Many questions have arisen about the USS LASSEN Freedom of Navigation Operation (FONOP) that occured at Subi Reef on Oct 27. Last week, we discussed those issues, the South China Sea, and future FONOPS with Timothy Choi, author of “Why the US Navy’s First South China Sea FONOP Wasn’t a FONOP” and Ankit Panda, Editor at the Diplomat.
God and The Great Naval Theorist
God and Seapower: The Influence of Religion on Alfred Thayer Mahan by Suzanne Geissler. USNI Press, October 15, 2015. 280pp. $39.95.
For many of us, Alfred Thayer Mahan is certainly no stranger. His theories and writings have been talked about and analyzed for years. They have been savored by everyone from the President of the United States, the lowly Naval War College graduate, and many others around the world. Thus, it is always refreshing to read something new and interesting about this well-known and often talked about historical figure. Suzanne Geissler has done just that. Professor Geissler has delivered some fresh insights and probably stirred some debate with her new book, God and Seapower. The book is a fascinating look into Mahan’s life by focusing on his religious beliefs. At 280 pages this book is a nice size; something that can be read in a week and yet she still manages to cover ATM’s life, from childhood to wise naval theorist, quite nicely. Recently I had the opportunity to interview Professor Geissler about her new book. What follows is the transcript of our interview which was conducted over e-mail.
Why Mahan and Religion? Why did you want to write this book?
My specialty is American religious history, but I have always been interested in military and naval history, more as a hobby than a professional specialization. Many years ago – I don’t remember why or in what context – I read that Mahan was an Episcopalian. I’m an Episcopalian, too, so I just filed that away as an interesting factoid, but didn’t think much more about it. Then some years later I read Robert Seager II’s biography of Mahan and came away disappointed in the book, but intrigued further about Mahan’s religious involvement. I did a little digging and discovered that he wrote extensively about religion and church issues. There was tons of stuff out there that no one had ever looked at in a serious way. I thought there had to be a significant story here.
The book, in part, is a counter argument to one of Mahan’s most well-known biographers, Robert Seager II. Readers will quickly realize that you disagree with many of Seager’s opinions. Who was Seager and why do you disagree with him so strongly?
Seager was a former merchant mariner who had become an academic historian. A few years prior to his biography coming out he, along with Doris Maguire, had co-edited Mahan’s papers. He used that as the raw material for his biography of him. The problem with the book, as I think is readily apparent after only reading a few pages, is that Seager thoroughly disliked Mahan. Now I’m not saying that a biographer has to like his subject, but there needs to be at least an attempt to be fair and look at the sources in an impartial manner. But Seager so disliked Mahan – as though he knew him personally and couldn’t stand the guy – that it colored the entire book. Everything Mahan did throughout his whole life, from the trivial to the monumental, is presented in the worst possible light. Also, the whole book is written in a sarcastic tone – what today we would call snarky – that becomes really tiresome after a while. My biggest beef with Seager is that he loathes – and I don’t think that’s too strong a word – Mahan’s religious devotion and piety and thinks it is the root of all that makes Mahan so – and these are Seager’s words – arrogant, egotistical, racist, to name a few. Seager is entitled to his own opinion, of course, but the more I got into the sources, Mahan’s own letters and writings, the more I saw that Seager had no interest in being fair or even attempting to understand Mahan in the context of his own time. My other complaint about Seager is that on numerous occasions he either disregarded what a source clearly said or twisted it out of context in order to present Mahan in a bad light.
On what points do you agree with Seager on Mahan?
The only thing I agree with Seager on is his statement that Mahan wrote the most influential book by an American in the nineteenth century.
You mention Mahan’s father and uncle were two of the biggest religious influences in his life. How so?
Mahan’s father, Dennis Hart Mahan, was a former Army officer and professor of engineering at West Point for almost fifty years. He was a monumental figure at West Point and in the Army officer corps. In those days the field of military engineering included strategy, tactics, and military history. So Alfred had a role model of exceptional brilliance whom Army officers – including people such as Grant and Sherman – held in awe. Alfred got his introduction to military history through his father. But Dennis was also a devout Christian and Episcopalian who modeled those attributes to his son. Dennis epitomized the 19th– century ideal of a “Christian gentleman” but in a way that was genuine, not superficial. Milo Mahan, Dennis’s younger half-brother, was an Episcopal priest and professor of church history at General Theological Seminary, the Episcopal seminary in New York City. Alfred lived with him for two years (when Alfred was fourteen – fifteen and attending Columbia University), a period which imbued him with Milo’s High Church piety. For the next fourteen years or so, Milo was Alfred’s main theological mentor. They had an extensive correspondence and Milo provided Alfred with reading lists of theological works which Alfred read on long sea voyages. As Alfred told his fiancée, Milo was the man he went to with any biblical or theological questions. All that reading, under Milo’s guidance, in effect gave Alfred the equivalent of a seminary education.
