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.
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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.
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.
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This article was originally published by the South Asia Analysis Group. It is republished here with the author’s permission. Read the article in its original form here.
By Commodore RS Vasan IN (Ret)
“An Opportunity for India to showcase the Capacity, Capability, and Intent of a strong, vibrant, emerging Maritime Nation in the 21st Century.”
The IFR 2016 will indeed be a grand spectacle as more than one hundred ships from the navies of over fifty countries will participate in this exercise that is carried out every five years. The event, which in the initial years was mostly limited to the participation of ships from the Indian Navy, Indian Coast Guard and the merchant navy, has transformed in to an international event with a major maritime event conducted in 2001 under the initiative of then Chief of Naval Staff Admiral Susheel Kumar. The marching of the naval officers and sailors from ships around the world along the marine drive in Mumbai and the presence of ships from around the world signaled a new era in maritime diplomacy. The intentions of a maritime India to occupy center stage in both regional and global missions by using the Indian Navy as an instrument of national policy were explicit.
Indian Navy carrier. Indian Navy photo.
As the participants of the IFR witnessed scores of indigenous ships of the Indian Navy, it was evident that the Indian Navy was in the process of transforming from a buyer’s navy to a builder’s navy. The process was a prerequisite to assuming greater regional leadership role and responsibilities. This did not escape the attention of the participant nations and motivated them to engage with India at many levels. It is not to be forgotten that this initiative was taken under the leadership of Admiral Susheel Kumar, who succeeded Admiral Vishnu Bhagwat. Admiral Bhagwat was relieved of his duties as CNS on 30 December 1998 by the NDA Government under certain debatable circumstances. The Navy’s morale, which was dented, had to be built up brick by brick and the IFR of 2001 from that point of view provided a launching pad for the force that was fast becoming a blue water Navy. The theme ‘Bridges of Friendship’ was very well received and created an environment that facilitated the process of integration of a regional navy in to a global matrix.
While both the Indian Navy and the Indian Coast Guard have conducted the Fleet Reviews on the east coast (The very first Indian Coast Guard Fleet Review by the Raksha Mantri was conducted off the east coast when the author was the Regional Commander of the Indian Coast Guard, Region East), this is the first time that an international fleet review of this scale is being conducted in the Bay of Bengal. By design, this also complements the ‘Look East’ policy of the Government of India. It also adds value to other maritime initiatives, such as the biannual Milan (established as an initiative for meeting of the naval minds in Port Blair) and the Indian Ocean Symposium (IONS), now a well-established forum among Navies of not just the Indian Ocean but also the rest of the world.
Indian Navy maritime patrol craft. Indian Navy photo.
By all expectations, China will be a first-time participant in the Indian Fleet Review. From the point of view of PLA-Navy, participation signals its intention to be a part of global initiatives in the Indian Ocean. The anti-piracy patrols by PLAN units, which are still underway off the coast of Somalia, provided ample opportunity for the Chinese Navy to assert its intention to be part of the international mechanisms to combat piracy. Both the Indian Navy and the Chinese Navy worked shoulder to shoulder in warding off this threat, though India was concerned about the presence of another extra regional player in its traditional back yard. The visit of the Chinese submarines both conventional and nuclear last year again caused ripples in Delhi. There are no doubts that India and China will jostle for power and influence in the Indian Ocean Region. While India does have geography on its side, the surplus funds that can be channeled for initiatives such as the Maritime Silk Road and the One Belt One Road will change the strategic landscape of Indian Ocean Region. The IFR also comes at a time when there are great initiatives being taken by China in Asia, Africa and Europe in terms of connectivity. The fact that the PRC plans to build a naval base in Djibouti and has huge investments in the maritime sector in Sri Lanka, the Maldives, Bangladesh, and Pakistan are of concern to India, which appears to have conceded strategic space to China in its areas of influence. The presence of the INS Vikramaditya and India’s nuclear submarines would send a message to observers about the might of the Indian Navy that can be brought to bear as and when required in areas of interest. The presence of a P-8i surveillance aircraft could also generate interest in the capability of this newly acquired platform, capable of locating and tracking submarines and surface assets of extra-regional powers in the Indian Ocean. The message that the Indian Navy is net-centric warfare capable as a result of plenty of indigenous efforts would be very clear.
The Indian Navy has inherited many of the traditions and practices from the Royal Indian Navy while adding its own local flavor. The President of India, by virtue of being the Supreme Commander of the Armed forces, reviews the fleet invariably before he or she demits office during the tenure of five years as the President. It is a mega-event by any standards, and even the state Government has committed more than 83 crores in beautifying the city of Vizag, which houses the Eastern Naval Command and important maintenance facilities of the Navy. It is also the base for the nuclear submarines of the Indian Navy, including strategic assets. All the arrangements have been reviewed at the level of the Raksha Mantri and the Navy and nation are geared up for this event in the first week of February that will showcase the prowess of the Indian Navy. A successful conclusion of the IFR will reinforce the position of the Indian Navy as a professional arm that can be used as a powerful instrument of national policy both in war and peace.
Historically, the role of the Indian Navy after the spectacular missile attacks on ships and oil tank farms Karachi in 1971, with the then-only Asian carrier Vikrant enforcing a blockade off then East Pakistan indicates how it is important to possess and use a strong navy for furthering national objectives. The fact that the Indian Navy was not used at all during the war in 1965 therefore comes as a surprise. The role of the Indian Navy during the tsunami of 2004, its evacuation of Indian nationals from war torn areas, and its ability to relief and succor to the flood and cyclone affected victims on many occasions highlights strength of the Indian Navy that has proved its mettle.
The Mumbai terror attack in November 2008 changed the way maritime threats were perceived and brought about a paradigm shift in the maritime security architecture (MSA). The Indian Navy was placed at the apex of the MSA and made responsible for both coastal and oceanic security. Without going into the details, suffice it to say that the entire gamut of maritime threats and response mechanisms have undergone a sea change.
It is not out of place to recollect that it was the Indian Navy that first brought out a National Maritime Doctrine in 2004 revised it in 2007, 2009, and 2015. Even in terms of indigenization, the Indian Navy is way ahead of its sister services, having embarked on indigenization in the late 60s. The first indigenous frigate Nilgiri and its follow-ons have provided the nation with options for ship building in both PSUs and private yards. The fact that the Indian Navy was able to even design a carrier and orchestrate its construction in the Cochin Shipyard Limited is a tribute to the leadership, the naval designers, and in-house capability to produce warships of different size. The design of stealth ships such as the Shivalik, large destroyers such as the INS Kochi, construction of corvettes, and the completion of the naval off-shore vessels are all praiseworthy. The most notable feature of the Indian Navy’s indigenization process is the addition of INS Arihant which provides that strategic deterrence capability that eluded India for many decades. The construction of improved versions of Arihant and also the Indigenous Aircraft Carrier (IAC) are logical
Indian Navy photo.
conclusions to the aspirations of a blue water navy that has both regional and global roles. However, the dwindling strength of conventional submarines has been a source of great concern to the planners in Delhi. There are some recent efforts to ensure that this serious deficiency is overcome both by accelerating the Scorpene production and also embarking on the indigenous production of project 75A submarines for which more than 60,000 crores has been earmarked.
The shape and size of the Indian Navy is formidable as India moves in to the next century. With geography and a growing economy on its side, India’s Navy will continue to complement the ambitions of a maritime India. A powerful Navy will promote maritime safety and security in the Indian Ocean. As a guarantor of net security at sea, safeguarding the global commons, maritime interests, and the sea lines of communications that represent the life lines and arteries of global trade and commerce will be a top priority for the Indian Navy.
India is conscious of the fact that there are rich dividends in forging strategic alliance with other like-minded nations on a case by case basis while retaining its strategic autonomy. The trilateral treaty with Sri Lanka and Maldives and Exercise Malabar or other such exercises are all measures to ensure that the maritime domain remains manageable and the Indian Navy is in a position to control the happenings in areas of interest. Maritime engagement with Mauritius, Seychelles, Mombasa, Oman, and other maritime nations are all significant in ensuring that there is seamless integration of the maritime domain, and that all the maritime nations in the region are under one umbrella and can work in unison to serve the interests of the century of the seas. The IFR will be a keenly watched event around the world and the navies who are part of this Indian initiative will carry back cherished memories from this mega-event. From the point of view of the Indian Navy, it will again provide an opportunity to take the initiative from “Building Bridges of Friendship” in 2001 to an architecture that is “United through Oceans” in 2016 and beyond.
Commodore RS Vasan is an alumnus of Defence Services Staff College, the Naval War College, and the International Visitor Leadership Prgramme. He is presently the Director of Chennai Centre for China Studies and also the Head of Strategy and Security Studies at Center for Asia Studies. Commodore Vasan has been associated with many think tanks since retirement after a distinguished service of 34 years that included a share of command, staff, and instructional tenures both in the Navy and the Coast Guard. He is regular speaker at many international events and writes extensively on maritime issues and International relations. He can be contacted at rsvasan2010@gmail.com
The recently concluded 12th Congress of the Vietnamese Communist Party (VCP) has important implications for both Vietnamese and regional security. China’s placement of the HYSY-981 oil rig in disputed waters days before the congress was another stark reminder of just how tenuous regional peace is and how quickly flareups can occur. Despite losses for the reformist and pro-western Camp of the VCP, Vietnamese defense modernization and defense diplomacy will not be adversely affected.
Our bottom line is this: Vietnam will continue with its defense modernization and it will not stop its international defense cooperation, though it is unlikely to accelerate it. While the media focused on the ascendency of the “pro-China” faction, we argue that Vietnam will continue to walk a diplomatic fine line. The party’s overwhelming concern for maintaining its monopoly of power, desire to reassert the primacy of the party, and fear of a colored revolution will lead to a focus on internal security that the Vietnam People’s Army (VPA) has not had in recent years. Although Naval and Air Force modernization programs will continue, it will not be as fast as had a different leadership been selected at the Congress.
Personnel Appointments
The quinquennial leadership meeting elected a 180-member Central Committee, which in turn elected a 19-member Politburo. Much media analysis has been too superficial focusing on how the “pro” or “anti-China” factions. No one in Vietnam is solidly “pro-China.” But there are stark differences on strategies to cope with China that are borne out in factional politics. And to be sure, conservatives do tend to believe – though they are repeatedly proven otherwise – that their historical and ideological relationship with China can help to defuse crises.
Politburo members. From left to right: Dinh The Quynh, Tran Dai Quang, Nguyen Phu Trong,Nguyen Xuan Phuc, and Nguyen Thi Kim Ngan.
Prime Minister Nguyen Tan Dung, the architect of Vietnam’s entry into the Transpacific Partnership (TPP) and closer ties with the West, and in particular the United States, had been the front-runner to become the VCP’s General Secretary. Dung had the most popular support, in large part due to his economic reform programs, but also because he was the only leader to stand up to China in the 2014 crisis when China placed the HYSY-981 oil rig on Vietnam’s continental shelf. His outspoken criticism of China led Dung to deepen the relationship with the United States, and he saw the TPP as a strategic tool to keep the United States engaged in the region, not a mere trade agreement.
Yet Dung was outmaneuvered by a conservative faction at the Congress. When they could not get their own man for the job, the party’s top ideologue Dinh The Huynh, they were able to pull together an “anyone but Dung” coalition, and presented incumbent Nguyen Phu Trong as the compromise candidate. Although Dung fought back from the floor of the Congress, his strategic vision for the country, which included heightened economic reform, faster privatization of state owned enterprises, and closer economic ties with the West, proved unsettling to many in the leadership that prefer a cautious economic approach and a more balanced foreign policy.
Nguyen Phu Trong may be ideologically closer to China, but there is no doubt that he evolved significantly since 2012, endorsing the TPP and making a historically unprecedented trip to the United States in July 2015, where he met with President Obama in the Oval Office. But he has also tried to diffuse tensions with China, focusing on a shared history and socialist solidarity. Had Dung won, one could have expected a more confrontational foreign policy towards China, deepened ties and greater security cooperation with the United States and other regional partners. But what he accomplished is unlikely to be reversed by the new leadership which has already pledged to continue economic reforms.
The composition of the Politburo really represents the two inter-connected goals of the VCP: To maintain its monopoly of power while growing the economy. While there are an unprecedented number of economic technocrats on the Politburo, political control is clearly a priority. To that end, the Politburo includes four people with Ministry of Public Security/police backgrounds.
Even more troubling, the incoming Minister of National Defense General Ngo Xuan Lich, is a career political commissar who has never had command or operational experience. A political commissar is important when it comes to fighting “people’s war,” but the Vietnam People’s Army (VPA) has undergone a fundamental transformation in the past decade and now fields arguably the most offensively capable military in Southeast Asia. Vietnam’s navy is now one of the most modern and capable in the region.
Gen. Ngo Xuan Lich, incoming Minister of National Defense.
And of great concern is that Gen Do Ba Ty, the Deputy Minister of Defense and VPA’s Chief-of-Staff, who has overseen much of that modernization, got passed over by a political commissar. Ty was seen as being too close to Prime Minister Dung.
In addition, one of the three members of the VCP’s Secretariat, the office responsible for running the day to day affairs of the VCP, is also a former VPA political commissar. The other two Secretariat members both have their origins in the Ministry of Public Security.
One cannot look at the composition of the leadership and not come to the conclusion that maintaining the political loyalty of the military and police remains a paramount concern. The leadership was alarmed when in 2014, a petition by former officers called for a re-writing of the constitution to make the VPA legally bound to defend the country, not the party. Such calls have been amplified in Vietnam’s surprisingly open social media. Tensions with China in 2014-15 led to greater public discussion as to why the VPA’s primary responsibility was to defend the regime, not the country, in the face of heightened Chinese aggression.
But it also reflects the leadership’s ongoing fear of “colored revolutions.” The heavy commissar representation suggests that the leadership remains prepared to use the VPA for internal security operations should the need ever arise.
Nonetheless, even though there is a heavy commissar representation in the Politburo and the Secretariat, the majority of military officers, including Do Ba Ty, recently elected to the 12th Central Committee come from either the General Staff or from one of Vietnam’s eight military districts.
The VPA holds 22 seats on the Central Committee (12.2 percent), making it the third largest sectoral block, following provincial representation (28.3 percent) and central government representation (20 percent).
The VPA’s 22 member representation includes five political commissars. That is the same number as in the 11th Congress, though the difference is that this also includes the incoming Minister of National Defense. The other four include two vice chiefs of the Political Directorate and the political commissars of Military Districts 5 and 9.
Other VPA members of the Central Committee include the commanders of Military Districts 1, 2, 3, 4 and 7, as well as the commanders of the People’s Navy, People’s Air Force and the Border Guards.
There are four members from the General Staff. Another three hold the rank of Deputy Minister: one comes from the military intelligence, one from the Border Guards and one from Military District 7.
The final two members are the deputy head of the National Defense University and the General Director of Viettel, the country’s military-owned and largest telecommunications firm, which the military has staunchly resisted divesting; ostensibly because it produces communication equipment for the military and the intelligence’s gathering functions, but also because it is greatly profitable.
It is not all bad. As mentioned above, the Politburo includes a number of technocrats who will continue to steer Vietnam towards TPP compliance, reform and privatization of the state owned sector.
The 12th Central Committee also includes three highly skilled and US educated diplomats, who have been architects of closer ties with the US, Japan and other countries in the region. Minister of Foreign Affairs Pham Binh Minh has been outspokenly critical of China, and Beijing is most certainly unhappy to see him finally elevated to the top decision making body. He favors a closer relationship with the West and away from China, and one can reasonably expect that Vietnam’s current trend of inching toward the West will not be stopped. Two of his deputies are also on the Central Committee, and both are firm proponents of deeper integration with the West and a more proactive role for the United States in regional security.
It is also important to note that Sr. Lt. Gen. Nguyen Chi Vinh remains on the Central Committee and will stay on as Deputy Minister of National Defense. Vinh, who has an intelligence back ground, is arguably the country’s most important strategist and has been the leading driver of military relations with the United States, Japan, India, Israel and other countries in the region.
All military and state appointments will be ratified in May when the National Assembly convenes. And even within the top echelons of the VCP, personnel appointments were still being made a week after the Congress concluded.
Policy Implications
The 12th Congress will not lead to substantial changes in Vietnamese foreign policy or defense relations.
In his speech to the 12th Congress, Gen Lich stated that he would remain committed to defense modernization, territorial defense and international military cooperation. But these were giveaways, and he really provided no detail of the country’s evolving security strategy. There is ample concern whether the appointment of a career commissar will slow the military’s modernization efforts.
The VPA will draft a new White Paper later this year and we do not know what shape it will take with the new leadership. But we see no meaningful shift in its “Three No’s Policy”, as iterated in the last White Paper:
No foreign alliances,
No foreign military bases, and
No ganging up with one country against a third.
But Vietnam was already creatively working around some of them by 2015.
The 2011 MOU signed with the US Department of Defense has been gradually implemented as trust has been built. Although the United States remains only able to have one port visit a year, that does not include CARAT and other naval exercises or HADR operations.
And while Hanoi will never allow a foreign military base in its deep-water port of Cam Ranh Bay, in mid-2015, it announced that it would be an open port that any country could use for resupply and repairs. Japan has already entered into negotiations and the United States, too, has expressed interest. In fact, the United States has already sent several ships, albeit auxiliary vessels, into Cam Ranh Bay for repair and resupply.
Vietnam and the US have increased military cooperation. In May 2015, Vietnam participated in the US Pacific Command (PACOM) Amphibious Leaders Symposium (PALS) together with other Asia-Pacific countries, though not China. PALS seeks to develop amphibious operations, capability development,interoperability, and builds on areas of previous cooperation such as HADR missions and peace keeping operations.
Vietnam and the US are proceeding with their annual defense Bilateral Defense Dialogue/Mid-Term Review in February 2016. No changes are expected due to the 12th Congress. And Vietnam was a key beneficiary of US Secretary of Defense Ashton Carter’s Southeast Asia Maritime Security Initiative, announced in mid 2015. Under this agreement, Vietnam is to receive $122 million in assistance in order to help “bolster its maritime Intelligence, Surveillance, and Reconnaissance (ISR) and command and control within Vietnam’s maritime agencies.”
And already the defense relationship seems like it will remain on a very solid footing. On 30 January, the USS Curtis Wilbur entered within 12 nautical miles of Triton Island in the Paracel Archipelago, which China forcibly seized from Vietnam in 1977. Vietnam’s Ministry of Foreign Affairs immediately stated that Vietnam supported the right to innocent passage, as long as they follow international rules. This is contrary to the last US FONOP on 26 October 2015 in the Spratly Islands, when Vietnam remained officially silent, though privately supporting the FONOP.
In sum, despite changes in the leadership, proponents of deeper ties with the Unites States, in particular Sr. Lt Gen Vinh and Foreign Minister Pham Binh Minh are in very strong positions. The trend of improved ties and greater bilateral defense cooperation with the United States is likely to continue, and it certainly will not be reversed or stopped abruptly. Even Trong has changed since taking power in 2012, as seen from his trip to the US in 2015 and the approval of TPP from the Politburo. Vietnam is determined to continue senior level engagement, including participating at the US-ASEAN summit at Sunnylands 15-16 February 2015, as well as potentially hosting President Obama in May 2016.
Vietnam will continue to develop its “omni-directional” foreign policy. Vietnam has developed very close security ties with India, most recently announcing that it will establish a ground station for Indian satellites, giving Hanoi access to geo-spacial intelligence over the South China Sea. India has been training Vietnamese crews for its six new Kilo-class submarines. India has emerged as a key exporter of weaponry to Vietnam, and is increasingly maintaining a greater naval presence in the South China Sea. Hanoi is dispatching a naval vessel to India’s fleet review, the longest deployment in Vietnamese naval history.
Vietnam has also worked towards interoperability with other ASEAN members, many of whom use US-made weapons. Last year, Vietnam paid port visits to the Philippines and Indonesia. It is likely to continue to participate in regional multilateral exercises.
The 12th Congress did re-emphasize relations with Vietnam’s two neighbors, Laos and Cambodia, though for different reasons. Laos is the current chairman of ASEAN, and as such it is already being courted by all sides involved in the South China Sea. The Vietnamese leadership was clearly bolstered by the results of the 10th Congress of the Lao People’s Revolutionary Party, in January 2016, which saw the pro-Hanoi Bounnhang Vorachit elected as the new secretary-general. Vorachit has rained concern about Chinese domination of Laos, and has looked to reverse the swing towards China since Beijing bailed out the Lao kip in the 1997-98 financial crisis. Already, US Secretary of State has won a pledge from the new Lao leadership to use its position to counter Chinese assertiveness in the South China Sea. Vietnam, too, will court Laos, not least by increased military delegations.
Cambodia remains a more difficult case for Hanoi. The Cambodian foreign minister told Secretary Kerry that Cambodia’s position on the South China Sea is unchanged. Hanoi must expect Phnom Penh to continue to obstruct ASEAN unity over the South China Sea. However, with the simmering unrest along the border in summer 2015, Vietnam cannot afford to pay no attention to Cambodia. And as the 2018 general election nears, it is highly likely that bilateral tensions will increase, as all sides in Cambodian politics engage in populist politics, xenophobic nationalism, and scapegoating of the country’s Vietnamese community.
This may explain that of the 22 military officers on the Central Committee, two come from the Border Guards, as well as the commander of the Military District 7 and the military Commissar of Military District 9, both of which abut Cambodia. Two other senior officers on the general Staff have long experience in these two military districts, as well. On the last Central Committee, only two military personnel had experience along the Cambodian border.
There is one area where the appointment of Trong over Dung may see a discernible difference in policy: In mid-2014, Vietnam seemed on the verge of joining the Philippine suit at the International Court of Arbitration (ICA). Top leaders, including the Prime Minister, suggested that it was a less a matter of if, but when. Yet the high level visit of the Chinese State Counselor Yang Jiechi who told Hanoi to “stop hyping up” the dispute, and implicit threats led Hanoi to drop their filing.
In December 2014, Hanoi did file a position paper with the ICA asking that they take Vietnam’s interests into consideration in their ruling. When in October 2015, the ICA rejected China’s contention that the court had no standing and would proceed with the merits of the case, the leadership in Hanoi must have been kicking themselves. Under the leadership of Nguyen Tan Dung, one could have countenanced Vietnam filing a similar suit. But that seems unlikely under the continued leadership of Nguyen Phu Trong, who is unlikely to openly provoke China. And that is truly a setback because it is the legal weakness of Beijing’s claims that gives Hanoi the greatest leverage.
Chinese assertiveness in the South China Sea will remain Hanoi’s greatest strategic conundrum. That does not change with the Congress or the election of people Beijing preferred to see in office. Vietnam’s’s border forces reported increased Chinese aggression, including 57 intrusions by boats conducting espionage in 2015 alone.
The irony is that the more conservative members of the leadership always believe that they can use their historical and ideological ties to China to diffuse situations. And yet, they have never been able to get China to reverse course or abandon its aggressive strategies, whether it be putting oil concessions on Vietnam’s continental shelf for tender, placing oil rigs in Vietnamese claimed waters or the construction of artificial islands on low tide elevations. The reality is the leadership selection could actually embolden China to step up its assertive action, knowing too well that the current leadership is less willing to engage the United States and provoke an open confrontation with Beijing.
But the real policy implication of the 12th Congress is this: Vietnamese defense modernization is contingent on sustained economic growth. While the leadership has tried to assuage the international community that economic reforms will continue, most believe that such reforms would be accelerated had Dung won. Vietnam’s military spending increased by 270 percent between 2004 and 2013. Defense spacing accounted for 2.3 percent of GDP in 2013, third in the region behind Myanmar and Singapore. Defense expenditures averaged 2.27 percent between 2004-13. But in terms of per capita military spending Vietnam ranks fourth in the region – a mere $37.6 – placing it behind Singapore, Malaysia and Thailand. Vietnamese security is highly contingent on maintaining the highest rates of economic growth in Southeast Asia, which it was able to do in 2013-15, but requires skilled leadership and good policies.
But not all signs are good. The low price of oil, now only contributes 7 percent of the budget, adding to a widening deficit, while the trade deficit and public debt are both increasing. Although the economic reform program is unlikely to be reversed, the cautious leadership of Trong will be unable to seize a window of opportunity availed by Thailand’s continued political stasis and resulting economic meltdown, Indonesia’s economic nationalism and endemic corruption, and Malaysia’s self-inflicted wounds owing to Prime Minister Najib Razak’s scandal plagued administration.
Procurement
So what does all this mean for the VPA’s defense procurement program? Despite the signs that the leadership is looking to maintain party control over the security sectors, this by no means means that there is going to be any reversal of its military modernization program. Vietnam remains committed to field the most modern and lethal military in Southeast Asia. In terms of procurement, Vietnam has done a lot to diversify its weapon sources, and this trend is unlikely to be reversed with the new leadership.
In the past decade, the lion’s share of modernization funds has gone to building up power projection capabilities. The VPA has gotten slightly smaller, and its procurements have been more modest, particularly in small arms. The VPA is looking for contenders to replace its 1960s T-54/55, or to at least upgrade them to a more capable version.
Its defense partnership with Israel is still likely to deepen, far more than people are probably aware of. Vietnam has been producing Israeli small arms under license, and is now producing an Israeli variant drone. Vietnam has also acquired Israeli Spyder AA missile and Accular guided artillery missile, and there are reasons to believe that Vietnam also wants to self-produce these weapon systems.
Apart from the training of submariners in Indian bases, India has recently become a more important arms supplier to Vietnam. In 2014, Vietnam began negotiating the purchase of BrahMos anti-ship missile, co-developed by Russia and India. Vietnam has already been deemed one of the countries friendly enough to India and Russia to possess this weapon; and in mid 2015 reports surfaced that Russia had approved the sale. Also in 2014, India announced that it would extend a $100 million credit line to Vietnam for the purchase of four patrol boats.
Vietnam will take delivery of two more Gepard-class frigates from Russia in 2017-2018, and is negotiating two more. Vietnam has built six Molniya-class corvettesrecently for the Navy and expects to build four more under license.
Gepard class frigate.
Outgoing Prime Minister Nguyen Tan Dung is still pushing forward with his privatization agenda in his final four months in office. On 3 February, the government announced that it had sold a 70 percent share of Song Cam shipyard to Dutch shipbuilder Damen. Song Cam is the most modern and profitable of the eight subsidiaries of the Shipbuilding Industry Corporation. It produces most of Vietnam’s coast guard vessels and is expected to ramp up production.
As of now, five out of six Russian-built Kilo class submarines ordered by Vietnam have arrived at the Cam Ranh naval base. The first began patrols in the South China Sea in December 2015. Not only has Vietnam acquired these state-of-the-art vessels for its deterrence, but it has also equipped them with offensive capability by being the first country in South East Asia to purchase submarine-launched land cruise missile, the Klub-S. This is the export version of the cruise missile Russia used to bombard ISIS force from the Caspian Sea, launched from Gepard class frigates, which Vietnam possesses. Russia has offered to sell the Klub for Vietnam to equip its Gepard and Molniya vessels, but no official news has been confirmed. Nevertheless, fielding silent submarines with anti-shore cruise missile will surely alter China’s calculation.
Military personnel stand on Russian-made Kilo-class submarines during a celebration of Vietnam’s Navy at Cam Ranh military port May 2, 2015. Photo taken May 2, 2015. Reuters Vietnam.
Vietnam is in the market to purchase new jet fighter to replace its aging fleet of 144 Mig-21s and 38 SU-22s. While there was plenty of speculation that with the lifting of the US embargo, that Vietnam was in the market for US jets, that was unlikely then, and even more so following the 12th Congress.
Vietnam will most likely remain within the Russian orbit of weaponry. It recently purchased another squadron of Russian Sukhoi Su-30s, and there are hints that Hanoi may consider the Eurofighter Typhoon or Gripen JAS-39E jet fighter in a bid to diversify is sources of advanced weapons.
While many in the VPA have been pushing for the purchase of American P8s to bolster its limited maritime surveillance capabilities, the potential backlash from China could result in the purchase of a European variant or even the new Kawasaki P-1 from Japan, as it begins to enter into the global arms global. In 2014, Vietnam purchased maritime surveillance planes from Canada and several Casa C-295 military cargo planes from EADS.
Vietnam has largely pushed for the lifting of the US arms embargo as a matter of principle. While they may purchase niche items that are not available from their traditional suppliers, in particular long range maritime surveillance craft, it is unlikely that there will be a broader based shift to US arms; they are simply too expensive.
Apart from acquiring weapons from abroad, Vietnam has had a strong emphasis on self-producing many of its need. As a result of this focus, Vietnam has been more successful than most countries in acquiring licensing for indigenous manufacture, and has shown that it is ready to move to another non-traditional supplier to achieve this. Indeed, the reason that Vietnam chose Israeli Military Industry Galil ACE family over the traditional Russian Kalashnikov weapons is because it was able to obtain production license for this family. Vietnam has also been able to self-manufacture other type of infantry weapons, such as RPG or automatic grenade launchers.
More special for the Vietnamese Military Industry in 2015, it has succeeded in manufacturing its indigenous version of the Russian Kh-35E Uran anti-ship missile, called KCT-15. The Kh-35 Uran is the mainstay of the Vietnamese Navy, being equipped on all Gepard and Molniya frigates. The KCT-15 can be configured to be carried by fighter jets or naval helicopters that Vietnam currently fields. An anti-ground capable Kh-35 version has also been proposed; if this materializes, it would be a much cheaper option to the expensive Klub-S cruise missile.
An indigenously produced Kh-35E Uran (KCT-15) anti-ship missile, the mainstay of the Vietnamese navy.
Vietnam has also progressed silently but surely in the field of intelligence, surveillance and reconnaissance (ISR), especially in satellite and UAV surveillance. In addition to the satellite agreement with India, Vietnam has developed and operated several satellites with US Lockheed Martin and French SAS Atrium, and aims to be able to produce its own indigenous satellite in the next few years. Vietnam is also leasing a Heron UAV from Israel. Viettel Corporation, the VPA-owned telecommunication company, has produced small UAVs itself and is aiming to produce a high altitude long endurance drone with Belorussian cooperation. The UAV HS-6L, unveiled in December 2015, has an endurance of 35 hours and a range of 4,000km and will greatly increase Vietnam ISR capability over the South China Sea. Viettel produceswarning radars to support anti-air missile batteries and recently developed a new C4ISR system for the VPA.
The first time inclusion of Viettel’s Director on the Central Committee may signify both a focus on indigenous production as well as cybersecurity and monitoring.
In general, Vietnam will continue to diversify its weapon sources, and try to improve its self-production capability. Very quietly, Vietnam has emerged as the leading producer of advanced arms in Southeast Asia.
Zachary Abuza, PhD, is Professor at the National War College where he specializes in Southeast Asian security issues. 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.
This is the third 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.
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Let us move to the three interpretations put forward by the US Department of State.
1.- “Dashed Line as Claim to Islands”
This would mean that all Beijing was claiming were the islands within the dashed lines, and that any resulting maritime spaces would be restricted to those recognized under UNCLOS and arising from Chinese sovereignty over these islands. The text notes that “It is not unusual to draw lines at sea on a map as an efficient and practical means to identify a group of islands”. In support of this interpretation one could take the map attached to the 2009 Notes Verbales and the accompanying text, which reads “China has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof (see attached map)”. The text notes that the references in the paragraph above to “sovereignty” over “adjacent” waters” may be interpreted as referring to a 12-nm belt of territorial sea, since international law recognizes territorial waters as being a sovereignty zone. In a similar vein, references to “sovereign rights and jurisdiction”, “relevant waters”, and “seabed and subsoil thereof”, would then be taken to concern the legal regime of the EEZ and the continental shelf, as defined by UNCLOS.
