Tag Archives: International Law

Mark Collins – South China Sea: Why is USN Admiral Leading on US Policy vs China? Part 2

Further to this post in May, the head of US Pacific Command is at it again, note my italics–one would have thought such statements should be for civilian policy makers (in any event President Trump unlikely to be bothered)–at Defense One’sD-Brief“:

The U.S. will cooperate with China, “but we will be ready to confront when we must,” said PACOM’s Adm. Harry Harris during a speech this morning in Sydney. “We will not allow a shared domain to be closed down unilaterally no matter how many bases are built on artificial features in the South China Sea,” he said. “The U.S. fought its first war following our independence to ensure freedom of navigation. This is an enduring principle and one of the reasons our forces stand ready to fight tonight [emphasis added, talk about robust]”. More here

More here on the South China Sea.

Mark Collins, a prolific Ottawa blogger, is a Fellow at the Canadian Global Affairs Institute; he tweets @Mark3Ds

Mark Collins – South China Sea Update: Scarborough Shoal, China and Philippines

Further to this July post,

China Loses South China Sea Arbitration–Calls Decision “political farce”

a recent development:

Prospect of Philippine Thaw Slows China’s Plans in South China Sea

China’s next big target for construction of an artificial island in the South China Sea has long been assumed to be a cluster of rocks poking above sapphire waters near the Philippines.

For several years, Chinese Coast Guard vessels and fishing trawlers have hovered around the reef, known as Scarborough Shoal. Giant dredges, suitable for building a military base, were recently rumored to be on their way there.

But the election last spring of President Rodrigo Duterte of the Philippines, who has since showered threats and epithets on the United States [e.g. here], has changed China’s calculation.

That does not mean China has given up on the long-term goal of what could be a vast military base on Scarborough Shoal. But for the moment, the plans appear to be postponed.

More important for Beijing right now, Chinese analysts say, is friendship with Mr. Duterte and an effort to wean his country away from its treaty alliance with Washington. Transforming a shoal right under his nose would ruin any chance of that, these analysts say…

In July, an international tribunal in The Hague delivered a harsh rebuke to China’s activities in the South China Sea,, including its construction of artificial islands in the Spratly archipelago, not far from the Philippines. But China has ignored the decision

Three of seven artificial islands in the Spratlys are designed as military bases, the American military says. Among them, Subi Reef has a harbor bigger than Pearl Harbor, and another, Mischief Reef, has a land perimeter nearly the size of the District of Columbia’s, a submarine warfare officer in the United States Navy, Thomas Shugart, said in a paper issued this past week.

Together, the three islands could probably accommodate as many as 17,000 military personnel and support aircraft able to deter or counter an American military intervention, said Mr. Shugart, who is serving as a senior military fellow at the Center for a New American Security in Washington but writes as an independent analyst.

Scarborough Shoal, with a deep lagoon covering nearly 60 square miles, offers an even bigger prize as a potential Chinese military base. “The picture would become even worse were China to build and militarize a similar island base at Scarborough Shoal,” Mr. Shugart wrote…

Its conversion into a military base would enable China to project military power across the South China Sea from a triangle of bases formed by the shoal, the Spratly archipelago to its south and the Paracel Islands farther to the west and closer to the Chinese mainland, Mr. Shugart said.

Anticipation regarding China’s plans for Scarborough has been building since March, when, at a meeting in Washington, President Obama warned President Xi Jinping of China against taking action that could activate American treaty obligations to the Philippines, a senior State Department official said [1951 mutual defence treaty text here]…

One wonders how long the Dragon might play nice with the Philippines. The activation of those treaty obligations would be  pretty scary.

Imagery of Chinese construction activities, including military, at South China Sea islands is here.

Mark Collins, a prolific Ottawa blogger, is a Fellow at the Canadian Global Affairs Institute; he tweets @Mark3Ds

Mark Collins – China Loses South China Sea Arbitration–Calls Decision “political farce”

Further to this post,

South China Sea: Verbal Fire from the Dragon

Beijing reacts exactly as one expected; murky, quite possibly dangerous, seas ahead:

Hague Court Strikes Down Beijing’s South China Sea Claims
In a victory for the Philippines, an international tribunal ruled China’s expansive claims in the South China Sea are illegal, setting the stage for more tension in one of the world’s flashpoints.

An international tribunal delivered a stinging rebuke to China on Tuesday [July 12], ruling unanimously that Beijing has no historic title to the huge swathe of the South China Sea that it claims.

The decision by the Permanent Court of Arbitration in The Hague represents the first explicit, legal repudiation of China’s claims to the waters of the South China Sea, a territorial land grab that has in recent years soured relations between Beijing and many of its neighbors, especially the Philippines. China refused to recognize the tribunal and has repeatedly said that it will ignore the decision, which is binding and not subject to appeal.

The much-awaited decision will almost certainly further inflame tensions in the South China Sea, which has seen frequent clashes between Chinese coast guard ships and fishermen and vessels from other countries. The United States has over the past year sought to uphold international law and freedom of navigation in one of the world’s busiest waterways by dispatching navy ships to sail through waters that Beijing has tried to fence off.

As expected, Beijing dismissed the ruling, reiterating previous arguments questioning the tribunal’s ability to even hear the case. “China opposes and will never accept any claim or action based on those awards,” the Chinese government said in a written statement. Chinese Foreign Minister Wang Yi dismissed the ruling as a “political farce” and insisted that, despite the decision, Beijing has sovereignty over the islets and waters of the South China Sea.

“Any attempt by any force to undermine or deny in any way China’s territorial sovereignty and maritime rights and interests will be futile and will fail,” he said.

Wary of China’s reaction to the verdict, the Philippines called for “restraint.”..

State Department spokesman John Kirby said in a statement that Washington supports the rule of law, and that the arbitration panel’s ruling is “final and legally binding on both China and the Philippines. The United States expresses its hope and expectation that both parties will comply with their obligations.”..

In the wake of the ruling by the panel, which China has spent months trying to discredit, experts said Beijing could respond in a variety of ways. It could send more fighter jets to bases it is building on the disputed islets, or it could declare an air defense identification zone in part of the South China Sea, much as it did in 2013 in the East China Sea [see “Chinese ADIZ for South China Sea?“].

China could also ratchet up the fight with the Philippines by carrying out dredging and reclamation work at Scarborough Shoal, one of the features close to the Philippine coast and a reef at the center of the spat between the two countries. Or China could even try to blockade Philippine marines currently stationed at one of the tiny atolls, potentially threatening a showdown with the United States, which has a mutual defense treaty with Manila…

Experts said that China could choose to stop short of provocative action and instead take more incremental steps to signal Beijing was not backing off of its claims. Under that scenario, China would continue to build hangars on artificial islands in the Spratlys and draw boundaries or “baselines” connecting reefs and rocks it claims. That would pave the way for an eventual air defense identification zone in which China would demand all aircraft seek permission before flying into the area.

China’s track record over the past few years suggests it will press on with its aggressive tactics despite the court ruling, and possibly start dredging work at Scarborough Shoal, said James Kraska, professor of international law at the U.S. Naval War College [more here].

“Unfortunately, if the past is the best indication, it doesn’t look real good in my view,” Kraska told FP. “I just don’t know if the U.S. has enough influence to stop China from doing something they want to do.”..

Quite. Plus a Washington Post headline:

Chinese state media melt down over South China Sea Ruling

An earlier post featuring Prof. Kraska:

South China Sea and International Law:China, US and Australia

Mark Collins, a prolific Ottawa blogger, is a Fellow at the Canadian Global Affairs Institute; he tweets @Mark3Ds

Mark Collins – South China Sea: Verbal Fire from the Dragon

Further to this post and “Comments”,

South China Sea: USN Freedom of Navigation Ops vs China–Plus Vietnam

China is really throwing its weight around as it awaits a likely unfavourable arbitration court ruling soon on a South China Sea case brought by the Philippines–two stories:

China Declares a No-Sail-Zone in Disputed Waters During Wargame
The area is larger than the US state of Maine.

China should prepare for ‘military confrontation‘ in South China Sea, newspaper declares
China should prepare itself for military confrontation in the South China Sea, an influential Chinese paper [owned by the Communist Party] has reported, a week ahead of a decision by an international court on a dispute between China and the Philippines…

Freedom of navigation? One worries furiously that things could easily get rather out of hand should some incident occur. And curiously enough the Chinese navy is at this time taking part in the large American-led multinational exercise RIMPAC 2016 underway around Hawaii (the Canadian Forces are participating significantly).

