Tuesday, October 24, 2017

"101 Briefing": Understanding Maritime Law Issues In The South China Sea J. Ashley Roach, Former U.S. Navy JAG and Former U.S. Department of State Attorney Advisor

"101 Briefing": Understanding Maritime Law Issues In The South China Sea
J. Ashley Roach, Former U.S. Navy JAG and Former U.S. Department of State Attorney Advisor
The Washington Foreign Press Center
Department of State
Washington, DC
October 23, 2017

MODERATOR: Good morning, ladies and gentlemen. Thank you for waiting. I’m very, very pleased today to have the opportunity to introduce my friend and former colleague, Captain Ash Roach, who is a noted expert on Law of the Sea issues.
In preparing for this particular 101 briefing – that’s what we call our informational briefings – what I said to him was, “Pick the ten biggest misconceptions you see in press reporting about the South China Sea and make your presentation a means of banishing them from the press forever.” And he has taken that to heart. I think you’ll find his presentation very interesting.
I’ll make the usual disclaimer: Since Captain Roach is not with the government, he will be speaking in his own capacity. His remarks do not necessarily reflect U.S. policy. I’ll introduce him to make his presentation, and then I’ll come back for the question-and-answer period. We’ll also have questions from the Foreign Press Center in New York, which is participating by DVC. A reminder that we are on the record, we’re obviously off-camera – I don’t see any cameras – and we will have a transcript posted after we finish.
And with that, let me turn it over to Captain Roach.
CAPT ROACH: I get to stand up here. All right, now, there’s always a problem with wanting to be able to see what you’re about to say and know what’s going on, so bear with me in that regard.
First, thank you, Benjamin, for inviting me to come here. It’s my pleasure to be here. Benjamin and I go back a long ways when I was at State. And the issue of the South China Sea is of particular interest to me for two reasons. One, I do a lot of Law of the Sea work generally and I’ve written a lot about things where, from the U.S. point of view, there’s an inconsistency with what the Convention says. And the South China Sea became a big issue during the Clinton secretariat. And then a few years ago, I got invited to go to the Center for International Law at the National University of Singapore, where they have, of course, a big interest in the South China Sea. So from those two things, I’ve had fun looking at that and enjoying it.
Now I’ve got a clicker, and let’s see if I know how to make the clicker work. Yes. That’s my disclaimer, just to reinforce what Benjamin said, and I am just speaking on my own and please take it for that as what it is.
Now, these are the things that struck me in reflecting on what Benjamin said in terms of what are the ten things that – the reports that I read don’t seem to get it right. And I assume that most of those are simply the result of you’re not trained as lawyers, you don’t have any particular background on that. Frequently, I can tell that a story that you post is based in part on what others have written and they’re equally as difficult. So we’re going to talk about these subjects, which I think some of which is a bit more complicated than the other, but which are necessary for you to understand what’s going on here.
So let me start with the big picture, if you will: sovereignty vs. sovereign rights. One way to look at this is consider sovereignty as a bag of sticks, where the sticks are all together and give you, the state, all the rights that you’re entitled to do. You can control the activities, you can tax it, you can do all kinds of things. But the farther you move away from land into the ocean, there becomes less sticks in that bundle for the coastal state to deal with that. And that’s the basic underlying structural difference between sovereignty and sovereign rights.
In the context of sovereignty, as the bullet says here, you have: your territory – that’s your land territory; your internal waters; the territorial sea, which is adjacent to the internal waters; and the airspace above. That’s where the coastal state has sovereignty.
But interestingly enough – and I’ll show you what an archipelagic state looks like, but it’s basically the same – the same idea – the interesting thing is in the way the world has been structured in this law, that although the bundle of sticks for sovereignty remain even in the territorial sea, there’s one less stick, and that’s the stick that permits innocent passage of ships through the territorial sea.
And so immediately, once you get outside the baseline and outside internal waters, you’ve got one less stick. And the maximum breadth for the territorial sea is 12 nautical miles, as you probably know. You don’t have to claim that much, but you can’t legally claim more than that.