Mahan’s father, I didn’t realize, was well-known in political and military circles in the 19th century. When did Mahan step out of his father’s shadow?
One of my favorite anecdotes occurs in the waning days of the Civil War. Alfred is on Admiral Dahlgren’s staff stationed off Savannah when the victorious General William Tecumseh Sherman arrives in the city. Alfred goes ashore to see Sherman bearing a congratulatory telegram from his father. Sherman greets him by saying “What, the son of old Dennis?” Certainly, for more than half of his active duty career Alfred was best known for being Dennis’s son. He doesn’t really emerge from his father’s shadow until the publication of his first book The Gulf and Inland Waters in 1883 when he’s forty-three. This book leads to his appointment at the Naval War College which in turn leads to the publication of his lectures as The Influence of Sea Power Upon History.
Mahan loved his dog, Jomini. And as you quote, Mahan believed his dog would go to heaven when he died. Was this belief, that a dog’s soul goes to heaven, abnormal for an Episcopalian at this time?
Mahan never expounds on the reasons that he believes his dogs, Jomini and Rovie, went to heaven, so I have to extrapolate based on what I know about this issue and Mahan’s own beliefs.
As I understand it, the Roman Catholic Church teaches that animals don’t go to heaven because they don’t have souls. Most Protestants, though, considered the “soul” issue irrelevant and based their view – that we will see our beloved pets in heaven – on the fact that animals clearly are part of creation and God has promised that all creation will be redeemed (Romans 8:21). Mahan knew his Bible thoroughly so I’m willing to bet that he would have based his view on this scripture rather than abstract speculation on whether animals have souls or not.
One of your more, shall we say, contentious statements, is that Mahan’s The Influence of Sea Power Upon History was inspired by God. Could you expand on this?
Well, I don’t claim that, but Mahan certainly did. In his autobiography, From Sail to Steam, he made reference to his “special call” to be a naval historian, or, more specifically, to be the expositor of the importance of sea power on the course of history. He never claimed that he discovered the concept. He was always generous in crediting previous historians whose thought influenced his. But he claimed that “in the fullness of time” – a biblical expression — the call was given to him to be the one who explained it and drew the correct implications from it.
What did Mahan think of Catholics? Other Christians? Other religions?
I’m simplifying a lot here, but, basically, Mahan had a kind of layered view of religious categories. Christianity was better than other, i.e. non-Christian, religions (though Judaism was in a special category as Christianity’s older brother, so to speak). Within Christianity, Protestantism was best, and within Protestantism, Anglicanism was best. Having said that, I should point out that the groupings within Christianity related mainly to polity (types of church governance), liturgy (forms of worship), and history. Mahan clearly had his preferences, but he never claimed that, for example, there was only one true church. For him the most important thing was to be a Christian. If you loved Jesus and accepted him as Lord and Savior, it did not matter what denomination you belonged to. In a similar vein, Mahan once stated that he would cooperate with any Christian group in evangelistic or missions work as long as such a group did not include Unitarians. He did not consider them Christians since they did not recognize the divinity of Jesus. One of the things that makes Mahan so fascinating to me is that he’s not easily pigeon-holed into conventional religious categories. On the one hand he’s very much a High Church Episcopalian, but he’s also very much a born-again evangelical.
Was Mahan able to separate his writing? That is, did he keep naval theory separate from his religious writing? It seems like he was able to live in two different worlds on the page, yet his religious life infused everything he did.
Mahan was actually quite sophisticated in his historical methodology. He understood that history and theology were two different fields, each with its own ways of interpreting events. As a Christian he believed that God was the sovereign creator and ruler of the universe and God’s decrees always came to pass. However, he understood that God operated through what theologians called “secondary causes,” that is the choices made by human beings and their resultant actions. A historian deals with secondary causes. It was extremely rare for Mahan to speculate on God’s purposes in his naval history writings.
