On December 15th 2016, the Chinese Navy seized an American unmanned underwater vehicle (UUV) operating in international waters off the Western coast of the Philippines. TheUSNS Bowditch, an unarmed T-AGS class hydro-graphic survey ship, was being shadowed by a People’s Liberation Army-Navy (PLAN) salvage vessel identified as a Dalang-III class (ASR-510).
The UUV had surfaced as part of a pre-programmed instruction, and sent a radio signal marking it’s position for pick-up. As the Bowditch was preparing to recover the drone from the water, a small boat crew from the Dalang III raced in and plucked the unmanned vessel. The incident occurred approximately 50 nautical miles northwest of Subic, Luzon.
While the exact type of drone is unknown, there have been several instances of U.S. NavySlocum Gliderssnagged in local fishermens’ nets or washed ashore on beaches in the Philippines. This type of drone is not weaponized, and is used to collect a variety of environmental readings such as water temperature and salinity, to improve forecasting accuracy of extreme weather such as typhoons. The UUV uses wave movement to propel itself without any on-board engines, with an endurance time of months. The Department of Defense estimates the seized drone’s value to be around $150,000.
The crew of the Bowditch immediately contacted the PLAN vessel on bridge-to-bridge radio asking for the return of the drone. The PLAN vessel reportedly acknowledged the message, but then stopped responding and sailed away with the UUV. On Friday the 16th, the U.S. State Department issued a formal protest, or demarche, with the Chinese Department of Foreign Affairs, demanding an immediate return of the drone. At the time of this article’s publication, the Chinese government has not responded.
Motivations behind the seizure are unclear, but tensions between the two nations have recently increased over President-Elect Donald Trump’sconversationwith Taiwan President Tsai Ing-wen in what Beijing considers a blatant disregard of the standing One-China Policy. It could also have been a quick riposte to undermine Head of Pacific Command U.S. Navy Admiral Harry Harris’recent commentsthat the US is “ready to confront [China] when we must.”
Notably, the Philippines has chosen to remain silent over the incident. While traditionally a U.S. ally, the election of President Rodrigo Duterte has brought a deterioration of relations between Manila and Washington. Thanks in no small part to Duterte’s bloody prosecution of an Anti-Drug war punctuated by high civilian casualties and accusations of extra-judicial killings, a large multi-million dollar U.S aid package was just withdrawn this week – prompting the volatile President to threatenabrogation of the Visiting Forces Agreement. The Philippine Department of National Defense indicates they had no idea that the incident was ongoing; highlighting the enormous capability gap the Philippines has regarding Maritime Domain Awareness. The Philippine government became aware via communications from the U.S. State Department to their embassy in Washington D.C.
Coupled with Duterte’s increasingly close orbit of China following last month’s visit to Beijing, the United States could potentially find itself without bases that would ease the mission of maintaining a robust presence in the South China Sea. Recent analysis shows China has expanded militarizationof their Spratly Island outposts by placing what appear to be defensive anti-aircraft and close-in weapon systems on Hughes and Gaven reefs, while fortifications have sprouted on Fiery Cross, Mischief and Subi reefs; the latter group are in close proximity to other claimant outposts in the region.
Taken together, China appears to be using it’s famous “Salami-slicing” techniques to slowly ratchet up its presence and capabilities within the region without crossing any significant “bright lines” leading to a military confrontation. The UUV seizure is consistent with opportunistic interference of U. .Navy operations while striking propoganda points with regional states. Notably, the unresponsiveness of Philippines to an international incident within their EEZ tells a tale that the U.S. cannot count upon its traditional ally going forward to assist in the presence mission.
Armando J. Heredia is a civilian observer of naval affairs. He is an IT Risk and Information Security practitioner, with a background in the defense and financial services industries. The views and opinions expressed in this article are those of the author, and do not necessarily represent the views of, and should not be attributed to, any particular nation’s government or related agency.
Featured Image: Slocum Ocean Glider. (University of South Florida)
U.S.-Philippine relations have started to encounter significant challenges since the inauguration of President Rodrigo Duterte on June 30, 2016. President Duterte has made contentious statements which have been supported and accepted by the Philippine general public in spite of the controversial nature of his comments.
Given the historically long-lasting relationship between the United States of America and the Republic of the Philippines, both nations still maintain positive interactions. Regardless of its national strength, the Philippines has always been a significant supporter of the United States in the Western Pacific region and a strategic non-NATO ally. America retains a positive image in the Philippines, gaining wide approval from its citizens for its influence and policies in the region.
