Posts Tagged ‘UNCLOS’

South China Sea: ASEAN Goes Soft on China

November 16, 2017
Chinese Premier Li Keqiang talks during the 20th ASEAN China Summit in Manila, Philippines, Monday, Nov. 13, 2017. Linus Escandor/Pool Photo via AP

MANILA, Philippines — The ASEAN, under Philippine chairmanship, declined to mention China’s expansive island-building activities in the South China Sea in its chairman statement.

In its chairman statement released after the 31st ASEAN Summit in Manila, the ASEAN merely mentioned “non-militarization” and “self-restraint” among claimant states.

Chinese Premier Li Keqiang, left, gestures to Philippine President Rodrigo Duterte as they prepare for their bilateral meeting following a welcome ceremony at Malacanang Palace grounds in Manila, Philippines, Wednesday, Nov. 15, 2017. Li is on an official visit to the country. AP/Bullit Marquez

“In this regard, we further reaffirmed the need to enhance mutual trust and confidence, emphasized the importance of non-militarization and self-restraint in the conduct of all activities by claimants and all other states,” the statement read.

This echoed the joint communique issued during the ASEAN Foreign Ministers’ Meeting in Manila last August, where the ministers said they “took note of the concerns expressed by some ministers on the land reclamations and activities in the area, which have eroded trust and confidence, increased tensions and may undermine peace, security and stability in the region.”

READ: ASEAN stresses self-restraint, non-militarization in South China Sea

The 10-member regional bloc welcomed its improving relations with China following the adoption of the framework of the Code of Conduct (COC) in the South China Sea last August.

The ASEAN is looking forward to the start of the negotiations on the COC, which was announced at the ASEAN-China Summit in Manila.

The chairman statement stressed the need to adhere to a peaceful resolution of disputes, in accordance with principles of international law and the 1982 United Nations Convention on the Law of the Sea (UNCLOS).

The statement, however, did not mention the arbitral ruling of a United Nations-backed tribunal based in the Hague, Netherlands.

RELATED: With no reference to arbitral ruling, ASEAN to pursue sea code

In July 2016, the international tribunal issued a landmark award in favor of the Philippines, invalidating China’s nine-dash line claim over the South China Sea. The tribunal also ruled that Beijing violated its commitment under the UNCLOS by constructing artificial islands in the Philippines’ exclusive economic zone.

The regional bloc, meanwhile, reaffirmed its commitment to the full and effective implementation of the Declaration on the Conduct of the Parties in the South China Sea (DOC).

“We reaffirmed our commitment to the full and effective implementation of the DOC in its entirety, and the importance of undertaking confidence building and preventive measures to enhance, among others, trust and confidence amongst parties,” the statement read.

The ASEAN-China joint working group meeting on the implementation of the DOC is set to convene in Viet Nam early next year.

In a separate chairman statement of the 20th ASEAN-China Summit, the concerned parties “welcomed the positive developments in the South China Sea.”

The ASEAN and China reiterated their commitment to the implementation of the DOC. Implementation will include confidence-building measures and practical maritime cooperation.

FULL TEXT: Chairman’s statement for the 31st ASEAN Summit

http://www.philstar.com/headlines/2017/11/16/1759490/asean-goes-soft-china-sea-code-talks-start

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China says it has sovereignty over all the South China Sea north of its “nine dash line.” On July 12, 2016, the Permanent Court of Arbitration  in The Hague said this claim by China was not valid. But China and the Philippine government then chose to ignore international law.

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South China Sea: Mattis Meets with Counterparts At ASEAN and Partner-Nation Defense Ministers

October 30, 2017
By Sarah Grant

Saturday, October 28, 2017, 4:26 PM

Water Wars: Mattis Meets with Counterparts at ADMM-Plus

South China Sea disputes took a back seat to North Korea and counterterrorism operations at the annual meeting of ASEAN and partner-nation defense ministers.

 

Photo credit: AFP

 

The annual ASEAN Defense Ministers’ Meeting (ADMM)-Plus took place in Clark, Philippines, on Oct. 23 and 24. Defense Secretary Jim Mattis attended the meeting, which brings together ASEAN defense ministers and their counterparts from non-member countries with interests in the region. In full-group discussions, the ministers focused largely on North Korean missile testing and joint counterterrorism efforts, instead of on the conflict in the South China Sea. ASEAN, led this year by the Philippines, has taken a more conciliatory tone towards Beijing and emphasized opportunities for collaboration rather than risks of confrontation. Philippine President Rodrigo Duterte, in an Oct. 19 speech at the ASEAN High-Level Forum, said it was the “correct step to avoid confrontational talks with almost all of the parties concerned” and instead concentrate on reaching an amicable solution that respects each party’s economic interests.”

The ADMM parties did, however, declare their commitment to “[f]reedom of navigation, non-militarization, [and a] rules-based world following international rules and conventions,” as Philippine Defense Secretary Delfin Lorenzana said. The Joint Declaration issued after Monday’s session stated “the importance of maintaining and promoting peace, security, stability, safety and freedom of navigation in and over-flight above the South China Sea as well as the need to enhance mutual trust and confidence, exercise self-restraint in the conduct of activities and avoid actions that may further complicate the situation, and pursue peaceful resolution of disputes in accordance with international law, including the 1982 United Nations Convention on the Law of the Sea (UNCLOS).” It further emphasized “the commitment of all parties to fully and effectively implement the Declaration on the Conduct of Parties in the South China Sea (DOC), ASEAN’s Six-Point Principles on the South China Sea, and…the importance of expeditiously working towards an early conclusion of the Code of Conduct in the South China Sea (COC).”

On Oct. 23, on the sidelines of ADMM-Plus, Mattis met with Japanese Defense Minister Itsunori Onodera. In that meeting, Mattis reaffirmed that Article 5 of the U.S.-Japan Security Treaty applies to the Senkaku Islands and that the United States remains opposed to unilateral coercive actions by claimants in the South China Sea, including the reclamation and militarization of disputed features. On Oct. 24, Mattis spoke with Duterte, Lorenzana, and Malaysian Defense Minister Hishammuddin Tun Hussein.

The Philippines will next host the East Asia Summit (EAS) from Nov. 13-14. President Trump is scheduled to meet with President Duterte and other ASEAN leaders in Manila on November 12-13, at the end of a 12-day Asia trip. He will then return to the United States and Secretary of State Rex Tillerson will attend the larger gathering on the 14th in his place.

In Other News…

United States

The USS Roosevelt and USS Nimitz aircraft carrier strike groups arrived in the Pacific this week, joining the USS Ronald Reagan. A joint exercise involving the three strike groups is in the works, a U.S. official said, amid high tensions on the Korean Peninsula and coincident with President Donald Trump’s upcoming visit to Asia. Although carrier strike groups routinely cycle through the Western Pacific, this would be the first time in a decade that three exercised together.

China

China also made progress in its relationship with ASEAN at the ADMM-Plus, securing an agreement to conduct a joint maritime exercise. Beijing first proposed such an exercise in Oct. 2015, as a capstone of on-going confidence-building measures. Announcing the plan, Singaporean Defense Minister Ng Eng Hen said that the joint exercise would heighten mutual understanding and trust among the parties. Ng did not provide further details on what the exercise would likely entail, but has previously suggested practicing the Code of Unplanned Encounters at Sea.

The People’s Liberation Army Navy’s (PLAN) is adding a marine rescue squadron to its South Sea Fleet, which has responsibility for operations in the South China Sea; the PLAN previously had only one such squadron, assigned to its North Sea Fleet. The main duties of such squadrons include deploying rescue craft, equipment and divers to respond to emergencies, minimizing losses in accidents and protecting marine engineers, and carrying out rescue operations at sea as necessary. Ni Lexiong, a Shanghai-based military affairs commentator, said the establishment of the rescue squadron in the South Sea Fleet “is a sign that the fleet is getting itself more ready for battle…. Rescue squadrons are crucial in war.” South Sea Fleet political commissar Ke Hehai, quoted on Thursday in the PLA Daily, similarly commented “the army has to be prepared for battle.”

