Posts Tagged ‘United Nations Convention on the Law of the Sea’

The Philippines: A Lesson in How Nation’s Lose Their Dignity (And Their Property)

March 23, 2018
 / 05:12 AM March 23, 2018

As a history teacher, I must object to President Duterte’s order to quit the International Criminal Court. With it, we lose our dignity as a nation.

The ICC is part of the United Nations, and the Philippines is part of the United Nations. Back in 1945 when the UN was founded, there were only three other Asian nations that participated. Our officials signed the original charter, hoping that we would become an upstanding member of this important organization. The UN and the Philippines both grew up together.

Since 1945, our soldiers have been actively involved in peacekeeping missions. Our dues have helped other nations, and during catastrophes, the UN has helped us. We have gotten advice from Unicef on Filipino child health and welfare. The United Nations Convention on the Law of the Sea backed us up in the West Philippine Sea dispute with China.

Our government and nongovernment officials have become leaders in the organization. Carlos P. Romulo was elected president of the UN. We have been president of the Security Council seven times.

The UN and its judicial wing, the ICC, put pressure on nations to uphold human rights. We agreed to these human rights. We agreed to uphold the goals of this body. Yet now, President Duterte wants to pull out of the ICC, and put our good reputation in the trash bin. If he does not have anything to hide, why is he afraid? Why must we tear up our agreement with the rest of the world? Obligations are obligations and should not be thrown away, just because of the bad behavior of one president.


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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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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.




We’ve heard 白痴國家 (Means “Idiot Nation”)




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

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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


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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: More Diplomatic Engagement Needed, Vietnam’s Ambassador to India Says — “One Nation Cannot Block Off The Sea”

November 9, 2017


New Delhi, Nov 7 — In the backdrop of China’s growing assertiveness in the South China Sea, Vietnam today said “more diplomatic engagement” was needed to resolve the issue and that the region should not move towards a conflict situation.

Interacting with reporters at the Foreign Correspondents Club here, Vietnam’s Ambassador to India Ton Sinh Thanh, however, asserted that “whatever belongs to Vietnam has to be defended”.

He said South China Sea was an important maritime region and the trade of some of the world’s powerful countries, including the US and India, was conducted through it.

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Ton Sinh Thanh — Vietnam’s Ambassador to India. Photo by Priyanka Parashar — Mint

“China is not just a big country, but also a big neighbour. The South China Sea is a complicated problem and related not just to the island but also the exclusive economic zone. However, we do not have any other way (out of this problem) than through talks and negotiations.

“We should not move to a situation where we have to involve in a conflict. We need more diplomatic engagement and legal measures to solve this problem,” Thanh said in response to a question on Vietnam’s position on the South China Sea issue.

“Our position on this issue is very clear. We have already entered into a declaration with China as regards the code of conduct in the South China Sea. Hope there would be support from other countries, inside and outside of the region,” he said.

China claims sovereignty over all of South China Sea, a huge source of hydrocarbons. However, a number of ASEAN member countries, including Vietnam, the Philippines and Brunei, have counter claims.

“But, of course, we have to be prepared. Whatever belongs to Vietnam, we have to defend. We have to defend our island and the exclusive economic zone,” the envoy said.

An exclusive economic zone (EEZ) is a sea zone as prescribed by the United Nations Convention on the Law of the Sea, over which a country has special rights regarding exploration and use of marine resources, including energy production from water and wind.

“There should be a voice from the region. If South China Sea is blocked, what will happen,” Thanh asked.




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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 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.”


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.”


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.



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.



ASEAN calls for South China Sea non-militarization

August 7, 2017
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Southeast Asian foreign ministers yesterday called for non-militarization and self-restraint in the conduct of all activities by claimants and all other states in the South China Sea. File

MANILA, Philippines — Southeast Asian foreign ministers yesterday called for non-militarization and self-restraint in the conduct of all activities by claimants and all other states in the South China Sea.

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“We emphasized the importance of non-militarization and self-restraint in the conduct of all activities by claimants and all other states, including those mentioned in the DOC (Declaration on the Conduct of Parties in the South China Sea) that could further complicate the situation and escalate tensions in the South China Sea,” the ministers declared in a delayed joint communiqué.

The statement said the ministers discussed extensively the matters relating to the South China Sea and took note of the concerns expressed by some of them 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.

They reaffirmed the importance of maintaining and promoting peace, security, stability, safety and freedom of navigation in and over-flight above the South China Sea.

They also cited 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.

The ministers also underscored the importance of the full and effective implementation of the DOC in its entirety.