Given the conflicting situation between the positive perception of the U.S. of the general public and the negative criticism from President Duterte on U.S. policies, how should we make a fair assessment about the future of interactions between the White House and the Malacanang Palace throug the rest of Duterte’s presidency? The author would like to provide several reference gauges for inspecting U.S.-Philippines relations.
First, security and military cooperation is undeniably a vital dimension of U.S.-Philippines relations. The Mutual Defense Treaty between the Republic of the Philippines and the United States of America signed on August 30, 1951 in Washington, D.C. is the solid foundation defining the alliance relationship between these two security partners. It was an elevation from the 1947 Military Bases Agreement. During the Cold War era, the United States maintained operations from the Clark Air Base until November 1991. On the other hand, the Subic Bay Naval Complex and several other relatively insignificant and subsidiary establishments in the Philippines remained operational until the effort of extension for another ten-year lease offer was rejected by the Philippine Senate on September 16, 1991. Eventually, U.S. forces withdrew from Subic Bay on November 24, 1992.
As the regional security situation gradually changed after the Cold War, the United States and the Philippines have regained momentum to enhance their security cooperation. The Visiting Forces Agreement was settled in February 1998 and subsequently led to the arrangement of the routine U.S.-Philippines joint military exercises names Balikatan, a Tagalog term meaning “shoulder-to-shoulder” as part of the War on Terror. Alternatively, the Philippines government also benefited from counterterrorism support against the Abu Sayyaf and Jemaah Islamiyah groups in areas previously afflicted by insurgency movements such as Basilan and Jolo. Apart from the Visiting Force Agreement, another Mutual Logistics Support Agreement was also signed in November 2002. Finally, the Agreement on Enhanced Defense Cooperation settled on April 28, 2014 symbolized the peak of U.S.-Philippines security cooperation in recent years. This framework agreement indeed expanded the scope of the 1951 Mutual Defense Treaty.
Therefore, we may identify the ceiling of U.S.-Philippines security cooperation for now as the 2014 Enhanced Defense Cooperation Agreement and the floor being the 1951 Mutual Defense Treaty. The possibility of returning to the scale and degree of defense cooperation during the Cold War era as U.S. forces retain overseas bases in the Philippines is relatively slim. The maneuvering space for President Duterte to play political games is well defined unless he would like to have a structural change, which he already firmly denied. Comparatively, cancelling the joint exercise could be a good bargaining chip. Nonetheless, it has not undermined the overall structure yet. Furthermore, the diplomatic game will not be played by President Duterte alone. The future development of U.S. Asia policy after the new administration will be more influential to the U.S.-Philippines security relations. Nonetheless, the fundamental truth that we should bear in mind is that a single dimension does not speak for all.
Second, as we try to observe U.S.-Philippines relations, we must understand that these actors do not interact alone. There are other regional players who may also influence the overall strategic equation or security formula. The responses from these regional players should be a concern as we examine the interactions between the United States and the Republic of Philippines. As in aforementioned situations, there are various considerations within the foreign policy formulation process. Accommodating animosities or inconsistencies occurring from various dimensions of the interactions among states should be a matter of reality that all parties should accept.
Unity of opposites is a general practice of diplomacy nowadays in the East Asia. To assure their economic prosperity, every state would enhance their relationship with the People’s Republic of China. On the other hand, a certain level of concern in the security dimension would force all parties in the region to keep a positive relationship with the United States. As President Duterte emphasizes his desire to improve the relationship between Beijing and Manila, it might be necessary to surrender elements of the U.S.-Philippines relations as the price. Certain statements condemning Washington seem to be political maneuvers to please Beijing. Nonetheless, all these improvised grumbles are magnified by the press. Their importance was overstated since no structural change had been attempted yet.
Though unpleasant to Washington and to the alliance states in the region, the value of delivering formal responses to Duterte’s spontaneous statements does not exist. Most of the regional players may not enthusiastically react to Manila’s provocations unless certain substantial maneuvers may actually undermine the balance of power or the security structure. The interactions between the White House and the Malacanang Palace do matter to other regional players. Their responses are the vital references and the essential driving forces for managing U.S.-Philippines relations. Policymakers should expand their scope of consideration by observing other regional players and expanding their calculation beyond Manila and Washington.
Third, we must never forget that President Duterte is only the head of the administrative arm of the Philippine government. The administration is unquestionably playing the center role in the diplomacy. Nonetheless, other branches such as the legislative and judicial institutions of the Philippine government may also be influential to U.S.-Philippines relations. We should never forget that the attempt to extend the lease of Subic naval bases was blocked by the Philippine Senate in 1991.
Moreover, if President Duterte tries to retract from the present position of the Philippine government claiming the sovereign rights to those land features and maritime jurisdictions in the South China Sea, the possibility of facing an impeachment could not be totally excluded though these islands and reefs were never specified by the Philippines Constitution like the rest of its legal territories. These unconstitutional land features are so closely associated with national esteem now that no one would have the courage to point out the flaws of their own argument in the Philippines. So, checks and balances on the diplomacy should be another appropriate reference to consider the future of Duterte’s adventurism and opportunistic ambition.
Last but not least, most diplomatic plots are slow-cook stews, not fast food. Beijing’s reactions towards Duterte’s political maneuvers of rapprochements are very cautious. Civilizations with long memories will not forget the situation that occurred during the visit of President Benigno Aquino III to China in August 2011. Many agreements containing financial support and cooperation were signed and a joint communique confirming that those disputes in the South China Sea would be solved through consultations and negotiation was publicized. However, President Aquino broke his promise almost right after the visit and submitted the arbitration case eight months later.
All surprise maneuvers in diplomacy are not trustworthy. This is especially true when those involved have a conviction of dialectic principle known as “from change in quantity to change in quality” who will never trust any unexpected turn about. When comparing the long existing basis of the U.S.-Philippines relations, it is very hard to believe that the term of “separation” with the United States as President Duterte said in Beijing can be a meaningful long-term policy. Many political statements will be eventually proven to be void promises. Duterte’s diplomacy at the moment is matched with good timing. As the United States is at the peak of its presidential campaign, few would be distracted by Duterte embracing of Beijing. No decisive policy change toward the Philippines can be decided before at best next spring, when the national security team of the new U.S. administration attends its positions and forges the consensus. In other words, President Duterte would have several months to alleviate the uneasiness of the new U.S. leadership. The political calendars separately existing in Washington and Beijing should also be good references to scrutinize the future of U.S.-Philippines relations.
Although there are many transitional phenomena with the capacity to attract our attentions, the ultimate principles securing the basic structure of the alliance should never be neglected. These gauges would provide a better lens for us to observe future interactions between Manila and Washington.
Dr. Ching Chang was a line officer in the Chinese Navy for more than thirty years. As a visiting faculty member of the China Military Studies masters degree program at the National Defense University, ROC, he is recognized as a leading expert of the People’s Liberation Army with unique insights into its military thinking.
Featured Image: President Duterte speaks during a visit at a military camp in the Philippines. (Francis R. Malasig /EPA/Newscom)
Part I examined the military implications of China’s continued “military” actions versus Japan in the East China Sea or the United States and other countries in the South China Sea if China were to establish an ADIZ. Part II examines whether China has real economic or trade leverage to force other countries, including the United States, to support its point of view regarding the ruling. Part II also analyzes the related question of whether there are costs to China from continuing to ignore the legal ruling and ways in which China can be legally compelled to comply.
By Mark E. Rosen
Embargoes and Sanctions
Shortly after the Tribunal ruling, China’s Deputy Minister of Trade was careful to encourage Chinese citizens to not boycott the U.S. and the Philippines; however, that does not mean that sanctions and boycotts are off the table. Bloomberg reported on August 4th that China will likely resume trade retaliation tactics against South Korea for its decision to deploy U.S. THAAD missiles to counter North Korean missile launches. Korea’s International Trade Association has identified 26 measures currently in place to restrict trade and is expecting more non-tariff barriers such as bogus safety inspections of inbound products, establishment of new licensing requirements, and manipulation of quarantine and safety inspections to frustrate Korean imports.
The above actions are not unprecedented. In 2000, China banned all imports of South Korean mobile phones and polyethylene in retaliation for Seoul’s increase of duties on Chinese Garlic. In 2010, Chinese Customs Officials halted the shipments of rare earth minerals destined for Japan (for user in hybrid cars, wind turbines and guided missiles) as a form of protest for detention of a Chinese fisherman fishing near the Senkakus. The United States has also been victimized by China’s extensive unfair trade practices (dumping and illegal subsidies), theft of intellectual property, and hacking of U.S. companies. Working within the WTO system, the U.S. has filed a record number of suits versus China in the WTO on behalf of U.S. poultry producers and is now considering the unilateral institution of a total ban on Chinese steel imports because of illegal price fixing and other illegal actions by Chinese steel producers.
The use of non-tariff barriers has been a favorite ploy by countries to sneakily frustrate imports to protect local producers while at the same time staying compliant with WTO rules. As for embargoes, WTO (Art 21) recognizes that states can impose measured national security, health, and welfare controls on both exports and imports to protect their citizens’ “essential security interests” or to prevent the proliferation of weapons. Using this exception, China passed a new national security law in 2015 which required foreign technology companies to be “secure and controllable” by Chinese National Security Agencies as a way of pushing out foreign technology firms like Microsoft, Apple, and Cisco in favor of local suppliers. However, there are limits to this type of activity, as witnessed in the 1998 Shrimp Turtle Decision in which a WTO Panel found that a U.S. ban on shrimp from India, Malaysia, Thailand and Pakistan (because those states shrimp fishermen had allegedly killed Sea Turtles) was illegal because controls can only be used to immediately protect one’s own citizens from harm. Controls cannot be used to “send signals” or indirectly pressure an exporting state to reform.
In the short term, China has considerable legal room to maneuver should it wish to impose national security controls or erect non-tariff barriers to punish Japan, the United States, the Philippines, and others for opposing them in maritime disputes. WTO cases are very time consuming to document and litigate. However, that same legal maneuver space can also be exploited by the United States and others to frustrate Chinese imports. Therefore, China should do the math and assess whether they have more to gain or lose by instituting de facto embargoes.
In 2015, China amassed a $365 billion merchandise trade surplus with the United States. Chinese businesses have put this cash to good use by investing in new plants and equipment, educating its young people abroad, and investing billions in the U.S. and other safe offshore markets. This is not unique to the U.S.; China has a global trade surplus of $600 billion. It continues to have small trade deficits with Japan and South Korea and its principal imports are electrical and industrial machinery (no. 1 and 3), oil (no. 2), and ores (no. 4). This cursory analysis of China’s economy overwhelmingly demonstrates that China is highly dependent on international trade to fuel its economy. China’s offshore investments of its U.S. trade surplus helps China diversity its holdings outside of Asia. China is also heavily reliant on international suppliers for the raw materials it lacks and risks a great deal by starting a trade war in which it is deprived access to the U.S. and other foreign markets.
History confirms that China would likely suffer more than the U.S. or Japan, Australia, and the Philippines as a result of an embargo. Tough Allied embargoes against Nazi Germany and Italy proved ineffective when self-interest among allied business interests caused the embargoes to leak or, in the case of Germany, forced innovation when Germany developed synthetic substitutes for oil and other commodities. When the U.S. embargoed wheat exports to the USSR in 1973, Canada and Australia picked up the business. The latter is especially important in the current situation. If China were to stop buying Australian ore or Japanese finished products, the world economy is sufficiently diverse to compensate for some of these losses. After the U.S. embargoed exports of scrap iron, steel, and oil to Japan and froze Japan’s assets, Japan was put into the position of having to choose between fighting for additional raw materials or abandoning their plans for a “New Order” in Asia. It is unlikely that any country would launch a Pearl Harbor attack if China were to embargo their products; however, embargoes have a high potential for “blowback” and could result in unintended consequences to the PRC’s overseas businesses, mines, and industrial operations.
It is also fiction that the U.S. is vulnerable to Chinese action because of its stake in the U.S. public debt (20% foreign owned). In reality, China buys U.S. sovereign debt because it is safe, liquid and can be used by China to finance dollar denominated international transactions (such as oil). China’s central bank also buys U.S. sovereign debt to maintain the exchange rates for renminbi and help drive down the costs of Chinese exports. Also, U.S. sovereign debt is overwhelmingly held by U.S. domestic entities (66%); such that were China to dump its nearly $1 trillion in U.S. debt, that debt will simply be purchased by domestic and foreign purchasers – as happened in August 2015 when China reduced its U.S. debt holdings by $180 billion. For China, the impact of “a broad scale dump of U.S Treasuries…would be that China would actually export fewer goods to the United States.”
Sanctions and embargos tend to “leak” because the global market will almost always produce another supplier or purchaser of something that is being withheld from the international market. Philippine bananas and mangos also taste good in Tokyo, Paris, and New York. Given China’s extreme dependence on international trade to fuel its domestic growth and overseas investment, it would be almost suicidal for China to engage in actions that might restrict its access to foreign markets. Likewise, a government-lead boycott of foreign products would, apart from the legal repercussions, would have extremely destructive impacts on its economy since it still relies heavily on imports of agricultural products, industrial equipment (from mostly Japan and Korea), and metal ores for manufacturing applications. Finally, dumping U.S. debt might cause some angst but, in the long run, U.S. debt instruments would be purchased by investors in the U.S. and other countries.
Continued Trashing of the Tribunal Decision and International Law in General
China continues to condemn the Tribunal ruling. The traditional attacks focused on questions of lack of jurisdiction and “overstepping” its legal mandate. Another Chinese daily’s reported that the Tribunal was a “front” for the United States and “lackey” of outside forces and had an inherent bias because the Philippines paid the “court costs” for the proceeding. A few speculated that China might withdraw from UNCLOS, but China will more likely establish its own arbitral panel to adjudicate the territorial disputes outside of UNCLOS. This later course of action has precedent; recall China’s 2015 establishment of an Asian Infrastructure Bank to finance Asian infrastructure projects outside of the regulation-burdened World Bank system.
China seems to labor under the perception that the Tribunal Ruling is purely a regional matter and that its impacts end with the states bordering the SCS. China continues to ignore that many countries take the ruling very seriously because the SCS is a maritime superhighway between the Middle East, South Asia, East Africa, North Asia, and Australia. Roughly 60 percent of South Korea’s energy supplies, nearly 60 percent of Japan’s and Taiwan’s energy supplies, and 80 percent of China’s crude oil imports come through the South China Sea. According to a 2015 report from the Council of Foreign Relations:
“Each year, $5.3 trillion of trade passes through the South China Sea; U.S. trade accounts for $1.2 trillion of this total. Should a crisis occur, the diversion of cargo ships to other routes would harm regional economies as a result of an increase in insurance rates and longer transits.”
Money talks. For this reason, states that would ordinarily have been silent registered their support for the Tribunal decision. The EU issued a statement on July 15, underscoring their support for a rules-based order and respect for UNCLOS. The G-7 called on states to “fully implement decisions binding on them in … tribunals under the Convention.” Canada, France, Germany, the UK, Japan, Vietnam, Singapore and the U.S. issued statements support of the ruling. Indonesia, India, South Korea issued more “measured” statements urging China to show restraint and respect for UNCLOS.
There were some dissenters, but much of the industrial world supported the outcome and expects China to comply. If China continues to signal that it has no interest in conforming to the ruling, China could be excluded from important international negotiations, including, for example, the upcoming negotiation of an agreement under UNCLOS that deals with biodiversity beyond national EEZs. As I suggested in After The South China Sea Arbitration, China could have its privileges essentially suspended in three UNCLOS institutions: (1) the International Tribunal for the Law of the Sea (ITLOS); (2) the International Seabed Authority (ISA), and the (3) the Commissions on the Limits of the Continental Shelf (CLCS).
If China continues its island-building activities and interferes with Philippine fishing in the vicinity of Second Thomas Shoal, Scarborough Shoal, and Mischief Reef, an international court such as the International Court of Justice (ICJ) or ITLOS, could be asked to impose sanctions on the China for flaunting a lawful UNCLOS decision. The case would be predicated on the notion that China cannot take advantage of the benefits of UNCLOS if it lives outside of the law. In practical terms, an injunction could be sought which: recalls China’s judge on ITLOS; blocks the CLCS from any further proceedings involving the Continental Shelf entitlements of China; and lastly suspends both China’s ability to file further deep-seabed mining applications before the ISA and enjoin any further prospecting of its sites in the Indian Ocean. It might also be appropriate for a Tribunal to suspend China’s participation in UNCLOS related bodies including the International Seabed Authority (ISBA) (which writes the regulations for deep seabed mining), the International Hydrographic Organization (IHO) (the charting and oceanography body) and the International Maritime Organization (IMO). The latter action would be especially harmful for China given that the IMO has broad responsibilities to write the rules for merchant ship design, construction, operations, and navigational routes/practices while China has one of the largest merchant marine fleets in the world.
These legal maneuvers would be slow to orchestrate but, like other types of sanctions, could be far-reaching and difficult to reverse once they are put in place. However, China’s continued island reclamation after the ruling, their recent military actions in the vicinity of Scarborough Shoal, and the Chinese Supreme Court’s reaffirmation of the 2012 fishing ban are in direct contravention of the Tribunal’s decision. Since the effects of China’s actions have impacts beyond the Philippines, almost any bordering state, international organization, or possibly NGO would have standing to seek to have the Tribunal’s decision enforced since the ICJ (and for that matter ITLOS) has “inherent jurisdiction…to ensure that its exercise of jurisdiction is not frustrated and that its basic judicial functions are safeguarded.”
Inexorably, China is painting itself into a corner in which its escape options become more limited. While it was hoped by officials in the U.S. and elsewhere that China would eventually come to the realization that it needed to capitalize on the favorable aspects of the ruling and “pivot” on those it did not like, that is not happening. The recent military displays in the ECS and SCS, the threatened sanctions towards South Korea, and continued “trashing” of the Tribunal ruling suggest that China is opting for confrontation versus conciliation and now runs the risk of becoming involved in a major military conflict with Japan and perhaps the United States. China says that it is committed to a rules-based order and leadership in Asia but its recent actions say otherwise. Lastly, and perhaps most importantly, pursuit of high risk strategies which could place China’s international trading relations at risk is antithetical to the Chinese Community Party’s 13th Five Year Plan for 2016-2020 to promote balanced international trade, inbound investment, and free trade zones.
It is entirely possible that China’s leadership does not fully appreciate the dangerous choices their countrymen are making and how their actions are being perceived on the world stage. Military-to-military encounters at sea are occurring on a daily basis, and the potential for a costly misstep increases with each passing day. So too, a miscalculation in the trade or economic arena would likely backfire since China is a trading nation and it can ill afford to have its products excluded from foreign markets. High-level diplomacy and cool heads should be the order of the day.
A maritime and international lawyer, Mark E. Rosen is the SVP and General Counsel of CNA and holds an adjunct faculty appointment at George Washington School of Law. The views expressed in this paper are those of the author alone and do not represent the views of CNA or any of its sponsors.
Featured Image: Triple-E class container ship “Madison Maersk” of Maersk Line loaded with containers is berthed at Nansha port in Guangzhou. (Reuters)
The recent Philippine-China Arbitration Award determined that China’s construction of artificial islands, installations and structures on Mischief Reef, Subi Reef, and Hughes Reef were unlawful interference with the Philippines’ exclusive sovereign rights and jurisdiction over the seabed of the exclusive economic zone (EEZ) and continental shelf. Since the three features are low-tide elevations (LTEs), rather than islands, they are incapable of appropriation and are merely features of the Philippine continental shelf, albeit occasionally above water at high tide in their natural state. Although the tribunal’s legal judgment with regard to China’s activities was correct, its reasoning was a bit too categorical. This article adds further fidelity to the tribunal’s determination by distinguishing between lawful foreign military activities on a coastal state’s continental shelf, and unlawful foreign activities on the continental shelf that affect the coastal states sovereign rights and jurisdiction over its resources – a distinction that evaded the tribunal’s analysis.
It is important to understand the lawful scope of foreign military activity on the seabed of a coastal state’s EEZ or continental shelf, as the issue is likely to recur. The Defense Advanced Research Projects Agency, for example, is exploring the idea of “upward falling payloads,” or pre-positioned containers or packages that lie on the ocean floor and wait until activated, at which time they “fall upward” into the water column to perform undersea missions, such as powering other unmanned systems. With some narrow exceptions, such as emplacement of seabed nuclear weapons or seabed mining, the use of the deep seabed is a high seas freedom enjoyed by all States. The more compelling question, however, is the extent foreign states may emplace naval devices or construct installations or structures on the continental shelf or within the EEZ of a coastal State for military purposes.
