Posts Tagged ‘UNCLOS’

“China is intent on trying to occupy every single feature in the South China Sea — and all the resources,” says Bill Hayton

March 31, 2018

Negotiations over a code of conduct between China and other nations on the South China Sea planned for March 2018 have not taken place. DW asked Asia expert Bill Hayton if there is a risk to regional stability.

Chinese aircraft carrier Liaoning (picture-alliance/Vcg/MAXPPP)

At the 31st ASEAN summit in Manila last year, China and ASEAN countries agreed to begin negotiating a “code of conduct” for the South China Sea (SCS) in March 2018. Frequent tensions over natural resources, trade routes and island territories pose a threat to regional stability. Observers were cautiously optimistic that a new round of negotiations would take place, but this latest opportunity has passed without action from the conflicting parties.

DW: What is the current situation in the South China Sea?

Bill Hayton: The status quo in the South China Sea (SCS) at the moment is looking fairly stable. You have a series of islands and reefs and rocks that are occupied, but no one is trying to push anybody else off these islands directly.

The conflict is really taking place where there might be oil or gas reserves. In effect, China is trying to dominate areas where there are claims from Southeast Asian countries. China is trying to prevent those countries from exploiting those areas and prevent drill oil and gas drilling and control fisheries.

ASEAN foreign ministers (picture-alliance/MAXPPP/Kyodo)ASEAN foreign ministers gathered in Manila in August 2017

Read more: South China Sea: China protests after US warship sails near island

China has built these very large island bases in the Spratly Islands, and from there it can project power with ships and helicopters and potentially planes to actually control the sea areas.

But at the moment as far as we know, we’re not yet seeing physical clashes but rather a kind of increasing domination by China just in terms of presence.

If the situation is more or less stable, why is there a need for a code of conduct?

I think Southeast Asian countries see that China is playing a very long game. The effort for a code of conduct started in 1995.

So 22 years ago, when China occupied Mischief Reef close to the Philippines, it started as a series of bamboo huts on stilts and is now an artificial island with a runway that is 3 kilometers long and massive buildings and radar towers.

I think the fear from the Southeast Asians is that this is not going to stop, and China is intent on trying to occupy every single feature in the South China Sea and to dominate all resources.

They want to try and put limits on China to get them to agree to accept the status quo and that there will be no further advances. The problem of course is that China does not wish to limit its own behavior.

Read more:

India, ASEAN agree on maritime cooperation as China asserts power

Philippines and China in diplomatic stalemate over SCS

Map of the South China Sea showing Chinese claims and disputed islands

What would a code of conduct look like?

Southeast Asians want to control China’s behavior. They don’t want to occupy anybody else’s islands, but they do fear that China is going to continue advancing.

All sides need to be confident that island occupations will stop. There are a few locations that have not been built on or physically occupied by claimant states. Scarborough Shoal off the Philippines is a well-known example. There is suspicion that China wants to build a large military base there, which would allow it to dominate the eastern side of the SCS.

Another aspect is applying the United Nations Convention on the Law of the Sea (UNCLOS) all over the SCS. Southeast Asian states would have the right to exploit the oil and gas and fish resources off their coasts. Unfortunately, China was opposed to both of these things.

How can confidence be built?

Things that could be done such as drawing lines and agreeing to cooperation in those areas. We could take the Spratly Islands and have cooperative measures to preserve endangered fish stocks. Oil and gas rights are harder to resolve because only one country can exploit it and then it’s gone.

What could be an incentive for China to restrain its power?

 Fiery Cross Reef, in the Spratly Islands (CSIS/AMTI/Digital Globe)China has militarized a reef in the Spratly Islands in the South China Sea

There could be a grand strategy when you invoke the United States and possibly Japan and say: we will leave you alone in this part of the world if you respect the rules, and if you don’t, we won’t leave you alone.

Read more: Will the US fight for oil in the South China Sea?

The Trump administration seemed to suggest this in terms of their relations with China and would pressure China unless it agreed to respect the status quo in the SCS.

