Asia-Pacific, Territorial and Law of the Sea Disputes

South China Sea arbitration: Beijing puts forward her own views Part Two

December 23, 2015 Guest Author Leave a comment

This is the second installment in a four-part series devoted to China’s 7 December 2014 document, putting forward her views on the Philippines’ international arbitration case on the South China Sea. Although Beijing is refusing to take part in the proceedings, as confirmed following the Court’s 29 October 2015 ruling on jurisdiction, by issuing this document, and communicating in other ways with the Court, the PRC has failed to completely stay aloof from the case. It is thus interesting to analyze China’s narrative as laid down in that document. Read Part One.

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Putting the cart before the horse? China argues delimitation of land territories must come first. The text affirms (6) that “Since the 1970s, the Philippines has illegally occupied a number of maritime features of China’s Nansha Islands, including Mahuan Dao, Feixin Dao, Zhongye Dao, Nanyao Dao, Beizi Dao, Xiyue Dao, Shuanghuang Shazhou and Siling Jiao. Furthermore, it unlawfully designated a so-called ‘Kalayaan Island Group’ to encompass some of the maritime features of China’s Nansha Islands and claimed sovereignty over them, together with adjacent but vast maritime areas,” claiming sovereignty “over Huangyan Dao of China’s Zhongsha Islands and illegally explored and exploited the resources on those maritime features and in the adjacent maritime areas,” and (10) argues that in any case it is not possible to rule “on whether China’s maritime claims in the South China Sea have exceeded the extent allowed under the Convention” until “the extent of China’s territorial sovereignty in the South China Sea” has been determined.

This argument is central to China’s case, being the opposite of one of the pillars of Manila’s arbitration bid, namely that it only concerns the extent and manner that rights are exercised, rather than territorial delimitation, which is out of bounds to the court due to Beijing’s derogation (that is, opt out from that aspect of the convention, meaning that compulsory arbitration does not extend to territoria delimination in the case of China), which Manila acknowledges. To press the issue further, Beijing cites the ICJ, (11) pointing out that “the land dominates the sea.” That is, it argues that one cannot discuss whether the sea is being used in accordance with UNCLOS before a full determination of a country’s land territory has been made, a determination not open to the Permanent Court of Arbitration without Beijing’s consent. The text calls (14) Manila’s attempt to examine the former “contrived packaging” which “fails to conceal the very essence of the subject-matter of the arbitration, namely, the territorial sovereignty over certain maritime features in the South China Sea.” Another, less aggressive, term employed by the text (18) to press home the same point is “putting the cart before the horse.” To support this view, the document argues (18) that there is no precedent “in relevant cases” of any “international judicial or arbitral body” having “ever applied the Convention to determine the maritime rights derived from a maritime feature before sovereignty over that feature is decided.” While international tribunals like the PAC are not, formally speaking, bound to the doctrine of precedent (stare decisis), they do tend to follow previous rulings. However, there have not been a large number of cases, much less a coherent set of rulings, on this issue. Therefore, we may say that there is simply no consistent body of case law on whether it is possible to examine compliance with UNCLOS of a country’s practice at sea in advance of territorial determination.

“China claims reclamation work in the South China Sea is in accordance with international law.”

