China’s South China Sea looks different when you’re in China. A lot of people don’t realize that of the seven islands on which China has recently built, only the construction is new: China has actually occupied the reefs since 1988, or in one case 1994. So although the bases are new, China hasn’t actually occupied any new territory since 1994. People would say “Well, what about Scarborough Shoal?” But I would say that they haven’t actually physically occupied it, they’ve blocked access to it. Maybe they would like to build on it, but they haven’t.
Top diplomats from China and the 10 ASEAN countries agreed on Tuesday, June 15, 2016 that the South China Sea issue should be handled properly, reaffirming the need to “jointly ensure peace and stability” in the area.The 11 countries also called for “maritime practical cooperation” and for early completion of the Code of Conduct in the South China Sea. The China-ASEAN Special Foreign Ministers Meeting in Yuxi, Yunnan province, was the first of its kind in three years. More..
Here are some readings
- Diplomacy on the Rocks: China and Other Claimants in the South China Sea. Ambassador Chas W. Freeman, Jr. (USFS, Ret.).
- China’s Ocean Frontier: International Law, Military Force and National Development (Studies in World Affairs, 17) Greg Austin.
- China’s Sovereignty Over the South China Sea; An Historical perspective. Jianmin Shen.
- Asia Maritime Transparency Initiative.
- Who Occupies What?
- Poll: US power waning in Pacific, China rising. Stars and Stripes, June 2016.People across the Asia-Pacific think American power is waning and that China will dominate the region over the next decade, according to a recent survey by the University of Sydney’s United States Studies Center. Read more..
- “In closing we would suggest that arguably an analogy can be drawn between China’s recent activities in the South China Sea and Britain’s earlier practice in relation to artificial islands in the Gulf and LTEs in the Caribbean region. The latter episodes illustrate the extremes that States are willing to go to in order to assert and protect their perceived rights and interests and we submit that a comparable dynamic appears to be evident in the South China Sea context also. That said, clear differences also exist. The early to mid-1950s were a period of notable uncertainty, with international law struggling to keep up with regional resource development, the possibilities were there for the element of opportunism discernible in Britain’s consideration of policy and practice. Yet, the international law of the sea, for all that issues of interpretation and uncertainty remain, is far more settled now, especially in light of the near-universal uptake of the UNCLOS. Ultimately, Britain moderated the impulse to maximise its maritime claims, and thus access to seabed hydrocarbons, and brought its policies into line with emerging and now well-established international law of the sea norms. It is to be hoped that this bodes well for similarly questionable, if not outright excessive, contemporary practice relating to LTEs and artificial islands, whether by China or other South China Sea States or, indeed, elsewhere, to be brought into line with UNCLOS. Read the full paper here.
While China has historical and legal claims over the islands of the South China Sea, the United States’ continued occupation of Navassa, Swains, Wake, Kingman, Midway, Johnston, Howland, and Jarvis islands are based on nothing more than a desire for bird droppings. – Wayne Madsen.
Philippines President Détente said, “Then there’s the South China Sea. America would never die for us,” he told a group of foreign military attaches last year. “If America cared, it would have sent its aircraft carriers and missile frigates the moment China started reclaiming land in contested territory, but no such thing happened.” “America is afraid to go to war,” he said weeks later. “We’re better off making friends with China.” WSJ
Sergey Lavrov: We do not need to do this, we are not doing this, and will not do this in the future. We are not surrendering the Kuril Islands, nor are we begging Japan to sign a peace treaty. As a reliable and responsible power and the successor to the Soviet Union, Russia at some point confirmed that we are committed to all obligations assumed by the Soviet Union. These obligations include the Soviet-Japanese Declaration of 1956, which was signed and ratified by the parliaments of the Soviet Union and Japan. The declaration states that the parties undertake to conclude a peace treaty, and only after that, the Soviet Union, as it had pledged to do back then, may, as a gesture of goodwill and based on expectations of the Japanese people, transfer the Japanese islands of Shikotan and Habomai to Japan. Above all, this move is predicated on our Japanese neighbours unconditionally recognising the outcome of World War II. Unfortunately, not only in connection with the islands, but more likely, regardless of it, our Japanese partners are not willing to do so. Japan remains, in fact, the only UN member country that has not confirmed the provisions of the UN Charter that says everything that was done by the victorious powers is immutable.
There is currently a great deal of handwringing as to whether the PRC will island-build the shoal as a pricetag retaliation if the Philippines if, as expected, it wins its arbitration case under UNCLOS.
If the PRC proceeds, it would be a pretty big deal, especially since the PRC never had anything on the atoll previously and would be sticking a finger in the eye of ASEAN and the Declaration of Conduct standstill agreement. But never say never. And don’t be surprised if the PRC is doing some back-channeling to the Philippines at the same time to offer some carrots with its sticks, like the suggestion recently floated for non-exclusive traditional fishing rights inside EEZs.
In my opinion, gaming the 2012 “crisis” at the Scarborough Shoal was a key gambit in the rollout of the pivot. As I write at Asia Times:
Holy writ for pivoteers is that the PRC seized Scarborough Shoal in 2012, proving both its duplicity and the futility of bilateral engagement, so the Philippines had no choice but to internationalize the dispute by taking its South China Sea issues to binding arbitration under UNCLOS, and the US had no choice but to insert itself into the South China Sea between an aggressor state and its helpless victims.
The reality is that the PRC and the Philippines were successfully negotiating their differences bilaterally, so successfully in fact that the Philippine Secretary of Foreign Affairs, Alberto Del Rosario had to step up to sabotage the talks. In fact, PRC permanent occupation of the shoal was a consequence, not a cause, of Philippine internationalization of the dispute.
Today, a growing fear is for China hawks in Washington and various Asian capitals is that their Scarborough chickens are now, four years after the fact, in danger of coming home to roost.
If the only concrete outcome of the decision to adopt a strategy of open confrontation under internationalization is the permanent alienation to the PRC of the fishing grounds at Scarborough Shoal the whole UNCLOS process was supposedly designed to secure, people in the Philippines and, for that matter, governments around the South China Sea are going to ask, what exactly did this brilliant strategy accomplish?
Alberto Del Rosario’s role as hatchet-man for the pivot has become extremely difficult to dispute as more facts about the events of 2012 emerge in the Philippines. The only murky part—the degree of conspiratorial canoodling between Del Rosario and pivot pappy Kurt Campbell, at that time Assistant Secretary of State for East Asian and Pacific Affairs—awaits unraveling by the dogged foreign policy journalists of the American press.
I have, over the last couple years, expended a certain amount of righteous spittle to debunk the story floated by the United States in 2014—that the PRC had reneged on a deal negotiated in a Virginia motel room between Kurt Campbell and PRC Deputy Minister of Foreign Affairs Fu Ying for a simultaneous withdrawal from Scarborough Shoal, thereby necessitating the Philippines’ internationalizing of the dispute, with US moral and military support becoming more and more overt until today we have the US conducting joint military exercises with the Philippines on the periphery of the South China Sea to deter further PRC adventurism.
As the Financial Times reported the official version in 2014:
With typhoon season fast approaching, the US tried to broker a resolution. By the end of the meeting between Kurt Campbell, then the top US diplomat for Asia, and Fu Ying, China’s vice foreign minister for Asia, the US side believed they had an agreement for both sides to withdraw. The following week, the Philippines ships left the Scarborough Shoal and returned home. The Chinese, however, stayed in the area.
The Scarborough Shoal case played a big role in another part of the new approach by the US and its allies: the appeal to the courts. Albert del Rosario told the FT that it was the “catalyst” for Manila’s decision to bring China to an international court over its expansive claims in the South China Sea.
Actually, Kurt Campbell’s one-off in Virginia collided with an intensive series of 16 negotiations by a Philippine senator, Antonio Trillanes IV, conducted at the behest of President Aquino and deliberately bypassing the pro-US China hawk Secretary of Foreign Affairs, Alberto Del Rosario.
Part of the messy deal had come out in September 2012 during a contentious encounter in the Philippine Senate designed to discredit and embarrass Trillanes. I covered that in my current AT piece and in my 2014 Debunking America’s Scarborough Shoal Dolchstoss Meme.
In my Asia Times piece, I also build on my 2014 story to incorporate some reporting by Rigoberto Tiglao, a Philippine journalist who had obtained a copy of a four-page Aide Memoire prepared by Trillanes to further explain his side of the story. It persuasively describes a concerted effort by Del Rosario to sabotage Trillanes’ negotiations and force the Scarborough process away from a bilaterally-negotiated resolution of a fisheries dispute to an interminable festering regional crisis and potential flashpoint for a US-PRC war.
Persuasive enough for Tiglao—who does not present himself as much of a Trillanes fan—to conclude:
I believe him when he made one of his particular allegations: that Foreign Secretary Albert del Rosario deliberately caused the aggravation of our territorial disputes with China in 2012.
As described in a series of columns by Tiglao, the Aide Memoire paints a pretty clear picture of Del Rosario screwing up Trillanes’ Scarborough Shoal deal– for a sequentialwithdrawal, not a simultaneous withdrawal, of Philippine and PRC vessels–with the help of a phone call from the US. I have bolded some prime bits for emphasis.
“PNoy [President Aquino] directed me to work on the sequential withdrawal of government ships inside the shoal. However, on the morning of June 4, PNoy called me to inform me that our BFAR [Bureau of Fisheries and Aquatic Resources] vessel has already left the shoal but China reneged on the agreement of simultaneous withdrawal of their ships, so two of them [were] still inside the shoal.
“I asked him who agreed with what, since I was just hammering out the details of the sequential withdrawal because the mouth of the shoal was too narrow for a simultaneous withdrawal. The President told me that Sec. del Rosario told him about the agreement reached in Washington.
“This time I asked PNoy: ‘If the agreement was simultaneous withdrawal, why did we leave first?’ PNoy responded to this effect: “Kaya nga sinabihan ko si Albert kung bakit niya pinalabas yung BFAR na hindi ko nalalaman.” (“That’s why I asked Albert [del Rosario] why he ordered the BFAR vessels to leave without my permission.”)
“Around 10 June, PNoy informed me that the (remaining BFAR) vessel was ordered to proceed to Subic to undergo repairs and directed me to ask Beijing to reciprocate. On 15 June, PNoy informed me again that he has ordered the pullout of the 2 remaining PCG (Philippine Coast Guard) ships from the shoal, citing an incoming typhoon as the reason, and directed me to ask Beijing to reciprocate.
In other words: Trillanes is negotiating a sequential withdrawal on behalf of the president of the Philippines. Del Rosario, who has been shut out of the negotiations, gets a message from the US (apparently a phone call in the middle of the night from US Ambassador to the Philippines Harry Thomas), orders a unilateral withdrawal from the shoal without telling his own president, and then accuses the PRC of violating an agreement for a simultaneous withdrawal.
Hmm. Hmm. Hmm.
Tiglao’s web page provides some further information on the Aide Memoire as excerpted below. A few points worth noting:
Although Trillanes’ effort is described as a “backchannel”, Aquino’s cabinet knew about it. During one phone call from Beijing, Aquino put Trillanes on speakerphone and Rosario was among the listeners.
Bringing Del Rosario up to speed on Trillanes’ efforts may not have been some of Aquino’s best work. Del Rosario was bitterly opposed to the Trillanes channel:
During Trillanes’ stint as backchannel negotiator in 2012, there were persistent reports that del Rosario detested the senator’s role, and had even threatened to resign his post, as he wasn’t consulted on the matter.
And the feeling was mutual, especially after Del Rosario intensified his behind-the-scenes fiddling against Trillanes’ efforts:
It is in the course of his “back-channelling” mission that he concluded that del Rosario was provoking the Chinese, so much so that an angry Trillanes blurted out: “He should be shot by firing squad for what he did.”
It looks like Del Rosario leaned in early to sabotage the talks, even before he disrupted Trillanes’ sequential withdrawal in June.
Despite his knowledge that Aquino was making progress through Trillanes, Del Rosario also dispatched his own envoy, utility-and-everything tycoon Manuel V. Pangilinan (known by his initials as “MVP”) to Beijing, perhaps in an attempt to undercut Trillanes’ role.
MVP and Del Rosario are joined at the hip, both as business partners and allies in advancing the US-Philippine relationship. Reportedly Del Rosario, now retired from the MFA, is slated to take on the leadership of a new foreign policy think tank generously funded by MVP. It is rumored that MVP is a front man, albeit supremely capable, for the Salim family of Indonesia in order to disguise its control of various strategic Philippine industries that are supposed to be indigenously owned. Del Rosario himself is one of the richest people in the Philippines, perhaps richer than MVP, and it’s a question who’s dog is wagging whose tail.
In a further gotta-be-Asia complications, one of MVP’s companies owns the development rights to the undersea hydrocarbon play at Reed Bank. Reed Bank has been on the agenda for joint Philippine-PRC development for a dog’s age, but will be a matter of (relatively) undisputed sole Philippine development rights if the UNCLOS arbitration goes Manila’s way. In any case, the PRC’s interest in Reed Bank ensures MVP a high-level reception at least in the petroleum sector and he can leverage that to claim if not actually enjoy a privileged capacity as an interlocutor with the PRC on the Philippines.
I’m guessing MVP went to Beijing to tell whoever he met with that the Philippine Foreign Affairs and Defense ministries were dead set against Trillanes’ initiative, he was crazy bananas, and even if the bilateral blows up, no hard feelings, we can still work on Reed Bank together. And his message back to Aquino, hey, we’re solid with the PRC on Reed Bank, they think Trillanes is crazy bananas, let Del Rosario handle Scarborough…
According to Trillanes’ inquiries, after doing his best to blow up the deal by disrupting the negotiations and then interfering with the early June withdrawal, Del Rosario apparently planted false news stories in the Philippine papers to paint a picture of the PRC humiliating the Philippines and turning potential appeasement over the Scarborough Shoal a matter of hot-button nationalism.
Trillanes, in his paper, pointed out that following Aquino’s orders, he had succeeded in his back-channel talks with Chinese officials, so that they ordered on June 10, 2012 the withdrawal from the disputed Scarborough Shoal (Bajo de Masinloc on our maps) of their Coastal Marine Surveillance (CMS) ships and 14 fishing boats. Our two Bureau of Fishing and Aquatic Resources vessels, as part of the agreement, also left the area.
Nine days later, though, Aquino called Trillanes to say that they were “betrayed by China.” Aquino referred him to the Philippine Daily Inquirer’s huge banner-photo which showed Chinese uniformed personnel holding a Chinese flag on the shoal, with the headline in huge fonts screaming: “China ships stay on shoal.”
Trillanes in his report wrote that his Beijing negotiators denied the news story, and pointed out that the photo was an old one from the 1980s. The senator himself had suspected so, as the photo had clear blue skies and calm waters as background, when in fact a typhoon was passing through the area at the time the photo was published.
Trillanes claimed that his contacts in the newspaper told him that the story and photo came from del Rosario.
According to subsequent reports, the Chinese ships, both their CMS vessels and the fishing boats, indeed, had left the shoal, although as Trillanes said in his report, the Chinese would not announce that this was due to negotiations with the Philippine government. The official explanation of the foreign ministry was that the ships escorted the fishing boats to the Chinese mainland to escape an impending typhoon that would pass over the shoal.
There was a second instance in which del Rosario planted, Trillanes alleged, a false news story in the Philippine Daily Inquirer that roused Philippine ire against China:
“On 24 June, the Philippine Daily Inquirer published a story about a Chinese vessel ramming a Filipino fishing boat. Again, P-Noy called me and he was furious about this incident. I told him that I would ask Beijing about it. When I confronted the negotiators, they told me that their ships [were] in place and that the incident happened in an area that was at least 150 nautical miles away.
“So I investigated further by sending somebody to talk to one of the survivors who was then confined in Ilocos Sur. The survivor said that they were already sinking while tied to a fish marker and that they were not rammed at all. I then asked around again in the Inquirer as to who fed the story. My sources then revealed that the story came from Sec. del Rosario.”
According to Trillanes’ Aide Memoire, the sequential withdrawal he had negotiated with the PRC was still proceeding in early July, despite Del Rosario’s multiple efforts to drive a stake in its heart.
The final confrontation came in a cabinet meeting in early July. The point at issue: whether to “internationalize” the Scarborough crisis by raising it as a matter for a joint statement at the upcoming ASEAN Regional Forum, or not. According to Trillanes, if the Philippines stuck to the bilateral process and didn’t make a fuss at ASEAN, the PRC would withdraw the last three ships it had in the shoal.
Per Tiglao’s account:
According to Trillanes, he recommended in an executive Cabinet meeting on July 5 that Aquino adopt a bilateral approach to resolving the territorial dispute with China, especially that over the Scarborough Shoal.
He explained that his bilateral talks with Chinese representatives had resulted in the drastic reduction of Chinese vessels from almost a hundred to only three.
Trillanes told Aquino that the Chinese made the commitment to pull out the remaining three CMS vessels if the Philippines does not internationalize it by raising the issue to the Asean Regional Forum scheduled for July 12. The Chinese, he said, also assured him that they would not put up any structure around the shoal.
Del Rosario, however, pushed for internationalizing the dispute. Trilllanes narrated:
“I clearly remember USec. Henry Bensurto with a PowerPoint presentation telling everybody in the meeting that the annexation of Scarborough Shoal by China would be used as a springboard to claim Western Luzon. Sec. del Rosario proceeded to present that China had almost 100 vessels in and around the shoal; that they placed a rope at the entrance of the shoal and the Chinese were duplicitous.”
(“USec Henry Bensurto” was not an undersecretary but a foreign affairs department assistant secretary heading its West Philippine Sea Center, and the Secretary-General of the Commission on Maritime and Ocean Affairs Secretariat.)
“The rope at the entrance of the shoal” del Rosario alleged is sheer nonsense, a source familiar with Scarborough shoal explained. The “rope” seen by Coast Guard personnel was a remnant of anchor ropes floating near the entrance of the shoal.