For those readers that wish to read a book on Mahan after they read your book, what do you recommend?
I recommend Jon T. Sumida’s Inventing Grand Strategy and Teaching Command: The Classic Works of Alfred Thayer Mahan Reconsidered. This is a fascinating book full of original insights on Mahan.
Are there other historians working today that do not have a theology background, yet pay serious consideration to their subject’s religious belief? Specifically, military biographies?
This is difficult for me to answer since I don’t really know who is working on what topics, especially in military biography. But the two naval historians who were most helpful and encouraging to me when I undertook this project, Jon Sumida and John Hattendorf, are both very interested in religion and the role it plays in people’s lives. And they both have a positive view of it rather than a negative one. Hattendorf, particularly, is very knowledgeable about the Episcopal Church. In his editing of the writings of Admiral Stephen B. Luce he does incorporate a discussion of Luce’s piety.
Why do you think religion so often takes a back seat when we discuss historical figures — past or present? Or does it?
As I mentioned, my field is religious history, so for most of the people I read and study about, by definition, religion is important. However, you’re right, in other historical sub-fields religion is usually ignored or misunderstood. For example, Martin Luther King, Jr. comes to mind. Even in a case such as that, where you would think the religious angle would be obvious – his being a clergyman and pastor — there are some writers who have downplayed that and made his story one of “social justice” and politics, completely ignoring the biblical roots of his thought, not to mention his dramatic conversion experience. I don’t like to generalize about historians, but in order to answer your question, I’ll do it anyway! Most present day historians are either indifferent or hostile to religion, especially the notion of an individual having a personal encounter with God, or believing that God has called that person to a specific task in life. Some writers see this sort of thing as just an eccentricity, not necessarily bad, but of no real significance. Others take a more negative view and see religious faith as a personality defect that could have pernicious consequences. One thinks of all the historians who have blamed the defects of the Versailles Treaty on Woodrow Wilson’s Presbyterian piety.
Suzanne Geissler received her Ph.D. in history from Syracuse University’s Maxwell School of Citizenship and Public Affairs. She also holds a Master of Theological Studies degree in church history from Drew University. She is professor of history at William Paterson University in Wayne, NJ. Her previous books include Jonathan Edwards to Aaron Burr Jr., Lutheranism and Anglicanism in Colonial New Jersey, and “A Widening Sphere of Usefulness”: Newark Academy 1774-1993.
Lieutenant Commander Christopher Nelson is a US naval intelligence officer and recent graduate of the US Naval War College and the Maritime Advanced Warfighting School in Newport, Rhode Island. The opinions above do not necessarily reflect those of the US Department of Defense or the US Navy.
October Member Round-Up Part Two
Welcome to Part Two of the October 2015 Member Round-Up, covering the second two weeks of the month. Over the past two weeks the U.S. freedom of navigation operations (FONOPS) in the South China Sea have dominated the attention of the maritime security community. Although the incident was a significant development in the region, CIMSEC members have focused on several other international maritime issues in addition to the FONOPS. These issues include Russian operations in the Middle East, Canada’s blue-water naval capabilities, strategic alliances in the Indo-Pacific and features of the U.S. Navy’s procurement strategy requirements.
Beginning the Round-Up at The National Interest, Scott Cheney-Peters discusses the necessity of U.S. FONOPS directed at China’s artificial islands in the South China Sea. Mr. Cheney-Peters explains that the U.S. position was twofold; it was critical to uphold commonsense interpretation of the U.N. Convention on the Law of the Sea while also reassuring commitment to regional allies concerned with China’s growing military capabilities. Mr. Cheney-Peters also explains the FONOPS repercussions and implications in an article at Sputnik.
Bryan Clark is interviewed at the Center for Strategic and Budgetary Assessments concerning the U.S. Navy’s freedom of navigation maneuvers and the potential consequences of such operations. He explains the possibility that these U.S. operations may initiate FONOPS response equivalents off the U.S. West Coast from PLA-N vessels. However, Mr. Clark also notes that inaction would abandon sovereignty disputes over the artificial islands ceding the region to the Chinese, a circumstance at odds with regional U.S. interests.
