South China Sea since 2000

Tensions in the South China Sea appeared to begin in 1974 with military' clashes between China and Vietnam over occupation of islands, with substantial loss of life and which occurred again in 1988. This century, China’s construction of artificial islands from reefs and rocks in the South

China Sea has been the subject of significant controversy, most notably in the South China Sea Arbitration.11 A collision between a US maritime patrol aircraft and a Chinese fighter jet off Hainan Island in 2001, from which the Chinese pilot was not recovered, alarmingly emphasised the risks of miscalculation amidst the tensions.12 There was also serious Chinese harassment of the US Naval Service vessel Impeccable in 2009, as well as others at other times.13 There was a series of confrontations between Chinese and Philippine vessels in 2011 and 2012 (including those discussed in this book)14 as well as Chinese harassment of Vietnamese vessels surveying for oil and gas in 2011.15 There was also a clash at sea between Vietnam and China in 2014 over the placing of an oil rig by China in an area claimed by Vietnam.16 Japan has experienced ongoing incidents with Chinese submarines in its territorial waters as well.17

  • 11 In the Matter of the South China Sea Arbitration Before an Arbitral Tribunal Constituted Under Annex VII to the 1982 United Nations Convention on the Law of The Sea Between the Republic of the Philippines and the People's Republic of China, PCA Case No 2013-19, 12 July 2016; see also the Asia Mantune Transparency Initiative website which provides updated photographs and infonnation on these issues at
  • 12 Kraska and Pedrozo, n 10,290-291; see Kaye, n 6,102-104
  • 13 Kraska and Pedrozo, n 10, 287, 310-311; Carl Thayer, ‘USS Cowpens Incident Reveals Strategic Mistrust Between U.S. and China’ The Diplomat (online), 17 December 2013; Zhiguo Gao and Bing Bing Jia argue that China does not interfere with freedom of navigation in its EEZ in the South China Sea and that the incidents concerning the United States relate to protecting China’s rights in its EEZ in ‘The Nine Dash Line in the South China Sea: History Status and Implications’ (2013) 107(1) American Journal of International Law 98-124,119-120; on this point, see Jing Geng, ‘The Legality of Foreign Military Activities m the Exclusive Economic Zone Under UNCLOS’ (2012) 28(74) Merkourios: Utrecht Journal of International and European Law 22-30 and, for a contrasting view, Jonathan Odom, ‘A China in the Bull Shop? Comparing the Rhetoric of a Rising China with the Reality of the International Law of the Sea’ (2012) 17 Ocean and Coastal Law Journal 201-251 and Jonathan Odom, ‘The True “Lies” of the Impeccable Incident: What Really Happened, Who Disregarded International Law, and Why Every Nation (Outside of China) Should Be Concerned’ (2010) 18(3) Michigan State Journal of International Law 16-22; see generally, ‘Agora: The South China Sea’ (2013) 107(1) American Journal of International Law 95-163 and Chris Rahman and Martin Tsamenyi, ‘A Strategic Perspective on Security and Naval Issues in the South China Sea’ (2010) 41 Ocean Development and International Law 315-333
  • 14 Kraska and Pedrozo, n 10,340-343
  • 15 Ibid., at 323, and generally 313-315
  • 16 Sam Bateman, ‘The Impact of the Arbitration Case on Regional Maritime Security'1 in Shi-cun Wu and Keyuan Zou (eds), Arbitration Concerning the South China Sea: Philippines versus China (Ashgate Publishing, 2016) 227-239,231
  • 17 David Axe, ‘Japan Has a Plan for Dismantling China’s Submarine Fleet’ Forbes Magazine (online), 22 June 2020; Reiji Yoshida, ‘Beijing’s Senkaku

This leads to the more recent incidents. An indicative, rather than exhaustive. list of which includes:

the seizure of a US unmanned underwater vehicle (UUV) launched from USNS Bowditch in international waters in 2016;[1]

the very close manoeuvering of a Chinese warship to within 40 metres of USS Decatur in 2018, warning the US warship to depart the area; and

the shining of a laser into the cockpit of a US Poseidon maritime patrol aircraft in 2020.

