by ROBERTO TOFANI

Vietnamese Prime Minister, Nguyen Tan Dung, will deliver the keynote address at the 12th IISS Asia Security Summit(1), also called the Shangri-La Dialogue, which will convene in Singapore from 31 May to Jun 2.

The meeting is “a Track One security summit which brings together defense ministers, armed forces’ commanders, and the most senior defense officials, together with distinguished non-governmental experts from universities, think-tanks, the media and the private sector from all states with significant stakes in the security of the Asia-Pacific to engage in high-level international defense diplomacy on key regional security concerns,” according to the IISS website.

The Shangri-La Dialogue is widely recognised as the main inter-governmental regional security summit. Moreover, over the years “it has become an essential part of the institutional framework for Asia-Pacific security,” it is specified.

“We are delighted that Prime Minster Nguyen Tan Dung will be speaking at the Shangri-La Dialogue. His participation and the perspective of Vietnam on current defense issues and conflict resolution opportunities will add significant weight to the crucial discussions about regional security which will take place there,” Dr. John Chipman, Director-General and CEO of the IISS, said.

The Socialist Republic is often described as an Asian tiger, a developing country that has been able to achieve positive results, especially in poverty reduction, economic growth and in an increase in literacy rates. Furthermore, together with other nine members (Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore and Thailand), Vietnam shares the common vision of an ASEAN (Association of Southeast Asian Nations) community, the base for a stronger regionalism.

Vietnam is increasingly an active member of the Association and a strategic regional player. For these reasons, and especially after a year during which the maritime disputes in the South China Sea have been assuming a dangerous profile, there are high expectations from Dung’s keynote address.

In 2012, the Shangri-La Dialogue was opened by the Indonesian president, Susilo Bambang Yudhoyono, whose government has been acting as mediator especially at a regional level between China and ASEAN claimants in the dispute (Brunei, Malaysia, the Philippines and Vietnam). Among other security issues, Yudhoyono strongly underlined the dispute in the South China Sea, which more and more has implications both on a regional and international level. “We can accept that the overlapping territorial and jurisdictional claims are still a long way from being resolved. However– the Indonesian president said–even without waiting for a resolution over territorial disputes, we can still find ways to transform the potential conflicts in the South China Sea into potential cooperation. We need to pick up speed. It took ten years for the Guidelines of the Declaration of Conduct (DOC) in the South China Sea to be completed. It should not take another ten years for the ASEAN-China Working Group to complete the Code of Conduct; we expect them to move on speedily with their task.”

But this year, despite the fact that the South China Sea issue is a flashpoint, it is not on the formal agenda of the three-day summit and none of the five plenary sessions will focus on that or on the protection of the maritime freedom as happened in 2012.

During the upcoming Shangri-La Dialogue, the five plenary sessions will focus on: the ‘US approach to regional security’; ‘Defending National interests (Preventing conflict)’; ‘Military Modernisation and Strategic Transparency’; ‘New Trends in Asia-Pacific Security’ and ‘Advancing Defence Cooperation in the Asia-Pacific’.

The South China Sea issue “is likely to be raised when it is of relevance to regional security issues discussed in plenary session. It is up to Prime Minister Nguyen Tan Dung in the opening keynote dinner address to raise the South China Sea issue and to present not only Vietnam’s view but practical suggestions for the way ahead,” Carlyle A. Thayer of the University of New South Wales at the Australian Defense Force Academy in Canberra (Australia) stated in a recent briefing paper. This means that if the Prime Minister sidesteps the South China Sea issue, discussions are likely to turn to other security issues.

Recently, Chinese Foreign Minister Wang Li agreed to start again talks with ASEAN on the legally binding Code of Conduct (COC) and setting up an Eminent Persons Group (EPG) to complement government-to-government talks. The announcement came after a South East Asian tour during which Vietnam and the Philippines were omitted by the Chinese Foreign Minister. “Minister Wang is obviously trying to detect differences within ASEAN and to exert subtle pressure to isolate the Philippines, if not Vietnam,” explained Prof. Thayer.

For many observers, the maritime dispute in what the Vietnamese call the East Sea, involving four countries (Brunei, Malaysia, the Philippines and Taiwan), is exacerbating the relationships between Beijing and Hanoi, thus risking to undermine the stability in the region. On May 15, Vietnam’s Ministry of Foreign Affairs protested against China’s unilateral implementation of a ban on fishing in the South China Sea. “China’s unilateral implementation of the ban on fishing in the East Sea in 2013, which encompasses some portions of Vietnam’s waters, violates Vietnam’s sovereignty over Hoang Sa (Paracel) archipelago, its sovereign rights and jurisdiction over its exclusive economic zone and continental shelf under the 1982 United Nations Convention on the Law of the Sea,” Foreign Ministry spokesperson Luong Thanh Nghi said.

This announcement was made during the four-day visit by the Vietnamese Prime Minister to Russia, where he also inspected the testing progress of a Kilo-class submarine, which Vietnam has contracted to buy from Moscow. This is seen as a step in the effort to counterbalance China’s expanding maritime influence in the region.

The security summit thus comes at a significant moment, when the two parties have the opportunity to dialogue on the possibility of finalizing an agenda on which path to follow over the next several months. With his keynote address, which he will make in the presence of, among others, newly appointed US Secretary of Defense Chuck Hagel, Dung has a crucial opportunity to clarify Vietnam’s position and goals regarding the South China Sea issue.

Notes

1 – The International Institute for Strategic Studies (IISS) was founded in the UK in 1958 with a focus on nuclear deterrence and arms control. Today, it is also renowned for its annual Military Balance assessment of countries’ armed forces and for its high-powered security summits, including the Shangri-La Dialogue.

• Cambodia Highlights Challenges to U.S. Asia Pivot
• Mar cinese meridionale – Le contese tra Cina e Vietnam minano la stabilita’ regionale
• Economia – Tra la stasi globale ad emergere e’ il continente asiatico
• EU ASEAN business: it’s time to act

Roberto Tofani is a freelance journalist and analyst covering South East Asia. He is also the co-founder of PlanetNext, an association of journalists committed to the concept of “information for change” and editor of Sudestasiatico.com. 

