Posts Tagged ‘permanent court for arbitration’

South China Sea: ASEAN Urged To Insist Upon International Law in Code of Conduct With China — Be careful of the Goldilocks approach in the South China Sea

April 26, 2017
The Vietnamese-claimed Southwest Cay island in the Spratly island group is seen from a Philippine Air Force C-130 transport plane during the visit to the Philippine-claimed Thitu Island by Defense Secretary Delfin Lorenzana, Armed Forces Chief Gen. Eduardo Ano and other officials in disputed South China Sea, western Philippines, Friday, April 21, 2017. The South China Sea issue is expected to be discussed in the 20th ASEAN Summit of Leaders next week. Francis Malasig, Pool Photo via AP

MANILA, Philippines — The Philippines, along with other claimant countries of the South China Sea, should sign the Code of Conduct framework first and pressure China later on, a foreign policy analyst said.

De La Salle University professor Richard Heydarian said that Association of Southeast Nation (ASEAN) countries need a constrainment strategy in resolving the maritime dispute.

“We cannot contain China, they are too powerful… At least what we can do is like-minded countries in the ASEAN can coordinate approach,” Heydarian said in a South China Sea forum hosted by Stratbase ADR Institute on Tuesday.

The analyst added that Brunei is interested in joining discussions with Malaysia, the Philippines and Vietnam regarding the contested waters.

The way forward is for the ASEAN to implement institutional changes such as adopting a qualified majority or an “ASEAN minus X” formula in sensitive issues where it is impossible to get unanimity on decisions, he said.

Heydarian said it would be in the hands of President Rodrigo Duterte what kind of approach he is going to adopt as chairman of the 10-member regional bloc.

“The reality is that as the chairman of the ASEAN we have two major privileges. One major privilege is the second phase of power which is to set the agenda… The second thing is that during President Duterte’s chairman statement, especially later in November, he can say whatever he wants,” he said.

The Philippines as ASEAN chair might not exactly dictate the outcome of the final statement but the country can decide on issues that will be discussed on the agenda.

It would be beneficial for the country if Duterte uses this opportunity in the right way, the foreign policy analyst said.

“The reality is that as far as the Duterte administration is concerned there is this very robust debate. One school of thought is that the president is an unhinged demagogue who is a mayor who has no idea about how to deal about foreign policy. There is the other school of thought that portrays him as a strategic genius whose understanding in the South China Sea is so sophisticated that even us experts will never understand,” Heydarian said.

 Philippine Foreign Minister Enrique Manalo

Heydarian said that Duterte is somewhere in the middle based on the events in the past few months within the administration.

“There’s a very robust debate on how to come up with what I call Goldilocks approach in the South China Sea – how to combine the right amount of engagement with China with the right amount of deterrence,” Heydarian said.

While Duterte is seeking to improve economic and investment relations with China, Defense Secretary Delfin Lorenzana is leading efforts to fortify the country’s position on the ground.

Last week, Lorenzana visited Pag-asa Island, the largest feature in the Spratly Group, to assert the country’s claim to the disputed area. The Duterte administration has allotted P1.6 billion to develop facilities on Pag-asa Island.

“You have this burgeoning strategy but I think it’s very important that the Philippines uses this chairmanship of ASEAN this year to make sure that you have a more sophisticated and robust regional approach to measure that China will know that they will be cause to its increasing strategic footprint on the ground,” the analyst said.

RELATED: Del Rosario urges gov’t: Don’t wait for ‘better time’ to assert arbitral award

http://www.philstar.com/headlines/2017/04/26/1694107/asean-countries-urged-draft-sea-code-pressure-china

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FILE — In this Dec. 24, 2015, photo, provided by Filipino fisherman Renato Etac, a Chinese Coast Guard boat approaches Filipino fishermen near Scarborough Shoal in the South China Sea. Scarborough Shoal has always been part of the Philippines, by international law. China says it is happy to control fishing in the South China Sea. Credit: Renato Etac

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 (Philippine Star)

 — From March 25, 2017 with links to other related articles

 

 (National Geographic on the South China Sea)

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On July 12, 2016 a ruling of the Permanent Court of Arbitration in the Hague said China’s nine-dash line claim (shown above) was invalid and not recognized in international law.

Despite all this:

 

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South China Sea: Former Philippine Foreign Secretary Suggests ASEAN Member States Make Hague International Court Ruling Part of Code of Conduct

April 25, 2017
The Philippines’ former top diplomat said the position that China’s SCS build-up is a fait accompli should be rejected. File

MANILA, Philippines –  Former foreign secretary Albert del Rosario yesterday urged the Association of Southeast Asian Nations (ASEAN) to make the South China Sea (SCS) ruling an “integral” part of the Code of Conduct framework and the eventual finished document.

The Philippines’ former top diplomat said the position that China’s SCS build-up is a fait accompli should be rejected.

While most states strive for a peaceful, rules-based regional order in Southeast Asia, Del Rosario said China’s unilateralism has put this common vision at grave risk.

He urged ASEAN to be united in countering this challenge to its regional centrality and solidarity, noting that promoting the rule of law and strengthening multilateralism in support of the law must be key parts of ASEAN’s response.

“ASEAN and the international community as a whole should utilize the principles in the arbitral ruling to move diplomatic engagement forward,” Del Rosario said during the forum titled “The South China Sea: The Philippines, ASEAN, and their International Partners.”

