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Asia-Pacific, Territorial and Law of the Sea Disputes

US Department of State Seeks to Clarify Meaning of China’s 9-Dash Line Part 2

January 24, 2016 Guest Author Leave a comment

This is the second installment in a five-part series summarizing and commenting the 5 December 2014 US Department of State “Limits in the Seas” issue explaining the different ways in which one may interpret Chinese maritime claims in the South China Sea. It is a long-standing US policy to try to get China to frame her maritime claims in terms of UNCLOS. Read part one.

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Reviewing maritime zones and historic claims. The paper’s second section basically consists of a summary explanation of “Maritime Zones,” “Maritime Boundaries,” and “’Historic’ Bays and Title” according to UNCLOS. Three aspects are of particular significance. First of all, that the interpretation provided is not necessarily that considered correct by China. Although this is not always squarely addressed, when discussing whether Chinese claims in the South China Sea are or are not in accordance with international law we should first define international law, and there is the possibility that as China returns to a position of preeminence she may interpret some of its key provisions in a different way. Second, as the paper itself notes, while China ratified UNCLOS in 1996, the United States has not, although she “considers the substantive provisions of the LOS Convention cited in this study to reflect customary international law, as do international courts and tribunals.” Not all voices take such a straightforward view of Washington’s failure to ratify the convention while claiming that it is mostly a restatement of customary law and therefore applicable anyway.

The DOS paper includes a page devoted to “’Historic’ Bays and Title,” which text stresses that “The burden of establishing the existence of a historic bay or historic title is on the claimant,” adding that the US position is that in order to do this the country in question must “demonstrate (1) open, notorious, and effective exercise of authority over the body of water in question; (2) continuous exercise of that authority; and (3) acquiescence by foreign States in the exercise of that authority.” This passage reflects the US traditional position, as noted by J. Ashley Roach and Robert W. Smith (Editors) “In December 1986, the U.S. Department of State, Bureau of Public Affairs, published ‘Navigation Rights and the Gulf of Sidra,’ in GIST, a reference aid on U.S. foreign relations. The study discussed the history of U.S. responses, dating to the 18th century, to attempts by North African States to restrict navigation in these waters. The GIST stated, in part, that: Current law and customs: By custom, nations may lay historic claim to those bays and gulfs over which they have exhibited such a degree of open, notorious, continuous, and unchallenged control for an extended period of time as to preclude traditional high seas freedoms within such waters. Those waters (closed off by straight baselines) are treated as if they were part of the nation’s land mass, and the navigation of foreign vessels is generally subject to complete control by the nation.”

The text explains that this traditional American perspective is in line with the International Court of Justice and “the 1962 study on the ‘Juridical Regime of Historic Waters, Including Historic Bays,’ commissioned by the Conference that adopted the 1958 Geneva Conventions on the law of the sea.” It cites a number of cases, among them the 1951 Fisheries Case (U.K. v. Norway). It then turns its attention to the regulation of historic claims in Articles 10 and 15 of UNCLOS, saying that they are “strictly limited geographically and substantively” and apply “only with respect to bays and similar near-shore coastal configurations, not in areas of EEZ, continental shelf, or high seas.” Just like, when examining China’s posture we must take into account, as discussed later, the country’s history, and in particular the Opium Wars and their aftermath, American history has also shaped Washington’s perceptions and principles. The Barbary Wars were widely seen as laying down fundamental principles of national policy such as rejection of blackmail, freedom of navigation, and the right and duty to intervene far from American shores whenever the country’s interests, principles, and prestige were at stake. In the words of Jason Zeledon “The United States’s conflicts with the Barbary States (Algiers, Morocco, Tripoli, and Tunis) from 1784-1815 gripped the young nation, featured bold attempts by American policymakers to defend U.S. trade in the Mediterranean region and assert leadership in international affairs, set important precedents in American foreign relations (including the first U.S.-supported coup attempt that generated the line ‘to the shores of Tripoli’ in the Marine Corps Hymn), provided vital naval training for the War of 1812, and helped create an early sense of American exceptionalism.”

