Pacific Exclusive Economic Zones. David Butler/Globe staff, click on the chart to enlarge
An interesting discussion took place in the Boston Globeabout how to deal with potential changes in the world’s Exclusive Economic Zones (EEZs) as rising sea levels change the shape of land areas, perhaps resulting in the complete disappearance of some sovereign nations.
One of the possibilities is that the EEZs may be frozen in their current configuration and become an asset of the population, even after the land becomes uninhabitable or disappears completely, and that this asset may be sold, traded, or leased away. We know territorial sovereignty can be sold, after all, the United States benefited from the Louisiana Purchase and Seward’s Folly (Alaska).
A Chinese corporation has been attempting to build a new port complex on “reclaimed” land in Sri Lanka. “Located next to the Colombo Port, the US$1.4 billion project will add about 233 hectares of reclaimed land to the capital and house luxury office buildings, apartment blocks, a golf course, a water sport area, medical facilities, education institutions, hotels, a theme park and marinas.” The project is on hold right now, but if it goes forward, the Chinese firm would be granted 20 hectares (49.4 acres) on an outright basis and 88 hectares (244.6 acres) on a 99-year lease.
This is not a transfer of sovereignty, and Sri Lanka is not in any danger of disappearing, but it does indicate the scope of China’s interest in the area and, located right off the Southern tip of India, it is sure to feed into India’s fears of being surrounded by a Chinese “string of pearls.”
Potentially more serious is the decision of the government of the Maldives,“The law passed by the Parliament will now allow absolute foreign ownership of land in Maldives if the investment is above USD 1 billion. The caveat to the law is that 70% of the land has to be reclaimed from the sea.”
The Maldives, with an average elevation of 1.6 meters, is one of those island nations in danger of being adversely effected by rising sea levels. If anyone takes the Maldives up on their offer, it will probably be the Chinese, who have already shown a lot of interest in the Indian Ocean island nation, despite Maldivan assurances to India that no Chinese military base will be allowed on its land. Again this is not a transfer of sovereignty, but it may be a harbinger of things to come
Besides I really wanted everyone to see the chart of Pacific EEZs. A lot of that is U.S. EEZ.
This article can be found in its original form on Chuck Hill’s CG blog. Chuck retired from the Coast Guard after 22 years service. Assignments included four ships, Rescue Coordination Center New Orleans, CG HQ, Fleet Training Group San Diego, Naval War College, and Maritime Defense Zone Pacific/Pacific Area Ops/Readiness/Plans. Along the way he became the first Coast Guard officer to complete the Tactical Action Officer (TAO) course and also completed the Naval Control of Shipping course. He has had a life-long interest in naval ships and history.
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Network-Centric Warfare derives its power from the strong networking of a well-informed but geographically dispersed force. – VADM Arthur Cebrowski, Proceedings 1998
Almost twenty years ago the pages of Proceedings carried an article by RDML Cebrowski that introduced the concept of network-centric, or net-centric, warfare.[1] The concept transformed the manner in which the United States (U.S.) Navy operates and fights. The principles that defined net-centric warfare remain relevant as they support Navy’s current pillars of Information Dominance: Battlespace Awareness, Assured Command and Control (C2), and Integrated Fires. The success of net-centric warfare has not gone unnoticed. Navies around the world are working to develop their own net-centric solutions. As a result, the U.S. Navy should not be surprised when enterprising individuals around the world similarly take note and make the evolutionary leap from traditional piracy to net-centric piracy.
While piracy has been a scourge for the duration of human history, the technological advances of the 21st century provide potential pirates transformational means, methods and opportunities. While the world has yet to witness a case of net-centric piracy, the two scenarios below present possible piracy events leveraging today’s technology.
Basic Net-centric Piracy
Sixty-two nautical miles south east of Singapore – 17JUL15 1154C: An Indonesian pirate opens his laptop and logs onto the internet via satellite phone. His homepage is a commercial Automated Identification System (AIS) website providing real-time track data from coastal and satellite receivers.[2] The laptop, satellite phone and website subscription were all funded by his investors.[3] As he scans his homepage, he looks for AIS contacts that meet his desired vessel profile for cargo type, transportation firm, flag, and speed of advance. Today there are two AIS tracks of interest matching his profile and likely to pass through his preferred zone of operation, MV OCEAN HORIZONS and MW ORIENTAL DAWN. He then checks weather conditions and determining that they are favorable, he sends individual texts messages containing coordinate and track data for the AIS tracks of interest. The text recipients are two fishing boat captains, one located in Belawan, Indonesia and the other in Dungun, Malaysia.
