ Statement on Advancing Digital Transformation in ASEAN has also called for strengthening “regional digital integration and transformation to enhance the region’s competitiveness, and turn the current pandemic crisis into an opportunity through digital transformation.”

    The third issue is about Myanmar. It may be recalled that Myanmar did not participate in the 38th and 39thASEAN Summits after the ASEAN decided to bar Myanmar’s military chief Min Aung Hlaing to join the meeting. This decision, by all accounts, was a “rare bold step by a regional grouping known for its non-interference and engagement”. Prime Minister Hun Sen is concerned about the possibility of a humanitarian crisis in the country and was quite candid to note that the “situation in Myanmar could escalate – and maybe even turn into a full-scale civil war – and so Cambodia must be well-prepared and ready to deal with any potential crisis there.”

    The fourth priority for Cambodia as the Chairmanship of the ASEAN would be to take forward the objectives and principles of the ASEAN Outlook for Indo Pacific (AIOP) initiative. ASEAN’s engagement in the wider Asia-Pacific and Indian Ocean regions would be in four key areas i.e.  Maritime cooperation, connectivity, UN SDGs 2030, economic and other possible areas of cooperation. However, the grouping believes that the existing ASEAN-led mechanisms should drive the AIOP for which Cambodia would have to marshal all diplomatic skills at its disposal to convince the major players in the Indo-Pacific of the importance of the AOIP as also about ASEAN’s centrality.

    Although AUKUS did not feature in Prime Minister Hun Sen’s remarks or the Chairman’s statement on the 38th and 39th ASEAN Summits, it looms large in the minds of the Member States

    Fifth, Cambodia would have to develop a sophisticated response to the AUKUS which has added a new dimension to the existing security challenges emerging from the QUAD which is allegedly targeted against China. Although AUKUS did not feature in Prime Minister Hun Sen’s remarks or the Chairman’s statement on the 38th and 39th ASEAN Summits, it looms large in the minds of the Member States. Indonesian and Malaysian are concerned fearing that the development can result in an arms race and encourage the buildup of power projection capabilities; however, the Philippines has welcomed the AUKUS.  The current situation is akin to the division among the ASEAN Member States over the presence of the Western military in the region. AUKUS has provoked China too and it can potentially intensify US-China military contestation in the western Pacific that further adds to insecurities among the Southeast Asian countries.

    Finally, Cambodia’s Chairmanship of the ASEAN attracts numerous challenges but it remains to be seen how Phnom Penh steers the ASEAN in the coming months particularly when the US too has come down heavily with sanctions on Cambodia after it permitted a Chinese company to build military-naval infrastructure at the Ream Naval Base arguing that it threatens regional security.

    Image Credit: cambodianess.com

  • Does ASEAN Need a New Approach to Code of Conduct for the South China Sea?

    Does ASEAN Need a New Approach to Code of Conduct for the South China Sea?

    Reference to Declaration on the Conduct of Parties in the South China Sea (DOC), Guidelines for the Implementation of the DOC, and formulations such as early adoption of a Code of Conduct in the South China Sea (COC) have featured in the ASEAN Chairman’s Statement of East Asia Summit Foreign Ministers’ Meeting since 2013 when Brunei Darussalam had held the Chairmanship of the ASEAN. These references were reiterated, and the section relating to the South China Sea in the ASEAN Chairman’s Statement for the 11th East Asia Summit Foreign Ministers’ Meeting in August 2021 under the leadership of Brunei Darussalam, is no different.

    While the Chinese intent is a welcome development, its new “Maritime Traffic Safety Law of the People’s Republic of China” (MTSL) that came into effect on 01 September 2021, has caused turbulence among the claimant States.

    Meanwhile, China’s Ministry of Foreign Affairs Statement of 5 August 2021 notes that a new goal has been set by China under which Beijing and ASEAN would “refrain from unilateral actions that aggravate tensions and widen differences, or using force or threat of force in particular”. While the Chinese intent is a welcome development, its new “Maritime Traffic Safety Law of the People’s Republic of China” (MTSL) that came into effect on 01 September 2021, has caused turbulence among the claimant States. As per the MTSL guidelines and procedures, vessels must “report the name, call sign, current position, next port of call and even estimated time of arrival to Chinese authorities”.

