Category: maritime

Redefining the Status Quo

The most striking feature of China’s behavior in its maritime disputes this year has been efforts to redefine the status quo. In its disputes with the Philippines and Japan, China has used the presence of its civilian maritime law enforcement agencies to create new facts on the water to strengthen China’s sovereignty claims.

Before April 2012, neither China nor the Philippines maintained a permanent presence at Scarborough Shoal. Fishermen from the Philippines, Vietnam, Taiwan and China operated in and around the large reef. At times in the past, especially in the late 1990s and early 2000s, the Philippine navy had arrested Chinese fishermen who were inside the shoal. Since then, Chinese patrols have sailed by the shoal, but no effort has been undertaken to exercise effective control over the shoal or its surrounding waters.

The situation changed following the standoff over sovereignty of Scarborough Shoal. The standoff began in April 2012 when the Philippine navy prepared to arrest Chinese fishermen who were operating in the shoal’s lagoon. After receiving a distress call, two China Marine Surveillance (CMS) vessels arrived on the scene, blocking the entrance to the lagoon and preventing the arrest of the Chinese fishermen. After the fishing boats left the shoal, however, government ships from both sides remained to defend claims to sovereignty over the shoal. By the end of May, China had deployed as many as seven CMS and Bureau of Fisheries Administration ships.

In early June, the Philippines announced that an agreement had been reached with China for a mutual withdrawal of ships. Although China never publicly confirmed the existence of such an agreement, ships from both sides left in mid June as a typhoon approached the area. Later, however, Chinese ships returned and appear have maintained a permanent presence in the waters around the shoal since then. In mid July 2012, for example, an intrepid news crew from Al Jazeera videotaped an attempt to visit the shoal, only to be turned away by a combination of CMS and fisheries administration vessels. China has also roped off the sole entrance to the lagoon inside the shoal to control access to it.

Before the standoff, China had no permanent presence at Scarborough Shoal. Three months later, China had effective control of the shoal and the surrounding waters, thereby altering the status quo in this dispute in its favor. As an editorial in the Global Times noted, China has “directly consolidated control” of the shoal.

A similar dynamic is underway in the East China Sea over the Senkaku / Diaoyu Islands. Before the Japanese government’s purchase of three of the islets from a private citizen in September 2012, Chinese government ships had generally avoided entering the 12 nautical mile limit of Japan’s territorial waters around the islands. As I wrote several years ago, China and Japan appeared to have a tacit agreement from the mid-2000s to limit the presence of ships and citizens near the islands in an effort to manage the potential for escalation.

In September 2010, the detention of a Chinese fishing captain whose boat had broached the 12 nautical mile limit and then rammed a Japanese Coast Guard ship sparked a crisis in China-Japan relations. Part of China’s response included increasing the number of patrols by marine surveillance and fisheries vessels near the islands. Most of the time, these boats remained beyond Japan’s 12 nautical mile territorial waters around the Senkakus or crossed this line only briefly. China in practical terms continued to accept Japanese de facto control of the islands and their associated territorial waters (over which a state enjoys sovereignty rights under the UN Convention on the Law of the Sea).

After the purchase of the islands last month, however, China has abandoned this approach. China firstissued baselines to claim its own territorial waters around the islands and then began to conduct almost daily patrols within its newly-claimed waters – directly challenging the Japanese control that it had largely accepted before. The purpose of the patrols is two-fold: to demonstrate that the purchase of the islands will not affect China’s sovereignty claims and to challenge Japan’s position that there is no dispute over the sovereignty of the islands.

Although China does not control the waters around the Senkakus (unlike the situation at Scarborough), it no longer accepts de facto Japanese control. On October 31, a Ministry of Foreign Affairs spokesmanasserted that a new status quo had been created. After describing China’s new patrols as “routine,” Hong Lai stated that “the Japanese side should face squarely the reality that a fundamental change has already occurred in the Diaoyu Islands.”

In both cases, China responded to challenges to its claims with an enhanced physical presence to bolster China’s position and deter any further challenges. These responses suggest an even greater willingness to pursue unilateral actions to advance its claims. In neither case is a return to the status quo ante likely.

[This originally appeared in The Diplomat.]

Something to Talk About in the East China Sea

The diplomatic stand off between China and Japan over the Senkaku / Diaoyu Islands has entered its third week without any signs of de-escalation. Positions on both sides have hardened. Each government has released detailed accounts of the bases for their claims (, ). Talks earlier in the week between diplomats in Beijing yielded only an agreement to keep talking. The atmosphere of a meeting in New York between foreign ministers Yang Jiechi and Koichiro Gemba was described as “.”