I don’t know if these discussions actually happened but that seems that the Trump administration making these hints.

If China were to resolve its disputes with Southeast Asian claimants, that would remove a reason for the US to be there. If there was no reason for the US to respond to the threat to freedom of navigation or the rules-based order, maybe it would reduce its presence and that might make the Chinese feel more secure.

The question is if China can see that recognizing long-term rules they’ve signed on to would actually make everybody relax. It would make people think that China was going to play fair and that it was not a threat.

In the long term, I think this would be a good thing for China. But China or the Chinese leadership doesn’t seem to see it that way.

The Chinese leadership thinks, basically, ‘This is ours and nobody should take it away from us, and by compromising in effect we are giving up our territory.’ They see it very much in territorial terms. And that’s the problem.

Bill Hayton is an Asia expert at the British think tank Chatham House. In 2014 he published the well-received book “The South China Sea.”

The interview was conducted by Rodion Ebbighausen.

http://www.dw.com/en/southeast-asian-nations-want-to-control-chinas-behavior/a-43194687

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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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Above: Location of seven Chinese military bases in international waters or Philippine territorial waters — all near the Philippines.
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 (USS Mustin passage — Freedom of Navigation)

  (Xi Jinping’s first public address as “Ruler for Life”)

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All this makes one wonder: does the Philippines know what it is doing with China? In the South China Sea?  Benham Rise? Is Human Rights Watch, Amnesty International, the ICC, and is Agnes Callamard  (Special Rapporteur on extrajudicial, summary or arbitrary executions at the UN) correct in saying the Philippines is guilty of gross illegalities under international law? Is the Philippine government being run by people who don’t understand the law? Is the move for a “Federal form of Government” based upon any good thinking?

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India ready to help boost Asean maritime security

February 4, 2018
A peaceful, very prosperous maritime neighborhood is very important to India
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A peaceful, very prosperous maritime neighborhood is very important to India, 40 percent of whose commerce relies on unimpeded passage through international waters in the Indo-Pacific region including the South China Sea, according to East External Affairs Minister Preeti Saran. (Image from Google Maps)

DELHI, India — The Indian government has expressed readiness to help strengthen maritime security in Southeast Asia, particularly in ensuring that peace will prevail in disputed areas of the South China Sea.

But Vivekananda International Foundation (VIF), a think tank based in New Delhi, said that any assistance that the Indian government would extend to members of the Association of Southeast Asian Nations (Asean) would depend on the comfort level of every country, apparently referring to each one’s ties with China.

A peaceful, very prosperous maritime neighborhood is very important to India, 40 percent of whose commerce relies on unimpeded passage through international waters in the Indo-Pacific region including the South China Sea, according to East External Affairs Minister Preeti Saran.

“We remain very committed to Asean’s centrality in the regional architecture,” Saran said. “We supported Asean for freedom of navigation in the important stages of communication. We remain committed to a rules-based system, respect for international law and that there should be no threat or use of force by any entity in these waters which are the global commons.”

“If there are disputes or territorial disputes of some the Asean countries with some other neighbors, we believe that all disputes should be resolved peacefully in keeping with international laws, notably the UNCLOS,” she added.

Preeti Saran

India’sEast External Affairs Minister Preeti Saran (Photo from her Facebook page)

UNCLOS – the United Nations Convention on the Law of the Sea – defines the rights and responsibilities of nations in their use of oceans, establishing guidelines for businesses, the environment, and the management of marine natural resources.

‘Issues-free relationship’ with Asean

“We have a very strong defense cooperation with some of the Asean countries,” Saran said. “But what is the beauty about our relations with Asean and each of the Asean countries is that it is without any problems. It is an issues-free relationship. There are no irritants in our relationship. In fact there is a greater desire on the part of each of the Asean countries and Asean as a regional grouping to do more business with India.”