    The Philippines has decided to “ignore” the new Chinese Regulations and Philippine Defence Secretary Delfin Lorenzana has clarified his country’s stand on the issue that “we do not honour those laws by the Chinese within the West Philippine Sea because we consider that we have the sovereign right within this waters. So we will not recognise this law of the Chinese,” The Vietnamese Foreign Ministry too has reiterated strict compliance with the 1982 UNCLOS “when promulgating documents of domestic law related to the sea”.

    The Pentagon has accused China of “Unlawful and sweeping maritime claims, including in the South China Sea, pose a serious threat to the freedom of the seas, including the freedoms of navigation and overflight, free trade and unimpeded lawful commerce, and the rights and interests of the South China Sea and other littoral nations,” and the Defense Department spokesman has stated that the country will “ continue to fly, sail and operate wherever international law allows,”

    By all counts, an early conclusion of CoC in the South China Sea is only wishful given that the idea has been on the table for over two and a half decades since 1996. At that time there was euphoria among ASEAN foreign ministers that a CoC in the South China Sea could be the “foundation for long term stability in the area and foster understanding among claimant countries.”

    There is now a view that it is time to change the “objective from coming up with a comprehensive CoC”; instead, ASEAN and China must work towards “incremental development of a series of agreements” that could “eventually become the CoC in the future”

    The ASEAN has made earnest efforts and continues to negotiate a legally binding CoC but its finalization has eluded it. There is now a view that it is time to change the “objective from coming up with a comprehensive CoC”; instead, ASEAN and China must work towards “incremental development of a series of agreements” that could “eventually become the CoC in the future”. This can be achieved by developing “more realistic” and “smaller accords” that can help “de-escalate potential contentious situations”.

    The above argument merits attention for at least two important reasons. First, the South China Sea is simmering due to US-China military contestations. The US Navy continues to engage in exercises and the current deployment in the South China Sea by USS Carl Vinson Carrier Strike Group and Air Wing of the Future is a reflection of the US’ commitment to field “combat-ready force to protect and defend the collective maritime interests of the U.S. and its regional allies and partners”. Also, the US Navy has conducted FONOPs relentlessly and is now joined by the US Coast Guard. The Quad Member States have also dispatched their warships to the South China Sea for Malabar Naval exercises and the European navies led by France and Britain are operating in the region. These multi-nation naval manoeuvers have prompted China to respond through similar actions and the PLA Navy and the Air Force are persistently deployed in the region. This ‘state of affairs’ will continue.

    Second, there is a view that while the CoC should necessarily be consistent with the 1982 UNCLOS and should not “prejudice legitimate rights and interests of nations not a party to discussions,” this assessment can potentially trigger clamour among other stakeholders who have politico-diplomatic, economic and strategic interests in the region and have vehemently argued for a rules-based system and have challenged China’s expansive claims in the South China Sea as also its non-adherence to the 2016 PCA ruling.

    Under such circumstances, there are no incentives for China and it is deliberately delaying the finalization of the COC; it prefers to pursue a “business as usual” approach causing immense insecurity in the minds of the claimant States. Meanwhile, there is now a sense of urgency among the ASEAN Member States to finalize the CoC and their “patience” is wearing thin.

     

    Feature Image Credit: Nikkei Asia

  • US Policy in the South China Sea since 2016 PCA Ruling

    US Policy in the South China Sea since 2016 PCA Ruling

    In the foreseeable future, ASEAN will become more divided over South China Sea issues in the Biden era. The conflicts brought about by geopolitical competitions and maritime disputes in the South China Sea will become more challenging and uncertain

     

    The US does not lay any territorial claim in the South China Sea and had not taken any position on sovereignty over islands, reefs, and features in the South China Sea. Its 2010 policy was of not taking “sides on the competing territorial disputes over land features in the South China Sea, we believe claimants should pursue their territorial claims and accompanying rights to maritime space in accordance with the UN convention on the law of the sea”. Towards that end, the US had consistently urged the contesting parties to settle disputes based on international law and without intimidation-coercion. Even in 2016, the US had encouraged claimants to resolve their disputes “free from coercion or the use or threat of force” after endorsing the Permanent Court of Arbitration (PCA) award to the Philippines.