Trillanes report continued:
“It was at this point that Sen. Juan Ponce Enrile… raised the ante and proposed on the table that we study the option of completely cutting ties with China. Sec. del Rosario and Sec. Almendras followed suit and the discussion went on with NEDA detailing how many percentage points would be shaved off the GDP; DTI, explaining that the electronics exports sectors would be gravely affected; and DOLE, saying how many OFWs would be repatriated, etc.”
It would be interesting to find out why the cabinet thought the threat of a PRC invasion of western Luzon was real enough to risk entering an economic and diplomatic deep freeze with the PRC. In any case, at this point Trillanes’ name was definitely mud through some combination of his own mis-steps, machinations of his enemies and, I’m guessing, Aquino’s anxiety to avoid getting painted into the “unpatriotic China appeaser” corner the China hawks in the media and inside his administration had prepared for him. Del Rosario carried the day:
“In the end, when the vote came in, it was lopsided in favor of Sec. del Rosario’s option…” (to internationalize it).
Del Rosario took the issue to ASEAN in coordination with Vietnam and tried to insert an explicit reference to the Scarborough Shoal/SCS EEZ issues into the final communique. Cambodia resisted, at the PRC’s behest, and as a result of the deadlock no joint communique was issued for the first time in the 47 years of ASEAN’s history.
The leaked notes of the ASEAN deliberations found their way to Carleton Thayer, who prepared a lengthy analysis for Japan Focus that placed the onus on the PRC and Cambodia.
However, given what we know now of the Philippine cabinet’s decision to internationalize the dispute, however, it appears more likely that Del Rosario came to the ASEAN meeting knowing he wouldn’t compromise and it was just a matter of managing the endgame and the resultant fallout.
At the end of the meeting, Del Rosario engaged in a bridge-burning twofer, equating the PRC to Nazi Germany and uncooperative ASEAN nations to spineless Nazi appeasers.
Del Rosario argued that China’s actions challenged ASEAN centrality, leadership and solidarity. The Philippines, as the aggrieved party and one of the founding members of ASEAN, failed to understand the lack of concern by some other members and their “seeming silence” on their commitment to the principles of the DOC, he concluded. Del Rosario then asked rhetorically, “what would be the real value of the COC if we could not uphold the DOC; in Scarborough Shoal the DOC is violated?” He stated that it was “important that ASEAN [make a] collective commitment to uphold the DOC [and this] be reflected in the joint communiqué of the AMM.”
Finally, Del Rosario concluded his remarks by quoting from the German anti-Nazi theologian, Martin Neimöller:
First they came for the communists, and I didn’t speak out because I wasn’t a communist.
Then they came for the trade unionists, and I didn’t speak out because I wasn’t a trade unionist.
Then they came for the Jews, and I didn’t speak out because I wasn’t a Jew.
Then they came for me, and there was no one left to speak out for me.
You see where we’re headed here, thanks to Del Rosario’s determined efforts.
Bilateral with China blown up. Check.
ASEAN smeared and sidelined as a hopelessly divided, China-corrupted institution. Check.
Nowhere to go but international arbitration. Check.
The Philippine Department of Foreign Affairs applied an additional eggbeater to troubled waters with this post-ASEAN statement:
“On the reference to ‘duplicity and intimidation,’ the Philippines forged an agreement with a neighboring country for the simultaneous pullout of all vessels inside the shoal, which we undertook in good hfaith on June 4. Furthermore, the neighboring country agreed to remove its barrier at the entrance of the shoal.
“Yet to this day, the neighboring country has not fulfilled its obligations under the agreement and has maintained its ships inside and outside the shoal, as well as its barrier, in its aim to establish effective control and jurisdiction in the shoal and surrounding waters.”
In parsing the DFA statement, recall that 1) the PRC had agreed to a sequential, not simultaneous pullout and 2) according to Trillanes the “barrier” was a bogus reference to a piece of rope seen floating in the water at the mouth of the shoal. In other words, just another of many layer of public relations BS applied (and I suspect, still applied) to the Scarborough/SCS issues by the Department of Foreign Affairs.
It’s very hard to argue against the conclusion that Del Rosario wanted to take the case to international arbitration and foreclose the options of a Philippine-PRC bilateral or ASEAN-focused conciliation. Even if it involved a considerable amount of dirty work.
The only hanging question, in my opinion, is how much and how early the US pitched in on the dirty work.
When Enrile read the notes of Sonja Brady, the Philippine ambassador, concerning her recollection of her discussions with Trillanes in Beijing, it included this account of Trillanes’ observations:
When [Trillanes] got involved it was in the height of the problem; he had to find out what was happening so he tried to see whether this was a move of the Americans. He was suspecting the Americans as involved in the conflict…We are internationalizing the issue because of Secretary Del Rosario. This is his move…There was never any negotiations between the Chinese and the Americans, just a meeting with Kurt Campbell.
Trillanes seems to have regarded the internationalization gambit as the work of his arch-nemesis, Alberto Del Rosario. He also accused Del Rosario of treason, not because Del Rosario was working for the United States, but because Del Rosario had been abandoned by the United States and was recklessly playing a lone hand in favor of internationalization.
Maybe Trillanes believed this, or maybe he wanted to tout the superior legitimacy of his channel, informal but endorsed by the president of the Philippines, over that of the Secretary of Foreign Affairs.
Given the fortuitously misleading phone call from the US Embassy in June 2012, and the 2014 revelation of the purported motel breakthrough negotiated by Kurt Campbell with Mdme. Fu Ying, Del Rosario’s undermining of the Trillanes negotiation through multiple activities over a period of months…perhaps more was involved than the unassisted initiative of a decisive, turf-protecting pro-US millionaire at the Philippine Department of Foreign Affairs ready to defy his president in executing a personal China policy.
As I wrote at AT:
It is, of course, possible that Kurt Campbell innocently engaged in some great power diplomacy ignorant of the Trillanes channel and Del Rosario’s machinations, and the whole thing backfired, so sorry…but even so the US inadvertently harvested the benefits of the polarization of relations between the PRC and the Philippines when proponents of the US alliance were able to push through the “Enhanced Defense Cooperation Agreement” that signaled the de facto return of US military forces to Philippine bases 25 years after they were kicked out.
On the other hand, Del Rosario was an aggressive advocate for the American relationship, the key phone call that let him torpedo Trillanes’ sequential withdrawal arrangement came from the US ambassador, and I find it difficult to believe that the Philippine cabinet would agree to internationalize the dispute and provoke the PRC without pretty strong confidence that the USA had its back.
It would make sense for Del Rosario and the United States to downplay the US role in 2012 in order to strengthen Del Rosario’s hand as a principled, independent player at ASEAN, and then float the motel room tale in 2014 to paint the PRC’s actions on Scarborough Shoal as a breach of trust with the United States, now prepared to escalate its South China Sea game, as well as the Philippines.
And in 2016 high profile indignation is the order of the day, now that it may be necessary to finesse the blowback if Del Rosario’s pro-US initiative ends up with the PRC island building and permanently alienating the Scarborough Shoal from the Philippines.
I, for one, can visualize an episode of near-panic in the US State Department in 2012 when Del Rosario warns them that a bilateral agreement between the Philippines and the PRC—one that would undercut the entire US pivot narrative that only an internationalized US-led united front can bring security and stability to the SCS and East Asia—is looming. Time for bold, determined action, perhaps, like helping Del Rosario sabotage the sequential withdrawal by providing him a pretext to order the Philippines ships out of the shoal and then accuse the PRC of reneging on a vague deal purportedly negotiated in a motel in Virginia.
This tangled history might also explain why the Obama administration has been loath, at least until now, to make a huge deal out of Scarborough Shoal despite the vociferous complaints of the China hawks.
The question is what did Kurt Campbell know and when did he know it. I’m guessing: quite a bit and pretty early on.
(Reprinted from China Matters by permission of author or representative)
5 Myths About China’s Missile Deployment on Woody Island
The South China Sea issue is back in the headlines again, this time thanks to the reports from Western media that China has deployed a missile system on Woody (Yongxing) Island in the Paracels. The reaction from the United States has revealed a number of oddities and inconsistencies. Overall, there have been numerous claims, discords, critiques, and myths about the South China Sea. But this particular story has exposed at least five obvious confusions in the U.S. strategy and stance in this region.
First, a confusion of the Paracels (Xisha) and Spratlys (Nansha). In the past, the international community has mostly focused on disputes involving the Spratly Islands the South China Sea, with China, Vietnam, and the Philippines as the claimants receiving the most attention. Concerns over the so-called “militarization” of the South China Sea are usually raised with regards to the Spratlys. As a matter of fact, China has deployed limited defense measures in the Paracels for decades. Chinese defense capabilities on the Paracels have “nothing to do with militarization,” as China’s Foreign Ministry has clearly stated. Therefore, the missile deployment is not an intentional change to China’s defense posture. The United States seems to intentionally be confusing the Spratlys and the Paracels so as to better denounce China.
Second, a confusion of “right to self-defense” and “militarization.” Article 51 of the UN Charter entitles UN members to the “inherent right” to self-defense. For decades, China’s self-defense measures in the Paracels have not been regarded as a major issue, as currently pictured in the West. In fact, China’s defenses in the Paracels have not been openly brought up by highest officials of the U.S. and its close allies until recently. How could this alleged deployment, on an island that has hosted Chinese defense facilities for decades, suddenly turn into a reckless step by China to intensify militarization in this region? Apparently China is not allowed to deploy defense capabilities on its own territory while the United States can deploy 60 percent of its Navy and Air Force in the Asia-Pacific region; continuously send spy planes and battleships for close-in reconnaissance of China’s territory; and hold more and more frequent joint military drills in the region while selling large amount of military equipment. That’s an odd definition of “militarization.”
Third, a confusion of “intention” and “capability.” According to U.S. media, the missiles deployed on Woody Island have a range of 125 miles and pose “a threat to all forms of civilian and military aircraft.” This is another misunderstanding. First, China’s self-defense measures obviously do not necessarily pose a threat to major sea lanes and air passages in this region, unless some incidental “innocent passages” evolve into seriously provocative threats to China’s sovereignty. It is ridiculous to imagine China shooting missiles, unprovoked, at a civilian aircraft. Second, and more broadly, in this situation intention is just as important as capability. The United States maintains the most sophisticated weaponry system, defensive and offensive, ranging across the whole world, while it has constantly claimed to be a force for defending democracy, peace, and order. Why could not the same logic be applied to China? Simply put, capability does not directly pose a threat, but the “wrong” intentions do. As for China’s intentions, the country has put forward a three-point initiative to uphold peace and stability in the South China Sea. China is determined to firmly uphold both “peace and stability” and its sovereign rights, now and in the future.
Forth, a confusion of the standards of militarization. The Philippines and Vietnam both “militarized” the islands they occupy long ago, and the U.S. continues to lead joint military exercises and make military sales. In this context, why are China’s self-defense measures labelled as a direct military provocation? This is an obvious double-standard which the United States uses to try to monopolize international discourse. Such a stance seems to tell the world that it is only China’s behaviors in this region that automatically should be linked to militarization.
Fifth, confusion about the “freedom of navigation” in the South China Sea. U.S. officials constantly claim their right to protect “freedom of navigation” in the South China Sea. For the past decades, civilian and commercial freedom of navigation in the South China Sea has never been sabotaged by China’s military forces. Instead, it is the U.S. military “freedom of navigation” in the South China Sea that could be limited by China, if it is perceived as a threat to China’s sovereignty. Thus, it is quite convenient for the United States to blame China for this somewhat imaginary “threat” to “freedom of navigation” to gain international support for its military operations in the South China Sea.
These generalizations about the South China Sea issue and particularly the intentional simplification of China’s policies and behaviors may win the United States a certain amount of support in this region, but divergences and differences are emerging. For example, ASEAN leaders avoided criticizing China in the joint statement of the U.S.-ASEAN special leaders’ summit. This detail, and what it symbolizes about ASEAN’s stance, is probably of more lasting significance that the media outcry over alleged Chinese missile deployment in the South China Sea.
HISTORY: the Cham Empire which in antiquity covered much of present day Vietnam in the Tonkin region was created by a renegade Chinese governor around the year 192AD. The Cham language is Austronesian also coming from China.
The Austronesian’s also went to settle the Philippines… where the last men fighting for Philippine independence were the Chinese under Limahong. Some of the more fascinating battles of courage in the rivers and gulfs of that region with the Chinese fighting the Spaniards.
As well the initial battles of the Tonkin War outside of Hanoi by the Black Flag Army of China under Liu Yongfu were victorious (ie: Battle of Paper Bridge) humiliating the French, but were the beginning of the end of China’s control of that territory (China was fighting British, Germans, Portuguese, Americans, Russians and the Japanese at that time of the height of the Colonial Imperialistic era.
If people ever wonder why China has a strong single party ruling today … look to that era of Imperialism. As the Chinese lost primarily because of disunity of their forces. And the overwhelming military power the Colonial powers could bring to China… and enlistment of traitors to China.
In the 3rd century, the local government of the Jin Dynasties (China) exercised jurisdiction over the South China Sea islands by sending patrolling naval boats to the surrounding sea areas. (Nordquist & Moore 1998, page 155)
5th–13th centuries: Naval forces of the Song State of the Southern Dynasties (420-479 AD) patrolled the Paracel and Spratly islands. In the Tang dynasty (618-907 AD), the islands were placed under the administration and authority of the Qiongzhou Perfecture (now Hainan Province). Chinese administration of the South China Sea continued into the North and South Song dynasties (970-1279).
1883 – When the Spratlys and Paracels were surveyed by Germany in 1883, China issued protests.
1887 – The Convention Respecting the Delimitation of the Frontier Between China and Tonkin between France and the Qing Empire set the maritime boundary in the Gulf of Tonkin. The 1887 Chinese-Vietnamese Boundary convention signed between France and China after the Sino-French War said that China was the owner of the Spratly and Paracel islands.
1898 – The Philippine Islands were ceded by Spain to the United States in the Treaty of Paris following the Spanish–American War. The U.S. reminded the Philippines at its independence (1946) that the Spanish-American treaty of 1898 made it clear that the western limit of the Philippines islands did not include the Spratlys (South China Sea).
1956 – Vietnam (DRV) declares Paracel and Spratly Islands are historically Chinese territory.
1958 – The People’s Republic of China issued a declaration defining its territorial waters which encompassed the Spratly, Paracel Islands and other islands in the South China Sea. The prime minister of Vietnam (DRV), Pham Van Dong, sent a diplomatic note to Zhou Enlai, stating that “The Government of the Democratic Republic of Vietnam respects this decision.” The diplomatic note was written on September 14 and was publicized on Nhan Dan newspaper(Vietnam) on September 22, 1958.
Pham Van Dong:
Chairman of the Council of Ministers of Vietnam (SRV), in office, 2 July 1976 – 18 June 1987
Prime Minister of Vietnam (DRV), in office, 20 September 1955 – 2 July 1976
From the Chinese foreign Minister Wang Yi:
The fact is, according to the Treaty of Paris in 1898, the Treaty of Washington in 1900 and the Convention Between the United States and Great Britain of 1930 which defined the territory of the Philippines, the western boundary of the Philippines is delimited by 118 degrees east longitude. The Huangyan Island (Scarborough) and Nansha Islands (Spratly) are completely to the west of 118 degrees east longitude. They are not the Philippines’ territory. After the Philippines gained independence, the domestic law of the Philippines, and the relevant treaties concluded by the Philippines all accepted the legal force of the three treaties mentioned above, and confirmed the scope of its territory to be limited by 118 degrees east longitude. Nevertheless, after the 1970s, the Philippines (dictator Marcos) staged four military operations and illegally invaded and occupied eight islands and reefs of China’s Nansha Islands. This is what is at the bottom of the territorial dispute between China and the Philippines.
1968 – The Philippines (dictator Marcos) sent troops to three islands on the premise of protecting Kalayaan citizens, and announced the annexation of the Kalayaan island group (South China Sea).
China has repeated many times: the South China Sea archipelagos are China’s sovereignty, and the Permanent Court of Arbitration (PCA) does not have jurisdiction over the sovereignty issue. Specified in China’s UNCLOS ratification declarations, China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention.
Australia, Canada, France, Italy, Portugal, Republic of Korea, Russia, United Kingdom and many other countries do not accept any of the procedures provided for in Section 2 of Part XV of the Convention:
The Russian Federation declares that, in accordance with article 298 of the United Nations Convention on the Law of the Sea, it does not accept the procedures, provided for in section 2 of Part XV of the Convention
Joint Marine Seismic Undertaking (JMSU), began as a bilateral agreement between Beijing and Manila in 2004 to survey the seabed for hydrocarbon deposits in some disputed areas. Vietnam joined in 2005, as the area overlapped with its claims. The parties shared expenses and responsibilities equally and worked together. But in late 2007-2008, nationalists in the Philippines accused the government of secret, corrupt concessions that violated the constitution. When the pact expired in July 2008, Manila did not renew it. http://www.crisisgroup.org/en/regions/asia/north-east-asia/china/275-stirring-up-the-south-china-sea-iv-oil-in-troubled-waters.aspx
However, regional attitudes are changing, largely as a result of the bullish stance China has taken in recent years over territorial disputes. The nations of South-east Asia are increasingly reluctant to accept any threats to their sovereignty in the form of Beijing’s repeated incursions into their exclusive economic zones.
However, it should be noted that the US itself in its own policy papers has noted that these “disputes” are being intentionally provoked by Washington itself, often with ambassadors and envoys repeatedly finding themselves attempting to pressure nations across Southeast Asia to “join” the dispute. The goal of using Southeast Asia as a collective Western-dominated bloc to encircle and contain China with has been stated US policy since the release of the Pentagon Papers in 1971.
