International opinion on the South China Sea Issue part V

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INTERNATIONAL OPINION ON THE SOUTH CHINA SEA ISSUE PART V

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TITLE PUBLISHER COUNTRY PAGE I. Editorial: A Chance to Prove

China Can Be Trusted Jakarta Globe Indonesia 4

II. China's South China Sea claims are not supported by its own historical records

South China Morning Post

Hong Kong 5

III. Pushback in the South China Sea International New York Times

USA 7

IV. China’s Bullying Exacerbates Extreme Conflict

Wallstreet Daily USA 9

V. China's worrying military ambitions

The Age Australia 13

VI. Fact, Fiction and the South China Sea

The Asia Sentinel USA 15

VII. Lower the temperature in South China Sea

The Straits Times Singapore 19

VIII. Shangri-la won’t be a fairyland for Beijing

War on the Rocks USA 21

IX. China and ‘might makes right’ at sea

The Strait Times Singapore 24

X. Dredging for Disaster ChinaFile China 27 XI. The truth about Anti-China

Discourse in the United States The Diplomat USA 29

XII. Why the world is wary of China’s ‘great wall of sand’ in the sea

CNN USA 32

XIII. ASEAN must take the helm in critical sea disputes

The Nation Thailand 36

XIV. China takes sea route to great power status

The National United Arab Emirates

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XV. Environmental threat in South China Sea


XVI. China should heed ASEAN’s concerns


XVII. Archeology could wreck China’s sea claims

MalayMail Online Malaysia 44

XVIII. S. China Sea reclamation is wrecking the Future

Jakarta Globe Indonesia 47

XIX. South China Sea: Turning Reefs into Artificial Islands?

RSiS Singapore 49

XX. A secret weapon to stop China’s island building: the environment?

The Citizen Daily Indonesia 52

XXI. The Lost Dimension: Food Security and the South China Sea Dispute

Harvard law School National Security

Journal

USA 56

XXII. China Details Argument in South China Sea Dispute: China’s

Foreign policy Research Institute

USA 66

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Position Paper and Philippine Diplomatic Gains

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Editorial: A Chance to Prove China Can Be Trusted By Jakarta Globe on 08:48 pm May 31, 2015 China‘s plan to revive the ancient Silk Road commerce route must be welcomed in good faith by countries of the Association of Southeast Asian Nations, including Indonesia, so long as it is purely about boosting economic and trade relations among countries in the region. China‘s ―Belt and Road‖ plan, which aims to promote the country‘s ambitious initiative of engaging other countries to jointly develop the land route, Silk Road Economic Belt, and the sea route, 21st-Century Maritime Silk Road, will not only boost ties between China and Asean countries but also among the group‘s member states, as both routes pass through the territory of most of them. With transportation improved, we can expect freer movement of people and goods, and in turn, better understanding among people as well as more trade, investment and cultural exchanges. We hope that the end result of China‘s plans is increased prosperity among countries in the entire region. This is what we expected from China from the beginning: seeing it as a benevolent power pursuing shared prosperity, not as a country with a sole purpose of expanding its territory and influence across the globe. We therefore should remind China not to use this noble plan in support of geopolitical ambitions to dominate the region, or enhance its foothold and military outreach in its race against the US. If the plan turns out this way, then the whole region will turn against the world‘s second-biggest economy. With China‘s assertiveness in the South China Sea already drawing concerns from several Asean member states, suspicions are understandable. Those involved in disputes with China — especially Vietnam and the Philippines — will not be easily pursuaded. We hope that China uses this bold plan to prove that any suspicion is unfounded.

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China's South China Sea claims are not supported by its own historical records PUBLISHED : Saturday, 30 May, 2015, 9:00pm by Philip Bowring Philip Bowring says China's own written records show that, long before its vessels became active, seafaring merchants from Southeast Asia and elsewhere ruled the South China Sea Is China starting down a path similar to that followed by Japan and Germany before 1945, when nationalism backed by new economic clout led to overconfidence and adventures which eventually proved disastrous? The question needs asking in the context of China's latest moves ultimately aimed at making the South China Sea into a Chinese lake. Beijing has been railing against a US overflight of a China-controlled islet being expanded with a massive dredging operation. Mainland-based academics have rushed to condemn this "dangerous provocation". Yet the brutal fact is that no international body or significant state recognises China's claim that the sea and its islets and shoals are its territory; least of all neighbouring states. The artificial expansion of the islets may be more for show than to provide any significant strategic advantage. They may even prove impermanent, should they be hit by monster typhoons. But they are part of a pattern which in 2013 saw Chinese vessels occupy the Scarborough Shoal and drive out Philippine fishermen. The shoal lies well within the Philippines' exclusive economic zone and had long been fished by boats from nearby Luzon. The seizure was an act of imperialism. The US, like any other country, has a right to overfly territory which is not officially acknowledged as part of this or that nation. The same applies to features occupied by Vietnam, the Philippines and Malaysia. China's claim that its reclamations are to improve security are viewed with derision by its neighbours. But those people do not count. They do not exist in the version of history by which Beijing claims the whole sea, stretching to the coast of Borneo, as defined by its nine-dash line, on the basis that the Chinese had always been in command of the sea. Given that Hong Kong last week celebrated the Buddha's birthday, it is worth recalling the relevance of China's experience with Buddhism to the question of the sea. Far from showing Chinese maritime command, China's own records show clearly that long before Chinese vessels first became active - during the Song dynasty - shipping between China and the Strait of Malacca, and even to southern

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India, was the preserve of mariners from Sumatra, Java, Borneo and south and central Vietnam, with Tamils and Arabs later becoming major players. The leading centre of Buddhism in Southeast Asia was the Srivijayan capital, Palembang, in Sumatra, to which Chinese Buddhist monks travelled on Srivijayan ships to study, sometimes proceeding from there to Sri Lanka or India. A 7th-century Chinese monk wrote of it: "There are more than 1,000 Buddhist monks whose spirit is turned only to study and good actions. They study all possible subjects like in India." A Chinese wanting to study in India needed to go there "to learn how to behave properly". Chinese texts from as early as the 3rd century refer in detail to ships from Sumatra more than 50 metres in length and able to carry 600 people plus cargo. By the 6th century, trade between Srivijaya and ports around the South China Sea was very regular, with the journey to Canton usually taking 30 to 40 days. Other links included routes from Butuan in northeastern Mindanao to the Cham ports, such as Nha Trang. Javanese traders had a settlement near Manila in the 9th century, long before Chinese settled there. The single largest driver of trade was Chinese demand for and supply of luxury goods, buying aromatics, ivory, spices and tropical forest products and selling silk and porcelain and other goods. For a thousand years, the traders were primarily the people of island and coastal Southeast Asia - the Austronesians whose seamanship enabled them to colonise the island world from the eastern Pacific to Madagascar. It was also an era where India was the main outside cultural influence on the region, spreading Buddhism, Hinduism, writing systems and kingship ideas. Yes, this was a long time ago, but Chinese claims today are best refuted by China's own written records, be they of Buddhist monks or in dynastic annals reporting trade missions and accounts of travellers to the southern lands. Chinese documents are the single most important source for the early history of maritime Southeast Asia and conform to evidence in more fragmentary Tamil, Javanese, Malay and Arab records. Even though Chinese merchants and settlers in the region's ports came to play a major role in commerce, they always shared these roles, whether with the Arabs, the Muslim sultanates and later the Europeans. China only twice briefly attempted to use force to impose its will on the maritime region, during the Mongol period when an invasion of Java failed, and briefly during the Zheng He voyages of the early Ming. Communist party governments everywhere, not just in China, are notorious for rewriting history. But if Beijing wants to know why it feels surrounded by enemies, it should ask itself the reason: riding roughshod over the interests and identities of its neighbours, raising issues of "unequal treaty" borders and engaging in colonialism in Xinjiang and Tibet, by fostering Han settlement to undermine the ethnic identity of those once-independent nations. Philip Bowring is a Hong Kong-based journalist and commentator

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Pushback in the South China Sea By THE EDITORIAL BOARDMAY 29, 2015 The United States has good reason to push back more forcefully against China‘s grab for power in the South China Sea, as Defense Secretary Ashton Carter did on a trip to Asia this week. Beijing has repeatedly ignored earlier warnings to moderate the aggressive behavior that is unsettling its regional neighbors and further undermining its relations with the United States. On Friday, American officials disclosed that China had installed two mobile artillery vehicles on an artificial island it is building in the sea, which is rich in natural resources like oil and gas and where China clearly hopes to establish some form of hegemony. The weapons are not considered a threat to American naval forces. Still, they reinforce fears that China intends to militarize the Spratly Islands, a collection of reefs and rocks also claimed by the Philippines, Vietnam, Malaysia and Taiwan, and use them to control the waterway‘s shipping lanes and dominate its smaller neighbors. China‘s ambitions have become increasingly clear since 2012 when it publicly asserted a claim to 80 percent of the South China Sea. In recent months, photographic evidence from commercial satellites and American spy planes has left little doubt that China is moving with alarming speed to turn the Spratlys into more substantial land masses, complete with runways and harbors. Some American officials now believe China regards its claims in the South China Sea as nonnegotiable. If so, that‘s terrible news for the region but also ultimately for China, which claims it prizes stability but will find it impossible to realize its economic goals if Asia is in constant tension. China‘s bullying on the South China Sea has already caused many Asian countries to forge closer defense ties with the United States. Now, the Obama administration has decided to more firmly underscore America‘s intention to remain a Pacific power and to ensure that the region and its waters remain accessible to all nations. That is a role the United States has played constructively for decades, promoting a stability that has allowed Japan, South Korea and other countries, including China, to develop. ―There should be no mistake: the United States will fly, sail and operate wherever international law allows, as forces do around the world,‖ Mr. Carter said in his speech. He also called for ―an immediate and lasting halt to land reclamation by all claimants.‖ Although the administration would obviously prefer a peaceful resolution of all South China Sea disputes, it cannot allow China‘s claims to go unchallenged. It sent a surveillance plane close to one of China‘s artificial islands, is considering air and sea

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patrols that could go closer to disputed reefs and shoals, and is expanding military exercises with regional partners. President Obama and President Xi Jinping of China plan to meet later this year. In the meantime, American officials and their Chinese counterparts must avoid any miscalculation that could lead to a direct confrontation.

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China’s Bullying Exacerbates Extreme Conflict Published Fri, May 29, 2015 | Shelley Goldberg, Commodity Strategist China is making moves to take over 1.4 million square miles of sea and all the fish in it – not to mention a massive oil and gas reserve, as well as the world‘s second-busiest trade route. The country may be able to accomplish this with one simple strategy… ignore the law. The whole South China Sea is boiling with legal, political, and economic tension that won‘t simmer down anytime soon. And I have just three words for investors in that area: Get out now! You see, for years China has claimed almost 90% of the South China Sea as its territory. But since 2013, the Chinese have made moves to expand their claim on the sea by building islands and claiming them as their own! As you can imagine, Vietnam, Indonesia, Malaysia, Brunei, and the Philippines – the other countries boarding the South China Sea – are not happy with China‘s complete disregard for the rules. Nor is anyone else with Asian trade interests. Finders Keepers The South China Sea is home to the second-busiest trade route in the world. Through it flows a supply of critical commodities, including crude oil, liquefied natural gas (LNG), coal, and iron ore. For years, China has claimed almost 90% of the South China Sea as its territory. A document first published in the 1940s labels the sea and land inside the so-called ―nine-dashed line‖ as China‘s. Back in 2001, China and The Association of Southeast Asian Nations (ASEAN) – which represents 10 countries in the region – agreed on and signed a code of conduct that stated neither side would make a unilateral move without consulting and negotiating with the other parties. Well, so much for that agreement… Fast forward to late April 2015. ASEAN issued a formal statement calling out China for its massive island-building program in the Spratly Islands in the South China Sea. Yes, China is actually creating new artificial islands – deemed China‘s ―great wall of sand‖ – and laying claim to them.

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Bill Hayton, in his book The South China Sea: The Struggle for Power in Asia, writes ―China has convinced itself that it is the rightful owner of almost the entire sea.‖ He goes on to say, ―China has a sense of entitlement to these lands.‖ Since 2013, China has been using dredging ships and construction teams to turn at least six coral reefs into large bases with harbors. This year, China started building two military air strips, one on Fiery Cross Reef and one on Subi Reef. Hayton points out that, although Chinese fishermen and traders have sailed the Sea for centuries – along with their Southeast Asian counterparts – there‘s no record of any Chinese officials landing on the Spratly Islands before 1946. And the PRC only arrived there in 1988, when they occupied features that were either underwater at high tide or consisted of just a few rocks at best. None were naturally inhabitable. But, China argues it‘s just protecting its territorial rights and fishing fleet. Still, ASEAN members are increasingly concerned that China will use these bases as springboards to assert control over the whole of the South China Sea. So, why does China want these tiny islands, some barely above sea level, that cover a mere six square miles? Because these approximately 250 rock outcroppings, reefs, and islands are the first step toward owning 1.4 million square miles of sea. And what may be one of the biggest oil and gas reserves in the world. In fact, according to the U.S. Energy Information Administration (EIA), the South China Sea has proven reserves of 11 billion barrels of oil (about the same as Mexico or Brazil), and proven natural gas reserves of 190 trillion cubic feet (about half the quantity of the United States)! Peter M. Solomon, an International Political Economy graduate from the University of London, Kings College, emphasizes the significance of these reserves in his paper, The EU and The South China Sea: A Role to Play. ―As a result of the considerable value of the oil and natural gas, the potential for disagreement is exceptional and therefore the potential for conflict over territory in the South China Sea cannot be understated,‖ Solomon writes. Trumping International Law Of course, the larger problem is China‘s blatant rejection of the International Laws of the Sea. You see, under current international law, laid down in the United Nations Convention on the Law of the Sea, a country can only own an area of a sea if it owns the land adjacent to it. A country that owns an island can claim 12 nautical miles of seabed around it, and has the rights to the resources (but not the territory) up to 200 nautical miles around it. But, China is writing its own laws…

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The government and its state-owned oil and fishing enterprises, in particular, are trying to assert ownership of the whole sea, along with its seabed and resources, many hundreds of miles away from the Chinese coast. A Long Time Coming ―It will be a long, drawn out situation‖ states Dr. Anders Corr, of the Journal of Political Risk. ―A country cannot expect to be successful in offshore drilling there. If countries such as Vietnam, the Philippines or India explore for oil, China could cut the cable, as they did to Vietnam and India in 2012.‖ Dr. Corr also referenced the Haiyang Shiyou 981 Standoff when the China National Offshore Oil Corporation moved its 981 oil platform to the South China Sea and established an exclusion zone around it. Soon thereafter, Vietnam protested the move as an infringement of its sovereignty and sent 29 ships to disrupt the rig. Both nations accused one another of repeatedly ramming and spraying each other‘s ships. While in Vietnam, protests escalated to heated riots aimed at foreign businesses. Corr states that ―anytime there is exploration there, it‘s a hot button and the project gets knocked out.‖ Chinese vessels have been known to board and search ships in contested areas of the waterway, as well as intervene in the exploration of energy resources by other nations. Meanwhile, things got tense between the Philippines and China in April 2012 over a region of the disputed territory known as the Scarborough Shoal. As a result, trade wars, fishing bans, and cyber security attacks between nations ensued. Two years later, in March 2014, the Philippines filed a lawsuit challenging China before a UN court at The Hague. Stakeholders Beware The world is still waiting for a decision, but it‘s unlikely that China will comply. And when the decision comes out, the onus will be on the United States to enforce it. The Bush administration took no stance on this matter. Obama has, but only recently. Last Friday, the United States was forced to take a stronger stance on the contested territory after the Chinese repeatedly ordered an American military surveillance plane to abandon flights over their artificial islands. The Pentagon is discussing sending warships there, while the Navy said it had no intention of stopping its almost daily reconnaissance flights.

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No matter how this shakes out, investments in the South China Sea are at risk. According to economist Nouriel Roubini, China has become much more protectionist in the last five years, while ASEAN nations are now becoming increasingly fractious with respect to the South China Sea. Companies with stakes in the South China Sea will likely lose out in the near to midterm. It‘s likely the problem will get worse before it gets better. Good investing, Shelley Goldberg Shelley Goldberg is a global resources, commodities and environmental sustainability strategist with over 20 years of sector experience in energy, metals and mining, agriculture, and infrastructure.