    However, in July 2020, the US revised its South China Sea policy through a Position Paper titled “U.S. Position on Maritime Claims in the South China Sea”. The Paper questioned China’s “claims to offshore resources across most of the South China Sea” and categorically stated that these are “completely unlawful, as is its campaign of bullying to control them,” This was in sharp contrast to the 2010 policy articulations.

    Since the publication of the Position Paper, South China Sea has appeared in Statements by respective US political leaders. For instance, at the G 7 summit on 11-13 June 2021, President Joe Biden was able to rally the leaders of the grouping and succeeded in a consensus over the critical necessity of a free and open Indo-Pacific and the G7 leaders also expressed concerns about the “situation in the East and South China Seas” and strongly opposed “any unilateral attempts to change the status quo and increase tensions”.

    There is continuity in US policy on the South China Sea since President Trump’s administration and the issue has figured prominently in US’ statements particularly in the context of coercion and intimidation of its smaller neighbours by China.  Secretary of State Mike Pompeo drew attention to the “trampling” of the “sovereign rights of its neighbours” and “destabilizing the region” as also causing “untold environmental devastation” of 3,000 acres of the sea space in the South China Sea; furthermore, “the United States will act until we see Beijing discontinue its coercive behaviour in the South China Sea, and we will continue to stand with allies and partners in resisting this destabilizing activity.” Also, he was uncompromising on US’ commitment to its ASEAN partners in safeguarding sovereign rights to “offshore resources, consistent with their rights and obligations under international law.”

    President Biden’s Administration has continued to pursue a similar policy as that of the predecessor. For instance, in his conversation with National Security Advisor Jake Sullivan on 1 July 2021 with Vietnamese Deputy Prime Minister Pham Binh Minh, they discussed the South China Sea, including the United States’ support for the 2016 arbitral tribunal award.

    It is not surprising that a Chinese commentator has observed that “Biden administration’s South China Sea policy has attached great importance to US allies within and outside the region, this precisely reflects its Cold War mentality” and is reflected in the US-Philippine Mutual Defence Treaty, which now applies to the South China Sea and freedom of navigation operations (FONOP)  in the South China Sea continues unabated. For instance, in 2017 there was one FONOP by the US, in 2018 there were three incidents, nine in 2019; 15 in 2020; and then this year four FONOPs have been reported. There is also a new emphasis on mini multilateralism in the form of Quadrilateral Security Dialogue (QUAD) to support its “traditional strategy of relying on allies and partners” to “establish a new regional order dominated by the US”.

    The Chinese commentator’s assertion that “in the foreseeable future, ASEAN will become more divided over South China Sea issues in the Biden era. The conflicts brought about by geopolitical competitions and maritime disputes in the South China Sea will become more challenging and uncertain” merits attention.

    Last week, while speaking in a forum on global security issues at Tsinghua University in Beijing, China’s Foreign Minister Wang Yi said that the US’ Indo-Pacific strategy is aimed at countering Beijing and the strategy “should be dumped at a trash heap.” Wang also observed that China would oppose any framework of cooperation to “fuel rivalry” and “an action to accelerate division” ostensibly referring to Taiwan.

    Finally, a continuous war of words between political leaders of the US and China over the South China Sea can be expected to continue. Notwithstanding that ASEAN Member States can be expected to continue to engage China for a legally binding Code of Conduct and at the 19th Senior Officials’ Meeting on the Implementation of the Declaration on the Conduct of Parties in the South China Sea (DOC) held on June 7, 2021, in Chongqing, all “parties agreed to resume as soon as possible the second reading of the Single Draft COC Negotiating Text and strive for the early conclusion of negotiations”.

    Feature Image: USS Ronald Reagon in the South China Sea. Credit: asiatimes.com

  • China’s New Coast Guard Act: Vietnam could lead Response

    China’s New Coast Guard Act: Vietnam could lead Response

    China’s new Coast Guard Act has put the ‘cat among the pigeons’ and the South China Sea claimants Brunei, Malaysia, Philippines, Vietnam and Taiwan are visibly worried. The Act has also attracted international attention; for some, it is an act of war and for others, it violates the 1982 United Nations Convention on the Law of the Sea (UNCLOS).

