Wednesday, July 13, 2016

China's Claims are Legally Unjustified in South China / East Sea

Tribunal Rejects Beijing’s Claims in South China Sea


JULY 12, 2016

A panel in The Hague rejected Beijing’s claims to the South China Sea on Tuesday, in a landmark case.

BEIJING — An international tribunal in The Hague delivered a sweeping rebuke on Tuesday of China’s behavior in the South China Sea, including its construction of artificial islands, and found that its expansive claim to sovereignty over the waters had no legal basis.

The landmark case, brought by the Philippines, was seen as an important crossroads in China’s rise as a global power and in its rivalry with the United States, and it could force Beijing to reconsider its assertive tactics in the region or risk being labeled an international outlaw. It was the first time the Chinese government had been summoned before the international justice system.

In its most significant finding, the tribunal rejected China’s argument that it enjoys historic rights over most of the South China Sea. That could give the governments of Brunei, Indonesia, Malaysia, Taiwan and Vietnam more leverage in their own maritime disputes with Beijing.

The tribunal also said that China had violated international law by causing “irreparable harm” to the marine environment, endangering Philippine ships and interfering with Philippine fishing and oil exploration.

“It’s an overwhelming victory. We won on every significant point,” said the Philippines’ chief counsel in the case, Paul S. Reichler.

But while the decision is legally binding, there is no mechanism for enforcing it, and China, which refused to participate in the tribunal’s proceedings, reiterated on Tuesday that it would not abide by it.

Speaking at a meeting with European leaders, President Xi Jinping was defiant, reasserting China’s claim to sovereignty over the South China Sea “since ancient times,” the state-run People’s Daily reported. His remarks echoed a statement from the Foreign Ministry. The tribunal’s decision “is invalid and has no binding force,” the ministry said. “China does not accept or recognize it.”
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The foreign secretary of the Philippines, Perfecto Yasay Jr., welcomed the ruling as “significant” and called on “all those concerned to exercise restraint and sobriety.”

The five judges and legal experts on the tribunal ruled unanimously, and the decision was so heavily in favor of the Philippines that there were fears about how the Chinese leadership would react. Many in the region worry that Beijing will accelerate its efforts to assert control over the South China Sea, which includes vital trade routes and fishing waters as well as possible oil and mineral deposits.

“Xi Jinping has lost face here, and it will be difficult for China to do nothing,” said Bonnie S. Glaser, a senior adviser for Asia at the Center for Strategic and International Studies in Washington. “I expect a very tough reaction from China, since it has lost on almost every point. There is virtually nothing that it has won.”

The Philippines filed its case in 2013, after China seized a reef over which both countries claim sovereignty. There has been speculation that Beijing might respond to the decision by building an artificial island at the reef, Scarborough Shoal, a move that could set off a conflict with the Philippines and its treaty ally, the United States.

The State Department spokesman, John Kirby, said Washington expected China to comply with the ruling. “The world is watching to see if China is really the global power it professes itself to be and the responsible power that it professes itself to be,” he said.

The main issue before the panel was the legality of China’s claim to waters within a “nine-dash line” that appears on official Chinese maps and encircles as much as 90 percent of the South China Sea, an area the size of Mexico. The Philippines had asked the tribunal to find the claim to be in violation of the United Nations Convention on the Law of the Sea, which both China and the Philippines have ratified.

In its decision, the tribunal said any historic rights to the sea that China had previously enjoyed “were extinguished” by the treaty, which lays out rules for drawing zones of control over the world’s oceans based on distances to coastlines. The panel added that while China had used islands in the sea in the past, it had never exercised exclusive authority over the waters.

The panel also concluded that several disputed rocks and reefs in the South China Sea were too small for China to claim control of economic activities in the waters around them. As a result, it found, China was engaged in unlawful behavior in Philippine waters, including activities that had aggravated the dispute.

The tribunal cited China’s construction of a large artificial island on an atoll known as Mischief Reef. China has built a military airstrip, naval berths and sports fields on the island, but the tribunal ruled that it was in Philippine waters.

The judges also said that Beijing had violated international law by causing “severe harm to the coral reef environment” and by failing to prevent Chinese fishermen from harvesting endangered sea turtles and other species “on a substantial scale.”

In an early indication of the regional response, Vietnam — which has fraternal Communist ties to China but also significant territorial disputes with it, including over oil exploration rights — quickly issued a statement endorsing the tribunal’s decision.

China has argued that the tribunal had no jurisdiction in the case. Because the sovereignty of reefs and islands in the sea is disputed, Beijing asserted, the tribunal could not decide on competing claims to the surrounding waters. The treaty covers only maritime disputes, not land disputes.

In a tough speech in Washington last week, a former senior Chinese official, Dai Bingguo, said that the findings would amount to no more than “waste paper” and that China would not back down from its activities in the South China Sea even in the face of a fleet of American aircraft carriers.

But with the geopolitical stakes high, Mr. Dai also counseled moderation, saying that the situation in the South China Sea “must cool down.”

The issue could have ramifications for domestic politics in China. Mr. Xi has made defense of maritime claims a central part of the governing Communist Party’s narrative that it has restored the nation to global greatness after long periods of humiliation by bigger powers. Any challenge to that narrative is seen in Beijing as a challenge to the party’s rule.

On Wednesday morning, an escalating propaganda campaign in China against the tribunal reached a new pitch, with all the major news outlets condemning the decision and trumpeting China’s refusal to be back down.

“We do not claim an inch of land that does not belong to us, but we won’t give up any patch that is ours,” said a front-page editorial in The People’s Daily, which ridiculed the tribunal as a “lackey of some outside forces” that would be remembered as a “laughingstock in human history.”

Some Chinese commentators have said in recent days that the leadership may respond with immediate military maneuvers in the South China Sea. “Whether it will be significant or large scale I cannot say,” said Shi Yinhong, a professor of international relations at Renmin University in Beijing.

China is hosting the Group of 20 summit meeting in September, a major international forum that it hopes will proceed without the distraction of conflict. But Mr. Shi said he was not sure the government had “that kind of patience” to wait until after the gathering before taking some sort of action.

In a surprising opinion article on the India Today website over the weekend, a professor of international relations at Fudan University in Shanghai, Shen Dingli, wrote that Beijing needed to “revise its stance” and “employ a more effective approach” that maintained China’s “long-held ‘smiling’ image.”