From: The Maritime Executive – Indonesian Pirates
Forty-six nautical miles east of Belwan, Indonesia – 17JUL15 1646C: MV ORIENTAL DAWN passes a non-descript fishing boat 46 nautical miles off the coast of Indonesia. Unbeknownst to the crew of the MV ORIENTAL DAWN, this fishing boat is captained by the pirate’s associate from Belawan. The fishing boat’s captain discretely observes the passing vessel through a pair of high-powered binoculars. Seeing barbed wire along the railings and an individual on the ship’s deck that does not appear to be a member of the crew, the fishing boat captain utilizes a satellite phone to call and report his observations to his Indonesian pirate contact. Based on this information the Indonesian pirate determines that MV ORIENTAL DAWN is not a suitable target.
One-hundred seventeen nautical miles east of Singapore – 17JUL15 1707C: The Indonesian pirate receives a call. This time it is the fishing boat captain from Dungun. The captain reports that the MV OCEAN HORIZONS is loaded down creating a smaller freeboard and there does not appear to be any additional security measures present. Given this assessment, the Indonesian pirate decides that MV OCEAN HORIZONS is a target of opportunity. He immediately has the crew of his ship alter course.
Thirty-seven nautical miles east of Pekan, Malaysia – 18JUL15 0412C: The Indonesian pirate launches two high-speed skiffs from his ship, both carrying multiple armed personnel. The Indonesian pirate mothership remains over the horizon, but in radio contact while the skiffs conduct the remainder of the intercept.
Sixty-two nautical miles east of Pekan, Malaysia – 18JUL15 0642C: The armed personnel from the skiffs board MV OCEAN HORIZONS and catch the crew off guard. Once in control of the ship, they contact the Indonesian pirate via radio and report their success. The Indonesian pirate immediately opens his laptop and reports his success to his investors. He also lists the ship’s cargo for auction on a dark website and sends a ransom demand to the employer of the MV OCEAN HORIZON crew.
Sophisticated Net-centric Piracy
Moscow, Russia – 17JUL15 0126D: After a series of all-nighters over the last week, a Russian hacker has gained access to a crewmember’s computer onboard the MV PACIFIC TREADER.[4] Using this access he maps the shipboard network. Discovering a diagnostic and maintenance laptop used for the ship’s automation and control system on the network, he quickly exploits the laptop’s outdated and unpatched operating system to install a tool on the automation and control system.[5] The tool enables a remote user to either trigger or disable a continual reboot condition. Once installed, the hacker posts the access information for the tool’s front end user interface in a private dark web chatroom.
Prague, Czech Republic – 16JUL15 2348A: Sitting in his Prague apartment, a pirate receives a message on his cellphone via a private dark web chatroom. The message is from one of several hackers he contracted to gain access to control or navigation systems onboard vessels operated by the TRANS-PACIFIC SHIPPING LINE. With the posted access information, he logs onto his laptop and tests his access into the MV PACIFIC TREADER automation and control system. After successfully establishing a connection he closes out of the tool and electronically transfers half of a contracted payment due to his hired hacker. Next using a commercial AIS website providing real-time track data from coastal and satellite receivers, he determines that MV PACIFIC TREADER is likely headed into port in Hong Kong.[6] Posting a message in a different private dark web chatroom, the pirate provides the identifying information for MV PACIFIC TREADER.
Hong Kong, China – 19JUL15 0306H: On a rooftop in Hong Kong, a young college student pulls an aerial drone out of her backpack. She bought it online and it is reportedly one of the quietest drones on the market. She also pulls three box-shaped objects out of her backpack. Hooking one of the objects to the drone, she launches it and flies it across Hong Kong harbor in the direction of a ship she identified during the day as the MV PACIFIC TREADER. Using the cover of darkness she lands the drone on the top of the pilot house and releases the object. Repeating this process twice more, she places the box shaped objects on other inconspicuous locations on the ship. After bagging up her drone, she posts a message to a dark web chatroom simply stating that her task is complete. Almost immediately afterwards she receives a notification that a deposit was made into her online bank account.
