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Arctic Security and Legal Issues in the 21st Century: An Interview with CDR Sean Fahey

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By Sally DeBoer

The changing Arctic is a topic of increasing interest to the maritime security community. Rapidly receding sea ice and increasingly navigable waters combined with the promise of rich natural resource deposits have made investment in the Arctic – particularly military and infrastructure investment – a priority for Arctic nations and other parties that stand to benefit from the region. To discuss these issues and more, CIMSEC interviewed Commander Sean Fahey, USCG of the U.S. Naval War College Stockton Center for the Study of International Law for his expert insight on legal and security issues in the High North in the 21st Century. 

SD: CDR Fahey, thank you so much for taking the time to discuss legal and security challenges to the Arctic in the 21st Century. We are honored to have someone with your experience and expertise speak with us! To begin, can you tell us a little about yourself and your background?

SF: Great to be with you; thank you for the invitation. I serve as the Associate Director for the Law of Maritime Operations at the Stockton Center for the Study of International Law, at the U.S. Naval War College. In this role, I conduct research and teach global maritime security law. In particular, I focus on the intersection of law and security in the Arctic Ocean. For example, I recently collaborated with Professor James Kraska on a position paper for the U.K. House of Commons Defence Sub-Committee, Defence in the Arctic Inquiry. I am also the Editor-in-Chief of International Law Studies, the Stockton Center’s peer-reviewed law journal, and the oldest journal of international law published in the United States.

By way of background, I am an attorney and commissioned officer in the rank of commander in the United States Coast Guard, and have advised various levels of command on the legal issues impacting maritime security operations, primarily counter-drug, fisheries enforcement, migrant interdiction and environmental law enforcement. I have also served as a Trial Attorney for the U.S. Department of Justice and as a legal advisor in the operational law division of USAFRICOM, where my focus was on maritime security operations, namely counter-piracy and maritime law enforcement support, and counter-terrorism.

SD: Can you characterize the United States’ current position in the Arctic? Is the U.S. prepared – materially and strategically – for challenges ahead in the Arctic?

SF: The United States is an Arctic nation, and the region is of significant strategic, economic and environmental importance to us. Some of the challenges we face in the region, for example, energy and mineral exploitation, are future challenges, but many, such as preserving freedom of navigation and overflight, are immediate. Climate change – whatever the cause – promises to be a major factor in how we prioritize our responses to those challenges, but it is not the only factor. Our strategy is influenced by the actions and priorities of the other Arctic nations as well, and in some areas the United States is not in the lead.

Strategically, we have comprehensive guidance on how to structure our approach to the region. American priorities are set forth in National Security Presidential Directive-66/Homeland Security Directive-25 and the “National Strategy for the Arctic Region,” and the accompanying Implementation Plan. Broadly, U.S. strategy is to advance U.S. security interests, pursue responsible Arctic stewardship, and strengthen international cooperation in the region. Each of those priorities has several detailed lines of effort. For example, the U.S. has four primary lines of effort to promote security: (1) preservation of freedom of navigation and overflight throughout the Arctic region; (2) enhancement of Arctic regional domain awareness and presence; (3) development of future U.S. energy security; and (4) evolve Arctic strategic capabilities, military force structure, and civilian infrastructure to be able to best respond to challenges unique to the region.

Many of the federal departments and agencies tasked with taking the lead on a particular line of effort within the national policy further refine the National strategy with additional guidance documents, among them the U.S. Coast Guard and Department of Defense. So, in response to the second part of your question – is the United States prepared for future challenges in the Arctic? Strategically we are. We know the priorities and we know who is responsible for advancing them. Materially, however, the United States is not in the best position it could be to advance its strategic priorities. The most pressing example of this lacuna is the requirement for icebreakers.

One of two USCG Polar Icebreakers (Petty Officer 2nd Class Grant DeVuyst/Coast Guard)

Enhanced icebreaking capabilities are vital to properly support U.S. security interests in the Arctic. You cannot be present if you cannot get there. Virtual presence is actual absence. A persistent presence in the Arctic region is a condition precedent for the effective exercise of law enforcement jurisdiction and improved domain awareness. Currently, the U.S. has two icebreakers. The Russian Federation has 37. A fleet of at least six heavy icebreakers would provide one full-time U.S. presence within the Arctic Ocean in both the east and west, while also allowing enough hulls for training, work-ups, and post-deployment maintenance. This requirement is supported by the Pentagon, and is the single most important capability for the U.S. to pursue in the Arctic. Only a robust ice-breaking capability allows the U.S. to respond to all threats and all hazards in the region.

SD: The United States is in a time of flux, politically – how do you think a U.S. position that is perhaps less invested in preventing the effects of climate change might affect the security situation in the Arctic and the role of the U.S. as an Arctic leader?

We certainly are in a time of flux, but it is too early to say how the administration will address the challenges posed by climate change. Time will tell. That said, the data on the environmental changes occurring in the Arctic are alarming. According to the National Snow and Ice Data Center, which is directly supported by NASA and NOAA, the minimum Arctic sea ice extent has reduced by 40 percent since 1978. Last year the maximum (wintertime) sea ice extent was at a record low for a second year in a row. Additionally, NASA reports that global surface temperatures – to include in the Arctic – were at record highs in 2016. In short, the data indicate that the melt will not only continue, but will likely accelerate.

Trends in sea ice thickness/volume are another important indicator of Arctic climate change. While sea ice thickness observations are sparse, this figure utilizes the ocean and sea ice model, PIOMAS (Zhang and Rothrock, 2003), to visualize October sea ice thickness from 1979 to 2017. Sea ice less than 1.5 meters is masked out (black) to emphasize the loss of thicker, older ice. Updated through January 2017. (Zachary Michael Labe, Ph.D. Student, Department of Earth System Science, The University of California, Irvine)

Responsible regional stewardship – over the Arctic and its resources – is one of the pillars of our national strategy. It would be unfortunate if the United States were forced to effectively abdicate its leadership position in the Arctic due to a perceived lack of credibility on this issue by other Arctic nations. If we abdicate our leadership position, we abdicate our ability to shape regional security issues, and other Arctic nations may be reluctant to partner with us.

SD: Can you speak to some of the impacts that climate change has had on the Arctic security situation?

