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China and America's Dueling South China Sea Papers

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Beijing is fast approaching a Dec. 15 deadline to submit its defense in the arbitration case against its South China Sea claims brought by the Philippines. That case, brought under the UN Convention on the Law of the Sea’s (UNCLOS) compulsory dispute mechanism, is summarized here. The Chinese government has no intention of taking part in it, or refuting the Philippines’ 4,000 pages of evidence and arguments, but it has made sure that the five judges hearing the case in the Permanent Court of Arbitration take China’s arguments against their jurisdiction into account.

To that end, the Ministry of Foreign Affairs on Dec. 7 released a position paper laying out China’s legal objections to the case. Two days earlier the US State Department released a long-awaited analysis of the legality of Beijing’s South China Sea claims through its Limits in the Sea series. The timing of these two releases, both in relation to each other and to the next stage of the arbitration case, suggest that policymakers in Beijing and Washington recognize the value of occupying the legal high ground in the South China Sea and are eager to influence the arbitral tribunal even if they are not directly engaging in the case.

What does China's position paper say?

The core of the Chinese position paper lays out Beijing's arguments for why the arbitral tribunal at The Hague lacks jurisdiction in the Philippines' case. China contends that:

1. At its heart the case is not about interpreting UNCLOS, but about territorial sovereignty - who owns what features - over which UNCLOS has no jurisdiction. This argument is not compelling, at least not in China's formulation that to rule on any of the Philippines' points, the court "would inevitably have to determine, directly or indirectly, the sovereignty over both the maritime features in question and other maritime features in the South China Sea."

2. Even if the case were about UNCLOS, the Philippines had no right to bring it. China argues that the Philippines bound itself in both bilateral statements and especially in the 2002 ASEAN-China Declaration on the Conduct of Parties in the South China Sea (DOC) to only resolve disputes through negotiation. Whether or not any such binding obligation was made is highly suspect, but Manila could easily argue that Chinese violations have nullified the DOC regardless.

China also argues that the Philippines has not met the UNCLOS requirement to only pursue compulsory arbitration after failing to reach a bilateral accord. Beijing insists that despite decades of discussions, "the two countries have never engaged in negotiations with regard to the subject-matter of the arbitration," and even if they did, UNCLOS does not specify a time limit for such negotiations. If accepted, this line of reasoning would preclude a country from ever using compulsory dispute resolution no matter how long another claimant stonewalls discussions.

1. Even if Manila did have the right, China is exempted from compulsory arbitration. This is Beijing's most compelling argument. It rests on China's 2006 declaration, as allowed by UNCLOS, that it is exempt from arbitration on certain topics including maritime delimitation. The Philippines has done an admirable job of framing its case as being about China's obligation to clarify the nine-dash line and about the status of features, not about delimiting disputed waters.

But Manila's argument is not a slam dunk. Most worrying for the Philippines is that its lawyers felt compelled to include an argument about the status of Itu Aba, the largest of the Spratly Islands, in its March 30 submissions to the court. Were the tribunal to rule Itu Aba (or any other feature) an island legally capable of generating a continental shelf, then it would likely undermine parts of the Philippine case, especially those pertaining to low-tide elevations. But it is noteworthy that China's position paper does not detail this point, leaving it to the arbitral judges to connect the dots.

1. Even if China were not exempt, the use of a special arbitral tribunal in cases in which a state has not selected one of the other options for arbitration permitted by UNCLOS violates international law. This is essentially questioning an UNCLOS provision to which China agreed in 1996. It is the least compelling of China's arguments, not least because it is hard to fathom that a court established under the provisions of UNCLOS would feel empowered to overturn the only sensible interpretation of one of those provisions.

It is telling that amid its arguments against the court's jurisdiction, China also touches on the merits of the case (despite insisting in the introduction that it will not do so). In particular, it makes an argument about the ability of a state to make a claim of sovereignty over a low-tide elevation, despite acknowledging that the International Court of Justice in 2012 ruled that such a claim is not permissible. China also defends its actions at Scarborough Shoal and Second Thomas Shoal since 2012, which the Philippines describe as employing the threat of force. Yet the position paper does not address either the status of those features the Philippines identifies as rocks rather than islands, nor does it defend the nine-dash line as a claim to maritime space in accord with UNCLOS - both indicative of the weakness of China's legal position on those points.

