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Asahi Editorial: “China must stop oil drilling in South China Sea”

09 May 2014

Tensions are escalating dangerously in the South China Sea, where China and Vietnam have conflicting territorial interests. Chinese government vessels rammed Vietnamese patrol boats near an oil rig that China’s state-owned company is installing there, and shot water cannons at Vietnamese vessels.

This is a very serious situation. China had no right to unilaterally start such an economic undertaking in disputed waters in the first place. The Chinese side must desist immediately.

China describes the Paracel Islands, located near the site of the maritime skirmish, as part of its territory and claims it has every right to drill for oil in waters around the islands.

But the entire area falls within the exclusive economic zone established by Vietnam. Although the Paracel Islands have been under China’s effective control, they are also claimed by Vietnam. China’s behavior is unacceptable.

The incident marks yet another chapter in the troubled history of territorial disputes in the South China Sea. In addition to China and Vietnam, the Philippines, Malaysia, Brunei and Taiwan claim islands and economic interests in the region.

For its part, China claims most of the South China Sea, encompassed in what is called the “nine-dotted line.” But this U-shaped demarcation line is vague in nature and not clearly based on international law. Beijing seems to believe it holds exclusive rights in the waters within the line.

In January, the government of China’s Hainan province, which Beijing says has jurisdiction over the South China Sea, introduced a set of rules that require all foreign fishing boats to gain permission from provincial authorities to operate in the vast area claimed by China. The move, unsurprisingly, provoked angry protests from neighboring countries. It appears that China is trying to accumulate a number of faits accomplis concerning its territorial claim over the area within the nine-dotted line.

China and Vietnam are both communist countries, but the history of their relationship is checkered, as shown by the 1979 Sino-Vietnamese War. Even so, in the 1990s, the two countries devoted considerable time to working together to resolve disputes over their land border and maritime rights in the Gulf of Tonkin. They eventually struck a deal.

At that time, the two countries failed to reach an agreement on their territorial claims over the South China Sea. But the deal was viewed as sage move and a way of avoiding conflict that would harm bilateral ties.

In 2002, China and the Association of Southeast Asian Nations (ASEAN) agreed on the Declaration on the Conduct of Parties in the South China Sea, a set of principles for peaceful resolutions to disputes in the region. Both sides are set to work out a detailed code of conduct to achieve the goal outlined in the agreement. China’s latest action tramples on these international agreements.

The U.S. government quickly expressed its concern about this latest flare-up. Washington regards China’s behavior as a potentially serious threat to the principle of freedom of navigation in the entire South China Sea.

If things don’t improve, the seas in East Asia will become theaters of conflict among regional powers. That would be in nobody’s interest. China, which is responsible for this situation, should back down first. We also urge Vietnam to keep calm in responding to the situation.

–The Asahi Shimbun, May 9

Original version: read more…

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Statement by Senator John McCain on conflict between China and Vietnam

07 May 2014

(C) Wikimedia

Washington, D.C. – U.S. Senator John McCain (R-AZ) today released the following statement on the latest reports regarding the escalating conflict between China and Vietnam over a Chinese oil rig near the Paracel Islands:

“China’s decision to begin drilling for oil off the coast of Vietnam, and its deployment of dozens of naval vessels to support that provocative action, is deeply concerning and serves only to escalate tensions in the South China Sea.  Chinese ships have swarmed and rammed Vietnamese Sea Guard vessels in yet another instance of aggressive maritime harassment. There should be no doubt that China bears full responsibility for this unilateral attempt to change the status quo.

“These Chinese actions rest on territorial claims that have no basis in international law. In fact, China’s drilling is occurring squarely within Vietnam’s Exclusive Economic Zone, as defined clearly under international law. It is incumbent upon on all responsible nations to insist that China’s leaders take immediate steps to deescalate tensions and revert to the status quo ante.”

Original statement: read more…

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File:Paracel Islands-CIA WFB Map-2.JPG

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Vietnamese scholars planning to send a letter to the UN on 40th year of Paracels battle* – by Tinh Le | SEASF, BDTP

11 January 2014

by Tinh Le – SEASFBDTP – The 19th of January this year marks the fortieth anniversary of the Chinese military intervention on the Paracel archipelago. Since 40 years, China occupied the whole archipelago.

However, following international law, Paracel archipelago is always under the sovereignty of Viet Nam. The Charter of the United Nations prohibits the acquisition of territory by force.

Viet Nam must always remind the world of this obvious breach of international law of China, always affirms its sovereignty on the archipelago, and urges Chinato accept the submission of the Paracel archipelago dispute to the arbitration of the International Court of Justice, the most appropriate organization to resolve territorial disputes between States.

 

File:Paracel Islands-CIA WFB Map-2.JPG

Position of the Battle of the Paracel Islands (C) CIA

That is the content of the letter we send to the United Nations, with the strong belief that a world of peace and justice exists only when each country respects international law.

The letter is written by two civil society activists striving for the justice for Viet Namand other small countries in the disputes on the South China Sea: Southeast-Asia Sea Research Foundation and the BDTP Group.

The letter is reviewed by world’s leading experts on international law, by senior civil activists, with all the seriousness and the highest caution.

Because we would like to bring the voices of Vietnamese and people loving justice around the world to the highest and most competent legal authorities of the world:

  • United Nations General Secretary
  • United Nations Rule of Law Unit
  • United Nations First Committee (Disarmament and International Security)
  • International Court of Justice

Let’s remind the world the flagrant violation of international law whenChinainvaded the Paracel archipelago in 1974. Let’s urgeChinato submit the dispute to the International Court of Justice.

