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Asia-Pacific

Rethinking the Korean Peninsula Crisis

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North Korea Topic Week

By Ching Chang

Introduction

In the past few months, the Korean Peninsula has once again become the focus of security challenges in the Asia-Pacific. Accompanied with the unstable political situation after the impeachment of President Park Geun-hye, unanimously passed by the Republic of Korean Constitutional Court on March 10, 2017, Pyongyang decided to conduct a series of military exercises and a sixth nuclear test, making regional stability even worse.

The Republic of Korea and the United States of America started the annual military exercises known as Key Resolve and Foal Eagle in order to deter any North Korean adventurism before the next president was elected in mid-May. Simultaneously with the emerging crisis in the Korean peninsula, a dramatic summit between Beijing and Washington was held in early April. Donald Trump and Xi Jinping exchanged their perspectives on the Korean Peninsula at the Mar-a-Lago estate, though no clear and conclusive approach reached a consensus during this meeting.

Many observers had predicted that an imminent conflict may erupt then simply because both United States and North Korea had shown their forces in such a high profile manner. Nonetheless, some still argued that there was no possibility of any armed conflict since no signal of real war preparation ever appeared. Furthermore, all U.S.-ROK annual joint exercises are conducted with proper scales. No particular alert poise and combat readiness may prove any attempt to solve the North Korean threats with military contingency maneuvers. As the situation around the Korean Peninsula returns to normal now, we should reevaluate the Korean Peninsula crisis in order to identify where the misperceptions are that lead us to an overstatement of the reality in North Korea.

Strategic Dimensions of A Nuclear DPRK

First, how serious is the challenge that can be brought by the North Korean missile and nuclear program? Since 2006, Pyongyang has successfully conducted nuclear tests five times. Unquestionably, the North Korean regime can be defined as nuclear-capable. Nonetheless, we should not automatically assume that Kim Jong-un already owns any reliable nuclear weapon. We should remember that conducting a nuclear test in a well-managed underground facility is one thing; acquiring reliable nuclear weapons with a delivery vehicle through the weaponization process is another issue.

Key questions abound. Does a nuclear test and a missile test necessarily indicate a mature nuclear missile? Did Pyongyang ever prove that it has successfully completed the weaponization process from its primitive nuclear test yet? Can nuclear tests that happened in 2006, 2009, 2013 and twice in 2016 be sufficient to prove that North Korea may already own a mature nuclear weapon and the associated delivery vehicle? Do we need to review the historical records of various nuclear powers who developed their own nuclear arsenals? Is it unrealistic to assume that North Korea is capable of completing the weaponization process based on only a few tests? Even if North Korea has the luck to complete the weaponization process of its nuclear warheads and delivery vehicles within such a short period of time, has Pyongyang established a credible nuclear force yet?

Ko Yun-hwa (L), Administrator of Korea Meteorological Administration, points at where seismic waves observed in South Korea came from, during a media briefing at Korea Meteorological Administration in Seoul, South Korea, January 6, 2016. (Reuters/Kim Hong-Ji)

A well-articulated nuclear force is far more complicated than simply establishing a military force with nuclear weapons and delivery tools. The investment of command and control mechanisms that are compatible with the nuclear strategy may consume more of a budget than the nuclear weapon systems themselves. Force protection facilities and special forces for protecting the nuclear arsenal as well as other nuclear-related establishments are vital investments to build a mature nuclear force. We have already seen in the case of Pakistan and India how hard it is for them to retain their credibility of nuclear deterrence after their own nuclear tests. Arguably, we may also speculate that Pyongyang so far is only nuclear-capable, but to have any reliable nuclear arsenal and credible nuclear force, we have still yet to see.

Second, we should ask how North Korean nuclear capacity may convert into any political influence. It is very hard to see if Kim’s regime may use the nuclear weapon as a coercive means to take any offensive actions towards neighboring states. Has Pyongyang ever mentioned that the nuclear weapon will be used other than self-defense? Can North Korea afford a first-strike nuclear strategy? We should reconsider the purpose of Kim’s nuclear policy instead of misconstruing his real intention. Is a nuclear weapon a good choice to enhance the legitimacy of the government, thus assuring the political survivability of the regime? Given the case of the former Soviet Union, the answer is not ideal for Kim Jong-un. Can the nuclear arsenal enhance the political legitimacy of the North Korean government? This answer may also be disappointing. Kim’s nuclear policy has a very slim probability of reshaping the power structure in Northeast Asia and supporting the political survival of Kim’s regime. We should make no mistake in mistaking North Korea’s nuclear weapon for Iran’s anti-ship missile, which can immensely affect maritime transportation at the exit of the Persian Gulf. The nuclear weapons held by the North Korean may not have the same influence as other military assets in Kim’s hands, such as the hundreds of conventional artillery assets proximate to Seoul. 

