All posts by Alex Calvo

Guest Professor at Nagoya University (Japan), interested in military history, international law, geopolitics, and defence and security policy. Main geographical focus Indian-Pacific Ocean Region, also following the polar regions and the South Atlantic. Former teaching and research fellow at OSCE Academy (Kyrgyzstan).

Pakistan’s Navy: A Quick Look

By Alex Calvo

Traditionally the junior service, operating in the Army’s shadow and receiving a ten percent share of the 2015 defence budget of $6.6 billion, Pakistan’s Navy personnel numbers more than 22,000 active, plus 5,000 in the reserve. This secondary role stands in contrast with the economy’s dependence on the sea, with the port city of Karachi contributing 25 percent of GDP and the proposed China Pakistan Economic Corridor (CPEC) raising the country’s maritime profile even further.

Much of the Navy’s backbone, including its seven submarines, five French-made ‘Khalid’ class conventional hunter-killer (SSKs) acquired in the 1990s plus two ‘Hashmat’ class SSKs from the 1970s, is nearing retirement. The Navy is working to acquire new surface and undersea combatants, boosting domestic shipbuilding in the process and in cooperation with Beijing.

Plans include procuring an additional four 3000-ton F-22P/’Zulfiqar’ (Sword) class frigates with improved sensors and weapons (including HQ-17 surface-to-air missiles, developed from Russia’s Tor 1/SA-N-9), as well as six Type-022 Houbei stealth catamaran missile boats. State-owned shipbuilder Karachi Shipyard and Engineering Works (KSEW) is responsible for these programs, and is expanding its facilities with a new foundry, manufacturing areas, and two dry docks of 26,000 and 18,000 dead weight tons, spread over 71 acres. Islamabad had been hoping to procure six Perry-class frigates from the US on easy terms, but congressional hostility has prompted greater reliance on China, a country heavily committed at all levels to Pakistan, being a key to Beijing’s strategy of securing access to the Indian Ocean and keeping New Delhi distracted by a regional rival.

Sword class frigate of the Pakistani Navy.
Sword class frigate of the Pakistani Navy.

Karachi is the traditional home of the Pakistani Navy, and remains of the utmost importance, despite diversification into other bases, among them PNS Siddique (in Turbat, in the south-west, close to the strategic deepwater port of Gwadar and the border with Iran), Pasni, and Jinnah Naval Base (also in the south-west). Asked whether security is considered by the Pakistani Navy as a reason to push for further diversification away from the city, Zoha Waseem (PhD Candidate at King’s College London and an expert in Pakistani security and policing) explains that “the situation in Karachi in terms of the ongoing operation is linked with the need of the military to keep investing in Karachi. The construction of military bases, infrastructure, and training centres and accommodation does not appear to be decreasing. Karachi is an ATM machine, and a prime location for any stakeholder to have its assets here.”

PNS Badr, a British-built Type-21 frigate, was decommissioned in 2014. Despite being the junior service and the country facing a difficult fiscal position, Pakistan's Navy has been pushing for ambitious plans in terms of both surface and undersea combatants. Source Flickr.
PNS Badr, a British-built Type-21 frigate, was decommissioned in 2014. Despite being the junior service and the country facing a difficult fiscal position, Pakistan’s Navy has been pushing for ambitious plans in terms of both surface and undersea combatants. Source Flickr.

While new ships are seen as essential in terms of maritime security and the fight against piracy, it is Pakistani plans to acquire new submarines that have met with the greatest concern in New Delhi. In March 2015, Islamabad announced plans to procure eight new Chinese submarines, and in October 2015 confirmed that four would be purchased from Beijing and four built at KSEW. The package includes a training centre in Karachi and probably includes access to China’s Beidou-II (BDS-2) satellite navigation network. Thanks to similar designs, Beijing, in turn, gets to enjoy the necessary maintenance personnel and facilities enabling her to operate her own submarines much more efficiently in the Indian Ocean, home to vital SLOCs (sea lanes of communication) for China. Ideally the Navy would like a total of 12 new boats. These Chinese-designed submarines will probably be based on the air independent propulsion (AIP) equipped Type 39B Yuan SSK (known as S-20 in its export version). Displacing 2,300 tons, they can fire both cruise missiles and 533 mm torpedoes, and can also deploy mines and special forces. Pakistan, already working on a version of the National Defence Complex Babur missile capable of launch from her old Khalid submarines, sees the S-20 as more than a conventional platform, although preventing an Indian blockade is certainly a major goal in and by itself. A sea-based deterrent would provide Islamabad with a second strike capability, while avoiding perceptions of falling behind India in the nuclear sphere. The resulting improvement in survivability is seen by Mansoor Ahmed (Stanton Nuclear Security junior faculty fellow at the Harvard Kennedy School’s Belfer Center), as providing greater strategic stability to South Asia, given that India could not be sure of completely destroying Pakistani nuclear forces and thus escape unacceptable damage herself.