SF: The changing Arctic climate has already had a recognizable impact on the regional security landscape. Less ice means greater access and more activity. Some of the impacts may be positive. For example, the Arctic has enormous importance for long-term U.S. energy security. The U.S. Geological Survey (USGS) estimates that 13 percent of the world’s undiscovered oil reserves (90 billion barrels) are in the Arctic. This estimate is in addition to more than 240 billion barrels of petroleum reserves that have already been discovered. The USGS estimates that one-third of this oil is in the circum-Arctic region of Alaska and the Alaskan Outer Continental Shelf (OCS). Responsibly and safely developing new domestic energy sources strengthens U.S. energy security by reducing U.S. reliance on imported oil, some of which, as you know, travels vast distances from extremely unstable regions before entering the national supply.

That said, competition for energy resources in disputed areas of the Arctic could destabilize the regional security balance. I am confident however, that the United States and the other Arctic nations will resolve their boundary disputes peacefully. We have seen evidence of this already with the Russian Federation and Norway resolving a long-standing maritime border dispute in the Barents Sea.

The more immediate impact of climate change on the Arctic security situation will be on freedom of navigation and overflight in the region. Broadly speaking, freedom of navigation and overflight are critical for the U.S. to be able to support peacetime and wartime contingencies across the globe. If the Arctic ice melt continues at its current pace, the Northwest Passage, the shipping route along the Canadian Arctic coastline, and the Northern Sea Route, the shipping route along the Russian Arctic coastline, will be accessible for longer periods of time, possibly year round.

Strategic mobility throughout the Arctic could become critical to support strategic sealift for U.S. contingency operations worldwide, and the Northwest Passage and Northern Sea Route could serve as waterways to support such contingency operations. Portions of both shipping routes cross areas where the respective coastal state has made, in the opinion of the U.S., an excessive maritime claim, and these claims threaten the ability of naval forces to exercise their navigational and overflight rights. Preserving these rights is a central tenet of the National Arctic strategy. The U.S. Department of State, the lead agency for this strategic priority, is actively engaged with Canada and Russia on this issue, but it may be prudent for the United States to conduct freedom of navigation operations – the peaceful exercise of international legal rights in disputed sea areas – in areas of the Arctic Ocean that are subject to unlawful maritime claims.

SD: Many of our readers may not be aware of the pivotal role the U.S. and international Coast Guards have in maritime operations, specifically on operations in the high north. What improvements could the United States make to its infrastructure to be more prepared for operations in the Arctic?

At the risk of sounding redundant, I think greater icebreaking capability, and the shore-based infrastructure required to support icebreakers, is absolutely critical for the U.S. to achieve its maritime security goals in the Arctic. In order to respond to regional threats and hazards, U.S. surface forces need to be able to safely navigate the Arctic Ocean.

In the same vein, the U.S. should also commit to constructing ice-strengthened patrol ships for its seas services, similar to the Arctic Offshore Patrol ships being commissioned by the Royal Canadian Navy. The increased security presence in the region that greater icebreaking capability and ice-strengthened patrol ships would enable will help further deter conventional and unconventional maritime security threats and also ensure that U.S. near-shore and offshore oil and gas industry infrastructure is properly safeguarded. Search and rescue (SAR) also requires both ships and aircraft that are capable of operating in extreme climate. The United States has inadequate force structure to meet SAR contingencies.

Additionally, the U.S. needs to strengthen is pollution response capabilities and infrastructure in the Arctic. Needless to say, as the energy sector expands in the Arctic, so too does the risk of pollution. Given the remoteness of the region, sufficient pollution response capabilities and infrastructure need to be in place and accessible in order to ensure a timely response.

Finally, as the region becomes more accessible to year-round commercial navigation, the U.S. needs to ensure we have the sufficient infrastructure to support safe and secure maritime commerce. This could include harbor and dock improvements, aids to navigation, management systems for high risk vessel traffic areas,  search and rescue capabilities, and effective communications networks. Some of these are in place, some just need to be enhanced, and some need to be created.

SD: As you are a legal scholar, we’d like your insight on competing maritime claims in the region. First, what legal foundation, if any, does Canada have for its claim over the Northwest Passage? We know this is a controversial topic; what does the letter of the law dictate on the matter?

The Northwest Passage Route (Encyclopedia Britannica, Inc.)

Canada asserts they have complete sovereignty over the waterways that comprise the Northwest Passage. Their legal argument for doing so is that the waters comprising the Northwest Passage lie within either Canadian internal waters or its territorial sea, and are thus subject to their jurisdiction and control. The United States and the European Commission have rejected Canada’s claims, and consider the Northwest Passage, a strait used for international navigation, open to navigation without coastal state interference.

Canada’s internal waters claim is predicated on straight baselines and the assertion of historic title to the waters of the Northwest Passage. Though the normal baseline used to measure the extent of a nation’s territorial sea is the low-water mark along their coast, UNCLOS does permit nations to draw “straight baselines” if certain criteria are met. Once a legal baseline has been drawn, waters seaward of the baseline, up to twelve nautical miles, are considered territorial sea; waters landward of the baseline are considered internal waters, subject to absolute coastal state sovereignty and jurisdiction. In short, Canada claims that, through its application of straight baselines, the entire waterway of the Northwest Passage became part of its territorial sea or internal waters, and is subject to its exclusive control. Remember though, that the Northwest Passage is some 100 nm wide in many areas, and Canada may not claim these areas as internal waters or territorial sea.

The U.S. position is that Canada’s application of straight baselines along the Northwest Passage is excessive and constitutes an unlawful interpretation of the criteria for establishing straight baselines under UNCLOS. Straight baselines may be used in the case of fringing islands or a coastline that is deeply indented and cut into. But even in these cases, the coastal state must draw the baselines narrowly. Under Article 8(2) of UNCLOS, even if countries accepted the limits of coastal state jurisdiction, then vessels from any nation would be completely free to traverse the area in innocent passage.

Consequently, even if nations accepted Canada’s straight baseline claims on their face, the ships of all nations would still be entitled to “innocent passage” through these “internal waters.” UNCLOS is clear on this issue; when the application of straight baselines have the effect of enclosing as internal waters areas which had not previously been considered as such – as is the case in with the Northwest Passage – the right of innocent passage still exists. Canada asserts that – the UNCLOS provisions about straight baseline enclosures notwithstanding – they have a historic claim to the Northwest Passage as well, one that precedes its straight baseline application. One of the weaknesses with that argument, however, is that a claim of historic title to internal waters requires, among other things, the acquiescence of foreign nations to that claim. The United States have never acquiesced to Canada’s claim, but have, instead, openly protested it, and continue to do so.

As you indicate though, it is a controversial matter, and much stronger legal scholars than I have written at length on the issue, but I think the position of the United States and European Commission is the legally correct one; the Northwest Passage is an international strait. Various legal characterizations aside, I am confident that the dispute over the Northwest Passage will be resolved amicably. Canada is a longstanding and indispensable ally of the United States – one that we have the deepest respect for – and an invaluable partner in the Arctic. The U.S. shares the same interests as the Canadians in ensuring a safe, secure, and environmentally protected Arctic, and many of the systems employed and contemplated by Canada to protect its interests – ship reporting, designating sea lines, vessel traffic separation schemes – do not require absolute sovereignty to affect. A diplomatic solution will be found.

SD: Can you provide some context for Russia’s extensive maritime claims? Can they reasonably expect a favorable ruling on their extension of their continental shelf?

The Russian Federation has several maritime claims of interest, particularly their claims regarding the Northern Sea Route and, as you note, their claim to an extended continental shelf. The Northern Sea Route claims need to be looked at closely from a maritime security perspective, as they have the potential to adversely impact maritime mobility.

As you know, the Russian Federation enacted national legislation establishing a state institution (the Northern Sea Route Administration or “NSRA”) with a mandate to “organize navigation in the water area of the Northern Sea Route.” This national legislation also defined “the water area” of the Northern Sea Route to include the Russian Arctic internal waters, territorial sea, contiguous zone, and – notably – their exclusive economic zone. Shortly after its establishment, the NSRA published their “Rules of Navigation on the Water Area of the Northern Sea Route,” which contains several provisions that adversely impact freedom of navigation and may not be consistent with international law, chief among them the unilateral requirement that all ships must request advance permission from the NSRA to enter “the water area” of the Northern Sea Route.

The potential impacts of this provision alone to maritime mobility could be significant; the regulation is arguably an attempt to unilaterally bypass vital high seas freedoms and navigational rights, such as innocent passage and transit passage that ships would otherwise be entitled to, in order to assert greater control over the shipping channel. Though UNCLOS (Article 234) provides for limited legislative and enforcement rights in “ice covered areas” of a coastal state’s EEZ, any coastal state legislation adopted under this limited authority must have “due regard to navigation.” As such, the Russian Federation’s reliance on Article 234 as the international legal basis for its regulation requiring ships to request permission to enter the water areas of the Northern Sea Route is overreaching. The impacts to navigation of this provision are severe.

Russian nuclear icebreaker NS 50 Let Pobedy (Sputnik, Sergey Eshenko)

With respect to whether the Russian Federation can expect a favorable ruling from the UN Commission on the Limits of the Continental Shelf on their extended continental shelf claim, I would say that the Russians are certainly doing everything in their power to see that they do. And if they do not receive a favorable ruling, I fully expect them to continue conducting research into the Arctic seabed, compiling data, and submitting revised claims, much like they did in 2015 after their 2001 application was rejected and the Commission requested additional scientific evidence from the Russians to support their claim. The natural resources potentially at stake are too valuable for Russia to simply walk away.

SD: The PRC’s response to the arbitration ruling on claims in the SCS indicated a disregard for international law – can you see such a reaction leading to similar reactions when it comes to Arctic rulings?

There’s always the potential for it and, in fact, already some evidence of it. In 2013, the Russian Federation refused to directly participate in the International Tribunal for the Law of the Sea proceedings in the Arctic Sunrise case, the dispute between Russia and the Netherlands over law enforcement actions taken by Russia in their Exclusive Economic Zone against a Netherlands-flagged Greenpeace vessel protesting against Russian oil exploration in Arctic waters. To be fair, the Russian Federation did, however, submit several position papers to the arbitral tribunal about various aspects of the case, to include protesting the jurisdiction of the tribunal, but ultimately Russia rejected the tribunal’s ruling.

More generally though, any given nation’s strategic priorities may not always be in perfect alignment with what international law requires. Ideally though, in such a situation, nations will recognize that short-term national “gains” may ultimately compromise their standing within the international community, and erode their ability to partner with other nations. My concern is that as energy resources become less plentiful in other regions and more accessible in the Arctic, particularly in the disputed areas, we may see some nations more inclined to act solely in their own national self-interest, even if their actions are in direct conflict with international law.

To date, however, many of the challenges facing the Arctic have been addressed collectively. There appears to be a genuine spirit of international cooperation in the region. We’ve seen this in the Ottawa Declaration establishing the Arctic Council as a forum for intergovernmental cooperation in the region, the commitment to the Law of the Sea as the legal framework to govern the Arctic Ocean made by the Arctic coastal states in the Ilulissat Declaration, the participation of the Arctic coastal states in the formation of the International Maritime Organization’s Polar Code, and the successful development of a binding multilateral search and rescue agreement between all of the Arctic nations, governing the entire region. There are many examples of international collaboration in the Arctic, and I am cautiously optimistic that nations will respect collective interests – such as adherence to international law – even when there may be some short-term national advantage to be gained by disregarding them. The Arctic is not a region where you can “go it alone.”

SD: Let’s discuss militarization in the Arctic – do you foresee a trend toward greater military presence in the Arctic and what possible implications of this movement might you caution?

I do, and it is a trend that cannot be solely attributed to any one nation. Many of the Arctic countries are increasing their military footprints in the region, which of course has a ripple effect. As you know, the Russian Federation recently stood up a Joint Strategic Command for the Arctic. The entirety of Russia’s Northern Fleet was completely absorbed into this new Arctic Command, and the land component is comprised of two brigades, with plans for a third, as well as specially trained Arctic coastal defense divisions. Fourteen airfields and sixteen deepwater ports are in various stages of development along the Northern Sea Route. Russian submarine patrols across the North Atlantic rose by nearly 50 percent last year. These capabilities and this infrastructure positions Russia to have a dominant military presence in the Arctic for the foreseeable future.

Despite this escalation, however, I think the potential for a large-scale, conventional conflict in the region is low. Perhaps that’s naïve, but there is little evidence that the Arctic nations will abandon diplomacy as the preferred dispute resolution tool in favor of force. In fact, the evidence points to the contrary. I think what is more likely is another “Black Sea Bumping Incident” type scenario between an Arctic coastal state, defending what they believe their territorial integrity, and a foreign naval vessel, exercising freedom of navigation, perhaps along the Northern Sea Route. Of course, this kind of scenario can – in and of itself – lead to an escalation.

