Tag Archives: South China Sea

Sea Control 134 – The South China Sea with Vasco Becker-Weingberg

By Matthew Merighi

Join the latest episode of Sea Control for a conversation with Professor Vasco Becker-Weingberg of Universidad Nova in Lisbon, Portugal, about the South China Sea. The interview, conducted by Roger Hilton of the University of Kiel, address topics including the role of the Law of the Sea, the oil sector, private security contractors, and everything in between.

Download Sea Control 134 – South China Sea with Vasco Becker-Weinberg

The transcript of the conversation between Vasco Becker-Weinberg (Vasco) and Roger Hilton (Roger) begins below. Special thanks to Associate Producer Ryan Uljua for helping produce this episode.

Roger: Hello CIMSEC listeners and welcome to another edition of the Sea Control podcast series. My name is Roger Hilton,  and I am a non-resident academic fellow for at the Institute for Security Policy at Kiel University. With no shortages of geopolitical crises erupting today, our podcast could not come at a more timely moment. One global topic that is especially prone to unpredictability is the evolving list of security threats dominating the South China Sea (SCS). Thankfully, I have the pleasure of hosting Vasco Becker-Weinberg as our guest for this episode today. Vasco is a law of the sea professor at the Universidad Nova de Lisboa, and a coordinator of the LLM program on the maritime economy and the law of the sea at Nova. His contribution to the Routledge Handbook of Naval Strategy and Security outlines the very security issues dominating the SCS. Vasco, thank you for joining us.

Vasco: It’s my pleasure.

Roger: After reading your piece, it is clear that there are a litany of issues in the SCS outside of the region’s well-publicized territorial disputes.To lay the groundwork for the conversation, can you start by explaining to our listeners how the maritime space is currently organized, and some of the threats that we are going to discuss today?

Vasco: We’ll probably focus on maritime jurisdiction in the SCS,  also perhaps refer to the seabed activities in the disputed maritime areas, meaning what is the regime applicable to these areas, and current threats–perhaps piracy, armed robbery, and weapons of mass destruction (WMD)–must be addressed as well.

On the issue of maritime jurisdiction, just briefly, it’s important that our listeners understand that this important maritime area is not no-man’s-land in the sense that this dispute has the result of two or more overlapping claims. These claims have to be based on the legal title recognized by international law and claims have to be made clearly to other states. What we see today in the case of the SCS is that some of these claims or claiming states, to be precise, neither put forward the basis on which they make their claims (i.e. their respective legal title), and second, what is the location (precisely) of the disputed maritime areas. So therefore this creates a sort of cloud of legal uncertainty regarding some of these claims.

To make matters even complex, our listeners should know that different offshore features have different legal regimes. So, the legal codification of the feature as an island or as a rock, for example, has different consequences in the type of maritime zones it can project. When we refer to maritime zones, essentially, we refer to territorial sea, to an Exclusive Economic Zone (EEZ). So in the case of a rock, a rock can project a territorial sea (TTS) up to 12 NM but if the legal status of this feature is an island or should be considered an island, then it can actually project a 200 mile EEZ. So the differences are actually quite significant. Of course, the tendency is that claiming states would always consider these offshore features to be islands, so that they can actually project greater maritime zones, and therefore, there’s an inherent stress between different claiming states between claimed offshore features. And in this respect, recent international jurisprudence has been extremely helpful in clarifying exactly what the relevant criteria in terms of what is a rock or an island. But let me point out that although there is recent jurisprudence on this matter, the debate is still very much alive.

When it comes to jurisdiction of states, it’s important to understand that the further you go from land towards the sea, the rights of states are not as intense as they are closer to shore. So, in the territorial sea of 12NM, that’s the first fringe of sea that’s closer to land, and states exercise more rights of sovereignty. But when we refer to sovereignty at sea, it’s not the same thing as sovereignty on land. There is no concept of private property at sea, for example, and you cannot cross the territory of another state. There is no right for you to do so without that state’s permission. Whereas in the TTS, for example, there is the right of innocent passage for certain vessels that comply with the conditions listed in the United Nations Convention on the Law of the Sea (UNCLOS). There’s no similarity between this right of innocent passage and any other right on land.

Then, forgetting about the contiguous zone, then after the TTS is the EEZ. The EEZ has its own special regime because it is neither TTS nor is it part of the high seas. It allows you to develop economic activities. It’s not exclusive, it’s economic. There’s very little that gives the state exclusivity in the EEZ. And finally, on the seabed and subsoil adjacent to the baselines of the TTS, we have the continental shelf. The continental shelf has been recognized as existing beyond the will of the coastal state to declare a continental shelf. It means that state exercises exclusive rights of sovereignty for the purpose of exploration of the resources of the shelf. There’s an erroneous perception some might have that the whole continental shelf is an extension of land sovereignty from the coastal state.It’s not that. It’s only focused on resources. And to end on a simple note, the current UNCLOS was developed on a resource-based approach, and a sectoral approach. Therefore, the whole issue of economic issues at sea and environmental resources is quite central to how the current legal regime has developed in recent years.

Roger: Thanks for such a comprehensive introduction. Undoubtedly, all of the technical and legal information you outlined is critical to understanding the activities in the SCS. It’s definitely a lot for the states in question to consider. Let’s get to some specifics now. As you state, tensions among the claiming states have shrunk the prospects for the delimitation of boundaries either via agreement or compulsory mechanisms. Against this backdrop, how do states interact legally in this gridlock?

Vasco: Well it’s true that it has become very difficult for states to agree on a compulsory set of mechanisms – meaning, resorting to a third party or any other means of settling the dispute. On the other hand, the fundamental reason why states have not been able to come to an understanding or an agreement is precisely  the lack of clarity regarding some claims and some legal titles.

So what are states bound to do if they can’t reach an agreement? International law is quite clear in defining these obligations. The first principle is the preservation of the maritime environment. In the disputed area, claiming states can’t act as if it’s a no-man’s land and have different conduct in that area. So they have a fundamental obligation to protect the marine environment, which states are bound to. Another obligation is that of the freedom and safety of navigation. Just because it is a disputed maritime area, the rights of third-party states are not shrunken. So guaranteeing that other states can freely exercise the freedom of navigation is extremely important. Unfortunately, what happens is that this sort of competitive behavior has developed in recent years in the SCS, particularly with oil and gas, therefore placing offshore installations that are neither identified, or were placed without notifying other states that this was happening. Of note, in a disputed maritime area, no state may develop the resources of that area without the consent of all states that are also claiming that same area, since a claim to that area is also a claim to those resources. So, a state, if he wants to develop, he must first seek the consent of all other states. Of course, this is not an easy task. Another case that is also important is that if a state finds out that there are important marine resources in a disputed area, he has the obligation to inform the other states that these resources exist.

How can we develop these obligations? Based on two fundamental principles of international law. First, good faith, of acting with good faith, and the principle of cooperation.

Roger: The legal dynamic in theory seems to work, but in practice it might be overshadowed by the disproportionate capabilities of the competing states. It’s undeniably a difficult challenge to preserve the diverse ecosystem of the SCS while simultaneously developing the lucrative trade in the region. That trade will only increase as the region becomes a hub for global finance. This is the perfect segway into the dangers of nationalism being injected into the negotiations for disputed areas. I think you’d agree that this hinders progress during negotiations, as any international compromise can be interpreted domestically as a form of capitulation. Should the listeners expect to see more of this in negotiations, or will it diminish moving forward?

Vasco: You put the question in an interesting way. If we are focusing on the SCS, but if you look at many disputes around the world, first, there’s no obligation to draw maritime boundaries, and many boundaries in the world are still pending the limitation or any form of settlement. You know, there are many examples. And in many of these cases, because it’s part of defending the territorial integrity of any state, throughout history governments have used nationalism to create a sense that there’s no giving up of claims or of territory. So, this nationalistic rhetoric is precisely to reinstate their claim for territorial integrity. 

But having said this, it’s interesting to see that in one case, of the People’s Republic of China (PRC), two years ago the PRC government announced the Belt and Road initiative, which also included the Maritime Silk Road initiative. These are an interesting approach by the PRC, and involves strong nationalistic rhetoric. It’s important to understand that all states in the SCS have their own nationalistic rhetoric at home. This new approach, the belt and road initiative, is precisely focused on economic development and increasing efficiency in transportation of goods, not only in the region but beyond. It involves connecting port infrastructures, making sure there’s security and safety, and these are all important for creating a dynamic of cooperation between states. So, if you want, things can be thought of in this way –I think states will continue this rhetoric, even though it’s not helpful in its outcome, and secondly, I think the tendency will be to continue developing some sort of cooperation between both claimant states and regions. The threats that claiming states and regions are facing are common to both, and cooperation will become an inevitability.

Roger: Maybe what distinguishes the SCS, which involves so much competition, is that the current operation of jurisdiction in the SCS is a minefield to navigate on a daily basis. So in your opinion, the functional link you mentioned earlier, it seems to serve its purpose of facilitating the compartmentalization of relations, but can this model be sustainable long term? Where are the shortcomings likely to be exposed?

Vasco: The international law isn’t without its shortcomings. Where many skeptics of international law focus is on the lack of effectiveness of international law to uphold its own decisions. We saw that recently with an arbitration between 2 states in the SCS where one state refused to participate, or to comply with the award. Therefore, one can very well ask ‘ok, we have international law, the obligations are clear, but then do states just continue doing what they are doing’? But that’s how it is. The global awareness of maritime disputes and the need to continue increasing cooperation will lead to the need for agreement on a specific dispute to take place. The problem of the SCS regarding other disputes is the intricacy of the different claims, and of course the importance of the SCS for international trade. Therefore, it’s quite a complex situation.

Is it sustainable to continue with the current dispute? Well, there are many cases around the world where disputes regarding maritime boundaries have existed for centuries and states nonetheless have had an entente cordiale, some sort of understanding to allow them to continue. It is important to look to the Law of the Sea and to the Convention to understand that the convention gives us the mechanisms not only to promote cooperation but also to help with the very important element of saving face.

I’m referring specifically to joint development, which is an alternative to states that do not agree on a maritime boundary, either by agreement or by compulsory settlement mechanism, but still manage to find this legal solution. It is not prejudicial and has no bearing on the claims they have made. This allows the two states to achieve economic development in a disputed maritime area. Then of course this would be an optimal result, but there are many different types of agreements states can make before they get to this optimal agreement. For example, making sure that there are mechanisms for 2 states that claim a disputed area to implement environmental assessment mechanisms that allow both of them to act in a way that preserves and protects the marine environment. This may not be a satisfactory answer to your listeners, but it’s the one that’s possible given the current legal framework.

Roger: Against this complicated legal backdrop, you mention that while disputed areas aren’t subject to the sovereignty of a coastal state, that does not mean that seabed activities are exempt from an internationally binding legal regime, which is a positive, both in terms of trade and protection of the environment. Can you elaborate on the procedural duties of this in an international law context–the difference between the lack of jurisdiction in disputed areas and seabed activities?

Vasco: The first thing we should be aware of is that there are thousands of offshore installations at sea. In many parts of the world, these installations are located in areas under the jurisdiction of a particular state, and therefore they’re accounted for. We know where and what they are, and we can monitor the safety procedures they’ve implemented. For example, around each installation there should be a security zone–not only to prevent some sort of collision, but also to ensure that the activity itself can take place safely.

In the SCS, we don’t have as much information as we would desire. Firstly, many of these offshore installations are in disputed maritime areas–very difficult to reach considering the military tension around them, and secondly, some of these installations have actually passed their service date, more than 30 years, and some have been abandoned, they’re just sitting there at sea. This can represent a hazard not only to the environment, but also to safety of navigation.

International law provides us with rules for states in these conditions. Firstly, the law of the sea is the law of the continental shelf. So, it’s impossible to construe the option that a state could be allowed to develop the resources in an area and not be responsible for exactly how those resources are developed. So the lack of clear jurisdiction doesn’t mean that all states concerned don’t have the obligation to protect the environment (and this is very clear and specific measures under international law) and also to protect the freedom of navigation. For example, if you have an offshore installation abandoned, then the state that put the installation there in the first place is responsible for all damages resulting from that offshore installation, be that complying with the obligation of dumping waste to the sea, or if there’s a spill after it’s no longer in use. The state that placed that installation will have to be responsible under international law.

Roger: It’s all very relevant and valid. As the region is developing, it’s a very new experience that it is responsible for upholding environmental standards. We’re hoping that with more time and experience, it will get a little more familiar and rigidity at administering these practices. In your text, in the post-Deepwater Horizon era, you identified how the EU and its member states have tried adopting common standards without impacting the jurisdiction affecting the national maritime areas. This is also backed up by UNCLOS Art. 192, which says that all states, including the landlocked states, have the duty and obligation to protect and preserve the maritime environment. Can you detail the EU’s practices, and if this model is realistically transferrable to the states in the SCS?

Vasco: Well the EU does not exercise jurisdiction over the maritime areas belonging to its member states. It does, regarding one activity, fisheries, and regarding other activities, it shares confidence, if you want to put it simply, with the member states. But the rights of coastal states, regarding maritime zones, that too stays with the EU member states. What happened was until we had the Deepwater Horizon incident, the notion of the financial implications and magnitude of the environmental impact were completely unrealistic compared to what we saw actually happened there, both in terms of indemnities that have been established, and other standards. It’s important to know that Deepwater Horizon was not in compliance with many international standards, but the problem there was of significant human error.

So the EU, after what we saw, took and made security of offshore installations and safety a priority for the EU, and also put forth legislation for states to implement at the national level. Another important organization putting forth valuable guidelines is the International Maritime Organization. All of these efforts made at a global level also have an impact on the SCS. In the SCS, for example, ASEAN has taken to heart the preservation of the maritime environment and encouraged member states to adopt measures. But you can’t really compare. What we have in the EU in terms of political integration is quite unique compared with other world regions.

Roger: Could standards not rise without political integration?

Vasco: That’s precisely what we’re going to say. There is today a very clear understanding of the standards around the world. It would be very easy to determine certain options and see whether they’re operating within the international legal framework. There’s consent given by all relevant states, that they would abide by those standards, and subject to inspection and so on and so forth. The problem is there is very little information and there could possibly be much more about these offshore installations. So yes, they’re subject to international standards and the industry itself is very different these days than it was several years back. The industry is very aware, and continues to increase its own self-regulation. Standards these days in most places around the world are very high.

Roger: It’s hard to compare the two, but moving forward even without the political integration, we can all wish that they will collectively voluntarily want to raise the standards for the general use of the area.

Vasco: There’s another element to this. The fact is that many oil companies around the world actually have their headquarters outside of the region. I’m thinking of oil companies based in the EU. We now have international jurisprudence and domestic courts where you are allowed to sue the mother company that isn’t located in that specific country where it is not upholding the level of standards, but back home. For example, if the company which is based in the EU opens a branch in another country where perhaps the levels of compliance are lower than those in the home state, the parent company can actually be sued for failing to exercise due diligence, or failing to comply with international standards. So the approach can be sometimes very frustrating, but we have a series of new mechanisms in development to make sure that when a company goes abroad, it doesn’t do whatever it feels like, but complies with the standards of its home state. These situations have rapidly developed and you’re seeing more and more situations where parent companies are actually sued for violations outside the home state.

Roger: Good to know there are some mechanisms to keep companies in check if the political integration isn’t there on the national level. Shifting gears, we’ve spoken about the legal governance and how seabed activities are conducted in disputed maritime areas. There are some major hard security issues that we would be foolish not to talk about. The rise of professional piracy, as well as the menace of trafficking weapons are all increasing substantially. Consequently, both of the issues are not confined to the SCS but to a global area. Let’s start with trafficking of WMD. What has the response been in the SCS?

Vasco: What we’ve seen in recent years is the increasing number of private military security companies. Statistics show that ships that have members of private security companies significantly reduce the cases of incidents occurring. These cases often occur when security personnel are not onboard the ships. But it’s a double-edged sword. Although international law recognizes this is the situation–there are these companies operating onboard the ships–it raises the problem of the presence of firearms aboard ships and the training of these elements is complicated. And their own role on the ship  such as their relationship with the captain, the crew. It creates a lot of added difficulty.

Nonetheless, similar to what happened with the oil and gas industry, private security companies are increasing their own self-regulation. This can be a huge risk  for them if they’re not applying best standards when defending or being present onboard a ship. At the end of the day, responsibility falls with the flag state. The flag state has the obligation that these companies operating onboard the vessel actually comply with the laws of that flag states. Regarding the protection of human life, that is fundamental. Some states, there are many European states that don’t allow the presence of firearms and ammo onboard their own vessels. So there is some request by the shipping industry that many states develop the legal framework allowing the presence of military and security personnel onboard the ship.

The other element of response that’s been extremely effective is increasing level of sharing of information and intelligence and cooperation between national agencies. It’s not possible to control every ship at sea. Or, even far more impossible, to put armed guards on every ship. Flag states can’t put a guard or policeman or army personnel on every single ship. If you look at what happened the anti-piracy efforts that were undertaken by the EU and others, particularly in the Gulf of Aden, even with all the military power that was put into place in the region, we were only capable of monitoring very small portions of the space. Therefore, it is a very complicated issue and probably private security companies are the most efficient way to combat the threat. In addition to sharing of information and intelligence, which will make it possible to combat in a holistic way the proliferation of WMD.

Roger: This is all true, but it puts both commercial carriers and nautical tourism in a very difficult situation based on the security concerns. The listeners should take note of two very important cases. In 2008, the motor vessel Sirius Star was hijacked by pirates and was carrying oil cargo valued at $100 million USD, which was later negotiated for a year later in the millions sum, the largest ransom ever paid. So this is on the commercial side. In the other issue, in regards to the private security companies, some off-duty Italian marines inadvertently killed some Indians who appeared to be assuming a negative position in February of 2012. So how do companies manage security for their cargo and their tourists against such dangerous security concerns?

Vasco: Well, this is a very difficult question. In the first case, regarding the robbery of oil, that can only be fought efficiently and stopped if we try to find out how this practice has developed. You’ll be surprised to find out that in some parts of the world, for example in the Gulf of Guinea, there is a huge connection between the robbery of oil, piracy, and the financing of terrorism in other states of the the Gulf of Guinea, and also connection with illegal unreported and unregulated fishing. But that probably would take us to an entirely different podcast.

The problem really is that states have to call into port to supply. So, the safety and security of port infrastructure is also a key element to ensure that ships can call into port in a secure manner. But the professionalism of pirates and those committing robbery at sea is also increasing tremendously. Therefore, it makes it even more difficult for traditional players of the shipping industry to combat this without the support of a larger network. Meaning cooperation not only between states but also between agencies and those working at sea.

Regarding the Enrica Lexie case, this is very interesting because in this case there were two marines aboard the ship, and so the issue of diplomatic immunity has also been raised. Many questions were asked not only regarding the position taken by Italy as the responsible state, but also India, because not only was it Indian nationals who were mistakenly shot, but the area where the incident took place is also a disputed area. Since then, some sort of agreement has been reached. But this is a phenomena that we’ll continue to witness if states don’t establish legal binding guidelines for personnel aboard their vessels. At the end of the day, the flag state will be accountable if it does not exercise its obligation of due diligence to make sure the people on the ship are qualified to carry arms and use them if necessary onboard a ship.

Roger: It seems there’s a bit of tension between the increased communication and cooperation between states and the private sector, which on an ad hoc basis might want to continue with private security companies. Despite international law considering the use of force as a last resort, it appears the great challenge governing private security companies is the legal harmonization, as you said. Based on all the research out there, it doesn’t look like there’s a standard operating procedure that’s in the pipeline that might be able to produce real guidelines about how universally they should operate with arms aboard the shipping vessels.

Vasco: The IMO has made significant efforts and has put forth important guidelines that IMO member states should implement. But the situation is very complicated when you consider the size of trade. Maritime trade will increase. We’re now seeing super containers and as more countries have access to industrialization and become exporters of goods, we have no other option than to create and implement these guidelines in all parts of the world. Without them it can become extremely complicated. It’s a two-edged sword, as I said. We know that the presence of these private security companies is extremely useful and effective, but on the other hand we still see some states reluctant to enact legislation and enforce guidelines onboard their ships. Without the flag state doing that, these military private security companies can find themselves in a very dubious situation.

Roger: We’ll have to keep a close eye on this. As the listeners have heard, there’s no shortage of issues for the SCS. Do you have any last operational takeaways for the listeners?

Vasco: The SCS is not very different from other parts of the world, except that the awareness of international public opinion has become greater. The Gulf of Guinea situation is extremely complex, but the difference between the Gulf of Guinea and the SCS is that in the Gulf of Guinea we’ve witnessed a lot of maritime delimitation, initiatives, joint development, etc. So although the situation can be extremely complex and even seem hopeless, there are also in the SCS many positive examples of not only regional cooperation but also bilateral cooperation. However, there’s a road still that has to be done, and one of the key elements that will contribute is if states undertook and implemented many of the agreements that they’ve already addressed. I think that would be a positive development if states plus ASEAN and China would implement the principles they agreed to many years ago–like the 2002 Code of Conduct, and eventually, the Code of Conduct that would safeguard that these obligations would be rightfully implemented.

Roger: Vasco, amidst all the global turbulence, it’s nice to see that you’re seeing a couple of positives. Hopefully they’re not too overshadowed by all the negatives that dominate the press. No doubt your feedback today gave us a lot to think about in the SCS and globally. You can find more information in the Routledge Handbook online. Thank you again, Vasco, and goodbye.

Vasco Becker-Weinberg, Dr. iur. (Hamburg), LL.M (Lisbon), is a professor at the Faculty of Law of the Universidade Nova de Lisboa and a qualified lawyer at the Portuguese Bar Association. He is the coordinator of the LL.M program on Law and Sea Economy and is undertaking post-doctoral studies in public international law at NOVA. He was previously legal advisor to the Portuguese Secretary of the Sea (2013-2015) and a full-time scholar at the International Max Planck Research School for Maritime Affairs at the University of Hamburg (2008-2012).

Roger Hilton is from Canada and a graduate of the Diplomatic Academy of Vienna where he holds a Master’s Degree in Advanced International Studies. He has previous experience at the Office of the State Minister of Georgia for European and Euro-Atlantic Integration as well as with the delegation of the Kingdom of Belgium at the Organization for Security and Co-operation in Europe. Since 2017 he is a Non-Resident Academic Fellow at the Center for Maritime Strategy & Security at the Institute for Security Policy at Kiel University in Germany. His research publications concentrate on transatlantic affairs and the post-Soviet sphere. 

Matthew Merighi is the Senior Producer for Sea Control. He is also Assistant Director of Maritime Studies at the Fletcher School at Tufts University and CEO of Blue Water Metrics.

Lessons from the Arctic for the South China Sea

By Daniel Thomassen 

Introduction

The maritime region centered on the South China Sea has been a vital international trade route and reservoir of natural resources throughout modern history. Today, its importance cannot be understated: half the volume of global shipping transits the area, competition for energy and fishing rights is intensifying between surrounding nations (with growing populations), commercial interests are increasing, and regional military spending increases lead the world. Rivalry over resources and security has triggered disputes about sovereignty and historical rights. China has used its increasing relative power to aggressively claim sovereign rights over two-thirds of the South China Sea within the so called “Nine-Dash Line.” Overlapping claims by the Philippines, Vietnam, Malaysia, Brunei, and Taiwan are being dismissed and have sometimes resulted in armed confrontations. Furthermore, the construction of artificial islands and significant military installations on reefs and rocks is underpinning Chinese sea control ambitions within the “First Island Chain.” This deteriorating security environment threatens regional stability, adherence to international law, and the freedom of the seas. Furthermore, it has the potential to escalate into conflict far beyond the levels of militarization and skirmishes between fishing fleets, coastguards and navies seen so far.

The U.S. has been deeply involved in the creation and management of the East-Asian state system since World War II, contributing to its economic progress and security arrangements, which include alliances with the Philippines, Japan and South Korea. Thus, the regional interests of the United States include freedom of navigation, unimpeded lawful commerce, relations with important partners and allies, peaceful resolution of disputes, and the recognition of maritime rights in conformity with international norms and law (with the provisions of the United Nations Convention on the Law of the Sea (UNCLOS) in particular).1 These principles are universally applicable and must be upheld every time and everywhere to be respected. Regional countries are now reconsidering the relevance and commitment of the balancing power of the U.S. in light of Beijing’s dismissal of American concerns and bilateral initiatives towards its smaller neighbors. 

The Arctic region similarly holds the potential for great power rivalry, but in contrast offers a good example of peaceful settlement and compromise. The diminishing ice cap is causing a growing emphasis on resources, international waterways, and commercial activity in the Arctic, where there are also competing claims and great power security interests represented. However, the Arctic nations have chosen to cooperate with regards to responsible stewardship and use UNCLOS and supplementing treaties as the legal basis. The cooperative framework is constituted by the Arctic Council, the agreed adherence to international law and arbitration tribunals, bilateral and multilateral treaties, demilitarized zones, Incident at Sea agreements, joint fisheries commissions, as well as the power balance between Russia and the NATO alliance. As a result, although there is potential for competition and diverging national interests, mutually beneficial compromises and diplomatic solutions to maintain stability and predictability are preferred.

Arctic Dispute and Resolution

Currently there are overlapping claims from Russia and Denmark for the seabed under the North Pole (Lomonosov and Alpha-Mendeleyev Ridges) under consideration by the Commission on the Limits of the Continental Shelf, and Canada is preparing another competing claim. These claims can further be used as a basis for bilateral agreements on maritime delimitations.  This was the case between Norway and Russia in 2010, and there are prospects of a similar agreement between Russia and Denmark. Such cooperative mechanisms, institutions and shared principles in the Arctic are far more robust than comparable efforts in the Southeast Asia, such as ASEAN or the “Declaration on the Conduct of Parties in the South China Sea.”

A map of claims on the Arctic seafloor. (Durham University)

The Svalbard Treaty of 1920 set a standard for international governance, and was a bold and forward looking concept when introduced almost 100 years ago.2 The archipelago was discovered by Dutch explorers in 1596, and resources were since extracted by Holland, England, Russia, and Scandinavians. Eventually, the major powers voluntarily conceded sovereignty over the islands to the young Norwegian state through a commission related to the Paris Peace Conference after World War I. The Treaty allows visa-free access for citizens of signatory states, equal rights to extract natural resources, freedom to conduct scientific activities, ensures environmental protection, and prohibits permanent military installations. This agreement exemplifies the feasibility of imposing restrictions on sovereign authority, the accommodation of the interests of the parties, and adherence to non-discrimination principles.

Episodes of Confrontation

Much like the South China Sea, there have been clashes between the coastal states in the Arctic. Between 1958-1961 and in 1976, there was a state of armed conflict and diplomatic breakdown between the United Kingdom and Iceland over fishing rights. 3 The Royal Navy escorted British fishing vessels to confront the Icelandic Coast Guard in the contested zone. Shots were fired, ships were rammed and seized, and fishing gear was cut loose from the ships in heated skirmishes. However, on both occasions it was the stronger power that stood down to the weaker, as Britain finally recognized Iceland’s right to protect its resources after significant international diplomacy that included the forming of UNCLOS.

Icelandic patrol ship ICGV Óðinn and British frigate HMS Scylla clash in the North Atlantic in 1973. (Wikimedia Commons)

Other minor events in the Arctic include the 1993 Loophole dispute between Norway and Iceland, 4 and Hans Island, the only unsolved territorial dispute, which is under negotiation between Canada and Denmark. 5 The successful diplomatic de-escalation of these cases is in stark contrast to the clashes between China and its rivals in events like the 2012 Scarborough Shoal standoff, 6 the 1995 occupation of Mischief Reef in the Spratlys, the 1988 battle over the Spratly Islands, the 1976 grab of the Paracel Islands, 7 and of course the blunt Chinese dismissal of the 2016 ruling from the International Arbitration Court against the legitimacy of the Nine-Dash Line claim. 8

China has mostly shown an uncompromising attitude in the South China Sea since the 1970s, without serious U.S.-led international efforts to check its use of force. But China too has occasionally demonstrated its willingness to forward claims to international arbitration bodies, such as its 2012 submission to the Commission on the Limits of the Continental Shelf regarding the East China Sea.9 However, that effort must be viewed in context of the ongoing efforts at the time to be accepted as observer in the Arctic Council.

Applying Arctic Lessons

The recent row between the Chinese and the U.S. Navy over an Unmanned Underwater Vehicle is symptomatic of the evolving problem, which must be addressed by the new administration in the White House. The South China Sea currently constitutes the primary global hotspot where major and regional powers’ vital interests and alliance commitments directly clash. A framework to manage this region must be negotiated by the two superpowers primarily and supported by the other involved nations. It requires the will to compromise and the pursuit of mutual interests while looking forward – a set-up which could benefit from the indicated transactional policy approach of President Trump. Any long-term solution would have to accommodate legitimate Chinese demands for security and resources. But, the U.S. must commit strongly by dedicating all available instruments of power (diplomatic, information, military, and economic measures) to impose negative consequences unless China is willing to negotiate from its strong position. Furthermore, the U.S. must uphold the same standards and make concessions itself.

It must therefore expediently ratify UNCLOS10 with its international tribunals and vow to respect the treaties that must be created to regulate sovereignty, demilitarization, commercial rights and responsibilities to protect fish stocks and the environment. Chinese concerns about the “One China Policy,” American forward basing, and policy on the Korean peninsula must also be on the table, as well as cooperation on regional trade agreements.

While state security can be achieved in the South China Sea through treaties, demilitarization, power balance and predictability, the conditions for prosperity flow from similar efforts. As demonstrated in the Arctic, good order at sea and responsible stewardship encourages investments and lay the foundation for cooperative ventures that are mutually beneficial. Uncontested sovereignty and fair trade regulations are incentives for developing expensive infrastructure necessary for harvesting resources under the seabed. The inevitable link connecting China and the U.S. is the economic dependency between the two largest economies in the world. So far, they have both unsuccessfully introduced regional free trade initiatives in order to create beneficial terms for themselves such as the Regional Comprehensive Economic Partnership agreement and the Trans Pacific Partnership respectively. 11 An obvious flaw with these proposals is that they have excluded the opposite superpower. Since both countries are indispensable trading partners to most others, a cooperative effort to create trade agreements would benefit both and could not be ignored.

Although unresolved sovereignty issues in the South China Sea make it a tough case, there is a model to study and lessons to be learned in the cooperative management of the Arctic region (as well as the 1959 Antarctic Treaty and the 1936 Montreux Convention). However, controlling the impulses of a great power to dominate its surroundings requires a massive international diplomatic effort, creating alternative mutually beneficial conditions and a proper balancing of military power. Active U.S. presence and regional capability is fundamental to maintaining a balance and influencing the shaping of a cooperative environment. But first and foremost, there is a requirement for building trust and confidence through long term commitment to international cooperation, predictability and clear intentions. For a start, the good examples from the Arctic have been shared with China, Japan, India, the Republic of Korea and Singapore – all of which are involved or have vital interests in the South China Sea dispute – since they became observer states to the Arctic Council in 2013. Likewise, the U.S. can also benefit from its experience as an Arctic nation, and from the insight gained from holding the chairmanship of the Arctic Council since 2015. Moving forward, the Arctic offers successful governance lessons that can be applied to the South China Sea in order to maintain stability and ensure prosperity for all.

Daniel Thomassen is a Commander (senior grade) in the Royal Norwegian Navy. He is a Surface Warfare Officer serving as Commanding Officer of HNoMS Fridtjof Nansen (FFGH). He is a graduate of the Royal Norwegian Naval Academy (2002), U.S. Naval War College (2015), and holds an MA in International Relations from Salve Regina University (2015).

References

1. Jeffrey Bader, Kenneth Lieberthal, Michael McDevitt, “Keeping the South China Sea in Perspective”, Brookings, August 2014 https://www.brookings.edu/wp-content/uploads/2016/06/south-china-sea-perspective-bader-lieberthal-mcdevitt.pdf

2. Wallis, Arnold, Numminen, Scotcher and Bailes, “The Spitsbergen Treaty – Multilateral Governance In The Arctic”, Alliance of Liberals and Democrats for Europe/Applied International Law Network, Arctic Papers Vol. 1, 2011 https://dianawallis.org.uk/en/page/spitsbergen-treaty-booklet-lauched

3. The Ultimate History Project, “A Serious Joke: Britain and Iceland Go to War”, http://www.ultimatehistoryproject.com/cod-war-britain-and-iceland-go-to-war-over-fishing.html

4. Thorir Gudmundsson, “Cod War on the High Seas – Norwegian-Icelandic Dispute Over Loophole Fishing in the Barents Sea”, Nordic Journal of International Law, 64: 557-573, 1995

5. Jeremy Bender, “2 countries have been fighting over an uninhabited island by leaving each other bottles of alcohol for over 3 decades,” Business Insider, 10. January 2016 http://www.businessinsider.com/canada-and-denmark-whiskey-war-over-hans-island-2016-1?r=US&IR=T&IR=T

6. Jane Perlez, “Philippines and China Ease Tensions in Rift at Sea”, The New York Times, 18. June 2012 http://www.nytimes.com/2012/06/19/world/asia/beijing-and-manila-ease-tensions-in-south-china-sea.html

7. “Military Clashes in the South China Sea” http://www.globalsecurity.org/military/world/war/spratly-clash.htm

8. Matikas Santos, “Key points of arbitral tribunal’s verdict on PH-China dispute”, Inquirer, 12. July 2016 https://globalnation.inquirer.net/140947/key-points-arbitral-tribunal-decision-verdict-award-philippines-china-maritime-dispute-unclos-arbitration-spratly-islands-scarborough#ixzz4UQUrV9m3 

9. Submission by the People’s Republic of China Concerning the Outer Limits of the Continental Shelf beyond 200 Nautical Miles in Part of the East China Sea http://www.un.org/depts/los/clcs_new/submissions_files/chn63_12/executive%20summary_EN.pdf

10. Eliot L. Engel and James G. Stavridis, “The United States Should Ratify The Law Of The Sea Convention”, The Huffington Post, 11. July 2016 http://www.huffingtonpost.com/rep-eliot-engel/the-united-states-should_b_10930236.html

11. Lauren O’Neil, “Trade In Asia: The Liberalization Agenda – Where To From Here?”, Forbes, 13. December 2016

Featured Image: The Canadian Coast guard’s medium icebreaker Henry Larsen is seen in Allen Bay during Operation Nanook, in Nunavut on Aug. 25, 2010. (Sean Kilpatrick/Canadian Press)

PLA Air and Maritime Maneuvers Across the First Island Chain

By Ching Chang

Between late 2016 and early 2017, there were several People’s Liberation Army (PLA) air and maritime maneuvers penetrating the so-called First Island Chain, including a deployment of the only People’s Liberation Army Navy (PLAN) aircraft carrier Liaoning battle group, for a routine exercise in the South China Sea. It went through the Miyako Strait between Miyako Island and Okinawa Island as well as the Bashi Channel, a part of the Luzon Strait between Taiwan and Philippines. All these maneuvers were perceived by strategic commentators and military observers as a milestone that can be signified in the efforts of the PLA’s force building.

Nonetheless, all the military maneuvers penetrating the First Island Chain during this period of time were not entirely revolutionary. Since early 2015, similar air maneuvers have been executed eight times. The Liaoning battle group only cruised through the waters on the east side of the First Island Chain, but no significant or even substantial drill was executed during this leg of maritime maneuvers. While these air and maritime maneuvers are intentionally showing off the PLA’s strength, these military deployments exposed many weaknesses strategically, operationally, and tactically.

First, it is debatable whether these maneuvers are really fulfilling the strategic blueprint of maritime dominance of various island chains as set forth by PLAN Admiral Liu Huaqing in 1982. Liu’s perspectives are widely addressed by many Western strategic thinkers, yet his argument had never been converted into any official PLAN doctrine. At least, the actual developments of PLAN deployments and operations are not consistent with Liu’s original concepts. We must consider whether the PLAN’s strategic planning is still directed and guided by Liu’s visions as presented in 1982. Otherwise, the blindness of self-fulfillment conviction can be a fatal factor in interpreting the PRC’s maritime or naval endeavors.

Second, penetrating the First Island Chain itself is not a strategic barrier but merely a psychological threshold. There are three factors in operational planning and execution: force, space, and timing. The essential strategic space is a geographical space which must be dominated or be occupied by the offensive forces as well as secured or controlled by the defensive side. The nature of the strategically essential space is quite dynamic. A perfect match of the three operational planning and execution factors may turn any geographical space into a strategically essential space at the right time for the right forces. It is meaningless for maritime forces to cruise in the waters that nobody would like to utilize and declare the dominance of these waters. 

On the other hand, cruising through several international waterways during peacetime does not prove the capacity of breaking wartime blockage since no other party had ever expressed objection to these legitimate maritime maneuvers. The fundamental question about these PLAN air and maritime maneuvers is how these maneuvers may imply potential wartime actions. The answer will be inconclusive since these maneuvers can be interpreted as everything but will not be firmly identified as anything. If dominating the waters around the East side of the First Island Chain failed to undermine potential adversaries’ maritime interests, then all the significance emphasized by various strategic commentators are in essence overstated. No matter how routine the People’s Liberation Army Navy and the People’s Liberation Army Air Force crossing the First Island Chain for air and maritime exercises may be, the strategic significance is relatively limited.

Third, unless all the island territories of the associated island chains can be well-controlled before executing any maneuvers, dispatching maritime forces and their airborne counterparts through the First Island Chain runs many risks during wartime periods. In fact, adopting the island chains as the relative geographical indexes may expose the strategic thinking as nothing but an extension of coastal defense. The core of maritime strategic thinking should be the command of the sea, including sea control and sea denial. The essence of maritime majesty is to compel adversaries to follow your will, not to control a space with no strategic value. As compared with Chinese global maritime activities, interests, and naval presence, the actual deployments of the PLAN fleet are already beyond those island chains. Without the dominance of the island chain land territories, the wartime operational sustainability beyond the island chains can be very questionable.

Fourth, many political commentators insisted these People’s Liberation Army exercises and military maneuvers penetrating the First Island Chain are about sending coercive signals to neighboring states, particularly, Taiwan, Japan, and the United States, about the Taiwan issue. The viewpoint can be another overstated bias. Given the three major channels of the PRC for declaring external policies associated with Taiwan, those spokesmen of the Foreign Ministry, Defense Ministry and Taiwan Affairs Office had never taken the initiative to deliver any related intimidating statements during these military maneuvers. In contrast, as many media expressed such speculations, all the PRC mouthpieces, including these three formal spokesmen systems, denied any association between the situations in Taiwan and these military activities. Of course, we still need to scrutinize the realities with the People’s Republic of China’s official statements. Although the cross-strait relationship has significantly deteriorated after President Tsai’s inauguration, the likelihood of employing these military exercises to coerce the Republic of China is still reasonably slim.

Fifth, as reflected by these military maneuvers and exercise scenarios, many operational and tactical features are worthy of discussions. These air maneuvers not only put the focus on air battles but also emphasize the considerations of engaging with the surface combatants, either surface vessels or military sites on land. Attempts for combining different air platforms and integrating units from People’s Liberation Army Air Force and People’s Liberation Army Naval Air Force (PLANAF) are obvious. Certain rules of engagement can be expected since a stable modus operandi is revealed by these maneuvers in different periods of time. The major task for the PLANAF is to practice engagement tactics for targeting surface vessels. Several PLAN surface vessels are concurrently directed as the counter forces for such exercises. Maritime patrol aircraft attend as the scouting platforms, and the airborne early warning and mission control platforms are effectively conducting their command and control functions for air combat and surface attack missions.

No indication of live fire exercise has  been seen with the air and maritime maneuvers across the First Island Chain conducted by PLAN surface vessels or their airborne counterparts so far, but it is only a matter of time. Also, very little evidence proves any significant electronic warfare drills having been executed during these maneuvers, though certain platforms may have the inherent capability for electronic warfare. There are flaws in the exercise plans as well. There are few indications for search-and-rescue arrangements or mechanisms or contingency measures for malfunctions or emergencies. Whether we need to praise the bravery of these PLA military professionals for long-range exercise without a bailout mechanism or speculate the reckless of the PLA operational staff is a topic for further observation.

Last but not least, nobody could ever properly describe the exact scenario for these air and maritime maneuvers until now. There is no clear PLA doctrinal norm to support these exercises with different combinations of platforms. The possible operational concepts reflected by these exercises are still yet arguable. Whether these military exercises may well support the possible political aim is still a myth to be further scrutinized. We fail to generalize any possible operational directive from the same well-known modus operandi for concluding possible rules of engagement since it is very hard to tell what should be the expected operational situations for employing these air or maritime maneuvers. After all, to firmly conclude any meaningful implication from events that only occurred less than ten times is indeed a challenge.

At most, we may successfully exclude some plausible speculations and groundless accusations with political smear intentions. To summarize a prompt judgment on these PLA maneuvers penetrating the First Island Chain recklessly, without military professionalism and political consciences, would be a sin of contributory negligence as we misperceive the potential challenge today and are forced to swallow the catastrophic failure in the future.

Dr. Ching Chang was a line officer in the Republic of China Navy for more than thirty years. As a visiting faculty member of the China Military Studies Masters Program at the National Defense University, ROC, he is recognized as a leading expert on the People’s Liberation Army with unique insights on its military thinkings. 

Featured Image: J-15 fighters launching off of PLAN carrier Liaoning (China Daily)

Expert Panel Forecasts Asia-Pacific Dynamics and Maritime Security

By Mina Pollmann

CIMSEC convened a panel of Asia-Pacific experts to weigh in on recent security developments in the region, provide context on evolving international dynamics, and highlight potential issues to watch closely. Listen to the audio or read the transcript below.

Mina Pollmann: Hello everyone. Thanks for joining us on this call. My name is Mina, and as CIMSEC’s Director of External Relations, I have the honor of moderating today’s call on maritime security trends in the Asia-Pacific. For our CIMSEC listeners, I am pleased to say we have an exciting panel lined up, with four distinguished Asia-Pacific experts joining us to discuss security issues in the maritime domain from various different angles.

Before we begin, I would like to introduce our panelists.

