Tag Archives: UNCLOS

The “Mighty Moo” Maneuvers Around Trouble

The Mighty Moo, USS Cowpens, maneuvering with the deftness of its heifer namesake.
The Mighty Moo, USS Cowpens (GG-63), maneuvering with the deftness of its heifer namesake.

The recent near-collision of a PLA Navy tank landing ship and the missile-guided cruiser USS Cowpens in the South China Sea represents yet another incident in a long line of instances of Chinese gamesmanship with the US Navy extending back to the March 2009 harassment of the USNS Impeccable and the 2001 downing of an EP-3. In each of these cases, the Chinese took issue with the United State conducting surveillance of Chinese military targets at sea or on the Chinese mainland (in this case, the Cowpens was conducting surveillance of the PLAN aircraft carrier Liaoning, which was for the first time conducting exercises in the South China Sea).

All three occurred in the South China Sea, although it is not currently clear from media reports where exactly the most recent confrontation took place. This could prove to be an important distinction. Previously, Beijing justified its escalatory responses to US actions by saying that they interpreted U.N. Convention on the Law of the Sea (UNCLOS) to mean that military activities within the Chinese exclusive economic zone (EEZ) were prohibited without the consent of China. The EP-3 and Impeccable incidents both occurred near Hainan Island, inside the Chinese EEZ. If this most recent escalatory move occurred outside the EEZ, it will be particularly interesting to see how China justifies itself. Are they expanding their legal interpretation further by claiming that all military activities conducted in waters within the so-called “nine-dash line” must receive Chinese approval? This of course is conjecture—especially given that as of this writing it also appears from a cursory glance of Chinese-language news websites that neither the PLA nor the Chinese Ministry of Foreign Affairs has yet made a statement. At that point this issue will require the analysis of individuals better trained in the vagaries of Chinese territorial legal disputes than I.

Also pertinent to this debate is the recent admission at this year’s Shangri-La Dialogue (by a Chinese military officer no less!) that the PLAN was itself already conducting surveillance of U.S. military installations on Guam and Hawaii within U.S. EEZs around those islands. As Rory Medcalf points out, this clearly contradicts the Chinese legal position on the matter. At what point will this hypocrisy actually catch up with the PLA and necessitate a change in China’s legal position?

Last week at an event at the Wilson Center, Oriana Skylar Mastro suggested that China’s recent announcement of the East China Sea Air Defense Identification Zone (ADIZ) fits into a pattern of Chinese “coercive diplomacy,” in which China manipulates risk and intentionally raises the risk of an accident, a view echoed by other analysts in an approach known as salami tactics. In this way, China stops just short of further escalation, and achieves its objectives of slowly chipping away at opposing territorial positions and international legal norms. This analysis is clearly simpatico with her earlier published work regarding the Impeccable incident and the most recent confrontation involving the USS Cowpens. In her paper, Dr. Mastro identified a coordinated Chinese media campaign and legal challenge that accompanied the PLA’s military provocation. She also recommended that in order to prevent further Chinese attempts at escalation, the United States should publicize these events, directly challenge the Chinese legal position, and maintain a strong presence in the area, all things which the United States is now doing (specifically in the Cowpens case, the Department of Defense broke the story).

These are sound responses to Chinese attempts to delegitimize lawful operations in international waters. What should the United States not do? In an article published by the Washington Free Beacon, Bill Gertz quotes a senior fellow at the International Assessment and Strategy Center, Rick Fisher, who suggests that China in this incident is intentionally “looking for a fight” that will “cow the Americans,” and that the United States and Japan should heavily fortify the Senkaku/Diaoyu Islands in response. Aside from the fact that China certainly is not “looking for a fight,” fortifying the Senkaku/Diaoyu Islands would be a terrible idea. The U.S. government does not even take an official position on the islands’ sovereignty! The U.S. response should certainly be firm in insisting that surveillance within foreign EEZs is completely legitimate and lawful; but turning this issue into about something other than surveillance in international waters would be blowing it out of all proportion. The United States should, in contrast to the ways in which China’s behavior is perceived, proceed carefully but resolutely and stick to its guns.

William Yale is a graduate student at Johns Hopkins SAIS. He has lived in China for two years, and worked at the Naval War College and the U.S. State Department. He tweets @wayale and blogs at williamyale.com.

Notes From the North: Canada and Russia Bolster their Arctic Ambitions

With a cold chill blowing through DC, it seems fitting to note several recent Arctic developments.

Canada on Friday submitted a claim to the U.N. Commission on the Limits of the Continental Shelf that argues for an increased maritime share beyond its Exclusive Economic Zone of the (mostly) North Atlantic and Arctic, which would grant it rights to the resources contained therein on the seabed and is based on the nation’s view of the proper demarcation of the undersea continental shelves. Russia and Denmark are both expected to file overlapping claims with the commission.

Current and expected claims beyond nations’ EEZs.