SD: How would you answer those who feel UNCLOS is insufficient when considering legal issues in the High North?

I agree with the wisdom of the signatories to the Illulissat Declaration. The Arctic is primarily a maritime region, and the Law of the Sea is the appropriate international legal regime. Many of the future challenges in the Arctic – delineating the outer limits of the continental shelf, which will hopefully resolve many of the potential resource disputes in the region; ensuring freedom of navigation along shipping routes that may become increasingly more accessible with the changing climate; ensuring comprehensive, but fair, environmental stewardship – are challenges that the Law of the Sea already addresses. Bilateral and multilateral treaties on specific issues – for example, the Arctic Search and Rescue Treaty – can help fill most of the gaps not directly addressed by the Law of the Sea. In terms of a governing body of law, however, the Law of the Sea, to include UNCLOS, is more than sufficient.

Commander Sean Fahey, United States Coast Guard, is currently assigned as the Associate Director for the Law of Maritime Operations at the Stockton Center for the Study of International Law at the U.S Naval War College in Newport, Rhode Island. He is also the Editor-in-Chief of International Law Studies. He can be reached at Sean.Fahey@usnwc.edu. 

The views and opinions expressed here are presented in a personal and unofficial capacity. They are not to be construed as official policy or reflecting the views of the United States Coast Guard or any other U.S. government agency. 

Sally DeBoer is currently serving as the President of CIMSEC for 2016-2017. She can be reached at president@cimsec.org.

Featured Image: Russian nuclear icebreaker NS 50 Let Pobedy (Sputnik/Vladimir Astapkovich)

Asia-Pacific, Podcast

Sea Control 128 – Bonnie Glaser On FONOPS and U.S.-China Relations under Trump

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By Mina Pollmann

CIMSEC spoke with Asia-Pacific expert Bonnie Glaser to better understand freedom of navigation, U.S.-China relations under the Trump administration, and recent maritime operations in the region. Listen to the audio or read the transcript below.

Mina Pollmann: Hello, CIMSEC listeners. My name is Mina Pollmann, and as CIMSEC’s Director of External Relations, I have the honor of hosting Bonnie Glaser as our guest for this episode. Bonnie is a senior adviser for Asia and the director of the China Power Project at the Center for Strategic and International Studies, where she works on issues related to Chinese foreign and security policy.

Bonnie, thank you so much for joining us.

Bonnie Glaser: Thanks for having me.

Mina: I’d like to focus today on potential areas of conflict between the U.S. and China, specifically in the maritime domain. To lay the groundwork for that conversation, I wanted to ask a couple questions first about your take on the Trump administration and how China is reacting to the new president.

Early speculation of Donald Trump’s approach to foreign policy emphasized that it will be “transactional.” Based on the signs so far, such as his meeting with Japan’s Prime Minister Abe, the call with Taiwan’s President Tsai before his inauguration, and the call with Australia’s Prime Minister Turnbull last week, would you agree with this characterization? Is Trump’s approach really that calculated?

Bonnie: Well, as a businessman, it does appear that President Trump is looking to make some “deals” with other countries. We don’t know yet what kinds of “deals” that would be. He has indicated, for example, that the One China policy, which the United States has held for almost 40 years, might be reconsidered unless the Chinese make some concessions in the area of trade. But as far as I know, we haven’t started a dialogue with the Chinese yet. Maybe the Chinese will try to offer some things up in advance, but the Chinese have also told the United States, and they have said so publicly, that the One China policy is nonnegotiable.

I think the premise of the Trump administration is that the Chinese can be influenced. That if the United States pushes back, stands firm in some areas, the Chinese will simply have to accept it. They’ll have to adjust. That is a hypothesis that hasn’t really been tested. Whether we look at the South China Sea or Taiwan or other areas, we don’t yet know whether an effort to try and establish new “redlines” – for example, Secretary of State Tillerson’s suggestion during his confirmation hearings that we might seek to deny China’s access to some of its islands in the South China Sea – will influence China. We don’t know where decisions are going to be made to try to force the Chinese to change their position, or where the Trump administration is going to bargain. We’re still in the very early days of the new administration, and we just don’t know.

Mina: It’s safe to say that unpredictability will be a defining feature of the Trump administration’s foreign policy. In light of this, how can China craft a sustained and constructive foreign policy towards the U.S.?

Bonnie: I think that every country has to deal with a degree of unpredictability when they are talking to the Trump administration and making their own policy decisions. There is not a lot of certainty yet. And it may be that the Trump administration decides to maintain a large degree of unpredictability if it believes that ambiguity serves its interest.

I think as far as the Chinese are concerned, they are trying to convince the Trump administration to limit the ambiguity to areas that do not affect China’s “core interests.” At the top of that list of core interests is sovereignty and territorial integrity – which is why the issue of the One China policy is so sensitive to the Chinese. I think that Beijing is trying to establish the opportunity to have an early, in-depth conversation with President Trump. I think they believe that a Sunnylands-type conversation where they can lay out their interests and try to engage in a one-on-one conversation between Xi Jinping and Donald Trump may help establish some understandings early on. I don’t know whether they will be able to achieve that goal.

Right now, the first potential opportunity for Xi Jinping to talk to Donald Trump is likely to be at the G20 in the first week of July, unless something is arranged before then. But we are seeing phone calls taking place. China’s State Councilor Yang Jiechi spoke with National Security Adviser Michael Flynn. We don’t know what took place in that conversation, but I think that the Chinese are looking for greater certainty in trying to narrow this area of uncertainty and unpredictability.

Mina: Moving on to questions more directly related to the maritime domain – in your commentary with Zack Cooper and Peter Dutton, “Mischief Reef: President Trump’s First FONOP?” last November, you and your co-authors explain how regional observers will judge the Trump administration’s willingness – or unwillingness – to accept risk in response to China’s recent assertiveness based on where and when it conducts its first freedom of navigation operation in Asia. What message would conducting a naval operation that goes beyond “innocent passage” within 12 nautical miles of Mischief Reef send to China?