We have joining us today, Captain Jim Fanell, a Government Fellow with the Geneva Centre for Security Policy. Jim retired from the U.S. Navy in January 2015, after spending 30 years as a naval intelligence officer specializing in Asia-Pacific security, with an emphasis on the Chinese Navy and its operations.

We have Greg Poling, director of the Asia Maritime Transparency Initiative and a fellow with the Southeast Asia Program at the Center for Strategic and International Studies. He oversees research on U.S. foreign policy in the Asia-Pacific, with a particular focus on the maritime domain and the countries of Southeast Asia.

We also have Elina Noor, director for foreign policy and security studies at the Institute of Strategic and International Studies Malaysia. Her policy interests include U.S.-Malaysia bilateral relations, cyber warfare and security, radicalization and terrorism, and major power relations.

And Scott Cheney-Peters also joins us, founder and chairman of CIMSEC, and a reservist in the U.S. Navy. His interests focus on maritime security in the Asia-Pacific and naval applications of emerging technologies. The views expressed are those of Scott’s alone and not necessarily representative of the U.S. government or U.S. Navy.

Without further ado, I would like to begin with Jim.

Jim, can you talk us through the most significant changes to the Chinese Navy over the course of 2016 – from a doctrinal and/or capabilities perspective? Also, how do you weigh the prospects for U.S.-China cooperation or conflict in 2017? Are incidents like the spat over the UUV that China picked up last month likely to increase?

Jim Fanell: First of all, thanks Mina for coordinating this and inviting me to participate. I’m very happy to be working again with CIMSEC and the great work you all do.

To answer your questions as concisely as possible, the biggest thing that happened in 2016, in my view, after spending the last couple days reviewing about 10,000 of my emails from the Red Star Rising, is the series of major changes President Xi instituted to the PLA – creating a separate PLA headquarters, elevating the status of the strategic rocket forces and the strategic support force, and reorganizing the seven military regions to five theater commands – all of which had an indirect impact on the navy, elevating their status.

The navy’s status had been rising since before 2016, but that trend continued throughout the past year, which is also evident when one considers the sheer number of events the Chinese Navy held – not only exercises inside the first island chain, but also the great number of operations that occurred outside the first island chain and globally in the Indian Ocean, the Mediterranean, up to the Baltic, down to the South Pacific, and into South America. What we saw was the solidification and culmination of Admiral Wu Shengli’s final year as chief of naval operations for the Chinese Navy.

I think you also saw President Xi recognize that the PLA is the principal tool for Chinese power and acquisition, to maintain China’s outward orientation, including as a part of the One Belt, One Road Initiative. You also saw China participate in RIMPAC 2016, which is a very big operation for them, and a solidification of what they did in 2014 and 2012 – establishing the pattern that they expect to continue in 2018. We’ll see how that goes.

In terms of shipbuilding, it looks like they built about 4.5 times as many ships as the U.S. did in the past year, so their shipbuilding program continued pretty strong. They were globally deployed in many ways, including submarines in the Indian Ocean while they were operating and doing fleet reviews in India – a kind of hard power-soft power approach by the Chinese.

In 2017, we can look for more of the same in terms of their presence. They’ve made it clear that they want to break outside the first island chain, and they demonstrated that very consistently in 2016 – culminating the year with their naval air forces flying outside the first island chain with bombers, fighters, and re-fuelers, circumnavigating Taiwan with their aircraft carrier. We can expect to see more of that in 2017.

I think we can also expect to see the rollout of the new carrier, an indigenous one. This will be their second carrier, but the first one they produced themselves. I think we’ll also get more information about their ballistic missile submarines officially being on SLBM patrol, helping shore up that portion of the nuclear deterrent capability they’ve been talking about.

With controversies, like with the UUV at the end of last year, it’s quite possible we’ll see more things of that nature. I think what you’ll see though, especially in the South China Sea dispute over the Spratly Islands and even over Scarborough, is that you’re going to see the Chinese incrementally continue to react to the United States’ presence.

Before October 2015, you could describe it as a “zone defense.” But by my read, from October 2015, through all of 2016, and even into 2017, the Chinese have taken a man-to-man approach in dealing with the presence of the United States in the South China Sea. I think, now, every time we’ve done one of our four freedom of navigation operations or when we have dual carrier operations or single carrier operations, the Chinese have gone out of their way to make clear and publicize that they are shadowing and following our naval vessels as soon as they come into the South China Sea. We can expect to see that increase, and the pressure from their vessels to become sharper in tone. I don’t expect to see shouldering or ramming, but it all depends on how they interpret the new administration. They will use statements and anything else that comes out of the new administration as justification for such challenging behavior – and we have to be prepared for that.

The littoral combat ship USS Fort Worth (LCS 3) conducts routine patrols in international waters of the South China Sea near the Spratly Islands as the People’s Liberation Army-Navy guided-missile frigate Yancheng (FFG 546) follows close behind. (U.S. Navy video by Mass Communication Specialist 2nd Class Conor Minto/Released) May 12, 2015

Mina: Thank you, Jim. Now, I’d like to turn to Greg. What are the most salient facts to know about China’s recent construction activities in the South China Sea? To make sense of their construction activities, what are the key indicators you are looking for in 2017 as signals or markers for Chinese intentions? Will the PCA ruling or a potential ASEAN code of conduct modify Chinese behavior?

Greg Poling: Thanks, Mina. I think what we saw, certainly over the last year, is continued consolidation by China of the installations made in the Spratlys and the expansion of its capabilities in the Paracels, all the while, at least in the second half of the year, pretty successfully diverting international criticism, at least diplomatically so.

If you only read the press on the South China Sea in 2016, it looked like two different years. In the first half of the year was high level bullying, especially of the Philippines but also everybody else, in an effort to prevent nations from publicly supporting the PCA ruling, along with this “will they-won’t they” debate about construction at Scarborough, which the U.S. seems to have successfully deterred in the short-term.

But after the July ruling, all of a sudden, we heard a tonal change from the Chinese. The election of President Rodrigo Duterte in the Philippines opened that door, but Beijing gladly walked through it. They continued to lash out at the U.S., Australia, Japan, and Singapore for perceived support of the Philippines, but towards the rest of ASEAN and especially the Philippines, they took a more polite approach. That pretty successfully helped them avoid the widespread censure that would have at least brought some pressure to change Chinese actions. Since that didn’t happen, I think they’ll see that they have largely a green light to return to a more coercive stance in 2017.

So while all of this change in tone, and all of this diplomatic effort was going on, we still saw the completion of 72 small hangars for combat aircraft at the three biggest islands in the Spratlys, the construction of larger hangars for maritime patrol, heavy lift, and refueling craft, continued upgrades to ports and docking facilities that allow the Chinese Navy, coast guard, and paramilitary forces to stay out in the southern regions of the South China Sea 24/7 in a way they haven’t been able to prior to the artificial island construction, and we continue to see the increase in their monitoring capabilities with radar facilities, signals and intelligence. Fiery Cross Reef looks like it’s being turned into a hub for all of this data collection apparatus.

Johnson Reef, with key facilities indicated (CSIS AMTI/Digital Globe)

What I’m going to be looking for next – which seems almost inevitable – is the first deployment of combat aircraft to the Spratlys, and I think that’s really a matter of when, not if. The Chinese did not build all of this air infrastructure to not use it. I think we should expect to see the deployment of surface-to-air missiles pretty soon. The HQ-9 systems that made waves last year are still emplaced on Woody Island. Woody Island has in many ways been a lower scale model of what we see in Mischief, Subi and Fiery Cross Reef. So I think we’ll see those deployments soon. And they might very well be used early in the next U.S. administration, as a test of the Trump team’s willingness to confront the Chinese.

If you are a Southeast Asian claimant, life is going to get a lot harder this year. So far we’ve seen a backing off of the most aggressive behavior by the Chinese. But it’s also the middle of storm season, so we don’t have hundreds of fishermen getting into it with the Chinese like we will in the spring. I think we are going to see the next escalation triggers sooner rather than later as the math works against us – the sheer number of Chinese vessels willing to try to close off the disputed area to the claimants is going to increase, whether we like it or not.

And on the code of conduct – much has been made of this pledge by Foreign Minster Wang Yi on the sidelines of the ARF that China would agree to a framework code of conduct by mid-2017. But that is a pretty “squishy” commitment. First, I have no idea what a “framework” for a code of conduct means. I don’t think anybody does. Second, we’ve seen no willingness by China to agree to a binding code of conduct – and even if they did, they have no willingness to clarify their claims, so it’s hard to imagine where that even applies. Third, if China’s past behavior is the best indicator of future behavior, then this seems to be nothing more than a delaying tactic. It took a decade to get China to agree to the guidelines for implementation of the DOC, which have still not been implemented, and have really done nothing to stop the escalation. Even if we get a toothless precursor to the COC this year, I don’t think it really changes anything.

Mina: Thank you, Greg. Elina, focusing more on the bilateral aspect of the U.S. relationship with Southeast Asian states, and how the U.S. is trying to promote the rule of law in this complicated dispute, how significant are the changes we saw in 2016 in terms of the U.S. relationship with Vietnam? And with the Philippines? How are other states – such as Malaysia, Singapore, Indonesia – trying to respond to the increasing U.S.-China tension in the region?

Elina Noor: I think the short answer to your last question is, is with difficulty. But I think context is very important to keep in mind here. When considering Southeast Asian states and the sometimes puzzling behavior of their respective leaders, we often tend to superimpose a geopolitical, major power rivalry – in this case the U.S. and China – to understand some of their complex behavior, and we often fail to see things from the national perspective.

The Philippines for example – I think there was this perception that the Philippines was casting aside the U.S. as its long-term ally, and moving close towards China in particular towards the end of last year. But if you look at developments more closely, you see that President Duterte was only trying, and is still only trying, to do is what many other Southeast countries have been doing for a very long time – which is trying to balance the major powers in the region. We’re all very small countries here, with maybe the exception of Indonesia. And under President Aquino, the Philippines was seen as completely being in the U.S. orbit, while President Duterte, in my view, is just trying to “rebalance” that relationship, so to speak, and trying to bring it back closer to the center, to reposition the Philippines among all these different and influential powers in the region while also trying to extract maximum benefits for the Philippines itself.

Phillipine President Rodrigo Duterte (Aaron Favila/AP)

For Vietnam, definitely the lifting of the arms embargo as conditional as it was, was still very significant. We know the bitter history between the U.S. and Vietnam. But, again, to cast this in light of this big U.S.-China rivalry is only one aspect of the consideration.

Similarly, there has been a lot talk of Malaysia turning towards China because of all these deals. These are mostly economic deals and investment-based. But there was also the defense deal that was done during Prime Minister Najib’s official visit to Beijing in late October/early November 2016. The fact that Najib himself called it a “landmark deal” lent even more flavor to the idea that it was about Malaysia aligning itself more closely with China. But when you look more closely at the details, you will see that the China-Malaysia defense relationship is still very nascent and underwhelming, especially considering that China and Malaysia had signed a defense MOU back in 2005. It hasn’t really developed over the years, and it’s only been in recent times, during the last two to three years, that it culminated in a tabletop exercise and a command exercise, and from now on, on an annual basis, we will see joint exercises of friendship and cooperation. But this is really just a confidence building exercise that both the Chinese and Malaysian military is embarking on, really just trying to assess the comfort level between the two militaries. On the other hand, consider the fact that Malaysia has a long, established, solid defense relationship with the U.S., in particular, but also with other countries in the region – like Australia, Singapore, and New Zealand.

If we view things more holistically and drill down to the details, you will see that the U.S. relationship with Southeast Asian states is still very significant, but I caution anyone against trying to understand national developments in the Philippines, Vietnam, Malaysia, Singapore, and Indonesia as mainly a U.S.-China-and-“pick your Southeast Asian country” trilateral relationship. It’s more about the national interest of each of the Southeast Asian states and how they position themselves between the major powers of the U.S. and China or try to optimize their national interest in the midst of all this rivalry.

Mina: Thank you, Elina. And finally, Scott, taking a macro view of developments in the Asia-Pacific in 2016, how do you assess President Obama’s “rebalance”? Did the U.S. succeed in creating new partnerships and strengthening existing relationships in the naval domain? Have other U.S. allies or partners been successful in this regard? One of the most exciting stories early on in 2016 was whether Japan and Australia, two key US allies, would cooperate on submarine production, but that initiative fizzled. Is defense technology cooperation a feasible area for future U.S. leadership in the Asia-Pacific?

Scott Cheney-Peters: Thank you so much for that. Absolutely so. I think the key underpinning of the strategic rationale of the “rebalance” was correct and it still holds true. And that is, that outside of North America, Asia will be the most important region for the U.S.’s security and its values. Dan Rather had a good piece in the Washington Post about how President Obama’s foreign policy focus was a little bit like Jon Snow’s from the Game of Thrones in that it was right in the big picture about the “rebalance” to Asia but a little bit negligent about the dangers of conflicting agendas. It talks about how things like the Iran deal could be seen in the framework of removing these distractions, but also how, despite these efforts, many real world events and folks with other goals, like Putin, get in the way of this vision. As such, the record in prioritizing and safeguarding U.S. interests in Asia against other threats has been something of a mixed bag.

I’m going to focus on the security front in particular. And since my esteemed colleagues have talked a lot about China, I’m going to put that a little on the backburner, but it has brought us this focus through the “rebalance,” this enhanced substantial cooperation with many countries in the region including Japan, Australia, Vietnam, the Philippines, Singapore, Indonesia, India, Sri Lanka, and even China. But these gains can be seen as tactical and reversible – as we saw with Thailand and the coup, and in the Philippines as Elina alluded to, because our interest is not singular. It’s not just security, or economics, or values. It’s a mix of those because we understand the intertwined nature of these interests over the long run.

While eight years without any major conflict in Asia during this past administration is not insubstantial, and several long-running internal disputes and boundary issues were resolved or moved closer to resolution, other security threats have increased. The U.S. is going to have to figure out how to deal with North Korea, which seems to be determined to pursue increasingly capable nuclear weapons. And as Jim and Greg alluded, also dealing with a China that is undertaking this campaign of maritime coercion while violating international norms and laws. In the maritime domain, there are non-state threats, such as resurgent piracy, kidnapping, and armed robbery at sea and increasingly aggressive competition for marine resources. We’re seeing also an influx of Islamist radicalism that could potentially inflame ongoing insurgencies in Thailand and the Philippines. Of late, we’ve also seen the potential for radicalization of the repressed Rohingya in Burma. So we’re seeing a lot of security threats and issues that have somewhat metastasized over the past several years.

On other fronts, like economics, we obviously spent a lot of time and effort trying to develop the Trans-Pacific Partnership, which I understand now has been withdrawn prior to ratification and it remains to be what seen what will replace it – but that cannot be counted as a win for the “rebalance.”

World leaders gathered at the ASEAN-U.S. Summit (Getty Images)

Regionally, we have seen a lot of participation by the U.S. in things that are going to build and strengthen regional framework for maritime security cooperation, things like the Maritime Security Initiative, the DoD-led initiative to help develop the maritime security capabilities of some of our Southeast Asian partners; ReCAAP, the regional agreement for countering piracy and armed robbery; and the ASEAN Regional Forum. These all have really gotten their feet under them, really developed, just over the past eight years or so. But without sustained diplomatic effort, which is one of the things the “rebalance” was good at investing, it remains to be seen how much further these can develop. The good news for the region is that, probably, other than the MSI, they can support themselves without U.S. support and participation, but certainly our involvement would help to mature and strengthen them.

As to our partners, I think Japan has been quite successful in constructing maritime partnerships in part due to what I call “patrol boat diplomacy” of helping Southeast Asian partners develop their maritime capability on generous terms, whether it’s Vietnam, the Philippines or Malaysia. And this is something that Australia has also long undertaken, especially in the South Pacific. India has also been warming to this approach. We see a couple of new deals between India  through no longer just its “look east” but also its “act east” policy. In the future we are likely to see all three continue to pursue maritime technology cooperation and defense export opportunities. I would add a caveat that the exact nature of those deals remain to be seen and will depend on the calculation of both sides, not just in terms of security considerations, but also, sometimes primarily, on domestic economic and political concerns – for things like shipbuilding jobs and technology transfers.

I don’t know how much of a leadership role the U.S. will take in technology transfers or technology cooperation, but I remain optimistic about improved ties in technology cooperation with India, and what that means in terms of developing naval aviation capabilities. So that’s a broad stroke, and I’m looking forward to our discussion, I have some questions I want to ask our fellow panelists

Mina: Great, thanks, Scott. I’m going to begin with one follow up question, and then we can have a little bit of a discussion. There’s still plenty of questions about what policies this administration will pursue, but I think we can already say that this administration will be characterized by unexpectedness, unpredictability, and misinformation. How are these traits of the Donald Trump administration going to shape how states in the Asia-Pacific, including key allies such as Japan, craft their maritime strategy and foreign policy?

Scott: I’d like to put a spin on that question and shoot it over to Elina. I’m curious what you think the nations in Southeast Asia, what signals or messages from the United States will help them breathe a sigh of relief?

Elina: I think that’s a tough one, Scott. As Mina pointed out there does seem to be a lot of unpredictability and uncertainty right now. We heard President Trump’s speech during his inauguration, and his emphasis on America First. I think what we can see in Southeast Asia – subject to whatever develops in the next few months  – is that the relationship will be a transactional one as many people have said. And that transactional relationship will be dependent on how much the Trump administration can draw from its partners in Southeast Asia. Now this will be a bit of bargaining back and forth between Southeast Asia and the U.S. Obviously, the smaller Southeast Asian nations will not have the bargaining chips to play that the United States does.

Some of the signs Southeast Asian states are looking for will not be forthcoming in the next few months, because I think they’re looking for signs of predictability, reassurance and stability – none of which has been present thus far. ASEAN in particular, given its fiftieth anniversary this year, will be looking for some form of commitment, at least the presence of President Trump at the EAS, and I’m not sure that we can even expect that. I know that in the past the U.S. has sort of downplayed the appearance of its leaders at events like the EAS and even senior officials at the ARF, but I think as we all know, in Southeast Asia just showing up is key. And at this stage, I don’t think we can even expect that come November.

All the signs Southeast Asia is looking for – predictability, certainty, stability, assurance, it’s all coming now from the one unpredictable actor that was around and has been around and will continue to be around: China. In the past, we saw signs of reassurance from the U.S. against China, but now the situation seems to be reversed.

Scott: That’s a great answer and great points. Greg, I’m wondering if you’ve seen to Elina’s point, any policies coming out from Trump’s administration pertaining to Asia outside the U.S.-China context.

Greg: Well, no, not outside of the U.S.-China relationship. Despite its many shortcomings, the one thing the Pivot did quite well was focus on middle powers and Southeast Asia states. It situated China policy within Asia policy, not the other way around. So far, for Trump and most of his senior advisers and the transition team, what we’ve heard is an Asia policy almost entirely dominated by China with a sprinkling of North Korea. If you expect a transactional approach to interstate relations, which I think is reasonable, you’re perceived value vis-à-vis U.S.-China relations is going to determine your value to a large degree. If you’re sitting in a Southeast Asian capital, that’s the one thing that should really worry you. Elina mentioned the importance of just showing up in Asia – I don’t think we should expect Trump at the East Asia Summit. That seems extremely unlikely. We’re not going to see the same focus on Southeast Asian states, Australia, India, Japan except through that bilateral U.S.-China prism.

The biggest factor of uncertainty though, is how much does the stated policy and platforms of the president-elect and nominee Trump actually translate into foreign policy? How much does President Trump want to be involved in foreign policy? We’ve certainly heard suggestions that he’s not going to play a very active role. He’s going to allow a much bigger role for players like Michael Flynn, the NSC, Mike Pence, and General Mattis, so it is possible that all of these statements from the president don’t actually frame the way the president pursues foreign policy.

Mina: That makes a lot sense – just from the flip-flopping we’ve been seeing between the campaign and what is now a two-days-old presidency at the time of this recording. I’m still curious how states are reacting to the U.S., but breaking out of Southeast Asia, what are the signs that Japan and Taiwan in Northeast Asia are looking for? We haven’t really touched on the East China Sea but that’s also a hot spot in the Asia-Pacific that has gotten increasingly tense over the past year.

Scott: Jim, maybe that’s an opportunity for you to jump in here. You mention the Red Star Rising, but perhaps you could provide a little more context for our listeners about that and if you’ve seen any discussion about the role of Taiwan in the new administration.

Jim: First of all, the Red Star Rising is just an email distribution list that I’ve had going on for 11 years. Got a number of people at State, DOD, academia and the press, and people in theater, in the country and regions are on the list so we try to follow things from their perspective. Anybody listening to this send us an email at kimo.fanell@gmail.com and we’ll add you to the list.

Second, before we get to Taiwan, I would like to give an alternative view about the characterization of the Trump administration. One, Mina said it, they’ve been in power a day and a half. Two, if you go back and look at the Obama administration’s announcement of the rebalance or the pivot that was a year and a half into his administration before it was announced, and it was certainly another two years before we started seeing tangible aspects of that policy being implemented. I would caution people not just in the United States but also overseas to give it a little more of a “breather” here. There have been no stated policies on anything, so to make judgments about what these will be and to make assumptions that everything is going to be transactional is very premature.

Especially when you listen to testimonies of Secretary of Defense Mattis and Secretary of State nominee Tillerson, their comments reflect an understanding of the requirements and necessities to sustain our alliance structure. General Mattis’ first statement yesterday after he was confirmed, he said to the Department of Defense “I’m glad to be working with you,” and to the people of the intelligence community, and the last portion of that two or three sentence message to the Department, he said we need to have “friends and alliances,” so I think we need to see US foreign policy through the lens of greater continuity in the post-WWII environment. In my opinion, our commitment to the international order is not going to be upended, and take it for what it’s worth, but I think that’s the message you’ll be seeing coming out of this new administration. There will be parts of it that will echo and reinforce what the president-elect said, but I didn’t hear those statements even in the Inauguration speech. He talked about America not forcing its view on other countries, but I think there’s a lot there to work with. People may not like all that is said, but there is a longer continuity to history.

With respect to Taiwan, I do think it’s an area where this new administration is not going to be constrained by previous history. I’m kind of undercutting what I just said, but I think it’s very clear what happened is not just happenstance, and we can expect to see more direct challenges to the idea that the United States cannot deal with and talk to Taiwan. I think there’s been a lot of discussion about what is the “One China” policy. And if you go back and look at the original statements from the 70s, we said we accepted the understanding that China believed Taiwan was part of China, but we were not making a judgment on that. I think that hasn’t been focused on in the past two, three decades, but I think that will be under discussion again and that will certainly upset Beijing. I think the purposes for that, you may attribute to transactional relationships in other aspects, like economics. I think this new administration is going to challenge China on its unwillingness to uphold the international order – such as their unwillingness to follow the PCA ruling – and they might do that through an indirect or asymmetric approach.

Mina: Thank you very much. I’m sure our listeners will appreciate this. And now finally, before we sign off, I have one last question for each of our panelists, in the same order as initial responses, and it is, what project are you most excited to be working on this year, that CIMSEC readers and listeners should keep an eye on?

Jim: I’m always working on all kinds of different things, but I think my focus will stay on watching what the Chinese Navy is doing in terms of enforcing their view of the task to rejuvenate and restore China, including in their maritime domains. That’s where my focus will remain.

Greg: Not to parrot Jim’s answer but me personally and at AMTI, we will be looking to do more of the same. We’re looking to boost readership of the site, increase our ability to bring pressure and transparency. Part of this is, for instance, we just launched multilingual versions of the website in Chinese, Malay and Vietnamese to drive readership outside of the United States. We’re also looking to do a couple new projects that move beyond just pulling back the curtain on what China’s doing in the South China Sea but look at, well, what do we do about that, beyond just the military realm, which is what we have been working on. We want to look at environmental issues, legal issues, law enforcement, et cetera.

Elina: I’m excited to be focusing more on cyber issues. It doesn’t have direct links to what we are talking about now, maritime security, but as you know, operations in cyber space cut across all traditional domains. So in the next few months, you will hear about a global commission on stability in cyberspace being announced. I don’t want to preempt or undercut any public announcement, but I think you will hear exciting news coming from that space, and I will particularly be helping try to craft norms and rules for state behavior in cyberspace and international relations. That’s what I’m looking forward to this year.

Scott: Those all sound like fascinating projects, and I look forward to learning more about those. I do want to take the opportunity to thank my co-panelists and colleagues for joining us on this podcast and for those listeners out there, if you are interested in heading out – especially in DC – to any CIMSEC events, we often get the opportunity to host some of these great thinkers in more informal discussions and more give-and-take in person events. So look for those events coming up on our website.

For myself, I am looking forward to continuing on our work on the Crowded Seas project, which is looking at the maritime domain in Asia in the 2030-2040 timeframe and looking at some of the potential security implications. If you haven’t had a chance yet, you can take a look at the amazing, speculative fiction that I’ve written with my colleague Richard Lum on our website. Feedback is appreciated. Don’t expect any Pulitzer prize-winning writing, it’s just for fun, but we will have a more serious think tank take a look at our more creative approaches to the problem. With that, I’m going to thank Mina and turn it back to her.

Mina: Thank you. It looks like there’s a lot for our listeners and readers to look forward to coming out of your projects. Again, thank you so much to all our panelists for joining us on this call, and I can’t wait to get this out to our listeners!

Mina Pollmann is CIMSEC’s Director of External Relations.

Featured Image: Ships sit idle off Singapore (Andrew Rowat\The Image Bank \Getty Images)