Appropriation of low-tide elevations: Beijing argues not up to interpretation of UNCLOS. Concerning the “low-tide elevations” that Manila claims to be such and has included in its arbitration bid, saying that they cannot be appropriated, China’s document (23 and 24) argues that “whether or not” they “can be appropriated is plainly a question of territorial sovereignty.” Formerly often referred to as “drying rocks” or “banks,” UNCLOS defines “low-tide elevations” as “a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide.” The Chinese paper states that it “will not comment” on whether they are “indeed low-tide elevations,” while pointing out that “whatever nature those features possess, the Philippines itself has persisted in claiming sovereignty over them since the 1970s,” citing “Presidential Decree No. 1596, promulgated on 11 June 1978” whereby Manila “made known its unlawful claim to sovereignty over some maritime features in the Nansha Islands including the aforementioned features, together with the adjacent but vast areas of waters, sea-bed, subsoil, continental margin and superjacent airspace, and constituted the vast area as a new municipality of the province of Palawan, entitled ‘Kalayaan.’” China’s position paper cites later Filipino legislation, arguing that while pretending to adjust claims to UNCLOS it does “not vary the territorial claim of the Philippines to the relevant maritime features, including those it alleged in this arbitration as low-tide elevations.” The text accuses Manila of contradicting herself by first asserting in “Note Verbale No. 000228, addressed to Secretary-General of the United Nations on 5 April 2011” that “the Kalayaan Island Group (KIG) constitutes an integral part of the Philippines,” the KIG including among others “the very features it now labels as low-tide elevations,” with the “only motive” being to deny them to China and “place them under Philippine sovereignty.” Furthermore, the position paper argues (25) that UNCLOS “is silent on this issue of appropriation” of low-tide features, citing the ICJ in the 2001 Qatar v. Bahrain ruling, where it stated that “International treaty law is silent on the question whether low-tide elevations can be considered to be ‘territory.’ Nor is the Court aware of a uniform and widespread State practice which might have given rise to a customary rule which unequivocally permits or excludes appropriation of low-tide elevations.” The text also cites a later 2012 ICJ case, the “Territorial and Maritime Dispute (Nicaragua v. Colombia),” where it stated that “low-tide elevations cannot be appropriated” but argues that the Court “did not point to any legal basis for this conclusory statement. Nor did it touch upon the legal status of low-tide elevations as components of an archipelago, or sovereignty or claims of sovereignty that may have long existed over such features in a particular maritime area,” adding that “the ICJ did not apply the Convention in that case.” Therefore, China’s position paper argues, “Whether or not low-tide elevations can be appropriated is not a question concerning the interpretation or application of the Convention.”

Taiwan: lurking on the background. Taiwan and the “One-China Principle” are not absent from China’s document either, the text (22) accusing Manila of committing a “grave violation” of the principle for omitting Taiping Dao (Island) from the list of “maritime features” described as “occupied or controlled by China.” Instead, the text describes it as being “currently controlled by the Taiwan authorities of China.” This is a reminder that the conflict over the South China Sea is connected with that over Taiwan, in a number of ways. We may ask ourselves whether Manila was departing here from her “One-China Policy.” Was this a warning shot, or merely another example of how state practice concerning Taiwan is moving (sometimes inadvertently) away from Beijing’s strict position in many countries.

The burning question of freedom of navigation and overflight. Given the current controversy over FON (Freedom of Navigation) operations by the US Navy, along or together with partners and allies, close to China’s artificial islands in the South China Sea, this is an aspect of Beijing’s paper of great interest to observers. Concerning this, section 28 stresses that “China always respects the freedom of navigation and overflight enjoyed by all States in the South China Sea in accordance with international law.” While this is in line with repeated assertions by Chinese authorities, it prompts further doubts on the exact nature of Beijing’s claims, in the sense that if all it was demanding was an EEZ then freedom of navigation and overflight would simply flow from international law, without the need for any concession by the coastal state. The issue is made more complex by the fact that in Beijing’s view the rights of coastal states are more extensive than in the eyes of countries such as the United States, going as far as including the right to authorize or deny military activities such as electronic intelligence gathering, which has been the source of a number of incidents, some of them fatal. Thus, if what China is claiming is an EEZ, is Beijing making a concession and accepting a lesser set of coastal state rights in the particular case of the South China Sea? Alternatively, should we read “freedom of navigation and overflight” as being restricted to civilian ships and planes, or at least not including any activities such as ELINT (electronic intelligence) gathering, prejudicial to the coastal state? Other questions may be prompted by China’s assertion. For example, does this also apply to territorial waters around Chinese islands in the South China Sea? A question made more complex by the fact that there is no agreement over which islands are islands there, in particular given the extensive reclamation work taking place.

Read the next installment here.

