Tag Archives: UNCLOS

Russia in the Arctic: aggressive or cooperative?

November 27, 2015 Guest Author 1 Comment

By Laguerre Corentin

Since the early 2000s, Russia has begun to pay more attention to the Arctic when its general socioeconomic situation had improved.¹ With the ice melting, other Arctic and non-Arctic countries demonstrated their interest for the region, creating territorial disputes. In the High North, Russia is often seen as taking an aggressive approach to assert its sovereignty and the West have been worried about Russia’s involvement in the region, especially after the Ukrainian Crisis and the Russian position in Syria. However, is Russia aggressive in the Arctic? We argue that Moscow is likely to promote cooperation with the Arctic states, but with its interests and national security in mind. The Arctic is of strategic importance for Russia because of its natural resources. Indeed, since the end of the Soviet era, Moscow does not see the region as a potential theatre of a strategic struggle with the West. Moreover, in its history, Russia took care to avoid escalating incidents, favoured cooperation, and the respect of international law in the Arctic because it was in its interest. Russia has learned that it could use the law and international organisations to its advantages. Putin’s aggressive tone seems more to fulfil domestic purposes rather than represent Russia’s intentions in the Arctic. To support our thesis it is useful to look at the country’s historical reliance upon legislation and treaties in the region, its current interests, and its emphasis on cooperation in the resolution of disputes.

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A history of reliance on legislation

Lincoln E. Flake argues that Russia’s current posture on the Continental Shelf is “a natural extension of Tsarist and Early Soviet policies on Arctic land territory”. Russia’s approach to the arctic issues seems to be impacted by previous policies.² The first experience in claiming land and maritime control in the greater Arctic region occurred in its North American territories with the 1821 Ukase of Alexander I that had both a land and a maritime component. When the neighbouring states rejected the maritime component of the decree, the sole attempt by the Russian government to enforce it was the seizure of the USS Pearl in 1822, but the vessel was released and the maritime component of the decree was abandoned. Each time the Tsarist government tried to enforce a contested decree; it yielded to pressure and abandoned its maritime claims.³ Later, the Soviet government took advantage of treaties to advance its positions. As an example, the 1920 Svalbard treaty assured the Norwegian recognition of the Soviet government. Inadvertently, this treaty was favourable to the USSR by creating a demilitarised zone at the door of its Arctic sector. This event likely demonstrated to the Kremlin that sovereignty issues could be resolved through international treaties to Russia’s advantage. Each time, the authorities used the law to respond to sovereignty issues. Moscow developed a more detailed legislation about its control over the North Sea Route when it was handicapped from preventing foreign military navigation along its Arctic coastline. Moreover, Russia engaged in efforts to arrive at international treaty-based regimes favourable to its claims. This approach led to international conferences that ultimately resulted in the 1982 UNCLOS agreement, which was a resounding victory for Soviet aims in the Arctic.⁴

Russia’s renewed interests in the Arctic

Today, Russia considers the Arctic as a region of strategic importance for its national security due to the presence of the two-thirds of the Russian sea-based nuclear bases, and the direct access to the Arctic and Atlantic oceans provided by the Kola Peninsula. However, with the end of the Cold War, the region has lost its former military strategic significance as a zone of potential confrontation with the US/NATO.⁵ Principally, the Arctic is relevant to Russia’s economy and security because Moscow views a prosperous and secure supply of energy as a means of projecting its power in the world. Thus, the Arctic is directly linked to its economic interests. Around 20 percent of its gross domestic product is generated north of the Arctic Circle, as are 20 percent of Russia’s total exports in energy.⁶ On 18 September 2008, then-President Dmitri Medvedev approved the Foundations of the State Policy of the Russian Federation in the Arctic Up to and Beyond 2020. The document defined the Russian interests in the region – developing the resources in the Arctic, turning the NSR into a unified national transport corridor, maintaining the region as a zone of peace and international cooperation and transforming the Arctic as a “leading strategic resource base”.⁷ In addition, Russia’s National Security Strategy to 2020, released in May 2009, confirms the importance of the energy sector and connects the country’s success with its status as an energy provider, noting that energy-related issues and regions like the Arctic, the Caspian Sea and Siberia are an important component of its security planning.⁸

An emphasis on cooperation

In line with the approach developed in the early 2000, the 2013 Concept directs foreign policy to “strengthen Russia’s trade and economic position within the system of world economic relations”, and to use the “capabilities of international and regional economic and financial organisations” to support its economic interests. The Concept shows Russian willingness to work with institutions – particularly the UN – and to be more active internationally. A stated objective of its foreign policy has therefore been to emphasise institutions and issues that elevate its power status. If Putin was critical of Western initiatives and opposed them while employing a more aggressive tone, Russia has committed to more multilateral governance in the Arctic than other countries. Moreover, the Foundations of the State Policy of the Russian Federation in the Arctic for the Period Up to and Beyond 2020 identifies the Arctic as a zone of cooperation. The document asserts Russia’s willingness to work bilaterally and within the framework of regional organisations. Moscow has also taken care not to allow minor skirmishes to escalate.9 These elements balance the plans to extend the Northern fleet’s operational radius and the reinforcement of combat readiness on the Arctic coast. Furthermore, different Russian documents reveal that military security is not a priority, the emphasis being placed on economic concerns. This approach suggests that Russian threat perception is less concerned with strategic confrontation than with challenges to navigational assertions. In this regard, Russian military developments in the Region can be seen as a response to an anxiety over navigational-related interests and not a militarization in anticipation of a struggle over natural resources. Indeed, many of the recent military moves, like the reopening of a Soviet-era base in the Arctic to “ensure the security and effective work of the NSR”, are aligning with the protection of maritime spaces.¹⁰ Moreover, Moscow seems more interested to project its power by economic means than military ones because a key source of its power and influence in the world comes from its energy sector. Thus, this reduces the need for an aggressive posture.¹¹