Japan/Philippines

Philippine President Duterte will arrive in Japan on Oct. 29 for a three-day visit, including talks with Prime Minister Shinzo Abe. Chief Cabinet Secretary Yoshihide Suga said on Wednesday that “Japan and the Philippines have close ties, and our strategic partnership can promote stability in the region.”

Indonesia

The Indonesian Navy (TNI-AL) has decided to postpone the retirement of its Ahmad Yani-class frigates amid operational requirements, especially the South China Sea, that necessitate continued service of the ships. TNI-AL planned to retire one frigate per year from 2017-2022, but the schedule has been pushed back in response to ongoing service obligations and delays in the induction of the Martadinata (SIGMA 10514) class, the replacement for the Ahmad Yani class.

Analysis and Commentary

In a series of posts for the Asia Maritime Transparency Initiative, Alex Vuving, a professor at the Daniel K. Inouye Asia-Pacific Center for Security Studies, reviews recent arms expenditures by South China Sea claimants Vietnam, the Philippines and Malaysia. In the first article, “Force Buildup in the South China Sea: The Myth of an Arms Race,” Vuving writes that trends in defense capability-development suggest “three major Southeast Asian claimants in the South China Sea have little intention of achieving military parity or superiority.” Instead, they aim to achieve “minimal deterrence” by building “just enough capability to make potential aggressors think twice before attacking them.” The second article focuses specifically on Malaysia, listing the major platforms the military currently has in service and describing its upgrade and acquisition plans. Malaysia, Vuving concludes, “feels the least urgent to redress existing gaps in its defense capabilities,” and as a result, its “force modernization remains very limited with no signs of competition with the other claimants.”

In an interview with The Strategist, the commentary and analysis website of the Australian Strategic Policy Institute, Adm. Christophe Prazuck, chief of the French Navy, highlights the deepening relationship between the French and Australian navies and France’s growing military engagement in the region. “A key reason for our involvement in the region is our new strategic relationship with Australia,” Prazuck says. “What’s happening in the region with the weakening of the law of the sea is important to us. We have been sailing in the area and particularly in the disputed areas to make our point as a maritime country.”

Ambassador David Shear, former U.S. assistant secretary of defense for Asian and Pacific security affairs and acting principal deputy undersecretary of defense for policy, delivered a series of lectures in Australia on the theme “Trump, China, and the dual crisis in America’s Asia policy.” Shear says “an erratic administration has undermined allied confidence in the credibility of our commitments in the Western Pacific, as our friends begin to question America’s long-term reliability as a trustworthy ally.” The possible result is the “slippage of American authority, the decline of U.S. economic salience, the constriction of U.S. military operations in the Western Pacific, and the gradual diminution of our alliances,” ending “with Beijing’s establishment of a Sino-centric economic and security order in Asia in which America plays a minimal role.” To protect the current order while U.S. policy is in disarray, Shear calls on U.S. allies to “[take] the initiative to build their own capabilities and [strengthen] cooperative ties among themselves.”

Carl Munoz covers the Chinese reaction to the spate of U.S. Navy collisions in the Pacific earlier this year for the Washington Times. Chinese analysts, writing in a Chinese military newspaper, attribute the accidents to an “overstretched sea service struggling to cope” with operations in the Pacific. “The U.S. Navy finds itself getting into accidents lately against the background of commonly entering other countries’ nearby seas and sensitive waters to undertake so-called patrols with ships in bad condition, personnel physically and spiritually exhausted, and with lax safety knowledge.”

Bonnie Glaser of the Center for Strategic and International Studies (CSIS) and Andrew Erickson of the U.S. Naval War College discuss China’s maritime militia in this week’s episode of the ChinaPower podcast. The conversation addresses the history of the maritime militia fleet, the training the militia receives, the ways the maritime militia is employed to strengthen China’s sovereignty claims in the South China, and how the United States can respond.

In the Lowy Institute’s The Interpreter, Glaser, along with CSIS fellow Matthew Funaiole, provides takeaways from China’s 19th Party Congress. President Xi Jinping’s message to the PLA “suggests a perceived need to be prepared to employ military power and hints at a greater willingness to do so in the future,” they say. Xi’s choice to “highlight the ‘steady progress’ in the construction of islands and reefs in the South China Sea as a major achievement of his first term…may suggest that China will prioritize strengthening its control over the contested waterway at the cost of rising friction with its neighbors and the U.S.”

 

Water Wars is our biweekly roundup of the latest news, analysis, and opinions related to ongoing tensions in the South and East China Seas. Please email Sarah Grant with breaking news, relevant documents, or corrections.

https://www.lawfareblog.com/water-wars-mattis-meets-counterparts-admm-plus

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Time for the US to Stop Losing Ground to China in the South China Sea

October 25, 2017

In September, I wrote two articles titled “How America Has Not Lost in the South China Sea (SCS)” and “How America Can Keep From Losing in the SCS” respectively. The former provided strategic perspectives and context to the uptick in tensions in the SCS following a year of relative calm since the International Tribunal of the Permanent Court of Arbitration at The Hague handed down its historic and sweeping award on maritime entitlements in the SCS. The latter examined ways and means the United States can regain the strategic initiative, recover the high ground of regional influence, and stave off losing in the SCS by imposing “real” strategic costs to China.

Since then, two developments have emerged in the SCS that compel Washington to push back against Beijing. If America does not, Chinese leaders will read continued U.S. passivity and acquiescence as tacit acknowledgement and implied consent to execute their strategic ambitions and strategies in the SCS unhindered and unchallenged.

Latest Chinese Legal Warfare

Nevertheless, Beijing hopes to reap some diplomatic and legal gains by replacing the NDL with the 4S. Hopeful benefits include circumventing the increasing censure over its widely disputed NDL claim; moderating extant reproach by adopting United Nations Convention on the Law of the Sea (UNCLOS) language; shaping the “law of the sea” by adopting a pseudo-UNCLOS approach; undermining last year’s Tribunal ruling by making a different sovereignty claim from the one found to be illegal and illegitimate; and seeking to allay growing regional concerns, gain potential regional partners, and garner regional good will by excluding (for now) many of Vietnam’s southern offshore oil blocks and possibly the contested Natuna Sea with Indonesia.Beijing has reportedly unveiled a new legal tactic to promote, assert, and advance its maritime claims in the SCS. The latest lawfare approach involves shifting away from the so-called (and universally not recognized) “nine-dash line (NDL)” claim to a narrower “Four shas (4S)” (Chinese for four sands) claim that more tightly connects the four contested island groups of Pratas Islands, Paracel Islands, Spratly Islands, and Macclesfield Bank. Beijing seemingly now wants to make the legal and diplomatic case (or at least cautiously put it out to gauge response) that the “Four shas” are China’s historical territorial waters, and part of its extended continental shelf and 200 nautical mile Exclusive Economic Zone (EEZ) — despite not offering any new substantive legal arguments or historical evidence to back up the new claim.

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In the South China Sea, fishermen wonder where they can fish without angering China

Interestingly, a scholar from the National Institute for SCS Studies published a thought piece in The Diplomat a month later that tries to explain and justify the apparent Chinese pivot from the NDL to the 4S. He makes the case that Beijing is admittedly engaging in lawfare, but that Washington has done so for many years as well and that it is acceptable and reasonable for both to do so. He intimates below that China and America are two great powers that should act accordingly with respect to the pursuit of their national interests, and more importantly, regard each other as equals on the world stage in accordance with a “new pattern of relations between great powers.”

Whether the use of this legal tool is disingenuous or clever – or both – China and the United States both use it in regard to the SCS… the latest example of China’s use of lawfare is its “4S” claim… a transition from its NDL claim to a more internationally legitimate position. With this “new” position, China is asserting sovereignty over four groups of features – the Paracels, the Spratlys, Pratas, and Macclesfield Bank. These claims are disputed by other countries. In the case of the submerged Macclesfield Bank, the claim is at odds with the prevalent interpretation of relevant existing international law.