And then as you move seaward over the territorial sea, you move into this new concept that was established in the 1980s of the Exclusive Economic Zone, and that’s where the bundle of sticks has been divided even more. The economic rights – the sticks representing the economic rights continue with the coastal state, but because it’s more than 12 miles from sea – from land, the international community, those who navigate, have navigation rights, and they have the same navigation rights in the EEZ as they have on the high seas, which is that body of water seaward of the outer limit of the EEZ if one is claimed.
And just to give you sort of a visual – and these are – I find sometimes visuals make it easier for everybody – you can see that, as you move from the land, you move farther seaward and it sets the maximum breadth. And then the yellow is actually the Earth, if you will, underneath the water, and that’s oftentimes the continental shelf. And that really is not that much of an issue in the South China Sea, although it is in a couple places, particularly in the area where Vietnam and Malaysia overlap in the south part. And then seaward of whatever the outer limit of the continental shelf is, is the deep seabed, and that’s managed by the International Seabed Authority, which is based in Kingston.
Now, just to pick up a bit on the navigational rights and freedoms, which is basically the area where there’s the much – the greatest friction in the South China Sea and oftentimes elsewhere, it really had its first appearance in treaty law in the 1958 Geneva Conventions on the Law of the Sea. And just so you know, because most people don’t, the U.S. is party to those treaties and therefore is as legally bound by the terms of that as any other state. Most of the navigational provisions in the Law of the Sea Convention come from the ’58 Geneva Convention, either on the Territorial Sea or on the High Seas.
And as you probably know, as a matter of presidential policy since 1983, the U.S. follows what those provisions are in the Convention. And we will continue, I am sure, to do so under the Trump administration -- although I have no inside information on that -- until hopefully the Senate gives advice and consent to accession.
But – and this is another point that people often don’t remember – is that there have been increasing statements by judicial bodies and others that the navigational provisions in the Law of the Sea Convention from 1982 are what we call customary international law, and therefore are binding on all states whether or not you’re party to the particular treaty. Now that’s an evolving recognition, and I’ve written on what is there and so forth.
All right. So that’s the basics. Now, we get a little bit more fun.
This is where the issue of what I call excessive claims – excessive maritime claims – and FONOPs come into play. As you know perfectly well, the U.S. conducts FONOPs worldwide, and we’ve been doing it for over half a century. It’s to exercise those high-seas freedoms which other states tend to denigrate one way or the other. And to the extent that you have some – and I mentioned them further on down – where you have a restriction imposed by a coastal state that is inconsistent with what the U.S. and others believe the Convention permits, I call those excessive maritime claims. I’ve written a book with that title, and you can look it up.
And it’s been a matter of some discussion as to what is meant by that. And recently, as far back as this year’s Shangri-La Dialogue, Secretary Mattis made it clear, and his spokesmen since then have made it clear that, when they use the term “freedom of the seas” it’s not unrestricted; rather, it’s those rights, freedoms, and lawful uses of the seas and airspace, including military ships and aircraft, which, again, is a matter of disagreement for some, recognized under international law.
And what’s important to bear in mind there, is that freedom of the seas does not mean that you can do anything you want, because the freedom of the seas is, if you will, bound by the duty to respect others’ rights to do the same. And so there are limitations on that, and therefore the words “freedom of the seas” should not be taken totally literally, in the sense that it’s not a freedom to do anything you want to do.
And so the last three bullets there talk about where the freedom of the high seas exists in the EEZ and in the high seas. It includes the freedoms of navigation and overflight, and they apply, of course, in the EEZ, as I’ve said. And to the extent that you’re dealing with an archipelago, those same situations apply in what’s called archipelagic waters, even though in terms of an archipelagic state the archipelagic waters -- that is, those inside the baseline -- are under their sovereignty. So that’s another stick, if you will, that’s taken away from the sovereign – the sovereignty bunch of bullets and given to the international community. And I can explain why we’re there, if you’re interested, in the Qs-and-As session.
Now, in the South China Sea, which is, of course, your great interest, there are a number of provisions by some coastal states bordering the South China Sea which, in the view of those including myself who read the Convention in the way it’s been interpreted, you’ve got a problem of baselines, what you call straight baselines. And that’s the line that’s drawn in the sea that separates internal waters from the territorial sea, and I’ll illustrate this coming up. To the extent that you have what are called a dependent archipelago, that is, something like the Galapagos, like the Paracels, they’re geographically archipelagos because it’s a group of islands, but because they are under the sovereignty of another state, a coastal state, they don’t meet the technical definition of an archipelagic state in Article 46 of the Convention.