The Philippines, under the Duterte administration, has decided to set aside the ruling in settling the maritime dispute with China.

“On shelving the ruling, what would happen if we should pass the point of no return?” Del Rosario asked.

The Philippines took a risk when the Philippine government went to arbitration at The Hague-based Permanent Court of Arbitration in 2013 with Del Rosario as foreign affairs secretary.

The ruling of the international arbitral tribunal not only vindicated the Philippines, but also upheld the rule of law over the waters and global commons of the SCS, making the ruling an integral part of the universal body of international law.

Manila made a strong contribution to the region, as the ruling benefited not only the claimants but also the whole world.

“My hope is that our ASEAN neighbors share the pride of what a member state like ours can accomplish, and see in the ruling an opportunity for all of the Southeast Asian region. Ultimately, advocating a rules-based regime is deeply embedded in who we are and what we must do,” Del Rosario said.

As this year’s chair of the ASEAN, the Philippines, he emphasized, has a unique and important opportunity to dwell on how it can work with its neighbors to ensure that a rules-based order succeeds.

Del Rosario also pointed out that the purpose of the cooperation should go beyond maintaining friendly ties, as the Philippines must also cooperate to ensure a neighborhood where countries follow the rules and uphold their commitments.

In 2002, ASEAN and China committed to a non-binding agreement over how claimants should all behave in the SCS. In the spirit of preventing and reducing tensions, the countries committed to self-restraint from activities that would complicate or escalate disputes.

“I am sorry to say that in the years that followed, one country did not exercise the necessary restraint expected of it,” Del Rosario said.

In 2017, as in 2012, he said that the greatest immediate source of regional uncertainty has been China’s unlawful efforts to expand its footprint throughout the SCS.

“Our region cannot promote the rule of law while ignoring the law as it stands,” Del Rosario said. “Moreover, we must not accept the position that China’s South China Sea build-up is a fait accompli that renders us helpless.”

It should be unthinkable for any diplomatic mechanism – whether bilateral or multilateral – to be used as a channel to reward unilateral activity or preserve unlawful gains, according to Del Rosario.

He urged the Philippines to speak out and work with its neighbors and friends to stand united in protest of island-building and militarization, Filipino fishermen being barred from entering Panatag (Scarborough) Shoal, irreparable destruction of marine commons and Defense Secretary Delfin Lorenzana’s challenged flyover in the SCS.

“We cannot wait for a ‘better time’ to come – we must create that time ourselves, lest that opportunity be lost forever,” Del Rosario said.

http://www.philstar.com/headlines/2017/04/26/1694039/asean-urged-make-scs-ruling-part-sea-code

Related:

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 (Philippine Star)

 — From March 25, 2017 with links to other related articles

 

 (National Geographic on the South China Sea)

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No automatic alt text available.

On July 12, 2016 a ruling of the Permanent Court of Arbitration in the Hague said China’s nine-dash line claim (shown above) was invalid and not recognized in international law.

Despite all this:

Philippines says South China Sea ruling not on agenda at ASEAN summit

January 5, 2017

Vietnam extends runway on island claimed by China

November 18, 2016

AFP

Vietnamese chant anti-China slogans during a rally in Hanoi, Vietnam, on the anniversary of a 1988 battle in the Spratly Islands. File Photo from Thanh Nien.

HANOI (AFP) – Vietnam is extending its runway on an island in the South China Sea also claimed by Beijing, according to fresh images likely to irk the regional superpower.Hanoi has lengthened the runway on Spratly island from less than 2,500 feet (760 metres) to 3,300 feet, the US-based Asia Maritime Transparency Initiative said in a report, citing images from early November that appeared to be from a satellite.

Vietnam will likely extend the runway to 4,000 feet in total, added the monitor, a project of the Center for Strategic and International Studies in Washington.

Communist Vietnam is also building two large hangars capable of hosting its maritime surveillance aircraft and transport planes, AMTI reported.

Beijing claims most of the South China Sea. It has reclaimed reefs and built airstrips capable of hosting large military planes, sparking anger from competing claimants led by Vietnam and the Philippines.

Hanoi and Beijing have traded diplomatic barbs over disputed island chains and waters in the sea.

Tensions have eased slightly in recent months but the issue remains incendiary on both sides.

Vietnamese people in Hanoi protest against Chinese activity in the South China Sea. Photograph by Luong Thai Linh, EPA

In 2014 China moved a controversial oil rig into contested territory, prompting riots in Vietnam though tensions have simmered in recent years.

“Even amid reduced diplomatic tensions, Vietnam continues to modernise its military and seek closer security ties with Japan, the United States and India in preparation for future Chinese assertiveness in disputed waters,” AMTI said in its report published Tuesday.

Hanoi did not respond to a request for comment Friday, but Beijing issued a customary rebuke and asserted its claim over the disputed Spratly chain, which it calls the Nansha islands.

“We are firmly opposed to some relevant country’s illegal occupation and construction work on some of the islands and reefs of China’s Nansha islands,” Chinese foreign ministry spokesman Geng Shuan said at a regular briefing.

The strategic waterway is also claimed by the Philippines, Brunei, Malaysia and Taiwan and is rich in energy reserves, fishery resources and is a busy shipping route.