Please join us in signing this letter: http://goo.gl/qagq5R

One voice may be small, but a million will change the world.

 


(*) Tinh Le is member of Southeast-Asia Sea Research Foundation and BDTP Group.  The orginal title submitted by Tinh Le: Press Release: “Letter sent to the United Nations on the 40th anniversary of Chinese military intervention on the Paracel archipelag”

 

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Joint Development

Joint Development in the South China Sea – by Huy Duong | cogitASIA

12 July 2013

Huy Duong | cogitASIA – With the South China Sea disputes remaining intractable, the need to manage them is paramount. Worldwide, joint development of disputed areas has proved to be a hallmark for managing disputes, yet this continues to elude the claimants to the Paracels, Spratlys, Scarborough Reef, and the central part of the South China Sea.

Successful dispute resolutions and joint developments

Dispute resolutions and joint development are not new to the South China Sea countries. These countries have successfully demarcated a number of maritime boundaries, including Indonesia-Malaysia, Malaysia-Thailand, Thailand-Vietnam, China-Vietnam, Indonesia-Vietnam, and Brunei-Malaysia. In the Gulf of Thailand, Cambodia and Vietnam have agreed to an area of “joint historic waters” since 1982. Around the entrance to this gulf, Malaysia, Thailand, and Vietnam have agreements on three areas of bilateral and trilateral joint development, the first of which dates to 1979.

Joint Development

Boundaries and joint development areas in southern South China Sea. Source: Huy Duong, all rights reserved.

These successes depend on the conflicting claims being clear and reasonable—which results in small well-defined overlaps—on negotiations in good faith, and on the absence of sovereignty disputes over islands.

Lessons for the current conflicts

Why have these successes not been repeated for the disputes in the central part of the South China Sea?

First, these disputes involve unresolved sovereignty disputes over islands, which add complexity to the maritime disputes and often carry political and emotional undercurrents. However, this should not matter for the provisional arrangements of joint development because their raison d’être is the existence of unresolved disputes; arrangements for joint development normally define the limits of the disputed areas and a means to share the resources in a way that is independent of the relative strengths of the claims.

Most importantly, there is no agreement on where the limits of the disputed areas are. Joint development of the disputed areas is not possible if there is no agreement on their limits.

China’s actions at various points along the U-shaped line suggest that it is setting the stage for claiming certain rights within the area approximately indicated by that line. This area extends beyond the equidistance line between the disputed islands and other territories, therefore China’s position is inconsistent with international law because according to jurisprudence on maritime delimitation, the waters belonging to these islands would fall far short of this line. China’s position creates a large, asymmetric, ill-defined area of overlapping claims that would make joint development in this area disadvantageous to the other claimants.

Vietnam and the Philippines see the 200 nautical mile exclusive economic zone (EEZ) extending from their undisputed territories as sacrosanct and unaffected by the potential EEZ entitlement of the disputed islands, but neither has stated whether it claims EEZs for these islands elsewhere. Malaysia has been silent on the question of potential EEZ entitlement of the disputed islands. Brunei only claims Louisa Reef, and is unlikely to demand EEZs for other features.

Comparing this situation with successful dispute resolutions and joint developments elsewhere suggests that these successes have not been repeated here because the following factors are missing: clear and reasonable claims by all parties, an agreement on where the disputed areas are, and good faith.

A possible definition of the joint development areas

Despite the unknowns, it is clear that China seeks to maximize the disputed areas, while the Philippines, Malaysia and Brunei are likely to seek to minimize them. Vietnam seeks to reduce the disputed areas, but its need to reduce them to the 12 nautical mile territorial sea around the disputed islands is probably less acute than that of the Philippines and Malaysia. This is because most of the disputed islands do not lie deep in the 200 nautical mile EEZ emanating from Vietnam’s undisputed territories. Nevertheless, it would be beneficial for Vietnam, the Philippines, Malaysia, and Brunei to take a common position, so their views are likely to converge.

The greatest difference will be that between China’s wish to maximize the disputed areas and the other countries’ wish to reduce and minimize them.

SCS_QuarterEEZ_620

Could the “quarter distance” lines, in black, be the maximum limits for the disputed waters? Source: Huy Duong. All rights reserved.

A compromise might be for the claimants to define the areas of joint development along the lines used by the International Court of Justice in its solution to the Nicaragua-Colombia dispute, which gives Colombia’s small offshore islands no EEZ, and larger ones an EEZ that extends a quarter of the distance to Nicaragua’s coastal islands. If a similar arrangement is applied to the South China Sea, then the maximum limits of the areas of joint development will be the black lines in Map 2, which seems to be a reasonable compromise for all parties.

The question is whether every claimant has enough good faith to define the areas of joint development in any reasonable manner.

Mr. Huy Duong contributes articles on the South China Sea to several news outlets including the BBC and Vietnam’s online publication VietNamNet. See more by this author.