A relatively recent example of this can be seen when US Ambassador to Thailand Glyn Davies berated the Thai government for not “adding its voice” to calls for China to “peacefully resolve conflicts over its appropriation of islands in the South China Sea.” Similar messages and accompanying political and economic threats, have been delivered to other capitals across Southeast Asia.
Edens doesn’t seem to understand that what he is watching is a dispute created by Washington, and a confrontational reaction from across Southeast Asia extorted out of each respective nation by Washington.
Edens mentions the Philippines and their legal dispute with China brought before the Hague. He fails to mention that the legal team representing the Philippines is in fact headed by Washington-based law firm Foley Hoag and that their representative is in fact an American.
The New York Times would reveal this in their report, “In Victory for Philippines, Hague Court to Hear Dispute Over South China Sea,” as well as reveal one of the “incentives” likely being used to encourage the Philippines to continue participating in what is mainly Washington’s confrontation with Beijing:
The Philippines — represented by an American lawyer, Paul Reichler, of the Washington law firm Foley Hoag — contends that it has the right to exploit oil and gas in waters in a 200-nautical-mile exclusive economic zone extending from territory that it claims in the South China Sea.
Dangling the spoils of victory over the government in Manila – in this case, oil – along with less public threats over what will happen if Manila does not cooperate, is likely what has caused the Philippines to squander diplomatic currency with Beijing, money in unnecessary military expenditures, and both time and energy that could be better spent invested in its own future in Asia Pacific, rather than Washington’s. http://journal-neo.org/2016/02/04/beijing-vs-dc-the-battle-for-southeast-asia/
The idea that people can challenge people’s sense of history in the name of law is a politicization of law and the reason why the UNCLOS doesn’t have any provisions on historic title. (Imagine China and India dissing each other’s sense of history that underlies their territorial claims, and doing so in the name of law!) But China’s title is made more complicated in the sense that whatever sense of title it had, it sort of lost in the last 100-200 years of humiliation. The idea that China’s 9-dash line must be rigorously proven by solid history in a court of law or else be considered an appropriation from the world what are otherwise common heritage of mankind is also another idea that needs to be debunked. That presumption have no basis in law.mChina’s ocean frontier has mostly never been settled in the five centuries since the idea of maritime borders under international law was first articulated in 1609.
China’s primary motivation in recent South China Sea military activities, then, is to defend what it sees as its island territories which neighboring countries have attempted to usurp.
Regional order (the balance of economic and military power between Japan and China and between the mainland and Taiwan) has already been rewritten by China’s peaceful rise and any additional gains accruing from the control of its claimed small island territories in the South China Sea would be marginal. For China, the main game on its maritime frontier is successful unification with Taiwan, which sits at the northern end of the South China Sea. Though China has come to describe the dispute in the Spratly Islands (known as Nansha Islands in China) as a “core interest” because it involves sovereign territory, that is hardly new and is only a statement of the obvious. The more important characterization driving Chinese policy for decades has remained, as one Chinese government adviser observed in 1996, that the Spratly dispute is “small in scale and local in nature.”
Beginning in the mid-1800s, colonial powers such as the United Kingdom, the United States, Belgium, Italy, France, Germany, Portugal, Russia and Japan successively became involved in carving out spheres of influence or de facto sovereignty (“concessions” of some kind) over enclaves of Chinese land territory in such a way that the country, weak in naval power, didn’t place any priority on asserting or protecting a maritime frontier.
It wasn’t until an 1887 treaty with France delimiting a sea border with the French protectorate of Tonkin that China began to take any action to demarcate and defend an ocean frontier. That came just two years after China had been forced by Japan to cede the island of Taiwan and associated small islands to Japanese sovereignty. And it was only with the defeat of Japan in 1945 that China again was in a position to demarcate and defend its maritime frontier, including around Taiwan, free from foreign military threat, invasion or occupation.
The opportunity was short-lived because the country again fell into civil war, which resulted in an enduring stalemate about the country’s ocean frontier. In 1949, the Communist victory was incomplete. The rival government, the Republic of China (ROC) was able to establish itself on Taiwan and the mainland government was forced into a protracted and still unfinished series of island wars and political contests to mark out a maritime frontier.
Beginning with Canada in 1970, major Western powers still recognizing the ROC began to shift their diplomatic recognition from it to the People’s Republic of China (PRC). This has the inevitable effect under international law of preserving to a unitary China (led by the only recognized government) all territorial rights of the ROC prior to 1949. Of special significance, these include the ROC claim to the Spratly Islands (known as Nansha Islands in China), manifested in 1946 through physical occupation of the island of Taiping (Itu Aba). The ROC and the PRC maintain nearly identical territorial claims in the South China Sea.
China’s current claims on its ocean frontier comprise three main elements: claim to territorial sovereignty over Taiwan and other ROC-controlled islands, claim to territorial sovereignty over a large number of other small islands in the South China Sea (Paracel and Spratly islands known as Xisha and Nansha Islands in China) or East China Sea (Senkaku Islands), and claims to maritime resource jurisdictions (not sovereignty) that might flow to China if its claims to the land territories were recognized by adjacent states.
With the exception of the claim to the Senkaku Islands, the territorial claims of China haven’t changed since before 1949. It was the ROC that in 1970 first claimed the Senkaku Islands and the PRC was forced to follow suit since both governments were at that time competing to be seen as defending the sovereignty of “one China.”
The extent and character of China’s sovereignty claims aren’t unusual and in broad terms conform to the practice of other states with only one clear set of exceptions: China appears to claim sovereignty over submerged reefs that wouldn’t normally qualify as land territory.
It’s regularly asserted by some scholars, media commentators and other analysts that China claims sovereignty over almost the entire South China Sea. But that is based on a misunderstanding of the so-called nine-dashed line that China has repeatedly included in maps of the South China since 1947. In December 2014, in a study of China’s potential ocean frontier in the South China Sea, the U.S. Department of State observed correctly that China has never clarified the jurisdictional intent of the U-shaped line.
Thus, the current maritime territorial disputes predate the rise of China’s power and increase in its naval capability. Any assumption that China has somehow expanded its maritime claims because it now feels more powerful is not borne out by the facts. One of many things that have changed about the disputes is China’s willingness to act robustly, as most states would, to defend pre-existing sovereignty claims that have been in place for at least 66 years.
(The article is from http://nationalinterest.org/ . The author is Greg Austin
International treaties are funny things. The funny part is that they’re not like the laws that you and I must follow – whether we like them or not. That’s because international treaties are between sovereign states: the sovereigns are the law unto themselves. They only have to follow a law if they agree to and want to. No-one can compel them, as we saw when the International Court of Justice ruled in favor of Nicaragua and against the United States and awarded reparations to Nicaragua. The ICJ held that the U.S. had violated international law by supporting the Contras in their rebellion against the Nicaraguan government and by mining Nicaragua’s harbors. The United States refused to participate in the proceedings after the Court rejected its argument that the ICJ lacked jurisdiction to hear the case. The U.S. later blocked enforcement of the judgment by the United Nations Security Council and thereby prevented Nicaragua from obtaining compensation. When nations ratify international treaties, they have to make laws that activate or put into force the treaties. Treaties per se are not self-executing. The same is true with UNCLOS. Thus, when nations ratified the UNCLOS, almost all made some type of declarations or statements on their understanding of the UNCLOS and how they intend to execute it (see UNCLOS delcarations and statements upon ratification).
And the important thing is: both China and the Philippines firmly believed the UNCLOS in no way or shape could impinge each party’s respective sovereignty claims in the S. China Sea. Thus the Philippines stated: “Understanding made upon signature (10 December 1982) and confirmed upon ratification (8 May 1984) 8/ 9/
1. The signing of the Convention by the Government of the Republic of the Philippines shall not in any manner impair or prejudice the sovereign rights of the Republic of the Philippines under and arising from the Constitution of the Philippines.
2. Such signing shall not in any manner affect the sovereign rights of the Republic of the Philippines as successor of the United States of America, under and arising out of the Treaty of Paris between Spain and the United States of America of 10 December 1898, and the Treaty of Washington between the United States of America and Great Britain of 2 January 1930.
3. Such signing shall not diminish or in any manner affect the rights and obligations of the contracting parties under the Mutual Defence Treaty between the Philippines and the United States of America of 30 August 1951 and its related interpretative instruments; nor those under any other pertinent bilateral or multilateral treaty or agreement to which the Philippines is a party.
4. Such signing shall not in any manner impair or prejudice the sovereignty of the Republic of the Philippines over any territory over which it exercises sovereign authority, such as the Kalayaan Islands, and the waters appurtenant thereto.
5. The Convention shall not be construed as amending in any manner any pertinent laws and Presidential Decrees or Proclamation of the Republic of the Philippines; the Government of the Republic of the Philippines maintains and reserves the right and authority to make any amendments to such laws, decrees or proclamations pursuant to the provisions of the Philippines Constitution.
6. The provisions of the Convention on archipelagic passage through sea lanes do not nullify or impair the sovereignty of the Philippines as an archipelagic State over the sea lanes and do not deprive it of authority to enact legislation to protect its sovereignty, independence and security.
7. The concept of archipelagic waters is similar to the concept of internal waters under the Constitution of the Philippines, and removes straits connecting these waters with the economic zone or high sea from the rights of foreign vessels to transit passage for international navigation.
8. The agreement of the Republic of the Philippines to the submission for peaceful resolution, under any of the procedures provided in the Convention, of disputes under article 298 shall not be considered as a derogation of Philippines sovereignty”.
In other words, Philippines subscribes to the UNCLOS with the understanding that it does not impair Philippine claim to sovereignty in the South China Sea. Statement 8 seems almost like a full-blown reservation in the sense that even though Philippines submit to binding arbitrary process, it would do so only where it does not impinge on Philippines sovereignty!
China ratified the UNCLOS with this understanding: Upon ratification (7 June 1996)1/:
In accordance with the decision of the Standing Committee of the Eighth National People’s Congress of the People’s Republic of China at its nineteenth session, the President of the People’s Republic of China has hereby ratified the United Nations Convention on the Law of the Sea of 10 December 1982 and at the same time made the following statement:
1. In accordance with the provisions of the United Nations Convention on the Law of the Sea, the People’s Republic of China shall enjoy sovereign rights and jurisdiction over an exclusive economic zone of 200 nautical miles and the continental shelf.
2. The People’s Republic of China will effect, through consultations, the delimitation of the boundary of the maritime jurisdiction with the States with coasts opposite or adjacent to China respectively on the basis of international law and in accordance with the principle of equitability.
3. The People’s Republic of China reaffirms its sovereignty over all its archipelagos and islands as listed in article 2 of the Law of the People’s Republic of China on the territorial sea and the contiguous zone, which was promulgated on 25 February 1992.
4. The People’s Republic of China reaffirms that the provisions of the United Nations Convention on the Law of the Sea concerning innocent passage through the territorial sea shall not prejudice the right of a coastal State to request, in accordance with its laws and regulations, a foreign State to obtain advance approval from or give prior notification to the coastal State for the passage of its warships through the territorial sea of the coastal State.
Declaration made after ratification (25 August 2006)
Declaration under article 298:
The Government of the People’s Republic of China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention.
Thus China ratifies the UNCLOS with the understanding that the UNCLOS does not impinge upon its sovereign claims to all the islands and regions of South China Seas. Further China has, as provided explicitly under Article 298 of the UNCLOS, explicitly renounced its willingness to arbitration involving broad category of explicit cases.
Article 2 of the Law of the People’s Republic of China on the territorial sea and the contiguous zone claims under Chinese sovereignty all territorial land and seas where:
The PRC’s territorial sea refers to the waters adjacent to its territorial land.
The PRC’s territorial land includes the mainland and its offshore islands, Taiwan and the various affiliated islands including Diaoyu Island, Penghu Islands, Dongsha Islands, Xisha Islands, Nansha (Spratly) Islands and other islands that belong to the People’s Republic of China.
Given the above, it is quite funny that the Philippines has referred its dispute with China to the International Tribunal on the Law of the Sea. Legally, the disputes do not come under the UNCLOS – from either the Philippines or Chinese side. Philippines can’t make a long laundry list of statements that protect its stakes and yet want to have its cake too by trying to bind China in making similar laundry list of statements…
This is a political issue that deserves a diplomatic solution. China claims South China Seas based on history. It’s ironic to see today Philippines “hosting” French archeologists to study sunken Chinese ships in its alleged territorial waters. 2 I hope the Philippine side will understand the depth of Chinese claims and come to the table with a more sincere spirit, instead of playing legal games and trying to distract from the real work that needs to be done.
Hypocrisy of US FONOPS in the South China Sea. http://www.chinausfocus.com/peace-security/violation-of-international-law-in-the-name-of-international-law/
The U.S. says it is defending freedom of navigation; really it just wants to limit China’s power in the South China Sea. By Hu Bo
On Oct 27, the USS Lassen, a guided-missile destroyer, intruded within 12 nautical miles of Zhubi [Subi] Reef in China’s Nansha [Spratly] Islands in the name of conducting freedom-of-navigation operations. On November 3, Admiral Harry B Harris Jr., commander of the U.S. Pacific Command, said that the operations were not designed as a military threat, but aimed to protect the rights, freedoms, and lawful uses of the sea and airspace guaranteed to all nations under international law. And according to Harris and U.S. Defense Secretary Ashton Carter, the U.S. conducted the naval operation in the Nansha Islands because China’s sovereignty claims were not legitimate and China’s activities compromised freedom of navigation in the South China Sea.
The truth is, however, these two accusations are both unfounded and inconsistent with the long-standing U.S. policy on the South China Sea issue. On the one hand, the U.S. declares that it holds no position on the sovereignty issue in the South China Sea, but on the other, it openly challenges China’s sovereignty claims in the area. The mismatch of its words and deeds is a violation of the principle of estoppel in international law. The U.S. accuses China of endangering freedom of navigation in the South China Sea, but instead of providing evidence to prove its point, it only keeps clamoring that China’s island and reef construction in Nansha is “too quick, too much.”
The Lassen’s operations in Nansha constitute a grave violation of many principles of international law and norms that the United States has supported over the years, mainly in the following three aspects.
First, the U.S. act was an abuse of the rules on freedom of navigation. The U.S. intrusion within 12 nautical miles of China’s Nansha Islands was a typical act of “hazardous passage.” To avoid escalation of conflicts, China has remained restrained on the South China Sea disputes, refraining from publishing the base points and baselines of territorial sea of the Nansha Islands. But China is entitled to its territorial sovereignty and maritime rights and interests, whether the base points and baselines are published or not. Even if we endorse the U.S. claim that Zhubi Reef, as a low-tide elevation, does not enjoy the right of 12-nautical-mile territorial limits, Zhongye [Thitu] Island near Zhubi obviously does, and that island is also part of China’s territory.
The United States repeatedly drew an analogy between the U.S. intrusion in the waters close to the Nansha Islands and a Chinese naval vessel’s passage within 12 nautical miles of the Aleutian Islands in September, claiming that its activity was “innocent passage.” The fact is, under international law, the Tanaga Pass of the Aleutian Islands is open to international navigation, so “transit passage” rather than “innocent passage” applied to the Chinese warship. The 12 nautical miles of the Nansha Islands, on the other hand, are not part of international pathways. Why did the U.S. vessel choose to take this detour when the international waterway was wide enough for its passage? The U.S. act was obviously an abuse of the rules on freedom of navigation under international law.
Second, the U.S. show of force was a breach of its international obligations concerning no use or threat of force. Due to the complicated hydrological regime around the Nansha Islands and diversity of the naval strengths of different countries, China has all along been tolerant to vessels that mistakenly entered waters close to the Nansha Islands. The United States itself also recognizes that it once entered within 12 nautical miles of the Nansha Islands before 2012. But this time, the United States identified a 12-nautical-mile line before declaring its challenge. Its action was intended to negate China’s territorial sovereignty and maritime rights and interests over the islands and reefs in the area, and no doubt posed a blatant military threat to China.
It is natural that China and the United States have disputes when it comes to the rules of maritime navigation, but the differences should be resolved through negotiations and consultations. This is the normal international practice for dispute settlement. The U.S. use of force apparently ran counter to the principle of resolving international disputes by peaceful means and its obligations under international treaties, and constituted a gross infringement of the purposes and principles of the United Nations Charter and other international rules and norms.
Third, the U.S. act violated China’s territorial sovereignty and eroded the basic principles of international law. Sovereign states are main players in today’s international system, and respect for sovereignty is the basic principle of international law. Previously, the United States had repeatedly emphasized that it held no position on the sovereignty of the Nansha islands and reefs. But this time, by conducting the so-called freedom-of-navigation operations, the United States intended to negate China’s sovereignty and maritime interests over its long-garrisoned islands and reefs where extension projects were carried out recently. This was a direct provocation against China’s sovereignty. If countries were allowed to willfully challenge the sovereignty claims of other countries, wouldn’t the entire international system be pushed to the verge of collapse? The U.S. act was not only a violation of the principle of estoppel in international law, but also a grave challenge to the sovereignty principle of the international system.
In a nutshell, the United STATES was actually engaged in hegemony and power politics, a prevailing pursuit in the world in the 19th century, under the cloak of the 21st century endeavor of safeguarding freedom of navigation and international justice. This is sheer hypocrisy. The United States might as well make clear its real intention to the world that it does not want to see any increase of Chinese power in the South China Sea.
Hu Bo is a Research Fellow at the Institute of Ocean Research of Peking University. This article was originally published at China U.S. Focus.