They welcomed the improving cooperation between ASEAN and China and are encouraged by the conclusion and adoption of the framework of a Code of Conduct in the South China Sea, which will facilitate the work for the conclusion of an effective COC on a mutually agreed timeline.

“In view of this positive momentum, we reaffirmed our readiness to begin the substantive negotiation on the COC and tasked our senior officials to start the negotiation on the COC with China. We recognized the benefits that would be gained from having the South China Sea as a sea of peace, stability and prosperity,” the statement said.

Pending the early adoption of an effective COC, the ministers stressed the importance of undertaking confidence building and preventive measures to enhance, among others, trust and confidence among all parties.

ASEAN welcomed the successful testing of the MFA-to-MFA (Ministry of Foreign Affairs-to Ministry of Foreign Affairs) hotline to manage maritime emergencies in the South China Sea.

Beijing looks forward to the operationalization of the joint statement on the observance of the Code for Unplanned Encounters at Sea in the South China Sea.

“In our view, these are practical measures that could reduce tensions, and the risks of accidents, misunderstandings and miscalculation,” the statement said.


 (Includes links to related articles)

Philippines and Vietnam Have Legal Claims in the South China Sea; China Does Not — Philippine Supreme Court Senior Justice Has a Way To Follow The Law

August 4, 2017
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War never is an option. Diplomacy can fortify the UN ruling on Manila’s row with Beijing. Supreme Court Senior Justice Antonio T. Carpio enumerates some diplomatic initiatives, in a presentation to the Stratbase-Albert del Rosario Institute. Third of four parts:

There is no world policeman or sheriff to enforce the arbitral ruling. However, states that ratified the United Nations Convention on the Law of the Sea expressly bound themselves to comply in good faith with decisions of arbitral tribunals created under UNCLOS. China is reneging on this treaty obligation.

The option for the Philippines is not “talk or go to war with China.” This is a false option, and shows a dismal lack of understanding of international law and relations.

First, the Philippine Constitution prohibits war as instrument of national policy. Second, the UN Charter has outlawed war as a means of settling disputes between states. In resolving the SCS dispute, war is not and has never been an option. That is precisely why the Philippines filed the arbitration case against China.

If the Philippines starts a war against China, it would surely lose, and lose badly. If the Philippines is the aggressor, that will violate the Constitution and the UN Charter. The Philippines cannot invoke the Philippine-US Mutual Defense Treaty because the treaty is only for defense, not for aggression. President Duterte’s oft-repeated question – whether the US will support and join the Philippines if we go to war against China – is a misguided question because the US is not bound by the Philippine-US Mutual Defense Treaty to support any act of aggression by the Philippines. If the US joins the Philippines in a war of aggression, the US will also be in breach of the UN Charter.

China itself does not want to start a war because war will give the US an excuse to intervene in the SCS dispute, since to defend itself the Philippines will certainly invoke the Philippine-US Mutual Defense Treaty. China’s strategy is to control the SCS without firing a shot. Those who raise the issue of war with China either do not understand the Three Warfares Strategy of China, or are scaring the Filipino people to submit to China’s designs in the SCS.

The real and practical option for the Philippines is to “talk with China while taking measures to fortify the arbitral ruling.” We should talk with China on the COC, on the Code for Unplanned Encounters at Sea (CUES) for naval and coast guard vessels, on conservation of fish stocks, on preservation of maritime environment, and on how our fishermen can fish in Scarborough Shoal. There are many other things to talk with China on the SCS dispute even if China refuses to discuss the arbitral ruling.

As we talk with China, we can fortify the ruling in many ways:

(1) The Philippines can enter into a sea boundary agreement with Vietnam on our overlapping Extended Continental Shelves in the Spratlys, based on the ruling of the tribunal that no geologic feature in the Spratlys generates an EEZ. Such an agreement implements part of the arbitral ruling by state practice.

(2) The Philippines can enter into a sea boundary agreement with Malaysia on our overlapping EEZ and ECS in the Spratlys, again based on the ruling that no geologic feature in the Spratlys generates an EEZ. Such agreement also implements part of the ruling by state practice.

(3) The Philippines can file an ECS claim beyond our 200 NM EEZ in the West Philippine Sea off the coast of Luzon. If China does not oppose, the United Nations Commission on the Limits of the Continental Shelf (UNCLCS) will award the ECS to the Philippines, similar to our ECS claim in Benham Rise where there was no opposition. If China opposes our ECS claim, it will have a dilemma on what ground to invoke. If China invokes the nine-dashed lines again, the UNCLCS will reject the opposition because the UNCLCS is bound by the ruling of the arbitral tribunal which, like the UNCLCS, was created under UNCLOS. If China claims an overlapping ECS, then China will be admitting that the Philippines has a 200 NM EEZ from Luzon that negates the nine-dashed lines.

(4) The arbitral tribunal has ruled that no geologic feature in the Spratlys generates an EEZ. The Philippines can initiate an agreement among all ASEAN disputant states – Vietnam, Malaysia, Brunei, Indonesia and Philippines – declaring that no geologic feature in the Spratlys generate an EEZ that could overlap with their respective EEZs. 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. This will isolate China as the only state claiming an EEZ from geologic features in the Spratlys.

(5) The Philippines can claim damages before an UNCLOS tribunal for the “severe, permanent harm” to the marine environment, as ruled by the arbitral tribunal, that China caused within Philippine EEZ in the Spratlys because of China’s dredging and its failure to stop Chinese fishermen from harvesting endangered species.

(6) In case China shows signs of reclaiming Scarborough Shoal, the Philippines can file a new case before an UNCLOS arbitral tribunal to stop the reclamation because any reclamation in Scarborough Shoal will destroy the traditional fishing ground common to fishermen from the Philippines, Vietnam and China as ruled by the tribunal.

The ruling involves only maritime, not territorial issues. Enforcing it does not mean forcibly evicting China from the islands and high-tide elevations it occupies in the SCS, as occupation of these geologic features is a territorial issue. There are still many commentators in media who fail to distinguish between territorial and maritime disputes, and thus wrongly conclude that enforcing the ruling means going to war with China on the territorial dispute. (More on Monday)

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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.


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South China Sea: A Year Later, China Shows No Regard for Arbitration Ruling, International Law

July 18, 2017
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A Chinese H-6K bomber keeps watch over Scarborough Shoal (China calls Huangyan) in the Philippines. PLA photo from Xinhua

About one year ago a five-judge tribunal based at the Permanent Court of Arbitration in The Hague announced its decision in a case filed by the Philippines in 2013 against China over their disputed claims in the South China Sea.

It came after a stand-off between the two countries over the Scarborough Shoal the previous year; China ultimately seized the shoal from Manila’s control and maintains a presence there to this day.

The case brought before the tribunal concerned maritime entitlements and the status of features in the South China Sea, among other issues. It did not seek to adjudicate the territorial sovereignty of features, given that this was outside the purview of the tribunal.

The ruling should have become a major reaffirmation of the principle that, in the South China Sea, might could not make right. Instead, one year on, little has changed and the tribunal’s award sits as a mere piece of paper.The court unanimously ruled in favour of the Philippines on nearly all points. China had refused to participate in the proceedings and treated them as invalid.

The reasons for this are complex. Partly, this outcome involves a tragedy of timing. Just days before the award was released, the pro-American and internationalist government of Philippine President Benigno Aquino III was replaced by the government of current leader President Rodrigo Duterte.

Instead of enthusiastically pursuing justice backed by the full weight of international law, he effectively began a 180 degree turn in Manila’s relations with Beijing.

The Philippines also took over the chairmanship of the Association of Southeast Asian Nations, exercising considerable sway over its agenda and making it less useful than usual on the South China Sea. (Not that ASEAN ever was a trailblazer on the issue before Duterte.)

China, in the meantime, reciprocated the overture. While many Western analysts, including yours truly, had anticipated Beijing would react with rage initially and eventually balk at the reputational costs of explicitly flouting an international verdict, this never came to pass.

Beijing, perhaps acting as many great powers have in the past, kept calm and carried on its activities in the South China Sea, continuing to press its claims to “traditional fishing grounds” and its nine-dash line as far south as Indonesia’s exclusive economic zone.

In the end, what was supposed to be the most significant international legal verdict on maritime entitlements in the South China Sea largely fizzled away.

The ruling, however, has not been forgotten. The United States continues to throw its support behind it, albeit sparingly. Most recently, U.S. Defense Secretary Jim Mattis told attendees of the Shangri-La Dialogue that the United States called on “all claimants to use this as a starting point to peacefully manage their disputes in the South China Sea.”

But, as an extra-regional power, the United States’ ability to goad the South China Sea claimant states (and ASEAN) into full-throated support for the decision remains distant.

ASEAN and China have kept up the appearance of progress on their disputes by coming to an agreement on a toothless non-binding draft “framework” for a long-awaited code of conduct in the disputed waters.

The document, which was not released publicly, is likely to serve as China’s way of showing it is doing just fine managing its disputes without either the United States’ intervention or that of any international court.