Conclusion

In conclusion, Russia relied on international law and cooperation in the Arctic through different periods of its history. Today, Russia is still a strong supporter of the UNCLOS as a tool to resolve regional disputes and insists upon the scientific basis of its territorial claims. According to Dmitri Trenin, Russia bases its Arctic strategy upon international law and agreements, and its actions in the Arctic may have seemed aggressive in part because they occurred in a context of worsening relations with the West. Russia may oppose Western objectives, but there is a stated commitment to international law and Russia “has shown itself a committed, rule-abiding participant”.¹² Moreover, Russia’s current interests in the region do not seem to promote an aggressive posture because they concern principally the economic sector. As 97 percent of the region’s oil and gas deposits are found in undisputed EEZ seabed of littoral states, with the Russian EEZ accounting for 80 percent of the gas, the risk of conflict around natural resources in the High North is likely to remain limited.¹³

Laguerre Corentin has a M.A. in War Studies from King’s College London and presently works as a research assistant at the Institut de Recherche Stratégique de l’Ecole Militaire (IRSEM), which depends from the French Ministry of Defense.

Read other contributions to Russia Resurgent Topic Week.

1 Alexander Sergunin & Valery Konyshev, “Is Russia a Revisionist Military Power in the Arctic?”, Defense & Security Analysis 30:4 (2014), 327

2 Flake, “Forecasting Conflict in the Arctic: the Historical Context of Russia’s Security Intensions”,76-78

3 Idem, 80

4 Idem, 80-82, 86-87

5 Sergunin & Konyshev, “Is Russia a Revisionist Military Power in the Arctic?”, 324, 326

6 Kari Roberts, “Why Russia Will Play By the Rules in the Arctic”, Canadian Foreign Policy Journal 21:2 (2015), 119

7 Sergunin & Konyshev, “Is Russia a Revisionist Military Power in the Arctic?”, 327

8 Roberts, “Why Russia Will Play By the Rules in the Arctic”, 119

9 Idem, 116-119

10 Lincoln E. Flake, “Forecasting Conflict in the Arctic: the Historical Context of Russia’s Security Intensions”, The Journal of Slavic Military Studies 28:1 (2015), 91-92

11 Roberts, “Why Russia Will Play By the Rules in the Arctic”, 116-118

12 Idem, 114, 116

13 Flake, “Forecasting Conflict in the Arctic: the Historical Context of Russia’s Security Intensions”, 89

Bibliography

Flake, Lincoln E. 2015. “Forecasting Conflict in the Arctic: the Historical Context of Russia’s Security Intensions”. The Journal of Slavic Military Studies 28:1, 72-98

Roberts, Kari. 2015. “Why Russia Will Play By the Rules in the Arctic”. Canadian Foreign Policy Journal 21:2, 112-128

Sergunin, Alexander & Konyshev, Valery. 2015. “Is Russia a Revisionist Military Power in the Arctic?”. Defense & Security Analysis 30:4, 323-335
The Russian bear

Asia-Pacific, Territorial and Law of the Sea Disputes

South China Sea: International Arbitration moves forward as PAC rules on Jurisdiction

November 6, 2015 Guest Author 1 Comment

By Alex Calvo

Introduction: the Philippines’ International Arbitration Case moves Forward

Despite Beijing’s refusal to take part in the proceedings, on 29 October the Court of Permanent Arbitration (PCA) issued a ruling on jurisdiction and admissibility of the UNCLOS arbitration case launched by the Philippines against China. The Court unanimously decided that it had jurisdiction concerning seven of the fifteen claims put forward by Manila, with a decision on a further seven to be reached when considering their merits. The ruling by the PAC is thus a major victory for Manila and maritime democracies, since China’s view that the Philippines had promised to pursue only negotiations, and her assertion that no decision could be taken on maritime zones until delimitation had taken place, were rejected. While the decision on the merits of the case will have to wait until at least next year, and a ruling in favor of Manila does not guarantee in and by itself that Beijing will comply, this is nevertheless a major step forward for the notion that it is right plus might and not just might in isolation, which will determine the future of this vital sea.

Some Highlights from the Court’s Decision

The following are some of the potentially most relevant aspects of the Court’s decision, with the page in brackets for ease of reference.

First of all, the PRC is squarely treated as the defendant, notwithstanding the fact she is refusing to take part in the proceedings. Thus “The Parties to this arbitration are the Republic of the Philippines (the “Philippines”) and the People’s Republic of China (“China”)” (p. vii). To justify this, the Court cites Art 9 of Annex VII to the Convention, saying that “the non-participation of China does not bar this Tribunal from proceeding with the arbitration. China is still a party to the arbitration, and pursuant to the terms of Article 296(1) of the Convention and Article 11 of Annex VII, it shall be bound by any award the Tribunal issues” (p. 11). While this does not necessarily imply an ultimate ruling in favor of Manila, as stressed by the Court (“The Tribunal does not simply adopt the Philippines’ claims, and there can be no default judgment as a result of China’s non-appearance”), it amounts to a major defeat for Beijing, which has seen her stress on bilateral negotiations and position that Manila had agreed to exclusively pursue such venue dismissed. Furthermore, it also means that the view that Manila’s case implied (even if just implicitly) territorial delimitation and thus fell squarely within the PRC’s derogation from compulsory arbitration in such matters has also been defeated. This makes it more difficult for China to proceed as in the recent past with a gradual yet relentless expansion, where reclamation and militarization went hand in hand with appeals to dialogue and negotiation and repeated promises of respect for freedom of navigation and overflight. Thus, either China tones down her actions and becomes more pragmatic and conciliatory, as some observers believe she may, or she chooses to nakedly ignore international rules and institutions, as Japan did following the Manchurian Incident and subsequent Lytton Report and Stimson Doctrine.

