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Asia-Pacific, Territorial and Law of the Sea Disputes

South China Sea arbitration: Beijing puts forward her own views Part Three

January 6, 2016 Guest Author Leave a comment

This is the third installment in a four-part series devoted to China’s 7 December 2014 document, putting forward her views on the Philippines’ international arbitration case on the South China Sea. Although Beijing is refusing to take part in the proceedings, as confirmed following the Court’s 29 October 2015 ruling on jurisdiction, by issuing this document, and communicating in other ways with the Court, the PRC has failed to completely stay aloof from the case. It is thus interesting to analyze China’s narrative as laid down in that document. Read Part One, Part Two.

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Has Manila committed herself not to initiate compulsory arbitration proceedings? Section III largely consists of a long list of bilateral agreements and statements, and ASEAN documents, laying down commitments to settle disputes by negotiation and agreement, whose purpose is to prove that Manila is therefore “debarred from unilaterally initiating compulsory arbitration.” In the former category, the text cites among others (31) the “Joint Statement between the People’s Republic of China and the Republic of the Philippines concerning Consultations on the South China Sea and on Other Areas of Cooperation, issued on 10 August 1995” which contains “the principles that ‘[d]isputes shall be settled in a peaceful and friendly manner through consultations on the basis of equality and mutual respect’ (Point 1); that ‘a gradual and progressive process of cooperation shall be adopted with a view to eventually negotiating a settlement of the bilateral disputes’ (Point 3); and that ‘[d]isputes shall be settled by the countries directly concerned without prejudice to the freedom of navigation in the South China Sea’ (Point 8)” and (33) the “The Joint Statement” of 16 May 2000 whose Point 9 states that the two countries “agree to promote a peaceful settlement of disputes through bilateral friendly consultations and negotiations.”

Concerning China-ASEAN documents, the text stresses (35) the 2002 “Declaration on the Conduct of Parties in the South China Sea (‘DOC’),”whose Paragraph 4 reads “The Parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means … through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea.” The DOC is of particular interest, not only because it has also been signed by most coastal states in the South China Sea (although not by Taiwan), but because it has often been touted by observers and governments as proof that it was indeed possible to settle the status of the sea without resorting to war. Does this agreement close the doors to compulsory arbitration under UNCLOS? As often in the law, at least two different interpretations are possible. On the one hand, a literal reading of the quoted paragraph seems to restrict the avenues opened to coastal states, although the term “only” or words to that effect do not appear in that section (as China’s position paper openly acknowledges in its Section 40). On the other it could be argued that the reference to UNCLOS is in itself a door open to arbitration, since that treaty provides under certain conditions and limitations for this form of dispute settlement. An intermediate view could be that the DOS forces signatories to first resort to direct consultations and negotiations, with arbitration under UNCLOS as a last resort. Concerning this view, Manila argues that China has no intention to engage in meaningful negotiations, whereas Beijing says (45) that “the truth is that the two countries have never engaged in negotiations with regard to the subject-matter of the arbitration.” This is, at least to some degree, surprising, when we bear in mind the emphasis in the text on China’s commitment to negotiations. Given Beijing’s stress on bilateral negotiations, why have these have not even started with the Philippines? Not that they have not concluded, or progressed, but not even begun. Perhaps with such a question in mind, the position paper provides (47) some possible reasons, such as the fact that “the South China Sea issue involves a number of countries.” This is of course true, but by pointing it out as a reason not to have even begun negotiating with the Philippines, China is contradicting another pillar of its posture in the South China Sea: its insistence on bilateral, as opposed to multilateral, negotiations. One could thus argue that China cannot have its cake and eat it too. If the issue is complex because of the large number of actors involved, would a multilateral forum not be more appropriate? If so, why does Beijing insist on bilateral negotiations? And when someone like Manila argues these are leading nowhere, then the reply is that they have not even started because, among other reasons, of the large number of countries involved. There are of course powerful reasons why China may prefer a bilateral approach, but this illustrates how easy it is to fall into contradictions in the international arena, not something that affects just China of course.

Chinese marine archaeologists working in the South China Sea in 2008. Archaelogy plays a key role in Beijing's narrative. — Chinese marine archaeologists working in the South China Sea in 2008. Archaelogy plays a key role in Beijing’s narrative.

With regard to the absence of an explicit exclusion of third-party settlement, which as pointed out the text acknowledges, China cites the “Southern Bluefin Tuna Case”where the arbitration tribunal stated that “the absence of an express exclusion of any procedure … is not decisive.” Two key words for China are to “agree”, which the text (38) explains often appears in bilateral communiques, and “to undertake”, which features (38) in Paragraph 4 of the DOC. China’s position paper stresses, citing the ICJ in Bosnia and Herzegovina v. Serbia and Montenegro, where the Court ruled that “[t]he ordinary meaning of the word ‘undertake’ is to give a formal promise, to bind or engage oneself, to give a pledge or promise, to agree, to accept an obligation. It is a word regularly used in treaties setting out the obligations of the Contracting Parties …. It is not merely hortatory or purposive.” For China, bilateral agreements and statements with the Philippines and the DOC are not separate realities, but (39) “mutually” reinforce “and form an agreement between China and the Philippines”, giving rise to “a mutual obligation to settle their relevant disputes through negotiations.”

The position paper underlines (50), as a further argument to prove that exchanges of views with the Philippines did not start in 1995, that it was not until 2009 that Manila abandoned claims in excess of UNCLOS. Concerning the doctrine of Estoppel, that is the ban on acting against one’s own acts, the paper rejects (51) Manila’s assertion that Beijing has incurred a “grave breach of the terms of the DOC,” preventing it from invoking Paragraph 4 “to exclude the jurisdiction of the Arbitral Tribunal”, dismissing it as “groundless.” The text considers this to be a “selective” resort to the DOC and a “self-contradictory tactic” amounting to a violation of “good faith.” It is true that a general principle of the law, also of international law, is that one cannot refer in isolation to a given excerpt from a rule or document. The problem is perhaps that the position paper overdoes this by next (55) referring to an alleged “current relationship of cooperation between China and the ASEAN member States in the South China Sea,” to which countries like Vietnam might not fully subscribe. The text (56) also argues that Manila’s resort to arbitration amounts to “running counter to the common wish and joint efforts of China and the ASEAN member States,” and here this is not something that can be so easily dismissed, since the Philippines has indeed been the only littoral state to try to resort to arbitration, although Vietnam and some other states, including non-littoral ones, seem to be at least providing a measure of support to Manila, although framed in terms designed not to overtly provoke China.

Lastly, the position paper argues (73) that when one state has issued a declaration in accordance with Article 298 of UNCLOS, excluding itself from compulsory arbitration in certain areas, another state cannot initiate proceedings arguing that they do not fall within the exemption, before first engaging in negotiations with the defendant state. The text says that otherwise Article 298 would be rendered “meaningless.” To reinforce this, the text adds (74) that this is the first such case, and that “Should the above approach be deemed acceptable, the question would then arise as to whether the provisions of Article 298 could still retain any value,” placing a question mark on “the declarations so far filed by 35 States Parties under Article 298.” Here we should distinguish the core of the matter from the procedural issues at stake. Even if it were to agree with Beijing on this point, the fact that the arbitration court will have to rule on the admissibility of the case and its own powers could be seen as a barrier to any attempt to institute compulsory arbitration in areas covered by an Article 298 exemption. Of course, the problem for the state sued is that in order to argue before the court that the latter should dismiss the case it would be necessary to appear before it, which is precisely what Beijing is bent on avoiding. Issuing this position paper is a way to make its views known, while avoiding this trap. As mentioned earlier, this can be interpreted in many ways. From the point of view of the rule of law and the progress of international law and tribunals, it can cut both ways. On the one hand, we could say that China’s (and Vietnam‘s) decision to address the PAC, despite not joining the proceedings, shows that these, and more generally international arbitration, cannot simply be ignored, whatever the protestations to the contrary. On the other hand, such moves may be seen as bypassing formal proceedings, and showing how imperfect the actual powers of international tribunals remain.

Read the next installment here.

Alex Calvo is a guest professor at Nagoya University (Japan) focusing on security and defence policy, international law, and military history in the Indian-Pacific Ocean Region. A member of the Center for International Maritime Security (CIMSEC) and Taiwan’s South China Sea Think-Tank, he is currently writing a book about Asia’s role and contribution to the Allied victory in the Great War. He tweets @Alex__Calvo and his work can be found here.

Global Analysis

That Sinking Feeling: Inflation and the National Shipbuilding Procurement Strategy

January 5, 2016 Guest Author Leave a comment

This post originally featured on the CDA Institute, and is republished with permission. You can read it in its original form here.

CDA Institute guest contributor Ryan Dean, a PhD candidate at the University of Calgary, offers a reminder on the dangers of inflation in Canada’s defence procurement efforts.

A good portion of our future navy has been sunk on the drawing board by inflation.

Inflation is an economic term that encompasses all the variables that lead to a general price increase in a good or service. In the case of warships, inflation includes everything from technical issues related to the design of the ships to increases in the wages of the shipyard workers who build the ships. The longer a budget takes to be spent, the less that budget can buy.

Military inflation rates have a voracious appetite and can eat through capital budgets far faster than their civilian counterparts. American warships have historically inflated at an annual rate of 9 to 11 percent. The National Shipbuilding Procurement Strategy (NSPS), modeled on American shipbuilding practices, could suffer from even higher inflation rates as we are dealing with the additional time and costs of resurrecting a shipbuilding industry and we do not enjoy the same economies of scale as our southern neighbour in sustaining this strategic industry.

Long delays between the allocation of budgets for a class of warship and their actual construction allows for high inflation rates to halve these budgets. This has already happened with the Joint Support Ship (JSS) and the Arctic Offshore Patrol Ship (AOPS) procurements. It is now happening with the Canadian Surface Combatant (CSC) Project.

The time invested in designing the JSS to be a highly capable platform backfired. $2.9 billion was budgeted in 2006 to build three replenishment vessels by 2012. Internal pressure for a very ambitious ship led to sealift and command-and-control ashore capabilities being added to the original refueling and resupplies tasks of the proposed vessels. Three “big honking ships,” to borrow the term introduced by General Rick Hillier, with those capabilities could not be delivered within budget and the government rejected bids in 2008. The NSPS effectively pushed things back until 2011, at which time the procurement resumed. In 2013 the “off the shelf” German designed Berlin-class, capable of refueling and resupplying but not sealift and command-and-control, was selected as Canada’s next replenishment vessels with construction beginning in 2016 and deliveries scheduled for 2019 and 2020. Instead of three of these vessels, now only two Queenston-class ships are promised. The negative effects of inflation resulting from years of delays have sunk one of our replenishment vessels on the drawing board.

The AOPS was announced in 2007. $3.1 billion was budgeted to build six to eight ships with deliveries starting in 2013. Based on the Norwegian Svalbard-class, much time and money was invested in attempting to increase the capabilities of the design, though it appears these efforts have largely failed. Time spent on this and the development of the NPSPpushed the AOPS delivery date back to 2018. As with the JSS, the years of delay allowed inflation to hollow out theAOPS budget. A report issued late 2014 by the Parliamentary Budget Officer (PBO) found that the AOPS budget could only afford four vessels at that point. In response, the government added an additional $400 million to the project and revised their official number of ships delivered down to five or six, though these numbers remain optimistic. Inflation has sunk nearly half the proposed AOPS.

$26.2 billion is budgeted to build up to 15 CSCs, at best a one-for-one warship recapitalization program to replace the Royal Canadian Navy’s destroyers and frigate fleet. Given that the AOPS was placed first in the NSPS construction queue, the first CSC will not be delivered for another 10 years with the rest following over a 20–30 year period. This affords inflation plenty of time and opportunity to do its worst. A 2013 PBO report and recent news reports draw attention to this fact, with inflation placing nearly half the future CSC fleet in jeopardy. The financial situation is so grim that, as a cost saving measure, there has even been a proposal to start cannibalizing systems from our current fleet with which to outfit our future fleet.

The thrust of this short piece is that we must stay aware of the negative effects of inflation in our military procurements. Delays come with significant costs. In the cases of the JSS and AOPS, the costs are fewer and less capable ships.

How can inflation be addressed, aside from cutting numbers or capabilities to stay within eroded budgets? The best way is speed, something to keep in mind regarding the CF-18 Replacement Project and proposals by the Opposition parties to restart an open bidding process. Would any benefits that could result from pressing the reset button on that procurement program again outweigh the high costs of additional time and inflation? Similarly, robbing the CF-18 Replacement Project to pay for the CSC Project would only magnify the problems of the Royal Canadian Air Force’s recapitalization due to inflation. However, in the case of the CSC, speed is not an option due its place in the NSPS shipbuilding queue.

The other way to address inflation is to simply buy back time by increasing capital budgets. The Trudeau-era’s Defence Structural Review did this, increasing the military’s capital budgets which led to the purchases of the CF-18s and the Halifax-class frigates in the 1980s. This has historically been something that Canada has been adverse to do but times could be changing. As noted above, the AOPS budget was increased late last year by $400 million despite constraints on across the board federal spending. Additional monies will preserve not just CSC numbers, but their capabilities as well.

Ryan Dean is the winner of the 2015 Canadian Naval Memorial Trust Essay Competition and is a PhD candidate in the Department of Political Science, University of Calgary. (Image courtesy of the Royal Canadian Navy.)

Asia-Pacific, History, Tactical Concepts

Communist China’s Approach to Force: 1962 Lessons for the Senkaku Islands?

December 30, 2015 Guest Author 2 Comments

By Alex Calvo

Given the continued tensions in the East and South China Seas, and the constant speculation on whether Beijing may choose to escalate, it can be useful to have a look at how the PRC has traditionally resorted to force, and in particular the 1962 Sino-Indian War.

Professor Brahma Chellaney wrote an interesting summary of Communist China’s approach to war, based on that conflict, which saw the Chinese Army penetrate deeply into India for 32 days, after which “Beijing announced a unilateral ceasefire, and the war ended as abruptly as it had begun. Ten days later, the Chinese began withdrawing from the areas they had penetrated on India’s eastern flank, between Bhutan and Burma, but they kept their territorial gains in the West—part of the original princely state of Jammu and Kashmir. India had suffered a humiliating rout, and China’s international stature had grown substantially”. The six principles displayed were:

Surprise. As already advised by Sun Tzu, who wrote that all warfare was “based on deception”.
Concentration, “hitting as fast and as hard as possible”.
First Strike.
Waiting, and choosing the right moment.
Camouflaging offence as defence, engaging in “defensive counterattacks”.
Daring. A tendency to gamble and take risks.

When it comes to the Senkaku Islands, a question is whether these principles may be employed, in the form of an airborne or seaborne landing of troops or a mixed force of military personnel and “activists”, bypassing the Coastguard units shielding them and taking advantage of the lack of land forces.

Concerning surprise, we can see a clear distinction between 1962 and this scenario in terms of strategic surprise. Beijing is announcing every day that she wants the Senkaku, and not making any effort at all to pretend that she is only ready to resort to non-violent means. No ambiguity here, therefore no strategic surprise is being sought. At the tactical level, on the other hand, there is no surprise either in the constant harassment at the hands of paramilitary assets or “civilian” expeditions, but this could be a cover behind which to prepare a landing by military or other government personnel. It is here that surprise may lie, since Beijing may try to take advantage of the presumption that it is only unarmed activists who try to land, inserting an armed force, maybe by air.

With regard to concentration, the nature of the islands means that this principle would not be applicable in exactly the same sense as it was in 1962. Rather than hitting “as fast and as hard as possible”, as Chellaney explains China did against India, the goal would be still be to do it as swiftly as possible but not as hard as possible, rather the contrary, since the idea would be to avoid a clash with the Japanese Coast Guard or other government agencies. Beijing’s goal would be to force Tokyo to take the always difficult decision in a democracy to fire the first shot.

When it comes to striking first, again we have to note an essential difference. Beijing would still be interested in surprise, as already noted, that is she would try to make the first move (and by definition she would, since the islands are already in Japanese hands) but not to shoot first. This would be a major difference with 1962 or with the 1979 “lesson” against Vietnam.

