Written by Vidya Sagar Reddy, The Red Queen’s Navy will discuss the influence of emerging naval platforms and technologies in the geostrategic contours of the Indo-Pacific region. It identifies relevant historical precedents, forming the basis for various maritime development and security related projects in the region.
“Now, here, you see, it takes all the running you can do, to keep in the same place.”– The Red Queen, Through the Looking Glass, Lewis Carroll.
By Vidya Sagar Reddy
A recentRAND report underscored the significance of the strategy by certain states of employing measures short of war to attain strategic objectives, so as to not cross the threshold, or the redline, that trips inter-state war. China is one of the countries cited by the report, and the reasons are quite evident. The employment of this strategy by China is apparent to practitioners and observers of geopolitics in the Indo-Pacific region. The diplomatic and military engagements in this region call attention to the South China Sea, where China’s provocative actions continue to undermine international norms and destabilize peace and security.
Vietnam and the Philippines are the two claimants determined to oppose such actions with the support of other regional security stakeholders. They intend to shore up their military strength, especially in the maritime domain. The Philippines decided to upgrade military ties with the U.S. through an agreement allowing forward basing of American military personnel and equipment. It will receive $42 million worth of sensors to monitor the developments in West Philippine Sea. Additionally, India emerged as the lowest bidder to supply the Philippines with two light frigates whose design is based on its Kamorta class anti-submarine warfare corvette.
The recent visit of US. President Obama to Vietnam symbolizes transformation of the countries’ relationship to partners and opened the door for the transfer of lethal military equipment. Vietnam is considering the purchase of American F-16 fighters and P-3C Orion maritime patrol aircraft. Its navy is already undergoing modernization with the induction of Russian Kilo class submarines. India, which uses the same class of submarines, helped train Vietnam’s submariners. Talks with Vietnam to import India-Russia joint BrahMos supersonic anti-ship cruise missiles seem to be in an advanced stage.
But, this military modernization is concentrated on strengthening the conventional domain of the conflict spectrum, while China accomplishes its objectives by using sub-conventional forces. China’s aggressive maritime militia and coast guard are the real executors of local tactical contingencies, while its navy and air force provide reconnaissance support and demonstrate muscle power.
The 2014 HYSY 981 oil rig stand-off, when China’s vessels fired water cannons and rammed into Vietnamese boats, serves as a classic example of China’s use of sub-conventional forces. Some of these platforms are refitted warships, and the total vessel tonnage has far exceeded the cumulative tonnage of neighboring countries. China has also deployed coast guard cutters weighing more than 10,000 tonnes, the largest in the world. They cover maritime militia’s activities like harassing Vietnamese and other littoral fishermen from exercising their rights or defend China’s illegal fishing activities in the exclusive economic zones of other countries. Recently, they have forcefully snatched back a Chinese fishing vessel that had been detained by the Indonesian authorities for transgression.
Such provocative actions to forcefully lay down new rules on the ground need to be challenged, but using conventional air and naval assets will only lead to escalation. It is advisable to learn from China’s strategist himself in this context, Sun Tzu, who counsels that it is wise to attack an adversary’s strategy first before fighting him on the battlefield.
Therefore, both Vietnam and the Philippines must also concentrate on building up the capacity of respective coast guards and maritime administration departments with relevant assets like offshore patrol vessels (OPV) to secure the islands and exclusive economic zones. Operating independently in these areas inevitably hedges against China’s proclamation of South China Sea as its sovereign territory and requiring its consent to operate in.
Vietnam is inducting patrol boats furnished by local industries as well as depending on the pledge from the U.S. to provide 18 patrol boats. The Philippines contracted a Japanese company to build 10 patrol vessels on a low-interest loan offered by Japan’s government. It is also set to receive four boats from the U.S.
India should also take a proactive position and join its regional security partners in extending its current efforts in the Indian Ocean to the South China Sea. India has built high level partnership programs to build the capacity of its neighboring Indian Ocean countries to ensure security of their exclusive economic zones. In the process, it delivered some of its OPVs to Sri Lanka. Recently, Mauritius became the first customer of India’s first locally built OPV Barracuda. India is now building two more for Sri Lanka. Additionally, Vietnam has contracted an Indian company to build four OPVs using the $100 million line of credit offered by the Indian government.