Mira Rapp-Hooper, at Lawfare, explains the U.S. FONOPS in the South China Sea through an international law context. The objective of her article is to outline the key legal and factual features of freedom of navigation while accurately describing the relationship between the military operation itself and maritime law. Also following a legal perspective, Alex Calvo for The Asia-Pacific Journal provides a comprehensive analysis on the ongoing legal dispute in the South China Sea. Mr. Calvo explains that the arbitration case currently being held in the Netherlands will contribute to the future dynamic of the entire South China Sea region and the ability for international law to resolve territorial conflicts peacefully and without recourse to military options.
Concluding the Round-Up’s discussion on the South China Sea FONOPS, James Goldrick at The Interpreter discusses the political and strategic need for Australia to assert freedom of operation throughout China’s artificial island network and its corresponding contested waters. Mr. Goldrick maintains that Australia should dispatch a naval force to operate in the vicinity of the Chinese artificial islands to demonstrate commitment to upholding international law and support for regional allied interests.
Darshana Baruah, at Offiziere, discusses the developing relationship in the Indo-Pacific between India and Australia. The article explains that the recent completion of the first bilateral naval exercises between the two countries indicates an aim to strengthen interoperability between their respective navies for the purpose of increased maritime security. Further to this, Ms. Baruah identifies the U.S. rebalance to the Asia-Pacific and the rise of China as having contributed to geopolitical tensions in the Indo-Pacific region, which has resulted in strategic opportunities for Indo-Pacific actors to collaborate in bilateral or multilateral arrangements.
Bryan Clark, before the House Armed Services Seapower and Power Projection Forces Subcommittee, argued that the U.S. Navy must increase development of advanced undersea systems to sustain American dominance in undersea operations. Mr. Clark explains that U.S. undersea warfare capabilities face the threat of being effectively challenged as a result of new detection technologies and quieter submarine fleets being developed by U.S. competitors.
To conclude Part Two of the October Member Round-Up, Ken Hansen for The Conference of Defense Associations Institute discusses the loss of Canada’s two primary logistical ships and the implications the loss will have on the Navy’s operations. Mr. Hansen explains that the decommissioning of the HMCS Preserver and the major fire onboard the HMCS Protecteur has entirely eliminated the Navy’s ability to conduct global force projection operations due to a lack of at-sea replenishment. Mr. Hansen explains that the Canadian Navy has acquired Spanish and Chilean logistical ships for temporary use for blue-water training operations and to maintain task group readiness throughout the logistical ship replacement process.
Members at CIMSEC were also active elsewhere during the second part of October:
- Robert Farley, for The National Interest, discusses the complexities of allocating sufficient and appropriate resources to each branch of the U.S. military while maintaining a strategic outlook for the entire force as a whole.
- Chuck Hill, for his Coast Guard Blog, criticizes the lack of attention from both the U.S. Coast Guard and the U.S. Navy regarding EEZ enforcement in the Western Pacific.
- At The Diplomat, Ankit Panda discusses the first decision made by the Permanent Court of Arbitration (PAC) concerning the U.N. Convention on the Law of the Sea with regards to the Philippines v. China dispute. Mr. Panda clarifies that the PAC stated it was within the court’s jurisdiction to proceed with the evaluation of legal assertions in the South China Sea. Mr. Panda shares a second article describing a joint Japanese-U.S. naval exercise in the South China Sea where a U.S. Nimitz-class super-carrier and Japanese Akizuki-class destroyer were involved.
- Sam LaGrone, at U.S. Naval Institute News, examines the U.S. Air Force’s decision to contract Northrop Grumman to build the Long Range Strike Bomber for a unit cost of $564 million in fiscal year 2016 dollars. Mr. LaGrone in a second article discusses the USS Ronald Reagan’s decision to launch alert fighters to intercept two Russian surveillance aircraft that came within one nautical mile of the forward deployed carrier.
- James Stavridis in an interview with CNN discusses the potential Russian threat against trans-Atlantic fiber optic cables and the destabilizing consequences that would occur if Russia were to interfere with global communication-information networks.
- Dave Majumdar, for The National Interest, explains that Chinese naval surface combatants, Diesel-electric submarines and sea mines can provide effective military options for the PLA-N to combat U.S. regional influence in the South China Sea.
At CIMSEC we encourage members to continue writing, either here on the NextWar blog or through other means. You can assist us by emailing your works to dmp@cimsec.org.
Sam Cohen is currently studying Honours Specialization Political Science at Western University in Canada. His interests are in the fields of strategic studies and defence policy and management.