The issued by China’s Ministry of Foreign Affairs contained China’s key demand at the moment. It stated that Japan should “come back to the very understanding and common ground reached between the two sides” and “return to the track of negotiated settlement of the dispute.”

What does this mean? China believes that in talks with Japanese officials involving Zhou Enlai and Deng Xiaoping, agreements or understandings were reached that the islands were disputed but that any effort to resolve their conflicting positions would be deferred to achieve more pressing tasks, especially the normalization of relations in 1972 and the conclusion of a peace treaty in 1978.

Japan’s position, however, is that there is nothing to discuss. As Prime Minister Noda , “So far as the Senkaku Islands are concerned, they are an inherent part of our territory, in light of history and international law. It’s very clear. There are no territorial issues as such, therefore there could not be any compromise that may mean any set back from this basic position.”

Such a position – denial of a dispute – is not uncommon in conflicts over territory. When one side controls all of the territory being contested, it often states that there is no dispute. South Korea, for example, claims that there is no dispute over the Dokdo / Takeshima Islands, which are also claimed by Japan. Likewise, that there is no dispute over the Paracel archipelago, which Vietnam claims.

Why, then, does China believe that there is something to talk about? Documentary evidence is scant. Neither side has released transcripts of meetings between leaders when the islands were discussed. Nevertheless, authoritative party history sources from China sources reveal why Beijing maintains that there was a shared understanding in the past.

In 1972, Zhou Enlai and Takeiri Yoshikazu (leader of the Komeito party) appeared to agree orally not to discuss the Senkakus in talks that would be held to normalize relations between the two countries. In , Seton Hall scholar cites a collection of documents on Chinese-Japanese relations: in July 1972, Zhou told Takeiri, “There is no need to mention the Diaoyu Islands. It does not count a problem of any sort compared to recovering normal relations [between the two countries].” A earlier this month contains a similar account. Thus, from China’s point of view, the decision not to discuss the dispute at the time was a recognition that a dispute did exist.

Similarly, in 1978, Deng Xiaoping and the Japanese Foreign Minister also appeared to agree orally not to discuss the Senkakus at a later time. A of Deng’s activities published by a summarizes a meeting between Deng and Foreign Minister Sunao Sonoda. According to the book, Deng stated: “It’s not that China and Japan do not have any problems. For example [there are] the Diaoyu Island and continental shelf issues. Don’t drag them in now, they can be set aside to be calmly discussed later and we can slowly reach a way that both sides can accept. If our generation cannot find a way, the next generation or the one after that will find a way.”

(The original Chinese is: “?????????????? ???????????????????????????????????????????????????????????????????????????????????????”)

To be clear, these Chinese source materials only show why China maintains that an understanding existed in the past. Full transcripts of these meetings have not been released. How Takeiri and Sonoda responded to Zhou and Deng is unknown. Nevertheless, they appear to acknowledge the presence of a dispute. At the same time, there’s no record that Zhou or Deng contested directly Japan’s actual control of the islands then, either.

Other parties, notably the United States, also view the islands as disputed. The United States recognizes Japan’s administration of the islands, which it transferred in 1972, and that the islands fall under the mutual defense treaty. Nevertheless, as both Secretary of State Hilary Clinton and Secretary of Defense Panetta have , “the United States doesn’t take a position on competing sovereignty claims” over the islands. Moreover, the U.S. position on the dispute is not new. Before the transfer, the State Department’s was that “the U.S. passes no judgment as to conflicting claims over any portion of them, which should be settled directly by the parties concerned.”

At the moment, China and Japan stand at a diplomatic impasse. Yet China’s September 10 statement retains sufficient ambiguity for creative diplomats to define the “common ground” between the two sides in order to restore stability in the dispute. For example, Japan could state that although its sovereignty over the islands is “indisputable,” it recognizes that, in practice, other claims exist. If China and Japan want to move forward, they will need to find a way to shelve the dispute again.

[This originally appeared in .]

Drawing Lines in the Water

In the past few days, China has launched a broad and well coordinated media campaign to express opposition to the Japanese government’s purchase of three of the While tensions rise between Japan and China in the East China Sea, an important development may have been overlooked.

(Diaoyu) Islands from a private Japanese citizen. The campaign has included remarks by almost every member of the Politburo standing committee, an authoritative statement by the Ministry of Foreign Affairs and semi-authoritative commentaries in official media sources such as thePeople’s Daily, PLA Daily, and Xinhua.