Alex Calvo is a guest professor at Nagoya University (Japan) focusing on security and defence policy, international law, and military history in the Indian-Pacific Ocean Region. A member of the Center for International Maritime Security (CIMSEC) and Taiwan’s South China Sea Think-Tank, he is currently writing a book about Asia’s role and contribution to the Allied victory in the Great War. He tweets @Alex__Calvo and his work can be found here.

Podcast, Sea Control: Asia-Pacific (ASPI)

Sea Control 104 – Vietnam’s Foreign Policy

December 22, 2015 Guest Author 1 Comment

Coming to you from Washington DC, Natalie Sambhi, Analyst at the Australian Strategic Policy Institute interviews Phuong Nguyen, Associate Fellow with the Southeast Asia Chair, Center for Strategic and International Studies on Vietnam’s evolving foreign policy and strategic posture. Natalie and Phuong discuss the 2014 Haiyang Shiyou 981 oil-rig incident between Vietnam and China and the complex ties between both countries, Vietnam’s new strategy in resolving maritime disputes, the limits of expanding security cooperation with the United States, and the increasingly salient role of the Association of Southeast Asian nations. Phuong also highlights major developments in Southeast Asia to look out for in 2016.

DOWNLOAD: Vietnam Foreign Policy

Asia-Pacific, Capability Analysis, Current Operations

The Cabbage and the Submarine: Why Fears of Chinese Control of the Seas are Overstated

December 22, 2015 Guest Author Leave a comment

The following piece is cross-posted from our partners at the CDA Institute as part of an ongoing content sharing relationship. You can read the article in its original form here.

CDA Institute Analyst Ariel Shapiro comments on the proliferation of submarines and issue of sea denial in the Asia-Pacific.

In 2013, Major General Zhang Zhaozhong, an outspoken senior official in the Chinese People’s Liberation Army, described China’s strategy in the South China Sea by referring to a cabbage. In regards to the Scarborough Shoal, a group of rocks disputed by China and the Philippines, the Chinese strategy is to inundate the area with a large fleet of military and commercial ships of all sizes, to surround the contested rocks like the layers of a cabbage. What essentially amounts to a blockade, disguised by friendly vegetarian metaphors, is a manifestation of the more assertive Chinese foreign policy undertaken by President Xi Jinping. In this post, I will discuss how the recent build-up of regional naval fleets in Asia is a response to China’s increasingly assertive policy – and why this is cause for concern for China.

In recent years, there has been a buildup of military submarines in the Asia-Pacific, which Michael Wesley at the Australian National University refers to as a “bonanza.” Despite multiple changes in leadership over the past few years in Australia, the massive project to replace the Royal Australian Navy’s six aging Collins-class submarines with 12 new state of the art diesel submarines is still well underway (as a point of comparison, Canada currently has four Victoria-class submarines, three of which are operational, and all of them several years older than the submarines Australia is replacing).

The Australian submarine procurement process brings to the forefront the changes that are happening in another key player in the Asia Pacific region: Japan. For the first time since the 1960s, new legislation in Japan permits the country’s world-renowned industry to export military technology. The top contender for the contract to replace the Australian submarines is the Soryu-class, developed by Japanese giant Mitsubishi. The Soryu-class diesel submarine is notable for its air-independent propulsion technology, which allows the vessel to remain underwater without surfacing for significant periods of time compared to other diesel submarines. Japan, of course, is not only developing the submarine for export; it is in the midst of increasing its total submarine fleet form 16 to 22.

Australia is not the only country in the region increasing its submarine fleet. In September 2015, the Indonesian House of Representatives announced a plan to purchase two Kilo-class submarines from Russia; the nation comprises 17,000 islands, and senior military planners estimate that the country needs at least 12 submarines to adequately patrol its territorial seas. Across the Strait, Lieutenant-Colonel Aaron Beng of the Singapore Armed Forces analyzes submarine procurement in Asia from his country’s perspective. He notes Singapore’s recent acquisition of two Vastergotland-class submarines from Sweden, bringing the fleet’s total to six; the refurbishment of two French Scorpèné-class submarines by Malaysia; and the ongoing purchase by Vietnam of six Kilo-class submarines from Russia. One can also include the new Thai ruling military junta decision to purchase submarines from China. Not to be outdone, the first of India’s six new Kalvari-class diesel electric attack submarines, based on the French Scorpèné, are currently undergoing sea-trials.

What is the motivation for this submarine acquisition? The submarine is, in terms of dollar-per-value, the best tool for sea denial. This maritime strategy is an asymmetric one. Instead of great powers building up fleets to fight for control of the seas, as was the case in the lead up to the First World War, sea denial is a strategy used by weaker powers to deny access to their coastal areas by larger powers; the maritime equivalent of guerilla warfare. Essentially, a small, stealthy, relatively inexpensive submarine can pose a serious threat to an advanced aircraft carrier or major surface combatant.

For example, Singapore’s submarines will add to its defence posture of the “poison shrimp”; while the Republic has neither the ambition nor the capacity to control the seas, it does indeed have the capacity to cause significant damage to a larger power that would attempt to threaten its vital interests (which, due to its small size and the global nature of its economy, include shipping), much like eating a poisoned shrimp can make a much larger animal very ill. As Peter Briggs at the Australian Strategic Policy Institute notes, navies have submarines not only to serve in a potential war, but for “situations short of conflict” – their mobility, endurance, stealth, and payload make them an essential tool in preventing conflict through deterrence.

This brings us back to China and the cabbage strategy. In the South China Sea, despite the unresolved nature of competing claims over various small islands, China is continuing with its policy of reclaiming land and building infrastructure. Last week, tensions flared as the USS Lassen, an American destroyer, sailed in what Washington claims are international waters but which China considers within its territorial sea. While the US Navy (USN) remains the most advanced and important navy force in the Pacific Ocean, China’s growing fleet of advanced surface and undersea ships gives it a sea denial capability against America’s more formidable force – especially when combined with its on-shore anti-access and area denial (A2/AD) assets.

Smaller countries in the region are eager to build up their own deterrence and sea denial capacity to protect their shipping lanes and vital interests in an era where the United States can no longer underwrite global maritime security, and submarines are perhaps the best way to do so. While this strategy is aimed primarily against China, Beijing, in turn, is building up its own fleet towards a strategy of sea denial against the more powerful USN. However, China has also increased the responsibilities placed on its forces and has turned otherwise uninvolved actors into maritime rivals. In addition to asserting its primacy over its coasts and capacity to dominate Taiwan, which remains at the core of China’s security policy, it now also actively seeks to assert Chinese freedom of maneuver over the South China Sea and eventually rival American control of wider areas of the Pacific Ocean.

While much has been written about the Sino-American rivalry in the Pacific, the role of smaller Southeast Asian countries is too often forgotten. The USN is still far superior, for the time being, to the Chinese People’s Liberation Army Navy. Yet any assessment of the strategic balance must take into account other important players in the region, such as Australia, Japan, Singapore, India and Vietnam, all of which are showing a tendency to bandwagon with the United States – making any potential Chinese dominance even less foreseeable.

At a recent conference at the University of Ottawa, Professor Jean-Pierre Cabestan, one of the foremost French experts on China, noted how Chinese President Xi Jinping’s success in making China more assertive on the world stage has only provoked a “rebalancing” of the United States and its allies towards China. Indeed, if the cabbage strategy continues to cause horizontal proliferation (the number of countries building up military capacity) as well as vertical proliferation (pre-existing powers increasing their capacity, such as the development of new missile systems on littoral combat ships in the United States), China’s aggressiveness may have caused it to lose more influence than it has gained.

Ariel Shapiro recently graduated from McGill University in political science and economics and is currently an Analyst at the CDA Institute.

Global Analysis

Upcoming Topic Weeks Announcement

December 21, 2015 Dmitry Filipoff Leave a comment

CIMSEC Topic Weeks have always been an excellent way to engage our community of defense and foreign policy professionals and academics to highlight issues that deserve greater attention. CIMSEC’s upcoming topic weeks will be listed well in advance in this post to give our prospective authors more lead time to develop their ideas and contribute superb publications. Expect subsequent announcements at the beginning of each month listing specific dates and deadlines for individual topic weeks.