3 (1) — South China Sea map first published in January 2013 by China’s state mapping authority Sinomap Press, featureing 10 dashes instead of the previous nine.

Thus, while China’s position concerning the South China Sea may end up resting at least in part, on the concept of historic waters, even if this is not the case history and perceptions of history will surely still play an important role in determining Beijing’s policy. This, however, is not something only taking place within China, since no regional or extra-regional actor is immune to the phenomenon, adding to the already tense situation in South East Asia. In particular, a couple of centuries later, both the Barbary Wars and the Opium Wars remain powerful factors projecting their shadow on American and Chinese foreign and defense policy.

Trying to make Chinese claims fit with UNCLOS: three possible interpretations. The Department of State report then turns its attention to what constitutes the core of the paper, that is three possible interpretations of Chinese claims in the South China Sea and their compatibility or otherwise with International Law. Even without the need to fully agree with the paper’s views, it responds to a widely heard demand for clarification of China’s posture. In this regard, before we sum up the three perspectives, we should remember that while it is an interesting and useful exercise to try to fit Beijing’s (not always consistent) claims within the framework of UNCLOS and customary international law, China may have its own interpretations of the law, or seek to promote a different one. Since international law to a great extent reflects power realities on the ground, this should not come as a surprise, in particular given that in the view of China’s leaders many aspects of international law, and in particular the law of the sea, result from the same power dynamics that led to the country’s fragmentation and subservience from the mid XIX Century.

The paper also stresses that it is only in “maritime claims” (emphasis in the original) where “China’s position is unclear.” On the other hand, while some other countries do not accept them, Chinese claims on land are unequivocal, Beijing claiming “sovereignty over the islands within the dashed line”. The assertion in China’s 2009 Notes Verbales that “China has indisputable sovereignty over the islands in the South China Sea” is consistent with previous statements, and means that there is no doubt that Beijing considers all such islands to be national territory of the PRC.

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.

Asia-Pacific, Territorial and Law of the Sea Disputes

US Department of State Seeks to Clarify Meaning of China’s 9-Dash Line Part 1

January 20, 2016 Guest Author 1 Comment

By Alex Calvo

Introduction

Despite repeatedly stating that it will not take sides in territorial disputes in East Asia, Washington remains keenly interested in the ultimate fate of the South China Sea. In addition to perennial calls to settle disputes peacefully, regular reminders of the importance of freedom of navigation, military aid to regional actors like the Philippines, and support for a more active policy by non-littoral maritime democracies like India and Japan, the US Department of State (DOS) took a further step late last year by issuing a document, part of its “Limits in the Seas” series. The text seeks to explain the different ways in which one may interpret Chinese maritime claims in the South China Sea (“that the dashes are (1) lines within which China claims sovereignty over the islands, along with the maritime zones those islands would generate under the LOS Convention; (2) national boundary lines; or (3) the limits of so-called historic maritime claims of varying types”). It concludes that the “dashed-line claim does not accord with the international law of the sea” unless “China clarifies that” it “reflects only a claim to islands within that line and any maritime zones.” The text includes supporting Chinese official views, without attributing “to China the views of analysis of non-government sources, such as legal or other Chinese academics.” Concerning this latter restriction, although it is of course official sources which may be considered to be most authoritative when it comes to interpreting a government’s position, we should not forget that administrations in different countries will often resort to “two-track diplomacy” or employ semi or non-official back channels to test the waters and lay the groundwork for future formal negotiations.

The object of this five-part series is to summarize the DOS document, while commenting on some of its most relevant features, and where appropriate going beyond the text and examining related aspects of the South China Sea conflict.

Tyranny of History: Can Washington claim not to take sides on Filipino territorial claims?

Before summarizing the “Limits in the Seas” document, we should note that the American policy of not taking sides concerning the ultimate issue of sovereignty could be challenged given Washington’s past sovereignty over the Philippine Archipelago. While this has not been publicly stressed by Manila to date, it could enter the debate as a means of putting more pressure on Washington to adopt a more robust posture.

Chinese Claims and Possible Interpretations According to International Law

In line with long-standing US demands that Beijing clarify the ultimate nature of her South China Sea claims, the DOS document analyzes those figures within UNCLOS and customary international law which may provide cover to Beijing’s claims. Issued on 5 December 2014, the Department of State paper begins by stressing that “China has not clarified through legislation, proclamation, or other official statements the legal basis or nature of its claim associated with the dashed-line map”, explains the “origins and evolution” of the dashed-line maps, provides a summary of the different maritime zones recognized and regulated by UNCLOS, and then proceeds to explain and discuss three possible interpretations of that claim “and the extent to which those interpretations are consistent with the international law of the sea.” The document contains a number of maps, including (Map 1) that referred to in China’s two May 2009 notes verbales to the UN Secretary General^, which stated that “China has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof. The above position is consistently held by the Chinese government, and is widely known by the international community.”

Nine-dash map attached to China’s two 2009 Notes Verbales.

A Look at Chinese Map Quality and Accuracy

The text first outlines the history of China’s maps of the South China Sea containing dashed lines, starting with a 1947 map published by the Nationalist government, noting that later PRC maps “appear to follow the old maps” (see L. Jinming and L. Dexia, “The Dotted Line on the Chinese Map of the South China Sea: A Note”, Ocean Dev’t & Int’l L., Volume 34, 2003, pp. 287-95, p. 289-290) with two significant changes: the removal of two dashes inside the Gulf of Tonkin (in an area partly delimited by Vietnam and the PRC in 2000) and the addition of a tenth dash to the East of Taiwan. These two changes can be interpreted in different ways, to some degree contradictory. On the one hand, the partial delimitation agreement with Vietnam could be seen as evidence of Chinese pragmatism and flexibility, and proof that it is possible for countries in the region to at least partly settle their disputes by diplomacy. On the other, explicitly encompassing Taiwan with an extra dash may be seen as a reinforcement of Chinese claims on the island not necessarily based on the will of her population. Alternatively, it could simply be a way to more comprehensively encompass the waters and features that Beijing (either directly or via Taipei) wishes to master.

The paper then examines successive Chinese maps from a cartographic perspective, stressing that “China has not published geographic coordinates specifying the location of the dashes. Therefore, all calculations in this study relating to the dashed line are approximate.” A similar criticism has sometimes been made of the San Francisco Treaty. The text also notes that “China does not assign numbers to the dashes,” and therefore those in the study are for “descriptive purposes only.” They “are not uniformly distributed,” being “separated from one another by between 106 (dashes 7 and 8) and 274 (dashes 3 and 4) nautical miles (nm).” This section of the paper stresses that “Nothing in this study is intended to take a definitive position regarding which features in the South China Sea are ‘islands’ under Article 121 of the LOS Convention or whether any such islands are ‘rocks’ under Article 121(3).” This is in line with Washington’s refusal to take sides concerning the ultimate sovereignty disputes in the region. The text notes that the “dashes are located in relatively close proximity to the mainland coasts and coastal islands of the littoral States surrounding the South China Sea,” and explains that, for example, Dash 4 is 24 nm from Borneo’s coast, part of Malaysia. Generally speaking, “the dashes are generally closer to the surrounding coasts of neighboring States than they are to the closest islands within the South China Sea,” and as explained later this is significant when it comes to interpreting the possible meaning of China’s dashed line, since one of the principles of the Law of the Sea is that land dominates the sea, and thus maritime boundaries tend as a general rule to be equidistant. That is, maritime boundaries tend to be roughly half way between two shores belonging to different states.

