The territorial hustle in the South China Sea

Earlier in April 2019, a video went viral in Indonesia depicting a Vietnamese Official Fisheries vessel, believed to have been conducting illegal, unregulated and unreported Fishing (IUU Fishing) over Indonesian waters of the North Natuna Sea ramming into the Indonesian Warship KRI Tjiptadi-381 starboard side. This video has sparked anger and uneasiness among Indonesians particularly on the issue of Indonesia’s maritime sovereignty.

Recently, a number of Chinese fishing vessels and three Chinese Coast Guard vessels were reported to have entered the EEZ areas near the North Natuna Sea, agitating Indonesian authorities citing that China has violated Indonesia’s sovereign rights in its EEZ. China may exercise freedom of navigation in the EEZ area but are not permitted to engage in fishing activities. As a result of this illegal activity, Jakarta issued a diplomatic protest against Beijing and thereafter mobilised its warships to the North Natuna Sea to face China. China on the other hand argued that waters around Natuna have been their fishing grounds for generations, as it is within its alleged nine-dash-line areas.

In December 2019, China has protested against Malaysia filing a submission with the United Nations (UN) seeking to establish the limits of Malaysia’s continental shelf in the northern part of the disputed South China Sea citing that the submission had ‘seriously infringed on China’s sovereignty, sovereign rights and jurisdiction in the South China Sea.

The main questions to be pondered upon are to whom the EEZ area in the North Natuna Sea and continental shelf in the northern part of the disputed South China Sea belong to?

The Law of the Sea Convention 1982 (UNCLOS 1982) has created a number of maritime zones with varying degree of jurisdiction exercised by a coastal State. The UNCLOS 1982 provides that coastal States have sovereignty over its territorial sea that extends up to 12 nautical miles from the baseline. Within the territorial sea, a coastal State possesses sovereignty and absolute power over its marine area, subsoil as well as the airspace above it. Furthermore, a coastal State may make claims for EEZ (which involves maritime waters) and continental shelf (which refers to seabed and subsoil underneath the sea) in maritime zones beyond 12 nautical miles up to 200 nautical miles measured from the baseline of the coastal State. As far as EEZ and continental shelf are concerned, a Coastal State may only exert sovereign rights namely to exploit living and non-living resources in that particularly maritime zone. Unlike the territorial sea, foreign ships may exercise freedom of navigation in the EEZ area belonging to another coastal State. The extent of power a coastal State has in its territorial sea is much less in its EEZ and continental shelf.

Indonesia has yet to entirely resolve the maritime boundary delimitation with Vietnam particularly involving the EEZ area between the two States in the North Natuna Sea. This creates a ‘grey area’ where affected States may exert sovereign rights and this territorial confusion later creates ‘the blame game’ – both States may assume to have jurisdiction over the ‘grey area’.

In such uncertainty, Article 74 of UNCLOS 1982 provides that States shall make every effort to enter into provisional arrangements of a practical nature, which would serve as a temporary settlement until the boundary line is discussed and properly fixed by both nations. A very good example of the application of Article 74 of UNCLOS 1982 was a Memorandum of Understanding (MOU) signed back in 2012 between Indonesia and Malaysia on the maritime boundary delimitation in the Strait of Malacca where the EEZ boundary line has yet to be fixed.

Until and unless Vietnam and Indonesia properly resolve maritime disputes involving EEZ claims in the North Natuna Sea, that particular area is open to be claimed by both nations. Indonesia has rights to send its vessel to carry out naval patrols while Vietnam may conduct activities allowed by UNCLOS 1982 in areas claimed to be part of its EEZ.

China on the other hand does not claim maritime areas around Natuna as its EEZ but as part of its historic waters within the nine-dash-line – the reason why they believe they have rights to fish there. This nine-dash-line claim was rejected by the Permanent Court of International Arbitration (PCIA) through an arbitral award issued in 2016 citing it to be against the spirit of UNCLOS 1982.

In addition, China has also persistently objecting to Malaysia’s submission to the UN in establishing Malaysia’s continental shelf limit in the northern part of the South China Sea.

The territorial hustles between Indonesia and Vietnam and recently with China are uncalled for. It is a fact that Southeast Asian claimant States do not possess as much resources and capacity like China in reasserting their territorial integrity in the disputed maritime area. As such, Malaysia, the Philippines, Vietnam, Brunei and now, Indonesia, should put their differences aside to face China particularly in developing the Code of Conduct (CoC) and the Declaration of Conduct (DoC) in the South China Sea.

South China Sea should be reserved for peaceful purposes and any arising conflicts must be mitigated to ensure that the spirit of UNCLOS 1982 is upheld and respected.

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* Mohd Hazmi Mohd Rusli (PhD) is an associate professor at the Faculty of Syariah and Law, Universiti Sains Islam Malaysia.