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Asia-Pacific, Territorial and Law of the Sea Disputes

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

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By Alex Calvo

This is the second installment in a four-part series devoted to China’s 7 December 2014 document, putting forward her views on the Philippines’ international arbitration case on the South China Sea. Although Beijing is refusing to take part in the proceedings, as confirmed following the Court’s 29 October 2015 ruling on jurisdiction, by issuing this document, and communicating in other ways with the Court, the PRC has failed to completely stay aloof from the case. It is thus interesting to analyze China’s narrative as laid down in that document. Read Part One.

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Putting the cart before the horse? China argues delimitation of land territories must come first. The text affirms (6) that “Since the 1970s, the Philippines has illegally occupied a number of maritime features of China’s Nansha Islands, including Mahuan Dao, Feixin Dao, Zhongye Dao, Nanyao Dao, Beizi Dao, Xiyue Dao, Shuanghuang Shazhou and Siling Jiao. Furthermore, it unlawfully designated a so-called ‘Kalayaan Island Group’ to encompass some of the maritime features of China’s Nansha Islands and claimed sovereignty over them, together with adjacent but vast maritime areas,” claiming sovereignty “over Huangyan Dao of China’s Zhongsha Islands and illegally explored and exploited the resources on those maritime features and in the adjacent maritime areas,” and (10) argues that in any case it is not possible to rule “on whether China’s maritime claims in the South China Sea have exceeded the extent allowed under the Convention” until “the extent of China’s territorial sovereignty in the South China Sea” has been determined.

This argument is central to China’s case, being the opposite of one of the pillars of Manila’s arbitration bid, namely that it only concerns the extent and manner that rights are exercised, rather than territorial delimitation, which is out of bounds to the court due to Beijing’s derogation (that is, opt out from that aspect of the convention, meaning that compulsory arbitration does not extend to territoria delimination in the case of China), which Manila acknowledges. To press the issue further, Beijing cites the ICJ, (11) pointing out that “the land dominates the sea.” That is, it argues that one cannot discuss whether the sea is being used in accordance with UNCLOS before a full determination of a country’s land territory has been made, a determination not open to the Permanent Court of Arbitration without Beijing’s consent. The text calls (14) Manila’s attempt to examine the former “contrived packaging” which “fails to conceal the very essence of the subject-matter of the arbitration, namely, the territorial sovereignty over certain maritime features in the South China Sea.” Another, less aggressive, term employed by the text (18) to press home the same point is “putting the cart before the horse.” To support this view, the document argues (18) that there is no precedent “in relevant cases” of any “international judicial or arbitral body” having “ever applied the Convention to determine the maritime rights derived from a maritime feature before sovereignty over that feature is decided.” While international tribunals like the PAC are not, formally speaking, bound to the doctrine of precedent (stare decisis), they do tend to follow previous rulings. However, there have not been a large number of cases, much less a coherent set of rulings, on this issue. Therefore, we may say that there is simply no consistent body of case law on whether it is possible to examine compliance with UNCLOS of a country’s practice at sea in advance of territorial determination.

“China claims reclamation work in the South China Sea is in accordance with international law.”
“China claims reclamation work in the South China Sea is in accordance with international law.”

Appropriation of low-tide elevations: Beijing argues not up to interpretation of UNCLOS. Concerning the “low-tide elevations” that Manila claims to be such and has included in its arbitration bid, saying that they cannot be appropriated, China’s document (23 and 24) argues that “whether or not” they “can be appropriated is plainly a question of territorial sovereignty.” Formerly often referred to as “drying rocks” or “banks,” UNCLOS defines “low-tide elevations” as “a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide.” The Chinese paper states that it “will not comment” on whether they are “indeed low-tide elevations,” while pointing out that “whatever nature those features possess, the Philippines itself has persisted in claiming sovereignty over them since the 1970s,” citing “Presidential Decree No. 1596, promulgated on 11 June 1978” whereby Manila “made known its unlawful claim to sovereignty over some maritime features in the Nansha Islands including the aforementioned features, together with the adjacent but vast areas of waters, sea-bed, subsoil, continental margin and superjacent airspace, and constituted the vast area as a new municipality of the province of Palawan, entitled ‘Kalayaan.’” China’s position paper cites later Filipino legislation, arguing that while pretending to adjust claims to UNCLOS it does “not vary the territorial claim of the Philippines to the relevant maritime features, including those it alleged in this arbitration as low-tide elevations.” The text accuses Manila of contradicting herself by first asserting in “Note Verbale No. 000228, addressed to Secretary-General of the United Nations on 5 April 2011” that “the Kalayaan Island Group (KIG) constitutes an integral part of the Philippines,” the KIG including among others “the very features it now labels as low-tide elevations,” with the “only motive” being to deny them to China and “place them under Philippine sovereignty.” Furthermore, the position paper argues (25) that UNCLOS “is silent on this issue of appropriation” of low-tide features, citing the ICJ in the 2001 Qatar v. Bahrain ruling, where it stated that “International treaty law is silent on the question whether low-tide elevations can be considered to be ‘territory.’ Nor is the Court aware of a uniform and widespread State practice which might have given rise to a customary rule which unequivocally permits or excludes appropriation of low-tide elevations.” The text also cites a later 2012 ICJ case, the “Territorial and Maritime Dispute (Nicaragua v. Colombia),” where it stated that “low-tide elevations cannot be appropriated” but argues that the Court “did not point to any legal basis for this conclusory statement. Nor did it touch upon the legal status of low-tide elevations as components of an archipelago, or sovereignty or claims of sovereignty that may have long existed over such features in a particular maritime area,” adding that “the ICJ did not apply the Convention in that case.” Therefore, China’s position paper argues, “Whether or not low-tide elevations can be appropriated is not a question concerning the interpretation or application of the Convention.”

