Monthly Archives: October 2015

Philippines v. China: Court Rules Favorably on Jurisdiction, Case Will Proceed

China’s nine-dash line will have its day in international court. On Thursday, October 29, the Permanent Court of Arbitration awarded its first decision in the The Republic of Philippines v. The People’s Republic of China. The court ruled that the case was “properly constituted” under the United Nations Convention on the Law of the Sea, that China’s “non-appearance” (i.e., refusal to participate) did not preclude the Court’s jurisdiction, and that the Philippines was within its rights in filing the case. In short, Thursday’s decision means that the Permanent Court of Arbitration rules in the Philippines’ favor on the question of jurisdiction. With the jurisdictional issue resolved, the case can move forward to evaluating the merits of the Philippines’ legal assertions in the South China Sea. In a press release, the Court noted that the  decision was “unanimous” and “concerns only whether the Tribunal has jurisdiction to consider the Philippines’ claims and whether such claims are admissible.” Notably, the Court has rejected an argument in China’s position paper that the “2002 China–ASEAN Declaration on the Conduct of Parties in the South China Sea constitutes an agreement to resolve disputes relating to the South China Sea exclusively through negotiation.” The Court has decided that the Declaration on Conduct was a “political agreement that was not intended to be legally binding.” This may influence the already lethargic process between China and ASEAN toward a binding Code of Conduct for the South China Sea. As the Court prepares to consider the merits of the Philippines’ claims, it’s worth revisiting what exactly Manila is seeking a decision on. As Jay Batongbacal succinctly outlined over at the Center for Strategic and International Studies’ Asia Maritime Transparency Initiative earlier this year, Manila is looking for the Court to decide on four primary questions. First, and most vexing for China, is the status of Beijing’s nine-dash line claim in the South China Sea. Manila argues that the nine-dash line is an excessive maritime claim and not in line with the entitlements for coastal states under UNCLOS. With jurisdiction question resolved, we can look forward to China’s nine-dash line getting its day in international court (although, notably, without China taking part to defend it). China has kept the scope of its nine-dash line ambiguous under formal and customary international law, but once the Court decides on the matter, its ability to maintain ambiguity will be limited. Second, based on the first point, that the nine-dash line is an excessive claim, the Philippines is arguing that China’s occupation of various features in the Spratly Islands is illegal. As Batongbacal notes, Manila “ argues this is based on illegitimate claims to title or sovereignty over completely submerged areas, or historic rights to living and non-living natural resources, including control of maritime navigation.” Read more:

South China Sea ‘islands’ only demilitarized until first warbird touches down

At last. After weeks of Hamlet-esque public debate, U.S. defense officials ordered Aegis destroyer USS Lassen to cruise within 12 nautical miles (nm) of Subi Reef on Oct. 27. The reef is an undersea rock in the South China Sea that Beijing has built into an artificial island in the contested Spratly Islands. It wants it to be considered a real island, with a “territorial sea” surrounding it. That means a 12-nm zone where Chinese domestic law prevails, just like Beijing. China claims it has the right to do so based on “historic” claims to most of the South China Sea, an area through which $5 trillion dollars worth of trade passes. By sending a warship within that zone, the U.S. Navy signaled that the United States rejects efforts to rewrite the rules governing the sea and sky. International law clearly states the open sea is no one’s property, and such “freedom-of-navigation” voyages are standard fare elsewhere in the seven seas. And the Lassen’s cruise can’t be a one-time trip without giving China another opportunity to assert its unlawful authority. The nice thing about the law of the sea is that it’s well written. The UN Convention on the Law of the Sea (UNCLOS), says coastal states may construct artificial islands within “exclusive economic zones” extending 200 nautical miles off their coasts. Beyond that limit, the law allows no such projects. Now fire up Google Earth. Subi Reef lies 500 nautical miles from Hainan Island, the nearest Chinese shoreline. It sits far closer to the Philippines — only 230 nautical miles from the island of Palawan. Manila, then, has a better legal claim than Beijing by sheer geographic proximity — but even Philippine land “reclamation” there would be outside the law. Subi Reef was a submerged atoll before Chinese engineers dredged up the sea floor to create an island, and then topped it off with an airstrip. This manufactured turf has no legal status — yet Beijing is trying to give it legal status by fiat. An artificial island that falls within a country’s exclusive economic zone merits a concentric 500-meter safety zone. That’s next to nothing in navigation and piloting terms. If it falls beyond the zone, like Subi Reef, it merits nothing at all — much less a 12-nautical-mile territorial sea. Indeed, Lassen could have ventured as close to Subi Reef as its skipper dared while still remaining within the law. Read more:

In defeat for Beijing, Hague court to hear China Sea dispute

AMSTERDAM, Oct 29 (Reuters) – An arbitration court in the Netherlands ruled on Thursday that it has jurisdiction to hear some territorial claims the Philippines has filed against China over disputed areas in the South China Sea. In a legal defeat for China, the Hague-based tribunal rejected Beijing’s claim that the disputes were about its territorial sovereignty and said additional hearings would be held to decide the merits of the Philippines’ arguments. China has boycotted the proceedings and rejects the court’s authority in the case. Beijing claims sovereignty over almost the entire South China Sea, dismissing claims to parts of it from Vietnam, the Philippines, Taiwan, Malaysia and Brunei. The tribunal found it has authority to hear seven of Manila’s submissions under the United Nations Convention on the Law of the Sea (UNCLOS) and China’s decision not to participate did “not deprive the tribunal of jurisdiction”. The United States, a treaty ally of the Philippines that this week challenged Beijing’s pursuit of territorial claims by sailing close to artificial islands China has constructed in the South China Sea, welcomed the decision, according to a senior U.S. defense official. “This demonstrates the relevance of international law to the territorial conflicts in the South China Sea,” the official said, speaking on condition of anonymity. Read more:

UN tribunal on UNCLOS rules to admit Manila’s case vs. Beijing in maritime row

TV5 screenshot of the Permanent Court of Arbitration when it conducted hearings in The Hague last July. It said Thursday that the tribunal on UNCLOS has ruled to admit the Philippine case against China, resolving the issue of jurisdiction over the latter’s objections. MANILA – (UPDATE3, 1:51 a.m.) The Permanent Court of Arbitration (PCA) in The Hague said a UN panel had ruled Thursday (Oct. 29) that it has jurisdiction over the case filed by the Philippine government against China in the South China Sea, dealing Manila a victory in the first-round issue of admissibility. An announcement by the PCA, which in July 2015 had held several hearings on the Philippines’ submissions, was shared by Atty. Mel Sta. Maria, Far Eastern University Law dean, who is in Europe for a conference. “The Philippines v. China UNCLOS Annex VII Tribunal just issued its Award on Jurisdiction and Admissibility. Won’t comment further except to say that this is a very big deal and I hope everyone reads it!” said the original FB post by Louie Liamzon that was shared by Sta. Maria, who is also TV5’s resident legal analyst. The announcement, titled “TRIBUNAL RENDERS AWARD ON JURISDICTION AND ADMISSIBILITY; WILL HOLD FURTHER HEARINGS” and dated Oct. 29, said the “Tribunal has concluded that it is able to decide that it does have jurisdiction with respect to the matters raised in seven of the Philippines’ submissions,” but that it had asked Manila to clarify and narrow one submission. The first part of the announcement said: “The Tribunal constituted under Annex VII to the United Nations Convention on the Law of the Sea (UNCLOS) in the arbitration instituted by the Republic of the Philippines against the People’s Republic of China has issued its award on jurisdiction and admissibility. This arbitration concerns the role of ‘historic rights’ and the source of maritime entitlements in the South China Sea; the status of certain features in the South China Sea and the maritime entitlements they are capable of generating; and the lawfulness of certain actions by China in the South China Sea that are alleged by the Philippines to violate the Convention,” referring to UNCLOS. The UN tribunal’s decision on jurisdiction and admissibility comes amid renewed tension in the South China Sea, over the United States’ deployment of a guided-missile destroyer to the area, to conduct patrols that it claimed are in defense of the freedom of navigation. President Benigno Aquino III gave solid support for that position when he addressed the Foreign Correspondents’ Association of the Philippines this week, saying no one could argue against the defense of freedom of navigation in sea lanes where 40 percent of world commerce passes. Reuters reported that the Chinese and US navies were set to hold high-level talks Thursday over tension in the South China.  US chief of naval operations Admiral John Richardson and his Chinese counterpart, Admiral Wu Shengli, would hold an hour-long video teleconference on Thursday, a US official said. Decision unanimous The PCA press release explained the perimeters of the decision: “The Tribunal’s Award of today’s date is unanimous and concerns only whether the Tribunal has jurisdiction to consider the Philippines’ claims and whether such claims are admissible. “The Award does not decide any aspect of the merits of the Parties’ dispute,” it added. “In its Award, the Tribunal has held that both the Philippines and China are parties to the Convention and bound by its provisions on the settlement of disputes.” The Tribunal also held that “China’s decision not to participate in these proceedings does not deprive the Tribunal of jurisdiction and that the Philippines’ decision to commence arbitration unilaterally was not an abuse of the Convention’s dispute settlement procedures.” Read more:–beijing-in-maritime-row