Bonnie: To introduce some background here, the Obama administration started conducting freedom of navigation operations around the Spratlys and the Paracels in October 2015 – but this was not the first time. Apparently, as early as 1997, there were some freedom of navigation operations in the Paracels. And it’s important to make the point that the U.S. freedom of navigation program is, in fact, a global one. It goes back to the 1970s, and it is intended to enforce freedom of navigation for all countries in the world, to protect high seas freedoms that all seafaring nations have under the UN Convention on the Law of the Sea.

When the Obama administration resumed these operations, there had been a hiatus for a couple years where they had not been carried out in the South China Sea. They were conducted two times in the Paracels, and two times in the Spratlys. And in all of these cases, with the exception of the last one that was conducted in October 2016, they were what we call “innocent passage.” That means, simply sailing in, in an expeditious and continuous manner, through waters that are 12 nautical miles around a particular feature.

Now, this is complicated by the fact that in the Paracels, the Chinese drew base points and baselines in 1996. They drew what’s called “straight baselines,” connecting these 28 base points. Under UNCLOS, only an archipelagic state that is composed of islands can draw these straight lines legally. China is a continental state. And it illegally drew straight baselines, and inside these baselines essentially claimed an “internal sea.” Under UNCLOS, if you have a legal internal sea, another country cannot sail inside those waters without getting permission first. The Chinese, contending that they have this legal right, demanded that the United States and other countries ask for permission before entering this internal sea. And the Chinese believe that they have a right under UNCLOS to demand that every country sailing in their territorial sea – whether it be coastal or around one of their land features – get prior permission. The United States has a different interpretation, and some countries require notification but not permission, so there are different interpretations of what the provisions are under UNCLOS.

So, with that background, in the last freedom of navigation operation in October of 2016, the USS Decatur crossed these illegal straight lines, and they conducted a maneuvering drill for the first time out of the four FONOPs publicized during the Obama administration. This is an exercise that is demonstrating high seas freedoms, and of course the Chinese objected to that. This was not “innocent passage” – simply sailing in a continuous and expeditious manner. Why is this important? If the United States simply sailed through these straight baselines through the Paracels and conducted innocent passage, that would signal an acceptance of China’s unlawful straight baselines.

Facilities on Mischief Reeef as of January 2016. (CSIS AMTI)

The reason why Peter Dutton, Zach Cooper and I are advocating conducting a FONOP around Mischief Reef is because the July 2016 ruling by the Arbitral Tribunal under UNCLOS found that Mischief Reef is a low-tide elevation. That essentially means its part of the seabed – so no country can have sovereignty over it, and it exists inside the 200 nautical mile exclusive economic zone of the Philippines. So indeed it belongs to the Philippines.

Mischief Reef is one of the three land features that the Chinese have built out into a massive island, creating military installations, including a 10,000-foot runway, hardened aircraft shelters, anti-aircraft missiles, and other capabilities. So if the United States were to conduct freedom of navigation around Mischief Reef – because Mischief Reef is not within 12 nautical miles of any other feature which would affect how the FONOP be legally conducted – simply conducting innocent passage around these 12 nautical miles of Mischief Reef would once again lend credibility and legality to China’s claims. And of course China has illegally occupied the feature to begin with. This means the United States, with any FONOP around Mischief Reef, would have to conduct some military activity to not lend credibility and legality to China’s claims. The U.S. could fly a helicopter, conduct an exercise of another kind, circumnavigate the feature, loiter within – those are the kinds of options the U.S. has.

The risks here are that the Chinese might respond. Perhaps the Obama administration did not conduct this particular FONOP because they were worried the Chinese might respond or interfere with that kind of freedom of navigation operation. The Chinese could interfere by sending fighter aircraft and flying very low and dangerously, or they could use maritime militia or even naval vessels to try and interfere and block the United States or force the United States to leave the area. This could potentially lead to a confrontation or even an accident. And it appears, based on the nature of the FONOPs the Obama administration did conduct, one of the factors in the decision making process was that the Obama administration wanted to minimize any potential for confrontation with China. I think they were risk-averse.

And I think the Trump administration will approach this issue a little differently. They might be willing to incur more risk. And by demonstrating to China they are less risk-averse, they hope to strengthen deterrence. Now, this is still a logic that is yet to be played out – as to what the Trump administration’s approach will be, and how the Chinese will respond. But this will be, from the Chinese perspective, a test of U.S. intentions and operations in the South China Sea. They will be looking to see whether the Trump administration is going to act differently than the Obama administration did. And the Trump administration will be looking to see how the Chinese respond to what they do. This is a critical test of where the U.S.-China relationship will go going forward.

Mina: Moving to a different part within the same region, on January 11, China’s Liaoning aircraft carrier sailed north through the Taiwan Strait after completing exercises in the South China Sea. Is this meant as a signal? If so, what specifically was it a response to? What message is it meant to convey?

Bonnie: Well, first we should note that the Liaoning aircraft carrier first went through the Taiwan Strait as part of an exercise in 2013, so this was not the first time. And preparing to conduct an exercise with an aircraft carrier – given the fact that the Chinese do not have much experience – a lot of work and preparation went into that. And the Liaoning was operating in the South China Sea, there were flight operations that were going on – the Chinese were trying to build their capabilities.

My guess is that the preparations were underway maybe five, six months in advance. So it’s doubtful that this exercise was substantially modified in reaction to anything that was happening in international politics at the time. That’s my view. But nevertheless it is a useful signal and can be played that way.

The Liaoning, heading back to Hainan Island from its exercises, really had three options to head back to China, if they did in fact consider changing routes. They could have gone through straits in Japan, or in the Philippines, or through the Taiwan Strait. They may or may not have decided initially to go through the Taiwan Strait, but my guess is that they simply were exploiting the opportunity to present it as a signal to Taiwan. The reason would be that the Chinese are more concerned about Taiwan’s President Tsai Ing-wen. She had a conversation with Donald Trump when he was just elected, on the phone. That was the first time ever a Taiwanese president has spoken on the phone with an American president-elect and that was made very public. And then President Tsai traveled through the United States. In fact, when this transit took place, President Tsai was in Central America and she passed through the U.S. and the Chinese are concerned about the potential for more cooperation between the U.S. and Taiwan, the possibility that President Trump could be emboldening Taiwan to challenge China’s claim to sovereignty. That would be a reason why they might have done that.

