Understanding Asian Maritime Claims: Multimedia Friday!

If you’re worried you’re in for a boring Friday, fear not! Two great presentations were recently released to help explain the tensions and background of Asia’s maritime disputes and can easily fill a good portion of the day. (Note – both work better on computers running latest browsers to take advantage of full functionality, rather than mobile devices)

CMD
                  Come take a trip to SEA with the CFR and NYT.

The first, China’s Maritime Disputes is an interactive guide from the Council on Foreign Relations that details the history and policy options for dealing with China’s maritime claims. It includes videos, charts, and reading.

The second, A Game of Shark and Minnow – Who Will Control the South China Sea? by the New York Times Magazine edges out the first on presentation with a design that really sets readers/viewers in the middle of seas. It’s more focused on context and narrative flow than the mechanics of dispute resolution, but provides a whirlwind tour of the front lines in the face-offs.

Both are highly engaging and show the extent to which think tanks and journalism can use internet-enabled multimedia to maximum effect. Check ’em out!

LT Scott Cheney-Peters is a surface warfare officer in the U.S. Navy Reserve and the former editor of Surface Warfare magazine. He is the founding director of the Center for International Maritime Security and holds a master’s degree in National Security and Strategic Studies from the U.S. Naval War College. The opinions and views expressed in this post are his alone and are presented in his personal capacity. They do not necessarily represent the views of U.S. Department of Defense or the U.S. Navy. 

Choosing Sides or Choosing Peace? U.S. Strategy in the South China Sea Dispute

The National Interest on Monday published an intriguing article by Ted Galen Carpenter discussing the potential implications of President Obama’s current South China Sea (SCS) strategy.  During the East Asia Summit, where the President was forced to send Secretary of State Kerry in his place so he could focus on the government shutdown, Secretary Kerry took a supportive (some would say meddling) position in defense of Manila stating that “all claimants have a responsibility to clarify and align their claims with international law. They can engage in arbitration and other means of peaceful negotiations.”

Although many welcome America’s “pivot” to Asia, many more are trying to grasp what that really means. Does it mean greater military presence, more economic influence? Or, as Carpenter’s article suggests, taking sides in the sovereignty disputes in which most of the tension in the region is moored? Before drawing conclusions that Secretary Kerry’s statement provides some sort of clue, it would be prudent to examine what the arbitration filing actually is and what it requests. 

Reefs and LinesFor background, the United Nation Convention on the Law of the Sea (UNCLOS) provides a dispute-settlement regime that requires signatory States, such as China and the Philippines, to resolve their disputes peacefully: first through negotiation, and then if that doesn’t work, States can choose from four options. These options include submission of the dispute to the International Court of Justice, to the International Tribunal for the Law of the Sea, conciliation, or go to an arbitral tribunal.  Without delving into too much procedural detail, the arbitral tribunal is usually the most attractive because it allows the States to choose who their adjudicators will be. 

So what does supporting Manila’s arbitral filing suggest with regard to interpreting the Obama Administration’s position in the dispute? To figure that out comes down to determining what the Philippines is really asking the arbitral tribunal to do. Whereas the underlying tensions of the dispute relate to which State owns what island, Manila has cleverly requested that the tribunal restrict its judgment to something much more precise. Specifically, the arbitration request doesn’t ask the tribunal to determine ownership on a historical basis per se, but that it only clearly establish the sovereignty rights of the Philippines under UNCLOS due to the claimed non-island status of the reefs and shoals. The Philippines have requested the tribunal to:

a. declare that China’s rights in regard to maritime areas in the SCS, like the rights of the Philippines, are those established by UNCLOS;

b. declare that China’s maritime claims in the SCS based on its so-called “nine-dash line” are contrary to UNCLOS and invalid;

c. require China bring its domestic legislation into conformity with its obligations under UNCLOS;

d. declare that Mischief Reef and McKennan Reef are submerged features that form part of the Continental Shelf of the Philippines under Part VI of the Convention, and that China’s occupation of and construction activities on them violate the sovereign rights of the Philippines;

e. require that China end its occupation of and activities on Mischief Reef and McKennan Reef;

f. declare that Gaven Reef and Subi Reef are submerged features that are not above sea level at high tide, not islands under UNCLOS, not located on China’s Continental Shelf, and China’s occupation and construction activities on these features are unlawful;

g. require China to terminate its occupation of and activities on Gaven Reef and Subi Reef;

h. declare that Scarborough Shoal, Johnson Reef, Cuarteron Reef and Fiery Cross Reef are submerged features and are “rocks” under Article 121(3) of UNCLOS;

i. require that China refrain from preventing Philippine vessels from exploiting the living resources in the waters adjacent to Scarborough Shoal and Johnson Reef;

j. declare that the Philippines is entitled under UNCLOS to a 12nm territorial sea, a 200nm Exclusive Economic Zone (EEZ), and a Continental Shelf under UNCLOS, measured from its archipelagic baselines;

k. declare that China has unlawfully claimed, and has unlawfully exploited, the living ad non-living resources in the Philippines’ EEZ and Continental Shelf;

l. declare that China has unlawfully interfered with the exercise by the Philippines of its rights to navigation and other rights provided under UNCLOS;

m. require China desist from these unlawful activities.

Note: China has refused the arbitration request.  Annex VII, Article 9 of UNCLOS, however, provides that “if one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.”

Although the Philippines did not request that the tribunal resolve the sovereignty claims directly, it does ask it to determine a very significant issue: whether the disputed features are rocks or islands. In these instances, the Philippines believes determinations that they are not islands would further its aims. For even if China retained ownership it would minimize the extent of China’s territorial claims under international law. This is because under UNCLOS, rocks only get 12nm of territorial seas. Islands, however, get 12nm of territorial seas AND 200nm of an exclusive economic zone. This is why each and every island/rock matters and why there is so much at stake. It’s critical to remember that the fight is not over what is on the island/rock, but the resources in the water column and shelf surrounding the island/rock.

Turning back to the Obama Administration’s SCS strategy, Secretary Kerry’s statement may be interpreted in at least two-ways. The statement could suggest support of Manila’s sovereignty claims and therefore the U.S. would be taking sides. The statement could also suggest support of Manila’s right to argue their claims under international law and therefore the U.S. would be supporting a peaceful settlement of the dispute in an international forum rather than a regional one. Carpenter’s article does an excellent job of describing the potential implications if the U.S. strategy included choosing sides. On the other hand, if the U.S. is supporting Manila’s right to argue their claims under international law, the implications for the U.S. could be a loss of credibility. It continues to remain harmful for the United States, especially in the SCS context, to keep suggesting that this dispute ought to be settled under UNCLOS because the U.S., due to political reasons in the Senate, has yet to ratify this critical treaty.

LT Dennis Harbin is a qualified surface warfare officer and is currently enrolled at Penn State Law in the Navy’s Law Education Program.  The opinions and views expressed in this post are his alone and are presented in his personal capacity.  They do not necessarily represent the views of U.S. Department of Defense or the U.S. Navy. This article is for informational purposes only and not for the purpose of providing legal advice.

 

CIMSEC’s October DC Meet-up

bar-picCIMSEC’s DC chapter will be heading to Maddy’s Bar and Grille, near the Dupont Circle Metro stop, for our informal October meet-up next Wednesday the 30th.  We hope you’ll join us to meet some interesting people and discuss all things maritime.

Time:   Wednesday, 30 Oct 5:30-9pm

Place:   Maddy’s Bar and Grille

1726 Connecticut Ave. NW, Washington, DC

All are welcome and no RSVP is required, but if you’re planning on coming please drop me a line so we have an idea of how many seats to reserve: director@cimsec.org

Africa: “A Problem As Unique As Each of its Constituent Parts”

Still terrifying, but not as monolithic as some envision.
“Security issues are still terrifying, but not as monolithic as some suggest.”

Regarding Mr. Hipple’s article “African Navies Week: Al Shabaab is Only the Beginning”, he addressed a critical issue which all too often does not receive proper attention.  It is a daunting prospect to try and pull in the disparate threats from across the continent formulating a single threat analysis and, while his conclusion is accurate in that he points out the diverse threats facing the continent, from a purely security-focused perspective, it still lacks some necessary clarity.  The problem is the moment you start looking at how individual factors within a given country are driving conflict/instability, you quickly lose the scent of how it ties into the transnational threat groups.  There is also the problem of how far back you are willing to look, the specter of Colonialism is still present and the post-colonial relationships cannot be entirely discounted.

There are too many fundamentally different factors at play across Africa to compare the potential for total, though not collective chaos that threatens the continent and still have the comparison to Afghanistan be a strong one.  While Afghanistan is easily evoked as a common point of reference and there are elements of similarity that narrowly can be compared, each region of the continent has enough of its own issues to cause the wheels to come off of the Afghan comparison.  Additionally, once you make the comparison to Afghanistan it easily leads to a false equivalency.

The threat from Boko Haram (BH) is real and growing yet the Nigerian Government is wholly unprepared to handle it – their heavy-handed tactics have increased distrust in the government and have not deterred or degraded BH.  More importantly, the growing alignment between Al Qaeda in the Islamic Maghreb (AQIM) and BH marks a significant development in the connectivity of pan-African terrorism.  However, these groups do not monopolize the West African threat.  The spread of BH into Cameroon is tied to their evasion the Nigerian military’s offensive operations.  What is happening in Niger with regards to BH is mostly proximate.  The more apt comparison for the growing instability in Niger is the likeness to Mali where you see disenfranchised Tuaregs of the north returning from service in Libya (Gaddafi’s desert battalions) flush with weapons, training and a desire to have a say in their government.  In both Mali and Niger, the Tuaregs have been persecuted and altogether cut out of the political process by the ethnically separate majority in the southern capitals.

Disenchantment with the government in Bamako and simmering ethnic discord set the stage for French operations in January, however, what caught world attention was the marriage of convenience by the MUJWA and elements of AQIM.  Given the disassociated natures of the AQ franchise, it can be difficult to make sweeping generalities because the various strains (AQIM, AQEA, AQAP, AQI and AQSL) each have their own local idiosyncrasies, but one thing they do have in common is their ability to first bond with a local cause/faction on ideologically tenuous grounds and then quickly alienate themselves from the population with their unique extremist ideology which is often incompatible with local norms – see AQI and the Sunnis, AQAP and the Tribes of south central Yemen or AQIM and the Tuaregs.

My point is, while virulent strains of AQ exist across the corners of the continent and in their own right pose a threat, they have had difficulty building and maintaining strong and enduring relationships with other local movements.  The AQ-BH connection is growing, and AQEA/AS in the past two years “formalized” their relationship, however, when you look at the nature of the threat on the ground in Somalia for example, there is a definite rift.

Continuing in the East, while the threat from AS/AQEA has expanded beyond Somalia, it is worth noting that the focus of their ire has not been indiscriminate but has targeted those countries participating in AMISOM.  With regards to CAR, while Seleka partnership with anyone would only further degrade a poor situation, the nature of the Seleka rebels themselves does not lend itself to partnership with any of the aforementioned groups.  It is also worth noting that within days of capturing the capital, the rebel groups splintered and immediately fell into the same trap as their government predecessors – an inability to exert influence beyond the capital.  What this means in the long term is that the security vacuum is being filled by the rebels with no real solution.

Moving North, there is a fascinating and frightening mélange of issues at play in the Maghreb and the single commonality is that each of the governments in their various degrees of weakness is attempting to quell internal dissent.  Libya is the new frontier since the fall of Gaddafi, and the government has no ability to project power, they cannot control the capital let alone anywhere else are forced to in equal measure threaten and placate the militias within Tripoli.  However, the ungoverned spaces elsewhere have been, at least temporarily ceded, as the government attempts to consolidate power.  Tunisia is still dealing with the fall out of the Arab spring and has been unable to form a coalition government that meets the needs of both Islamic factions and strong secular sentiments/groups.

While the graphic paints a fairly grim picture of the continent, the reality is even grimmer yet as it fails to capture one of the longest ongoing conflict in the Kivu region of Eastern DRC.  Furthermore, with regards to the maritime threat, there are fundamentally different factors at play on the East and West Coast; while piracy is the end result, the elements driving them are quite different.  In HOA you have piracy being driven by the fact that Somalia is a failed state and pirates take advantage of their proximity of shipping lanes in the Bab-el-Mandeb.  Along the West coast, the piracy issue is being driven by the desire to exploit components associated with the off-short oil wealth of Nigeria.  The biggest problem as it applies to maritime security is that too many governments across Africa still perceive maritime security to be a luxury they cannot afford.  It is easy to discuss how it Maritime security has a chance to minimize the flow of extremists and the vast potential to make a positive impact, but like so many things, without sufficient local buy-in, the effort is dead on arrival.

It is difficult to address broad security threats across Africa without becoming hopelessly mired in the details; this is why all too often security threats on the continent are looked at in isolation without broader thought given to overarching threats.  This is further complicated by the fact that the commonality of the threats spanning the breadth of the continent, their origins and likely the solutions, exist beyond the security realm.  Uneven and underdevelopment, disenfranchised populations, and natural resource exploitation along often colonial lines drive what has to date been considered an acceptable level of instability.  The various extremist movements are indicative of systemic and structural failures.  Mr. Hipple’s article was a valiant effort at addressing one of these issues, but it is exceptionally difficult to frame the problem appropriately so as to address the relevant factors at appropriate depth while not missing necessary nuance and simultaneously addressing significant transnational factors.  Until the broader issues driving current conflict and instability are addressed, we are likely to see more of the same.

Timothy Baker is Marine Officer in the United States Marine Corps Reserve and a Masters Candidate at Columbia University.  The opinions and views expressed in this post are his alone and are presented in his personal capacity.  They do not necessarily represent the views of Columbia University, U.S. Department of Defense or the United States Marine Corps.

(Editor’s note: Another fine example of my over-simplification is the note that the map also showed “Somalia” as one unit, when in reality it is three distinct organizations each with different problems)

Fostering the Discussion on Securing the Seas.