Taiwan: lurking on the background. Taiwan and the “One-China Principle” are not absent from China’s document either, the text (22) accusing Manila of committing a “grave violation” of the principle for omitting Taiping Dao (Island) from the list of “maritime features” described as “occupied or controlled by China.” Instead, the text describes it as being “currently controlled by the Taiwan authorities of China.” This is a reminder that the conflict over the South China Sea is connected with that over Taiwan, in a number of ways. We may ask ourselves whether Manila was departing here from her “One-China Policy.” Was this a warning shot, or merely another example of how state practice concerning Taiwan is moving (sometimes inadvertently) away from Beijing’s strict position in many countries.

The burning question of freedom of navigation and overflight. Given the current controversy over FON (Freedom of Navigation) operations by the US Navy, along or together with partners and allies, close to China’s artificial islands in the South China Sea, this is an aspect of Beijing’s paper of great interest to observers. Concerning this, section 28 stresses that “China always respects the freedom of navigation and overflight enjoyed by all States in the South China Sea in accordance with international law.” While this is in line with repeated assertions by Chinese authorities, it prompts further doubts on the exact nature of Beijing’s claims, in the sense that if all it was demanding was an EEZ then freedom of navigation and overflight would simply flow from international law, without the need for any concession by the coastal state. The issue is made more complex by the fact that in Beijing’s view the rights of coastal states are more extensive than in the eyes of countries such as the United States, going as far as including the right to authorize or deny military activities such as electronic intelligence gathering, which has been the source of a number of incidents, some of them fatal. Thus, if what China is claiming is an EEZ, is Beijing making a concession and accepting a lesser set of coastal state rights in the particular case of the South China Sea? Alternatively, should we read “freedom of navigation and overflight” as being restricted to civilian ships and planes, or at least not including any activities such as ELINT (electronic intelligence) gathering, prejudicial to the coastal state? Other questions may be prompted by China’s assertion. For example, does this also apply to territorial waters around Chinese islands in the South China Sea? A question made more complex by the fact that there is no agreement over which islands are islands there, in particular given the extensive reclamation work taking place.

Read the next installment here. 

Alex Calvo is a guest professor at Nagoya University (Japan) focusing on security and defence policy, international law, and military history in the Indian-Pacific Ocean Region. A member of the Center for International Maritime Security (CIMSEC) and Taiwan’s South China Sea Think-Tank, he is currently writing a book about Asia’s role and contribution to the Allied victory in the Great War. He tweets @Alex__Calvo and his work can be found here.

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Asia-Pacific, Territorial and Law of the Sea Disputes

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

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By Alex Calvo

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

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

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

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

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

FONOPS-body

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

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

Alex Calvo is a guest professor at Nagoya University (Japan) focusing on security and defence policy, international law, and military history in the Indian-Pacific Ocean. Region. A member of the Center for International Maritime Security (CIMSEC) and Taiwan’s South China Sea Think-Tank, he is currently writing a book about Asia’s role and contribution to the Allied victory in the Great War. He tweets @Alex__Calvo and his work can be found here.

Asia-Pacific, History, Territorial and Law of the Sea Disputes

He Who Defends Everything Defends Nothing

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He who defends everything defends nothing: The Philippines, Scarborough Shoal, the South China Sea, and Sabah and the Sultanate of Sulu

By Alex Calvo

Introduction. The Philippines’ South China Sea strategy brings together rearmament, rapprochement with the US, tighter security and defense links with Japan, and an international arbitration case under UNCLOS, whose fate is still pending, with oral hearings on jurisdiction having taken place over the summer. Manila’s narrative and legal arguments concerning Bajo de Masinloc (Scarborough Shoal) are grounded on post-World War II developments. On 18 April 2012 the Philippines’ Department of Foreign Affairs stated that “The Philippines considers Bajo de Masinloc an integral part of Philippine territory on the basis of continuous, peaceful and exclusive exercise of effective occupation and effective jurisdiction over the shoal”, stressing this was not based on UNCLOS but “anchored on other principles of public international law”, and also underlining that it “is not premised on the cession by Spain of the Philippine archipelago to the United States under the Treaty of Paris”. While, alternatively, the Philippines may seek to resort to historical arguments from earlier eras, this may play into China’s hands, as noted by some observers. The offer to Malaysia to downgrade Filipino claims on Sabah in exchange for moves reinforcing Manila’s position in the international arbitration case under UNCLOS seems to confirm that the Philippines have indeed decided to focus on post-WWII arguments.