The good news is that while the salience of the ruling over the past year has been disappointing, it will remain a fact of history that in 2016, China was found to have been in violation of several of its commitments as a signatory to the United Nations Convention on the Law of the Sea.

The bad news is that even if regional states and the Philippines experience a change of heart and decide to pursue what is legally theirs according to the court, Beijing will have already extended its presence across the South China Sea, with its seven artificial islands in the Spratly group and growing coastguard and naval presence.

In the end Beijing was fortunate to largely avoid the fallout of the ruling, but even if the 500-page document transitions into obscurity, it will remain a fact of life in the South China Sea.

Future governments – both in the region and outside it – will be able to reference it without end as a reminder of Beijing’s status as a rule-breaker.

This article originally appeared in the South China Morning Post and is republished here with kind permission.

 (Contains links to several more related articles)

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Dominance of the South China Sea, the Malacca Strait and the Indian Ocean would solidify China’s One Belt One Road project
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The international arbitration court in the Hague said on July 12, 2016, that China’s “nine dash line” (what Bill Hayton calls the U-shaped line) was not recognized under international law — making the Vietnamese and Philippine claims on South China Sea islands valid and lawful.
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China’s aircraft carrier Liaoning at Hong Kong

 (Contains links to information about Vietnam’s renewed efforts to extract oil and gas from the sea bed)

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Philippines’ Greatest International Victory — Document to peacefully resolve disputes by international law — Lost by the wayside

July 15, 2017
 / 05:18 AM July 15, 2017

On July 12 a year ago, the Philippines won a stunning victory on the international front when the case it had brought against China was upheld by the Permanent Court of Arbitration in The Hague. The ruling invalidated China’s claim to almost all of the South China Sea: The court said China has “no historical rights” on the area via its so-called “nine-dash line,” and recognized the Philippines’ sovereign rights to fish and explore for minerals in waters within its 370-kilometer exclusive economic zone.

“Having found that none of the features claimed by China was capable of generating an exclusive economic zone, the Tribunal found that it could—without delimiting a boundary—declare that certain sea areas are within the exclusive economic zone of the Philippines, because those areas are not overlapped by any possible entitlement of China,” declared the ruling.

Not only that. While the court said it would not “rule on any question of sovereignty over land territory and would not delimit any maritime boundary between the Parties” (China and the Philippines), it unequivocally declared that China had violated the Philippines’ sovereign rights in its exclusive economic zone “by (a) interfering with Philippine fishing and petroleum exploration, (b) constructing artificial islands and (c) failing to prevent Chinese fishermen from fishing in the zone.”

In much of the international community, the ruling was immediately hailed as a milestone document, a way forward to clarify and resolve, via international law, the bitter disputes that have arisen over ownership and fishing rights in the South China Sea (Vietnam, Malaysia and Brunei have competing claims to it alongside China and the Philippines). As late as last April, the issue was in the minds of the foreign ministers of the Group of Seven (G7) advanced economies—Canada, France, Germany, Italy, Japan, the United Kingdom and the United States—when it issued a statement backing the ruling, saying it could be “a useful basis for further efforts to peacefully resolve disputes in the South China Sea.” G7 added that it strongly opposed “any unilateral actions which increase tensions, such as the threat or use of force, large-scale land reclamation, building of outposts, as well as their use for military purposes and urge all parties to pursue demilitarization of disputed features and to comply with their obligations under international law.”

That reminder was deemed necessary, because China had not only rejected the tribunal’s ruling despite being a signatory to the United Nations Convention on the Law of the Sea, under which the arbitration case was heard; it also defied world opinion by upping the ante, constructing military facilities on three islands in the disputed region that have now allowed it to potentially deploy military forces and exercise an effective lockdown over the vital waters.

While other claimant countries have continued to protest Beijing’s muscle-flexing, the Philippines, the main beneficiary of the tribunal’s ruling, has instead chosen rapprochement with China by, first of all, “setting aside” the historic decision. That was how President Duterte worded his rebooted foreign policy, under which the Philippines would be silent for now on its legal claim, in exchange for billions of dollars in loans and financial commitments from its giant economic neighbor. The President sees it as a pragmatic arrangement: The Philippines is in no shape to fight China militarily, and so must assume a less provocative, more suppliant position.

Meanwhile, China’s encroachment and increasing control over the West Philippine Sea continues.

Only time will tell if the Duterte administration’s strategy over this invaluable piece of national patrimony is correct, or if in fact, as Supreme Court Senior Associate Justice Antonio Carpio said, it “dropped the ball.”

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