But the real problem is that there are fundamental differences between China and the United States in interpretation of the relevant international law. Indeed, the U.S.-China struggle for control of the SCS is symptomatic of a much deeper clash of values, national interests, and perceived destinies. Their ongoing and intensifying confrontation there is driven by a fundamental disconnect in that they both see themselves as “exceptional” nations that have the “heaven sent” mission to lead and save humanity. So each considers it their right and destiny to dominate and shape the international order to fit their needs. As such, they have their own interpretations of international norms and rules like the Law of the Sea that further their national interest… For both, the existing international norms and rules do not apply if their observance would thwart the pursuit of their national interests.

Chinese Response to New U.S. FONOPS Campaign

Last month, the U.S. government announced the implementation of a new schedule of “regular” freedom of navigation operations (FONOPs) to challenge any excessive maritime claims in the SCS. The move addressed a major criticism of the operations under the previous administration; namely that their randomness and ambiguity made them seem compliant to political, diplomatic, and economic interests, diminishing their value as a strategic messaging and legal signaling tool. FONOPs will now be conducted in greater numbers; broader in scope; more complex; deliberate, calibrated, and quiet in manner; and under the authority of the U.S. Pacific Command rather than the National Security Council (and broader interagency process).

An aerial view of China occupied Subi Reef at Spratly Islands in disputed South China Sea. It is now one of China’s South China Sea military bases. © Reuters

This month, in accordance with the new schedule, America executed its fourth FONOP in just five months, a stark contrast to the Obama administration, which conducted just four FONOPs at irregular intervals from October 2015 to October 2016.

Chinese response to the USS Chafee’s FONOP near the Paracel Islands was expectedly swift and sharp. The Ministry of Foreign Affairs made the following pro forma remarks at a press conference after the operation:

On October 10, the missile destroyer USS Chafee entered China’s territorial sea off the Xisha [Paracel] Islands to carry out a so-called FONOPS without China’s approval… Xisha Islands are an inherent part of the Chinese territory. In accordance with the Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone, the Chinese government promulgated the baseline of the territorial sea off the Xisha Islands in May 1996. Relevant behavior of the U.S. warship has violated the Chinese law and relevant international law, severely undermined China’s sovereignty and security interests, put in jeopardy the life safety of the frontline personnel from both sides… Chinese government will continue to take firm measures to safeguard China’s territorial sovereignty and maritime rights and interests. We urge the U.S. side to faithfully respect China’s sovereignty and security interests as well as regional countries’ effort to uphold peace and stability in the SCS and stop such wrongdoings.

The Ministry of Defense repeated similar talking points on the same day:

Chinese Defense Ministry voiced strong opposition to the unauthorized entry of a U.S. warship into China’s waters off the Xisha Islands in the SCS. The Chinese navy dispatched a missile frigate, two fighter jets, and a helicopter to warn the U.S. ship away. USS Chafee entered China’s territorial waters near the Xisha islands… provocation infringed upon China’s sovereignty and security, harmed mutual trust between the two armies as well as regional stability. Chinese military will further strengthen its naval and air defense capability to safeguard its sovereignty and security…It is a critical stage for the development of the relationship between Chinese and American armies, and we demand the U.S. side earnestly take steps to correct its mistakes and inject positive energy into bilateral ties.

U.S. Response

The U.S. government has been rather quiet about China’s latest lawfare initiative. To date, very little attention has been paid to the new “4S” claim. Only a few news outlets have reported the new claim and analyzed the geopolitical ramifications. Whether deliberate or not, the timing could not have been better for Beijing considering Washington’s preoccupation with the crisis on the Korean peninsula. Nonetheless, America can ill-afford to let this nascent claim gain diplomatic and legal momentum and supplant the NDL claim uncontested. Washington must ask China for discussions and briefings on the new claim, and actively engage in the private and public domains. The United States must also challenge vague or problematic contents, and inquire how they comport with extant international maritime law (UNCLOS) and contribute to the regional security network, and if they do not, why not. Otherwise, silence concedes the strategic initiative to Beijing and allow it to control the strategic narrative.

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USS Chafee

U.S. Secretary of Defense James Mattis provided a terse, timely, and appropriate response when asked about Beijing’s protests against the latest FONOPS in the SCS by the USS Chafee: “We stay strictly in accordance with international law, so there’s no violation of anyone’s sovereignty.” FONOPs are and should be treated as normal naval operations – executed without notification or fanfare before, during, and after.

For future consideration, I suggest a short follow-on press release to remind all relevant parties on the purpose and intent of U.S. FONOPs. U.S. FONOPs challenge excessive maritime claims, not competing sovereignty claims; do not discriminate against states, but rather focus on the claims that individual states assert; are deliberate in nature, but are not deliberate provocations; uphold the intended meaning of the applicable international law; expect other states to follow international law consistently; and challenge unilateral restrictions, rather than accept rhetoric.

Amid the ongoing 19th National Congress of the Chinese Communist Party (CCP), President Xi Jinping appears to have consolidated greater power and authority and may feel less constrained and more confident to implement a more robust and assertive foreign policy in the East China Sea and SCS as well as other territorial disputes. Beijing seems now, more than ever, determined to move away from Deng Xiaoping’s dictum of “hiding strength, biding time, and never claiming leadership” and expand its global influence, particularly through the Belt and Road Initiative. Hence, it is much better in the long run, for the United States to set the tone and parameters early into his second term in office (as president, general secretary of CCP, and chairman of the Central Military Commission). Otherwise, Xi will continue to gain political momentum and be that much harder to deter, dissuade, and influence in the future. President Donald Trump’s state visit to Beijing from November 8-10, followed by attendance at the Asia-Pacific Economic Cooperation (APEC) Leaders Meeting in Danang (Vietnam) on November 11-12 and East Asia Summit (EAS) in Manila (Philippines) on November 13-14 offer additional opportunities to continue encouraging China to become a more responsible global stakeholder that contributes positively to the international system.

Tuan N. Pham has extensive experience in the Indo-Asia-Pacific, and is widely published in national security affairs. The views expressed therein are his own and do not reflect the official policy or position of the U.S. Government.    

https://thediplomat.com/2017/10/time-for-the-us-to-stop-losing-ground-to-china-in-the-south-china-sea/

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US: We will not ignore China’s challenge to rules-based order

October 19, 2017
Secretary of State Rex Tillerson speaks at the Center for Strategic and International Studies on Wednesday, Oct. 18, 2017, in Washington. AP/Jacquelyn Martin

MANILA, Philippines — While maintaining relations with Beijing, Washington stressed that it will not “shrink or ignore” its challenges to the international rules-based order.

In his remarks on US-India relations, US State Secretary Rex Tillerson criticized China for its activities in the disputed South China Sea.

“China’s provocative actions in the South China Sea directly challenge the international law and norms that the United States and India both stand for,” Tillerson said Thursday (Manila time).

In a separate media briefing, the US State Department noted that international order has been under a lot of strain.

A senior US State Department official added that Tillerson said that he wanted constructive relations with China and that he is in regular contact with the Chinese leadership.

READ: Tillerson seeks stronger ties with India, chides China

“China has risen alongside India, but China has done so less responsibly and China has undermined the international rules-based order while countries like India operate within this rules-based order,” the State Department said.

The official added that the US has supported the rise of both China and India, which have “risen very differently.”

“But we are not going to shrink or ignore China’s challenges to the rules-based order, or where China subverts the sovereignty of neighboring countries,” the US State Department said.

“And when you look, as the Secretary (Tillerson) said about the shared values, shared security, shared national security interests, shared economies, shared democracies, this is a great friendship that we want to expand and deepen on all areas,” the official added.