Chinese foreign ministry spokesman Geng Shuan

The upgraded runway would likely be able to accommodate maritime surveillance aircraft and transport planes, as well as combat aircraft.

China has built military-length runways on three artificial islands it has built up in the South China Sea since 2013.

Reuters reported in August that Vietnam had discreetly fortified several of its islands in the disputed South China Sea with mobile rocket launchers capable of striking China’s runways and military installations across the vital trade route.

Military analysts said the deployment of the launchers was the most significant defensive move Vietnam has made on its holdings in the South China Sea in decades and it underscored Hanoi’s concerns about China’s assertive pursuit of territorial claims in the disputed region.

Vietnam’s foreign ministry has called the information “inaccurate“, without elaborating.

http://www.france24.com/en/20161118-vietnam-extends-runway-island-claimed-china-monitor

See also:

https://www.theguardian.com/world/2016/nov/18/vietnam-expanding-south-china-sea-runway-says-thinktank

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China has reportedly placed HQ-9 Air Defense Systems on at least one disputed island

Chinese fighter jets

Related:

U.S. President Elect Donald Trump meeting with japan’s Prime Minister Shinzo Abe at Trump Tower, November 17, 2016.

Chinese bomber over Scarborough Shoal

A Chinese fishing boat catches fires during an inspection by the South Korean coastguard in September. File photo: AP
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Chinese fishing fleet

On July 12, 2016, the Permanent Court of Arbitration in The Hague said this claim by China was not valid.

Is It Time To Make a Deal With China In The South China Sea? — China could be ready to budge

November 18, 2016

By By Eric Hyer
The Washington Post

Many Western analysts see China’s foreign policy as intransigent, particularly regarding the South China Sea. With a new president in the Philippines and a new president-elect in the United States, is Beijing likely to shift its stance in the region?

My research suggests China is more willing to compromise than we might expect. In recent weeks, Chinese coast guard vessels let Filipino fishermen return to the waters near Scarborough Shoal after boxing them out since 2012.

Why the softer stance on the South China Sea now? For China, conceding smaller (and possibly less critical) territorial claims can serve Beijing’s larger strategic interests. In fact, one analysis shows that Beijing compromised on a majority of its territorial disputes — often to improve ties with its neighbors.

Filipino fisherman wades from boat to shore with part of the crew’s catch. Fishermen who go to the South China Sea report that their catches have gotten smaller in recent years. Credit Adam Dean, National Geographic

China has been aggressively occupying the South China Sea

Until recently, Beijing had offered few concessions in the South China Sea. After driving Vietnamese troops from several features in the Spratly Islands in 1988, in 1995 China occupied Mischief Reef, also a Filipino claim.

After a standoff at Scarborough Shoal in 2012, Beijing and Manila agreed to mutual withdrawal, but Chinese government vessels kept Filipino fisherman from the area. By 2015, Beijing’s island-building elsewhere in the region transformed several shoals into artificial islands, complete with runways and other facilities.

Under President Benigno Aquino Jr., in January 2013, the Philippines challenged China’s vast South China Sea claim by filing an arbitration case before a U.N. Law of the Sea tribunal. A big concern was that Scarborough Shoal would be the next island-building project. Located within the Philippines exclusive economic zone and only about 123 miles west of Subic naval base, a military base on Scarborough Shoal would extend China’s reach dangerously close to Manila.

The U.S. looks for strategic partners

Washington had already put Beijing on notice. In July 2010, Secretary of State Hillary Clinton stated that “while the United States does not take sides on the competing territorial disputes over land features in the South China Sea … legitimate claims to maritime space in the South China Sea should be derived solely from legitimate claims to land features.” Other U.S. government statements rejected China’s “nine-dash line” claims as inconsistent with international law.


This map, taken from a 2014 State Department study, shows Beijing’s claims by comparing the two versions (1947 and 2009) of the “nine-dashed line map” of the South China Sea. The study also notes that the 2009 dashed lines (in red) appear to be drawn closer to the surrounding coastal states than the 1947 lines, shown in green. (Source: http://www.state.gov/documents/organization/234936.pdf)

The U.S. policy on the South China Sea called for strengthening partners in Southeast Asia, to balance against China. In 2011, Australia and the United States struck a deal to rotate 2,500 Marines through Darwin. In 2014, the Philippines signed the Enhanced Defense Cooperation Agreement with the United States, which calls for the rotation of U.S. military forces to Filipino military bases. Vietnam also saw Washington’s reassurances as support for Hanoi’s position against China.

The election of Donald Trump as U.S. president-elect is a new factor for the Chinese to consider. Beijing knew, based on Clinton’s past behavior, that as president, she would likely have taken a hard line opposing China’s expansionist policies in the South China Sea. Some analysts speculate that Trump will not challenge the Chinese over maritime matters because he is more interested in engaging the Chinese economically.

Former CIA chief James Woolsey, now a senior adviser for national security to Trump, wrote in the South China Morning Post that while Trump will be more scrupulous about getting involved around the world, the United States is “the holder of the balance of power in Asian and is likely to remain determined to protect its allies against Chinese overreach.”

 

Woolsey

Is China doing its own rebalancing?

