China's SCS Strategy Thread

[joshuatree]

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An article that counters the view that the White House botched the recent sailing.

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What if a coastal state builds up a Low Tide Elevation that sits within 12 nautical miles of a recognized island or rock? That island or rock is entitled to the full 12 nautical mile territorial sea. Additionally, according to UNCLOS article 13, if an LTE is located inside the territorial sea of another island or rock, then that LTE can be used as a baseline to "bump out" the territorial sea of the originating feature. Accordingly, high seas freedoms do not apply around the built-up LTE. Innocent passage applies, as does the 500-meter safety zone.

Which of these circumstances apply to the recent FONOP in the vicinity of Subi Reef? Subi Reef is located within 12 nautical miles of Sandy Cay (not to be confused with Sand Cay, which is occupied by Vietnam and does not lie within 12 nm of Subi Reef), and can be used as a base point for Sandy Cay's territorial sea. Sandy Cay is unoccupied, but is claimed by China, the Philippines, Vietnam and Taiwan. Nonetheless, there is a 12 nautical mile territorial sea around Subi Reef, generated by Sandy Cay. To whom the territorial sea belongs to is irrelevant. It is an example of the third circumstance described above—a territorial sea extended by an LTE in which innocent passage rights apply.

Given this is a China's SCS strategy thread, a logical step would be to mark Sandy Cay by China regardless of the opposition as a response to the FONOPs. This would reinforce Subi as a feature entitled indirectly to a territorial sea and only Mischief would be without a doubt a LTE with no additional rights around it aside from the argument that Taiping Island with an EEZ can reach out to Mischief. All of this would be within the framework of UNCLOS so nine dash line or not is irrelevant.

 

[Brumby]

An article that counters the view that the White House botched the recent sailing.

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Given this is a China's SCS strategy thread, a logical step would be to mark Sandy Cay by China regardless of the opposition as a response to the FONOPs. This would reinforce Subi as a feature entitled indirectly to a territorial sea and only Mischief would be without a doubt a LTE with no additional rights around it aside from the argument that Taiping Island with an EEZ can reach out to Mischief. All of this would be within the framework of UNCLOS so nine dash line or not is irrelevant.

A couple of comments. Firstly, the article itself is self refuting in a couple of key places. As a defence against the allegations that the Obama administration botched the operation, it does poorly for this reason. For example, one of the key premise of the FON and policy is being neutral towards the dispute. The implicit recognition of a territorial limit by innocent passage contradicts its own policy by its actions. This is either incompetence or deliberate but still reflects poor decision choices. The rationale offered can't get past the choice of selecting Mischief instead as it doesn't present such a problem. Additionally, when territories are in dispute and until title is resolved, customary law does not require the US to abide by territorial limit conditions imposed by any party.

Secondly as to your comments, China can and has done what it wants to do regardless of UNCLOS. It should just be reminded that if you wish to invoke UNCLOS then it carries the responsibility to abide by them. The Hague ruling is just around the corner and that will remove some of the smoke screen that China has placed around the disputes through its ambiguity.

 

[Blitzo]

The Hague ruling is just around the corner and that will remove some of the smoke screen that China has placed around the disputes through its ambiguity.

It is yet to be seen if the ruling will actually force China to remove some of the ambiguity of its actual nine dash line... I personally doubt China will do so in response to the ruling.

If you're saying that the ruling will remove the ambiguity by virtue of judging the limitations of certain of China's claims within the scope of UNCLOS... I think it would still not actually clarify the extent of China's claims as perceived by itself (which is the most important part for actual negotiations and actions between states in the region).


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I expect that once China has consolidated its holdings it will eventually clarify its claims such that most of them (and most of the actions that they have done so far) are within the scope of UNCLOS, or become at the very least a matter of interpreting certain articles of UNCLOS.
But it is unlikely that China will yield in the short term to the pressure of an external party in this dispute given the importance of this region to its security and interests.

 

[Brumby]

It is yet to be seen if the ruling will actually force China to remove some of the ambiguity of its actual nine dash line... I personally doubt China will do so in response to the ruling.

I am not saying that the ruling will directly address the nine dash line issue because given the ambiguity I don't think it is possible or it is within the scope of the tribunal. However I do believe the ruling will indirectly place some form of limitation on how the nine dash can be used. We will have to be patient and wait for the ruling to establish some clarity.

If you're saying that the ruling will remove the ambiguity by virtue of judging the limitations of certain of China's claims within the scope of UNCLOS... I think it would still not actually clarify the extent of China's claims as perceived by itself (which is the most important part for actual negotiations and actions between states in the region).

The way I read China's approach is twofold. The overarching claim is based on nine dash and with it all the ambiguity that comes with it. Within that scope, China is maximising and leveraging all that UNCLOS allows and including pushing for as broad a definition in meaning as possible. The ruling I believe will ultimately constrain China's exploitation in this area. I should remind everyone that according to UNCLOS, the tribunal's determination is final and regardless of whether China agrees with it or not. China can ignore it and suffer the cost of being seen as thumbing a rule based system. As I said before, it is either "rule by law" or "rule of law".

I expect that once China has consolidated its holdings it will eventually clarify its claims such that most of them (and most of the actions that they have done so far) are within the scope of UNCLOS, or become at the very least a matter of interpreting certain articles of UNCLOS.
But it is unlikely that China will yield in the short term to the pressure of an external party in this dispute given the importance of this region to its security and interests.

I agree the result would not change China's attitude but I believe it will force China to recalibrate its actions.

 

[Blitzo]

I am not saying that the ruling will directly address the nine dash line issue because given the ambiguity I don't think it is possible or it is within the scope of the tribunal. However I do believe the ruling will indirectly place some form of limitation on how the nine dash can be used. We will have to be patient and wait for the ruling to establish some clarity.

I think trying to impose clarity based off the ruling would only be a minor achievement, but in the scheme of things it is far from what's necessary to fully clarify China's nature of its claims.

The way I read China's approach is twofold. The overarching claim is based on nine dash and with it all the ambiguity that comes with it. Within that scope, China is maximising and leveraging all that UNCLOS allows and including pushing for as broad a definition in meaning as possible. The ruling I believe will ultimately constrain China's exploitation in this area. I should remind everyone that according to UNCLOS, the tribunal's determination is final and regardless of whether China agrees with it or not. China can ignore it and suffer the cost of being seen as thumbing a rule based system. As I said before, it is either "rule by law" or "rule of law".

China wouldn't be the first nation to ignore the determinations and rulings of the ICJ when it is important to its national interests, and it certainly won't be the last.
That said I'd be interested to see what nations would be willing to impose real costs on China afterwards...

I agree the result would not change China's attitude but I believe it will force China to recalibrate its actions.

Possibly in the medium to longer term.
In the short term, if anything I think bringing the issue to court will probably stiffen China's resolve to demonstrate that it is not going to bend to outside involvement in the dispute, which has been its constant statement in the last few years.

 

[Brumby]

I think trying to impose clarity based off the ruling would only be a minor achievement, but in the scheme of things it is far from what's necessary to fully clarify China's nature of its claims.

I agree. Only China can clarify its intentions behind the nine dash. The ruling may possibly place limitations in the absence of clarity. I don't think imposition of clarity is logically possible.

China wouldn't be the first nation to ignore the determinations and rulings of the ICJ when it is important to its national interests, and it certainly won't be the last.
That said I'd be interested to see what nations would be willing to impose real costs on China afterwards...

When I said "cost", the reference is to China's own credibility and image in the international arena. Given that China aspiration in leadership in areas like AIIB and other international institutions, thumbing a rule based determination will come at a cost to its standing.

Possibly in the medium to longer term.
In the short term, if anything I think bringing the issue to court will probably stiffen China's resolve to demonstrate that it is not going to bend to outside involvement in the dispute, which has been its constant statement in the last few years.

The tribunal is an intrinsic and important component of UNCLOS especially in conflict resolution. I think it is a serious misconception to consider the tribunal as an outside party.

 

[Blitzo]

I agree. Only China can clarify its intentions behind the nine dash. The ruling may possibly place limitations in the absence of clarity. I don't think imposition of clarity is logically possible.

Indeed.

When I said "cost", the reference is to China's own credibility and image in the international arena. Given that China aspiration in leadership in areas like AIIB and other international institutions, thumbing a rule based determination will come at a cost to its standing.

Possibly. It really depends on how much noise other nations with vested interests in the actual dispute make and how much that influences other nations without vested interests to actually change their opinions of China after this finishes...
In fact it would be very interesting to see just how much other nations change their tune regarding China after the ruling, as it would likely show how much influence China has accrued and how much those nations perceive realpolitik. Other powerful nations have also ignored ICJ rulings and have danced on the line of international law, yet their credibility is still mostly intact, and that is a result of the power they hold as well as the lack of explicit conflicting interests by many other powerful nations, thus reducing their interest in directly challenge those powerful nations.

The tribunal is an intrinsic and important component of UNCLOS especially in conflict resolution. I think it is a serious misconception to consider the tribunal as an outside party.

I have no opinion regarding that, however China has stated that it perceives involving any other party beyond the two parties in dispute as outside involvement.
Obviously it goes without speaking that China holds that position because it means it has a better chance of getting more of what it wants, where as bringing in other parties (including ICJ) waters down the influence and bargaining chips China can bring to the table.

 

[Brumby]

Possibly. It really depends on how much noise other nations with vested interests in the actual dispute make and how much that influences other nations without vested interests to actually change their opinions of China after this finishes...
In fact it would be very interesting to see just how much other nations change their tune regarding China after the ruling, as it would likely show how much influence China has accrued and how much those nations perceive realpolitik.

The nature of the case and its far reaching implications is very important in overall consideration. In order to expend political capital one must have acquired it to begin with. China do not have a long history of international involvement. The SCS issue is not something one can simply brush aside as insignificant.

Other powerful nations have also ignored ICJ rulings and have danced on the line of international law, yet their credibility is still mostly intact, and that is a result of the power they hold as well as the lack of explicit conflicting interests by many other powerful nations, thus reducing their interest in directly challenge those powerful nations.

I have seen this argument being presented quite often as a defence. However I believe this reasoning is weak when applied against the history of cases both in scope and implications.

I have no opinion regarding that, however China has stated that it perceives involving any other party beyond the two parties in dispute as outside involvement.
Obviously it goes without speaking that China holds that position because it means it has a better chance of getting more of what it wants, where as bringing in other parties (including ICJ) waters down the influence and bargaining chips China can bring to the table.

My view is entirely different in that China's philosophical leaning is based on "rule by law" as opposed to "rule of law". Such leaning simply shapes its worldview that institutions such as ICJ are inconveniences to be ignored rather than an important construct within the rule of law.

 

[Blitzo]

The nature of the case and its far reaching implications is very important in overall consideration. In order to expend political capital one must have acquired it to begin with. China do not have a long history of international involvement due to history. The SCS issue is not something one can simply brush aside as insignificant.

China may not have a very long history of international involvement, but its economic importance and size as well as its rapid increase in international engagement in recent years and the trend being likely to continue, will definitely be factors to consider as well.

For nations who have strong vested interests in maintaining a good relationship with China, and who do not have vested interests in the SCS issue, they might be willing to not substantially incur "costs" upon China.
I use the term "vested interests" regarding the SCS, because obviously the ability for shipping to transit through the SCS is in the interests of all nations in the world who engage in seaborne trade thus if that were threatened then other nations of the world would obviously be more willing to play ball and incur costs on China... and I also think the ability for civilian shipping to transit through the SCS is the only significant interest that most other nations around the world have in the region... but is the freedom for civilian shipping to travel through the SCS under threat at all to begin with?

That said, I'm not going to predict how many nations may or may not seek to reduce ties with China due to this ruling... but I would say that it's far from clear cut.

I have seen this argument being presented quite often as a defence. However I believe this reasoning is weak when applied against the history of cases both in scope and implications.

Possibly, but then the argument could also turned around that excess focus is only being oriented now on the need to "abide" to ICJ because it's... well, China.

My view is entirely different in that China's philosophical leaning is based on "rule by law" as opposed to "rule of law". Such leaning simply shapes its worldview that institutions such as ICJ are inconveniences to be ignore rather than an important construct within the rule of law.

I think using such broad sweeps is a bit too generalizing, because it suggests that China is unique in "rule by law" (whatever it means), whereas in reality a number of other nations have also ignored ICJ rulings so when it was in their national interests to do so -- and by your argument the scale of the ruling wouldn't matter anyway because if those nations were committed to "rule of law" they would have accepted it. Your position also incorrectly suggests that China would seek to ignore all institutions which inconvenience it, whereas in reality this type of action is by far and away the exception rather than the norm for China.

That is why in my last post in that other thread, I suggested a far less ambitious claim would be more defensible and more logical: specifically, the SCS situation shows China is willing to contest certain international norms in situations which it perceives as vital to its strategic interests, if it feels like that is the only way to protect those interests.

 

[counterprime]

My view is entirely different in that China's philosophical leaning is based on "rule by law" as opposed to "rule of law". Such leaning simply shapes its worldview that institutions such as ICJ are inconveniences to be ignored rather than an important construct within the rule of law.

Are you trying to make funny?

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