As possible evidence for this interpretation, the study cites some Chinese legislation, cartography, and statements. The former includes Article 2 of the 1992 territorial sea law, which claims a 12-nm territorial sea belt around the “Dongsha [Pratas] Islands, Xisha [Paracel] Islands, Nansha (Spratly) Islands and other islands that belong to the People’s Republic of China”. This article reads “The PRC’s territorial sea refers to the waters adjacent to its territorial land. The PRC’s territorial land includes the mainland and its offshore islands, Taiwan and the various affiliated islands including Diaoyu Island, Penghu Islands, Dongsha Islands, Xisha Islands, Nansha (Spratly) Islands and other islands that belong to the People’s Republic of China. The PRC’s internal waters refer to the waters along the baseline of the territorial sea facing the land”.The Department of State also stresses that China’s 2011 Note Verbale states that “China’s Nansha Islands is fully entitled to Territorial Sea, Exclusive Economic Zone (EEZ), and Continental Shelf”, without laying down any other maritime claim. Concerning cartography, the study cites as an example the title of “the original 1930s dashed-line map, on which subsequent dashed-line maps were based”, which reads, “Map of the Chinese Islands in the South China Sea” (emphasis in the DOS study). With regard to Chinese statements, the study cites the country’s 1958 declaration on her territorial sea, which reads “and all other islands belonging to China which are separated from the mainland and its coastal islands by the high seas” (emphasis in the DOS study). The text argues that this reference to “high seas” means that China could not be claiming the entirety of the South China Sea, since should that have been the case there would have been no international waters between the Chinese mainland and her different islands in the region. This is a conclusion with which it is difficult to disagree, although we should not forget that it was 1958, with China having barely more than a coastal force rather than the present growing navy. Therefore, while the study’s conclusion seems correct, and precedent is indeed important in international law, it is also common to see countries change their stance as their relative power and capabilities evolve. Thus, if China had declared the whole of the South China Sea to be her national territory in 1958 this would have amounted to little more than wishful thinking, given among others the soon to expand US naval presence in the region and extensive basing arrangements. Now, 50 years later, with China developing a blue water navy, and the regional balance of power having evolved despite the US retaining a significant presence, Beijing can harbor greater ambitions.
Then US Secretary of State Hillary Clinton with her Filipino counterpart, Albert del Rosario, in June 2011. Washington supports Manila’s arbitration bid and rearmament, but takes no official position on her territorial claims, despite involving former American territory.
This section ends with the DOS study stating that should this interpretation be correct, then “the maritime claims provided for in China’s domestic laws could generally be interpreted to be consistent with the international law of the sea”. This is subject to two caveats, territorial claims by other coastal states over these islands, and Chinese ambiguity concerning the nature of certain geographical features, Beijing not having “clarified which features in the South China Sea it considers to be ‘islands’ (or, alternatively, submerged features) and also which, if any, ‘islands’ it considers to be ‘rocks’ that are not entitled to an EEZ or a continental shelf under paragraph 3 of Article 121 of the LOS Convention”. Some of these features, Scarborough Reef for example, are part of the arbitration proceedings initiated by the Philippines.
2.- “Dashed Line as a National Boundary”
This would mean that Beijing’s intention with the dashed line was to “indicate a national boundary between China and neighboring States”. As supporting evidence for this interpretation, the DOS report explains that “modern Chinese maps and atlases use a boundary symbol to depict the dashed line in the South China Sea”, adding that “the symbology on Chinese maps for land boundaries is the same as the symbology used for the dashes”. Map legends translate boundary symbols as “either ‘national boundary’ or ‘international boundary’ (国界, romanized as guojie)”. Chinese maps also employ “another boundary symbol, which is translated as ‘undefined’ national or international boundary (未定国界, weiding guojie)” but this is never employed for the dashed line.
The report stresses that, under international law, maritime boundaries must be laid down “by agreement (or judicial decision) between neighboring States”, unilateral determination not being acceptable. The text also notes that the “dashes also lack other important hallmarks of a maritime boundary, such as a published list of geographic coordinates and a continuous, unbroken line that separates the maritime space of two countries”. The latter is indeed a noteworthy point, since border lines would indeed seem to need to be continuous by their very nature, rather than just be made up of a number of dashes. This is one of the aspects making it difficult to fit Beijing’s claims with existing categories in the law of the sea. In addition, the report notes that they cannot be a limit to Chinese territorial waters, since they extend beyond 12 nautical miles, and neither can they be a claim to an EEZ, since “dashes 2, 3, and 8” are “beyond 200 nm from any Chinese-claimed land feature”. These last two aspects also make it difficult to see the dashed line as marking one of the categories recognized by UNCLOS. Moving beyond the law, however, and this is something that the DOS report does not address, a certain degree of ambiguity may be seen as beneficial by a state seeking to gradually secure a given maritime territory. Some voices have noted this may have been the US calculus in the San Francisco Treaty. Thus, the technical faults, from an international legal perspective, in China’s dotted line are not necessarily an obstacle to Beijing’s claims, from a practical perspective.
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.
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