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China's worrying military ambitions May 28, 2015; editorial China might dare to claim, as its ambassador to Australia did this week, "indisputable sovereignty" over the hotly disputed Spratly Islands, but fostering this opinion does not make it a truth. In its brazen lunge for territorial and military influence in the South China Sea, China has been reclaiming land and concreting atolls in the Spratly chain, then building landing strips and deep-water anchorages suitable for hosting large military vessels. In recent days, China's navy has ordered United States military surveillance aircraft to exit the air space over these installations. The orders were defied by the US, which maintains the entire area is an international zone – albeit the subject of an unresolved dispute between six nations. Now, in its first white paper publicly outlining its military goals and strategy, China says it will augment its primary strategy of "offshore waters defence" with "open seas protection". China's ambition is to be a formidable maritime power, and instead of focusing military might on protecting its land frontiers it believes "great importance has to be attached to managing the seas and oceans and protecting maritime rights and interests". For all China's sweet talk that it will "unswervingly follow the path of peaceful development" and oppose hegemony and "power politics in all forms", its territorial ambition in the region, which purports to be an essentially defensive strategy, has taken a distinctly antagonistic turn. As The Age's John Garnaut reports today, intelligence indicates China has begun moving military weapons to these reef expansions in the Spratly Islands. This serious and highly objectionable development will amplify tensions in the region, and it is causing understandable concern among Australia's intelligence and defence policy analysts in the lead-up to the release in August of a white paper detailing Australia's future defence strategy. The stoush over the Spratlys may well define Australia's hawks and doves when it comes to China. As Garnaut wrote in these pages recently, while Australia might embrace the economic opportunities China offers, intelligence and defence analysts believe that our biggest trading partner is "challenging the freedoms, norms and institutions that have enabled free trade and commerce to prosper since World War II". Reconciling this will be tricky. The policy of engaging China while hedging against potential threats it might pose is founded on economic opportunism and an element of fear. The ability to hold an

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ostensibly neutral line, linking arms with both China and the US (and its regional allies), will be tested if China continues to pursue military expansionism in this way. Peter Jennings, the long-time senior defence strategist who is chairman of the Prime Minister's advisory council on the upcoming defence white paper, has suggested Australia may need to back its position on the Spratly Islands by sailing through or flying over the contested territory. That would surely bring our position to a head. Our economic ambition with China will be tested by our traditional loyalties and commitment to international law. The six-way tussle over these islands remains unresolved, and to that end the shipping lanes and air space should remain open. We deplore China's implicit threats that military action will result from intrusions in an area where it is squatting.

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Fact, Fiction and the South China Sea Posted on May 25, 2015 By Bill Hayton The next major contributor to the narrative was a Chinese-American law professor, Jianming Shen based at St. John‘s University School of Law in New York. In 1997 he published a key article in the Hastings International and Comparative Law Review. Like the Texas International Law Journal, the Review is a student-edited publication. It hardly needs saying that an editorial board comprised of law students may not be the best body to oversee works of Asian maritime history. Chen followed this article with a second in a more prestigious journal, the Chinese Journal of International Law – although in many sections it simply referenced the first article. Chen‘s two articles have been particularly influential – the 2014 CNA paper references them at least 170 times, for example. However, an examination of their sources shows them to be just as suspect as their predecessors. The historical sections that provide the evidence for his 1997 paper rely in large part on two sources. One is a book edited by Duanmu Zheng entitled Guoji Fa (International Law) published by Peking University Press in 1989 (referenced at least 18 times). The following year Duanmu became the PRC‘s second-highest ranking legal official – Vice President of the PRC‘s Supreme People‘s Court – and was later one of the drafters of the Hong Kong Basic Law. In other words, he was a senior Chinese state official. Shen‘s other main historical source is a collection of papers from a Symposium On The South China Sea Islands organized by the Institute for Marine Development Strategy, part of the Chinese State Oceanic Administration, in 1992 (referenced at least 11 times). It seems more than ironic that material produced by the State Oceanic Administration and the Chinese legal establishment has subsequently been processed through the writings of Professor Chen and then the Center for Naval Analyses and now become part of the Pentagon‘s understanding of the history of the South China Sea. None of the writers mentioned so far were specialists in the maritime history of the South China Sea. Instead they were political scientists (Cheng and Samuels), lawyers (Chiu and Park and Shen) or international relations specialists (Heinzig and Austin). As a rule their works don‘t examine the integrity of the texts that they quote, nor do they discuss the contexts in which they were produced. In particular Cheng and Chiu and Park incorporate anachronistic categories – such as ―country‖ to describe pre-modern relations between political entities around the South China Sea – for periods when political relations were quite different from those that exist today. It‘s also worth noting that Cheng, Chiu and Shen were Chinese-born. Cheng and Shen both graduated with LLBs from Peking University. Chiu graduated from National Taiwan University. While this does not, of course, automatically make them biased, it is reasonable to assume they were more familiar with Chinese documents and the Chinese point of view. Both Samuels and Heinzig were scholars of China.

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Flawed evidence It is hardly surprising that the first English-language writings on the disputes, written as they were by Chinese authors and based upon Chinese sources, come down on the Chinese side of the argument. Cheng‘s judgment (p277) was that, ―it is probably safe to say that the Chinese position in the South China Sea islands dispute is a ―superior claim‖ Chiu and Park (p.20) concluded that ―China has a stronger claim to the sovereignty of the Paracels and the Spratlies [sic] than does Vietnam.‖ Chen‘s point of view is obvious from the titles of his papers: ―International Law Rules and Historical Evidence Supporting China‘s Title to the South China Sea Islands‖ and ―China‘s Sovereignty over the South China Sea Islands.‖ These verdicts are still influential today: they were quoted in Li and Tan‘s 2014 papers, for example. Yet a closer examination of the evidence upon which they are based suggests they are deeply flawed. Those magazine articles from 1933, 1956 and 1974 should not be regarded as neutral evidence but as partisan readings of a contested history. There isn‘t space here to cover all the claims the writers make about events before the 19th Century. In summary, the accounts by Cheng, Chiu and Park, Samuels and Shen all share the common assumption: that China has always been the dominant naval, trading and fishing power in the South China Sea. Cheng, for example puts it like this, ―It has been an important part of the sea route from Europe to the Orient since the 16th century, a haven for fishermen from the Hainan Island, and the gateway for Chinese merchants from south China to Southeast Asia since earlier times‖ (p.266). More empirically-based histories of the Sea suggest the situation was much more complex. Works by the historians Leonard Blussé, Derek Heng, Pierre-Yves Manguin, Roderich Ptak, Angela Schottenhammer, Li Tana, Nicholas Tarling and Geoff Wade have revealed a much more heterogeneous usage of the sea in the pre-modern period. Chinese vessels and merchants played almost no role in seaborne trade till the 10th Century and even after that were never dominant but shared the sea with Malays, Indians, Arabs and Europeans. Research by by François-Xavier Bonnet, Ulises Granados and Stein Tonnesson show how similar patterns persisted into the 20th Century. Accounts from the early 20th century reveal demonstrate that the Chinese state had great trouble even controlling its own coast, and was completely unable to project authority to islands hundreds of miles offshore. For example, two articles in The Times of London from January 1908 describe the inability of the Chinese authorities to control ―piracy‖ in the West River – inland from Canton/Guangzhou. A 1909 article by the Australian newspaper, The Examiner tells us that foreigners (―two Germans, one Japanese, and several Malays‖) had begun mining operations on Hainan Island without the authorities finding out until much later. What these contemporary accounts reveal is a South China Sea that until the mid 20th Century was essentially ungoverned, except for the occasional interventions of foreign powers against piracy. It was only in 1909, following the scandal surrounding

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the occupation of Pratas Island by a Japanese guano entrepreneur Nishizawa Yoshiji, that the Chinese authorities became interested in the offshore islands. Protests against German surveys Samuels (p52), however, argues that an implicit Chinese claim to the Spratly Islands might be dated to 1883 when – according to his account – the Qing government officially protested against a German state-sponsored expedition to the Spratly Islands. The assertion is sourced to the May 1974 edition of the Hong Kong-based magazine Ming Pao Monthly without other corroborating evidence. Chiu and Park (in footnote 47) ascribe it to an article published 50 years after the alleged events in question in a 1933 edition of Wai Jian Yue Pao (Wai-chiao yüeh-pao) [Diplomacy monthly], Heinzig quotes the same edition of Ming Pao that Samuels relies on to state that the 1883 German expedition actually withdrew following the Chinese protest. This claim seems highly unlikely because the German surveyors mapped the Paracel Islands (not the Spratlys) between 1881 and 1883, finished their work and subsequently published a chart. A French edition was published in 1885. The 1887 Sino-Tonkin convention Samuels argues that the 1887 Sino-Tonkin convention negotiated by the French government, nominally on behalf of Tonkin, amounted to an international agreement allocating the islands to China (p52). Article 3 of the Convention does indeed allocate islands east of the Paris meridian 105°43‘ to China. But Samuels and the other authors failed to notice that the Convention applied to Tonkin – the northernmost area of what is now Vietnam and therefore can only relate to islands in the Gulf of Tonkin. The Paracels and Spratlys lie much further south in what were then the realms of Annam and Cochinchina, not covered by the Convention. The mystery of the 1902 voyage There also appears to be some confusion about the date of the first visit by Chinese officials to the Paracel Islands. Samuels (p.53), on the strength of the 1974 Ming Pao Monthly article, puts it in 1902 with a return visit in 1908. Austin and Dzurek follow Samuels in this. Li and Tan (2014) also assert the 1902 claim, along with one of a separate expedition in 1907. Cheng dates it to 1907, based on several 1933 references as do Chiu and Park who make reference to a 1933 edition of Kuo-wen chou-pao. However, in contrast to these accounts, written 26 and 72 years after the events they supposedly describe, a survey of contemporaneous newspapers makes it quite clear that the voyage took place in 1909. There is good reason for the confusion about the 1902 expedition. In June 1937 the chief of Chinese Administrative Region Number 9, Huang Qiang, was sent on a secret mission to the Paracels – partly to check if there was Japanese activity in the islands. But he had another role too – which a secret annex to his report makes clear. An excerpt of the annex was published in Chinese in 1987 by the Committee of Place

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Names of Guangdong Province. His boat was loaded with 30 stone markers – some dated 1902, others 1912 and others 1921. On North Island, they buried two markers from 1902 and four from 1912; on Lincoln Island, the team buried one marker from 1902, one from 1912 and one from 1921 and on Woody Island, two markers from 1921. Finally, on Rocky Island, they deposited a single marker, dated 1912. The markers were forgotten until 1974 when, after the battle of the Paracels, they were found and the ―discovery‖ was trumpeted in Hong Kong newspapers – such as Ming Pao Monthly. The non-existent 1902 expedition then entered the history books. Only now has it been debunked by the Manila-based French geographer Francois-Xavier Bonnet. The island names In his 1997 paper Shen claims the RoC Government ―reviewed the names of the islands in the South China Sea‖ in 1932. In fact that government committee simply translated or transliterated the existing British or international names. As a result several of the Chinese names continue to honour the British surveyors that first mapped the features. In the Paracels, Líng yang Jiao – Antelope Reef – is named after a British survey vessel, the Antelope. Jīn yín Dǎo – Money Island – is not named after notes and coins – but after William Taylor Money, the Superintendent of the Bombay Marine – the navy of the East India Company.

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Lower the temperature in South China Sea Published on May 22, 2015 6:31 AM Nick Bisley, For The Straits Times (The writer is Executive Director, La Trobe Asia, and Professor of International Relations at La Trobe University, Melbourne. During oral testimony to the Senate Foreign Relations Committee on May 13, United States Assistant Secretary of Defence David Shear mentioned that as part of a set of military measures to respond to China's provocative acts in the South China Sea, United States Air Force B-1 bombers would be deployed to Darwin. This caught officials on both sides of the Pacific off guard and, quickly, Mr Shear was described as having "misspoken". While B-1s are unlikely to be based in Australia any time soon, the comment - even if "misspoken" - was the latest example of a distinct sharpening of American intent towards the South China Sea disputes. Senior officials have more forcefully condemned China's actions for some time. US Pacific Fleet Commander Harry Harris publicly criticised China for building a "great wall of sand" in late March. Mr Shear's comments followed reports last week that Secretary of Defence Ashton Carter has asked the military to look at options to challenge China's claims. Washington is reportedly considering deploying naval vessels in the contested waters, conducting surveillance over the reclamation works and even holding a freedom of navigation exercise off the disputed features. Previously, the US took pains to remain aloof from the contest, emphasising it did not support any one claim and instead emphasising that the disputes should be resolved peacefully and in accordance with international law. In opting to move to a more muscular language, the US is increasing the strategic temperature in the region and contributing to a much riskier regional strategic setting. The disputes in the South China Sea are complex, involving six parties - China, Taiwan, Vietnam, the Philippines, Malaysia and Brunei - each with differing claims. China is thought to have the most expansive of these, although it has not formally enunciated what this entails. The only guideline is a map, lodged with the United Nations in 2009, which has an undefined series of 10 dashes encircling the South China Sea, although most observers believe that the dashes mark China's maritime borders. Since around 2010 Beijing has increased its activities in the contested territories, including deploying an exploratory oil rig in the waters that most regard as Vietnam's, arresting Indonesians it claimed were fishing illegally in Chinese waters and, most recently, undertaking extensive reclamation activity, and constructing buildings and even a runway on the new land in the Spratly Islands. But China is not the only one

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pouring concrete. Vietnam, Malaysia and the Philippines have also been augmenting their claims in the Spratly Islands. In building structures, occupying reefs and arresting fishermen, the rival claimants are trying to strengthen their claims while also demonstrating their administrative authority. China is the most active of the claimants and its actions represent what many think is an attempt to make good on its larger ambitions implied in the "dashed line map" by taking a series of small steps, each relatively uncontroversial - what some have described as a "salami slicing" strategy. This has been going on for some years, although the recent reclamation has clearly upped the scale and speed of activity. Why is the US hardening its stance now? Washington has made Asia its priority, centred on the notion of a "rebalance" of its strategic policy towards the region. The focus on the region has several motivations but ensuring that China's rise does not undermine Washington's dominant position in the region is central among them. The decision to harden US policy and to introduce some coercive diplomacy into America's position on the disputes appears to be driven by a realisation that its current approach is not constraining China or, indeed, others in the region. And it reflects larger doubts about the underlying international arrangements in Asia. But it is not at all clear that the move towards a more militarily focused approach is going to work, particularly given its risks. Although it is designed to pressurise China, the US policy ramps up pressure across the region, not least on Washington. What happens if China ignores the US and continues to build? Given the failure to enforce supposed red lines in Syria, the US will find itself in a difficult corner. Equally, US partners in the region which do not have a direct stake in the conflict, like Australia or Japan, will find themselves in the kind of invidious position they have sought to avoid: having to choose between Washington and Beijing. In China's reclamation works and America's response to them, Asia's two most important players are pushing the regional temperature higher. Rather than ratcheting up pressure, Washington and Beijing need to begin a much more complex conversation to demilitarise the dispute and dial down tensions. Stop pouring concrete and don't deploy the US Navy. More importantly, a bigger discussion needs to begin about managing disputes and establishing new ways to create a stable regional order. For Washington, this means realising that the region cannot remain forever like it is 1998, while for China this means accepting that its behaviour is destabilising and that its assertive and at times bullying behaviour is both dangerous and unbecoming. Unless we can establish a peaceful means to carve out a new regional settlement that reconciles the changing power balance with underlying principles of sovereignty and stability, the complex disputes of the South China Sea and elsewhere will become contests of power, will and honour. And we know how those end.