In July 2016, the U.N. tribunal rejected China’s claims and ruled that the Scarborough Shoal blockade was illegal. Beijing rejected the tribunal’s jurisdiction, raising new fears in Southeast Asia that China might look to turn Scarborough Shoal into another artificial island with military capabilities. Even before the decision was announced, some analysts predicted that Beijing’s efforts might backfire, effectively giving the United States a way to rally Southeast Asian states against China.

The June 2016 election of the deeply anti-American Rodrigo Duterte as president of the Philippines provided another twist, effectively giving Beijing an opening for rapprochement. Beijing reacted angrily in July, declaring it would never accept the judgment of the arbitration tribunal, but China then opened the door for negotiations. Duterte responded by sending former president Fidel Ramos to engage the Chinese and set the stage for formal talks.

The Chinese gambit seemed to work. In October 2016, the Chinese and Filipino presidents met for discussions. Beijing rewarded Duterte’s anti-American stance by agreeing to ease off in the Scarborough Shoal.

China’s Foreign Ministry spokesperson concluded that with Duterte’s pro-China policies, “bilateral relations have turned to a new page of all-around improvement. Under such circumstances, it is fully possible for the two countries to return to the track of managing disputes through consultation and focusing on cooperation.” Duterte reciprocated by ordering the end of U.S.-Philippines joint patrols of the South China Sea, maneuvers that had antagonized Beijing.

There’s a parallel effort to improve ties with Malaysia

Beijing’s tactic may be working with Malaysia, too, another country with a territorial dispute with China. Malaysia has welcomed U.S. aircraft carriers and allowed U.S. P-8 Poseidon aircraft to use its bases for South China Sea patrols. Malaysia also has a defense agreement with Singapore, Australia, New Zealand and the United Kingdom.

In June 2016, Kuala Lumpur showed its frustration over China’s behavior in the South China Sea by pushing for an ASEAN statement critical of China that was released — and then retracted following a special ASEAN-China foreign ministers meeting.

As U.S. relations with Malaysia frayed over recent corruption charges by the U.S. Justice Department, Beijing seized the opportunity to improve its own bilateral ties. During Malaysian Prime Minister Najib Razak’s October visit to Beijing, China offered to sell Malaysia fast missile-carrying patrol boats.

Meet the new, friendly neighbor?

In the past, China has successfully used compromise territorial settlements to enhance friendly relations with its neighbors, if not formal alliances. In the late 1950s, Beijing surrendered control over a small offshore island to Vietnam in an effort to remove friction in Sino-Vietnamese relations in the face of a growing American threat along China’s southern border. Again, in the 1970s, when China was worried about the growing Soviet threat, Beijing willingly set aside the Sino-Japanese Senkaku Islands dispute to facilitate the Japan-China Peace and Friendship Treaty that included a specific “anti-hegemony” clause, a clear jab at the Soviet Union.

After the United States pivoted to Asia in 2012 and began to enhance its military alliances and build partnerships in the region, Beijing now seems to be responding by showing some flexibility and willingness to negotiate over disputed territory. If Beijing’s past behavior is any indication, compromise resolutions are possible when they serve Beijing’s larger strategic interests.

Eric Hyer is an associate professor of political science and the coordinator for Asian studies at Brigham Young University. His research focuses on Indo-Pacific security. His most recent book is “The Pragmatic Dragon: China’s Grand Strategy and Boundary Settlements.”

https://www.washingtonpost.com/news/monkey-cage/wp/2016/11/16/is-china-ready-to-budge-on-the-south-china-sea-heres-why-compromise-is-possible/

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Related:

U.S. President Elect Donald Trump meeting with japan’s Prime Minister Shinzo Abe at Trump Tower, November 17, 2016.

Chinese bomber over Scarborough Shoal

A Chinese fishing boat catches fires during an inspection by the South Korean coastguard in September. File photo: AP
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Chinese fishing fleet

On July 12, 2016, the Permanent Court of Arbitration in The Hague said this claim by China was not valid.

South China Sea: Is China in Compliance with the 15 Rulings of The Hague Court for Arbitration on July 12 ?

November 3, 2016

By Julian Ku, Chris Mirasola

Wednesday, November 2, 2016, 12:24 PM

Earlier this week we reassessed China’s compliance with 15 rulings contained in the July 12 U.N. Convention on the Law of the Sea arbitral award. As of this past weekend, Philippine government statements and testimonials from fishermen indicated that Manila had recovered the ability to fish at Scarborough Shoal. We argued that, based on these developments, China is now compliant with the arbitral tribunal’s decision that the Philippines is entitled to “traditional fishing at Scarborough Shoal.”

Reports over the past few days, however, indicate that Philippines Defense Secretary Delfin Lorenzana was incorrect when he stated that “there are no longer Chinese ships, Coastguard or navy, in the Scarborough area.” More specifically, analysts are disputing whether Filipino fishermen have regained access to the lagoon inside Scarborough Shoal.

At least two Filipino news outlets have used language suggesting that fishermen have access to the lagoon. A report from GMA stated, “News of Filipinos resuming fishing activities in the lagoon” (emphasis added). ABS-CBN News found that “[a] group of Filipino fishermen successfully returned from a fishing trip in the disputed Scarborough Shoal on Tuesday” (emphasis added). Satellite imagery from the Asia Maritime Transparency Initiative, however, cast doubt on this account. As of October 29th, satellites showed a China Coast Guard vessel at the mouth of the lagoon and had not detected any Filipino fishing activities within Scarborough Shoal. AMTI notes that this situation, wherein Filipino fishermen are able to approach but not enter the lagoon at Scarborough, has been a recurring one since China took control of the shoal in 2012.