Chinese J-15 fighter jets wait on the deck of the Liaoning aircraft carrier during military drills in December. (STR/AFP/Getty Images)

I should note, however, that the Liaoning sailed on the Chinese side of the midline between Taiwan and the Chinese mainland and did not cross that centerline. As I understand it there were no flight operations that were conducted as it was transiting the Taiwan Strait. If that had happened it would have been seen as far more provocative. And finally, I would add that, three times prior to that transit through the Taiwan Strait, bomber flights took place around the South China Sea and also circumventing Taiwan. In my view, those bomber flights, combined in some cases with other aircraft, were probably intended to send a very direct warning signal to Tsai Ing-wen. And I view those with greater concern than the transit by the Liaoning through that Strait. 

Mina: Historically, China has tested incoming U.S. administrations with assertive operations. Do you think an assertive operation in the maritime domain – looking beyond the South China Sea and Taiwan Strait, considering possible contingencies even in the East China Sea – is likely? If so, what form might this take and is there anything the U.S. can do to deter it? How could the U.S. respond?

Bonnie: It has been suggested, and I believe, many observers believe that China has tested incoming administrations. In 2001, in the early days of the George W. Bush administration, there were aggressive intercepts that were being conducted by a Chinese pilot that ultimately resulted in a collision with an EP3 aircraft and led to a forced landing on Hainan Island. And in 2009, there was an early incident with a U.S. oceanographic vessel called the Impeccable, with various types of Chinese vessels harassing the Impeccable, and tried to convince the United States to reduce the intelligence, surveillance ,and reconnaissance operations around China and to move those operations further away from China’s coast.

So, one possibility is that the Chinese do try to test the Trump administration. My guess is that given the fact that the Trump administration has signaled early on that it is going to get tough against China, and the fact that they have tried to introduce a lot of unpredictability into future U.S. policy towards China, the Chinese likely see that there is a very high risk in testing the Trump administration – because they could force this new administration to become even tougher. They could even cause an early confrontation.

So far, it is remarkable how restrained, how disciplined the Chinese have been not just in their behavior, but in their rhetoric as well. There have been very carefully worded statements from the Chinese Foreign Ministry and the Chinese Defense Ministry reiterating China’s principled positions on various issues. But there have not been very strong threatening statements or actions form the Chinese. I think that they recognize that if President Trump is potentially seen as weak, he may overreact, and this could create an outcome that the Chinese don’t want to see.

There’s also the potential that in the past, some of these “tests” that took place in the George W. Bush administration and the Obama administration, took place at a time pre-Xi Jinping, when the Chinese civilian control over all of the activities of the military were probably not as firm as they are today. That’s not to say the military might not do things in some areas that are not completely decided by the civilian leadership. There are still some issues in civil-military relations in China. But, it is clear that the coordination between the civilians and the military, and the instructions by Xi Jinping to operators in the aircraft and military vessels – particularly the instruction to avoid an incident with the United States – is quite clear. In the past, where some of these incidents have taken place, there was speculation that maybe the top Chinese leaders did not endorse that particular action at that particular time – I think that is less likely to take place.

Mina: Thank you so much for your time today, and I’m really excited to get this out to all of our listeners. This was such an insightful conversation. Thank you, Bonnie.

Bonnie: Thanks for having me.

Bonnie S. Glaser is a senior adviser for Asia and the director of the China Power Project at CSIS, where she works on issues related to Chinese foreign and security policy. She is concomitantly a non-resident fellow with the Lowy Institute in Sydney, a senior associate with CSIS Pacific Forum, and a consultant for the U.S. government on East Asia.

Mina Pollmann is CIMSEC’s Director of External Relations.

Asia-Pacific, Capability Analysis

Bangladesh’s Submarines from China: Implications for Bay of Bengal Security

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This article originally was originally featured by the S. Rajaratnam School Of International Studies and is republished with permission. Read it in its original form here. 

By Nilanthi Samaranayake

Synopsis

Bangladesh’s acquisition of two submarines from China should not be narrowly viewed through the prism of India-China geopolitics. Rather, it should be understood in a wider context as a milestone by a modernizing naval power in the Bay of Bengal.

Commentary

The impending arrival of two Chinese-origin submarines to Bangladesh together with China’s planned construction of submarines for Pakistan, has contributed to the perception among some observers that China is attempting to encircle India and reinforced concerns about a Chinese “string of pearls.”

Yet Bangladesh’s acquisition of two Ming-class submarines should not be narrowly viewed through this geopolitical prism. Rather, it should be seen in the broader context of the country’s force modernisation, which has important implications for Bay of Bengal security. In fact, Bangladesh’s development of its naval capabilities may contribute as a force multiplier to Indian security initiatives in the Bay of Bengal rather than being a potential threat to regional stability.

Rising Navy

Bangladesh’s latest acquisition has its origins in Prime Minister Sheikh Hasina’s assumption of power in 2009 and Dhaka’s announced Forces Goal 2030. Under this project, Bangladesh has sought to augment its naval capabilities in “three dimensions,” going beyond solely surface platforms to include a naval aviation wing and undersea leg. Though an ambitious endeavor at the time, by 2011, Bangladesh had established a naval aviation wing by acquiring Italian helicopters and later German maritime patrol craft.

The navy has also expanded its surface fleet through Chinese and U.S. origin platforms. Refurbished submarines from China appear to have been the most competitively priced option to fulfill the third leg of Forces Goal 2030. The announcement about the transfer should be no surprise given that Bangladeshi media and military officers have openly discussed progress toward this goal over the past few years.

Furthermore, Bangladesh is one of a number of countries in the region that are expanding their fleets with sub-surface platforms. Through this force modernisation project, Bangladesh is seeking to be self-reliant and gain prestige for its military, as do many countries with growing economies.

Unsung Contributor to Maritime Security

At the same time that Bangladesh is augmenting its naval capabilities, it is increasing its contributions to maritime security in the Bay of Bengal and beyond. Since 2010, it has deployed two ships to the UN Maritime Task Force off Lebanon. Moreover, having long been a recipient of disaster relief, Bangladesh now seeks to become a provider of such aid. In the past three years, the Bangladesh Navy delivered relief to Sri Lanka after deadly landslides in May, to Maldives after a water crisis in 2014, and to the Philippines after Typhoon Haiyan in 2013.

Bangladesh also seeks a leadership role in advancing international maritime institutions and legal norms. The Bangladesh Navy is currently chairing the Indian Ocean Naval Symposium (IONS) until 2018. Previously led by the Royal Australian Navy, IONS convenes regional stakeholders to discuss opportunities for cooperation.

