T

ension in the South China Sea (SCS) is not receding despite the ruling of international arbitration on the territorial waters between the Philippines and China. Rivalry persists not only between maritime powers but also between the claimants.

In particular, a spat between the United States and China has reached an alarming level for littoral Southeast Asian nations, as it may tilt the region’s delicate balance toward an open conflict.

It seems China is increasing and continuing its strategic footprint on various artificial islands, deploying new surveillance systems and establishing advanced military facilities in the area. Similarly, the US is intensifying its presence to enforce the freedom of navigation there.

To make matters worse, exploitation of natural resources has been rife surrounding the disputed territory under the pretext of the right to exclusive economic zone (EEZ), triggering conflict between states.

For example, Vietnamese fishermen operate in the waters the country has claimed as part of its EEZ, with support and protection from its coast guard. On the other hand, Indonesia, which also claims the EEZ, patrols the area as part of enforcement of its national law.

Tension arises when an Indonesian law enforcement agency apprehends the Vietnamese fishing vessels. As happened recently, the Vietnam coast guard asked Indonesian law enforcers to release a fishing vessel accused of poaching in Indonesia’s EEZ.

There have been at least four incidents involving the Vietnam coast guard and Indonesian maritime law enforcement reported as of May 2017. In one of the sea rows, the Vietnam coast guard detained an Indonesian law enforcement officer.

One incident is already too many and should be a cause for concern as it confronts two national maritime law enforcement agencies.

Referring to the decision of the arbitration court in June 2016 over the territorial dispute in the South China Sea, most territorial waters within the SCS fall under the EEZ regime. The rights and jurisdiction of the coastal state over the EEZ are protected, but the rights and freedoms of other states, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, are
recognized.

However, misunderstanding oftentimes occurs pertaining to military activities within the EEZ. Major incidents related to this include the March 2001 confrontation between the US navy survey vessel Bowditch and a Chinese frigate in China’s EEZ; the April 2001 collision between a US EP3 surveillance plane and a Chinese jet fighter over China’s EEZ; the December 2001 Japanese coast guard pursuit of and firing at a North Korean spy vessel in its and China’s EEZ; and Vietnam’s protest against Chinese live fire exercises in Vietnam’s claimed EEZ.

Navies are expanding and technology is advancing while coastal states are placing increasing importance on control over their respective EEZs. These opposing trends, if not dealt with properly, will result in a higher frequency and intensity of such incidents and, hence, endanger maritime security.

Other factors that contribute to the problem are scale and scope of maritime and airborne intelligence collection activities, which appear to become more intensive and intrusive. They generate tension and produce defensive reactions and escalatory dynamics.

New threats like trade in weapons of mass destruction, terrorism, piracy and smuggling of arms, drugs and humans have encouraged both coastal and maritime states to extend their control or surveillance beyond their territorial seas and, in some cases, to others’ EEZs.

Considering the complicated and dynamic issues in the South China Sea, all parties have to avoid activities that could endanger peace and stability in the region. ASEAN has long sought to prevent a China-US conflict that will tear its members between the two world powers.

For most ASEAN members it is crucial to continue expanding trade and investment ties with China on one hand, while maintaining robust military cooperation with the US as a hedging strategy on the other.

Potential conflict among maritime law enforcement agencies of littoral states is frightening. The coastal law enforcement agencies will uphold national law to fight illegal activities within their unilateral claim of maritime spatial and sometimes they resort to use of force.

Those incidents will be inevitable if communication among maritime law enforcement agencies of the states is lacking. If misunderstanding goes unaddressed, tension will escalate in the South China Sea.

Existing initiatives among the parties simply focus on the strategic and political level as evident in the formulation of a code of conduct in the South China Sea, which is still long time to go to become a legally binding document.

Considering the rising number of incidents involving maritime law enforcement agencies in the territory, understanding on operational and tactical action would be necessary for all littoral states. A forum for the maritime law enforcement agencies to share and explore ideas is therefore pivotal.

ASEAN as the driver of regional integration and bedrock of East Asia’s security architecture is struggling to affirm any appearance of centrality in managing the South China Sea dispute. So ASEAN, instead of finishing the code of conduct, could quickly forge a unified and coherent approach to the maritime issues in the area by setting up an operational guidance for maritime law enforcement agencies.

Further, given the myriad border disputes and overlapping claims in the region, it is not always clear where one nation’s jurisdiction ends and another’s begins. Confusion and differences of opinion regarding the governing of activities in the EEZ and how coastal states enforce the rights and obligations will further complicate the issue.
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The writer, who obtained a PhD in ocean and transnational security from Wollongong University,
Australia, is a lecturer at the Indonesian Defense University, Bogor.