South China Sea: International Arbitration moves forward as PAC rules on Jurisdiction
By Alex Calvo
Introduction: the Philippines’ International Arbitration Case moves Forward
Despite Beijing’s refusal to take part in the proceedings, on 29 October the Court of Permanent Arbitration (PCA) issued a ruling on jurisdiction and admissibility of the UNCLOS arbitration case launched by the Philippines against China. The Court unanimously decided that it had jurisdiction concerning seven of the fifteen claims put forward by Manila, with a decision on a further seven to be reached when considering their merits. The ruling by the PAC is thus a major victory for Manila and maritime democracies, since China’s view that the Philippines had promised to pursue only negotiations, and her assertion that no decision could be taken on maritime zones until delimitation had taken place, were rejected. While the decision on the merits of the case will have to wait until at least next year, and a ruling in favor of Manila does not guarantee in and by itself that Beijing will comply, this is nevertheless a major step forward for the notion that it is right plus might and not just might in isolation, which will determine the future of this vital sea.
Some Highlights from the Court’s Decision
The following are some of the potentially most relevant aspects of the Court’s decision, with the page in brackets for ease of reference.
First of all, the PRC is squarely treated as the defendant, notwithstanding the fact she is refusing to take part in the proceedings. Thus “The Parties to this arbitration are the Republic of the Philippines (the “Philippines”) and the People’s Republic of China (“China”)” (p. vii). To justify this, the Court cites Art 9 of Annex VII to the Convention, saying that “the non-participation of China does not bar this Tribunal from proceeding with the arbitration. China is still a party to the arbitration, and pursuant to the terms of Article 296(1) of the Convention and Article 11 of Annex VII, it shall be bound by any award the Tribunal issues” (p. 11). While this does not necessarily imply an ultimate ruling in favor of Manila, as stressed by the Court (“The Tribunal does not simply adopt the Philippines’ claims, and there can be no default judgment as a result of China’s non-appearance”), it amounts to a major defeat for Beijing, which has seen her stress on bilateral negotiations and position that Manila had agreed to exclusively pursue such venue dismissed. Furthermore, it also means that the view that Manila’s case implied (even if just implicitly) territorial delimitation and thus fell squarely within the PRC’s derogation from compulsory arbitration in such matters has also been defeated. This makes it more difficult for China to proceed as in the recent past with a gradual yet relentless expansion, where reclamation and militarization went hand in hand with appeals to dialogue and negotiation and repeated promises of respect for freedom of navigation and overflight. Thus, either China tones down her actions and becomes more pragmatic and conciliatory, as some observers believe she may, or she chooses to nakedly ignore international rules and institutions, as Japan did following the Manchurian Incident and subsequent Lytton Report and Stimson Doctrine.
Concerning China’s non-participation, the PAC explicitly acknowledge the 7 December 2014 position paper, not only referring to it but stating that its publication “facilitated the Tribunal’s task to some extent”. Thus, for the benefit of justice and the concept of equality of arms between the parties, the Court has clearly taken a pragmatic approach towards China’s decision to approach the PAC indirectly, not making a submission but instead publishing a position paper laying down her views and her response to the Philippines’ demands. This was already clear, as explained in the decision, when this summer on holding hearings on jurisdiction the Court provided the PRC “with daily transcripts and all documents submitted during the course” of those hearings. In a way we could see perhaps all this as evidence of some sort of pragmatic arrangement, or gentlemen’s agreement, whereby Beijing did not formally take part in the proceedings but was still informed in detail and had the chance to make her views known to the Court. As the ruling notes, “The Position Paper has since been followed by two letters from the Chinese Ambassador addressed to the members of the Tribunal and by regular public statements of Chinese officials that touch on the arbitration” (p. 41). This could of course go on in the next stage, as the Court deliberates on the merits. Beijing may stay aloof from the proceedings, as she has announced she will, while still interacting with the Court on a semi-official basis. However, this just means delaying the moment when Beijing, should the final ruling go against her, will have to decide whether to comply or not with that decision. In that case, even if the PRC’s leadership chooses pragmatism and accommodation, the CCP may find itself a prisoner of its own rhetoric, and the many years during which it has been telling the Chinese population that the country had “indisputable sovereignty” over the whole of the South China Sea. Thus, accepting the ruling may be no easy matter for Beijing, even if the will is there.