At their meeting in January, naval representatives from 30 countries gathered in Dhaka, including the first appearance by a four-star U.S. Navy admiral. Finally, after long-standing maritime disputes with Myanmar and India, Bangladesh opted to use the tools of international arbitration. As a result, the three countries helped affirm the importance of international law in the Indian Ocean.

India: Much to do with Bangladesh

The idea of Chinese sailors training the Bangladesh Navy on submarines in the Bay of Bengal is understandably disconcerting to Indian policymakers. India’s minister of defence recently paid a historic visit to Dhaka to upgrade defence ties, likely aiming to neutralise a long-term Chinese training presence in Bangladesh. Although India’s ability to provide Bangladesh with training on Chinese-origin submarines will be limited, it is an opportune moment for India and Bangladesh to deepen minimal naval cooperation.

Strikingly, neither neighbor engages in bilateral naval exercises or annual navy staff talks; this is a clear area for growth. Both sides make occasional port calls to the other country, the navy chiefs visit each other, and the Bangladesh Navy participates in the Indian Navy’s multinational MILAN maneuvers and in its training schools. The lack of deeper naval interactions may be due to the countries’ maritime boundary dispute, which was not resolved until 2014. A bilateral agreement in 2015 between Sheikh Hasina and Narendra Modi achieved cooperation between the two coast guards, yet not the navies.

As a result of the submarines’ impending arrival, India will be able to seize on this opening to advance naval cooperation, including on this platform. The two nations can develop mechanisms for water-space management and information-sharing in the Bay of Bengal. While Bangladesh will need to train on the submarines for years to develop requisite expertise, it can use this platform to monitor movements and communications as other navies have done.

This will augment maritime domain awareness and may deter criminal activity, including threats posed by Islamist militants. For its part, India houses two military commands in the Bay of Bengal and has a growing anti-submarine warfare capability. Bangladesh’s additional coverage of the maritime domain would supplement efforts to ensure regional stability.

India could also transfer or sell maritime platforms to Bangladesh as it has done for several Indian Ocean countries. As New Delhi tries to increase its indigenous defence industry under the “Made in India” initiative, Indian shipyards, including in nearby Kolkata, could similarly build ships and aircraft for the Bangladesh Navy and Coast Guard.

Way Forward

The delivery of two Chinese submarines to Bangladesh—likely in January or February, according to media reports—represents a milestone by a smaller South Asian country that is modernising its naval forces. Moreover, Bangladesh’s clear contributions to maritime security in the Bay of Bengal and beyond should be encouraged.

India is notably pursuing cooperation on submarines with the United States; it may also find a partner in the undersea domain closer to home. Relations between Dhaka and New Delhi have been growing, especially since Prime Minister Modi’s historic visit in 2015. Bangladesh leader Sheikh Hasina’s upcoming visit would be a good opportunity to lay the foundation for deeper, regular naval cooperation that reduces India’s threat perceptions and develops mechanisms for greater maritime domain awareness. Bangladesh’s evolving naval capabilities and role in advancing international naval operations, forums, and norms can bolster regional maritime security and stability.

Nilanthi Samaranayake is a strategic studies analyst at CNA, a non-profit research and analysis organisation in the Washington, D.C., area. The views expressed are solely those of the author and not of any organisation with which she is affiliated. She contributed this to RSIS Commentary.

Featured Image: Capt. Mohammad Nazmul Karim Kislu leads a formation from the Bangladesh navy during the transfer and decommissioning ceremony of the Coast Guard Cutter Jarvis held on Coast Guard Island, Thursday May 23, 2013. (U.S. Coast Guard photo by Petty Officer 2nd Class Pamela J. Boehland)

Arctic

Russia’s Evolving Arctic Capabilities

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By Steve Micallef

Far from the battlegrounds of East Ukraine and Syria another confrontation with Russia is brewing. As the Arctic ice retreats countries with claims in the Arctic are more willing to extract the resources found in this inhospitable location. The U.S. estimates the Arctic seabed is home to about 15 percent of the world’s remaining oil, up to 30 percent of its natural gas deposits, and about 20 percent of its liquefied natural gas. Like the U.S., Canada, Denmark and Norway, Russia has its own claim on a section of the Arctic which it is now looking to defend and expand. Today we are witnessing a resurgent Russia in the Arctic, deploying more troops and equipment to the Arctic in support of its claims.

The Cold History

There is a long history of territorial claims around the North Pole; Canada was the first to claim sovereignty over vast areas of the arctic in 1925. This was followed by the Soviet Union in 1926 which claimed an area stretching from Murmansk, east to the Chukchi Peninsula and north, towards the North Pole including both the Mendeleev and Lomonosov Ridges. This was followed by claims from the U.S., Norway, and Demark that where never internationally recognized until 1999 and the adoption of the United Nations Convention on the Law of the Sea (UNCLOS). UNCLOS, the melting ice caps, and the vast amounts of natural resources on the sea floor are the root causes of current Arctic confrontations.

Overlapping Arctic claims and resources. (TheTimes.co.UK)

Under the provisions of UNCLOS, states have ten years after treaty ratification to claim and extend territorial limits beyond the 200-mile Exclusive Economic Zone provided by the convention. Russia ratified UNCLOS in 1997 and had until 2007 to apply for a concession. Whilst Russia has always looked at the Arctic as an integral part of Russian identity (indeed until the collapse of the Soviet Union, Moscow maintained a large presence in the Arctic), it was Vladimir Putin who revived Russian ambitions in the Arctic. In December 2001, Russia applied for an extension of territory, claiming that the Lomonosov Ridge is an extension of the Siberian continental shelf and therefore entitles Russia to a bigger claim in the Arctic. However, this was inconclusive and the UN commission neither rejected nor accepted Russia’s proposal, citing a need for more research.

In the face of the melting icepack the Russian administration has declared the Arctic a region of strategic importance for Russia; due to both the potential Northern Sea Route as well as the energy and rare earth element reserves under the ice. Since 2002, Russia has sent expeditions in support of it claims over Lomonosov Ridge, including a 2007 expedition that planted a Russian flag on the seabed. Vladimir Putin has also taken the bold step of increasing Russian military presence in the inhospitable north.

