The RTS crew kicks off 2016 with a discussion of the Command & Conquer series with a focus on “Generals.” Join us as we dive into how the geopolitical environment of 2003 shaped the game, what makes the C&C series so great, and how one of our members potentially looted his copy during Hurricane Katrina.
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.
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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By Dmitry Filipoff
CIMSEC’s January Topic Week is on the Littoral Arena. The littorals only constitute around 15 percent of the world’s oceanic expanse, yet 60 percent of the world’s urbanized populations are located within sixty miles of the coast, including 80 percent of the world’s capitals. The U.S. Navy has only recently drawn attention to the littoral domain after decades of emphasizing blue water sea control. What are the unique warfighting challenges posed by the littorals? What capabilities and operating concepts best enable power projection in this complex environment? Can navies optimized for blue water operations effectively translate their experience into the littorals? These are only some of the lines of inquiry for examining this complex security environment and how to operate within it.
Submissions are due by Thursday, January 21.
The Topic Week will run from Monday, January 25 to Sunday, January 31.
Interested authors should send submissions to the CIMSEC editorial team at [email protected]. Topic weeks are competitive, so we encourage thoroughly researched contributions and submitting ahead of the due date. Other upcoming topic weeks can be viewed here.
Dmitry Filipoff is CIMSEC’s Director of Online Content. Follow us @CIMSEC.
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This post originally featured on the CDA Institute, and is republished with permission. You can read it in its original form here.
CDA Institute guest contributor Ryan Dean, a PhD candidate at the University of Calgary, offers a reminder on the dangers of inflation in Canada’s defence procurement efforts.
A good portion of our future navy has been sunk on the drawing board by inflation.
Inflation is an economic term that encompasses all the variables that lead to a general price increase in a good or service. In the case of warships, inflation includes everything from technical issues related to the design of the ships to increases in the wages of the shipyard workers who build the ships. The longer a budget takes to be spent, the less that budget can buy.
Military inflation rates have a voracious appetite and can eat through capital budgets far faster than their civilian counterparts. American warships have historically inflated at an annual rate of 9 to 11 percent. The National Shipbuilding Procurement Strategy (NSPS), modeled on American shipbuilding practices, could suffer from even higher inflation rates as we are dealing with the additional time and costs of resurrecting a shipbuilding industry and we do not enjoy the same economies of scale as our southern neighbour in sustaining this strategic industry.
Long delays between the allocation of budgets for a class of warship and their actual construction allows for high inflation rates to halve these budgets. This has already happened with the Joint Support Ship (JSS) and the Arctic Offshore Patrol Ship (AOPS) procurements. It is now happening with the Canadian Surface Combatant (CSC) Project.
The time invested in designing the JSS to be a highly capable platform backfired. $2.9 billion was budgeted in 2006 to build three replenishment vessels by 2012. Internal pressure for a very ambitious ship led to sealift and command-and-control ashore capabilities being added to the original refueling and resupplies tasks of the proposed vessels. Three “big honking ships,” to borrow the term introduced by General Rick Hillier, with those capabilities could not be delivered within budget and the government rejected bids in 2008. The NSPS effectively pushed things back until 2011, at which time the procurement resumed. In 2013 the “off the shelf” German designed Berlin-class, capable of refueling and resupplying but not sealift and command-and-control, was selected as Canada’s next replenishment vessels with construction beginning in 2016 and deliveries scheduled for 2019 and 2020. Instead of three of these vessels, now only two Queenston-class ships are promised. The negative effects of inflation resulting from years of delays have sunk one of our replenishment vessels on the drawing board.
The AOPS was announced in 2007. $3.1 billion was budgeted to build six to eight ships with deliveries starting in 2013. Based on the Norwegian Svalbard-class, much time and money was invested in attempting to increase the capabilities of the design, though it appears these efforts have largely failed. Time spent on this and the development of the NPSPpushed the AOPS delivery date back to 2018. As with the JSS, the years of delay allowed inflation to hollow out theAOPS budget. A report issued late 2014 by the Parliamentary Budget Officer (PBO) found that the AOPS budget could only afford four vessels at that point. In response, the government added an additional $400 million to the project and revised their official number of ships delivered down to five or six, though these numbers remain optimistic. Inflation has sunk nearly half the proposed AOPS.
$26.2 billion is budgeted to build up to 15 CSCs, at best a one-for-one warship recapitalization program to replace the Royal Canadian Navy’s destroyers and frigate fleet. Given that the AOPS was placed first in the NSPS construction queue, the first CSC will not be delivered for another 10 years with the rest following over a 20–30 year period. This affords inflation plenty of time and opportunity to do its worst. A 2013 PBO report and recent news reports draw attention to this fact, with inflation placing nearly half the future CSC fleet in jeopardy. The financial situation is so grim that, as a cost saving measure, there has even been a proposal to start cannibalizing systems from our current fleet with which to outfit our future fleet.
The thrust of this short piece is that we must stay aware of the negative effects of inflation in our military procurements. Delays come with significant costs. In the cases of the JSS and AOPS, the costs are fewer and less capable ships.
How can inflation be addressed, aside from cutting numbers or capabilities to stay within eroded budgets? The best way is speed, something to keep in mind regarding the CF-18 Replacement Project and proposals by the Opposition parties to restart an open bidding process. Would any benefits that could result from pressing the reset button on that procurement program again outweigh the high costs of additional time and inflation? Similarly, robbing the CF-18 Replacement Project to pay for the CSC Project would only magnify the problems of the Royal Canadian Air Force’s recapitalization due to inflation. However, in the case of the CSC, speed is not an option due its place in the NSPS shipbuilding queue.
The other way to address inflation is to simply buy back time by increasing capital budgets. The Trudeau-era’s Defence Structural Review did this, increasing the military’s capital budgets which led to the purchases of the CF-18s and the Halifax-class frigates in the 1980s. This has historically been something that Canada has been adverse to do but times could be changing. As noted above, the AOPS budget was increased late last year by $400 million despite constraints on across the board federal spending. Additional monies will preserve not just CSC numbers, but their capabilities as well.
Ryan Dean is the winner of the 2015 Canadian Naval Memorial Trust Essay Competition and is a PhD candidate in the Department of Political Science, University of Calgary. (Image courtesy of the Royal Canadian Navy.)