Thedemand for these vessels will only grow as the strategic competition in the South China Sea escalates. India enjoys better political, historical, and security relations with the South East Asian countries, especially Vietnam. The Philippine government has underscored this relationship between India and Vietnam as the foundation for its own relations with India. Taking advantage of this situation not only improves India’s strategic depth in the region but also enhances its manufacturing capacity that is at the core of Make in India initiative.
The specific requirements like range, endurance, and armament depend on the customer countries. The more critical question at play is whether the regional security stakeholders are comfortable with the idea of upgunned coast guards along the South China Sea littoral.
The U.S. has forward deployed four of its Littoral Combat Ships (LCS) to Singapore to tackle a variety of threats emanating in the shallow waters. The ships are smaller than a frigate but larger than an OPV in terms of sensor suites, armament, mission sets, and maintenance requirements. War simulations proved that upgunned LCS can cross into blue water domain with ease and complicate an adversary’s order of the battle.
Vietnam and the Philippines could specify higher endurance, better hull strength and advanced water cannons for their OPVs to defend proportionally against Chinese vessels. In addition to manufacturing ships, India should also train Vietnamese and Philippine forces on seamlessly integrating intelligence from different assets for maritime defense.
Over time, a level of parity in the sub-conventional domain needs to be achieved and maintained to force China to either shift its strategy or escalate the situation into conventional domain whereupon the escalation dominance will shift to status quo countries.
Vidya Sagar Reddy is a Research Assistant at the Observer Research Foundation, New Delhi.
Featured Image: Chinese 10,000 ton coast guard cutter, CCG 2901. (People’s Daily Online)
On 2 May, the French amphibious assault ship FS Tonnerre arrived in the Cam Ranh International Port (CRIP) for a four day visit. It was the third international visit to the newly established CRIP, nee Cam Ranh Bay, following the mid-March visit of a Singaporean naval vessel and a mid-April visit by two Japanese Maritime Self Defense Force ships. These three visits reflect Vietnam’s strategic interests, most importantly, the development of an omni-directional foreign policy. While much attention will be paid to President Obama’s visit to Vietnam this month, it is important to note both how far bilateral relations have come, but also how much they are only a piece of Vietnam’s overall strategic framework.
The decision to give Cam Ranh the moniker “International Port” was a strategic one. Hanoi has long been called on to open up the port to foreign vessels transiting the region, but wanted to make sure that it was not aimed at any one country. Thus the port, which is one of the finest deep-water ports in the entire region and is full of new construction after the inauguration such as a new berthing area, pier, quay wall, and was opened up to all on a “commercial basis.” This is in line, if not a creative work around, with Hanoi’s “3 Nos” foreign policy (no alliances, no foreign military bases, and no policies that could be construed as being directed against any one state). The argument that any one foreign country could try to gain exclusive access to the port is nonsensical.
Indeed, in bilateral defense talks held at the end of March 2016, Vice Minister of Defense Nguyen Chi Vinhsaid that Vietnam had actively invited Chinese vessels to visit Vietnamese ports, including CRIP. Even though it was an unpopular move domestically, it signals the leadership’s intention that CRIP not be directed against any one country.
While it is clear that Vietnam-U.S. defense cooperation has deepened considerably over the last few years and will continue to do so, both sides seem to be content on the pace with which the relationship is moving for various reasons.
Vietnam clearly has a strategic interest in a more robust U.S. presence in the region, and has actively championed the right of U.S. Naval vessels to conduct freedom of navigation operations (FONOPs), including past features that Vietnam itself claims and occupies. Vietnam also looks to the United States as the only thing between China and the declaration of an Air Defense Identification Zone (ADIZ).