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SHANGRI-LA WON’T BE A FAIRYLAND FOR BEIJING Zack Cooper and Mira Rapp-Hooper May 21, 2015 · in Analysis As summer arrives in Washington, the temperature is rising and storm clouds are on the horizon. Beijing‘s island building in the South China Sea has been the subject of mounting international attention, provoking sharp objections from China‘s neighbors and the United States. This tension is likely to come to a head at next week‘s Shangri-La Dialogue, an annual security forum that is attended by many of the region‘s top defense leaders. Once summer is under way, there are ten maritime security-related developments to watch closely. Eight of these developments are likely to exacerbate tensions between Beijing and Washington. Just two have the potential to defuse them. 1. China‘s unwavering course: During his recent trip to China, Secretary of State John Kerry criticized Beijing‘s land reclamation activities. In response, Foreign Minister Wang Yi noted, ―China‘s determination to protect its sovereignty and territorial integrity is rock solid and unquestionable.‖ Although leaders in Washington desire a strong partner in Beijing, U.S. officials are also determined not to allow China to undermine regional security by intimidating smaller states and pushing the United States out of the region. Chinese experts have noted the changing tone in Washington, with one observer warning of ―radical anti-China discourse.‖ Yet, Beijing‘s own assertiveness in East Asia is to blame for the changing debate in Washington. The question for U.S. policymakers is no longer whether to push back against Chinese assertiveness, but rather how. 2. A More Assertive Administration: A consensus is emerging within the Obama administration that the United States must respond more forcefully to Chinese assertiveness. At a Senate hearing last week, Assistant Secretary of Defense David Shear commented on China‘s unprecedented altering of the status quo in the South China Sea and stated, ―rest assured… we will honor our commitments.‖ This week, Deputy Secretary of State Antony Blinken declared that China‘s effort ―to make sovereign land out of sandcastles […] is eroding regional trust.‖ A recent Wall Street Journal article on the South China Sea described efforts by Secretary of Defense Ash Carter — who will attend the Shangri-La Dialogue — to investigate options that include, ―flying Navy surveillance aircraft over the islands and sending U.S. naval ships to within 12 nautical miles of reefs that have been built up and claimed by the Chinese.‖

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3. PACOM‘s Change of Command: Secretary Carter‘s view will be on display in Singapore, but he is not the only forward leaning defense leader on Asian security. Admiral Harry Harris, incoming Commander of the U.S. Pacific Command, has warned, ―China is creating a Great Wall of Sand.‖ Just last week, the USS Fort Worth conducted a freedom of navigation patrol in the South China Sea. The Chinese Foreign Ministry responded by urging other countries ―to refrain from taking risky and provocative action.‖ Yet, observers increasingly recognize that U.S. Pacific Command may have to accept more risk to respond to Beijing‘s salami slicing tactics. A senior U.S. official advised, ―We‘re just not going within the 12 miles — yet.‖ 4. Capitol Hill‘s Frustration: House and Senate leaders on both sides of the aisle are also taking action. At a hearing on the South China Sea last week, Senator Bob Corker expressed concern that China has faced, ―no real price to pay so I don‘t think much is going to change.‖ Corker was reiterating comments made by the chairmen and ranking members of the Senate Foreign Relations and Armed Services Committees, who called for ―a strategy that aims to shape China‘s coercive peacetime behavior‖ in a March 2015 letter to Secretaries Carter and Kerry. To that end, the Senate version of the 2016 National Defense Authorization Act includes a new $50-100 million ―South China Sea Initiative‖ to build the capabilities of U.S. allies and partners who are likely to be the targets of low-intensity Chinese coercion. 5. Presidential Aspirants: Even U.S. presidential candidates are demonstrating signs of consensus. Republicans and Democrats may not agree on much, but presidential candidates of all stripes are suggesting a tougher line against Chinese coercion. Secretary Hillary Clinton appears likely to adopt a firm approach to China. Meanwhile, multiple GOP candidates and their advisors have made concerns about Beijing central to their foreign policy critiques. These dynamics are only likely to intensify as the presidential campaign comes into full swing. And the election may be having an effect in China; some analysts have argued that Beijing has undertaken its recent island building spree precisely because it anticipates a tougher U.S. stance after the 2016 elections. 6. Tribunal Ruling: This summer will also present new occasions for tension between claimant states. The Permanent Court of Arbitration at The Hague has set a June deadline for China to respond to a submission filed by the Philippines. Beijing has declined to participate in the arbitration and will presumably miss this deadline. In its most recent press release, however, the tribunal declared that it will treat China‘s communications, including a position paper it released in 2014, as formal submissions to the court. It will consider these materials alongside the Philippines‘ submissions at a hearing in July. A final ruling on the merits of the case is not expected before spring 2016, but these looming deadlines will present plenty of opportunity for South China Sea claimants to exchange harsh words over their maritime and territorial claims. 7. Historical Debates: Tensions over the Senkaku Islands, administered by Japan and disputed by China and Taiwan, have been relatively calm since late 2014. Japanese Coast Guard data indicates that Chinese Coast Guard incursions into the territorial waters around the Senkakus have roughly halved since this crisis peaked

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in 2013. Since Xi Jinping and Shinzo Abe‘s meeting on the sidelines of APEC in November 2014, Japan and China have also begun talks to establish a formal crisis resolution mechanism. Yet, sovereignty disputes in the East China Sea are a barometer for the broader bilateral relationship between Japan and China. History issues are a perennial source of Sino-Japanese tension, and this summer marks the 70th anniversary of the end of World War II. Abe is expected to make a major speech in mid-August and Beijing will hold a large military parade in September. Any future prospects for peace in the East China Sea depend on how Tokyo and Beijing approach and manage these catalytic events. 8. Taiwan Tensions: Taiwan‘s upcoming presidential elections may also roil the waters. The DPP, traditionally Taiwan‘s pro-independence party, is a strong favorite to recapture the presidency from Ma Ying-jeou‘s ruling KMT. The DPP has already stated that if it is returned to power it would revise Taiwan‘s approach to the South China Sea. Washington has been pressing Taipei to restate its Eleven-Dash line claims, which are also the historical basis for Beijing‘s claims. If Taipei revisited these claims, Beijing would be none too pleased. A redefinition of Taiwan‘s position could inflame cross-Strait tensions. The presidential election does not take place until January 2016, but Tsai Ing-wen, Chairwoman of the DPP and presidential candidate, will visit Washington in early June. 9. Strategic and Economic Dialogue: This year‘s annual U.S.-China dialogue will be held in Washington in June, and has some potential to act as a pressure valve on mounting tensions. Secretaries Kerry and Lew will be joined by State Councilor Yang Jiechi and Vice Premier Wang Yang. The Dialogue has helped to improve relations between U.S. and Chinese leaders in the past and could yet again be an opportunity for quiet diplomacy. Secretary Kerry‘s reportedly successful recent meeting with President Xi indicates that personal management of bilateral relations is critical, particularly once Shangri-La‘s public performances are in the rearview mirror. 10. President Xi‘s State Visit: The event that has the most potential to help stabilize the U.S.-China relationship is Xi Jinping‘s September visit to Washington. Both governments have every incentive to make sure this visit goes smoothly, and Xi has reportedly requested to address the U.S. Congress, which would be a first for a Chinese leader. Yet, both sets of leaders will also be required to address differences in their national interests, and make clear how they intend to manage potential disputes and crises moving forward. The United States, China, and other states in the region have a mutual interest in avoiding conflict and maintaining stability in Asia. Beijing‘s brinksmanship, however, is triggering a balancing response in Washington. The ten developments discussed above have the potential to rapidly escalate the tensions or to slightly diffuse them. Yet if recent trends are any guide, Shangri-La is likely to usher in several months of diplomatic strain around maritime disputes, even if it is just in the form of rhetoric. It is likely to be a stormy summer at sea. Zack Cooper is a fellow at the Center for Strategic and International Studies (CSIS). Mira Rapp-Hooper is a fellow at CSIS and director of the Asia Maritime Transparency Initiative. The authors can be found on Twitter @ZackCooper and @MiraRappHooper.

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China and 'might makes right' at sea PUBLISHED ON MAY 20, 2015 5:51 AM BY ROBERT C. BECKMAN FOR THE STRAITS TIMES THE main theme of Mr Mark Valencia's commentary published in The Straits Times last Saturday is that if the United States Navy exercises rights of navigation and overflight in the waters surrounding the reefs on which China is constructing artificial islands through reclamation, the US will be engaging in "gunboat diplomacy". He also argues that a more "peaceful and civil option" would be for the US to ratify the United Nations Convention on the Law of the Sea (Unclos) and use its dispute settlement mechanisms to resolve the legal issues relating to navigation and overflight, as this approach would be preferable to the "might makes right" principle and the precedent it sets. Mr Valencia fails to mention that in January 2013, before China started its massive reclamation works on the reefs, the Philippines instituted a case against China under the Unclos dispute settlement mechanism. The Philippines requested that the Unclos Arbitral Tribunal rule on the legal status of the reefs occupied by China, as well as on the rights and jurisdiction of China in the waters surrounding them. Unfortunately, rather than accepting this option to resolve the dispute in accordance with Unclos, China refused to participate in the case before the arbitral tribunal. Instead, it adopted a policy of non-appearance and non-participation, and began undertaking large-scale reclamation works on the very features whose status is in dispute in the case. The reclamation works have increased tensions in the South China Sea and raised concerns on whether China's actions are in violation of its obligations under Unclos to protect and preserve the marine environment. Also, it can be argued that because China is undertaking large-scale reclamation works to turn small disputed reefs into large artificial islands, it is China that is pursuing a policy of "might makes right" in the South China Sea. Several of Mr Valencia's comments on the nature of China's claim over the reefs also require a response. First, he states that China insists it has sovereignty over the features in question and that it has the right to do as it pleases on and with its own territory. However, he also states that three of the reefs (Hughes Reef, Mischief Reef and Subi Reef) are not above water at high tide. If these reefs are not "islands" as defined in Unclos, that is, naturally formed areas of land surrounded by and above water at high tide, they are not capable of being subject to a claim of sovereignty. They are either "low-tide elevations" or "artificial islands", which are not entitled to any maritime zones of their own, but only to a 500m safety zone. Therefore, any state could exercise freedom of overflight at the reefs and freedom of navigation in their surrounding waters.

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Mr Valencia also correctly states that it is not even clear what jurisdiction China claims from the features it is "reclaiming". He then asserts that three of the features on which China is undertaking reclamation works - Fiery Cross Reef, Gaven Reefs and Johnson South Reef - do generate a 12 nautical mile (nm) territorial sea. This is presumably because they meet the definition of an island in Unclos, that is, they are naturally formed areas of land surrounded by and above water at high tide. Mr Valencia's statement on the status of the features is not entirely consistent with the statement of claim of the Philippines in its case before the arbitral tribunal. In its statement of claim, the Philippines lists Gaven Reefs, together with Hughes Reef, Mischief Reef and Subi Reef, as a feature that is below water at high tide and not capable of a separate claim of sovereignty. It also states that in addition to Johnson South Reef and Fiery Cross Reef, China occupies another reef that is an island above water at high tide - Cuarteron Reef. Although those three reefs occupied by China in the Spratly Islands are in principle entitled to a 12nm territorial sea because they meet the definition of an island, China in fact has not officially claimed a 12nm territorial sea from any features in the Spratlys. China's national legislation states that it claims a 12nm territorial sea from its officially declared baselines. It has declared baselines along its mainland coast and around the Paracel Islands and Diaoyu Islands. However, it has not declared any baseline around any island in the Spratlys. Even if three of the reefs occupied by China are islands entitled to a 12nm territorial sea, it would be very difficult for China to claim a 12nm territorial sea from these reefs for several reasons. First, Vietnam and the Philippines also claim sovereignty over the same reefs and are likely to challenge China's claim to sovereignty and a 12nm territorial sea. Second, some of the reefs occupied by China are located less than 12nm from islands or reefs occupied by other claimants. For example, Johnson South Reef is less than 4nm from Collins Reef, which is occupied by Vietnam, and less than 12nm from Sin Cowe Island, also occupied by Vietnam. Also, Cuarteron Reef is less than 12nm from East Reef, again occupied by Vietnam. Therefore, if China were to attempt to regulate passage near these islands and overflight above them, it would significantly increase the risk of an incident not only with the US, but also with Vietnam and the Philippines. The claimant states have occupied more than 40 tiny features in the Spratly Islands. Sovereignty over all of the occupied features is in dispute and the occupied features are located very close to one another. Any attempt to enforce sovereignty in the airspace above these features and in waters adjacent to them is certain to increase the risk of an incident that is in no state's interest. Therefore, Mr Valencia's focus on the actions of the US - rather than those of the claimant states - is misplaced. To minimise the risk of incidents at sea, the claimant states should agree to respect a safety zone of 1nm to 3nm around all the occupied features. The claimant states

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should also agree that all states may exercise freedom of navigation and overflight at the Spratly Islands until such time as the underlying sovereignty issues are resolved and maritime boundaries are delimited. They should also agree that these "provisional arrangements" are "without prejudice" to the sovereignty claims over the islands and to the delimitation of maritime boundaries in the waters surrounding them. Provisions to this effect should be included in the code of conduct being negotiated between Asean and China. [email protected] The writer is director of the Centre for International Law and an associate professor at the Faculty of Law, National University of Singapore.

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Dredging For Disaster Beijing‘s Massive South China Sea Island-Building is Destroying Coral Reefs May 19, 2015 By Siddhartha Mahanta, an Assistant Editor at Foreign Policy. This article was first published by Foreign Policy. Tensions are rising in the South China Sea. On May 16, U.S. Secretary of State John Kerry arrives in Beijing for talks which will likely focus on the territorial disputes. But China‘s controversial effort to assert its sovereignty in the South China Sea is not only antagonizing its neighbors and the United States: it‘s destroying a precious coral reef ecosystem, and the Chinese agency charged with protecting it seems curiously unmoved to stop the damage. Since 2014, Beijing has been engaged in a series of ―reclamation‖ projects in the waters of the South China Sea, expanding islands and constructing landing strips on the coral reefs and rock formations that make up island chains like the contested Spratly Islands. Through this so-called ―great wall of sand‖ operation, Beijing hopes to assert a permanent claim to these specks of rock and coral and, ultimately, the vast majority of the sea itself. And the project is picking up speed. In April, Foreign Policy reported on a set of new satellite images showing that China had built out roughly 3,000 feet of a 10,000 foot runway on the Fiery Cross reef, a part of the Spratlys in the sea‘s southern reaches. China‘s expansive activities have been met with unease and outright condemnation by some of the other claimant states, including Vietnam and the Philippines, which in January 2013 took its case against China‘s claims before an international tribunal under the U.N. Convention for the Law of the Sea (UNCLOS). China asserts that it conducts these activities within the bounds of international law, and for peaceful, defensive purposes. Beijing has declined to participate in the UNCLOS proceedings. It also asserts—correctly—that its neighbors have engaged in reclamation activities that allegedly predate their own. But the sheer scale of its build-out puts it in a league of its own, and exponentially so: China has now reclaimed over 6.6 million square feet of new land, while Vietnam‘s projects amount to some 656,188 square feet, according to the latest figures from Washington. All that reclaiming comes at a tremendous ecological cost. The Spratlys host some of Southeast Asia‘s most productive coral reefs, with up to 571 different species of coral. These habitats provide a breeding and feeding ground for a staggeringly diverse range of fish. These species, in turn, are essential for the fishing communities of the Philippines. ―The dredging and building on coral reefs in the South China Sea is causing irreparable damage to one of the most diverse ecosystems on earth,‖ says Dr. Alan Freidlander, a biologist at the University of Hawaii and an expert on coral reef ecology.