Work on a sea-based deterrent may also be closely linked to the Navy’s status within the military. According to Scott Cheney-Peters (US Navy reserve officer and CIMSEC founder) “Unless Pakistan’s Navy can develop an at-sea strategic nuclear deterrent it is likely to remain the ‘junior service.’ This means it has a strong institutional incentive to pursue an SLBM second-strike capability. But just as this incentive may not be enough to bring the capability to fruition any time soon, so the second-capability may not be enough to remove the perception of the Navy as a junior partner in the nation’s armed forces.”

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 found here.

Featured Image: MAYPORT, Fla. (Aug. 31, 2010) Pakistan sailors parade their country’s colors during the decommissioning ceremony of the guided-missile frigate USS McInerney (FFG 8) at Naval Station Mayport. During the ceremony, McInerney was commissioned into the Pakistan navy as PNS Alamgir (F 260). (U.S. Navy photo by Mass Communication Specialist 2nd Class Gary Granger Jr./Released).

Book Review: Piracy and Armed Robbery at Sea

Robin Geiss and Anna Petrig. Piracy and Armed Robbery at Sea: The Legal Framework for Counter-Piracy Operations in Somalia and the Gulf of Aden. Oxford University Press, 2011. 340 pp. $110 


9780199609529

By Alex Calvo

The Law of Counter-Piracy Operations: From Hollywood films to some Chinese popular perceptions of their Eastern neighbors, piracy and pirates retain a powerful hold in contemporary culture. However, it is their most recent incarnation in areas like the Gulf of Guinea, the Malacca Straits, and the Horn of Africa, that is carefully followed by anybody involved in maritime affairs, from ship owners and operators to naval officers and international lawyers. Among other aspects of piracy, the legal regime of pirates and operations against them is of the foremost importance, and therefore any volume devoted to them proves a welcome addition to the literature on the sea and what Julius Caesar labeled as “hostis humani generis,” or the enemies of humankind. This is exactly what Piracy and Armed Robbery at Sea purports to be, and actually is: a single-volume treaty on the law applicable to counter-piracy operations, with a regional focus on Somalia and the Gulf of Aden. The book achieves the goals of providing a comprehensive approach to the subject, with plenty of primary sources, case law where applicable, and legal commentary on controversial or unclear aspects. While readers may note the absence of topics such as the rights of victims, the ransom industry, and non-Western legislation, this does not detract from the overall quality of the work, which furthermore contains a number of sources in its appendixes which can be very useful to the practitioner.

[otw_shortcode_button href=”https://cimsec.org/buying-cimsec-war-bonds/18115″ size=”medium” icon_position=”right” shape=”round” color_class=”otw-blue”]Donate to CIMSEC![/otw_shortcode_button]

As clear from the title, the subtitle, and introduction, this book seeks to provide the reader with a detailed explanation of the different legal regulations and principles under which piracy is fought in one of the corners of the world where it is most pervasive, and which, crisscrossed by myriad SLOCs (sea lanes of communication), no major power can ignore it. In connection to this, the first aspect of the text we should note is that this is indeed a law book, and perhaps more accurately a “black letter law” book, in the sense that it focuses on positive law, with just the minimum amount of social, economic, and other considerations provided in Chapter one and later interspersed in the text. When the authors delve outside the strict borders of the law, it is to better explain the rationale behind legal rules, a good example being their discussion of judicial and prison capacity in- countries like Kenya (p. 174-179) and the Seychelles, which supports and complements their explanation of the agreements signed between them and the European Union for the local trial and imprisonment of pirates. Having said that, they also discuss possible future developments of the law, such as specialized international tribunals to deal with piracy (p. 179-184).

A second important characteristic we may stress is the logical fashion in which the text is divided into parts, and then subdivided into chapters, which very much aids for the reader who wishes to go through the text from beginning to end, and those who prefer to go straight to one of the issues discussed in the volume. A third strong point is that, while focused on positive law, the authors stop to discuss areas where applicable rules may not be clear or even be controversial, providing a summary of arguments and their own views. An example is the practice of embarking law-enforcement personnel from one country on a naval (or state) ship of another, with the associated legal complexities.

This photo taken Sunday, Jan. 4, 2009 provided by French Defense Minister shows suspected pirates arrested by Marine commandos of the French Navy in the Gulf of Aden, off Somalia coasts. French government officials say the Jean de Vienne intercepted and captured 19 pirates Sunday as they tried to take over two cargo ships, one Croatian and the other Panamian. French Navy vessel Jean de Vienne is seen on background. (AP Photo/French Navy/French Defense Minister/HO)
This photo taken Sunday, Jan. 4, 2009 provided by French Defense Minister shows suspected pirates arrested by Marine commandos of the French Navy in the Gulf of Aden, off Somalia coasts. French government officials say the Jean de Vienne intercepted and captured 19 pirates Sunday as they tried to take over two cargo ships, one Croatian and the other Panamian. French Navy vessel Jean de Vienne is seen on background. (AP Photo/French Navy/French Defense Minister/HO)

The Book’s Strong Points: The text provides a comprehensive look at applicable legislation and extensive discussion of unclear aspects. As noted, the authors make an extensive effort to cover the different legal aspects of the fight against piracy, adding their commentary and summaries of other views where positive law is unclear or developing. Examples include three possible interpretations of Article 105 UNCLOS, providing universal or limited criminal jurisdiction, a conflict-of-law rule, or a reaffirmation “that prosecution is based on domestic criminal law and procedure” (p. 149-151), and a discussion of the differences between transfers and extradition, noting how generally speaking “in the piracy context, the change in custody is not brought about by the formal means of extradition” and “transfers in the piracy context do not fulfill the characteristics of deportations or exclusions.” (p. 192-194)

The Expanding Range of Somali Piracy
The Expanding Range of Somali Piracy

Three gaps: Non-Western Views, Piracy Victims, and the Ransom Industry and Middlemen

There are three aspects that, if incorporated in future editions of the book, may make this work even more complete. First of all, we should note a lack of Chinese, Indian, Japanese, Russian, and South Korean views, even though all these countries contribute to the struggle against piracy in the Horn of Africa. It would be interesting to find some legal commentary, domestic legislation, or actual cases, from these jurisdictions. Second, we cannot fail but note a complete and utter disregard for piracy victims, who are basically absent from the text. While the death penalty, torture, and the principle of “non-refoulement” are dealt with extensively (p. 210-220), there is no discussion of reparations for victims, and of their procedural standing other than when serving as a connection point for states to exercise jurisdiction.

The authors’ concern with the human rights of alleged and convicted pirates is commendable, and so is their extensive treatment of those rights in their book, but caring about the rights of the accused should not be seen as incompatible with at least providing some cursory explanation of those of the victims. Finally, another notable absence is that of the “middlemen” and more widely the “industry” managing ransoms, and their possible criminal liabilities. No look at the legal framework of the fight against piracy is complete without an examination of the rules and practice designed to strangle their finance, but despite the subject occasionally emerging in the pages of the book, there is no section specifically dealing with it. Is it perhaps too sensitive?

Conclusions: It is a useful and quite comprehensive study, though suffering from some gaps. We can thus conclude that this is a book that anybody interested in piracy and counter-piracy operations, the law of the sea, and more generally maritime and naval affairs, will find useful, both as a detailed introduction to the legal rules applicable to counter-piracy operations, and as a reference work. It is to be hoped, however, that future editions incorporate non-Western views, victims’ rights, and the law applicable to pirate financing.

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 found here.

[otw_shortcode_button href=”https://cimsec.org/buying-cimsec-war-bonds/18115″ size=”medium” icon_position=”right” shape=”round” color_class=”otw-blue”]Donate to CIMSEC![/otw_shortcode_button]

US Department of State Seeks to Clarify Meaning of China’s 9-Dash Line: Finale

By Alex Calvo

This is the fifth 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, part four

[otw_shortcode_button href=”https://cimsec.org/buying-cimsec-war-bonds/18115″ size=”medium” icon_position=”right” shape=”round” color_class=”otw-blue”]Donate to CIMSEC![/otw_shortcode_button]

Whereas the assertion that China has not actually made a claim may not be shared by everybody, in particular given the language flowing from Beijing which the DOS report itself cites, the reference to the “high seas” between mainland China and some islands seems stronger proof that Beijing was not making a historic claim. However, we must again stress that this would be the case if we followed the prevailing interpretation of the law of the sea, but there is no reason why China should adhere strictly to it, and even less that Beijing should not have changed her mind since 1958, when she had little more than a coastal navy and her economy was closed and in tatters. It may be true, as the report notes, that the 1958 Declaration only made a historic claim to the Bohai (Pohai) gulf in northeastern China, but again this should perhaps be judged from a wider historical perspective. After 1949 the PRC took a much more uncompromising stance concerning its North-East than its South-East (and wider maritime) borders. With a pragmatic arrangement in place with the United Kingdom concerning Hong Kong, and a strong economic and political relation with the Soviet Union, it was at the other end of the country where, in 1950, Beijing (not without an intense internal debate given the state of the country), decided to resort to force to prevent the presence of hostile forces close to her border, intervening in the Korean War, pushing back the advancing Allied forces and reversing the impact of the Inchon landing, ultimately forcing a stalemate on the ground. In 1958, just five years after the Korean armistice, nearby waters may have thus been much more present in Chinese leaders’ minds. In addition, these were also the waters directly leading to Tianjin and Beijing, the venue for foreign interventions in both the Opium Wars and the Taiping Rebellion. It would not be until the late 1970s that China’s South-Eastern flank would begin to receive more attention, in part thanks to the rapprochement with the United States and in particular once economic growth and the country’s move to become a net energy and commodity importer turned the waters of the South China Sea into a vital venue and potential choke point. It is true that in December 1941 the loss of HMS Prince of Wales and HMS Repulse in the South China Sea had enabled the Japanese to land in Malaya and ultimately conquer Burma, closing the last land route to besieged Nationalist China, but this did not result in a comparable imprint on China’s historical consciousness, among other reasons because the episode did not involve Chinese naval forces and was subsumed into a much larger, dramatic, and quickly-developing picture.

Vietnamese-Americans demonstrating against Chinese claims in the South China Sea. Note the banner in favor of US ratification of UNCLOS.
Vietnamese-Americans demonstrating against Chinese claims in the South China Sea. Note the banner in favor of US ratification of UNCLOS.

Rejecting the validity of a possible historic claim by China. Concerning whether, if China “Made a Historic Claim”, it would “have Validity”, the DOS paper insists that “such a claim would be contrary to international law”, stressing the limited degree to which UNCLOS recognizes this category of claims, as evidenced by its “text and drafting history”. The text argues that “apart from a narrow category of near-shore ‘historic’ bays” in Article 10, and “historic title” concerning “territorial sea boundary delimitation (Article 15)”, “modern international law of the sea does not recognize history as the basis for maritime jurisdiction”, citing the Gulf of Maine ICJ case. It also underlines the fact that UNCLOS provisions concerning the EEZ, continental shelf, and the high seas “do not contain any exceptions for historic claims” to the detriment of coastal states and all estates enjoying certain freedoms. Concerning fisheries, the report acknowledges that UNCLOS refers to “the need to minimize economic dislocation in States whose nationals have habitually fished” in the EEZ (Article 62(3)) and to “traditional fishing rights and other legitimate activities” (Article 51), but restricts the impact to the possible granting by one state to another of fisheries resources “based on prior usage”. The text stresses that no such traditional fishing practices can “provide a basis for sovereignty, sovereignty rights, or jurisdiction,” adding that UNCLOS rules on oil and gas development contain no “exception for historic rights in any context.” Again we note how a purely legal report like this may be missing part of the picture, given the great importance that fishing vessels have in the ongoing conflict over the South China Sea, where they are one of the pillars of asymmetric naval warfare.

Chinese scholars Gao and Jia have argued that UNCLOS does not regulate “historic title” and “historic rights,” which fall instead under the purview of general international law. In their view, UNCLOS “was never intended, even at the time of its adoption, to exhaust international law. On the contrary, it has provided ample room for customary law to develop and to fill in the gaps that the Convention itself was unable to fill in 1982” as clear from its preamble, which reads “matters not regulated by this Convention continue to be governed by the rules and principles of general international law.” The DOS report explicitly rejects this position, saying that “it is not supported by international law” and goes against the “comprehensive scope of the LOS Convention.” Experts like Mark Valencia, on the other hand, hold that China’s posture may be compatible with the international law of the sea.