Prague, Czech Republic – 25JUL15 1732A: After eating a home-cooked meal, the pirate sits down at his laptop and checks the position of MV PACIFIC TREADER via the commercial AIS website he subscribes to. Observing that the MV PACIFIC TREADER is relatively isolated in the middle of the Pacific Ocean, he opens the remote tool that provides him access to the ship’s automation and control system. He sends a text message and then clicks to activate the tool.
Two-thousand ninety-three nautical miles north east of Hong Kong – 26JUL15 0332K: Onboard MV PACIFIC TREADER an explosion engulfs the bow of the ships sending flames into the dark air. Immediately, the ship’s engines roll to a stop as the navigation and ship’s control system computers go into a reboot cycle. The lone watchstander on the bridge is paralyzed to inaction by the surprise and violence of the events unfolding around him. The Master immediately comes to the bridge, completely confused by the events occurring onboard his ship.
Prague, Czech Republic – 25JUL15 1736A: The pirate confirms via his remote tool that the ship’s automation and control system is in a continuous reboot cycle, then he re-checks the commercial AIS website and confirms that MV PACIFIC TREADER is dead in the water. He immediately sends an email to the TRANS-PACIFIC SHIPPING LINE demanding a ransom, stating MV PACIFIC TREADER will remain dead in the water and more explosive devices will be activated until he is paid.
New Means – Same Motive
These scenarios illustrate how the evolution of technology and the increased connectivity of systems and people potentially enable a fundamental shift in the nature of piracy. Despite the change in means and geographic distribution of actors, net-centric and traditional piracy both utilize physical force or violence, or the threat thereof, by a non-state actor to seize or detain a vessel operating on the high seas. The key enabler of net-centric piracy is the Internet.
The Internet is the net-centric pirate’s “high-performance information grid that provides a backplane for computing and communications.”[7] Admiral Cebrowski argued that this information grid was the entry fee for those seeking net-centric capabilities.[8] What Admiral Cebrowski did not know was how rapidly the Internet would evolve and enable near-instantaneous global communications at relatively low costs, allowing anyone who desires access to a high-performance information grid.
As the net-centric pirate’s high-performance information grid, the Internet serves as a command and control network as well as the means for disseminating intelligence information, such as vessel location or the presence of physical security measures. The intelligence that is disseminated may also have resulted from collections performed via the Internet. One collection means is to leverage the vast area of private and commercial data sources available for public consumption, again at little or no cost, such as shipping schedules and AIS data. A second means of collection uses the Internet to conduct intelligence, surveillance and reconnaissance (ISR) via cyber techniques; however, only the most sophisticated net-centric pirates will possess this capability. Similarly, highly sophisticated net-centric pirates may be able to achieve global weapons reach by producing physical effects via cyber means over the Internet, eliminating the need for the pirate to be physically present in order to seize or detain a vessel.
From: OCEANUSLive – Somali Pirates
The attractiveness of net-centric piracy is the low barrier to entry, both in risk and cost. Since the Internet is the key enabler of net-centric piracy, its low cost and ease of use vastly expand the potential pirate population. The anonymity of the Internet also allows potential net-centric pirates to meet, organize, coordinate and transfer monetary funds with a great degree of anonymity. As a result, the risks of arrest or capture are significantly reduced, especially since a net-centric pirate may not be able to identify any of their co-conspirators. Similarly, the ability of net-centric piracy to enable remote intelligence gathering or even produce physical effects via cyber techniques removes a significant element of physical risk associated with traditional piracy. The monetary gain from the successful capture of a vessel compared to the low cost and risk currently associated with net-centric piracy make it an attractive criminal enterprise.
Countering Net-centric Piracy
The United Nations Convention of the Law of the Sea (UNCLOS) Article 101 defines piracy as:
any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
any act of inciting or of intentionally facilitating an act described in subparagraph (1) or (2).[9]
Under this internationally recognized legal definition of piracy, net-centric piracy clearly results in violence against or detention of vessels on the high seas for private ends. It is also clear from this definition that any activities associated with facilitating a piracy event, such as intelligence collection or compromising a vessel’s computerized control systems, are also considered piracy under international law. International law also states that “All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.”[10] As a result, the international community must resolve how it will counter net-centric piracy, where pirates need not operate on the high seas and may be located thousands of miles from the target vessel.
