Monthly Archives: September 2017

The South China Sea and China’s “Four Sha” Claim: New Legal Theory, Same Bad Argument


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  The Washington Free Beacon reports that China may be backing away from its most controversial legal justification in the South China Sea: the “Nine-Dash Line.” Officials from the Chinese Ministry of Foreign Affairs advanced a new legal theory at a closed-door meeting with U.S. State Department officials last month that would rely upon China’s sovereignty claims over the “Four Sha” island groups in the South China Sea instead of the Nine-Dash Line.   According to the Beacon, Deputy Director General Ma Xinmin of the Foreign Ministry’s Department of Treaty and Law “assert[ed] sovereignty” and maritime entitlements extending from four island groups in the South China Sea – Dongsha, Xisha, Nansha, and Zhongsha. Collectively, these island groups are referred to as the “Four Sha” (四沙) (“sha” in this context meaning sand). In English, these areas are respectively referred to as the Pratas Islands, Paracel Islands, Spratly Islands, and the Macclesfield Bank area.  

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Australian fleet must be wary of meddling in South China Sea affairs

  As Australian media reported of late, six Australian naval ships carrying 1,200 personnel have sailed toward the South China Sea. It remains unclear how far the ships have moved into the disputed sea area. The fleet has departed for “Indo-Pacific Endeavour 2017” with stops at Japan, South Korea and the Philippines in a biggest military operation of its kind for at least three decades.   With only about 10,000 personnel, the three-month military exercises and visits by the Australian Navy is rather impressive in terms of scale, scope, preparation and duration. More interested in peripheral security than the South China Sea, Australia used to be more focused on stopping refugee and migrant smuggling. When it used military forces in neighboring or far away regions, it was to play second fiddle to the US and to posture. Military exercises and visits this time, however, are voluntary and unusual in history, especially since the end of the Cold War.   Obviously, by doing so Australia wishes to show off its strengths, enhance ties with neighbors and then play a bigger role in regional security. It used to position itself as a middle power, thus not quite independent in security affairs. But now its role in international affairs has changed. After US President Donald Trump took office, the US has failed to play an active role in security affairs in the Asia-Pacific or East Asia, and may even withdraw in self-interest. If America does withdraw, who will safeguard regional security?   Strategists in Australia believe a stronger China brings uncertainties to the region. Therefore, Canberra hopes neighboring countries will come together and play a collective role. Though in no way can it fill America’s shoes, Australia still intends to get neighboring countries on board and act as a “sub chief.” This was confirmed by Australian Prime Minister Malcolm Turnbull at the Shangri-La Dialogue earlier this year when he said “Big fish eat small fish and small fish eat shrimps” to describe the Asia-Pacific order, barely concealing Australia’s intention of becoming spokesperson of “small fish” and “shrimps.”  

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Why Trump’s ‘South China Sea card’ is unlikely to work this time

  An online feud between US President Donald Trump and NBA superstars Stephen Curry and LeBron James may have grabbed some headlines around the world, but what the international community is truly concerned about right now is whether Trump’s recently renewed feud with North Korean leader Kim Jong-un would eventually escalate into a war.   Last week, addressing the United Nations General Assembly for the first time in his capacity as US president, Trump once again lashed out at Kim, referring to him as the “Rocket Man” in his speech, and then shortly afterwards calling him a “Madman” in a tweet.   As the US president was calling Kim names in public, Pyongyang became infuriated. Kim fired back by calling Trump a “Dotard”, or an old lunatic, while his foreign minister said Washington had made an “irredeemable mistake” by publicly insulting the paramount leader, and threatened to fire missiles at the US in retaliation.   Russian Foreign Minister Sergey Lavrov has dismissed the ongoing war of words between the US and North Korea as merely “a fight between kindergarten kids”, but it appears Washington is not just talking tough, it is following through as well. According to the Pentagon, one of its B-1B strategic bombers escorted by F-15 fighters flew over the waters east of the Korean Peninsula last Saturday as a show of military might.   As the Pentagon’s statement puts it, “this is the farthest north of the Demilitarized Zone any US combat aircraft has flown off North Korea’s coast in the 21st century, underscoring the seriousness with which we take Pyongyang’s reckless behavior.”   Nevertheless, despite the intense saber-rattling by both Washington and Pyongyang at this moment, neither of them can afford to ignore Beijing’s stance when it comes to whether they really want to go to war.   As we all know, ever since the onset of the crisis, Trump has been explicitly urging China on different public occasions to use its influence to bring North Korea into line. However, as Beijing has remained sluggish in responding to his call for action, it seems the US president still has another card up his sleeve: the South China Sea territorial dispute.   In his recent maiden speech to the UN, Trump stressed that “we must reject threats to sovereignty from Ukraine to the South China Sea, and we must uphold respect for law, respect for borders, and respect for culture, and the peaceful engagement these allow.”   Even though Trump didn’t mention any names during the speech, everybody could tell that his words were intended for both Russia and China.   In particular, it has become very clear Trump is determined to use the South China Sea dispute as leverage against his Chinese counterparts: if China is willing to side with the US against North Korea, then in return Washington will be more than happy to look the other way over Beijing’s ongoing military build-up in the South China Sea. Otherwise, there will be a lot more frequent US naval patrols in the disputed waters in the name of defending “the freedom of navigation”.   Is Trump’s plan going to work? Well, we very much doubt it.  

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THE ROYAL NAVY AND FREEDOM OF NAVIGATION OPERATIONS

In July, two major announcements were made renewing the Royal Navy’s commitment to the principle of freedom of navigation in the coming years. Firstly, the Secretary of State for Defence, the Right Honourable Michael Fallon, told Reuters that Britain was intending to send a warship to the South China Sea in 2018. The Defence Secretary explicitly stated that, “we have the right of freedom of navigation and we will exercise it.” In a direct reference to China, he added, “we won’t be constrained by China from sailing through the South China Sea.” Shortly afterward, the Foreign Secretary, the Right Honourable Boris Johnson, announced that the Royal Navy’s new aircraft carriers (the first of which is currently undergoing sea trials in UK waters) would deploy to the Pacific region to conduct freedom of navigation operations “to vindicate our belief in the rules-based international system and in the freedom of navigations through those waterways which are absolutely vital for world trade.” This statement develops remarks made by Sir Kim Darroch, the UK Ambassador in Washington DC, at the end of last year. The significance of these declarations by senior government ministers and diplomats should not be underestimated. Indeed, they have provoked a swift reaction from Chinese officials who have warned countries from outside the region from stirring up trouble. In a barely-veiled reference to recent UK military operations, Chinese foreign ministry spokesman Lu Kang stated pointedly, “Whoever they are, under whatever pretexts and whatever they say, their precedents of interfering in other regions on high-sounding reasons but only leaving behind chaos and humanitarian disaster warrant sharp alert of regional countries and people.” Freedom of navigation is not a recently discovered concept for the British. When a Spanish ambassador had the temerity to complain to Queen Elizabeth I about the voyages of Sir Francis Drake in the Pacific Ocean in the sixteenth century, she replied with one of the clearest early statements on the freedom of the seas: “The use of the sea and air is common to all; neither can any title to the ocean belong to any people or private man, for as much as neither nature nor regard of the public use permitteth any possession thereof.”1 Although her successor to the throne, King James I, flirted with the idea of nations having dominion over the oceans (mainly to protect Scottish fishing rights), it was still accepted that prohibiting innocent passage would be contrary to the dictates of humanity.2 By the early seventeenth century, Britain, by then a major maritime power, had recognized the benefits of oceans being open to all and has been a loyal adherent to this policy for the past 350 years. In the twentieth century, this commitment manifested itself during the negotiations which produced the United Nations Convention on the Law of the Sea (UNCLOS). UK diplomats made significant contributions to the development of some key concepts relating to freedom of navigation, such as the right of transit passage through international straits, later adopted by all the signatory nations.3 Although the UK has supported freedom of navigation as a matter of principle for centuries, its economic and practical impact for a leading world economy should not be ignored. The two are inextricably linked. In a recent address to a multi-national workshop on freedom of navigation and the law of the sea at the U.S. Naval War College, noted University of Virginia professor Ambassador John Norton Moore (ret.), a member of the U.S. 1982 UNCLOS negotiating team, stated that the provisions of the treaty “for freedom of navigation are of the utmost importance in protecting global trade, one of the core mechanisms for global economic growth.” The United Nations estimated that in 2011, nearly half of the world’s annual trade by sea passed through the Malacca Straits and the adjacent South China Sea. The economic arguments for maintaining navigational rights in this region are unassailable, especially as the UK develops new trading relationships with Asian partners following its planned withdrawal from the European Union.

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Australia Positioning to Help US Check China’s Maritime Expansion

  TAIPEI, TAIWAN — Australia, concerned about its vast regional trade network, is joining Japan, India and the United States in countering Chinese expansion in Asia’s biggest maritime dispute.   Six Australian warships were moving toward the South China Sea this week, with no publicized destination, for military exercises. Australian media has called the mission their country’s largest in 30 years.   “There is certainly a view in some quarters in Australia that one of Australia’s contributions to diplomacy and international affairs in Asia is as a security player,” said Jeffrey Wilson, a fellow with the Asia Research Centre at Murdoch University in Perth. “We have a very small defense force, but very high tech, high capacity.”   Australia’s leaders want their electorate, as well as its Asian neighbors, to see Canberra as a defender of rule of law in the South China Sea, consistent with its role since the Cold War, analysts say.   The Australian Department of Defense says that by 2021 it will raise the military budget to 2 percent of GDP, one of the fastest-growing in the Asia Pacific. The budget is $27.4 billion for 2017-2018.     That may effectively help the United States contain China in the sea, where Beijing claims about 90 percent of maritime territory, overlapping the exclusive economic zones of four economically and militarily weaker Southeast Asian states.   U.S. President Donald Trump is more focused on North Korea’s missile buildup than on China’s 7-year-old maritime expansion, a priority of Trump’s predecessor, Barack Obama.   “Australia has been trying to fill that void when necessary,” said Collin Koh, maritime security research fellow at Nanyang Technological University in Singapore.  

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Beijing Adopts New Tactic for S. China Sea Claims ‘Four Sha’ island groups replace illegal 9-Dash Line

  The Chinese government recently unveiled a new legal tactic to promote Beijing’s aggressive claim to own most of the strategic South China Sea. The new narrative that critics are calling “lawfare,” or legal warfare, involves a shift from China’s so-called “9-Dash Line” ownership covering most of the sea. The new lawfare narrative is called the “Four Sha”—Chinese for sand—and was revealed by Ma Xinmin, deputy director general in the Foreign Ministry’s department of treaty and law, during a closed-door meeting with State Department officials last month. China has claimed three of the island chains in the past and recently added a fourth zone in the northern part of the sea called the Pratas Islands near Hong Kong. The other locations are the disputed Paracels in the northwestern part and the Spratlys in the southern sea. The fourth island group is located in the central zone and includes Macclesfield Bank, a series of underwater reefs and shoals. China calls the island groups Dongsha, Xisha, Nansha, and Zhongsha, respectively.

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A dangerous manoeuvre on South China Seayour say

  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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