Concerning China’s non-participation, the PAC explicitly acknowledge the 7 December 2014 position paper, not only referring to it but stating that its publication “facilitated the Tribunal’s task to some extent”. Thus, for the benefit of justice and the concept of equality of arms between the parties, the Court has clearly taken a pragmatic approach towards China’s decision to approach the PAC indirectly, not making a submission but instead publishing a position paper laying down her views and her response to the Philippines’ demands. This was already clear, as explained in the decision, when this summer on holding hearings on jurisdiction the Court provided the PRC “with daily transcripts and all documents submitted during the course” of those hearings. In a way we could see perhaps all this as evidence of some sort of pragmatic arrangement, or gentlemen’s agreement, whereby Beijing did not formally take part in the proceedings but was still informed in detail and had the chance to make her views known to the Court. As the ruling notes, “The Position Paper has since been followed by two letters from the Chinese Ambassador addressed to the members of the Tribunal and by regular public statements of Chinese officials that touch on the arbitration” (p. 41). This could of course go on in the next stage, as the Court deliberates on the merits. Beijing may stay aloof from the proceedings, as she has announced she will, while still interacting with the Court on a semi-official basis. However, this just means delaying the moment when Beijing, should the final ruling go against her, will have to decide whether to comply or not with that decision. In that case, even if the PRC’s leadership chooses pragmatism and accommodation, the CCP may find itself a prisoner of its own rhetoric, and the many years during which it has been telling the Chinese population that the country had “indisputable sovereignty” over the whole of the South China Sea. Thus, accepting the ruling may be no easy matter for Beijing, even if the will is there.

Concerning Bejing’s claims that the case amounts to an abuse of right, the Court rejects it, saying that “China has not made an application to the Tribunal pursuant to Article 294(1) of the Convention”, which would force it to decide whether it was the case, and “the Tribunal is therefore under no obligation to follow the procedure outlined in Article 294(2)”. Furthermore, the ruling states that “the procedure is appropriate in only the most blatant cases of abuse or harassment”, which is not the situation in the current proceedings (p. 43). Therefore, the PAC chooses instead to focus on jurisdiction. China may have considered that submitting an application under Article 294 UNCLOS would definitely be considered to amount to taking part in the proceedings. An alternative explanation is that Beijing preferred not to risk losing an early battle by having the Court formally determine that the case did not constitute an abuse of right, choosing instead to simply use this term to criticize it in the political arena.

With regard to Beijing’s contention that it is impossible to rule on the exercise of maritime rights before first ruling on the underlying territorial dispute, the Court is adamant that this is not the case, stating instead that it “does not see that any of the Philippines’ Submissions require an implicit determination of sovereignty” (p. 59-60). This notion that it is possible to first determine the interpretation of UNCLOS and whether a party’s actions conform to it, while leaving territorial delimitation to later negotiations or (non-compulsory) arbitration could be compared to the idea (put into practice by Taiwan and Japan in their Senkaku Islands fisheries agreement) that it is possible to first jointly manage and exploit natural resources, while again leaving territorial delimitation for later. This is a reminder of how the Philippines’ arbitration case and Taiwan’s East China Sea initiative (and its child, the Senkaku fisheries agreement with Japan), taken together, may point the way forward to a peaceful, international law-based approach to maritime territorial disputes in the Indo-Pacific Region. An informal Manila-Taipei-Tokyo democratic triangle may emerge as the seed around which a wider informal coalition may emerge, although of course for this to be effective its reach cannot be limited to the diplomatic and legal arenas. One thing is to stress the rule of law at sea and peaceful resolution of disputes in accordance with international law, another to wishfully think that this can take place without the possibility of resorting to force if necessary. National security and collective security are the other side of the coin, without which international law and the rule of law at sea cannot thrive and ultimately prevail.

The Tribunal notes, in line with long-standing comments by observers and other states, that “China has not, as far as the Tribunal is aware, clarified the nature or scope of its claimed historic rights. Nor has China clarified its understanding of the meaning of the ‘nine-dash line’ set out on the

map accompanying its Notes Verbales of 7 May 2009” (p. 62). This was precisely the motivation behind the US State Department’s Limits in the Seas issue No 143 devoted to Chinese claims in the South China Sea. Thus, although this is a matter reserved for the decision on the merits of the case, we could read the PAC’s ruling on jurisdiction as saying that the nine-dash line must be translated into claims under UNCLOS, since the Convention does not recognize any such concept. This makes it clear that Beijing is facing an uphill battle in seeking to convince the court that the nine-dash line can indeed be made to fit into UNCLOS. However, there is always the possibility that in its final ruling the Court will not declare the line as such to be contrary to UNCLOS, as requested by the Philippines, but instead take a softer, more pragmatic approach, and say that while not illegal per se, its meaning must be clarified by resort to those concepts such as the territorial sea and the EEZ laid down in the Convention. While the impact of such a ruling would not be as spectacular, it may be a way of avoiding cornering Beijing, leaving room for later negotiations and compromise, instead of making Beijing lose face in no uncertain terms. Such a ruling would allow both sides to claim victory. We should remember, in this regard, that international tribunals must often walk a fine line between the wish to uphold international law, and the need to ensure its effective implementation. Thus, rather than a perfect ruling with close to zero chances of settling the matter, the PAC may prefer a less than perfect text that can be used as a stepping stone towards a final settlement of the dispute.

Also interesting is the fact that the Court considers that no intervention by a third party is necessary in the proceedings, thus reinforcing the view that territorial delimitation is not at stake. This again is in line with Manila’s position, while not following “the Chinese Ambassador’s First Letter”, where he “did express serious concern and opposition to a procedure of ‘intervention by other States’”, in reference to Vietnam, “as being ‘inconsistent with the general practices of international arbitration’” (p. 73). Hanoi’s role in the proceedings, not formally a party but having made her own statement and attended this summer’s proceedings, shows how, and this is one of the aspects of the case which clearly worries China, the arbitration proceedings, although strictly speaking bilateral, have attracted not only the support of a wide range of countries, but limited participation by some of them. Taken together, it could facilitate cooperation among these countries, and furthermore could support the notion that China is the odd man out, and not just another claimant, in the South China Sea.