    The Act came into effect last month on 01 February. In its administrative content, the Act is the culmination of at least two reorganizations of the Chinese Coast Guard (CCG) that began in 2013 involving administrative and operational control of five closely associated national maritime law enforcement agencies, also referred to as the Five Dragons , that were brought under one umbrella. In 2018, CCG became part of the People’s Armed Police Force.

    Under the new Act, it is feared, the CCG would conduct operations just like the PLA Navy and would be directly controlled by the Chinese Communist Party Central Committee. The CCG is empowered with powerful ‘security and control measures’ and has the rights to take necessary actions to “restrain foreign military vessels and foreign vessels used for non-commercial purposes in waters under China’s jurisdiction from violating the laws or regulations of China” which is potentially in contravention to the 1982 UNCLOS.

    The Act has also attracted international attention; for some, it is an act of war and for others, it violates the 1982 United Nations Convention on the Law of the Sea (UNCLOS).

    Under Article 20, the CCG may demolish “buildings, structures, and various fixed or floating devices” built by foreigners “in the sea areas and islands under our jurisdiction”, and Article 47 authorizes the agency to “directly use weapons if there is no time for warning or if there is a risk of serious harm after giving a warning.”

    It is the latter that prompted Japan to label the Act as “blatantly threatening” and “aimed directly at the Senkakus” raisingspeculation that the Japanese Coast Guard, which hitherto could “fire weapons directly at foreign vessels in cases of self-defence and emergency escape” may now “ fire on foreign official vessels under laws by regarding vessels aiming to land on the Senkaku Islands as committing violent crimes”.

    However, it is fair to say that some of the provisions contained in the Chinese Coast Guard Act are not extraordinary. Navies, Coast Guards and law enforcement agencies of many countries are administratively controlled by the ministries of national defence and routinely operate with the national navies albeit pursue different rules of engagements. Many maritime law enforcement agencies are also known to intercept and even sink foreign fishing vessels especially when these engage in IUU fishing. These naturally attract diplomatic protests from the affected countries including China.

    Be that as it may, the ASEAN and China signed the Code for Unplanned Encounters at Sea (CUES) in the South China Sea in 2016 under which both sides are committed to “maintaining regional peace and stability, maximum safety at sea, promoting good neighbourliness and reducing risks during mutual unplanned encounters in air and at sea, and strengthening cooperation among navies”. This agreement is for the navies and draws upon the CUES (voluntary and non-binding) adopted by the Western Pacific Naval Symposium (WPNS).

    The new Chinese Coast Guard Act may have created an opportunity for ASEAN and China to conceptualize CUES that is tailored to the mandate of the Coast Guards i.e. law enforcement. The issue can also be on the agenda of the Heads of Asian Coast Guard Agency Meeting (HACGAM), a grouping of 22 Member States and multilateral organisations, which aims at cooperative and proactive efforts to address maritime issues confronting the region.

    Among the ASEAN member countries, Vietnam is well placed to lead the initiative for at least three reasons.  First, it is a claimant and some of the features in the South China Sea are under its control; second, it has a larger Coast Guard when compared to the capabilities of the other ASEAN claimants; and third, the Vietnamese Communist Party maintains close contacts with their counterparts in China and this could be a useful channel to facilitate a dialogue.

    However, it remains to be seen if Beijing would allow debate and discussion on the Coast Guard Act particularly when it also involves contested areas such as the South China Sea. For that deft diplomacy by Vietnam could be a good idea.

    Feature Image: www.japantimes.co.jp

  • Vietnam-US Relations under Biden Likely to Remain Unchanged

    Vietnam-US Relations under Biden Likely to Remain Unchanged

    Communist Party Chief and State President Nguyen Phu Trong and Prime Minister Nguyen Xuan Phuc have sent a congratulatory message to U.S. President-elect Joe Biden. Both leaders have also expressed hope that their comprehensive partnership will “continue to develop in a stable, effective manner, benefiting people of both countries and promoting peace, security, stability, cooperation and development in the region and the world”. Meanwhile, Vice President Dang Thi Ngoc Thinh sent a congratulatory message to the U.S. Vice president-elect Kamala Harris. The Vietnamese leaders also invited Biden and Harris to visit Vietnam.