Alternatively, Manila may have sought to follow one of three routes to prove the past exercise of sovereign powers as the foundation for her territorial claims in the South China Sea. The first possible line of argument would involve proving that the Spratly were part of the Spanish Philippines, and were transferred to the US after the 1898 war. The second would be to claim that they were incorporated into the Philippines following their transfer to American sovereignty. Finally, a third approach would be to argue that they were part of the Sultanate of Sulu, thus linking the two claims.

The Spanish colonial era. Three international conventions regulate the geographical extent of the territorial transfer following the 1898 war: the Treaties of Paris and Washington between the US and Spain, and that concluded between the United States and Great Britain on 2 January 1930. A range of potential problems would loom large if Manila tried to resort to the geographical extent of this territory. First of all, the mentioned treaties do not provide a fully detailed picture of the resulting borders. Second, the actual reach of the colonial administration was not always clear, with widespread resistance to Spanish rule and insurgency in a number of areas. In line with many other colonies, actual control was often a measure of distance from the capital, and went from long-standing exercise of sovereign powers, resulting in widespread cultural, linguistic, legal, economic, and social, influence, to little more than nominal sovereignty (or suzerainty when indirect rule was favored) on paper. Third, geographical knowledge was not always accurate, with some territories imperfectly mapped or chartered, and confusion sometimes arising out of conflicting accounts. Having said that, some maps, like the one below, do explicitly include features currently under dispute, such as Bajo de Masinloc (Scarborough Shoal).

Spanish colonial era map of the Philippines, including Bajo de Masinloc / Scarborough Shoal. Kindly provided by Dr David Manzano Cosano, Escuela de Estudios Hispano-Americanos (CSIC; Spanish National Research Council)
“This map, from present-day Italy, included the Spratly in the Philippines’ territory”

Furthermore, some expeditions and other activities took place featuring Bajo de Masinloc (Scarborough Shoal). After a long history of uncertainty over its existence and location, the grounding of HMS Scarborough, chartered by the East India Company to transport tea, on 12 September 1748 led not only to its modern English-language name, but to its precise chartering. Navigation charts published after the incident reflected it, but uncertainty still meant some debate on exactly where the ship had run aground, and some decades would pass until this was dispelled. It was the Malaspina Expedition which in May 1792 finally ascertained the exact location of Scarborough Shoal, and confirmed that some reefs appearing on maps actually referred to this feature. This was followed, in 1800, by the first detailed Spanish survey, conducted by the frigate Santa Lucia, part of the Cavite-based naval squadron. Commanded by Captain Francisco Riquelme, she was one of the first steam-powered warships deployed in the Philippine Islands to take part in the campaigns against the Sultan of Sulu and the Moro slave-raiding pirate bands. Thus, this ship illustrates two aspects of Spanish colonial rule which to some extent are contradictory, supporting and weakening potential historical arguments in line with Philippine claims. On the one hand, it illustrates the connection between the Philippines and Scarborough Shoal, with activities from Luzon-based ships. On the other, it reflects how conflict with insurgents and pirates were a constant of the period, with sovereignty on paper extending further than on the ground (and the waters).

Frigate Santa Lucia, which commanded by Captain Francisco Riquelme conducted the first Spanish survey of Scarborough Shoal (Bajo de Masinloc) in 1800
Frigate Santa Lucia, which commanded by Captain Francisco Riquelme conducted the first Spanish survey of Scarborough Shoal (Bajo de Masinloc) in 1800

“This low-lying reef, per Riquelme, extends more than 8 2/3 miles from North to South, and 9 1/2 miles from East to West from one end to the middle part, but from there narrowing until it ends in a tip. It is surrounded by horrible dangers that may appear without warning or other markings to serve notice of their proximity. Some rocks can be seen slightly above water only by close observation on a clear day, and only by having careful look-outs can one see the reef at a distance of 7 miles”Capitan Riquelme’s findings were incorporated into the “Dorroteo del Archipielago Filipino”, the Spanish pilot’s guide. An 1879 edition reads:

Spanish colonial authorities did not only incorporate details of Scarborough Shoal into their charts, but also began to exercise search and rescue jurisdiction over the shoal, sending ships from Manila to assist vessels in distress. Since this is one of the activities traditionally considered to fall under the umbrella of exercise of sovereign powers, it is worth noting.

