Category Archives: Territorial and Law of the Sea Disputes

United Nations Convention on the Law of the Sea, International Maritime Organization, and international maritime law.

Asia-Pacific, Territorial and Law of the Sea Disputes

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

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By Alex Calvo

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.

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Asia-Pacific, Territorial and Law of the Sea Disputes

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

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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.

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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.”
“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. 

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.

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Asia-Pacific, Territorial and Law of the Sea Disputes

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

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By Alex Calvo

Introduction: restatement or small Filipino victory? Manila’s international arbitration bid has been repeatedly rejected by Beijing, which argues that it does not fall under the compulsory arbitration provisions of UNCLOS. Even after the Court ruled on jurisdiction, on 29 October 2015, China stuck to this position, as clear from an official statement the following day. However, despite repeatedly refusing to appear before the court, last year Beijing chose to issue a formal document stating her posture. For some this may simply be a restatement of China’s position, confirming that it will not take part in the proceedings. For others, it amounts to a small victory for the Philippines and the rule of law at sea, since China has finally been unable to completely ignore the proceedings. Whatever one thinks about it, it is useful to examine the document, dated 7 December 2014 (unclear whether any pun intended), while we wait for the Permanent Court of Arbitration to hold the first oral hearings on the substantive aspects of the case, scheduled for late November 2015. We shall be doing so in this four-part series.

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Chinese attitudes towards international law. Post-Mao China has followed a somewhat contradictory approach to international law. To a large extent, this mirrors the country’s complex domestic relationship with the concept of the rule of law. On the one hand, China’s reopening of her law schools after the Cultural Revolution and huge expansion of the legal profession and the practical, day to day, presence of the law, has led to a similar move in the international arena. However, this greatly expanded role of the law both domestically and internationally has been accompanied, in the internal domain, by a persistent rejection of the concept of “rule of law”, authorities rather leaning towards “rule by law.” In Chinese foreign relations, international law has had to contend with two obstacles. First, there is a mistrust of international tribunals, and the fear that they may impinge on Chinese sovereignty. Moreover, the South China Sea has been defined as a “core national interest,” although the exact meaning of this term may not be completely clear. Second, with the notion that public international law is a creature of Western nations and thus inextricably linked to a historical period of foreign domination that only began to be reversed after the 1949 Communist victory, or now that Chiang Kai-shek seems to be enjoying some sort of rehabilitation in China the 1943 Cairo conference. This applies particularly to the law of the sea, seen as unfairly constraining the legitimate aspirations of a nation that has grown increasingly dependent on maritime trade and which feels surrounded by a chain of islands in hostile hands.

The paper’s purposes, according to Beijing. After an introduction, making it clear that issuing the paper does not amount to taking part in the arbitral proceedings, the text lists in Paragraph 3 the main purposes of the paper, each such purpose covered in sections II to V. These goals are first of all (Section II, Paragraphs 4-29) to stress that the case concerns “the territorial sovereignty over several maritime features in the South China Sea,” which, contrary to Filipino assertions, “is beyond the scope of the Convention and does not concern the interpretation or application of the Convention.” Section III, Paragraphs 30-56 explains that “China and the Philippines have agreed, through bilateral instruments and the Declaration on the Conduct of Parties in the South China Sea, to settle their relevant disputes through negotiations” and that the arbitration proceedings are thus a breach by Manila of “its obligation under international law.” Section IV, Paragraphs 57-75 explains Beijing’s position that, “assuming, arguendo, that the subject-matter of the arbitration” was interpreting or applying UNCLOS, this would still be “an integral part of maritime delimitation” thus falling squarely within China’s derogation from compulsory arbitration. Section V, Paragraphs 76-85 underlines that “the Arbitral Tribunal manifestly has no jurisdiction over the present arbitration” and defends the view that China’s refusal to take part in the proceedings stands “on solid ground in international law.” These sections are followed by a set of Conclusions (Section VI, Paragraphs 86-93).