The new president of the Philippines, Rodrigo Duterte, has signaled that he will be more accommodating toward China than was his predecessor, Benigno S. Aquino III.

The case before the tribunal was filed at the initiative of Mr. Aquino, whose term ended June 30. Soon after the case was filed, China began building artificial islands in the Spratly archipelago, much of which is claimed by the Philippines, in a move that many saw as a demonstration of contempt for the international court system.

Experts in international law said that negotiations could be the most positive outcome of the case.

In 1986, some noted, the United States ignored a ruling from the International Court of Justice that declared its mining of the harbors of Nicaragua to be illegal. Washington had not ratified the Convention on the Law of the Sea, and it still has not.

But the ruling 30 years ago by the judges in The Hague emboldened congressional critics to cut funds for the Reagan administration’s campaign against the Sandinista government in Nicaragua, and it galvanized countries in Central America to seek a settlement of the conflict.

China is not expected to vacate or dismantle the artificial islands it has built. That makes the legal arguments important, analysts said. “ “The tribunal rulings will move the goal posts towards the Philippines and the smaller countries,” said Markus Gehring, a lecturer in law at Cambridge University.

In Manila, the former foreign secretary, Albert F. del Rosario, who brought the case after years of failed negotiations with China, said the path was now open for a lasting settlement of disputes in the South China Sea.

“The award provides a basis to further talks and cooperation to encompass all parties, including China,” he said.

Follow Jane Perlez on Twitter @JanePerlez.

Yufan Huang contributed research from Beijing. Marlise Simons contributed reporting from Paris.

A version of this article appears in print on July 13, 2016, on page A3 of the New York edition with the headline: Panel Rejects China’s Claims in Sea Dispute. Order Reprints| Today's Paper|Subscribe

Press release from arbitration panel

My comment on line:

Attitudes in Beijing about the South China Sea are reminiscent of the long US perspective on the Caribbean as an American lake.

The Obama Administration seems finally to accept that Cuba has the right to determine its own political and economic system.

The only exception is the pretense that we have a legal right to maintain possession of the Guantanamo base, despite the coercive means that established this classic unequal treaty.  (The US refused to withdraw its occupation forces and allow Cuba to become independent without agreement to give us Guantanamo at a nominal rent.)

Maybe Washington and Beijing could agree to renounce their historic regional hegemonism.  All of their neighbors would be grateful for this act of statesmanship--and the role of the other superpower in bringing it about.

John McAuliff
Fund for Reconciliation  and Development

Among the over 200 comments:

The 9-dash map was only presented to the world in 2009 - until then kept under wraps.

Unilateral map drawing has no possible basis for sovereignty claim - if it were, any tin-pot dictator could draw any map he likes.

The ruling is 100% about maritime entitlements - which China was found to have none. The Tribunal does not decide if China should or should not have this or that rock.

Sixty years after Taiwan annexation, Kangxi's map of the island (1720) still showed ONLY the Western side as the Eastern side remained unknown / uncharted.

Emperor Wan-Li approved Matteo Ricci's 1602 world map where Paracels were left out [despite its presence on the gifted 1570 Ortelius Asia map]. Similarly, Kangxi approved of Ferdinand Verbiest's 1674 world map where Paracels were charted but remained UN-NAMED [despite the 1648 Blaeu source map had Paracels charted and named].

Both are consistent with the position that Wan-Li & Kangxi (and the Chinese Empire) were clueless about the SCS [Kangxi's 1720 Atlas did not even have the SCS notation anywhere].

Fabled myths of antiquity are just that.... myths.

China asked the Dutch to move to Taiwan in 1620s as it was considered to be "stateless" and "outside the realm".

CCP history books would have you believe otherwise.

Look up Cordier's Bibliotheca Sinica (1898) and Lowendahl's China Illustrata Nova (2008) with its combined bibliography of > 5,000 books on China and show us one book with China's maritime claim.

Yes, just one !

See comments on Asia Society blog

Wednesday, July 6, 2016

Optimistic Assessment that China's Economic Interests are Primary

Beijing’s Master Plan for the South China Sea

China has far greater ambitions for the region than just reclaiming some tiny islands. 
By Feng Zhang

June 23, 2015

In late 2013, Beijing started taking a very different approach to sovereignty disputes in the South China Sea — although few outside China noticed the change. Instead of directly confronting the other regional claimant states, Beijing began the rapid consolidation of, and construction on, the maritime features already under its control. And it did so on a scale and pace befitting China’s impressive engineering prowess.

Much of the outside world only realized this approach in early 2015, after several high-profile U.S. think tanks published high-resolution satellite images showing the extraordinary progress of China’s island construction, including military facilities and runways, which could extend Beijing’s military reach over the contested waters. This worried Southeast Asian countries, particularly Vietnam and the Philippines, because their claims to parts of the South China Sea overlap with China’s, and because they fear Beijing’s island construction threatens their security. It worries Washington as well: In May, the U.S. government vowed to assert freedom of navigation by sending military assets to Chinese-controlled islands in the South China Sea. And in late May, in Singapore, U.S. Secretary of Defense Ashton Carter called for “an immediate and lasting halt to land reclamation by all claimants” — in other words, China.
Intriguingly, half a month later, Beijing indicated that it would soon conclude its land reclamation projects in the South China Sea. The Ministry of Foreign Affairs even held a special press conference to deliver that message.

So what happened? Is Beijing changing its strategy in the South China Sea or backing down because of pressure from Washington? Perhaps. A more accurate way of looking at the issue, however, is to see that Beijing believes it has achieved enough in this round of island construction. China, according to Carter, has reclaimed more than 2,000 acres over the last 18 months — a claim that Beijing has not publicly disputed. And the facilities Beijing will continue to build on the new land — including airstrips, ports, and lighthouses — will be sufficient for a wide range of civil and military purposes. (Indeed, Beijing is not denying that those facilities will have “necessary military defense” functions — although it is certainly not emphasizing that aspect of its island construction.)

Beijing’s South China Sea policy actually hasn’t changed much. Reclamation will stop for now, but construction of facilities on the reclaimed land will continue, and Beijing hasn’t changed its claims to the South China Sea.