If these images do, in fact, mean that Filipino fishermen do not have access to the lagoon, does this change our assessment that China is compliant with the tribunal’s decision regarding Submission 10? In short, no. This is because (1) the tribunal’s decision does not require that compliance include access to the lagoon and (2) the tribunal gave both China and the Philippines broad authority to define the scope of traditional fishing rights.

First, Submission 10 found that: “Scarborough Shoal has been a traditional fishing ground for fishermen of many nationalities and DECLARES that China has, through the operation of its official vessels at Scarborough Shoal from May 2012 onwards, unlawfully prevented fishermen from the Philippines from engaging in traditional fishing at Scarborough Shoal,” PCA decision ¶1203(b)(11).

On its own terms, this judgment does not indicate whether the Philippines is entitled to traditional fishing rights around Scarborough Shoal, within the lagoon, or both. Other portions of the tribunal’s analysis are no more availing. The tribunal, for example, was “satisfied that the complete prevention by China of fishing by Filipinos atScarborough Shoal over significant periods of time after May 2012 is not compatible with the respect due under international law to the traditional fishing rights of Filipino fishermen” (¶812, emphasis added). In characterizing the Philippines’ evidence establishing a traditional fisheries right, the tribunal found that “at least some of the fishing carried out at Scarborough Shoal has been of a traditional, artisanal nature” (¶807, emphasis added).

Second, the tribunal found that a coastal State may “assess[] the scope of traditional fishing to determine, in good faith, the threshold of scale and technological development beyond which it would no longer accept that fishing by foreign nationals is traditional in nature” (¶809). In effect, the tribunal is arguing that concerned parties in each individual case, subject to some general limiting principles discussed elsewhere in the decision, are largely entitled to define the meaning of “traditional fishing” rights. Looking to Scarborough Shoal, China and the Philippines, both of which are entitled to traditional fishing rights in this area, would be allowed to determine whether traditional fishing must necessarily include rights to fish within the lagoon.

Statements from Philippine government officials and Filipino fishermen suggest that the current level of access to Scarborough Shoal accords with their understanding of traditional fishing rights at this location. National Security Adviser Hermogenes Esperon, for example, said that while there is no agreement, “our fishermen are no longer being accosted, no longer being forced out, so we can say things are now friendly.” Some fishermen reflected a similar sentiment, one of whom told reporters that “We can now recover our losses . . . . We are happy and we hope that this will continue.”

There is another reason to think that the tribunal’s award does not extend the Philippines’ traditional fishing rights to inside the lagoon.  Under the tribunal’s award, Scarborough Shoal is a high-tide feature that constitutes a “rock” entitled to a territorial sea, but no exclusive economic zone (¶554).  As a rock entitled to a territorial sea, a state sovereign over Scarborough (China or the Philippines) is allowed to set a baseline for determining its territorial sea.  All waters to the “landward side” of such a baseline are “internal waters” under UNCLOS art. 8.  Indeed, the UN Division on Ocean and Law of the Sea Affairs has published a study suggesting lagoons are typically treated as internal waters.  If correct, the lagoon at Scarborough Shoal may qualify as “internal waters” over which a state has no duty to extend traditional fishing rights.  The tribunal suggested as much when it found that traditional fishing rights are preserved only in archipelagic waters and the territorial sea (¶804(a, c)).  Put another way, if the lagoon at Scarborough Shoal constitutes “internal waters,” then the tribunal’s award probably could not require China to allow Filipino fishermen inside the lagoon. As the tribunal reaffirmed, however, this does not mean that UNCLOS precludes States from agreeing to bilateral fishing agreements in other waters, e.g., internal waters or the exclusive economic zone (¶804(b)).

In sum, we find that while the tribunal certainly was firm in reaffirming Manila’s right to traditional fishing at Scarborough Shoal, the terms of its decision provide China and the Philippines considerable room to negotiate what this right should mean in practice.

Nevertheless, we do not mean to argue that this more modest understanding of historic fishing rights is the most that the Philippines could achieve at Scarborough Shoal. There is an altogether separate policy question of whether Manila would gain more by asserting that these traditional fishing rights should include waters within the lagoon. This more expansive understanding would have a number of benefits, most obviously including greater freedom of movement and access for Philippine fishermen. And the Philippines would have a historic basis for advancing such a claim, as before 2012 it was common for its fishermen to access the lagoon.

Looking to the medium term, this more expansive conception of traditional fishing rights might also benefit the Philippines by complicating the legal basis of potential island-building activities at Scarborough Shoal. If Manila maintains that the lagoon represents traditional fishing grounds, it would presumably not be permissible for China, or any other State with sovereign claims to Scarborough Shoal, to diminish that right by turning the lagoon into an artificial island. Given that the tribunal did not take a stand on conflicting sovereign claims, this would present yet another legal obstacle to potential Chinese island-building at Scarborough Shoal.

As we stated earlier in this week, nothing about this de facto, informal, and nonbinding agreement between China and the Philippines is irreversible. Further developments may reveal that China has indeed entirely repudiated Philippine traditional fishing rights, both inside and outside of the lagoon. For the time being, however, we should remain mindful of the considerable room for negotiation, compromise, and capitulation allowed by portions of the arbitral decision.