To hammer home this point, the study includes a set of six maps illustrating this. The report criticizes the technical quality of the PRC maps, saying that they are inconsistent, thus making it “complicated” to describe the dashed line, whose dashes are depicted in different maps “in varying sizes and locations.” Again, this is important in light of possible interpretations of Chinese claims, since this lack of consistency and quality not only obfuscates Chinese claims, introducing an additional measure of ambiguity, but also makes it more difficult to ascertain whether historical claims are being made and whether they are acceptable in light of international law.

The dashes change from map to map, with those “from the 2009 map” being “generally shorter and closer to the coasts of neighboring States” than those in the 1947 map. The dashed lines in these two maps are illustrated and compared in Map 5 of the document. The section concludes noting that the 2009 map, which Beijing distributed to the international community “is also cartographically inconsistent with other published Chinese maps.”

Read the next installment here.

Asia-Pacific

A Few Notes on FONOPS In the South China Sea

October 27, 2015 Guest Author Leave a comment

By Scott Cheney-Peters

Follow @scheneypeters
After months of speculation and signaling the U.S. has undertaken Freedom of Navigation Operations (FONOPS) to protest the claimed rights of Chinese-occupied “artificial islands” in the South China Sea at Subi and Mischief Reef by sending the USS Lassen within 12nm of the reefs. Several of our colleagues and members have written recently about the context, the legal aspects, the recent history, and response to the FONOPS. I recommend reading them all but wanted to offer a few additional thoughts below:

This was a necessary move to both reassure America’s allies and partners in the region of America’s commitment and to uphold common sense interpretations of the UN Convention on the Law of the Sea (UNCLOS). What many pieces of analysis gloss over is that even though UNCLOS is pretty clear that the reclamation doesn’t turn reefs into islands or give them the rights of islands, interpretations of international law – if contested – must be backed up by words and actions. Otherwise the counter-vailing view gains acceptance as customary international law.

The reported several-years’ pause in conducting these types of freedom of navigation operations (FONOPS) in the South China Sea may have been done to try and convince the Chinese to stand-down from their position. Not being privy to the internal administration deliberations I’m not sure if there was a good reason why it took so long to change course and resume FONOPS, but the delay created the risk that the resumption would create a major incident. This is why shortly before it occurred it appeared that the US was trying to prevent surprise from contributing to the risk of an incident by not only warning of the pending FONOPS but very specifically identifying which ship would conduct it and where.

While necessary for the reasons stated above, these FONOPS are unlikely to change the situation unless the Chinese overreact, something I don’t expect to happen. This doesn’t mean China will do nothing, however, and their response may consist of one or more approaches. One thing Chinese officials have long hinted at before the FONOPS occurred was that they would be used as justification for pre-planned actions, such as declaring an ADIZ over the South China Sea or the “militarization” of the reclaimed islands. Another possible action is mirroring the supposed provocation of the American FONOPS by conducting something perceived by the Chinese to be similar – such as additional transits near Alaska. Direct responses to further FONOPS will likely include shadowing of US naval vessels by Chinese naval vessels, as occurred with the LASSEN, and could include electronic or physical interference, as indicated by Chinese media – both much more dangerous and likely to escalate the situation.

Lastly, U.S. officials reportedly indicate that additional FONOPS will be conducted to protest Vietnamese and Philippines excessive claims in the coming weeks. These are not new protests, nor are FON activities in various forms limited to the region but in fact are used to protest claimed excessive maritime rights around the world, from Ecuador to India.

Scott Cheney-Peters is a surface warfare officer in the U.S. Navy Reserve and founder and Chairman of the Center for International Maritime Security (CIMSEC). He is a graduate of Georgetown University and the U.S. Naval War College, a member of the Truman National Security Project, and a CNAS Next-Generation National Security Fellow.

Capability Analysis

Is There a Class of Armored Cruisers in the U.S. Navy’s Future? (Part Four)

August 19, 2015 Guest Author 4 Comments

Is There a Class of Armored Cruisers in the U.S. Navy’s Future?