 

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Historical Fiction: China’s South China Sea Claims – by Mohan Malik | World Affairs

15 June 2013

by Mohan Malik | World Affairs – The Spratly Islands—not so long ago known primarily as a rich fishing ground—have turned into an international flashpoint as Chinese leaders insist with increasing truculence that the islands, rocks, and reefs have been, in the words of Premier Wen Jiabao, “China’s historical territory since ancient times.” Normally, the overlapping territorial claims to sovereignty and maritime boundaries ought to be resolved through a combination of customary international law, adjudication before the International Court of Justice or the International Tribunal for the Law of the Sea, or arbitration under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS). While China has ratified UNCLOS, the treaty by and large rejects “historically based” claims, which are precisely the type Beijing periodically asserts. On September 4, 2012, China’s foreign minister, Yang Jiechi, told US Secretary of State Hillary Clinton that there is “plenty of historical and jurisprudence evidence to show that China has sovereignty over the islands in the South China Sea and the adjacent waters.”

Navy frigate “Yantai” of the 11th Chinese naval escort flotilla is to make a five-day first-time ever goodwill visit on August 05, 2012 in Varna, Bulgaria. (C) Pres Panayotov

As far as the “jurisprudence evidence” is concerned, the vast majority of international legal experts have concluded that China’s claim to historic title over the South China Sea, implying full sovereign authority and consent for other states to transit, is invalid. The historical evidence, if anything, is even less persuasive. There are several contradictions in China’s use of history to justify its claims to islands and reefs in the South China Sea, not least of which is its polemical assertion of parallels with imperialist expansion by the United States and European powers in the eighteenth and nineteenth centuries. Justifying China’s attempts to expand its maritime frontiers by claiming islands and reefs far from its shores, Jia Qingguo, professor at Beijing University’s School of International Studies, argues that China is merely following the example set by the West. “The United States has Guam in Asia which is very far away from the US and the French have islands in the South Pacific, so it is nothing new,” Jia told AFP recently.

China’s claim to the Spratlys on the basis of history runs aground on the fact that the region’s past empires did not exercise sovereignty. In pre-modern Asia, empires were characterized by undefined, unprotected, and often changing frontiers. The notion of suzerainty prevailed. Unlike a nation-state, the frontiers of Chinese empires were neither carefully drawn nor policed but were more like circles or zones, tapering off from the center of civilization to the undefined periphery of alien barbarians. More importantly, in its territorial disputes with neighboring India, Burma, and Vietnam, Beijing always took the position that its land boundaries were never defined, demarcated, and delimited. But now, when it comes to islands, shoals, and reefs in the South China Sea, Beijing claims otherwise. In other words, China’s claim that its land boundaries were historically never defined and delimited stands in sharp contrast with the stance that China’s maritime boundaries were always clearly defined and delimited. Herein lies a basic contradiction in the Chinese stand on land and maritime boundaries which is untenable. Actually, it is the mid-twentieth-century attempts to convert the undefined frontiers of ancient civilizations and kingdoms enjoying suzerainty into clearly defined, delimited, and demarcated boundaries of modern nation-states exercising sovereignty that lie at the center of China’s territorial and maritime disputes with neighboring countries. Put simply, sovereignty is a post-imperial notion ascribed to nation-states, not ancient empires.

China’s present borders largely reflect the frontiers established during the spectacular episode of eighteenth-century Qing (Manchu) expansionism, which over time hardened into fixed national boundaries following the imposition of the Westphalian nation-state system over Asia in the nineteenth and twentieth centuries. Official Chinese history today often distorts this complex history, however, claiming that Mongols, Tibetans, Manchus, and Hans were all Chinese, when in fact the Great Wall was built by the Chinese dynasties to keep out the northern Mongol and Manchu tribes that repeatedly overran Han China; the wall actually represented the Han Chinese empire’s outer security perimeter. While most historians see the onslaught of the Mongol hordes led by Genghis Khan in the early 1200s as an apocalyptic event that threatened the very survival of ancient civilizations in India, Persia, and other nations (China chief among them), the Chinese have consciously promoted the myth that he was actually “Chinese,” and therefore all areas that the Mongols (the Yuan dynasty) had once occupied or conquered (such as Tibet and much of Central and Inner Asia) belong to China. China’s claims on Taiwan and in the South China Sea are also based on the grounds that both were parts of the Manchu empire. (Actually, in the Manchu or Qing dynasty maps, it is Hainan Island, not the Paracel and Spratly Islands, that is depicted as China’s southern-most border.) In this version of history, any territory conquered by “Chinese” in the past remains immutably so, no matter when the conquest may have occurred.

Such writing and rewriting of history from a nationalistic perspective to promote national unity and regime legitimacy has been accorded the highest priority by China’s rulers, both Nationalists and Communists. The Chinese Communist Party leadership consciously conducts itself as the heir to China’s imperial legacy, often employing the symbolism and rhetoric of empire. From primary-school textbooks to television historical dramas, the state-controlled information system has force-fed generations of Chinese a diet of imperial China’s grandeur. As the Australian Sinologist Geremie Barmé points out, “For decades Chinese education and propaganda have emphasized the role of history in the fate of the Chinese nation-state . . . While Marxism-Leninism and Mao Thought have been abandoned in all but name, the role of history in China’s future remains steadfast.” So much so that history has been refined as an instrument of statecraft (also known as “cartographic aggression”) by state-controlled research institutions, media, and education bodies.