The 1898 Treaty of Paris in the PRC’s narrative of the conflict. In Section II, the document (5) explains that “Prior to the 1970s, Philippine law had set clear limits for the territory of the Philippines, which did not involve any of China’s maritime features in the South China Sea,” citing Article 1 of the 1935 Constitution, which reads “The Philippines comprises all the territory ceded to the United States by the Treaty of Paris concluded between the United States and Spain on the tenth day of December, eighteen hundred and ninety-eight, the limits of which are set forth in Article III of said treaty, together with all the islands embraced in the treaty concluded at Washington between the United States and Spain on the seventh day of November, nineteen hundred, and the treaty concluded between the United States and Great Britain on the second day of January, nineteen hundred and thirty, and all territory over which the present Government of the Philippine Islands exercises jurisdiction.” It added that the 1961 Philippine Republic Act No. 3046, titled “An Act to Define the Baselines of the Territorial Sea of the Philippines,” confirmed such territorial limits.

Replica of one of Admiral Zheng He's treasure ships, built in 2014. As China turns to the sea, she is stressing his figure.
Replica of one of Admiral Zheng He’s treasure ships, built in 2014. As China turns to the sea, she is stressing his figure.

Setting aside for a moment whether Manila has indeed redefined the limits to her national territory, this is potentially very significant because as reiterated in last year’s US Department of State “Limits on the Sea” No 143 paper, devoted to China, Washington has persistently stressed that it was taking no sides concerning the ultimate issue of sovereignty. Yet, while this may be sustainable in the case of other territorial disputes in the region, the case of the Philippines is rather different, given that the country was under US sovereignty for more than half a century. Thus, whatever one makes of Beijing’s case, it is difficult not to agree that past treaties signed by the United States may be relevant to the issue at hand. A question may be what, if any, may be Beijing’s motivation in bringing up such treaties, in addition to providing arguments in favor of its posture concerning the extent of Filipino territorial claims. Is Beijing perhaps hoping to prompt Washington to publicly comment on the matter in a way that may be detrimental to Manila? Or to quietly lean on the Philippines not to go too far? These may be speculative questions, yet ones difficult to avoid given the complex nature of the South China Sea dispute, with not only different immediate players, that is the coastal states, but plenty of other interested contenders, including the United States, Japan, India, and Russia. China’s document also refers to a UK-US Treaty, and while London has traditionally chosen a low profile posture in the region, it has recently been upgrading defense cooperation with Japan. Going back to Washington, the possible impact of past treaties and other diplomatic practice has already been considered important by observers in the case of Taiwan and the Senkaku/Diaoyu/Diaoyutai Islands, given Formosa’s change of status following the end of the Second World War and the American occupation of the Ryukyu Archipelago for three decades after its conclusion. However, the connection with the United States is much closer in the case of the Philippines, and Washington’s non-committal posture on sovereignty may come under increased pressure, although as mentioned this could result from different, even opposed motivations. 

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.

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Asia-Pacific, Territorial and Law of the Sea Disputes

South China Sea: FONOPS Not Enough, Time for Boots on the Ground, Active Neutrality

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By Alex Calvo

After a long wait, the US Navy resumed FON (Freedom of Navigation) operations in the South China Sea (last carried out in 2012) on 27 October, with USS Lassen sailing within 12 nautical miles of Subi and Mischief Reefs, and conducting actions incompatible with innocent passage, in order to make it clear Washington does not recognize any territorial waters arising from the artificial islands built by Beijing through reclamation on low-tide elevations. On the other hand, in line with long-standing American policy, the US also emphasized that it was not taking sides concerning the underlying territorial disputes, and that freedom of navigation operations were aimed at any excessive maritime claims, underlining this by also sailing through waters around features claimed by Vietnam and the Philippines. Commentary has focused on the need for further FON cruises, and on China’s response, including the possibility of Beijing declaring an ADIZ (Air Defense Identification Zone).