But nevertheless, China in particular has drawn straight baselines around those, and is talking about doing that down in the Spratlys. And so one of the current issues is whether or not that’s appropriate, and I’ll come back to this when we talk a bit about FONOPs.
Another issue that they’re concerned with is this requirement to require either prior authorization or prior notification for a warship to exercise its rights of innocent passage through the territorial sea. And what isn’t often known is that, during the negotiations in the 1970s and up until the early 1980s, a number of states – China one of them – sought to have specific text in the Convention that would authorize prior authorization or prior notification. That failed to achieve the necessary acceptance, and so the Convention has nothing in it which allows that kind of activity.
Nevertheless, a number of countries subsequent to the signing of the Convention and its entry into force have continued to maintain that which they wanted but didn’t get. And so I think you can see how that would be viewed as something which is important to make sure that you’re not dealing with it.
There are a couple of other things in the South China Sea. There’s the issue of claiming a territorial sea around a feature which is not entitled to do that under the law. Low-tide elevations and totally submerged features are the two that exist in that regard.
And then to the extent that there has been some claims for the airspace over artificial islands which were constructed down in the Spratlys is sovereign airspace. Because you can’t have a territorial sea there, you can’t have any sovereign airspace legally.
All right. Here’s the big picture. This graphic illustrates what the situation is with regard to what I’ve just talked about in the South China Sea. The medium-color blue up on the Chinese coast and on the Vietnam coast are the claimed internal waters; that is, that’s the areas landward of the straight baselines which China and Vietnam have drawn. You got a similar situation with regard to Malaysia, but they haven’t published where the coordinates are of those straight baselines.
The dark blue is the archipelagic waters of the Philippines, and this also illustrates – which is hard to see, but there’s a very narrow light-blue band that’s to the seaward of the internal waters, and that’s the claimed territorial sea that arises from having drawn straight baselines. It’s the 12 miles seaward of those baselines. And then the orange are areas that are seaward of 200 miles EEZs drawn from the various baselines or coastlines. So you can see there are some areas in the South China Sea which could well be considered to be high seas.
Now a couple of quick illustrations just so you can sort of see what the rules are. If you want to draw straight baselines following the decision of the International Court of Justice in 1951, they can be drawn in two separate circumstances: where the coastline is deeply indented and cut into, which is the picture on the left; or if there is a fringe of islands along the coast on the right. And those two rules derive from the geographic circumstances of the northern parts of Norway because Norway has those deep fjords and in other places has fringe of islands. And so that’s where the rules came from, and the question is whether or not – because there’s no specific definitions of what all those are, how far can the rule be pushed and what do people do with that?
This is a picture of an archipelago – again, the same kind of structure except that the – in an archipelago the baselines around the archipelago can go from all of the features that surround the outermost features, and so you get a whole lot of water inside, which is called archipelagic waters, under the sovereignty of the archipelagic state, subject to the passage rights that exist. And then if you look at the lower right-hand corner – and you’ll see this again – you have a low-tide elevation. That’s an island outside the archipelago, so it gets its own territorial sea.
Now, here is where you have the issue of what can be done in terms of drawing baselines, where you have – sorry – where you have low tide elevations, which you’ll see they are – those are features which are above water at low tide, but below water at high tide. And unless they are within the territorial sea of another feature, they cannot be used to create a territorial sea of their own. And the Convention is very clear about that. But that’s sort of an easy way of depicting all of these words that I’ve just put in front of you.
All right, moving to FONOPs in the South China Sea. The freedom of navigation operations which the U.S. and some other countries, actually, conduct – what they’re trying to show is that they want to exercise their rights in areas where the coastal state claims they don’t have a right to navigate under those circumstances. And the issues relate to baselines, which I’ve discussed with you; restrictions on innocent passage, which I’ve discussed with you; claims to territorial sea around low tide elevations, which I’ve mentioned before. Its purpose is simply to show that the U.S. and whoever else conducts FONOPs doesn’t accept those particular claims. As I said earlier, the U.S. has been doing it for over a half a century. We do it worldwide, we do it against friends and those with whom we’re not friends. And as a – the latest example of a FONOP that has been anticipated is, the Royal Navy made a statement maybe six, seven, eight weeks ago that the new aircraft carrier that they’re building will be deploying to the South China Sea to engage in what we call FONOPs.
