Monthly Archives: September 2017

A dangerous manoeuvre on South China Seayour say


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  This has something to do with a Chinese interception in the South China Sea.   The Pentagon on Friday said it was concerned about an “unsafe and unprofessional” encounter between two Chinese fighters and a US surveillance plane over the South China Sea. The Chinese J-10 warplanes intercepted a US Navy P-3 that was operating in international airspace on Wednesday, Pentagon spokesman Commander Gary Ross said.  

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Conserving Southeast Asia’s seas

The United Nations’ call to conserve and sustainably develop the oceans perhaps resonates most with Southeast Asia than in any other part of the world. With a maritime territory thrice the size of its landmass, the region is among the world’s most bountiful and diverse maritime areas. The 10 Asean states account for a quarter of the world’s fish production, and 20 million people depend on the fishery industry for their livelihoods. The region’s vast coral reef system comprises 34 percent of the world’s reefs, and is a critical marine environment that provides essential habitat for fish and other marine animals to live and grow. Furthermore, corals and mangroves along the coast in Southeast Asia provide critical natural resilience against increasing storms and rising sea levels, as well as help to filter pollution as it runs off the land. But as populations expand and increasing stress is placed on these natural resources, Southeast Asia, like much of the globe, is at risk for overtaxing the marine environment. Asean nations must seek the right balance for sustainable development— one rooted in ensuring prosperity for all, while protecting the seas. In the past two decades, fish consumption per person in Southeast Asia has increased from 13.1 to 33.6 kg, and the United Nations Food and Agriculture Organization estimates that nearly 85 percent of all global fisheries are fully or over-fished. This means that Asean states, with growing demands for fish from depleted stocks, are at the center of food insecurity and sustainability issues. Furthermore, unsustainable fishing practices threaten much of the region’s coral system, where nearly a third of the world’s coral reefs live. Recent studies also show that five Asean states are among the top ten plastic-polluting countries in the world, thus contributing to endangering sea creatures and damaging marine habitats that impact ecotourism and human health. This is compounded by the effects of illegal, unreported and unregulated (IUU) fishing, which is estimated to rob economies of up to $36 billion a year globally. Adding to this problem are human health and security issues rampant in the fishing industry and carried out by criminal groups that take advantage of low security at ports. In this region, only three countries have ratified the Port State Measures Agreement (PSMA), an international treaty designed to help stop IUU fishing by mandating that foreign fishing vessels provide prior notice of entry into a port. Without PSMA ratification, port security officials in the region have fewer tools at their disposal to address the problem of fishing vessels entering IUU catch into the market. Conserving Southeast Asia’s seas

Indonesia & China: The Sea Between

  Indonesia has long been cautious in confronting China’s claims in the South China Sea, so its announcement on July 14 that it was renaming a part of the area the “North Natuna Sea” may have come to many as surprise. The new name encompasses a region north of the Natuna islands that partly falls within the infamous “nine dash line,” by which China claims the sea stretching fifteen hundred miles from its mainland coast almost to the shores of Malaysia, the Philippines, Brunei, Vietnam, and Indonesia. China immediately demanded a retraction—which it will not get.   The naming was a reminder of how seriously Indonesia treats its position as the seat of ancient trading empires and location of some of the world’s strategically most important straits—Melaka, Sunda, Lombok, and Makassar. Since he was elected in 2014, President Joko Widodo has made maritime issues central to Indonesia’s foreign policy, building up its navy, arresting dozens of foreign ships caught fishing illegally, and taking a quiet but firm stand on sea rights. Although not a populist vote-winner, the policy is generally approved, particularly by the military, which since the war of independence against the Dutch has seen itself as the guardian of the integrity of the nation and its internationally recognized status.   The naming also came shortly before the sixtieth anniversary of a pronouncement that has had a profound impact on the whole world. On December 13, 1957, the Indonesian government unilaterally declared that it was an “archipelagic state,” claiming sovereignty over all the waters within straight baselines between its thousands of far-flung islands. Though the young republic was in no position to enforce it, this was a revolutionary move: at the time, Western powers asserted that territorial seas were limited to three miles, and that otherwise foreign ships, military included, had complete freedom of movement.   Twenty-five years of international negotiation followed, culminating in the 1982 United Nations Convention on Law of the Sea, defining rights and obligations relating to sea boundaries and resources, and rights of “innocent passage”—not endangering the security of the coastal state—through straits and internal and territorial seas. It accepted the archipelagic state principle, and made twelve-mile territorial seas and two-hundred-mile “exclusive economic zones,” or EEZs—which give exclusive rights for fishing and exploitation of seabed resources—the global norm. (The United States in practice accepts the Convention, as clarified by a subsequent 1994 agreement, but has never ratified it.)   Although Indonesia has no island disputes with China, its stance on the Natuna waters allies it with the other littoral nations in facing up to China (though the Philippines under President Duterte currently appears to prefer Chinese money to sovereignty over its seas). Last year, the Permanent Court of Arbitration in The Hague applied the Convention to rule decisively for the Philippines in its claim against Chinese actions within its EEZ, including driving out Philippine fishing boats, and building structures on rocks and shoals that did not have the status of islands. In doing so, the court rejected China’s claims to the whole sea and by implication the waters of North Natuna.  

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Is There Any Way to Counter China’s Gray Zone Tactics in the South China Sea?

China and India’s moves to de-escalate tensions over the Doklam standoff inspired commentary about how Beijing’s coercive strategies can be countered. Some may argue that after all, India can be deemed a peer competitor to China in terms of relative power, especially militarily. Both countries are nuclear-weapon states and if push ever comes to shove in renewed border hostilities, they might be mindful of escalating armed action beyond the threshold of outright war and, worse, cross the Rubicon into nuclear conflict. India’s lessons on dealing with China’s coercion are indeed interesting. But what about looking at Beijing’s rivals in the context of an obvious power asymmetry? Its Southeast Asian adversaries in the South China Sea immediately come to mind. That region is made up of smaller, weaker nation-states, which do not have India’s array of power tools and other forms of strategic leverages. It might be tempting to conclude that these Southeast Asian countries are easy pickings for Beijing to successfully exercise its coercive strategy. Southeast Asian Rivals as Easy Pickings for China? In fact, not too long after the Association of Southeast Asian Nations (ASEAN) issued a joint statement about the South China Sea that amounted to no more than a slap on Beijing’s wrist. Additionally, both parties formally endorsed a framework for a proposed code of conduct to manage disputes after there were revelations about the presence of several Chinese vessels spotted close to Philippine-occupied Thitu Island. A Philippine fishery patrol vessel was allegedly harassed as well. This is where Manila’s reaction differs from New Delhi’s swift and decisive counter against a perceived Chinese attempt to alter the status quo in Doklam. True to the typical fashion of a pro-Beijing Rodrigo Duterte administration, Philippine foreign affairs secretary Alan Peter Cayetano neither confirmed nor denied the report. Instead, he downplayed its significance. “The presence of ships alone does not mean anything,” he remarked. One may be tempted to empathize with Manila’s attempt to overlook China’s new antics in the disputed waters, for the country needs to confront other teething security challenges posed by terrorists and drug lords. Duterte has shifted away from Washington to Beijing for aid and investments to feed socioeconomic development, including his much-touted “Build Build Build” nationwide infrastructure program, which he promoted during the Belt and Road Forum hosted by his generous new friend, Chinese president Xi Jinping. Simply put, a flare-up in the South China Sea does not serve his administration’s interest. Duterte and his close associates, such as equally pro-China Cayetano, do not wish to rock the boat and risk Beijing withholding those carrots it promised Manila. It thus appears inevitable for the Philippines to capitulate to China, not just shelving the arbitral award that rendered it overwhelming legal victory over its much larger and more powerful northern neighbor; but if necessary, it must suffer in silence from what Robert Haddick argued as “salami slicing” gray-zone strategies customarily utilized by Beijing to wear down opponents in the disputed waters.

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A Path Towards Environmental Management in the South China Sea

As part of an effort to manage the South China Sea disputes, the Center for Strategic and International Studies (CSIS) has set up and begun convening a newly-launched South China Sea Expert Working Group that brings together prominent experts on maritime law, international relations, and the marine environment. The objective is for the group to meet regularly to tackle issues it considers necessary for the successful management of the South China Sea disputes and produce blueprints for a path forward on each, with a view to eventually produce a robust model for managing the disputes that would be both legally and politically feasible—in effect, a blueprint for an eventual code of conduct.   Below is the first product of the CSIS Expert Working Group on the South China Sea, which focuses on fisheries and broader environmental management.   The South China Sea is one of the world’s top five most productive fishing zones, accounting for about 12 percent of global fish catch in 2015. More than half of the fishing vessels in the world operate in these waters, employing around 3.7 million people, and likely many more engaged in illegal, unregulated, and unreported fishing. But this vital marine ecosystem is seriously threatened by overfishing encouraged by government subsidies, harmful fishing practices, and, in recent years, large-scale clam harvesting and dredging for island construction.   Enjoying this article? Click here to subscribe for full access. Just $5 a month. Total fish stocks in the South China Sea have been depleted by 70-95 percent since the 1950s and catch rates have declined by 66-75 percent over the last 20 years. Giant clam harvesting, dredging, and artificial island building in recent years severely damaged or destroyed over 160 square kilometers, or about 40,000 acres, of coral reefs, which were already declining by 16 percent per decade. The entire South China Sea fishery, which officially employs around 3.7 million people and helps feed hundreds of millions, is now in danger of collapse unless claimants act urgently to arrest the decline.   Article 123 of the United Nations Convention on the Law of the Sea (UNCLOS) mandates that states bordering semi-enclosed seas like the South China Sea are obligated to cooperate in areas that include the protection of the marine environment and management of fish stocks. This is reflective of the deeply interconnected ecologies of semi-enclosed seas, in which currents cycle marine life (and pollution) through the region without regard for national jurisdiction. Moreover, Article 192 of UNCLOS provides a general obligation for states to “protect and preserve the marine environment.” Unlike hydrocarbons, for which exploitation rights are based only upon a state’s entitlement to the continental shelf, the obligation to jointly steward living marine resources makes fisheries management and environmental protection “low hanging fruit” for cooperation in the South China Sea.   An effective system to manage South China Seas fisheries and the environment cannot be based primarily on the overlapping territorial and maritime claims, to which the fish pay no attention. Instead it must be built around the entire marine ecosystem, particularly the reef systems, on which much marine life depends. With political will, it is entirely possible for nations bordering the South China Sea to cooperatively protect these ecosystems and manage fish stocks without prejudice to their overlapping territorial and maritime claims. For instance, the Philippines, whose government is under a strict constitutional requirement to defend the nation’s sovereign rights over its waters and continental shelf, could agree to cooperate on fisheries management in disputed waters under Article 123 of UNCLOS without prejudicing its claims or bestowing legitimacy on the claims of others, and therefore without running afoul of its domestic law.   The international legal obligation to cooperate on fisheries management and the environment is matched by practical necessity. Communities all around the South China Sea are highly dependent on fish stocks for both food security and local livelihoods. Yet the region has seen catch rates plummet in recent years thanks to a combination of overfishing and willful environmental destruction. In the South China Sea, fish may spawn in one nation’s exclusive economic zone (EEZ), live as juveniles in another’s, and spend most of their adult lives in a third. Overfishing or environmental destruction at any point in the chain affects all those who live around the sea. The entire South China Sea is teetering on the edge of a fisheries collapse, and the only way to avoid it is through multilateral cooperation in disputed waters.  

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A FONOP Schedule in the South China Sea: What Next?

  How can regularized FONOPs benefit U.S. interests in the South China Sea? Earlier this month, the Wall Street Journal reported that the U.S. Department of Defense, for the first time under the Trump administration, had decided to set up a schedule of regular freedom of navigation operations (FONOPs) in the South China Sea under the authority of U.S. Pacific Command. The decision addresses a major criticism of the operations under the Obama administration: namely that their irregularity made them appear subservient to political and diplomatic interests, undermining their legal signaling utility.   The Obama administration presided over four FONOPs in the South China Sea near Chinese possessions. These began in October 2015 and ended in October 2016, but the gap between each operation during that time was far from regular. The Trump administration, by contrast, carried out its first FONOP in May by sailing a guided-missile destroyer within 12 nautical miles of Mischief Reef in the Spratly group to assert high-seas freedoms and has since carried out two more operations. Since then, we’ve seen two more operations: one in July and one in August.   There is a clear benefit to an apolitical schedule. The United States has long argued that the FONOPs are merely a legal signaling tool and do not specifically signal out Beijing. The latter point has been reinforced by having U.S. destroyers challenge the excessive maritime claims of other South China Sea claimants — news reports mostly emphasize FONOPs as an a maneuver against China, but the U.S. Navy challenges claims by everyone from the Philippines to Vietnam to Taiwan.   Enjoying this article? Click here to subscribe for full access. Just $5 a month. The former point, however, had been arguably undermined by the irregularity of FONOPs. Even when this May’s FONOP came after a gap of more than 200 days, some commentators suggested that the Department of Defense was seeking to avoid scrutiny on the South China Sea ahead of the Shangri-La Dialogue, where U.S. Defense Secretary Jim Mattis ultimately touted freedom of navigation in his address.   The Journal‘s report is hardly surprising given the pace of operations the Trump administration has undertaken in recent days, but would regularized FONOPs succeed in drastically changing the situation on the water in the South China Sea? That’s unlikely. China’s negative reactions remain constant and its behavior has not changed as a result of FONOPs. U.S. allies and partners, no doubt, would welcome a more regular schedule.  

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Wisdom from a legal giant

  Last Saturday, I wrote about and extensively quoted from Associate Justice Antonio Carpio’s commencement speech to the 2 PHD in Leadership and 32 Masters in Public Management graduates of the Ateneo School of Government. The speech is entitled “My Journey in Public Service” and it is full of lessons for public servants and for those who work on governance issues in the country. I proudly claim several affiliations with Justice Carpio—a shared name, similar place of origin Mindanao, the same undergraduate dorm (Cervini Hall) and college (Ateneo de Manila University), and a common legal education (the University of the Philippines College of Law).   In the Saturday column, I wrote about the governance lessons Justice Carpio identified from addressing monopolies in telecommunications and the shipping industry as well as in attempting to eradicate jueteng in the county. In today’s column, I will share Carpio’s insights from dealing with formidable legal issues.   One issue that the Ramos administration (and others before it) had to contend with was the long delay in resolving administrative cases. In the Malacanang legal office alone, according to Carpio, the backlog stretched to almost 20 years when he assumed office. Likewise, this kind of backlogs existed in different government offices. I can affirm that as I run the legal office of the Department of Environment and Natural Resources from 1996 to 98 and our backlog stretched to 50 years and I had more than 5,000 pending cases when I joined the department.   Justice Carpio recalls how he addressed this problem: “I proposed to the President an Administrative Order introducing two measures. First, all parties should submit affidavits in lieu of direct testimony of their witnesses. This would cut down the time for taking testimonies of witnesses by at least 50 percent. Second, all parties should submit draft decisions of their cases, and the head of office would choose which one to adopt either wholly or partially. This would allow the head of office to promptly dispose of cases submitted for decision.”   According to Carpio, he explained to the President that this was the procedure adopted in the United States and other countries to efficiently and fairly dispose of administrative cases. President Ramos was convinced and signed the Administrative Order. The result: “This allowed the Malacañang legal office, headed by then Assistant Secretary Renato Corona whom I recruited to join the Ramos Administration, to wipe out the almost 20 years of backlog of cases in the Malacanang legal office.” Other departments emulated this approach successfully. That included the DENR legal office, under my watch. With the support of then-Environment Secretary Victor Ramos, we wiped out the backlog six months before President Ramos’ term ended.   Justice Carpio emphasized the lesson here: We do not have to reinvent the wheel. The problems of our government bureaucracy are likely not unique to the Philippines. Governments of other countries have faced them and have instituted solutions, some successfully and others unsuccessfully. We can learn lessons from these successful and unsuccessful solutions and craft our own solutions.”  

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The Week Donald Trump Lost the South China Sea

Vietnam’s capitulation shows China’s neighbors fear the U.S. no longer has their backs. The Week Donald Trump Lost the South China Sea Vietnam’s history is full of heroic tales of resistance to China. But this month Hanoi bent the knee to Beijing, humiliated in a contest over who controls the South China Sea, the most disputed waterway in the world. Hanoi has been looking to Washington for implicit backing to see off Beijing’s threats. At the same time, the Trump administration demonstrated that it either does not understand or sufficiently care about the interests of its friends and potential partners in Southeast Asia to protect them against China. Southeast Asian governments will conclude that the United States does not have their backs. And while Washington eats itself over Russian spies and health care debates, one of the world’s most crucial regions is slipping into Beijing’s hands. There’s no tenser set of waters in the world than the South China Sea. For the last few years, China and its neighbors have been bluffing, threatening, cajoling, and suing for control of its resources. In June, Vietnam made an assertive move. After two and a half years of delay, it finally granted Talisman Vietnam (a subsidiary of the Spanish energy firm Repsol) permission to drill for gas at the very edge of Hanoi’s exclusive economic zone (EEZ) in the South China Sea.

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Taiwan could play role in resolving S. China Sea dispute: expert

Taipei, Sept. 8 (CNA) The Republic of China (Taiwan) could play an important role in resolving the South China Sea dispute as it was the ROC that first claimed sovereignty over the region and it still has many historic documents on the issue, a visiting UK expert said on Friday. “I think Taiwan could play a really important role in resolving the dispute. Because of course the claim really started with the ROC in the early 20th century,” said Bill Hayton, an associate fellow at Chatham House, an international policy institute based in London. In addition, many of the historic archives are still stored in Taiwan, where political openness makes it easier to discuss sovereignty claims than in China or Vietnam, he noted. By presenting its historic documents on the South China Sea, Hayton said Taipei could demonstrate that the more exaggerated claims made by Beijing are not supported by the historical evidence. Such an approach could take some of the heat out of the dispute, he told the Central News Agency on Friday. Hayton also said it is clear Taiwan has occupied Taiping Island or Itu Aba for 70 years, noting “clearly you have the best claim to that feature.”

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Indonesia starts to confront China’s territorial claims in South China Sea

JAKARTA (NYTIMES) – When Indonesia recently – and quite publicly – renamed the northernmost waters of its exclusive economic zone in the South China Sea despite China’s claims to the area, Beijing quickly dismissed the move as “meaningless.” It is proving to be anything but. Indonesia’s increasingly aggressive posture in the region – including a military buildup in its nearby Natuna Islands and the planned deployment of naval warships – comes as other nations are being more accommodating to China’s broad territorial claims in the South China Sea. The two countries had three maritime skirmishes in 2016 involving warning shots, including one in which Indonesian warships seized a Chinese fishing boat and its crew.

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