Today, the Permanent Court of Arbitration released its decision on Philippines vs. China. The decision is linked below. The deadline for submissions for the CIMSEC South China Sea Security topic week will be extended from Sunday, July 17, to Sunday, July 24, to provide prospective contributors with more time to finalize their submissions. The topic week will now begin the week of July 25.
The following piece was originally published on 31 May 2016 by The Straits Times. It is republished here with the authors’ permission. It may be read in its original form here.
Ambassador Xu accused the United States of being the “driving force” behind increased tensions in the region, but his rhetoric is based on faulty assumptions and misinterpretations of the facts and the law.
Mr. Xu suggests that after U.S. Secretary of State Hillary Clinton visited the region in 2009, the region “evolved into a disturbing… hot spot,” and that her visit encouraged states to change their policies to confront China.
But China’s problems in the South China Sea were created by conscious decisions in Beijing to insistently use coercion to advance its expansive and unlawful claims, alarming China’s neighbours. And the Philippines and Vietnam clarified their claims in the South China Sea not because of Mrs. Clinton’s visit, but to comply with international law – something China might well consider for itself.
The Philippines did not enact a new baseline law in March 2009 “to claim sovereignty over… Huangyan Island (Scarborough Shoal) and some of the Nansha (Spratly)Islands.”
In fact, Republic Act 9522 was passed to bring the Philippines’ archipelagic baseline system into full compliance with the United Nations Convention on the Law of the Sea.
Filipino students holding anti-Chinese placards during a rally in Manila in March against Chinese vessels reportedly dropping anchor near a South China Sea atoll also claimed by the Philippines. Photo: Agence France-Presse.
Philippine sovereignty over Scarborough Shoal can be traced back to 1800, when the Philippine-based Spanish frigate Santa Lucia surveyed the shoal. Colonial Spain, and later the U.S., effectively administered the shoal and its surrounding waters until the Philippines gained its independence in 1946. Philippine claims to the Spratlys’ Kalayaan Island Group (KIG) date back to 1956; the KIG was formally annexed by Philippine Presidential Decree No. 1599 in 1978.
Similarly, Mr. Xu asserts that Vietnam’s May 2009 submission to the Commission on the Limits of the Continental Shelf, in which Hanoi claimed an extended continental shelf in the South China Sea and reaffirmed its sovereignty over the Paracel and Spratly islands, was somehow linked to Mrs. Clinton’s visit. In fact, Vietnam submitted its claim on May 6 and 7 in order to meet the UN-established deadline – May 13, 2009. Vietnam’s title to the Paracel and Spratly islands is well founded in history and law. Vietnam exercised peaceful, effective and continuous administration of the Paracel Islands from the early 18th century until 1974, when Vietnamese forces were ejected in a short, bloody attack by China – a violation of Article 2(4) of the UN Charter.
Similarly, Vietnamese sovereignty over the Spratlys can be traced to French annexation and peaceful occupation of the archipelago in the 1930s. Taiwan’s illegal seizure of Itu Aba Island in 1956 and China’s invasion of the Spratlys in 1988 violate Article 2(4) and do not confer lawful title to the Spratlys to either nation.
Turning to Coercion
The wedge between China and Asean with regard to the South China Sea emerged from China’s end to its “peaceful rise,” as it turned towards coercion to bully its neighbours. Noteworthy examples of Chinese aggression include – harassing Vietnamese and Philippine seismic survey ships by cutting their seismic cables and threatening use of force (2011-2012); preventing Vietnamese and Filipino fishermen from pursuing their livelihood in their own exclusive economic zone (EEZ) by ramming and sinking their boats (2014-2016); seizure of Scarborough Shoal (2012) and Jackson Atoll (2015); conducting military exercises on James Shoal (2013-2014); interfering with the humanitarian resupply of Filipino marines aboard the BRP Sierra Madre at Second Thomas Shoal (2014) – a submerged feature on the Philippine continental shelf; conducting oil exploration with the deepwater oil rig Haiyang Shiyou 981 in Vietnam’s EEZ (2014-2016); construction of massive, mid-ocean artificial islands (2013-2016); establishing military installations and radar sites on them, and building airstrips on the features capable of accommodating every military aircraft in the People’s Liberation Army (PLA) inventory (2015-2016); and stationing surface-to-air missiles in the Paracels in order to expand its anti-access/area denial envelope (2016).
China took all of these actions and more despite its obligation to comply with the 2002 Declaration on the Conduct of Parties, in which the parties pledge to exercise self-restraint in conducting activities that could complicate or escalate disputes and affect peace and stability, and to refrain from action of occupying presently uninhabited features.
While all South China Sea claimants reclaimed land to artificially enhance islands in the region, the speed and scale of China’s campaign, combined with aggressive policing of its extravagant nine-dash line claim, have inspired fear.
Since December 2013, China has reclaimed more than 1,295ha of artificial territory. By comparison, Vietnam has reclaimed approximately 32ha; Malaysia, 28ha; the Philippines, 6ha; and Taiwan, 3ha.
In other words, China has reclaimed 17 times more artificial land in two years than the other claimants combined over the past 40 years, which accounts for nearly 95 per cent of all reclaimed land in the Spratly Islands.
Mr. Xu also claims Washington encouraged the Philippines to abandon bilateral negotiations with China in favour of litigation at the Permanent Court of Arbitration. The Philippines, however, neither sought nor needed U.S. approval, and was driven by its own frustration over 20 years of failed bilateral consultations and negotiations with China. The tribunal concurred, noting that “despite years of discussions aimed at resolving the… disputes, no settlement has been reached. If anything, the disputes have intensified.”
Freedom of Navigation Threat
The Ambassador suggests that the U.S. fabricated a threat to freedom of navigation and overflight, which he claims has never been at risk in the South China Sea. Since 2001, however, Chinese ships and aircraft have conducted countless provocative, dangerous and unprofessional challenges and intercepts of U.S. surveillance/ reconnaissance aircraft (such as EP-3 incident 2001, P-8 incident 2014, EP-3 incident 2016); U.S. warships (such as USS John S. McCain 2009, Cowpens 2013, Chancellorsville 2016); and U.S. military survey ships (such as USNS Bowditch 2001/2008, Sumner 2002, Impeccable 2009/2013, Victorious 2009).
China has also issued grave warnings to Indian warships (INS Airavat 2011 and Shivalik 2012) and Australian surveillance aircraft and warships (2015-2016) exercising high sea freedoms in the South China Sea.
Ironically, China is completely hemmed in by neighbouring EEZs, and the PLA Navy operates freely in its neighbours’ EEZs, as well as conducts spying in the U.S. EEZ off Hawaii and Guam.
The U.S. is a treaty alliance partner with five nations in the region – Australia, Japan, the Philippines, South Korea and Thailand.
Ambassador Xu claims that these long-standing relationships are militarising the region. But American naval force levels and those of its allies are essentially unchanged for 20 years.
Over the past five years, the U.S. transferred three repurposed U.S. ships to the Philippine Navy – BRP Gregorio del Pilar (2011), Ramon Alcaraz (2013) and Gregorio Velasquez (2016), while China launched three new warships in a single day last year! Likewise, the recent agreement between the U.S. and the Philippines to permit American forces occasional access to a handful of Philippine bases is part of the modest rebalance that arose after 15 years of breathtaking increases in the quality and quantity of Chinese warships and military aircraft.
The economic prosperity of the people of South-east Asia is best assured by the peace and security of enduring partnerships between the United States and its friends and allies, and a commitment by all states to a rule-based order in the world’s oceans.
If China is indeed a “strong supporter of a rule-based international order,” as the Ambassador claims, then Beijing has to act as though international law binds and restrains powerful states as well as the weak.
Until that occurs, China will never win the respect of those responsible nations who truly seek peace and prosperity in the Indo-Asia Pacific region.
Raul Pedrozo is a non-resident scholar in the Stockton Centre for the Study of International Law at the US Naval War College. James Kraska is a professor in the centre.
Featured Image: DigitalGlobe, via CSIS Asia Maritime Transparency Initiative.
By Dr. Van Jackson, Dr. Mira Rapp-Hooper, Paul Scharre, Harry Krejsa, and Jeff Chism.
South China Sea watchers know it as a strategically important and resource-rich area, crucial to the lifeblood of U.S. and Indo-Pacific economies. It is also a highly contested space, and the proximate sources of tensions are well-known. Ongoing sovereignty disputes among China, the Philippines, Vietnam, Taiwan, Malaysia, and Brunei lead to competition over hundreds of islands, reefs, and reclaimed land.
Yet underlying these resource and sovereignty tensions is something even more pernicious: The South China Sea is an opaque, low-information environment. Most South China Sea islets are hundreds of miles from shore, making it especially difficult for governments and commercial entities to monitor events at sea when they occur. This dearth of situational awareness worsens regional competition in the South China Sea. The region is already rife with rapid military modernization, resurgent nationalism, the blurring of economic and security interests, and heightened geopolitical wrangling with China (by great and small powers alike). Left unchecked, these pressures make conflict more likely by tempting major military accidents and crises that could drag down the economic and political future of the region.
These negative trends converging in the South China Sea also create missed opportunities among regional stakeholders for positive gains. South China Sea stakeholders have many transnational and economic interests of growing importance in common – from counterpiracy to maritime commerce and disaster response – but the competitive nature of the South China Sea today impedes collective action to solve shared problems. States have trouble engaging in cooperation, even when it would advance shared interests. This challenges the foundations of a stable regional order. The more states believe they live in an anarchical neighborhood, the more likely the region sees the worst of geopolitics: security dilemmas, arms races, and policies motivated by fear and greed rather than reason and restraint.
There is no silver bullet to entirely resolve the historical, strategic, and technological factors that are contributing to a more contentious security environment in Asia. Nevertheless, there remain practical and politically viable initiatives that could have a substantial effect in mitigating insecurities while fostering cooperation on issues of common interest.
Our new report with the Center for a New American Security—Networked Transparency: Constructing a Common Operational Picture of the South China Sea—proposes that enhanced, shared maritime domain awareness (MDA) among ASEAN states is a realistic means of addressing some of the underlying and proximate problems facing this strategic waterway. An MDA architecture may engender cooperation in a region devoid of trust, prevent misunderstandings, encourage operational transparency, and lead to capacity-building efforts that contribute to the regional public good. Our report explores how advances in commercial technology services, regional information-sharing, and security cooperation can contribute to enhanced regional security. We believe these advances can do so by moving the region closer to establishing a common, layered, and regularly updated picture of air and maritime activity in the South China Sea – a common operational picture (COP) for a tempestuous domain.
Transparency: The Next Phase of the Rebalance
Over the past year, U.S. policymakers made two major public commitments linking South China Sea transparency to larger goals of stability and assured access. The first, the Asia-Pacific Maritime Security Strategy, lays out what the Department of Defense sees as the most pressing challenges facing the region, as well as the most promising openings for future collaboration and improvement. The second, the Maritime Security Initiative, seeks to make these opportunities reality, funding regional capacity-building efforts to the tune of $425 million. Both initiatives rightly prioritize enhancing local partner military abilities, regional cooperation, and maritime domain awareness in the South China Sea, but they focus much more on framing past actions and justifying present initiatives than on laying out a road map for the future.
Our report builds on these initiatives, prescribing for the United States a maritime domain awareness road map comprising four broad lines of effort:
Coordinated capacity-building among a concert of outside stakeholder powers;
A U.S.-centric effort relying heavily on U.S.-controlled information collection and distribution;
Expansion of the capacity and reach of extant institutions that perform maritime awareness and information-sharing functions in the region; and
An inclusive approach that empowers regional institutions and relies on private-sector partnerships.
Each of these strategies—detailed at length in our report—prioritizes different ways of enhancing maritime domain awareness, and each has distinct benefits and drawbacks. In aggregate, the types of activities constituting these strategies offer policymakers menus from which they can pick and choose to build better maritime domain awareness given political realities, cost constraints, trust, and other salient conditions that may shift over time. Advancing shared situational awareness in practice will likely require drawing on all four strategic approaches, and our report identifies several key near-term tasks for policymakers and operators to render the region’s most volatile waterway into an open, transparent, and stable one.
Dr. Van Jackson is an Adjunct Senior Fellow at CNAS and an Associate Professor in the College of Security Studies at the Daniel K. Inouye Asia-Pacific Center for Security Studies. The views expressed are his own.
Dr. Mira Rapp-Hooper is a Senior Fellow with the Asia-Pacific Security program at CNAS.
