Tag Archives: Taiwan

Liaoning Raises More Questions for China

The Red Queen’s Navy

Written by Vidya Sagar Reddy, The Red Queen’s Navy will discuss the The Red Queeninfluence of emerging naval platforms and technologies in the geostrategic contours of the Indo-Pacific region. It identifies relevant historical precedents, forming the basis for various maritime development and security related projects in the region.

“Now, here, you see, it takes all the running you can do, to keep in the same place.”– The Red Queen, Through the Looking Glass, Lewis Carroll.

By Vidya Sagar Reddy

Introduction

China’s sole aircraft carrier, the Liaoning, had put on a display of its skills recently as the carrier group transited the Western Pacific. Liaoning’s excursion, marking Beijing’s core interests, is a political message to the United States and the world as uncertainty grips them. It also marks the beginning of a new episode in the military history of Western Pacific, which has been dominated by American aircraft carriers since the Cold War, especially during the Taiwan Strait crises. Taiwan also believes that Liaoning represents China’s military ability to break through the first island chain.

Historical Context

A recount of Cold War history and Beijing’s narratives of its historical and maritime supremacy in the Western Pacific serves to put this development into a more sober perspective, informing future political and military balance in the region.

China’s civil war led to Communists controlling the mainland territory while the Nationalists retreated to Taiwan. Subsequently, the People’s Republic of China and Republic of China were established on either side of the Taiwan Strait. In the 1950s, the U.S. drew up security and mutual defense treaties with Japan, South Korea, the Philippines, Australia, and New Zealand as a bulwark of its containment policy against the spread of Communism in Asia. The U.S. also extended its diplomatic and military support to Taiwan while confronting China in the Korean and Vietnam Wars.

In the 1950s, China and Taiwan clashed over the control of strategically located islands in the Taiwan Strait. The U.S. deployed its naval assets to the Strait, forcing cessation of hostilities and also signaling its political will to defend Taiwan from military aggression. However, U.S.-China relations improved in the 1970s with the former recognizing the PRC. The diplomatic recognition by the U.S. helped China modernize its industries and expand its economy.

As China’s domestic circumstances and international stature improved, it sought to define its national interests. In 2003, China’s Foreign Minister, Tang Jiaxuan, identified Taiwan as one of China’s “core interests” in his meeting with then U.S. Secretary of State, Colin Powell. The subsequent official writings use terms such as ‘upholding territorial integrity and national sovereignty’ and ‘reunification’ in an attempt to extend China’s sovereignty over Taiwan. The South China Sea was included in the ‘core interests’ in 2010 and the disputed Senkaku/Diaoyu islands in the East China Sea in 2013. China is undertaking reforms and modernizing its military capabilities to attain and defend these core interests.

Admiral Liu Huaqing, called China’s Mahan, was the most influential in lobbying for a blue-water navy for the country. He oversaw the radical modernization of China’s navy in terms of concepts, strategies, and capabilities. He even drew up a timeline for China’s navy to be able to exert sea control within the first island chain by 2000, control second island chain waters by 2020 and project power as a true global navy by 2050. The aircraft carrier is the quintessential military platform that embodies such intentions, particularly for global power projection. The fact that American aircraft carriers operating across the globe, including the Western Pacific, underline this fact to China.

Signaling Capability and Strategic Intent

Liaoning then speaks of Beijing’s political will and ambition to break through the first island chain, which China considers a geographical and political containment of its power. The first island chain is a virtual line drawn from the islands of Japan passing Taiwan and the Philippines and curving at the southern end of the South China Sea between Malaysia and Vietnam. Variations include the line either passing through the west coast or the east coast of Taiwan as well as extension of the line through the Indonesian archipelago to even reach Diego Garcia in the Indian Ocean. In any case, China is bound to come in contact with its immediate neighbors Japan, South Korea, Vietnam, Malaysia, and the Philippines, countries with which it shares a long, complex history of both cooperation and conflict.