Nevertheless, this special Ministry of Foreign Affairs announcement requires an explanation, for it is intended to send an important diplomatic signal. China has learned its lesson from negative regional responses to island building in the South China Sea. Not of the dangers of a military showdown with the United States in the area, which it considers a remote possibility, but on how negative regional reactions can harm its larger foreign-policy goals. Specifically, Beijing has learned how land reclamation on the current scale and pace is threatening the policy priority of building a maritime Silk Road through Southeast Asia.

Ever since President Xi Jinping articulated the goals of building a Silk Road economic belt through central Eurasia, and a maritime Silk Road through the South China Sea and Indian Ocean, in late 2013, the One Belt, One Road initiative has become something like a grand strategy — integrating the domestic needs of economic restructuring with the international ambitions of expanding China’s diplomatic and economic influence. OBOR encompasses 4.4 billion people, 64 countries, and a combined economic output of $21 trillion — roughly twice the annual gross domestic product of China, or 29 percent of global GDP. This is literally China’s economic diplomacy for half of the world, under one single policy framework. If OBOR is indeed China’s grand strategy — and if it’s really one that Xi takes to heart — then nothing internationally should stand in the way of its execution.

The problem with Beijing’s current South China Sea policy is that it increasingly conflicts with OBOR, because it is damaging China’s relationships with the Association of Southeast Asian Nations (ASEAN), countries on which the success of the maritime Silk Road depends. As a result of Beijing’s 2012-2013 standoff with Manila over the contested Scarborough Shoal and Second Thomas Shoal, and the violent tensions provoked with Hanoi by placing an oil rig near the contested Paracel islands in May 2014, China’s relationships with the Philippines and Vietnam are at their lowest points in recent history. Now Beijing’s island construction is making these countries — and Southeast Asia as a whole — feel more threatened.

Yes, all 10 members of ASEAN have joined the Beijing-led Asian Infrastructure Investment Bank, one of the financial arms of OBOR, thus signaling their desire to partake in its economic opportunities. But the persistence of South China Sea tensions and China’s growing military clout in the region will dispose them to view OBOR in geopolitical terms, not in terms of economic cooperation, which Beijing prefers.

Beijing is realizing that excessive and ongoing tensions in the South China Sea are detrimental to its larger foreign-policy interests. Given the greater ambitions of OBOR, the South China Sea project should not be allowed to hijack or distort the overall direction of Chinese foreign policy.

Beijing is also becoming increasing aware of another pressing need for its South China Sea policy: keeping the region relatively stable so as not to give other countries a pretext for creating troubles in China’s relationship with ASEAN countries. Beijing fears an anti-China alliance formed among the United States, ASEAN, and perhaps also Japan, Australia, and India, in a united opposition to its South China Sea policy. This would doom the maritime leg of OBOR, which must pass through the South China Sea and obtain support from key ASEAN countries like Indonesia, Malaysia, and Singapore. It would also be a huge setback to Chinese security interests in maritime Asia, making its policy options more constrained and costly.

It would be true strategic folly if unrestrained land reclamation serves no significant interests other than to drive ASEAN countries into the arms of the United States. The top priority of Beijing’s South China Sea policy now is to prevent such an anti-China alliance from forming and to support the grand strategy of OBOR in any way possible.

One should also not lose sight of how the June 16 press conference came just before the seventh U.S.-China Strategic and Economic Dialogue, an annual series of top-level bilateral meetings, being held this year on June 23-24 in Washington, D.C. The meetings are also just three months before the biggest event of Sino-U.S. relations this year — Xi’s state visit to the United States in September. The announcement to conclude land reclamation was in part timed to create a more congenial environment for developing the China-U.S. relationship in the second half of this year. Make no mistake: Despite what China scholar David Lampton has called “a tipping point in U.S.-China relations,” Beijing still wants and values a stable relationship with Washington. Chinese officials are now doing everything possible to make Xi’s visit a success.

And it’s not only the Chinese taking steps to improve the relationship. On June 18, two days after the Chinese announcement, U.S. Assistant Secretary of State Daniel Russel tried to tone down tensions in the South China Sea by saying that the United States is determined to avoid military confrontation with China (although he also made it clear that continued construction of facilities on the reclaimed islands will remain a U.S. concern). One feels that a rapprochement between China and the United States on the South China Sea is taking place.

So, although Beijing’s South China Sea policy hasn’t changed much in substance, it has sent a conciliatory and positive signal to the outside world, in effect saying that it will halt its land reclamation in the South China Sea and defuse tensions in the region. What Beijing is not publically saying — but which it sincerely hopes the outside world will understand — is that it expects greater cooperation with OBOR. In other words, the South China Sea reclamation project has ceased to be a core interest of Chinese foreign policy, if, indeed, it ever was.

China Threatens US on South China Sea

Beijing Takes its South China Sea PR Campaign to Washington

By Dan De Luce
July 5, 2016 - 5:07 pm

Beijing Takes its South China Sea PR Campaign to Washington  

Facing a potentially damaging ruling from an international court in its dispute with the Philippines, China has cranked up a public relations offensive to defend its stance in the court of world opinion. The sledgehammer-subtle PR campaign came to Washington on Tuesday, with a former top Chinese official warning that Beijing will reject the tribunal’s authority and cautioning the United States to tread carefully in the contested waters.

Dai Bingguo, former Chinese state councilor, said the tribunal’s ruling on the South China Sea dispute, scheduled to be released next Tuesday, “amounts to nothing more than a piece of paper.”

Speaking at a conference at the Carnegie Endowment for International Peace, Dai urged countries not to carry out the court’s decision and warned that his government would not tolerate any further “provocation” from the Philippines. “Otherwise, China would not sit idle,” Dai said.

The former senior diplomat, now chairman of Jinan University, accused the United States of raising tensions with its naval and air patrols in the region and allegedly encouraging Southeast Asian countries to take a more confrontational approach with Beijing.

“We in China would not be intimidated by the U.S. actions, not even if the U.S. sent all 10 aircraft carriers to the South China Sea,” he said. “The risk for the U.S. is that it may be dragged into trouble against its own will and pay an unexpectedly heavy price.”

The Chinese Foreign Ministry promptly posted the full text of Dai’s speech after he delivered it.

The speech, which repeated Beijing’s frequent talking points on the issue, was the latest salvo in China’s PR blitz on the South China Sea, where it has built up an array of artificial islands through vast dredging operations in recent years. Beijing claims that up to 60 countries have endorsed its view of the case before the Permanent Court of Arbitration in The Hague. But the Wall Street Journal found the charm offensive has mostly fizzled.

Only eight countries have issued public statements backing up China on the issue, and a number of governments denied Beijing’s claims of support, the Journal reported. The countries backing China are not exactly maritime powers in Southeast Asia: Afghanistan, Gambia, Kenya, Niger, Sudan, Togo, Vanuatu, and Lesotho.

The United States and most governments in the region have called on both sides to abide by the court’s decision, but the tribunal has no way to enforce its writ.

The Philippines took its complaint to the Permanent Court of Arbitration in 2013 after a series of confrontations with China around the disputed Scarborough Shoal off its coast. The U.N. Convention on the Law of the Sea, which China has ratified, provides for the tribunal as a way of settling maritime disagreements. Manila, like other countries, has questioned China’s far-reaching claims to the South China Sea, contested its claims that various reefs, atolls, and rocks qualify as islands, and argued that Beijing’s tough tactics toward Philippine fishing boats and Coast Guard vessels violate international law.

 It’s unclear how China will react to the court’s decision when it comes, but Dai’s remarks in Washington will feed speculation that Beijing might decide to launch dredging work around Scarborough Shoal. Such a move would ramp up tensions and possibly trigger a confrontation with Manila, which could then turn to the United States for military assistance, experts say.

The newly elected president of the Philippines, Rodrigo Duterte, said earlier Tuesday that his country would be ready to hold talks with China and avoid conflict after The Hague court issues its verdict.

“When it’s favorable to us, let’s talk,” he said. “We are not prepared to go to war; ‘war’ is a dirty word.”

China, which claims most of the South China Sea, indicated it would be open to starting negotiations with Manila as long as the Philippines ignores the court ruling.

Along with its public relations efforts, China is flexing its naval power. On Tuesday it launched a week of military exercises around the disputed Paracel Islands in the South China Sea.

Photo credit: MIKHAIL JAPARIDZE/TASS via Getty Images

Thursday, June 23, 2016

Asia Society Interviews Bill Hayton on China's Humiliation Factor

How Historical 'Humiliation' Drives China's Maritime Claims

 June 16th, 2016 by Eric Fish

In coming weeks, the Permanent Court of Arbitration in Hague is expected to deliver its decision in a case brought by the Philippines to settle contested island claims with China. The case comes as China has taken increasingly bold actions in recent years to assert maritime claims in the South China Sea disputed by Southeast Asian nations — actions including the construction of island bases for military purposes, and confronting foreign ships and aircraft that travel in the region.

China’s claims reach deep into the South China Sea. On maps of the area, Beijing has demarcated what’s known as the “nine-dash line” (pictured in green in the below map), a boundary that brushes up near the Vietnamese, Philippine, Bruneian, and Malaysian coasts. China hasn’t specified exactly what privileges it’s entitled to under the nine-dash line, but asserts “historic rights” over the area. This position has encountered stern opposition from rival claimants and the United States for violating freedom of navigation tenets outlined under the United Nations Convention on the Law of the Sea (UNCLOS), to which China and all other parties (but not the U.S.) are signatories. China has expressed that it will not abide by the outcome of the Hague arbitration case.

In 2014, BBC journalist Bill Hayton, formerly based in Southeast Asia, published the book The South China Sea: The Struggle for Power in Asia, which gives historical and contemporary context to the disputes in the region. In an interview with Asia Blog, Hayton discussed the thinking behind China’s claims, and how Beijing might be rethinking part of its strategy in enforcing them.

Why does China care so much about these tiny uninhabited islands in the South China Sea?

I think there are different parts of the Chinese state and Communist Party that have different motives, but they all sort of work together toward the same end. The state-owned oil companies are interested in the oil and the fishing companies and coastal provinces are interested in maximizing their fish catch.

Then there are various strategic imperatives. I think they are concerned about the security of the coastal cities and would like a kind of buffer zone around them. They're concerned about the safety of supply routes. And I think another very important factor is the likelihood that the Chinese nuclear submarines might want to hide in the South China Sea, so their Navy wants a “bastion” to keep out potential adversaries and their anti-submarine warfare equipment. But that's not the whole story.

I think everything is predicated on a sense of ownership — that since the 1930s really, China’s elite have convinced themselves and the population that they are the only rightful owners of the features in the sea. Along the way, that's gotten twisted into an idea that they are, to some extent, the rightful owners of the waters within the “nine-dash line.” What I've tried to do in my research is show that this is not some ancient claim, but was the response to things that happened in the 20th century.

No Chinese official ever went to the Spratly Islands before December 12, 1946, as far as we can tell. They were in the Paracel Islands as early as 1907, and then stuck a flag in at least some of the islands in 1909. But the Spratlys — there was no interest by any Chinese officials in administering or occupying those islands until they got there in the 1940s. The nine-dash line was drawn back in 1947 and it was clearly a cartographic convenience — it didn't have any historical meaning whatsoever, but it's now sort of become an article of faith. In terms of a claim to historic rights in the waters within the nine-dash line, I would say that probably only appeared in the mid-to-late 1990s. So these are not ancient claims by any means; they're relatively modern.

A survey conducted in 2013 found that 83 percent of people in China see South China Sea disputes as a continuation of the “Century of Humiliation” (1840-1949), even though none of the South China Sea countries contesting China’s claims were transgressors during that period. Why do you think that is?

There is a sense that emerges out of the chaos of early 20th century China that the country was stripped of its rights and lands by foreign powers. There’s this whole genre of maps of “national humiliation” that were published in the 1920s and 1930s to show the population how much land had been stolen by Japan, France, Britain, and other countries. Some of these maps included great lines that went huge distances — as far as Iran and Afghanistan and the whole of Southeast Asia.

My thought is that during the rest of the 20th century, with land boundaries, there were powers that pushed back, so China was obliged to make agreements with those countries and settle the land disputes. But on the sea boundaries, there was no pressure to reach a deal and no one pushing back constantly. The dream that these little islands are rightfully China's was never challenged.

There’s a narrative that the Century of Humiliation won't be complete — certainly until Taiwan is returned to the motherland — and the problem is that these little tiny specks could be put into the same category as Taiwan. China has already regained control of Hong Kong and Macau, and if one starts to see it put the Spratlys in the same category as Taiwan, then we have a problem, because there's a real mismatch between the Chinese sense of entitlement and the historical evidence of a shared sea. It's never been an exclusively Chinese sea or exclusively anybody's sea. It's always been a shared sea, and that's really what I've tried to argue. When you look at the history as neutrally as possible, it's the shared history that's the most significant feature, and that's what it should be again.

China’s actions in the South China Sea appear to be pushing a lot of its neighbors further into the arms of the United States. For instance, the U.S. recently lifted an arms embargo on Vietnam that’s been in place since the end of the Vietnam War. Do you think this is making China reassess its strategy at all?

China has said it isn’t going to withdraw from any of the bases that it has built, but there has been a dialing down of confrontation in general in the past two years. Two years ago, we had Vietnamese and Chinese coast guard vessels ramming into one another out at sea, and we've seen nothing like that since.

Another thing to point out is that China hasn’t attempted to drill for oil in any disputed areas. They've kept their actions very much on their side of any kind of notional medium lines. Despite the rhetoric, one is seeing a slight moderation in China's behavior. With the exception of these recent fishing incidents, and of course the enormous island building, there has been very little for other countries to actually complain about in terms of new moves pushing people back.

This may simply be the calm before the storm. Maybe once they finish the bases on these artificial islands, China may make some dramatic move. But it might also be that it’s gotten to a point where they've understood that their actions are provoking a reaction, and now they're reining themselves in. I have no inside knowledge of this, but there's a recent article by Zack Cooper and Jake Douglas that argues that it did look as if China was preparing to build on Scarborough Shoal but was deterred by the U.S. deploying A-10 aircraft to the Philippines and giving some fairly strong diplomatic warnings. That’s not to say they won't try again in the future, or that they are going to give up their claims to Scarborough Shoal. But maybe there is a sort of retrenchment or rethink on the Chinese side.

Recently at the Shangri-La Dialogue in Singapore, Chinese Admiral Sun Jianguo said in reference to South China Sea disputes: “We do not make trouble, but we have no fear of trouble.” Do you think that second part is true? Is China really prepared to engage in armed conflict over these islands?

I see these rather hawkish statements as a return to that kind of "public diplomacy" that we saw two to three years ago when you had pundits on TV and uniformed political commissars from the army saying blood-curdling things about "killing the chicken to scare the monkey" or "when those oil fields are towers of flame, who will be sorry?" and "The South China Sea will resound to the sound of cannon shots." All of these bellicose statements were coming out, but they seem to be clearly intended to intimidate and give the impression that China is prepared to use force, when I don't think it was ever intending to actually do that. It was a way of trying to scare people.

I would put the admiral's comments in the same category — he's trying to indicate resolve to the U.S. and he's trying to suggest that China can impose costs on the U.S. It's the classic phrase: "To win without fighting." But I don't think it's going to be taken seriously because I imagine the U.S. navy still thinks it can impose severe costs on the Chinese navy if it ever came to something. But it's in no one's interests to actually stir up a fight. The consequences would be so awful.

Is there anything you think is commonly misunderstood about the South China Sea disputes?

A lot of people don't realize that of the seven islands on which China has recently built, only the construction is new: China has actually occupied the reefs since 1988, or in one case 1994. So although the bases are new, China hasn't actually occupied any new territory since 1994. People would say “Well, what about Scarborough Shoal?” But I would say that they haven't actually physically occupied it, they've blocked access to it. Maybe they would like to build on it, but they haven't.

And I think people often think of this as a rational fight over resources, but I think one has to insert the whole Chinese view of history in there. If their view of history is that “this is all ours,” then UNCLOS (The United Nations Convention on the Law of the Sea) is no longer a neutral tool to arbitrate disputes, but is a political weapon wielded against China, and that's clearly how they're approaching the Hague tribunal arbitration at the moment in terms of what they're saying about it. So I think everyone has to understand the Chinese perspective, but at the same time critique it from a position of evidence and assert over and over again that China has never been the exclusive owner of the South China Sea, regardless of what it says in Chinese textbooks. It's always been a shared space.

See Asia Society's complete past coverage of the South China Sea

Saturday, June 11, 2016

Conflicting US and China Views on Sea

U.S. and Beijing Offer Competing Views on South China Sea

JUNE 7, 2016

  By REUTERS AND THE ASSOCIATED PRESS on Publish Date June 7, 2016.   Photo by Damir Sagolj/Reuters.  Watch in Times Video »

BEIJING — Secretary of State John Kerry and his Chinese counterpart laid out diverging positions regarding the South China Sea on Tuesday, indicating that annual talks between the United States and China had done little to bridge the differences over what has become one of the most volatile issues in their relationship.

In Beijing, a senior American official also revealed that President Obama had warned President Xi Jinping of China during a meeting in March about the maritime friction and about Washington’s obligations to a regional ally, the Philippines.

On Tuesday, at the end of what is called the Strategic and Economic Dialogue, Mr. Kerry praised the talks as an “essential mechanism” to air differences and nurture cooperation.

But comments both by Mr. Kerry and by State Councilor Yang Jiechi of China suggested that their governments remained far apart on the continuing disputes in the South China Sea. China has laid claim to many islands and outcrops across the sea that are also claimed by Southeast Asian countries, notably the Philippines and Vietnam.

“I reiterated America’s fundamental support for negotiations, and a peaceful resolution based on the rule of law, as well as, obviously, our concern about any unilateral steps by anyone, whichever country, to alter the status quo,” Mr. Kerry said during a joint appearance with Chinese officials in the Great Hall of the People in the heart of Beijing.

After Mr. Kerry spoke, Mr. Yang, who steers Chinese foreign policy and is senior to the foreign minister, said China remained adamantly opposed to an arbitration case brought by the Philippines to assert its claims in the sea.

A court in The Hague is expected to deliver its decision in the case soon, but Beijing has said it will not accept the result.

“This has not changed and will not change,” Mr. Yang said of China’s opposition to the case. He repeated China’s position that it is willing to negotiate over the disputes, but only with each individual country holding a rival claim, rather than collectively.
Continue reading the main story  

“The islands of the South China Sea have been Chinese territory since antiquity,” Mr. Yang said. “China has every right to uphold its territorial rights and legitimate maritime rights and interests.”

The Obama administration has urged China to negotiate with Southeast Asian nations collectively to solve the disputes, and it has warned Beijing against its energetic development of reefs and outcrops into artificial islands with military facilities.

The United States  recently sent military ships and planes near some of those islands, to make the point that it would insist on freedom of navigation in the area, and Beijing bristled at the gesture.

This Strategic and Economic Dialogue was the last for the Obama administration, and there is uncertainty about how much importance the next president might give to the annual talks. But Chinese and American officials said there was value in discussing contentious issues face to face, even if no solution was in sight.

The South China Sea issue came up early in the meetings, when the United States warned China against any action in the waterway involving American treaty obligations to the Philippines, a senior State Department official said.

The warning was a reiteration of what Mr. Obama told Mr. Xi during their meeting in Washington in March, the official said.

The official spoke on the condition of anonymity in keeping with diplomatic custom. On Sunday, before the formal start of the talks, Chinese and American officials, including some uniformed military officers from both sides, talked about security matters. Zhang Yesui, China’s executive vice foreign minister, and Antony J. Blinken, the deputy secretary of state, led the delegations.

“The islands of the South
China Sea have been Chinese
territory since antiquity.”

State Councilor Yang Jiechi of China

The Philippines has long claimed Scarborough Shoal, an outcrop off its western coast that was once used as a firing range by the United States military. In 2012, China took over the shoal by expelling Philippine fishermen and deploying a patrol of coast guard vessels to prevent the fishermen’s returning.

Scarborough Shoal is the largest outcrop in the dispute between the Philippines and China in the South China Sea. The United States, which now has access to five military bases in the Philippines, recently flew a Navy plane over the shoal in a demonstration to China of American concerns. The United States and the Philippines also recently conducted joint patrols in the waterway.

Since China began building artificial islands in the Spratly archipelago near the Scarborough Shoal, former military officials have hinted that Beijing would start to build the shoal into a more permanent platform able to accommodate military installations.

The security session on Sunday also included discussion of an episode last month involving two Chinese fighter jets that flew dangerously close to an EP-3 American spy plane in international airspace off the coast of Hainan, the southernmost province of China, the senior State Department official said.

The Chinese aircraft came as close as 50 feet to the American plane, the Pentagon said at the time. The Foreign Ministry in Beijing denied that the Chinese had flown too close and described the encounter as normal.

It was unclear whether China’s senior military leaders had ordered the two jets to get close to the American plane or whether the pilots were acting independently and trying to show off their flight skills.

Also discussed at the meeting were human rights and the status of foreign nongovernmental organizations in China. The Obama administration has sharply criticized a new Chinese law aimed at controlling and limiting the work of such groups on issues including rights for migrant workers, climate change and the rule of law. The American Chamber of Commerce in China has expressed disappointment with the law, saying that it would harm the companies it works with.

The law, scheduled to go into effect Jan. 1, requires foreign groups to register with the police, who will be empowered to examine all aspects of their operations. It also mandates that the groups find official Chinese partners.

Earlier in the day, Mr. Yang, the state councilor, said the organizations’ activities would not be obstructed if the groups observed China’s laws.

At a news conference at his hotel after meeting with Mr. Xi, Mr. Kerry said that he was reassured by the Chinese president’s explanations of the law.

The United States “forcefully” presented its objections to the law, he said, adding, “We have to show some patience.”

“What I heard directly from President Xi, actually, was that China intends to remain open, stay open, to open up even more than it is today,” Mr. Kerry said, “and that it does not see these laws are going to be applied in any way whatsoever that affects their ability to open up and to do business.”

He said he found it “not insignificant that the president of the country” spoke directly about the problem. “Now the question is, is that in fact what happens?”

Follow Jane Perlez @JanePerlez and Chris Buckley @ChuBailiang on Twitter.

Friday, June 3, 2016

Controversy re Bob Kerrey's Appointment

Bob Kerrey’s War Record Fuels Debate in Vietnam on His Role at New University


BANGKOK — The appointment of former Senator Bob Kerrey to lead a new American-backed university in Vietnam has set off a sharp debate among Vietnamese over whether he should be disqualified because of his part in killing women and children as a Navy SEAL during the Vietnam War.

“While the Vietnamese are willing to let bygones be bygones,” Ton Nu Thi Ninh, Vietnam’s former ambassador to the European Union, said by email, “the decision to appoint Bob Kerrey to be chairman of the board of the first American-style university in Vietnam strikes me as insensitive to the Vietnamese at best, and taking us for granted at worst.”

The university, Fulbright University Vietnam, the first independent, private university in Vietnam, made news after President Obama announced its opening during a visit to Vietnam last week.

Mr. Kerrey admitted 15 years ago that he and the team of commandos he led in the Mekong Delta in 1969 killed innocent women and children during a midnight raid in the village of Thanh Phong. Survivors of the attack said 20 civilians were killed, including 13 children and a pregnant woman. Mr. Kerrey was awarded a Bronze Star after his squad falsely reported that it had killed 21 Viet Cong guerrillas.

Mr. Kerrey was silent about the slaughter for more than three decades until The New York Times and CBS News were on the verge of publishing a joint investigation in 2001.

“It was not a military victory,” Mr. Kerrey acknowledged in speech then. “It was a tragedy, and I had ordered it.”

“I have been haunted by it for 32 years,” he said.

The discussion of Mr. Kerrey’s war history — which has bubbled up in posts on Facebook and in articles at online news portals — threatens to reopen old wounds from what is known in Vietnam as the American War. About three million people died in the war, including more than 58,000 Americans.

“I cannot look at his face,” Pham Thuy Huong, 40, of Hanoi, wrote on Facebook. “All the gruesome details of that genocide are still there.”

But since the war ended in 1975, the Vietnamese government and many Vietnamese have adopted an attitude of forgiveness, and that view was also widely represented.

“It is easy to hate Bob Kerrey and ask him to resign as the head of the board of Fulbright University Vietnam,” Luong Hoai Nam, an aviation businessman, wrote in a column in the online newspaper VnExpress. “I can do that. But after a half-day of thinking, I decided on the harder choice. That is to forgive. I forgive Bob Kerrey, and I want many Vietnamese also to forgive him.”

Responding to questions by email, Mr. Kerrey said that he would resign if he felt his role was jeopardizing the American-Vietnamese joint education venture.

“If I have cause to believe that remaining chairman puts this project at risk, I will step down,” he said. “I have come to admire the Vietnamese people greatly and intend to continue doing all I can to help them.”

 “After killing and
lying, he should not
represent knowledge
and contributing the
values of America in Vietnam!” 

Nguyen Duc Hien, journalist in Ho Chi Minh City

He said he had been involved since 1991 in establishing the university, including helping win congressional financing while in the Senate. He said his primary role as board chairman would be helping the university raise money.

The university aims to accept its first students in the fall of 2017.

At an establishment ceremony for the university in Ho Chi Minh City last week, Mr. Kerrey was joined by another Vietnam veteran, Secretary of State John Kerry. Mr. Kerry noted that for both of them, their relationship with Vietnam “has always been personal.”

Mr. Kerrey was a gung-ho Navy SEAL lieutenant when he led his squad, known as Kerrey’s Raiders, into Thanh Phong on Feb. 25, 1969. Their mission was to hunt down a Viet Cong leader believed to be operating in the village.

The squad members first encountered a hut they had not expected. To avoid giving away their position, they used knives to kill five people, witnesses said, slitting the throats of an elderly couple and stabbing their three grandchildren.

Although Mr. Kerrey has taken responsibility for ordering the killings as squad leader, he has said he did not participate in them. However two other members of his unit say Mr. Kerrey helped kill the grandfather, later identified as Bui Van Vat, 65.

When they reached the main part of the village, they encountered women and children. According to Mr. Kerrey’s account, someone fired on the squad and the commandos returned fire, killing the civilians in the darkness and confusion.

“Give him a chance
to correct his mistake
by doing something
useful for the Vietnamese
people with his new job.”

Thao Dan, literature teacher in Haiphong

A member of his squad, Gerhard Klann, gave The Times a different account. He said that the SEALs rounded up the women and children, then debated what to do. They were not in a position to take prisoners, and if they let them go the villagers might alert the enemy. So Lieutenant Kerrey gave the order, Mr. Klann said, and they opened fire.

“The baby was the last one alive,” he said. “There were blood and guts splattering everywhere.”

A survivor, Bui Thi Luom, gave an account that matched Mr. Klann’s when I interviewed her at Thanh Phong in 2001.

Mr. Kerrey was later wounded on another mission and lost part of a leg. He and his raiders were never held to account for the killings.

Mr. Kerrey served as Nebraska’s governor and senator, ran for president in 1992, and retired from elective office in 2000. He served as president of the New School, a university in New York City, from 2001 to 2010.

Bao Anh Thai, a lawyer in Ho Chi Minh City, said that leading a university was not the proper place for a man with Mr. Kerrey’s war record.

“Please tell me the name of any prestigious university in this world, where a killer in cold blood of women and children — he admitted it and he is not charged for it — could be the president,” he wrote on Facebook.

“It is not about the Vietnam War, it is not about reconciliation between the two countries, it is a common sense of education. Would you send your children to a university like that?”

Nguyen Duc Hien, a journalist at a legal newspaper in Ho Chi Minh City, noted that Mr. Kerrey kept quiet about the atrocities for more than 30 years and only spoke publicly about them when journalists forced his hand.

“After killing and lying, he should not represent knowledge and contributing the values of America in Vietnam!” Mr. Hien wrote on Facebook.

“I welcome Fulbright, but America has no shortage of people to choose as a representative for America.”

Others were more willing to let Mr. Kerrey atone for his actions by helping the country.

“Give him a chance to correct his mistake by doing something useful for the Vietnamese people with his new job,” said Thao Dan, a literature teacher in Haiphong.

But Nguyen Van Tho, a writer and a veteran of the war, said there was a difference between forgiving and forgetting.

“If I had a chance to meet Bob Kerrey, I would still welcome him,” he said on Facebook. “I want to forgive and forget all the pain of war. People can forgive soldier Bob Kerrey but people are not allowed to forget all the killing of innocent civilians. That is a crime the world should condemn forever.”

Pending Court Ruling on China Claims

An international tribunal’s decision will reorder the tense chess game over the South China Sea — and test Washington’s commitment to the Philippines.
June 2, 2016 

An obscure court in The Hague will soon issue a ruling likely to inflame tensions in the South China Sea and force Washington to clarify how far it is willing to go to defend its allies in Manila.
The international tribunal is due to issue a decision this month over territorial disputes in the strategic waterway that have pitted China against its smaller neighbor, the Philippines. Most experts believe the court will side with Manila on the key issues.

But China has already rejected the court’s authority and vowed to stick to its far-reaching claims over the contested shoals, reefs, and rocks that the Philippines also asserts are its own. With a minuscule navy and coast guard, Manila will be looking to the United States for both diplomatic and military support. But, so far, Washington has stopped short of promising to come to the rescue of the Philippines if its ships clash with Chinese vessels in the South China Sea.

“We’ve had a number of uncomfortable senior-level engagements with the Filipinos over the past few years where they have pressed us, quite hard at times, to make our commitments clear,” a former senior U.S. government official, who was present at some of the discussions, told Foreign Policy. But the United States always declined to clarify its stance, the ex-official said.

The showdown in the South China Sea has been heating up for years, thanks to China’s large-scale land reclamation and aggressive use of fishing fleets and coast guard ships to bully other countries to steer clear of what Beijing considers its territory. 

But the real spark threatening to ignite that tinderbox is 6,000 miles away, in the wood-paneled, stained-glass chambers of the Permanent Court of Arbitration. The five-person tribunal has been wrestling with a host of tricky legal questions, poring over centuries-old maps, parsing legal terminology, and studying satellite images of the disputed outcrops since the Philippines filed its complaint in 2013.

From the beginning, China refused to acknowledge the tribunal’s jurisdiction in the case, or even the Philippines’s right to seek arbitration, and did not participate in the proceedings that concluded late last year.

The Philippines had argued that China’s so-called “historic” claims to the waters of the South China Sea — outlined in a sweeping “nine-dash line” that purports to show Chinese control over nearly all of the waterway — date only to 2009 and lack all basis in the historical record and in international law. Lawyers noted in particular that none of the features in dispute — from Fiery Cross Reef to Gaven Reef — had any Chinese-language names until recently, belying Beijing’s claims of a long, documented, historical relationship with those rocky outcrops.

Further, the Philippines argued, the reefs and atolls that China has occupied aren’t islands at all and thus don’t entitle Beijing to claim the surrounding 200 miles of water — and no amount of dredging and land reclamation can make them islands. Moreover, Manila said that some of the features are not even rocks, as they are underwater at high tide, and do not qualify for a boundary of 12 nautical miles. Finally, the Philippines argued that China’s aggressive behavior, including forcing Philippine fishermen and coast guard ships out of their own waters, violates the U.N. Convention on the Law of the Sea that China ratified.

While China never formally responded to The Hague tribunal, Chinese officials have repeated their own counterarguments in speeches, essays, and statements. They simply claim that the rocks and reefs in those waters are Chinese territory and always have been and that China has “historic rights” over the vast expanse of the South China Sea, even though the U.N. convention grants no such rights. Recently, China launched a public relations counteroffensive to discredit the tribunal and its ruling before any decision has been made public.

Most legal experts expect the tribunal will rule in favor of the Philippines on most, if not all, of the questions, and a decision is expected this month. 

James Kraska, a professor of international law at the U.S. Naval War College, is one of those expecting a big win for the Philippines. And China, he said, which was bound to submit to the arbitration, “is legally bound to comply with the decision.”

But Beijing has vowed it will not respect the panel’s ruling, regardless of what it decides, and that is almost certain to raise temperatures across Asia. Chinese officials say they respect international law but argue that panels like the one in The Hague have no authority.

“All the islands, where we are doing reclamation, are Chinese islands, are Chinese territory,” Wang Xining, a deputy director-general at the Chinese Ministry of Foreign Affairs, said in a recent interview. “So on the South China Sea, I think there is a huge misunderstanding. We wish to act based on international law.”

Inside China, Kraska said, a legal defeat would be a slap in the face to leadership in Beijing, which has against all evidence and law insisted that the disputed areas are sovereign Chinese territory.
“China’s costs from losing will be great. Through its conduct, Beijing already has killed the meme of its ‘peaceful rise,’ so most of the damage has already been done,” he said. But “the decision will be embarrassing and have its greatest impact regionally in the coming decades, and internally, trying to explain to its people how it lost.”

Analysts and former U.S. government officials say China has a range of options as to how to respond. It could issue a diplomatic protest, send more ships to the disputed waters, step up dredging and land reclamation activities at contested reefs, or even implement an “air defense identification zone” (ADIZ) around all the islets it lays claim to. Under an ADIZ, Beijing would demand foreign aircraft seek Chinese permission to fly through the area.

But few expect China to seek a military clash with the United States, and even an accidental escalation is less likely than a few years ago, said retired Adm. Jonathan Greenert, the U.S. Navy’s former chief of naval operations, thanks to new communications protocols he helped put in place.
For the Philippines, a legal win would be, above all, a moral victory and could well inspire other countries in the region to also seek arbitration; indeed, Japan and Indonesia have toyed with doing just that in their own disputes with China.

“The Philippines maintains that the decision of the tribunal, once rendered, will be legally binding and should be accorded due respect by everyone, including China,” Jose Cuisia, the Philippine ambassador in Washington, told FP.

But the biggest question is how the United States will respond to the panel’s ruling and especially to any uptick in tension between the Philippines and China. 

If the waters around those disputed atolls are determined to be international waters — rather than Chinese turf — then Washington will likely be under pressure to conduct more freedom-of-navigation operations with naval ships. By sailing within 12 miles of those disputed features, the United States would make clear that those waters are open to all — and can’t be fenced off by Chinese forces. That’s a crucial point to underscore in a waterway that moves more than $5 trillion worth of goods annually.

“I think it’s incumbent on us to insist we’re not going to recognize” the Chinese claims, said Greenert, who stepped down as Navy chief last year. However, the sluggish U.S. response a few years ago allowed Beijing to create facts on the ground with its large-scale reclamation and construction of military harbors and airfields, he said, a view shared by other former officers and diplomats.

“We did not get out ahead of it,” Greenert said. “It’s a fait accompli; they are there. It is unfortunate.”
An even bigger looming question is whether Washington will defend the Philippines if it gets into a scrap with China over those rocks and reefs. Since 1951, the Unites States and the Philippines have maintained a mutual defense treaty. During the Cold War, U.S. officials made clear that the treaty commits the United States to defend the Philippines not just in the event of an attack on its home islands, but also in the event of a military challenge in the waters of the South China Sea. In recent years, the U.S. administration has not specified whether that interpretation still stands.
“As President Obama has said, our commitment to the Philippines is ironclad,” U.S. State Department spokeswoman Anna Richey-Allen said.

But the nature of the U.S. commitment in the event of a showdown on one of those disputed shoals is still not entirely clear. Richey-Allen told FP that the State Department does not “speculate about hypothetical situations” with respect to the defense treaty. 

Experts and former U.S. officials say the ambiguity in Washington’s stance potentially reins in both Manila and Beijing from taking rash action, because they don’t know how the United States might respond.

“The basic logic of the U.S. government position is that strategic ambiguity provides us more maneuvering space than might otherwise be the case,” the former official said. 

But in the case of another territorial dispute involving China and a U.S. ally, Washington has been crystal clear about its alliance commitments. In the East China Sea, where Beijing is at loggerheads with Tokyo, top American officials and President Barack Obama himself have promised that the United States would honor its treaty obligations and come to the defense of Japan if a conflict erupted over the disputed Senkaku Islands, known in China as the Diaoyu.

The different approaches to Japan and the Philippines are partly due to the language of the defense treaties, experts say, and partly a calculation that Tokyo has a more capable military that could deter possible provocations by Beijing.

When Asian and Western defense officials, including U.S. Defense Secretary Ash Carter, gather in Singapore for an annual security conference this weekend, the imminent court ruling from The Hague — and America’s potential response — will be the main topic of discussion. Carter’s scheduled speech will be closely followed for any hints of a change in Washington’s policy.

When it comes to maritime tensions between China and the Philippines, one potential flash point that could draw a U.S. response is the Second Thomas Shoal. A team of less than a dozen Philippine Marines are stationed at the shoal on a rusting, World War II-era ship, the BRP Sierra Madre, which was run aground deliberately to safeguard Manila’s claims in the area.

If the Philippine troops run into trouble, the Obama administration could be forced to make a difficult call. But U.S. officials have privately discouraged Manila from taking any action that could trigger a crisis.

Or, as another former senior administration official put it: “Does the U.S. really want to get into a war over the Second Thomas Shoal?” 

FP’s Bethany Allen-Ebrahimian contributed to this article.