The idea that an attack should be launched at the right time, with a view to a favourable worldwide state of affairs, remains as relevant as ever. This is linked to one of Beijing’s imperatives, preventing the US from coming to Japan’s aid. It would also involve other, regional, powers however. China has a need to keep an eye on Russia, Vietnam, the Philippines, and India, among others. It must be said, concerning this, that while it is true that Beijing has usually been smart to launch its limited offensives at the right time (this includes the seizure of the Paracel Islands, occupation of Johnson Reef, and capture of Mischief Reef), when it comes to Japan she miscalculated in 2010. Beijing imposed an embargo on rare earths exports in reaction to the arrest of a trawler’s skipper, not only failing to secure any objective beyond his release but unleashing a major effort to implement alternative technologies, recycle, seek new suppliers, and even explore seabed deposits. The result is that Japan has significantly cut down her dependence on Chinese rare earths.

Japanese air patrol over the Senkaku Islands

The tendency to carry out “defensive counterattacks” seems to be a constant in Chinese behaviour, which Chellaney reminds his readers had already been noted by the Pentagon in its 2010 report on “Military and Security Developments Involving the People’s Republic of China” to Congress. This report lists a number of instances where Beijing chose to seize the initiative, while framing her actions in a “response” narrative. In a way this is already been happening in the Senkaku Islands, since after each incident Beijing not only rejects Japanese protests but actually issues her own, saying that they are part of her territory and that therefore it is Japanese units which are trespassing. The text also points out how Chinese doctrine calls for waiting for the enemy to strike first, while defining that first strike in political, not necessarily military, terms. Thus it is fine to be the first to resort to force in reaction to a political offensive. The report quotes from “the authoritative work, Science of Military Strategy,” to explain that “Striking only after the enemy has struck does not mean waiting for the enemy’s strike passively.… It doesn’t mean to give up the ‘advantageous chances’ in campaign or tactical operations, for the ‘first shot’ on the plane of politics must be differentiated from the ‘first shot’ on that of tactics… if any country or organization violates the other country’s sovereignty and territorial integrity, the other side will have the right to ‘fire the first shot’ on the plane of tactics.'”

Would this doctrine be compatible with a sneak landing on the Senkaku Islands? It could fit with it if we expanded it to comprise three, as opposed to two planes. The first one would still be the political, with Beijing claiming (as she does) that the islands are hers and that therefore the Japanese are invaders, a position made much easier to sustain by Tokyo’s reluctance to develop the islands, thus contradicting her claims that not only do they belong to the country but that there is no territorial dispute. The second one, where Beijing would be taking the initiative, would be the “tactical-cold” one, that is the employment of force (in the sense of deploying military or paramilitary personnel in violation of Japan’s borders but without inflicting casualties). Finally, the third would be the “tactical-hot,” that is the actual employment of weapons with live fire, where China would rather have Japan be the first to shoot, in the knowledge that it is difficult for democracies to take such decisions and thus in the hope that Tokyo would refrain from doing it or that, if she did, this could be used to Beijing’s advantage on the propaganda and diplomacy fronts.

Finally, with regard to China’s tendency to gamble and take risks, Chellaney notes that this could be furthered by her “second-strike nuclear capability and unprecedented economic and conventional military strength.” In addition to these two powerful factors, we could perhaps mention two additional ones, whose impact is less clear cut but which may nevertheless have some influence: a possible economic crisis and popular demand for the seizing of the Islands. Concerning a crisis, a growing number of voices are alerting about the possibility that the country’s uninterrupted economic growth may sooner or later be brought to a halt. Whether that would prompt a more cautious foreign policy or on the contrary whet Beijing’s appetite for adventures is open to debate. With regard to her domestic public opinion, Beijing is playing a dangerous game by pushing so hard for the Senkaku Islands and thus risking becoming a prisoner of her own narrative. This brings to mind Hugh Bicheno’s comment, in his unofficial history of the Falklands War, that territorial conflicts may be useful to “distract the masses,” but that this “creates an issue others will exploit to question the Nationalist credentials of whoever is refraining from recovering the lost lands.”

We can thus conclude that Communist China’s traditional approach to force, as exemplified by the 1962 War, means a clear danger that Beijing will try to seize the Senkaku Islands by inserting forces and daring Tokyo to be the first to open fire.

Asia-Pacific, Territorial and Law of the Sea Disputes

South China Sea arbitration: Beijing puts forward her own views Part Two

December 23, 2015 Guest Author Leave a comment

By Alex Calvo

This is the second installment in a four-part series devoted to China’s 7 December 2014 document, putting forward her views on the Philippines’ international arbitration case on the South China Sea. Although Beijing is refusing to take part in the proceedings, as confirmed following the Court’s 29 October 2015 ruling on jurisdiction, by issuing this document, and communicating in other ways with the Court, the PRC has failed to completely stay aloof from the case. It is thus interesting to analyze China’s narrative as laid down in that document. Read Part One.

Putting the cart before the horse? China argues delimitation of land territories must come first. The text affirms (6) that “Since the 1970s, the Philippines has illegally occupied a number of maritime features of China’s Nansha Islands, including Mahuan Dao, Feixin Dao, Zhongye Dao, Nanyao Dao, Beizi Dao, Xiyue Dao, Shuanghuang Shazhou and Siling Jiao. Furthermore, it unlawfully designated a so-called ‘Kalayaan Island Group’ to encompass some of the maritime features of China’s Nansha Islands and claimed sovereignty over them, together with adjacent but vast maritime areas,” claiming sovereignty “over Huangyan Dao of China’s Zhongsha Islands and illegally explored and exploited the resources on those maritime features and in the adjacent maritime areas,” and (10) argues that in any case it is not possible to rule “on whether China’s maritime claims in the South China Sea have exceeded the extent allowed under the Convention” until “the extent of China’s territorial sovereignty in the South China Sea” has been determined.

This argument is central to China’s case, being the opposite of one of the pillars of Manila’s arbitration bid, namely that it only concerns the extent and manner that rights are exercised, rather than territorial delimitation, which is out of bounds to the court due to Beijing’s derogation (that is, opt out from that aspect of the convention, meaning that compulsory arbitration does not extend to territoria delimination in the case of China), which Manila acknowledges. To press the issue further, Beijing cites the ICJ, (11) pointing out that “the land dominates the sea.” That is, it argues that one cannot discuss whether the sea is being used in accordance with UNCLOS before a full determination of a country’s land territory has been made, a determination not open to the Permanent Court of Arbitration without Beijing’s consent. The text calls (14) Manila’s attempt to examine the former “contrived packaging” which “fails to conceal the very essence of the subject-matter of the arbitration, namely, the territorial sovereignty over certain maritime features in the South China Sea.” Another, less aggressive, term employed by the text (18) to press home the same point is “putting the cart before the horse.” To support this view, the document argues (18) that there is no precedent “in relevant cases” of any “international judicial or arbitral body” having “ever applied the Convention to determine the maritime rights derived from a maritime feature before sovereignty over that feature is decided.” While international tribunals like the PAC are not, formally speaking, bound to the doctrine of precedent (stare decisis), they do tend to follow previous rulings. However, there have not been a large number of cases, much less a coherent set of rulings, on this issue. Therefore, we may say that there is simply no consistent body of case law on whether it is possible to examine compliance with UNCLOS of a country’s practice at sea in advance of territorial determination.

“China claims reclamation work in the South China Sea is in accordance with international law.”