What does the US study say?

The State Department's Limits in the Sea studies have examined the maritime claims of dozens of nations, including Indonesia, the Philippines, and Vietnam. The latest report does not touch on the validity of territorial claims over islands in the South China Sea, reiterating the US position of neutrality.

The study's main finding is that "China has not clarified the legal basis or nature of its claim." The study points out that the nine-dash line lacks "geographical consistency and precision," which it underscores by overlaying several Chinese maps showing significant variation in the placement of the dashes. It offers some support for aspects of the Philippine case covering Chinese-occupied rocks and low-tide elevations. At its core, the analysis offers a refutation of the nine-dash line as a valid maritime claim, and thus aligns with the heart of the Philippines' case.

The State Department presents three possible interpretations of the nine-dash line and analyzes their legality. Each of these interpretations are simultaneously supported and contradicted by various Chinese legislation and official pronouncements:

1. A claim to islands and the waters they would generate. The study finds that this could be a legally consistent definition of the nine-dash line but points out that it has major caveats. For one, "states and international courts and tribunals typically accord very small islands far from a mainland coast equal or less weight than opposing coastlines." This means that China could at best justify an exclusive economic zone (EEZ) extending to a median line between its claimed islands and its Southeast Asian neighbors' coastlines.

2. A maritime boundary. The State Department points out that the nine-dash line extends too far beyond any coastline or island to be legally justifiable as the boundary of an EEZ, and certainly not territorial waters. The study also charges that the claim's lack of precision and unilateral declaration fail to meet the basic requirements of a legal maritime boundary.

3. A claim to historic title or rights. This is the most complicated of the legal justifications put forward by Chinese scholars regarding the nine-dash line. The State Department rightly points out that UNCLOS "limits the relevance of historic claims to bays and territorial sea delimitation" near a nation's coast. Nothing in the convention justifies a historical claim of sovereignty or extensive rights far from a coastline.

And contrary to some Chinese scholars' assertions that customary law predating UNCLOS would allow such a claim, the State Department rightly insists that the convention takes precedence. To prove the point, it cites the International Court of Justice's ruling that the advent of EEZs "overrides the prior usage and rights of other States in that area" - a clear refutation of China's claims to historic rights over fisheries and hydrocarbons.

What is next for the arbitration tribunal?

China will not submit anything on Dec. 15 in response to the tribunal's deadline. This means the judges will take it upon themselves to consider the counterarguments that Beijing would have made. This is why the Chinese position paper's release is so important. It has been timed to ensure that the judges ask the right questions, from China's perspective. Experts in China know that Beijing will lose on at least one point if the case goes the distance. The nine-dash line in its current form does not meet any of the requirements of a legal maritime claim - a point the new US study underscores - and requires clarification.

That is why China, even while refusing to officially take part in the proceedings, has invested considerable energy in developing a legal case against jurisdiction. Despite its bluster, Beijing does not want to flout an international tribunal's ruling and incur the opportunity costs that come with being seen as an irresponsible player in the international system.

As a next step, the court will ask the Philippine legal team to respond to questions and possible objections regarding its March submission. Those questions will likely cover many of the points raised in China's position paper, among others, since the judges will not rule on such a high-profile and controversial case unless they feel it is airtight.

Once the Philippines responds - a task that will take several months - the judges will consider the questions of jurisdiction and merits in the case. They seem ready to consider both at once, which should speed up the proceedings. There is no set timetable for a decision, and there might be more than one request to the Philippines for clarification of points. But by late 2015, and perhaps earlier, the court should make its decision - potentially the most impactful by any tribunal established under UNCLOS.

Gregory B. Poling is a Fellow with the Sumitro Chair for Southeast Asia Studies at CSIS. Follow him on Twitter @GregPoling. This article originally appeared on the CSIS Asia policy blog, cogitASIA and CSIS PACNET newsletter here.

TopicsSouth China Sea RegionsAsia-Pacific

Chinese Official: J-31 Stealth Fighter Could ‘Definitely Take Down’ F-35

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The president of a leading Chinese defense company boasted that China’s J-31 stealth fighter jet could definitely take down the F-35 Joint Strike Fighter.

Appearing on China’s state broadcaster on Tuesday, Lin Zuoming, president of Aviation Industry Corp of China (Avic), the state-owned Chinese defense company that manufactures the J-31, boldly declared that “When it [the J-31] takes to the sky, it could definitely take down the F-35. It's a certainty.”

It is widely believed that the J-31 is modeled in part off of stolen F-35 technology.

Lin went on to say that the J-31 would compete with the F-35 in the global marketplace, painting China’s second stealth fighter as a low-cost alternative to the U.S. made fifth generation jet.

"The next-generation air forces that are unable to buy the F-35 have no way to build themselves up. We don't believe the situation should be that way," Lin said, Reuters reported. He added, “The world should be balanced. Good things shouldn't all be pushed to one party."

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The J-31, which is alternatively referred to as the Falcon Hawk, Falcon Eagle, Shenyang FC-31, and F-60/J-21, is a twin-engine (Russian RD-93s) jet that conducted its first flight sometime in 2012. The jet did not make its first public appearance until the Zhuhai Air Show in China last month. At the show, the jet made a demonstration flight but was not put on display at the air show, however.

Long before the Zhuhai Air Show, Chinese officials began comparing the J-31 to the F-35, and suggesting it could compete with the Joint Strike Fighter in international markets. In August 2013, for example, the People’s Daily, the official newspaper of the Chinese Communist Party, carried an article that postulated that the J-31 “represents a serious threat to U.S. arms manufacturers.” It went on to say, “Experts predict that the J-31 will make rapid inroads in the international market in the future, and will undoubtedly steal the limelight from the F-35.”

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As to the J-31’s ability to take down American and allied F-35s, most experts agree it’s too early to tell, although the J-31 received largely negative reviews at the air show last month. For instance, a senior U.S. pilot told USNI News at the time that, once operational, the J-31 could probably challenge America’s fourth generation unstealthy American fighters.

“They’ll probably be a handful right off the bat for all of our fourth gen stuff,” the pilot was quoted as saying.

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On the other hand, the same pilot added, “I think they’ll eventually be on par with our fifth gen jets — as they should be, because industrial espionage is alive and well.”

Similarly, frequent TNI contributor Robert Farley said, “Will Chinese fighters be as ‘stealthy’ as Western fighters? We won’t know that for another five or 10 years.”

Zachary Keck is managing editor of The National Interest. You can find him on Twitter: @ZacharyKeck.

Image: Wikimedia/Russavia/CC by-SA 4.0.

TopicsmilitarySecurity RegionsAsia-Pacific

Senate Torture Report Resolves Nothing

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Call it a political witch-hunt, a mixed report, or a thorough accounting of the CIA’s Rendition, Detention, and Interrogation program, but the 500-page executive summary of the Senate Intelligence Committee report released today is sure to dominate Washington discourse during the last week of the 113th Congress.

The committee’s report, led and directed by Chairwoman Diane Feinstein and supported by her Democratic colleagues, was a very long time in the making.  What was at first a bipartisan project in the Intelligence Committee—where Democrats and Republicans overwhelmingly agreed to create an exhaustive review of the CIA’s enhanced interrogation techniques for the public record—culminated six years later into a product that divided the two parties on an incredibly important historical question: did the United States sanction torture in order to gather information to save American lives and protect the U.S. homeland? 

Unfortunately, despite a report that is 6,700 pages long and that cost at least $40 million to produce, Americans will never definitively find the answer to that question.  As impressive and documented as the Senate Intelligence Committee report is—and it is, indeed, highly impressive in its breath, detail, and organization—there will still be corners of the American public and vast segments of the U.S. Government that vehemently disagree with the numerous conclusions listed in the document.  Sen. Diane Feinstein no doubt speaks for many Americans when she said on the Senate floor today that the CIA’s interrogation program was “morally, legally and administratively misguided,” and “far more brutal than people were led to believe,” but she doesn’t speak for all Americans—particularly those CIA officers who participated intimately in the interrogations and other officials who remain convinced that EITs were immensely important in protecting American lives.

Former Directors George Tenet, Porter Goss, and Michael Hayden, along with the former architect of the EIT program, Jose Rodriguez, have already come out swinging.  On the same day that Feinstein publicly released the executive summary of the report, the Tenet-Goss-Hayden team published a scathing op-ed in The Wall Street Journal rebutting the claim that the CIA leadership deliberately lied to the White House, Congress, and to its own Inspector General on the scope, scale, merit, and effectiveness of the program.  In his own op-ed for The Washington Post, Rodriguez—who has been a vocal supporter of the EIT program and has written a book arguing that these “Hard Measures” were a necessary solution in dangerous times—blasted committee Democrats for attempting to re-write history, criticizing techniques that they once accepted immediately after the 9/11 attacks, and for casting the men and women of the CIA in a humiliating light for all the world to see.

The point for highlighting all of this dissent is that, regardless of what the Senate Intelligence Committee report says and the conclusions that are ingrained in the study, there will continue to be a considerable segment of the U.S. Government—including a whole lot of Republican lawmakers—who view waterboarding, 24-hour interrogations, sleep deprivation, and months of detainee isolation as tactics that were critical in protecting the United States another 9/11-style attack.  Whether this is right or wrong is beside the point: the belief is out there.  The CIA and Republicans on the Senate Intelligence Committee would not have released their own reports on the same day as Feinstein’s executive summary if this weren’t the case.

Whether you believe that EITs were a horrible travesty and a permanent stain on an otherwise unblemished U.S. human rights record, or a program that was absolutely indispensable to keep the nation safe, I believe we can all agree on one thing: the men and women of the Central Intelligence Agency immediately after September 11 were—and remain—in an unfathomably difficult position.  The officers, analysts, scientists, and managers of the agency are expected to perform their jobs with the utmost perfection in incredibly rigid time constraints, and are expected to do so without making a mistake that could potentially hurt the strategic position of the United States or result in the deaths of Americans at home or abroad.  And these men and women are mandated to do this every single day they trek to agency headquarters or start their workday in the one of hundreds of CIA stations located in dangerously hostile areas. 

While we hold people accountable for a tumultuous and divisive period in U.S. history, we should never lose sight of the low or mid-level operator or analyst doing the type of work that keeps the United States the most powerful country on the planet.  And, when mistakes are made, the agency—and the United States large—acknowledges them and cleans them up. 

Daniel R. DePetris is an analyst at Wikistrat, Inc., a geostrategicconsulting firm, and a freelance researcher. He has also written for CNN.com, Small Wars Journal and The Diplomat. You can follow him on Twitter: @DanDePetris. 

Image: Flickr/Medill DC/ CC by 2.0

TopicsPoliticsIntelligence RegionsUnited States

Facebook CEO Mark Zuckerberg’s Love Affair With Xi Jinping

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Facebook CEO Mark Zuckerberg has recently stirred up controversy by advising his employees to read Chinese President Xi Jinping’s book The Governance of China, because he wants them to “understand socialism with Chinese characteristics.” The book appeared prominently placed on his desk during a recent visit from China’s Internet czar Lu Wei, and he apparently has bought a number of copies to share with others. (To be clear—and I am assuming Mr. Zuckerberg realizes this—Xi’s book is not a book that he, himself, wrote; it is a collection of his speeches and interviews.) For the free publicity he is providing the Chinese leader, Zuckerberg has been widely condemned on the Chinese Internet. Given Zuckerberg’s position as the CEO of one of America’s leading technology firms, it is worth exploring whether such criticism is deserved.

First, is Zuckerberg sucking up to Beijing? Clearly the answer is yes. Like many U.S. business leaders, he wants access to the Chinese market for Facebook, which he currently does not have: it is banned in China. So, Zuckerberg has undertaken a charm offensive of sorts: speaking Chinese to a group of students at Tsinghua University; telling his employees to read Xi’s book; and, most recently, hosting Lu Wei—who may be doing more to stifle Internet freedom than anyone in China—at his Facebook offices in Silicon Valley. This is little more than what countless American CEOs have done over the past decades—unappealing perhaps in its sycophancy, but basically the price of doing business in China. Every CEO has to decide for him/herself how deeply to kowtow.

Second, does Zuckerberg support the ideals that Xi espouses in his book? There is no evidence that this is the case—unless one wants to refer back to Facebook’s fairly serious problems with invading people’s privacy by tracking their online activity, making public people’s personal information, or sharing people’s purchasing habits with their friends. Zuckerberg has made no explicit reference to anything in Xi’s book, and it is not clear that anything in the book particularly resonated with him. He has merely told people to read the book to understand socialism with Chinese characteristics. (Frankly, I don’t think that people who read the book will come away with an understanding of socialism with Chinese characteristics—it is an ever moving target of political opportunism—but it is worth a try.)

As far as I can discern, Zuckerberg has merely suggested that people in the United States should know what the leader of China is thinking and where he plans to take the country. I agree with him. Xi is president of one of the world’s largest and most powerful countries, and his vision for his country’s future is squarely at odds with many U.S. interests. Arguably, there is no other foreign leader—save perhaps North Korea’s Kim Jong-un or Russia’s Vladimir Putin—whose views Americans should better understand. I don’t think that it is necessary that everyone read the whole book—it runs five-hundred fairly tedious pages; most people can get the gist from reading a few well-chosen speeches from the volume.

For Americans interested in reading the book, the Beijing Review magazine has been sending emails out to people offering complimentary copies. They can be reached at beijingreviewusa@gmail.com. Otherwise, you can read a humorous take I posted a few months back or the not-so-humorous version Xinhua news agency translated and published (without my permission) last week. Either way, understanding the future of China under Xi Jinping is worth a few minutes of every American’s time.

This piece was first posted on CFR’s blog Asia Unbound here.

Image: Flickr. 

TopicsFacebook RegionsChina

Great Britain To Develop Naval Base at Bahrain

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The British Defense Secretary’s announcement of plans to develop a naval base at Bahrain may be confirmation that the United Kingdom’s policy as to the nature and extent of its overseas defense commitments is at last being settled.

There are some important parallels here to the challenges that Australia is facing in its own force structure and military posture, particularly in relation to our interaction with the United States. Britain’s key problem, as it finally comes to terms with the limits of its military capability, is determining where it can make the most difference, not only in its own right, but in support of the alliance with the United States.

The long-term implications of America’s "pivot" to the Pacific at a time when the US military machine is under increasing fiscal pressure are inescapable. Not only will Europe have to do without the levels of American military presence that it has grown accustomed to over nearly seventy years, but the United Kingdom in particular must decide where it can contribute in ways that are significant in military effects, rather than "flags in the sand." The British armed forces have a lot of capability, but—in relative terms—much less than in previous decades, as is apparently becoming clear with the current RAF operations in the Middle East. Choices must be made and it’s logical that those be for capabilities which the remainder of Western European states lack and for deployments for which they have little inclination.

Britain has long claimed global interests and the intent to maintain global military capabilities. No British government, particularly one with the Conservatives as the major partner within the coalition, will openly depart from those ambitions in the current complex strategic environment. Indeed, as shown with East Timor in 1999, the 2013 Philippine typhoon and, most recently, the search for MH 370, the British will always try to do what they can if there are urgent needs in the Indo-Pacific. But that’s not the same as a commitment to a permanent presence, or to reinforcing a presence for indefinite periods when required.

By comparison, the UK Defense Secretary’s declaration that Britain “will now be based again in the Gulf for the long term” was unequivocal. There’s real sense in that. A UK maritime task group can swing between the Persian Gulf and the Mediterranean relatively quickly, while air and land forces have extensive experience of deploying into the Middle East. With its long term interests in the Middle East—as well as the close interconnection of events there with the situation in the Near East and Europe—Britain may well now have determined that the Persian Gulf and the north-western Indian Ocean represent the geographic limits of what can best be termed the ‘beat’ of the British armed forces. That’s likely to be particularly true for the Royal Navy, centred as it will be on the two new Queen Elizabeth class carriers with the F-35B, the Type 45 air-defense ships and the seven Astute-class nuclear submarines.

This is a logical approach for the British, one which has the potential to reduce the American burden by freeing up carrier battle groups and other forces for operations in the Indo-Pacific—and for that reason welcome to Washington. It’s also one which, although the British face their own difficult decisions in their next Strategic Defense and Security Review in 2015, has the merit of being affordable in the long term. We need to be thinking in similar ways in Australia.

James Goldrick is a fellow of the RAN’s Sea Power Centre and an adjunct professor at UNSW Canberra, Australian Defense Force Academy. This piece first appeared in ASPI's The Strategist here

Image: Creative Commons. 

TopicsDefense RegionsEurope

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