04 November 2015

China Should Be Concerned About the Hague Tribunal & U.S. Admiral, in Beijing, Defends Patrols in South China Sea 4 & 3NOV15

Map showing disputed territory in the South China Sea
THE prc china is a serious threat to the military, political and economic stability of East and Southeast Asia. This ruling by The Hague court is a judicial warning to the prc leadership in Beijing that they are expected to follow the rules of international law and not the nationalistic sentiment of the nation. The U.S. and our allies have the responsibility to "show our flags" in these disputed waters as allowed by UNCLOS to remind the prc they do not decide the law of the sea, international treaties and courts do. From +The Huffington Post and the +NewYorkTimes 

China Should Be Concerned About the Hague Tribunal

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On October 29th, in a unanimous decision, the Permanent Court of Arbitration at The Hague issued its first, preliminary ruling concerning whether the Tribunal has 'jurisdiction' over the issues raised by the Philippines against China's so called 'nine-dash line' in the South China Sea. The Tribunal held that in about half of the Philippines' fifteen claims, it did have jurisdiction. The other claims will be treated as jurisdictional questions fused with the merits of the case, and the Tribunal will be rendering a final award in 2016. The Tribunal's preliminary award on jurisdiction and admissibility should prove to be a clear victory for international law, as well as a clear defeat for Chinese unilateralism.
Given that the award was designed to address threshold issues about jurisdiction, it quickly led to a belief among those in Beijing that The Hague court will eventually be deciding against Chinese interests. Last week, Beijing's vice foreign minister aired similar concerns. Many observers see this as a perfect test case for a rules-based approach to managing future regional conflict. It may well also set the stage for reigning in China's 'unique' interpretation of international maritime law, which ignores nearly universally held concepts of territorial boundaries, Exclusive Economic Zones, and freely navigable international waters.
Had the Hague Tribunal denied itself jurisdiction, it would have legitimized China's effective occupation of the South China Sea under a claim of 'historical rights', based on old historical maps that did not encompass modern maritime law. An adverse ruling would likely have emboldened China to go even further than it already has in the South China Sea and claim rights to other bodies of water, as if they were a natural extension of China's land mass.
Surrounding littoral states would thereafter be forced to pursue a naval arms race as the next best option under concepts of self-help. Japan did just that, in September, with a reinterpretation of the country's post-war constitution to remove limitations on overseas combat. The Japanese Self Defense Forces may now provide limited defense assistance for its allies - a move clearly driven by a concern about China's unilateralism in the South China Sea.
There is no doubt that the arbitration case is taking place within the context of a larger set of diplomatic and regional issues between China and six other parties to the South China Sea dispute. The Tribunal took the position that a portion of those issues (maritime entitlement issues only) can be subject to a compulsory ruling under the UN Convention of the Law on the Sea (UNCLOS). This will mean that UNCLOS, a regime which is referred to as the 'constitution of the seas and oceans', will shape and inform greater regional diplomatic questions which happen to bear little relation to UNCLOS. The Tribunal was thus able to advance the notion that UNCLOS regimes can produce ripple effects that may positively shape grander, unrelated outcomes in regional and international relations.
China must now be concerned about whether, and how much, a ruling against it may spill over to other maritime issues occurring between it and other countries in other seas. This is particularly the case with Japan regarding disputes over the Senkaku/Diaoyu Islands, as well as whether China can proceed with the construction of offshore gas platforms in the East China Sea.
Since the ruling, China has made no change in its posture that the South China Sea is part of its territory. It seems clear, however, that Beijing fully understands the potential impact of international tribunals on its ability to project its power abroad on its own terms, which is why it did not agree to take the matter with the Philippines to The Hague in the first place. This is the first time China is facing international legal scrutiny over its extra territorial activity. The initial Chinese reaction to the ruling reveals that China continues to struggle to come to terms with the operation of compulsory norms and processes of public international law, especially vis-a-vis treaties to which it belongs, such as UNCLOS.
It looks increasingly likely that China will lose in The Hague next year. If so, it is fair to ask whether Beijing will rise to the occasion and be a graceful loser or remain obstinate in the face of overwhelming opposition to its actions in the South China Sea. China's maritime disputes in Asian waters will ultimately prove to be a litmus test for whether China will act as a responsible member of the international community, willing to engage other contestants in a rules-based regime in accordance with established norms of international relations and diplomacy, and consistent with a nation of its importance and stature. This was, and remains, China's challenge.
*Edsel Tupaz is a public interest attorney and legal academic in Manila. Daniel Wagner is CEO of Country Risk Solutions in the U.S.

U.S. Admiral, in Beijing, Defends Patrols in South China Sea

BEIJING — The head of the United States Pacific Command, Adm. Harry B. Harris Jr., said in Beijing on Tuesday that the Navy would continue to conduct freedom of navigation operations similar to one in the South China Sea last week that China criticized.