Mark Collins, a prolific Ottawa blogger, is a Fellow at the Canadian Global Affairs Institute; he tweets @Mark3Ds

Mark Collins – Chinese ADIZ for South China Sea?

Now that would really put the Dragon amongst the US services’ pigeons, leading to scary possibilities for “incidents” given steadily rising tensions in the area–at Defense One’sD-Brief“:


Beijing may soon impose an air defence identification zone (ADIZ) over the South China Sea, reports the South China Morning Post, citing “sources close to the People’s Liberation Army” and a report in Canada-based Kanwa Defence Review. Two years ago, China established a similar ADIZ over the East China Sea, sending shock waves through the international circles. That, here.

That news comes as defense leaders prepare for two big conclaves this week: the 3-day Shangri-La Dialogue in Singapore, and the Strategic and Economic Dialogue between U.S. and Chinese officials in Beijing. At the latter, U.S. officials can expect “pressure” from Chinese officials angered by freedom-of-navigation patrols past their new artificial islands. Reuters reports, citing official Chinese media.

From Popular Science: China’s coast guard is getting a new armed cutter. “In recent disputes with its neighbors, China’s civilian maritime forces, such as its Coast Guard and ‘fishermen militia,’ have played key roles in acting on behalf of Chinese claims in the East and South China Seas.” As well, to accompany its new aircraft carriers and destroyers, China is acquiring a fleet of heavy support ships that will enable naval and amphibious assault operations around the world.

About those fishermen: Last Friday, an Indonesian frigate fired at and then boarded a Chinese fishing vessel suspected of poaching fish in Indonesian waters. Via The Diplomat, here

More on those US Navy patrols, note “Comments”:

South China Sea: USN Freedom of Navigation Ops vs China–Plus Vietnam

One wonders how seriously the Canadian government is taking developments in the region.

Mark Collins, a prolific Ottawa blogger, is a Fellow at the Canadian Global Affairs Institute; he tweets @Mark3Ds

Mark Collins – South China Sea: USN Freedom of Navigation Ops vs China–Plus Vietnam

Further to these posts,

US to Test China’s South China Sea Claims: How Much?

South China Sea and International Law: China, US and Australia

South China Sea: Eagle vs Dragon, Philippines Section (plus Vietnam)

the latest at Foreign Policy’s “Situation Report”:

U.S. Navy Buzzes Fake Chinese Island, Washington Readies Arms Sales to Vietnam

Sailing on. The guided missile destroyer the USS William P. Lawrence sailed within 12 nautical miles of Chinese-occupied Fiery Cross Reef on Tuesday, in another of a handful of recent freedom of navigation exercises meant to symbolically challenge Chinese claims to small, artificial islands in the South China Sea.

Beijing built the 700-acre artificial island, along with a 10,000-ft. runway, over the past year. That runway recently landed a Chinese warplane sent to pick up sick workers and bring them to the mainland, and the op comes just after a visit by Gen. Fan Changlong, vice chairman of the Chinese Central Military Commission, who became the most senior Chinese officer to visit one of China’s artificial islands. China also recently dispatched a popular military folk singer to entertain troops stationed on the island, for what it’s worth.

Not the first, not the last. In January, the Pentagon dispatched the USS Curtis Wilbur to cruise within 12 nautical miles of Triton Island in the Paracel Islands, and back in October, the USS Lassen did the same to several contested rocks in the Spratlys.

Pentagon spokesman U.S. Navy Cmdr. Bill Urban said in a statement that the operation “challenged attempts by China, Taiwan, and Vietnam to restrict navigation rights around the features they claim, specifically that these three claimants purport to require prior permission or notification of transits through the territorial sea, contrary to international law.”

Word coming. By this summer, an international tribunal in The Hague is expected to rule for the first time on the validity of China’s territorial claims as it tries to fence off nearly the entire South China Sea for itself. FP’s Dan De Luce and Keith Johnson took a hard look at the issues earlier this year, noting the deployment of long-range, surface-to-air missiles to Woody Island has only underscored the importance of the pending court decision. Experts believe the tribunal likely will rule in favor of the Philippines, which brought the suit against Beijing, but no one is sure who will actually enforce it, or how.

Making friends, selling guns. The most recent passby by the Lawrence comes just before President Barack Obama is slated to land in Vietnam, where he’s expected to lift a ban on arms sales to the communist country. But human rights groups and some members of Congress are unhappy with the possibility, FP’s Dan De Luce and Keith Johnson tell us. And China isn’t too pleased, either, as it wages a series of highly-volatile disputes with Hanoi over islands in the South China Sea.

It’s complicated. “The step would carry crucial symbolism in the growing contest for influence between China and the United States in the Western Pacific,” FP’s duo writes. Yet the country’s human rights record is abysmal, and State Department officials have been pressing the country to free some political prisoners by time Obama touches down [from July 2015: “The US and Vietnam: Containing China Together? A Visit to Washington“]…

Meanwhile the Philippines have elected a really wild-card president. And there’s an important question about the US and the region:

South China Sea: Why is USN Admiral Leading on US Policy vs China?

Mark Collins, a prolific Ottawa blogger, is a Fellow at the Canadian Global Affairs Institute; he tweets @Mark3Ds

Mark Collins- “Opinion: Why I Was (Probably) Wrong On C Series”

Further to this post,

Bombardier Loss-Leads CSeries to Delta–Big Time (plus Canadian politics)

I may well have been too pessimistic too–though I have not doubted the willingness of Quebec and the feds to cough up funding. Excerpts from a piece at Aviation Week and Space Technology, note possible legal challenges:

Richard Aboulafia


Credit: Bombardier

Bombardier’s new management, arriving early last year, has proven transformational. After eight years of dismal results and an orderbook best described as “wobbly,” Bombardier has received a breakthrough endorsement from Delta, and it is almost certain to be followed by other quality customers. Clearly, the new management has committed Bombardier to the kind of commercially aggressive deals needed to sign a second strong airline (after Lufthansa, the launch customer).

But perhaps the smartest move by incoming CEO Alain Bellemare and his new team was to create an entirely new financial structure for the C Series. Last year, they spun the program off as a separate entity, writing off $3.2 billion of earlier funding in the process.

The new team then used this structure to bring in government cash, with Quebec province taking a $1 billion investment stake. The provincial government’s Caisse de Depot et Placement du Quebec (CDPQ) pension fund then took a $1.5 billion stake in the company’s Transportation division.

This was my mistake with the C Series: I underestimated the Canadian and Quebec governments’ willingness to back this program. When it began, together they had provided CA$700 million ($550 million) in launch aid; I didn’t think this would be the start of a much larger aid package. After all, this is Canada in 2016, not Indonesia in 1992. Modern industrial economies seldom provide this level of support for national champions.

Having said that, Quebec’s move was understandable, given the C Series’ technical promise…

…The company as a whole continues to lose money. And it has requested that the Canadian federal government also take a $1 billion stake in the C Series, giving all three parties (Ottawa, Quebec and Bombardier) a one-third share in the program.

Consider the implications if Ottawa makes this investment. The C Series would be vulnerable to a trade complaint brought by the U.S. or the EU (or both). After all, this wouldn’t be just a subsidized program; rather, two-thirds of the necessary investment cash would be coming from the Canadian federal and Quebec provincial governments. The majority of program risk would be borne by Canadian taxpayers.

Air Canada’s February CS300 order announcement represents another trade complaint vulnerability. When the airline announced its plan, it denied that this order was politicized, but at the same time, the Quebec government ceased its three-year legal fight over Air Canada’s efforts to move maintenance work outside the province. In December, the airline had lost a court appeal against the province, implying greater risk ahead. If the U.S. or EU could prove that the end of Quebec’s litigation was a quid pro quo associated with the C Series order, that would be a severe violation of the World Trade Organization’s Agreement on Trade in Civil Aircraft (ATCA).

It isn’t clear if the U.S. government would file a complaint if more cash is provided. The 2016 U.S. National Trade Estimate (NTE) Report on Foreign Trade Barriers, released last month, states: “The United States will continue to monitor carefully any government financing and support of the C Series aircraft.” The EU has so far said nothing.

If either party did launch a trade complaint, it would likely be quickly settled, probably to the C Series’ detriment. Unlike the fiendishly complicated U.S.-EU dispute over subsidies to Airbus and Boeing, state support of this nature would be an open-and-shut case. Also, unlike the U.S.-EU complaints, which involve two large economies, retaliating against a smaller country such as Canada would be relatively easy. A simple tariff on C Series exports to U.S. or EU airlines would suffice.

With or without a trade complaint, the C Series may be starved for cash at a crucial phase—just as production ramps up. But this is a risk, not a certainty. Teal Group’s baseline assumption is that the C Series will be a success…

Contributing columnist Richard Aboulafia is vice president of analysis at Teal Group [website here]. He is based in Washington.

On verra. But the skies are surely looking sunnier these days.

Mark Collins, a prolific Ottawa blogger, is a Fellow at the Canadian Global Affairs Institute; he tweets @Mark3Ds

Mark Collins – No Need For Hoo-Hah Over the Bear and Arctic Waters

And were not talking about the status of the polar type (more here)–further to this post,

Arctic Tensions Not Really About the Region but Relations With Russia

there’s a lot of good sense in this piece:

Canadian Arctic Security: Russia’s Not Coming
Canada’s Arctic is facing real security concerns, but the prospect of an incursion from Russia is far-fetched at best, argue Adam Lajeunesse and Whitney Lackenbauer. From our partners at Arctic Deeply.

The Arctic ice is melting, the Russians are coming and time is running out for Canada and the U.S. to reach an agreement on the status of the Northwest Passage. At least, that’s the sensationalist assessment published by political commentators Michael Byers [see “The Canadian Forces, or, The Byers Disarmament Plan“] and Scott Borgerson [more here] in the Wall Street Journal on March 8, 2016.

Over the past year, news magazines and websites have published splashy images of large military deployments across the Russian North, coupled with maps showing the locations of Russia’s new Arctic airbases. Throw in Moscow’s extensive claims to the Arctic continental shelf (which overlaps those of its circumpolar neighbors) and its recent activities in Ukraine and Syria, it’s no wonder comments warning of Russian warships charging into the Northwest Passage are feeding anxieties.

But Canada’s position in the Arctic is, however, not in peril. Over the past 10 years, studies of northern shipping routes and sea-ice dynamics have consistently shown that, regardless of how much ice is melting, the Canadian Arctic will not emerge as a safe or reliable sea route for the foreseeable future [see “Arctic: NW Passage Commercial Shipping Long Way Off/No Shell“]. Why Russia (or any country) would risk damaging a billion-dollar warship to sail through the passage is hard to understand.

A Russian “freedom-of-navigation” voyage through the Northwest Passage would be politically senseless and counterproductive. For 65 years, Russia has passively supported Canada’s position that the Northwest Passage constitutes internal waters. This reflects simple self-interest. Russia’s Arctic sea routes are claimed on a similar basis. To challenge Canadian sovereignty over the Northwest Passage would weaken Russia’s jurisdiction over the various straits that make up the Northern Sea Route.

Despite these considerations, some scholars and analysts are advising Canada to prepare for an uninvited, and perhaps hostile, foreign naval incursion into its waters. Byers and Borgerson advocate immediate negotiations between the U.S. and Canada to resolve the 70-year-old bilateral dispute over the status of the Northwest Passage. If the U.S. could be brought to recognize Canadian sovereignty, they reason, both Canada and America would be safer from state-based and terrorist threats.

We’ve tried this approach before – many times, in fact. In 1963, Canadian negotiators travelled to Washington to warn their American colleagues of the threat posed by Soviet submarines, which intelligence showed were beginning to probe the North American Arctic. If Canada enjoyed undisputed sovereignty over the Northwest Passage, it could legally exclude the ships and strengthen continental defense. To the Canadians’ dismay, the U.S. State Department pointed out that America’s global interest in the freedom of the sea trumped – and would always trump – Arctic security concerns. Canadian officials used this security argument again in 1969-70 and 1985-88. But it foundered each time over U.S. fears that it would set a precedent in international law. If Canada could claim the Northwest Passage as its own, then other maritime states could make similar claims on far more important straits. The U.S. will not be cajoled into recognizing Canadian sovereignty today, when the military threat is insignificant compared to the existential crisis of the Cold War.

History shows that this lack of political consensus does not endanger Canadian or American security. For decades, our two countries have prudently managed our legal disagreements and preserved our respective positions while collaborating on continental defense. During the Cold War, American submarines patrolled Canada’s Arctic waters watching for Soviet submarine transits. Declassified American naval documents also suggest that the vessels were there with the knowledge and participation of the Canadian government. On a couple of occasions, they were even invited in by Ottawa.