Eastern half of the General Chart of the Pacific Ocean, published in 1897 by the Hydrography Section of the Spanish Navy.
Eastern half of the General Chart of the Pacific Ocean, published in 1897 by the Hydrography Section of the Spanish Navy.
Eastern half of the General Chart of the Pacific Ocean, published in 1897 by the Hydrography Section of the Spanish Navy.
Spanish colonial era map of the Philippines, including Bajo de Masinloc / Scarborough Shoal. Kindly provided by Dr David Manzano Cosano, Escuela de Estudios Hispano-Americanos (CSIC; Spanish National Research Council)

The Philippines under American sovereignty. A second possibility would be to argue that once under American sovereignty, currently disputed features clearly came to be officially considered part of Filipino territory. A significant obstacle to any such assertion is Washington’s long-held position that it takes no position on territorial disputes in the South China Sea, restricting its policy to how disputes are solved (insistence on peaceful solutions in accordance with international law) and the extent of any resulting settlement, with particular emphasis on freedom of navigation and overflight, and compliance with US views on the extent of coastal states powers in their EEZs. In December 2014 The Department of State published No 143 in its “Limits in the Seas” series, titled “China: Maritime Claims in the South China Sea”, which again emphasized that “The United States has repeatedly reaffirmed that it takes no position as to which country has sovereignty over the land features of the South China Sea”.

However, this view does not reflect the fact that the activities described earlier under Spanish colonial rule continued to take place after 1898. The most famous, and a well-documented, incident took place in 1913. A typhoon hit the S.S. Nippon, a Swedish steamer carrying copra, and she was wrecked on Scarborough shoal. This prompted Philippine authorities to intervene, together with private ships, in the rescue of the crew, investigate the accident, and carry out a scientific study on the effects of the sea on her cargo. In addition, the ship came under the salvage laws of the Philippines, and the resulting legal case was appealed all the way up to the Supreme Court of the Philippines, leaving behind an extensive paper trail documenting the exercise of a wide range of powers by the Philippine authorities in connection with Bajo de Masinloc (Scarborough Shoal).

The SS Nippon, owned by the Swedish East Asiatic Co., which shipwreck on Scarborough Shoal in 1913 led to a civil case that ended up before the Supreme Court of the Philippines
The SS Nippon, owned by the Swedish East Asiatic Co., which shipwreck on Scarborough Shoal in 1913 led to a civil case that ended up before the Supreme Court of the Philippines

In the 1930s, the Commonwealth Government sought an explicit assertion of sovereignty over Scarborough Shoal, going beyond the exercise of administrative powers, including search and rescue. On December 6, 1937, Mr. Wayne Coy (Office of the US High Commissioner for the Philippines) asked Captain Thomas Maher (head of the US Coast and Geodetic Survey) whether any country had claimed Scarborough Shoal. The reply, dated 10 December 1937, was that no information was available on whether any nation had. Concerning the Santa Lucia 1800 survey, Captain Maher said “If this survey would confer title on Spain or be a recognition of sovereignty, or claim for same without protest, the reef would apparently be considered as part of Spanish territory the transfer of which would be governed by the treaty of November 7, 1900”. He also suggested that a new survey take place, and a navigational light be installed.

The next year saw Mr. Jorge B. Vargas (secretary to the president) write to Mr. Coy, asking about the status of Scarborough Shoal and saying that “The Commonwealth Government may desire to claim title thereto should there be no objection on the part of the United States Government to such action”. This prompted Mr Coy to forward this correspondence to the US War Department, which in turn sent them to the State Department, resulting in an interesting exchange. For example in a letter dated 27 July 1938 Secretary of State Cordell Hull told Secretary of War Harry Woodring that his department “has no information in regard to the ownership of the shoal”, which “appears outside the limits of the Philippine archipelago as described in Article III of the American-Spanish Treaty of Paris of December 10, 1898”. However, Hull wrote, “in the absence of a valid claim by any other government, the shoal should be regarded as included among the islands ceded to the United States by the American-Spanish treaty of November 7, 1900” and therefore the State Department would not object to the Commonwealth Government’s proposal to study the possible setting up of air and ocean navigation aids, as long as “the Navy Department and the Department of Commerce, which are interested in air and ocean navigation in the Far East, are informed and have expressed no objection”. The reply from Acting Secretary of the Navy W.R. Furlong to Acting Secretary of War Louis Johnson was positive, both concerning navigation aids and “the possibility of later claiming title”. The secretary of commerce also said his department had no objections.

We can observe a measure of ambiguity, though, with the US Government having no objections to the Commonwealth Government claiming Scarborough, and even considering it to be included in the second treaty with Spain following the 1898 War, but not actually claiming the features itself. Manila also expressed an interest in the Spratly, but despite this prompting Washington chose to keep a “low profile” concerning the archipelago, with non-recognition of claims by others and a close eye on Japanese interests and activities going hand in hand with a failure to officially claim the islands. The same applied could be said about Scarborough Shoal. In the words of François-Xavier Bonnet (IRASEC; Research Institute on Contemporary Southeast Asia), “the geographical proximity spoke in favor of the Philippines (rescue operations). In a way, Bajo de Masinloc could be seen as integrated in the sphere of influence of the Philippines, but outside the main archipelago. Political and symbolic acts, like naming the shoal, surveying, mapmaking, and organizing rescue operations, were the only appropriate activities that the Spanish and American authorities could do on an isolated shoal, which was, for the most part, underwater during high tide”.

The Sultanate of Sulu. A third possibility for Manila would be to claim sovereignty over Bajo de Masinloc as having historically been under the Sultanate of Sulu, that is merging the claim with that over Sabah. However the Philippines seem to be leaning towards focusing on Scarborough, going as far as offering Malysia to downgrade her claim to Sabah in exchange for support on the former conflict. This was clear in one of the Filipino moves this year connected to the international arbitration case, namely the offer to Malaysia, in a Note Verbale, to review its protest against the 6 May 2009 joint Vietnamese-Malaysian submission to the UN Commission on the Limits of the Continental Shelf (CLCS), containing a claim by Kuala Lampur of an extended continental shelf (350 nautical miles from the baselines) projected from Sabah. In exchange for this, Manila is requesting two actions that she believes would reinforce her case against China: First, to “confirm” that the Malay claim of an extended continental shelf is “entirely from the mainland coast of Malaysia, and not from any of the maritime features in the Spratly islands”. Second, to confirm that Malaysia “does not claim entitlement to maritime areas beyond 12 nautical miles from any of the maritime features in the Spratly islands it claims”.

The impact on Manila’s Sabah claims has not been lost on observers, with former Philippine permanent representative to the United Nations Lauro Baja Jr., if Malaysia explaining that if the deal is accepted the Philippines’ claim to Sabah will be “prejudiced”, adding that “We are in effect withdrawing our objection to Malaysia’s claim of ownership to Sabah”. Some voices argue that the Philippines need to stop claiming Sabah, since otherwise they are favoring Chinese claims to South China Sea features. William M. Esposo has criticized the “charlatans and overnight Sabah claim experts” who “thought they were patriots fighting for Philippine national interest” but “didn’t even realize that the arguments they were mouthing were supporting China’s very claims to our territory in the South China Sea”. Esposo cites Renato de Castro (De La Salle University International Studies Department), to stress that “historic claims, such as the one we have with Sabah, are the weakest cases when international courts decide territorial dispute”.

Conclusions. The Philippines are basing their South China Sea narrative on post-Second World War developments, and going as far as appearing ready to sacrifice their claim to Sabah in order to reinforce the arguments put forward in their international arbitration case against Beijing. This fits with Washington’s agnostic view of territorial claims, even when they involve areas formerly under US sovereignty. However, it is still interesting from a historical perspective to examine other possible arguments of this nature that could support Filipino claims on Bajo de Masinloc (Scarborough Shoal).

Alex Calvo is a guest professor at Nagoya University (Japan) focusing on security and defence policy, international law, and military history in the Indian-Pacific Ocean. Region. A member of the Center for International Maritime Security (CIMSEC) and Taiwan’s South China Sea Think-Tank, he is currently writing a book about Asia’s role and contribution to the Allied victory in the Great War. He tweets @Alex__Calvo and his work can be found here.

Asia-Pacific, Territorial and Law of the Sea Disputes

South China Sea: International Arbitration moves forward as PAC rules on Jurisdiction

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By Alex Calvo

Introduction: the Philippines’ International Arbitration Case moves Forward

Despite Beijing’s refusal to take part in the proceedings, on 29 October the Court of Permanent Arbitration (PCA) issued a ruling on jurisdiction and admissibility of the UNCLOS arbitration case launched by the Philippines against China. The Court unanimously decided that it had jurisdiction concerning seven of the fifteen claims put forward by Manila, with a decision on a further seven to be reached when considering their merits. The ruling by the PAC is thus a major victory for Manila and maritime democracies, since China’s view that the Philippines had promised to pursue only negotiations, and her assertion that no decision could be taken on maritime zones until delimitation had taken place, were rejected. While the decision on the merits of the case will have to wait until at least next year, and a ruling in favor of Manila does not guarantee in and by itself that Beijing will comply, this is nevertheless a major step forward for the notion that it is right plus might and not just might in isolation, which will determine the future of this vital sea.

Some Highlights from the Court’s Decision

The following are some of the potentially most relevant aspects of the Court’s decision, with the page in brackets for ease of reference.

First of all, the PRC is squarely treated as the defendant, notwithstanding the fact she is refusing to take part in the proceedings. Thus “The Parties to this arbitration are the Republic of the Philippines (the “Philippines”) and the People’s Republic of China (“China”)” (p. vii). To justify this, the Court cites Art 9 of Annex VII to the Convention, saying that “the non-participation of China does not bar this Tribunal from proceeding with the arbitration. China is still a party to the arbitration, and pursuant to the terms of Article 296(1) of the Convention and Article 11 of Annex VII, it shall be bound by any award the Tribunal issues” (p. 11). While this does not necessarily imply an ultimate ruling in favor of Manila, as stressed by the Court (“The Tribunal does not simply adopt the Philippines’ claims, and there can be no default judgment as a result of China’s non-appearance”), it amounts to a major defeat for Beijing, which has seen her stress on bilateral negotiations and position that Manila had agreed to exclusively pursue such venue dismissed. Furthermore, it also means that the view that Manila’s case implied (even if just implicitly) territorial delimitation and thus fell squarely within the PRC’s derogation from compulsory arbitration in such matters has also been defeated. This makes it more difficult for China to proceed as in the recent past with a gradual yet relentless expansion, where reclamation and militarization went hand in hand with appeals to dialogue and negotiation and repeated promises of respect for freedom of navigation and overflight. Thus, either China tones down her actions and becomes more pragmatic and conciliatory, as some observers believe she may, or she chooses to nakedly ignore international rules and institutions, as Japan did following the Manchurian Incident and subsequent Lytton Report and Stimson Doctrine.

2

Concerning China’s non-participation, the PAC explicitly acknowledge the 7 December 2014 position paper, not only referring to it but stating that its publication “facilitated the Tribunal’s task to some extent”. Thus, for the benefit of justice and the concept of equality of arms between the parties, the Court has clearly taken a pragmatic approach towards China’s decision to approach the PAC indirectly, not making a submission but instead publishing a position paper laying down her views and her response to the Philippines’ demands. This was already clear, as explained in the decision, when this summer on holding hearings on jurisdiction the Court provided the PRC “with daily transcripts and all documents submitted during the course” of those hearings. In a way we could see perhaps all this as evidence of some sort of pragmatic arrangement, or gentlemen’s agreement, whereby Beijing did not formally take part in the proceedings but was still informed in detail and had the chance to make her views known to the Court. As the ruling notes, “The Position Paper has since been followed by two letters from the Chinese Ambassador addressed to the members of the Tribunal and by regular public statements of Chinese officials that touch on the arbitration” (p. 41). This could of course go on in the next stage, as the Court deliberates on the merits. Beijing may stay aloof from the proceedings, as she has announced she will, while still interacting with the Court on a semi-official basis. However, this just means delaying the moment when Beijing, should the final ruling go against her, will have to decide whether to comply or not with that decision. In that case, even if the PRC’s leadership chooses pragmatism and accommodation, the CCP may find itself a prisoner of its own rhetoric, and the many years during which it has been telling the Chinese population that the country had “indisputable sovereignty” over the whole of the South China Sea. Thus, accepting the ruling may be no easy matter for Beijing, even if the will is there.

Concerning Bejing’s claims that the case amounts to an abuse of right, the Court rejects it, saying that “China has not made an application to the Tribunal pursuant to Article 294(1) of the Convention”, which would force it to decide whether it was the case, and “the Tribunal is therefore under no obligation to follow the procedure outlined in Article 294(2)”. Furthermore, the ruling states that “the procedure is appropriate in only the most blatant cases of abuse or harassment”, which is not the situation in the current proceedings (p. 43). Therefore, the PAC chooses instead to focus on jurisdiction. China may have considered that submitting an application under Article 294 UNCLOS would definitely be considered to amount to taking part in the proceedings. An alternative explanation is that Beijing preferred not to risk losing an early battle by having the Court formally determine that the case did not constitute an abuse of right, choosing instead to simply use this term to criticize it in the political arena.

With regard to Beijing’s contention that it is impossible to rule on the exercise of maritime rights before first ruling on the underlying territorial dispute, the Court is adamant that this is not the case, stating instead that it “does not see that any of the Philippines’ Submissions require an implicit determination of sovereignty” (p. 59-60). This notion that it is possible to first determine the interpretation of UNCLOS and whether a party’s actions conform to it, while leaving territorial delimitation to later negotiations or (non-compulsory) arbitration could be compared to the idea (put into practice by Taiwan and Japan in their Senkaku Islands fisheries agreement) that it is possible to first jointly manage and exploit natural resources, while again leaving territorial delimitation for later. This is a reminder of how the Philippines’ arbitration case and Taiwan’s East China Sea initiative (and its child, the Senkaku fisheries agreement with Japan), taken together, may point the way forward to a peaceful, international law-based approach to maritime territorial disputes in the Indo-Pacific Region. An informal Manila-Taipei-Tokyo democratic triangle may emerge as the seed around which a wider informal coalition may emerge, although of course for this to be effective its reach cannot be limited to the diplomatic and legal arenas. One thing is to stress the rule of law at sea and peaceful resolution of disputes in accordance with international law, another to wishfully think that this can take place without the possibility of resorting to force if necessary. National security and collective security are the other side of the coin, without which international law and the rule of law at sea cannot thrive and ultimately prevail.

The Tribunal notes, in line with long-standing comments by observers and other states, that “China has not, as far as the Tribunal is aware, clarified the nature or scope of its claimed historic rights. Nor has China clarified its understanding of the meaning of the ‘nine-dash line’ set out on the