 Source: https://www.lawfareblog.com/tracking-chinas-compliance-south-china-sea-arbitral-award-traditional-fishing-rights-inside-lagoon
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File photo provided by Renato Etac, Chinese Coast Guard members, wearing black caps and orange life vests, approach Filipino fishermen as they confront them off Scarborough Shoal at South China Sea in northwestern Philippines. Philippine President Rodrigo Duterte said Sunday, Oct. 23, 2016, Filipino fishermen may be able to return to the China-held Scarborough Shoal in a few days after he discussed the territorial rift with Chinese leaders during his trip to Beijing this past week. Renato Etac via AP, File

   (From July 12, 2016)

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Above Chinese chart shows China’s “Nine Dash Line.” China says it owns all ocean territory north of the Nine Dash Line. There is no international legal precedent for this claim.  On July 12, 2016, the Permanent Court of Arbitration in The Hague said this claim by China was not valid.

South China Sea: China at Scarborough Shoal is one of the biggest challenges for Philippine national security and sovereignty

September 11, 2016
 

Last July, the Arbitration Tribunal in the Hague ruled that the waters around Scarborough Shoal lay within the Economic Exclusive Zone of the Philippines and that Filipino fishermen possessed traditional fishing rights at the Shoal.

China has chosen to reject the decision and continues to keep Filipino fishermen out of the area. A think tank, the CSSI, recently reported: “ We’re seeing bullying, harassment and ramming of vessels from countries whose coast guard and fishing vessels are much smaller, often to assert sovereignty throughout the South China Sea. In the meantime, while Filipino fishermen are being prevented from fishing, Chinese fishermen have been actively fishing in Scarborough Shoal. Recently, even large purse seiner fishing boats have been spotted in the area.

While it has become a common sight to see hundreds of Chinese fishing vessels in the area, it has also become noticeable that China has increased the number of its combat vessels patrolling the Scarborough Shoal. From the usual two to three vessels, it has now increased to more than a dozen combat vessels.

Recently, China sent seven coast guard vessels and over 200 hundred fishing vessels to the waters around Senkaku Island in the East China Sea – an area claimed by Japan. This incursion drew protest and a strong reaction from Japan. Is China planning to do the same thing in the Scarborough Shoal?

Building a Scarborough base

For the Philippines, reclaiming traditional fishing rights in the Scarborough Shoal area is the immediate concern. However, the more critical and far reaching potential danger to Philippine security is the much talked about plan of China to convert Scarborough Shoal into an artificial island and build a military based on an area only 150 nautical miles west of Luzon.

From all indications, it is apparent that China is definitely planning to build another artificial island 150 miles west of the Philippines. It would seem that as far as China is concerned, the only question is determining the proper time.

A recent report in the Hong Kong based  South China Morning Post stated that China was just waiting for the completion of the G20 Summit meeting in Beijing before it will start dredging the Scarborough Shoal preparatory to building an artificial island.

There have been speculations that Beijing might begin reclamation work right before the November elections in the United States. The transition from one administration to another might provide an opportunity for Beijing to take aggressive actions without any immediate reprisal from a lame duck administration.

Another Chinese policy paper circulating among Beijing’s foreign policy think tanks proposes that any reclamation effort should wait until after the 2017 People’s Congress or after Xi Jinping has consolidated all the powers.

Why is reclaiming Scarborough Shoal so important to China’s strategy in the South China Sea? A look at any regional map will easily provide the answer.

Controlling and militarizing the Scarborough Shoal will give China virtual control over the South China Sea. This will, in turn, tilt the balance of power in East Asia in favour of China. Eventually, this could lead to China attaining its goal of being the supreme power in the Asia Pacific region.

An air and naval facility in the Scarborough Shoal, together with the seven islands and bases in the Spratly area, will give China effective control over air and maritime access to the waters of the South China Sea. For example, a strategic triangle could be established by China by linking reefs and artificial islands from the Paracel Islands to the west and the Spratlys to the south and to Scarborough to the east. That would allow it to enforce an Air Defense Identification Zone over the whole area and require all commercial and military aircraft to seek permission from China before being allowed to fly over the South China Sea.

A base in Scarborough would also give China full radar coverage over most of Luzon including Subic and Clark. It would also give China the capability to declare an Air Defense Identification Zone over the Philippine Exclusive Economic Zone or the West Philippine Sea.

There is one big difference between the disputes in Spratly and Scarborough. The disputed reefs and shoals in the Spratlys are the subject of multiple rival claims from China and other Southeast Asian countries including the Philippines, Malaysia, and Vietnam. The Scarborough Shoal pits the Philippines directly against China.

Is Scarborough a Red Line?

It seems that China fully intends, sooner or later, to build an artificial island in Scarborough even at the risk of a military confrontation with the United States. It is also possible that China is testing whether the USA is really willing to risk conflict over Scarborough. After all, the American government has never really publicly stated that it would be prepared to militarily confront China if it builds an artificial island.

A geopolitical scholar has theorized that the United States will not take any step unless the Philippines takes the initiative to first confront China with whatever forces it can muster. Only then can the United States step in to aid an ally.