Accordingly, the reality of Canada’s Arctic security is less worrying than sensational headlines make it out to be…

Quite. See earlier based on the same authors:

What Should Concern Canada in the North and Arctic– Hint: Not sovereignty

More on hoo-hah:

Arctic Sovereignty Hoo-Hah Letter to Editor Printed!

Mark Collins, a prolific Ottawa blogger, is a Fellow at the Canadian Global Affairs Institute; he tweets @Mark3Ds

Mark Collins – US to Test China’s South China Sea Claims: How Much?

Further to this post,

Dragon Admiral: It’s the “South China Sea” so it’s, er, Chinese


things could easily get scarily out hand:

1) The Chinese:

China navy calls for United States to reduce risk of misunderstandings

China hopes the United States can scale back activities that run the risk of misunderstandings, and respect China’s core interests [i.e. do not challenge us], the Defense Ministry on Thursday [Oct. 1] cited a senior Chinese naval commander as saying.

Each country has blamed the other for dangerous moves over several recent incidents of aircraft and ships from China and the United States facing off in the air and waters around the Asian giant.

Last year the Pentagon said a Chinese warplane flew as close as 20 to 30 feet (7 to 10 m) from a U.S. Navy patrol jet and did a barrel roll over the plane.

The Pacific is an important platform for cooperation, Admiral Sun Jianguo, deputy chief of staff of the People’s Liberation Army, told Admiral Harry Harris, commander of the U.S. Pacific Command.

The prerequisite for win-win cooperation is mutual trust,” Sun said, according to China’s Defense Ministry.

“(We) hope the U.S. side can pay great attention to China’s concerns, earnestly respect our core interests, avoid words and actions that harm bilateral ties, and reduce activities which cause misunderstandings or misjudgments,” he added.

The two officials were meeting in Hawaii on the sidelines of a gathering of Asia-Pacific defense officials.

The comments came as one of the U.S. Navy’s most advanced aircraft carriers docked in Japan at the start of a deployment that will strengthen the capability of the Seventh Fleet in Asia and boost ties between the United States and its closest regional ally.

Last week, the United States announced pacts with China on a military hotline and rules governing airborne encounters, which seek to lessen the chance of an accidental flare-up between the two militaries, despite tension in the South China Sea.

China last month said it was “extremely concerned” about a suggestion by a top U.S. commander that U.S. ships and aircraft should challenge China’s claims in the South China Sea by patrolling close to artificial islands it has built…

 

2) The Americans and that “challenge”:

In South China Sea, a Tougher U.S. Stance
Rejecting China’s “Great Wall of Sand,” the U.S. Navy will patrol near man-made islands constructed by Beijing.

reef.jpg


The United States is poised to send naval ships and aircraft to the South China Sea in a challenge to Beijing’s territorial claims to its rapidly-built artificial islands, U.S. officials told Foreign Policy.

The move toward a somewhat more muscular stance follows talks between Chinese President Xi Jinping and U.S. President Barack Obama in Washington last month, which fell far short of a breakthrough over how territorial disputes should be settled in the strategic South China Sea.


A final decision has not been made. But the Obama administration is heavily leaning toward using a show of military might after Chinese opposition ended diplomatic efforts to halt land reclamation and the construction of military outposts in the waterway. The timing and details of the patrols — which would be designed to uphold principles of freedom of navigation in international waters — are still being worked out, Obama administration and Pentagon officials said.


It’s not a question of if, but when [emphasis added],” said a Defense Department official.


The move is likely to raise tensions with China. But U.S. officials have concluded that failing to sail and fly close to the man-made outposts would send a mistaken signal that Washington tacitly accepts Beijing’s far-reaching territorial claims…



Oh oh.  Very relevant:

The Dragon, The US Navy and the South China Sea

Dragon Re-Writing International Law for South China Sea



The Asian Maritime Cockpit, Eagle vs Dragon Section


The Asian Maritime Cockpit, Eagle vs Dragon Section, Pacific Pivot Indeed

Mark Collins, a prolific Ottawa blogger, is a Fellow at the Canadian Global Affairs Institute; he tweets @Mark3Ds