The East Sea Institute participates in the CSIS’s 13th Annual South China Sea Conference

In her presentation on new legal developments in the South China Sea, Assoc. Prof. Dr. Lan Anh argued that China tends to “twist” the concepts in the UNCLOS in accordance with their claims, giving the impression that China abides by international law. For example, while UNCLOS states that countries have sovereignty over internal water and territorial sea, have sovereign rights and jurisdiction over EEZ and continental shelf, China in 2009 declared that it had sovereignty over “adjacent waters” and sovereign rights and jurisdiction over “relevant waters”. In 2016, China claimed internal water, territorial sea, EEZ and continental shelf based on “Nanhai Zhudao”, while the South China Sea Arbitral Tribunal Award had ruled out the method of generating the straight baselines from which generating EEZ & continental shelf for the Spratlys.

Assoc. Prof. Dr. Lan Anh also pointed out three recent developments in Chinese legal claims in the South China Sea. First, in March 2023, China announced 33 sites for regular research ship visits, in which there were areas covering other countries’ EEZ in the East China Sea, South China Sea and Indian Ocean. Second, in May, China sent the Xiang Yang Hong 10 vessel to Vietnam's EEZ but claimed that there was no intrusion in other countries’ EEZ. Third, China successfully advocated for the creation of maritime protected areas established agreement on biodiversity in ocean areas beyond national jurisdiction (BBNJ) to not be applied in disputed waters, indirecly affecting the South China Sea. These developments indicate that China is not only arbitrarily interpreting the concepts of the current legal order to justify its claims but also actively taking the lead in shaping new narratives.

Also at the event, United States (US) Assistant Secretary of State for East Asia and the Pacific Affairs Daniel Kritenbrink spoke about the policy of the Biden administration in the South China Sea. This policy consists of three lines of effort, namely diplomacy, maritime capacity-building programs and military operations.

On diplomacy, Mr. Kritenbrink affirmed that the US wants to promote “respect for international law and the rules-based order, freedom and navigation and overflight, unimpeded commerce, and the need for peaceful settlement of disputes”. On maritime capacity-building programs, Kritenbrink said these programs give countries maritime domain awareness and the ability to patrol their claims, therefore further promoting peace and stability. On US operations, he emphasized FONOPs and routine presence operations. According to him, they demonstrate that all countries have the right to fly, sell, and operate anywhere that international law allows.

Mr. Kritenbrink also criticized Chinese survey, coast guard and militia vessels for engaging in “provocative and unsafe maneuvers for weeks inside Vietnam’s EEZ, particularly in the waters around Vietnam’s oil and gas installations”, a reference to Xiang Yang Hong 10’s presence in Vietnam's EEZ in May 2023 that Dr. Lan Anh talked about. As China has not articulated a coherent lawful claim to this area yet, it cannot lawfully interfere with Vietnam’s exploration and recovery of natural resources in Vietnam's EEZ. He also reiterated that the US “supports nations in standing up for their interests and resisting pressure to accept any deal whereby they would be compelled to yield those rights to any other country”.

Other Vietnamese participants from the DAV also took part in the discussions and raise important questions to the panelists. Dr. Nguyễn Hùng Sơn, Vice President of the DAV, asked about the position of the ASEAN in the regional policies and outlooks of the US and middle powers such as India, the United Kingdom, Australia or Canada. Mr. Đỗ Hoàng, research official from the East Sea Institute, talked about US strategic presence in the region via FONOPs, coast guard deployment, “minilateral” groupings and “maritime domain awareness” initiatives.

Watch the conference here.

Written by Hoang Ha, translated by Hoang Dat