map accompanying its Notes Verbales of 7 May 2009” (p. 62). This was precisely the motivation behind the US State Department’s Limits in the Seas issue No 143 devoted to Chinese claims in the South China Sea. Thus, although this is a matter reserved for the decision on the merits of the case, we could read the PAC’s ruling on jurisdiction as saying that the nine-dash line must be translated into claims under UNCLOS, since the Convention does not recognize any such concept. This makes it clear that Beijing is facing an uphill battle in seeking to convince the court that the nine-dash line can indeed be made to fit into UNCLOS. However, there is always the possibility that in its final ruling the Court will not declare the line as such to be contrary to UNCLOS, as requested by the Philippines, but instead take a softer, more pragmatic approach, and say that while not illegal per se, its meaning must be clarified by resort to those concepts such as the territorial sea and the EEZ laid down in the Convention. While the impact of such a ruling would not be as spectacular, it may be a way of avoiding cornering Beijing, leaving room for later negotiations and compromise, instead of making Beijing lose face in no uncertain terms. Such a ruling would allow both sides to claim victory. We should remember, in this regard, that international tribunals must often walk a fine line between the wish to uphold international law, and the need to ensure its effective implementation. Thus, rather than a perfect ruling with close to zero chances of settling the matter, the PAC may prefer a less than perfect text that can be used as a stepping stone towards a final settlement of the dispute.

Also interesting is the fact that the Court considers that no intervention by a third party is necessary in the proceedings, thus reinforcing the view that territorial delimitation is not at stake. This again is in line with Manila’s position, while not following “the Chinese Ambassador’s First Letter”, where he “did express serious concern and opposition to a procedure of ‘intervention by other States’”, in reference to Vietnam, “as being ‘inconsistent with the general practices of international arbitration’” (p. 73). Hanoi’s role in the proceedings, not formally a party but having made her own statement and attended this summer’s proceedings, shows how, and this is one of the aspects of the case which clearly worries China, the arbitration proceedings, although strictly speaking bilateral, have attracted not only the support of a wide range of countries, but limited participation by some of them. Taken together, it could facilitate cooperation among these countries, and furthermore could support the notion that China is the odd man out, and not just another claimant, in the South China Sea.

Concerning China’s assertion that the Philippines had agreed not to pursue arbitration, by among others signing the 2002 DOC (Declaration on the Conduct of Parties in the South China Sea), the Court considers that its “language is not consistent with the creation of new obligations but rather restates existing obligations pending agreement on a Code that eventually would set out new obligations”, adding that it basically reaffirms existing obligations and exhorts parties to create others at some point in the future (p. 83). Thus, the Court concludes that “the DOC was not intended to be a legally binding agreement with respect to dispute resolution”, and uses contemporary documents to support the view that it was instead “an aspirational political document”. In doing so, the PAC stresses statements by China herself, such as that in August 2000 by a spokesperson for the Chinese Foreign Ministry, who said that the “Code of Conduct will be a political document to promote good neighbourliness and regional stability instead of a legal document to solve specific disputes” (p. 84). This is significant at many levels. On the one hand it illustrates a very important general principle of international law, that someone cannot go against his own acts. On the other, it exposes the shallowness of bilateral and multilateral diplomacy in the South China Sea in recent years, full of smoke and grand sounding statements but rather short on substance. Other claimants may be wary of openly calling Beijing’s bluff for fear of appearing disrespectful, but the Court minces no words in its ruling on jurisdiction, providing a detailed explanation of why the long list of statements, agreements, and contacts, do not amount to much at the end of the day, and clearly constitute no bar to the arbitration proceedings, since at no stage have the Philippines and Beijing agreed to forgo this road.

Finally, we should note that out of 15 submissions by the Philippines, the Court determined that it had jurisdiction to consider seven, and concerning another seven it reserved consideration of its jurisdiction to the merits phase. In one (15, concerning the request of a declaration that “China shall desist from further unlawful claims and activities”), the Court “DIRECTS the Philippines to clarify the content and narrow the scope of its Submission” and also reserves consideration of its jurisdiction to the merits phase. The ruling states that “the claims and activities to which this

Submission could potentially relate are unclear from the Philippines pleadings to date” (p. 147). Since, out of 15 submissions, not one has been determined at this stage to be ultra vires (beyond the powers of) the Court, it is difficult to overstate the degree to which this constitutes a major victory for the Philippines. Having said that, we should remember that this arbitration case, and more generally appeals to international law, the rule of law at sea, and peaceful resolution of disputes in accordance with international law, are only an aspect of Manila’s strategy to deal with Chinese expansionism. They should not be seen in isolation, but rather in conjunction with rearmament, and stronger bilateral and multilateral relations with fellow maritime democracies. Unless the Philippines can upgrade their military, regaining lost capacities such as combat jets, and being able to deal with the different levels of warfare (including non-lethal force at sea), a victory in the final stage of this legal battle may end up being little more than a footnote in history books.

Taiwan’s Reaction

MOFA spokesperson Eleanor Wang said that “The Republic of China government’s determination to defend the country’s sovereignty and maritime rights over the four island chains in the South China Sea is not open to question”, adding that her department was closely following developments in the arbitration case, and would respond as necessary. The Republic of China is not a party to UNCLOS, but Taipei has urged the different parties involved to respect international law, including this convention.