However, although Hanoi is keen to further deepen ties with the United States, there remain many real impediments, including history, the continued legacy of Agent Orange, and the enormous costs associated with the cleanup of Bien Hoa, and criticism over human rights. Indeed, this year, Hanoi responded to the U.S. State Department’s annual human rights report, calling it “biased,” something it has not done and downplayed in the past few years. Furthermore, despite its embrace of the Trans Pacific Partnership, Hanoi is cautious about growing too close to the United States in the security realm, for fear of provoking a harsh reaction from China, hence its intention of displaying CRIP as a neutral, open-to-all port.
From 22-24 May, President Barack Obama will visit Vietnam, reciprocating the historic July 2015 visit to the United States by Vietnam Communist Party chief Nguyen Phu Trong. While many hope that President Obama will fully lift the arms embargo, others argue that Vietnam simply has too many human rights abuses to merit a full lifting. Indeed, his Secretary of Defense recently endorsed lifting the embargo in a Congressional hearing with Senator John McCain, a long proponent of ending the embargo. In early May, right before Obama’s visit, Vietnam hosted a defense symposium to which top U.S. arm corporations, such as Boeing and Lockheed Martin, were invited. This will be more of a symbolic gesture, but in diplomacy, especially in such a historically fraught relationship, symbols matter.
But even still, limits exist. There are longstanding concerns about selling advanced technology to Vietnam for fear that it will be shared with Russia. Again, human right issues also interfere with the decision. Nevertheless, this is not to say that Vietnam’s purchase of U.S. weapons is impossible.
The one area that does seem ripe for sales is maritime aviation capabilities, something that the U.S. does have a stark comparative advantage in. Vietnam has expressed an interest in a stripped down P-3 Orion. In April 2016, a group of Vietnamese naval officers visited U.S. Patrol Squadron 47 in Hawaii and notably toured a P-3C in order to better understand its capability. Vietnam has also seen the P-3 in action in January 2016 during a joint HADR exercise between Vietnam and Japan. Boeing has suggested that one of its Intelligence Surveillance and Reconnaissance (ISR) suites would fit Vietnam’s needs.
Despite the regular presence of U.S. Naval vessels, which spend some 700 ship days a year in the South China Sea, and the recent visit by the USS Stennis to the Philippines, and the recent refusal of port access in Hong Kong by China, to date no U.S. vessel has called on CRIP.
Furthermore, Vietnamese rules stipulate that foreign naval vessels, including those of the U.S., can only call on Vietnamese ports once a year. Nevertheless, U.S. logistical ships have visited the port before for repair and maintenance service. In June 2012 USNS Richard E. Byrd, a Military Sealift Command supply ship, stopped at Cam Ranh’s repair facilities, and then-Secretary of Defense Leon Panetta gave a speech on board the moored ship, promising a stronger relationship between the two nations. The U.S. Navy has used their port call annually since 2009, albeit not at Cam Ranh Bay. Furthermore, when reporting the inauguration of CRIP, Vietnamese official media mentioned the possibility of U.S. aircraft carriers calling on the port by mentioning that CRIP can “accommodate military and civilian ships like aircraft carriers of up to 110,000 DWT (deadweight tonnage).” Hence, it is likely that a U.S. Navy ship will call on Cam Ranh Bay in the near future.
In addition, the U.S. government has awarded Vietnam $40.1 million in FY2015-16 as part of its Maritime Security Initiative in order to “bolster its maritime Intelligence, Surveillance, and Reconnaissance (ISR) and command and control within Vietnam’s maritime agencies.” The funding will also support the purchase of maritime defense equipment and support training and bilateral HADR exercises to improve interoperability.
The visit by the Singaporean naval vessel should have come as no surprise. ASEAN – for all of its faults and limitations – remains the cornerstone of Vietnamese foreign policy. It works assiduously to counter China’s aggressive moves to divide the grouping, especially ahead of the Permanent Court of Arbitration’s expected ruling. Vietnam and Singapore have pledged to deepen ties and have suggested future bi and multi-lateral defense exercises.