Concerning China’s assertion that the Philippines had agreed not to pursue arbitration, by among others signing the 2002 DOC (Declaration on the Conduct of Parties in the South China Sea), the Court considers that its “language is not consistent with the creation of new obligations but rather restates existing obligations pending agreement on a Code that eventually would set out new obligations”, adding that it basically reaffirms existing obligations and exhorts parties to create others at some point in the future (p. 83). Thus, the Court concludes that “the DOC was not intended to be a legally binding agreement with respect to dispute resolution”, and uses contemporary documents to support the view that it was instead “an aspirational political document”. In doing so, the PAC stresses statements by China herself, such as that in August 2000 by a spokesperson for the Chinese Foreign Ministry, who said that the “Code of Conduct will be a political document to promote good neighbourliness and regional stability instead of a legal document to solve specific disputes” (p. 84). This is significant at many levels. On the one hand it illustrates a very important general principle of international law, that someone cannot go against his own acts. On the other, it exposes the shallowness of bilateral and multilateral diplomacy in the South China Sea in recent years, full of smoke and grand sounding statements but rather short on substance. Other claimants may be wary of openly calling Beijing’s bluff for fear of appearing disrespectful, but the Court minces no words in its ruling on jurisdiction, providing a detailed explanation of why the long list of statements, agreements, and contacts, do not amount to much at the end of the day, and clearly constitute no bar to the arbitration proceedings, since at no stage have the Philippines and Beijing agreed to forgo this road.

Finally, we should note that out of 15 submissions by the Philippines, the Court determined that it had jurisdiction to consider seven, and concerning another seven it reserved consideration of its jurisdiction to the merits phase. In one (15, concerning the request of a declaration that “China shall desist from further unlawful claims and activities”), the Court “DIRECTS the Philippines to clarify the content and narrow the scope of its Submission” and also reserves consideration of its jurisdiction to the merits phase. The ruling states that “the claims and activities to which this

Submission could potentially relate are unclear from the Philippines pleadings to date” (p. 147). Since, out of 15 submissions, not one has been determined at this stage to be ultra vires (beyond the powers of) the Court, it is difficult to overstate the degree to which this constitutes a major victory for the Philippines. Having said that, we should remember that this arbitration case, and more generally appeals to international law, the rule of law at sea, and peaceful resolution of disputes in accordance with international law, are only an aspect of Manila’s strategy to deal with Chinese expansionism. They should not be seen in isolation, but rather in conjunction with rearmament, and stronger bilateral and multilateral relations with fellow maritime democracies. Unless the Philippines can upgrade their military, regaining lost capacities such as combat jets, and being able to deal with the different levels of warfare (including non-lethal force at sea), a victory in the final stage of this legal battle may end up being little more than a footnote in history books.

Taiwan’s Reaction

MOFA spokesperson Eleanor Wang said that “The Republic of China government’s determination to defend the country’s sovereignty and maritime rights over the four island chains in the South China Sea is not open to question”, adding that her department was closely following developments in the arbitration case, and would respond as necessary. The Republic of China is not a party to UNCLOS, but Taipei has urged the different parties involved to respect international law, including this convention.

Taiwanese views on the issue are important for a number of reasons. First of all because the ROC is one of the claimants, and controls Itu Aba (Taiping) Island. Second, since PRC claims and in particular the famous “Nine-dash line” and its successors originated in the ROC, which the PRC claims to have legally superseded. Third, given that in spite of the previous point Taipei has been moving away from these maximalist positions, both in theory and practice. Fourth, because the Island launched an East China Sea Peace initiative, followed by a fisheries agreement with Japan concerning the Senkaku / Diaoyu / Diayutai, and both could be a template for the South China Sea. Finally, because one of the points that irritated Beijing, as clear from the Chinese 7 December 2014 position paper, was the Philippines’ alleged deviation from a “One China” policy in her arbitration suit against the PRC.

Taiwan may not be recognized by the UN and most countries in the world, and actually still has to decide whether to recognize herself, but the dispute over the South China Sea is intimately connected to that over the Island. After proving that democracy and Sinic culture are compatible, Taiwan is now showing how the latter can also coexist side by side with the rule of law and a pragmatic approach to territorial disputes.

Beijing insists the case is outside UNCLOS compulsory arbitration.

The PCA ruling prompted a strong reaction by Beijing, with the PRC’s Foreign Affairs Ministry insisting in refusing to recognize the court and take part in the proceedings. We should note, however, that as explained China has not stayed completely aloof from the case, since on 7 December 2014 she issued a position paper explaining her views and the reasons why she believed the case should be dismissed. In a statement dated 30 October, the MOFA said the ruling was “null and void, and has no binding effect on China”, and warned that the case would damage “the integrity and authority of the UNCLOS”. The text said that “With regard to territorial sovereignty and maritime rights and interests, China will not accept any solution imposed on it or any unilateral resort to a third-party dispute settlement”. It also slammed the case as a “political provocation under the cloak of law”, stressing that China’s position, explained in her position paper, was “clear and explicit, and will not change”. Beijing once again underlined that she considered the Declaration on the Conduct of Parties in the South China Sea (DOC) to mean Manila had agreed to exclusively resort to “negotiations and consultations”.

While none of this comes as a surprise, it is not clear yet whether the ruling will contribute to a change in Chinese policy. Beijing may wait for the ruling on the merits, while completing the construction of military and dual-use facilities in her artificial islands and avoiding major incidents, keeping a lower profile. She may, on the other hand, declare an ADIZ (Air Defense Identification Zone). Either way, China may seek some accommodation with other littoral states, in order to prevent ASEAN from coordinating effectively and to limit the potential damage to her reputation that could result from appearing too inflexible. In the longer run, China may seek to either shape rules and institutions like UNCLOS and the PAC, or devise an alternative more to her liking. The first option could imply building an informal coalition with countries also keen to expand the rights of coastal states in their EEZs. However, at least two obstacles loom large, namely the unclear nature of Chinese claims (which may go much further than that) and the fact that some potential allies also happen to be rival claimants. The recent FONOP (freedom of navigation operation) in the South China Sea by USS Lassen has been supported by a number of regional states, even those like Vietnam who are also targeted by Washington’s freedom of navigation program. The second, more radical, option, would involve setting up an alternative institutional framework, as Beijing is gradually doing in the international financial arena with the Asian Infrastructure Investment Bank (AIIB) and the possible development of a RMB payments system independent of Swift.