Earlier this year, Tillerson accused Beijing of using its economic power to evade issues such as the South China Sea dispute and the tension on the Korean Peninsula.

“We desire productive relationships, but we cannot allow China to use its economic power to buy its way out of other problems, whether its militarizing islands in the South China Sea or failing to put appropriate pressure on North Korea,” Tillerson said in Sydney last June.

China has been undermining the 2016 award issued by an international arbitral tribunal under the United Nations Convention on the Law of the Sea (UNCLOS).

The tribunal ruled that China violated its commitment under the UNCLOS when it constructed artificial islands within the Philippines’ exclusive economic zone.

http://www.philstar.com/headlines/2017/10/19/1750399/us-we-will-not-ignore-chinas-challenge-rules-based-order

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China says it has sovereignty over all the South China Sea north of its “nine dash line.” On July 12, 2016, the Permanent Court of Arbitration  in The Hague said this claim by China was not valid. But China and the Philippine government then chose to ignore international law.

Philippine Navy at fault in death of 2 Vietnamese fishermen, probe finds

October 1, 2017
Investigators cited a 1999 ruling of the International Tribunal on the Law of the Sea as it found that the Philippine Navy was at fault for the deaths of the Vietnamese fishermen, a source told Vera FIles. The ITLOS ruling states that: “In the conduct of arrest, use of excessive and unreasonable force in stopping and arresting a vessel such as firing with live ammunition using shots from large–caliber automatic guns must be avoided, and where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances.”  Vera Files

MANILA, Philippines — The Philippine Navy is at fault in the death of two fishermen during a sea chase in the waters of Pangasinan on September 22, a source privy to the investigation of the incident said.

Investigators, the source said, cited a 1999 ruling of the International Tribunal on the Law of the Sea (ITLOS) that states: “In the conduct of arrest, use of excessive and unreasonable force in stopping and arresting a vessel such as firing with live ammunition using shots from large–caliber automatic guns must be avoided, and where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances.”

READ: 2 Vietnamese dead, 5 arrested in chase with Philippine Navy

The Philippine Coast Guard, which is investigating the incident, took note that the incident happened 39 nautical miles off Bolinao in Pangasinan, which was within the exclusive economic zone (EEZ) of the Philippines, the source further said.

“Under the Law of the Sea Convention, in the EEZ, the Philippines does not have Sovereignty but only Sovereign Rights for the purpose of exploring and exploiting, conserving and managing the natural resources found therein. This means that the Philippines cannot enforce its laws including the Revised Penal Code except only its laws and regulations relating to fisheries and marine environmental protection,” explained the source.

The Philippine Navy announced September 26 that the officers involved in the incident were relieved as the Department of Foreign Affairs assured Vietnam a fair and thorough investigation into the deaths.

“We would like to offer our sympathies over the unfortunate loss of life and give you our assurance that we will conduct a fair and thorough investigation into this matter,” Foreign Affairs Secretary Alan Peter Cayetano said.

READ: Philippines to probe death of 2 Vietnamese fishermen in sea chase

The VERA Files source said based on the interview with the Vietnamese fishing boat captain, at about 11 in the evening on September 22, while the Vietnamese fishing boat was anchored 39 nautical miles off Bolinao, an unidentified vessel sailed towards their direction. Immediately, they cut their anchor net and scampered away towards the direction of Vietnam because they were afraid the approaching vessel was a pirates’ ship.

The Vietnamese heard 10 gunshots fired towards both sides of their fishing boat. It was only after a 30-minute chase, when the pursuing vessel was approximately three to five meters away that it was identified as the BRP Miguel Malvar (PS 19).

“At that very near distance, the PN vessel continued to fire at fishing boat killing two of the six crew who were hiding inside the cargo hold area located at the forward portion of the boat. The Navy officers arrested the remaining fishermen for poaching and brought them to Sual in Pangasinan,” the source said.

A photo of the BRP Miguel Malvar. Vera Files

Maritime expert Jay Batongbacal, director of the University of the Philippines Institute of Maritime Affairs and Law of the Sea, said it is too early to decide whether the Philippine Navy may be sanctioned.

“Whether or not the use of deadly force is justified is a separate question,” he told VERA Files in an interview. “That is supposed to be determined in the investigation,” he added, noting that whether disciplinary actions will be taken against those who fired is separate from poaching.

However, lawyer Romel Bagares, executive director of the Center for International Law, pointed out that the Philippine crew, all state agents, are covered by state immunity.

A case, he said, “may only be proceeded against in a criminal procedure by a Philippine court, unless the Philippines has expressly waived such immunity in favor of a Vietnamese court.”

Bagares added: “The Philippines has the sole and exclusive jurisdiction to do so under established international law.”

“If the Philippines imposes an unreasonable bond for the prompt release of ship and crew and refuses to pay reparations for the two deaths, Vietnam may file the appropriate action before the International Tribunal on the Law of the Sea,” Bagares said.

What the Navy did as part of its law enforcement was “justified,” as it happened within the 200-nautical mile EEZ of the Philippines, Batongbacal maintained.

Under the United Nations Convention on the Law of the Sea (UNCLOS), the Philippines has sovereign rights on its 200 nautical mile EEZ, where the country has exclusive rights to “explore and exploit natural resources” found in the area.

“Any foreign vessel that is found fishing in the (EEZ) is considered to be committing the crime of poaching,” Batongbacal said.

Although sovereign rights are “less than sovereignty,” as Senior Associate Justice Antonio Carpio had earlier said, they retain a country’s exclusive and superior rights above other states.

Sovereignty bestows full rights on a country within the 12-nautical mile stretch of its territorial waters measured from the baseline. Beyond it is the EEZ governed by the Philippines’ sovereign rights, which give power for a country to take measures like arresting vessels and their crews under Article 73 of UNCLOS.

But this distinction is beside the point, Batongbacal said. As far as the law is concerned, the Vietnamese fishermen violated the Philippine Fisheries Code of 1998, he added.

Under Section 87 of the law, it is unlawful for foreign entities to operate their fishing vessels in Philippine waters. Any entry shall already constitute a prima facie evidence.

“The law already presumes them to be engaged in poaching. It’s the Vietnamese who must show proof that they were not fishing,” Batongbacal said.

The law penalizes offenders with a fine not exceeding $100,000, or P5,093,400, and confiscation of the catch, fishing paraphernalia and vessel.

The VERA Files source, however, said it would be difficult to establish and prove that the Vietnamese fishermen committed poaching because there are circumstances that must first be met before a foreign vessel’s activity can be considered poaching.

Vietnam is an ally of the Philippines, notably when it supported its position against China before the Arbitral Tribunal, which later ruled China’s claim to resources in the South China Sea had no legal basis and its nine-dash line invalid.

In 2015, the Philippines signed a strategic partnership agreement with Vietnam that reaffirmed “their commitment to resolve territorial and jurisdictional disputes by peaceful means.”

Magdalo Rep. Gary Alejano, former maritime officer, said in a September 26 press release the incident happened because of the absence of a clear direction in handling the maritime situation.

It “gives us a picture of the dangers and tension in the area amid territorial disputes and competition over resources,” he said.

He called on the administration to come up with a strategy that would provide policies and guide actions for all stakeholders, especially the fishermen.

___

VERA Files is put out by veteran journalists taking a deeper look at current issues. Vera is Latin for “true.”

http://www.philstar.com/headlines/2017/10/01/1744485/philippine-navy-fault-death-2-vietnamese-fishermen-probe-finds

A success story in resolving sea boundary disputes

September 28, 2017

By Tommy Koh
The Straits Times

Timor-Leste and Australia chart the way through conciliation in a first under the UN Convention on the Law of the Sea

We live in a very troubled world. There are conflicts and disputes between and among states in every region of the world. One category of disputes which is hard to resolve is disputes between states over their land and sea boundaries. The recent tension between China and India is a reminder that their land boundaries have not yet been resolved. In the South China Sea, there are disputes between China and several Asean countries on their competing sovereignty and maritime claims.