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The destructive dredging involved in China‘s land reclamation obliterates these reefs, leaving sterile sand and concrete in their place. The actual construction process also destroys areas surrounding the reefs, writes University of the Philippines Institute for Maritime Affairs and Law of the Sea Director Jay L. Batongbacal. So far, an estimated 311 hectares of reefs in the region have been lost, which will result in an estimated $110 million of annual economic losses for the Philippines. On May 11, Foreign Policy joined a group of 15 journalists traveling in Asia with the East-West Center to report on the disputes in the South China Sea, on a visit to the State Oceanic Administration (SOA) in Beijing, which manages China‘s maritime affairs and environmental protection policies. Sitting at the front of a long conference room furnished with easy chairs and a plush rug, the Director General of SOA‘s Department of International Cooperation, Zhang Haiwen, discussed the agency‘s broad mandate, which includes establishing China‘s exclusive economic zones, safeguarding its maritime interests, and mapping out a sustainable plan for the development of China‘s booming marine economy. Zhang said that China‘s ―ultimate goal‖ in the South China Sea ―is to achieve the sustainable development of the marine economy.‖ But SOA‘s stance on the ecologically destructive construction in the South China Sea appears to contradict its environmental responsibilities. Zhang spoke repeatedly about SOA‘s plan to protect and restore the reefs and preserve the overall ecosystem of the South China Sea, while refusing to directly address questions about the clear contradiction that China‘s land reclamation is destroying that very ecosystem that SOA theoretically exists to protect. Zhang also made it clear that China has every right to continue its reclamation activities, no matter how disputed they are or how much damage they do to the sea‘s delicate reef architecture. In fact, SOA insisted that it had undertaken extensive environmental monitoring and management of these activities. Reclamation, Zhang insisted, follows a very specific process that is ―closely reviewed‖ and subject to ―strict observation‖ by SOA. That claim seems difficult to believe. In 2012, a team of Chinese scientists found that coral abundance in the South China Sea along the Chinese coast had shrunk by some 80 percent over the past 30 years. Further south, the amount of coral covering a group of atolls and archipelagos claimed by six different countries decreased from an average of over 60 percent cover to 20 percent in the previous 10-15 years, due to coastal development, pollution, and unsustainable fishing practices, according to those scientists. Politics aside, one thing is indisputable: China‘s hunger to assert its sovereignty in the South China Sea will have enormous, potentially irreversible natural costs.

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The Truth About Anti-China Discourse in the United States By Van Jackson May 19, 2015 There are some real problems with discourse analysis of this ilk. I‘ve noticed a pattern of analysts and scholars who, being either sympathetic to Chinese government views or critical of U.S. Asia policy, point to an ―anti-China‖ discourse in U.S. scholarly and policymaking circles. These discourse analyzers express concern that the United States is provoking China and, at the most logical extreme, threatening regional stability. Their concerns are mostly misplaced. Blaming U.S. discourse for Chinese assertiveness would be amusing were it not irresponsible; it alleviates China of any accountability for its own actions. To the extent that there‘s an ―anti-China‖ discourse in U.S. circles, its roots are not inherently with hawkish propensities of U.S. policymakers but with regional and U.S. perceptions of Chinese word and deed. In a recent Diplomat piece, Dingding Chen repeated an occasionally heard argument that U.S. discourse about China is worrying, not because it reflects an aggressive China, but because it reflects a potentially aggressive or reckless U.S. policy establishment; this is the subtext of such arguments. In 2013 Alastair Iain Johnston offered a similarly themed analysis, claiming there was an ―assertive China‖ meme in U.S. discourse, and that it was not connected to any particularly assertive change in Chinese behavior. Indeed, a large body of work of uneven quality has tried to frame any friction in Sino-U.S. relations as the onus of the United States, declaring the latter should, among other things, stop reconnaissance mission in international waters and not deploy ballistic missile defense to protect allies. The logical error made by discourse analysis of this ilk is not in pointing out that some in the United States routinely express concern about Chinese behavior; this is accurate. But it does not necessarily follow that because an ―anti-China‖ discourse exists in the United States that either U.S. perceptions are unfounded, or that U.S. behavior is to blame for Chinese behavior. Both of these logical leaps require scrutinizing not primarily U.S. behavior and perceptions, but dyadic behavior and regional perceptions. Chinese discourse routinely calls for an end to U.S. alliances, a return to multipolarity, and a new regional architecture in lieu of the post-Cold War liberal order. This is frequently written about, but was on display yet again during the Asan Plenum 2015, an international conference in which I recently participated in Seoul, South Korea. Unlike many conferences where these arguments are advanced, the

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Asan Plenum‘s panel discussions involving Chinese friends making such statements are all available online here. These arguments are not only audience tone-deaf (telling a conference host they shouldn‘t want or need a U.S. alliance); they also constitute a Chinese discourse that is fundamentally revisionist in the sense that it represents and seeks to foment deviations from an international status quo that has ironically accommodated China‘s economic and military rise. The Asan Plenum was not an isolated incident; attending international conferences with Chinese friends has often left me with the same impression, one summarized rather well by a loyal Diplomat reader: ―I occasionally attend academic conferences in which there are Chinese participants. And usually some if not all of the theories about China — collapse, Asia for Asians, balancing, punishing– are discussed. One feature has been free wheeling, transparent discussions by all non-Chinese participants and only rigid presentations by the Chinese.‖ Chinese discourse about China is crafted and controlled; U.S. and Asian discourse about China explores all logical possibilities in open debate. As a Pew Poll in 2014 evidenced, most Asian countries are worried about China‘s behavior and intentions. This sentiment comes through even more compellingly in a survey of Asian policy elites conducted by the Center for Strategic and International Studies: while 83% of Chinese elites polled believed China‘s impact on regional security was either ―very positive‖ or ―somewhat positive,‖ less than 20% of respondents from other countries on average shared that view. There is, in other words, a massive chasm between Chinese perceptions (and those who sympathize) and virtually everyone else. These polls matter because they‘re suggestive of regional perceptions, which is overwhelmingly concerned with Chinese intentions. Ignoring this ignores an important source of military modernization happening throughout the region. Worse still, by focusing blame on the United States rather than analyzing Chinese word and deed, discourse analysts effectively give China a pass; anything China does gets to be framed as defensive or reactive, and any friction can be blamed on U.S. provocativeness. Such framing also overlooks a great deal of contemporary research making both a logical and evidentiary case for contemporary Chinese assertiveness. Problematizing discourse has its roots in sociology, and the idea that shared symbols and representations among a group of people not only reflects the identity and interests of the group, but ―shapes and shoves‖ the behavior of groups and individuals in various ways. Sociology went mainstream in the study of international relations (IR) after the end of the Cold War and the seeming failure of realist and rationalist theories to anticipate such an epochal shift. As every graduate student knows, the strands of realism popularized by Kenneth Waltz and John Mearsheimer view IR as a system of unceasing competition for power among states, leading to pessimistic assessments of state behavior and intentions in virtually all circumstances. Constructivism, a sociological approach to IR—which defends the basic claim that real-world actions and material ―reality‖ lack inherent meaning, and that meaning is instead assigned by group perceptions—was analytically game-changing.

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Constructivism offers an ontology that makes it possible for states to escape endless competition. Discourse analysis, a tool of constructivism, has subsequently become more popular among and associated with scholars who might be described as averse to military affairs and as more interested in focusing on cooperation than conflict. But there‘s no reason discourse analysis must be the sole province of critics of U.S. defense policy, and just because it‘s possible for states to transform relationships doesn‘t mean states can‘t be trapped in security dilemmas or face material danger from others. Discourse matters, which is why I find it troubling that a number of intelligent and thoughtful Asia watchers would perpetuate narratives about Sino-U.S. relations that allows China to engage in more assertive behavior unchecked, while even the mere discussion of the United States taking steps to induce restraint in a more assertive China are framed as provocative. That‘s analytically dishonest. Rather than marginalizing the opinions of elites in Asian capitals and focusing public attention on U.S. policymaker concerns about China‘s intentions, discourse analysts would do well to direct their analysis to benchmarking regional perceptions of China, studying Chinese discourse intended for foreign audiences, and observing patterns of Chinese behavior. In the final analysis, policy prescriptions for China depend on whether one believes China is or will be a status quo or revisionist state, as I discussed in a Diplomat piece last week. As Sebastian Junger emotionally extolled, ―At some point, pacifism becomes part of the machinery of death.‖ We need not seek conflict with China and we should cultivate empathy for its perspective, but the ironic consequence of focusing on a U.S. ―anti-China‖ discourse and allowing Chinese assertiveness to escape from view may be a failure to balance a rising revisionist power before it‘s too late.

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Why the world is wary of China's 'great wall of sand' in the sea Clive Schofield May 14, 2015

Satellite imagery from 30 March, 7 August 2014 and 30 January 2015 shows the extent of Chinese progress in building an island at Gaven Reefs in the Spratly Islands.

Clive Schofield is Professor and Challenge Lead, Sustaining Coastal and Marine Zones, at the University of Wollongong. The opinions expressed in this commentary are solely his. CNN is showcasing the work of The Conversation, a collaboration between journalists and academics to provide news analysis and commentary. The content is produced solely by The Conversation. (CNN)The leaders of Southeast Asian nations recently took the extraordinary step of warning China that its island-building activities in the contested South China Sea "may undermine peace, security and stability" in the region. That's strong language from the usually reticent 10-member Association of Southeast Asian Nations (ASEAN), and shows just how high tempers are flaring over what has been called China's "great wall of sand" in a strategically important area. The commander of the U.S. Pacific Fleet, Admiral Harry Harris, has described China's island enhancement program as part of a "pattern of provocative actions" towards smaller South China Sea states.

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But island-building in regions like the Spratly Islands plays well to China's nationalistic domestic audience and also appears to be aimed at reinforcing China's territorial and maritime claims in a potentially resource-rich area. Such activities could, however, have dire consequences for the region's marine environment and vital fisheries. Ensuring stability and maritime security in this area is crucial to Australian and global interests. An estimated 60% of Australian trade passes through the South China Sea, with $5 trillion in trade overall flowing through the region. An island of one's own The Spratly Islands, located in the southern part of the South China Sea, are claimed in whole or in part by China, Taiwan, the Philippines, Malaysia, Brunei and Vietnam.

The Spratly Islands comprise over 120 islands, islets, rocks and reefs scattered over 240,000 square kilometers of maritime space. These are insignificant fly specks on the map -- but they are close to vital sea lanes. They also potentially give rise to broad maritime claims, within which valuable resources exist. Around 10% of the global fishing catch is estimated to come from the South China Sea, making access to its waters critical to regional food security. There has also long been speculation concerning potential oil and gas resources underlying disputed waters -- but that's uncertain precisely because of the existence of the competing claims. The nations fighting over the Spratly Islands care deeply about territory, no matter how tiny and seemingly intrinsically worthless. Safeguarding sovereignty claims therefore helps to underpin and legitimize the governments concerned. China is something of a latecomer to the island occupation game. Taiwan is the most longstanding occupant of an island among the Spratly Islands group, having occupied the largest of the Spratly Islands, Itu Aba (all of 1.4km long and 370m

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wide), since 1956. The Philippines, Malaysia and Vietnam all occupied features in the 1960s and 1970s. China did not really get in on the act until 1980s. As a result, China was left with the smaller, more tenuous features to occupy, often comprising extremely low elevation or at least partially submerged features. Of the eight features occupied by China in the Spratly Islands, five of them are no more than low-tide elevations (that is, features submerged at high tide but exposed at low tide). These do not even qualify for the definition of "island" under international law. The remainder are arguably mere rocks. So building up and expanding these tiny features is an attractive option in order to add substance (literally) to China's physical presence among the disputed islands of the South China Sea. An island in the eyes of the law? Can you build your own island? Certainly! But it won't be the same as a "normal" island -- not in the eyes of international law, anyway. The United Nations Convention on the Law of the Sea (UNCLOS), to which China and all of the South China Sea claimant states are party, draws a sharp distinction between naturally formed and artificial islands. UNCLOS is explicit in stating that man-made structures do not possess the status of islands, have no territorial waters of their own and their presence does not impact on the delimitation of maritime boundaries. While land reclamation may indeed be possible around features that already qualify as islands, simply building up a feature so that it is elevated above the high tide mark will not transform it into a "real" island. China has painted its reclamation efforts as being of benefit to the region. For example, it has suggested that its newly reclaimed land will enhance China's maritime search and rescue capabilities in an area prone to typhoons. Beijing has assured the U.S. that its reclamation efforts will not threaten freedom of navigation and overflight in the South China Sea. And it has suggested that other countries, including the U.S., might be able to use its new facilities "when conditions are ripe." The other claimant states are unlikely to take up this offer, since to do so would imply that they recognize China's right to build such facilities and thus its sovereignty claims. More ominously, Chinese Foreign Ministry spokesperson Hua Chunying has said that while certain other countries were keeping silent regarding their own island construction activities, they "point the finger at China's normal activities on its own territory", something that was "an out-and-out double standard."

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It's true that other claimant states have undertaken their own reclamation efforts on islands they occupy among the Spratlys, but what is distinctive about the Chinese activities is their scale and pace. The U.S. Pacific Fleet's commander Admiral Harris has said that China had "created over four square kilometers of artificial landmass." To put that in context, the combined total land area of the largest dozen Spratly Islands has previously been estimated to be less than half this area. More conflict ahead The sovereignty dispute over the Spratly Islands shows little sign of resolution, with the present furore just the latest in a string of incidents among the claimants. While China is correct to point out that it is, essentially, only doing what others have done before, that is hardly a compelling justification. In 2002 China and the other Spratly Islands claimants agreed to a Declaration on the Conduct of Parties in the South China Sea, which included an undertaking that they exercise self-restraint. But despite that, it seems China and other states are continuing their efforts to shore up power in this strategically important zone. Finally, despite assurances from the Chinese that their land reclamation activities followed a "high standard of environmental protection," it is difficult to reconcile this with depositing tonnes of dredged sand on top of coral reef systems. This is especially the case when these reefs are crucial to sustaining the viability of the fisheries of the South China Sea which, in turn, provide the primary protein intake for hundreds of millions of people around its shores. Unfortunately, it seems that this great wall of sand is unlikely to wash away anytime soon. Copyright 2015 The Conversation. Some rights reserved.

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Asean must TAKE THE HELM in critical sea disputes May 12, 2015 1:00 am China's aggression threatens to throw region's development off course Recently exposed work by China to build islands in disputed |territory in the South China Sea has raised grave concerns among rival claimants to the territory as well as other members of the international community. China needs to listen to those concerns, cease its aggressive land grab and offer genuine solutions to the disputes. Beijing's attempts to alter the status quo in the sea, where China has long been at loggerheads with members of the Association of Southeast Asian Nations (Asean), threaten to ignite more conflict, deepen rifts in the region and jeopardise any peaceful solution to the problem. Satellite images released last week by the United States Defence Department indicate that Chinese dredgers have reclaimed six square kilometres of land in the disputed Spratly Islands in just four months. According to the US analysis, China has built harbours, communications and surveillance systems, logistical support facilities and at least one airfield in the reclaimed area. Vietnam, which also claims sovereignty over the Spratlys, has repeatedly expressed concerns over the moves by China. On Friday the Hanoi government called on Beijing to immediately end its construction and expansion work on the islands' reefs. Vietnam's Foreign Ministry said the work had seriously violated its sovereignty and was causing deep concerns among the international community, including Asean, of which Vietnam is a member. The dispute is currently exercising diplomats at the UN, where China's claim over the sea territory has been vigorously countered by Vietnam. However, a diplomatic war will not resolve the problem. If each side insists on simply registering its claim, they can move no closer to the dialogue that is necessary to finding a mutually acceptable solution. Instead they risk an escalation of the dispute. While Asean has been engaged in a long struggle for a permanent solution to the sea disputes between China, a dialogue partner, and several of its members, the regional bloc needs to do something more in this particular case. In 2002 Asean and China signed the Declaration on the Conduct of Parties in the South China Sea (DOC), and both sides are now in the process forging a regional

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code of conduct for good practice in the disputed sea zones. Although the DOC is a non-binding document, it was signed by every Asean member-country and by China. Asean should now remind Beijing that it has a duty to honour that pact and desist from its land-reclamation activities, which are undermining the spirit of the document. If it refuses to respect the terms, Beijing would render useless any other pacts aimed at regulating states' behaviour in the South China Sea. More importantly, to realise its dream of a 21st-century "Maritime Silk Road", China needs the cooperation of countries in Southeast Asia. That cooperation cannot be secured while the disputes over sea territory rage. With its growing economic, political and military might, China is now the region's superpower. The government in Beijing can do what it likes, secure in the knowledge of its regional supremacy. Yet without the consent and cooperation of its smaller neighbours, China cannot achieve its major goals. As such, it should relinquish its aggressive and short-sighted land grab in the South China Sea and focus instead on building a prosperous future with the help of Southeast Asia.