Conclusions

Manila has won a victory in the first stage of the legal battle aimed at arresting Beijing’s expansion in the South China Sea. Although, as stressed by the Court, this does not prejudge the final decision on the merits of the case, major pillars of the PRC’s narrative, such as the alleged agreement with other countries to pursue negotiations only, have been blown out of the water. Faced with this, China may choose to ignore a decision in favor of Manila, thus putting a further dent on her prestige as a country respectful of international law and other nations, or seek some sort of accommodation, saving face while making some concessions. Some voices believe that China may already be starting to act in a more conciliatory manner, in the wake of the ruling on jurisdiction. However, flexibility may not be compatible with a public opinion that has repeatedly been told the South China Sea was “indisputably” Chinese, and which may turn on any leader ready to make concessions. Concerning the Philippines, even if success at this stage is repeated when the Court rules on the merits of the case, she needs to keep working on rearmament and stronger bilateral and multilateral relations with fellow maritime democracies and Vietnam, since otherwise the Court’s final ruling may amount to little more than a symbolic victory. Taiwan, not a party to UNCLOS, is however a very important actor in this dispute, and her East China Sea Peace Initiative and subsequent fisheries agreement with Japan may be vindicated if an arbitration ruling is followed by a peaceful settlement of the South China Sea dispute, or at least an agreement to set aside territorial claims while jointly managing resources and moving forward with confidence-building measures.

Alex Calvo, a guest professor at Nagoya University (Japan), focuses on security and defence policy, international law, and military history, in the Indian-Pacific Ocean Region. A member of Taiwan’s South China Sea Think-Tank and CIMSEC (The Center for International Maritime Security), his previous work on the South China Sea includes “China, the Philippines, Vietnam, and International Arbitration in the South China Sea”, The Asia Pacific Journal: Japan Focus, Volume 13, Issue 42, No. 2, 26 October 2015, available at http://japanfocus.org/-Alex-Calvo/4391/article.pdf He tweets at Alex__Calvo and his work can be found at https://nagoya-u.academia.edu/AlexCalvo

Asia-Pacific, Global Analysis, Territorial and Law of the Sea Disputes

The Nine Ironies of the South China Sea Mess

October 1, 2015 Guest Author 1 Comment

This article by Dr. James Kraska was originally published at The Diplomat. It is republished here with the author’s permission.

Since 2009, when China asked the secretary-general of the United Nations to circulate its nine-dashed line claim to the community of nations, the world has stood in bewilderment at Beijing’s actions in the South China Sea. Vietnam, Malaysia, and the Philippines have the most to lose over China’s gambit, and the disparity in power between them and China leaves them confounded and stunned – and privately, apoplectic. China’s policies have created a dangerous mess in the South China Sea. The irony is palpably bitter on nine distinct levels. Vietnam, Malaysia, and the Philippines hold the key to the best chance to fix the mess.

The first irony is that during negotiations for the UN Convention on the Law of the Sea (UNCLOS), the developing states reluctantly ceded freedom of navigation through straits and in the exclusive economic zone (EEZ) for exclusive offshore resource rights. Malaysia and Indonesia, in particular, were averse to free transit through the litany of straits that cut through their nations, such as the Strait of Malacca and Sunda Strait. They relented, however, because the benefits of the package deal, foremost of which included a 200 nm EEZ, overcame their hesitancy on free navigation. If you want to get something in maritime diplomacy – exclusive control over an area of ocean – you have to give something in return if the rest of the world is going to cede its rights.

China’s seizure of its neighbors’ EEZs shatters that bargain. The Third UN Conference on the Law of the Sea that produced UNCLOS was convened after Ambassador Avid Pardo issued a clarion call in the UN General Assembly in 1967 to designate the riches of the seabed as the common heritage of all mankind as a source of

A Chinese Coast Guard Ship fires water cannons at a Vietnamese Vessel in 2014.

development for the world’s poorest nations. Similarly, since 90 percent of the world’s fisheries lie within 200 nm of shore, the EEZ was created to ensure food security for developing states. Today the maritime states of Southeast Asia, more reliant on the sea than most, face the real prospect of losing their rightful bounty, even as they accepted they navigational provisions.

Second, China was a leader among the developing states pushing for increased and secure offshore fishing and mineral rights for coastal states. Now a first order power, China takes it all back. It is as though the United States, Japan and Russia, who successfully bargained for liberal rules to protect freedom of navigation in exchange for recognizing the EEZ, agreed to give up the right to distant water fishing. Then decades after signing the treaty, the maritime powers began again sending industrial factory fishing vessels to scour the EEZs of the developing world.

The United States, which initially opposed creation of the EEZ and is not a party to UNCLOS, promotes and respects other countries’ EEZ rights; China, which championed the EEZ, is a party to UNCLOS and yet does not respect the EEZ rights of its neighbors.

Strategic Hegemony

Third, at its core, the dispute between China and its neighbors is not about China’s voracious appetite for resources, but rather about fortifying Beijing’s power and strategic hegemony in East Asia. The irony is that there are few resources to be had in the South China Sea. Only CNOOC, the Chinese state-controlled offshore oil company, suggests there are large reservoirs of oil and gas in the South China Sea. The U.S. Energy Information Administration, in contrast, believes that although the South China Sea contains perhaps 11 billion barrels of oil and 190 trillion cubic feet of natural gas, those resources mostly reside in undisputed areas along the coastline outside of China’s nine-dashed line claim. Likewise, while the fisheries of the South China Sea once were rich, in recent years they have been grossly depleted. China operates the largest fishing fleet in the world, and is principally to blame. While the hydrocarbons and fishing resources are not enough to move the dial on the Chinese economy, they are critically important for the smaller populations and economies of Vietnam, Malaysia, the Philippines, Indonesia, and Brunei. The resource angle is a Chinese canard to mask a bold and strategic move.