While Friday was the “official” deadline for Canada, as it was 10 years after the nation signed the U.N. Convention on the Law of the Sea (UNCLOS), officials have said it will submit additional claims. Any such claims could extend to the North Pole once on-going scientific surveys have been completed to back the nation’s position (by treaty no country can claim sovereignty over the North Pole itself). Russia filed in 2001, although it was subsequently been told it needs further scientific backing and officials have stated they face “no real deadline” to finalize their claims, which included the undersea Lomonosov Ridge, running from the East Siberian coast along the North Pole to Canada’s Ellesmere Island, thus creating the potential for conflict if the next set of Canadian claims includes the Lomonosov Ridge. Denmark’s claims, based on its possession of Greenland, are due in 2014, and could likewise overlap with Canada’s. Norway has already had its non-contentious filings validated. The United States, meanwhile as a non-signatory to UNCLOS, is ineligible to submit claims to the Commission but has sought to bilaterally negotiate its claims according to UNCLOS principles, notably with Canada.

For those countries that have submitted, the Commission is expected to take as long as 5 years to process and scientifically validate the filings (actual arbitration is still up to the countries involved), and the the further north the claims, the less they have to do with resource exploitation. As reported by the AP, Michael Byers, “an expert on Arctic and international law at the University of British Columbia” said,

“We’re talking about the center of a large, inhospitable ocean that is in total darkness for three months each year, thousands of miles from any port,” he said. “The water in the North Pole is 12,000 feet (3,650 meters) deep and will always be covered by sea ice in the winter. It’s not a place where anyone is going to be drilling for oil and gas…So it’s not about economic stakes, it’s about domestic politics.” 

As anticipated, Russia, which has spent the year signaling its intent to bolster its Arctic naval forces, responded to Canada’s filings with more of the same. Our comrade at RussianNavyBlog noted on Monday the announcement of the formal incorporation of the Russian Navy’s Arctic Group of Forces in 2014 and basing arrangements and refurbishments:

Russia plants flag at North Pole, no sign of Santa or Buddy the Elf.
Russia plants flag at North Pole in 2007. No sign of Santa or Buddy the Elf.

The BBC says that on Tuesday during a high-level meeting of Russian military leadership Putin commended the reopening of a previously closed high-Arctic airfield and reiterated the need to prioritize the Arctic, with a correspondent emphasizing that “this was one of his most direct orders yet.” The practical implications of the Arctic Group remains to be seen, and armed conflict is unlikely with announcements on both sides, as noted above mostly playing to domestic audiences. On the other hand, projections of increased shipping traffic and commercial activity in the north got a boost from the U.S. Department of Energy and U.S. Navy this week when findings of a joint research project predicted ice-free summers by 2016, decades earlier than most (but not all) conventional models have estimated (see here for the official U.S. Navy timeline to ice-free transit). If true, the rush to solidify coast guard and national security functions near Santa’s Workshop may prove warranted. The Arctic remains a region to keep an eye on.

LT Scott Cheney-Peters is a surface warfare officer in the U.S. Navy Reserve and the former editor of Surface Warfare magazine. He is the founding director of the Center for International Maritime Security and holds a master’s degree in National Security and Strategic Studies from the U.S. Naval War College.

The opinions and views expressed in this post are his alone and are presented in his personal capacity. They do not necessarily represent the views of U.S. Department of Defense or the U.S. Navy. 

Choosing Sides or Choosing Peace? U.S. Strategy in the South China Sea Dispute

The National Interest on Monday published an intriguing article by Ted Galen Carpenter discussing the potential implications of President Obama’s current South China Sea (SCS) strategy.  During the East Asia Summit, where the President was forced to send Secretary of State Kerry in his place so he could focus on the government shutdown, Secretary Kerry took a supportive (some would say meddling) position in defense of Manila stating that “all claimants have a responsibility to clarify and align their claims with international law. They can engage in arbitration and other means of peaceful negotiations.”

Although many welcome America’s “pivot” to Asia, many more are trying to grasp what that really means. Does it mean greater military presence, more economic influence? Or, as Carpenter’s article suggests, taking sides in the sovereignty disputes in which most of the tension in the region is moored? Before drawing conclusions that Secretary Kerry’s statement provides some sort of clue, it would be prudent to examine what the arbitration filing actually is and what it requests. 

Reefs and LinesFor background, the United Nation Convention on the Law of the Sea (UNCLOS) provides a dispute-settlement regime that requires signatory States, such as China and the Philippines, to resolve their disputes peacefully: first through negotiation, and then if that doesn’t work, States can choose from four options. These options include submission of the dispute to the International Court of Justice, to the International Tribunal for the Law of the Sea, conciliation, or go to an arbitral tribunal.  Without delving into too much procedural detail, the arbitral tribunal is usually the most attractive because it allows the States to choose who their adjudicators will be. 