    The Biden administration could even explore new “areas in which to deepen ties with Vietnam in the economic, political, military, and people-to-people spheres”.

    While these messages and invitations are part of customary diplomacy, strategic commentators across domains believe that US-Vietnam relations will continue as hitherto under President-elect Joe Biden’s Presidency. They argue that the US acknowledges Vietnam’s geopolitical and geostrategic heft, and the new administration will continue to give top priority to cooperation with Vietnam. The Biden administration could even explore new “areas in which to deepen ties with Vietnam in the economic, political, military, and people-to-people spheres”.

    As far as economic relations, the Vietnam-US bilateral trade has grown significantly from US$ 450 million in 1994 to US$ 75.7 billion in 2019. However, in the last few months, a thorny issue has come up. In October 2020, the U.S. Trade Representative announced an investigation of Vietnam for its large trade surplus with the US. The trade deficit widened to US$ 44.3 billion in the first nine months in 2020, as against US$ 33.96 billion in 2019. It has also been noted that some of it is because of US companies exiting China and setting up new supply chains in Vietnam. However, it is unlikely that trade deficit would have an adverse impact on bilateral relations, which would continue to remain “relatively good under Biden unless complicated by an unexpected upsurge in trade tensions.”

    As far as strategic issues, US-Vietnam defence diplomacy had received impetus under President Trump. The bilateral cooperation in security and defence matters between the two militaries has been at an all-time high. In particular, naval cooperation has been top of the agenda and USS Carl Vinson, a US aircraft carrier, made a historic port call to Da Nang in March 2018. This was significant, given that there had been no such port call by an aircraft carrier to Vietnamese ports since the end of the Vietnam War in 1975. Another visit of the aircraft carrier USS Theodore Roosevelt followed this in March 2020, clearly showcasing growing defence cooperation between the US and Vietnam.

    Perhaps what merits attention is that Vietnam strictly adheres to ‘three-no policy’ i.e. no military alliances; no foreign troops stationed on Vietnamese soil; and no partnering with a foreign power to combat another.

    It is important to keep in mind that such port visits are a significant element of naval diplomacy by any navy. Vietnam has welcomed naval, coast guard, and marine patrol vessels from friendly countries. For instance, in 2018 a Japanese submarine and in 2019 a Canadian warship visited Vietnamese ports; likewise, many other navies have made goodwill visits. It dispatches Vietnamese military personnel and vessels for International Fleet Reviews and other similar events. Also, in 2019, Vietnam signed the Framework Participation Agreement (FPA) with the European Union (EU) which will provide it “new opportunities for Vietnam to portray itself as a cooperative and pro-active power through land and maritime missions” and “participate and contribute to EU’s Common Security and Defence (CSDP) missions and operations”

    Perhaps what merits attention is that Vietnam strictly adheres to ‘three-no policy’ i.e. no military alliances; no foreign troops stationed on Vietnamese soil; and no partnering with a foreign power to combat another. In this context, it is useful to recall the visit to Hanoi by U.S. Secretary of State Mike Pompeo in October 2020. The surprise visit was labelled as an occasion to celebrate the 25th anniversary of diplomatic normalisation of bilateral relations, Pompeo’s tour was also to share with the Vietnamese leaders the US “Free and Open Indo-Pacific” (FOIP) strategy and seek their support.

    There is every reason to believe that Vietnam is unlikely to gravitate towards the US, notwithstanding the fact that its relations with China have been quite rancorous particularly over territorial disputes in the South China Sea, military-naval buildup on the reclaimed features and harassment by Chinese Coast Guard ships of Vietnamese fishing vessels operating in the Paracel Islands including intentional ramming. Vietnam is unlikely to offer affirmation to the US FOIP or the Quadrilateral Security Dialogue (QSD), a grouping of Australia, India, Japan and US to balance against China.

    We can expect Vietnam to exercise strategic autonomy and its position of ‘not taking sides’ pivoting on its ‘three-no policy’ could prove to be an incentive for the Biden Administration to pursue an enhanced and constructive engagement with Vietnam.