Soon after, Vietnamese naval vessels and special forces soldiers participated in a regional counter-terrorism and anti-piracy exercise with Singapore, Brunei, Thailand and Indonesia. Interestingly, Vietnam sent HQ-381, a BPS-500 type missile corvette instead of its Gepard frigates. The HQ-318 was the first missile corvette built domestically in Vietnam in 1999, and it underwent capability upgrades in 2014. Vietnam has also increased its participation in multilateral exercises, including sending Hospital Ship 561 to the 2016 Komodo naval exercises in Indonesia in April 2016. Vietnam has extended maritime cooperation to entirely new partners as well, including a five day on-shore multilateral course by the Royal Navy’s Maritime Warfare School on EEZ enforcement.
The visit by the French ship capped a week of the re-emergence of France as a player in Asian security, with the agreement in principle to supply Australia with 12 Barracuda submarines; beating out the Japanese Soryu-class. But the presence of one of France’s largest vessels at CRIP also suggests the potential for defense deals with Vietnam, which has hinted that it wants to reduce its dependence on Russia for its advanced weaponry. Vietnam has already purchased military lift planes from the French-led Airbus consortium. SIPRI, in its arm transfer database, shows that Vietnam has taken delivery of Exocet anti-ship and MICA anti-air missiles from France for its Dutch SIGMA-9814 corvettes; yet, as the negotiation for the corvettes seems to have been suspended, the fate of these missiles is uncertain. Reuters also reported that the Vietnamese military is currently in talk with Dassault on the Rafale multirole fighter as a possible replace for its antiquated but numerous MiG-21s. However, the Rafale’s high cost makes this procurement less likely.
But it is the relationship with Japan that portends the greatest potential. There have now been six high level strategic dialogues, and Japanese ships have made some nine port calls, the majority of which happened in the last five years. There are routine high level engagements. Although Japan has not sold any weapons to Vietnam, in 2014 it pledged to transfer six maritime patrol craft; the last were delivered in November 2015.
The potential for deeper ties is clearly there. A meeting between the respective foreign Ministers in early May 2016 led to calls for deepened defense relations as well as the provision of more maritime patrol craft. As Japan experiences the loss of the Soryu class vessels sale to Australia, Tokyo still needs a major arms sale to break into the world of the global arms industry. But while Japanese equipment is expensive and r technology transfer is unlikely, the defense relationship, including recent HADR operations, is growing so quickly that it might become a natural byproduct.
Both countries have called for a rules-based system in the South China Sea. Both would like each other to step up their respective operations in the South China Sea. Prime Minister Nguyen Xuan Phuc recently called on Shinzo Abe’s government to make “effective efforts” in the South China Sea, but there are limits. Vietnam in unlikely to be overly confrontational towards China. And while many have called for Japan to join U.S. FONOPs, that is unlikely, simply as China has the ability to escalate its operations in the contested waters around the Senkaku/Diaoyutai Islands. Intercepts of Chinese planes in Japan’s southwest quadrant alone already account for over 50 percent of overall intercepts of foreign aircraft. In 2015, there were 571 intercepts of Chinese planes, a 23 percent increase from 2014, taxing the Japanese military.
Despite these improvements and deepening cooperation with new defense partners, it is the bilateral defense relationship with Russia that remains the strongest. Newly elected Minister of National Defense Ngo Xuan Lich made his first overseas trip to Russia, where he reiterated that Vietnam will continue to rely on Russiafor much of its weaponry and advanced training. Newly elected Prime Minister Nguyen Xuan Phuc will also make Russia his first foreign destination in mid-May, ahead of President Obama’s visit.
Vietnam’s third Gepard class frigate was recently floated in a Russian shipyard, with the fourth to be launched soon and delivered by September. There are reports that Vietnam will order another two, a total of six, while it has increased production of Molniya class missile ships under license from Russia. Five out of six Kilo submarines that Vietnam ordered from Russia have been delivered, and Russia is helping Vietnam construct the submarine base at Cam Ranh as part of the deal. Vietnam’s recent announcement that it was moving the Ministry of National Defense’s Ba Son Shipyard to a new location, increasing its production capabilities to 2,000 dead weight tons, also suggests increased domestic production under further Russian license.
When Vietnam purportedly “invited” Russia back to Cam Ranh, it should not be taken as meaning a reopening of their Cold War era naval base, which closed in 1991, but simply as a commercial user of CRIP facilities. Nonetheless, in 1993 Moscow and Hanoi signed a 25 year agreement that allowed Russia to continue using a facility in Cam Ranh Bay for limited signals intelligence gathering. More recently Russia has deployed aerial refueling tankers from CRIP to support bombers that have flown “provocatively” near US airspace in Guam. U.S. calls on Vietnam to restrict such operations have fallen on deaf ears. Furthermore, in 2014, the procedure for Russian ships calling on Cam Ranh Bay was simplified: they only have to notify Vietnamese authority before doing so.
While there have been occasional reports that Vietnam wants to diversify its sources of advanced weaponry, the reality is Russian equipment is tried and true, very cost effective, and the Vietnamese have long trained on it. Most importantly, the Russians transfer a lot of technology to Vietnam, which produces an array of missiles and ships under license. Vietnam’s relationship with India, also gives it access to the advanced Brahmos anti-ship missiles developed with Russia. This is an enduring strategic defense relationship.
Yet, small diplomatic rifts between Vietnam and Russia have emerged, in particular over Moscow’s support for Beijing over the South China Sea and Permanent Court of Arbitration’s forthcomingruling. In April 2016, Russian Foreign Minister Sergei Lavrov commented in an interview that claimants in the South China Sea dispute should resolve the matter among themselves and not attempt to internationalize the issue. Vietnamese Ministry of Foreign Affairs immediately rebutted Lavrov by announcing that the dispute should be “settled by all countries concerned,” not simply through bilateral negotiation. Notably, Lich’s visit to Russia occurred only two weeks after this incident. It should be closely watched whether this diplomatic rift will negatively affect Moscow-Hanoi defense relationship in any way.
In sum, since the 12th Party Congress in January 2016, and the early election of key state leaders to their posts ahead of President Obama’s visit, Vietnam has continued with their defense policy: a cautious attempt to bolster defense relations with regional and extra-regional states, the gradual diversification of its arms suppliers, and partaking in joint exercises. While it has brought a lot of new equipment online, giving the country unprecedented power projection capabilities, it is yet to be seen whether they have developed a corresponding doctrine. While no one should underestimate Vietnam’s will and capability to act in self-defense, that robust strategic culture has faltered at the hands of China’s maritime-militia and Coast Guard sovereignty enforcement operations and island construction. However, as Vietnam’s capability improve, it remains cautious about provoking a harsh reaction from Beijing. Yet, at the end of the day, Hanoi’s primary concern continues to be regime survival. The government responded quickly when environmental protests went national, and the regime seems very concerned regarding its ability to control its very wired and socially active population.
Zachary Abuza, PhD, is a Professor at the National War College where he specializes in Southeast Asian security issues. The views expressed here are his own, and not the views of the Department of Defense or National War College. Follow him on Twitter @ZachAbuza.
Nguyen Nhat Anh is a student of International Political Economy at the University of Texas at Dallas. You can follow him on Twitter @anhnnguyen93.
Gepard, Molniya class warships in Cam Ranh naval base. TTVNOL.com.
We discuss the Vietnam-era drone, the QH-50 DASH, with Peter Papadakos – engineer, historian, and son of the DASH’s inventor. We go through the program’s origins, its original purpose, the field modifications made by enterprising Vietnam-era officers, and the challenges that came with its operation and the institutional resistance to its use. This podcast was inspired by BJ Armstrong’s Armed Forces Journal Article, Unmanned Naval Warfare: Retrospect and Prospect.
This is the fourth installment in a five-part series summarizing and commenting the 5 December 2014 US Department of State “Limits in the Seas” issue explaining the different ways in which one may interpret Chinese maritime claims in the South China Sea. It is a long-standing US policy to try to get China to frame her maritime claims in terms of UNCLOS. Read part one, part two, part three.
