The Right to Fish and International Law in the South China Sea

Journal of Political Risk, Vol. 4, No. 1, January 2016

By Leonardo Bernard

Protesters wearing fish-shaped hats gather outside the Chinese Consulate during a rally in suburban Makati, south of Manila, Philippines on Tuesday June 11, 2013. The group held the rally to oppose China's alleged continued intrusion and poaching activities in the West Philippine Sea. (AP Photo/Aaron Favila)

Protesters wearing fish-shaped hats gather outside the Chinese Consulate during a rally in suburban Makati, south of Manila, Philippines on Tuesday June 11, 2013. The group held the rally to oppose China’s alleged continued intrusion and poaching activities in the West Philippine Sea. (AP Photo/Aaron Favila)

Summary

One of the most important disputes that exist between states surrounding the South China Sea is over fishing rights, as most of the states bordering the South China Sea assert an exclusive right to fish in parts of it. For example, the Philippines and Vietnam claim that they have an exclusive right over fisheries resources in the waters within 200 nautical miles (M) of their respective mainland coasts. China also declares the right to exploit fisheries resources in the South China Sea, but not only in the waters within 200 M from its mainland coast and from the Paracel Islands. By using the ‘U-shaped line’, China’s claim extends beyond any possible exclusive economic zone (EEZ) limits that can be generated by its mainland and by any islands in the South China Sea over which it claims sovereignty. China, however, has not clarified the meaning of the U-shaped line map, nor the maritime zones generated by the islands in the South China Sea over which it claims sovereignty.

China’s fishing right claim appears to be based on both EEZ entitlement and historic claim. China argues that the features in the South China Sea are entitled to a full-fledged EEZ and continental shelf as a group, but has yet to make any official declaration of the limit of its EEZ claim from the islands. Additionally, China argues that they have a form of exclusive historic rights within the waters inside the U-shaped line but beyond the maritime zones generated from the islands. However, this unusually expansive and exclusive historic claim over such a huge body of water would unlikely be agreed to by the international community.

Whether historic title can trump the provisions of UNCLOS depends on the strength of the claim to historic title. If a state can provide an exceptionally strong basis to its historic claim, then maybe such historic title could be considered as an exception to the rules in UNCLOS. However, justifying a historic fishing right claim over the waters within the U-shaped line in the South China Sea is a Sisyphean task. This uphill battle to make a justifiable historic rights claim under international law has been severely limited by the high threshold of proof set by the ICJ. Moreover, such rights have mostly become obsolete since the advent of the EEZ and continental shelf concepts.

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H.E. Ambassador Katalin Bogyay’s speech to the UN

Journal of Political Risk, Vol. 3, No. 12, December 2015.

Below is the speech delivered by H.E. Ambassador Katalin Bogyay, Permanent Representative of Hungary to the UN in New York City on 20th October, 2015 at the Reception on the occasion of the commemoration of the 23 October, 1956 revolution.

Your Excellencies,
Ladies and Gentlemen,
Dear Friends,

Security Council adopts historic resolution on youth, peace and security. UN Photo/Amanda Voisard

Security Council adopts historic resolution on youth, peace and security.  December 2015. UN Photo/Amanda Voisard

In the music of Egmont overture, Op. 84. Ludwig van Beethoven, one of the greatest composers of mankind expressed his own political concerns through the exaltation of the heroic sacrifice of a man condemned to death for having taken a valiant stand against oppression. It was composed during the period of the Napoleonic Wars, at a time when the French Empire had extended its domination over most of Europe.

The subject of the music and dramatic narrative is the life and heroism of a 16th-century Dutch nobleman, the Count of Egmont.

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Recommendations to the UN Security Council Committee on Counter Terrorism

Journal of Political Risk, Vol. 3, No. 12, December 2015.

By Scott Atran

A. What ISIS Wants

Members of Scott Atran’s research team, Lydia Wilson and Hoshang Waziri, run an experiment with a Peshmerga fighter (front) near Mahmour on the frontlines between Mosul and Erbil in Northern Iraq, about 1km from ISIS positions. You can see fusion cards (pairs of circles) and formidability cards (bodies from smaller and weaker to bigger and stronger) in the experiments. March 2015. Photo credit: Scott Atran.