    There are clear signs of contestation between the US and China, which might create Blocks (with the US or with China) that might upset the peace and stability in the region. We can expect Vietnam to exercise strategic autonomy and its position of ‘not taking sides’ pivoting on its ‘three-no policy’ could prove to be an incentive for the Biden Administration to pursue an enhanced and constructive engagement with Vietnam.

    Image Credit: Atlantic Sentinel

  • Chinese Economic Sops over the South China Sea: A Mixed Bag of Successes

    Chinese Economic Sops over the South China Sea: A Mixed Bag of Successes

    The South China Sea is a resource-rich sea space and its net worth is estimated to be US$ 2.5 trillion.[i]  The proven oil reserves are around 7.7 billion barrels and natural gas reserves could be around 266 trillion cubic feet.[ii] The Chinese strategy in the South China Sea against other claimant States is a mix of aggressive posturing including the threat of use of force as also offering economic incentives and sops such as ‘joint development of resources’ in the contested waters.

    Deng preferred a “moderate approach” i.e. “sovereignty remains ours; shelve disputes; pursue joint development.

    The idea of joint development can be attributed to Deng Xiaoping, the Chinese leader and author of market-economy reforms in the 1980s that earned him the title of ‘Architect of Modern China’. Deng preferred a “moderate approach” i.e. “sovereignty remains ours; shelve disputes; pursue joint development.”[iii]

     

    Map Credit: The Australian Naval Institute

    China’s current thinking on joint development of resources in South China is built around at least seven policy choices i.e. (a) promote good faith in the South China Sea; (b) limit unilateral activities in disputed areas; (c) focus on less-sensitive areas of the South China Sea; (d) reach joint development arrangements by establishing relevant working mechanism; (e) begin the process in areas where there are only two claimants; (f) define sea areas for the joint development by seeking consensus, and (g) discuss the feasibility of setting up a Spratly Resource Management Authority (SRMA) with supranational character.[iv] Further, it has been argued that the ASEAN-China Single Draft Negotiating Text of the Code of Conduct (COC) is “conducive to creating benign bilateral relations, which serves as a prerequisite to joint development”.[v]

    The general belief among the claimants is that China thinks ‘what is mine [Chinese] is of course mine, but what is your [claimants] is also mine’

    However, the above policy choices for joint development and intention are flawed and dismissed by the aggrieved claimants of the South China Sea. The general belief among the claimants is that China thinks ‘what is mine [Chinese] is of course mine, but what is your [claimants] is also mine’; i.e.  Chinese joint development initiatives are based on the wrong assumption that what belongs to China is for China only to develop, and what belongs to other claimants is for development.

    In 2018, China and the Philippines signed a Memorandum of Understanding on Cooperation on Oil and Gas Development. President Xi Jinping urged President Philippine President Rodrigo Duterte to “set aside disputes, eliminate external interference, and concentrate on conducting cooperation, making pragmatic efforts and seeking development”; furthermore, “both sides can take a ‘bigger step’ in the joint development of offshore oil and gas”.[vi] The Philippines proposed a “60-40 sharing arrangement in its favour” and both sides could then develop the “Reed Bank, the main site of the oil and gas reserves, despite the arbitration award declaring that Manila had sovereign rights to exploit them”.[vii]

    Similarly, Brunei has an ongoing arrangement with China on bilateral joint development/cooperation in the South China Sea. Economic and strategic considerations are Brunei’s twin drivers; it has been “pushing hard to diversify its economy away from the oil and gas industry” for a long time and the “unstable oil market, a slow foreign investment growth (especially in non-oil and gas sector) and a contracting national GDP” has acted as a catalyst to diversify and “joint development” is an integral part of Brunei’s wider economic diversification strategy. [viii]

    Unlike the Philippines and Brunei, Malaysia and Vietnam have shied away from joint development of resources with China in the South China Sea.

    Unlike the Philippines and Brunei, Malaysia and Vietnam have shied away from joint development of resources with China in the South China Sea. This is despite the March 2005 China, the Philippines and Vietnam Tripartite Agreement for Joint Marine Scientific Research in Certain Areas in the South China Sea by respective national oil companies.