The challenge facing the international community from net-centric piracy is compounded by immaturity of international cyber law. Currently the authorities and responsibilities of international organizations, governments and law enforcement agencies with regards to the use of the Internet to commit piracy are undetermined. This challenge is further complicated by the fact that the Internet is a manmade domain where all potions are essentially within the territory of one state or another. As a result, disrupting net-centric piracy operations will require a significant degree of international coordination and information sharing. Extensive international cooperation will also be required to identify, locate, and apprehend individuals involved in net-centric piracy.
From: Encyclopedia Britannica – Pirates utilize a range of weapons and technology
While an occurrence of net-centric piracy has yet to occur, the opportunity and capabilities required for such an event exist today. The U.S. Navy should not be caught off guard. Instead, the Navy should take the following actions:
Raise awareness within the international maritime community regarding the risks and realities of net-centric piracy
Provide best practice and limited cybersecurity threat information to transnational maritime shipping companies
Work with partner Navies to develop means and methods for disrupting net-centric piracy, including developing an appropriate framework for information sharing and coordination
Work with Coast Guard, law enforcement and international partners to develop a cooperative construct for identifying, locating and apprehending net-centric pirates
Engage with the State Department to advance international dialog on net-centric piracy, including the need for consensus on international law and processes for prosecution of net-centric pirates
An enduring lesson of human history is that opportunity for profit, regardless of difficulty or brevity, will be exploited by someone somewhere. Net-centric piracy represents an opportunity to generate revenue without requiring the physical risks of traditional piracy. The anonymity and distributed nature of the cyber domain also creates new counter-piracy challenges. Add to this the low cost and availability of unmanned system components coupled with the low barrier of entry for cyber, and the question becomes not whether net-centric piracy will occur but when. With a global interest in maintaining the international maritime order and ensuring the uninterrupted flow of commerce on the high seas, the U.S. Navy must be ready to meet the challenges of net-centric piracy.
LCDR Brian Evans is a U.S. Navy Information Dominance Warfare Officer, a member of the Information Professional community, and a former Submarine Officer. He is a graduate of the U.S. Naval Academy and holds advanced degrees from Johns Hopkins University, Carnegie Mellon University, and the Naval War College.
The views expressed in this article are those of the author and do not reflect the official policy or position of the United States Navy, Department of Defense or Government.
[1] VADM Arthur K. Cebrowski and John H. Garstka, “Network-Centric Warfare – Its Origin and Future,” U.S. Naval Institute Proceedings, Volume 124/1/1,139 (January 1998).
[5] Mate J. Csorba, Nicolai Husteli and Stig O. Johnsen, “Securing Your Control Systems,” U.S. Coast Guard Journal of Safety & Security at Sea: Proceedings of the Marine Safety & Security Council, Volume 71 Number 4 (Winter 2014-2015).
[7] VADM Arthur K. Cebrowski and John H. Garstka, “Network-Centric Warfare – Its Origin and Future,” U.S. Naval Institute Proceedings, Volume 124/1/1,139 (January 1998).
[8] Ibid.
[9] United Nations, United Nations Convention on the Law of the Sea (New York: United Nations, Article 101, 1994).
[10] United Nations, United Nations Convention on the Law of the Sea (New York: United Nations, Article 100, 1994).
What goals should the United States seek in the South China Sea? Trying to preserve the status quo – hoping that each country be ever content with its historic resources and territory – is simply unrealistic, as demographics alter populations and climate change alters fish stocks, river flows, and even the land under one’s feet, as sea levels rise. The U.S. feints at regional stability; yet advocating for peace while conducting military exercises with China’s neighbors, and arming those neighbors while proposing détente to their larger Pacific roommate, do nothing to turn down the temperature in an already overheated region.
Is there another way?
Interestingly, in response to China’s most recent provocative (or expansive, “salami-slicing”) efforts in the South China Sea, the affected countries have neither used, nor threatened, retaliatory military force. Perhaps they saw the lack of international military response to Russia’s actions in the Crimea and realized the futility of might against might, facing such a stronger force as China. Or perhaps they drew lessons from the international community’s decade-plus-long quagmire in the Middle East. At any rate, they went, instead, to the law, and to the United Nations, with the Philippines filing a 4,000-page case in March 2014, and Vietnam joining the case in early December. The case pends.
Chinese law is often seen by the Western world as a punitive weapon, wielded bluntly to reinforce the power of those with authority. I came face-to-face with this stereotype in 2010, when, aboard a U.S. Coast Guard high-endurance cutter, we hosted two Chinese shipriders from the Fisheries Law Enforcement Command (now part of the China Coast Guard), to cooperatively enforce an international moratorium on high-seas driftnet fishing. The shipriders’ knowledge of Pacific fisheries was extensive, and their insight into local fishing practices highly revealing; yet they were surprised by the professional and non-aggressive way we conducted fisheries boardings. Excessive force was unnecessary; the rule of law enabled us.
They were not the first shipriders I’ve met who were used to maritime law enforcement being far more aggressive in their home countries. The FLEC shipriders were fascinated to learn that the law not only empowered, but also restrained us: that it protected citizens’ rights, and even the rights of non-citizens. This is powerful.
Sunset on the South China Sea off Mui Ne village on the south-east coast of Vietnam (Author MikeRussia; Wikimedia Commons)
Whence the origins of Chinese law? The legal tradition in China has grown, over centuries, from two roots: Legalism, which results in the often brutal applications of punishment seen in Western media; and, curiously, Confucian philosophy. While Legalism posits tough laws and harsh sentences to keep the populace controlled, Confucianism holds that laws should help a community achieve harmony (or “Li”); and that leaders are expected, by virtue of their status, to model the moral behaviors they want their people to emulate. This Confucian strain in Chinese thought provides an interesting and useful opening for influencing development in a new direction, toward a cooperative and harmonious maritime code of conduct in the Pacific.
How might China be convinced to develop such a code? After all, they are stronger than their neighbors: why handicap themselves? Yet economics suggests that selfish or destructive behaviors net a country less long-term economic growth and geopolitical power than mutually beneficial international actions.[1] This is the angle to play, enhanced by emphasizing the inherently Chinese flavor of a Confucian-based legal code. China has much to benefit by spending less on a military arms race and more on economic development: by cultivating harmonious relationships with their neighbors, they will create a stronger and more willing market for their goods, to keep driving the massive yet near-solitary economic growth engine keeping their political party empowered.
This is, perhaps, an audacious proposal, for it seeks through persuasion and a bit of flattery to encourage China to become a responsible maritime actor, on its own terms, by appealing to its history and pride. The U.S. could say: We can help you develop a comprehensive Pacific maritime legal framework; China-led, Confucian-based, for harmonious interaction with your neighbors and comprehensive regional prosperity.
Overly optimistic? Not impossible.
It is important here to focus not just on maritime law tactics (how to conduct a law enforcement boarding; how to apply various levels of force) but on strategy: how to build a framework for long-term, harmonious international maritime interaction. This could start at the military-to-military level, through engagements between China Coast Guard and U.S. Coast Guard counterparts. China Coast Guard leaders would be invited to observe, not only tactical-level boardings and operational-level maritime law enforcement planning; but also the legal aspects of preparing case packages, reviewing case law, and arguing cases in U.S. court. Discussions would cover both strengths and shortfalls of the existing U.S. and international maritime legal systems, expanding to cover differences between the type of maritime law enforcement the U.S. Coast Guard conducts, and the similar-but-different, non-law enforcement Maritime Interdiction Operations (MIO) conducted by both the U.S. Navy and U.S. Coast Guard to enforce UN resolutions. What elements of each should be integrated into a Pacific maritime “code of conduct”?
(Aug. 18, 2007) SHANGHAI, China – The crew from the U.S. Coast Guard Cutter Boutwell trains with the China Coast Guard as part of the North Pacific Coast Guard Forum. (Coast Guard photo by Petty Officer Jonathan R. Cilley)
One of the benefits of a Confucian-based code of conduct for South China Sea ship interactions would be to assume all parties’ good intentions, rather than their ill-will. In a specific maritime rulebook supporting this code, potentially aggressive actions would be presumed, unless meeting certain hostile tripwires, to be honest mistakes, prompting mutual retreat. Furthermore, in order to discourage intentional “gray area” behavior, the tripwires would specifically reflect hostile intent – regardless of whether a military or civilian actor cross them.
Additionally, again based on Confucian philosophy, the greater the power, the more the responsibility to model ideal behavior. Thus, as the leading power in the region, the onus is on China to set the most moral and harmonious example in its maritime interactions.
This code of conduct would both complement, and expand upon, the existing COLREGS: for where the COLREGS guide navigational interactions, the expanded code of conduct would also cover “exploratory interactions” – when ships are not simply navigating from one port to another, but exploring, patrolling, conducting research, or otherwise operating intentionally but non-navigationally.