The United States is not a claimant in the region, is not a member of ASEAN, and has not signed the UN Convention on the Law of the Sea (UNCLOS). As such, the U.S. has little to no legitimate standing to actually take actions to intervene or influence what goes on in the South China Sea, outside of the diplomatic arena, or in the global commons of international waters. According to the Wall Street Journal, an unnamed Defense Official stated that the Lassen’s patrol was not taken in accordance with the “innocent passage” clause of UNCLOS because that would imply that the U.S. recognized China’s sovereignty over the area. Thus, the only conclusion to draw from such action seems to be that the U.S. has made a determination that this area is not China’s, or any other nation’s, sovereign territory. However, deciding that there is no territorial claim to the area is, in fact, a position on sovereignty. This goes against stated U.S. policy to not take a position on claims in the region. Regardless of what we might believe about the status of this, or any other feature in the area, the PRC clearly feels they are entitled to a 12 nm zone. Washington’s unilateral decision to not recognize those claims is no better than Beijing’s unilateral decisions to claim these artificial structures as sovereign territory in the first place.
The last time China waged war on a foreign nation was 36 years ago. The next prior incident was 46 years ago. How many conflicts has the US fought in said time? Claiming that China is a force of evil while the US is a force for good is a blatantly anglocentric idea.
Taiping Island, or Itu Aba. The Republic of China, ROC, navy took over the island from the Japanese at the end of WW2 and has occupied the island ever since. All the other islands are within 200 nautical miles exclusive economic zone of Itu Aba. China’s claim is reasonable and China has shown willingness to negotiate.
There’s a question as to what constitutes innocent passage, which is allowed in a country’s territorial waters. The Chinese fleet sailing off the Aleutians was in transit from an exercise in the Arctic that it had conducted with the Russians.
“Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State.” The Chinese will argue that our warships are prejudicial to their good order and security.
The 1951 San Francisco Peace Treaty between Japan and the Allied Powers, states: “Japan renounces all right, title and claim to the Spratly Islands and to the Paracel Islands.” [Article 2(f)]. This renunciation of the two island groups, and of Taiwan itself, was confirmed in the U.S.-brokered 1952 peace treaty between Japan and the Taiwan-based Republic of China (ROC), then recognized by the United States and Japan as the sole legitimate government of China. — Greg Clark. http://www.japantimes.co.jp/opinion/2015/06/17/commentary/world-commentary/beijing-getting-bad-rap-south-china-sea-disputes/#.VYIMAWB3agi
China’s position on the Senkakus: http://news.xinhuanet.com/english/china/2012-09/10/c_123697340.htm
‘for a long time China — alongside Brunei — did not have an airstrip in the South China Sea. The Philippines have it, in Thitu island. Vietnam has it, plus a heliport, in Truong Sa. Malaysia has it, in Swallow Reef — and that hosts plenty of military aircraft. Taiwan has a military airport in Taiping.
Beijing may surely use the artificial islands to deploy aerial and naval hardware. But it’s not only China that is doing reclamation work. Vietnam is doing it in two atolls in the Spratlys. Washington for its part got access to eight Filipino bases — including the Carlito Cunanan naval base, in the heart of South China Sea action.’
South China Sea reclamation, images.
Summary of the Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines: http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1217149.shtml
Newly released images show Vietnam has carried out significant land reclamation at two sites in the disputed South China Sea, though the scale and pace is dwarfed by that of China, a U.S. research institute said.
In response, China condemned Vietnam’s actions, and said its work in the region was part of an obligation to the international community to improve navigation safety and contribute to science and research, including building observation platforms to monitor sea levels. Satellite images shared with Reuters by Washington’s Center for Strategic and International Studies (CSIS), show an expansion of the land area of Vietnamese-controlled Sand Cay and West London Reef in the Spratly archipelago and the addition of buildings. Mira Rapp-Hooper, director of CSIS’s Asia Maritime Transparency Initiative (amti.csis.org/), said the work included military installations and appeared to have started before China began a flurry of reclamation projects last year.
The photographs were taken by satellite imagery firm Digital Globe between 2010 and April 30 this year
“On one site, it has constructed a significant new area that was formerly under water and at another it has used land reclamation to add acreage to an existing island,” Rapp-Hoopersaid.
Vietnam’s government did not immediately respond to a request for comment, but routinely says it has sufficient legal and historical evidence to support its claims in the Spratlys.
Chinese Foreign Ministry spokeswoman Hua Chunying said Vietnam, the Philippines and other countries had been carrying out such reclamations for a long time on what she said were Chinese islands being illegally occupied.
“We demand that the relevant countries stop all their activities which infringe upon China’s sovereignty and rights,” she told a daily news briefing.
Hua added that China’s building work was partly to better fulfill its international obligations, including as part of a deal agreed at a UNESCO meeting in Paris in 1987. There, she said, China was entrusted to build five out of 200 sea level observation platforms, including on the Spratlys.
“The scale of China’s construction should be commensurate with its responsibilities and obligations as a major country,” Hua added.
The speed of recent Chinese reclamation work has alarmed its neighbors and the United States, which sees it as a potential threat to the status quo in a region through which $5 trillion of sea-borne trade passes each year.
China claims 90 percent of the potentially energy-rich South China Sea, with overlapping claims from Brunei, Malaysia, the Philippines, Vietnam and Taiwan.
New Vietnamese military facilities at Sand Cay appeared to include defensive positions and gun emplacements, and new buildings visible on West London Reef could also have military applications, Rapp-Hooper said.
“Strictly speaking, these photos show that China is right, “she said, “but we can safely say that the scope and scale of what China has undertaken is totally unprecedented and dwarfs Vietnam’s activities many times over.”
She said the images showed Vietnam had reclaimed about65,000 square meters (699,654 square feet) of land at West London Reef and 21,000 square meters (226,042 square feet) at Sand Cay. This compared to 900,000 square meters (9.6 million square feet) reclaimed by China at a single reef, Fiery Cross.
Rapp-Hooper said satellite images showed that since about March 2014, China had conducted reclamation work at seven site sin the Spratlys and was constructing a military-sized air strip on one artificial island and possibly a second on another.
She said Vietnam already had an airstrip on the Spratlys. The U.S. State Department said it had “consistently called on all claimants, including Vietnam, to avoid taking unilateral actions that raise tensions, such as large-scale land reclamation, in disputed areas.”
A department spokesperson said the pace and scale of China’s recent reclamation work far outstripped that of other claimants. The official said that before January 2014, China had only reclaimed about five hectares, but this had since soared to 2,000 acres (800 hectares), expanding the acreage on outposts it occupies by over four hundred times. Vietnam had reclaimed about 60 acres (24 hectares) since January 2009, the official said.
U.S. President Barack Obama last month accused China of” flexing its muscles” to advance its maritime claims and Washington has been helping countries in the region, including Vietnam, strengthen their defense capabilities. (Additional reporting by Manuel Mogato in Manila and Martin Petty in Hanoi; Editing by Warren Strobel, Stuart Grudgings, Dean Yates and Mike Collett-White)
Here’s China’s submission to the UN General Assembly regarding Vietnam’s claims on the Xisha (Paracel) Islands. Isn’t it strange that the Western Press has not published it?
“In 1959, the Chinese government established the Administration Office for the Xisha, Zhongsha and Nansha Islands. In January 1974, the Chinese military and people drove the invading army of the Saigon authority of South Vietnam from the Shanhu Island and Ganquan Island of the Xisha Islands and defended China’s territory and sovereignty. The Chinese government enacted the Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone in 1992 and published the base points and baselines of the territorial waters of the Xisha Islands in 1996, both of which reaffirm China’s sovereignty over the Xisha Islands and the extent of territorial waters of the islands. In 2012, the Chinese government established the various departments of Sansha city on the Yongxing Island of Xisha Islands.
During a meeting with charge d’affaires ad interim Li Zhimin of the Chinese Embassy in Vietnam on 15 June 1956, Vice Foreign Minister of the Democratic Republic of Vietnam Ung Van Khiem solemnly stated that, “according to Vietnamese data, the Xisha Islands and Nansha Islands are historically part of Chinese territory.”
Le Loc, Acting Director of the Asian Department of the Vietnamese Foreign Ministry, who was present, specifically cited Vietnamese data and pointed out that, “judging from history, these islands were already part of China at the time of the Song Dynasty.“ – China’s Foreign Ministry website, June 8, regarding the HYSY 981 drilling rig in the Xisha Islands.
“More importantly, Subi Reef, along with Mischief Reef, are two such features that are submerged at low-tide.” Incorrect: Mischief Reef has features above water at low-tide. https://en.wikipedia.org/wiki/List_of_maritime_features_in_the_Spratly_Islands
美济礁 Meiji Jiao
9°55′N 115°32′E – East of the centre of Dangerous Ground.
Some rocks above water at low tide. Has a large lagoon.
Occupation before land reclamation
In February 1995, PRC had built a wooden complex on stilts here, starting its formal occupation of the feature. In 1999, the Philippines protested over the expanded structures claiming that it is a military outpost and it poses danger to Philippine security and national defense, being 130 miles (209 km) from Palawan. PRC claimed it was a shelter for fishermen. By 2011, the “shelters” were equipped with satellite communications and radars, and the reef had four building complexes with 13 multi-storey buildings. Fifty Chinese Marines are permanently stationed there.
In March 2015, it was detected that the PRC had started land reclamation activities on the reef. By April 2015, the reclaimed area had rapidly grown to almost 2.5 km2, and further reclamation was on-going around the reef. By June 2015, the land reclamation had reached 5.58 km2 and appeared nearing completion.
Who Is the Biggest Aggressor in the South China Sea?
In 1996, Vietnam occupied 24 features in the Spratly Islands (source). At that time, according to the same source, China occupied nine. By 2015, according to the United States government, Vietnam occupied 48 features, and China occupied eight.
On May 13, U.S. Assistant Secretary of Defense, David Shear, said this to the Senate Foreign relations Committee: “Vietnam has 48 outposts; the Philippines, 8; China, 8; Malaysia, 5, and Taiwan, 1.”
In the past 20 years, according to the United States, China has not physically occupied additional features. By contrast, Vietnam has doubled its holdings, and much of that activity has occurred recently. The Vietnamese occupations appear to have increased from 30 to 48 in the last six years.
Shear also pointed out that as of his speech, China did not have an airfield as other claimants did. He said:
All of these same claimants have also engaged in construction activity of differing scope and degree. The types of outpost upgrades vary across claimants but broadly are comprised of land reclamation, building construction and extension, and defense emplacements. Between 2009 and 2014, Vietnam was the most active claimant in terms of both outpost upgrades and land reclamation, reclaiming approximately 60 acres. All territorial claimants, with the exception of China and Brunei, have also already built airstrips of varying sizes and functionality on disputed features in the Spratlys.
It appears China has now built an airfield and that this was already visible in April 2015, when the Daily Mailreported that “images showed a paved section of runway 505m by 53m on the northeastern side” of Fiery Cross Reef. Now media pundits are engaged in a debate about how many acres China has reclaimed, suggesting that China has been more aggressive than Vietnam because it has reclaimed more acres.
The statement by Shear in May puts additional critical light on the suggestion of some in the United States that China is not only making “preposterous” claims but is being the most aggressive actor in the territorial disputes (see: “Intelligence Check: Just How ‘Preposterous’ Are China’s South China Sea Activities?”). Shear specifically said that between 2009 and 2014, Vietnam had been the most active. This helps us understand what Chinese military leaders mean when they say China has shown “great restraint.”
The Operation of the HYSY 981 Drilling Rig: Vietnam’s Provocation and China’s Position
I. The operation of the HYSY 981 drilling rig
On 2 May 2014, a Chinese company’s HYSY 981 drilling rig started its drilling operation inside the contiguous zone of China’s Xisha Islands (see Annex 1/5 for the locations of operation) for the purpose of oil and gas exploration. With the first phase of the operation completed, the second phase began on 27 May. The two locations of operation are 17 nautical miles from both the Zhongjian Island of China’s Xisha Islands and the baseline of the territorial waters of Xisha Islands, yet approximately 133 to 156 nautical miles away from the coast of the Vietnamese mainland.
The Chinese company has been conducting explorations in the related waters for the past 10 years, including seismic operations and well site surveys. The drilling operation carried out by HYSY 981 this time is a continuation of the routine process of explorations, and falls well within China’s sovereignty and jurisdiction.
II. Vietnam’s provocation
Shortly after the Chinese operation started, Vietnam sent a large number of vessels, including armed vessels, to the site, illegally and forcefully disrupting the Chinese operation and ramming the Chinese government vessels on escort and security missions there. In the meantime, Vietnam also sent frogmen and other underwater agents to the area, and dropped large numbers of obstacles, including fishing nets and floating objects, in the waters. As of 5 pm on 7 June, there were as many as 63 Vietnamese vessels in the area at the peak, attempting to break through China’s cordon and ramming the Chinese government ships for a total of 1,416 times.
The above-mentioned actions of the Vietnamese side were serious infringements upon China’s sovereignty, sovereign rights and jurisdiction, grave threats to the safety of Chinese personnel and the HYSY 981 drilling rig, and gross violations of the relevant international laws, including the Charter of the United Nations, the 1982 UN Convention on the Law of the Sea (UNCLOS) and 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation and the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf. Such actions also undermined the freedom and safety of navigation in these waters, and damaged peace and stability in the region.
While illegally and forcefully disrupting the normal operation of the Chinese company on the sea, Vietnam also condoned anti-China demonstrations at home. In mid-May, thousands of lawless elements in Vietnam conducted beating, smashing, looting and arson against companies of China and several other countries. They brutally killed four Chinese nationals and injured over 300 others, and caused heavy property losses.
III. China’s response
The waters between China’s Xisha Islands and the coast of the Vietnamese mainland are yet to be delimited. The two sides have not yet conducted delimitation of the Exclusive Economic Zone (EEZ) and continental shelf in these waters. Both sides are entitled to claim EEZ and continental shelf in accordance with the UNCLOS. However, these waters will never become Vietnam’s EEZ and continental shelf no matter which principle is applied in the delimitation.
In the face of Vietnam’s provocative actions on the sea, China exercised great restraint and took necessary preventive measures. Chinese government ships were dispatched to the site for the purpose of ensuring the safety of the operation, which effectively safeguarded the order of production and operation on the sea and the safety of navigation. In the meantime, since 2 May, China has conducted over 30 communications with Vietnam at various levels, requesting the Vietnamese side to stop its illegal disruption. Regrettably, however, the illegal disruption of the Vietnamese side is still continuing.
IV. Xisha Islands are part of the Chinese territory
1. Xisha Islands are an inherent part of China’s territory, over which there is no dispute.
China was the first to discover, develop, exploit and exercise jurisdiction over the Xisha Islands. During the Northern Song Dynasty (960-1126 AD), the Chinese government already established jurisdiction over the Xisha Islands and sent naval forces to patrol the waters there. In 1909, Commander Li Zhun of the Guangdong naval force of the Qing Dynasty led a military inspection mission to the Xisha Islands and reasserted China’s sovereignty by hoisting the flag and firing a salvo on the Yongxing Island. In 1911, the government of the Republic of China announced its decision to put the Xisha Islands and their adjacent waters under the jurisdiction of Ya County of Hainan Island.
Japan invaded and occupied the Xisha Islands during the Second World War. After Japan’s surrender in 1945, in accordance with a series of international documents, the Chinese government sent senior officials boarding military vessels to the Xisha Islands in November 1946 to hold the ceremony for receiving the islands, and a stone tablet was erected to commemorate the handover and troops were stationed there afterwards. The Xisha Islands, which had once been illegally occupied by a foreign country, were thus returned to the jurisdiction of the Chinese government.
In 1959, the Chinese government established the Administration Office for the Xisha, Zhongsha and Nansha Islands. In January 1974, the Chinese military and people drove the invading army of the Saigon authority of South Vietnam from the Shanhu Island and Ganquan Island of the Xisha Islands and defended China’s territory and sovereignty. The Chinese government enacted the Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone in 1992 and published the base points and baselines of the territorial waters of the Xisha Islands in 1996, both of which reaffirm China’s sovereignty over the Xisha Islands and the extent of territorial waters of the islands. In 2012, the Chinese government established the various departments of Sansha city on the Yongxing Island of Xisha Islands.
2. Prior to 1974, none of the successive Vietnamese governments had ever challenged China’s sovereignty over the Xisha Islands. Vietnam had officially recognized the Xisha Islands as part of China’s territory since ancient times. This position was reflected in its government statements and notes as well as its newspapers, maps and textbooks.
During a meeting with chargé d’affaires ad interim Li Zhimin of the Chinese Embassy in Vietnam on 15 June 1956, Vice Foreign Minister of the Democratic Republic of Vietnam Ung Van Khiem solemnly stated that, “according to Vietnamese data, the Xisha Islands and Nansha Islands are historically part of Chinese territory.” Le Loc, Acting Director of the Asian Department of the Vietnamese Foreign Ministry, who was present, specifically cited Vietnamese data and pointed out that, “judging from history, these islands were already part of China at the time of the Song Dynasty.”
On 4 September 1958, the Chinese government issued a declaration (see Annex 2/5), stating that the breadth of the territorial waters of the People’s Republic of China shall be 12 nautical miles and making it clear that “this provision applies to all the territories of the People’s Republic of China, including … the Xisha Islands”. On 6 September, NHAN DAN, the official newspaper of the Central Committee of Vietnamese Workers’ Party, published on its front page the full text of the Chinese government’s declaration regarding China’s territorial sea. On 14 September, Premier Pham Van Dong of the government of Vietnam sent a diplomatic note (see Annex 3/5) to Premier Zhou Enlai of the State Council of China, solemnly stating that “the government of the Democratic Republic of Vietnam recognizes and supports the declaration of the government of the People’s Republic of China on its decision concerning China’s territorial sea made on September 4, 1958” and “the government of the Democratic Republic of Vietnam respects this decision”.