    Malaysia is not averse to joint development with other claimants except China and at least four such projects were undertaken i.e. (a) Malaysia-Thai Joint Development Authority in the Gulf of Thailand based on the 1979 MOU; (b) 1992 MOU which designates overlapping continental shelf claims (about 2000km square) in the Gulf of Thailand as Commercial Arrangement Area (CAA); (c) the 2009 CAA between Brunei and Malaysia; and (d) Fisheries MOU between Malaysia and Indonesia, quasi-joint exploitation of fisheries resources, in overlapping claim area of about 14,300 square kilometres in the Straits of Malacca.[ix]

    Vietnam’s boundary and territorial disputes with China in the South China Sea including clashes over the Parcels have resulted in mistrust and preclude joint development with China. In essence, Vietnam does not accept joint development in areas that belong to Vietnam according to the UNCLOS 1982.

    Vietnam promotes international cooperation on resource development and has a rich body of laws to support such initiatives such as the 1982 United Nations Law of the Sea, the Petroleum Law (Article 3, No. 12), the Navigation Law, Fisheries Law, the Law on Natural Resources and Environment of Sea and Islands (Article 4, No. 5), the Tourism Law, and the Mineral Law. However, its boundary and territorial disputes with China in the South China Sea including clashes over the Parcels have resulted in mistrust and preclude joint development with China. In essence, Vietnam does not accept joint development in areas that belong to Vietnam according to the UNCLOS 1982.

    The US rejects Chinese maritime claim in the South China Sea and proclaimed “any PRC action to harass other states’ fishing or hydrocarbon development in these waters – or to carry out such activities unilaterally – is unlawful.”[x]Furthermore, while extending help to Vietnam on the matter, US Secretary of State Michael Pompeo announced that “America stands with our South-East Asian allies and partners in protecting their sovereign rights to offshore resources, consistent with their rights and obligations under international law.”

     
     
    Notes

    [i] “China Escalates Coercion against Vietnam’s Longstanding Oil and Gas Activity in the South China Sea”, https://china.usembassy-china.org.cn/china-escalates-coercion-against-vietnams-longstanding-oil-and-gas-activity-in-the-south-china-sea/  (accessed 15 September 2020).

    [ii] “South China Sea: Beijing has a major natural advantage in the geopolitical power game”, https://economictimes.indiatimes.com/news/defence/south-china-sea-beijing-has-a-major-natural-advantage-in-the-geopolitical-power-game/articleshow/76423659.cms (accessed 15 September 2020).
    [iii] “Xi Jinping and China’s Maritime Disputes”, https://taylorfravel.com/2013/08/xi-jinping-and-chinas-maritime-disputes/  (accessed 15 September 2020).
    [iv] “Joint development in the South China Sea: China’s incentives and policy choices”,https://www.tandfonline.com/doi/full/10.1080/24761028.2019.1685427  (accessed 15 September 2020).
    [v] Ibid.
    [vi] “China Focus: Xi, Duterte meet on pushing forward ties”, http://www.xinhuanet.com/english/2019-08/30/c_138350348.htm  (accessed 15 September 2020).
    [vii] “China’s Xi sees bigger role for joint energy exploration with Philippines”, https://www.reuters.com/article/us-china-philippines/chinas-xi-sees-bigger-role-for-joint-development-of-offshore-oil-gas-with-philippines-idUSKCN1VK00M  (accessed 15 September 2020).
    [viii] “Cooperative Research Report on Joint Development in the South China Sea: Incentives, Policies & Ways Forward”, http://www.iis.fudan.edu.cn/_upload/article/files/9f/21/992faf20465fae26c23ccce1ecc6/f003a68f-eb6a-4b09-a506-3c00897b0862.pdf  (accessed 15 September 2020).
    [ix] “Cooperative Research Report on Joint Development in the South China Sea: Incentives, Policies & Ways Forward”, http://www.iis.fudan.edu.cn/_upload/article/files/9f/21/992faf20465fae26c23ccce1ecc6/f003a68f-eb6a-4b09-a506-3c00897b0862.pdf  (accessed 15 September 2020).
    [x] “China pressurizes Vietnam to cancel, compensate offshore firms operating in South China Sea”, https://energy.economictimes.indiatimes.com/news/oil-and-gas/china-pressurises-vietnam-to-cancel-compensate-offshore-firms-operating-in-south-china-sea/77189060  (accessed 15 September 2020).
     
    Image Credit: nbcnews.com