She was referring to the recent India-Asean commemorative summit last Jan. 26, which coincided with India’s Republic Day. It was attended by all Asean heads of state, including Philippine President Rodrigo Duterte.

Saran said that the partnership between India and Asean encompasses political, security, defense, maritime, economic and cultural cooperation.

With India being one of the fastest growing world economies, growing at 7.5 percent this year and expected to grow by 8 percent in 2019, the country provides an opportunity for Asean countries to access goods and services.

“As far as India is concerned, we feel that the Asean region is our natural partner,” Saran said. “There is a lot of dynamism in the Asean region itself. Individually each of your countries are doing exceedingly well economically and we feel there are complementarities in our economies.”

“The Asean way of doing business is of consensus,” she added. “We are aware that Asean is deeply committed to peace and prosperity in the region and we feel that India is a natural partner for Asean in this desire for attaining peace and prosperity in our region which is why we remain very hopeful that our relations will only improve and issues-free that we see elements positive in our economic growth that there is a greater desire [among] Asean countries for India to be more active and actively participating, not just in economic activities but also in security cooperation.”

Common challenges

She said that India and Asean face common challenges of terrorism, piracy, maritime terrorism, extremism, and natural disasters which “come straight out of over exploitation of maritime resources, of our natural resources.”

India has developed standard operating procedures on providing humanitarian assistance in responding to natural disasters as well as disaster risk reduction management, looking at natural calamities as a cause of concern and an important area of cooperation with the Asean-member states along with the development of the so-called blue economy.

The blue economy involves the fisheries and aqua-culture sectors as well as the use of maritime resources, including oil and gas.

It was, she assured, without spoiling the environment, “because India remains very strongly committed to sustainable development.”

“We feel that  if we have to grow, to provide decent standards of living to our people, our 1.2 billion people, we cannot do so at the risk of damaging our environment,” she said. “Our growth is not at the expense of somebody else’s exploitation.”

“We are very mindful and remain very sensitive to concerns relating to sovereignty and territorial integrity,” she added.

Among areas in maritime cooperation that India hopes to explore with Asean is disaster risk reduction and management, joint patrols and exercises, and other maritime capacity-building activities.

She said India and the Asean countries, individually and collectively, could make arrangements on intelligence sharing to combat piracy at sea, terrorism, and sea-based human smuggling as well as narcotics trafficking.

Security cooperation important for India and Asean

For its part, the Vivekananda International Foundation said that it would be vital for India and Asean to explore areas of security cooperation, particularly where the “lack of order in the South China Sea” is concerned.

“Our security, prosperity, development, everything depends upon the order of the sea,” VIF senior fellow Anil Wadhwa said. “It is very important that India and Asean should begin to look at security cooperation.”

“It is not a new idea. It is an idea that has been incrementally gaining ground but we also notice that there has been hesitation on the part of some Asean countries, because of obvious reasons, to take this cooperation farther,” he added.

He assured that India would ready to have a serious security cooperation – particularly through maritime joint exercises – with Asean, individually and collectively, but any arrangement would have to be within the level of comfort of the Asean-member states.

But Wadhwa stressed that any arrangement should not be viewed as moves to oppose any country.

VIF senior fellow and research coordinator Vinod Anand observed a wavering Philippine stance on its claim to territories in the South China Sea despite securing a favorable ruling from the Permanent Court of Arbitration.

In the July 2016 ruling, the court found that the Philippines had exclusive sovereign rights over certain areas in the West Philippine Sea and that China had no historic rights to resources within the areas falling within its nine-dash line map, which has been invalidated.

Without invoking the arbitral ruling, the Philippines has since pushed for the drafting of a code of conduct in the South China Sea involving China and all other claimant-countries.

Nevertheless, Anand pointed out: “India supports freedom of navigation or flight and unimpeded commerce and international law, the UNCLOS. Any dispute should be resolved through peaceful means without threat or force… The Indian position is quite clear.”

Read more: http://globalnation.inquirer.net/163796/india-ready-help-boost-asean-maritime-security#ixzz568kznKiV
Follow us: @inquirerdotnet on Twitter | inquirerdotnet on Facebook

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China has no greater rights than any other in the sea. 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.

China exploration of Benham Rise: Trust, but verify — Philippines assisting China in future submarine war? –Could the “China Dream” become a Philippine Nightmare?

February 1, 2018
Technical divers went down to a maximum depth of 63 meters, with a bottom time of 30 minutes during the 2016 Benham Rise expedition. Oceana

“Trust, but verify.” This was one of the most poignant quotes from former American president Ronald Reagan, specifically in the context of geopolitics. Ironically, it was originally a Russian proverb, which the American president deftly deployed to deal with the Soviet Union at the height of the Cold War.

Those were, however, more than just wise words, but instead a valuable strategic dictum, which served as the foundation of Reagan’s years-long chess-like negotiations with his Soviet counterpart Mikhail Gorbachev.

Reagan believed in cooperation and confidence-building measures with even the most bitter and existential rivals – but, crucially, from a position of strength and with eyes wide-open. In many ways, the Philippines faces a similar dilemma vis-à-vis China, particularly in the South China Sea and over the past year or so in the Benham Rise.

Most Filipinos are somehow familiar with the nature of the disputes in the South China Sea and more specifically, the West Philippine Sea, which pertains to areas that fall within our Exclusive Economic Zone in the area.

Yet, it behooves us to understand what is at stake in the Behnam Rise, which falls in the Western Pacific and within the Philippine Sea. We have to keep in mind that what we are talking about here is neither an island, rock nor a low-tide elevation similar to the land features we claim and occupy in the South China Sea, but instead a volcanic ridge, which is part of our extended continental shelf.

Thus, in the Benham Rise we do have “sovereign rights”— rather than “sovereignty,” since we’re not talking about a full-fledged island or land formation — based on Article 77 of the United Nations Convention on the Law of the Sea, which makes it clear that a coastal state has sovereign rights over its continental shelf for the purpose of “exploring it and exploiting its natural resources.”

Crucially, those rights are “exclusive,” meaning other states can only do so with our express permission. The distinction between “sovereign rights” and “sovereignty” is not a major categorical difference. They are both manifestations of exclusive rights of a coastal state along a broad spectrum of jurisdictional regime.

Yes, we can’t claim the whole body of water above the ridge as our “territory” per se, but we have full and exclusive sovereign rights over “mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species” in the area. This was affirmed by a 2012 United Nations ruling, which, per UNCLOS Art. 76 no. 8, is “final” and “binding” on all signatories to the Convention.

Other states are certainly correct to emphasize their rights to freedom of navigation (FON) and overflight (FOO) in the area per UNCLOS, but that’s very rich when it comes from a country like China, which rejects an UNCLOS-based arbitration ruling as a “piece of trash paper” and claims the whole South China Sea as its own “blue nation soil” — not to mention impedes FON and FOO through massive reclamation and militarization in the Spratlys and Paracels.

In principle, there is nothing wrong with allowing other countries to conduct Maritime Scientific Research (MSR) in the Benham Rise so long as they meet our qualification criteria. And we should indeed cooperate with neighboring states such as China for confidence-building purposes as well as absolute gains of cooperation with better-endowed nations. Flatly rejecting any form of scientific cooperation with China is shortsighted.

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Chinese ocean research ship Ke Xue

Much has been said about the Philippines’ collaboration with institutions from the United States, Japan and other countries in the Benham Rise, which is rich in seabed resources, but any MSR agreement with a country like China stands out precisely because of the fact that the emerging superpower has a long-term strategy of dominating its adjacent waters.

Under its own version of the so-called “Island Chain Strategy,” China seeks naval dominance in both the East and South China Seas, part of the so-called “first island chain,” as well as the Western Pacific, specifically parts of the so-called “second island chain.”

