THE volatile South China Sea grabbed the world's attention again yesterday, with the United States, Japan and Australia joining the Philippines in sea drills in its exclusive economic zone (EEZ).
The exercise comes days after the Philippines' Coast Guard spokesman Jay Tarriela complained of the Chinese Coast Guard's "illegal presence, provocative behaviour and escalatory actions in the West Philippine Sea" in a post on X.
The West Philippine Sea is Manila's name for its EEZ. China, on its part, was quoted by Reuters as saying it responded appropriately to illegal activities. If it is just a war of words, perhaps there is a hope that it will end with just that.
But history points to skirmishes, near misses and bullying, not just between China and the disputing littoral states, but between China and the nations engaged in sea drills. Escalation into a war is a real possibility.
Here is why. The South China Sea is a heavily contested maritime area. No surprise. According to the Observer Research Foundation, the South China Sea holds some five billion cubic metres of gas and 11 billion barrels of oil, not to mention other maritime resources such as fish.
It is also commercially critical, with an estimated US$5 trillion passing through every year. Unfortunately, the South China Sea is growing to be a militarised zone, with China stationing fighter aircraft and anti-ship missiles on a few islands.
China claims sovereign rights over 90 per cent of the South China Sea, which clearly infringe on the EEZ of the littoral states as provided for by the United Nations Convention on the Law of the Sea (UNCLOS), says Universiti Sains Islam Malaysia's Associate Professor of Syariah and Law Dr Mohd Hazmi Rusli.
He draws our attention to the difference between sovereignty and sovereign rights as provided for in the UNCLOS. Sovereignty applies to the territorial sea, while sovereign rights apply to the EEZ.
Hazmi's point is that littoral states have exclusive sovereignty over their territorial sea, stretching 12 nautical miles from the shoreline, while there is no such right over the EEZ — a 200-nautical mile stretch — except the right to exploit resources in the area. This is what the Philippines' claims and those of other nations like Malaysia and Vietnam are about.
Saying enough is enough, Manila took its case to the arbitration tribunal. In 2016, the South China Sea Arbitral Tribunal affirmed the Philippines claims. China has since refused to abide by the decision, saying it is not legally binding.
The UNCLOS is the best legal arbiter of maritime disputes, at least among nations that are parties to the 1982 treaty, of which China is one. Treaties such as the UNCLOS are vital as they determine legal relations between nations. To not abide by them would lead to conflicts.
China is certainly not pleased with the UNCLOS, but there is no legal alternative to the UNCLOS. It spells out what is permissible and what is not. Also, it provides certainty over which nation has rights over what and to what extent.
Asean, the Southeast Asian bloc of 10 countries, has tried an alternative — a Code of Conduct. But there is a tug of war between those who want it to be legally binding and those who don't. Until this is resolved, we have to live with sea drills and hope that there is no escalation.