Also in 2020, a Chinese warship directed fire control radar at a Philippine frigate in the Philippine exclusive economic zone (EEZ), an act indicating the targeting of a weapon. In 2020. Indonesia saw Chinese fishing vessels in its EEZ escorted by the Chinese Coast Guard in order to prevent enforcement action. In 2019, Vietnam also experienced unauthorised activity in its EEZ by Chinese oil exploration vessel Haiyang Dizhi 8 under escort by the Chinese Coast Guard. There were two separate incidents in 2019 and 2020 of Vietnamese fishing boats sinking after colliding with Chinese Coast

Guard vessels.[2] In 2020, Malaysia also experienced interference with an oil and gas operation in its EEZ by the Haiyang Dizhi 8, escorted by six Chinese coastguard and maritime militia vessels, which then drew in the presence of US and Australian warships. In 2019, the Indian Nary expelled Chinese survey vessels from its EEZ. In 2019, Chinese warships warned a French warship to leave the Taiwan Strait. In 2018, a Chinese warship and two helicopters warned British warship HMS Albion to leave the vicinity of the Paracel Islands group. In 2019, helicopters from Australian warships in the South China Sea experienced dazzling lasers pointed into their cockpits from fishing vessels believed to be Chinese. An important point to note here is China’s widespread use of fishing vessels as part of what is known as the maritime militia, which comprises fishing boats effectively acting as vessels engaged in enforcement on behalf of the government.

All of this activity raises questions about the extent to which it is lawful to use force to prevent passage in the territorial sea which is non-innocent; whether it is lawful to use force against warships to prevent military activity in the EEZ; whether it is lawful to escort vessels involved in resource exploitation to prevent enforcement action against them; and what forceful responses may be lawful in order to assert passage in the face of forceful obstruction and interference, even on the high seas.

  • [1] Goal: Sub “Safe Haven” in South China Sea’ Japan Times (online), 7 November 2012 2 Julian Borger, ‘Chinese Warship Seizes US Underwater Drone in International Waters’ The Guardian (online), 17 December 2016 china-seizes-us-underwater-drone-south-china-sea 3 Andrew Greene, ‘Near-Collision of US Warship and “Aggressive” Chinese Destroyer in South China Sea Captured in Photos’ ,£8C News (online), 4 October 2018 4 Megan Eckstein, ‘Chinese Destroyer Lases U.S. Nary P-8A Plane Operating Near Guam’ USNI News (online), 27 February 2020, 5 Jim Gomez, ‘Philippines Protests China’s Sea Claim, Weapon Pointing’ Associated Press (online), 23 April 2020 6 Stanley Widianto and Agustinus Beo Da Costa, ‘Indonesia Deploj's Fighter Jets to Natuna in Stand-Off With China’ Sydney Morning Herald (online), 8 January 2020 www.smh. com. au/world/asia/indonesia-deploys-fighter-jets-to-natuna-in-stand-off-with-chma-20200108-p53ptq.html 7 Nguyen Quang Dy, ‘It’s Tune for Vietnam and ASEAN to Challenge Beijing in the South China Sea’ The Strategist (online), 13 May 2020
  • [2] Tnnh Le, ‘ China’s Belligerence Under Cover of COX'ID ’ Australian Naval Institute (online), 17 Maj' 2020 2 John McBeth, ‘China Plays Divide and Rule in South China Sea’ Asia Times (online), 3 May 2020 https://asiatimes.eom/2020/05/china-plays-divide-and-rule-in-south-chma-sea; Nguyen Quang Dy, n 23. 3 Mona Thakkar, ‘South China Sea of Brewing Troubles and Its Implications for India’ Modern Diplomacy’ (online), 18 February 2020 https: south-china-sea-of-brewing-troubles-and-its-implications-fbr-india/ 4 Idrees Ah and Phil Stewart, ‘Exclusive: In Rare Move, French Warship Passes Through Taiwan Strait’ Reuters (online), 25 April 2019 5 Tim Kelly, ‘Exclusive: British Navy Warship Sails Near South China Sea Islands, Angering Beijing’ Reuters (online), 6 September 2018, exclusive-bntish-navy-warship-sails-near-beijing-clamied-south-cluna-sea-islands-sources-idU SKCN1LMO17 6 Euan Graham, ‘Australian Pilots Hit With Lasers During Indo Pacific Exercise’ The Strategist (online), 28 Maj' 2019 www aspistrategist org au australian-pilots-lnt-with-lasers-during-indo-pacific-exercise/ 7 Guilfoyle, n 6, 3-6, 18-19; Rob McLaughlin ‘The Law of the Sea, Status and Message Ambiguity’ in Rothwell and Letts, n 9, 136; Robert McLaughlin, ‘The Legal Status and Characterisation of Maritime Militia Vessels’ EJIL Talk (online), 18 June 2019 www.
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