China has also shown its knack for picking its moments to send political messages using military means. It took advantage of the world’s fixated attention on the U.S. intervention in Lebanon in 1958 to resume the bombing of Jinmen and Mazu islands in the Taiwan Strait. China’s armed incursion across the Indian border in 1962 coincides with the Cuban Missile Crisis. At present, the domestic political transition phase of the U.S. had lent Liaoning political space to carry out its objectives in support of Beijing’s core interests. Liaoning’s excursion also occurred just as President Trump signaled possible recalibration of ‘One China’ policy before his inauguration. Carrier operations require significant advance preparation, so while President Trump’s comments may not have triggered the Liaoning’s transit, the Chinese surely planned this December deployment well in advance of the U.S. election to send a message to the U.S. president-elect, whomever it would be. 

China has liberally shared photographs and videos of Liaoning’s deck operations, perhaps as an aid to counter the criticism of its minimal experience in carrying out carrier operations in deep seas. Nevertheless, China cannot be expected to master those skills and capabilities inherent to maintaining a carrier strike group as its Asian peer India or the U.S. have acquired over many decades and at considerable costs. Most importantly, before China can earn international prestige, Liaoning or its successors must operate outside the overshadowing Anti-Access/Area Denial protective bubble and sustain their operations to become true power projection assets.

Liaoning operations in December 2016. PLA Navy chief Admiral Wu Shengli is seen shaking hands and speaking to crew members. (CCTV)

Even if it is the intention of China to intimidate its smaller neighbors by parading the Liaoning in the near seas, investing the financial and human resources demanded by an aircraft carrier in the Coast Guard and maritime militia makes better sense. China’s maritime militia deployed on the open seas backed by the Coast Guard and the Navy has emerged as the true instrument of coercion for altering the status quo in the South China Sea, complicating the response mechanisms of disputant countries while the U.S. has yet to officially recognize it as a concentrated force.

Extending the cost-benefit perspective to a wartime situation, it again makes better sense for China to continue investing in its missile capabilities that better serve its sea denial strategy against an adversary advancing over the seas towards its shores. The new classes of China’s destroyers and submarines, owing to their numbers and increasing technological sophistication, are already considered formidable. Even if the carriers are able to extend the reach of China’s military aircraft over the seas, they would tie down some of the aircraft and naval assets for protection against the adversary’s own long-range missile strikes.

Conclusion

In essence, China has made a fine point: it finally possesses a steaming aircraft carrier that has operated without incidents on its first venture over the seas. Beijing successfully highlighted and marked some of its core interests. While Liaoning’s foray into the seas certainly sets a mark in the fluctuating military balance of the Asia-Pacific, China has some decent obstacles to maneuver before it can claim or demand recognition for possessing an aircraft carrier. And given China’s zero tolerance for accidents, it remains to be seen how the cautious approach would help China gain mastery in this domain. As the carrier operations continue and more platforms join the Navy, China will have to determine if these platforms are indeed worth the risk and costs. Even so, China needs to assess the optimum roles that can be assigned to its carriers within the country’s overarching political and military strategies.

Vidya Sagar Reddy is a research assistant in the Nuclear and Space Policy Initiative of the Observer Research Foundation, New Delhi.

Featured Image: Liaoning steams with PLA Navy surface combatants. (Andreas Rupprecht, via China Defense Forum)

US Department of State Seeks to Clarify Meaning of China’s 9-Dash Line Part 4

By Alex Calvo

This is the fourth installment in a five-part series summarizing and commenting the 5 December 2014 US Department of State “Limits in the Seas” issue explaining the different ways in which one may interpret Chinese maritime claims in the South China Sea. It is a long-standing US policy to try to get China to frame her maritime claims in terms of UNCLOS. Read part one, part two, part three

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3.- “Dashed Line as a Historic Claim”

The third way to see the dashed-line, according to the Limits in the Seas series paper, would be as a historic claim. Under UNCLOS this can take two forms, “one of sovereignty over the maritime space (‘historic waters’ or ‘historic title’)” or “some lesser set of rights (‘historic rights’) to the maritime space.” The paper devotes much more room to discussing this possibility than to the two previous alternative interpretations. It begins by pointing out that “some Chinese government statements and acts could be read to support a version of this historic claim interpretation”, and by noting that given that “the dashed-line maps pre-date the People’s Republic of China, the views of Taiwan are also of interest.” Concerning the Island’s claims, the text underlines that while in 1993 its “Policy Guidelines for the South China Sea” said that the dashed lines enclosed a “’historic water limit’ within which Taiwan ‘possesses all rights and interests’” (see K-H. Wang, “The ROC’s Maritime Claims and Practices with Special Reference to the South China Sea,” Ocean Development and International Law, Volume 41, 2010, pp. 237-252), Taipei has not stuck to this view. “Subsequent maritime legislation enacted by Taiwan and subsequent public statements, however, suggests that this view may no longer be officially held,” noted the State Department in another Limits on the Seas series issue, published in 2005, devoted to Taiwan. While the text refers to this 2005 paper, the latter’s contents do not discuss in depth ROC claims on the South China Sea, as clear from the fact that the term “South China Sea” only appears three times, whereas “dash” is not to be found. Thus, while the assertion that in studying PRC claims one should pay attention to ROC claims seems logical, this is not followed up, either in the 2005 Limits on the Issues paper devoted to Taiwan, or in the 2014 one dealing with China. In other words, the Department of State does not follow its own advice. How should we read this? On the one hand, the preeminent use of “Taiwan” may seem to amount to a limited recognition of political realities on the ground, in opposition to Beijing’s views, further contradicted by the scant regard for ROC practice as opposed to the PRC’s emphasis on administrative and international legal continuity with the Nationalist regime. An alternative, more Beijing-friendly, interpretation of the DOS approach may be that it is treating Taipei as the de facto authority on the Island, also for law of the sea purposes, while restricting its role in the South China Sea, where the PRC has consistently sought to exclude Taiwan from regional fora, in line with its traditional policy towards the Island. More generally, this may reflect the complex and ambiguous status of Taiwan, with neither the Island itself nor countries like the United States completely sure what it is. To add to the confusion concerning Taiwan in the DOS paper, it states on page 21 that “Many islands and other features in the South China Sea are occupied not just by China, but by … Taiwan,” yet again this is not followed by any detailed examination of Taipei’s claims.

Going back to evidence for the possible interpretation of Beijing’s claims as historic, the report cites as “most notable” China’s “1998 EEZ and continental shelf law, which states [in Article 14] without further elaboration that ‘[t]he provisions of this Act shall not affect the historical rights of the People’s Republic of China’” (emphasis added in the DOS report). China’s 2011 Note Verbale says that Beijing’s claims are supported by “historical and legal evidence,” but while the DOS report adds emphasis to “historical”, one should be careful not to confuse a historical claim with a claim supported by history. A country may put forward historical evidence in both negotiations and arbitration or adjudication in areas where UNCLOS refers to “equitable” solutions. The text also notes how many “Chinese institutions and commentators have considered that the dashed-line maps depict China’s historic title or historic rights.”

The DOS reports explains that “some” Chinese Government actions and statements which are “inconsistent with” UNCLOS, while not amounting to “express assertions of a historic claim, they may indicate that China considers that it has an alternative basis – such as historic title or historic rights – for its maritime claims in the South China Sea,” and provides some examples, such as the assertion by Foreign Ministry Spokesperson Qin Gang on 10 March 2014 that the Second Thomas Shoal (Ren’ai Reef) was under Chinese “sovereignty.” Qin Gang said “It is known to all that China has sovereignty over the Nansha Islands and their surrounding waters, including the Ren’ai Reef.” This mantra about sovereignty, together with repeated appeals to history, could indeed be considered as evidence that what Beijing has in mind is a historic claim. Furthermore, it may well be a claim going beyond the provisions for such term in UNCLOS. The report provides further evidence, beyond statements, to support the view that China may be making a historical claim. First of all, the “periodic oath-taking ceremonies at James Shoal” by Chinese naval vessels “to affirm ‘sovereignty’ over this bank” and the 2012 introduction by the China National Offshore Oil Corporation (CNNOC) of lease blocks in front of Vietnam’s central coast, in “waters under jurisdiction of the People’s Republic of China” according to the company yet with “portions of two of these blocks (BS16, DW04)” extending “without explanation to waters that are beyond 200 nm from any Chinese-claimed island.” The DOS report stresses that the resulting “assertion of maritime jurisdiction … exceeds what is provided for under” UNCLOS.

“Coat of arms of USS Lassen (DDG 82), which has conducted FONOPS in the South China Sea. Experts have criticized their ambiguity and are still debating their exact nature.”
Coat of arms of USS Lassen (DDG 82), which has conducted FONOPS in the South China Sea. Experts have criticized their ambiguity and are still debating their exact nature.

The idea that Chinese claims are “separate from, and additional to” UNCLOS is also suggested by domestic legislation, the DOS report notes. As an example it cites China’s 1999 Law on Marine Environmental Protection, which describes its geographical scope as extending to the country’s “internal waters, territorial sea, contiguous zone, exclusive economic zone, continental shelf of the People’s Republic of China and other sea areas under the jurisdiction of the People’s Republic of China” (emphasis in the DOS report). According to the text, UNCLOS is restricted to maritime zones mentioned in the law, and not to any “other sea areas under the jurisdiction” of the PRC, and “perhaps” this is a reference to “areas where China considers that it has historic claims.” Again, we must remember that this could be understood in two different ways, either China making a claim based on historic facts (recognized to a limited degree by UNCLOS) or China laying down sovereignty over certain areas of the sea based on principles and rules outside UNCLOS, or outside the prevailing interpretation of UNCLOS.

Has China made a historic claim? Next the DOS report examines two issues: whether China has actually “Made a Historic Claim”, and whether it would “have Validity.” Concerning the former, the text states that “China has not actually made a cognizable claim to either ‘historic waters’ or ‘historic rights,’” the reasons being a lack of “international notoriety” and the statement in her 1958 Territorial Sea Declaration that “high seas” separate the Chinese mainland and coastal islands from “all other islands belonging to China”. The text admits that the expression “historic waters” appears in some Chinese legislation and statements, and actually cites some of them, but believes that this does not amount to “notoriety” to a degree sufficient to “at the very least” allow “other states” to “have the opportunity to deny any acquiescence with the claim by protest etc.” (Taken from C.R. Symmons, Historic Waters in the Law of the Sea: A Modern Re-Appraisal, (Leiden: Martinus Nijhoff Publishers, 2008), p. 145) since “no Chinese law, declaration, proclamation, or other official statement” exists “describing and putting the international community on notice of a historic claim.” The text dismisses references to “historic rights” in the 1998 EEZ and continental shelf law as “a savings clause” and “not a statement of a claim itself.” An additional reason put forward by the text is that these could be references to “China’s sovereignty claim to the islands, and not the waters.” The 1947 map does not constitute either, according to the DOS report, a claim, and furthermore even if one had been made, the fact it was published domestically “in the Chinese language” would not amount to “an act of sufficient international notoriety to have properly alerted the international community.” More generally, the text considers that no subsequent Chinese map can be treated as having made a claim either, since they all “lack the precision, clarity, and consistency that could convey the nature and scope of a maritime claim” and cites in support of this view the ICJ “statement of principle” in the Frontier Dispute case between Burkina Faso and Mali, which says that “Whether in frontier delimitations or international territorial conflicts, maps merely constitute information which varies in accuracy from case to case; of themselves, and by virtue solely of their existence, they cannot constitute a territorial title, that is, a document endowed by international law with intrinsic legal force for the purpose of establishing territorial rights.”