On May 11, Taipei issued a 72-hour ultimatum which expired at midnight on May 14. The government demanded that four conditions be met otherwise it would introduce sanctions, including those that would affect Filipino workers seeking employment in Taiwan. When the ultimatum was issued, there was already significant pressure on the government from legislators, public opinion, and both major parties. Kuomintang (KMT) lawmakers denouncing shooting as an act of war and a Democratic Progressive Party (DPP) legislator burning the Philippines national flag during a protest in front of the Manila Economic and Cultural Office (MECO, the Philippines unofficial embassy in Taipei) are just some of the more jingoist attitudes on view recently in Taiwan.

This does not mean that the government should disregard the public outrage in Taiwan over PCG’s conduct. Whatever happened on 9 May in Balintang Channel, a 15-ton fishing boat with a 4-men crew does not seem to represent a threat that would justify the intensive fire that hit the boat 40-50 times according to various reports. Indeed, the investigators from the Phillipnes are contemplating that the PCG might have violated rules of engagement. Furthermore, use of force against unarmed vessels is problematic under international law. Ultimately, the video recording that was allegedly made by the PCG vessel crew may confirm Manila’s version, but since it has not been released yet, speculation mounts and the damage has been already done.

Taipei’s ultimatum has passed and a delayed apology eventually came. However, it was then rejected as insincere and the Taiwanese government’s sanctions came into effect. In two waves, the Ma Yingjeou government introduced 11 measures that include the suspension of hiring Filipino workers, a travel warning discouraging Taiwanese to travel to the Philippines, and the announcement of forthcoming military exercises in the disputed area. The DPP opposition added further oil to the fire by demanding even harsher actions. Other retaliatory measures included Taipei City Government’s retraction of an invitation to the Philippines team to compete in the dragon boat festival race and the suspension of exchanges with sister cities in the Philippines.

The Ministry of Foreign Affairs did not show any diplomatic subtlety when it displayed pictures on its homepage in both Chinese and English bluntly accusing the Philippines of cold-blooded murder. The Philippines’ response, has not been flawless either. If the government wanted to defuse tensions, explaining absence of a formal apology by its adherence to “One China” principle, meaning that Taiwan as Republic of China is not recognized by the Philippines and thus does not deserve formal apology, is not the best way to achieve that.

Screenshot of ROC’s Ministry of Foreign Affairs homepage (Accessed on 20 May 2013)

The actions of the Ma Ying-jeou administration, the KMT and the DPP, can all be interpreted as courting  popular support. President Ma, with his 14 percent low approval rating, seized the chance to divert attention from criticism regarding his government’s handling of the economy, disregarding Taiwan’s international image in the process for the sake of domestic political posturing. This is not unusual in Taiwan’s politics, where foreign policy issues are usually not the most prominent ones for the electorate or politicians. The DPP for its part wants to take some credit for acting tough, partly compelled by the fact that the victim’s community was based in the Pingtung, an area with strong support for the DPP. In short, both sides of Taiwan’s political sphere can be blamed for heating up tensions that started with a tragic death.

There is a darker side to the story. Many western visitors and expatriates frequently attest  to the kindness and hospitality of Taiwanese towards foreigners; something that Taiwanese themselves take great pride in saying. Yet, this courtesy appears more likely to be extended to westerners. Racist or xenophobic attitudes towards workers from Southeast Asian countries are common and the current crisis has unleashed numerous examples of this behaviour. Foreign workers are reported as being requested to reveal their nationality in markets or shops and are refused service if they are from the Philippines. Taipei Times quoted a worker from Cambodia as saying, “I’ve not been attacked, because I’m from Cambodia, but I don’t feel comfortable when people keep asking me whether I’m from the Philippines when I’m just going to buy lunch.” On 16 May, a Filipino worker was attacked by four men and beaten with iron sticks and baseball bats in Tainan. Although it appears to be isolated incident, reports about verbal harassment are more frequent. And those attitudes may be well reflected at the political level. Philip Bowring argues in his piece published in the South China Morning Post that Taiwan’s reaction is driven by Han chauvinism and adds (referring to Taipei’s displeasure with an unofficial apology) that “[For] the Han chauvinists, an apology from the president of the Philippines is not enough. The Filipinos must grovel, be reminded that they, like Malays generally, are the serfs of the region.”

Political posturing is one thing, picking on isolated vulnerable individuals just because they are from a country in dispute with their host is another. Yet, they are not disconnected. Taiwanese politicians and media that jumped on the boat of nationalist rhetoric, should understand that flexing their muscles externally may result in xenophobic actions at home. Fortunately, politicians from both sides, including President Ma and Taipei Mayor Hau, were quick to urge the public not to vent anger against the 87,154 Philippines nationals that reside in Taiwan along with almost 200,000 Indonesians, 100,000 Vietnamese and over 60,000 Thais according to official sources.

This article was originally written for China Policy Institute and posted on author’s personal blog Taiwan in Perspective.

East and Southeast Asian waters are well known to be the subject of a multitude of territorial claims. One of many disputes that has escalated recently is conflict over Scarborough Shoal between the Philippines and China (PRC) – itself a part of larger dispute over South China Sea and tensions between Japan and the PRC over the Diaoyutai/Senkaku islands in East China Sea. These disputes do not necessarily involve physical control over specific islands, and delimitation of Exclusive Economic Zones (EEZ) is often times the real issue at stake. The EEZ is a 200 naval mile (nm) zone extending from coastline (or from straight baselines) within which – according to UN Convention on the Law of the Sea – the respective state has exclusive rights to exploit natural resources in the water and under the seabed. The most recent conflict between the Philippines and Taiwan, which erupted on May 9 and continues to this day, is a case of the latter. It is also evidence that despite the significance of natural resources such as natural gas and crude oil, the most common source of tension remains disputes over fishing rights.