The following are axioms drawn from The Management of Chaos-Savagery (Idarat at-Tawahoush, required reading for every ISIS political, religious and military leader, or amir), and from the February 2015 editorial in Dabiq (online ISIS publication), on “The Extinction of the Gray Zone.” ISIS’s actions have been, and likely will continue to be, consistent with these axioms:

  • Work to expose the weakness of the so-called Great Powers by pushing them to abandon the media psychological war and war by proxy until they fight directly.
  • Draw these powers into military conflict. Seek the confrontations that will bring them to fight in our regions on our terms.
  • Diversify the strikes and attack soft targets – tourist areas, eating places, places of entertainment, sports events, and so forth — that cannot possibly be defended everywhere. Disperse the infidels’ resources and drain them to the greatest extent possible, and so undermine people’s faith in the ability of their governments to provide security, most basic of all state functions.
  • Target the young, and especially the disaffected, who tend to rebel against authority, are eager for self-sacrifice and are filled with idealism; and let inert organizations and their leaders foolishly preach moderation.
  • Motivate the masses to fly to regions that we manage, by eliminating the “Gray Zone” between the true believer and the infidel, which most people, including most Muslims, currently inhabit. Use so-called “terror attacks” to help Muslims realize that non-Muslims hate Islam and want to harm all who practice it, to show that peacefulness gains Muslims nothing but pain.
  • Use social media to inspire sympathizers abroad to violence. Communicate the message: Do what you can, with whatever you have, wherever you are, whenever possible.
  • Pay attention to what works to hold the interest of people, especially youth, in the lands of the Infidel [e.g., television ratings, box office receipts, music and video charts], and use what works as templates to carry our righteous messages and calls to action under the black banner.

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Rationalizing U.S. Goals in the South China Sea

Journal of Political Risk, Vol. 3, No. 9, September 2015.

By Gregory B. Poling

Abstract

Construction at Fiery Cross Reef as of November 2014. Source: CSIS Asia Maritime Transparency Initiative and Digital Globe.

Construction at Fiery Cross Reef as of November 2014. Source: CSIS Asia Maritime Transparency Initiative and Digital Globe.

There has been an explosion of interest in the U.S. policy community regarding the South China Sea disputes, but that interest has too often resulted in oversimplifications and haphazard recommendations regarding how the United States should respond to Chinese activities in disputed waters. Not every action that could be taken should be taken. In order to respond effectively to increasing tensions, U.S. policymakers must clearly identify U.S. long-term strategic goals and gear policy responses toward achieving them. This paper argues that the United States’ top interest in the South China Sea is the preservation of the global maritime commons, and its eventual goal must therefore be to see China clarify its ambiguous “nine-dash line” claim so that the claimants can reach a long-term agreement on managing the disputes that is consistent with international law. Building partner capacity and boosting U.S. presence in order to prevent other claimants from being steamrolled by Chinese bullying before such a resolution can be effected is an important part of that strategy, but it is not the long-term goal. The paper concludes with a number of recommended policy responses the United States should take in order to further its strategic goals.

China’s island building campaign in the Spratly Islands continued unabated through most of 2015, despite strident condemnation from fellow claimants and outside nations. Chinese dredging ships remained hard at work expanding seven features: Cuarteron, Gaven, Hughes, Fiery Cross, Johnson South, Mischief, and Subi reefs. Their work appears to have been completed.[1] Now China is moving from island building to large-scale construction of military and civilian structures at these artificial land masses. China has presented the region and interested outside parties, including the United States, with a fait accompli.

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Why Sanctions Failed to Roll Back Putin: Incongruity among Sanctioning Parties

Journal of Political Risk, Vol. 3, No. 8, August 2015.