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China takes sea route to great power status May 9, 2015 by Brahma Chellaney An outside power is seeking to carve out a role for itself in the Indian Ocean region through its Maritime Silk Road initiative. The Maritime Silk Road – along with an overland Silk Road to connect China with Central Asia, the Caspian Sea basin and beyond – bears the imprint of president Xi Jinping, who has articulated a more expansive role for China than any modern Chinese leader other than Mao Zedong. China‘s quiet manoeuvring in the Indian Ocean, where it is seeking to challenge America‘s sway and chip away at India‘s natural geographic advantage, draws strength from its more assertive push for dominance in the South China Sea – the critical corridor between the Pacific and Indian oceans. With China converting tiny, largely submerged reefs into islands that can host military facilities, the South China Sea has become pivotal to the contest for influence in the Indian Ocean and the larger Indo-Pacific region. The dual Silk Road initiatives – also labelled ―One Belt and One Road‖ by Beijing – are part of Mr Xi‘s strategy for China to break out of the East Asia mould and become a more global power, with its clout extending to the Middle East. The projects will enable China to build economic leverage and help pull regional countries closer to its orbit. The twin initiatives, however, are not a Chinese version of America‘s altruistic post-Second World War Marshall Plan. Rather, at a time of slowing economic growth, they have been designed to win lucrative contracts for Chinese state-run companies by presenting commercial penetration as benevolent investment and credit as aid. Beijing indeed is doing a great job in fobbing off overseas business as economic aid. The contracts that China is bagging will help it deal with its problem of overproduction at home. From a $10.6 billion (Dh39bn) railway project in Thailand to more than $20 billion worth of new power projects in Pakistan, China is emphasising infrastructure exports. By embarking on the attempt to connect China‘s restive Xinjiang region with the Arabian Sea through a 3,000-kilometre overland transportation corridor to Pakistan‘s Chinese-built Gwadar port, Mr Xi has made Pakistan the central link between the maritime and overland Silk Roads. This corridor through Pakistan-held Kashmir will hook up the two Silk Roads, besides permitting China to challenge India in its maritime backyard. China is also seeking to tap the Indian Ocean‘s rich mineral wealth and is inviting India to join hands with it in deep seabed mining there. Yet it opposes any Indian-Vietnamese collaboration in the South China Sea.

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More broadly, the Silk Road initiatives mesh with Mr Xi‘s larger strategy of co-opting regional states, especially by integrating them with China‘s economy and security. According to the conservative scholar Yan Xuetong, the ―lie low, bide your time‖ dictum of the late strongman Deng Xiaoping is no longer relevant and has been replaced by Mr Xi‘s more ambitious and assertive policy towards smaller countries. In Mr Yan‘s words: ―We let them benefit economically and, in return, we get good political relationships. We should ‗purchase‘ the relationships.‖ One example of how China has sought to purchase friendships was the major contracts it signed with Sri Lanka‘s now-ousted president, Mahinda Rajapaksa, to turn that strategically located Indian Ocean country into a major stop on China‘s nautical ―road‖. The new president, Maithripala Sirisena, said on the election campaign trail that the Chinese projects were ensnaring Sri Lanka in a ―debt trap‖. In his election manifesto, without naming China, Mr Sirisena warned: ―The land that the White Man took over by means of military strength is now being obtained by foreigners by paying ransom to a handful of persons. This robbery is taking place before everybody in broad daylight … If this trend continues for another six years, our country would become a colony and we would become slaves.‖ The Maritime Silk Road initiative, with its emphasis on high-visibility infrastructure projects, targets key littoral states located along the great trade arteries in the Indian Ocean, the new global centre of trade and energy flows. This critical ocean region, extending from Australia to the Middle East and South Africa, is likely to determine the wider geopolitics, maritime order and balance of power in Asia, the Arabian Gulf and beyond. Through its Maritime Silk Road, China is challenging the existing balance of power in the Indian Ocean. Its effort involves securing port projects along vital sea lanes, building energy and transport corridors to China through Myanmar and Pakistan and assembling a ―string of pearls‖ in the form of refuelling stations and naval-access outposts along the great trade arteries. The Maritime Silk Road project – part of Mr Xi‘s increasing focus on the seas – is driven by his belief that the maritime domain holds the key to China achieving pre-eminence in Asia. In this light, the new Asian order will be determined not so much by developments in East Asia as by the contest for major influence in the Indian Ocean, the maritime centre of the world. Brahma Chellaney is a geostrategist and the author of Water: Asia‘s New Battleground, winner of the 2012 Bernard Schwartz Award

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Environmental threat in South China Sea

May 7, 2015 by Richard Javad Heydarian ACROSS the region, many countries have been rightfully alarmed by China's accelerated construction activities across the South China Sea, which are tantamount to building "facts on the waters" amid unresolved territorial disputes. In response, United States President Barack Obama has criticised what many countries see as China "using its sheer size and muscle to force countries into subordinate positions". The construction activities do not only violate the spirit of the 2002 Declaration on the Conduct of Parties in the South China Sea, which discourages claimant countries from unilaterally altering the status quo through provocative actions, but also run counter to the United Nations Convention on the Law of the Sea (Unclos), which bars coastal states from artificially transforming disputed features. An often neglected aspect of the South China Sea disputes, however, is the environmental impact of ongoing construction activities and large-scale fishing by disputing parties. As signatories to the Convention on Biological Diversity and Unclos, South China Sea claimant states have the obligation to ensure their territorial jostling does not come at the expense of the delicate ecological balance in the disputed waters. To be fair, China is not the only country that has been engaged in building structures and placing people and soldiers on disputed features. Occupying the two biggest naturally formed features in the Spratlys, the Philippines and Taiwan have built airstrips and advanced facilities on Thitu and Itu Aba islands, respectively. Vietnam, which controls the most features in the area, has built various forms of structures across the Spratly chain of islands. Malaysia has also built advanced infrastructure on Swallow Reef and, similar to Vietnam, has been actively engaged in hydrocarbon exploration in the South China Sea. China's construction activities, however, stand out in terms of technological sophistication, scale and sheer speed. Within a few months, China has altered the nature of disputed features beyond recognition. Deploying state-of-the-art geo- engineering technology, China has transformed Fiery Cross, Mischief, Gaven and Johnson South reefs, among other low-tide elevations and rocks in the Spratlys. No longer a reef, Fiery Cross is now an island, having been artificially enlarged by 11 times over its original size, and stands as the biggest feature in the area. China's neighbours are particularly concerned that Fiery Cross, which hosts about 200 troops, will soon be transformed into a command-and-control headquarters for

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expanded and sustained Chinese air, naval and paramilitary patrols in disputed waters. China could soon also deploy missile defence and radar systems to the area. China has effectively established the skeleton of an air defence identification zone in the South China Sea, which could pose a threat to freedom of navigation and overflight in the area. This would enable China to drive out other claimant states from the Spratlys by tightening the noose around their supply lines. Of course, China maintains that its activities are perfectly consistent with its "inherent and indisputable sovereignty" over much of the South China Sea. It has also raised "environmental protection" and "fishery production service" among the core objectives of its ongoing construction activities. Claimant states such as the Philippines, however, have accused China of damaging up to 121ha of coral reefs, allegedly leading to "irreversible and widespread damage to the biodiversity and ecological balance". The Philippine authorities claim China's dredging activities are damaging coral reefs - a rich breeding ground for high-value fisheries - which will cost neighbouring states up to US$100 million (S$133 million) annually. In response to China's construction activities, the Philippines and other claimants, including Taiwan, have continued with refurbishing their facilities and expanding surveillance across disputed waters, further complicating the disputes and expanding the coastal real estate boom in the South China Sea. Growing patrols by regional and extra-regional naval vessels have also come at the expense of the environment. In recent years, the Philippines' Tubbataha Reef Natural Park, a Unesco World Heritage Site, has been damaged by American (the USS Guardian) and Chinese vessels which precariously navigated the South China Sea. Illegal, under-reported and unregulated (IUU) fishing is another major source of concern, gravely affecting fishery resources in the South China Sea. Asean countries such as Indonesia and the Philippines have been victims of overexploitation and large-scale illegal fishing and poaching of endangered species such as sea turtles, often involving foreign fishing vessels from China and Vietnam. By some estimates, 70 per cent of coral reefs in the South China Sea have already been adversely affected by a combination of mechanical accidents, pollution and unsound fishing practices. Given China's continued and growing reliance on fishermen- cum-militia forces to push its claims across the South China Sea, the IIU conundrum will most likely intensify. As the pre-eminent platform for multilateral cooperation in the region, Asean should play an important role in facilitating greater cooperation and laying down the foundations of an environmental regime in the South China Sea.

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Mutually-agreed-upon rules and regulations on protecting marine life should either be a major element of any Code of Conduct or a separate bilateral agreement between Asean and China. After all, 2015 is supposed to mark the year of "Asean-China maritime cooperation". Unabated illegal and large- scale fishing, coupled with ecologically damaging construction activities, represent a direct threat to the lives of tens of millions of people across the region, who depend on the South China Sea for their livelihood and daily dietary needs. Across the world, from the Northern Pacific to the North Sea, and the Baltic to the Mediterranean and even the Yellow Sea, countries have been negotiating various mechanisms to preserve endangered species and protect marine life within areas of overlapping claims. Given the growing urgency of the environmental issue, it is high time for China and other claimant states to honour their obligations under international treaties and begin negotiating various mechanisms, including a moratorium on fishing and construction in certain areas, to protect the tenuous ecological balance in the South China Sea. The future of the region is at stake. [email protected] The writer is a political science professor at De La Salle University in the Philippines.

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China should heed Asean's concerns May 7, 2015 Editorial CHINA'S latest rhetorical tactic related to its land reclamation in disputed parts of the South China Sea leaves much to be desired. Clearly, no one is buying the line that the facilities being developed can enhance rescue and relief operations - all the more because the offer comes with conditions and acceptance would be taken as recognition of China's claim. If its intentions were truly humanitarian, it would hand over the facilities to a neutral party to administer pending the adjudication of the disputes. In the absence of any assurances, the sheer size of the projects - with some of the man-made islands big enough for airstrips for fighter jets - cannot but incite fear in others, particularly those who have overlapping territorial claims with the Asian power. Consequently, one could scarcely blame the world for concluding that China is determined to have its way in the South China Sea and is prepared, when push comes to shove, to keep out claimants by force. Asean members at their summit last week were justified in stating jointly that the Chinese reclamation works have "eroded trust and confidence and may undermine peace, security and stability in the South China Sea". Not surprisingly, the Chinese were quick to counter this with an accusation that Asean was interfering in a matter that had nothing to do with the grouping as a whole. This was followed up by the charge that other claimants, including Vietnam and the Philippines, were carrying out "illegal" building on Chinese territory in the Spratlys. In a similar spirit, China claimed this week that Manila's building work in contested areas had violated the 2002 Declaration of Conduct - which states that China and Asean members should refrain from activities that would complicate or escalate disputes. The irony of it all seemed to escape Beijing despite the global focus on the Chinese works. There is now little to stop each of the claimants from asserting its right to build on the islands it claims to be within its sovereignty. As the size of works grows, the ante will be upped and regional tensions will be exacerbated. A mishap or miscalculation could cause these to spiral out of control. Thus, Asean has every reason to be concerned, especially when building programmes are paired with other troubling actions like China's efforts to block Philippine fishing vessels from entering the disputed Scarborough Shoal. It would enhance China's stature if it adopts a different approach by coming to the table without delay to forge a binding code of conduct to manage the territorial disputes. Leaving matters unresolved while throwing one's weight around to achieve a fait accompli will only breed distrust and derail the Asian Century.

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Archaeology could wreck China’s sea claims —

May 6, 2015 Michael Flecker At the conclusion of the recent Association of South-east Asian Nations (ASEAN) Summit in Malaysia, the Chairman‘s statement read: ―We share the serious concerns expressed by some leaders on the land reclamation being undertaken in the South China Sea, which has eroded trust and confidence and may undermine peace, security and stability in the South China Sea.‖ The stock response from China is that it has an ―indisputable right‖ to be there and to do whatever it likes. And while ASEAN treads on eggshells, China demands that Vietnam, the Philippines, and other occupiers immediately stop their infringements on Chinese sovereignty. All claimants are signatories to the United Nations Convention on the Law of the Sea (UNCLOS), which came into effect in 1994. Before then, China had as much right as anybody else to occupy previously unoccupied territory in the Spratlys. Since then, China has occupied or blockaded reefs within the Philippines Exclusive Economic Zone (EEZ). China‘s nine-dash-line claim severely encroaches on the EEZs of Vietnam, Malaysia, Brunei, the Philippines and Indonesia. Vietnam and the Philippines have loudly proclaimed that under international law, China‘s rights are disputable. The Chinese Ministry of Foreign Affairs has stated that the nation‘s rights are historical, with the earliest proof of hegemony over the Nanhai (the South Sea) spelled out in Han and Tang texts. The Han dynasty ruled from 206 BC until AD 220 and the Tang from AD 618 to 906, implying that China deployed an assertive fleet of sea going junks throughout the first millennium. Chinese products such as ceramics, ironware and silk were in high demand. But paradoxically, the South-east Asians, and to some extent the Arabs and Indians, initially provided all the shipping. To quote from Singaporean history professor Derek Heng‘s book on Sino-Malay trade: ―Information on Chinese participation in maritime shipping to the Malay region (present day Malaysia and Indonesia) is not forthcoming until the 11th century‖. Maritime archaeology confirms this. Hundreds of shipwrecks have been discovered in China and throughout South-east Asia over the past few decades. Sadly, for shipwrecks from the 17th century or earlier, only 35 have been sufficiently well documented to provide a date and origin. This is still sufficient to indicate trends. Seven Southeast Asian ships of the lashed-lug shipbuilding tradition span the thousand years from the fourth century AD until the 13th century. Two stitched Arab dhows appear in the ninth century, when large

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Arab communities are known to have resided in principal Chinese ports. No fewer than 15 shipwrecks of vessels of the South China Sea tradition — a hybrid South-east Asian/Chinese construction centred in Siam — occurred from the 14th to 16th century. There are 11 Chinese junks, but the oldest is dated to the late 12th or early 13th century. Clearly, China could not claim maritime sovereignty before the advent of Chinese sea-going shipping. Taking the history card off the table From the late 13th century, China has periodically demonstrated maritime prowess. Maritime archaeology can again be called upon to investigate more recent historical claims, and not only those made by China. When plotting the positions of shipwrecks from the 13th century and beyond, it becomes abundantly clear that there were two primary routes through the South China Sea. The Western route hugged the coast of Vietnam, while the Eastern route hugged the Philippine coasts of Luzon and Palawan. The dangerous reefs of the Spratlys were studiously avoided. Even modern charts label the area Dangerous Ground. James Horsburgh, the hydrographer of the British East India Company, had this to say about the Spratlys in his Sailing Directions of 1836: ―The Archipelago of sandbanks, rocks or reefs, above and under water, … is so extensive, and the dangers that form it so numerous, that there can be little utility in entering into a minute description of them, for they ought to be avoided by all navigators.‖ In 1993, I had the rare and wonderful opportunity to survey several reefs in the Spratlys, under a licence issued by the occupant, Vietnam. Ladd Reef, and West and East London Reefs are the western-most in the archipelago, and, therefore, the most dangerous. Plenty of shipwrecks were discovered. There was the famous tea clipper, Taeping, which was lost in 1871 en route from Amoy (now known as Xiamen) to New York. There was the Liverpool barque, Titania, which sank in 1852 while sailing from Macau with ―a valuable cargo for Sydney‖, unfortunately none of which remained. There was the British barque, Christina, which left Macau ―with a large quantity of treasure bound for Bombay‖, the payment for her inward cargo of opium. She wrecked in 1842, but the cargo of silver was salvaged by a Portuguese adventurer, Captain Cuarteron, some years later. The nearby Chinese occupied reef has mistakenly assumed his name. There was an unidentified mid-19th century sailing ship, an early 20th century German four-masted barque, a 20th century riveted steamer, a World War II submarine, and several steel fishing boats and barges. Careful visual searches around all of these reefs only led to disappointment. There were no ceramics or ballast stones. Nothing predated the 19th century.