Here is what happened: On May 9 Taiwanese fishing boat Kuang Ta Hsing No. 28 (廣大興28號) was fired upon by Philippine Coast Guard (PCG) vessel MCS-3001, resulting in the death of Hung Shih-cheng (洪石成), 65. Not surprisingly, versions of the event on both sides differ considerably. Location of the incident is less disputed: The Philippine’s Bureau of Fisheries and Aquatic Resources (BFAR) locates the incident 43 nm east of Balintang Island and 170 nm southeast from Taiwan’s southernmost tip Cape Eluanbi (鵝鑾鼻), while Taiwan’s Coast Guard Administration map and other sources locate the incident at roughly 170 nm from Taiwan (Google maps). PCG/BFAR claim that they intended to board and inspect two vessels suspected of fishing illegally in the Philippines’ EEZ. The Taiwanese fishermen did not respond calls to stop and prepare for boarding and Kuang Ta Hsing No. 28 allegedly attempted to ram the MCS-3001. The shooting was therefore an act of self-defense. Taiwan’s Ministry of Justice released report that claimed there is no damage to Kuang Ta Hsing No. 28 that would indicate a collision with the PCG ship (Manila does not claim there was an actual collision) and that the Taiwanese boat has 45 bullet holes, some indicating the use of heavy calibre weapons. The argument is that PCG used excessive force and that international law standards (particularly Article 73 of UNCLOS) does not justify the use of weapons against unarmed boats. President Ma Ying-jeou went as far as calling the incident “cold-blooded murder.” The situation as of 18 May is that there are two parallel investigations, Taiwan’s team is returning from Philippines without success, while the Philippines National Bureau of Investigation is yet to embark on a visit to Taiwan to examine damage to the fishing boat.

At this point the results of the investigation will not really matter. First, since there is no joint investigation either version can easily be refuted as being biased. Second, politicians and public discourse on both sides have already established who is “right” and who is “wrong”. Thus, even the most impartially conducted joint investigation may not be enough to challenge established narratives about the incident. Third, the truth will be difficult to establish beyond any doubt, because the witnesses directly involved on both sides have reason to distort the facts.

The nature of the dispute does not offer much space for compromise. The Philippines argue that if a Taiwanese ship is located within 43 nm from nearest Philippines territory – i.e. Balintang Island – then it is clearly operating in it’s EEZ. Moreover, there are other islands north of the incident location that are still part of Philippines (Batanes Province). Taiwan’s position is that since Taiwan has the right to establish a 200 nm EEZ (the fishing boat was within this limit) then claims overlap and in the absence of an agreement, Taiwanese fishermen can fish there. The Taiwanese boat was apparently outside of Taiwan’s temporary enforcement line, but that merely means that it was outside the area within which the Taiwanese coast guard assists Taiwanese vessels. In addition, some Taiwanese experts argue that Taiwanese fishermen have traditional rights based on UNCLOS Article 51 to operate even within Philippine archipelagic waters. Although it may be argued that Taiwan is not a signatory of UNCLOS (for  unrelated reasons connected to the disputed sovereign status of the ROC on Taiwan), the Philippines is a signatory and should not deny other states the same rights. Yet, Taiwan’s interpretation of UNCLOS provisions seems to be too relaxed: If there was an arbitration (which there will not), it is prudent to assume that the line separating Taiwan and the Philippines’ EEZ would be closer to Taiwan in Bashi channel rather than much further south in Balintang channel where the incident occurred.

In the aftermath of the incident, Taipei – hard pressed by a domestic outcry – issued a set of demands and set 72 hours ultimatum (that expired by midnight GMT+7 on 14 May) for those demands to be met. Taipei demanded that Manila

• issue a formal apology;
• compensate the victims of the shooting;
• punish the perpetrators of the killing;
• begin bilateral fishery agreement talks as soon as possible.

The last point indicates that Taiwan’s government decided to seize the opportunity and use the incident to press Manila to negotiate an agreement. The latter is reluctant to enter into talks that would provoke an angry reaction in Beijing, which would add to already problematic relations between the PRC and Philippines. Manila is in a less favourable position than Japan which can better withstand Beijing’s displeasure over making bilateral agreements with Taiwan (thus recognizing its de facto independence). Thus, Taiwan’s government seeks to kill two birds with one stone: delimitation of maritime border and a diplomatic success in confirming its de facto status.

The Philippines is reluctant to play ball. Not only does it want to avoid unnecessary confrontation with China, it lacks incentives to make such concessions. Japan’s fishery agreement with Taiwan put Beijing in the position of troublemaker, and Tokyo was therefore willing to make concessions, despite domestic opposition from Okinawan fishermen. Yet, in this case such motivation is absent on Manila’s side. Therefore, Taiwan’s attempt to push the Philippines does not have much chance of producing a desirable outcome. Unless of course, Taiwan plans to use its superior navy to force Manila into accepting de facto freedom of fishing for Taiwanese fishermen in the disputed area. However, if this is on the minds of decision makers in Taipei, they must be also aware that the U.S. would not take lightly deployment of U.S.-made arms against its treaty ally. Some more hawkish individuals may indeed consider such options but overall it should not be considered likely, because benefits (securing the fishing area) would be outweighed by the costs, i.e. an irritated U.S. and an international image of being a bully.

This article was originally written for China Policy Institute and posted on author’s personal blog Taiwan in Perspective.

Additional reading:

MaxDefense: Fishingboat Shooting Incident: Is Taiwan Over-reacting?

Michael Turton’s roundups: No. 1, No. 2, No. 3, No. 4, and No. 5

Ben Goren: Why Context Matters In Taiwan-Philippines Maritime Tragedy

J. Michael Cole: How Taiwan Bungled the Philippine Crisis

by ROBERTO TOFANI

[Part 1 here]

Discussions and debates during the one-day workshop – ‘Sovereignty over Paracel and Spratly Archipelagos: Historical and Legal Aspects’ – held in the Quang Ngai province at the end of April and organized by the Pham Van Dong University focused mostly on two topics related to the South China Sea issue: historical and legal aspects over the sovereignty of the Paracel (Hoang Sa) and Spratly (Truong Sa) archipelagos. A flashpoint that is involving more and more international actors with implications not solely at a regional level.

In presenting their arguments, a number of scholars and academics, both Vietnamese and foreign, stressed the importance of the role the international community could and should play in this context. For this reason, what was emphasized the most, particularly from the Vietnamese side, was the importance of providing historical proof of whose claims are valid and the unwillingness by the Chinese authorities to respect international law, underlining their “illegal occupations” of the islands and rocks of the two archipelagos.