Viewed against this background, the announcement by the conciliation commission in Copenhagen on Sept 1, that there had been a breakthrough in the conciliation proceedings on maritime boundaries between Timor-Leste and Australia, was happy news. I wish to explain in this column the facts of the case, the nature of the conciliation proceedings, the elements of the package deal agreed upon by the two parties and some lessons learnt.

There is a lot of confusion in the media and in the minds of the public about the peaceful settlement of disputes. The United Nations Charter refers to the following modalities for the peaceful settlement of disputes: negotiation, fact-finding, mediation, conciliation, arbitration and judicial settlement.

When a country becomes a party of the UN Convention on the Law of the Sea (Unclos), it can make a declaration that its preferred mode of dispute settlement is arbitration or the International Court of Justice or the International Tribunal for the Law of the Sea. If it fails to make a choice, it is deemed to have chosen arbitration. Dispute settlement under Unclos is compulsory. This is why Malaysia was able to institute arbitral proceedings against Singapore in 2003 without our consent. Malaysia did not need Singapore’s consent because our consent was given when we became a party of the convention.

Australia and Timor-Leste are neighbouring states, separated by the Timor Sea at a distance of approximately 300 nautical miles. Timor-Leste (East Timor) was a Portuguese colony from the 16th century until 1975. On Nov 28, 1975, a political party, Fretilin, declared the territory’s independence. Nine days later, it was invaded and occupied by Indonesia. In 1976, Indonesia declared East Timor as its 27th province. In 1999, the people of East Timor voted overwhelmingly for independence. From 1999 to 2002, it was administered by the UN Transitional Administration in East Timor (Untaet). It became independent on May 20, 2002.

There are several issues in the dispute between Timor-Leste and Australia. The first main issue concerns boundaries: the boundaries of the two countries’ exclusive economic zones (EEZs) and their continental shelves. Timor-Leste had, from 2003, requested that Australia negotiate those boundaries but to no avail. The second main issue concerns the development arrangements in a field called Greater Sunrise which, in Timor-Leste’s view, belonged to Timor-Leste and not Australia.

COMPULSORY CONCILIATION

While dispute settlement under Unclos is compulsory, states can make a declaration to exclude from Unclos arbitral or judicial proceedings certain categories of disputes, including maritime boundary disputes. However, these disputes are subject to compulsory conciliation. On March 22, 2002, about two months before Timor-Leste became independent, Australia made a declaration, excluding from Unclos arbitral and judicial proceedings disputes concerning its EEZ boundaries and continental shelf boundaries. Timor-Leste is therefore unable to initiate arbitral or judicial proceedings against Australia on their sea boundaries.

…there was the political will on both sides to find a just and durable compromise. Both sides were willing to give and take. Without the requisite political will, the case would not have succeeded. We must congratulate the governments of Timor-Leste and Australia for setting a good example for the world.

On April 11 last year, Timor-Leste surprised Australia by notifying Canberra that it was initiating compulsory conciliation proceedings against Australia. Timor-Leste also informed Australia that it was appointing Judge Abdul Koroma and Judge Rudiger Wolfrum as its conciliators. On May 2 the same year, Australia informed Timor-Leste that it had appointed Dr Rosalie Balkin and Professor Donald McRae as its conciliators. The four conciliators, with the consent of the two countries, chose Ambassador Peter Taksoe-Jensen as the commission’s fifth conciliator and chairman.

Australia objected to the commission’s competence. In response, the commission held a special hearing on competence from Aug 29 to 31 last year. The following month, on Sept 19, the commission unanimously decided that it had competence. It also decided that it would aim to conclude its work within 12 months from Sept 19, as prescribed by Article 7 of Annex V of Unclos.

This is the first occasion in which Annex V of Unclos has been invoked. It may therefore be useful for us to find out more about conciliation under Unclos. My first point is that under Unclos, we have voluntary conciliation and compulsory conciliation. My second point is that the conciliation commission is not a court of law. It is not the commission’s job to rule on the legal rights of the two parties. The function of the commission is to “hear the parties, examine their claims and objectives, and make proposals to the parties with a view to reaching an amicable settlement”.

PACKAGE DEAL

At their meeting in Copenhagen on Aug 30 this year, the two parties accepted a package deal proposed by the commission. The package agreement addresses their maritime boundary in the Timor Sea, the legal status of the Greater Sunrise gas field, the establishment of a special regime for Greater Sunrise, the development of the oil and gas resource, and the sharing of the resulting revenue.

It is the intention of the commission and the two parties to embody the agreement in a legally binding treaty. The two parties will meet at The Hague next month to sign an agreement on the text of the treaty. The treaty itself will be signed subsequently, possibly at the UN, and witnessed by UN Secretary-General Antonio Guterres.

What lessons can we learn from this case? There are several. First, countries which have disputes about their sea boundaries, or have competing claims about territorial sovereignty, should seriously consider using conciliation to solve their disputes. Unlike arbitration and judicial settlement, conciliation is non-adversarial and the outcome is consensual and win-win.

Second, you should choose your conciliators wisely. In this case, we have five excellent conciliators. The chairman of the commission, Ambassador Taksoe-Jensen, drove the process with energy, determination and fairness. The Unclos deadline for the commission to produce a report within 12 months helped to put pressure on everyone.

Third, the two countries were very well represented. Timor-Leste’s chief negotiator is Mr Xanana Gusmao, the father of the nation. Its agent, Minister Agio Pereira, is cool, wise and solid. Its legal team includes two top legal minds, Professor Vaughan Lowe and Sir Michael Wood. The same is true on the Australian side. Mr Gary Quinlan, the Deputy Secretary of the Department of Foreign Affairs and Trade, made an important contribution. Sir Daniel Bethlehem and Professor Chester Brown are a good match for Prof Lowe and Sir Michael.

Finally, and perhaps, the most important factor, is that there was the political will on both sides to find a just and durable compromise. Both sides were willing to give and take. Without the requisite political will, the case would not have succeeded. We must congratulate the governments of Timor-Leste and Australia for setting a good example for the world.

• The author, an ambassador-at-large at the Ministry of Foreign Affairs, served as president of the Third UN Conference on the Law of the Sea in 1981 and 1982, and is currently the chairman of the board of governors of the Centre for International Law at the National University of Singapore.

A version of this article appeared in the print edition of The Straits Times on September 28, 2017, with the headline ‘A success story in resolving sea boundary disputes’

http://www.straitstimes.com/opinion/a-success-story-in-resolving-sea-boundary-disputes

South China Sea: China Has A New Claim To Nibble More Land From Taiwan, Vietnam, the Philippines? “The Four Sha Claim”

September 27, 2017
Beijing’s “four sha” claim in the South China Sea includes the Pratas Islands, Paracel Islands, Spratly Islands and the Macclesfield Bank area. Google Maps

MANILA, Philippines — Shifting away from its nine-dash line claim in the South China Sea, Beijing has forwarded a new sovereignty claim over the island groups in the disputed waters.

China’s “four sha” (Chinese for sand) claim covers sovereignty and maritime entitlements from four island groups in the South China Sea—the Pratas Islands, Paracel Islands, Spratly Islands and the Macclesfield Bank area—according to a report from The Washington Free Beacon.

The Pratas Islands are occupied by Taiwan while the Paracel Islands are being disputed by China, Taiwan and Vietnam. Parts of the Macclesfield Bank are being claimed by China and Taiwan.

Meanwhile, there is an ongoing territorial dispute between China, Malaysia, the Philippines, Taiwan and Vietnam over the ownership of the Spratly Islands.

According to the report, the Chinese Foreign Ministry has laid its new tactic to assert its claims over the disputed sea in a closed-door meeting with US State Department officials last month.

International law experts Julian Ku and Christopher Mirasola, however, said that China’s four sha claims are no more lawful than its nine-dash line claim.