Sketch by Jan Musil. Hand drawn on quarter-inch graph paper. Each square equals twenty by twenty feet.

This article, the fourth of the series, presents a suggestion on how to incorporate the new railgun technology into the fleet in an efficient and effective manner. Railguns, when used as a complement to the various UAVs, UUVs and Fire Scouts discussed earlier will provide the fleet with a potent AAW weapon. Read Part One, Part Two, Part Three.

Interestingly enough, the most important piece of information concerning the new railgun is a number. A single round of ammunition costs $10,000. Eighteen inches of railroad tie shaped steel (which costs less than $200) fitted with the wonders of modern microelectronics provides a startling contrast with the $1M+ cost of the missiles the Navy currently uses against incoming aircraft and missiles. A contrast that is even more in the Navy’s favor since any future opponent will be spending comparable sums for their attack missiles and substantially more for hypersonic cruise missiles.

There are no explosives purchased with the $10,000. This means hundreds of rounds of railroad ties and microelectronics can be safely stored in a ship’s magazine. This is a substantial advantage compared to the VLS missiles in current use by navies around the globe, most of which require specialized loading facilities to reload their missile tubes. In contrast, a railgun-equipped ship can take a much larger ammunition load to sea with it, and reload the magazine at sea if necessary.

The next relevant parameter of the new railgun is its range. At 65 miles this is far less than many long-range missiles, though still quite useful against incoming aircraft and missiles. Note that with an ISR drone or Hawkeye providing over-the-horizon targeting information, a surface ship equipped with a railgun can shoot down incoming aircraft such as the Russian Bear (Tu-95) reconnaissance aircraft before the intruder can lock in on the firing ship. The same is true for any attacking aircraft carrying long-range strike missiles.

This highlights the importance to both sides of providing accurate targeting information first. It also means, strategically, at its heart the railgun in the 21st century maritime environment is a defensive weapon: well positioned to provide defensive fire against incoming attacks, but with an offensive punch limited to sixty-five miles.

That said, with the ability to fire every five seconds the railgun can be very effective, particularly when utilized in quantity when escorting carrier strike groups or when placed between a hostile shore and an ARG.

So far we have noted the positive distinguishing capabilities of the railgun but there are three significant difficulties that come with fielding the weapon. Foremost is the enormous amount of electrical power discharged by the gun when firing. This means any ship equipped with a railgun needs substantial electric power generating capabilities, something certainly beyond the abilities of the DDGs and CCGs currently in the fleet.

Secondly, using these vast amounts of electricity means a large capacitor needs to be located on the deck below the railgun. Large does mean large in this application. No little white pieces of ceramic plugged into a circuit board will do here. The necessary equipment is physically massive and in need of protection from the elements. They will be taking up a substantial amount of space just below the main deck where the railgun has to be mounted, probably one per gun.

The third problem is that all the energy dissipated in launching a round generates heat. Lots and lots of it. Most, but not all, of the energy used to launch the eighteen inches of steel will be recovered back into the ships capacitor, but enough will be lost that the launching rails flexing as the railgun is fired simply must be exposed to the elements so the heat will dissipate in the air. No sailors or flammables nearby please.

The inevitable follow up conclusion means a railgun equipped ship is going to be impossible to hide from opponent’s infrared sensors. Regardless of how stealthy versus radar the ship is, all of that heat is going to stand out like the sun itself to incoming aircraft and missiles equipped with infrared targeting systems, which means it is almost a certainty the firing ship is going to get hit if subjected to a seriously prosecuted attack.

Armor

This ship is not going to be able to hide in a cloud of chaff, it will be heading into the incoming missile strike, placing its full broadside in a position to fire and it will be considered a high priority target.