Historical evidence
Regarding the collection of historical evidence, the major point that emerged from the workshop was the clear proof of the jurisdiction exercised by the Nguyen Dynasty who ruled Dai Viet (The Great Viet) from 1802 to 1945. (1)

“The Nguyen Dynasty’s Official Document–administrative documents of the Vietnamese Feudal Royal Dynasties under the reign of the Nguyen Kings–feature the King’s red royal remarks of various types,” as stated in a recent Vietnamese publication: ‘Collection of Official Documents of the Nguyen Dynasty on the exercise of the Sovereignty of Vietnam over Hoang Sa (Paracel) and Truong Sa (Spratlys)archipelagos’, that is available in four languages: Vietnamese, English, French and Chinese. According to the National Archive centre I, State Records Management and Archives Department of Viet Nam, of the Ministry of Internal Affairs, “the Official Documents of the Nguyen Dynasty are categorized into 734 volumes with thousands of unit documents.”

The Nguyen Dynasty’s Official Document is important in terms of both form and substance. With regard to form, “these documents are original with the direct order from the Kings,” which makes it highly valuable from a legal standpoint. With regard to its substance, they “provide valuable information concerning the administration of the country in different aspects, including the exercise of sovereignty, which is of particular interest […] Although a number of the documents have been lost, the collected ones are more than enough to show the broad picture of the exercise of sovereignty over the two archipelagos by the Nguyen Dynasty.”

As regards the Paracels the evidence is as follows: “During the period when Vietnam was divided into two lordships under King Le—write Jonathan London and Vu Quang Viet (2)–the analyst Le Qui Don wrote in 1774 in his Phu bien tap luc recorded annual trips by Nguyen Lord of the South to the Paracels. When Vietnam was unified, the first King, King Gia Long declared sovereign claims over the Paracels in 1816. Gia Long and two subsequent Kings demonstrated effective sovereignty and control over the islands through repeated and well-documented official visits and reports over five decades. King Minh Mang annually from 1835-1838 sent troops to the Paracels, so did King Thieu Tri until 1854. These continuous actions clearly signify the effective control over the Paracels.” (3)

An illegal occupation
The Republic of China (ROC) made its first claims to the Paracels in 1932 in a written communiqué to the French. From 1949 to 1973, the People’s Republic of China (PRC) maintained a physical presence on only one feature in the South China Sea, the Amphitrite group (Nhom Tuyen Duc) in the eastern Paracel Islands (Quan Dao Hoang Sa). In January 1974, Chinese naval forces engaged and defeated the armed forces of the Republic of Viet Nam (Viet Nam Cong Hoa) and occupied the Crescent group (Dao Nguyet Thiem) of islands in the western Paracels, over which Vietnam, China and Taiwan have laid claims.

Regarding the Spratly islands, in March 1988, Chinese forces engaged naval forces of the Socialist Republic of Vietnam and took control of the Johnson South (Da Gac Ma) and Fiery Cross (Da Chu Thap) reefs. Between 1994 and 1995 Beijing took control also of the unoccupied Mischief Reef (Panganiban or Da Van Khanh) belonging to the Philippines.

“China has also occupied McKennan Reef (Chigua), Gaven Reef (Burgos) Subi Reef (Zamora), Johnson Reef (Da Gac Ma), Cuarteron Reef (Bai Chau Vien/Dao Chau Vien) and Fiery Cross Reef. During the 1990s China and Vietnam moved to take control of as many of the unoccupied features they could,” Prof. Carlyle A. Thayer, of the University of New South Wales at the Australian Defence Force Academy in Canberra (Australia), writes in his research paper presented at the workshop. (4)

These two military actions, followed by more recent administrative and political actions promoted by Chinese authorities, like raising the administrative status of Sansha City from country-level to prefecture level with continuing jurisdiction over the Paracel (Nansha) and Spratly (Xisha) and Macclesfield Bank (Zhongsha), “are part of calculated actions to take control and occupy the South China Sea,” Prof. Do Tien Sam from the Hanoi’s Institute of Chinese Studies stated. This despite the fact that the Chinese decision to raise Sansha’s status has also been described as a reaction to the Vietnamese National Assembly’s decision to adopt the Law of the Sea in June 2012.

“Taking control of the South China Sea is a long aim for Beijing,” Prof. Sam remarked, convinced that “every Chinese activity in the region is taken to deter the other claimants—Brunei, Malaysia, Philippines, Taiwan and Vietnam.” In Prof. Sam’s opinion, China not only has violated Vietnamese sovereignty and the agreements reached with Vietnam in 2011, when Beijing and Hanoi reaffirmed their commitment to deal with the South China Sea dispute “through negotiations and peaceful friendly consultations,” but most importantly the “Declaration on Conduct of Parties in the South China Sea (DOC).”

One consensus that emerged among the majority of participants is that Vietnam should defend its positions with the support of the international community. By contrast, Beijing made quite clear that there is no need to internationalise the South China Sea issue, remarking that every single dispute has to be discussed between the claimants at a bilateral level. It is quite possible that the Vietnamese authorities are still uncertain about their option to play the international card in a game where China is becoming more assertive and inflexible.

Notes

1. From 1858 to 1945 the Nguyen Dynasty ruled under the French occupation.
2. Dr. Jonathan London is a professor at the City University of Hong Kong. Dr. Vu Quang Viet is an independent analyst and formerly a statistical analyst at the United Nations.
3. ‘Viet Nam, China and the conflict in the Southeast Asian Sea’.
4. ‘The Philippines’ Claim to the UNCLOS Arbitral Tribunal: Implications for Viet Nam’.

Roberto Tofani is a freelance journalist and analyst covering South East Asia. He is also the co-founder of PlanetNext, an association of journalists committed to the concept of “information for change” and editor of Sudestasiatico.com. 

by ROBERTO TOFANI

Quang Ngai – “In South China Sea—East Sea as referred by the Vietnamese–China is unable to present historical evidence of its claim. Its territory was historically limited to Hainan island, thus Chinese used force to illegally occupy rocks, features and islands in the Paracel and Spratly archipelagos”. With these remarks, Prof. Pham Dang Phuoc, Rector of Pham Van Dong University, closed the workshop ‘Sovereignty over Paracel and Spratly Archipelagos: Historical and Legal Aspects’ held in Quang Ngai at the end of April.

