Right now, China and its southern neighbours are fighting a regional sea-battle with global implications. At stake is a cornerstone of the international rules-based system: should states respect the treaties they have signed or use force to get their way? Currently caught in the middle are several major European companies.
Since May, Chinese government ships have been attempting to coerce Vietnam and Malaysia into agreeing ‘joint development’ of their offshore oil and gas resources. To this end, Beijing has deployed large numbers of vessels from its coastguard and maritime militia. They have harassed drilling rigs, obstructed their support ships and tried to block off large areas of sea. Vietnamese sources say China sent an H-6K strategic bomber and Y-8X maritime patrol aircraft on low-level passes over a Japanese-owned oilrig operating nearby.
Xian H6 Bomber
These operations, and others like them, have affected the operations of companies including Shell of the UK/Netherlands and Repsol of Spain. They have implications for many other energy companies, too, as well as for the energy and fiscal security of Vietnam, Indonesia, Malaysia, Brunei and the Philippines.
When pressed to justify his country’s behaviour at the China-ASEAN summit meeting in July, the Chinese foreign minister claimed that the areas where the confrontations were taking place were ‘disputed’ between China and the other countries. In other words, he was arguing that China had at least as much right to the resources there as Vietnam or Malaysia. However, like so many Chinese officials before him, Wang Yi was unable to provide any details of the exact basis of China’s claim. On 19 August, when asked about the latest clashes, a Foreign Ministry spokesman in Beijing stated that China has, “sovereign rights and jurisdiction over the relevant waters” but failed to spell out the meaning of ‘relevant’.
“What China is currently doing in the South China Sea seems to be a clear violation of UNCLOS”.
China’s idea of joint development is that it would gain the right to extract a share of its Southeast Asian neighbours’ maritime resources regardless of international law. These kinds of disputes were supposed to have been consigned to history by the agreement of the United Nations Convention on the Law of Sea (UNCLOS) in 1982. To simplify things a little, UNCLOS gives each coastal country exclusive rights over the fish swimming in the sea and the minerals under the seabed up to a distance of 200 nautical miles (about 400km) from their coastline. This area is called an Exclusive Economic Zone or EEZ. China ratified UNCLOS in 1996 and is therefore bound by its rules.
Since China’s mainland coast is well over 1,000km from the areas in dispute, this cannot be the basis of its claim. The only legal explanation, therefore, is that China is claiming an EEZ from the nearby Spratly Islands. However, in July 2016, an International Arbitral Tribunal ruled that none of the Spratlys constituted full islands. They are all far too small and inhospitable to support human life for any length of time and therefore are not entitled to an EEZ.
However, that ruling is only binding for the country that brought forward the case, the Philippines, and the country it was brought against, China. For Vietnam and Malaysia to benefit from it, they would have to bring their own cases against China. This would not be too difficult. Vietnam’s lawyers could more-or-less copy the claim filed by Manila and simply replace the word ‘Philippines’ with ‘Vietnam’ or ‘Malaysia’. Exactly the same principles are at stake. So far, they have been unwilling to do so for fear of incurring Beijing’s wrath.
What China is currently doing in the South China Sea seems to be a clear violation of UNCLOS. The European Union has long argued that international rules and agreements are vital constituents of international peace. When they break down in one part of the world, they are weakened everywhere. If China continues to flout UNCLOS, then other countries may also decide to break the bonds of self-restraint that international law creates. The result, ultimately, would be a free-for-all where might beats right.
“The EU should be able to distinguish a legitimate claim to maritime resources from an illegitimate one”.
The current confrontations in the South China Sea are therefore something in which the EU should take an active interest. UNCLOS and its EEZ regime are cornerstones of international law. The EU needs to make clear that it supports the right of coastal countries to control the resources in their own EEZ. The EU should be able to distinguish a legitimate claim to maritime resources from an illegitimate one, and then orientate its policies accordingly.
While the deployment of naval ships gets a lot of attention, there are many other ways that the EU could help to protect the EEZ regime. It could require importers of fish, hydrocarbons or other marine products into the EU to prove that they were extracted lawfully. It could sanction companies and officials who violate other countries’ EEZs by poaching fish, drilling or exploring for oil and gas. It could use the power of satellites and other remote sensing systems to ‘name and shame’ violators. It can provide aid to coastguards and help coastal states improve their maritime domain awareness.
It could also think about deploying assets to defend the EEZ regime. Where a country, such as Vietnam or Malaysia, is engaged in a legitimate activity within its legitimate EEZ, the EU could post a coastguard or naval vessel to observe and publicise violations of international law. The ultimate step would be to intervene to prevent such violations, but we are some way from that. At the moment, the EU should use its reputation as a rule-builder, to encourage the spread of good behaviour and sanction examples of bad behaviour./.