Fourth, China serially insists on heartfelt and unique “interpretations” of international law to justify its South China Sea policy that lack any support outside China. We are told to abandon ethnocentric notions of international law and accommodate China’s outcome-based, albeit relatively recent way of thinking. Yet Beijing has demonstrated a sophisticated and patient adherence to the international law of land boundary disputes and signed fair and balanced treaties with 13 of 14 of its neighbors. It is as though there are two sets of Chinese Foreign Ministry lawyers – one informed by principles of international law and accepted norms, and another that appears incredulous to the most basic rules of the history, norms, and practices in the law of the sea. Chinese officials and scholars have been subject to an onslaught of tutorials and protests on maritime law by foreign lawyers and policy makers at countless official and Track II conferences and dialogues. The predictive pattern: The rest of the world argues until it is blue in the face, and Chinese representatives appear not to get it.

The only impediment to this theory, however, is that ironically China appears to actually understand the law of the sea when it is in its interest to do so. China has quietly reached amicable and even-handed agreements with both Vietnam and South Korea in the Gulf of Tonkin and Yellow Sea, respectively, to responsibly and equally divide fisheries and conduct joint enforcement patrols that reduce tension. Cooperation in these areas is strong and enduring, yet it attracts no media attention and elicits no question why China understands law of the sea norms in these areas, but utterly fails to grasp them in the South China Sea.

The fifth irony is that China has pocketed the rights it gained in UNCLOS, but had dodged its responsibilities. As a leader in offshore enclosure, China was a leader among a group of states from Asia, Africa, and Latin America, to expand the territorial sea from 3 nm to 12 nm and create the 200 nm EEZ. As a package deal, China and other state parties have a legal obligation to accept the obligations of the treaty along with the newly created rights. China has failed to observe its obligations to other states operating in its own territorial seas and EEZ. For example, China attaches conditions to the right of innocent passage in the territorial sea and freedom of navigation in the EEZ that not only are nowhere in UNCLOS, but were specifically rejected by the world community during the negotiations. Just as China fails to accept its obligations toward foreign ships and aircraft in its own EEZ, it has enjoyed the rights and freedoms of UNCLOS in other countries’ EEZs.

Dubious Claim

Sixth, even a sweepingly generous and sympathetic application of international law in favor of China’s claims fails to give Beijing anything more than a handful of tiny maritime zones in the region. Although China has declined to clarify the meaning of its nine-dash line

A depiction of China's "nine dashed line" claim — A depiction of China’s “nine dashed line” claim

and islands of the South China Sea. The numerous reefs, low-tide elevations, and skerries, however, are not subject to legal title and belong to the state on whose continental shelf they are located. While China has asserted a claim to the rocks and islands based on historic discovery, it has not put forth even a prima facie case to support such an audacious claim.

A prima facie case is one that asserts material facts and relevant law that would allow a judge to decide the case in favor of the proponent. In this case, however, even if one accepts as true that everything that China has said about its history in the region – a dubious proposition to be sure – China fails to assert a lawful claim. While China claims that its ancient records show that Chinese seafarers visited and named some of the rocks in the Spratly and Paracel Islands, it is not clear that the voyages were made as an official function of state or simple happenstance recorded by anonymous fishermen. As a matter of law, even if agents of the emperor visited the rocks and claimed them on his behalf, the visits are legally immaterial in the same way that the U.S. visits to the moon do not confer upon the United States legal title to that celestial body.

Mere discovery by itself is not a lawful basis for acquisition of territory, as the U.S. learned when it lost the seminal Island of Palmas arbitration in 1928. The island of Palmas lies between Indonesia and the Philippines, and the governments of the Netherlands and the United States, as colonial powers, submitted the dispute to arbitration. Although the United States asserted a claim of historic discovery on behalf of the Philippines from Spanish explorers, the arbitration panel awarded the island to the Netherlands because simple discovery without effective governance extending over a long period of time was immaterial as a matter of law. Island of Palmas is the most important case to uphold the legal principal that mere historic discovery is immaterial; other precedents include the Clipperton Island arbitration (France v. Mexico, 1933). In that case, Mexico, like the United States in the Palmas case, traced its claim of sovereignty from Spanish discovery. The arbitration, however, awarded the small feature to France based upon French occupation and usage.

Similarly, in the 1953 case at the International Court of Justice over the Minquiers and Écréhous groups in the Channel Islands, the court rejected a French claim based on historic presence and fishing rights that is remarkably similar to Chinese historic claims in the South China Sea. Instead, the court awarded the features to England based on subsequent exercise of jurisdiction over them by the Manorial court of the fief of Noirmont in Jersey. Furthermore, even assuming beyond the evidence that China actually had lawful title to the rocks and islands, it lost them long ago. This has nothing to do with Western imperialism, but rather China’s closure to the rest of the world. Inactivity and lack of official presence in a feature constitutes abandonment of title over time.

Maritime Zones

Seventh, while China has not made a prima facie case, let’s assume that it magically acquired legal title to every one of the rocks and islands in the South China Sea. In this case, under the law, China could be awarded only tiny maritime zones around them. States seek to augment or buttress their claims to tiny features in the vain hope that they can secure large maritime zones of sovereignty, sovereign rights, and jurisdiction over the adjacent waters. The mindset that a nation can strike a bonanza of offshore territory and wealth from a tiny dot of coral is one of those “too good to be true” stories that never seem to die. Apparently, the potential jackpot for making such claims is too great to resist. A mid-ocean low-tide elevation, which is below water at high tide, but above water at low tide, is not entitled to any territorial sea. Zero.

