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South China Sea Strategies for other nations (Not China)
- Thread starter PanAsian
- Start date
Jura The idiot
General
from USNI News
Opinion: Don’t Miss the Boat on Australian and U.S. Policy in the South China Sea
Opinion: Don’t Miss the Boat on Australian and U.S. Policy in the South China Sea
... and the size-limit reached; goes on in the source:Australia’s 2016 Defense expresses concern over “friction” in the South China Sea (SCS) arising from U.S.-Chinese naval interactions, and it worries that territorial disputes have created “uncertainty and tension.” Those statements, which show Canberra (like the rest of the states in the Indo-Pacific region) is slowly coming around to the gathering threat posed by China to freedom of the seas.
Predictably, the Mandarins in Beijing harshly criticized Australia, as did reliably pro-Chinese scholars such as Sam Bateman in an article in East Asia Forum. Those antagonists view Australia’s new White Paper as a move by Canberra to support U.S. naval operations in the region and a deepening of the Australia-U.S. Alliance.
Bateman, for example, accused the United States of ignoring the “carefully balanced regime of exclusive economic zones (EEZ) established by the United Nations Convention on the Law of the Sea (UNCLOS) when conducting naval operations in the SCS. , commander, U.S. Pacific Command, for example, recently pledged that the U.S. Navy “must continue to operate in the South China Sea to demonstrate that water space and the air above it is ‘international’ in character.”
While the EEZ is sui generis—neither territorial seas nor high seas —the balance of rights and interests in the zone inure to the international community and not the coastal state. While it is true that coastal states enjoy limited rights in the EEZ, the term “international waters” is an accurate shorthand reference used by navies to describe all waters seaward of the territorial sea. While the coastal state has rather limited and circumscribed rights in the EEZ, the ships and aircraft of all nations enjoy all the high seas freedoms and other internationally uses of the seas, except those that interfere with narrowly prescribed coastal state rights, such as fishing. The EEZ was cut out of the high seas in order to grant coastal states a handful of limited rights, and it is correct as a matter of law to describe the zone as “international waters” for military purposes.
Bateman and Beijing also say that foreign warships nations must operate with “due regard” in the EEZ for the “significant rights and duties” of coastal states. Of course user states must have “due regard” for coastal state rights in the EEZ, but those rights are strictly limited to resource exploitation, and narrower jurisdiction over protection of the marine environment, authority over offshore structures related to resource exploitation, and marine scientific research. Moreover, in exercising these limited resource-related rights, coastal states also must observe “due regard” for high seas freedoms in the EEZ, such as naval operations.
Articles 58(2), 86 and 87 of UNCLOS and the negotiating history of the convention, as well as longstanding customary international law, make clear that all nations enjoy high seas freedoms of navigation and overflight, and other internationally lawful uses of the seas associated with those freedoms, in and over the EEZ. These other internationally lawful uses include the full range of foreign , such as deterrence patrols, intelligence, surveillance, and reconnaissance, and air and naval exercises and operations. Ironically, China apparently still objects to U.S. military activities in its EEZ, even as the People’s Liberation Army (Navy) does the same thing in the U.S. EEZ of and .
China has accused the United States of “militarizing” the SCS through freedom of navigation (FON) operations and naval exercises with partner states, while characterizing its massive military buildup in the region as limited and necessary for “.” But the U.S. rebalance, Australian submarine program, and unprecedented regional naval buildup underway from New Delhi to Tokyo is a direct consequence of China’s turn toward coercive tactics at sea and reliance on a newly-minted blue-water battle fleet to change the status quo. It is unclear why China sees a handful of periodic FON operations as provocative since the United States and other nations have operated in the region for centuries.
China, on the other hand, appears bent on owning the South China Sea. States are rightly worried. Beijing’s breathtaking leaps in the quantity and quality of its naval and air capabilities, including new generation platforms and advanced weapons systems, appears designed to intimidate its neighbors and decouple the United States from its allies and regional partners. China has also enhanced its maritime law enforcement capabilities, and outfitted a distributed fleet of maritime militia to coerce its neighbors in peacetime and serve as an inexpensive force multiplier in the event of an armed conflict. China additionally has built on disputed features in the SCS capable of accommodating every military aircraft in the PLA inventory, constructed on these features to control the surrounding seascape, and deployed surface-to-air to the Paracel Islands in order to expand its anti-access/area denial envelope.
China’s militarization of the region is destabilizing; it endangers Australia and other nations, and it violates Beijing’s commitments in the 2002 ASEAN of the Parties on the South China Sea. Commercial shipping transits the area freely today, but China has positioned itself to close off this critical sea line of communication (SLOC) at a whim. Since more than $5 trillion in commerce (nearly $1 trillion in U.S. trade), including more than half of the world’s oil-tanker traffic and more than fifty percent of the world’s merchant fleet by tonnage, flows through the SCS annually, China’s potential to disrupt world markets is worrisome.
It has been suggested that a “bit of give and take” is required by both China and the United States in order to demilitarize the SCS. The United States, however, has already shown restraint in dealing with China’s aggressive behavior. China’s specious “territorial” claims over low-tide features, for example, are ripe for navigational challenge, but the United States has not done so. U.S. warships are legally entitled to conduct naval maneuvers and exercises, not just transit, within 12 nautical miles of these features occupied by China since low-tide elevations normally do not generate territorial sovereignty or a territorial sea. Likewise, U.S. surveillance aircraft may lawfully overfly Chinese claimed features, but they have refrained from doing so. U.S. naval aircraft have not used force in self-defense in response to China’s repeated aggressive and unsafe maneuvers by Chinese fighter jet aircraft, as they did against Libyan jets during the 1980s. The United States also could take an official position on the competing sovereignty claims in the SCS and offer greater support to the Philippines—a treaty ally—but so far, Washington has declined to do so.
Beijing’s actions, on the other hand, demonstrate a China on the march. In 1978 China invaded and occupied the Paracel Islands; in 1988 it clashed with Vietnamese forces near Johnson South Reef; in 1995 it surreptitiously seized Mischief Reef from the Philippines; in 2012 it took control of Scarborough Shoal by forcing out Filipino fishing vessels; in 2013 and 2014 it conducted military exercises on James Shoal; since 2014 it has unlawfully interfered with the resupply of Filipino marines aboard the BRP Sierra Madre at Second Thomas Shoal; in 2015 it took de facto control of Jackson Atoll. These “salami tactics” have been bolstered by large-scale projects in the Spratly Islands to change the status quo. Australia and all peace-loving states should be concerned.
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Blackstone
Brigadier
Nice propaganda piece for the beer and pretzel crowd.from USNI News
Opinion: Don’t Miss the Boat on Australian and U.S. Policy in the South China Sea
... and the size-limit reached; goes on in the source:
Recent intrusions into Indonesian & Malaysian territorial waters by Chinese fishing boats protected by China Coast Guard patrol vessels were claimed by China as "traditional fishing areas". Can anyone enlightened us on this? Does "traditional" for China means anywhere even in foreign territorial waters i.e. based on Chinese "history" & "tradition"? If so, very blatant and upsetting moves.
Like it or not, history extends past "WW2" or the "Cold War" which to many in Asia including China were just episodes within the more extensive colonial period.
Why Taiwan and China Agree on South China Sea Sovereignty
To understand today’s conflicts, it is essential to look at the region’s colonial history.
By Ryan Mitchell
March 29, 2016
Islands stir up all sorts of passions. Introducing South China Sea territorial disputes to its readers, one Chinese periodical sets forth enthusiastically about how the dazzling white sands of the Spratlys are paired with gorgeous shells, an abundance of exotic and beautiful fish, and pieces of bright coral “red as a young girl’s rouge make-up.” Another publication alters a photograph of one of the larger maritime features by covering it with a set of pasted-on Chinese flagpoles, with the caption: “Lovable national flag! What day, what hour, can you be inserted into the Nine Southern Islands?!“
What’s most remarkable about these undoubtedly arousing discussions of national territory is their date. Both pieces (and many others like them) were published in Republic of China media in 1933, and the foreign invaders mentioned in each are not any of the powers currently contesting Chinese territorial claims, but rather the (then) aggressively expansionist French Empire.
At the time, French seizure of the southern islands was grouped together in patriotic discourse with the Japanese takeover of Manchuria in 1931, and other territorial encroachments by foreign powers with colonial aspirations. Collectively, these losses of what was perceived as Chinese territorial sovereignty, and the lackluster opposition of China’s rulers, were referred to as 国耻—“national humiliation.”
Today, both political successors to China’s then-government maintain territorial claims over the South China Sea that are based most closely on maps (including clear predecessors of the famous “nine-dash line”) that were first broadly disseminated in these 1920s and ‘30s nationalist protests against French and Japanese attempts to colonize the Spratly and Paracel island chains. There is, in fact, great continuity throughout the legal arguments and popular passions implicated in the dispute, stretching from this period of colonial pressure through the present day. Western powers’ failures to acknowledge and take seriously these continuities may seriously hamper efforts to deescalate regional tensions.
Colonial Legal Structures
Imagine yourself in the middle of the South China Sea at any point in the early 20th century before World War II. It was quite a cosmopolitan place even then. You could travel in any direction and end up in a different country: Head west to French Indochina, south to British Malaya or Dutch Indonesia, east to the American-annexed Philippines, southwest to British Singapore, northeast to Japanese-controlled Taiwan, or, finally, north to China (perhaps passing through British-controlled Hong Kong).
Save Thailand, and a Japan that had rapidly joined the ranks of colonizing Western powers (having declared its intention to “leave Asia,” or datsu-a 脱亜), China was in effect the only Asian state left as an independent polity. This status was, however, extremely precarious. Western states, and then Japan, had long enjoyed extraterritorial rights and control over “leased” territories, and had long justified their conquest of much of the world with a set of legal arguments that were originally crafted precisely to allow the maximum extension of European sovereignty.
The principle of “terra nullius”—or unclaimed land open to be taken by whichever Western power “discovered” it—was the basic concept which allowed conquest of vast swathes of the Americas, Africa, and parts of Asia (and was invoked by both France and Japan in disregarding Chinese claims to control of the South China Sea island chains). This legal principle was theoretically universal: whoever discovered unused territory could lay claim to it. But in practice, it led to highly particular effects. Only European “discoveries” counted, and prior “native” uses to or claims over thus-discovered territories were generally disregarded.
The principle of the “free sea” operated in a similar manner. Indeed, the concept was first presented in its modern form by the great jurist Hugo Grotius precisely to justify the activities of the Dutch East India company (VOC) as it sought to end the Portuguese monopoly over trade in Asia. Grotius’ innovation allowed powerful companies like the VOC, or anyone else who could reasonably claim to represent a European sovereign, to wage “private war” against whomever interfered with their commercial activities—be they other Europeans or locals who mistakenly thought they had the right not to trade away their land and resources (or to ban foreign imports such as opium).
By the 1930s, China was used to these and other neutral-sounding arguments being deployed in ways that led to denials of its status as an equal Westphalian sovereign power. The French and Japanese attempts to conquer the South China Sea were seen as one more such case; Chinese claims of frequenting and exerting control over these island chains for centuries were not only rejected, they were not even granted the opportunity to have a legal or diplomatic hearing. This led to voluble calls among Chinese nationalists to “take back sovereignty” over the region, and those calls have never stopped. Today’s arguments on both sides of the Strait, right or wrong, are rooted in that decolonizing movement.
The Best Chance for Multilateralism?
Today, China and Taiwan both continue to articulate claims to sovereignty over the Spratly and Paracel island chains. The modern form of these claims stems from the above-noted early 20th century nationalist literature. Just recently, Taiwan has sought to further publicize the issue by inviting foreign media to Itu Aba (the largest feature in the entire South China Sea, and one specifically, formally claimed by the Republic of China in 1946, when most of today’s other disputants were still Western colonies) in order to prove its status as an “island” as opposed to the Philippines’ arbitration claim that it is a mere “rock” under UNCLOS, and also by issuing an official position paper on its sovereignty claims in general.
Holding fresh water, crops, a hospital, an airport, and a permanent population of a few hundred Taiwanese military personnel, Itu Aba may very likely qualify as an “island” under UNCLOS, and thus generate territorial waters and an exclusive economic zone (EEZ). That EEZ, in turn, would cover a fairly wide swathe of the disputed South China Sea territories, including all of China’s recently-constructed artificial islands. This is one reason why the artificial island issue is, in and of itself, largely a red herring.
Treaties like UNCLOS leave many things undecided—which legal issues must be determined first in order to arbitrate a dispute, for example, or definitional questions like the “island/rock” distinction—because they are multilateral agreements among equal powers, whose practices then gradually create further norms of interpretation. Divergent practices by one or a handful of powers (like China’s views, shared with several other states, over limitations on military freedom of navigation in EEZs) do not per se represent wholesale rejections of UNCLOS, let alone “international law” as a whole. Arguing otherwise is disingenuous, for international law has always consisted of a plurality of interpretations.
China and Taiwan will continue to assert their claims for the foreseeable future, at minimum based on a few fairly clear-cut “islands” (France and Japan, among others, certainly treated them as such when trying to permanently annex them) which, legally, must now belong to someone. In China’s case, those claims are now often presented in a strategically ambiguous manner, which leaves unclear their exact relation to UNCLOS and its set of legal concepts—a major factor contributing to regional uncertainty. Taiwan, because it is a Western-friendly power with no discernible expansionist ambitions, has every interest in further specifying its sovereignty claims and eventually committing them to some kind of fair and neutral arbitration with other claimants. But when U.S. or other commentators argue that the issue of sovereignty should be ignored, or press the “island/rock” distinction in order to use UNCLOS as a back door to eliminate the possibility of China or Taiwan ever having their sovereignty arguments heard and vindicated, the chance for multilateral dialogue is wasted. Like “terra nullius,” these particular forms of lawfare can operate to silence disputants rather than actually engaging them in a discourse of justifying principles.
The “freedom of navigation” and “island/rock” principles, among others, appear universal. But they are only ever defined in particular ways, by particular states, pursuing particular interests. A true ‘rules based global order’ is one in which no state—be it China or the United States—can act as the unilateral enforcer or interpreter of these ostensibly universal rules. What is needed is more dialogue, including over the issue of sovereignty: if we can manage that as a global community, then we may really be “post-colonial.” Taiwan’s arguments should thus be considered very carefully.
Ryan Mitchell is a Mellon Foundation Humanities Fellow and Ph.D. in Law candidate at Yale, where his research focuses on political philosophy and international law. He is also an attorney admitted to the State Bar of California.
Blackstone
Brigadier
What "territorial waters" are you talking about? Did Chinese fishing boats intrude on someone's 3mi or 12mi limits?Recent intrusions into Indonesian & Malaysian territorial waters by Chinese fishing boats protected by China Coast Guard patrol vessels were claimed by China as "traditional fishing areas". Can anyone enlightened us on this? Does "traditional" for China means anywhere even in foreign territorial waters i.e. based on Chinese "history" & "tradition"? If so, very blatant and upsetting moves.
China claims 12 miles as its territorial waters surrounding those Spratey & Paracel reclaimed "reefs/islands". Read the latest media & newspaper reports on the Chinese fishing boats intrusions. Whether it is 3 or 12 miles they are within Indonesian & Malaysian territorial waters.
Brumby
Major
Recent intrusions into Indonesian & Malaysian territorial waters by Chinese fishing boats protected by China Coast Guard patrol vessels were claimed by China as "traditional fishing areas". Can anyone enlightened us on this? Does "traditional" for China means anywhere even in foreign territorial waters i.e. based on Chinese "history" & "tradition"? If so, very blatant and upsetting moves.
It is a convenient way to avoid the question whether its behaviour is legitimate or not.
China claims 12 miles as its territorial waters surrounding those Spratey & Paracel reclaimed "reefs/islands". Read the latest media & newspaper reports on the Chinese fishing boats intrusions. Whether it is 3 or 12 miles they are within Indonesian & Malaysian territorial waters.
This outcome is not surprising. If a party doesn't abide by an established rule based order then there is effectively no rules and anything and everything is up for grabs. I think the ASEAN countries are still in denial overwhelm.
Blackstone
Brigadier
If nations want to claim the moral high ground, they first have to demonstrate their own purity. Western hypocrisy on the so-called "rule based order" doesn't pass the smell test, and the 'do as we say, not as we do' people are the ones in denial.This outcome is not surprising. If a party doesn't abide by an established rule based order then there is effectively no rules and anything and everything is up for grabs. I think the ASEAN countries are still in denial overwhelm.
Blackstone
Brigadier
Some nations snipe at China's lawful opt out of Philippine's arbitration case, but do they secretly want the case to fail?
On March 1, Representative Joe Courtney in the U.S. House of Representatives calling upon the U.S. Senate to ratify the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The resolution affirms that it is in the U.S. national interest to become a party to the convention. It recommends the ratification of UNCLOS remain a top administration priority because the treaty has received bipartisan support from every president since 1994, and its importance has been underscored by the strategic challenges the United States faces in the Asia-Pacific region, especially in the South China Sea.
Meanwhile the United States remains bound by the customary international law underpinning UNCLOS, including Article 121 of the treaty regarding the status and entitlements of islands. And along with Australia, the European Union, and others, the United States is urging China to respect the forthcoming ruling by the tribunal established under the rules of UNCLOS to decide Manila’s case against Beijing’s South China Sea claims—a ruling that is expected to be favorable for the Philippines. At a press conference following the U.S.-ASEAN Summit held last month in Sunnylands, California, President Barack Obama said that the parties to UNCLOS are obligated to respect and abide by the ruling.
But that ruling could set a precedent affecting the claims of several of the nations that are calling on China to abide by it. For instance, Australia, Brazil, France, Japan, and the United States all make expansive maritime claims from remote islets that are not dissimilar in size or habitability to some of the Spratly Islands that the Philippines insists are legally rocks, not islands. If the tribunal rules that those features in the South China Sea are indeed rocks and therefore cannot generate a 200-nautical-mile exclusive economic zone (EEZ) or continental shelf in accordance with Article 121 of UNCLOS, all states should face pressure to abide by the precedent set. That means that McDonald Island (Australia), Clipperton Island (France), Saint Peter and Paul Rocks (Brazil), Okinotorishima (Japan), and Howland Island, Baker Island, and Kingman Reef (the United States) should generate only 12-nautical-mile territorial seas, not EEZs or continental shelves as their owners currently claim.
If the tribunal decides that the land features in question in the Spratlys, particularly , are “rocks” under Article 121(3) of UNCLOS, should the United States take the award into account and bring its own maritime claims into conformity with the ruling? Howland Island, Baker Island, and Kingman Reef in the Pacific Ocean constitute part of the United States Minor Outlying Islands. They contain no fresh water, no agricultural soil, and no permanent population. They measure 0.69 square miles, 0.46 square miles, and 0.004 square miles, respectively. In other words, they are clearly less able than Itu Aba to “sustain human habitation” or “economic life” as required of an island under Article 121(3).
The U.S. government has not made public its position on Article 121(3) and maritime zones generated by uninhabited islands, but its leading decisionmakers on topics related to the law of the sea have consistently asserted that the United States is entitled to claim an EEZ around all its possessions, whether inhabited or not, without regard to size or location.
At the 1986 annual meeting of the Law of the Sea Institute in Miami, Florida, the State Department’s assistant legal adviser for oceans, international environmental, and scientific affairs David Colson said, “The United States had concluded that all islands should have the same capacity to generate EEZs, whether they are inhabited or not, and that isolated or awkwardly located islands should not be viewed as ‘special circumstances’ or geographical anomalies in determining extended maritime boundaries.” He also said, “We decided that any piece of real estate could fit under the definition of an island, and we made the decision based upon what areas had United States territorial seas drawn around them.”
Professor Jon Van Dyke interpreted this U.S. position as meaning “any insular feature that can generate a territorial sea can also generate an EEZ. Under this view, there are no ‘rocks’ that meet the criteria of article 121(3) of being unable to ‘sustain human habitation or economic life of their own.’” The effect of this U.S. position “is to expand the areas of the ocean where the living and nonliving resources can be claimed by one nation to the exclusion of all others, thus reducing the resources that remain to be shared as the ‘common heritage’ for all humankind,” according to Van Dyke.
If this is indeed the official U.S. position, and if the tribunal decides in Manila’s favor regarding the legal status of features in the Spratlys, then in order to respect that precedent the U.S. government will need to consider changing or abandoning its claim to 200 EEZs and continental shelves from its remote Pacific islands. It should be hoped that other states, including Australia and Japan, also take the tribunal’s decisions into account and bring their maritime claims and conduct into conformity with UNCLOS if necessary.