By Olena Lennon and Alexander V. Laskin

A woman walks past a shop window with a T-shirt on display reading, 'I Believe in the Ruble', in downtown Moscow, Russia, on Monday, Dec. 22, 2014. The ruble has been the worst performing currency this year along with the Ukrainian hryvnia, having lost half of its value. Its collapse in the past weeks sparked a consumer boom as worried Russians flocked to the shops to buy cars and durable goods before prices rose further. (AP Photo/Pavel Golovkin)

A woman walks past a shop window with a T-shirt on display reading, ‘I Believe in the Ruble’, in downtown Moscow, Russia, on Monday, Dec. 22, 2014. The ruble has been the worst performing currency this year along with the Ukrainian hryvnia, having lost half of its value. Its collapse in the past weeks sparked a consumer boom as worried Russians flocked to the shops to buy cars and durable goods before prices rose further. (AP Photo/Pavel Golovkin)

Recent sanctions against Russia following its military incursion in Ukraine have not been effective in their short-term goal (Russia’s withdrawal from Ukraine) and long-term goal (change of Russia’s regime). By applying Lektzian and Patterson’s theory of winners and losers of sanctions to the Russian case, we argue that the sanctions have not been effective for three reasons: the cost of sanctions is lower than the cost of conceding, the economic costs associated with sanctions are felt disproportionately across groups, and increased restrictions to international commerce have fueled nationalism and empowered Russia’s authoritarian regime. Our analysis of anti-Russian sanctions also points to a gap in Lektzian and Patterson’s theory, which differentiates between the varying types of countries subjected to sanctions, but overlooks the multiplicity of political agendas among sanctioning parties. The case of sanctions against Russia demonstrates a lack of unity and prevalence of conflicting agendas among the sanctioning parties, such as the E.U. countries, the United States, and Canada. Therefore, to better understand the mechanism of sanctions and predict their success or failure, we recommend further categorizing sanctioning countries based on their involvement with the target country in terms of trade, joint research projects, and political alliances. This differentiation will allow us to examine the interaction between the varying types of sanctioning countries and target countries to determine which combinations are likely to bring the desired outcome.

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The Challenge of Militant Islam

Journal of Political Risk, Vol. 3, No. 8, August 2015.

By Ambassador Curtin Winsor, Jr. Ph.D.

We have a vital stake in a civilizational war,
(that is) inside someone else’s civilization.” -James Taub[i]

Kurdish people, living in Manchester (UK), protesting against the Turkish government for their lack of action against ISIS (also known as IS or ISIL) in the Syrian border town of Kobane. (Photo by Jonathan Nicholson/NurPhoto/Sipa USA)

Kurdish people, living in Manchester (UK), protesting against the Turkish government for their lack of action against ISIS (also known as IS or ISIL) in the Syrian border town of Kobane. (Photo by Jonathan Nicholson/NurPhoto/Sipa USA)

Islam, as a religious culture, is used to sanction war and terrorism by the Prophet Muhammad as he united the tribes of Arabia.  Islamic civilization evolved to support the world’s most advanced centers of learning and science during the eight centuries following the end of the Roman Empire and through the medieval period in Europe.[i]  Islam became a great culture and then it devolved, most recently, into the confusion and chaos of today’s Middle East. It is being manipulated by militant Islamists to sanctify the uses of violence and terrorism by an Islamic state. The outcome of this conflict will play an important role in the future of the United States and its relationship with the Middle East.

Militant Islamists and their new Islamic State are presently using tactics of terror against Sunni Muslim peoples in the Middle East to force them to abandon secular aspects of their cultures and return to a totalitarian religious culture. Although this pivotal struggle is now taking place within someone else’s civilization, if the militant Islamists prevail in the Middle East, the struggle will become part of the United States’ struggle.  The United States and the West will constantly be challenged by a ceaselessly aggressive and totalitarian religious culture. Such a threat to Western civilization would at least rival the West’s 20th century struggles with the Nazis and Communists.

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What the Chinese Education Minister is Really Trying to Say

Journal of Political Risk, Vol. 3, No. 7, July 2015.

