Monthly Archives: November 2013

With Air Defense Zone, China is Waging Lawfare

The tension surrounding the East China Sea Air Defense Identification Zone (ADIZ) is being covered in the kind of exhaustive detail that is rarely given to Asia’s maritime disputes. Many reports have surfaced claiming that the move might have been a strategic blunder for China. Yet, I’ve yet to see any reports explaining in precise details what China was hoping to accomplish by creating the ADIZ. To be sure, Beijing probably took some joy in seeing the anger the move sparked in Tokyo, particularly given that it perceives its creation of the East China Sea ADIZ as little different from Japan purchase of the Diaoyu/Senkaku Islands last year. But foreign policy is rarely based solely on vengeance. Indeed, creating the East China Sea ADIZ was much more sophisticated and part of a larger strategy China has been pursuing long before last weekend. Read more: http://thediplomat.com/2013/11/with-air-defense-zone-china-is-waging-lawfare/

China sends fighter jets to patrol new air defense zone

BEIJING — The Chinese air force sent its mainstay Su-30 and J-11 fighters and an early-warning aircraft to patrol its air defense identification zone on Thursday, an air force spokesman told China’s state-run Xinhua news agency. The spokesman said the air force “will make patrol flights within the zone standard practice,” but did not clarify whether Thursday’s patrol zone overlapped with those of Japan, South Korea and Taiwan. The air force said it will remain on high alert and protect its air defense security “by taking measures commensurate with the level of threats.” The comment was apparently aimed at curtailing the repeated entry of U.S. and Japanese forces jets into the area without prior notice. Read more: http://asia.nikkei.com/Politics-Economy/International-Relations/China-sends-fighter-jets-to-patrol-new-air-defense-zone

Beijing’s grand vision of a blue-water Chinese lake

TOKYO — China’s assertive demarcation of the airspace over the East China Sea hints at an ambitious yet risky long-term strategy of maritime control. “I thought this would happen one day, but never that they would go ahead so soon,” said a Japanese national security source after China declared its new air defense identification zone last Saturday. Chinese national security advisers had mooted the idea before. One put the objective this way, according to the source: The Americans and Japanese have their own zones, allowing them to fly in international skies as if they were in their own airspace. China needed one, too.   Read more: http://asia.nikkei.com/Politics-Economy/Policy-Politics/Beijings-grand-vision-of-a-blue-water-Chinese-lake

THE RULE OF LAW IN THE WEST PHILIPPINE SEA DISPUTE

(Publication Version) Speech delivered before the Philippine Bar Association 29 August 2013 Justice Antonio T. Carpio In the 17th century, England, Spain and Portugal, the naval superpowers of the day, claimed ownership of the oceans and seas they discovered, and enforced their claims through the barrel of the naval cannon. In 1609, Hugo Grotius, the father of international law, argued in his classic Mare Liberum (The Free Sea) that the oceans and seas belonged to all mankind and no nation could claim them as its own. After over a century of battle between those who insisted on ownership of the oceans and seas and those who fought for freedom of the oceans and seas for all mankind, Grotius’ idea eventually prevailed and became part of international law. It also laid the foundation for the law of the sea. In this the 21st century, China, Asia’s rising regional naval power, is claiming ownership by historical right to almost 90% of the South China Sea. China’s claim, represented by its 9-dashed line map, echoes the 17th century maritime claims of the naval superpowers of that era. China is enforcing its claim through its rapidly growing naval fleet. If left to stand, China’s claim will bring the world back to the turbulent maritime era 400 years ago, when nations claimed the oceans and seas and maritime claims were settled through the naval cannon, not through the Rule of Law. What is the dispute in the West Philippine Sea? China claims “indisputable sovereignty” over all the waters, islands, reefs, rocks, seabed, minerals, and living and non-living resources falling within its 9-dashed line claim in the South China Sea. The 9-dashed line area comprises almost 90% of the total area of the South China Sea. China’s 9-dashed line claim encroaches on 80% of the Philippines’ 200-nm exclusive economic zone (EEZ) and 100% of its 150-nm extended continental self (ECS) facing the South China Sea – what the Philippines calls the West Philippines Sea. China’s 9-dashed line claim has similar effects on the EEZs and ECSs of Vietnam, Malaysia, Brunei and Indonesia facing the South China Sea. The countries most adversely affected by China’s 9-dashed line claim, in terms of the size of the area encroached by the 9-dashed line claim, are the Philippines, Vietnam, Malaysia, Brunei and Indonesia, in that order. Is there an international law that governs the resolution of the West Philippine Sea dispute? The 1982 United Nations Convention on the Law of the Sea, or UNCLOS, which entered into force in 1994, governs the conflicting maritime claims in the South China Sea. All the claimant states in the South China Sea dispute, including the Philippines and China, have ratified UNCLOS. UNCLOS is the Constitution for the world’s oceans and seas. UNCLOS codified the then existing customary international law of the sea, created novel entitlements in favor of coastal and landlocked states, and adopted a compulsory dispute settlement mechanism to insure that there is a final authoritative body to interpret and apply its provisions. UNCLOS has been ratified by 165 states, comprising an overwhelming majority of the members of the United Nations. For this reason, even the novel maritime entitlements under UNCLOS in favor of coastal and land-locked states, which maritime entitlements have been consistently affirmed by international tribunals since 1994, now form part of customary international law. Even non-signatory states, as well as signatory states that later withdraw from UNCLOS, are bound by these maritime entitlements. UNCLOS governs only maritime entitlements, maritime space and maritime disputes. The maritime entitlements of states – the territorial sea, EEZ and ECS and their resources – emanate and are drawn only from baselines on continental land or islands. UNCLOS provides for a compulsory dispute settlement mechanism, subject to certain types of disputes that states are allowed to exclude from compulsory arbitration. All states that ratified UNCLOS bound themselves in advance to this compulsory dispute settlement mechanism. The Philippines and China, having ratified UNCLOS, are bound by this compulsory dispute settlement mechanism. UNCLOS does not govern territorial sovereignty disputes over land or land features in the oceans and seas. Territorial sovereignty disputes over land or land features – that is, islands, reefs and rocks above water at high tide – are governed by the rules and principles of general international law. An international tribunal can acquire jurisdiction over territorial sovereignty disputes only with the consent of the states that are parties to the particular dispute, in the absence of a treaty binding them in advance to the jurisdiction of such tribunal. There is no such treaty between the Philippines and China. In short, any maritime dispute between the Philippines and China is subject to compulsory arbitration under UNCLOS, except for the disputes that China has excluded from compulsory arbitration in accordance with UNCLOS. In contrast, the territorial sovereignty dispute between the Philippines and China over land and land features is not subject to compulsory arbitration. What is the right or entitlement of the Philippines under international law that is being violated by China? Under UNCLOS, every coastal state is entitled as a matter of international law to a 200-nm EEZ, plus an additional 150-nm ECS where applicable, drawn from baselines on continental land or islands. In lieu of this additional 150-nm ECS, a coastal state may adopt an ECS of up to 100-nm seaward from the 2,500 meter isobath. This legal maritime entitlement is one of the most important reasons why developing coastal states approved UNCLOS. Without this important legal maritime entitlement there might have been no UNCLOS. In case of overlapping EEZs or ECSs, the opposing or adjacent coastal states shall negotiate in good faith an equitable maritime boundary. Also, land-locked states joined UNCLOS for two reasons: first, the area of the sea beyond the EEZ of a coastal state, called the high seas, is open to fishing for all states, whether coastal or land-locked; and second, the seabed and its minerals beyond the ECS of a coastal state is declared the common heritage of mankind – belonging to all states, whether coastal or land-locked. China’s 9-dashed line claim negates, and thus violates, the Philippines’ legal entitlement under UNCLOS to an EEZ and ECS. China’s 9-dashed line claim also negates, and thus violates, the right of all states on this planet, including the Philippines, to fish in the high seas or […]

Putin vows to boost Russian military supplies to Vietnam amid South China Sea dispute

ussian President Vladimir Putin has pledged to expand military supplies to Vietnam, a move that looks set to raise concerns from Beijing as tensions over the South China Sea linger. In the latest sign of deepening military ties between the former allies, Putin made the announcement yesterday during a one-day state visit to Vietnam. While still in a headlock with Vietnam over maritime territorial disputes, China sees closer Russia and Vietnam military ties as a move to counterbalance its rising power in the region. Beijing is likely to be closely watching any discussion on future military co-operation between Russia and Vietnam during Putin’s visit, according to Zhang Mingliang , an expert on China’s relations with Southeast Asian countries from Guangzhou’s Jinan University. Read more: http://www.scmp.com/news/asia/article/1354235/putin-vows-boost-russian-military-supplies-vietnam-amid-south-china-sea

Why Is China Giving the Philippines the Cold Shoulder?