Concurrent U.S. Defense-State strategic regional engagement is also recommended, in which reductions in maritime tensions are coupled with increased diplomatic development, where the U.S. encourages countries with competing resource claims to develop bilateral or multilateral agreements for resource sharing and protection. The goal is to convince Pacific nations that sharing the pie doesn’t mean going hungry: instead, cooperation can reduce each country’s individual share of defense and production, while promoting labor specialization and national pride.[2] As a bonus for regional stability, the more countries invested cooperatively in an area, the greater their individual and collective desire to avoid any sort of conflict that might harm those resources, or take their production off-line.
Both the U.S. combatant commander and his country team counterparts should cooperatively emphasize Chinese-influenced, Confucian-based legal bases throughout the spectrum of their “defense, diplomacy, and development” engagements, as an overarching strategic theme. This is one way the U.S. can face China down in their game of “Go”:[3] from every angle, at every opportunity, seeds of a harmonious rule of law will be planted. While some efforts will be stymied or stifled, some seeds will grow, and ideally, this concept of law will begin to permeate Chinese society deeply enough that it cannot quickly be uprooted. And why should the Chinese tear it out? It will underpin their economic growth, protect their military from engagement, and cement their moral status as a 21st-century great power.
Engagement surrounding the rule of law is a long-range play. The goal is not only a more peaceful, China-influenced, legal framework for the Pacific; but also to sow seeds of change for democratic evolution within China itself. Raising awareness within Chinese leadership that laws are not just sticks with which to beat opponents, but beacons of moral empowerment; that laws should guide leaders to act justly; that the rule of law can inspire a peaceful, communal patriotism; and that people at all levels of society can trust the law to protect them – these powerful democratic concepts can, over time, drive significant positive change within Chinese society: change that traditional military might not and political posturing never could achieve.
Facilitating a China-led, Confucian based, cooperative maritime-based rule of law could eventually be expanded to other contentious and competitive domains, including space, cyberspace, and even intellectual property – all areas that could benefit from an improved, shared, legal basis. And perhaps, success in this region of the world could be expanded to locally-led and -derived, rule-of-law-based engagements in other combative areas. After having seen such conflict and destruction on its many shores, we could at last look forward to a new era in which the Pacific is finally peaceful enough to be worthy of its name.
Lt. Heather Bacon-Shone serves in the United States Coast Guard, and has operational afloat experience throughout the Pacific. The views expressed herein are those of the author and are not to be construed as official or reflecting the views of the U.S. Coast Guard or Department of Defense.
[1] In economic terms, rent-seeking versus profit-seeking.
[3] “To update an old saying, ‘Russians play chess, Chinese play “go,” and Americans play poker.” In Reveron, Derek S. and James L. Cook. “Developing Strategists: Translating National Strategy into Theater Strategy,” Joint Force Quarterly, Issue 55, 4th Quarter 2009, p. 21.
China’s ambiguous claim to the South China Sea, approximately demarcated by a series of hash marks known as the “nine-dashed line,” faced objections from an expanding number of parties over the past two weeks. While a challenge from the United States came from an unsurprising source, actions by Indonesia and Vietnam were unexpected in their tone and timing.
On December 5th, the U.S. State Department released its analysis of the compatibility of China’s nine-dashed line with international law. The report attempted to set aside the issue of sovereignty and explore “several possible interpretations of the dashed-line claim and the extent to which those interpretations are consistent with the international law of the sea.” The analysis found that as a demarcation of claims to land features within the line and their conferred maritime territory, the least expansive interpretation, the claim is consistent with international law but reiterated that ultimate sovereignty is subject to resolution with the other claimants.
As a national boundary, the report went on, the line “would not have a proper legal basis under the law of the sea,” due to its unilateral nature and its inconsistent distance from land features that could confer maritime territory. Alternately, although many commentators have indicated China bases its claims on “historic” rights pre-dating the UN Convention on the Law of the Sea (UNCLOS) of 1982, the report argued that the history China points to does not fit the narrow “category of historic claims recognized” in UNCLOS under which historic rights may be conferred. Lastly, the report noted that as China has filed no formal claim supporting its nine-dashed line, the ambiguity over the exact nature and location of the line itself undermines under international law China’s argument that it possesses maritime rights to the circumscribed waters, concluding:
“For these reasons, unless China clarifies that the dashed-line claim reflects only a claim to islands within that line and any maritime zones that are generated from those land features in accordance with the international law of the sea, as reflected in the LOS Convention, its dashed-line claim does not accord with the international law of the sea.”