Now, let me go back to the last one. And this is much easier; this is not complicated. But it’s one that is the most irritating to me, when I read in a report with regard to the award by the arbitral tribunal that The Hague did it, that the Permanent Court of Arbitration did it. No, that’s not true. The Law of the Sea Convention sets up a very complex, but very comprehensive, regime for this peaceful settlement of disputes. And to the extent that you move into the range of engaging in what’s called a compulsory dispute settlement, the Convention says – states parties can choose which of the four forum they wish to use, whether that be the International Court of Justice, whether that be the International Tribunal for the Law of the Sea in Hamburg, whether it be arbitration or, in certain special cases, special arbitration. The Convention provides that, if the parties to a dispute have not agreed on what forum should hear the dispute, it’s arbitration. It's on that basis that what we call an Article VII arbitral panel was formed to hear the case from the Philippines against China.
Now, there’s all kinds of further things that happened with regard to that. But that’s why you should properly say it’s the award of the Arbitral Tribunal, or the Law of the Sea Arbitral Tribunal, something like that. It’s not the Permanent Court of Arbitration. Permanent arbitration – its facilities in The Hague are used in a lot of arbitrations, because they’ve got a big staff, they’ve got great rooms in which it can be done. The – part of the staff will be able to do research for them, can do a lot of the transcription of what they want to say. But it’s all administrative. It’s not the court itself. That’s existed for a long time, and it’s a wholly separate organization.
And so let me just sort of conclude with this substantive part by saying please don’t refer to the Permanent Court of Arbitration when you’re talking about the arbitral award, because it isn’t. And as somebody who now knows what we’re talking about, you can imagine that if you’re a reader and you hear something like this, you begin to say, “Well, what does the writer really know? What’s the credibility of this article?” And you have – there’s no reason for you to want to do that. But it’s sort of self-inflicted wound for a lot of things. And this was the big thing that Benjamin really caught me on, because I’ve had a fuss with this for a long time, and I’m grateful to have the forum in which I can at least tell you why you should do it differently.
Now, I can just give you some other things just to make it easier for you and then we can take questions. If you’re looking for the text of the Law of the Sea Convention, you can find it at that website – there’s a lot of other Law of the Sea stuff there as well – but this is a very easy place to look at all of the articles there, and there’s a lot of them. And if you want to learn some more about FONOPs, a young lady named Lynn Kuok, who’s a Singaporean who works at Brookings here in Washington, has written this really, really good policy paper. It’s very thorough, it’s very balanced, and it’s a resource which I would recommend – it’s not all that long. But I really recommend your reading it, because I think you’ll find that you know – after you finish reading it, you’ll know a lot more about what’s involved in the FONOPs.
And let me just – I’ve got a few more minutes here. Let me explain a couple of the – as I understand them, the U.S. FONOPs in the South China Sea. To the extent that you have this restriction on innocent passage, then we will engage – the U.S. engages -- with innocent passage through the territorial sea. And one of the complicating questions is to make sure you’re doing that in a place where the territorial sea is drawn in a way that’s consistent with the Convention. And some of the earlier ones didn’t quite make that entirely clear. But in terms of another claim problem, you have up in the Paracels – and you remember there’s been two incidents now – where, as you saw from the illustration, the Paracels are enclosed with straight baselines, and then they draw the territorial sea seaward of that. And so the question becomes: If you’re going to do a FONOP, what are you going to do a FONOP against? And what you – one of them is not the prior notification issue, but the fact that they’re claiming more territorial sea than they’re entitled to, because the archipelagic straight baselines – is that what they look like, the straight lines around the Paracels -- don’t meet any of the criteria that exists. But the Paracels are perfectly individually allowed to have a territorial sea.
