Category Archives: Territorial and Law of the Sea Disputes

United Nations Convention on the Law of the Sea, International Maritime Organization, and international maritime law.

China’s Reactions to the Arbitration Ruling Will Lead It Into Battles It Won’t Win, Part II

Part I examined the military implications of China’s continued “military” actions versus Japan in the East China Sea or the United States and other countries in the South China Sea if China were to establish an ADIZ. Part II examines whether China has real economic or trade leverage to force other countries, including the United States, to support its point of view regarding the ruling. Part II also analyzes the related question of whether there are costs to China from continuing to ignore the legal ruling and ways in which China can be legally compelled to comply.

By Mark E. Rosen 

Embargoes and Sanctions

Shortly after the Tribunal ruling, China’s Deputy Minister of Trade was careful to encourage Chinese citizens to not boycott the U.S. and the Philippines; however, that does not mean that sanctions and boycotts are off the table. Bloomberg reported on August 4th that China will likely resume trade retaliation tactics against South Korea for its decision to deploy U.S. THAAD missiles to counter North Korean missile launches. Korea’s International Trade Association has identified 26 measures currently in place to restrict trade and is expecting more non-tariff barriers such as bogus safety inspections of inbound products, establishment of new licensing requirements, and manipulation of quarantine and safety inspections to frustrate Korean imports.   

The above actions are not unprecedented. In 2000, China banned all imports of South Korean mobile phones and polyethylene in retaliation for Seoul’s increase of duties on Chinese Garlic. In 2010, Chinese Customs Officials halted the shipments of rare earth minerals destined for Japan (for user in hybrid cars, wind turbines and guided missiles) as a form of protest for detention of a Chinese fisherman fishing near the Senkakus. The United States has also been victimized by China’s extensive unfair trade practices (dumping and illegal subsidies), theft of intellectual property, and hacking of U.S. companies. Working within the WTO system, the U.S. has filed a record number of suits versus China in the WTO on behalf of U.S. poultry producers and is now considering the unilateral institution of a total ban on Chinese steel imports because of illegal price fixing and other illegal actions by Chinese steel producers.  

The use of non-tariff barriers has been a favorite ploy by countries to sneakily frustrate imports to protect local producers while at the same time staying compliant with WTO rules. As for embargoes, WTO (Art 21) recognizes that states can impose measured national security, health, and welfare controls on both exports and imports to protect their citizens’ “essential security interests” or to prevent the proliferation of weapons. Using this exception, China passed a new national security law in 2015 which required foreign technology companies to be “secure and controllable” by Chinese National Security Agencies as a way of pushing out foreign technology firms like Microsoft, Apple, and Cisco in favor of local suppliers. However, there are limits to this type of activity, as witnessed in the 1998 Shrimp Turtle Decision in which a WTO Panel found that a U.S. ban on shrimp from India, Malaysia, Thailand and Pakistan (because those states shrimp fishermen had allegedly killed Sea Turtles) was illegal because controls can only be used to immediately protect one’s own citizens from harm. Controls cannot be used to “send signals” or indirectly pressure an exporting state to reform.

In the short term, China has considerable legal room to maneuver should it wish to impose national security controls or erect non-tariff barriers to punish Japan, the United States, the Philippines, and others for opposing them in maritime disputes. WTO cases are very time consuming to document and litigate. However, that same legal maneuver space can also be exploited by the United States and others to frustrate Chinese imports. Therefore, China should do the math and assess whether they have more to gain or lose by instituting de facto embargoes.  

In 2015, China amassed a $365 billion merchandise trade surplus with the United States. Chinese businesses have put this cash to good use by investing in new plants and equipment, educating its young people abroad, and investing billions in the U.S. and other safe offshore markets. This is not unique to the U.S.; China has a global trade surplus of $600 billion.  It continues to have small trade deficits with Japan and South Korea and its principal imports are electrical and industrial machinery (no. 1 and 3), oil (no. 2), and ores (no. 4). This cursory analysis of China’s economy overwhelmingly demonstrates that China is highly dependent on international trade to fuel its economy. China’s offshore investments of its U.S. trade surplus helps China  diversity its holdings outside of Asia. China is also heavily reliant on international suppliers for the raw materials it lacks and risks a great deal by starting a trade war in which it is deprived access to the U.S. and other foreign markets.