Nevertheless, amid all the expressions of indignation, one of the most important elements of China’s response has been overlooked: agovernment statement announcing baselines to demarcate China’s territorial sea around the disputed islands. Under the UN Convention on the Law of the Sea, a state enjoys the equivalent of territorial sovereignty within this zone, which extends 12 nautical miles seaward of the baselines that a state declares.

When China first declared its baselines in 1996, it did not publish base points for three areas that were under dispute: the Spratly Islands in the South China Sea, Taiwan, and the Senkakus. China did draw baselines around the Paracel Islands, which Vietnam claims, but likely did so because it had controlled the entire archipelago for several decades.

At first glance, the announcement of baselines around the Senkakus might just be a symbolic declaration of sovereignty that will not change any facts on the ground. Although China could not prevent the sale of the islands, the media campaign has emphasized that this act does not alter China’s claims, a point that the baselines underscore.

Nevertheless, beyond re-affirming China’s claims, the announcement of baselines may matter for several reasons. First, from China’s perspective, it establishes a legal basis for China’s claim to jurisdiction not just over the islands but also, more importantly, over the waters around the islands. On September 13, China submitted its baselines to the United Nations in accordance with UNCLOS.

Second, as a result, it creates a rationale for an increased Chinese presence around the islands. The importance of this rationale was revealed on September 14, when the Ministry of Foreign Affairs announced that two task forces with a total of six ships from the China Marine Surveillance Force had been dispatched to the waters near islands to “defend our maritime rights and interests.”

Third, a struggle between Chinese and Japanese government ships may occur to control the 12 nautical mile territorial sea around the islands. In the past, Chinese vessels have usually respected this line, though it has occasionally been crossed temporarily to underscore China’s claims. If cooler heads fail to prevail, however, the increased number of ships in the area, seeking to exercise control over the territorial sea around the islands, could spiral out of control in ways that neither country wants. Hopefully cooler heads will prevail.

[This originally appeared in The Diplomat.]

Japan, China’s Maritime Step

Many of the most salient disputes between China and its neighbors involve maritime issues. Moreover, as demonstrated by the current standoff between Beijing and Manila over Scarborough Shoal, China is often seen as assertive and uncompromising. Nevertheless, maritime talks held with Japan this week suggest that China can be more flexible in managing its maritime disputes than most outsiders believe.

China and Japan agreed to establish this high-level consultative mechanism on maritime affairs in December 2011 during Prime Minister Yoshihiko Noda’s first trip to Beijing. These talks, which will be held twice a year, are designed to enhance crisis management by increasing communication among related government agencies in both countries. As a press release from China’s Ministry of Foreign Affairs (MFA) noted, the talks will serve a “platform” for increasing dialogue and communication, promoting cooperation, and managing disputes at sea.

Such a consultative mechanism is sorely needed. As the September 2010 crisis over the detention of a Chinese fishing captain near the Senkakus demonstrated, maritime disputes can escalate into a crisis. In addition to the dispute over the sovereignty of the Senkakus, China and Japan have other maritime conflicts: the demarcation of their Exclusive Economic Zones in the East China Sea, China’s development of the Chunxiao natural gas field near the median line that Japan claims, fishing operations, and survey activities, among others.

The first round of talks was held at the departmental level, led by Yi Xianliang, Deputy Director of the MFA’s Department of Boundary and Maritime Affairs, on the Chinese side. Importantly, the participants didn’t just include diplomats but also representatives from key Chinese bureaucracies involved in maritime affairs and their counterparts from Japan, including the Ministry of National Defense (PLAN), Ministry of Public Security (the Coast Guard), Ministry of Transportation (the Maritime Safety Agency), Ministry of Agriculture (the Bureau of Fisheries Administration), the State Energy Administration, and the State Oceanic Administration (the Marine Surveillance Force).

Details of the talks weren’t disclosed. The MFA press release simply noted that the two sides had exchanged views on maritime issues and cooperation, including the Senkaku Islands. Nevertheless, the creation of such a high-level mechanism on maritime affairs may represent a significant development in Chinese foreign policy for several reasons:

To start, the talks constitute the first comprehensive and institutionalized mechanism on maritime issues between China and Japan. Previous talks over a 1997 bilateral fisheries agreement or the 2008 agreementon gas exploration in the East China Sea were conducted on an ad hoc basis and included only those actors directly involved in the issue being negotiated. Given the potential for any one maritime dispute to escalate and create a crisis, these talks may help stabilize Chinese-Japanese relations.

The present standoff with the Philippines over Scarborough Shoal notwithstanding, these talks with Japan reflect a pattern of Chinese moves to manage its territorial and maritime disputes with its neighbors. Examples of such efforts include a July 2011 agreement with ASEAN over guiding principles for implementing the 2002 code of conduct declaration in the South China Sea, an October 2011 agreementwith Vietnam on basic principles for resolving maritime issues, and a January 2012 agreement with India for managing border incidents along their disputed frontier.

In addition, the talks suggest that China is strengthening interagency coordination in maritime affairs under the leadership of the MFA. A recent report from the International Crisis Group highlighted the lack of coordination among maritime actors as a source of Chinese assertiveness between 2009 and 2011 in the South China Sea. These talks bring together each of the “five dragons” of civil maritime law enforcement agencies that can influence China’s relations with its neighbors at sea, and may help increase coordination among them. Moreover, by including the Defense Ministry, the talks may also strengthen coordination and communication between the MFA and the PLA.

Finally, the talks provide a model that might be used to address other maritime issues elsewhere, including in the Yellow Sea with South Korea and even perhaps in the South China Sea. Clashes between Chinese fishermen and South Korean authorities have reached a new peak in recent years, with almost 500 Chinese vessels having been fishing illegally in Korean waters. Likewise, despite a joint fishing agreement, the two sides haven’t demarcated their maritime jurisdiction under the U.N. Convention on the Law of the Sea.

To be sure, this new mechanism that China and Japan have created hasn’t yet been put to the test. Still, it suggests that China can pursue more flexible and collaborative approaches in its maritime disputes with neighboring states – and that Beijing acknowledges the importance of such flexibility.

[Note: This originally appeared in The Diplomat]

Clarification of China’s Claims in the South China Sea?

Ambiguity about the extent of China’s maritime claims in the South China Sea has been a key source of concern in this dispute. In the 1990s, China issued a series of domestic laws detailing its maritime claims under the U.N. Convention on the Law of the Sea, including 12 nautical mile territorial seas and 200 nautical mile exclusive economic zones (EEZ). Nevertheless, Chinese maps continue to contain a “nine-dashed line” around the South China Sea. The line first appeared on an official map produced by the Republic of China in 1947. After 1949, China continued to use the line on its official maps, but never defined what the line included or excluded.

In a recent press conference, the Ministry of Foreign Affairs appeared to take an important step towards clarifying China’s claims in the South China Sea – and suggesting what the line might not mean.

First, the spokesperson, Hong Lei, distinguished between disputes over “territorial sovereignty of the islands and reefs of the Spratly Islands” and disputes over maritime demarcation. This affirms past statements, including a note to the United Nations in May 2011, that China will advance maritime claims that are consistent and compliant with UNCLOS. Under UNCLOS, states may only claim maritime rights such as an EEZ from land features like a nation’s coastline or its islands.

Second, and more importantly, the spokesperson further stated that “No country including China has claimed sovereignty over the entire South China Sea.” By making such a statement, this phrase suggests that the “nine-dashed line” doesn’t represent a claim to maritime rights (such as historic rights), much less a claim to sovereignty over the water space enclose by the line. More likely, the line indicates a claim to the islands, reefs and other features that lie inside.

To be sure, China could advance a large claim to maritime rights in the South China Sea from the islands and other features in the Spratly Islands. Although UNCLOS only permits states to claim a 200 nautical mile EEZ from islands that can sustain permanent human habitation, sovereignty over a single island can generate an EEZ of approximately 125,000 nautical miles.

Nevertheless, even articulation of a large but UNCLOS-compliant claim would offer several advantages in terms of dispute resolution. It would clarify where China’s EEZ claims from islands in the South China Sea overlap with the claims of littoral states from their coastlines. As a result, disputed and undisputed areas would be clearly identified. It would also allow states to invoke the dispute settlement mechanisms of UNCLOS, Part XV, which would a negotiated settlement to overlapping claims.

Of course, this recent statement doesn’t represent a full and complete definition of the nine-dashed line. Nevertheless, it does at least rule out one possible definition and provide an opportunity for other states to press China to further clarify its position.

[This post originally appeared on The Diplomat]

China’s Maritime Assertiveness

Michael Swaine and I have just written an article for the China Leadership Monitor that examines China’s assertiveness in the Yellow, East, and South China Seas. We assess whether, to what degree, and in what ways the PRC has become more assertive along its maritime periphery in recent years. It also assesses the external and domestic forces motivating Beijing to become more or less assertive over time and the prospects for Chinese assertiveness with regard to maritime sovereignty issues in the future.

Read the article