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

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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South China Sea: One Year After The Philippines Win At The Permanent Court of Arbitration — Brilliant Statecraft or Treason?

July 12, 2017

By Ellen Tordesillas

Posted at Jul 12 2017 02:46 AM

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One of the good things that President Duterte has done was to rekindle relations with China which reached its lowest ebb during the administration of Benigno Aquino III.

Never mind that during the election campaign, he rode on the anti-China sentiments of most Filipinos fueled by the pro-American leanings of Aquino and his Foreign Secretary, Albert del Rosario.

Remember, a standard in Duterte’s campaign speech was his boast that he will ride on a jet ski to one of the islands in the disputed Spratlys and plant the Philippine flag. He would kiss the flag to dramatize his promise. Once in Malacanang, he was asked when he was going to jetski to Spratlys and he replied it was a joke. He said he didn’t even know how to swim.

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In the guise of independent foreign policy, Duterte didn’t just cozy up to China. He attacked the United States when then President Barack Obama reminded him to respect human rights amid reports of rampant killings in connection with his anti-illegal drugs campaign.

His foreign policy moves can be likened to a pendulum that swung from extreme right to extreme left. Today marks first year anniversary of the ruling of the Permanent Court of Arbitration in The Hague, Netherlands on the case filed by the Philippines against China on the latter’s activities in the disputed waters of the South China Sea.

China did not participate in the Arbitral Court proceedings.

It was a major victory for the Philippines. The Arbitral Court declared invalid China’s nine-dashed line map which covers some 85 percent of the whole South China which infringes on the economic exclusive zones of other countries namely the Philippines, Vietnam, Malaysia and Brunei.

The Arbitral Court also ruled that China’s  artificial islands – rocks that were turned into garrisons through reclamation – in the disputed South China Sea do not generate entitlements under the United Nations Convention on the Law of the Sea such as economic exclusive zone (220 nautical miles from the shore) and extended continental shelf (350 nautical miles).

As to Scarborough or Panatag Shoal, which is within the Philippine EEZ, the Arbitral Court said it’s a traditional fishing ground of Philippine, Chinese, Vietnamese and fishermen of other nationalities and should be maintained as such.

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Filipino fishermen had been denied access to the area since April 2012 after a two-month stand off between Chinese and Philippine Coastguards following arrest by a Philippine warship of Chinese fishermen in Scarborough shoal. Two Chinese ships remained even after the Aquino government withdrew its ships.

Duterte takes pride that because of his friendship with Chinese President Xi Jinping, Filipino fishermen are now allowed to fish in the area, which is being guarded by two Chinese ships.

It’s like a battered wife thankful that the husband has stopped beating her.

Duterte’s critics have scored his deference to China even  echoing  the position of China that historically South China Sea is theirs  as the name states.

In an ambush interview last April. Duterte said, “They really claim it as their own, noon pa iyan. Hindi lang talaga pumutok nang mainit. Ang nagpainit diyan iyong Amerikano. Noon pa iyan, kaya (It goes way back. The issue just did not erupt then. What triggered the conflict were the Americans. But it goes all the way back. That’s why it’s called) China Sea… sabi nga nila (they say) China Sea, historical na iyan. So hindi lang iyan pumuputok (It’s historical. The issue just had not erupted then) but this issue was the issue before so many generations ago.”

VERA Files fact-check about the name of South China Sea showed  that  South China Sea used to be called the Champa Sea, after the Cham people who established a great maritime kingdom in central Vietnam from the late 2nd to the 17th century.

That is contained in the book,  ‘The South China Sea Dispute: Philippine Sovereign Rights and Jurisdiction in the West Philippine Sea” by  Senior Associate Justice Antonio Carpio.

Carpio said it was the  Portuguese navigators who coined the name South China Sea.

“The ancient Malays also called this sea Laut Chidol or the South Sea, as recorded by Pigafetta in his account of Ferdinand Magellan’s circumnavigation of the world from 1519 to 1522. In Malay, which is likewise derived from the Austronesian language, laut means sea and kidol means south,” he further said.

“The ancient Chinese never called this sea the South China Sea. Their name for the sea was “Nan Hai” or the South Sea, he adds.

Reading Duterte’s blurting the Chinese line on the South China name, Ruben Carranza, former commissioner of the Presidential Commission on Good Government and now director of the Reparative Justice Program at the International Center for Transitional Justice, said “In football, that would be an ‘own goal.’

That’s when a player delivers the ball to the opponent’s goal.



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

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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” 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

Winning against China

June 13, 2017

This is the final column based on Justice Antonio Carpio’s e-book The South China Sea Dispute: Philippine Sovereign Rights and Jurisdiction in the West Philippine Sea. I summarize here Justice Carpio’s interpretation of the decision of the arbitral tribunal in the Permanent Court of Arbitration that upheld the Philippine positions on most issues. I also share Justice Carpio’s suggestions on how the Arbitral Award can be enforced.

On the Scarborough Shoal, the Tribunal ruled that the Shoal is a high-tide elevation entitled to a 12-nautical mile territorial sea but not to a 200-NM exclusive economic zone since obviously it is not capable of human habitation. The territorial sea of Scarborough Shoal, which includes the lagoon, is however a traditional fishing ground of Filipino, Chinese, and Vietnamese fishermen. In any case, China cannot prevent Filipino fishermen from fishing in the territorial sea of Scarborough Shoal.

China claims the Scarborough Shoal because the shoal was allegedly the observation point in the South China Sea where Guo Shoujing erected in 1279 CE an astronomical observatory. This claim is belied by the fact that China had already identified Xisha (the Paracels) as the observation point when China presented its argument against Vietnam in 1980. As clearly pointed out by Carpio: “The biggest rock on Scarborough Shoal is just 1.2 meters above water at high tide, and not more than six to 10 people can stand on it.  It is physically impossible to erect, or operate, the massive astronomical observatories of Guo Shoujing on the tiny rocks of Scarborough.”

As regard the environment, the arbitral tribunal ruled that China violated its obligation under the United Nations Convention on the Law of the Sea to “protect and preserve the marine environment” when China: (a) Dredged and built islands on seven reefs;  (b)Failed to prevent its fishermen from harvesting endangered species like sea turtles, corals, and giant clams in the Spratlys and Scarborough Shoal.

Other issues raised on which the arbitral tribunal has ruled are:

China violated the exclusive right of the Philippines to its EEZ when China: (a) Interfered with fishing activities of Filipino fishermen within Philippine EEZ, including imposing a fishing moratorium within Philippine EEZ; (b) Interfered with petroleum activities of Philippine-commissioned vessels within Philippine EEZ; (c) Failed to prevent Chinese fishermen from fishing within Philippine EEZ; and (d) Constructed an artificial island and structures on an LTE (Mischief Reef) within Philippine EEZ.

China also violated its obligation not to aggravate the dispute during the arbitration when China: (a) Dredged the reefs, reclaimed and built the islands while the proceedings were ongoing, and; Destroyed the evidence of the natural condition of the geologic features at issue when China dredged and reclaimed them while the proceedings were ongoing.

Finally,  China violated its obligation to observe maritime safety when Chinese coast guard vessels crossed the path of Philippine vessels at high speed.

In conclusion, Justice Carpio suggests ways forward in the enforcement of the arbitral award, namely: (a) Enforcement of the award by the world’s naval powers with respect to freedom of navigation and overflight for military vessels and aircraft; and, (b)  Enforcement of the award by the Philippines with respect to its exclusive right to exploit the resources of its EEZ in the South China Sea.

On the first enforcement method, Justice Carpio observed that naval powers such as the United States, France and Great Britain can enforce the award by sailing and flying, and conducting military activities, in the high seas and EEZs of the South China Sea.

On the second method of enforcement, the Philippines can do several things, such as suing in a jurisdiction that ratified UNCLOS, move before the International Seabed Authority for the suspension of China’s exploration permits in the area, move before the U.N. Commission on the Limits of the Continental Shelf (CLCS) for the suspension of China’s application for an ECS in the East China Sea, can negotiate its maritime boundaries with Malaysia (EEZ and ECS) and Vietnam (ECS), applying the Arbitral Tribunal’s ruling that no geologic feature in the Spratlys generates an EEZ and that the nine-dashed line has no legal effect on maritime entitlements, can delineate its ECS from Luzon and file its claim with the CLCS, there being no legal impediment from the nine-dashed line, and the Philippine navy and coast guard vessels and aircraft can continue to patrol  Philippine EEZ in the West Philippine Sea.

As a final word, Justice Carpio emphasized that the leaders of our nation must exercise utmost deliberation, consistency, and perseverance in seeking ways to enforce what the arbitral tribunal has finally awarded to the Philippines as its own EEZ in the West Philippine Sea.  Silence or inaction is no way to go as this can be interpreted as a state’s acceptance of a factual or legal situation.

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Supreme Court Senior Associate Justice Antonio Carpio

It is fitting to end this series this week, when we celebrate Independence Day of the Philippines. There can be no real independence without securing our sovereignty.  President Duterte’s approach to foreign policy, while laudable for its independence, has been reckless on its defense of national territory. Thankfully, we have Justice Antonio Carpio to remind our leaders of what needs to be done, I reiterate what I said at the beginning of this series, Justice Tony is a hero, a defender of the country’s territory and of our Constitution. Let’s be thankful for that.

Facebook: Dean Tony La Vina Twitter: tonylavs


(Contains links to previous related articles)

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For about five years China has been loudly proclaiming “indisputable sovereignty over the South China Sea.” China has said, everything north of the “nine dash line” shown here, essentially, belongs to China.  On July 12, 2016, the Permanent Court of Arbitration in The Hague said China’s “nine dash line” was not recognized under international law.