Participants, including scholars and researchers from various countries, shared the view that Vietnam can boast various and substantial documents and evidence on the sovereignty over Paracel (Hoang Sa) and Spratly (Truong Sa) archipelagos.

From 1949 to 1973, the People’s Republic of China (PRC) maintained a physical presence on only one feature in the South China Sea, the Amphitrite group (Nhom Tuyen Duc) in the eastern Paracel Islands (Quan Dao Hoang Sa). “Since 1973—writes Prof. Carlyle A. Thayer of the University of New South Wales at the Australian Defence Force Academy in Canberra (Australia)–the PRC has embarked on a prolonged campaign to assert control over the South China Sea basing its claims to ‘indisputable sovereignty’ and historical rights on those of its predecessor the Republic of China (ROC).” (1)

In May 2009 China officially tabled a map with the UN Commission on the Limit of the Continental Shelf containing nine-dash lines thus stating that it had “indisputable sovereignty” over the Paracel and Spratly archipelagos and their “adjacent waters” and that it had “sovereign rights and jurisdiction” over the “surrounding waters.” The Chinese claim was based on one previously issued by ROC in 1947. “New historical evidence seems to indicate that the 1947 map was drawn up by the ROC’s Inspection Committee for Land and Waters Maps in 1933. Because the Inspection Committee had never carried out and did not have the means to carry out a proper survey it copied existing British Admiralty maps,” Prof. Thayer explains. Errors in the British maps (since corrected) were carried over and incorporated into ROC maps. (2)

Moreover, up to today China has never provided a legal clarification of its territorial claims in the South China Sea, basing its maritime claims on its land sovereignty. However, “many of these land features would likely not meet qualifications set by UNCLOS to serve as a base for Exclusive Economic Zone (EEZ) and continental shelves,” as underlined in a recent report of the International Crises Group (ICG – ‘Stirring up the South China Sea II: Regional Responses‘). Hence, it’s becoming more and more important to establish and clarify to the UN Commission on the Limits of Continental Shelf the difference between islands and low tide elevations or others rocks which are always under the water even at low tide. In fact, as established by Article 121 of the UNCLOS, “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.”

International Law 
But The South China Sea dispute was also fuelled by the different interpretation and application of the international law. In such a context, according to Nguyen Thi Lan Anh from the Diplomatic Academy of Vietnam (3), there are three set of rules that need to be taken into account.

The first is the law concerning territorial acquisition which originated in the West and was crystallised under customary international law. Under international law concerning acquisition, a title to territory can be obtained through five modes, namely occupation, prescription, cession, conquest and accession. Given the fact that these rules originated from Western countries, “it is arguable that the littoral states did not have sufficient knowledge and their claims were not made fully in accordance with international law concerning acquisition,” Lan Anh writes. Vietnam argued that the exploitation activities of the Vietnamese kings–i.e., the establishment of the Bac Hai and Hoang Sa company and the visit of their Gia Long King to the Paracels in 1816, during which he declared the possession of the archipelago by an official ceremony and by hoisting the Vietnamese flag–were themselves evidence of their sovereignty. “Unfortunately, these activities were not followed by an official declaration to the world,” the Vietnamese diplomat explains.

The second set of rules concerning the dispute in South China Sea dispute derives from the law of the sea codified in customary international law and three conferences on the law of the sea led by the United Nations. “Accordingly, the role of the islands was emphasized. Islands are not only subjects for territorial claims, but also eligible to generate maritime zone equal to mainland for the owner states,” the Vietnamese diplomat underlines. Establishing the parameters which allow for the definition of the term “island” is important because this empowers states to generate title and entitlement to certain maritime zones.

The final set of rules concerns the law on the dispute settlement. “Based on the sovereignty equality of state, no international judicial body has compulsory jurisdiction to settle a dispute without the consent of states concerned. This rule helps a country easily block the settlement of a dispute by not accepting the jurisdiction of a judicial body,” Lan Anh explains. Furthermore one must remember that there is no enforcement body in the international legal system to enforce judgement given for the South China sea dispute.

Notes

1. ‘The Philippines’ Claims to the UNCLOS Arbitral Tribunal: Implications for Viet Nam’.
2. Bill Hayton, “How a non-existent island became China’s southern most territory”, South China Morning Post, Feb. 9 2013.
3. The views expressed are solely those of the author and not necessarily reflect the position or policies of the Diplomatic Academy.

Roberto Tofani is a freelance journalist and analyst covering South East Asia. He is also the co-founder of PlanetNext, an association of journalists committed to the concept of “information for change” and editor of Sudestasiatico.com. 

South Korea pulled out its last remaining workers from the Kaesong Industrial Complex on May 3, putting the only existing symbol of inter-Korean cooperation in jeopardy. To diffuse tensions, some have called on Seoul to send a diplomatic envoy to North Korea, but others have proposed the restoration of the United States’ strategic nuclear weapons on the peninsula, further alienating Pyongyang. Reconciliation, however, is a distant possibility, and Seoul will have to resort to subtler ways of bringing North Korea back to the negotiating table.

One way would be to engage the Chinese public, as proposed by the column published on the April 10th issue of JoongAng Ilbo. Yoo Sang-cheol, the author of the column and a reporter specializing in Chinese affairs, says North Korea has always been wary of popular Chinese opinions. In August 2004, North Korean leader Kim Jong-il cancelled his visit to Beijing, apparently offended by a Strategy and Management article berating the North for being an “ungrateful neighbor who puts China in a difficult position through its selfish behaviors.” Shortly thereafter, Beijing shut down the decade-old Chinese magazine for spoiling the trip, which had been planned for discussions on resuming the six-party talks, or negotiations aimed at ending North Korea’s nuclear program. In July 2009, Shanghai Media Group was allegedly handed a heavy punishment for airing a documentary mocking the North’s inability to treat “even the simplest condition as a cataract.” And in February this year, Deng Yuwen (鄧聿文), former vice chief editor of China’s Study Times, was forced to step down after writing an op-ed on the Financial Times calling on Beijing to “give up on North Korea.”

Pyongyang seems a likely mastermind behind these cases, as China has less reasons to take such measures than the North does. It’s unclear, though, how Pyongyang may have orchestrated all this. But North Korea’s insecurity — often manifest in the form of paranoiac belligerence — is a well-known fact.

The real question is what North Korea has to fear. According to Yoo, the answer is that Pyongyang is aware of the growing influence the Chinese people have over their government. Unlike previous leaders like Mao and Deng, China’s recent regimes lack the legitimacy and charisma the Communist party once had, rendering themselves more vulnerable to the public’s whims. Former Chinese Premier Wen Jiabao, for instance, cancelled his 2008 summit with then French President Nicolas Sarkozy after the Chinese public was enraged by this call for a “true dialogue” with Dalai Lama, the spiritual leader of China’s longtime menace Tibet. Though press freedom in China has yet to reach the first-world standard, it is a matter of time until opinions will flow freely across the nation.

An army of political pundits have recently speculated that China may be abandoning North Korea soon, following Pyongyang’s torrent of hostile remarks and maneuvers. But given these assumptions are based on scant remarks by Chinese officials, it is too early to tell whether this will be the case.

What is becoming clear, though, is that Chinese people turning against North Korea will be a nightmare scenario for Pyongyang. But rather than exploiting this weakness, South Korea should use it as a leverage to boost media diplomacy with China, eventually engaging the Chinese public into the process of unification.

JS Atago. Ministry of Defense photo.

I recently finished listening to T.X. Hammes on the Midrats podcast for the second time. If you don’t listen to Midrats you should, particularly when they address Asia/Pacific. I think Sal gets Asia wrong at times, but he and Eagle1 ask good questions. They have good guests, and they let their guests talk (sometimes on and on and on…but that’s what you’re there for.) I’ve liked T.X. Hammes ever since I read The Sling and the Stone several years ago. It’s refreshing to hear someone who can move from state vs. non-state asymmetric warfare to a potential confrontation between the United States and China, and the B.S. meter doesn’t move.

Hammes lays out a very good case for a strategy of Offshore Control in this article here [PDF]. To wit: Offshore Control is a strategy, while AirSea Battle is not. Offshore Control advocates the U.S. military to stand off China’s coast and strangle it economically, without strikes on the Chinese mainland, with the theory of victory that China will fold when it’s economy can no longer tolerate war. On the other hand, AirSea Battle advocates carrying the war to the Chinese mainland, with the theory of victory…well, hopefully at some point the Chinese would just realize they were beat and give up. Offshore Control is a strategy tailored to the diminishing resources of the U.S. military, while AirSea Battle requires a large buildup of new weapons systems.

I like Offshore Control, a lot. One of the things I like most about it, that Hammes only briefly alludes to, is that Offshore Control takes into account cultural and other psychological factors. Striking the Chinese mainland in and around major cities will be humiliating to the Chinese Communist Party. There is a chance that the CCP would view such strikes, in view of the Chinese people, as a loss of face that would require escalation. What that escalation is I’d rather not speculate but it obviously wouldn’t be good. Particularly for our allies. On the other hand, keeping a conflict at sea or in the air makes it easier for the Chinese government to hide — but still feel the effect of — damage to China’s ability to wage war. The CCP can tell their people whatever they want about how the war at sea went.

Remember when the Japanese junta didn’t take into account American cultural factors? It went poorly for them. Apples and oranges, of course, but the point is that culture is an often under-appreciated factor in war.

P-1 maritime patrol aircraft.

So how would Offshore Control affect Japan?



It protects Japanese civilians and the Japanese mainland. Unlike AirSea Battle, Offshore Control does not mean offensive strikes on the Chinese mainland. Without those strikes, there is a chance that conflict would not escalate to ground strikes on any country, particularly Japan, and action would be limited to the sea and air. While there is always a chance that China might strike Futenma, Naha, Sasebo, Maizuru, Yokota, Zama,  et al. without provocation, Offshore Control gives the Chinese no urgency to escalate to that level. Which is good, because most of those bases are ringed with civilians, and the Circular Error Probable and quality control of Chinese weapons is probably not all that great.

It’s an easier sell to the Japanese people. Offshore Control is a defensive strategy. It doesn’t involve things that the Japanese public dislikes, such as offensive operations. It doesn’t involve Japan cooperating with a country that will be attacking Chinese soil. It simply involves coordinating defensive operations with a longstanding ally.

It doesn’t freeze China into a military adversary of Japan. China isn’t an enemy of Japan, but it isn’t an ally, either. It’s something new. China is one of Japan’s top three trading partners — if not the top trading partner. That relationship is important to China, and it’s also important to Japan. Let’s be honest: how is China supposed to feel trading with Japan when Japan is actively allying with a country planning strikes on the Chinese mainland? Japan’s relationship with China is complicated enough and doesn’t need the added friction.

Japanese Patriot PAC-3 air defense systems deploy to Okinawa. Via JapanUpdate.com.

Offshore Control doesn’t require a drastic revamping of the SDF. Japan’s role in Offshore Control would be strictly defensive. Japan would be required to defend its own territory, and nothing else. In fact, the SDF’s role in Offshore Control is pretty much the same as it has been for the past sixty years. Due to its long sea border with China, Japan merely defending Japanese territory restricts Chinese freedom of action and contributes to the war effort. Japan can continue focusing on escorting convoys from 1,000 miles out, ballistic missile defense, guarding the various straits with submarines, and generally defending Japanese territory. Precisely what it’s already been doing for decades.

It doesn’t require Japan spending money it doesn’t have. A lot of people see Japan’s increase in defense spending as a good thing. But with Japan’s economy in the doldrums and some of the highest government debt in the First World, it just doesn’t have the money to pursue a meaningful defense buildup. A (tiny) one year increase is a start, but it’s really only a gesture. 

Offshore Control would not drive a defense budget increase and could be done within the existing budget framework. Japan’s roles and missions in Offshore Control would be the same as they have been for the last fifty years, so it’s not unreasonable to assume that the SDF doesn’t need a hydra of new, expensive weapons systems. (Maybe to drive a defensive anti-access/area denial strategy around the Senkakus, but a little money in A2AD goes a long way.)

It doesn’t require Japan to work closely with a U.S. that won’t tell it what the plan is until the war starts. The U.S. has been notoriously tight-lipped about allied participation in AirSea Battle. Under AirSea Battle the war starts and Japan knows…squat about what the U.S. plans to do, and what it’s supposed to do. Maybe the Japanese brass knows. But if I were the average Japanese person on the street, not knowing would make me nervous. By comparison, during the Cold War the average West German had a very good idea what the American V Corps would do if the Warsaw Pact rolled over the border.

It doesn’t require modifying the Japanese constitution. I do think that Japan needs to eventually normalize its status as a country with a natural right to a regular armed forces, but I’m not sure it needs to be done now. To be honest, Abe’s recent statements on aggression and World War II are a bit unsettling, and I’m not sure I want to hand him the keys to the car right now.

Offshore Control is a safe bet for Japan. For once, change is not good.

by ROBERTO TOFANI

With the Vietnamese Law of the Sea taking effect at the beginning of 2013, Hanoi writes another chapter on the maritime dispute in the South China Sea, referred by Vietnamese as the East Sea and by Filipinos as the West Sea.

Adopted on Jun. 21 2012 with 99.8 percent of the vote by the Vietnamese National Assembly, the law should “provides for the baseline, the internal waters, the territorial sea, the contiguous zone, the exclusive economic zone, the continental shelf, islands, the Paracel and Spratly archipelagos and other archipelagos under the sovereignty, sovereign rights and jurisdiction of Viet Nam; operations in Viet Nam’s maritime zones; maritime economic development; the management and protection of the sea and islands,” as established by Article 1 and according to its English version released by the Vietnam News Agency.

Already enshrined in existing laws, like the 2003 Law on National Border, the Law of the Sea reaffirms Vietnam’s sovereignty over islands, including the Paracel (Hoang Sa) and Spratly (Truong Sa) archipelagos.

Moreover, with this additional legal framework Vietnam confirms its aim to solve the “disputes related to the sea and islands with other countries by peaceful means, in conformity with the 1982 United Nations Convention on the Law of the Sea, international law and practices.” “The most important part of Vietnam Law on the Sea is Article 2.2, where the law states that if anything in the law contravenes international law, international law takes precedence,” commented in an e-mail Professor Emeritus Carlyle A. Thayer, from the University of New South Wales, at the Australian Defense Force Academy in Canberra.

In addition, according to Article 4.3, “the State of Viet Nam settles disputes related to the sea and islands with other countries by peaceful means, in conformity with the 1982 United Nations Convention on the Law of the Sea, international law and practices.” UNCLOS, which is often called the “constitution for the oceans”, marked its 30th anniversary last December.

The new Law also establishes that “the Government of Viet Nam exercises nation-wide state management of the sea.” Hence the maritime law must be intended as a framework that covers major principles for sea-related issues, even though the functions of each ministry and agency are not specified therein. “The law stipulates that the Government exercises unified management over sea and islands. Ministries, agencies and localities exercise such management in their own authorized areas,” as explained by Vietnamese Foreign Minister Pham Binh Minh in an interview to local media.

With the aim “to bring into full play the strength of the entire nation and take necessary measures to safeguard the sovereignty, sovereign rights and jurisdiction over the maritime zones, islands and archipelagos,” the Vietnamese authorities underline the necessity to “encourage and safeguard fishery activities conducted by Vietnamese fishermen in Viet Nam’s maritime zones.”

In the disputed area, which is believed to be rich in fossil fuels and is one of the most productive areas for fishery in the region, Vietnamese fishermen have often been blocked or arrested by Chinese personnel patrolling the area that Beijing considers its national territory. Last year in March, 21 Vietnamese fishermen were detained near the Paracel Islands, which are actually controlled by China.

In 1974, naval forces of the People’s Republic of China and Republic of Vietnam (South Vietnam) had a military confrontation, often described as an escalation in the Republic of Vietnam Navy’s efforts to expel Chinese fishing vessels from the vicinity of some of the Paracels. During that battle, the People’s Liberation Navy established permanent control over the Paracel Islands. After the reunification of Vietnam in 1975, the Socialist Republic publicly renewed its claim to the Paracels, with the dispute continuing into the present day.

In fact, after the Vietnamese National Assembly adopted the Law of the Sea, Chinese authorities reacted by raising Sansha’s status to a prefectural-level city that administers the three disputed island groups of Nansha (Spratly Islands), Xisha (Paracel Islands), and Zhongsha (Macclesfield Bank). The new city also covers the three island group’s surrounding waters. On Jun. 22, the National People’s Congress (NPC), China’s top legislature, urged Vietnam to “correct” the law.

“So far China has not tested Vietnam’s law, but the incident last year involving Chinese fishing boats and the cable cutting incident are likely to be repeated,” commented Prof. Thayer. Last year in May, Chinese patrol boats intentionally severed a seismic cable towed by a Vietnamese survey vessel working about 120 miles (193 kilometres) off Vietnam’s shores and hundreds of miles south of China’s Hainan Island. The incident occurred well within Vietnam’s 200 nautical mile (370 km) Exclusive Economic Zone (EEZ), as defined by the Law of the Sea Treaty (signed by both Vietnam and China). Then last December, Chinese fishing vessels accidentally cut the cables of a Vietnam Oil & Gas Group seismic ship doing work in Vietnam-controlled waters of the South China Sea, according to the company’s Chief Executive Officer Do Van Hau, quoted by Bloomberg.

All these incidents and problems are caused in part because China has not clarified the basis of its claim. China nonetheless contends that any foreign company operating in contested waters is plundering Chinese resources. China’s claims to historic rights overlap Vietnam’s claimed Exclusive Economic Zone. This is where the Indian state-run exploration company Oil and Natural Gas Corp (ONGC) has a license. If China clarified the basis of its claim, it would help towards resolving this particular problem. “For example–explained Prof. Thayer–if China was claiming that a feature (island) that it occupied was entitled to a 200 nm EEZ and this EEZ overlapped the area where ONGC is to conduct its business, the matter would be a legal dispute. International law would then enjoin Vietnam from taking action to exploit the resources (oil and gas) until the matter was resolved.”

However, in 2009 Vietnam clarified its territorial claims in its submission to the UN Commission on the Limits of Continental Shelf (CLCS). China immediately protested the submission as a violation of its sovereignty and called on the UN commission to reject it. After almost three months, in August 2009, the Philippines also protested Vietnam’s submissions to the CLCS. Vietnam and Malaysia immediately protested in return the notes by the Philippines and China.

“The submissions to the CLCS by Malaysia and Vietnam arguably clarified the borders of their claims of continental shelf from the mainland,” writes Dr. Tran Truong Thuy, Director of the Centre for South China Sea Studies at the Diplomatic Academy of Vietnam (DAV). But it has to be said that Vietnam hasn’t yet clarified which features are islands under international law and therefore entitled to a 200 nm EEZ and continental shelf, and which features are rocks entitled to a territorial sea of 12 nm.

Apart form national interests, the South China Sea issue needs a solution. At regional level and among the four ASEAN (Association of South East Asia Nations) members—Brunei, Malaysia, the Philippines and Vietnam–the final aim would be to sign a Code of Conduct between China and the Association based on the Declaration on the Conduct of Parties in the South China Sea (DOC) adopted in Cambodia in 2002. According to Dr. Thuy, “Beijing should accept a legally binding regional Code of Conduct–officially endorsed at the 29th ASEAN Ministerial Meeting (Jakarta, July 21–27, 1996)–which would ensure smaller parties from being intimidated and making them more confident to proceed with the cooperative activities in the South China Sea.”

Roberto Tofani is a freelance journalist and analyst covering South East Asia. He is also the co-founder of PlanetNext, an association of journalists committed to the concept of “information for change” and editor of Sudestasiatico.com. 

PLAN aircraft carrier Liaoning. Xinhua photo.

by MIKE YEO

Not exactly unexpected news, but a senior officer with the People’s Liberation Army (PLA) Navy has said that China will have more than one aircraft carrier, and its next aircraft carrier(s) will be larger and carry more aircraft, including more fighters. China has recently completed the refurbishment of the Liaoning, a Kuznetsov-class carrier that was purchased unfinished from Ukraine soon after the turn of the century.

Rear Admiral Song Xue, deputy chief of staff of the PLA Navy, has also revealed that China plans for its future carriers to operate at least two aviation regiments on one carrier, including fighters, reconnaissance aircraft, anti-submarine aircraft, electronic countermeasure (ECM) planes and helicopters. As we have revealed on this blog before, there have already been sightings of what could possibly be China’s future carrier-borne Airborne Early aircraft, based on the Y-7 transport (albeit heavily modified – possibly to fit inside a carrier) and reportedly designated the JZY-01.

So far, only the Shenyang J-15 Flying Shark carrier-borne fighter and the Changhe Z-8 helicopter have been pictured operating on the Liaoning. However, as she’s widely expected to serve mostly as a training carrier, training up a core of naval and air crew, developing tactics and establishing a doctrine in carrier operations, we will probably see more training aircraft such as the Guizhou JT-9 carrier-borne trainer flying from the Liaoning.

As Flightglobal’s Greg Waldron notes, if the PLA Navy were to operate a variety of (larger) aircraft types, it would also mean that it will almost certainly have to look beyond the current Short Take Off But Arrested Recovery (STOBAR) mode of carrier operations and invest in a Catapult Assisted Take-Off But Arrested Recovery (CATOBAR) capability. Liaoning is equipped for STOBAR operations with a ski jump aiding aircraft take offs at the front of her flight deck, but this imposes fuel and payload restrictions on the J-15, limiting the type’s combat effectiveness. More importantly, it prohibits larger aircraft (or aircraft with poorer thrust-weight ratios) from operating from the Liaoning. If China goes down the CATOBAR path, the challenge will then be for China to design and manufacture a working catapult system, as the only other countries operating the CATOBAR system at the moment are the United States, France and Brazil, and the willingness of these countries to transfer CATOBAR technology to China is questionable at best.

Oh, Rear Admiral Song has also said reports that the new carrier is currently being built at shipyards in Shanghai are not accurate. Whether that means that construction of China’s next carrier has yet to begin, or if it is already being built someplace other than Shanghai, he did not say…

Mike Yeo is a Singapore-born, Melbourne-based miiltary aviation photographer. An airpower junkie who blogs/tweest mainly about military aviation in the Asia-Pacific region. Website: www.thebaseleg.com Twitter: @thebaseleg

The US/ROK Nuclear Cooperation Agreement pushed to 2016 (Pic via Stripes)

The United States and South Korea agreed on an extension of the 1972 US-ROK Nonproliferation Agreement, pushing the agreement’s expiration date from 2014 to 2016. South Korea hopes to negotiate a revised document that would allow domestic uranium enrichment and the reprocessing of spent nuclear fuel. Yonhap has the details:

SEOUL, April 24 (Yonhap) — South Korea said Wednesday that it has failed to win U.S. permission to enrich uranium and reprocess spent nuclear fuel in negotiations aimed at renewing a bilateral nuclear cooperation agreement.

Instead, the allies agreed to extend the current agreement by two more years until March 2016, said a senior official at Seoul’s foreign ministry who is privy to the highly sensitive talks with the U.S., following the latest round of negotiations in Washington last week.

“The two sides agreed to extend the current nuclear cooperation agreement by two years to avoid a lapse in the agreement, and the next round of the talks will be held in June,” the official said on condition of anonymity.

Extending the pact will “give Korea and the U.S. more time for close consultations and lay the ground for the two sides to achieve good results in smoothly revising the agreement,” the official said.

Tensions on the Korean Peninsula normally revolve around the Democratic People’s Republic of Korea’s (DPRK) enriching and reprocessing capabilities  This author isn’t sure that US worries over allowing the Republic of Korea (ROK) to reprocess and enrich would push the DPRK to do more than they’re already doing, though it would potentially make the Japanese anxious. The ROK is looking for legitimacy with this issue, and Japan’s been able to escape the US’s shadow to enrich and reprocess their own uranium for decades. The ROK won’t easily bow to US desires, especially when their neighbors have achieved said rights.

The US has pushed this fight into overtime, but the ROK won’t fall without trading a few more blows. If I were the ROK, I’d elude to a potential concession and start asking for cheaper arms acquisitions and more tech sharing. ;-p

(h/t to ROKDrop for being the first to hit my RSS Feed with the Story)