History confirms that China would likely suffer more than the U.S. or Japan, Australia, and the Philippines as a result of an embargo. Tough Allied embargoes against Nazi Germany and Italy proved ineffective when self-interest among allied business interests caused the embargoes to leak or, in the case of Germany, forced innovation when Germany developed synthetic substitutes for oil and other commodities. When the U.S. embargoed wheat exports to the USSR in 1973, Canada and Australia picked up the business. The latter is especially important in the current situation. If China were to stop buying Australian ore or Japanese finished products, the world economy is sufficiently diverse to compensate for some of these losses. After the U.S. embargoed exports of scrap iron, steel, and oil to Japan and froze Japan’s assets, Japan was put into the position of having to choose between fighting for additional raw materials or abandoning their plans for a “New Order” in Asia. It is unlikely that any country would launch a Pearl Harbor attack if China were to embargo their products; however, embargoes have a high potential for “blowback” and could result in unintended consequences to the PRC’s overseas businesses, mines, and industrial operations.      

It is also fiction that the U.S. is vulnerable to Chinese action because of its stake in the U.S. public debt (20% foreign owned). In reality, China buys U.S. sovereign debt because it is safe, liquid and can be used by China to finance dollar denominated international transactions (such as oil). China’s central bank also buys U.S. sovereign debt to maintain the exchange rates for renminbi and help drive down the costs of Chinese exports. Also, U.S. sovereign debt is overwhelmingly held by U.S. domestic entities (66%); such that were China to dump its nearly $1 trillion in U.S. debt, that debt will simply be purchased by domestic and foreign purchasers – as happened in August 2015 when China reduced its U.S. debt holdings by $180 billion.  For China, the impact of “a broad scale dump of U.S Treasuries…would be that China would actually export fewer goods to the United States.”  

Sanctions and embargos tend to “leak” because the global market will almost always produce another supplier or purchaser of something that is being withheld from the international market. Philippine bananas and mangos also taste good in Tokyo, Paris, and New York. Given China’s extreme dependence on international trade to fuel its domestic growth and overseas investment, it would be almost suicidal for China to engage in actions that might restrict its access to foreign markets. Likewise, a government-lead boycott of foreign products would, apart from the legal repercussions, would have extremely destructive impacts on its economy since it still relies heavily on imports of agricultural products, industrial equipment (from mostly Japan and Korea), and metal ores for  manufacturing applications. Finally, dumping U.S. debt might cause some angst but, in the long run, U.S. debt instruments would be purchased by investors in the U.S. and other countries.

Continued Trashing of the Tribunal Decision and International Law in General

China continues to condemn the Tribunal ruling. The traditional attacks focused on questions of lack of jurisdiction and “overstepping” its legal mandate. Another Chinese daily’s reported that the Tribunal was a “front” for the United States and “lackey” of outside forces and had an inherent bias because the Philippines paid the “court costs” for the proceeding. A few speculated that China might withdraw from UNCLOS, but China will more likely establish its own arbitral panel to adjudicate the territorial disputes outside of UNCLOS. This later course of action has precedent; recall China’s 2015 establishment of an Asian Infrastructure Bank to finance Asian infrastructure projects outside of the regulation-burdened World Bank system.   

China seems to labor under the perception that the Tribunal Ruling is purely a regional matter and that its impacts end with the states bordering the SCS. China continues to ignore that many countries take the ruling very seriously because the SCS is a maritime superhighway between the Middle East, South Asia, East Africa, North Asia, and Australia. Roughly 60 percent of South Korea’s energy supplies, nearly 60 percent of Japan’s and Taiwan’s energy supplies, and 80 percent of China’s crude oil imports come through the South China Sea. According to a 2015 report from the Council of Foreign Relations:

“Each year, $5.3 trillion of trade passes through the South China Sea; U.S. trade accounts for $1.2 trillion of this total. Should a crisis occur, the diversion of cargo ships to other routes would harm regional economies as a result of an increase in insurance rates and longer transits.”

Money talks. For this reason, states that would ordinarily have been silent registered their support for the Tribunal decision. The EU issued a statement on July 15, underscoring their support for a rules-based order and respect for UNCLOS. The G-7 called on states to “fully implement decisions binding on them in … tribunals under the Convention.” Canada, France, Germany, the UK, Japan, Vietnam, Singapore and the U.S. issued statements support of the ruling. Indonesia, India, South Korea issued more “measured” statements urging China to show restraint and respect for UNCLOS.  

