Vietnam Time

6/23/2015 5:09:34 AM

China’s “exclusive order” plot in the East Sea

An "exclusive order" is being formed in the East Sea (South China Sea), and it is challenging the freedom and safety of navigation and aviation for the entire world, Dr. Truong Minh Huy Vu, director of the Centre for International Studies (SCIS), HCM City University of Social Sciences and Humanities, said in a talk with VietNamNet.

The reclamation and expansion of reefs into artificial islands as well as the building of mobile islands for different purposes is considered the next step of China in the process of establishing an "exclusive order" in the East Sea. Dr. Vu commented on the formation, the characteristic and the consequences of this order for regional security situation, as well as the upcoming scenarios behind the hardening reaction of USA.

A satellite photo of China's facilities on the reef of Chu Thap (Fiery Cross) in Vietnam's Truong Sa Archipelago (Spratly Islands).

Since 2009, China has conducted a series of "tests", from "gentle ones" such as harassment of fishing vessels of other claimants; cutting telecom cables; imposing fishing bans; prohibiting foreign companies from exploring and exploiting oil and gas; to more serious acts as encroaching the Scarborough or deploying the HD-981 drilling rig in the exclusive economic zone of Vietnam. In 2015, when the photos of artificial islands were revealed, the public raised the question: What is happening in the East Sea through Beijing’s moves?

The move by China can be summed up in these words: Building an exclusive order. The characteristic of this order is selective, open and closed based on the rules and principles set by a powerhouse. That process has been taking place for years, but it started moving rapidly from 2009.

In this year, after the crash between the Impeccable Class Ocean Surveillance Ship of the US with Chinese patrol boats in the waters that is 120 km from Hainan Island, the first concerns emerged about the maritime order established by the US after the World War II being challenged by the rise of China. The most important pillar that is threatened is the principle of freedom of navigation, with the view of the "open ocean," which is not exclusively owned by any country.

In the subsequent years, Beijing tried to disguise the "militarization" trend to set the rules of the game in the disputed areas through the “small acts” (harassment of fishing vessels of other claimants; cutting telecom cables; imposing fishing bans; prohibiting foreign companies from exploring and exploiting oil and gas) that were conducted regularly over a long period so as to not “shock" others.

In 2015, what is happening in the field in the East Sea is no longer a challenge, but has gradually become reality. The building of artificial islands can be seen as the latest and most serious step of China to assert its power and ownership over the East Sea.

An "exclusive order" is being formed, and it is challenging the freedom and safety of navigation and aviation of the whole world. Not only because of the importance of the East Sea as a lifeline of the global maritime ... but more importantly, it is how a superpower rising to rewrite the world rules unilaterally, accompanied by force.

Why do you call the order that China is building an "exclusive order"?

First, the order that China is forming in the East Sea creates more and more clear borders in the field. The "Great Walls in the sea" are being established by the islands that China are rapidly building, accompanied with surrounding waters. It is being formed not through the interpretation of the 1982 UN Convention on the Law of the Sea (UNCLOS). Discussions have been drawn into two different issues, including the maritime rights relating to the exclusive economic zones (EEZ) and the sovereignty of the islands in relation to territorial waters.

For the maritime rights, only "islands" and not "reefs" have the 200 nautical mile EEZ. That is the focus of the debate around the difference between the "island" and the "reef" under Article 121 of UNCLOS. To get the 12 nautical mile territorial waters, the reefs must meet certain criteria under UNCLOS, and they must be located above the water at high tide.

The issue is more complicated because the territorial delineation rights are not based on the current status of the territory, but territorial sovereignty.

Second, China's order is based on the concept of ambivalence about the perspective of freedom of navigation. On one hand, China said that they respect and comply with the terms of UNCLOS on "passing with no harm". But the explanation from China also repeatedly argued that the “passing with no harm” in the waters of 200 nautical miles from the baselines must be controlled or subject to the consent of the coastal state to not harm sovereignty and national security.

Basically, the argument that the military monitoring activities may be limited within the EEZ of a coastal state is often based on two pillars. One is the assumption that the aforementioned military operations aim at "peaceful purposes" - a concept that is not defined in detail in UNCLOS. Two, the use of a number of monitoring technologies aimed at "marine scientific research" - another vague concept in UNCLOS, but it is a concept that coastal states can legislate in their EEZ. Thus, rather than clarify ambiguous points in UNCLOS, China takes advantage of this "vagueness" to "eliminate" the free movement of boats of other nations.

Third, does the pursuit of a concept of restrictive freedom of navigation or building "Great Walls on the sea" of Beijing target creating new international practices, in which the East Sea is a test?  

In the context that its naval power is rising, China’s newly-issued Defense White Paper is a clear answer, with two spotlights. On one side, naval strategies are being designed to focus more on the high seas. On the other hand, there is a shift in approach from defense to the combination of defense and attack - the shift in terms of thinking that was mentioned for the first time in an official defense document.

A position of "hegemonic competition" in terms of forces in the Asia - Pacific – besides assessment of the quantity and quality of weapon facilities - should be adequate with the territorial protection commitments of the navy, as well as the structure of the fleet and the operational condition of warships. With China, the goal is "anti-approach" and "effective approach" to the "near sea", ie in the waters inside the first island chain, as well as trying to expand the influence of PLAN in the high sea.

To be able to control the waters within the first island chain, the strategic nodes that China needs to control is the East China Sea area (with Senkaku as the focal dispute), the Taiwan Strait and the East Sea (with the Paracel and Spratly Islands disputes in the focus). The East Sea is a "laboratory" of possibilities, strategy and efficiency levels of the Chinese navy in intercepting the enemy's access point, as well as enhancing its ability to access in the nearby seas.

The US is actively sending its forces to the East Sea, ignoring the objections of China, causing many different opinions. Some said that that deeper involvement creates great potential for maintaining peace in the East Sea. Others warned about the possibility of clashes between the two powers in the sea. What is your opinion on this issue?

For a long time, especially since 2011, the US has pursued a strategy that many scholars called “cost-imposing strategy” with China in the East Sea. This strategy goes from low to high, through a variety of channels, shown through multiple fronts, from diplomatic language, to legal documents, supporting allies, proposing joint naval initiatives with the regional countries, to military intervention.

However, I do not think about the clashes between the naval ships of the US and China. Even at the height of the Cold War, the Navy of the US and the Soviet Union prevented "crashes" after a binding agreement on the prevention of incidents at sea (Agreement on the Prevention of Incidents On and Over the High Seas - INCSEA) was signed in 1972.

After the meeting between Chinese President Xi Jinping and US President Obama on the sidelines of APEC last November, the US and China have signed a series of documents, notably the joint memorandum on the Regulations on Safety Code of Conduct in the clashes at sea and in the air. The US and China have repeatedly negotiated an additional annex on aerial operations in 2014 and 2015. On 19/82014, an incident between a P-8 aircraft of the US and a J-11 aircraft of the Chinese Navy occured. According to the 2015 report of the US Department of Defense, prior to May 2015, there was no similar incident reported after the US condemned China.

These agreements are not the deciding factor. More importantly, I think, in the current context the US and China will never start a war. The US military forces “approach” to the artificial islands is to force (or convince) China to build a dispute settlement mechanism in the East Sea by laws and institutions.

It can be said the most important message that Washington (and its allies) released is Beijing always has a choice to be part of the current order if it accepts to resolve disputes with neighboring countries by peaceful means. Thus, when the field conflicts between the two powers are increasingly tense, the legal and strategic ambiguities will become clearer./.

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