The third way to see the dashed-line, according to the Limits in the Seas series paper, would be as a historic claim. Under UNCLOS this can take two forms, “one of sovereignty over the maritime space (‘historic waters’ or ‘historic title’)” or “some lesser set of rights (‘historic rights’) to the maritime space.” The paper devotes much more room to discussing this possibility than to the two previous alternative interpretations. It begins by pointing out that “some Chinese government statements and acts could be read to support a version of this historic claim interpretation”, and by noting that given that “the dashed-line maps pre-date the People’s Republic of China, the views of Taiwan are also of interest.” Concerning the Island’s claims, the text underlines that while in 1993 its “Policy Guidelines for the South China Sea” said that the dashed lines enclosed a “’historic water limit’ within which Taiwan ‘possesses all rights and interests’” (see K-H. Wang, “The ROC’s Maritime Claims and Practices with Special Reference to the South China Sea,” Ocean Development and International Law, Volume 41, 2010, pp. 237-252), Taipei has not stuck to this view. “Subsequent maritime legislation enacted by Taiwan and subsequent public statements, however, suggests that this view may no longer be officially held,” noted the State Department in another Limits on the Seas series issue, published in 2005, devoted to Taiwan. While the text refers to this 2005 paper, the latter’s contents do not discuss in depth ROC claims on the South China Sea, as clear from the fact that the term “South China Sea” only appears three times, whereas “dash” is not to be found. Thus, while the assertion that in studying PRC claims one should pay attention to ROC claims seems logical, this is not followed up, either in the 2005 Limits on the Issues paper devoted to Taiwan, or in the 2014 one dealing with China. In other words, the Department of State does not follow its own advice. How should we read this? On the one hand, the preeminent use of “Taiwan” may seem to amount to a limited recognition of political realities on the ground, in opposition to Beijing’s views, further contradicted by the scant regard for ROC practice as opposed to the PRC’s emphasis on administrative and international legal continuity with the Nationalist regime. An alternative, more Beijing-friendly, interpretation of the DOS approach may be that it is treating Taipei as the de facto authority on the Island, also for law of the sea purposes, while restricting its role in the South China Sea, where the PRC has consistently sought to exclude Taiwan from regional fora, in line with its traditional policy towards the Island. More generally, this may reflect the complex and ambiguous status of Taiwan, with neither the Island itself nor countries like the United States completely sure what it is. To add to the confusion concerning Taiwan in the DOS paper, it states on page 21 that “Many islands and other features in the South China Sea are occupied not just by China, but by … Taiwan,” yet again this is not followed by any detailed examination of Taipei’s claims.
Going back to evidence for the possible interpretation of Beijing’s claims as historic, the report cites as “most notable” China’s “1998 EEZ and continental shelf law, which states [in Article 14] without further elaboration that ‘[t]he provisions of this Act shall not affect the historical rights of the People’s Republic of China’” (emphasis added in the DOS report). China’s 2011 Note Verbale says that Beijing’s claims are supported by “historical and legal evidence,” but while the DOS report adds emphasis to “historical”, one should be careful not to confuse a historical claim with a claim supported by history. A country may put forward historical evidence in both negotiations and arbitration or adjudication in areas where UNCLOS refers to “equitable” solutions. The text also notes how many “Chinese institutions and commentators have considered that the dashed-line maps depict China’s historic title or historic rights.”
The DOS reports explains that “some” Chinese Government actions and statements which are “inconsistent with” UNCLOS, while not amounting to “express assertions of a historic claim, they may indicate that China considers that it has an alternative basis – such as historic title or historic rights – for its maritime claims in the South China Sea,” and provides some examples, such as the assertion by Foreign Ministry Spokesperson Qin Gang on 10 March 2014 that the Second Thomas Shoal (Ren’ai Reef) was under Chinese “sovereignty.” Qin Gang said “It is known to all that China has sovereignty over the Nansha Islands and their surrounding waters, including the Ren’ai Reef.” This mantra about sovereignty, together with repeated appeals to history, could indeed be considered as evidence that what Beijing has in mind is a historic claim. Furthermore, it may well be a claim going beyond the provisions for such term in UNCLOS. The report provides further evidence, beyond statements, to support the view that China may be making a historical claim. First of all, the “periodic oath-taking ceremonies at James Shoal” by Chinese naval vessels “to affirm ‘sovereignty’ over this bank” and the 2012 introduction by the China National Offshore Oil Corporation (CNNOC) of lease blocks in front of Vietnam’s central coast, in “waters under jurisdiction of the People’s Republic of China” according to the company yet with “portions of two of these blocks (BS16, DW04)” extending “without explanation to waters that are beyond 200 nm from any Chinese-claimed island.” The DOS report stresses that the resulting “assertion of maritime jurisdiction … exceeds what is provided for under” UNCLOS.