China uses folklore, myths, and legends, as well as history, to bolster greater territorial and maritime claims. Chinese textbooks preach the notion of the Middle Kingdom as being the oldest and most advanced civilization that was at the very center of the universe, surrounded by lesser, partially Sinicized states in East and Southeast Asia that must constantly bow and pay their respects. China’s version of history often deliberately blurs the distinction between what was no more than hegemonic influence, tributary relationships, suzerainty, and actual control. Subscribing to the notion that those who have mastered the past control their present and chart their own futures, Beijing has always placed a very high value on “the history card” (often a revisionist interpretation of history) in its diplomatic efforts to achieve foreign policy objectives, especially to extract territorial and diplomatic concessions from other countries. Almost every contiguous state has, at one time or another, felt the force of Chinese arms—Mongolia, Tibet, Burma, Korea, Russia, India, Vietnam, the Philippines, and Taiwan—and been a subject of China’s revisionist history. As Martin Jacques notes in When China Rules the World, “Imperial Sinocentrism shapes and underpins modern Chinese nationalism.”

 

If the idea of national sovereignty goes back to seventeenth-century Europe and the system that originated with the Treaty of Westphalia, the idea of maritime sovereignty is largely a mid-twentieth-century American concoction China has seized upon to extend its maritime frontiers. As Jacques notes, “The idea of maritime sovereignty is a relatively recent invention, dating from 1945 when the United States declared that it intended to exercise sovereignty over its territorial waters.” In fact, the UN’s Law of the Sea agreement represented the most prominent international effort to apply the land-based notion of sovereignty to the maritime domain worldwide—although, importantly, it rejects the idea of justification by historical right. Thus although Beijing claims around eighty percent of the South China Sea as its “historic waters” (and is now seeking to elevate this claim to a “core interest” akin with its claims on Taiwan and Tibet), China has, historically speaking, about as much right to claim the South China Sea as Mexico has to claim the Gulf of Mexico for its exclusive use, or Iran the Persian Gulf, or India the Indian Ocean.

Ancient empires either won control over territories through aggression, annexation, or assimilation or lost them to rivals who possessed superior firepower or statecraft. Territorial expansion and contraction was the norm, determined by the strength or weakness of a kingdom or empire. The very idea of “sacred lands” is ahistorical because control of territory was based on who grabbed or stole what last from whom. The frontiers of the Qin, Han, Tang, Song, and Ming dynasties waxed and waned throughout history. A strong and powerful imperial China, much like czarist Russia, was expansionist in Inner Asia and Indochina as opportunity arose and strength allowed. The gradual expansion over the centuries under the non-Chinese Mongol and Manchu dynasties extended imperial China’s control over Tibet and parts of Central Asia (now Xinjiang), Taiwan, and Southeast Asia. Modern China is, in fact, an “empire-state” masquerading as a nation-state.

If China’s claims are justified on the basis of history, then so are the historical claims of Vietnamese and Filipinos based on their histories. Students of Asian history know, for instance, that Malay peoples related to today’s Filipinos have a better claim to Taiwan than Beijing does. Taiwan was originally settled by people of Malay-Polynesian descent—ancestors of the present-day aborigine groups—who populated the low-lying coastal plains. In the words of noted Asia-watcher Philip Bowring, writing last year in the South China Morning Post, “The fact that China has a long record of written history does not invalidate other nations’ histories as illustrated by artifacts, language, lineage and genetic affinities, the evidence of trade and travel.” Unless one subscribes to the notion of Chinese exceptionalism, imperial China’s “historical claims” are as valid as those of other kingdoms and empires in Southeast and South Asia. China laying claim to the Mongol and Manchu empires’ colonial possessions would be equivalent to India laying claim to Afghanistan, Bangladesh, Burma, Malaysia (Srivijaya), Nepal, Pakistan, and Sri Lanka on the grounds that they were all parts of either the Maurya, Chola, or the Moghul and the British Indian empires.

China’s claims in the South China Sea are also a major shift from its longstanding geopolitical orientation to continental power. In claiming a strong maritime tradition, China makes much of the early-fifteenth-century expeditions of Zheng He to the Indian Ocean and Africa. But, as Bowring points out, “Chinese were actually latecomers to navigation beyond coastal waters. For centuries, the masters of the oceans were the Malayo-Polynesian peoples who colonized much of the world, from Taiwan to New Zealand and Hawaii to the south and east, and to Madagascar in the west. Bronze vessels were being traded with Palawan, just south of Scarborough, at the time of Confucius. When Chinese Buddhist pilgrims like Faxian went to Sri Lanka and India in the fifth century, they went in ships owned and operated by Malay peoples. Ships from what is now the Philippines traded with Funan, a state in what is now southern Vietnam, a thousand years before the Yuan dynasty.”

And finally, China’s so-called “historic claims” to the South China Sea are actually not “centuries old.” They only go back to 1947, when Chiang Kai-shek’s nationalist government drew the so-called “eleven-dash line” on Chinese maps of the South China Sea, enclosing the Spratly Islands and other chains that the ruling Kuomintang party declared were now under Chinese sovereignty. Chiang himself, saying he saw German fascism as a model for China, was fascinated by the Nazi concept of an expandedLebensraum (“living space”) for the Chinese nation. He did not have the opportunity to be expansionist himself because the Japanese put him on the defensive, but cartographers of the nationalist regime drew the U-shape of eleven dashes in an attempt to enlarge China’s “living space” in the South China Sea. Following the victory of the Chinese Communist Party in the civil war in 1949, the People’s Republic of China adopted this cartographic coup, revising Chiang’s notion into a “nine-dash line” after erasing two dashes in the Gulf of Tonkin in 1953.