The Scarborough Shoal will continue to be one of the biggest challenges for Philippine national  security and sovereignty.

http://www.philstar.com/opinion/2016/09/11/1622467/scarborough-challenge

Related:

 (Contains links to related articles)

 (Contains links to many previous articles on the Philippines and the South China Sea)

   (From July 12, 2016)

Above Chinese chart shows China’s “Nine Dash Line.” China says it owns all ocean territory north of the Nine Dash Line. There is no international legal precedent for this claim.  On July 12, 2016, the Permanent Court of Arbitration in The Hague said this claim by China was not valid.

The chart below shows in stark terms the vast ocean area China is claiming. China says it can stop shipping or air traffic in this zone any time it wants and has talked about establishing an Air Defense identification Zone (ADIZ) here.  On July 12, 2016, the Permanent Court of Arbitration in The Hague said this claim by China was not valid.

 

China, Russia naval drill in South China Sea to begin Monday

September 11, 2016

Reuters

Sun Sep 11, 2016 2:27am EDT

China and Russia will hold eight days of naval drills in the South China Sea off southern China’s Guangdong province starting from Monday, China’s navy said.

The exercises come at a time of heightened tension in the contested waters after an arbitration court in The Hague ruled in July that China did not have historic rights to the South China Sea and criticized its environmental destruction there.

China rejected the ruling and refused to participate in the case.

 

China and Russia have been holding joint military exercises more frequently in recent years

The “Joint Sea-2016” exercise will feature surface ships, submarines, fixed-wing aircraft, ship-borne helicopters and marines, the Chinese navy said in a statement on Sunday on its official microblog.

The two countries will carry out defense, rescue and anti-submarine operations, as well as “island seizing” and other activities, it added.

Marines will participate in live-fire drills, island defense and landing operations in what will be the largest operation ever taken together by the two countries’ navies, the statement said.

China announced that it had called the “routine” naval exercise in July, saying the drills were aimed at strengthening cooperation and not aimed at any other country.

China and Russia are veto-wielding members of the U.N. Security Council, and have held similar views on many major issues such as the crisis in Syria, often putting them at odds with the United States and Western Europe.

Last year, they held joint military drills in the Sea of Japan and the Mediterranean.

China claims most of the South China Sea, through which more than $5 trillion of trade moves annually. Brunei, Malaysia, the Philippines, Taiwan and Vietnam have rival claims.

China has repeatedly blamed the United States for stoking tension in the region through its military patrols, and of taking sides in the dispute.

The United States has sought to assert its right to freedom of navigation in the South China Sea with its patrols and denies taking sides in the territorial disputes.

Russia has been a strong backer of China’s stance on the arbitration case, which was brought by the Philippines.

(Reporting by Ben Blanchard; Editing by Richard Pullin)

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Japan “Seriously Concerned” By China’s Aggression in East China Sea, South China Sea

September 8, 2016

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Japan’s Prime Minister Shinzo Abe

AFP

VIENTIANNE, Laos —Japan is “seriously concerned” about Beijing’s increasingly muscular claims in the South China Sea, Prime Minister Shinzo Abe told Asian leaders Wednesday.

Beijing insists it has sovereign rights to almost all of the strategically vital waters, where the Philippines, Vietnam, Malaysia, Brunei and Taiwan also have claims.

It also has a simmering territorial row with Tokyo over disputed islands in the East China Sea.

“I am seriously concerned with the continuing attempts to change unilaterally the status quo in the East and South China Sea,” Abe said at a regional summit in Laos hosted by the 10-member Association of Southeast Asian Nations (ASEAN).

“I hope that both parties to the dispute in the South China Sea will abide by the ruling by the China-Philippines tribunal court, which legally binds the parties to the dispute, and it will lead to a peaceful settlement of the dispute,” he added, according to a briefing by foreign press secretary Yasuhisa Kawamura.

The gathering in Laos is the first ASEAN meeting since an international court ruled in July that China’s claims to the sea had no legal basis, and that its artificial island building program in the waters was illegal.

It was a sweeping victory for the Philippines, which filed the case in 2013.

China has ignored the ruling, announcing penalties for “illegal” fishing in the sea and continuing its reclamation activities.

Japan’s dispute with China is over uninhabited islands controlled by Tokyo. They are known as the Senkakus in Japan and as the Diaoyus in China.

Related:

China Coast Guard — In this photo released by the 11th Regional Coast Guard Headquarters of Japan, a Chinese coastguard vessel sails near the disputed islands in the East China Sea on August 6, 2016. Japan said this ship was watching over more than 200 Chinese fishing boats fishing illegally in Japanese waters. AP

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Chinese J-11 Fighters Deployed To Woody Island In South China Sea

China J-11 Flanker fighters operating from Woody Island located in the northern portion of the South China Sea. Vietnam, the Philippines and other nations have complained about China’s militarization in the South China Sea

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Southeast Asian leaders likely to “cave in” to China

September 5, 2016

VIENTIANE — Southeast Asian leaders are likely to avoid any official mention at a summit this week of an arbitration ruling that shot down China’s expansive territorial claims in the South China Sea, according to a draft of their final declaration, in a victory for Beijing’s diplomatic clout.

But the draft also expresses strongly stated concern about Beijing’s construction of man-made islands in the South China Sea, which Southeast Asian countries fear could destabilize the region.