Freedom of Navigation is indeed one of the pillars of both the post-war open economic system drawn up during the Second World War, and of the traditional American reliance on the ability to move troops by sea (in line with the British Empire, and its tandem Royal Navy – Indian Army). Therefore, contesting Chinese maritime claims is indeed an important policy goal, and furthermore one that should be shared by other maritime democracies. However, we must ask ourselves whether this is all. Furthermore, the time may have come to consider whether agnosticism on territorial claims is a sustainable policy, and whether the US can afford to see allies like the Philippines lose further territory to the PRC.

Even if FON operations become a regular feature and China’s extensive reclamation work turns out to pose no obstacle to peace-time navigation by merchantmen and warships, we would be fooling ourselves if we thought that there is no price to pay for failing to confront Beijing. First of all, an extensive network of man-made islands could make it much more difficult to operate in the region in the event of hostilities. Second, by condoning the violent taking of contested territories, the principles enshrined in the UN charter and in UNSC Resolution 502 would risk becoming irrelevant.

Concerning the latter, being neutral concerning territorial disputes can be interpreted in two ways. Up to now in the South China Sea it has meant Washington not supporting any competing claims. However, this is no longer enough. The Philippines’ marines have been making a heroic stand at BRP Sierra Madre, guarding Second Thomas Shoal (Ayungin Shoal / Ren’Ai Jiao) while surrounded by hostile ships bent on preventing their resupply. However, given the much larger forces available to China, this strategy may not be sustainable. Furthermore, despite an existing mutual defense treaty and growing capacity building assistance (also provided by Japan), Washington has de facto been signaling Beijing that the occupation of the Second Thomas Shoal would not be considered an attack on Filipino territory. This increases the risk of a miscalculation, should China come to believe that the US will stand on the sidelines in such an scenario. Mutual defense treaties are not of much use if restricted in their geographical scope.

An alternative policy would be to embed USMC personnel in their Filipino counterparts, while explicitly announcing that despite still not taking sides on the ultimate issue of sovereignty, the US considered the Second Thomas Shoal (and other disputed territories currently under actual control by Manila) to fall within the purview of the US-Philippines Mutual Defense Treaty. American policy would then be to actively seek to prevent changes on the ground, including expelling Filipino military personnel from the Second Thomas Shoal, while still pressing for a mediated (or arbitrated) solution, in line with US support for the international arbitration bid currently under consideration by the Permanent Court of Arbitration. Preserving the status quo requires extensive work on the BRP Sierra Madre, or its replacement by another ship or structure. In other words, America would be moving from passive neutrality to active neutrality. From merely declaring that differences must be settled peacefully in accordance to international law, to helping freeze the status quo so that revisionist powers are not tempted to gain in the field of battle what they should only be claiming in the diplomatic table or the courtroom.

FONOPS-body

A precedent for this are Japan’s Senkaku Islands, also claimed by China and Taiwan. After some doubts and conflicting reports on whether the US-Japan Security Treaty extended to them, Washington explicitly announced that they did, while remaining non-committal about ultimate sovereignty. Japan, having greater maritime and naval capabilities than the Philippines, employs a different strategy to protects the islands, shielded by the country’s coastguard without any permanent ground deployment. Should Tokyo decide, or be forced, to permanently deploy some ground troops, it would also be positive to see USMC personnel embedded in them. We could also mention the occupation of Iceland during the Second World War, before Pearl Harbor.

Being neutral in a territorial dispute does not just mean supporting its peaceful resolution in accordance with international law. That is only the case when all sides involved renounce the use of force. When one refuses to take this step, and regularly resorts to it, notwithstanding the fact it is mostly of the non-lethal kind, the only alternative to appeasement is active neutrality, meaning a deployment designed to provide a tripwire, lessening the risks of miscalculation and signaling that aggression will not be condoned. Only this can provide the necessary incentives for a future peaceful resolution of the conflict, where Washington would indeed be neutral concerning its outcome, yet having avoided neutrality regarding how it came about.

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.