Monthly Archives: January 2015

Asia Maritime Transparency Initiative

Introduction The arbitration case launched by the Philippines against China currently stands as the most significant, and most closely watched, development for specialists and observers of the maritime disputes in the South China Sea (SCS). To help observers navigate through this foggy proceeding, this article attempts to provide a focused overview of the arbitration case and developments in the bilateral dispute between the two parties. Preludes Although the territorial and maritime issues in the SCS have technically been in existence since the 1930s, the case of the Philippines against China is a direct result of very recent events arising out of the long-festering dispute between the two countries. In the aftermath of tensions between the Philippines and China over the latter’s facilities in Mischief Reef in 1999 and the conclusion of a maritime delimitation between China and Vietnam in the Gulf of Tonkin, a modus vivendi was reached with the signing of the 2002 Declaration of Conductof Parties in the SCS (DOC). By 2005 it appeared that relations between the parties had stabilized enough that their national oil companies entered into a Joint Marine Seismic Undertaking that was implemented until 2008. Relations took a downturn, however, in 2009 when submissions were made (one by Vietnam and Malaysia jointly, and another by Vietnam alone) for areas of the continental shelf beyond 200 nautical miles in the SCS in accordance with UNCLOS. These immediately prompted China’s protest and first official publication of its SCS claim known as the so-called nine dashed line, which was followed by a sharp exchange of diplomatic notes. The tussle was thereafter followed by a string of increasingly risky confrontations at sea. On the Philippine side, the SCS disputes came to the attention of the fledgling Presidential administration with an incident in 2011 involving interference by China Maritime Surveillance ships with a Philippine seismic survey ship at Reed Bank. Soon after, China lodged a diplomatic protest against the Philippines’ public auction of petroleum concession blocks which included two areas between Reed Bank and the Philippine island of Palawan. The Philippines subsequently lodged its own diplomatic protests against China’s fishing and military activities in Reed Bank and nearby areas. Relations increasingly became strained as China’s press openly warned of military action, spurring an official response from the Philippines. The exchange of protests continued well into the first quarter of 2012. Tensions between the two countries reached a head in April that year with a months-long confrontation between Philippine and Chinese vessels at Scarborough Shoal, which ended when Philippine ships left the shoal upon a reported agreement for mutual withdrawal in June 2012. Shortly after, however, Chinese vessels returned and have since been in control of the shoal.   Read more:

China’s Lawful Position on the South China Sea

Researchers at a key government-funded institute in China appear to have contradicted their director to lay out a moderate, or at least undecided, position for China on the so-called nine-dash line in a recent edition of Eurasia Review. This line, which was first drawn by the Nationalist government of China before 1949, appears to demarcate the entire South China Sea as subject to China’s jurisdiction — beyond the normal provisions of international law. The article appeared several months after President Xi ordered PLA hawks back into line in late September 2014 on three sets of issues: the South China Sea, the East China Sea and the India China border. At the official level, China has not helped its case by refusing for almost seven decades to be totally clear on what maritime jurisdiction it is claiming with its nine-dash line. This has prompted anxieties and diplomatic ructions, culminating in a formal Philippines challenge to China in the Permanent Court of Arbitration on January 22, 2013. The Office of the Geographer in the U.S. Department of State also took up the issue in a December 2014 study, “China: Maritime Claims in the South China Sea”, in its long standing series, Limits in the Seas. The new article from China, in fact just a short op-ed, was authored by Ye Qiang and Jiang Zongqiang, who are research fellows at the National Institute for South China Sea Studies in China. They say that China wants no more rights than are accorded it under the Law of the Sea Convention as well as customary international law. They say that the government is still “evaluating whether or not to exercise each specific right, and the scope of the rights as well as the manner to exercise. The piece argues, “These are the reasons why China has not yet clarified the title of rights within the ‘dash-line.’”   Read more:

The Philippines vs. China in the South China Sea: A Legal Showdown

The next stage in the Philippines’ closely-watched arbitration case against China’s maritime claims will come in March when Manila’s lawyers submit their answers to questions posed last month by the five judge panel overseeing the case. The Philippines has put together a clever case, one that seeks to skirt China’s exemptions to compulsory arbitration as allowed by the United Nations Convention on the Law of the Sea (UNCLOS). But the case is not a slam dunk, and that might be for the best. The heart of the Philippines’ case is an argument that China’s infamous nine-dash line does not qualify as a valid maritime claim. If the Arbitral Tribunal finds that it has jurisdiction in any part of the case, it is hard to imagine that it will not agree with Manila on this point. And that ruling—that Beijing is legally obligated to lay out its claims based on maritime entitlements from coastlines and islands, not via dashes arbitrarily drawn on a map—could be enormously beneficial for all those with an interest in the South China Sea. Despite Beijing’s insistence that it will not recognize any award the court makes, China’s leaders might be persuaded to clarify the country’s South China Sea claims even while publicly refusing to obey the court. This would be much the same as how the United States under the Clinton administration complied with much of an International Court of Justice ruling in a case brought by Nicaragua that the Reagan administration had earlier rebuffed.   Read more:

S China Sea islands could be China’s first island chain: report

China’s land reclamation efforts in the disputed South China Sea may eventually become the nation’s first island chain, allowing the nation to contain the US military facilities in Australia according to the Japan Military Review, a defense magazine based in Tokyo. Saburo Tanaka, a Japanese expert in Chinese military development said that the US bases in Australia have become the primary concern of the People’s Liberation Army. With the land reclamation projects in the disputed region, China is capable of defending its maritime supply line in the north of the Strait of Malacca while preventing the US Pacific Fleet from entering the South China Sea from the Celebes Sea according to the article. The blueprint drawn by the Ninth Design and Research Institute of the state-run China State Shipbuilding Corporation indicates that the PLA plans to build both naval and air force bases on the six islands and reefs under its control in the South China Sea. China is said to be constructing an airfield on Johnson South Reef which is about 3,200 kilometers away from the northern coast of Australia. From there, the PLA’s H-6 strategic bombers with a combat radius of 1,800 kilometers could potentially launch an attack against Australia. Other countries in the region including Vietnam, Indonesia, Malaysia and Singapore, are also within the attack range of the H-6 bombers. Singapore could potentially be an important target for the PLA because the US Navy may station more littoral combat ships there in the future. China also plans to build ports with enough capability to hold ships with a displacement of over 5,000 tons, which would mean all kinds of PLA warships could be deployed to the region.   Read more:

The Jurisdictional Rubicon: Scrutinizing China’s Position Paper on the South China Sea Arbitration – Part II

Yesterday I set out the background to the Position Paper issued by the China, on December 7, 2014, “on the Matter of Jurisdiction in the South China Sea Arbitration initiated by the Republic of the Philippines” [hereafter, “China Position Paper”] and examined China’s first objection to the jurisdiction of the arbitral tribunal. In this post, I consider the other Chinese objections. Second Chinese Objection: Did the Philippines violate the duty to negotiate in regard to the subject-matter of this dispute, when it initiated the arbitration? The China Position Paper effectively maintains that the ‘exclusive’ dispute settlement mechanism between the Philippines and China on the South China Sea is friendly consultations and negotiations (China Position Paper, paras. 30-39). This position would appear tenable, if one were to tacitly accept the characterization of the arbitration’s subject-matter as one involving claims for maritime delimitation, rather than merely the “interpretation or application of UNCLOS” to the maritime limits drawn in the 9-dash line map as well as to the submerged geographic features described therein. Notwithstanding the disputed characterization of the arbitration’s subject-matter, however, it is difficult to see where a duty to exclusively pursue negotiations or friendly consultations exists. Ordinary textual examination of the bilateral instruments and multilateral instrument (e.g. the 2002 ASEAN Declaration on the Code of Conduct of Parties in the South China Sea) referenced in the China Position Paper, appears to militate against the notion of an exclusive choice of dispute settlement through ‘friendly consultations and negotiations’. Nothing in the language of the instruments therein definitively rules out compulsory arbitration under Part XV of UNCLOS – which as UNCLOS Part XV also explicitly stresses, is likewise a peaceful means of dispute settlement in international law. Moreover, UNCLOS Part XV Article 283(1) carefully stresses that “[w]hen a dispute arises between States Parties concerning the interpretation or application of this Convention, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means.” (Italics added.) This describes a remarkably low threshold for an applicant State to be able to demonstrate the failure to reach settlement (e.g. either failure of negotiations or failure to reach settlement through other peaceful means), before being able to access compulsory arbitration through an Annex VII tribunal under UNCLOS Part XV, Article 286. One can well anticipate that the Philippines could substantiate its prior recourse to “peaceful means” of dispute settlement through various diplomatic notes verbale sent to China, as well as to the United Nations, diplomatic protests at the UN as expressed during the 2012 Scarborough Shoal incidents, as well as other ongoing public statements of protest against continuing escalations that have occurred since the filing of the Statement of Claim in January 2013 (e.g. March 29, 2014 incident at Ayungin Shoal/Second Thomas Shoal; China’s reported construction, through reclamation, of a man-made island or airstrip at Fiery Cross Reef; as well as to potentially note Vietnam’s protests and standoff with China on its deployment to, and operation of, an oil rig at the disputed Paracels Islands). Read more:

IYAKIN DAW | China state media calls PH a ‘crying baby’ for seeking int’l support vs island-building

China’s official news agency on Friday likened the Philippines to a “crying baby” for seeking international support against island-building in disputed waters by Beijing, denouncing its efforts as “pathetic”. The caustic commentary by the Xinhua news agency came two days after foreign ministers from the Association of Southeast Asian Nations (ASEAN) voiced concern over Beijing’s land reclamation efforts in the South China Sea. Manila — which has challenged China’s territorial claims at a UN tribunal — had urged the 10-country grouping to take a firmer stand against Beijing on the issue. “Only one month after an arbitration farce, the Philippines is putting up another pathetic show in an attempt to lobby international sympathy and support in its territorial spat with China,” Xinhua wrote. “Manila should be fully aware that acting like a crying baby and begging for compassion from the international community would never help justify its claims in the South China Sea dispute,” it said. The dispute “should and could be properly handled only by the parties directly concerned”, it added. China says it controls almost all of the South China Sea, a claim which conflicts with those of ASEAN members Brunei, Malaysia, the Philippines and Vietnam as well as non-member Taiwan. Manila accused Beijing last year of reclamation work around isolated reefs in the Spratly islands, which could hold fortified positions or even airstrips. Read more:–china-state-media-calls-ph-a-crying-baby-for-seeking-intl-support-vs-island-building

The Jurisdictional Rubicon: Scrutinizing China’s Position Paper on the South China Sea Arbitration – Part I

On December 7, 2014, China officially published its Position Paper “on the Matter of Jurisdiction in the South China Sea Arbitration initiated by the Republic of the Philippines” [hereafter, “China Position Paper”]. The China Position Paper was issued two days after the US State Department issued its December 5, 2014 Limits in the Seas No. 143 Report, “China: Maritime Claims in the South China Sea”, authored by its Office of Ocean and Polar Affairs and Bureau of Oceans and International Environmental and Scientific Affairs [hereafter, “US State Department Report”]. The US State Department Report concludes, in particular, that: “unless China clarifies that the dashed-line claim reflects only a claim to islands within that line and any maritime zones that are generated from those land features in accordance with the international law of the sea, as reflected in the [UN Convention on the Law of the Sea/UNCLOS], its dashed-line claim does not accord with the international law of the sea.” (US State Department Report, p. 24). China’s 7 December 2014 Position Paper provides its first official, public, and certainly most authoritative clarification of its arguments and claims to date, and certainly introduces a significant dimension to the ongoing arbitration proceedings. Vietnam is reported to have filed a (hitherto-undisclosed) statement to the Annex VII arbitral tribunal, asking the latter to take into account its legal interests while also refuting China’s claims. Although the China Position Paper explicitly states that it should “not be regarded as China’s acceptance of or participation in [the] arbitration” (China Position Paper, para. 2), the Annex VII tribunal is arguably not prevented from taking cognizance of the statements therein as part of China’s jurisdictional objections in this dispute. China itself circulated the Position Paper to members of the arbitral tribunal, albeit stressing that it should not be construed as acceptance of, or participation in, the arbitration (Permanent Court of Arbitration 17 December 2014 Press Release).   Read more:

ASEAN vows early conclusion of Code of Conduct in South China Sea

KOTA KINABALU, Malaysia — Southeast Asia will push for an early conclusion of a maritime pact to defuse tension in the South China Sea, Malaysia said Wednesday as the Philippines decried the grouping’s inaction over reclamation activities by China in disputed waters. Foreign ministers from 10 member-states of the Association of Southeast Asian Nations grappled with the issue during their two-day retreat in Kota Kinabalu, capital of Malaysia’s Sabah State in Borneo. The Code of Conduct is basically a set of rules for the resolution of disputes. “The ministers instructed our senior officials to intensify efforts towards achieving the full and effective implementation of the Declaration on the Conduct of Parties in the South China Sea and work vigorously towards the early conclusion of the Code of Conduct on the South China Sea,” Malaysian Foreign Minister Anifah Aman said at a press conference at the end of the meeting. As chair for ASEAN this year, Malaysia faces the challenge of ensuring the issue of South China Sea does not flare up. Although Malaysia is a claimant state, it has thus far preferred quiet diplomacy in dealing with the dispute as it attempts to strike a balance between protecting its interests and preserving its relationship with China, a major trading partner. The Philippines and Vietnam, however, have very public rows with China over China’s encroachment into their territory in the Spratly Islands.   Read more:

ASEAN Countries Urged To Stand Up To China Over South China Sea

Ministers from the Association of Southeast Asian Nations (ASEAN) are concerned over China’s land reclamation projects in the South China Sea and have pledged to step up efforts to deal with what they see as a threat from China. Their statement came on Wednesday after the topic was brought up at a ministers’ retreat in Malaysia. “The retreat shared the concern raised by some foreign ministers on land reclamation in the South China Sea,” Malaysia’s Foreign Minister Anifah Aman said at a press conference following the two-day meeting, according to Channel News Asia. Anifah’s statement did not specify which countries raised the concerns. The Philippines, however, issued its own statement at the end of the retreat. “The massive reclamation issue presents a strategic policy dilemma for ASEAN,” Philippine Foreign Affairs Secretary Albert del Rosario said in a statement issued at the end of the ASEAN foreign ministers’ meeting, according to Kyodo News. “Our inaction on this would undermine the principle of centrality, since we are unable to address in a unified and collective way such a critical issue in our own backyard.” “The ministers instructed senior officials to intensify efforts toward achieving the full and effective implementation of the Declaration on the Conduct of Parties in the South China Sea and work vigorously toward the early conclusion of the Code of Conduct on the South China Sea,” Anifah said during the press conference.   Read more:

Confirmed: China Is Building a Military Base Near Japan

New satellite images have largely confirmed earlier reports that China is building a military base near the Senkaku/Diaoyu Islands that Japan also claims and administers. Last week IHS Jane’s reported that satellite images from October 2014 show that China is building a heliport with 10 landing pads and wind turbines on Nanji Island, which is one of 52 islands on an archipelago that is part of Zhejiang province. Nanji Islands is only 300 km from the disputed Senkaku Islands. By contrast, Okinawa— which hosts major U.S. and Japanese military bases— are 400 km away from the disputed islands. Japan’s Kyodo News, citing unidentified Chinese officials, first reported the military buildup late last month. According to that report, “Several large radar installations have been built at high points on the main Nanji Island. Several landing strips have been paved, likely for use by aircraft based on warships or patrol vessels, and more landing strips are set to be built on an island adjacent to Nanji Island from around next year.” The satellite data Jane’s reviewed found no evidence of any airstrips being built on the island, but it did say that “existing radar and communications sites are clear from the imagery.” Read more: