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The historic legal battle between the Philippines and China over disputed territories in the South China Sea has entered a new phase. There are renewed risks of escalation. In recent days, China, the United States and Vietnam have all expressed their position on the legal aspects of the maritime spats in the Western Pacific.
[ More ]Ahead of Xi Jinping’s scheduled three-day visit to India, Indian President Pranab Mukherjee traveled to Vietnam for a state visit. At the conclusion of his trip to Vietnam, Mukherjee and his counterpart, Truong Tan Sang, issued a joint communique in which they jointly called for countries to stand for freedom of navigation in the disputed South China Sea.
[ More ]The author argues that "it’s time for fellow seafaring states to mount a more vocal, more forceful defense of freedom of the seas" and challenge China's excessive claims.
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The author suggests multiple ways in which European nations could increase the pressure on China to abide by international rules on freedom of navigation that benefit everyone.
[ More ]Oil and gas resources in the Arctic are an important resource to guarantee China's sustained economic growth and the country should actively look at developing it, state media on Wednesday cited a Chinese military think-tank as saying.
[ More ]The recent conclusion of negotiations over maritime boundaries between Indonesia and the Philippines was a significant development for the two ASEAN member states and it holds important lessons for all claimant states over disputed waters in the South China Sea.
[ More ]China will probably begin conducting naval nuclear-deterrence patrols this year, the U.S. Defense Department said on Thursday. Beijing has never before had a credible submarine force that would give it the capability to launch submerged long-range nuclear missiles.
[ More ]Island or maritime demarcation disputes should be solved through coordination and negotiations between directly involved parties on the basis of respecting historical facts and international law, a Chinese general said on Sunday.
[ More ]Defense leaders in East Asia, including those from the US, meet as the region roils over China's aggressive acts over islands and watery resources. A few nations, however, take legal action to show how disputes can be resolved peacefully.
[ More ]The argues that the best conclusion that emerges from a consideration of China’s practice of foreign policy in the South China Sea "is that the only thing consistent about that policy is its inconsistency and lack of any discernible strategy."
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As mentioned previously, the enhanced legitimacy gained through ratification of UNCLOS would aid PACOM in several ways. First, legitimacy gives FON assertions and diplomatic protests more weight, and leaves nations such as China constrained in their ability to challenge U.S. action. Because UNCLOS is almost universally accepted, U.S. actions would receive “tacit support” from the 160 nations party to the convention allowing commanders to more aggressively assert navigational rights within the approved framework of UNCLOS should diplomacy fail.66 In other words, after military capability, legitimacy is the second prong necessary to unilaterally conduct effective FON assertions in the SCS.
Unilateral action is always the last resort, and ratification of UNCLOS helps dramatically increase the legitimacy of U.S. FON assertions when viewed from a multinational vantage point. Rhetoric marching lock step with action will decrease PACOM difficulties convincing SCS nations that U.S. interests are not just self-serving. Although self interest plays a part, the externalities of the U.S. FON program help all coastal and maritime nations, especially those like the Philippines who do not have a strong blue water navy able to conduct these assertions on their own. Restated, ratification of the convention shows our allies and partners that we are committed to international law and a global “partnership of maritime nations sharing common goals and values.”67
Additionally, legitimacy serves to underpin United States assertions that we are committed to the rule of law; critical if the U.S. hopes to achieve maritime security goals in the SCS. Looking closely at the EP-3 incident from 2001, notably absent is any real resolution of the underlying issues. Mainly the serious disconnect between Chinese and U.S. interpretations of UNCLOS provisions as related to military activities in the EEZ. Moreover, other than saber rattling by the U.S. and China, our closest allies in the region failed to lodge strong protests against this clear violation of UNCLOS. At best this shows other regional powers at least marginally acknowledge Chinese EEZ regulations, and at worst brings into question whether international powers fully believe U.S. actions are completely legitimate. Ratification eliminates that seam and the increased legitimacy gained helps U.S. allies come to our defense should similar issues arise in the future.
Finally, legitimacy is the key to future dialog with China over freedom of navigation in the SCS. UNCLOS already provides the framework for communication and resolution of varying interpretations of convention provisions. With an economy increasingly dependent on maritime freedom in the global commons, China may be receptive to multilateral dialog and change internal laws to better conform to the UNCLOS.68 This would be a win-win for PACOM as it would significantly decrease the requirement for, and probability of miscalculation during, FON assertions. Moreover, dialog could lead to multilateral security cooperation activities with the PRC Navy, such as the Proliferation Security Initiative.69
Prudence and realism dictate that foreign policy plan and hope for the best but prepare for the worst. China is quite aware that its “size and rise to power status evoke jitters,” and according to Linda Jakobson, Beijing has decided, for the time being at least, to “advocate cautious Arctic policies for fear of causing alarm and provoking countermea- sures among the Arctic states.”132 But this reticence and restraint on China’s part will not likely last indefinitely. China is very heavily dependent on international shipping (energy imports and finished goods exports) for its economic, social, and political stability;133 if and when the Arctic proves to be truly valuable for its natural resources and sea routes, Beijing will likely become much more assertive. The United States should be prepared for the possibility that Beijing could someday conclude that developments or situations in the Arctic threaten China’s economic prosperity, and thus Chinese social stability and ultimately the political power of the Communist Party of China. At a minimum it is in the interest of the United States and the other A5 NATO democracies to maintain defen- sive capabilities for safeguarding the security of the Arctic region.
The United States should accede to UNCLOS. This would be difficult currently, because a small but obstreperous group of senators is holding up accession, a regrettable and un- fortunate situation since the United States can ill afford to be marginalized or hampered and hobbled in Arctic affairs while other A5 states busily prepare extended-continental- shelf territorial claims. These senators should rethink their positions in light of China’s recent and developing engagement in Arctic affairs and note that at least two Chinese commentators have concluded that continual American nonaccession will be detrimental to U.S. interests.115
As well, an American naval analyst has recently observed that “the failure of the United States to accede to UNCLOS gives China unchallenged diplomatic space to attempt to shape law of the sea in its favor.”
Looking far and wide at the legal documents which can resolve disputes related to the Arctic and how each state implements them, [it is our opinion that] UNCLOS is the most effective path for balancing the rights and interests among each of the signatory Arctic states. In the present disputes, with the exception of the United States, all other countries have already ratified UNCLOS. As a nonsignatory state to UNCLOS, in the midst of the disputes over resources which are growing fiercer by the day, the United States is meet- ing up with risks and hazards [regarding access to] the rich resources of several thousand square kilometers of continental shelf. The position of the U.S. as a nonsignatory state in reality impedes its protection of its maritime interests. To protect their rights and interests in the Arctic region, every state has started paying serious attention to UNCLOS and hopes to find in it the legal basis for supporting its positions, this in order to win advantageous positions in international court decisions and obtain the recognition of international society.
According to the “United Nations Convention on the Law of the Sea” currently in effect, the Arctic does not belong to any country. In addition to the five circum-Arctic countries Russia, the United States, Canada, Denmark, and Norway, many [other] countries have proclaimed partial sovereignty over the Arctic. At present there is no Arctic country which has clearly proven that its continental shelf extends into the Arctic, and because of this the Arctic is regarded as an “international area” and is supervised and managed by the Inter- national Seabed Authority. Some countries are contending for Arctic sovereignty, and this is tantamount to infringing upon the interests of the other countries of the world. In facing this real and quite unpredictable “scramble and battle for the Arctic” and the probability of some countries dividing up the [Arctic] melon with the aid of geographical advantage and military might, if peaceful means cannot produce the anticipated effects, war becomes the only method for resolving the issue. Based on this, it is not difficult for us to imagine that the probability of the future outbreak of war in the Arctic is very high, and that as soon as war breaks out, the United States, Russia, and Canada will be its main principals.In Canada, more benign and rational assessments of potential trouble in the Arctic usually (but not always) prevail; there may be tension and friction in the Arctic in the future, but by and large Canadian commentators on Arctic affairs do not usually see conflict as a distinct possibility. The conclusions of Kyle D. Christensen of Canada’s National Defence Headquarters are typical: “There exists in China a distinct group of academics and officials trying to influence leaders to adopt a much more assertive stance in the Arctic than has traditionally been the case. This could ultimately bring China into disagreement with circumpolar states in a variety of issue areas, and alter security an sovereignty relationships in the circumpolar region.”
If adherence to the Convention made no difference perhaps this would simply be another lesson that strident political debate can sometimes harm the nation, as with the isolationist rhetoric of the America First Movement before World War II. But sadly the over quarter-century of United States non-adherence is severely harming the Nation. On a daily basis adversaries such as Iran use American non-adherence to assert that our Navy does not enjoy the protections of the Convention. China uses our non-party status to challenge our naval presence in the South China Sea and the Yellow Sea. We are unable to participate fully in the most important institutions for engaging on oceans law today, such as the annual meeting of States Parties to the Convention and the Commission on the Limits of the Continental Shelf. By not taking our seat on the Council of the ISA we lose our veto over any distributions. By not adhering we also lose our ability to block potentially damaging amendments to the Convention.