In the wake of the devastating Typhoon Haiyan, international aid is flowing to the Philippines. The United Nations released $25 million from an emergency fund and the United States pledged $20 million in immediate relief. But, for the moment at least, precious little assistance is coming from the region’s behemoth. The Chinese authorities announced a paltry $100,000 in humanitarian aid (along with another $100,000 via the Red Cross Society of China). Beijing’s cold shoulder fits with a broader diplomatic isolation of Manila, which China has shepherded. In recent months, China’s foreign minister has met with all 10 counterparts from the Association of Southeast Asian Nation (ASEAN) member-states — except the Philippines. A key point of friction has been the Philippines’ willingness to challenge Beijing’s maritime claims.   Read more: http://www.foreignpolicy.com/articles/2013/11/12/why_is_china_giving_the_philippines_the_cold_shoulder_typhoon_relief

The Chinese view on the Philippine arbitration on the West Philippine Sea

Participants to the recently concluded 4th biennial Conference of the Asian Society of International Law in New Delhi, India last November 15, 2017 heard for the first time the Chinese position on the Philippine arbitral claim on the West Philippines Sea dispute. In the said conference, I delivered a paper entitled “What next after the Chinese Snub? Examining the UNCLOS dispute settlement procedure: Philippines vs. China”. My paper argued that the issues that the Philippines brought to the arbitral claims, to wit, the validity of China’s nine-dash lines, whether certain low-tide elevations where China has built installations pertain to the Philippines as part of its continental shelf; and whether the waters surrounding the territorial sea of Panatag form part of the Philippines EEZ are issues of interpretation of specific provisions of the UNCLOS and hence, were within the compulsory and binding dispute settlement procedure of the UNCLOS.   Read more: http://harryroque.com/2013/11/21/the-chinese-view-on-the-philippine-arbitration-on-the-west-philippine-sea/

‘Yolanda’ kicks out Chinese from Ayungin Reef, Philippine Marines on grounded ship safe

MANILA – Super typhoon Yolanda has sent home Chinese maritime and Navy vessels at the Ayungin Reef in Palawan, while the half a dozen Philippine Marines on board a rusting and grounded World War II-era ship are safe, a source told InterAksyon.com. This effectively ends the standoff between the two countries some 100 nautical miles from the island of Palawan. Ayungin is part of the Kalayaan Island Group (KIG) in the West Philippine Sea (WPS). China claims the reef is part of its territory, more than a thousand nautical miles from its nearest 200-nautical-mile exclusive economic zone (EEZ). “They’re safe,” said a senior officer of the Philippine Marines guarding the reef on board the shipwreck BRP Sierra Madre (Landing Ship Tank 57). The Philippine Marine official requested that he not be named because he is not authorized to give any statement regarding operational activities in the West Philippine Sea.   Read more: http://www.interaksyon.com/article/74551/yolanda-kicks-out-chinese-from-ayungin-reef-philippine-marines-on-grounded-ship-safe

How China can cement its territorial claims in the South China Sea

China has painted itself into a diplomatic and legal corner regarding its claims in the South China Sea. Its infamous and ambiguous “historic” nine-dash line has been variously interpreted by rival claimants as a national boundary; a sovereignty claim to all water and land within it; and, more optimistically, as an indicator of a sovereignty claim only to the islands and reefs and some submerged features it encloses. The first two interpretations and China’s frequent and expanding naval exercises in the South China Sea frighten smaller and weaker Southeast Asian countries and serve as convenient targets for US and Japanese anti-China propaganda. Indeed, China has been under withering political and legal attack for allegedly violating the 1982 UN Convention on the Law of the Sea, which it ratified in 1996.   Read more: http://www.scmp.com/comment/insight-opinion/article/1349038/how-china-can-cement-its-territorial-claims-south-china-sea