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.

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South China Sea arbitration: Beijing puts forward her own views: The Finale

By Alex Calvo

This is the final 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 OnePart Two, Part Three

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The South China Sea and the Arctic: contradictions in China’s posture? Beijing’s insistence on excluding non-littoral estates from the dispute furthermore clashes with Chinese policy in the Arctic, where the country seeks a voice, arguing that despite just being a (self-labeled) “quasi-Arctic state” it has a right to at the very least make its voice heard given that the region has an impact on its interests. Countries like India, Japan, and the United States, may well put forward similar views concerning the South China Sea, considering themselves to be “quasi-littoral” states given among others their dependence on Sea Lanes of Communication (SLOCs) going through it.

Incentives to delay negotiations. A number of contradictory arguments may be put forward concerning this. Those wishing to blame China may accuse Beijing of seeking to change facts on the ground first (by, for example, occupation of some features and the artificial expansion of others), before engaging in meaningful negotiations. They may also argue Beijing is waiting for the balance of naval power in the region to shift further in her favor, or for developments elsewhere in the world to weaken the resolve of non-regional actors to intervene. On the other hand, those seeking to blame the Philippines may put forward similar accusations, arguing that Manila wishes to rearm (with US and Japanese assistance) first before engaging in serious negotiations with China. These voices may also put forward the view that Manila first wishes to take the moral high ground (among other means by the international arbitration bid), secure stronger support by the United States, or draw in other interested parties like Japan. We can thus see how both sides have potential reasons not to seek a speedy start of bilateral negotiations.

China defends cooperation prior to delimitation, but it is Taiwan and Japan which have implemented the principle. Section IV is perhaps not so original, basically reiterating arguments already expounded in Section III. It still contains some paragraphs worthy of comment, though. In Paragraph 61 the text refers to the “Agreement for Joint Marine Seismic Undertaking in Certain Areas in the South China Sea” between China National Offshore Oil Corporation and Philippine National Oil Company, expanded in 2005 to “a tripartite agreement, with the participation of Vietnam Oil and Gas Corporation.” The text praises it as “a good example of the constructive efforts made by the States concerned to enhance cooperation and create conditions for a negotiated settlement of the disputes in the South China Sea,” stressing that the “maritime area covered by that agreement is within that covered in the present arbitration initiated by the Philippines.” Few would disagree that agreements like this do indeed offer an interesting path, allowing states party to a dispute to build trust while concentrating on the joint development and management of natural resources, leaving for later tricky questions of sovereignty. When we move from the realm of theory to that of practice, however, we find that such efforts involving China have not been successful. In the South China Sea, possible cooperation seems to have given way to violent competition, with oil rigs becoming “weapons” rather than symbols of cooperation. In the East China Sea, where a similar agreement was concluded with Japan, it later unraveled and has not been implemented. It is Taiwan, not China, that has actively pushed for joint management that could proceed while leaving sovereignty for later. This has resulted not only in President Ma’s East China Sea Peace Initiative, but in a fisheries agreement with Japan along these lines. Whatever the reasons, no similar agreement has been concluded and effectively implemented by the PRC.

 8,- “Chinese Embassy to the Netherlands. While refusing to take part in the arbitration proceedings, China has regularly communicated with the Court, often through this Embassy.

Chinese Embassy to the Netherlands. While refusing to take part in the arbitration proceedings, China has regularly communicated with the Court, often through this Embassy.