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North Korea has carried out massive artillery drills, possibly the largest in the country’s history, to mark the 85th anniversary of the founding of the country’s Army. (KCNA)

The China Factor

Third, the China factor in the Korean Peninsula should be clearly identified. There is much speculation on Beijing’s position towards Pyongyang. Undeniably, China is the only key ally to this isolated state. Nevertheless, the influence of China on North Korea is also limited. China has clearly addressed its position on the North Korean nuclear issue with several statements noted by the Chinese governmental white paper titled China’s Policies on Asia-Pacific Security Cooperation issued on January 11, 2017. It first admitted that “The nuclear issue on the Korean Peninsula is complex and sensitive …” which proves that managing a nuclear Korean Peninsula is a daunting challenge to Beijing, too. Unlike many accusations of China secretly helping Pyongyang develop its nuclear arsenal, this policy statement clearly indicated China’s disagreement with the existence of North Korea’s nuclear capability.

Moreover, China also clearly expressed the willingness to cooperate with the United States on this issue, stating “China has actively pushed for peaceful solutions to hotspot issues such as the nuclear issue on the Korean Peninsula and the Afghanistan issue, and played its due role as a responsible major country” and that, “The two countries have made steady progress in practical cooperation in various fields, and maintained close communication and coordination on major regional and global issues like climate change, the Korean and Iranian nuclear issues, Syria, and Afghanistan.” We, therefore, should remember that the Mar-a-Lago summit is not a starting point for the U.S.-PRC cooperation on the North Korean nuclear issue, but a reaffirmation of positions. More importantly, it makes the following statement:

“China is committed to the denuclearization of the peninsula, its peace and stability, and settlement of the issue through dialogue and consultation. Over the years, China has made tremendous efforts to facilitate the process of denuclearization of the peninsula, safeguard the overall peace and stability there, and realize an early resumption of the Six-Party Talks… the Democratic People’s Republic of Korea (DPRK) conducted two nuclear tests and launched missiles of various types, violating UN Security Council resolutions and running counter to the wishes of the international community. China has made clear its opposition to such actions and supported the relevant Security Council resolutions to prevent the DPRK’s further pursuit of nuclear weapons…other parties concerned should not give up the efforts to resume talks or their responsibilities to safeguard peace and stability on the peninsula.”  

We, therefore, may conclude with a clear picture of China’s position on Pyongyang’s nuclear adventurism.

However, it is necessary to remember another issue: the deployment of the THAAD missile system in the Korean Peninsula in recent months. Although Beijing hasn’t linked this issue with the North Korean nuclear issue yet, Washington should be aware of the sensitivity of this military maneuver. Given that the white paper states “Despite clear opposition from relevant countries including China, the U.S. and the Republic of Korea (ROK) announced the decision to start and accelerate the deployment of the THAAD anti-ballistic missile system in the ROK. Such an act would seriously damage the regional strategic balance and the strategic security interests of China and other countries in the region, and run counter to the efforts for maintaining peace and stability on the Korean Peninsula. China firmly opposes the U.S. and ROK deployment of the THAAD anti-ballistic missile system in the ROK, and strongly urges the U.S. and the ROK to stop this process.” Of course, the newly-elected South Korean President Moon Jae-in may have the possibility to change the decision of deploying the THAAD system. Nonetheless, Washington should consider how these two issues can be well-managed together before any linkage actually emerges in Beijing’s strategic calculus in the future.

China-DPRK Treaty Ties

Last but not least, during past several months, there has been a missing point rarely noted in commentary. The Sino-North Korean Mutual Aid and Cooperation Friendship Treaty signed on July 11, 1961 is still a valid security assurance granted by Beijing so far. Article Two is a provision of mutual military assistance in the event of security threats to either signatory. The phrases of assuring military intervention as “The two parties undertake jointly to adopt all measures to prevent aggression against either party by any state,” and “in the event of one of the parties being subjected to the armed attack by any state or several states together and thus being involved in a state of war, the other party shall immediately render military and other assistance by all means at its disposal,” gave the treaty characteristics of a pact for security alliance.

Also, Article Three notes, “Neither party shall conclude any alliance directed against the other party or take part in any bloc or in any action or measure directed against the other party,” which can possibly exclude the possibility of Beijing granting tacit consent to Washington for any military maneuver involving the decapitation of North Korean leadership or the destruction of its nuclear facilities with military strikes. Although it is very unrealistic to argue that the Article Three of this treaty may effectively restrict any cooperative diplomatic effort between Washington and Beijing towards Pyongyang, it is necessary to understand Beijing’s present position of interpreting the terms noted in this treaty.

Conclusion

The Korean Peninsula crisis will never be the catalyst for improving Sino-US relations, though both parties do share the concern of future development. There are so many issues on the mutual relations agenda between Washington and Beijing. On the other hand, the Korean Peninsula crisis is the best chance for the Japanese Abe’s regime to have an excuse to revise its constitution. For the Japanese concern on the Korean Peninsula is a “just cause” or only a “just because”, the strategy planners in Washington should well assess its significances. With many misconceptions already existing on the Korean Peninsula, the most valuable advice would be “always be aware of those who intend to fish in troubled waters”. Before taking prompt decisions and taking the viewpoints from media commentary, reviewing all the basic documents carefully should also be an essential element for formulating future policies.

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: A North Korean soldier watches the South Korean side at the truce village of Panmunjom in the demilitarized zone separating the two Koreas in Paju, north of Seoul April 4, 2013. (Reuters/Lee Jung-hoon/Yonhap)

Asia-Pacific

The U.S.-Philippines Alliance in Context

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By Usman Javed

“Alliance does not mean love, any more than war means hate.” The words of Francis Parker Yockey accurately suggest that states build relationships with other states to advance mutual interests. The U.S.-Philippines alliance is no exception. Though the very close relationship between the two countries has experienced some hiccups recently, this article suggests that the mutual interests of both states are substantial enough to sustain cooperation between the two countries.

Forging Alliances 

For the majority of American history, the lawmakers of the country were apt in following George Washington’s advice on foreign affairs: “It is our true policy to steer clear of permanent alliance with any portion of the foreign world.” As a result, for the first 165 years of its existence, the U.S. did not form any alliances with the exception of France during the revolutionary war. However, a completely different course has been taken since WWII, when the U.S. became heavily involved in global affairs. With the preeminence of transnational organizations and multi-party international treaties such as the United Nations and the North Atlantic Treaty Organization, Washington made numerous alliances. To this end, Washington’s isolationist policy was replaced by a highly inclusive and internationalist one.

However, there has been another noticeable episode in the United States’ relationships with its allies. From Europe to the Middle East and the Asia-Pacific, relationships with countries that at one point seemed politically untouchable have increasingly become vulnerable. The past few years have seen some uneasy episodes with Saudi Arabia, Israel, Turkey, the UK, and Japan. In that sense, the Philippines is only the latest chapter in the recent history of weakening partnerships.

Friend of the Philippines

The U.S.-Philippines relationship has been historically strong and is often categorized as a special relationship. It has seen its evolution from conflict to partnership to friction to re-emergence. Yet despite its unsettling history, the relationship between the two countries has been on the rise in recent years. The Enhanced Defense Cooperation Agreement between the Philippines and the United States signed on April 28, 2014 not only gave U.S. access to select Philippines bases, but also allowed the Philippines access to American ships and planes. In addition, the Philippines was set to gain invaluable training and assistance lessons to defend its sovereignty, which included more than $41 million – or almost 85 percent of the $49.72 million total amount this year of the Maritime Security Initiative funding for capacity-building initiatives in Southeast Asian states near the South China Sea. Philippines is also the largest recipient of U.S. assistance in Asia. The U.S. Agency for International Development (USAID) has facilitated more than $5 billion in infrastructure investments since 2013.

Though the relationship has been very close over the past few years, the election of Philippine President Rodrigo Duterte in June 2016 has instilled doubt in the future of the U.S.-Philippine alliance. In October 2016, Duterte announced a Philippines separation from the U.S. in favor of a closer relationship with China. The State Department, baffled by Duterte’s suggestion, said that it would seek an explanation of what the Philippines leader meant. This initial exchange was only the beginning of what became a series of episodes leading to an uneasy relationship between the two countries.

President Xi Jinping (left) pictured with Rodrigo Duterte as they inspect an honor guard in Beijing. (Photo: Simon Song)

However, despite heavy rhetoric and passionate speeches, it is unlikely that the world has seen an end to the decades-old alliance. The reason is simply that the practical advantage of such an arrangement is beneficial to both the U.S. and the Philippines, and both countries are better off in cooperation than in discord.

Enduring Interests and Ties

Though the President of the Philippines wants to exercise an “independent foreign policy,” the reality is that the country is still heavily dependent on the U.S., especially in the matter of defense. As one of the region’s weakest militaries, the Armed Forces of the Philippines (AFP) rely significantly on the U.S. to address its security challenges, including tension in the South China Sea, terrorism, and natural disasters. Even domestically, the AFP will not look too favorably upon an isolationist policy towards Washington. The military plays an instrumental role in the security of the country and is vital for peace processes with communist rebels and insurgent groups. Duterte would not go far in achieving his objectives unless the basic security condition is met. For that, he is much better off having the U.S. on his side.

A fundamental question remains unanswered by Duterte or his aides: which country would the Philippines turn to for help if it chooses to end its bond with Washington? Granted, there have been some talks with China and Russia, but it is unlikely either of the two countries will be able to fill a void as big as the U.S. Dependence on China would be problematic for the Philippines due to the disputed territorial claims, especially when China’s ambitions over the South China Sea have been described as the biggest threat to Philippines sovereignty. Moreover, the early proposals of buying equipment from China and Russia have already seen some pushback in the defense circles both privately and publicly.

Practically speaking, even if there is a genuine desire to escape any relations with the U.S., the wise policy would be to incrementally remove its dependence on Washington instead of revolutionary-style revisionism. This would allow the Philippines some time to become more self-sustaining as well as to forge alliances with other countries. However, such an arrangement may take several years for Manila and can certainly not be achieved in the six-year term of Duterte.  

There is already elite and bureaucratic resistance to Duterte. For instance, the Defense secretary, Delfin Lorenzana, has voiced clear support for the U.S. mutual defense treaty. Moreover, separation from the U.S. is also going against the local public, which has long been heavily in favor of the U.S. According to the Pew Research Center, 92 percent of respondents in the Philippines said they had a favorable view of the United States. In comparison, only 54 percent said they regarded China favorably.

Petty Officer 2nd Class Anthony Chavez, a native of San Bernardino, Calif., works with a soldier from the Armed forces of the Philippines to move relief supplies to a school on the Panay Island in the wake of Typhoon Fengshen.  (U.S. Navy photo by Senior Chief Mass Communication Specialist Spike Call)

Economically, Japan, a strong American ally, is the largest trading partner of Philippines followed by China, the U.S., and Singapore. The Philippines exports 42.7 percent of all its exports to the U.S., Japan, and Singapore, compared to only 10.5 percent to China. The Philippines imports 16.1 percent of its total imports from China, while almost all the remaining imports are from the U.S. and its allies.  

These realities have at least in part been recognized by Duterte. For instance, though he initially called for the withdrawal of U.S. troops from the nation’s south, he later conceded that the country would need U.S. presence for the South China Sea. His aides have also accepted that the existing treaties would also remain enact.

Conclusion

The Philippines, Southeast Asia’s oldest democracy, is an important trade and security partner for the U.S. The Philippines has grown to become one of Southeast Asia’s strongest growing economies with GDP growth of about six percent a year and trade with the U.S. at $18 billion last year. If the Philippines aligns itself with China, Washington will struggle to hold the “first island chain” in the Western Pacific that encompasses “the Japanese archipelago, the Ryukyus, Taiwan, and the Philippine archipelago.” Defending the first island chain has been an important U.S. foreign policy objective since the Cold War and Washington is unlikely to change that policy given its significance for deterrence. Freedom of navigation in the South China Sea is a contentious issue where $5.3 trillion in goods is estimated to pass through the South China sea annually, including $1.2 trillion in U.S. trade. With the Philippines no longer on its side, the U.S. Navy would find it much harder to protect important sea lanes and sustain military operations.

The U.S.-Philippines alliance may have suffered but it is certainly not dead. Both countries gain a strategic advantage by being in such a relationship. Ups and downs are a natural course for alliances and the U.S.-Philippines relationship is no exception to the rule. It is possible that some change may occur in the conduct of the relationship, but sooner or later both countries will realize it is better to remain in such an arrangement, even if they do not see eye to eye, than to stray to a path unknown.

Usman Javed holds an MPhil from the Judge Business School from the University of Cambridge. As the author of several articles, editorials, reports and media publications, he has presented his research at a number of conferences. His work experience includes working for the World Bank, consulting for a number of start-ups in the UK, Asia-Pacific, and North America and co-founding an Ed-Tech start-up.

Featured Image: President Rodrigo R. Duterte meets with U.S. Secretary of State John F. Kerry during a courtesy call at Malacañan Palace on July 27, 2016. (Philippines Presidential Communications Operations Office)

Asia-Pacific, Current Operations

Gauges for Inspecting U.S.-Philippine Relations

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By Ching Chang

U.S.-Philippine relations have started to encounter significant challenges since the inauguration of President Rodrigo Duterte on June 30, 2016. President Duterte has made contentious statements which have been supported and accepted by the Philippine general public in spite of the controversial nature of his comments.

Given the historically long-lasting relationship between the United States of America and the Republic of the Philippines, both nations still maintain positive interactions. Regardless of its national strength, the Philippines has always been a significant supporter of the United States in the Western Pacific region and a strategic non-NATO ally. America retains a positive image in the Philippines, gaining wide approval from its citizens for its influence and policies in the region.

Given the conflicting situation between the positive perception of the U.S. of the general public and the negative criticism from President Duterte on U.S. policies, how should we make a fair assessment about the future of interactions between the White House and the Malacanang Palace throug the rest of Duterte’s presidency? The author would like to provide several reference gauges for inspecting U.S.-Philippines relations.

Security

First, security and military cooperation is undeniably a vital dimension of U.S.-Philippines relations. The Mutual Defense Treaty between the Republic of the Philippines and the United States of America signed on August 30, 1951 in Washington, D.C. is the solid foundation defining the alliance relationship between these two security partners. It was an elevation from the 1947 Military Bases Agreement. During the Cold War era, the United States maintained operations from the Clark Air Base until November 1991. On the other hand, the Subic Bay Naval Complex and several other relatively insignificant and subsidiary establishments in the Philippines remained operational until the effort of extension for another ten-year lease offer was rejected by the Philippine Senate on September 16, 1991. Eventually, U.S. forces withdrew from Subic Bay on November 24, 1992.

An aerial view of ships moored at the station. The nuclear-powered aircraft carrier USS ENTERPRISE (CVN-65) is in the foreground. (Vern Rowe)
An aerial view of ships moored at the station. The nuclear-powered aircraft carrier USS ENTERPRISE (CVN-65) is in the foreground. (Vern Rowe)

As the regional security situation gradually changed after the Cold War, the United States and the Philippines have regained momentum to enhance their security cooperation. The Visiting Forces Agreement was settled in February 1998 and subsequently led to the arrangement of the routine U.S.-Philippines joint military exercises names Balikatan, a Tagalog term meaning “shoulder-to-shoulder” as part of the War on Terror. Alternatively, the Philippines government also benefited from counterterrorism support against the Abu Sayyaf and Jemaah Islamiyah groups in areas previously afflicted by insurgency movements such as Basilan and Jolo. Apart from the Visiting Force Agreement, another Mutual Logistics Support Agreement was also signed in November 2002. Finally, the Agreement on Enhanced Defense Cooperation settled on April 28, 2014 symbolized the peak of  U.S.-Philippines security cooperation in recent years. This framework agreement indeed expanded the scope of the 1951 Mutual Defense Treaty.

Diplomacy

Therefore, we may identify the ceiling of U.S.-Philippines security cooperation for now as the 2014 Enhanced Defense Cooperation Agreement and the floor being the 1951 Mutual Defense Treaty. The possibility of returning to the scale and degree of defense cooperation during the Cold War era as U.S. forces retain overseas bases in the Philippines is relatively slim. The maneuvering space for President Duterte to play political games is well defined unless he would like to have a structural change, which he already firmly denied. Comparatively, cancelling the joint exercise could be a good bargaining chip. Nonetheless, it has not undermined the overall structure yet. Furthermore, the diplomatic game will not be played by President Duterte alone. The future development of U.S. Asia policy after the new administration will be more influential to the U.S.-Philippines security relations. Nonetheless, the fundamental truth that we should bear in mind is that a single dimension does not speak for all.

Second, as we try to observe U.S.-Philippines relations, we must understand that these actors do not interact alone. There are other regional players who may also influence the overall strategic equation or security formula. The responses from these regional players should be a concern as we examine the interactions between the United States and the Republic of Philippines. As in aforementioned situations, there are various considerations within the foreign policy formulation process. Accommodating animosities or inconsistencies occurring from various dimensions of the interactions among states should be a matter of reality that all parties should accept.

Unity of opposites is a general practice of diplomacy nowadays in the East Asia. To assure their economic prosperity, every state would enhance their relationship with the People’s Republic of China. On the other hand, a certain level of concern in the security dimension would force all parties in the region to keep a positive relationship with the United States. As President Duterte emphasizes his desire to improve the relationship between Beijing and Manila, it might be necessary to surrender elements of the U.S.-Philippines relations as the price. Certain statements condemning Washington seem to be political maneuvers to please Beijing. Nonetheless, all these improvised grumbles are magnified by the press. Their importance was overstated since no structural change had been attempted yet.

Chinese President Xi Jinping (R) holds talks with his Philippine counterpart Rodrigo Duterte in Beijing, capital of China, Oct. 20, 2016. (Xinhua/Li Xueren)
Chinese President Xi Jinping (R) holds talks with his Philippine counterpart Rodrigo Duterte in Beijing, capital of China, Oct. 20, 2016. (Xinhua/Li Xueren)

Though unpleasant to Washington and to the alliance states in the region, the value of delivering formal responses to Duterte’s spontaneous statements does not exist. Most of the regional players may not enthusiastically react to Manila’s provocations unless certain substantial maneuvers may actually undermine the balance of power or the security structure. The interactions between the White House and the Malacanang Palace do matter to other regional players. Their responses are the vital references and the essential driving forces for managing U.S.-Philippines relations. Policymakers should expand their scope of consideration by observing other regional players and expanding their calculation beyond Manila and Washington.

Third, we must never forget that President Duterte is only the head of the administrative arm of the Philippine government. The administration is unquestionably playing the center role in the diplomacy. Nonetheless, other branches such as the legislative and judicial institutions of the Philippine government may also be influential to U.S.-Philippines relations. We should never forget that the attempt to extend the lease of Subic naval bases was blocked by the Philippine Senate in 1991.

Moreover, if President Duterte tries to retract from the present position of the Philippine government claiming the sovereign rights to those land features and maritime jurisdictions in the South China Sea, the possibility of facing an impeachment could not be totally excluded though these islands and reefs were never specified by the Philippines Constitution like the rest of its legal territories. These unconstitutional land features are so closely associated with national esteem now that no one would have the courage to point out the flaws of their own argument in the Philippines. So, checks and balances on the diplomacy should be another appropriate reference to consider the future of Duterte’s adventurism and opportunistic ambition.

Last but not least, most diplomatic plots are slow-cook stews, not fast food. Beijing’s reactions towards Duterte’s political maneuvers of rapprochements are very cautious. Civilizations with long memories will not forget the situation that occurred during the visit of President Benigno Aquino III to China in August 2011. Many agreements containing financial support and cooperation were signed and a joint communique confirming that those disputes in the South China Sea would be solved through consultations and negotiation was publicized. However, President Aquino broke his promise almost right after the visit and submitted the arbitration case eight months later.

All surprise maneuvers in diplomacy are not trustworthy. This is especially true when those involved have a conviction of dialectic principle known as “from change in quantity to change in quality” who will never trust any unexpected turn about. When comparing the long existing basis of the U.S.-Philippines relations, it is very hard to believe that the term of “separation” with the United States as President Duterte said in Beijing can be a meaningful long-term policy. Many political statements will be eventually proven to be void promises. Duterte’s diplomacy at the moment is matched with good timing. As the United States is at the peak of its presidential campaign, few would be distracted by Duterte embracing of Beijing. No decisive policy change toward the Philippines can be decided before at best next spring, when the national security team of the new U.S. administration attends its positions and forges the consensus. In other words, President Duterte would have several months to alleviate the uneasiness of the new U.S. leadership. The political calendars separately existing in Washington and Beijing should also be good references to scrutinize the future of U.S.-Philippines relations.

Conclusion

Although there are many transitional phenomena with the capacity to attract our attentions, the ultimate principles securing the basic structure of the alliance should never be neglected. These gauges would provide a better lens for us to observe future interactions between Manila and Washington.

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

Featured Image: President Duterte speaks during a visit at a military camp in the Philippines. (Francis R. Malasig /EPA/Newscom)

Asia-Pacific

China and Freedom of Navigation: The Context of the International Tribunal’s Verdict

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The following article was originally featured by the National Maritime Foundation and is republished with permission. Read it in its original form here.            

By Gurpreet S. Khurana

On 12 July 2016, the Tribunal constituted at the Permanent Court of Arbitration (PCA) at The Hague under Annex VII of the United Nations Convention on Law of the Sea, 1982 (UNCLOS) issued its decision in the arbitration instituted by the Philippines against China. It relates to the various legal issues in the South China Sea (SCS) inter alia pertaining to China’s historic rights and ‘nine-dash line,’ and the status of features and lawfulness of Chinese actions.1

Within hours of the release of PCA Tribunal’s decision, India released a government press release, stating that

“India supports freedom of navigation and over-flight, and unimpeded commerce, based on the principles of international law, as reflected notably in the UNCLOS. India believes that States should resolve disputes through peaceful means without threat or use of force and exercise self-restraint in the conduct of activities that could complicate or escalate disputes affecting peace and stability…”2

However, Beijing has stated that China would not accept the Tribunal’s verdict.3 Furthermore, tensions have rekindled in the SCS with reports indicating that China intends “closing off a part of SCS for military exercises.”4 The issue of Freedom of Navigation (FON) is of immense relevance not merely for the SCS littorals, but for all countries that have a stake in peace and tranquillity in the SCS; and yet bears a significant potential to flare-up into a maritime conflict.

This issue brief aims to examine China’s approach to FON in context of international law, including the verdict of the PCA Tribunal. In this writing, the term ‘FON’ refers to the broader concept of ‘navigational freedoms,’ including the freedom of over-flight. Furthermore, this brief attempts to identify the de jure ramifications – even if not de facto, considering China’s rejection of the verdict – of the PCA Tribunal’s decision on China with regard to FON in the area.  

FON is a fundamental tenet of customary international law that was propounded in 1609 by the Dutch lawyer Hugo Grotius, who called it Mare Liberum (Freedom of the Seas). The legal tenet is codified in the UNCLOS, a process that involved over two decades of intense labor of international maritime lawmakers at three brainstorming Conferences. The Third Conference itself (UNCLOS III) spanned nine years, which led to the signing of Convention in 1982 and its subsequent entry into force in 1994. The Peoples’ Republic of China was among the first signatories to the Convention on 10 December 1982 (along with India), and ratified it on 07 June 1996. The key question is whether China – despite the foregoing – is impeding freedom of navigation in the SCS? For a comprehensive answer, the issue would need to be examined separately for the three legal regimes/ areas wherein international law applies differently: China’s Territorial Sea, its Exclusive Economic Zone (EEZ), and the other areas within the ‘nine-dash line.’ 

Territorial Seas

In a State’s 12-nautical mile (NM) Territorial Sea, the right of ‘Innocent Passage’ provided for in UNCLOS Article 17 applies to both commercial and military vessels. As regards commercial shipping, there is no evidence whatsoever of China denying this right to such ships flying the flag of any nationality. Notably, China is a manufacturing-based and export-led economy, which imports nearly 80 percent of its oil and natural gas via the sea. Therefore, China has tremendous stakes in unimpeded maritime commerce, and does not stand to gain by deliberately impeding the FON of merchant ships.

For foreign warships, however, the ‘yardstick’ of ‘Innocent Passage’ differs. During the UNCLOS negotiations, most developing countries wanted restrictions on foreign warships crossing their Territorial Seas. Many of these States proposed that foreign warships must obtain ‘authorization’ for this from the coastal State. Eventually, however, the proposed amendment was not incorporated in UNCLOS; nonetheless, the States were permitted to take measures to safeguard their security interests. Consequently, and in accordance with UNCLOS Article 3105, like many other States, China made a declaration in June 1996 while ratifying UNCLOS, seeking ‘prior permission’ for all foreign warships intending to exercise the right of Innocent Passage across its Territorial Seas.6 The declaration was based upon Article 6 of China’s national law of 1992.7 It is pertinent to state that about 40 other States – including many developed countries in Europe – made similar declarations seeking ‘prior permission’ for Innocent Passage. (Notably, India seeks only ‘prior notification’. However, the United States does not recognize the right of either ‘prior permission’ or ‘prior notification’).8

It may be recalled that during the Cold War, in 1983, the Soviet Union promulgated rules for warship navigation in its Territorial Seas, which permitted Innocent Passage only in limited areas of Soviet Territorial Seas in the Baltic Sea, the Sea of Okhotsk, and Sea of Japan. This led to a vigorous protest from the United States. Later in 1986 and 1988, the United States Navy conducted Freedom of Navigation Operations (FONOPS) in the Soviet Territorial Sea in the Black Sea.9 In contrast, therefore, China’s stand on navigation of foreign warships through Territorial Seas of ‘undisputed’ Chinese territory is clearly legitimate.

However, the passage of foreign warships within 12-NM of the disputed SCS islands/features – which are occupied and claimed by China – has been highly contentious. Since the United States seeks to prevent any norm-building in favor of China’s territorial claims, it has been undertaking FON operations (FONOPS) in the 12-NM zone of these islands. Notably, since the launch of the U..S “Freedom of Navigation Program” in 1979, the United States has conducted such operations on numerous occasions all around the globe; sometimes even against its closest allies.

From the perspective of China – that is in de facto control of the islands/features – its objection to the U.S. warships cruising within 12-NM of these islands/ features without ‘prior permission’ is as much valid as the U.S. FONOPS to uphold its right of military mobility across the global commons. Hence, until such time that the issue of sovereignty over these islands is settled, the legitimacy of China’s stand on FON in these waters cannot be questioned. 

Exclusive Economic Zone

Alike in its Territorial Sea, China has never impeded FON of commercial vessels in its EEZ. However, like many other States, China has been objecting to foreign military activities in its EEZ. It may be recalled that in April 2001, China scrambled J-8 fighters against the U.S. EP-3 surveillance aircraft operating about 60 NM off China’s Hainan Island, leading to a mid-air collision.10

Unfortunately, the UNCLOS does not contain any specific provision, either permitting or prohibiting such activities. According to Articles 58(1) and 87 of UNCLOS, the EEZ is part of ‘International Waters’ wherein all foreign warships may exercise High Seas FON, with certain exceptions that relate to economic/ resource-related uses of the EEZ, such as Marine Scientific Research, which may be conducted only if permitted by the coastal State. Therefore, if a foreign military conducts hydrographic surveys in China’s EEZ, it may be justified as being among the High Seas Freedoms since it may be necessary for safe navigation of warships. However, if a foreign military conducts intelligence collection in the EEZ – as China interprets the objective of U.S. military activities in its EEZ – it may be objectionable, at least in terms of the spirit of UNCLOS, whose Article 88 says that “The high seas shall be reserved for peaceful purposes.” Of course, some may consider ‘intelligence collection’ as a normal peacetime activity of a State to bolster its military preparedness to maintain peace. But this only serves to reinforce the prevailing void in UNCLOS, rather than legally deny China the right of ensuring its own security.

Other Areas within ‘Nine-Dash Line’

China has never explicitly articulated its stand on the legal status of the sea areas within the ‘nine-dash line’, which lie beyond its 12-NM Territorial Sea and the 200-NM EEZ. However, by laying ‘historic’ claim to all SCS features (islands, rocks or reefs), and referring to all these as islands entitled to EEZ and Legal Continental Shelf (LCS), it has implicitly claimed sovereign jurisdiction over the entire sea area enclosed within the nine-dash line. Based on such assumed sovereign rights – though disputed by other claimant States – China has been curtailing FON in these areas, particularly for warships. For example, in the days leading to the International Tribunal’s verdict on the China-Philippines Arbitration, Beijing declared a ‘no sail zone’ in the SCS during a major naval exercise in the area from 4 to 11 July 2016 (see Fig. 1 below).

SCS
Figure 1 – China’s ‘No Sail Zone’ in South China Sea, promulgated: 04 July 2016. (DefenseOne.com)

As the map indicates, the ‘prohibited zone’ was a sizable 38,000 sq mile area lying between Vietnam and the Philippines. It encompasses the Paracel Islands, but not the arterial International Shipping Lane (ISL) of the SCS.11 During such exercises in the past, China has imposed such restrictions on navigation in the SCS. While some analysts have referred to such restrictions on FON as violation of maritime law,12 given the susceptibility of prevailing international law to divergent interpretations, China cannot be denied the right to interpret law in a manner that best suits its security interests.

However, the above scenario prevailed prior to 12 July 2016. The verdict of the PCA Tribunal has changed all that. The Tribunal has dismissed China’s claim to ‘historic rights’ within the ‘nine-dash line’, indicating that such claims were incompatible with UNCLOS, and asserted that no feature claimed by it in the SCS is capable of generating an EEZ. At least from the standpoint of international law, therefore, Beijing’s claim to sovereign jurisdiction over these areas is decisively annulled. Henceforth, China will need to concede to unimpeded FON in the SCS, both for commercial shipping and warships. For example, if it needs to conduct a naval exercise in the area, declaring a ‘no sail/ prohibited zone’ would no longer be legally tenable. Instead, China could, at best, merely promulgate a mere ‘advisory’ for the safety of ships and civil aircraft intending to transit through the exercise area.

China could possibly react to the adverse verdict of the International Tribunal by declaring an Air Defence Identification Zone (ADIZ) over the SCS. A resort to this would not be constructive since it would further heighten anxieties in the area. Nonetheless, China’s declaration of an ADIZ would be tenable from the legal standpoint. The promulgation of such Security zones is not prohibited by international law. However, for interpreting it as ‘not prohibited, and hence permitted,’ promulgating such a zone must adhere to the spirit of law in terms of its need for maintaining peace or for self-defense, and that it is not obverse to the overarching principle of freedom of navigation and over-flight.  

Concluding Remarks

It is amply clear from the foregoing that the contentions over freedom of navigation and over-flight in the SCS are more a result of the geopolitical ‘mistrust’ between China and the other states, aggravated by the voids and ambiguities of international law, rather than any objective failing on part of China and the other states involved to observe the prevailing tenets of international law.

The geopolitical relationships constitute an aspect that China and the other countries involved need to resolve amongst themselves, and the rest of the international community can do little about it. Further, there is hardly a case for convening a fourth UN Conference on the Law of the Sea to renegotiate the UNCLOS, which already is a result of painstaking efforts of the international community during a period that was geopolitically less complex than it is today.

Nonetheless, it is encouraging that the lingering maritime-disputes in the Asia-Pacific are being arbitrated upon by international tribunals. Over the years, the decisions of international tribunals on cases such as the India-Bangladesh (July 2014)13 and the more recent one between China and Philippines on the SCS would be valuable to fill the legal voids, and would firm up over time to add to the prevailing tenets of international law.

China’s adherence to PCA Tribunal’s decision would not only contribute to peace and prosperity in the region, but would also best serve its own national interest, at least in the longer term. However, it remains to be seen how long Beijing will take to assimilate the ‘new normal’ into its policymaking.

Captain Gurpreet S Khurana, PhD is the Executive Director, National Maritime Foundation (NMF), New Delhi. The views expressed are his own and do not reflect the official policy or position of the Indian Navy, the NMF or the Government of India. He can be reached at gurpreet.bulbul@gmail.com.

Notes and References

1. ‘The South China Sea Arbitration (The Republic of the Philippines V. The People’s Republic of China)’, Permanent Court of Arbitration, The Hague, Press Release, 12 July 2016, at https://pca-cpa.org/wp-content/uploads/sites/175/2016/07/PH-CN-20160712-Award.pdf

2. ‘Statement on Award of Arbitral Tribunal on South China Sea Under Annexure VII of UNCLOS’, Ministry of External Affairs (Govt of India) Press release, 12 July 2016, at http://mea.gov.in/press-releases.htm?dtl/27019/Statement_on_Award_of_Arbitral_Tribunal_on_South_China_Sea_Under_Annexure_VII_of_UNCLOS

3. ‘Statement of the Ministry of Foreign Affairs of the People’s Republic of China on the Award of 12 July 2016 of the Arbitral Tribunal in the South China Sea Arbitration Established at the Request of the Republic of the Philippines,’ Ministry of Foreign Affairs, the People’s Republic of China, 12 July 2016, at http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1379492.shtml

4. ‘China ups the ante, to close part of South China Sea for military exercise,’ Times of India, 18 July 2016, at http://timesofindia.indiatimes.com/world/china/China-ups-the-ante-to-close-part-of-South-China-Sea-for-military-exercise/articleshow/53263905.cms

5. Article 310 of UNCLOS allows States to make declarations or statements regarding its application at the time of signing, ratifying or acceding to the Convention.

6. Office of the Legal Affairs of the United Nations, Treaty Section website (Date of most recent addition: 29 October 2013), at http://www.un.org/depts/los/convention_agreements/convention_declarations.htm

7. Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone, No.55, 25 February 1992, at http://www.asianlii.org/cn/legis/cen/laws/lotprocottsatcz739/

8.  Limits in the Seas, US Responses to Excessive Maritime Claims, US Department of State (Bureau of Oceans and International Environmental and Scientific Affairs), No 112, 09 March 1992, p.52

9. Rules for Navigation and Sojourn of Foreign Warships in the Territorial and Internal Waters and Ports of the USSR; ratified by the Council of Ministers Decree No. 384 of 25 Apr 1983, cited in Limits in the Seas, US Responses to Excessive Maritime Claims, US Department of State (Bureau of Oceans and International Environmental and Scientific Affairs), No 112, 09 March 1992, pp.56-57

10. Patrick Martin , ‘Spy plane standoff heightens US-China tensions,’ World Socialist Web Site, 3 April 2001, at https://www.wsws.org/en/articles/2001/04/spy-a03.html

11. Echo Huang Yinyin , ‘China Declares a No-Sail-Zone in Disputed Waters During Wargame,’ Defense One, 5 July 2016, at http://www.defenseone.com/threats/2016/07/china-declares-no-sail-zone-disputed-waters-during-wargame/129607/?oref=d-river

12. Sam LaGrone, ‘Chinese Military South China Sea ‘No Sail’ Zone Not a New Move’, USNI News, 7 July 2016, at https://news.usni.org/2016/07/07/chinese-military-south-china-sea-no-sail-zone-nothing-new

13, Bay of Bengal Maritime Boundary Arbitration (Bangladesh V. India) Award, Permanent Court of Arbitration, The Hague, 07 July 7, 2014, at http://www.pca-cpa.org/showpage.asp?pag_id=1376

Featured Image: Pearl Harbor, Hawaii (Sept. 6, 2006) – Chinese Sailors man the rails aboard the destroyer Qingdao (DDG 113) as they arrive in Pearl Harbor. (U.S. Navy photo by Mass Communication Specialist Joe Kane)