So it’s one of those nuances that’s really hard to capture, but that’s what they’re trying to say. When they do a FONOP in the Paracels, they’re going to pick an area where they’re not questioning who owns the Paracels, although that’s a separate issue entirely, but they’re questioning the baselines and where the territorial sea is for that.
All right. That’s enough talk for me, and besides, I’m getting over a cold, so I have the opportunity to take a drink now.
MODERATOR: Thanks very much. We can open it up for questions. As usual, we ask, please, that you wait for the microphone to come to you, and when you do get it, to identify yourself by name and outlet. We ask that you please limit to one question. New York, if and when you have some questions at your end, if someone can step up to the lectern, we’ll know that they’re there.
CAPT ROACH: Don’t be afraid to be first.
MODERATOR: It looks like New York will be first. Sir, go ahead.
QUESTION: Well, that’s a privilege. Thank you. I come to the question – I’m Manik Mehta. I’m a syndicated journalist. I’ll just take up on that question regarding the ruling by The Hague arbitration body, which you just mentioned, in favor of the Philippines over a shoal island. The Philippines has not yet enforced its claim, preferring to have economic gains from China. Do you think that the Philippines will eventually lose its sovereignty over the island in the long term if it prefers to play down its claims right now? Also, could you comment on the viability of formulating a code of conduct in the South China Sea as the ASEAN countries have been asking from China for some time? Thank you.
CAPT ROACH: With regard to your first question, with regard to the Philippines’ current administration’s dealing with the outcome, or the award, from the arbitral tribunal, I would refer you to some statements that occurred in New York last month, when the foreign minister of the Philippines made a long address on a whole range of issues. But there’s two-and-a-half minutes within that speech, which you can listen to on YouTube, that makes it clear from the current Duterte administration’s point of view that, although the Aquino administration’s approach was probably what had to be done then, the circumstances have changed, and from the Philippines’ point of view, they have a different strategy. But they haven’t backed off on the fundamental claims. That’s the bottom line in that speech, and I will refer you to that.
On the second one, with regard to the code of conduct, it’s an effort to set down some rules with regard to behavior by all the navies and hopefully the aircraft and the coast guard on how they behave in the South China Sea. There are sort of parallels that they can draw on if they wish. It’s called CUES, and other things. Whether or not China is prepared to accept a binding code, as opposed to the current declaration, which is nonbinding, is something we’ll have to see. I don’t know whether they will or not. But I – to answer more directly your question with regard to the Philippines’ sovereignty claims, I think it’s very clear that they haven’t backed off them at all.
MODERATOR: Questions down here. Have we achieved our purpose that we have informed everyone and no questions? All right, Rob.
CAPT ROACH: Somebody has to break the ice.
QUESTION: Thank youHi. My name’s Rob Gentry with TV Asahi, and I have a question about terms and the difference between an archipelagic state and a dependent archipelago. Could you explain that difference?
CAPT ROACH: Sure. An archipelagic state is defined in Article 46 of the Law of the Sea Convention as a group of islands interconnected historically that is, in fact, all owned, if you will, by the archipelagic state. Okay? There are a number of geographically described archipelagos around the world which belong to continental states, coastal states – Galapagos is one, for example; the Paracels is another. There are many others of that as well. And the question has arisen as to whether or not there’s a separate body of law that would permit the drawing of straight baselines around a geographic but dependent, non-independent archipelago, and the question there from a legal point of view is twofold. The first question is whether or not any portions of the islands making up the archipelago have the physical characteristics that would enable you to draw straight baselines under the criteria that I set forth of Article 7(1); that is deeply indented and cut into, or a fringe of islands along the coast.
The second question, which is a theory which I think you could say that China is trying to develop, that there’s a customary international law or rule that exists separate from what’s set out in the Convention, and they’ve been beginning to argue that it’s – that is the right for them to draw for them to draw the straight baselines around the Paracels, or perhaps even around the Spratlys. And they make reference to the final preambular paragraph of the Convention, which basically says matters not regulated by this Convention are regulated by other rules of existing international law. The problem with that analysis is, that if you look at the rule on normal baselines, the low water line, Article 5, it starts with the words, “Except as otherwise provided in this Convention,” and I would argue those words mean that the Convention’s provisions on baselines -- and there are a whole lot of other which we haven’t gone through -- are thus set, and there is no capability of having any extra regime external to the Convention. Is that helpful?