Article 56(1)(a) of UNCLOS provides that coastal States have certain “sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living….” in the EEZ. Coastal States also have “jurisdiction as provided for in the relevant provisions [of UNCLOS] with regard to “(i) the establishment and use of artificial islands, installations, and structures.” Under Article 60, coastal States enjoy the “exclusive right” to authorize or regulate the construction of structures, a rule that is extended to the continental shelf by virtue of Article 80. Coastal State jurisdiction over artificial islands and structures is not all encompassing, however, and is limited to jurisdiction “as provided for in the relevant provisions [of UNCLOS].” The relevant provisions of the EEZ, of course, relate principally to exclusive coastal State sovereign rights and jurisdiction over living and non-living resources in the EEZ and on the continental shelf, and not sovereignty over the airspace, water column, or the seabed.
In the recent Philippine-China Arbitration Award, the tribunal determined that China’s artificial island construction on Mischief Reef was an unlawful violation of Philippine sovereign rights and jurisdiction over its continental shelf. Since Mischief Reef is a LTE and not a natural island, it constituted part of the Philippine continental shelf and seabed of the EEZ. China failed to seek and receive Philippine authorization for its artificial island construction, and therefore violated Articles 56(1)(b)(i), 60(1), and 80 of UNCLOS (Arbitration Award, para. 1016).
Foreign States, however, are not forbidden to construct installations and structures on a coastal State’s continental shelf per se. Only those installations and structures that are “for the [economic] purposes provided for in article 56” or that “interfere with the exercise of the rights of the coastal State” over its resources require coastal State consent. (See Article 60(1)(b) and (c)).
But even if China converts its installations and structures into military platforms, their size and scope are so immense that they dramatically affect the quantity and quality of the living and non-living resources over which the Philippines has sovereign rights and jurisdiction. Although normally installations and structures that are built pursuant to military activities are not subject to coastal state consent, the industrial scale of Chinese activity lacks “due regard” for the rights and duties of the Philippines and its sovereign rights and jurisdiction over resources under Article 56 of UNCLOS.
If China had merely emplaced a small, unobtrusive military installation or structure on the seabed or landed an unmanned aerial vehicle at Mischief Reef as part of occasional military activities, it would not have been afoul of UNCLOS. Such incidental use of the seabed or an LTE (which is part of the seabed) are within the scope of permissible military activity in the same way as emplacement on the continental shelf of a small seabed military device. Foreign States may use the seabed for military installations and structures, and even artificial islands, as these purposes do not relate to exploring, exploiting, managing and conserving the natural resources. Only those military activities that rise to the level of or of sufficient are of such scale that they do not have “due regard” for the coastal state’s rights to living and non-living resources of the EEZ and continental shelf are impermissible.
The distinction is important because creation of the EEZ and recognition of coastal state sovereign rights and jurisdiction over the continental shelf was never envisioned to limit normal military activities. Current and future naval programs, in fact, may utilize a foreign coastal State’s seabed EEZ and continental shelf in a manner that is completely in accord with UNCLOS.
Where do we draw the line, however, between an insignificant presence and negligible interference that is lawful, and large-scale disruption that is unlawful? Like all legal doctrine, what constitutes genuine interference to coastal State sovereign rights and jurisdiction must be reasonable, i.e. not de minimis or trivial, but rather a substantial and apparent effect on the resources in the zone, as I discussed in Maritime Power and Law of the Sea. Emplacement of military devices or construction of military installations or structures in the EEZ and on the continental shelf of a coastal State must be judged by reasonableness, and not be of such scale or cross a threshold of effect that it interferes in a tangible or meaningful way with the coastal State’s resource rights.
China’s operation of military aircraft from a LTE is not a priori unlawful, any more than operation of military aircraft from a warship in the EEZ would be illegal. The reason that PLA Air Force military aircraft flights from the runway at Mischief Reef are objectionable and a violation of the Philippines’ coastal State rights is the magnitude of the activity and its effect on the living and non-living resources. Operation by a foreign warship of a small aerial vehicle that lands temporarily on an LTE, for example, would not be unlawful. Likewise, if a naval force emplaced a military payload inside a container and placed it on the seabed of the EEZ – that is, on the coastal State’s continental shelf – that would also be a lawful military activity.
James Kraska is Howard S. Levie Professor of International Law at the Stockton Center for the Study of International Law, U.S. Naval War College, Distinguished Fellow at the Law of the Sea Institute, University of California at Berkeley School of Law, and Senior Fellow, Center for Oceans Law and Policy, University of Virginia School of Law.
Featured Image: MARCH 10, 2016- Philippine Naval Ship, BRP Sierra Madre, sails near disputed Spratly Islands in the South China Sea (REUTERS/Erik De Castro)