Concerning Bejing’s claims that the case amounts to an abuse of right, the Court rejects it, saying that “China has not made an application to the Tribunal pursuant to Article 294(1) of the Convention”, which would force it to decide whether it was the case, and “the Tribunal is therefore under no obligation to follow the procedure outlined in Article 294(2)”. Furthermore, the ruling states that “the procedure is appropriate in only the most blatant cases of abuse or harassment”, which is not the situation in the current proceedings (p. 43). Therefore, the PAC chooses instead to focus on jurisdiction. China may have considered that submitting an application under Article 294 UNCLOS would definitely be considered to amount to taking part in the proceedings. An alternative explanation is that Beijing preferred not to risk losing an early battle by having the Court formally determine that the case did not constitute an abuse of right, choosing instead to simply use this term to criticize it in the political arena.
With regard to Beijing’s contention that it is impossible to rule on the exercise of maritime rights before first ruling on the underlying territorial dispute, the Court is adamant that this is not the case, stating instead that it “does not see that any of the Philippines’ Submissions require an implicit determination of sovereignty” (p. 59-60). This notion that it is possible to first determine the interpretation of UNCLOS and whether a party’s actions conform to it, while leaving territorial delimitation to later negotiations or (non-compulsory) arbitration could be compared to the idea (put into practice by Taiwan and Japan in their Senkaku Islands fisheries agreement) that it is possible to first jointly manage and exploit natural resources, while again leaving territorial delimitation for later. This is a reminder of how the Philippines’ arbitration case and Taiwan’s East China Sea initiative (and its child, the Senkaku fisheries agreement with Japan), taken together, may point the way forward to a peaceful, international law-based approach to maritime territorial disputes in the Indo-Pacific Region. An informal Manila-Taipei-Tokyo democratic triangle may emerge as the seed around which a wider informal coalition may emerge, although of course for this to be effective its reach cannot be limited to the diplomatic and legal arenas. One thing is to stress the rule of law at sea and peaceful resolution of disputes in accordance with international law, another to wishfully think that this can take place without the possibility of resorting to force if necessary. National security and collective security are the other side of the coin, without which international law and the rule of law at sea cannot thrive and ultimately prevail.
The Tribunal notes, in line with long-standing comments by observers and other states, that “China has not, as far as the Tribunal is aware, clarified the nature or scope of its claimed historic rights. Nor has China clarified its understanding of the meaning of the ‘nine-dash line’ set out on the
map accompanying its Notes Verbales of 7 May 2009” (p. 62). This was precisely the motivation behind the US State Department’s Limits in the Seas issue No 143 devoted to Chinese claims in the South China Sea. Thus, although this is a matter reserved for the decision on the merits of the case, we could read the PAC’s ruling on jurisdiction as saying that the nine-dash line must be translated into claims under UNCLOS, since the Convention does not recognize any such concept. This makes it clear that Beijing is facing an uphill battle in seeking to convince the court that the nine-dash line can indeed be made to fit into UNCLOS. However, there is always the possibility that in its final ruling the Court will not declare the line as such to be contrary to UNCLOS, as requested by the Philippines, but instead take a softer, more pragmatic approach, and say that while not illegal per se, its meaning must be clarified by resort to those concepts such as the territorial sea and the EEZ laid down in the Convention. While the impact of such a ruling would not be as spectacular, it may be a way of avoiding cornering Beijing, leaving room for later negotiations and compromise, instead of making Beijing lose face in no uncertain terms. Such a ruling would allow both sides to claim victory. We should remember, in this regard, that international tribunals must often walk a fine line between the wish to uphold international law, and the need to ensure its effective implementation. Thus, rather than a perfect ruling with close to zero chances of settling the matter, the PAC may prefer a less than perfect text that can be used as a stepping stone towards a final settlement of the dispute.
Also interesting is the fact that the Court considers that no intervention by a third party is necessary in the proceedings, thus reinforcing the view that territorial delimitation is not at stake. This again is in line with Manila’s position, while not following “the Chinese Ambassador’s First Letter”, where he “did express serious concern and opposition to a procedure of ‘intervention by other States’”, in reference to Vietnam, “as being ‘inconsistent with the general practices of international arbitration’” (p. 73). Hanoi’s role in the proceedings, not formally a party but having made her own statement and attended this summer’s proceedings, shows how, and this is one of the aspects of the case which clearly worries China, the arbitration proceedings, although strictly speaking bilateral, have attracted not only the support of a wide range of countries, but limited participation by some of them. Taken together, it could facilitate cooperation among these countries, and furthermore could support the notion that China is the odd man out, and not just another claimant, in the South China Sea.