By Grace Zhang

Cartoon by Kiko Hernandez  kartoonista.com http://thekartoonista.blogspot.com/?m=1

Illustration by Kiko Hernandez
kartoonista.com

China’s education minister Yuan Guiren gave a speech in Beijing in January 2015 about banning the use of Western textbooks in classrooms that has stirred up a lot of controversy.[i] Guiren believes there should be minimal use of Western textbooks in higher education in China. His intention in doing this is to block Western values from entering the classroom, which will reduce criticism of Communist Party leadership among students.

To someone from the West, this may seem extreme and difficult to understand because it’s so far from the ideals that Western countries hold, but there are cultural differences to be taken into consideration. I believe that Guiren isn’t saying these things to stir up controversy or hinder the education of his people, but instead he is advocating for Chinese national interest.

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Clash of Titans: India’s ‘Act East’ Policy Meets China’s ‘Maritime Silk Road’ in the South China Sea

Journal of Political Risk, Vol. 3, No. 6, June 2015.

By Gordon G. Chang

The littoral combat ship USS Fort Worth (LCS 3) Littoral Combat Ship USS Fort Worth (LCS 3) - 11 May 2015 Littoral combat ship USS Fort Worth (LCS 3) arrived in Subic Bay, Republic of the Philippines, to resupply May 13 after a weeklong routine patrol in international waters and airspace of the South China Sea near the Spratly Islands. While Fort Worth has transited the South China Sea many times, this patrol marks the first time an LCS has operated in international waters near the Spratlys.  (Rex Features via AP Images)

The littoral combat ship USS Fort Worth (LCS 3)
Littoral Combat Ship USS Fort Worth (LCS 3) – 11 May 2015
Littoral combat ship USS Fort Worth (LCS 3) arrived in Subic Bay, Republic of the Philippines, to resupply May 13 after a weeklong routine patrol in international waters and airspace of the South China Sea near the Spratly Islands.
While Fort Worth has transited the South China Sea many times, this patrol marks the first time an LCS has operated in international waters near the Spratlys.
(Rex Features via AP Images)

As Beijing seeks to exert influence westward, into the Indian Ocean, New Delhi is looking east, into the South China Sea.

The two powers, acting on each other’s periphery, can reach compromises and cooperate in many areas, but on some points resolution of differences will be difficult.  China, from all appearances, is trying to exclude the vessels and aircraft of other nations from most of the South China Sea, and India insists on freedom of navigation.

Their clashing maritime initiatives suggest ties between the two giants will remain troubled.  Chinese President Xi Jinping likes to use the phrase “win-win,” but the South China Sea looks for China and India to now be a zero-sum contest.

For decades, the two nations had almost no interaction in international water.  India had announced a “Look East” policy in 1991, but its outreach was limited, more aspiration than core policy.[i]  Moreover, there was no element of competition with China for control of sea lanes.  The phrase “South China Sea” rarely passed the lips of Indian diplomats or security analysts, and the Indian navy did not venture far from its ports.  China’s fleet, for its part, stayed in coastal waters, the Indian Ocean being well beyond its capabilities.

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What It Takes to Resolve the South China Sea Dispute

Journal of Political Risk, Vol. 3, No. 6, June 2015.

By Priscilla A. Tacujan, Ph.D

Supplied photo taken April 12, 2015 shows Subi Reef in the South China Sea, where China has continued reclamation work to build an airstrip. China is asserting sovereignty over most of the South China Sea, which is also claimed in whole or in part by Taiwan, Vietnam, Brunei, Malaysia and the Philippines. (Photo by the Philippine military)(Kyodo)

This photo taken April 12, 2015 shows Subi Reef in the South China Sea, where China has continued reclamation work to build an airstrip. China is asserting sovereignty over most of the South China Sea, which is also claimed in whole or in part by Taiwan, Vietnam, Brunei, Malaysia and the Philippines. (Photo by the Philippine military)(Kyodo)

By now, it should be clear to everyone that China is not giving up its maritime claims in the South China Sea.  Despite pending international court decisions and worldwide condemnations, China has aggressively reclaimed about 2,000 acres of land in the South China Sea — proof of its intent to stay, defend, and protect 90% of the sea that it claims it owns.  Indeed, when State Secretary John Kerry asked China to halt its reclamation activities during his visit to Beijing last week, China’s Foreign Minister Wang Yi’s response was as revealing as it was firm: China’s determination “to safeguard its sovereignty and territorial integrity in the South China Sea is as firm as a rock, and it is unshakable.”[i]