 

Since the end of the Second World War, China has been redrawing its maps, redefining borders, manufacturing historical evidence, using force to create new territorial realities, renaming islands, and seeking to impose its version of history on the waters of the region. The passage of domestic legislation in 1992, “Law on the Territorial Waters and Their Contiguous Areas,” which claimed four-fifths of the South China Sea, was followed by armed skirmishes with the Philippines and Vietnamese navies throughout the 1990s. More recently, the dispatch of large numbers of Chinese fishing boats and maritime surveillance vessels to the disputed waters in what is tantamount to a “people’s war on the high seas” has further heightened tensions. To quote commentator Sujit Dutta, “China’s unmitigated irredentism [is] based on the . . . theory that the periphery must be occupied in order to secure the core. [This] is an essentially imperial notion that was internalized by the Chinese nationalists—both Kuomintang and Communist. The [current] regime’s attempts to reach its imagined geographical frontiers often with little historical basis have had and continue to have highly destabilizing strategic consequences.”

One reason Southeast Asians find it difficult to accept Chinese territorial claims is that they carry with them an assertion of Han racial superiority over other Asian races and empires. Says Jay Batongbacal of the University of the Philippines law school: “Intuitively, acceptance of the nine-dash line is a corresponding denial of the very identity and history of the ancestors of the Vietnamese, Filipinos, and Malays; it is practically a modern revival of China’s denigration of non-Chinese as ‘barbarians’ not entitled to equal respect and dignity as peoples.”

Empires and kingdoms never exercised sovereignty. If historical claims had any validity then Mongolia could claim all of Asia simply because it once conquered the lands of the continent. There is absolutely no historical basis to support either of the dash-line claims, especially considering that the territories of Chinese empires were never as carefully delimited as nation-states, but rather existed as zones of influence tapering away from a civilized center. This is the position contemporary China took starting in the 1960s, while negotiating its land boundaries with several of its neighboring countries. But this is not the position it takes today in the cartographic, diplomatic, and low-intensity military skirmishes to define its maritime borders. The continued reinterpretation of history to advance contemporary political, territorial, and maritime claims, coupled with the Communist leadership’s ability to turn “nationalistic eruptions” on and off like a tap during moments of tension with the United States, Japan, South Korea, India, Vietnam, and the Philippines, makes it difficult for Beijing to reassure neighbors that its “peaceful rise” is wholly peaceful. Since there are six claimants to various atolls, islands, rocks, and oil deposits in the South China Sea, the Spratly Islands disputes are, by definition, multilateral disputes requiring international arbitration. But Beijing has insisted that these disputes are bilateral in order to place its opponents between the anvil of its revisionist history and the hammer of its growing military power.

Mohan Malik is a professor in Asian security at Asia-Pacific Center for Security Studies, in Honolulu. The views expressed are his own. His most recent book is China and India: Great Power Rivals. He wishes to thank Drs. Justin Nankivell, Carlyle Thayer, Denny Roy, and David Fouse for their comments on this article.

 

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FILE - Adm. Samuel Locklear III, the U.S. Pacific Command commander, speaks to reporters at his headquarters in Camp H.M. Smith, Hawaii, July 25, 2012.

Cohen Calls for Arbitration of South China Sea Dispute – Jessica Seah | The Asian Lawyer

09 June 2013

by Jessica Seah | The Asian Lawyer – In a speech in Hong Kong last Thursday, pioneering China legal scholar Jerome Cohen said China was looking like a “bully” for rejecting international arbitration of its territorial dispute with the Philippines, according to aSouth China Morning Post report.

FILE - Adm. Samuel Locklear III, the U.S. Pacific Command commander, speaks to reporters at his headquarters in Camp H.M. Smith, Hawaii, July 25, 2012.
FILE – Adm. Samuel Locklear III, the U.S. Pacific Command commander, speaks to reporters at his headquarters in Camp H.M. Smith, Hawaii, July 25, 2012. (C) VOA)

 
The two countries both claim the Spratly Islands in the South China Sea, which are believed to hold rich oil and gas reserves. The Philippines has sought arbitration before a United Nations tribunal but China has insisted on a bilateral resolution.

“The leadership obviously took the view that damage is likely to be less, especially if it can coerce the Philippines into further compromise while arbitration is going on,” said Cohen, who is a New York University School of Law professor as well as of counsel at Paul, Weiss, Rifkind & Garrison, at a speech at Hong Kong University.

“This makes China look bad to the world community … Now it looks like a bully that rejects its legal obligation to settle a dispute under [the United Nations Convention on the Law of the Sea],” said Cohen. “How is it for any nation to say we’re so correct that we don’t have to go to the impartial tribunal we previously agreed on to hear our views validated?”

In April, the Chinese foreign ministry issued a Chinese language statement saying the Philippines “is trying to use this [arbitration claim] to negate China’s territorial sovereignty and attach a veneer of ‘legality’ to its illegal occupation of Chinese islands and reefs.” The statement said China would never agree to international arbitration.
“When you’re seen to be a violator of international law, you don’t win many votes from the world community,” Cohen said, and added that all “great powers” including the U.S .and China need to be reminded that they are “subject to international limits they sometimes don’t like.”

As a Harvard Law School professor in the 1960s and 1970s, Cohen advised the Nixon White House on its eventual diplomatic opening with China. He subsequently led the first foreign law office in China for Coudert Brothers and remains an active teacher and commentator on Chinese legal affairs.
Email: jseah@alm.com.
(Original version is available at The Asian Lawyer)

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Official Commemoration For Martyrs Of Naval Battles In South China Sea – by Tuong Nguyen | Eurasia Review

13 March 2013

by Tuong Nguyen | Eurasia Review – For the second time since the Johnson South Reef – Gac Ma skirmish twenty-five years ago, the largest daily newspapers in Vietnam have written special columns commemorating sixty-four martyrs sacrificed to defend their homeland’s sovereignty at the Spratly Islands in the South China Sea.