MODERATOR: Other questions? Going once, going twice --
QUESTION: I’ll ask another one.
CAPT ROACH: Thank you.
QUESTION: Yeah. The U.S. military publishes an annual list of freedom of navigation --
CAPT ROACH: They do from back in 19- – starting in 1991.
QUESTION: Yeah. But it’s a – and it’s done as a – as an annual retrospective.
CAPT ROACH: That’s correct.
QUESTION: So from the news point of view, that information can be somewhat dated. Do you – in your opinion, is – from – in terms – the freedom of navigation operations obviously have an intrinsic value for all the reasons you’ve described for the U.S. Government, specifically the military, to demonstrate their, for example, passage.
CAPT ROACH: Yeah, exactly.
QUESTION: But they are also useful in the broader government purpose, and in the world that we are all reporting on. Do you have any opinion about the frequency or timing of those notifications?
CAPT ROACH: Well, having been at the State Department when we moved into this method of recording, what – the DOD concerns that I remember, and it may have changed or it may be more articulated than this, is that they don’t want to put the actual vessels at risk if it appears someplace else. I think they’re struggling with the problem of where FONOP garners publicity, how to describe what it was without giving away too much, if you will. And it really has to do with the security of the vessel and the operations. But I have to tell you that the few in the FONOPs, that’s basically one in a hundred in a year – I’m just using that as a fraction. Most FONOPs that occur, occur without any notice, any reaction from the coastal state. And so from the standpoint of making the U.S. view as to what’s proper and what’s not proper in terms of claims, it’s important to make a record of that so that it can be seen.
Now, there’s one thing that you probably ought to do that you may not already do when you look at the annual reports. The annual reports doesn’t talk in terms of what the date was, and doesn’t talk in terms of what the ship was, or the aircraft. But it makes a description of what the challenge related to. And you can find details of that in what’s called the Maritime Claims Reference Manual, which has just recently been updated. It’s on the Navy JAG website. And there they describe the various claims that the U.S. has objected to and gives you a reference to the particular claim – however it’s been articulated by the coastal state. So they get you one step further in terms of what was actually being done. But unless there’s reporting on what actually happened – and that’s really rare. I mean, these South China Sea operations are really unusual. You don’t normally see that.
Now, there are some places where you could see the situations described which are not necessarily described in FONOPs terms. And what I am referring to here is the annual publication by the State Department of the Digest of U.S. Practice in International Law – which is online; it’s at state.gov/s/l – that will report on complaints, if you will, by certain states that we operated in a place where they thought they had the right to say no and we thought they had the right to say yes, and you will get detailed explanations of the law side of the house and what’s happened. And there’s a whole series of those that go back to – well, you probably could go back to the earliest version when we resumed, which was the 1988 two-volume version.
So those are – they can be examples of what was done. Now, whether or not you could trace that – and I’ve never done this – to the time-relevant provisions in the FONOP, I don’t know. That would be a fun exercise to do. But what is a fun exercise which I have done is, to see how regular and worldwide the reported FONOPs are. I mean, it’s really amazing. Some are multiple over a decade -- at least once a year, every year, for a decade. Some of them are not quite so recent. Much of it relates to where you are able to have a U.S. military asset available, because the normal rules for the conducting of FONOPs is, you do it when it’s basically convenient. You don’t create something new; you don’t have to go out of the way. Operating in the South China Sea is one where you’re there, so there’s no reason why you shouldn’t do it. But if you’re in more remote areas of the world, you’re not going to divert an asset just to go do a FONOP. But if you’re transiting from point A to point B and on the way you’ve got an excessive territorial sea claim, for example, you go through the territorial sea between 12 and whatever it is – 80, 90, 100, 200 – and you report that. So that’s a FONOP. Not often seen, but it’s there.
And so there are ways of tracking down a little bit more about what’s there, but I don’t think, except for those cases that have been reported either in the Digest or in the news with regard to South China Sea, you’re going to be able to track to a time and a place and a ship. And again, that’s for OPSEC reasons.
They’re all overwhelmed. Trying to absorb all of this information.