Taiwanese views on the issue are important for a number of reasons. First of all because the ROC is one of the claimants, and controls Itu Aba (Taiping) Island. Second, since PRC claims and in particular the famous “Nine-dash line” and its successors originated in the ROC, which the PRC claims to have legally superseded. Third, given that in spite of the previous point Taipei has been moving away from these maximalist positions, both in theory and practice. Fourth, because the Island launched an East China Sea Peace initiative, followed by a fisheries agreement with Japan concerning the Senkaku / Diaoyu / Diayutai, and both could be a template for the South China Sea. Finally, because one of the points that irritated Beijing, as clear from the Chinese 7 December 2014 position paper, was the Philippines’ alleged deviation from a “One China” policy in her arbitration suit against the PRC.

Taiwan may not be recognized by the UN and most countries in the world, and actually still has to decide whether to recognize herself, but the dispute over the South China Sea is intimately connected to that over the Island. After proving that democracy and Sinic culture are compatible, Taiwan is now showing how the latter can also coexist side by side with the rule of law and a pragmatic approach to territorial disputes.

Beijing insists the case is outside UNCLOS compulsory arbitration.

The PCA ruling prompted a strong reaction by Beijing, with the PRC’s Foreign Affairs Ministry insisting in refusing to recognize the court and take part in the proceedings. We should note, however, that as explained China has not stayed completely aloof from the case, since on 7 December 2014 she issued a position paper explaining her views and the reasons why she believed the case should be dismissed. In a statement dated 30 October, the MOFA said the ruling was “null and void, and has no binding effect on China”, and warned that the case would damage “the integrity and authority of the UNCLOS”. The text said that “With regard to territorial sovereignty and maritime rights and interests, China will not accept any solution imposed on it or any unilateral resort to a third-party dispute settlement”. It also slammed the case as a “political provocation under the cloak of law”, stressing that China’s position, explained in her position paper, was “clear and explicit, and will not change”. Beijing once again underlined that she considered the Declaration on the Conduct of Parties in the South China Sea (DOC) to mean Manila had agreed to exclusively resort to “negotiations and consultations”.

While none of this comes as a surprise, it is not clear yet whether the ruling will contribute to a change in Chinese policy. Beijing may wait for the ruling on the merits, while completing the construction of military and dual-use facilities in her artificial islands and avoiding major incidents, keeping a lower profile. She may, on the other hand, declare an ADIZ (Air Defense Identification Zone). Either way, China may seek some accommodation with other littoral states, in order to prevent ASEAN from coordinating effectively and to limit the potential damage to her reputation that could result from appearing too inflexible. In the longer run, China may seek to either shape rules and institutions like UNCLOS and the PAC, or devise an alternative more to her liking. The first option could imply building an informal coalition with countries also keen to expand the rights of coastal states in their EEZs. However, at least two obstacles loom large, namely the unclear nature of Chinese claims (which may go much further than that) and the fact that some potential allies also happen to be rival claimants. The recent FONOP (freedom of navigation operation) in the South China Sea by USS Lassen has been supported by a number of regional states, even those like Vietnam who are also targeted by Washington’s freedom of navigation program. The second, more radical, option, would involve setting up an alternative institutional framework, as Beijing is gradually doing in the international financial arena with the Asian Infrastructure Investment Bank (AIIB) and the possible development of a RMB payments system independent of Swift.

Conclusions

Manila has won a victory in the first stage of the legal battle aimed at arresting Beijing’s expansion in the South China Sea. Although, as stressed by the Court, this does not prejudge the final decision on the merits of the case, major pillars of the PRC’s narrative, such as the alleged agreement with other countries to pursue negotiations only, have been blown out of the water. Faced with this, China may choose to ignore a decision in favor of Manila, thus putting a further dent on her prestige as a country respectful of international law and other nations, or seek some sort of accommodation, saving face while making some concessions. Some voices believe that China may already be starting to act in a more conciliatory manner, in the wake of the ruling on jurisdiction. However, flexibility may not be compatible with a public opinion that has repeatedly been told the South China Sea was “indisputably” Chinese, and which may turn on any leader ready to make concessions. Concerning the Philippines, even if success at this stage is repeated when the Court rules on the merits of the case, she needs to keep working on rearmament and stronger bilateral and multilateral relations with fellow maritime democracies and Vietnam, since otherwise the Court’s final ruling may amount to little more than a symbolic victory. Taiwan, not a party to UNCLOS, is however a very important actor in this dispute, and her East China Sea Peace Initiative and subsequent fisheries agreement with Japan may be vindicated if an arbitration ruling is followed by a peaceful settlement of the South China Sea dispute, or at least an agreement to set aside territorial claims while jointly managing resources and moving forward with confidence-building measures.

Alex Calvo, a guest professor at Nagoya University (Japan), focuses on security and defence policy, international law, and military history, in the Indian-Pacific Ocean Region. A member of Taiwan’s South China Sea Think-Tank and CIMSEC (The Center for International Maritime Security), his previous work on the South China Sea includes “China, the Philippines, Vietnam, and International Arbitration in the South China Sea”, The Asia Pacific Journal: Japan Focus, Volume 13, Issue 42, No. 2, 26 October 2015, available at http://japanfocus.org/-Alex-Calvo/4391/article.pdf He tweets at Alex__Calvo and his work can be found at https://nagoya-u.academia.edu/AlexCalvo