Although such analysis reflects prior U.S. policy positions, less expected were the pointed signals from Indonesia, which has built a reputation as a mediator among ASEAN states in dealing with China and striven to downplay the overlap by the nine-dashed line of its own claimed exclusive economic zone in the South China Sea from Natuna Island. On Tuesday at the think tank Center for Strategic and International Studies (CSIS) in Washington, senior Indonesian presidential advisor Luhut Binsar Panjaitan emphasized that the country was “very firm” that its “sovereignty cannot be negotiated,” while stressing the importance of dialogue to peacefully manage matters. Further, in response to a question from an audience member, Panjaitan stated (56:00 mark in the video below) that the development of gas fields offshore Natuna in cooperation with Chevron would “give a signal to China, ‘you cannot play a game here because of the presence of the U.S.’” Meanwhile Indonesian Maritime Affairs and Fisheries Minister Susi Pudjiastuti noted that after sinking Vietnamese vessels the Indonesian Navy said it had captured illegally fishing she was considering sinking 5 Thai and 22 Chinese vessels also caught.
As Prashanth Parameswaran notes at The Diplomat, Indonesia is playing a balancing act – seeking at the same time to protect its sovereign interests as it attempts to align new president Joko Widodo (Jokowi)’s “Maritime Axis”/“Maritime Fulcrum” initiative with Xi Jinping’s “Maritime Silk Road” and play a leading role in China’s Asian Infrastructure Investment Bank. To some observers, sinking the Thai and Chinese boats is now necessary to preserve Indonesia’s image of impartiality, while others believe such action may be redundant if China heeds the warning that such behavior will no longer be tolerated.
Vietnam too took surprise action over the nine-dashed line, in a move long-mooted but unexpected in its timing. Vietnam’s foreign ministry announced last week that it had filed papers with the Hague arbitral tribunal overseeing the case submitted by the Philippines, asking that its rights and interests be considered in the ruling. Vietnam supported the Philippines position arguing that China’s nine-dashed line is “without legal basis.” While a regional source in The South China Morning Postnoted that the action was as much about protecting “Vietnamese interests vis-à-vis the Philippines as it is directed against China,” and Professor Carlyle Thayer described it as “a cheap way of getting into the back door without joining the Philippines’ case,” Thayer also toldBloomberg Newsthat it “raises the stature of the case in the eyes of the arbitrational tribunal.”
If the actions taken by the United States, Indonesia, and Vietnam were surprising, China’s reactions were not. On December 7th, China’s Ministry of Foreign Affairs released a white paper of its own on the Philippines’ arbitration case. The document states that China’s policy, as established in its 2006 statement on UNCLOS ratification, is to exclude maritime delimitation from compulsory arbitration. Additionally, the paper says that while the current arbitration is ostensibly about the compatibility of China’s nine-dashed line with international law, “the essence of the subject-matter” deals with a mater of maritime delimitation and territorial sovereignty. The paper goes on to say that until the matter of sovereignty of the land features in the South China Sea is conclusively settled it is impossible to determine the extent to which China’s claims exceed international law.
In effect, China is taking the position that only after it has conducted and conclude bilateral sovereignty negotiations will its nine-dashed line be open to critique. While the foreign ministry may be right that the Philippines is attempting to force the issue of territorial sovereignty, its argument that this prevents scrutiny of the nine-dashed line’s accordance with international law rings hollow.
At the end of the day, China has repeatedly stated, and its new policy paper affirms, that it will “neither accept nor participate in the arbitration” initiated by the Philippines. Chinese Foreign Ministry Spokesman Hong Lei likewise remarked of Vietnam’s filing with the tribunal that “China will never accept such a claim.” So it is prudent to ask what benefit will come of the legal maneuvers. Some, such as Richard Javad Heydarian, a political-science professor at De La Salle University, point to the economic harm already incurredby the Philippines in opportunity costs and the danger of having created a worse domestic and international environment for settling the disputes. Yet given the lengthening list of states willing to stake a legal position on the matter and the moral weight of a potential court ruling, China can claim and attempt to enforce what it wants, but it will be increasingly clear that it is doing so in contravention of international law.
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 founder and president of the Center for International Maritime Security (CIMSEC), a graduate of Georgetown University and the U.S. Naval War College, and a member of the Truman National Security Project’s Defense Council.