Appropriation of low-tide elevations: Beijing argues not up to interpretation of UNCLOS. Concerning the “low-tide elevations” that Manila claims to be such and has included in its arbitration bid, saying that they cannot be appropriated, China’s document (23 and 24) argues that “whether or not” they “can be appropriated is plainly a question of territorial sovereignty.” Formerly often referred to as “drying rocks” or “banks,” UNCLOS defines “low-tide elevations” as “a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide.” The Chinese paper states that it “will not comment” on whether they are “indeed low-tide elevations,” while pointing out that “whatever nature those features possess, the Philippines itself has persisted in claiming sovereignty over them since the 1970s,” citing “Presidential Decree No. 1596, promulgated on 11 June 1978” whereby Manila “made known its unlawful claim to sovereignty over some maritime features in the Nansha Islands including the aforementioned features, together with the adjacent but vast areas of waters, sea-bed, subsoil, continental margin and superjacent airspace, and constituted the vast area as a new municipality of the province of Palawan, entitled ‘Kalayaan.’” China’s position paper cites later Filipino legislation, arguing that while pretending to adjust claims to UNCLOS it does “not vary the territorial claim of the Philippines to the relevant maritime features, including those it alleged in this arbitration as low-tide elevations.” The text accuses Manila of contradicting herself by first asserting in “Note Verbale No. 000228, addressed to Secretary-General of the United Nations on 5 April 2011” that “the Kalayaan Island Group (KIG) constitutes an integral part of the Philippines,” the KIG including among others “the very features it now labels as low-tide elevations,” with the “only motive” being to deny them to China and “place them under Philippine sovereignty.” Furthermore, the position paper argues (25) that UNCLOS “is silent on this issue of appropriation” of low-tide features, citing the ICJ in the 2001 Qatar v. Bahrain ruling, where it stated that “International treaty law is silent on the question whether low-tide elevations can be considered to be ‘territory.’ Nor is the Court aware of a uniform and widespread State practice which might have given rise to a customary rule which unequivocally permits or excludes appropriation of low-tide elevations.” The text also cites a later 2012 ICJ case, the “Territorial and Maritime Dispute (Nicaragua v. Colombia),” where it stated that “low-tide elevations cannot be appropriated” but argues that the Court “did not point to any legal basis for this conclusory statement. Nor did it touch upon the legal status of low-tide elevations as components of an archipelago, or sovereignty or claims of sovereignty that may have long existed over such features in a particular maritime area,” adding that “the ICJ did not apply the Convention in that case.” Therefore, China’s position paper argues, “Whether or not low-tide elevations can be appropriated is not a question concerning the interpretation or application of the Convention.”

Taiwan: lurking on the background. Taiwan and the “One-China Principle” are not absent from China’s document either, the text (22) accusing Manila of committing a “grave violation” of the principle for omitting Taiping Dao (Island) from the list of “maritime features” described as “occupied or controlled by China.” Instead, the text describes it as being “currently controlled by the Taiwan authorities of China.” This is a reminder that the conflict over the South China Sea is connected with that over Taiwan, in a number of ways. We may ask ourselves whether Manila was departing here from her “One-China Policy.” Was this a warning shot, or merely another example of how state practice concerning Taiwan is moving (sometimes inadvertently) away from Beijing’s strict position in many countries.

The burning question of freedom of navigation and overflight. Given the current controversy over FON (Freedom of Navigation) operations by the US Navy, along or together with partners and allies, close to China’s artificial islands in the South China Sea, this is an aspect of Beijing’s paper of great interest to observers. Concerning this, section 28 stresses that “China always respects the freedom of navigation and overflight enjoyed by all States in the South China Sea in accordance with international law.” While this is in line with repeated assertions by Chinese authorities, it prompts further doubts on the exact nature of Beijing’s claims, in the sense that if all it was demanding was an EEZ then freedom of navigation and overflight would simply flow from international law, without the need for any concession by the coastal state. The issue is made more complex by the fact that in Beijing’s view the rights of coastal states are more extensive than in the eyes of countries such as the United States, going as far as including the right to authorize or deny military activities such as electronic intelligence gathering, which has been the source of a number of incidents, some of them fatal. Thus, if what China is claiming is an EEZ, is Beijing making a concession and accepting a lesser set of coastal state rights in the particular case of the South China Sea? Alternatively, should we read “freedom of navigation and overflight” as being restricted to civilian ships and planes, or at least not including any activities such as ELINT (electronic intelligence) gathering, prejudicial to the coastal state? Other questions may be prompted by China’s assertion. For example, does this also apply to territorial waters around Chinese islands in the South China Sea? A question made more complex by the fact that there is no agreement over which islands are islands there, in particular given the extensive reclamation work taking place.

Read the next installment here.

Fostering the Discussion on Securing the Seas.