A tiny rock jutting above water at high tide generates a territorial sea of only 452 nm². In contrast, a bona fide island capable of sustaining human habitation or an economic life of its own generates an EEZ of 125,664 nm², an area more than 275 times larger. Of course, if any of these zones overlap with another country’s zones, they have to be adjusted, and in the South China Sea, there’s the rub. International courts have uniformly rejected the idea that small features of any sort are entitled to large maritime zones, but the judgments in cases of overlapping zones are especially harsh. In the 2012 case between Nicaragua and Colombia at the ICJ, for example, the Court awarded legal title to Colombia to two tiny rocks, and then confined them within 12 nm territorial sea enclaves set within Nicaragua’s EEZ. The court did so by comparing the vast disparity of shoreline facing the area of ocean subject to dispute, and noted that while Columbia had minimal shoreline from its rock possessions, Nicaragua’s shoreline generated by its lengthy mainland coast was eight times longer. This principle of shoreline disparity examines only that coast from islands or mainland that actually face toward the opposing disputant, and it is particularly salient for the ASEAN states vis-à-vis China in the South China Sea. Take Vietnam, for example. Vietnam has a 2,200 km coastline facing the South China Sea, which is hundreds of times greater than the combined coastline of every rock and island in the region that faces Vietnam. Under the ICJ formula, Vietnam is accorded a vast, normal EEZ from its long coast, and whichever country has title to the islands within Vietnam’s EEZ would be afforded a very minimal zone. The precedent suggests that rather than winning the jackpot, the state with title to tiny, insignificant features that lie within another country’s EEZ are awarded rather tiny and insignificant rights over the nearby water.

Eighth, China’s herculean effort to construct and occupy new artificial islands in the South China Sea is also legally nugatory. China has constructed enormous artificial islands from seven reefs: Mischief Reef, Gaven Reef, Hughes Reef, Subi Reef, Fiery Cross Reef, Johnson Reef, and Cuarton Reef. Analysis at Middlebury College identifies each of these reefs appears to be a low-tide elevation; the Philippines has suggested in its arbitration filing against China that the latter three are rocks.

No matter how large an artificial island is constructed, it cannot acquire additional or new legal rights over what it is entitled to in its natural state. While China has expended enormous political capital and scared its neighbors into unprecedented embrace of the United States, India, and Japan, it has actually weakened, rather than strengthened its legal position in the South China

Construction activities on the Spratleys, seen July of this year.

Sea. Why? Because the burden of proof of whether a feature is in its natural state a rock entitled to a 12 nm territorial sea and not a low-tide elevation entitled to nothing lies with the claimant. But now that China has so irreparably tampered with the evidence, it is virtually impossible to divine the natural state of its artificial islands. Some sources have recorded all of the features as mere low-tide elevations, whereas others say that at least some may be rocks. We may never know for sure now that China has hideously transformed them.

Appreciating Irony

The ninth and final irony in the South China Sea is that the principal coastal states that stand to benefit from the rule of law do not fully appreciate the ironies and so far have been unable to form a coherent approach to preserve their rights, yet the key is solely within their grasp. Brunei and Indonesia do not claim any feature in the South China Sea. Their EEZs are encroached upon by China, but because they claim no rocks, they are secondary to the disputes. Vietnam, Malaysia, and the Philippines all assert far-reaching claims over various reefs, rocks and islands in the region. These three frontline states have the most to gain from cooperation, and the most to lose from Chinese maritime hegemony. These states must recognize now that they face an imminent threat of losing their EEZ to China, but how can they secure their moral and legal inheritance from UNCLOS?

First, Vietnam, Malaysia, and the Philippines should renounce their claim to any feature that is within the natural EEZ generated by a neighboring mainland or large island coastlines, such as Borneo, Mindanao, and Palawan. The same greed and historic hogwash that drives China’s audacious claims also sometimes attracts the frontline states, ruining any chance that they can work together. Only by renouncing legally specious claims against tiny features that generate tiny maritime zones can these states ensure that they preserve the EEZ. For developing states, the EEZ was the crown jewel of rights and jurisdiction in UNCLOS, and insistence upon unrealistic claims against their neighbors only ensures that they will lose it all. Unless these states work together, they will slowly but surely lose their EEZs, the principal inheritance that the law of the sea conferred on developing states.

If Vietnam, Malaysia, and the Philippines can foreswear a claim of title to any feature within the EEZs of its neighbors, they can present a united front against China. Unity among the three nations is the best bet for galvanizing support within ASEAN, and by the member states of the European Union and NATO, and perhaps even Russia. By further diplomatically isolating China, Vietnam, the Philippines, and Malaysia drastically raise the costs for Beijing, while lowering the costs for states outside the region to support them. American support for such a plan, for example, levels the playing field, while nominally avoiding “taking sides” with a particular claimant. By giving up legally unsupportable claims that encroach on their neighbors EEZs, the frontline states assure they enjoy their rightful legacy of UNCLOS.

James Kraska is professor in the Stockton Center for the Study of International Law at the U.S. Naval War College and senior associate with the China Maritime Studies Institute, also at the Naval War College.

Featured Image: CSIS Asia Maritime Transparency Strategy Initiative via Reuters.

Europe, Territorial and Law of the Sea Disputes

Gibraltar: Legal Advice on Innocent Passage

September 4, 2015 Guest Author 21 Comments

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While tensions over the South China Sea often prompt headlines, attracting a great deal of attention by analysts, the dispute over Gibraltar has a much smaller presence in the media and specialized publications. However, given its location at a vital chokepoint, the conflict over the Rock cannot be ignored by naval and maritime observers. Furthermore, for the student of comparative conflict at sea it is interesting to look at some of its features, including disputes over the law of the sea and resort to non-lethal asymmetric warfare, which we also find elsewhere. A third reason is Gibraltar’s role in the air reinforcement strategy for the defence of the Falklands, an issue that China watchers are increasingly paying attention to, given Beijing’s growing interest in the South Atlantic, including Namibia.