The draft, obtained Monday by The Associated Press, is being fine-tuned by officials for the leaders to approve ahead of the summit of the Association of Southeast Asian Nations that begins Tuesday in the Laotian capital. The final version is to be released Thursday, but most major points including those concerning the South China Sea are expected to remain largely unchanged.

Philippine President Rodrigo Duterte also plans to ask China’s premier at a meeting between ASEAN and other regional leaders whether China is trying to develop another disputed reef, Scarborough Shoal, off his country’s northwestern coast, Philippine Defense Secretary Delfin Lorenzana said.

Duterte said last week that the Philippine coast guard has sighted Chinese barges at Scarborough, which he said could presage the transformation of the Chinese-held reef into another man-made island. One of the Chinese vessels had what appeared to be a crane, according to a Philippine official who did not want to be identified because he was not authorized to discuss classified intelligence.

Lorenzana said surveillance photos taken from boats were blurry so the government deployed a plane on Saturday which spotted 10 Chinese ships, including four coast guard vessels, four others that looked like barges and two vessels that could carry people. One of the vessels had drums and tubes.

“This is very worrisome because it’s ours,” Lorenzana told reporters in Vientiane. “If they succeed in building an island and construct (structures) there, we can’t take it back anymore.”

The Philippine government asked China’s ambassador in Manila about the sighting of the Chinese barges, but the envoy denied any island building was under way, Philippine Foreign Secretary Perfecto Yasay told the AP.

China sparked widespread alarm when it converted seven reefs in the Spratly Islands into islands that the United States says could be transformed into military bases to reinforce Beijing’s territorial claims and intimidate rival claimant countries.

“We remain seriously concerned over recent and ongoing developments and took note of the concerns expressed by some leaders on the land reclamations and escalation of activities in the area,” the draft of the ASEAN leaders’ statement says. The reclamation and other acts “have eroded trust and confidence, increased tensions and may undermine peace, security and stability in the region.”

Duterte has taken a more conciliatory stance than his predecessor toward China. But a confirmation of Chinese reclamation activities at Scarborough Shoal, a rich fishing ground where Filipino fishermen have been forced away by Beijing’s coast guard, could impede relations.

U.S. officials have also expressed deep concern over the possibility of China developing Scarborough into an island or starting to erect concrete structures there, which could reinforce Beijing’s control over a swathe of the South China Sea.

Aside from China and the Philippines, Vietnam, Taiwan, Brunei and Malaysia have been contesting all or parts of the strategic waterway, an important route for commerce and oil that fuel Asia’s economies.

After China seized Scarborough following a tense 2012 maritime standoff, the Philippines took its territorial dispute with China to international arbitration, a move that was condemned by Beijing, which prefers one-on-one negotiations to prevent the United States and its allies from meddling.

In a landmark ruling in July, the arbitration tribunal invalidated China’s expansive claims, including in areas where Beijing built its islands, and admonished China for blocking Filipino fishermen at Scarborough, where it said both Chinese and Filipinos could fish.

China condemned the ruling as a sham and moved to prevent it from being recognized in ASEAN communiques, something that its close ally, Cambodia, has backed in meetings of the 10-nation bloc, which operates by consensus.

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Peace and Freedom Commentary

In the cauldron that is the South China Sea, China has never been so confident as it is today.

The top 20 economic power in the world are just completing visits to Xi Jinping in China — where events started with a not very nuanced insult to the President of the United States.

Association of Southeast Asian Nations (ASEAN) leaders are assembling for a meeting in one of China’s loyal clients, Laos. Together with Cambodia, Laos gives China assurance than no ASEAN consensus can be reached that will say anything that might cause Chinese disapproval. In fact, the word “China” may never even be spoken publicly in the Laotian capital this week — because that’s what China wants.

China already has military installations peppered throughout the South China Sea Sea, and is a position to control all the shipping, air traffic, commerce, natural resources, food, and energy withing the vast domain of the South China Sea.

China’s de facto “ownership” of the South China Sea is a tremendous conquest, without firing a shot, especially since less than 30 days ago the Permanent Court for Arbitration in the Hague handed down a decision that China’s “nine dash line” was without merit and illegal.

But never mind international law — a figment of the imagination of other, lesser nations. Western nations. Everyone in the world world understands Chinese dominion and greatness — never mind if a few human rights get squashed.

The Philippines seems now to have signed up to the Chinese way of thinking. What would have been considered mass murder in the Philippines last April, is now considered anti-drug law enforcement. What may have been a pipe-bomb or two of unknown origin, now has the Filipino people on the cusp of martial law, from Luzon Strait and Baguio to the Sulu Sea.

And without much proof that anyone has seen.

Now ASEAN and the world at large watches as China is about to control the seas from Taiwan to Singapore and beyond, both northward toward Japan and westward past Singapore and into the Indian Ocean.

China could move its grand strategy ahead this week in Vientiane, without so much as a public mention of “China.”

Pretty amazing state of affairs.

But there was a glimmer of light from Hong Kong, where some plucky youngsters will become a part of the Legislative Council and at least keep some discussion of democracy and human rights rights alive in Asia, for as long as China cares to allow them to imagine freedom….

We at Peace and Freedom have catalogued much of the history of recent events and issues around the South China Sea for the past five years. Use these keywords to see more:

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Photo: Chinese H-6 bomber patrols near Scarborough Shoal in the Philippines. Xinhua photo