“The challenge for critics of Chinese claims in the South China Sea, however, will be effectively explaining and articulating why this shift does not actually strengthen China’s legal claims in the South China Sea,” Ku and Mirasola said in an article published by Lawfare.

In July 2016, the United Nations-backed tribunal invalidated the nine-dash line claim and ruled that Beijing violated its commitment under the UN Convention on the Law of the Sea (UNCLOS).

READ: The verdict: Philippines wins arbitration case vs China

The four sha claim is not new as Beijing had stated it in a 2016 white paper disputing the Philippines’ claims in the arbitration at The Hague-based tribunal.

“China has, based on Nanhai Zhudao [the “Four Sha”], internal waters, territorial sea, contiguous zone, exclusive economic zone and continental shelf,” Beijing said in its 2016 white paper.

The 2016 tribunal award found that no feature in the Spratly Islands is large enough to generate a 12-nautical mile territorial sea. Beijing’s declaration of straight baselines around the Paracel Islands would be contrary to the UNCLOS as it does not qualify to the required ratio, the international law experts said.

Article 47 of the UNCLOS states that archipelagic baselines may only be drawn if they enclose a state’s “main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between one to one and nine to one.”

Ku and Mirasola noted that China’s new legal strategy is weaker than the nine-dash line claim as it clearly violates the UNCLOS.

“Most Chinese defenses of the Nine Dash Line argued that the claim predated China’s accession to UNCLOS and therefore not governed by it,” the experts said.

Beijing, however, may still benefit from trading the nine-dash line which has become a diplomatic liability as it has made China an easy target for foreign criticism.

“Second, by adopting language more similar to that found in UNCLOS, China may be betting that it can tamp down criticism, and win potential partners in the region,” Ku and Mirasola said.

President Rodrigo Duterte’s willingness to work with Beijing would support this conclusion, the international law experts added.

“China’s legal justification for the Four Shas is just as weak, if not weaker, than its Nine-Dash Line claim. But explaining why the Four Shas is weak and lawless will require sophisticated legal analysis married with effective public messaging,” they said.

RELATED: US gov’t study: 9-dash line inconsistent with int’l law

http://www.philstar.com/headlines/2017/09/27/1742870/shifting-tactics-china-advances-four-sha-claim-south-china-sea

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The South China Sea and China’s “Four Sha” Claim: New Legal Theory, Same Bad Argument

By Julian KuChris Mirasola

Monday, September 25, 2017, 11:00 A

The Washington Free Beacon reports that China may be backing away from its most controversial legal justification in the South China Sea: the “Nine-Dash Line.” Officials from the Chinese Ministry of Foreign Affairs advanced a new legal theory at a closed-door meeting with U.S. State Department officials last month that would rely upon China’s sovereignty claims over the “Four Sha” island groups in the South China Sea instead of the Nine-Dash Line.

According to the Beacon, Deputy Director General Ma Xinmin of the Foreign Ministry’s Department of Treaty and Law “assert[ed] sovereignty” and maritime entitlements extending from four island groups in the South China Sea – Dongsha, Xisha, Nansha, and Zhongsha. Collectively, these island groups are referred to as the “Four Sha” (四沙) (“sha” in this context meaning sand). In English, these areas are respectively referred to as the Pratas Islands, Paracel Islands, Spratly Islands, and the Macclesfield Bank area.

While dropping or even de-emphasizing China’s Nine-Dash Line claim in favor of the Four Shas has important diplomatic and political implications, the legal significance of such a shift is harder to assess. The constituent parts of China’s Four Sha claims have long been set forth publicly in Chinese domestic law and official statements. Based on what we know so far, these new Chinese legal justifications are no more lawful than China’s Nine-Dash Line claim. The challenge for critics of Chinese claims in the South China Sea, however, will be effectively explaining and articulating why this shift does not actually strengthen China’s legal claims in the South China Sea.

The Four Sha claim has a long pedigree in Chinese law and practice. China’s 1992 law on the territorial sea and contiguous zone, for example, declared that China’s land territory included the “Dongsha island group, Xisha island group, Zhongsha island group, [and] Nansha island group.” A 2016 white paper disputing the Philippines’ claims in the South China Sea arbitral process similarly claimed that:

China’s Nanhai Zhudao (the South China Sea Islands) consist of Dongsha Qundao (the Dongsha Islands), Xisha Qundao (the Xisha Islands), Zhongsha Qundao (the Zhongsha Islands) and Nansha Qundao (the Nansha Islands). These Islands include, among others, islands, reefs, shoals and cays of various numbers and sizes. 

Taken together, this history shows that the Four Sha are not new to China’s claims in the South China Sea. The key question, still largely unanswered, is what legal meaning China intends to impart to these island groups.

In a 2016 white paper, Beijing stated that, “China has, based on Nanhai Zhudao [the “Four Sha”], internal waters, territorial sea, contiguous zone, exclusive economic zone and continental shelf.” Neither the white paper nor the Beacon’s report explain how China derives these maritime zones from the four island groups. As China recognizes, each island group includes a variety of features, many of which would not independently generate maritime entitlements. The 2016 arbitral tribunal, for example, found that no feature in the Spratly (Nansha) island chain is large enough to generate more than a 12 nautical mile territorial sea. This means that China’s claims in the Spratlys (Nansha) would not generate more than a series of isolated 12 nm zones.

In 1996, China declared straight baselines around the Paracel (Xisha) Islands, treating them as a single geographical unit (likely as a means to maximize Beijing’s maritime claims). Rumors have persisted for at least a year that China may declare similar straight baselines around the Spratly (Nansha) Islands. Indeed, the Beacon’s report could be read to say China is preparing to declare straight baselines around all four “Sha” island groups. While such claims would not extend as broadly as the Nine Dash Line claim, it would still result in China claiming legal entitlements over most of the waters in the South China Sea.

Because China is not constituted “wholly by one or more archipelagos” (think Indonesia or the Philippines), the U.S. and most countries would view straight baselines around an island group as contrary to the UN Convention on the Law of the Sea (UNCLOS). Indeed, Article 47 states that archipelagic baselines, such as those around the Paracels, may only be drawn if they enclose a state’s “main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.” China plainly does not qualify under this definition. China’s total land mass is vastly disproportionate to its maritime entitlements – far beyond UNCLOS’ 9:1 ratio.

For this reason, this new Chinese legal strategy is even weaker than the Nine-Dash Line given that it clearly violates UNCLOS (e.g., Articles 46 and 47). Most Chinese defenses of the Nine Dash Line argued that the claim predated China’s accession to UNCLOS and therefore not governed by it. Despite the legal weaknesses of its possible new strategy, China may still reap some benefits from trading the Nine-Dash Line for the Four Shas.

First, the Chinese leadership may have realized that the Nine Dash Line has become too much of a diplomatic liability. The Nine-Dash Line is completely sui generis and no other state has made a historic maritime claim anything like it. For this reason, the Nine-Dash Line makes China an easy target for foreign criticism in a way that straight baselines around island groups probably will not.

Second, by adopting language more similar to that found in UNCLOS, China may be betting that it can tamp down criticism, and win potential partners in the region. Philippine President Duterte’s continued willingness to work with Beijing despite their conflicting maritime claims would support such a conclusion.

Third, and most intriguingly, China may have concluded that it can better shape (or undermine, depending on your point of view) the law of the sea by adopting UNCLOS terminology. As a rising, revisionist power, China has an interest in reinterpreting the existing rules to better suit its interests. Winning support for straight baselines among international lawyers and governments may be easier than finding support for its Nine-Dash Line claim. China can count on a growing roster of Chinese international lawyers and scholars who could build support for this new approach in the global community. Some have called this strategy a form of “lawfare.”