On 9 May 1965, the government of the Democratic Republic of Vietnam issued a statement with reference to the designation by the US government of the “combat zone” of the US armed forces in Vietnam. It says, “US President Lyndon Johnson designated the whole of Vietnam, and the adjacent waters which extend roughly 100 miles from the coast of Vietnam and part of the territorial waters of the People’s Republic of China in its Xisha Islands as ‘combat zone’ of the United States armed forces … in direct threat to the security of the Democratic Republic of Vietnam and its neighbors …”
The World Atlas printed in May 1972 by the Bureau of Survey and Cartography under the Office of the Premier of Vietnam designated the Xisha Islands by their Chinese names (see Annex 4/5). The geography textbook for ninth graders published by Vietnam’s Educational Press in 1974 carried in it a lesson entitled “The People’s Republic of China” (see Annex 5/5). It reads, “The chain of islands from the Nansha and Xisha Islands to Hainan Island, Taiwan Island, the Penghu Islands and the Zhoushan Islands … are shaped like a bow and constitute a Great Wall defending the China mainland.”
But now the Vietnamese government goes back on its word by making territorial claims over China’s Xisha Islands. That is a gross violation of the principles of international law, including the principle of estoppel, and the basic norms governing international relations.
V. Properly addressing the situation
China is a staunch force for maintaining peace and stability in the South China Sea and promoting cooperation between and development of countries in the region. China firmly upholds the purpose and principles of the Charter of the United Nations, the basic norms of international relations and fundamental principles of international law. The least China wants is any turbulence in its neighborhood.
China wants good relations with Vietnam, but there are principles that China cannot abandon. The channel of communication between China and Vietnam is open. China urges Vietnam to bear in mind the overall interests of the bilateral relations and peace and stability in the South China Sea, respect China’s sovereignty, sovereign rights and jurisdiction, immediately stop all forms of disruptions of the Chinese operation and withdraw all vessels and personnel from the site, so as to ease the tension and restore tranquility at sea as early as possible. China will continue its effort to communicate with Vietnam with a view to properly addressing the current situation.
Annex 3/5: The note sent on 14 September 1958 by Premier of the Government of the Democratic Republic of Vietnam Pham Van Dong to Premier Zhou Enlai of the State Council of the People’s Republic of China
Annex 4/5: Cover of the World Atlas printed in May 1972 by the Bureau of Survey and Cartography under the Office of the Premier of Vietnam, and the page on the Philippines, Malaysia, Indonesia and Singapore.
I’m not kidding about the “fort” part. The whole island is surrounded by concrete barriers, with machine gun and cannon dug outs, helipad, military dock, barracks, wind and solar generators.
Mean while, US claims that China has “reclaimed” more area than all the other nations combined? I frankly don’t know where they got the number from.
Well for one thing, I don’t count it as “reclaimed” if I just throw a pile of sand somewhere on the ocean, because well “sand” gets washed away by the tide.
Technically, you can’t count it as “reclaimed” until barriers are up to prevent tide erosion.
All China has right now, are just piles of sand, with very few structures on them.
That’s nowhere near the “Concrete fort” that Vietnam has built. (which also has a temple, a cemetary for the soldiers, and even vegetable patches).
Summary of Chinese government’s position paper on matter of jurisdiction in South China Sea arbitration initiated by Philippines
English.news.cn | 2014-12-07 09:09:12 | Editor: Mengjie
BEIJING, Dec. 7 (Xinhua) — The Chinese foreign ministry was authorized to release on Sunday the Position Paper of the Government of the People’ s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines.
The full text of the Position Paper is available on the website of the ministry, i.e.www.fmprc.gov.cn.
The following is a translated version of the summary of the Position Paper:
On 22 January 2013, the Department of Foreign Affairs of the Republic of the Philippines presented a note verbale to the Embassy of the People’ s Republic of China in the Philippines, stating that the Philippines initiated compulsory arbitration proceedings with respect to the dispute with China over “maritime jurisdiction” in the South China Sea. On 19 February 2013, the Chinese Government rejected and returned the Philippines’ note verbale together with the attached Notification and Statement of Claim. The Chinese Government has subsequently reiterated that it will neither accept nor participate in the arbitration thus initiated by the Philippines.
This Position Paper is intended to demonstrate that the arbitral tribunal established at the request of the Philippines for the present arbitration ( “Arbitral Tribunal” ) does not have jurisdiction over this case. No acceptance by China is signified in this Position Paper of the views or claims advanced by the Philippines. Nor shall this Position Paper be regarded as China’ s acceptance of or participation in this arbitration.
The essence of the subject-matter of the arbitration is the territorial sovereignty over several maritime features in the South China Sea, which does not concern the interpretation or application of the United Nations Convention on the Law of the Sea ( “Convention” ).
China has indisputable sovereignty over the South China Sea Islands (the Dongsha Islands, the Xisha Islands, the Zhongsha Islands and the Nansha Islands) and the adjacent waters. Since the 1970s, the Philippines has illegally occupied or laid claims to some maritime features of China in the South China Sea. In addition, the Philippines has also illegally explored and exploited the resources on those maritime features and in the adjacent maritime areas. The Philippines’ activities mentioned above have violated the Charter of the United Nations and international law, and seriously encroached upon China’ s territorial sovereignty and maritime rights and interests. The Chinese Government has always been firmly opposed to these actions of the Philippines, and consistently made solemn representations and protests to the Philippines.
The Philippines has summarized its claims for arbitration in three categories: First, China’ s assertion of the “historic rights” in the South China Sea is inconsistent with the Convention;Second, China’ s claim to entitlements, based on certain rocks, low-tide elevations and submerged features in the South China Sea, of 200 nautical miles and more, is inconsistent with the Convention. Third, China has unlawfully interfered with the Philippines’ enjoyment and exercise of its rights under the Convention.
With regard to the first category of claims, it is obvious that the core of those claims is that China’ s maritime claims in the South China Sea have exceeded the extend allowed under the Convention. However, it is a general principle of international law that sovereignty over land territory is the basis for the determination of maritime rights. Only after the extent of China’ s territorial sovereignty in the South China Sea is determined can a decision be made on the extent of China’ s maritime claims in the South China Sea. As to the second category of claims, China believes that the nature and maritime entitlements of certain maritime features in the South China Sea cannot be considered in isolation from the issue of sovereignty. Regarding the third category of claims, China maintains that, based on its sovereignty over relevant maritime features and the maritime rights derived therefrom, China’ s relevant activities in the South China Sea are both lawful and justified. The Philippines claims that China’ s actions have encroached upon areas under its jurisdiction. Before this claim can be decided upon, sovereignty over the relevant maritime features must be ascertained and maritime delimitation completed.
By requesting the Arbitral Tribunal to apply the Convention to determine the extent of China’ s maritime rights in the South China Sea, without first having ascertained sovereignty over the relevant maritime features, and by formulating a series of claims for arbitration to that effect, the Philippines contravenes the general principles of international law and international jurisprudence on the settlement of international maritime disputes. To decide upon any of the Philippines’ claims, the Arbitral Tribunal would inevitably have to determine, directly or indirectly, the issue of territorial sovereignty over both the maritime features in question and other maritime features in the South China Sea. Besides, such a decision would unavoidably produce, in practical terms, the effect of a maritime delimitation. The issue of territorial sovereignty falls beyond the purview of the Convention. China maintains that the Arbitral Tribunal manifestly has no jurisdiction over the present case.
There exists an agreement between China and the Philippines to settle their disputes in the South China Sea through negotiation, and the Philippines is debarred from unilaterally initiating compulsory arbitration.
With regard to disputes concerning territorial sovereignty and maritime rights, China has always maintained that they should be peacefully resolved through negotiation between the countries directly concerned. In the present case, there has been a long-standing agreement between China and the Philippines on resolving their disputes in the South China Sea through friendly consultation and negotiation.
A series of bilateral instruments between China and the Philippines make it clear that both sides agree or undertake to resolve their disputes in the South China Sea by friendly consultation and negotiation. And the Declaration on the Conduct of Parties in the South China Sea( “DOC” ), signed by both China and the Philippines, explicitly states that territorial and jurisdictional disputes shall be resolved peacefully by sovereign States directly concerned through friendly consultations and negotiations.
The relevant provisions in those bilateral instruments and the DOC are mutually reinforcing and form an agreement between China and the Philippines. On that basis, they have undertaken a mutual obligation to settle their relevant disputes through negotiations and have excluded any other means of settlement. In these circumstances, according to the provisions of Article 280, 281 and others of the Convention, the relevant disputes between the two States shall be resolved through negotiations and there shall be no recourse to arbitration or other compulsory procedures.
At present, in order to maintain stability in the region and create conditions for peaceful resolution of the disputes in the South China Sea, China and the ASEAN member States have established working mechanisms to effectively implement the DOC, and have been engaged in consultations regarding the “Code of Conduct in the South China Sea” . By initiating compulsory arbitration at this moment, the Philippines is running counter to the common wish and joint efforts of China and the ASEAN member States. Its underlying goal is not, as the Philippines has proclaimed, to seek peaceful settlement of the South China Sea issue, but rather, by resorting to arbitration, to put political pressure on China, so as to deny China’ s lawful rights in the South China Sea through the so-called “interpretation or application” of the Convention, and to pursue a resolution of the South China Sea issue on its own terms. This is certainly unacceptable to China.
Even assuming, arguendo, that the subject-matter of the arbitration were concerned with the interpretation or application of the Convention, the subject-matter would still be an integral part of maritime delimitation and, having been excluded by the 2006 Declaration filed by China from the compulsory dispute settlement procedures, could not be submitted for arbitration.
On 25 August 2006, China deposited, pursuant to Article 298 of the Convention, with Secretary-General of the United Nations a declaration stating that the Government of the People’ s Republic of China does not accept any of the compulsory settlement procedures provided for in the Convention with respect to disputes concerning maritime delimitation, among others.
Maritime delimitation is an integral, systematic process. The international law applicable to maritime delimitation includes both the Convention and general international law. Maritime delimitation involves a consideration of not only entitlements, effect of maritime features, and principles and methods of delimitation, but also all relevant factors that must be taken into account, in order to attain an equitable solution.
The subject-matter of the arbitration initiated by the Philippines constitutes an integral part of maritime delimitation between China and the Philippines, and, as such, can only be considered under the overarching framework of maritime delimitation between China and the Philippines, and in conjunction with all the relevant rights and interests the parties concerned enjoy in accordance with the convention, general international law, and historical or long-standing practice in the region for overall consideration.
Ostensibly, the Philippines is not seeking from the Arbitral Tribunal a ruling regarding maritime delimitation, but instead a decision, inter alia, that certain maritime features are part of the Philippines’ EEZ and continental shelf, and that China has unlawfully interfered with the enjoyment and exercise by the Philippines of sovereign rights in its EEZ and continental shelf. The Philippines’ claims have in effect covered the main aspects and steps in maritime delimitation. Should the Arbitral Tribunal address substantively the Philippines’ claims, it would amount to a de facto maritime delimitation.
The exclusionary declarations filed by the States Parties to the Convention under Article 298 of the Convention must be respected. By initiating the present compulsory arbitration as an attempt to circumvent China’ s 2006 declaration, the Philippines is abusing the dispute settlement procedures under the Convention.
China’ s right to freely choose the means of dispute settlement must be fully respected, and its rejection of and non-participation in the present arbitration is solidly grounded in international law.
Under international law, every State is free to choose the means of dispute settlement. In exercise of its power to decide on its jurisdiction, any judicial or arbitral body should respect the right of the States Parties to the Convention to freely choose the means of settlement.
While being fully aware that its claims essentially deal with territorial sovereignty, that China has never accepted the compulsory procedures in respect of those disputes, and that there has been an agreement existing between the two States to settle their relevant disputes by negotiation, the Philippines has nevertheless initiated, by unilateral action, compulsory procedures of arbitration. This surely contravenes the relevant provisions of the Convention, and undermines the peaceful process for the settlement of the disputes. (In view of what is stated above and in light of the manifest lack of jurisdiction on the part of the Arbitral Tribunal, the Chinese Government has decided not to accept or participate in the present arbitration, in order to preserve China’ s sovereign right to choose the means of peaceful settlement of its own free will and the effectiveness of its 2006 declaration, and to maintain the authority and solemnity of the international legal regime for the oceans.
The issue of the South China Sea involves a number of States, and is compounded by complex historical background and sensitive political factors. Its final resolution demands patience and political wisdom from all parties concerned. China always maintains that the parties concerned shall seek proper ways and means of settlement through consultation and negotiation on the basis of respect for history and international law. Pending its final settlement, all parties concerned should engage in dialogue and cooperation to preserve peace and stability of the South China Sea, enhance mutual trust, clear up doubts, and create conditions for the eventual resolution of the issue.
The unilateral initiation of the present arbitration by the Philippines will not change the history and fact of China’ s sovereignty over the South China Sea Islands and the adjacent waters; nor will it shake China’ s resolve and determination to safeguard its sovereignty and relevant maritime rights and interests; nor will it affect China’ s policy and position of resolving the disputes in the South China Sea by direct negotiation and working together with other States in the region to maintain peace and stability in the South China Sea.http://www.wantchinatimes.com/news-subclass-cnt.aspx?id=20150102000025&cid=1101&MainCatID=0
Chinese Society of the Law of the Sea issues statement on South China Sea arbitration initiated by the Philippines
BEIJING, June 2 (Xinhua) — The Chinese Society of the Law of the Sea has issued a statement on the South China Sea arbitration initiated by the Philippines. Following is the English version of the statement:
Chinese Society of the Law of the Sea
Statement on the South China Sea Arbitration
Unilaterally Initiated by the Republic of the Philippines
On January 22, 2013, the Philippines initiated the compulsory arbitration procedures by invoking the provisions of Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS). On October 29, 2015, the Arbitral Tribunal rendered an award on jurisdiction and admissibility and stated that it had jurisdiction over seven of the Philippines’ submissions and reserved consideration of its jurisdiction over the remaining eight submissions to the merits phase. As a national academic organization in the law of the sea field, the Chinese Society of the Law of the Sea has been deeply shocked by the Arbitral Tribunal’s acts of pushing forward the arbitration and making the award, and is concerned about the negative impact that the award may have on the international maritime rule of law. In this context, we are duty-bound to make the following statement to set the record straight.
1. The Arbitral Tribunal disregarded basic facts and lopsidedly accepted the Philippines’ evidence.
Disregarding the historical background that the Philippines had violated China’s territorial sovereignty and consequently caused other maritime disputes between China and the Philippines, the Arbitral Tribunal erroneously ruled that the Philippines’ submissions did not fall within the scope of sovereignty dispute. Ignoring the basic fact that China has always treated the Nansha Islands as a whole when claiming sovereignty and maritime rights over it, the Arbitral Tribunal obstinately ruled on the legal status and maritime rights of individual islands and reefs selected by the Philippines. Turning a blind eye to the Philippines’ breach of the agreement reached by China and the Philippines to settle maritime disputes through negotiation, the Arbitral Tribunal expanded its power and scope on jurisdiction. Without conducting due investigation and verification, the Arbitral Tribunal accepted the one-sided statements and evidence of the Philippines, which led to substantive errors in its determination of facts. Any final award made on this basis will be neither convincing nor impartial or valid.
2. The Arbitral Tribunal obviously erred in its interpretation and application of law, which erodes the authority and integrity of UNCLOS.
Firstly, the Philippines’ submissions are in essence about territorial sovereignty, and by acting beyond the scope of its jurisdiction, the Arbitral Tribunal violates international law. Determining the territorial sovereignty over Huangyan Dao and some islands and reefs of the Nansha Islands is the foundation and prerequisite for dealing with the Philippines’ submissions. This not only reflects the principle of “land dominates the sea” but also conforms to provisions of UNCLOS on maritime rights. When isolated from state sovereignty, islands and reefs themselves shall have no maritime rights. The Philippines’ submissions are either premised on territorial sovereignty or may have major effects on territorial sovereignty. They are essentially disputes over territorial sovereignty, which are neither regulated by UNCLOS nor applicable to its compulsory arbitration procedures. The Arbitral Tribunal therefore has no jurisdiction over the case.
Secondly, the Philippines’ submissions concern matters excluded by China’s 2006 optional exceptions declaration, and the Arbitral Tribunal has no right to deal with them. The matters that China excluded from the compulsory procedures pursuant to Article 298 of UNCLOS include “disputes related to maritime delimitation”. This includes not only the final delimitation of maritime boundaries but also various factors that should be considered in boundary delimitation process, such as the legal status and maritime rights of relevant islands and reefs. But the Arbitral Tribunal misinterpreted “disputes related to maritime delimitation” as “disputes of maritime delimitation itself”, which greatly narrows the range of excluded matters and runs counter to the meaning of Article 298 of UNCLOS. Such acts, circumventing China’s optional exceptions declaration by means of changing the concepts, go against the real purpose of the UNCLOS compulsory dispute settlement procedures, harm the integrity and stability of the dispute settlement mechanism established by UNCLOS, and will have a huge negative impact on the international maritime law order based on UNCLOS.
3. The Arbitral Tribunal deprived the parties to the disputes of their right to settle the disputes over maritime delimitation through agreement.
Given the fact that China and the Philippines have opposite coasts, the distance between which is less than 400 nautical miles, an overlap exists between their 200 nautical mile exclusive economic zones and continental shelves. Besides, their potential rights to claim continental shelf beyond 200 nautical miles also overlap. All this makes maritime delimitation necessary. Articles 15, 74 and 83 of UNCLOS concerning maritime delimitation all stress that the parties to a dispute over boundary delimitation should first settle the dispute by agreement, and grant them the right to negotiate for the final settlement of the dispute at their own will; only when the parties cannot settle the dispute themselves and have not excluded third-party mechanisms can they resort to the compulsory dispute settlement procedures.