In China’s view, the best way to defend itself from external threats, particularly the U.S., is through domination of adjacent waters – creating a maritime buffer zone as a perimeter of defense, especially for its own burgeoning maritime interests and naval capabilities, including state-of-the-art submarine bases in Hainan.

Year after year, Chinese applications for MSR in the Benham Rise have been rejected, precisely because they have refused to even accommodate, per our requirements, a single Filipino scientist to do onboard monitoring during their research. We simply don’t know the exact nature of their reported presence in the area in recent years.

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This year, they have reportedly fulfilled our requirements (though it seems not in the case of a far more reputable French institution). The MSR between Institute of Oceanology of Chinese Academy of Sciences and the University of the Philippines Marine Science Institute, its local partner, is supposed to focus on studying climate-driving ocean currents. This looks all fine and innocuous, if not commendable.

But the question remains: What is the ultimate goal of China? Many defense experts fear that MSRs are just a convenient cover for more robust security goals, namely monitoring of American naval assets in the area through placement of sensors and other surveillance equipment.  We will never know for sure what are China’s intentions, but it’s important for us to cooperate yet with eyes wide open. As Reagan put it, trust but verify.

RELATED: China: Philippines can’t claim Benham Rise | China: We respect Philippines’ rights over Benham Rise

Related video:

http://www.philstar.com/news-feature/2018/02/01/1783535/china-exploration-benham-rise-trust-verify

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China has no greater rights than any other in the sea. 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.

Australia Foreign Policy White Paper hits China’s activities in South China Sea — SCS is a “major fault line” in regional order.

December 6, 2017
In this April 21, 2017, file photo, Chinese structures and an airstrip on the man-made Subi Reef at the Spratly group of islands in the South China Sea are seen from a Philippine Air Force C-130. CSIS AMTI via DigitalGlobe, File

MANILA, Philippines — Expressing concern over the scale of China’s activities in the disputed South China Sea, Australia urged all claimants to clarify the full nature of their claims in accordance with international law.

In its 2017 Foreign Policy White Paper released a few weeks ago, Australia stressed its position that the UN-backed tribunal’s ruling on the Philippines’ arbitration case against China is “final and binding on both parties.”

Clarifying that they are not taking sides in the competing claims, Australia considers the South China Sea as a “major fault line” in the regional order.

“Like other non-claimant states, however, we have a substantial interest in the stability of this crucial international waterway, and in the norms and laws that govern it,” the Foreign Policy White Paper read.

Australia noted that they have urged all claimants to refrain from actions that would increase tension in the region. They have also called for a halt on Beijing’s land reclamation and construction activities.

Resolving dispute should be based on international law, in accordance with the United Nations Convention on the Law of the Sea (UNCLOS), Australia said in its foreign policy paper.

“Australia opposes the use of disputed features and artificial structures in the South China Sea for military purposes,” the white paper read.

The Australian government vowed to ensure international law, particularly UNCLOS, will be respected and implemented to protect freedom of navigation in the region.

Meanwhile, China criticized Australia for its “irresponsible comments” on the South China Sea.

Chinese Defense Ministry spokesperson Wu Qian stressed that Australia is not in a position to make comments on the contested waters as they are not a claimant country.

“It has been proven by facts that interference from countries outside the region can only complicate the South China Sea issue and will be of no help to regional peace and stability,” Wu said in a press briefing.

Earlier this year, Beijing also slammed US Secretary Rex Tillerson for his comment that China is using its economic powers to buy its way out of problems.

“China is a significant economic and trading power, and we desire a productive relationship, but we cannot allow China to use its economic power to buy its way out of other problems, whether it’s militarizing islands in the South China Sea or failure to put appropriate pressure on North Korea,” Tillerson said in Sydney last June.

Beijing had been insisting that the situation in the South China Sea has “cooled down” following direct consultations and dialogues with claimant states.

RELATED: China assures Philippines: No military force in South China Sea

http://www.philstar.com/headlines/2017/12/06/1765852/australia-hits-chinas-activities-south-china-sea-foreign-policy-paper

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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.

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.

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