MODERATOR: We can leave it there, but obviously, Captain Roach has given you his contact information. Oh wait, do we have a question in New York?
QUESTION: Just wondering because of the threat from North Korea --
MODERATOR: Yeah, I’m sorry. Can you give your name and your outlet please?
QUESTION: -- how does that change the – oh, yes. Jessica Chung from China TV, Taiwan. I’m just wondering the threat from North Korea, how does that change the dynamic? Meaning, how does U.S. when it try to emphasize more on the freedom of navigation, or because of China’s help on North Korea issue, so it will sort of – not claiming – not insisting too much in order to try to get China’s help on North Korea?
CAPT ROACH: Well, from my understanding of the North Koreans’ maritime claims, the only one that appears to be greater than that which would be permitted under international law is their – I think it’s 50-mile military security zone in – on the west side. And there actually have been a couple of FONOPs done there, although I know that the planning for that always takes into account the possibilities of adverse reactions. And so they’re very careful about when to do it and how to do it.
But the FONOPs has nothing whatever to do with the rest of the issues associated with North Korea’s – I’ll use the word “behavior.” Okay?
CAPT ROACH: Hey. All right. We stimulated another question.
QUESTION: Thank you. Bingru Wang with Hong Kong Phoenix TV. I want to go back to the Philippine against China arbitration case. How much – do you think it’s a huge setback to the United States strategy in South China Sea? Because you just mentioned now Philippine Government actually said they changed their strategy, so what does that mean to the United States strategy in South China Sea? And we are also seeing Trump administration is keeping FONOPs in South China Sea, but on the other hand, Chinese Government is also accelerating the island build-up, so what’s the dynamic here right now? Thank you.
CAPT ROACH: Couple of points to be made with regard to that. The mere fact that the Philippines is changing how it’s dealing with the results of the arbitration, that doesn’t mean that the arbitration’s rules are, in effect, being ignored; at least not by the U.S. and not by the Philippines. Because international judicial behavior is not subject to an enforcement mechanism, there’s no marshal that the ICJ can call upon to enforce the rule. It’s all a question to what states do about that.
The decision has an – a large number of, in effect, rules that are applicable to many of the claims that we’re dealing with. Some of them are more controversial than others, but they’re all basically limited in their scope to the dispute in the Spratlys. So I don’t think there’s going to be any particular change there, and in many respects, FONOPs qua FONOPs are tried to be kept separate from how we’re dealing with the other issues in the South China Sea, which are multitude, as you know. But it’s not something which the U.S. is going to back away from.
I have to make another comment, since you’ve raised it. As you know – you all know – the Chinese navy has developed over the last decade, if you will, an increasingly capable – what we call a blue-water navy, the ability to operate far from home. And the question is: When they engage in passage through areas which other states have claimed not to do that – Japanese Straits comes to mind – they’re in effect exercising FONOPs. But I’ve posed, in some Track Two work that I’m involved in, the question to the Chinese side as to when the Chinese Government is going to recognize that its blue-water interests should be amended to include the freedoms of navigation and acceptance of the Convention, which they’re a party to. And I give an example that most people haven’t really thought about.
Let me go back more than a half a century. The Soviet Union used its navy as a protector of the homeland, homeland defense, same thing that China has traditionally done in the South China Sea with regard to its navy. And then after World War II, as you know, the Soviet navy increased its capabilities such that it, too, became a significant blue-water navy. And when the issues of navigational rights arose during the early days of the Law of the Sea conference negotiations in the early 1970s, the U.S. and the Soviet Union were compatico. They were together. They together negotiated the structure and the rules in the Convention, and that was because their interests had changed and were then convergent with those of the U.S., which also had a blue-water navy as a result of World War II.
And that’s, if you will, the situation which China faces right now. And I’ve been told that the younger generations of Chinese scholars, and even some of their foreign ministry, understand that. But the senior leadership has a different view, because it comes from a different history. And whether or not over time that will modify, we’ll have to wait and see. My guess is it probably will, and it would make sense, because then, if China were to have its maritime claims and operational view – its operational rights – consistent with the rest of the world, they would, I think, significantly increase their respectability, if you will, their influence, because they then appear much more to be, quote, “rule-abiding.” The rule of law at sea is something which many, many countries believe on. It’s particularly important for the smaller countries that their strength comes from the rules which are accepted universally. And to the extent that China will begin to do that I think will really, really help reduce a lot of the tensions out there. But again, that’s just me. I’m no China expert.