The idea that Chinese claims are “separate from, and additional to” UNCLOS is also suggested by domestic legislation, the DOS report notes. As an example it cites China’s 1999 Law on Marine Environmental Protection, which describes its geographical scope as extending to the country’s “internal waters, territorial sea, contiguous zone, exclusive economic zone, continental shelf of the People’s Republic of China and other sea areas under the jurisdiction of the People’s Republic of China” (emphasis in the DOS report). According to the text, UNCLOS is restricted to maritime zones mentioned in the law, and not to any “other sea areas under the jurisdiction” of the PRC, and “perhaps” this is a reference to “areas where China considers that it has historic claims.” Again, we must remember that this could be understood in two different ways, either China making a claim based on historic facts (recognized to a limited degree by UNCLOS) or China laying down sovereignty over certain areas of the sea based on principles and rules outside UNCLOS, or outside the prevailing interpretation of UNCLOS.
Has China made a historic claim? Next the DOS report examines two issues: whether China has actually “Made a Historic Claim”, and whether it would “have Validity.” Concerning the former, the text states that “China has not actually made a cognizable claim to either ‘historic waters’ or ‘historic rights,’” the reasons being a lack of “international notoriety” and the statement in her 1958 Territorial Sea Declaration that “high seas” separate the Chinese mainland and coastal islands from “all other islands belonging to China”. The text admits that the expression “historic waters” appears in some Chinese legislation and statements, and actually cites some of them, but believes that this does not amount to “notoriety” to a degree sufficient to “at the very least” allow “other states” to “have the opportunity to deny any acquiescence with the claim by protest etc.” (Taken from C.R. Symmons, Historic Waters in the Law of the Sea: A Modern Re-Appraisal, (Leiden: Martinus Nijhoff Publishers, 2008), p. 145) since “no Chinese law, declaration, proclamation, or other official statement” exists “describing and putting the international community on notice of a historic claim.” The text dismisses references to “historic rights” in the 1998 EEZ and continental shelf law as “a savings clause” and “not a statement of a claim itself.” An additional reason put forward by the text is that these could be references to “China’s sovereignty claim to the islands, and not the waters.” The 1947 map does not constitute either, according to the DOS report, a claim, and furthermore even if one had been made, the fact it was published domestically “in the Chinese language” would not amount to “an act of sufficient international notoriety to have properly alerted the international community.” More generally, the text considers that no subsequent Chinese map can be treated as having made a claim either, since they all “lack the precision, clarity, and consistency that could convey the nature and scope of a maritime claim” and cites in support of this view the ICJ “statement of principle” in the Frontier Dispute case between Burkina Faso and Mali, which says that “Whether in frontier delimitations or international territorial conflicts, maps merely constitute information which varies in accuracy from case to case; of themselves, and by virtue solely of their existence, they cannot constitute a territorial title, that is, a document endowed by international law with intrinsic legal force for the purpose of establishing territorial rights.”
Alex Calvo is a guest professor at Nagoya University (Japan) focusing on security and defence policy, international law, and military history in the Indian-Pacific Ocean. Region. A member of the Center for International Maritime Security (CIMSEC) and Taiwan’s South China Sea Think-Tank, he is currently writing a book about Asia’s role and contribution to the Allied victory in the Great War. He tweets @Alex__Calvo and his work can be foundhere.