Unlike almost all naval ships built across the globe since the end of WW2, this class needs to be built with the assumption that incoming missiles will hit it, the plural is intentional, and be able to survive the multiple collections of missile slag and burning fuel and the occasional warhead detonation. Just as we built the 44 gun class of frigates back in the 1780s to be thick hulled in order to survive the gunnery practices of the time, armored up the ironclads of the Civil War and multiple classes of ships intended for the main battle line of the last half of the 19th Century and first half of the 20th Century, we need to built this class to ‘take a licking and keep on ticking’.

Topside armor should cover most of the ship, but the prime purpose of this armor will be to shed missile slag, i.e. what is left of the incoming missile after being intercepted and its fuel. The impact of the metal missile parts is not the prime danger to be protected against here. It is the fuel, and the accompanying fires after impact that is the true danger. So the topside armor needs to keep the slag and fuel on the outside of the ship, hopefully allowing gravity to carry much of the burning fuel to the gunnels and overboard; in the process vastly easing the firefighting teams job in putting out any fires that have started.

Additional armor, probably using a combination of layered materials and empty space, is appropriate for selected topside compartments that need to be protected against a successful missile warhead detonation. Whether it is sailors or equipment that is being protected, only some compartments will need beefed up exterior armor.

After that the CARN (cruiser gun armor, nuclear powered) will need to adapt the principles of the ‘armored citadel’ concepts developed a century ago for battleships to the needs of securing the two, possibly three, nuclear reactors aboard and their associated pumps and other equipment. Whether this is best done with one internal armor layer or two will keep the engineers debating for quite a while as the CARN is designed.

CARN Equipment

So what should the new 25k+ ton armored cruiser have aboard? Nuclear propulsion is an unavoidable necessity given the enormous amounts of power each railgun requires; every five seconds when engaged. Since the primary use of the CARN will be to accompany the fleet’s carriers to provide defensive AAW capabilities, this is actually an advantage for both strategic and tactical reasons. Depending on the amount of power twelve railguns firing broadsides will require, two or three of the standardized nuclear plants being installed in the new carriers should work just fine.

Lots of armor and nuclear power are unavoidable. The following basic list of desired equipment should provide the reader with a good idea of what the CARN should go to sea with.

12 railguns mounted in six dual mounts. In the attached sketch A and B mounts are placed forward of the bridge while C, D, E and F mounts are located starting roughly amidships and extend back to the helicopter deck. Dual mounts are suggested since the large size of the capacitors that need to be located directly below each railgun will in practice utilize the full 120 feet of beam provided. Obviously if the capacitors are even larger than this, then single mounts will have to be employed. Let’s hope not as doubling up makes for a much more efficient ship class.

36 VLS tubes capable of a varying load out of ASW, SM-2, SM-6 and long-range strike missiles as the mission at hand calls for.

4 CIWS with one located in the bow, a pair port and starboard amidships and one aft, just behind F mount.

12 rolling missile launchers for close in defense. It will be no secret the CARN is in the task force so a substantial number of the incoming missiles will be using infrared targeting, either in place of, or as a supplement to radar. So adding half dozen rolling missile packs to port and another half a dozen to starboard will provide plenty of localized missile defenses for both the CARN and the task force as whole.

2 ISR drones if VTOL capable. None if VTOL capability is not available

2 Seahawk helicopters

This suggested list very deliberately reduces the VLS and ASW capabilities aboard to a bare minimum. Good ship design concentrates on the primary mission the class needs to accomplish. In the case of the CARN that is absolutely, positively AAW.

In the next article we will examine how adding UAVs, UUVs, Fire Scouts, buoys and railguns in quantity to the fleet can substantially enhance the Navy’s ability to survive in the increasingly hostile A2AD world of the 21st Century. Read Part Five here.

Jan Musil is a Vietnam era Navy veteran, disenchanted ex-corporate middle manager and long time entrepreneur currently working as an author of science fiction novels. He is also a long-standing student of navies in general, post-1930 ship construction thinking, design hopes versus actual results and fleet composition debates of the twentieth century.

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