Icebreaker Development

Icebreakers are the cornerstone of any capability in the Arctic. Icebreakers have multiple uses from resupplying far-flung communities and outposts to scientific exploration, search and rescue, and ensuring that sea lines remain ice-free for shipping. They are the backbone of any presence in the Arctic, both military and civilian. In this department Russian Arctic capabilities are significant, especially when compared to those of other Western claimants.

Russian President Putin views a model of Project 21900 icebreaker ST PETERSBURG (Getty Images)

Russia has as many as 40 icebreakers, both nuclear powered and conventional (see table below). Although some of these vessels are relatively old, with many of them built during the Soviet era, Russia also has various new designs under construction. In total, there are currently some 14 icebreakers of various types being built in Russia.

Class Displacement in Tons Build Qty Comments
Nuclear Powered Vessels
LK-60Ya

(Project 22220)

 33,540 3 New class of nuclear powered vessels; will be the world’s largest icebreakers.
Arktika

(Project 10520)

 23,000 6 Soviet era nuclear vessels- 4 remain in service.
Conventionally Powered Vessels
Project 21900 & 21900M 10,000 2 & 3 2x 21900s are in service along with 2x upgraded 21900Ms (1 additional under construction)
Ilya Muromets Project 21180 6,000 4 First one expected to be delivered in 2017.
LK-25
Project 22600		 22,000 1 Largest diesel-powered icebreaker in the world; may be delivered in 2018 after several years’ delays.
Project 70202 3,8000 1 Oil spill response, fire extinguishing, and ecological monitoring vessel. Constructed by Finnish Aker Arctic Technology. A unique hull shape allows the vessel to operate efficiently sideways and backwards.
Aker Arc 130/A

 

 8,699 2 Constructed for Gazprom Neft for use as support ships in Arctic oilfields. Constructed by Aker Arctic.
Arc7 ice-classed LNG carriers 80,200 14 First delivered in 2016, others are under construction in Geoje, South Korea for service in the Arctic. Able to break through 2.1m of ice.

Of particular interest are the LK-60Ya nuclear ice breakers and Arc-7 LNG carriers. Three LK-60Yas are under construction; the first (the Arktika) was launched in June 2016 and will be commissioned in 2018 with others commissioning in 2019 and 2020. These vessels are intended for use in the Northern Sea Route along Russia’s Arctic coast and are capable of breaking through ice over nine feet thick.

SCF Yamal/ Christophe de Margerie, the first Arc-7 Ice Classed LNG carrier. (IHS)

The development of LNG and oil carrying ice-capable tankers is an area of particular economic interest for Russia. In this area, Russia is collaborating with Daewoo Shipbuilding and Marine Engineering in South Korea and an international consortium for the construction of the first Arc 7 ice-classed LNG carriers. The aim is to reliably deliver the LNG produced from the Yamal LNG project in the Yamal Peninsula.

Military Development

Icebreakers are not the only things Russia is constructing to help it control the Arctic. All along its northern frontier Russia has begun rebuilding and reoccupying its military bases, some of which have not been used since the end of the Cold War. Russia is upgrading its docking facilities in Murmansk, one of the few ports which is ice free year round and home to Russia’s nuclear icebreaker fleet, to provide more space for the larger nuclear icebreaker and submarine fleets.

Aerial facilities are also being upgraded to improve coverage over the Arctic. Since 2015 Russia has equipped six new bases in the region, both on the mainland and on islands. These have included airbases on the islands of Franz Josef Land, Severnaya Zemlya, Wrangel Island, Kotelny Island and Novaya Zemlya. On the mainland, the facilities at Mys Shmidta, including the port and the airport, are also being upgraded.

Russian military installations proximate to the arctic.

Moreover, the Russian Navy has stepped up its presence in the Arctic with a permanent base on Kotelny Island and in 2016 when it started using new facilities on Alexandra Land. Beyond the ability to conduct search and rescue operations and support other Russian forces operating in the Arctic (mainly through the use of submarine forces), the Navy is also looking to stop infiltration by other powers into sovereign Russian territory.

Weapons-wise, Moscow has deployed two long range S-400 regiments to Novaya Zemlya and the port of Tiksi alongside short range surface-to-air Pantsir-S1 systems to protect them. Arctic bases have also been reinforced with P-800 Oniks supersonic anti-ship missiles, although the number of these systems present in the Arctic remains unclear.

Ground forces are being deployed to the region as well. The 99th Arctic Tactical Group has been permanently deployed to Kotelny Island to protect and aid in the construction of the airfield and piers there. Two other formations, the 200th Independent Motor Rifle Brigade and the 80th Independent Motor Rifle Brigade, have been converted into Arctic Brigades. Both formations appear stationed in the Murmansk Oblast and seem to be equipped with two-tiered tractors, snowmobiles and other vehicles, including the DT-30P Vityaz articulated track vehicle. Allegedly, these troops receive reconnaissance, airborne, and mountain training.

All these elements are under the command of Russia’s Arctic Joint Strategic Command, recently formed in December 2014. This command is responsible for the training and operational employment of Russian assets in the region; including all combat units, radar stations, airfields and support units. Northern Fleet units based at Kotelny Island also fall under the authority of this command.

A Russian Northern Fleet warship transits Arctic waters with icebreaker escort in 2013. (RT)

Russian will continue to build new facilities in the future. A large year-round airbase is being built on the New Siberian Islands Archipelago, which will enable the deployment of Tu-95MS and Tu-160 bomber and the stealth PAK DA bomber in the future. A network of 10 Arctic Search and rescue stations, 16 deep-water ports, 12 new airfields and 10 air-defense radar stations is planned. The Russian Defense Ministry also recently announced it will build over 100 infrastructure facilities in the Arctic by the end of 2017. Together, these units and facilities will allow Russia to maintain a watchful eye over the Arctic, its oil reserves and, in the future, maritime shipping.

Conclusion

Russia has developed its Arctic capabilities to a level that was inconceivable a couple of years ago – one that has not been seen since the end of the Soviet Union. Nor is there is any sign that Russia will stop here – in November 2016 Putin called for accelerating development of the Arctic region. Whatever the outcome, these huge investments in the Arctic leave Russia in a much better position to exploit the benefits brought by the melting ice fields.

Steve Micallef graduated from the University of Malta with a B.A. (Honors) in International Relations in 2015. He also holds an MSc in Strategic Studies from the University of Aberdeen, Scotland. He currently works at Bugeja Geopolitical Consulting, Malta.

Featured Image: Russian arctic troops (Sputnik/ Valeriy Melnikov)