So while we might be encouraged to see the Nine-Dash Line pass into the (legal) dustbins of history, we should be skeptical about whether the Four Shas herald a new more modest Chinese role in the South China Sea. China’s legal justification for the Four Shas is just as weak, if not weaker, than its Nine-Dash Line claim. But explaining why the Four Shas is weak and lawless will require sophisticated legal analysis married with effective public messaging. Whether the U.S. government can muster these tools to advance its South China Sea policy remains to be determined.

 https://lawfareblog.com/south-china-sea-and-chinas-four-sha-claim-new-legal-theory-same-bad-argument
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China says it has sovereignty over all the South China Sea north of its “nine dash line.” On July 12, 2016, the Permanent Court of Arbitration  in The Hague said this claim by China was not valid. But China and the Philippine government then chose to ignore international law.

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South China Sea: Proposed Code of Conduct With China Bypasses International Law

August 4, 2017
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In this Thursday, July 27, 2017 photo, a man and a child look at a picture showing the Fiery Cross Reef in the Spratly islands, in the disputed South China Sea, on display at the military museum in Beijing. China’s foreign ministry has criticized plans by Britain to send its new aircraft carriers on freedom of navigation missions in the South China Sea to challenge Beijing’s expansive territorial claims in the strategic waterway, accusing it of stirring up trouble. Meanwhile, an official Chinese magazine says President Xi Jinping personally directed the enlargement of China’s presence in the South China Sea, crediting him with constructing a “maritime Great Wall.” AP/Andy Wong

MANILA, Philippines — The framework of the Code of Conduct in the South China Sea will not serve as an instrument to settle territorial disputes or maritime delimitation issues.

Foreign ministers of ASEAN and China are expected to adopt the framework that will serve as an outline for a code of conduct on the disputed waters.

In a two-page document acquired by Philstar.com, one of the main objectives of the code is to establish a rules-based framework to guide the conduct of parties and to promote maritime cooperation in the disputed South China Sea.

Despite not being an instrument to settle disputes, the framework stated the parties’ commitment to the principles of the Charter of the United Nations, the 1982 UN Convention on the Law of the Sea or UNCLOS, the Treaty of Amity and Cooperation in Southeast Asia, the Five Principles of Peaceful Coexistence and other principles of international law.

The framework did not include the arbitral ruling of a UN-backed tribunal that invalidated China’s expansive claims in the South China Sea. Last year, the international tribunal ruled that Beijing violated its commitment under the UNCLOS following its reclamation activities within the Philippines’ exclusive economic zone.

READ: DFA: Framework on South China Sea code might skip Hague ruling

The framework of the code of conduct stressed “[r]espect for each other’s independence, sovereignty and territorial integrity in accordance with international law, and the principle of non-interference in the internal affairs of other states.”

This echoes President Rodrigo Duterte’s remarks during his opening speech at the 30th ASEAN Leaders’ Summit in Manila last April, where he urged his Southeast Asian counterparts to set the tone of talks based on non-interference.

“Dialogue relations can be made more productive constructive if the valued principle of non-interference in the internal affairs of the ASEAN member states is observed,” Duterte said in his speech last April 29.

Meanwhile, another objective of the framework is to “promote mutual trust, cooperation and confidence, prevent incidents, manage incidents should they occur and create a favorable environment for the peaceful settlement of disputes.

The framework also expressed commitment to a full and effective implementation of the Declaration on the Conduct of Parties or DOC in the South China Sea.

In 2002, ASEAN member countries and China signed the DOC in Cambodia to resolve conflicting maritime claims peacefully. More than 14 years later, the concerned parties are yet to complete a binding code of conduct.

http://www.philstar.com/headlines/2017/08/04/1725052/south-china-sea-code-framework-skips-dispute-settlement

Peace and Freedom Comment: How can you trust a party to a Code of Conduct when they have already proven their unwillingness to follow international law?

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China says it has sovereignty over all the South China Sea north of its “nine dash line.” On July 12, 2016, the Permanent Court of Arbitration in The Hague said this claim by China was not valid. But China chose to ignore international law.

Asean goes soft on China

August 2, 2017
In a draft statement, ASEAN foreign ministers said they tasked the ASEAN-China Senior Officials’ Consultation (ACSOC) mechanism to begin discussions on a substantive and effective COC on the basis of the framework as soon as possible. File

MANILA, Philippines –  The Association of Southeast Asian Nations (ASEAN) is seen to take a softer stand on China’s aggressive moves in disputed waters and to highlight instead the conclusion of negotiations on a framework of the Code of Conduct of Parties in the South China Sea (COC).

The latest talks on the COC were held on May 18 in Guiyang, China.

In a draft statement, ASEAN foreign ministers said they tasked the ASEAN-China Senior Officials’ Consultation (ACSOC) mechanism to begin discussions on a substantive and effective COC on the basis of the framework as soon as possible.

ASEAN and China are set to endorse a framework for a COC that will regulate the future behavior of the parties concerned during the meeting in Manila this week. The framework will be endorsed for eventual crafting of a COC.

The Department of Foreign Affairs (DFA) said the framework, completed ahead of the mid-2017 goal set by the leaders of ASEAN and China, contains elements which the parties have agreed to.

But the draft does not call for a legally binding COC, as some ASEAN countries had wanted.

Pending conclusion of a substantive COC, the ministers reaffirmed the importance of maintaining peace, stability, security and freedom of navigation and overflight in and above the South China Sea.

“In this regard, we underscored the importance of the full and effective implementation of the DOC (Declaration on the Conduct of Parties in the South China Sea) in its entirety,” the draft communiqué said.

“Taking note of concerns expressed by some ministers over recent developments in the area, we reaffirmed the importance of enhancing mutual trust and confidence, exercising self-restraint in the conduct of activities, pursuing mutually agreed practical maritime areas of cooperation, and avoiding unilateral actions in disputed features that may further complicate the situation in keeping with the principle of peaceful resolution of disputes without resorting to the threat or use of force,” the draft statement said.

The draft communiqué did not mention the July 12, 2016 arbitral ruling in favor of the Philippines.

‘Philippines should seek enforcement of arbitral award’

But Supreme Court Associate Justice Antonio Carpio said the Philippines should seek enforcement of the arbitration ruling against China on disputed territories in the West Philippine Sea.

Carpio said this after warning that a joint venture with China on the disputed islands would violate the Constitution.

Carpio said the Duterte administration should instead push for its territorial rights stemming from the government’s victory before the Permanent Court of Arbitration (PCA).

He raised suggestions as the country is set to host next week the ASEAN foreign ministers for the framework of the COC for claimants in the maritime row.

Among the options for the government, according to Carpio, is to initiate an agreement among all ASEAN members with territorial claims in the South China Sea like Vietnam, Malaysia, Brunei and Indonesia to declare that no geologic feature in the Spratly Islands generates an exclusive economic zone (EEZ) that could overlap among countries as ruled by the PCA.

He also suggested that the Philippines enter into sea boundary agreements with Vietnam and Malaysia on overlapping EEZ on the extended continental shelf claim in the Spratlys.

Carpio explained such agreements would implement part of the arbitral ruling that no geologic feature in the Spratly Islands generates an EEZ.

“Even if only the Philippines, Vietnam and Malaysia will agree to this declaration, it will clearly remove any maritime delimitation dispute among them leaving, only the territorial disputes,” the magistrate said in an interview.

He explained that such declarations would also isolate China as the only state claiming an EEZ from geologic features in the Spratly islands.

The SC justice said another option would be to file before the United Nations Commission on the Limits of the Continental Shelf an extended continental shelf (ECS) claim beyond the country’s 200-nautical mile EEZ in the West Philippine Sea off the coast of Luzon.

Carpio believes that the UN body would likely award the ECS claim to the Philippines since China would not participate in the process and oppose it. This would be similar to the Philippines’ ECS claim in Benham Rise, which was unopposed.

“If China opposes our ECS claim, China would have a dilemma on what ground to invoke,” he stressed, adding that China cannot invoke its nine-dash line claim over the South China Sea as the CLCS is bound by the PCA ruling under the United Nations Convention on the Law of the Sea (UNCLOS).

Carpio reiterated that the Philippines can file a new case before the UNCLOS tribunal if China starts reclamation activities in Panatag (Scarborough) Shoal as this would destroy the traditional fishing ground of Filipino, Vietnamese and Chinese fishermen.

Carpio earlier criticized the policy of the Duterte administration on the territorial dispute with China in the West Philippine Sea for “setting aside” the PCA award won by the legal team, of which he was part.

He said the policy is “without discernible direction coherence of vision” and “relies more on improvisation than on long-term strategy.”

But the SC justice clarified the blame does not fall on the Department of Foreign Affairs (DFA), because it is Duterte who is the chief architect of the country’s foreign policy.

DFA spokesman Robespierre Bolivar earlier said the PCA ruling might not be mentioned in the framework to be approved by the ASEAN foreign ministers.

The official said the framework would be “generic” and would only outline the nature of the code of conduct for parties in the dispute.

http://www.philstar.com/headlines/2017/08/03/1724206/asean-goes-soft-china

Related:

Doklam deadlock: India and China will constantly challenge each other, get used to it

 (July 8, 2017)

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China says it has sovereignty over all the South China Sea north of its “nine dash line.” On July 12, 2016, the Permanent Court of Arbitration in The Hague said this claim by China was not valid. But China chose to ignore international law.

 

South China Sea: How Chinese authorities modified legal position after 2016 tribunal legal defeat

July 13, 2017

July 12, 2017 8:30 pm JST

Authorities modify legal position after last year’s tribunal defeat

Demonstrators at the Chinese consulate to protest China’s island-building in the South China Sea on June 12 © AP

One year ago, China suffered a massive legal defeat when an international tribunal based in The Hague ruled that the vast majority of Beijing’s extensive claims to maritime rights and resources in the South China Sea were not compatible with international law. Beijing was furious.

At an official briefing immediately after the ruling, Vice Foreign Minister Liu Zhenmin twice called it “nothing more than a piece of waste paper,” and one that “will not be enforced by anyone.” And yet, one year on, China is, in many ways, abiding by it.

By Bill Hayton

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The South China Sea covers about 3.5 million sq. km from Singapore to Taiwan, and is home to the region’s most intractable disputes, involving competing claims from China, Taiwan, the Philippines, Vietnam and others. The Hague tribunal last year backed Manila’s claim that there was no evidence that China had historically exercised exclusive control over the contested waters. There was therefore no legal basis for its claim to all the marine resources within the “U-shaped line” encompassing the Paracel and Spratly archipelagoes, which has been printed on Chinese maps since 1948.

China is not fully complying with the ruling — far from it. On May 1, China imposed a three-and-a-half-month ban on fishing across the northern part of the South China Sea, as it has done each year since 1995. While the ban may help conserve fish stocks, its unilateral imposition in wide areas of the sea violates the ruling. Further south, China’s occupation of Mischief Reef, an underwater feature that the tribunal ruled was part of the Philippines’ continental shelf, endures. Having built a vast naval base and runway here, China looks like it will remain in violation of that part of the ruling for the foreseeable future.

But there is evidence that the Chinese authorities, despite their rhetoric, have already changed their behavior. In October 2016, three months after the ruling, Beijing allowed Philippine and Vietnamese boats to resume fishing at Scarborough Shoal, west of the Philippines. A China Coast Guard ship still blocks the entrance to the lagoon, but boats can still fish the rich waters around it. The situation is not perfect but neither is China flaunting its defiance.

Political embarrassment

Much more significantly, China has avoided drilling for oil and gas on the wrong side of the invisible lines prescribed by the United Nations Convention on the Law of the Sea (UNCLOS). Although the 2016 tribunal award is only binding on China and the Philippines, China’s behavior toward Vietnam has also modified. Its last attempt to move an oil rig into an area claimed by Vietnam, in 2014, ended in political embarrassment, anti-Chinese rioting and a major setback for Beijing’s regional diplomacy. Ever since, Chinese rigs have remained out of harm’s way.

Chinese structures on the man-made Subi Reef at the Spratly islands in the South China Sea observed from a Philippine Air Force C-130 in April © AP

The ruling was long and complex, but the most important conclusions were, first, that the U-shaped line could not represent a legitimate claim on the resources of the sea. Second, it concluded that none of the Spratly Islands, in the south of the contested area, nor Scarborough Shoal, were full “islands.” Since they cannot support permanent human habitation in their natural state, they cannot be used to generate an exclusive economic zone. Put another way, the ruling means China has no claim to the fish, oil or gas more than 12 nautical miles from any of the Spratlys or Scarborough Shoal.

The Chinese authorities appear not accept this. They continue to intercept and intimidate Philippine fishing boats in the Spratlys. One sailor I spoke to described a tense encounter near the reefs late last year with a Chinese coast guard vessel. Its crew spoke only one word of English (it began with an “f”) and used it repeatedly. They even threw overboard the small bucket of fish that the sailors had caught for their own consumption.

In a more serious incident, a boat assumed to belong to the China Coast Guard on March 27 opened fire on a Philippine trawler near Gaven Reef, one of China’s newly built artificial islands. It was a potentially deadly incident, but not one that directly violates the arbitration ruling. It is still not clear exactly where the incident took place, but if it was within 12 nautical miles of the rock at Gaven Reef, it was inside the territorial waters of one of the claimant countries. Since the tribunal made no decision about which country (China, the Philippines or Vietnam) is the rightful owner of Gaven Reef, China can claim that it is within its rights to defend its territorial waters.

Authorities modify legal position after last year’s tribunal defeat

There are clear signs from both China’s words and deeds that Beijing has quietly modified its overall legal position in the South China Sea. Australian researcher Andrew Chubb noted a significant article in the Chinese press in July last year outlining the new view. Authored by Communist Party legal theoreticians, this new exposition of China’s claims comes in three parts: a claim to all the rocks and reefs within the U-shaped line; a claim to “historic title” to all the sea inside lines drawn around “close-together” island groups (that is, small groups of features within the Spratly archipelago); and a claim to non-exclusive rights to fish in places where Chinese fishers traditionally did.

International law

The claim to all the rocks and reefs is clearly disputed by the other claimants, but is at least asserted within the rubric of commonly understood international law. However, in the eyes of most non-Chinese observers, the last two parts of the claim are not: They continue to violate UNCLOS. The whole point of negotiating UNCLOS from 1973 to 1982 was to eliminate such “historic” claims. China ratified that agreement in 1996.

Nonetheless, China’s new position seems to represent a major step towards compliance with UNCLOS and, therefore, the ruling. Most significantly, it removes the grounds for Chinese objections to other countries fishing and drilling in wide areas of the South China Sea. Vietnam has already taken advantage of this by authorizing Talisman Vietnam to drill for oil at the very southeastern edge of the country’s claimed exclusive economic zone.

However, President Rodrigo Duterte of the Philippines told journalists in May that his Chinese counterpart Xi Jinping had warned there would be “war” if the Manila government authorized drilling in the large gas field known to exist under the Reed Bank — between the Spratlys and the main islands of the Philippines. This threat appears to violate both the tribunal ruling and China’s new definition of its own claim. Duterte might consider why Vietnam is prepared to take such a risk and he is not.

Overall, the picture is of a China attempting to bring its vision of the rightful regional order (as the legitimate owner of every rock and reef inside the U-shaped line) within commonly understood international rules. Far from being “waste paper,” China is taking the tribunal ruling very seriously. It is still some way from total compliance but it is clearly not deliberately flouting the ruling.

What happens next will depend on whether the Philippines, and other governments in the region and those around the world that care about the rule of international law, will do enough to keep the region moving toward the peaceful resolution of disputes.

Bill Hayton is an associate fellow at Chatham House and author of “The South China Sea: The Struggle for Power in Asia.”

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http://asia.nikkei.com/Viewpoints/Bill-Hayton/Beijing-changes-tack-after-South-China-Sea-ruling

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