Concerning China’s assertion that the Philippines had agreed not to pursue arbitration, by among others signing the 2002 DOC (Declaration on the Conduct of Parties in the South China Sea), the Court considers that its “language is not consistent with the creation of new obligations but rather restates existing obligations pending agreement on a Code that eventually would set out new obligations”, adding that it basically reaffirms existing obligations and exhorts parties to create others at some point in the future (p. 83). Thus, the Court concludes that “the DOC was not intended to be a legally binding agreement with respect to dispute resolution”, and uses contemporary documents to support the view that it was instead “an aspirational political document”. In doing so, the PAC stresses statements by China herself, such as that in August 2000 by a spokesperson for the Chinese Foreign Ministry, who said that the “Code of Conduct will be a political document to promote good neighbourliness and regional stability instead of a legal document to solve specific disputes” (p. 84). This is significant at many levels. On the one hand it illustrates a very important general principle of international law, that someone cannot go against his own acts. On the other, it exposes the shallowness of bilateral and multilateral diplomacy in the South China Sea in recent years, full of smoke and grand sounding statements but rather short on substance. Other claimants may be wary of openly calling Beijing’s bluff for fear of appearing disrespectful, but the Court minces no words in its ruling on jurisdiction, providing a detailed explanation of why the long list of statements, agreements, and contacts, do not amount to much at the end of the day, and clearly constitute no bar to the arbitration proceedings, since at no stage have the Philippines and Beijing agreed to forgo this road.
Finally, we should note that out of 15 submissions by the Philippines, the Court determined that it had jurisdiction to consider seven, and concerning another seven it reserved consideration of its jurisdiction to the merits phase. In one (15, concerning the request of a declaration that “China shall desist from further unlawful claims and activities”), the Court “DIRECTS the Philippines to clarify the content and narrow the scope of its Submission” and also reserves consideration of its jurisdiction to the merits phase. The ruling states that “the claims and activities to which this
Submission could potentially relate are unclear from the Philippines pleadings to date” (p. 147). Since, out of 15 submissions, not one has been determined at this stage to be ultra vires (beyond the powers of) the Court, it is difficult to overstate the degree to which this constitutes a major victory for the Philippines. Having said that, we should remember that this arbitration case, and more generally appeals to international law, the rule of law at sea, and peaceful resolution of disputes in accordance with international law, are only an aspect of Manila’s strategy to deal with Chinese expansionism. They should not be seen in isolation, but rather in conjunction with rearmament, and stronger bilateral and multilateral relations with fellow maritime democracies. Unless the Philippines can upgrade their military, regaining lost capacities such as combat jets, and being able to deal with the different levels of warfare (including non-lethal force at sea), a victory in the final stage of this legal battle may end up being little more than a footnote in history books.
Taiwan’s Reaction
MOFA spokesperson Eleanor Wang said that “The Republic of China government’s determination to defend the country’s sovereignty and maritime rights over the four island chains in the South China Sea is not open to question”, adding that her department was closely following developments in the arbitration case, and would respond as necessary. The Republic of China is not a party to UNCLOS, but Taipei has urged the different parties involved to respect international law, including this convention.
Taiwanese views on the issue are important for a number of reasons. First of all because the ROC is one of the claimants, and controls Itu Aba (Taiping) Island. Second, since PRC claims and in particular the famous “Nine-dash line” and its successors originated in the ROC, which the PRC claims to have legally superseded. Third, given that in spite of the previous point Taipei has been moving away from these maximalist positions, both in theory and practice. Fourth, because the Island launched an East China Sea Peace initiative, followed by a fisheries agreement with Japan concerning the Senkaku / Diaoyu / Diayutai, and both could be a template for the South China Sea. Finally, because one of the points that irritated Beijing, as clear from the Chinese 7 December 2014 position paper, was the Philippines’ alleged deviation from a “One China” policy in her arbitration suit against the PRC.
Taiwan may not be recognized by the UN and most countries in the world, and actually still has to decide whether to recognize herself, but the dispute over the South China Sea is intimately connected to that over the Island. After proving that democracy and Sinic culture are compatible, Taiwan is now showing how the latter can also coexist side by side with the rule of law and a pragmatic approach to territorial disputes.