 

China's Claims in South China Sea

China’s Claims in South China Sea

Vietnam and China have been known as neighbors and brothers like “lips and teeth”. However, bearing the same pressure as other China’s “unhappy neighbors”, Vietnam had to fight against its big brother China to protect its sovereignty. The skirmish on March 14th, 1988 at Johnson South Reef – Gac Ma (Spratly Islands) is a recent Sino-Vietnamese naval confrontation. The site lies at 4 nautical miles (nm) to the northwest of Vietnamese-controlled Collins Reef. Chinese gunboats sank and damaged three Vietnamese vessels. Sixty-four Vietnamese soldiers were killed and many others injured, while one Chinese was wounded.

Despite many conflicts in the past, Hanoi and Peking always maintain their “16 golden words and four cardinal principles” for example regarding the bilateral consensus to actively guide public opinion on the South China Sea disputes, a ‘sensible’ subject to Vietnamese government-controlled media (aka. “right side” media, in comparison to the free “left side” one) for long time. But the anti-China sentiment in public has been on the rise since the cable-seized incident of Vietnamese ships on May 2011.

In the past two recent years, there have been remarkable improvements of media in Vietnam on the South China Sea issues, especially with the development of new media with blogs, forum or the social networks where everyone may express and share easily their opinions to the world.

However, the Johnson South Reef skirmish is a poorly titled subject in Vietnamese “right side” media. On May 7th, 2012, the Vietnamese government organized for the first time a commemoration day for sixty-four martyrs sacrificed in navel battle at Johnson South Reef. This year, Tuoi Tre, one of largest “right wing” newspapers, focuses on the topic with a series of touching stories about killed soldiers, live witness and remains of the battle that create actually a tacit movement that heats up the anti-China sentiment in the Vietnamese communities and social networks.

It’s also important to mention that the Sino-Vietnamese naval battle on January 19th, 1974 at Paracels Islands was officially commemorated for the first time last January 19th 2013 by Thanh Nien News, another government-controlled daily newspaper.

Both Vietnam and China have declared the historical sovereignty in the South China Sea (including Spratly Islands and Paracels Islands) where five other countries (Brunei, Indonesia, Malaysia, Philippines, Taiwan) also claimed their territory or territory rights.

Tuong Nguyen is a computer science postdoctoral fellow in France and free commentator on maritime affairs.

The views expressed are the author’s own.

(Original version is available at Eurasia Review)

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Steady as she goes...

Who’s Bluffing Whom in the South China Sea? – by Khanh Vu Duc | Asia Sentinel

08 March 2013

The latitude for action on the part of all the parties is limited

The territorial and maritime disputes in the South China Sea continue to plague and jeopardize the peace and security of the region. These disputes are many, including the Senkaku/Diaoyu Islands, the Paracels, the Scarborough Shoal, and the Spratly Islands; and although these disputes have been long running since the end of the Second World War, the region’s history and its nations span centuries. There is and has been no shortage of conflict in the South China Sea.


Steady as she goes...

Steady as she goes…


Tensions have yet to dissipate from last year’s Scarborough Shoal standoffbetween China and the Philippines. Where Asean remains divided and incapable of bringing these disputes to an end, and a multilateral resolution is merely hypothetical, it appears increasingly likely that conflict, whether open war or, perhaps more probably, maritime skirmishes are on the horizon.

Yet, it may be that all of this talk of war is simply that: talk.

Opponents in Conflict
China is presently engaged in a series of disputes with several countries spanning the Western Pacific, among which include Japan, the Philippines, and Vietnam.

Japan and the Senkaku/Diaoyu Islands, however, may prove to be an unnecessary distraction for China’s aspirations in the Pacific. Japan is too close an ally of the US for Washington to ignore their request for assistance, never mind the very capable Japan Self-Defense Forces. As such, it is unlikely that the Senkaku/Diaoyu dispute will amount to more than a diplomatic fuss, something to be used to stoke the flames of nationalism in both countries.

The Philippines, similar to Japan, holds a mutual defense treaty with the US. In addition to the Spratly dispute, the Philippines are in dispute with China over the Scarborough Shoal, a collection of reefs, rocks, and small islands just off the coast of the country. Yet, unlike Japan, the Philippines do not have an equally sizeable and effective military to counter Chinese aggression, if necessary. As such, in the event of any conflict or war between the Philippines and China, Manila will be dependent on US assistance and support.

That said, it remains to be seen if the US would risk military confrontation with China, even given its treaty with the Philippines. Much will be dependent on the circumstances of the conflict and interpretation of the treaty by the White House. However, should Washington ignore the Philippine cry for help, it would jeopardize current and future US strategic partnerships, never mind the political fallout at home. The US has no desire to be lured into a conflict not of its making or choosing, but it also cannot risk violating its mutual defense treaty without harming the legitimacy of other defense agreements.

Unlike Japan and the Philippines, Vietnam does not hold a defense treaty with the US. Moreover, although Vietnam may share strategic partnerships with several nations, it is unlikely that they will go far in aiding Vietnam in the event of a conflict with China. In addition to the Spratlys dispute, Vietnam is also in dispute with China over the Paracels, seized by Chinese forces in 1974 from then-South Vietnam.

Vietnam remains isolated in the world, for its only “partner” has been China; however, should Hanoi cozy up too closely or compromise too much with Beijing, the government’s legitimacy would be called into question by its citizens, raising and/or confirming the suspicions of those who believe the government and Communist Party are puppets of China, and inflame nationalist sentiments.

In the event that China should seize one or several Vietnamese-occupied Spratly Islands, Hanoi cannot rely on foreign assistance. It cannot attack China, even if such an attack could be argued as self-defence; but it cannot also do nothing and allow the government to be seen as weak and ineffective by the Vietnamese people. The options are limited for Hanoi. To say they would be stuck between a rock and a hard place would be an understatement.

Consequences
Nevertheless, it remains unlikely that any conflict between China and Japan, Philippines, or Vietnam will amount to more than saber rattling and harsh words. Even a “small” police action against the Philippines or Vietnam over the Spratly Islands, however successful for China, would have severe consequences. Any Chinese use of force would realize the fears of every state in the region. Moreover, Beijing’s hope for a peaceful rise would be immediately set back, if not ruined.

Presently, tensions are already running high; however, any clear displays of Chinese aggression would simply add fuel to the fire. Countries such as the Philippines and Vietnam would then be able to turn some of their neighbours—previously skeptical, if not cautious, about standing in opposition to China—and convince these states to protest openly. Any goodwill China possessed among some of these countries would evaporate as the Philippines and/or Vietnam make their case.

However, of all the scenarios of a conflict involving China, what can be certain is the potential for an immediate American intervention. While it is questionable that the US would directly intervene in any skirmish between nations, it is likely that Washington would use the conflict as an excuse for deploying a larger, if not more permanent, security force in Asia-Pacific. Although an increased American footprint would not be welcomed by all in the region, the US would prove to be an appropriate balance against China.

Conversely, China would find an increased American presence unacceptable and a nuisance. Of course, neither country is likely to find itself staring down the barrel of the other’s gun. China’s plans for the region would undoubtedly be under greater American scrutiny if Washington decides to allocate more assets to Asia-Pacific.

For the US, returning in force to Asia-Pacific would prove to be a costly endeavour, resources the country may or may not be able to muster. Yet, even if this is true, Washington’s calculations may determine that the security risk posed by China in the region outweighs whatever investment required by the US.

China’s dispute with Japan over the Senkaku/Diaoyu Island, however heated, will prove to be a peripheral issue with respect to China’s dispute with the several claimant states over the Spratlys. Ultimately, it is not improbable that China would seize one or several of the Spratlys under foreign control as a means to demonstrate its resolve in the disputes and the region; but to do so is to engage in unnecessary risk. The consequences stemming from such action are too great for Beijing to ignore.

Although it is unlikely that China’s neighbors would be able to mount more than a diplomatic protest, the fuss deriving from such an incident could prove more burdensome for China than it is willing to risk. The real consequence for China of any and all conflict in the region is and has always been an American intervention. As is, it would benefit Beijing to seek a peaceful, mutually agreed upon resolution, rather than brute force.

(Khanh Vu Duc is a Vietnamese-Canadian lawyer who researches on Vietnamese politics, international relations and international law. He is a frequent contributor to Asia Sentinel and BBC Vietnamese Service.)

(Original version is available at Asia Sentinel)

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South China Sea: The zero-sum game – by S K Chatterji | Reuters

27 February 2013

(Any opinions expressed here are those of the author, and not necessarily of Thomson Reuters)

by S K Chatterji | Reuters – The Chinese have shown far greater alacrity in resolving disputes over land boundaries with neighbours than in drawing lines across international waters that they claim. A nation with land borders with 14 countries has settled its disputes with 10 of them, but finds it difficult to resolve its problems in the South China Sea.

China’s claim lines envelop almost the entire sea. China and Vietnam already fought over the South China Sea in 1974 and 1988, and the Philippines, Brunei, Taiwan, Malaysia and Indonesia are also vocal about what they say are Chinese transgressions into their waters.

The South China Sea is enviable maritime real estate. Through it run sea lanes that provide passage for more than half the world’s oil tanker traffic. Its hydrocarbon and mineral resources reportedly are substantial. Fishing rights also are essential for every country in the region.

The countries that dispute China’s claims are not on a par with Beijing’s military might and some of them are looking to the United States for help — including the Philippines and Vietnam. Notwithstanding Chinese pressures that kept the last ASEAN summit from issuing a joint communiqué, most ASEAN countries, barring Cambodia and Laos, lean more toward the United States.

India, Japan and the United States are now taking a closer look. Some ASEAN nations, especially Vietnam and Philippines have urged India to show greater interest in the area. Joint exploration activities with non-regional partners could prompt more regional intervention.

China has significant business interests with its South China Sea contestants. It is the kind of case in which the rational needs of business should help fix political boundary disputes, but that has not happened in this case. Meanwhile, the ASEAN nations have not been able to take a common stance, primarily because they fear economic distress should China penalise them economically.

Such measures could be varied. Chinese economic tools could attempt to instigate citizens of the targeted country against their own governments, thus creating domestic political pressure. China has also invested heavily in these countries and they could experience deceleration should the Chinese reduce investments.

However, it would not be prudent to give undue weightage to possible arm-twisting by China. Chinese economic relations are bilateral, and retaliations, especially if these are coordinated, would cause them concern.
India’s shores don’t touch the South China Sea, but it must pay attention to how the problem works itself out. China occupies 30,000 square kilometres of land in Aksai Chin that India considers its own. China also claims almost the entirety of Arunachal Pradesh in India’s extreme northeast. A China sea victory would embolden Beijing along the India-Tibet border.

Notwithstanding the stated neutrality of the Americans, there is reason for concern that should the South China Sea start to simmer, it would be difficult for the situation to remain a regional confrontation. Of course, the nations involved in the South China Sea imbroglio have responsible governments, and hopefully, the new Chinese leadership will also prove its dexterity more in diplomacy rather than coercion.

The sea lanes must remain open for global shipping, irrespective of national interests. Natural resources must remain open to more than one nation. To allow a different outcome will muddy the waters not just of southeast Asia but also those of the Himalayan lakes and glaciers. That would be a result that would satisfy no one.

 

(Original version is available at Reuters)

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An aerial view of the city of Sansha on an island in the disputed Paracel chain. Photo: AFP

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How a non-existent island became China’s southernmost territory – by Bill Hayton | The South China Morning Post

09 February 2013

Bill Hayton says records show that a translation error some 80 years ago may be to blame.

– by Bill Hayton | The South China Morning Post – Where is the “southernmost point of Chinese territory”? It’s a controversial question and the least controversial answer might be Hainan Island . More controversial options would be the Paracel (Xisha) islands or the Spratlys (Nansha). But officially the southernmost point is even further south – as far south as the James Shoal, about 100 kilometres from the coast of Borneo. What’s more surprising is that this piece of the motherland is actually invisible. There’s nothing there to see, unless you have diving equipment.

An aerial view of the city of Sansha on an island in the disputed Paracel chain. Photo: AFP

An aerial view of the city of Sansha on an island in the disputed Paracel chain. Photo: AFP

The James Shoal lies 22 metres below sea. Yet this inconvenience doesn’t prevent PLA Navy ships visiting the shoal from time to time to demonstrate Chinese sovereignty over it. This ritual involves heaving a large piece of engraved stone over the side of the ship. There is now a small collection of Chinese stelae gathering organic encrustations on the sea floor, more than 1,000 kilometres from Hainan.

How did the Chinese state come to regard this obscure feature, so far from home, as its southernmost point? I’ve been researching the question for some time while writing a book on the South China Sea. The most likely answer seems to be that it was probably the result of a translation error.

In the 1930s, China was engulfed in waves of nationalist anxiety. The predation of the Western powers and imperial Japan, and the inability of the Republic of China to do anything meaningful to stop them, caused anger both in the streets and the corridors of power. In 1933, the republic created the “Inspection Committee for Land and Water Maps” to formally list, describe and map every part of Chinese territory. It was an attempt to assert sovereignty over the republic’s vast territory.

The major problem facing the committee, at least in the South China Sea, was that it had no means of actually surveying any of the features it wanted to claim. Instead, the committee simply copied the existing British charts and changed the names of the islands to make them sound Chinese. We know they did this because the committee’s map included about 20 mistakes that appeared on the British map – features that in later, better surveys were found not to actually exist.

The committee gave some of the Spratly islands Chinese names. North Danger Reef became Beixian (the Chinese translation of “north danger”), Antelope Reef became Lingyang (the Chinese word for antelope). Other names were just transliterated so, for example, Spratly Island became Sipulateli and James Shoal became Zengmu. And this seems to be where the mistakes crept in.

But how to translate “shoal”? It’s a nautical word meaning an area of shallow sea where waves “shoal” up. Sailors would see a strange area of choppy water in the middle of the ocean and know the area was shallow and therefore dangerous. James Shoal is one of many similar features in the Spratlys.

But the committee didn’t seem to understand this obscure English term because they translated “shoal” as ” tan” – the Chinese word for beach or sandbank – a feature which is usually above water. The committee, never having visited the area, seems to have declared James Shoal/Zengmu Tan to be a piece of land and therefore a piece of China.

In 1947, the republic’s cartographers revisited the question of China’s ocean frontier, drawing up what would become known as the “;U-shaped line”. It seems that they looked at the list of Chinese names, assumed that Zengmu Tan was above water and included it within the line. A non-existent island became the country’s southernmost territory.

But in a parallel process around the same time, the republic government gave new names to many of the sea features. Spratly Islands became Nanwei (the noble south), for example, and James Shoal was changed from a sandbank ( tan) into a reef ( ansha). Perhaps, by this time, the authorities had realised their mistake. Nonetheless Zengmu Ansha retained its official southernmost status.

By now, the translation error had become a fact, setting the region on course for conflict 80 years later.

This is more than a piece of historical trivia; James Shoal is a test of whether Beijing really is committed to the rule of international law in the South China Sea. Under the United Nations Convention on the Law of the Sea, no state can claim sovereignty over an underwater feature unless it lies within 12 nautical miles of its land. James Shoal is over 1,000 kilometres from undisputed Chinese territory.

Last month, the Philippines government announced it would seek a ruling from an international tribunal about whether China’s claims in the sea were compatible with the UN convention. James Shoal would be a clear example of a claim that is not compatible. Perhaps this might be a good moment for Beijing to review how it came to claim this obscure piece of submarine territory in the first place.

Bill Hayton is writing a book on the South China Sea for publication later this year

(This article was originally published at The South China Morning Post)

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