Maritime delimitation is a systematic project, and it is an intrinsic, integral part of maritime delimitation to determine the legal status and maritime rights of relevant islands and reefs. This is a general practice in international law and has been acknowledged by authoritative scholars of international law and even by an arbitrator of this case. Arbitrator Alfred H. A. Soons expressed his opinion publicly twice on the relationship between the status and maritime rights of islands and reefs and maritime delimitation, noting that when two countries have overlapping waters, issues about the legal status and maritime rights of islands and reefs cannot be separated from the maritime delimitation dispute between the two countries, and they form an integral part of maritime delimitation. The Arbitral Tribunal, in disregard of China’s optional exceptions declaration, insisted on handling – before possible negotiations between China and the Philippines – the issue of legal status of the relevant islands and reefs involved in maritime delimitation between the two countries. This was a direct intervention in settlement of the maritime delimitation dispute between China and the Philippines and actually deprived them of the right to negotiate and reach agreement.
To sum up, the Arbitral Tribunal’s award on jurisdiction and admissibility is obviously flawed and hence has no legal effect. In determining the facts, the Arbitral Tribunal failed to fully fulfill its obligation of careful investigation of facts; in interpretation and application of law, it deliberately cut apart the intrinsic relationship between maritime rights of islands and reefs and the matter of territorial sovereignty and maritime delimitation, overstepped its authority to handle matters that are in essence about territorial sovereignty over islands and reefs and about maritime delimitation, maliciously got around China’s optional exceptions declaration, and willfully expanded its scope of jurisdiction. The Arbitral Tribunal’s behavior, reckless and arbitrary, has eroded the integrity and authority of UNCLOS rather than settling a dispute over its interpretation and application. This is detrimental to the stability and development of the international maritime law order, and even worse, would open a door for abuse of litigation and trigger more disputes. The Chinese Society of the Law of the Sea stands firmly in support of the Chinese government’s position of neither accepting nor recognizing the above-mentioned unjust and unreasonable award that violates international law, and in defense of the sovereignty, territorial integrity and maritime rights of China. http://news.xinhuanet.com/english/2016-06/02/c_135406851.htm
The Yinhe incident
(Chinese: 银河号事件) was a claim made in 1993 by the United States government alleging that the China-based regular container ship Yinhe (银河, “Milky Way”) was carrying materials for chemical weapons to Iran. The United States Navy forced the Yinhe to stop in the international waters of the Indian Ocean for three weeks. The Chinese government subsequently agreed to have the ship searched in Saudi Arabia by a joint Saudi-U.S. team. The final inspection report, signed by U.S. government representatives, concluded that “the complete inspection of all the containers aboard the Yinhe showed conclusively [that the chemicals] were not among the ship’s cargo”. Even though the Chinese were proven innocent, the U.S. government refused to apologize “because the United States had acted in good faith on intelligence from a number of sources, all of which proved to be wrong.”
The Yinhe was a Chinese regular container ship that ran on a fixed schedule between Tianjin Xinggang and Kuwait. Its scheduled port visits included Shanghai, Hong Kong, Singapore, Jakarta, Dubai and Daman and Diu. It belonged to the China Ocean Shipping Corp. (Chinese: 中远集团) company, and had maintained a perfect on-time schedule before the incident.
In late July 1993, the United States alleged that a Chinese ship was carrying chemical weapon materials to Abbas Harbor, Iran, citing unspecified intelligence provided by the CIA. At this time, the Yinhe had already departed China and was on its way to Kuwait. U.S. officials later claimed that secret diplomatic efforts were made from this point on.
On August 9, 1993, China disclosed to the media that the U.S. Navy was harassing the Yinhe in international waters, and declared officially that the ship did not carry any chemical weapons materials. The U.S. government dismissed the declaration and threatened to search the ship immediately.
On August 15, 1993, after 3 weeks at sea, the ship was allowed to “take on fuel and water … to ensure the safety of the vessel and crew” upon request from the shipping company.
On August 28, 1993, U.S. and China agreed to an open inspection of the ship at a Saudi Arabian port, by a Saudi-United States joint team.
The intelligence itself, as later revealed, concluded that it was impossible to positively determine that the Chinese ship was carrying chemical weapons materials. Although the inspection team was claimed to be mostly Saudi Arabian, it was reported that the personnel were mostly from the United States Navy, with test equipment flown directly from the United States. The information provided by the CIA specified container numbers CSAQ3101 and CSAQ3102, but there was no such container number. The container with the most similar number, CSAQ3010, was opened first, and it turned out to be poker cards being exported to Pakistan.
All 628 containers on board were inspected by U.S. technicians. The U.S. intelligence specified thiodiglycol and thionyl chloride as the chemical weapon materials. In the end, these were not found at all, and the only chemical material carried by the ship was ordinary solid paint.
On September 4, the inspection report proved that the accusations were baseless. According to a TV interview with Chinese representative Sha Zukang, the initial report draft simply concluded that “thiodiglyol and thionyl chloride were not found after inspection” (translated from Chinese, not verbatim).
When the accusations were reported in China, Chinese nationalism increased in response. The Chinese government attempted to downplay the issue by claiming that the accusation was not the official stand of the American government and did not represent the majority opinion in the United States. A U.S. House report in 2001 concluded that the Yinhe incident “has been repeatedly cited as a case of international bullying by the United States”.
Although many American diplomats and the CIA openly admitted that the incident was a mistake, then-Deputy Assistant Secretary of State Robert Einhorn testified before Congress in 1997 that “our initial information was correct, that the goods were intended to be on board that ship … we think our intelligence community had done a good job in that case”.
^ “No chemical arms aboard China ship”, New York Times, September 6, 1993.
^ “China Says U.S. Is Harassing Ship Suspected of Taking Arms to Iran”, New York Times, August 9, 1993.
^ “China Says Cargo Ship Will Anchor Off Oman”, New York Times, August 15, 1993.
^ “Saudis Board a Chinese Ship In Search for Chemical Arms”, New York Times, August 28, 1993.
^ 《突发事件目击记》 (“Witnessing the breaking incidents”), Hao-qing Lu, Xin Hua Publishing, 2005. (In Chinese)
^ U.S. House report, page 49. Testimony by Robert Einhorn before the Senate Governmental Affairs Committee, Regarding weapons proliferation in China, April 10, 1997.
UK archives reveal informal Japan-China consensus on Diaoyutai
China on Friday said the Declaration on the Conduct of Parties in the South China Sea (DOC) is not a tool for the Philippines to whitewash its wrongdoings, urging the Philippines to stop what it considers to be unfounded accusations and the hyping of China’s construction work.
“The Philippines’ willful abuse and distortion of the DOC is in itself a breach and damage to the DOC,” Foreign Ministry spokesperson Hua Chunying said on Friday when asked to comment on the Philippine officials’ criticism of China’s construction on some maritime features of the Spratley islands.
They also said what the Philippines has done on some occupied islands and reefs are just minor “repairs and maintenance” allowed under the DOC and that the Philippines built the airstrip on Thitu island before the signing of the DOC in 2002.
“Illegal construction is illegal construction. Its illegal nature will not change no matter how it is covered up,” Hua said.
She said a legal principle states that “Ex injuria jus non oritur” (Law does not arise from injustice).
Hua said that just like its construction work on all the islands and reefs it occupies, the so-called “repairs and maintenance” by the Philippines, whether massive or minor, old or new, are illegal and invalid, as they are considered by China to have been taken from then by the Philipinnes in the 1970s.
“The Philippines keeps vowing that its actions are totally in line with the DOC. Is that true?” Hua asked.
“As long as we take a close look at the DOC, we will see that the Declaration focuses on efforts to safeguard peace and stability in the South China Sea, keep the situation in check, and enhance practical cooperation on the sea,” Hua said.
Peace, amity and cooperation is the quintessence of the DOC, which reflects the political desire and wisdom of ASEAN countries as well as China to keep the situation stable and promote friendly and mutually beneficial cooperation, she said.
Hua stated that the DOC has no direct bearing on issues concerning the sovereignty of maritime features, nor does it empower the Philippines to encroach upon the Spratley islands, which China feels it controls in full, but is actually contested by many countries in the region.
She continued by saying that there is not a single item in the DOC that can justify the Philippines’ action of illegally taking away the islands and reefs before 2002, or back up the Philippines’ illegal expansion and construction on the relevant maritime features.
Hua said the Chinese side has repeatedly stated its position on China’s construction work on some of its garrisoned maritime features of the Spratly islands.
Hua then felt the need to underline a few points.
She claimed that China’s sovereignty over the Spratlys and their adjacent waters is fully supported by historical and jurisprudential evidence.
She then claimed that according to a series of international treaties defining the boundary of the Philippines, the Spratlys have never been part of the Philippines, and the later alleged that since the 1970s, the Philippines has illegally seized by force one after another maritime features of the Spratlys in disregard of the UN Charter and the basic norms governing international relations.
Hua said then that this is the cause of relevant disputes between China and the Philippines over the South China Sea.
As for China’s construction on some maritime features of the Spratlys, Hua said one reason for the construction was to better fulfill China’s international responsibility and obligation in maritime search and rescue, navigation safety, ocean science and research, etc.
Hua cited an example in February 1987, when the 14th Session of the Assembly of the Intergovernmental Oceanographic Commission (IOC) of UNESCO adopted a global sea level observing plan, entrusting China with the building of five out of the 200 ocean observation stations across the world, including those on the Spratlys.
As for the scale of construction, she said that since China is now a major country, it needed to assume due international responsibility and obligation. The scale of its construction work should thus be commensurate with its responsibilities and obligations, she said.
The DOC requires the full and effective observation of all signatories, and peace and stability would not be possible without the joint efforts of all parties concerned, she said.
“We urge the Philippine side to respect China’s territorial sovereignty, reflect upon its own actions, stop the unfounded accusation and hyping of China’s construction work, and meet China halfway to jointly uphold peace and stability of the region,” she said.
The Spratly islands are claimed partially or in full by China, Taiwan, Vietnam, the Philippines, Malaysia and Brunei.
The idea that the US may send military aircraft and ships to assert freedom of navigation around Chinese claimed islands in the South China Sea is seriously bad. It’s bad because it would involve an unreasonably assertive interpretation of the international law of the sea, and because it shows such little regard for the impact of such action on regional stability.
There are three main implications of the US proposal that concern the law of the sea. The first is the status of China’s claims to the disputed islands. A recent authoritative report*** http://www.cna.org/sites/default/files/research/IOP-2014-U-009109.pdf
from the Center for Naval Analyses in Washington concluded that while Vietnam may have a better claim to both the Spratlys and the Paracels, ‘[a]t the same time, U.S. policymakers cannot lose sight of the fact that China’s claims may be superior’, and that ‘[t]he absence of an unambiguous legal case in any of these disputes reinforces the wisdom of the U.S. policy of not taking a position regarding which country’s sovereignty claim is superior.’ The action now being contemplated can only be seen as an indication that in fact the US has taken a position on the sovereignty claims.
The second issue is the oft-stated line from Washington that China threatens the freedom of navigation in the South China Sea. But what freedoms of navigation are being threatened? China has always said that with freedoms of navigation and overflight, it only disputes the right of the US to conduct military activities, particularly certain types of intelligence collection and military data gathering (so-called ‘military surveys’) in its exclusive economic zone (EEZ). China’s disputation of the right of the US to undertake these activities isn’t without merit, particularly when the military surveys constitute marine scientific research which is under the jurisdiction of the coastal State in its EEZ. Also, it’s significant that several other regional countries, India, Malaysia and Thailand, share China’s position on military activities in the EEZ.
Washington then aggravates the situation by referring to the waters of the South China Sea as ‘international waters’, ignoring the reality that these waters are actually the EEZs of the bordering countries, including China. It also ignores the fact that the high seas freedoms of navigation and overflight available to other countries in these waters shall be exercised with what UNCLOS calls ‘due regard’ to the rights and duties of the relevant coastal State. The freedoms of navigation being claimed by the US in the South China Sea aren’t absolute and have to be exercised with ‘due regard’ to the rights of coastal States. For the US now to be claiming them appears as though it’s ignoring the sui generis nature of the EEZ established by UNCLOS.
The last law of the sea issue arises from reports that the options being considered in Washington include sending aircraft and ships within 12 nautical miles of the reefs and islands occupied by China. This would be an exercise of the right of innocent passage available through the territorial sea. Even though the features may not be full ‘islands’ under UNCLOS, they have a territorial sea. Sending ships and aircraft into such waters specifically for demonstrating a right wouldn’t be a legitimate exercise of innocent passage. UNCLOS makes clear that innocent passage should be ‘continuous and expeditious’, and shouldn’t involve ‘any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State.’
For all these reasons, the action contemplated by the US looks like a dangerously unilateral assertion of rights by Washington. What’s even more worrying is that the US, as a non-party to UNCLOS, may be ignoring some of the convention’s carefully balanced outcomes between the rights of coastal States and those of major maritime powers.
In even contemplating such an assertion of rights in the South China Sea, it appears the US has given little consideration to the impact on regional stability. Provoking China in such an aggressive and unnecessary manner can only make the current situation worse. One wonders whether the US knows what it’s doing in the South China Sea. Is it propping up its treaty partner, the Philippines, or is it asserting its own interests vis-à-vis those of China? Does it know its own limitations when it comes to following through on it its actions? Is it thinking of the consequences? Does it have any idea of an endgame in the South China Sea? These are all vexed questions the answers to which are far from clear.
What does all this mean for Australia? Basically, it means we should keep well clear of what the US is contemplating, including joining Washington in these protests against China.
Hu asked Noda (not Abe) not to purchase three of the islands in Sept 2009 on the sidelines of the APEC meeting in Vladivostok. – Taylor Fravel
The reality on the ground for U.S. policy-makers:
China has control of all the land features in the South China Sea north of 12 degrees north latitude—essentially the northern portion of the South China Sea.
It has controlled the Paracel Islands since 1974, and, despite Vietnam’s claim, is unlikely to ever leave.
China effectively resolved the dispute with the Philippines over Scarborough Shoal in 2012 when it established control over the shoal. Again, it is unlikely to relinquish it.
This means that the Spratly Islands are the only remaining features that are not completely under the physical control of Beijing (or of greater China).
This situation suggests that U.S. policy options, aimed at a peaceful rules-based outcome, need to focus on the Spratlys, which, unfortunately for those who must craft and execute policy, are the most complex and legally arcane area of the South China Sea.
…This project commissioned three separate legal analyses of the claims made to land features in the SCS. A review of these documents makes clear that in the unlikely event these sovereignty claims are taken to the International Court of Justice for resolution, the process will be long and difficult. None of the claimants has what might be called an “open and shut” legal case.
- The consensus among scholars seems to be that China and Vietnam have the best legal case to claims in the Spratly Islands. China’s claims in the Spratlys are weaker than its claims to the Paracels (also claimed by Vietnam), and depending on how certain historic actions are legally interpreted, Vietnam may have a better claim to both island chains. At the same time, U.S. policy- makers cannot lose sight of the fact that China’s claims may be superior.
- The absence of an unambiguous legal case in any of these disputes reinforces the wisdom of the U.S. policy of not taking a position regarding which country’s sovereignty claim is superior.
- The claims of the Philippines, Malaysia and Brunei to islands or rocks in the Spratly Islands are not strong as the claims of either China or Vietnam. http://www.cna.org/sites/default/files/research/IOP-2014-U-009109.pdfPhilippine Claims in the South China Sea: A Legal Analysis
US Navy Center for Strategic Studies
“The Philippines has asserted claims to Scarborough Shoal as well a collection of 50 [Spratly island] features which are known collectively as the Kalayaan island group (KIG).
The KIG claim is much like the Chinese nine-dash-line claim which China (and the Republic of China) uses to justify its claims to features and waterspace. Using this methodology to claim territories in large areas of water is not, standing alone, likely to be regarded as legally sufficient to establish sovereignty over ocean territories.
The reality on the ground is that China, Taiwan, Vietnam, Malaysia, and the Philippines all permanently occupy features in the Spratly group; some have done so for over 50 years. There are only four ways in which the dispute is likely to be resolved:
All parties agree to undertake judicial arbitration.
All parties agree to freeze in place, tabling the issue of ultimate sovereignty in favor of a
cooperative regime for resource exploitation and management.
Individual claimants reach an understanding with China, renouncing their sovereignty claims in return for economic preference.
The most powerful party uses force to expel rival claimants.
Michael McDevitt, Senior Fellow and Project Director
Hidden Harmonies: http://blog.hiddenharmonies.org/2015/05/26/u-s-irresponsible-acts-in-s-china-sea/
25 Vietnamese installations, 10 Filipino, 7 Malaysian & 2 Taiwanese vs. 8 Chinese – and China wasn’t the first to build on the Spratlys- it was Vietnam and the Philippines.
Today’s show is titled, “South China Sea Brouhaha Down & Dirty from Radio Sinoland”. This is a must hear program, as America is setting up to go to war with China. Like America’s Korean War fiasco, are US generals and leaders listening to Baba Beijing? It’s that serious and dangerous.
The Ussuri River was a typical border spat not an invasion – by either side.
The Indo-China war certainly could have been an invasion, since China routed India and drove it back to the status quo ante line – but refused to invade although India was helpless. The two remain today where they’ve been since 1946.
The Chinese-Vietnam aggression was the result of Vietnam’s (very public) invasion and occupation of Cambodia, a country with which China had an (equally public) defense treaty. After months of China’s warnings and pleadings, China’s move was punitive and successful. Though it cost may Chinese lives and gained no territory (nor was it intended to) it demonstrated to Vietnam that negotiations are better than invasions.
As to the Spratlys, the Democratic Republic of Vietnam’s position was unequivocal in the 1950s and 1960s. The position remained unchanged even after the death of Ho Chi Minh and the end of the Vietnam War in 1975. Documents with the Chinese Foreign Ministry from the 1970s and 1980s show the position of the Ho Chi Minh-led Vietnamese Communist Party on the Xisha and Nansha islands. The most important of these documents is a note given by former Vietnamese premier Pham Van Dong to Zhou Enlai and the declaration of the Democratic Republic of Vietnam in 1965.