So what does supporting Manila’s arbitral filing suggest with regard to interpreting the Obama Administration’s position in the dispute? To figure that out comes down to determining what the Philippines is really asking the arbitral tribunal to do. Whereas the underlying tensions of the dispute relate to which State owns what island, Manila has cleverly requested that the tribunal restrict its judgment to something much more precise. Specifically, the arbitration request doesn’t ask the tribunal to determine ownership on a historical basis per se, but that it only clearly establish the sovereignty rights of the Philippines under UNCLOS due to the claimed non-island status of the reefs and shoals. The Philippines have requested the tribunal to:

a. declare that China’s rights in regard to maritime areas in the SCS, like the rights of the Philippines, are those established by UNCLOS;

b. declare that China’s maritime claims in the SCS based on its so-called “nine-dash line” are contrary to UNCLOS and invalid;

c. require China bring its domestic legislation into conformity with its obligations under UNCLOS;

d. declare that Mischief Reef and McKennan Reef are submerged features that form part of the Continental Shelf of the Philippines under Part VI of the Convention, and that China’s occupation of and construction activities on them violate the sovereign rights of the Philippines;

e. require that China end its occupation of and activities on Mischief Reef and McKennan Reef;

f. declare that Gaven Reef and Subi Reef are submerged features that are not above sea level at high tide, not islands under UNCLOS, not located on China’s Continental Shelf, and China’s occupation and construction activities on these features are unlawful;

g. require China to terminate its occupation of and activities on Gaven Reef and Subi Reef;

h. declare that Scarborough Shoal, Johnson Reef, Cuarteron Reef and Fiery Cross Reef are submerged features and are “rocks” under Article 121(3) of UNCLOS;

i. require that China refrain from preventing Philippine vessels from exploiting the living resources in the waters adjacent to Scarborough Shoal and Johnson Reef;

j. declare that the Philippines is entitled under UNCLOS to a 12nm territorial sea, a 200nm Exclusive Economic Zone (EEZ), and a Continental Shelf under UNCLOS, measured from its archipelagic baselines;

k. declare that China has unlawfully claimed, and has unlawfully exploited, the living ad non-living resources in the Philippines’ EEZ and Continental Shelf;

l. declare that China has unlawfully interfered with the exercise by the Philippines of its rights to navigation and other rights provided under UNCLOS;

m. require China desist from these unlawful activities.

Note: China has refused the arbitration request.  Annex VII, Article 9 of UNCLOS, however, provides that “if one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.”

Although the Philippines did not request that the tribunal resolve the sovereignty claims directly, it does ask it to determine a very significant issue: whether the disputed features are rocks or islands. In these instances, the Philippines believes determinations that they are not islands would further its aims. For even if China retained ownership it would minimize the extent of China’s territorial claims under international law. This is because under UNCLOS, rocks only get 12nm of territorial seas. Islands, however, get 12nm of territorial seas AND 200nm of an exclusive economic zone. This is why each and every island/rock matters and why there is so much at stake. It’s critical to remember that the fight is not over what is on the island/rock, but the resources in the water column and shelf surrounding the island/rock.

Turning back to the Obama Administration’s SCS strategy, Secretary Kerry’s statement may be interpreted in at least two-ways. The statement could suggest support of Manila’s sovereignty claims and therefore the U.S. would be taking sides. The statement could also suggest support of Manila’s right to argue their claims under international law and therefore the U.S. would be supporting a peaceful settlement of the dispute in an international forum rather than a regional one. Carpenter’s article does an excellent job of describing the potential implications if the U.S. strategy included choosing sides. On the other hand, if the U.S. is supporting Manila’s right to argue their claims under international law, the implications for the U.S. could be a loss of credibility. It continues to remain harmful for the United States, especially in the SCS context, to keep suggesting that this dispute ought to be settled under UNCLOS because the U.S., due to political reasons in the Senate, has yet to ratify this critical treaty.

LT Dennis Harbin is a qualified surface warfare officer and is currently enrolled at Penn State Law in the Navy’s Law Education Program.  The opinions and views expressed in this post are his alone and are presented in his personal capacity.  They do not necessarily represent the views of U.S. Department of Defense or the U.S. Navy. This article is for informational purposes only and not for the purpose of providing legal advice.


Tribunal Selected in Philippines Case Against China

DisputedThe Philippines case against China’s maritime claims is moving forward. The Philippines on Jan. 22nd asked the International Tribunal for the Law of the Sea (ITLOS), to declare invalid China’s claims over the contested waters in the West Philippine Sea/South China Sea. ITLOS, established as an independent body by the UN Convention on the Law of the Sea (UNCLOS), has named Ghanian and former ITLOS head Thomas Mensah as president and final member of the 5-person panel that will hear the case. Mensah replaces a Sri Lankan judge who was removed for conflict of interest due to his Filipino wife.

While China has rejected the proceedings and refuses to abide by their rulings, as noted by Rappler.com, this will not at least necessarily impede the proceedings. Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS) states:

“If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.”