Partial versus comprehensive solutions in territorial conflicts. It is interesting to note the position paper’s critique of Manila’s arbitration bid in Paragraph 68, which argues that “The issues presented by the Philippines for arbitration constitute an integral part of maritime delimitation between China and the Philippines” and that “The Philippines’ approach of splitting its maritime delimitation dispute with China and selecting some of the issues for arbitration, if permitted, will inevitably destroy the integrity and indivisibility of maritime delimitation and contravene the principle that maritime delimitation must be based on international law as referred to in Article 38 of the ICJ Statute and that ‘all relevant factors must be taken into account.’ This will adversely affect the future equitable solution of the dispute of maritime delimitation between China and the Philippines.” While the first sentence is just a reiteration, the second one touches upon a legitimate concern, given that any partial ruling runs the risk not only of being difficult to implement due to its non-comprehensive nature, but also of not being equitable for lack of consideration of certain factors concerning areas or aspects not included in the arbitration proceedings. This could be a reason to reject this approach. On the other hand, it could be said that history shows how countries often reach limited agreements, either because they are unable to successfully reach a comprehensive settlement, or because they prefer to start dealing with those issues where they either expect it to be easier to reach an understanding or which are more pressing. China is no stranger to this posture. The reference to equity though is important since an equitable settlement is often one involving tradeoffs, and such tradeoffs will often only be acceptable when covering a case’s full spectrum of issues.

The long shadow of history in China’s narrative against compulsory arbitration. In Section V the text demands full respect for China’s “right to freely choose the means of dispute settlement”, while defending the position that the “rejection of and non-participation in the present arbitration is solidly grounded in international law.” The stress on “consent” (76), while not amounting to any Chinese singularity, may also reflect the country’s experience with the so-called “unequal treaties.” Also important is the reference (76) to the “package deal” nature of UNCLOS, which is indeed the case, and as the text notes involved “extended and arduous negotiations” with regard to Part XV dealing with dispute settlement. The position paper insists (78) that the resulting “balance” in that Part was “a critical factor” prompting many countries to sign the convention, and again cites the Southern Bluefin Tuna Case, this time to reinforce the notion that compulsory arbitration should be restricted to cases where all parties agreed to it. The problem with this is that if all parties agree to arbitration, then there is no need for the procedure to be compulsory, and if compulsory proceedings are provided for, it is with a view to at least some cases where one or more countries may indeed oppose them. If “compulsory” arbitration could only move forward with the post-ratification consent of all parties involved, one could argue that there would be no need for UNCLOS to lay down areas where arbitration could be mandatory.

Abuse of right. Another legal principle that the text delves into (84) is that of “abuse of right”, in tandem with the above-mentioned “good faith.” These are general principles of law found, in some form or another, in most legal systems. The text cites Article 300 of UNCLOS, which lays down that “States Parties shall fulfill in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right,” adding that Manila has not done so by seeking to bypass Beijing’s refusal to engage in arbitration and existing agreements to settle the dispute by negotiations.

Conclusions. Beijing’s document, despite stressing that it is not a formal reply, systematically rejects all of Manila’s arguments, while summarizing China’s position. While China emphasizes the Philippines’ alleged promise to deal with the issue bilaterally, the text refers to treaties between other countries, mentions ASEAN, and touches upon the sensitive issue of Taiwan, in a reminder of how difficult it is to keep things bilateral in this corner of the world. Reading in between lines we can also see how history casts a long shadow over Beijing’s position, a position which is not always free from contradictions, for example when it defends the delay in opening up negotiations with Manila by stressing the complexities involved due to among others the large number of parties, while at the same time emphasizing her traditional stance that the dispute should be approached bilaterally. At the end of the day, it will be might (in a broad sense of the word, not necessarily limited to naval power, and in particular traditional lethal naval power), rather than right which will determine the fate of the South China Sea, but this does not mean that international law will not play a role, and hence the need to carefully follow developments in the international arbitration case initiated by the Philippines, together with rearmament and greater coordination among maritime democracies.

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.

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

By Alex Calvo

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.”
“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.

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