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In hindsight, these findings are consistent with Horsburgh‘s warning, and all earlier sailing directions. It was only in the 19th century that rig design advanced to the point where ships could consistently sail into monsoon winds, rather than delaying voyages to sail with the monsoon. The drawback was that they had to make long tacks, by sailing at an angle to the wind and, in doing so, sometimes took themselves too far off the established route. The consequences proved fatal. No country has demonstrated that they have historical rights to the Spratlys, simply because it is, and always has been, Dangerous Ground, a place to avoid at all costs. China‘s claim to a large chunk of the South China Sea on historical grounds does not seem to be indisputable. But perhaps this is just as evident to China as it is to me. Perhaps, it is only a game that will have served its purpose once the islands have been created and the military facilities have been built and manned. Perhaps then China will happily participate in bilateral or even multilateral discussions, with the history card taken off the table. — TODAY * Dr Michael Flecker is a visiting fellow at the Nalanda-Sriwijaya Centre of the Institute of Southeast Asian Studies.

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S. China Sea Reclamation Is Wrecking the Future May 4, 2015 by Jamil Maidan Flores Asean has merely said what‘s necessary to say. In the Chairman‘s Statement of the 26th Asean Summit late last month, it says, ―We share the serious concerns expressed by some Leaders on the land reclamation being undertaken in the South China Sea, which has eroded trust and confidence and may undermine peace, security and stability in the South China Sea.‖ These aren‘t fighting words. They‘re mild compared to the pugnacious rhetoric that comes out of the mouths of certain leaders. But they express a necessary consensus on an insidious danger. The alternative is for Asean to roll over and play dead while China carries out plastic surgery on the marine features of the South China Sea. As expected, China takes umbrage. Its foreign ministry spokesperson says Asean summits have no business discussing the South China Sea, since only four of the group‘s members are involved in disputes over islets in the area. But Asean has said nothing about territorial and sovereignty disputes. It has merely voiced concern at the impact of reclamation activities on the peace, security and stability of the South China Sea. That, too, argues China, is none of Asean‘s business because China can do anything it wants within its own territory. Maybe, if it‘s really doing it within its own territory. But reclamation is being carried out in disputed waters. This is therefore behavior that should be covered by the Code of Conduct of parties in the South China Sea that Asean and China are listlessly negotiating. Thus Asean has every right to discuss it and to reach a common position on the matter. What the Asean statement fails to mention is an even more urgent concern: the environmental impact of the reclamation. The China spokesperson insists that ―relevant construction is lawful, justified and reasonable and thus beyond reproach.‖

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I‘ll put my money on an article written for the Rajaratnam School of International Studies by researchers Youna Lyons and Wong Hiu Fung that says ―large scale reclamation work in the South China Sea using living coral reefs as building material is causing severe environmental damage. It is also against international law.‖ The researchers cite high resolution commercial satellite imaging that exposes China‘s mechanical dredgers breaking up and raising hard materials from the sea, including coral reefs and all living organisms clinging to them, and then compacting them to create new land territory. Thus coral reefs in the Spratlys are being destroyed on a massive scale. That is hardly ―reasonable and beyond reproach.‖ Those coral reefs survived the millenniums while nurturing a wealth of biodiversity that has served humankind in good stead. But recently seized from their beds and wrecked by machines, some of them are lost forever. Lose them all and their biodiversity and you‘ve lost much of the future. Lyons and Wong point out that the coastal waters of the littoral states of the South China Sea are stressed and overfished. That there‘s still a large fish catch in those waters may be due to larvae and juvenile fish drifting from the South China Sea reefs. If those reefs were all converted into real estate, there would be much less fish to feed the people of eastern Asean and China itself. International law obliges China not only to use sustainable management practices but also to consult with other affected states so that the transboundary impact of its reclamation could be prevented or managed. China hasn‘t consulted anybody. The China reclamation and its impact on the environment must therefore be addressed in the Asean-China talks toward a Code of Conduct in the South China Sea. It should also be taken up in all forums that care about biodiversity as a common heritage and as a large piece of the future of humankind. Jamil Maidan Flores is a Jakarta-based literary writer whose interests include philosophy and foreign policy. The views expressed here are his own.

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South China Sea: Turning Reefs into Artificial Islands? By Youna Lyons and Wong Hiu Fung April 30, 2015 Synopsis Large-scale reclamation work in the South China Sea using living coral reefs as building material is causing severe environmental damage. It is also against international law. Commentary CHINA‘S ONGOING reclamation activities in the South China Sea are a cause for environmental concern, given their potential to destroy the little-explored pristine coral reefs of the Spratlys. This development comes as a surprise coming at a time of loss of biological diversity on land and in the sea, and an acute concern for the degradation of the natural environment. These marine features lie in contested waters. High resolution commercial satellite imagery shows mechanical dredgers and their circular trails operating on reefs in the Spratlys where substantial land reclamation work is being or has been undertaken by China. This is particularly visible on Fiery Cross Reef, Hughes Reef, Mischief Reef, Subi Reef, Cuarteron Reef, Gaven Reef and Johnson South Reef. Even unoccupied shallow features have been dredged to provide building material for nearby reclamations. Coral reefs that have been left untouched for centuries by virtue of their isolation are now gone. Using living coral reefs as building material Dredgers, such as cutter suction dredgers, are used to break up and remove hard substrates like coral reefs together with other attached organisms (molluscs, seagrass, etc) before compacting them onto the area being reclaimed. In addition to removing all coral reefs, these dredgers create sediment plumes that further threaten living coral fragments still alive and other photosynthetic organisms that need sunlight to live. The environmental impact due to past construction of military installations and destructive fishing methods on reefs has already been reported since the late 1980s. But such activities were of a smaller magnitude and did not involve the destruction of entire reef systems –as is being done now in the disputed waters of the South China Sea.

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The geographic formations, generally known as the Spratlys Islands, are in fact isolated seamounts covered with coral reefs. These underwater mountains on the seabed are separated by deep and large canyons up to 50 km wide and several thousand metres high. Their summits are or were covered with living corals (and often with seagrass in shallowest areas). But only a dozen out of more than one hundred of them exhibit small cays or islands above water at all tides - altogether less than one square kilometre. Their dramatic rise from the seabed causes an upward current, bringing up nutrient-rich deep water that feeds life developing in the top layers of the sea. Seamounts are remarkably productive as they create exceptional conditions for a variety of life to develop; both in the light of the top layers of the sea and below. However, their isolation also makes them vulnerable and slow to recover from largescale disturbances. Marine research studies carried out in the 1980‘s by the Joint Oceanographic Marine Survey of the Philippines and Vietnam and more recently by independent scientists show the rich biodiversity in the shallowest parts of these seamounts - their richness in coral reefs, fishes, seabirds, migratory species and other coral reef associated species. Potential impact on littoral States Coral ecologists specialising in the Spratlys hypothesised in the 1990‘s that the very high diversity of species in the Spratlys would provide critical larval sources for overharvested and stressed coastlines bordering the South China Sea and more generally for biodiversity reservoirs. This theory is based on a combination of factors. These include on-site sampling; the proximity of the Coral Triangle; and enhanced transport and dispersal of drifting larvae and juvenile fishes throughout the South China Sea by the ocean circulation pattern that reverses under monsoonal influence. Recent research suggests that the biodiversity of the South China Sea may be comparable to or even richer than that of the Coral Triangle – the tropical marine waters, roughly triangular in shape, of Indonesia, Malaysia, Papua New Guinea, Solomon Islands and Timor-Leste. It is therefore greater than the biodiversity of the Great Barrier Reef of Australia. Coastal and oceanic fisheries exploited by the littoral States of the South China Sea are also expected to benefit from these reefs. These spawning and nursery grounds for reef fish can also be feeding grounds that support large population of oceanic and migratory fish such as several tuna species, including yellowfin and skipjack tunas. The disappearance of the reefs would offset most if not all of these benefits. Coral reefs and international law Under international law, it is the obligation of ‗building States‘ to protect and employ sustainable management practices with respect to their construction activities in the Spratly seamounts. It is also their obligation to consult with other affected States. International law provides for clear obligations with respect to the protection and sustainable management of the Spratly seamounts, and the prevention and management of transboundary impacts from human activities:

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Firstly, the Spratly seamounts and their associated species qualify for protection under a large number of hard and soft law international instruments because they meet the criteria for sensitive environments in need of protection. Secondly, any State engaging in construction work that carries a risk of severe or irreversible damage to the local marine environment and risk transboundary damage to coral reefs and fisheries of States bordering the South China Sea must consult the affected States. They must also apply the precautionary approach and exercise due diligence in the conduct of their activities including the duty of vigilance and prevention. This would include the adoption of measures such as conducting a transparent environmental impact assessment. Furthermore, the lack of full scientific certainty concerning the scope of potential negative impacts must not be used as a reason to defer these obligations. The existence of plausible indications of potential transboundary risks is sufficient to trigger the application of these positive obligations for any State undertaking land reclamations in the Spratlys. States carrying out construction activities on coral reefs and seamounts in the Spratlys must avoid damaging the marine environment due to the far reaching risks to the States bordering the South China Sea. To ignore such risks could create broader complications for regional cooperation and political stability amongst the States of Southeast Asia and the southwestern Pacific. Youna Lyons is a Senior Research Fellow and Wong Hiu Fung, Research Assistant, in the Ocean and Policy Programme of the Centre for International Law (CIL), National University of Singapore (NUS). They contributed this specially to RSIS Commentary.

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A Secret Weapon to Stop China’s Island Building: The Environment?

April 24, 2015 by Citizen Daily in economy In the wake of recent revelations about the scope and speed of China‘s land-reclamation activities in the South China Sea, no shortage of ink has been spilled decrying China‘s behavior and calling for strategic responses. But concerned states are hard-pressed to find easy solutions in their foreign-policy toolkits. No one is seriously discussing military measures or economic sanctions, and China has quickly dismissed criticism that it is bullying its neighbors. Long-standing diplomatic efforts within ASEAN to negotiate a Code of Conduct in the South China Sea have been undermined by the continuing failure of ASEAN countries to abide by the Declaration of Conduct they agreed to in 2002. The net result is China‘s increasingly rapid buildup of rocks and reefs in the Spratly Island chain, where it is building airstrips and other facilities on tiny features subject to claims by at least four different countries. Meanwhile, aside from the geopolitical implications, experts believe the dredging of ocean reefs required to facilitate this expansion is devastating the local marine ecology and contributing to an already dire environmental situation. The thorniness of the problem is partly a function of the strategic asymmetries involved. For China, digging up the ocean floor to construct artificial islands may be part of a broader strategy (however legally dubious) to bolster its sovereignty claims in disputes with neighboring countries—an effort the Pentagon refers toas changing ―facts on the water.‖ The region is home to potentially huge oil and gas reserves, as well as rich fishing stocks, and China‘s strategic interests in these resources are complemented by the expansion and projection of its naval defense capabilities. For the United States, which takes no official position on the territorial disputes between China and its Southeast Asian neighbors, the interests are more generalized and indirect: freedom of navigation and commerce, peaceful resolution of disputes consistent with international law and the potential damage to U.S. credibility of failing to support allies against destabilizing conduct. Another dimension of asymmetry is the power differential between the People‘s Republic of China (PRC) and smaller neighboring countries, whose conflicting claims (and their own prior reclamation work) put them at odds with China‘s maritime ambitions.

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Attempts to level the strategic playing field in the South China Sea are already underway. In 2013 the Philippines launched a legal case against China under the dispute settlement procedures of the UN Convention on the Law of the Sea (UNCLOS), seeking a ruling from an arbitration tribunal on the status of certain features China occupies and challenging its controversial ―nine-dash line.‖ Vietnam recently submitted a statement to the tribunal supporting the Philippines‘ position. Although the tribunal has yet to decide whether it has jurisdiction to hear the case, the Philippines‘ strategy of using international law to press its arguments—rather than through negotiations with China—may offer a blueprint for pushing back against China‘s recent land reclamation activities. Here is where the environmental consequences of China‘s island buildup are poised to play a central role. Like all countries that have ratified UNCLOS, China has general legal obligations to protect and preserve the marine environment. UNCLOS specifically requires signatory nations to refrain from causing transboundary environmental harms and to take measures ―necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.‖ The treaty also calls upon states to conduct and communicate the results of environmental impact assessments. Importantly, these obligations are largely independent of questions about sovereignty and jurisdiction. And an independent tribunal can be convened under compulsory jurisdiction to interpret and apply them. If the Philippines or another littoral state brought a claim against China for violation of UNCLOS‘s environmental protection provisions, the claimant state could rest its case on the damage being caused by land reclamation in a region that hosts the world‘s greatest marine biodiversity—where fish supply around 22 percent of the average person‘s diet yet 40 percent of fish stocks are already depleted; where 70 percent of the coral reefs are judged to be in fair or poor condition; and where the list of endangered species is rising steadily alongside increasing ocean acidification. With this context to support it, the litigant state‘s ultimate goal would be a judgment from the tribunal ordering China to change its behavior in the name of environmental sustainability. Under UNCLOS, even before an arbitral tribunal is convened to address the merits of the dispute, the International Tribunal on the Law of the Sea (ITLOS) can issue ―provisional measures‖ requiring that states take certain actions to preserve the parties‘ rights or prevent harm to the marine environment. Thus, it is conceivable that ITLOS or an arbitral tribunal could require China to halt or modify its land reclamation work if it found that these activities pose an urgent environmental threat. There is precedent for a request under UNCLOS for provisional measures to address environmental harms caused by land reclamation. In 2003, Malaysia brought a case against Singapore challenging its land reclamation activities in and around disputed waters in the Straits of Johor. Malaysia requested provisional measures including a suspension of all reclamation until the arbitral tribunal reached a judgment.

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Although ITLOS declined to support Malaysia‘s request for a suspension of Singapore‘s activities, it ordered the countries to establish a joint group of independent experts to study the environmental effects of Singapore‘s land reclamation and propose appropriate mitigating measures. In addition, pending a final decision in the arbitration, ITLOS required Singapore and Malaysia to share information and engage in risk assessments, and ordered Singapore to refrain from any land reclamation that would cause irreparable prejudice to Malaysia‘s rights. After one year, the joint expert working group proposed a number of mitigating measures that served as the basis for an eventual settlement between the parties. China denies that its land reclamation is damaging marine ecosystems, and even contends it is providing neighboring nations in the South China Sea with public goods such as weather monitoring and search and rescue facilities. Experts and officials from other countries offer a starkly different assessment. According to the Philippines‘ deputy representative to the United Nations, land reclamation ―is causing widespread destruction of the region‘s biodiversity‖ and will ―irreparably damage the entire ecological balance‖ in the region‘s waters. On April 13, the Philippines‘ foreign ministry spokespersonalleged that Chinese construction has destroyed more than 300 acres of coral reefs and is causing $100 million in annual economic losses to states in the vicinity. The Chinese government insists it has carried out environmental impact assessments that support its island buildups, but its decision not to release these assessments raises further questions about its compliance with UNCLOS obligations of disclosure and cooperation. An UNCLOS tribunal could demand, at a minimum, that China provide more transparency into its actions and perform environmental assessments. One question that an arbitration/litigation strategy would inevitably raise is whether an international tribunal has jurisdiction to hear the dispute. This is a key issue in the ongoing Philippines arbitration, where China has refused to participate in the proceedings. Although China ratified UNCLOS, it issued a declaration refusing to subject itself to the compulsory dispute settlement process for maritime delimitation disputes. This opt-out does not apply, however, to disputes over marine environmental protection. Furthermore, in the Malaysia v. Singapore case, the existence of conflicting maritime boundary claims did not preclude the exercise of jurisdiction to consider the adverse effects of land reclamation. As such, if China chose to contest the tribunal‘s jurisdiction, this time it would find itself on shakier ground. Even so, the legal process could take years to play out, during which time China might continue to advance its island construction projects. But if the tribunal judged the environmental harms caused by land reclamation to be sufficiently urgent, it could issue provisional measures early in the case requiring prompt cessation or modification of any party‘s dredging and island expansion. Or, as in the Malaysia v. Singapore case, it could order some form of independent expert assessment of the damage and the measures needed to address it. In the meantime, the risk that the tribunal would rule against it might cause China to recalibrate the political costs of its

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actions. This might also catalyze momentum for ASEAN negotiations on a binding Code of Conduct or bolster support for a moratorium on destabilizing actions in the region. Assuming it got that far, there is no guarantee that China or any other state would agree to abide by an adverse judgment. The adjudicative power of UNCLOS dispute settlement bodies is not backed by force or coercion. Nonetheless, the reputational costs of an unfavorable ruling would be compounded by a failure to comply, potentially isolating China in the court of public opinion and pushing rival claimant countries closer to the United States. A further obstacle to the arbitration/litigation approach is that China could cry foul on other regional players that have engaged in similarly destructive land reclamation. Virtually all parties to the 2002 Declaration on the Conduct of Parties in the South China Sea have violated their agreements, including in some cases through island construction not entirely unlike what China is engaged in now. The Philippines, Vietnam and other states might worry about being compelled to take their own remedial actions. But as they look at the scale and speed of China‘s construction, they may conclude that the prospect of liability is outweighed by their concerns about unchecked Chinese maritime expansion. Moreover, littoral states increasingly recognize that the South China Sea is suffering an environmental crisis with real economic consequences. Marine biologists estimate, for example, that fishing will need to be reduced 50 percent to sustain key species, indicating this is an issue no state can handle on its own. Ironically, a mutually adverse judgment of an independent tribunal (or a settlement agreed to in the shadow of legal proceedings) might actually encourage states to cooperate on environmental protection, which itself could set the stage for further confidence-building measures such as cooperation on joint development of resources, disaster response, piracy or other maritime challenges. None of this is to suggest that litigating states would abandon parallel strategies and hard-power alternatives the moment a claim is filed. International law is not a cure-all for power politics, and the outcome of any legal proceeding would not be preordained. But with the geopolitical stakes increasing by the day as satellites reveal previously uninhabitable rocks growing into full-fledged military outposts, don‘t be surprised if the next phase of ―lawfare‖ in the South China Sea plays out in the tactical arena of environmental protection. Source: National Interest

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The Lost Dimension: Food Security and the South China Sea Disputes February 26, 2015 by James Kraska I. Introduction The rationale for establishment of the Exclusive Economic Zone (EEZ) in the United Nations Convention on the Law of the Sea (UNCLOS) has profound implications for the maritime disputes in the South China Sea. The EEZ was created to ensure that coastal subsistence fishing communities had access to offshore fish stocks adjacent to their coast. Developing States joined with a handful of artisanal fishing States such as Iceland to propose a 200-mile zone to protect living marine resources from distant water fishing nations, such as Japan, the Soviet Union, and the United States. As 90 percent of all fish stocks are within 200 miles of shore, the EEZ was designed to safeguard a basic human right to food security. The human right to food security is the lost dimension of the maritime boundary disagreements in the South China Sea. The legal structure of the EEZ informs the dispute between China on the one hand and the Philippines, Vietnam, Malaysia, Brunei, and Indonesia over sovereign rights and jurisdiction in the South China Sea. In these disputes China plays the role of a distant water fishing nation, as the southern tip of Hainan Island is some 1200 kilometers from the farthest extent of Beijing‘s claims in the South China Sea. The maritime zones in UNCLOS are predicated on the concept that the land dominates the sea, so coastal States are entitled to a 12 nm territorial sea over which it exercises sovereignty, a 24 nm contiguous zone for customs purposes, a 200 nm EEZ for exclusive access to living and non-living resources, and a continental shelf of 200 nm or more, over which the coastal State has rights to seabed oil minerals. Each of these zones was codified from customary international law, except the EEZ, which emerged from the mood of decolonization and national sovereignty that permeated the negotiations as well as the drive for food security and economic development. First, the coastal States surrounding the South China Sea enjoy sovereign rights to the marine resources of their EEZ based on the legal theory of construction of the zone. The EEZ was produced during UNCLOS negotiations that spanned 9 years principally to give coastal States competence to protect subsistence coastal fishing populations, rather than as a zone of national aggrandizement or offshore industrial development. The large coastal populations of Vietnam, the Philippines, and the other States in close proximity to the seashore of the South China Sea are in contrast with China‘s physically remote population and distant coastline.

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Second, despite physical occupation of selected land features, such as rocks, islets, reefs and cays in the South China Sea, China does not enjoy legal title to territories located there, and therefore lacks concomitant maritime rights to an EEZ generated by them. Regardless of the resolution of the disputes over legal title to the insular rock and island features, however, the five coastal States with large populations in proximity to and adjacent to the South China Sea are entitled to a normal 200-mile EEZ to fulfill the rationale for the origin and purpose of the zone. II. The Emergence of the EEZ The process of creation of the EEZ in the United Nations Convention on the Law of the Sea (UNCLOS) provides a unique vantage point from which to evaluate the disputes in the South China Sea. China relies on the theory of discovery and historic title over the water and land features that dot the seascape to lay claim to over 90 percent of the South China Sea. These claims incorporate vast areas of the Exclusive Economic Zone (EEZ) of five neighboring States – Vietnam, the Philippines, Malaysia, Indonesia, and Brunei – approximately 1.2 m2 of 1.4 m2. China and its five antagonists are party to UNCLOS. The construction of the regime of the EEZ in the travaux préparatoires of UNCLOS, however, suggests that the EEZ was created principally to protect coastal subsistence fishermen from distant water fishing fleets. Yet the founding purpose and function of the regime of the EEZ has been virtually ignored in the South China Sea disputes, to the detriment of the human rights and subsistence of coastal fishing communities. This paper reintroduces the key motivation for creation of the EEZ and places it in the context of contemporary disputes in the region. It concludes that large parts of the EEZs of Vietnam, the Philippines, Malaysia, Indonesia, and Brunei are at risk of being stripped away, circumventing subsistence rights of coastal fishing communities in Southeast Asia and diminishing the regime of the EEZ worldwide. After World War II, industrial fishing from distant water fleets grew tremendously. Global catch was only 15 million tons in 1938, but by 1989 it had grown to 86 million tons. Beginning in the late 1950s, distant water fishing fleets from the USSR, Japan, and the United States expanded substantially. Large fishing vessels roamed the seas far from their native shores and began to land catch on an industrial scale. Fish stocks declined as factory fleets swept distant coastlines, driving some species to extinction (UN Doc. A/CONF.62/C.2/SR.27). Factory ships displaced local fishermen around the world, undermining the human right of food security (E/C.12/1999/5). Armadas of factory-fishing vessels capable of staying at sea for months at a time were constructed around enormous deep freezers. Fish catch was brought on board, cleaned, and frozen to market – all from the ship. These commercial vessels incorporated sophisticated technology, including sonar, to search the depths for schools of fish. The degradation of fish stocks prompted some coastal States to combine efforts to resist encroachment by distant water fleets. In 1952, Chile, Ecuador and Peru signed the Santiago Declaration to preserve local fish stocks as sustenance for their coastal populations. This regional declaration affirmed that governments had an ―obligation‖ to ―ensure for their peoples the necessary conditions of subsistence….‖ The coastal States acknowledged a duty to

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prevent exploitation of marine resources within and beyond their jurisdiction. The States accepted that by virtue of their long coastlines, fish stocks were an ―irreplaceable means of subsistence‖ to their coastal communities. In light of these needs, the governments of Chile, Ecuador, and Peru proclaimed a new norm that coastal States should have exclusive competence to manage living resources seaward to a distance of 200 miles. The Santiago Declaration formed the intellectual and philosophical underpinning for the 200 nm EEZ, which was incorporated into UNCLOS during years of multilateral negotiations in the 1970s. Before UNCLOS, the 1958 Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas recognized the coastal State‘s superior interest in the resources adjacent to its coast. The agreement defined conservation of living resources as ―the aggregate of the measures rendering possible the optimum sustainable yield from those resources so as to secure a maximum supply of food and other marine products.‖ The special interest of coastal States in the conservation and management of fisheries in adjacent waters was incorporated into the text, allowing them to take ―unilateral measures‖ for conservation on high seas adjacent to territorial waters. It required that if six months of prior negotiations with foreign fishing nations to divide the catch on the adjacent high seas had failed to reach a formula for sharing, the coastal State unilaterally could impose terms on foreign-flagged fishing vessels. It was never clear, however, whether coastal States could prescribe and enforce such rules, which in any event were never broadly implemented by coastal States.[1] Without specific authority to ensure food security, the 1958 treaty was ineffective and, like the other 1958 Geneva Conventions on the law of the sea, largely a disappointment. The Convention on the Territorial Sea and Contiguous Zone, for example, had its own shortcoming in that it failed to delimit the breadth of the territorial sea or specify the meaning of ―innocent passage.‖ The problem of distant water fleets was particularly acute for small island developing states. Foreign-owned distant-water fishing fleets from Japan, the United States, the Soviet Union, and other flag States were taking massive amounts of fish from the waters surrounding small-island developing states such as Fiji (A/CONF.62/ SR.29). If the waters near these islands became depleted, distant-water fleets would move elsewhere, but the inhabitants could not. Exploitation and abuse by States with huge fishing fleets led directly to the establishment of the EEZ (A/CONF.62/WS/23). Industrial fishing from these fleets generated some amount of envy, as well as anger, among coastal States in the developing world. Furthermore, the ―Cod Wars‖ of the 1950s and 1970s illustrate that such feelings were present in developed states as well. In the Cod Wars, the United Kingdom and West Germany resisted efforts by Iceland to progressively expand its fishing zone, resulting in a series of confrontations over fishing rights in the waters surrounding Iceland. In three major iterations, 1958, 1972-1973, and 1975, Iceland increased its claimed exclusive fishing zone from 4 to 12, then 50 and finally 200 miles offshore, pushing out distant water fleets from the United Kingdom and West Germany. The population of Iceland was at the time almost entirely dependent on fishing as a source of income. The conflict ended only after the United Kingdom accepted a 200 mile Icelandic fishing zone.

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Similarly, by the early 1970s, the United States had accepted the efforts by South American states to exclude U.S. fishing fleets from tuna fishing their offshore areas. A discussion on the ―tuna war‖ between Henry Kissinger and Richard Nixon in the White House in 1971 captures the sentiment at the time: Kissinger: We have other technical [unclear] connected with Latin America. The Brazilians have established a 200 mile limit, and they want to start enforcing it as of June 1st [1971]. Nixon: [unclear] Kissinger: Now, our problem is that unless we get them – unless we tell that that we‘re willing to negotiate the fisheries issue with them, they will have to start enforcing it. We‘ve already agreed to negotiate, but we don‘t have a formal position yet. And so there‘s some debate. The State Department wants to negotiate now, but the Defense Department wants to have a showdown. They‘re not so concerned about fisheries, but they‘re concerned about law of the seas [sic]. I would recommend that we tell them that we‘re willing to negotiate this fall. That if we – because if we don‘t do it on fisheries, the Latin Americans will oppose us on the more important issues of navigation, which comes up on the law of the sea conference later this year. While if we can settle Brazil, it‘s not basically a hostile country to us [sic]. Nixon: I don‘t give a damn about fisheries anyway. Let everybody have 200 miles to fish. They‘re all poverty-stricken down there anyway. Kissinger: If we dig in on fisheries, we‘ll lose on navigation – Nixon: Navigation we want. Let them fish if they want. That‘s my view. Kissinger: Well, that‘s my recommendation, Mr. President. The pressure to preserve national fishing resources was no less powerful in the United States, which adopted a 200-mile zone under the Magnusson Fishery Act in 1976 – six years before the EEZ was adopted by the Conference. The United States acted even against the advice of the Pentagon, which correctly warned that a unilateral announcement of a fishery zone would weaken the U.S. hand in negotiations to ensure high seas freedoms in the zone, as well as transit passage through straits used for international navigation. Between 1974 and 1979 alone there were some 20 other disputes over cod, anchovies or tuna and other species among, for example, the United Kingdom and Iceland, Morocco and Spain, and the United States and Peru. As long-utilized fishing grounds began to show signs of depletion, and as long-distance ships came to fish waters local fishermen claimed by tradition, competition increased; so too did conflict. III. The Third United Nations Conference

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Consequently, the concept that every coastal State was entitled to management and exploitation of an exclusive fishing zone was a major impetus for negotiations on UNCLOS. Soon after the opening of the Third UN Conference on the Law of the Sea in 1973, Nigerian representative J. D. Ogundere stated that the high rate of world population growth, especially in Africa, meant that developing States were turning to the sea to feed their populations and earn foreign exchange (A/CONF.62/C.2/SR.31). African nations were strong proponents of the zone. Somalia, for example, argued that only a 200-nm territorial sea could protect the coastal State fisheries from distant water fleets (A/CONF.62/C.2/SR.26). During UNCLOS negotiations, Indonesian Ambassador Hasjim Djalal stated that from the view of adjacency or coastal proximity, coastal States have a superior right to the resources of the EEZ than distant countries (A/CONF.62/C.2/SR.26). Many States benefited from wider coastal zones, including a majority of seafarers and fishermen in coastal States, for whom such zones represented more food, more jobs and higher standards of living (A/CONF.62/C.2/SR.30). Fishing states proposed that the right of distant water nations to access coastal State fisheries be included in the terms of the Convention. In rejecting this approach, Mr. Akyamac of Turkey objected to ―…proposals … that the traditional distant-water fishing States be granted fishing rights within the economic zones of ocean States. The creation of such a privileged club would be highly detrimental to the developing States,‖ as they too would have to turn toward distant-water fishing to sustain economic and social development (A/CONF.62/C.2/SR.27). By the beginning of the Second Session of the Third UN Conference on the Law of the Sea in the summer of 1974, most of the major distant-water fishing countries had accepted the idea of the 200-mile zone in which fish stocks would be managed by the coastal State. Valencia Rodriguez of Ecuador recalled, ―No one now denied that the 200-mile limit was the only means of relieving the acute and growing subsistence problems of the developing world.‖ (A/CONF.62/C.2/SR.27) Distant water fishing nations ceded that coastal States that depended on coastal fisheries had a right to establish exclusive rights over the resources located there. Poland, for example, recognized that despite its distant-water fishing interests, developing coastal States and States dependent mainly on coastal fisheries should have the right to establish a zone within which they could exercise special rights with respect to living marine resources (A/CONF.62/C.2/SR.26). The needs of distant-water fishing countries and of other states interested in fishing in the EEZs were taken into account in the final text. These interests flowed from a joint Australian-New Zealand fisheries paper submitted to the Seabed Committee in 1972 that made its way into the UNCLOS negotiations. The paper provided that the portion of allowable catch not taken by the coastal State would be available for the fishing vessels of third countries. By the time the UNCLOS negotiators picked up the issue of the EEZ at the 21st session of the Second Meeting on 31 July 1974, most distant water states already had accepted this approach (A/CONF.62/C.2/SR.21). Sponsors of the working paper recognized the need for equitable rights of access for developing States to EEZ resources of neighboring coastal states (A/CONF.62/L.4).

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Access could be negotiated on the basis of regional, sub-regional or bilateral agreements. Most importantly, coastal States had a duty to accommodate the interests of other States that had historically fished in waters adjacent to their coastline, but no longer were entitled to because of the creation of the EEZ. China is such a distant water State in the areas beyond it 200 nm EEZ in the South China Sea, and as such, it has certain rights. Coastal States such as Vietnam and the Philippines, have a duty to ―take into account‖ the right of access of other States, and in particular, ―States which have habitually fished in the zone.‖ (A/CONF.62/C.2/L.40 and Add.1) If China seeks to fish in the EEZs of the coastal States of the South China Sea, it must do so through the process developed in UNCLOS. This approach firmly rejected colonial, imperialist or foreign domination of the EEZ. ―It should also be made clear that such rights could not be exercised, profited from or in any way infringed by a metropolitan or foreign power administering or occupying such a territory.‖ (A/CONF.62/C.2/SR.21) IV. The EEZ Regime The outer limit of the EEZ extends a maximum of 200 nm from the baselines from which the territorial sea is measured. More than 150 coastal States have an EEZ. Unlike the continental shelf, which was an inherent part of the coastal State, the EEZ was based on a claim through proclamation or declaration. Most coastal States lack the ability to enforce their resource jurisdiction. They will ―obtain the full benefit of their EEZ only if . . . more powerful States respect them‖ (A/CONF.62/SR.190). The EEZ is a generous grant of community ocean space to the coastal state; the zone, indeed, was cut out of the high seas and ceded willingly. ―Coastal States also seemed willing now to accept the obligation to allow fishermen from other countries to enter the 200-mile zone on reasonable terms and conditions to take the balance of the allowable catch not harvested by the local industry‖ (A/CONF.62/C.2/SR.21). Coastal States have sovereign rights in the EEZ with respect to natural resources and certain economic activities, and exercise jurisdiction over marine science research and environmental protection. All other States enjoy freedom of navigation and overflight in the EEZ, as well as freedom to lay submarine cables and pipelines. Most ocean activities are located in EEZs, which encompass 36 percent of the total area of the sea. Ninety percent of commercially exploitable fish stocks are located in the zone because the ―richest phytoplankton pastures lie within 200 miles of the continental masses.‖ Phytoplankton, the basic food of fish, is brought up from the deep by currents and ocean streams at their strongest near land, and by the upwelling of cold waters where there are strong offshore winds. The area also has almost all of the major shipping routes and a high proportion of marine scientific research. The continental shelf under the EEZ contains over 80 percent of the known offshore oil and gas deposits. The EEZ is a sui generis regime – neither a territorial sea nor residual high seas, but a distinct third type of zone established in Part V. The Law of the Sea Convention governs the rights and jurisdiction of the coastal State and the rights and freedoms of other States in the zone (arts. 55, 56, 58). The treaty also contains a formula for

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attribution of rights and jurisdiction that do not fall within either of coastal or other States (art. 59). The coastal State enjoys in the EEZ sovereign rights – but not sovereignty – over resources and economic activities, sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources and with regard to other activities for the economic exploitation and exploration of the zone, sovereign rights with regard to the seabed and subsoil (art. 56). Coastal States also have sovereign rights for rules aimed at conservation of the living resources (art. 61), utilization of the living resources (art. 62), special rules for shared and straddling stocks, highly migratory species, marine mammals, anadromous stocks, catadromous species, and sedentary species (arts. 63-68), the right of land-locked and geographically disadvantaged states (arts. 69-70), and marine enforcement of laws and regulations of the coastal State (art. 73). The International Tribunal for the Law of the Sea recognized these authorities in the M/V Virginia G Case. Because of their adjacency or proximity, coastal States were afforded special authority to develop and manage a conservation regime in the EEZ. The coastal State has a duty to determine the total allowable catch (TAC) for EEZ fisheries that ―takes into account‖ the ―best available‖ scientific information (UNCLOS, art. 61). Coastal States also shall adopt measures to prevent ―overexploitation‖ of the fishery, and maintain or restore stocks at levels that can produce ―maximum sustainable yield‖ (MSY), ―as qualified by relevant environmental and economic factors.‖ These factors include the economic needs of coastal fishing communities and the special requirements of developing States. Management measures must consider ―effects on species associated with or dependent upon harvested species‖ to ensure such species do not become ―seriously threatened.‖ The objective of the management regime is to optimize utilization of the fishery ―without prejudice‖ to the coastal State‘s rights in article 61 (art. 62). As coastal States, Vietnam, the Philippines, and Malaysia, should accommodate neighboring States, such as China, with access to surplus catch in the fishery. Surplus catch (SC) is determined by total allowable catch (TAC) minus the capacity to harvest (CTH), with TAC qualified by maximum sustainable yield (MSY). Thus, TAC (based on MSY) – CTH = SC. To fulfill its obligations, Vietnam should acknowledge the significance of living resources of the area to the economy of Southern China and China‘s ―other national interests,‖ the requirements of developing States in the sub-region or region, and the need to minimize economic dislocation in States whose nationals historically have fished in the zone. (Vietnam also must consider the provisions regarding geographically disadvantaged and land-locked States in articles 69 and 70 of UNCLOS, but these do not apply vis-à-vis China and Vietnam). If Vietnam opens access to Chinese distant water fishermen, these guests have a duty to comply with the conservation measures and other terms and conditions established in Vietnamese law (art. 62). Even if one accepts the validity of China‘s claim to historic fishing grounds off the coast of Vietnam, the problems occurring offshore emanate from a reversal of roles between the two States. In this regard, China‘s attempt to impose annual fishing bans from April to August and fishing management regimes in

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areas throughout the South China Sea that are distant from its coastline – and in fact within the EEZs of its neighbors – are unlawful, ineffective, and perverse. The EEZ is one of the most revolutionary features of UNCLOS, and it has had a profound impact on the management and conservation of the resources of the oceans. The regime of the EEZ recognizes the right of coastal States to jurisdiction over the resources of some 38 million nm2 of ocean space. The coastal State inherited right to exploit, develop, manage and conserve all resources – fish or oil, gas or gravel, nodules or sulfur in the waters, on the ocean floor and in the subsoil of an area extending 200 miles from its shore. V. China as a Distant Water Nation In 1980, China had the fourth largest fishing catch in the world, behind Japan, the USSR, and the United States.[2] Today, China has the third largest merchant marine fleet in the world and it is the world‘s top fishing nation, currently taking nearly 20 percent of the total world catch. China has almost 300,000 motorized fishing vessels and approximately eight million fishermen. With a total take of over 17 million tons in 2007, China lands four times the catch of its nearest competitor, and far exceeds the catch of Japan, the United States and other major Pacific maritime powers. The largest catch is from the East China Sea, followed by the South China Sea and Yellow Sea. The catch is increasing, however, only in the South China Sea. Chinese fishermen predominately catch finfish, species such as anchovy, Japanese scad, hairtail and small yellow croaker, and also harvest large amounts of shrimp, crab and squid. They use trawlers, purse seines, gill nets, set nets, and line and hook. Chinese fleets are located mostly in Guangdong and Shandong provinces, with Fujian and Zhejiang also major regions for fishing. As waters close to home become depleted, Chinese fishermen have moved farther south to exploit the waters of the South China Sea. First, China seized the Paracel Islands from Vietnam, which inherited title from France, and laid claim to the waters surrounding them. The features of the Paracel Islands do not generate zones of sovereignty or sovereign rights and jurisdiction for China since it does not have valid title to them. Legal title may be obtained through accretion, cession, conquest, occupation, or prescription. Under the Charter of the United Nations, after 1945 conquest is not a lawful means to acquire territory. Consequently, China‘s military capture[3] of the Hoàng Sa/Paracel Islands in January 1974 is devoid of legal effect. China has not perfected any claim through one of these five methods in a manner that would confer legal title. Similarly, prescription to title to territory is effected through long-term occupation of another state‘s territory, but it requires a display of governmental authority that is continuous, peaceful, public, and uninterrupted – criteria that China also does not meet. China‘s reliance on ancient discovery is similarly lacking in legal effect, and cannot be the basis for EEZ rights. Even if China discovered regional rocks and islands in vicinity of Vietnam, mere inchoate title is incomplete without subsequent acts of effective occupation that evidence an intention and will to act as sovereign. In December 2014, Beijing renewed its claims to virtually all of the South China Sea, but it does not have a valid legal claim to sovereignty over either the disputed

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features or waters. Yet China is increasingly using its fishing fleet for strategic purposes to control the region. Beijing will continue to use the Chinese strategy of ―defeating harshness with kindness‖ (yi rou ke gang) and thus deploy unarmed fishing vessels or fisheries enforcement vessels to confront foreign vessels operating in its EEZ and claimed waters. In March 2009, for example, several Chinese fishing vessels operated in coordination with Chinese state vessel in the South China Sea to harass and impede the USNS Impeccable, a special mission military survey ship. In the incident that occurred 120 km from Hainan, the fishing vessels were accompanied by two maritime law enforcement ships and at least one Chinese naval vessel. Shortly thereafter, Yu-zheng 311, China‘s largest fishery enforcement vessel, deployed off the coast of the Philippines after that country passed legislation to formalize its off-shore claims to several islets in the South China Sea. In June 2009, Vietnam protested abusive treatment of its fishermen by Chinese fishery enforcement authorities. That same month, the Indonesian Navy seized eight Chinese fishing vessels and detained 75 Chinese fishermen, who were fishing illegally in the country‘s EEZ.[4] Fifty-nine of the fishermen were released to China the following month. The exercise of Chinese jurisdiction in its neighbors EEZs is incompatible with the original design and structure of UNCLOS to protect food security for developing coastal states. This lost dimension of the maritime disputes has not been recognized, but it completely upends Chinese claims. The dispute should be settled in light of the food security impetus that drove the initial UNCLOS negotiations. China‘s fishing activities in the South China Sea are permissible only to the extent that they have been authorized by the coastal State to land surplus catch (SC). VI.Conclusion Today, the benefits brought by EEZs are evident. Ninety-nine percent of the world‘s fisheries are conducted within some coastal State‘s jurisdiction. Archipelagic States and large nations endowed with long coastlines naturally acquire the greatest areas under the EEZ regime. Among the major beneficiaries of the EEZ regime are the United States, France, Indonesia, New Zealand, Australia and the Russian Federation. Using normal baselines for calculation, Vietnam has an EEZ of 210,000 m2 or more than 417,000 km2 (Limits in the Seas No. 46). With exclusive rights come responsibilities and obligations, and Vietnamese law provides for foreign access to the country‘s EEZ based on treaties concluded between Vietnam and ―interested parties.‖[5] Each coastal State is to determine the total allowable catch for each fish species within its EEZ, and estimate its harvest capacity and what it can and cannot catch. These States should give access to other States, particularly neighboring States and land-locked countries, to the surplus of the allowable catch. In the South China Sea, Vietnam should consider whether it has jurisdiction over surplus catch that might be shared with the Chinese fishing community. Such access must be done in accordance with the conservation measures established in the laws and regulations of Vietnam. In turn, Vietnam is obligated to manage the fisheries, and adopt measures to prevent and limit pollution and to facilitate marine scientific research in

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its EEZs. This balanced structure should govern the relationship between coastal fishermen of Vietnam and distant-water fishermen from China (A/CONF.62/SR.185). The issue of subsistence fishing is one element of a broader mosaic of thinking in terms of human security, rather than purely national security. In this respect, the push by developing countries during UNCLOS negotiations for creation of the EEZ was prescient, as it foretold the rise in the 1990s of human security as a basis for policy.[6] For its part, China has a legal obligation to comply with the terms of UNCLOS, including regulations by Vietnam, Malaysia, Brunei, the Philippines, and Indonesia, within their respective EEZs. The doctrine of pacta sunt servanda (―agreements must be kept‖) is a brocard, or cornerstone principle of international law, and is reflected in article 26 of the Vienna Convention on the Law of Treaties.[7] For all its fanfare, the rise of the New China is incomplete without commitment to a rules-based order of the oceans. ————– * Dr. James Kraska is a Professor of International Law at the Stockton Center for the Study of International Law, U.S. Naval War College. He is also a Distinguished Fellow at the Law of the Sea Institute, University of California Berkeley School of Law, and a Senior Fellow at the Center for Oceans Law and Policy, University of Virginia School of Law. I am indebted to Professor Brian Wilson and the HNSJ editors for their valuable review and comments. [1] Richard A. Falk and Hilary Charlesworth, International Law and World Order, 4th ed. (2006). [2] 50 FAO Y.B. of Fishery Statistics 1980 (1981). [3] ―Saigon Reports Clash with China,‖ N.Y Times, Jan. 19, 1974 and ―Saigon Says Chinese Control Islands, But Refuses to Admit Complete Defeat,‖ N.Y. Times, Jan. 21, 1974. See also, ―The World: Storm in the South China Sea,‖ Time Magazine, Feb. 4, 1974. [4] Zhang Jin, ―Indonesia Told to Release Chinese Fishermen,‖ China Daily, June 29, 2009. [5] ―Government Decree on Foreign Fishing Ships Operating in Vietnamese Maritime‖ Zones (Decree No. 31-CP), Socialist Republic of Vietnam, 1980, reprinted in FBIS-APA, 19 March 1980, at K1. [6] Louise Doswald-Beck, Human Security: Can It be Attained?, 97 Am. Soc‘y Int‘l. L. Proc. 93, 93-95 (2003). [7] See also Hans Wehberg, Pacta Sunt Servanda, 53 Am. J. Int‘l L. 775 (1959) (deep moral and religious influence of the principle in ordering international society).

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China Details Argument in South China Sea Dispute: China’s Position Paper and Philippine Diplomatic Gains Published December 7, 2014 by Felix K. Chang Yesterday, China‘s foreign ministry released a position paper related to its maritime dispute with the Philippines in the South China Sea. The paper laid out the justification for China‘s refusal to take part in the arbitration proceedings that the Philippines initiated at the Permanent Court of Arbitration in January 2013. It comes a week before the court‘s six-month deadline for a response from China. While China‘s refusal to participate should surprise no one, the paper detailed three broad reasons why it chose not to:

China claimed that the ―subject-matter‖ that the Philippines submitted for arbitration is beyond the scope of the United Nations Convention on the Law of the Sea and, thus, the jurisdiction of the Permanent Court of Arbitration. In short, China argued that the court can hardly arbitrate China‘s claims, when the extent of China‘s territorial sovereignty in the South China Sea has not yet been determined. (Ironically, in bringing the ―subject-matter‖ to court, the Philippines hoped to compel China into explaining the basis for its claims under the Convention—something that it has been reluctant to do.)

China claimed that the Philippines had violated its earlier agreements with Beijing as well as the Conduct of Parties in the South China Sea (the oft-mentioned ―code of conduct‖), when it unilaterally initiated the arbitration proceedings. China argued that in those agreements the Philippines pledged itself to resolve the maritime disputes through negotiation, a process that involves consent, which China clearly did not give.

China claimed that, in any case, it was not bound by any arbitration related to the Convention. It reminded observers that in 2006 China filed a declaration with the United Nations in which it exempted itself from compulsory arbitration and other dispute settlement procedures.`

Beijing‘s position paper also appeared to lay the groundwork for a rejection of any judgment that the Permanent Court of Arbitration might render. Certainly, over the course of the last year, China has been entrenching (literally) its position on the Spratly Islands in the South China Sea through land reclamation. It has been building up a number of islands, including Johnson South Reef, Hughes Reef,

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Cuateron Reef, and Gaven Reefs. On Fiery Cross Reef, it has expanded what was once a tiny atoll into one capable of supporting an airstrip and a small harbor. Even when Manila brought its case to the Permanent Court of Arbitration, it had to know that it was unlikely to change China‘s behavior. So, what did the Philippines achieve? First, it forced China to further delineate its views on the South China Sea, a feat that years of Southeast Asian prodding had failed to do. Second, it helped to change the tenor of the maritime dispute in the region. By forcing China to put its claims into sharper relief, the Philippines helped to show its fellow Southeast Asian claimants just how little room they have to negotiate with China. Even Malaysia and Indonesia, which had been the most reticent about confronting China, have become firmer in asserting their own claims. Finally, and most tangibly, the Philippines gained greater cooperation with other ASEAN countries, most notably Vietnam. In November, Vietnam‘s two Gepard-class guided-missile frigates, the newest and largest ships in the Vietnamese navy, visited Manila for the first time. Though Southeast Asia is still far from taking a unified stand, the visit was a signal that the Philippines may not stand alone. It is remarkable what the Philippines has achieved diplomatically, given the limited resources at its disposal and the disproportionate power of China. But diplomacy alone cannot change the facts on the ground. China knows that. As an op-ed from China‘s Xinhua‘s news agency, released alongside Beijing‘s position paper, cautioned: ―it is advisable that the Philippines return as soon as possible to the right track of negotiation to settle the disputes.‖ The ―right track‖ apparently means acceptance of China‘s preference for bilateral negotiations. But the editorial went onto state that China ―will not give up an inch of its land.‖ That suggests that the best the Philippines (or any of the South China Sea claimants) can hope for is cooperation with China ―to manage resources and protect free navigation in the South China Sea.‖[1] That is hardly an enticement to the Philippines to negotiate. --- [1] Huang Yinjiazi, ―Commentary: Manila's unilateral move on South China Sea dispute unhelpful,‖ Xinhua, Dec. 7, 2014.