Speaking to a small audience at the Stanford Center at Peking University, Admiral Harris defended the operation last week, which involved sending a destroyer inside the 12-nautical-mile radius that China claims as its territorial waters around Subi Reef, an artificial island built by the Chinese in the South China Sea.
“We’ve been conducting freedom of navigation operations all over the world for decades, so no one should be surprised by them,” Admiral Harris said. “The South China Sea is not, and will not, be an exception.”
Admiral Harris emphasized that the United States had carried out such operations around the world “while avoiding military conflict, and that remains our goal.”

Admiral Harris arrived in China on Monday night for a long-planned visit that is part of regular exchanges between senior American and Chinese military officials. The admiral is an outspoken advocate of freedom of navigation operations in the South China Sea and accused China this year of building “a great wall of sand” in the strategic waterway, a reference to artificial islands that the Chinese have constructed.


Adm. Harry B. Harris Jr., right, who oversees the United States Pacific Command, and Max Baucus, United States ambassador to China, in Beijing on Tuesday. Credit Pool photo by Andy Wong

Coinciding with Admiral Harris’s visit, the Foreign Ministry in Beijing had unusually scathing comments about the American destroyer’s mission.
“What has been unfolding lately is just like watching a self-orchestrated, self-directed, self-performed show,” the ministry’s spokeswoman, Hua Chunying, said at a regularly scheduled briefing on Tuesday.
An estimated 100,000 ships travel “safely and freely” through the South China Sea a year, she said, adding that millions of barrels of oil also pass through the waterway daily. “They run into no problem at all,” she said.
In an apparent effort by the Obama administration to insulate the admiral’s visit, the Pacific Command and the Pentagon kept Admiral Harris’s itinerary largely under wraps during the first day.
His address at the Stanford Center, which is operated by Stanford University, the alma mater of the American ambassador, Max Baucus, was closed to the news media.
A transcript released afterward indicated that Admiral Harris took questions from the audience, but the contents of that discussion were not available, a spokesman at the United States Embassy said.
About 15 professors and students from Peking University, all Chinese, were in the audience, and 15 scholars studying at Stanford in California, all American, listened by video, said Andrew J. Andreasen, the executive director of the center.
At the end of Admiral Harris’s day in Beijing, the Pacific Command said that he had met separately with Gen. Fang Fenghui, chief of the general staff of the People’s Liberation Army, and Gen. Fan Changlong, vice chairman of the Central Military Commission.

Interactive Feature

What China Has Been Building in the South China Sea

China has been feverishly piling sand onto reefs in the South China Sea for the past year, creating seven new islets in the region. It is straining geopolitical tensions that were already taut.
OPEN Interactive Feature

“It was a candid, respectful and substantive dialogue between military professionals,” said Capt. Darryn James, the chief Pacific Command spokesman.
According to the website of the Chinese military’s flagship newspaper, The People’s Liberation Daily, General Fan told Admiral Harris that the American warship had posed a threat to China’s territorial sovereignty and could “easily trigger miscalculations and accidents.”
While Admiral Harris has frequently spoken about the need for freedom of navigation operations to challenge China’s claims in the South China Sea, the Obama administration is also trying to prevent relations with the Chinese military from deteriorating.
In his speech, Admiral Harris said that two Chinese vessels, including a Navy hospital ship, the Peace Ark, were visiting American ports. The commander of the United States Pacific Fleet, Adm. Scott H. Swift, will visit Shanghai this month, he said.
“We must not allow the areas where China and the U.S. disagree to impact our ability to make progress on the areas where we do agree,” he said.
The dispatch of the destroyer Lassen last week to the waters inside the 12-nautical-mile perimeter of Subi Reef was meant to show that China could not claim territorial waters on an artificial island built from what is known as a low-tide elevation. Before the construction, Subi Reef was visible only during low tide.
A Chinese Navy vessel followed the Lassen as it entered the waters but did not interfere with its operations. The Chinese military objected to the operation, saying it was “illegal” and a “provocation.” The Foreign Ministry called in the American ambassador, Mr. Baucus, and made a formal objection.
A professor at Peking University, Jia Qingguo, who was in the audience for Admiral Harris’s talk, said the Chinese government had made clear that the operation by the Lassen had endangered China’s national security.
“China thinks the two countries should enhance communication and mutual trust rather than doing things like this to escalate the situation,” said Mr. Jia, the dean of the school of international studies at Peking University.
China has constructed seven artificial islands on top of submerged reefs in the Spratly archipelago, where the Philippines and several other governments also have claims. A military-size runway has been completed on one of the new islands, and China is working on runways on two more.

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