Beijing insists the case is outside UNCLOS compulsory arbitration.
The PCA ruling prompted a strong reaction by Beijing, with the PRC’s Foreign Affairs Ministry insisting in refusing to recognize the court and take part in the proceedings. We should note, however, that as explained China has not stayed completely aloof from the case, since on 7 December 2014 she issued a position paper explaining her views and the reasons why she believed the case should be dismissed. In a statement dated 30 October, the MOFA said the ruling was “null and void, and has no binding effect on China”, and warned that the case would damage “the integrity and authority of the UNCLOS”. The text said that “With regard to territorial sovereignty and maritime rights and interests, China will not accept any solution imposed on it or any unilateral resort to a third-party dispute settlement”. It also slammed the case as a “political provocation under the cloak of law”, stressing that China’s position, explained in her position paper, was “clear and explicit, and will not change”. Beijing once again underlined that she considered the Declaration on the Conduct of Parties in the South China Sea (DOC) to mean Manila had agreed to exclusively resort to “negotiations and consultations”.
While none of this comes as a surprise, it is not clear yet whether the ruling will contribute to a change in Chinese policy. Beijing may wait for the ruling on the merits, while completing the construction of military and dual-use facilities in her artificial islands and avoiding major incidents, keeping a lower profile. She may, on the other hand, declare an ADIZ (Air Defense Identification Zone). Either way, China may seek some accommodation with other littoral states, in order to prevent ASEAN from coordinating effectively and to limit the potential damage to her reputation that could result from appearing too inflexible. In the longer run, China may seek to either shape rules and institutions like UNCLOS and the PAC, or devise an alternative more to her liking. The first option could imply building an informal coalition with countries also keen to expand the rights of coastal states in their EEZs. However, at least two obstacles loom large, namely the unclear nature of Chinese claims (which may go much further than that) and the fact that some potential allies also happen to be rival claimants. The recent FONOP (freedom of navigation operation) in the South China Sea by USS Lassen has been supported by a number of regional states, even those like Vietnam who are also targeted by Washington’s freedom of navigation program. The second, more radical, option, would involve setting up an alternative institutional framework, as Beijing is gradually doing in the international financial arena with the Asian Infrastructure Investment Bank (AIIB) and the possible development of a RMB payments system independent of Swift.
Conclusions
Manila has won a victory in the first stage of the legal battle aimed at arresting Beijing’s expansion in the South China Sea. Although, as stressed by the Court, this does not prejudge the final decision on the merits of the case, major pillars of the PRC’s narrative, such as the alleged agreement with other countries to pursue negotiations only, have been blown out of the water. Faced with this, China may choose to ignore a decision in favor of Manila, thus putting a further dent on her prestige as a country respectful of international law and other nations, or seek some sort of accommodation, saving face while making some concessions. Some voices believe that China may already be starting to act in a more conciliatory manner, in the wake of the ruling on jurisdiction. However, flexibility may not be compatible with a public opinion that has repeatedly been told the South China Sea was “indisputably” Chinese, and which may turn on any leader ready to make concessions. Concerning the Philippines, even if success at this stage is repeated when the Court rules on the merits of the case, she needs to keep working on rearmament and stronger bilateral and multilateral relations with fellow maritime democracies and Vietnam, since otherwise the Court’s final ruling may amount to little more than a symbolic victory. Taiwan, not a party to UNCLOS, is however a very important actor in this dispute, and her East China Sea Peace Initiative and subsequent fisheries agreement with Japan may be vindicated if an arbitration ruling is followed by a peaceful settlement of the South China Sea dispute, or at least an agreement to set aside territorial claims while jointly managing resources and moving forward with confidence-building measures.
Alex Calvo, a guest professor at Nagoya University (Japan), focuses on security and defence policy, international law, and military history, in the Indian-Pacific Ocean Region. A member of Taiwan’s South China Sea Think-Tank and CIMSEC (The Center for International Maritime Security), his previous work on the South China Sea includes “China, the Philippines, Vietnam, and International Arbitration in the South China Sea”, The Asia Pacific Journal: Japan Focus, Volume 13, Issue 42, No. 2, 26 October 2015, available at http://japanfocus.org/-Alex-Calvo/4391/article.pdf He tweets at Alex__Calvo and his work can be found at https://nagoya-u.academia.edu/AlexCalvo