There were some dissenters, but much of the industrial world supported the outcome and expects China to comply. If China continues to signal that it has no interest in conforming to the ruling, China could be excluded from important international negotiations, including, for example, the upcoming negotiation of an agreement under UNCLOS that deals with biodiversity beyond national EEZs. As I suggested in After The South China Sea Arbitration, China could have its privileges essentially suspended in three UNCLOS institutions: (1) the International Tribunal for the Law of the Sea (ITLOS); (2) the International Seabed Authority (ISA), and the (3) the Commissions on the Limits of the Continental Shelf (CLCS).

If China continues its island-building activities and interferes with Philippine fishing in the vicinity of Second Thomas Shoal, Scarborough Shoal, and Mischief Reef, an international court such as the International Court of Justice (ICJ) or ITLOS, could be asked to impose sanctions on the China for flaunting a lawful UNCLOS decision. The case would be predicated on the notion that China cannot take advantage of the benefits of UNCLOS if it lives outside of the law. In practical terms, an injunction could be sought which: recalls China’s judge on ITLOS; blocks the CLCS from any further proceedings involving the Continental Shelf entitlements of China; and lastly suspends both China’s ability to file further deep-seabed mining applications before the ISA and enjoin any further prospecting of its sites in the Indian Ocean. It might also be appropriate for a Tribunal to suspend China’s participation in UNCLOS related bodies including the International Seabed Authority (ISBA) (which writes the regulations for deep seabed mining), the International Hydrographic Organization (IHO) (the charting and oceanography body) and the International Maritime Organization (IMO). The latter action would be especially harmful for China given that the IMO has broad responsibilities to write the rules for merchant ship design, construction, operations, and navigational routes/practices while China has one of the largest merchant marine fleets in the world. 

A meeting of the International Maritime Organization IMO Photo
A meeting of the International Maritime Organization (IMO Photo)

These legal maneuvers would be slow to orchestrate but, like other types of sanctions, could be far-reaching and difficult to reverse once they are put in place. However, China’s continued island reclamation after the ruling, their recent military actions in the vicinity of Scarborough Shoal, and the Chinese Supreme Court’s reaffirmation of the 2012 fishing ban are in direct contravention of the Tribunal’s decision. Since the effects of China’s actions have impacts beyond the Philippines, almost any bordering state,  international organization, or possibly  NGO would have standing to seek to have the Tribunal’s decision enforced since the ICJ (and for that matter ITLOS) has “inherent jurisdiction…to ensure that its exercise of jurisdiction is not frustrated and that its basic judicial functions are safeguarded.”

Conclusion

Inexorably, China is painting itself into a corner in which its escape options become more limited. While it was hoped by officials in the U.S. and elsewhere that China would eventually come to the realization that it needed to capitalize on the favorable aspects of the ruling and “pivot” on those it did not like, that is not happening. The recent military displays in the ECS and SCS, the threatened sanctions towards South Korea, and continued “trashing” of the Tribunal ruling suggest that China is opting for confrontation versus conciliation and now runs the risk of becoming involved in a major military conflict with Japan and perhaps the United States. China says that it is committed to a rules-based order and leadership in Asia but its recent actions say otherwise. Lastly, and perhaps most importantly, pursuit of high risk strategies which could place China’s international trading relations at risk is antithetical to the Chinese Community Party’s 13th Five Year Plan for 2016-2020 to promote balanced international trade, inbound investment, and free trade zones.   

It is entirely possible that China’s leadership does not fully appreciate the dangerous choices their countrymen are making and how their actions are being perceived on the world stage. Military-to-military encounters at sea are occurring on a daily basis, and the potential for a costly misstep increases with each passing day. So too, a miscalculation in the trade or economic arena would likely backfire since China is a trading nation and it can ill afford to have its products excluded from foreign markets. High-level diplomacy and cool heads should be the order of the day.  

A maritime and international lawyer, Mark E. Rosen is the SVP and General Counsel of CNA and holds an adjunct faculty appointment at George Washington School of Law.   The views expressed in this paper are those of the author alone and do not represent the views of CNA or any of its sponsors.   

Featured Image: Triple-E class container ship “Madison Maersk” of Maersk Line loaded with containers is berthed at Nansha port in Guangzhou. (Reuters)

Military Activities on the Continental Shelf

This piece was originally published by the Lawfare Institute in Cooperation with Brookings and is republished with permission. Read it in its original form here.

By James Kraska

The recent Philippine-China Arbitration Award determined that China’s construction of artificial islands, installations and structures on Mischief Reef, Subi Reef, and Hughes Reef were unlawful interference with the Philippines’ exclusive sovereign rights and jurisdiction over the seabed of the exclusive economic zone (EEZ) and continental shelf. Since the three features are low-tide elevations (LTEs), rather than islands, they are incapable of appropriation and are merely features of the Philippine continental shelf, albeit occasionally above water at high tide in their natural state. Although the tribunal’s legal judgment with regard to China’s activities was correct, its reasoning was a bit too categorical. This article adds further fidelity to the tribunal’s determination by distinguishing between lawful foreign military activities on a coastal state’s continental shelf, and unlawful foreign activities on the continental shelf that affect the coastal states sovereign rights and jurisdiction over its resources – a distinction that evaded the tribunal’s analysis.

It is important to understand the lawful scope of foreign military activity on the seabed of a coastal state’s EEZ or continental shelf, as the issue is likely to recur. The Defense Advanced Research Projects Agency, for example, is exploring the idea of “upward falling payloads,” or pre-positioned containers or packages that lie on the ocean floor and wait until activated, at which time they “fall upward” into the water column to perform undersea missions, such as powering other unmanned systems. With some narrow exceptions, such as emplacement of seabed nuclear weapons or seabed mining, the use of the deep seabed is a high seas freedom enjoyed by all States. The more compelling question, however, is the extent foreign states may emplace naval devices or construct installations or structures on the continental shelf or within the EEZ of a coastal State for military purposes.

Article 56(1)(a) of UNCLOS provides that coastal States have certain “sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living….” in the EEZ. Coastal States also have “jurisdiction as provided for in the relevant provisions [of UNCLOS] with regard to “(i) the establishment and use of artificial islands, installations, and structures.” Under Article 60, coastal States enjoy the “exclusive right” to authorize or regulate the construction of structures, a rule that is extended to the continental shelf by virtue of Article 80. Coastal State jurisdiction over artificial islands and structures is not all encompassing, however, and is limited to jurisdiction “as provided for in the relevant provisions [of UNCLOS].” The relevant provisions of the EEZ, of course, relate principally to exclusive coastal State sovereign rights and jurisdiction over living and non-living resources in the EEZ and on the continental shelf, and not sovereignty over the airspace, water column, or the seabed.

In the recent Philippine-China Arbitration Award, the tribunal determined that China’s artificial island construction on Mischief Reef was an unlawful violation of Philippine sovereign rights and jurisdiction over its continental shelf. Since Mischief Reef is a LTE and not a natural island, it constituted part of the Philippine continental shelf and seabed of the EEZ. China failed to seek and receive Philippine authorization for its artificial island construction, and therefore violated Articles 56(1)(b)(i), 60(1), and 80 of UNCLOS (Arbitration Award, para. 1016).

Foreign States, however, are not forbidden to construct installations and structures on a coastal State’s continental shelf per se. Only those installations and structures that are “for the [economic] purposes provided for in article 56” or that “interfere with the exercise of the rights of the coastal State” over its resources require coastal State consent. (See Article 60(1)(b) and (c)). 

But even if China converts its installations and structures into military platforms, their size and scope are so immense that they dramatically affect the quantity and quality of the living and non-living resources over which the Philippines has sovereign rights and jurisdiction. Although normally installations and structures that are built pursuant to military activities are not subject to coastal state consent, the industrial scale of Chinese activity lacks “due regard” for the rights and duties of the Philippines and its sovereign rights and jurisdiction over resources under Article 56 of UNCLOS.

If China had merely emplaced a small, unobtrusive military installation or structure on the seabed or landed an unmanned aerial vehicle at Mischief Reef as part of occasional military activities, it would not have been afoul of UNCLOS. Such incidental use of the seabed or an LTE (which is part of the seabed) are within the scope of permissible military activity in the same way as emplacement on the continental shelf of a small seabed military device. Foreign States may use the seabed for military installations and structures, and even artificial islands, as these purposes do not relate to exploring, exploiting, managing and conserving the natural resources. Only those military activities that rise to the level of or of sufficient are of such scale that they do not have “due regard” for the coastal state’s rights to living and non-living resources of the EEZ and continental shelf are impermissible.

The distinction is important because creation of the EEZ and recognition of coastal state sovereign rights and jurisdiction over the continental shelf was never envisioned to limit normal military activities. Current and future naval programs, in fact, may utilize a foreign coastal State’s seabed EEZ and continental shelf in a manner that is completely in accord with UNCLOS.

Where do we draw the line, however, between an insignificant presence and negligible interference that is lawful, and large-scale disruption that is unlawful? Like all legal doctrine, what constitutes genuine interference to coastal State sovereign rights and jurisdiction must be reasonable, i.e. not de minimis or trivial, but rather a substantial and apparent effect on the resources in the zone, as I discussed in Maritime Power and Law of the Sea. Emplacement of military devices or construction of military installations or structures in the EEZ and on the continental shelf of a coastal State must be judged by reasonableness, and not be of such scale or cross a threshold of effect that it interferes in a tangible or meaningful way with the coastal State’s resource rights.

China’s operation of military aircraft from a LTE is not a priori unlawful, any more than operation of military aircraft from a warship in the EEZ would be illegal. The reason that PLA Air Force military aircraft flights from the runway at Mischief Reef are objectionable and a violation of the Philippines’ coastal State rights is the magnitude of the activity and its effect on the living and non-living resources. Operation by a foreign warship of a small aerial vehicle that lands temporarily on an LTE, for example, would not be unlawful. Likewise, if a naval force emplaced a military payload inside a container and placed it on the seabed of the EEZ – that is, on the coastal State’s continental shelf – that would also be a lawful military activity.

James Kraska is Howard S. Levie Professor of International Law at the Stockton Center for the Study of International Law, U.S. Naval War College, Distinguished Fellow at the Law of the Sea Institute, University of California at Berkeley School of Law, and Senior Fellow, Center for Oceans Law and Policy, University of Virginia School of Law.

Featured Image: MARCH 10, 2016- Philippine Naval Ship, BRP Sierra Madre, sails near disputed Spratly Islands in the South China Sea (REUTERS/Erik De Castro)

The Changing Arctic

From author Ian Birdwell comes The Changing Arctic, a new column that will focus on the unique security challenges presented by the increasingly permissive environment in the High North. The Changing Arctic will examine legal precedents, rival claimants, and possible resolutions for disputes among the Arctic nations, as well as the economic implications of accessing the region’s plentiful resources.

By Ian Birdwell

The Northwest Passage was once a mythic trade route that claimed dozens of Europe’s foremost explorers. Today, travelers can traverse the passage once sought by the likes of Cabot, Drake, and Franklin on the world’s first cruise line1 from New York to Anchorage; the trip lasts only about a month. This shift in accessibility to the Arctic is a direct result of the planet’s warming climate. While increased access to the Arctic offers advantages in terms of commerce and tourism, it has also ushered in a new era of maritime security issues for Arctic nations. Specifically, as the Arctic Ocean warms and northern ice sheets recede, the United States, Russia, Canada, Norway, and Denmark will confront new aspects of maritime security, potentially causing rifts in long-established relationships. As such, it will prove increasingly important to examine the history of these states’ interactions with an eye to the Arctic Ocean’s commercial future.

The Arctic has always been a place of contention for the nations surrounding it. As receding sea ice opens new sea routes, however, a comprehensive understanding of historical territorial disputes in the Arctic and the influence of the UN Convention on the Law of the Seas (UNCLOS) will be necessary. Canada was the first nation to claim vast swaths of territory in the Arctic Ocean in 1925. Not long after the Soviet Union followed suit, laying down their own claim in 1937.2 Though not yet passable by sea, control of Arctic territories was viewed as beneficial as it provided access to and providence over air routes. While moderately contested, Arctic territorial disputes would only become a marquee issue during the Cold War, when the region gained strategic significance as an area to base submarine-launched nuclear weapons.

A map of overlapping territorial claims in the Arctic. (Encyclopedia Britannica Inc)
A map of overlapping territorial claims in the Arctic. (Encyclopedia Britannica Inc)

Arctic nations’ ratification of UNCLOS and the end of the Cold War were catalysts for tension. Notably, the provisions of UNCLOS did not affect Arctic relations until climate change began in earnest because the majority of exclusive economic zones provided within it were practically inaccessible. However, as the ice has melted, the tenants of the Convention have failed to alleviate emerging territorial concerns. Four of the five Arctic Nations have only recently ratified the UN Convention on the Law of the Seas3; the United States has still yet to do so.

As the waters warm, the Convention has been used as a tool to entrench territorial claims4 through UN appeals and report submissions to the Commission on the Limits of the Continental Shelf UN Subcommittee (CLCS). In short, the interested parties are attempting to exploit the convention as a way to extend legitimate Arctic claims beyond the 200 nautical mile mark, as in Norway’s Submission to the Commission on the Limits of the Continental Shelf (CLCS). While Norway’s submission is noted by the UN is based on independent negotiations with other Arctic states to extend5 beyond the 200 nautical mile mark6, the most recent Canadian7, Russian, and Danish8 submissions to the CLCS have been partial submissions, allowing states to make arguments for territorial extensions in the Arctic beyond the CLCS time limit of ten years following ratification of UNCLOS, as outlined in article four9 of Annex II of the Commission of the Limits of the Continental Shelf section of UNCLOS. This, coupled with the geography of the Arctic Ocean, makes Arctic relations more difficult as it pushes territorial disputes into the realm of global bureaucracy under a convention poorly designed for use at the top of the world.

Every square kilometer of ice that disappears raises the stakes in the Arctic region due to its large untapped commercial potential and as the world’s next trade route. Ice previously made oil exploration infeasible. Now, a shrinking ice sheet makes it easier to maintain oil rigs while offering opportunities for expansion. Russia has been pushing the most for this kind of expansion10 due to their expansive arctic coastline. The Russian Federation stands to gain the most commercially. However, the opportunity to control vast amounts of petroleum resources has the United States, Canada, and Denmark excited for drilling opportunities as well. While the recent drop in oil prices11 has tempered this excitement somewhat, time will tell if market shifts and changes in government regulation spark an oil rush in the Arctic. This throws not just national oil giants like Gazprom into the Arctic, but potentially any private oil company capable of negotiating the use of ocean territory into the mix, further complicating territorial disputes and international agreements. Thus, it becomes vital for nations on the Arctic Ocean to solidify their territorial claims either in international courts, diplomatic agreements, or through deterring their rivals from contesting their claims with force.

Passage through the Arctic region12 is likely to become incredibly important as ice levels stabilize and charts improve, yet there are several rising complications for passage that are not environmental. While most routes pass through either Canadian or Russian territorial waters, the entrances to those routes can be militarily contested by Denmark, the United States, and Norway, regardless of which nation’s territorial claims include those waters. This in and of itself poses a problem, because some form of stability and control is needed to ensure shipping routes can be used. While it is unlikely for routes to be blockaded or military conflict to arise, the fact passage control could be contested by any of these nations forces them to develop Arctic-capable assets.13

As climate change alters the Arctic Ocean, the transformation of the world’s highest seas will push the nations surrounding it into an area of unresolved territorial disputes and increasingly higher financial stakes. To provide for more detailed analysis on these nations, the consecutive articles in this series will take an in-depth look at each nation’s goals, limitations, and security concerns as the ice sheets recede.

Ian Birdwell holds a Bachelor’s Degree in Government and International Politics from George Mason University.

1. Paris, Costas “Luxury Cruise to Conquer Northwest Passage” Wall Street Journal. May 10, 2016  <http://www.wsj.com/articles/luxury-cruise-to-conquer-northwest-passage-1462872605 >

2. McKItterick, T.E.M. “The Validity of Territorial and Other Claims in polar Regions” Journal of Comparative legislation and International Law, Vol. 21, No. 1 (1939)

3. United Nations “Declarations and Statements” Oceans and Law of the Sea. Accessed June 3, 2016 <http://www.un.org/Depts/los/convention_agreements/convention_declarations.htm#Denmark Upon ratification>

4. Associated Press in Toronto “Canada to Claim North Pole as its own” The Guardian. December 9, 2013 <http://www.theguardian.com/world/2013/dec/10/canada-north-pole-claim>

5. Russian Federation “Commission on the Limits of the Continental Shelf Outer limits of the continental shelf beyond 200 nautical miles from the baselines” United Nations Oceans and Law of the Sea Division for Ocean Affairs and the Law of the Sea. Updates June 30, 2009 <http://www.un.org/depts/los/clcs_new/submissions_files/submission_rus.htm>

6. Kingdom of Norway “Commission on the limits of the Continental Shelf Outer Limits of the contiental shelf beyond 200 nautical miles from the baselines” United Nations Oceans and Law of the Sea Division for Ocean Affairs and the Law of the Sea. Updated August 20, 2009 <http://www.un.org/depts/los/clcs_new/submissions_files/submission_nor.htm>

7. Canada “Commission on the Limits of the Continental Shelf Outer limits of the continental shelf beyond 200 nautical miles from the baselines” United Nations Oceans and Law of the Sea Division for Ocean Affairs and the Law of the Sea. Updated December 29, 2014 <http://www.un.org/depts/los/clcs_new/submissions_files/submission_can_70_2013.htm>

8. Kingdom of Denmark “ Commission on the limits of the continental shelf outer limits of the conteitnal shelf beyond 200 nautical miles from the baselines” United Nations Oceans and Law of the Sea Division for Ocean Affairs and the Law of the Sea. Updated May 21, 2014 <http://www.un.org/depts/los/clcs_new/submissions_files/submission_dnk_68_2013.htm>

9. United Nations “United Nations Convention on the Law of the Sea Annex II” <http://www.un.org/depts/los/clcs_new/documents/annex2.htm>

10. Gurzu, Anca “Economic pain pushes Russia to drill in high Arctic” Politico April 24, 2016 <http://www.politico.eu/article/economic-pain-pushes-russia-to-drill-in-high-arctic-oil-energy-natural-gas/>

11. Krauss, C. and Stanley Reed “Shell Exits Arctic as slump in oil prices forces industry to retrench” New York Times. September 28, 2015 <http://www.nytimes.com/2015/09/29/business/international/royal-dutch-shell-alaska-oil-exploration-halt.html>

12. Stephens, Hugh “Northwest Passage a Key to Canada’s relationship with Asia” The Globe and Mail.May 19, 2016 <http://www.theglobeandmail.com/opinion/northwest-passage-a-key-to-canadas-relationship-with-asia/article30091202/>

13. Weber, Bob “Denmark joins Arctic arms race” The Toronto Star. July 26, 2009

Featured Image: Arctic waters (Incredible Arctic / Shutterstock)

Clash of Core Interests: Can One Mountain Hold Two Tigers? 核心利益的冲突:一山,不容,二虎?

South China Sea Topic Week

The following article is published in English and Chinese. 

By Tommy Jamison

The present dispute over the South China Sea doesn’t hinge on fishing rights, or oil fields, or even military bases. At its root the controversy stems from conflicting, profoundly held and historically consistent “core interests/核心利益.” On the one hand, the United States sees freedom of navigation as a fundamental pillar of the post-war order and integral to the past 70 years of relative peace and prosperity. On the other, China’s (re)assertion of sovereignty over the South China Sea should be contextualized within its century long campaign to recover territory lost under (semi)-imperialism. The historical grounding of both these arguments seems lost on much of Washington as well as Beijing. 

目前南海冲突的关键不是捕鱼权,不是油田,甚至也不是军事基地。从根本上讲,南海争议来源于不同的,有历史一致性的的核心利益。在一方面,美国认为航行自由是实现与二战以来持续七十年的安全与繁荣的重要基础。反过来,中国对南海的领土的主张跟其具有一百多年来“反殖民主义”的历史经历有很大的关系,我们应该思考这一背景。华盛顿跟北京一样,似乎都对双方的历史情况漠不关心。

Left, "China: It Cannot Be Reduced by Even a Little." Today a common image on social and state media. Right, "A Map of the Current Situation" c. 1900. "It is obvious at a glance" that a host of imperial powers threatened Chinese sovereignty.
Left, “China: It Cannot Be Reduced by Even a Little.” Today a common image on social and state media (People’s Daily). Right, “A Map of the Current Situation” c. 1900. “It is obvious at a glance” that a host of imperial powers threatened Chinese sovereignty. (Wikipedia)

Territorial controversies are not new in China. From the Opium War (1839-42) to the present, resisting imperialism and recovering lost territory have constituted core objectives of Chinese foreign policy. As such, it is only through first exploring this historical context that we understand the modern conflict in the South China Sea. Because of “Western” (semi)-imperialism, territorial disputes in Chinese modern history are very common and have profound political ramifications. The question of Shandong’s sovereignty was the fuse for the May Fourth movement (1919); Japan’s aggression in Manchuria (1931) led to the collapse of the post-WWI internationalist system and incited the Second World War; before 1997 Hong Kong was one of the world’s last formal colonies; today Sino-Taiwanese relations remain a powder keg, and so on. From this historical perspective of course the South China Sea is a sensitive question. It is also in some ways a legacy of resistance to imperialism and, to a certain extent, a continuation of the 20th century movement to recover lost territories.

中国的领土争议由来已久。从鸦片战争至今,反殖民主义与收复失地可以说是中国外交的核心目标之一。因此,我们首先要了解近代中国的历史背景,唯有如此,才能更好地了解现在的南海矛盾。由于西方帝国主义,在中国近代历史上类似的领土问题中无处不在,并产生深远的政治影响。山东省的主权问题是五四运动(1919)的导火线;日本在东北的侵略导致了一战后国际秩序的崩溃,也引发了第二次世界大战;1997之前,香港算世界上最后的正式殖民地之一;今天两岸关系还是一个“火药桶”等。从历史脉络的角度来看,南海主权理所当然是一个敏感的政治话题。同时,从某种角度上是反殖民主义的精神遗产,而且在一定程度上是二十世纪主权运动的继续。

At the same time, from a macroscopic perspective, the U.S. post-war diplomatic strategy can be summarized in four principles: 1) defend democratic regimes; 2) encourage free trade; 3) protect freedom of navigation, because it is a fundamental requirement of free trade (alongside today freedom of information, the skies and even space); and 4) spread liberalization, an admittedly abstract principle. In short, the U.S. post war strategy has been an attempt to replace the pre-war anarchic international system with a liberal internationalist system. China’s activity in the South China Sea threatens these aims, particularly freedom of navigation, and thus threatens the post-war international system. Freedom of navigation is often criticized in mainstream Chinese media, as in, “At root, freedom of navigation is an excuse to implement the ‘pacific rebalance’ strategy and to contain the emergence of China,” but the present world was developed from these ideals. As such, freedom of navigation is in no way an empty slogan, but rather a core U.S. interest.

与此同时,在宏观层面上,美国二战后的外交战略可以归纳为四个原则:一是保护民主政府;二是推动自由贸易;三是捍卫航行自由,因为航行自由是贸易自由最基本的要求,现在这个原则扩展到飞行自由、信息自由,甚至天空自由等范围。第四个原则是最抽象的——普及自由化。简而言之,美国二战后的战略试图用自由国际秩序来代替二战前的无政府国际秩序(anarchic international system)。如今,中国在南海的行为威胁到了这些原则,特别是航行自由,因此也威胁到了二战后的国际秩序。中国主流媒体常常讽刺航行自由,比如“归根结底是借推行航行自由之名,行推进亚太再平衡战略、遏制中国崛起”等,但是目前的世界格局正在这理念之上发展而来。因此,航行自由绝非一个凭空的口号,而是一个核心利益。

The Dagu Fort Memorial, Tianjin China (大沽口炮台纪念馆, 天津). It was built and modernized in the late nineteenth century in an effort to resist foreign amphibious attacks on Beijing. A sign helpfully notes that the memorial, “makes clear to subsequent generations: those who lag behind will be bullied, it is only through strength and prosperity that peace can be achieved.” 昭示后人:落后就要挨打,强盛才有安宁. (Author Photo)
The Dagu Fort Memorial, Tianjin China (大沽口炮台纪念馆, 天津). It was built and modernized in the late nineteenth century in an effort to resist foreign amphibious attacks on Beijing. A sign helpfully notes that the memorial, “makes clear to subsequent generations: those who lag behind will be bullied, it is only through strength and prosperity that peace can be achieved.” 昭示后人:落后就要挨打,强盛才有安宁. (Author Photo)

None of this is to say that today’s South China Sea controversy is a direct continuation of China’s resistance to imperialism—far from it—but only to suggest that the conflict’s acuteness cannot be divorced from a larger historical context. When writing his history of Sino-U.S. relations from 1989-2001, David Lampton appropriated a saying about spousal conflict to sum up his findings: Same Bed, Different Dreams (同床异梦). That’s about right for the South China Sea as well. Still, the more worrying phrase might be the oft heard, “one mountain cannot hold two tigers” (一山,不容,二虎), which not coincidently frames the last chapter of Sarah Paine’s excellent history The Wars for Asia (1911-1949). Given the significance of historical context in this dispute, the potential for the misuse of history is likewise apparent. Eric Hobsbawm once wrote, “Historians are to nationalism what poppy-growers in Pakistan are to heroin-addicts: we supply the essential raw material for the market.” That danger seems particularly applicable to South China Sea where the trends of nationalism, hegemony, ecological scarcity and globalization intersect.

Still, one thing is for sure, giving serious thought to the historical background informing behavior on both sides of the Pacific would go a long way toward dispelling the distortions of modern day nationalists and bureaucrats alike. It might even help prevent an especially unnecessary war.  

Tommy Jamison is a PhD Candidate in International History at Harvard University. He served as an officer in the U.S. Navy between 2009-2014. 

Featured Image: South China Sea Goddess of Mercy 南山海上观音圣像.  (Percy)