Just like in the South China Sea, one of the aspects of the dispute over Gibraltar concerns the concept of “Innocent Passage”. In the case of the Rock, intruding warships have often claimed to be engaged in this regime, recognized by international law, both customary and UNCLOS (United Nations Convention on the Law of the Sea). However, Gibraltar’s authorities have rejected such claims, arguing that they were a mere excuse to justify incursions into British Territorial Waters. In order to reinforce their case, Gibraltar’s government announced in November 2014 that it had commissioned an expert legal opinion on the definition of innocent passage under UNCLOS. The latest string of incidents prompted the Gibraltar Broadcasting Corporation (GBC) to ask the Rock’s authorities whether the opinion had been received, and they replied confirming it had. According to the GBC, the opinion explains that “A vessel can only be considered to be on innocent passage through British Gibraltar Territorial Waters if it’s moving continuously and expeditiously, and is not engaged in any activities that are prejudicial to Gibraltar or the UK”, adding that “when it appears objectively from the foreign vessel’s behaviour that its purpose in passing through BGTW is to assert its country’s sovereignty claim over the waters, its passage would not be deemed to be innocent under international law.”^¹

HMS Scimitar escorting Spanish Govt vessel Emma Bardan out of BGTWs

On reading the GBC report, Luke Coffey, Margaret Thatcher Fellow, Margaret Thatcher Center for Freedom, The Heritage Foundation, tweeted “Spain in violation of UNCLOS, Article19 (Meaning of innocent passage), paragraph 2C, 2D, 2J, probably 2K and 2L!!”.^² These passages of UNCLOS read:

“Meaning of innocent passage

1. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law.

2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities:

(d) any act of propaganda aimed at affecting the defence or security of the coastal State;

(j) the carrying out of research or survey activities;

(k) any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State;

(l) any other activity not having a direct bearing on passage”.

It could also be argued that incursions into Gibraltar’s territorial waters amount to a violation of paragraph (a) of the mentioned UNCLOS article, which reads “ any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations”, given that they take place in parallel with a denial of the British sovereignty over the Rock and her population’s right to self-determination.

However, innocent passage is a key concept in the law of the sea, and cannot be easily dismissed. Any attempt to deny that a warship moving through territorial waters enjoys it must be approached with care. This was made clear by James Kraska, a professor at the US Naval War College, who also commented on the Gibraltar report. Kraska stressed on Twitter that a “[t]hreat may not be implied based on mere presence, but must be overt, such as statement or action, such as fire control radar,” adding “See Jackson Hole Agreement; purpose of trip irrelevant; must have overt violation of art. 19 to be not innocent.”^³ This refers to the 1989 USA-USSR Joint Statement With Attached Uniform Interpretation of Rules of International Law Governing Innocent Passage, known as “Jackson Hole Agreement”, whose text states that “All ships, including warships, regardless of cargo, armament or means of propulsion, enjoy the right of innocent passage through the territorial sea in accordance with international law, for which neither prior notification nor authorization is required”, in accordance with UNCLOS.

A difference between Cold War maritime confrontations and the dispute over Gibraltar is that in the former, it was the limits of innocent passage, which were disputed, ultimately leading to the 1989 Joint Statement. However, in the case of the Rock, vessels violating her territorial waters claim that those waters do not exist. Another difference to take into account is that while ramming featured in a number of incidents during the Cold War, the context was mainly a threat of conventional war at sea. On the other hand, what we are now seeing in regions like the South China Sea is mainly non-lethal warfare, featuring a complex mix of coastguards and other state agencies, fishing boats, maritime militias, and oil rigs. In Asia, this phenomenon is called the “gray zone” between peace and war. This does not mean that the conventional force is irrelevant, since what we are facing in the South China Sea is a dual war akin to the Second Indochina War on land. Concerning Gibraltar, the fact that intruding ships purport to conduct “sovereignty” patrols means that their passage is not innocent within the meaning of Article 19 of UNCLOS. The very purpose of those incursions is to undermine the “peace, good order, and security” of the territorial waters of the United Kingdom.

Could the legal opinion provided to Gibraltar’s Government have any influence on the legal dispute over the South China Sea? As is often the case, lawyers on both sides may find something to support their respective views. On the one hand, maritime democracies are bound to benefit from any obstacle to further incursions into British Territorial Waters, which not only run directly against the concept of rule of law at sea and peaceful resolution of disputes, but make it difficult for the European Union to play a role in the South China Sea. On the other hand, China may expand the notion that a warship moving through territorial waters is not engaged in innocent passage when making a territorial claim, arguing that neither is she when contesting a territorial claim. The challenge, however, remains how to distinguish lawful innocent passage, no matter how disliked by the coastal state, from genuine threats to “peace, good order, or security” of the coastal state. Kraska underlines that for this analysis, we must fall back on the Charter of the United Nations, which forbids the “threat or use of force.” A factor not to be forgotten is Beijing’s permanent seat at the UNSC, meaning that whatever interpretation of the UN charter may prevail among maritime democracies, it is unlikely to make it into a Security Council resolution if it is seen by China as detrimental to her national security. Recent months have seen many proposals concerning a reinforced presence by maritime democracies in waters claimed by Beijing in the South China Sea, and the airspace over them, as well as a number of incidents involving warships and planes in those same waters. The former include a study by Scott Cheney-Peters on joint air patrols, whose main purpose would be “to counter excessive claims and rights not in accordance with international law.”

It would be interesting to see the full text of the legal opinion commissioned by Gibraltar’s Government. In any case, the information released about it should serve as a reminder that in a global, inter-connected, world, each maritime dispute may certainly be unique, but it makes sense to study them from a comparative perspective, among other reasons because in both diplomacy (including public diplomacy) and international legal and arbitration proceedings, anything considered as a precedent may be used to defend one’s position.

Alex Calvo, a guest professor at Nagoya University (Japan), focuses on security and defence policy, international law, and military history, in the Indian-Pacific Ocean Region. He tweets at Alex__Calvo and his work, which includes “China’s Air Defense Identification Zone: Concept, Issues at Stake and Regional Impact”, Naval War College Press Working Papers, No 1, US Naval War College, 23 December 2013, available here, can be found at https://nagoya-u.academia.edu/AlexCalvo

1Source kindly pointed out by Michael J. Sanchez, founder of OP-WEST. An interview with Sanchez, where he explains the origins and work of OP-WEST, is available at A. Calvo, “OP-WEST: Open Source Intel in Contested Maritime Spaces”, Center for International Maritime Security (CIMSEC), 1 April 2015, https://cimsec.org/op-west-open-source-intel-contested-maritime-spaces/15718

2 Tweet by @LukeDCoffey dated 18 August 2015.

3 Tweets by @JamesKraska dated 19 August 2015.

Fostering the Discussion on Securing the Seas.