On Sept 4, 1958, the Declaration of the Government of the People’s Republic of China said that the breadth of the territorial sea of the country shall be 12 nautical miles and that this provision should apply to all territories of the PRC, including all the islands in the South China Sea. On Sept 14, 1958, Pham Van Dong solemnly stated in his note to Zhou Enlai that Vietnam recognizes and supports the Declaration of the Government of the PRC on the country’s territorial sea. On Sept 22, 1958, the diplomatic note was publicly published in Nhan Dan, the official newspaper of the Vietnamese Communist Party.
On May 9, 1965, the Democratic Republic of Vietnam issued a statement on the US’ definition on the “theater of war” in Vietnam. The statement said that by defining the whole of Vietnam and the waters up to 100 nautical miles off its coast as well as part of the territorial sea of China’s Xisha Islands as the operational area of the US armed forces, Lyndon Johnson, then US president, has directly threatened the security of the Democratic Republic of Vietnam and its neighbors.
- China has always said that with freedoms of navigation and overflight, it only disputes the right of the US to conduct military activities, particularly certain types of intelligence collection and military data gathering (so-called ‘military surveys’) in its exclusive economic zone (EEZ). China’s disputation of the right of the US to undertake these activities isn’t without merit, particularly when the military surveys constitute marine scientific research which is under the jurisdiction of the coastal State in its EEZ. Also, it’s significant that several other regional countries, India, Malaysia and Thailand, share China’s position on military activities in the EEZ.
- Washington then aggravates the situation by referring to the waters of the South China Sea as ‘international waters’, ignoring the reality that these waters are actually the EEZs of the bordering countries, including China. It also ignores the fact that the high seas freedoms of navigation and overflight available to other countries in these waters shall be exercised with what UNCLOS calls ‘due regard’ to the rights and duties of the relevant coastal State. The freedoms of navigation being claimed by the US in the South China Sea aren’t absolute and have to be exercised with ‘due regard’ to the rights of coastal States. For the US now to be claiming them appears as though it’s ignoring the sui generis nature of the EEZ established by UNCLOS.
- The last law of the sea issue arises from reports that the options being considered in Washington include sending aircraft and ships within 12 nautical miles of the reefs and islands occupied by China. This would be an exercise of the right of innocent passage available through the territorial sea. Even though the features may not be full ‘islands’ under UNCLOS, they have a territorial sea. Sending ships and aircraft into such waters specifically for demonstrating a right wouldn’t be a legitimate exercise of innocent passage. UNCLOS makes clear that innocent passage should be ‘continuous and expeditious’, and shouldn’t involve ‘any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State.’
For all these reasons, the action contemplated by the US looks like a dangerously unilateral assertion of rights by Washington. What’s even more worrying is that the US, as a non-party to UNCLOS, may be ignoring some of the convention’s carefully balanced outcomes between the rights of coastal States and those of major maritime powers.
Robin Daverman, Know a little bit
Not very much. I think politically, the honeymoon period of Sino-American relationship was over by the time the US bombed the Chinese embassy in 1999. United States bombing of the Chinese embassy in Belgrade The US said it was a mistake (wrong tourist map or something), and China never believed it (the Chinese Embassy was the only target in that war proposed by the CIA). The war in Iraq and Afghanistan did not improve US standing. Now there is not much left except Realpolitik.
Regarding South China Sea, the real action is not on a couple of salty rocks with only seagulls as permanent residents, but in bi-lateral meetings behind closed doors.
- China is plunking down $46 billion investment in Pakistan (Pakistan opens first solar power plant, built with Chinese investment, China Promises $46 Billion To Pave The Way For A Brand New Silk Road)
- China just signed a 20-year Free Trade deal with South Korea(South Korea, China ink long-term trade deal | Business | DW.DE | 01.06.2015)
- Indonesia is hoping for $60 billion investment from China (Indonesia Banks On $63 Billion From China)
- Cambodia has had solid economic and military relationship with China for the past 50 years (Cambodia says ASEAN should stay out of South China Sea fracas)
So China’s cards are on the table. What about the US? At the Shangri-La Security conference, U.S. Defense Secretary Ash Carter said that the Department of Defense would be launching a new Southeast Asia Maritime Security initiative. He said Congress had already taken steps to authorize up to $425 million dollars for these maritime capacity-building efforts! US Launches New Maritime Security Initiative at Shangri-La Dialogue 2015
Wow, are you impressed? No? Well, maybe that’s why Malaysia for months talks about China sharing civilian access to those islands. Vietnam agreed to work with China in the joint development of the South China Sea. Indonesia is not only seeking stronger ties with the PLA but recommended that China & the other claimants do joint patrols in the SCS. Indonesia Urges Joint Patrols With China in South China Sea And what did Singapore say?
All Asian countries hope that US-China relations will be positive. No country wants to choose sides between US or China. – PM Lee
To add icing on the cake, 60% of South Koreans view Japan as a military threat, while only 30% of them view China as a military threat. Nearly 60% of South Koreans view Japan as military threat: joint survey | The Japan Times, and all the ASEAN defense ministers are going to Beijing together later for an “Asia for Asian” meeting. China to Hold First Meeting With ASEAN Defense Ministers in Beijing
This “pivot” is sliding into the sea.
Counterpunch: Tells the Facts, Names the Names by stclair 3:57 pm
The United States has been, and will always be, the one indispensable nation in world affairs.
– US President Obama May 23, 2012
60 percent of the United States Naval forces will be stationed in the Asia Pacific by 2020 —P-8s [spy aircraft], Zumwalt-class destroyers, littoral combat ships, forward-deployed forces, Marines in Darwin — all and many more are headed to the Pacific . . . woe betide the foe who decides to challenge the United States of America or our Navy.
– US Vice President for War, Joseph Biden, May 22, 2015
We will remain the principal security power in the Asia-Pacific for decades to come.
– US Secretary for War, Ashton Carter, May 27, 2015
The US navy operates routinely in the Black Sea, in accordance with international law.
– Pentagon, 31 May 2015
Scores of ships and aircraft from 17 countries are taking part in Baltic Sea naval drills as part of exercise BALTOPS which starts on Friday 5 June 2015 and runs until 20 June.
– NATO media release, 4 June 2015
The United States of America is making it clear that it intends to increase its already massive military presence surrounding China and Russia. Over the past sixty years the capabilities of strike forces stationed in US military bases in Hawaii, Japan, Australia, Singapore, South Korea and Thailand and all over Europe and the Gulf region have grown enormously, as has the number of US combat navy vessels roaming Asian and other seas, ready, as Mr Biden threatens so pugnaciously, to go to war. Biden says that Washington is ready to meet any challenge — but if these bases and warships weren’t there, they wouldn’t be challenged. And the only reason they are there is to menace other nations in regions which have nothing whatever to do with the United States.
Mr Biden’s grasp of international affairs is a little shaky, as made clear by his astonishing claim that in Asia “for the past 60 years, the security we provided has enabled the region’s people to turn their talents and hard work into an economic miracle.” He had obviously forgotten a decade of disaster in Vietnam during which savage mayhem over 50,000 US military personnel died in the cause of nothing fighting a country that had done no harm to the United States.
North Vietnam did not present the slightest threat to a single American citizen. But millions of civilians in both North and South Vietnam died as a result of Washington’s paranoia, just as a few years later there was similar slaughter in Iraq following the US invasion, and in Afghanistan during an abortive and mishandled military occupation. The needless toll of American and other nationalities’ soldiers was obscene. But Washington is entirely undeterred by failure and slaughter and continues to stick out its truculent chin in seas, skies and bases all over the globe.
The trouble is that this time the US is confronting and trying to intimidate two nations which are not prepared to accept swaggering arrogance indefinitely. Russia and China are proud countries and will not take much more of the condescending arrogance and coat-trailing aggression that are so much a feature of US international pronouncements and provocative actions.
Recently Biden had a cheap sneer at China that shows his utter lack of comprehension concerning that country and its leaders. In a speech to naval cadets last month he boasted that “President Xi of China, when I was meeting with him, asked me why do I continue to say America is a Pacific power? And I said because we are.” (And here the transcript notes that there was “Laughter” — indicating yet more brainwashing of young US military leaders to believe that all other nations are inferior.)
But if Mr Biden and the rest of the Indispensable America brigade imagine for a moment that President Xi and his country might find his mocking comment even remotely amusing they are totally wrong. Biden’s bombastic blabber epitomizes the sort of juvenile bragging that has made Washington loathed and distrusted in so many places, and Biden is following the example of his amateur president about whom so many Americans (and countless foreigners) had such great hopes concerning his approach to foreign relations. There was a feeling that at last there might be an era of understanding, collaboration and give-and-take.
But now it is obvious that the United States, although stridently proclaiming that it is an “indispensable nation” and one that will be the “principal security power” in Asia, has no intention of extending its influence through international diplomacy or bilateral negotiations with nations it considers are becoming a little uppity. The US intends to achieve authority over the world by military domination.
But it won’t succeed.
US military antics in the Baltic, Black and South China Seas would be laughable were they not so calculatingly confrontational. And they are increasingly likely to lead to direct conflict. While this might satisfy the macho posturing of self-important little politicians and others who have no idea what it’s like to hear bullets flying (and a lot of gung-ho generals as well), there is a rather wider aspect of this bravado, which is that these people are putting the world at extreme risk of nuclear war. Doctor Strangelove lives on in such hideous caricatures as the appropriately named General Breedlove, the deranged commander of the North Atlantic Treaty Organization’s military machine.
On March 4, 2015 Breedlove told the world that in Eastern Ukraine there were “well over a thousand combat vehicles, Russian combat forces, some of their most sophisticated air defense, battalions of artillery.” This was (and continues to be) utter nonsense. As Germany’s Der Spiegel recounted “For months, Breedlove has been commenting on Russian activities in eastern Ukraine, speaking of troop advances on the border, the amassing of munitions and alleged columns of Russian tanks. Over and over again, Breedlove’s numbers have been significantly higher than those in the possession of America’s NATO allies in Europe. As such, he is playing directly into the hands of the hardliners in the US Congress and in NATO.”
Of course he was. Deliberately — and most successfully. We’re back to the exciting days of Cold War propaganda. As Der Spiegel reported when the Ukraine “crisis” began, “General Breedlove announced that the Russians had assembled 40,000 troops on the Ukrainian border and warned that an invasion could take place at any moment . . . But intelligence officials from NATO member states had already excluded the possibility of a Russian invasion. They believed that neither the composition nor the equipment of the troops was consistent with an imminent invasion. The experts contradicted Breedlove’s view in almost every respect. There weren’t 40,000 soldiers on the border . . . Furthermore, most of the military equipment had not been brought to the border for a possible invasion, but had already been there prior to the beginning of the conflict,” and so on.
Strangelove was fantasizing. And my information is that this was deliberate. As we are all aware, every defense force plans for as many contingencies as can be imagined. US military staffs did appreciations of a possible “Russia-Ukraine Conflict” which concluded that if Russia had wanted to invade and conquer Ukraine it could have done so in about twenty days. There would have been nothing whatever that the US or its subservient NATO “partners” could have done about it. Of course Russia would have been insane to have invaded Ukraine because as it well knows it would have suffered a massive and lasting insurrection by Ukrainian citizens. All that Moscow wants is decent treatment by the Kiev government of Russian-cultured, Russian-speaking people.
Obama and his war-drumming acolytes couldn’t care less about decent treatment of people, especially Russians in Ukraine, and in May Obama declared that Russia is taking an “increasingly aggressive posture.” Yes, it is — because it is surrounded by US-NATO belligerents who are intent on pressuring Russia until — again the magic words, folks! — there is yet another Regime Change. It is believed in Washington and a few other places that All will be Well for the Free World when Putin is toppled by some sort of revolution, just as Ukraine became a paradise after its elected president was overthrown. Like Libya and Iraq.
As with many developments in Washington’s global arrogance, there is a sliver of black humor detectable from time to time. In this instance there was Obama’s presumably straight-faced rhetorical question concerning Mr Putin. “Does he,” thundered Obama, “recognise that Russia’s greatness does not depend on violating the territorial integrity and sovereignty of other countries?” — Just as Washington recognised sovereignty in Iraq and Libya, destroying both countries after violating their territory and thus creating absolute chaos throughout the Middle East.
I repeat that China and Russia are not going to accept Washington’s belligerent pontification for much longer. Obama and his merry team of swaggering video barbarians are standing into danger. They would be well to consider the words of Hunter S Thompson when he advised that in time of difficulty it is as well to “Pray to God, but row away from the rocks,” because from the Baltic to the South China Sea, by way of the Black Sea and the Persian Gulf, there are lots of rocks ready to rip holes in wandering warmongers.
Brian Cloughley writes about foreign policy and military affairs. He lives in Voutenay sur Cure, France.
China Not Leaving the “South China Sea”
3/11 and Japanese Resilience Five Years Later
March 15, 2016
Volume 14 | Issue 6 | Number 4
America is learning that the South China Sea is called the South “China” Sea for a reason, despite patriotic efforts in various nations to rename it the “West Philippine Sea” or “East Vietnamese Sea”.
At his press conference on the sidelines of the National People’s Congress, PRC Foreign Minister Wang Yi declared:
“China was the first to discover, name, develop, and administer the various islands of the southern seas. Our ancestors have tilled those fields and toiled there amid hardships for generations. We know this place and love this place better than anyone else, and more than any other people we wish for the peace and stability of the southern sea and freedom of navigation.”
Wang Yi’s flowery rhetoric about China’s sole historical claim to all the islands of the southern seas and their development is ahistorical nonsense.
But the second part, about the PRC’s paramount interest and growing predominance in the South China Sea is closer to the truth. This is because the PRC is spending a lot of money, effort, and diplomatic capital to make it true.
The People’s Republic of China sails through the South China Sea, flies through it, fishes in it, erects towns and airfields, sends in cruise ships and commercial jet liners on regular schedules, patrols it with an armada of coast guard and naval vessels, maintains forward military bases in it, builds faux islands in it, occasionally prospects with in it with its massive semisubmersible drilling rig, dots it with radar stations and lighthouses, relies for it as a vital energy corridor…
For the United States, the South China Sea seems to exist as a blank slate upon which the US seeks to project its narratives amid an intensifying geostrategic competition with the PRC.
Take the immense uproar in January-February 2016 over the PRC placing surface to air missiles “in the South China Sea”. The report was floated by a source at the Department of Defense through Fox News, endorsed by a spokesman for Taiwan’s Ministry of National Defense, and was the impetus for a global round of hysterics predicated on the claim that the PRC was repudiating Xi Jinping’s pledge not to militarize islands in the South China Sea and was escalating “tensions” in the SCS.
As it transpired, the surface to air missiles (whose deployment the PRC never confirmed) were sighted on Woody Island. Woody Island is a real island in the Paracels, an archipelagic cluster near Hainan seized from Vietnam in 1974. There’s been an airfield on the base for decades, the PRC expanded it in the last year to host fighter jets on cyclical deployments (permanent basing perhaps exposes the airframes to too much salt-air corrosion) and, indeed, the Admiral of the US Pacific Fleet acknowledged that the PLA put surface to air missiles on Woody Island at least two times previously without the US government raising any objections.
The PRC will never enjoy legal sovereignty over the Paracels since Vietnam will never formally cede them, but Vietnam has swallowed its choler enough to explore joint demarcation marine boundaries with the PRC that de facto acknowledge that the PRC has got the Paracels and isn’t giving them back.
And, when Xi Jinping visited the US in September 2015, he stated China “did not intend” (something less than a pledge, despite some misreporting of his remarks) to militarize the Spratlys, which is the collection of virtually uninhabitable sandbars, reefs, and atolls whose sovereignty is claimed and disputed by almost all countries neighboring the South China Sea and serves as the focus of the PRC’s island-building outrages. He made no pledges, statements of intent, or other representations about the Paracels.
Woody Island is a good 500 miles from Fiery Cross Reef, the enhanced atoll in the Spratlys whose PRC-constructed airfield has occasioned so much dismay and concern.
Indeed, it transpired that the Obama administration was aware of the distinction, as the National Security Council’s Dan Kritenbrink, Senior Director for Asian Affairs, tacitly acknowledged when he subsequently urged extension of the non-militarization pledge to cover the entire South China Seas as well as the Spratlys. The Pentagon, I suspect, was aware of the distinction but not particularly interested in respecting it, particularly if floating the missile story served to diminish the stature of President Obama’s ASEAN summit and the relatively conciliatory diplomacy that underpinned it.
Therefore, PRC Foreign Minister Wang Yi understandably responded to the surface-to-air missile frenzy by chastising the media for hyping the story. Unspoken was the PRC’s bemusement that the Western media had, out of ignorance or malice, run with this tale and the Obama White House, blindsided by the Pentagon, had let the firestorm rage instead of knocking it down.
The lesson of this affair is that the South China Sea is a remote body of water that Americans know little about and understand less. US China hawks have exploited this information deficit ever since Secretary of State Hillary Clinton rolled out the “pivot to Asia” in 2010, justifying the US injection into the South China Sea issue as a matter of ensuring freedom of navigation in a vital commercial sea lane in the global commons.
It is taken as self-evident that the South China Sea is indispensable to world commerce because “over $5 trillion dollars” worth of goods, including the bulk of Japanese energy supplies, pass through the SCS.
Admiral Harris invoked the $5 trillion dollar figure in his recent testimony before the Senate Armed Services Committee. Western media reports reproduce it almost as a mandatory piece of journalistic boilerplate when covering the South China Sea.
However, the awkward fact is that the only major power with a vital strategic interest in Freedom of Navigation in the South China Sea is the People’s Republic of Chinna.
The website of Marine Traffic, provides some interesting perspective with its mapping of real time and historical ship movements.
Here is the “density map” displaying aggregate movements along the busiest shipping routes (green lines) and in the busiest ports (red blobs) in and around the South China Sea:
Note several features of the marine traffic in the South China Sea. First, much of it goes, unsurprisingly, to the Peoples Republic of China and Hong Kong. Second, Vietnam, Indonesia, Taiwan, and the Philippines are largely served by coast-hugging routes outside the PRC’s dreaded Nine-Dash-Line.