Paul Scharre is a Senior Fellow and Director of the 20YY Warfare Initiative at CNAS.
Harry Krejsa is a Research Associate with the Asia-Pacific Security program at CNAS.
Jeff Chism is a Commander in the U.S. Navy and at the time of writing was a Military Fellow at CNAS. The views expressed are his own.
This is the fifth installment in a five-part series summarizing and commenting the 5 December 2014 US Department of State “Limits in the Seas” issue explaining the different ways in which one may interpret Chinese maritime claims in the South China Sea. It is a long-standing US policy to try to get China to frame her maritime claims in terms of UNCLOS. Read part one, part two, part three, part four.
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Whereas the assertion that China has not actually made a claim may not be shared by everybody, in particular given the language flowing from Beijing which the DOS report itself cites, the reference to the “high seas” between mainland China and some islands seems stronger proof that Beijing was not making a historic claim. However, we must again stress that this would be the case if we followed the prevailing interpretation of the law of the sea, but there is no reason why China should adhere strictly to it, and even less that Beijing should not have changed her mind since 1958, when she had little more than a coastal navy and her economy was closed and in tatters. It may be true, as the report notes, that the 1958 Declaration only made a historic claim to the Bohai (Pohai) gulf in northeastern China, but again this should perhaps be judged from a wider historical perspective. After 1949 the PRC took a much more uncompromising stance concerning its North-East than its South-East (and wider maritime) borders. With a pragmatic arrangement in place with the United Kingdom concerning Hong Kong, and a strong economic and political relation with the Soviet Union, it was at the other end of the country where, in 1950, Beijing (not without an intense internal debate given the state of the country), decided to resort to force to prevent the presence of hostile forces close to her border, intervening in the Korean War, pushing back the advancing Allied forces and reversing the impact of the Inchon landing, ultimately forcing a stalemate on the ground. In 1958, just five years after the Korean armistice, nearby waters may have thus been much more present in Chinese leaders’ minds. In addition, these were also the waters directly leading to Tianjin and Beijing, the venue for foreign interventions in both the Opium Wars and the Taiping Rebellion. It would not be until the late 1970s that China’s South-Eastern flank would begin to receive more attention, in part thanks to the rapprochement with the United States and in particular once economic growth and the country’s move to become a net energy and commodity importer turned the waters of the South China Sea into a vital venue and potential choke point. It is true that in December 1941 the loss of HMS Prince of Wales and HMS Repulse in the South China Sea had enabled the Japanese to land in Malaya and ultimately conquer Burma, closing the last land route to besieged Nationalist China, but this did not result in a comparable imprint on China’s historical consciousness, among other reasons because the episode did not involve Chinese naval forces and was subsumed into a much larger, dramatic, and quickly-developing picture.
Vietnamese-Americans demonstrating against Chinese claims in the South China Sea. Note the banner in favor of US ratification of UNCLOS.
Rejecting the validity of a possible historic claim by China. Concerning whether, if China “Made a Historic Claim”, it would “have Validity”, the DOS paper insists that “such a claim would be contrary to international law”, stressing the limited degree to which UNCLOS recognizes this category of claims, as evidenced by its “text and drafting history”. The text argues that “apart from a narrow category of near-shore ‘historic’ bays” in Article 10, and “historic title” concerning “territorial sea boundary delimitation (Article 15)”, “modern international law of the sea does not recognize history as the basis for maritime jurisdiction”, citing the Gulf of Maine ICJ case. It also underlines the fact that UNCLOS provisions concerning the EEZ, continental shelf, and the high seas “do not contain any exceptions for historic claims” to the detriment of coastal states and all estates enjoying certain freedoms. Concerning fisheries, the report acknowledges that UNCLOS refers to “the need to minimize economic dislocation in States whose nationals have habitually fished” in the EEZ (Article 62(3)) and to “traditional fishing rights and other legitimate activities” (Article 51), but restricts the impact to the possible granting by one state to another of fisheries resources “based on prior usage”. The text stresses that no such traditional fishing practices can “provide a basis for sovereignty, sovereignty rights, or jurisdiction,” adding that UNCLOS rules on oil and gas development contain no “exception for historic rights in any context.” Again we note how a purely legal report like this may be missing part of the picture, given the great importance that fishing vessels have in the ongoing conflict over the South China Sea, where they are one of the pillars of asymmetric naval warfare.
Chinese scholars Gao and Jia have argued that UNCLOS does not regulate “historic title” and “historic rights,” which fall instead under the purview of general international law. In their view, UNCLOS “was never intended, even at the time of its adoption, to exhaust international law. On the contrary, it has provided ample room for customary law to develop and to fill in the gaps that the Convention itself was unable to fill in 1982” as clear from its preamble, which reads “matters not regulated by this Convention continue to be governed by the rules and principles of general international law.” The DOS report explicitly rejects this position, saying that “it is not supported by international law” and goes against the “comprehensive scope of the LOS Convention.” Experts like Mark Valencia, on the other hand, hold that China’s posture may be compatible with the international law of the sea.
The text does not stop at arguing that it is not open to a state to make historic claims based not on UNCLOS but on general international law, laying down a second line of defense. It explains that, “even assuming that a Chinese historic claim in the South China Sea were governed by ‘general international law’ rather than the Convention,” it would still be invalid since it would not meet the necessary requirements under general international law, namely “open, notorious, and effective exercise of authority over the South China Sea,” plus “continuous exercise of authority” in those waters and “acquiescence by foreign States” in such exercise of authority. Furthermore, it explains that the United States, which “is active in protesting historic claims around the world that it deems excessive,” has not protested “the dashed line on these grounds, because it does not believe that such a claim has been made by China,” with Washington choosing instead to request a clarification of the claim. Whether this view is also meant to avoid a frontal clash with Beijing, in line with the often state policy goal of “managing” rather than “containing” China’s rise, is something not discussed in the text.
The report concludes by criticizing another view put forward by Gao and Jia, namely the relevance of claims made before the advent of UNCLOS. While these two scholars argue that “In the case of the South China Sea as enclosed by the nine-dash line, China’s historic title and rights, which preceded the advent of UNCLOS by many years, have a continuing role to play,” the DOS paper says that “The fact that China’s claims predate the LOS Convention does not provide a basis under the Convention or international law for derogating from the LOS Convention,” adding that “permitting States to derogate from the provisions of the Convention because their claims pre-date its adoption is contrary to and would undermine” the convention’s “object and purpose” stated in its preamble to “settle … all issues relating to the law of the sea.”
Conclusions. Long-standing American policy towards China stresses the need to manage the latter’s rise, so that it does not threaten the post-Second World War system, based among others on freedom of navigation and a ban on territorial expansion as a legitimate causus belli. As a result, Washington has often called on Beijing to clarify her claims on the South China Sea, in an attempt to constrain them while avoiding a frontal clash. This position also seeks to reinforce the perception that the United States focuses on the rule of law at sea, rather than on supporting one claimant against the other over disputed waters. The DOS document, in line with this approach, carefully dissects Chinese claims, analyzing whether they may be compatible with standard American interpretations of international Law of the Sea. The conclusions are rather pessimistic, exposing how, despite having ratified UNCLOS, the Convention’s provisions are not seen in the same light by Beijing and Washington. This should not surprise us, since international law seeks to constrain power but at the same time it is shaped by it, thus as countries rise they seek to play a greater role in the fate of rules and principles. In the case of China this is even clearer due to historical perceptions that it was to a large extent seaborne power which subjected the country to a semi-colonial status for a whole century. If Beijing’s claims in the South Chinese Sea cannot be seen in the light of UNCLOS, the question arises what ultimate Chinese goals are. Could this be the subject of a future paper by the Department of State? Or does Washington prefer to wait until the international arbitration case launched by Manila concludes? While the second option seems more likely, as time goes by the idea that China’s rise may be shaped, rather than constrained, increasingly seems less and less realistic. However, if the time comes to draw a line in the sand, a whole of government effort will be needed, going beyond the naval circles that to date have been most vocal in articulating the need to resist Chinese expansion.
Alex Calvo is a guest professor at Nagoya University (Japan) focusing on security and defence policy, international law, and military history in the Indian-Pacific Ocean. Region. A member of the Center for International Maritime Security (CIMSEC) and Taiwan’s South China Sea Think-Tank, he is currently writing a book about Asia’s role and contribution to the Allied victory in the Great War. He tweets @Alex__Calvo and his work can be foundhere.
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