MODERATOR: Time for one more if there is one more.
CAPT ROACH: The lady in the back.
QUESTION: Hi. Thank you for having this. I’m Yukiyo from Ryukyu Shimpo from Japan, and it’s kind of different place from South China Sea, but I would like to know your insights about the East China Sea --
QUESTION: -- and Senkaku Islands. And question one is: How do you see situation right now in the East China Sea? And question number two is going to be: I think Japanese Government want U.S. Government and also U.S. military get involved more to protect their rights in Senkaku Islands. So how do you see the U.S. Government have some kind of – what kind of position they are trying to keep?
CAPT ROACH: This is going to be a rather complicated answer, but I think it’s important for everybody to understand. In the East China Sea, you have two main issues. One is, what’s the status of the Senkakus -- who owns them, what can you do there. The bigger issue is, where should the maritime boundary be drawn between China and Japan. On the first part of that, the Senkakus are in the lower, if you will, left-hand corner of the East China Sea, and are really irrelevant to the issue of where the maritime boundary would be. And though they – although China has drawn straight baselines around the Senkakus – Diaoyu, as they call them – they have been significantly protested by the U.S. and Japan and others for the same – the reasons we’ve talked about here. The issue of sovereignty -- who owns them -- is a matter which was outside the purview of the arbitral tribunal because China chose not to allow that to happen, perfectly within its rights.
Continue on this issue before I come back to the maritime boundary issue. The interesting thing to me in the East China Sea is not only the Senkakus, but between Korea and Japan with regard to what the U.S. calls Takeshima. Different situation. Physically 180 (inaudible) in the sense that Korea occupies them and China[*]claims them, and to me, the most useful way but probably the most politically difficult way is for those countries to agree for third-party dispute settlement over the sovereignty. There are very clear rules as to how you decide those issues. In fact, they’ve been used in that part of the world at least twice: between Malaysia and Indonesia and with regard to Malaysia and Singapore. And the results were properly done. They – a lot of evidence and the court made its decisions.
That could be done in the context of Takeshima; but again, the political situations are in total reverse. Senkakus the Japanese are in possession of, and they’re saying, “Hey, come. Let’s go to court and solve the problem.” But when it comes to Takeshima, the Koreans are in charge and the Philippines – or the Koreans won’t agree to a Japanese agreement to do that. I think that’s something which they all really ought to work on, because it’s doable and it’s just a matter of getting a sufficient understanding on the part of the populace of China, Japan, and Korea that this is the way to peacefully solve disputes.
With regard to the East China Sea maritime boundary issue, it’s really relatively simple to understand. The distance between Japan and China is less than 400 miles, which therefore means that under the rules for maritime boundary delimitation, you would normally have at least as a starting point an equidistance line. The geomorphology of the seabed is different, however, in the sense that you have the trough, which is much closer to Japan than to the middle of the East China Sea. And up until now, from what I’ve been told, China insisted the boundary should be where the trough is, which would be consistent with the law as it was 50 years ago in the Libya-Malta case. But since then, the ICJ in particular has moved away from that, and basically says that the geomorphology of the seabed when you’re delimiting less than 400 miles is irrelevant. It’s basically equidistance unless there are other special circumstances that should say it’s something other than that. And that, again, is the dispute between China and Japan. They don’t agree on what the proper rules are, although I will say, from my conversations with some Chinese scholars, they perfectly well understand that the better law is equidistance rather than using the trough.
MODERATOR: I think we’ll leave it there. I want to ask you please to join me in thanking Captain Roach for coming in. (Applause.)
CAPT ROACH: Thank you for your questions.
MODERATOR: Just a reminder, this is on the record, but Captain Roach is speaking in his own capacity. You can attribute his remarks to him. For questions for the U.S. Government perspective on any of these issues – obviously, for anything on maritime operations, that’s Department of Defense, and anything on general foreign policy would be the State Department. Thanks once again for coming in.
CAPT ROACH: Thank you.

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