Third, the rest of the traffic that transits the SCS pretty is headed for Japan and South Korea. This would seem to support the perception that the economies and national security of Japan and South Korea, core US allies, require assurances against Chinese interdiction of their energy supplies in the South China Sea.
The strategic insignificance of the South China Sea to Japan and the Republic of Korea has been well known since the 1990s, when “energy security” became an explicit preoccupation of Japanese planners.
In 2005, Australian security analyst Euan Graham addressed the issue in his Japan’s Sea Lane Security: A Matter of Life and Death?
The cost to Japan of a 12-month closure of the South China Sea, diverting oil tankers via the Lombok Strait and east of the Philippines, has been estimated at $200 million. A Japanese estimate puts the cost as basically the same to that imposed by a closure of the Malacca Strait, requiring 15 additional tankers to be added to the route, generating an extra $88 million in shipping costs. This is roughly corroborated by the reported findings of a joint study conducted by the JDA and the Indonesian authorities in the late 1980s, which put the number of extra tankers required to divert around the South China Sea via Lombok and east of the Philippines at 18.
…The volume of oil shipped to Japan from the Middle East is evenly split between Lombok and the Straits of Malacca…
What does two extra days on the water mean? In his book, Graham provides a dollar figure:
…Based on an oil import bill of $35 billion in 1997, [a cost of $88 million for diverting through Lombok] accounts for 0.3% of the total.
To update these figures, in an environment of crashing oil prices and spiking shipping rates (as importers rush to obtain cheap supplies and even store them on tankers until onshore facilities open up), assume $30/barrel crude plus $3/barrel shipping costs. Japan imports about 2 billion barrels per year. That’s $6 billion dollars. If we assume the Lombok route adds 10% or $0.30/barrel to the shipping cost, that’s another $600 million dollars against $60 billion in total crude costs. 1%. By coincidence, $600 million is also about 1% of the annual Japanese defense budget. Japan’s GDP: $4 trillion dollars.
So is the threat of closure of the South China Sea an existential threat to Japan requiring a military response? One Japanese authority doesn’t believe so.
CSD [Collective Self Defense] will not allow minesweeping ops in SCS/Malacca Strait as unlike Hormuz there are alternative routes.
That’s a statement that Prime Minister Abe Shinzo made in the Diet, as reported on Corey Wallace’s Twitter feed.
Republic of Korea imports less than 1 billion barrels per annum. Cost of the Lombok detour: maybe $270 million.
In summary, the Malacca/South China Sea route from the Persian Gulf to Japan and South Korea is preferred as the straightest, cheapest, route for crude oil. In fact, ship owners looked at the economics and decided to defer construction of “postMalaccamax VLCCs” (Very Large Crude Carriers) in favor of smaller tankers in order to preserve the option of going through the Malacca Strait and South China Sea.
But if the South China Sea route is obstructed, they can always go via Lombok and the Makassar Sea. Its just a little bit more expensive.
So, the South China Sea is not a critical sea lane for our primary North Asian allies Japan and the Republic of Korea.
As for Australia, the fourth point (together with Japan, India, and the United States) in the emerging Asia Pacific security “diamond”, Graham stated in his book:
Iron ore and coke shipments from Australia account for most of the cargo moved through the Lombok Strait…Lombok remains the principal route for bulk carriers sailing from Western Australia to Japan.
Australian resource exports bypass the South China Sea already.
As to the South China Sea factor, Sam Bateman, a retired Royal Australian Navy commodore now working in a think tank in Singapore, debunked claims of the crucial strategic character of the South China Sea to Australia:
Bonnie Glaser has recently claimed that approximately 60 per cent of Australia’s seaborne trade passes through the South China Sea…
When measured by value, the figure of 60% of our seaborne trade passing through the South China Sea is way off the mark. Based on the latest data for Australia’s overseas trade, it mightn’t even be half that-and about three-quarters of it would be trade to and from China. Thus the notion of a threat to our seaborne trade from China is rather a non sequitur.
In other words, approximately 7.5% of Australia’s total seaborne trade by value passing through the South China Sea isn’t going to the PRC. That represents perhaps A$40 billion, about half of which is back and forth with Singapore, which could be end-arounded by entering the Malacca Strait from the west and avoiding the South China Sea completely. So perhaps A$ 20 billion is theoretically at risk in the unlikely event that the PRC decided to close the SCS completely to Australian shipping. By contrast, Australian two way trade with the PRC is A$152 billion.
It should be clear by now that the South China Sea as a commercial artery and as an energy import channel matters much more to China, than it does to Japan, South Korea, Australia, and the United States. Indeed, the primary global strategic significance of the South China Sea is not as a vulnerable artery for global commerce; it is as a vulnerable bottleneck for Chinese energy imports.
America’s interest in confronting the PRC in the South China Sea predates any Xi Jinping-related arrogance, expansionism, and island-building, indeed it predates the appearance of any PRC Navy worthy of consideration. It can be traced to the Office of Net Assessment’s 2004 report prepared via Booz, Hamilton for Donald Rumsfeld, Energy Futures in Asia. As I do not believe that report has been declassified, interested readers can check a 2010 paper from the US Naval War College titled China’s Oil Security Pipe Dream.
The PRC has been aware of the US government’s interest in the possibility of interdicting PRC energy imports at the Malacca Straits/South China Sea chokehold for many years, and has poured billions of dollars into establishing less vulnerable alternatives for meeting its requirements, through the filling of strategic oil reserves, its ongoing pipeline projects with Russia and energy producers in Central Asia, initiatives to diversify supply lines for Gulf oil with oil and gas pipelines from Burma to Yunnan, and the risky bet on a “China Pakistan Economic Corridor” keyed to the port at Gwadar and crossing the Himalayas to Kashgar
As these massive and risky alternative expenditures by the PRC-and the complete absence of plausible threats to Japan, South Korea, and Australia interests-indicate, the only genuine role the South China Sea played as a strategic chokepoint worthy of US interest is against the PRC.
The PRC has accused the United States of maliciously meddling in the South China Sea not to secure and stabilize an important global commons but to polarize relations between the PRC and its neighbors and create an opening for strategic military cooperation with the Philippines and Vietnam, a point of view I am inclined to agree with.
This state of affairs is probably better appreciated by China’s local trading partners in Australia, South Korea, and Japan than it is in the United States, and governments there are faced with the awkward question of how far to go with “upholding international norms” and “alliance service”, i.e. supporting a U.S. containment strategy by antagonizing the PRC over the South China Sea, a body of water whose control is not a matter of existential interest to them, but is to China.
As the PRC responds to US opposition and ASEAN anger and dismay not by retreating, but by accelerating its development of civilian and dual use infrastructure on its holdings and ramping up its naval and coast guard presence, the realization of the situation seems to be sinking in in the US public sphere as well.
If anybody entertained the wishful thinking that the PRC would respond to the widely expected ruling against its Nine Dash Line at arbitration in The Hague by rolling over for the Philippines and the United States, those dreams are pretty much over.
At his press conference, Foreign Minister Wang Yi employed a litany of pejoratives to characterize the Philippines–“unlawful, unfaithful and unreasonable”-the role of the (unnamed) United States-” behind-the-scenes instigation and political maneuvering”-and the arbitration process itself-” tainted and gone astray, and China is not going to humor it”.
Separately and perhaps significantly, Wang addressed the most contested issue in the South China Sea-the Spratly Islands-by drawing the PRC’s line in the sand:
The Spratly Islands are China’s inseparable territory. Descendants of the Yellow Empire all have the duty to protect this land.
Wang concluded with the statement “The PRC has never and will not make any new territorial demands”. Beyond the unfortunate echoes of Neville Chamberlain, I believe Wang’s words may have been intended as a signal that the PRC regards it infeasible to try to assert an extremely unpopular claim to exclusive sea rights in the contested regions of the SCS if, as expected, the cartographic embarrassment of the Nine Dash Line is declared invalid, especially since hawks in the United States Navy dream of standing between the PRC and the UNCLOS victors seeking to reap the bounty of their expansive South China Sea EEZs.
If the PRC focuses on asserting its territorial (as opposed to maritime) position in the South China Sea, it will have ample resources for mischief even if the international consensus to order the South China Sea maritime domain on the basis of UNCLOS prevails.
The PRC can insist on its territorial claims to the various natural and man-made islands and LTE (low tide elevation i.e. covered at high tide) features that it holds or desires, leaving no recourse for other claimants short of military action to evict China from them.
UNCLOS does not cover disputes over sovereignty of islands and indeed there is no accepted international treaty or mechanism for resolving these disputes. And once sovereignty is asserted, even over uninhabitable features, territorial seas can be claimed and sometimes Exclusive Economic Zones as well to a ridiculous degree. The most notorious instance of this practice is Okinotorishima Island, a tiny above-water lump of coral in the Pacific that Japan secured at the cost of over half a billion dollars, and, on this basis, claimed a 200 nautical mile EEZ.
If the PRC inserts fresh territorial, territorial sea, and EEZ claims into the dispute, maps of the South China Sea, which were never particularly straightforward to begin with, are going to get even more complicated.
A current concern is that the PRC may punish the Philippines for any UNCLOS setbacks by developing and permanently occupying the Scarborough Shoal as an island feature. The shoal is a rich fishing ground that is well within any conceivable Philippine EEZ demarcation and is far away from the PRC. Access to the fishing grounds within the shoal is currently controlled by PRC vessels provoking great anxiety and nationalist resentment in the Philippines.
The Chinese government is perhaps looking at the Aegean Sea dispute between Greece and Turkey-a largely frozen conflict that has persisted for forty years-as a precedent for a disputed but de facto functional maritime regime in the South China Sea.
PRC strategists are probably well aware that switching to a territorial instead of maritime focus threatens to dash the hopes of US Navy hawks hoping to force the PLAN into a humiliating confrontation that directly repudiates grandiose PRC claims to sovereignty within the Nine Dash Line.
The US Navy already had its work cut out for it on maritime matters since UNCLOS allows for no enforcement mechanism and, even if the United States wanted to step up and enforce the judgment in its role as benevolent hegemon, it is not even a signatory to the treaty it would be purporting to enforce.
As for territorial disputes, the United States has a long-standing policy, which is close to iron-clad, of not taking positions on sovereignty disputes. Indeed, the default preference of the United States is to “preserve the status quo”, which would make evicting the PRC from the islands and structures it currently occupies extremely awkward, if not impossible.
The combination of PRC actions, investment, and rhetoric, and an apparent local unwillingness to walk the walk on confronting the PRC in the SCS, seems to be convincing US observers that the PRC isn’t going anywhere.
A recent New York Times article was titled: South China Sea Buildup Brings China Closer to Realizing Control. It concludes:
The Obama administration has struggled, however, to come up with a policy to slow or stop what it has called China’s militarization of the South China Sea…
In recent months, the Pentagon has also stepped up “freedom of navigation” patrols in the South China Sea, sending United States warships and aircraft into territory claimed by Beijing to assert Washington’s view that these areas remain international waters and airspace.
But China has responded by using the patrols to argue that it is the United States that is militarizing the South China Sea – and by continuing to build.
“China was the first country to discover, name, develop and manage the South China Sea islands,” the Chinese foreign minister, Wang Yi, told a news conference on Tuesday. “History will prove who is a mere guest and who is a real host.”
Of course, the US Navy isn’t going anywhere either.
If the US wishes to evict the PRC from the South China Sea, it will have to consider stronger, more dangerous, and politically and diplomatically less palatable measures-and a more convincing menace than an imputed PRC threat to commercial freedom of navigation, or even as antagonist to the international norms and laws represented by the UNCLOS ruling.
The US military is now shifting the terms of debate from the shaky premise that the PRC presence in the South China Sea is a threat to global commerce and the world order to a somewhat more realistic anxiety that the PRC will, in the near future, possess sufficient military assets in the South China Sea to challenge and in theory impede or deny military maritime and aviation traffic by other nations.
This strategy is encapsulated in the continued alarms that the PRC is “militarizing” the South China Sea, an accusation that the PRC, particularly after the US Navy sailed a carrier battle group through the SCS in early March 2016, is not inclined to take seriously.
The focus on “militarization” is exemplified by warning the PRC not to announce a South China Sea Air Defense Identification Zone or ADIZ, which would require aircraft flying near and toward the PRC (including its contested SCS facilities) to identify themselves and state their intentions. To knock down a frequently stated canard, an ADIZ is not a declaration of territorial airspace and the ADIZ of various nations can overlap, as the PRC and ROK ADIZs overlap in the East China Sea. One might think that the SCS, with growing military traffic by hostile powers, sorely needs an ADIZ to prevent misunderstandings, incidents, and escalation, but China hawks will try to advance the argument that in this case, as in many matters involving the South China Sea, ordinary logic simply doesn’t apply.
Recommended citation: Peter Lee, “China Not Leaving the “South China Sea””, The Asia-Pacific Journal, Vol. 14, Issue 6, No. 6, March 15, 2016.
– See more at: http://apjjf.org/2016/06/Lee.html#sthash.To0EMDUo.dpuf
Chinese law enforcement activities in its own territorial waters legitimate and justifiable
[By Luo Jie/China Daily]
In January 2013, the Philippines unilaterally instituted arbitration proceedings against China with respect to its disputes with China in the South China Sea. On March 30, 2014, the Philippines presented a Memorial consisting of 15 Submissions. In Submission 13, the Philippines complained about two series of allegedly dangerous actions conducted by China’s law enforcement vessels against Philippine law enforcement vessels on April 28 and May 26, 2012. The Philippines alleged that China thus violated relevant provisions of the Convention on the International Regulations for Preventing Collisions at Sea (COLREGs), and the UN Convention on the Law of the Sea (UNCLOS).
To support its allegations, the Philippines retained Professor Craig H. Allen of the University of Washington, who presented his written opinion to the arbitration tribunal at the Permanent Court of Arbitration in The Hague on March 19, 2014, and Professor Alan E. Boyle of Essex Court Chambers of the United Kingdom, who gave a statement before the tribunal on behalf of the Philippines on Nov 26, 2015.
The argument of Boyle and Allen was: China’s law enforcement vessels, by approaching Philippine vessels at close range rather than keeping well clear, violated the COLREGs; China thereby violated Article 94 of UNCLOS as a flag state for failing to exercise effective jurisdiction and control over its vessels.
It should be noted that the two professors retained by the Philippines acknowledged or did not deny the basic fact that the alleged incidents took place within the territorial sea of Huangyan Island, which is thus the territorial sea of China, and that the Philippine law enforcement vessels allegedly threatened by Chinese law enforcement vessels were not conducting innocent passage through the territorial sea, rather they were carrying out illegal activities that were prejudicial to the territorial sovereignty of China.
The principal limitation on sovereignty over territorial seas is the right of foreign vessels to innocent passage. UNCLOS defines “innocent passage” in Article 19 (1) as “not prejudicial to the peace, good order or security of the coastal State”. Article 25 (1) of UNCLOS provides that “the coastal State may take the necessary steps in its territorial sea to prevent passage which is not innocent”. Article 8 of the Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone states, among other things, that “the Government of the People’s Republic of China has the right to take all necessary measures to prevent and stop non-innocent passage through its territorial sea”. As such, the only right Philippine vessels have in the territorial sea of Huangyan Island is innocent passage, any activities other than innocent passage are prohibited.
China, as the coastal State, is entitled to take necessary measures to stop activities of vessels that are prejudicial to Chinese sovereignty, which is common practice worldwide.
UNCLOS prevails over the COLREGs.
For the purpose of collision avoidance, the Convention on the International Regulations for Preventing Collisions at Sea requires ships to keep well clear of each other as a matter of principle, which is contrary to law enforcement practice which often necessitates the approach of another vessel. So when a conflict arises between law enforcement activities as authorized by UNCLOS and actions required by the COLREGs, which shall prevail?
UNCLOS prevails. Adopted by the United Nations at its third Conference on the Law of the Sea, it has been widely accepted as the “Constitution for the oceans”. From the perspective of jurisprudence, UNCLOS is legally superior to the COLREGs. Thus, in cases of conflict, the application of Article 25 (1) of UNCLOS, which authorizes Chinese law enforcement vessels to approach its Philippine counterparts as a necessary measure to prevent their prejudicial activities in Chinese territorial sea, takes precedence over the application of the COLREGs. Therefore, in respect of the incidents alleged by the Philippines, the Chinese law enforcement vessels did not violate the COLREGs, it was the Philippine vessels that violated UNCLOS by conducting activities other than innocent passage in China’s s territorial sea.
Boyle and Allen put the horse before the cart by holding that the COLREGs prevails over UNCLOS and applies in all circumstances. The absurdity of this logic can be illustrated with the following scenario: Foreign vessels could wantonly trample on the sovereignty of a coastal State by entering its territorial sea and conducting activities prejudicial to its sovereignty. The only response the coastal State could make in order not to violate the COLREGs would be to order its law enforcement vessels to keep well clear of the intruding foreign vessels and not conduct any preventative activities. Such a situation is totally against the regulations and spirit of international law.
The two professors pointed fingers of blame at Chinese vessels for intentional, deliberate behavior that demonstrated a reckless disregard for the safety of Philippine vessels, but they chose to ignore the fact that the Chinese vessels involved are much faster than their Philippine counterparts, had those Chinese vessels intended to collide with the Philippine vessels, many collisions would have taken place. However, there was no collision. This is because the intention of the Chinese vessels was to drive the intruding Philippine vessels out of the Chinese territorial sea as authorized by Article 25(1) of UNCLOS, without any attempt to threaten the safety of the vessels and personnel on board.
The arbitration initiated by the Philippines is intended to defame China by confusing right and wrong.
The authors are professors at Dalian Maritime University.
Japan knew about China’s plan for the ADIZ. China told them back in 2010. They can’t complain that they were surprised by it.