According to the Pentagon’s Annual Report to Congress (2015) on China’s growing military presence on the high seas, China has started infrastructure projects on four reclamation sites that “could include harbors, communications and surveillance systems, logistics support, and at least one airfield,” prompting most analysts to believe that Beijing is attempting “to change facts on the ground.”  In his remarks during a US-Japan relations conference held in Washington DC last month, Admiral Dennis Blair, Chairman of the Sasakawa Peace Foundation (USA), described China’s current “gray zone strategy” as “an administrative, civilian and sub-military strategy” that is intended to create a new territorial jurisdiction, hence, de facto control, over the South China Sea.[ii]  With this strategy, China would be able to create “a defensive sea barrier extending hundreds of miles from China’s coast to what it calls ‘the first island chain.”[iii]

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Turkey’s June 7 General Election and the Risk of an Increase in Violence in Turkey’s Kurdish Regions

Journal of Political Risk, Vol. 3, No. 5, May 2015.

By George Dyson

Supporters of Selahattin Demirtas, co-chair of the the pro-Kurdish People's Democratic Party (HDP) wait for him to arrive to deliver a speech during a rally in Istanbul, Turkey, Sunday, May 24, 2015. Turkey will hold general election on June 7, 2015. Although it is a relatively small party, all eyes will be on HDP. If it reaches the minimum 10 percent threshold required for entering parliament as a party, it could effectively thwart Turkey's President Recep Tayyip Erdogan’s ambition to lead a presidential system following a constitutional change. (AP Photo/Emrah Gurel)

Supporters of Selahattin Demirtas, co-chair of the the pro-Kurdish People’s Democratic Party (HDP) wait for him to arrive to deliver a speech during a rally in Istanbul, Turkey, Sunday, May 24, 2015. Turkey will hold general election on June 7, 2015. Although it is a relatively small party, all eyes will be on HDP. If it reaches the minimum 10 percent threshold required for entering parliament as a party, it could effectively thwart Turkey’s President Recep Tayyip Erdogan’s ambition to lead a presidential system following a constitutional change. (AP Photo/Emrah Gurel)

Single digit differences in the percentage of votes attained by parties in Turkey’s upcoming general election could lead to radically different outcomes, all of which hold consequences for the health of the ongoing peace process (the “resolution process”) between the Turkish state and Kurdish armed groups in the country’s restive south east. If political groups close to the Kurdish movements find themselves frustrated at the ballot box, unable to cross Turkey’s high threshold that keeps smaller parties out of the mainstream, there is a chance of an increase in violence, even moves towards secession. Similarly, the ruling AKP (Justice and Development Party), if it does not do sufficiently well at the next elections, may find it hard to push through with the resolution process. However, there are other potential outcomes that would not degrade the resolution process. Turkey’s south east regions with large Kurdish populations hold great economic potential, with hydrocarbon reserves, a mobile population and proximity to an opening Iran and a flourishing Northern Iraq. A collapse of the resolution process and an increase in the conflict could seriously prejudice this potential and lead to greater instability across Turkey. Continued cooperation could help bring greater stability to the wider region.

Recep Tayyip Erdoğan, the President of Turkey, is seeking to change the constitution to endow the presidential position with more powers, despite apparent divisions within his party over the issue. While, as president, Erdoğan is technically no longer a member of his party and is not running in the coming election, he is campaigning feverishly against the opposition. His party, the incumbent AKP, has been in power now for three terms and has seen its share of the vote rise and fall. But, while always maintaining enough seats to form a government, it has seen its number of seats consistently fall. Current polls suggest AKP will not have the backing it needs to change the constitution. Many polls suggest that the AKP share of the vote may fall by at least 5-6% (compared to its 2011 election result, where AKP took 49.8% of the vote) at the coming elections, but that they will still be the largest party. However, if they lose much more than this, they may even be unable to form a government.

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