The text does not stop at arguing that it is not open to a state to make historic claims based not on UNCLOS but on general international law, laying down a second line of defense. It explains that, “even assuming that a Chinese historic claim in the South China Sea were governed by ‘general international law’ rather than the Convention,” it would still be invalid since it would not meet the necessary requirements under general international law, namely “open, notorious, and effective exercise of authority over the South China Sea,” plus “continuous exercise of authority” in those waters and “acquiescence by foreign States” in such exercise of authority. Furthermore, it explains that the United States, which “is active in protesting historic claims around the world that it deems excessive,” has not protested “the dashed line on these grounds, because it does not believe that such a claim has been made by China,” with Washington choosing instead to request a clarification of the claim. Whether this view is also meant to avoid a frontal clash with Beijing, in line with the often state policy goal of “managing” rather than “containing” China’s rise, is something not discussed in the text.

The report concludes by criticizing another view put forward by Gao and Jia, namely the relevance of claims made before the advent of UNCLOS. While these two scholars argue that “In the case of the South China Sea as enclosed by the nine-dash line, China’s historic title and rights, which preceded the advent of UNCLOS by many years, have a continuing role to play,” the DOS paper says that “The fact that China’s claims predate the LOS Convention does not provide a basis under the Convention or international law for derogating from the LOS Convention,” adding that “permitting States to derogate from the provisions of the Convention because their claims pre-date its adoption is contrary to and would undermine” the convention’s “object and purpose” stated in its preamble to “settle … all issues relating to the law of the sea.”

Conclusions. Long-standing American policy towards China stresses the need to manage the latter’s rise, so that it does not threaten the post-Second World War system, based among others on freedom of navigation and a ban on territorial expansion as a legitimate causus belli. As a result, Washington has often called on Beijing to clarify her claims on the South China Sea, in an attempt to constrain them while avoiding a frontal clash. This position also seeks to reinforce the perception that the United States focuses on the rule of law at sea, rather than on supporting one claimant against the other over disputed waters. The DOS document, in line with this approach, carefully dissects Chinese claims, analyzing whether they may be compatible with standard American interpretations of international Law of the Sea. The conclusions are rather pessimistic, exposing how, despite having ratified UNCLOS, the Convention’s provisions are not seen in the same light by Beijing and Washington. This should not surprise us, since international law seeks to constrain power but at the same time it is shaped by it, thus as countries rise they seek to play a greater role in the fate of rules and principles. In the case of China this is even clearer due to historical perceptions that it was to a large extent seaborne power which subjected the country to a semi-colonial status for a whole century. If Beijing’s claims in the South Chinese Sea cannot be seen in the light of UNCLOS, the question arises what ultimate Chinese goals are. Could this be the subject of a future paper by the Department of State? Or does Washington prefer to wait until the international arbitration case launched by Manila concludes? While the second option seems more likely, as time goes by the idea that China’s rise may be shaped, rather than constrained, increasingly seems less and less realistic. However, if the time comes to draw a line in the sand, a whole of government effort will be needed, going beyond the naval circles that to date have been most vocal in articulating the need to resist Chinese expansion.

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 found here.

[otw_shortcode_button href=”https://cimsec.org/buying-cimsec-war-bonds/18115″ size=”medium” icon_position=”right” shape=”round” color_class=”otw-blue”]Donate to CIMSEC![/otw_shortcode_button]

US Department of State Seeks to Clarify Meaning of China’s 9-Dash Line Part 4

By Alex Calvo

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

[otw_shortcode_button href=”https://cimsec.org/buying-cimsec-war-bonds/18115″ size=”medium” icon_position=”right” shape=”round” color_class=”otw-blue”]Donate to CIMSEC![/otw_shortcode_button]

3.- “Dashed Line as a Historic Claim”

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.

“Coat of arms of USS Lassen (DDG 82), which has conducted FONOPS in the South China Sea. Experts have criticized their ambiguity and are still debating their exact nature.”
Coat of arms of USS Lassen (DDG 82), which has conducted FONOPS in the South China Sea. Experts have criticized their ambiguity and are still debating their exact nature.

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.”

Read the next installment here

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 found here.

[otw_shortcode_button href=”https://cimsec.org/buying-cimsec-war-bonds/18115″ size=”medium” icon_position=”right” shape=”round” color_class=”otw-blue”]Donate to CIMSEC![/otw_shortcode_button]