Note: The schedule has been amended to accommodate the Distributed Lethality topic week in February.

January: The Littoral Arena

Submissions due by Thursday, January 21.
Topic Week runs from Monday, January 25 to Sunday, January 31.

The littorals only constitute around 15 percent of the world’s oceanic expanse, yet 60 percent of the world’s urbanized populations are located within sixty miles of the coast, including 80 percent of the world’s capitals. The U.S. Navy has only recently drawn attention to the littoral domain after decades of emphasizing blue water sea control. What are the unique warfighting challenges posed by the littorals? What capabilities and operating concepts best enable power projection in this complex environment? Can navies optimized for blue water operations effectively translate their experience into the littorals?

February: Distributed Lethality

Submissions due by Sunday February 21
Topic Week runs from February 22-February 28.

The Distributed Lethality Task Force partnered with CIMSEC to launch a topic week exploring the concept and outlined various lines of inquiry the task force is interested in pursuing. Distributed Lethality is an initiative launched by Navy leadership to explore the warfighting benefits offered by dispersing surface combatants, employing them in new roles, and adding more firepower across the fleet.

PACIFIC OCEAN (May 23, 2014) The guided-missile destroyers USS Halsey (DDG 97), USS Michael Murphy (DDG 112) and USS Gridley (DDG 101) are underway in formation during a strait transit exercise. The Carl Vinson Carrier Strike Group is underway conducting a composite training unit exercise off the coast of Southern California. (U.S. Navy photo/Released) — PACIFIC OCEAN (May 23, 2014) The guided-missile destroyers USS Halsey (DDG 97), USS Michael Murphy (DDG 112) and USS Gridley (DDG 101) are underway in formation during a strait transit exercise. (U.S. Navy photo/Released)

March: Naval Humanitarian Assistance/Disaster Relief (HA/DR)

Time and time again, naval forces have performed admirably as first responders to devastating natural disasters. Naval forces can rapidly maneuver to disaster struck areas and facilitate the transfer of millions of pounds of critical supplies in a matter of weeks. The Asia-Pacific is especially prone, with over half a million lives lost and $500 billion in damages incurred within the last decade due to natural disasters. Can HA/DR operations refine warfighting skills? What are the political challenges and benefits of deploying naval forces in support of humanitarian operations? Could demand for naval aid increase as sea levels risen and climate change progresses?

Airmen set sail aboard USNS Mercy for humanitarian mission — Hospital ship USS Mercy.

April: Sino-Indo Strategic Rivalry

Much has been made of great power competition in the Asia-Pacific, with the U.S. and China considered the main actors, but India is a powerhouse in the making. India’s rapidly growing economy and modernizing armed forces ensures its relevance in the Asia-Pacific. Prime Minister Modi aligned India with U.S. policy towards South China Sea maritime disputes with a joint statement stating “We affirm the importance of safeguarding maritime security and ensuring freedom of navigation and over flight throughout the region…” Additionally, the Indian peninsula juts 1000 km into the Indian ocean, providing India’s carrier equipped navy superb positioning to affect sea lines of communication flowing towards the straits of Malacca. How might this strategic rivalry evolve, and is there precedent and potential for conflict?

INDIA-CHINA-DIPLOMACY — The Deputy Chief of General Staff of the Chinese PLA, Gen. Ma Xiaotian calls on the Chief of Naval Staff, Admiral Nirmal Verma, in New Delhi on December 09, 2011.

Authors can send get in touch with the editorial team and send their submissions to Nextwar@cimsec.org. Topic weeks are competitive and not all submissions may be accepted, so we encourage thoroughly researched contributions. CIMSEC topic weeks are our opportunity to make our mark as a community on the big discussions, and we look forward to promoting your insights.

Dmitry Filipoff is CIMSEC’s Director of Online Content. Follow us @CIMSEC.

Fostering the Discussion on Securing the Seas.