How China Maintains Strategic Ambiguity in the South China Sea

China’s official government reactions to the recent U.S. Navy “freedom of navigation” (FON) operation within 12 nautical miles (nm) of a Chinese-occupied constructed island in the South China Sea are a multilingual puzzle. A careful examination of Chinese-language versions of Ministry of Foreign Affairs and Defense Ministry statements, however, reveals extreme subtlety in wording and an apparently coordinated effort to maintain strategic ambiguity on key questions about China’s position. Do Chinese officials believe the U.S. Navy violated Chinese sovereignty? Unclear. Do they claim maritime rights surrounding constructed islands that go farther than the UN Convention on the Law of the Sea (UNCLOS) provides? Not explicitly. Will they specify exactly why the U.S. action is described as illegal? Not quite—but the door just cracked open. Chinese official statements have been almost flawless in keeping these questions unanswered, with one exception discussed below. Doing so required a change in language between earlier statements warning against FON operations and this week’s protests following the event itself. In May, Ministry of Foreign Affairs Spokesperson Hua Chunying warned the United States against “violation (qīnfàn) of China’s sovereignty and threat (wēihài) to China’s national security.” Earlier this month, Hua opposed “infringement (qīnfàn) of China’s territorial sea (lǐnghǎi) and airspace (lǐngkōng).” Read more:

Beijing in uncharted waters as US sails into South China Sea

Chinese dredging vessels are purportedly seen in the waters around Mischief Reef in the disputed Spratly Islands in the South China Sea in this still image from video taken by a P-8A Poseidon surveillance aircraft provided by the United States Navy May 21, 2015. U.S. Navy/Handout via Reuters Chinese dredging vessels are purportedly seen in the waters around Mischief Reef in the disputed Spratly Islands in the South China Sea in this still image from video taken by a P-8A Poseidon surveillance aircraft provided by the United States Navy May 21, 2015. It was a short, well-flagged mission and no shots were fired. But Beijing has been pitched into uncharted waters over how to respond to Tuesday’s operation in which a US warship challenged its claims in the South China Sea. While state media lit up with emotional appeals to nationalism on Wednesday, the official response has so far been muted. “China’s defence ministry is strongly opposed to this act and lodges solemn representations,” was all the military could muster on Tuesday, while the foreign ministry summoned the US ambassador to lodge a complaint. But support seems to be building for a firmer response and one option, alluded to obliquely by one senior official on Tuesday, is to militarise the islands — something Beijing has this far insisted is not its objective. “We do not hope that in the end China has no choice but to find that it is indeed necessary for us to accelerate and strengthen our capabilities there,” said Lu Kang, a foreign ministry spokesman. Read more:

US and Chinese navy chiefs to discuss South China Sea tensions – US official

The US chief of naval operations and his Chinese counterpart will hold an hour-long video teleconference on Thursday, days after Beijing was angered by a US warship’s patrol within a 12-nautical-mile (22km) limit around a man-made Chinese island in the South China Sea, a US official said. The meeting was initiated by Admiral John Richardson and Admiral Wu Shengli to discuss recent operations in the South China Sea and naval ties between the two countries, the official said. It will be the third video teleconference held between a US naval operations chief and the Chinese equivalent. The news emerged the day Australia announced two of its warships would hold exercises with the Chinese navy in the South China Sea next week. HMAS Stuart and HMAS Arunta will visit China’s main South China Sea base of Zhanjiang in the southern province of Guangdong before conducting drills early next week, said Australia’s defence minister, Marise Payne. “The Royal Australian Navy has a long history of engagement with regional navies and regularly conducts port visits and exercises – including in China,” Payne said. “There have been no changes or delays to the schedule of the HMAS Arunta and HMAS Stuart since the United States activity in the South China Sea on 27 October 2015.” The USS Lassen’s patrol on Tuesday was the most significant US challenge yet to 12-nautical-mile territorial limits China claims around artificial islands it has built in the Spratly archipelago. Read more:

Q&A: Impact of US warship sailing near China-held island

In this April 8, 2008, file photo, guided missile destroyer USS Lassen arrives at the Shanghai International Passenger Quay in Shanghai, China, for a scheduled port visit. The USS Lassen has sailed past one of China’s artificial islands in the South China Sea on Tuesday, Oct. 27, 2015, in a challenge to Chinese sovereignty claims that drew an angry protest from Beijing, which said the move damaged US-China relations and regional peace. (AP Photo/Eugene Hoshiko, File) BEIJING — Beijing reacted harshly to a US warship sailing near one of its newly created islands in a disputed area of the South China Sea. The action did not spark a confrontation or roll back any Chinese island-building activities, but it sent a high-profile message to both Beijing and US allies that Washington wants to test Chinese sovereignty assertions and ensure freedom of navigation. Some questions and answers: ___ WHAT IS THE IMPACT? As in previous incidents, Beijing is likely to voice its outrage for a time, before reasserting the wisdom of the government’s calculated approach to its crucial relationship with the US However, the testy reaction underlines tensions in the strategically vital region through which about one-third of global trade passes. Frictions are likely to worsen as Washington’s renewed focus on Asia rubs up against Beijing’s increasingly robust assertions of its claim to virtually the entire sea and its islands, reefs and atolls. China says its sovereignty claims do not conflict with the rights of other nations to operate in the South China Sea, although the Defense Ministry accused the US of abusing those rights. ___ World ( Article MRec ), pagematch: 1, sectionmatch: 1 WHAT DID THE US NAVY DO? The maneuver itself was relatively tame. The US Navy sailed the guided missile destroyer USS Lassen past an artificial island created on Subi Reef in the Spratly archipelago. The route was within a 12-nautical mile (22-kilometer) territorial limit that China might claim around the reef. However, international law permits “innocent passage” of warships through other countries’ territorial seas without any need for prior notification, and there was no indication the ship did anything other than pass through. Still, the US said ahead of the trip that it was aimed at challenging any Chinese claims that the newly created islands are its sovereign territory. ___ WHY DID THE NAVY ACT? The sail-by was intended to reinforce Washington’s insistence on freedom of navigation and overflight in the South China Sea, parts of which are claimed not only by China but by the Philippines, Vietnam, Taiwan, Malaysia and Brunei. While the US says it takes no view on ownership claims, it insists that the man-made islands China has created do not constitute sovereign territory and cannot claim territorial seas. Until the legal status of South China Sea is settled once and for all, such incidents “will continue unabated,” said US Naval Academy China expert Yu Maochun. ___ HOW DID CHINA RESPOND? China reacted angrily, saying the sail-by was illegal, that it infringed on Chinese sovereignty and that it threatened the security of the island and the region. It said the maneuver would affect China-US relations and summoned American Ambassador Max Baucus in Beijing for a high-level protest. It is unclear on what basis China claims the sail-by was illegal, partly because it has never clarified the basis of its claims to territory in the South China Sea. The Chinese response — limited so far only to rhetoric — suggests Beijing may tacitly acknowledges the freedom of navigation in the area, but does “not want the US to make a regular practice of it,” said Phillip Saunders, director of the US National Defense University’s Center for the Study of Chinese Military Affairs. Read more:

Battle over China’s artificial islands has just begun

  1  0 Google +0  1 AFTER MONTHS of internal debate, the White House permitted the Defense Department to sail one ship near a reef in the South China Sea that China claims. The Chinese reaction shows Beijing has no intention of backing down. Now the Obama administration is debating what to do next. The US government has a range of tools — diplomatic, economic and military — to push back against the Chinese strategy. The question is whether the US will use those tools effectively before China’s control of the South China Sea becomes a fait accompli. — AFP Defense Secretary Ashton Carter confirmed on Tuesday that the Lassen, a US Navy guided missile destroyer, traveled on Monday within 12 miles of the Subi Reef, which was underwater until the Chinese government built it into an artificial island. Under questioning from the Senate Armed Services Committee, Carter said the US has the right to operate near the Chinese structures. He expressed support for doing such a “freedom of navigation operation” again. “What you read in the newspaper is accurate, but I don’t want to say when, whether or how we operate anywhere in the world,” he said. “These are operations that we should be conducting normally.” Carter has publicly asserted US access to these waters since his speech in May at the Shangri-La Dialogue in Singapore. Admiral Harry Harris, the head of Pacific Command, has advocated that right as well, within the administration. But other senior officials pushed to delay the sail-by, fearing it would provoke Beijing and hurt other areas of cooperation, US officials told me. TERRITORIAL DISPUTES The White House decision to move forward came after several meetings at the National Security Council Principal Committee level, where the timing was a sticking point. White House officials wanted to wait until after President Obama’s summit last month with Chinese President Xi Jinping, during which Xi said publicly that China did not intend to militarize the artificial islands. Secretary of State John Kerry argued for delaying the operation until after the Paris Climate Change conference, US officials said. It ends in December. The Chinese Foreign Ministry reacted swiftly on Tuesday, calling the US move a “deliberate provocation” and summoning the US ambassador to China, Max Baucus, to protest the action. The foreign ministry spokesperson said China might conclude it had to “increase and strengthen the building up of our relevant abilities.” The Chinese Defense Ministry said the ship’s activity was a “coercive action that seeks to militarize the South China Sea region.” US officials told me on Tuesday that the Chinese reaction was as expected and that the Obama administration had publicly signaled for months that the freedom of navigation operation would take place. There is no expectation that one ship’s action will deter the Chinese expansion in the South China Sea. Instead there is a new internal debate over what the US should do next and when. Read more: