 of the fourth annual CSIS, South China Sea Conference, and we have a great speaker this morning, Michael Fuchs, who is the Deputy Assistant Secretary for Multilateral Organizations and Strategy in the Bureau of East Asian and Pacific Affairs. Michael has been a leader at the State Department from policy planning to the key national security advisor and foreign policy advisor for Secretary Clinton, and before that has held important positions in some of Washington's premier think tank and policy institutions. I'd like to introduce without further ado, Michael Fuchs. Michael. Thank you, Ernie. Good morning, everyone. First, again, I'd like to thank Ernie and CSIS for organizing this conference. I think as everyone here is well aware, this is a very timely conversation, and I understand and have the opportunity to watch online a little bit some of the discussions yesterday, and I think they were very informative and very productive. I really think that it's essential to have a wide range of perspectives as we look for creative solutions to the challenges that we're facing in the South China Sea, and I think that some of those perspectives have come out in the discussions over the last 24 hours, which I think is great. And so in that spirit, today what I'll do is offer some practical suggestions for how the US and the parties in the region can move forward to try to reduce tensions and set relations on a better path. First, though, I'd like to take a step back for a minute and address the regional context surrounding this issue and US policy in the region. Everyone here is familiar with the dynamism of the Asia Pacific, trade numbers, demographics, transnational challenges, the statistics and the trends are all clear and compelling. They lead us to the inevitable conclusion that what happens there is increasingly not only important to the United States, but to the world. That's why President Obama decided to rebalance to the Asia Pacific. It's why we're continuing to modernize our alliances, invest in strengthening regional institutions, expand our trade investment, deepen engagement with new and emerging regional partners, and why we continue to expand people-to-people ties and promote our values and universal human rights. And yet, despite our enhanced engagement and longstanding ties to the region, some are questioning and criticizing our policy. These criticisms come in all shapes and sizes. Some call alliances outdated. But these critics ignore the fact that US alliances have served as the foundation for regional peace and security, providing the environment for countries to prosper, and resulting in some of the world's most remarkable growth stories from China to South Korea to countries across Southeast Asia. Today, our efforts to modernize these alliances, including new agreements like the Enhanced Defense Cooperation Agreement with the Philippines and the US-Australia Force Posture Agreement will benefit the entire region. Now, some call us outsiders and tell us not to intervene in regional issues. But they ignore the fact that for decades, the United States has been a Pacific power integral to regional peace and stability and that our interests are directly affected by what happens across the Asia Pacific. They ignore an increased demand for enhanced US engagement and presence from allies and partners across the Asia Pacific who want us more deeply involved in the region's future. And some also say that our attention has been diverted by crises elsewhere. But the best demonstration of how the rebalance continues to move forward despite competing priorities is that the United States, from our people, our businesses, to our security presence are woven into the fabric of the Asia Pacific. As the numbers show, from trade to travel, to student exchanges, to the time and attention our senior leaders and the placement of our resources, US engagement in the region is increasing and our efforts are bearing fruit. Of course, while the US has been essential to peace and security in the region for decades, we can't rest on our laurels. We must continue adapting to seize new opportunities and meet new challenges. We're working to seize some of these new opportunities through trade deals, like the Trans-Pacific Partnership, which we're looking to conclude soon, and the bilateral investment treaty negotiations with China, which we agreed to begin again last year. But while dynamic economic growth and trade deals bring prospects for jobs in growth in the US and across the region, threats to progress remain. Growing provocative actions, increased military spending, strident nationalism, and rehashing of painful history make up a combustible mix that threatens the region's stability and its future prosperity. These challenges highlight the need to strengthen the transparent rules-based order and institutions that have helped the region thrive for decades. Everyone has benefited from this order, and everyone can continue to benefit if we work together. That's why the US is investing in the institutions that bring the region together to advance common interests and strengthen norms of behavior. Open and inclusive multilateral forums are critical to upholding and enforcing international law and standards that help manage relations between countries and ensure a fair playing field for all. The Association of Southeast Asian Nations is a key partner that sits at the heart of the Asia-Pacific architecture. Especially since joining the Treaty of Amity Cooperation, since in 2009, we have adopted an increasingly proactive role in working with and promoting ASEAN and its related institutions, including by joining the East Asia Summit and holding annual summits with ASEAN. We believe strongly that ASEAN and other regional institutions such as APEC are the key forums where countries can have frank and open discussions about the region's most concerning challenges, come together to forge solutions, and build habits of cooperation. The tensions arising from competing territorial and maritime claims in the South China Sea are a key test of the region's institutions and their ability to uphold international law and resolve disputes peacefully. The situation in the South China Sea, no doubt, is complex, six claimants, plentiful fisheries and potential hydrocarbon reserves, the growing presence of maritime law enforcement vessels, and hundreds of geographic features make for a pretty dynamic situation. Moreover, many of these features are submerged and therefore not subject to sovereignty claims, but are nonetheless a source of friction in the region. Now, some may ask why, given the many areas of tension across this part of the world, small features in the middle of the sea are generating so much concern and so much attention. It's because the way in which countries pursue their claims speaks to whether future disputes will be handled by the threat and use of force on the one hand or the rule of law on the other. It speaks to whether the same rules will apply to all claimants, big and small alike. And it's because everyone inside and outside the region stands to lose if rules are devalued, dialogue breaks down, misreadings and misinterpretations multiply, and tensions spiral. Recent events, in particular, are of great concern. Incidents involving the coercion and the threat of force contribute to an increasingly tenuous situation that could affect not only the claimants, but the entire region and beyond. No claimant is solely responsible for the state of tensions. However, a pattern of provocative and unilateral behavior by China has raised serious concerns about China's intentions and willingness to adhere to international law and standards. Provocative actions include efforts to assert claims in the South China Sea, such as its restrictions on access to Scarborough Reef, pressure on the long-standing Philippine presence at Second Thomas Shoal, and, most recently, the commencement of drilling operations in disputed waters near the Paracel Islands. While the United States does not take a position on the sovereignty over land features in the South China Sea, we have a strong interest in the manner in which countries address their disputes and whether countries' maritime claims comport with the international law of the sea. International law, not power or an ambiguous sense of historical entitlement, should be the basis for making and enforcing maritime claims in the South China Sea. The ambiguity of some claims, such as China's Nine-Dash Line and recent actions in disputed areas, heighten regional tensions and inhibit the emergence of cooperative arrangements to jointly manage resources. They undermine the possible resolutions to the overlapping disputes. Now, as a Pacific power, with a clear national interest in how these disputes are addressed, the United States is working to lower tensions and help peacefully manage these disputes. First, we have communicated growing concerns from the present on down to the Chinese very clearly, both in public and in private, most recently just this week in the Strategic Security Dialogue and the Strategic and Economic Dialogue that were held in Beijing. U.S. concerns are also regularly expressed at the highest levels to other claimants, and we consistently encourage all claimants to clarify their claims and base their claims on land features in the manner set out under the International Law of the Sea as reflected in the Law of the Sea Convention. Others have also been raising their concerns as evidenced by recent statements this year from ASEAN and the G7. Second, we're working with ASEAN and the international community to help put in place diplomatic and other structures to lower tensions and manage the disputes peacefully. We're reinforcing the importance of exercising restraint, lowering rhetoric, behaving safely and responsibly in the sky and at sea, and resolving the disputes in accordance with international law. This includes building habits of cooperation through mechanisms like the ASEAN Regional Forum and the Expanded ASEAN Maritime Forum, where we are promoting concrete, multilateral cooperation on everything from ensuring the safety of seafarers to working together to respond to oil spills. Third, the administration has invested considerably in the capabilities of our partners in the maritime domain. For instance, just last December, Secretary Kerry, when he was out in the region, announced an initial commitment of $32.5 million in new regional and bilateral assistance to advance maritime capacity building in Southeast Asia. Including this new funding, our planned region-wide support for maritime capacity building exceeds $156 million for the next two years. Fourth, enhanced U.S. presence and posture in the Asia Pacific as a result of the rebalance continues to help ensure regional stability and to deter conflict. And fifth, we continue to urge all parties to use diplomatic means, including arbitration or other dispute resolution mechanisms to address these issues. This includes encouraging ASEAN in China to quickly complete a meaningful code of conduct. An effective code of conduct would help reduce tensions by creating crisis management tools to address contentious issues as they arise. In the meantime, China and ASEAN have already committed under the 2002 declaration on the conduct of the parties in the South China Sea to avoid activities that would, quote, complicate or escalate disputes and affect peace and stability, end quote. However, based on the rhetoric that we've seen from claimant states, there's no consensus or definition of what kinds of activities complicate or escalate disputes. Recent incidents highlight the need for claimants to be transparent about their respective activities in disputed areas and to reach a shared understanding on appropriate behavior in these areas. As such, we are urging China and ASEAN to have a real and substantive discussion to flush out elements of the declaration of conduct that call for self-restraint. We've called for claimant states to clarify and agree to voluntarily freeze certain actions and activities that escalate the disputes and cause instability, as described in the DOC. Such commitments would help to lower tensions and expand space for peaceful solutions to emerge. They would be strong confidence-building measure as more difficult details are worked out on the code of conduct negotiations. And deciding on what elements would be included in a freeze would ultimately be up to the claimants, but there are a number of different types of commitments that could be included in such an agreement and would be relatively easy for the claimants to agree to. To start, claimants could recommit not to establish new outposts. This is already in the DOC and should be an easy first step. More important, claimants could commit not to seize features that another claimant has occupied since before the November 2002 declaration on conduct was signed. Construction and land reclamation by claimants have been another constant source of tension. Claimants could clarify what types of alterations are provocative and what are merely efforts to maintain a long existing presence in accordance with the 2002 status quo. For example, alterations that fundamentally change the nature, size, or capabilities of the presence could fall under the freeze, whereas routine maintenance operations would be permissible. Finally, claimants could agree to refrain from unilateral enforcement measures against other claimants' longstanding economic activities that have been taking place in disputed areas. All of these measures that I've listed would more clearly define the type of activities already suggested by the DOC to which the parties have already committed. And the agreement would not affect any party until all claimants had agreed to abide by its terms. Moreover, if adopted, the freeze would not be prejudicial to the resolution of competing claims. The freeze would simply halt efforts to reinforce claims pending their resolution. Exercising self-restraint via this type of voluntary freeze would create a conducive and positive environment for negotiations on a China-Azion Code of Conduct and dramatically lower the risk of a dangerous incident. This would benefit all concerned parties. Now, we make this suggestion as an idea to spark serious discussions about ways to reduce tensions and address these disputes. The claimants themselves should get together to decide the parameters of a freeze. To conclude, as I've mentioned, the United States is a Pacific power and we play a central role in ensuring regional peace and prosperity. And while we're not a claimant in the South China Sea, the actions of the claimants in the South China Sea are affecting everyone in the region and beyond. And therefore, we all have roles to play in tackling this challenge. I hope that the next month, leading up to the ASEAN Regional Forum, we'll see real progress on regional efforts to promote the peaceful resolution of disputes in the South China Sea. And today I've outlined some specific steps to that end. I think it's high time the region have a robust discussion on tangible ways to de-escalate the current dispute. And hopefully some of these ideas can help with that discussion. Thank you, and I'll be happy to take a few questions. Take them from there, or you should probably stay. Okay, we'll open the floor for questions again. Just please mention your name and your affiliation when you have a question. I'd like to use the prerogative of the chair to start. And that is a question for you, Michael, to think about where we're headed. I mean, if you can envision a South China Sea where disputes are not the central feature, where economic cooperation and joint development are the future. Do you think that an Asia-wide free trade agreement or at least an agreement that includes all the disputants in this crisis and the United States would or might substantially contribute to a situation where countries could cooperate on the resources from protein to natural resources? And would that be a helpful step in the right direction? Well, I think that first off, I think that one of the things that has knit this region together, especially increasingly over recent decades, are the increasing number of trade deals in the region and the increasing amount of trade and investment throughout the region. Now, for the part of the United States, we are focused on the Trans-Pacific Partnership as our priority in the region. We are also supporting broader trade and investment integration throughout the region, including ASEAN's goal of an economic community in 2015. And I think to your point, Ernie, I think that the growth of these trade deals and the interlinkages of trade and investment in the region can help to create a more peaceful and prosperous region as countries increasingly recognize that their fates are intertwined and that they have benefited and will continue to benefit from peaceful, stable relations with one another. I think that one thing, though, that needs to go hand in hand, I think with the increased trade and investment within the region, is a architecture of regional institutions amongst other partnerships and alliances that can support norms and international law in the region. And I tried to get at some of that in my remarks today, but I think that these two have to go hand in hand as well and that if we're going to, again, on the one hand, increase trade and investment, we've shown so far I think that that is necessary but perhaps not sufficient so far and that trade and investment have rapidly increased in recent decades, but we still have tensions existing. And so I think that to accompany that, to complement it, you need this regional architecture of institutions and partnerships and alliances that can uphold the rule of law, international law and rules and norms in the region. And the maritime disputes, I think, is a case in point of that. Thank you. Chris Nelson. Thanks very much, Chris Nelson, Nelson Report. Mr. Secretary, did you just commit news with that freeze proposal? I don't think I've heard the freeze proposal spelled out like that before. Strikes me as it's pretty important. Have we spelled this out before in public? Did Secretary Kerry discuss it with Xi Jinping and his Chinese counterparts? What kind of reaction have you gotten on it if you've spelled it out? Thank you. We have discussed the freeze before. We've discussed it with some of the countries involved, the claimants. We have discussed it with China as well as one of the claimants. We discussed it at some of the recent regional meetings in the region and yeah, part of the idea of putting practical solutions on the table is to try to elaborate some of the ideas we think might be helpful to solving or resolving some of these disputes. And that was a little bit of what I tried to do here today is elaborate on a few of those points as illustrative examples of the sorts of things that claimants states could consider amongst themselves. Again, the United States is not a claimant state here. This is something for the claimants themselves to get together and to discuss and to decide. But to us as a interested party with a very strong national interest in how these disputes are resolved, we believe that it's our role and the role of other interested parties in the region as well to put ideas, practical ideas on the table. We've been discussing it with them and I just won't go into the details of diplomatic conversations in that. You gave us a terrific list of things that could be done and it fits into our morning discussion of confidence-building measures. But I have a two-part question, one concerning the long-run issues we've confronted and the other, the most immediate development. The first part concerns President Obama's last two years. Is he likely to take a leadership role in making another attempt at Senate ratification of unclose? The second question is this week's arbitration award that was made in the dispute between India and Bangladesh. Do you have any comment on that? How does that fit into the architecture you've suggested? So on the first question I think the short answer is I think you've seen the President make statements recently about the need to ratify unclose. And so there is support in the administration in doing this and so I think that that stands on its own. I can't tell you what future plans are perhaps but we support it and it made our views very clear in the administration the need to ratify unclose. With respect to the second question, I am no lawyer and will not go into the details of the recent case and maybe how it could be applied but I think that your point brings us back to the importance of what I was talking about here today which is using international law and the mechanisms that we have available to us and that countries in the region have available to them to peacefully address these disputes. I did get an opportunity to watch just a few minutes of the panel discussion yesterday on international law which I thought was a fantastic discussion and again I think it reinforced to this point that the countries right now, the claimant states are looking for ways to peacefully and diplomatically address these disputes and I think again all options when it comes to peacefully addressing these disputes should be available to countries and so whether that's arbitration or it's other international legal mechanisms, I think that those should be available to countries. I'll leave it at that. Thank you very much for your presentation. I'm Tuy from the Diplomatic Academy of Vietnam. We see some contradiction in your presentation. On one hand, you identify your interests in your South China Sea, but you know that some countries, especially China, violates one of your interests, respect of international law, freedom of navigation, a lot of issues, right? On the other hand, you offer initiative when once initiative will be adopted, it will show your US interests in the escalation tension and you say let the claimant to discuss about that. So I see some contradiction here and my question is if China will not follow your suggestion what the US can convince China to follow that and the second related to that, could you please open a small secret what Secretary Kerry will discuss or highlight the issue on upcoming meeting in Myanmar? Thank you. Well, I guess what I can say is a little bit of what I've said already which is that we see ourselves, we have a very strong interest in the way these disputes are addressed. And I think it's not just the United States, I think lots of other countries in the region and even beyond have an interest, who aren't claimants, have a very strong interest in seeing that these disputes are managed and addressed in a peaceful way. Obviously instability or conflict could affect trade and stability more broadly in the region. And so we have a direct interest in this. Again, as do others in the region and this is not just the United States, lots of other countries in the region and beyond have been speaking out about this issue. You saw the G7 statement that was made just within the last couple of months on this issue. So that's why we again are trying to put out ideas to peacefully manage the disputes. Now again, we can't impose solutions to this problem. Again, countries who are claimants need to figure out the best ways to address these disputes in a peaceful and diplomatic way. But I do think it is incumbent upon us and other countries as well to try to foster the right environment and dialogue that would be conducive to peacefully addressing those disputes. And though to that end, we are trying to put out some ideas. Thank you. Sorry. Sorry. We, as I mentioned today, we continue to plan to discuss this idea with claimants and others publicly and privately, so. Last question here. Stanley Kober. Whenever anybody talks about alliances, nobody mentions CEDO. Very curious considering we're discussing Southeast Asia. What are the lessons of the CEDO experience that you apply to policy today? Well, I'm not gonna get into the details and the history of CEDO here other than to just, I think, reaffirm the point that I've made and that we make repeatedly, which is that we do believe that our alliances in the region are essential to regional peace and stability. I think that they are the cornerstone in many ways of regional peace and stability that's benefited everybody in the region. And so those alliances, as I mentioned earlier, we're things we're going to try to strengthen in the coming years as we have in the past. Well, Michael, thank you very much. Ladies and gentlemen, please join me in thanking Michael Fuchs. I'll now invite Mr. Reichler to the stage. I wanna shift in. It's not often that you get the opportunity to hear from someone who is truly at the very top in the world in his trade and we're gonna have that treat this morning. Paul Reichler is a lawyer. He is specialized in the representation of sovereign states in the disputes with other states and foreign investors for nearly three decades. He's a member of a group of lawyers with extensive experience in litigating on behalf of sovereign states before the International Court of Justice in The Hague and the International Tribunal of Law of the Sea in Hamburg, Germany. So Paul, in this case, will not be completely objective. I think he is, with full clarity, he is an advocate and a very good one and he is representing the Philippines in their Itlose case against China. So fair warning on that front. But I will say this, having known him for almost a couple decades myself, that he is a man who's very fair. He's someone who looks for constructive outcomes. His past record has shown that he has been an advocate for the underdog in cases where the seemingly insurmountable odds and he's been successful in protecting the rights of some of the smaller parties against larger competitors, including in the case of Nicaragua. So we discussed some of this case yesterday. So please join me in welcoming Paul Reichler who will deliver keynote remarks this morning. Thank you, Ernie, for that very generous, if undeserved introduction. I appreciate it. It's always a privilege to be at CSIS and to address such a well-informed and impressive company. I am honored to serve as the legal counsel to the Philippines in the arbitration against China. And as Ernie has said, I can't claim to be entirely neutral about the matter, but I will try to be as objective as I possibly can, bearing in mind that caveat this morning. Where is the, how do I operate the PowerPoint from here? Which key? Any truth? And we'll see what comes up. The arrow. The arrow's good, okay, let me try this. Excuse me a minute while I organize the podium here. Okay, that's where we begin. Could we turn down the lights? Could we turn down the lights around the screen so that people can see those better? And may I ask if you can hear me in all the different corners of the room? Do I need to speak any louder or is the little louder? Okay, I'll do my best. If I see any hands go up in the back, I'll assume that I'm not speaking loud enough and let me know. Let's start here. This is a map showing the by now well-known nine-dash line that is the main target of the Philippines case against China. This line was first asserted publicly by China as representing the extent of its sovereignty and sovereign rights in 2009. Although its origin can be traced back to internal maps of the People's Republic of China as far as 1949 and even to the Republic of China that preceded it in 1947 and 1948. But it was never asserted not even in Chinese legislation in the 1990s as a boundary or as the extent of China's sovereign claims until 2009. And that is really where the present conflict has its origin. It was immediately protested by Vietnam, Malaysia and the Philippines, Indonesia as well, among other states. As you can see on this map, I think this is a fairly good depiction. The line extends more than 200 miles from the Chinese mainland coast or from the coast of the Chinese island of Hainan. In fact, in its southern extremity, it's more than 700 nautical miles from China. And in the parts that concern the Philippines, you can see the dashes off the coast of Luzon, one of the main islands of the Philippines in the north. Those are more than 400 miles from China and within 50 miles of the Philippine coast. As you get down to the dashes adjacent to Palawan, another main island of the Philippines in the southwest of the Philippines, southeast of your picture, these are anywhere from 500 to 600 miles from China and again within 30 to 50 miles of the Philippines. The reason those distances are important is because under the law of the sea convention and indeed under general international law, which applies universally, not only to the 180 or so states that are parties to the convention, which include China and the Philippines, above all. The extent of a coastal state's legal entitlements in the sea is 200 miles. Sovereignty extends out to 12 miles, that's called the territorial sea. Sovereign rights extend out to 200 miles and that means the exclusive right to exploit the resources, both underneath the seabed, we talk about minerals or hydrocarbons, and the living resources in the water out to 200 miles, fish in particular. So what we see here is that China's claims, China's pretensions in the South China Sea go far beyond the legal limits established by the law of the sea convention and general international law and China, of course, is a party to that convention. They extend, as I said, between 400 and 800 miles from China's coasts and come to within 40 and 50 miles of the Philippines coast, which of course are well within the 200 mile jurisdiction of the Philippines. So the main objective of the arbitration is to have these claims by China, these exorbitant claims declared unlawful and invalid. The Philippines recognizes that China does have legitimate claims within 200 miles of its coasts, but not beyond. Now also part of the case concerns the status of various islands and insular features in the South China Sea. There are three main groups, as you can see here, starting in the Northwest, the Paracel Islands. These are important to China and Vietnam and they are disputed by China and Vietnam as are the surrounding waters, but they are not claimed by the Philippines. They're too far from the Philippines coast to be the subject of a Philippine claim. But moving to the East, we have Scarborough Shoal. And then in the South, we have the Spratly Group of Islands and the arbitration concerns both Scarborough Shoal and also the Spratlys. And I will discuss them briefly and specifically next. Whoops. Just to give you an idea, this is what Scarborough Shoal looks like and as you can see on the map, it's off the coast of Luzon. It's about 120 nautical miles off the coast, so it's well within the 200 mile exclusive economic zone and continental shelf of the Philippines and it's considerably more than 300 miles from any territory controlled by China. This is a better picture of it. As you can tell, it's an older picture because it has the Philippine flag flying above it. In April, 2012, after decades of Philippine's exercise of jurisdiction over Scarborough Shoal, including fishing jurisdiction under which Chinese fishermen as well as Philippine fishermen regularly exploited the relatively rich fishing resources of this Shoal. In April, 2012, China forcibly took over Scarborough Shoal and excluded the Philippines presence and since that time, Philippines vessels have not been allowed to fish at Scarborough Shoal except sporadically as China deems fit. This is probably the straw that broke the camel's back proverbially as far as the Philippines is concerned because despite other Chinese actions, including the assertion of the nine-dash line, it was not until the Chinese use of force at Scarborough Shoal in April, 2012 that the Philippines became convinced that its only viable option, its last recourse, was arbitration under the Law of the Sea Convention. Now, in Scarborough Shoal, or with respect to Scarborough Shoal, the Philippines claims that this is a rock as opposed to a true island and you can see that there's some merit to the Philippines claim just by looking at it. Actually, there are six rocks, they're not all depicted here but they are located, they are in a kind of elliptical pattern around an area which is very rich in fish. As a rock, which by definition under the Law of the Sea Convention is a feature that's above water at high tide but is incapable of sustaining human habitation or human life, I think you would agree from looking at this as this would not be a very ideal place to build your house. The rocks have a maritime entitlement of only 12 miles. True islands, just like continental land, coastal land, have an entitlement to 200 miles as I mentioned a few moments ago but rocks are entitled to only 12 miles. So the claim here of the Philippines is that Scarborough Shoal, whoever is sovereign over it generates a maritime entitlement to no more than 12 miles and that therefore, since it is within 200 miles of the Philippines, any of the waters beyond 12 miles from Scarborough Shoal fall within the Philippines 200 mile jurisdiction and therefore, cannot be legitimately claimed by China. The third aspect of the arbitration concerns the Spratly Group of Islands in the southern part of the South China Sea. There are hundreds of features here, the vast majority of which are underwater although they're very shallow reefs. There are also a number of features that we call low tide elevations which as their name implies, are above water only at low tide but are submerged at high tide and then there are other features which are tiny rocks similar to Scarborough Shoal, in some cases they're sandbars, they're not literally rocks but again, these are incapable of sustaining and supporting human life or economic life. As you can see from this chart, I know it's difficult to read at this distance. The various Scarborough features or at least many of them are claimed by a number of states. The ones in green are claimed by Vietnam, Vietnam claims all of them. The ones that are in green are actually occupied or controlled to some extent by Vietnam. The Philippines is actually in control of the ones that are designated by the Triangle, China, the ones that are designated by the Star and in the extreme south the purple squares are the four or five that are claimed by Malaysia. The Philippines principal claim here is that the features that are below water, either permanently or at high tide, are not islands but constitute part of the seabed and therefore belong to whichever state controls the continental shelf in that area. That is whichever state that these features lie on the continental shelf of the state that is within 200 miles of them. If you can see Palawan off in the right, the Philippine island there, many of these features are within 200 miles of Palawan, therefore within its continental shelf, exclusive economic zone, and if they are not true islands, if they are submerged permanently or at high tide, they form part of the seabed. They're not legitimately islands. They cannot be discovered or claimed by another state but belong to the state on whose continental shelf they lie and in many cases that can only be the Philippines. Here you see mischieftreef, which is one of the Spratlys. It's within 100 miles of Palawan. It's completely submerged. What you see here is a Chinese construction on top of mischieftreef. Mischieftreef was seized by China in 1995. Construction began in 1998 and it's actually been enhanced since these photos were taken. But what China has done here and at other locations is simply to create islands where none previously existed. And that does not give them any legal entitlement to these features. Under the Law of the Sea Convention, it's very clear that any artificial installation on top of a feature that is not a true island does not give sovereignty, does not give any maritime entitlements to the state that has unilaterally done that. Our position in this case is that mischieftreef because it is in its natural state submerged all of the time is, as I mentioned a few moments ago, part of the seabed and therefore part of the Philippines continental shelf, especially as it lies within only 100 miles of the Philippines. More recently, China has been expanding its presence and its facilities on some of the Spratly features. This is McKennan Reef, also known as Hughes Reef, which is just inside the 200 mile limit of the Philippines, but it has been under Chinese control for some time. What we see here are developments taking place in 2014. China is creating new facilities on these very tiny, naturally uninhabitable facilities. I don't wanna speculate as to what the purpose may be, but in some of the other features where this activity has taken place, we've seen that China has built barracks and even heliports, which could be used for military purposes, if that is indeed their intention. The same is true at Johnson South Reef, another of the Spratly features that is largely underwater and within 200 miles of the Philippines. Let me, before I, let's go back, so I don't distract you. The other aspect of the Philippines' claim in the Spratlys is that those features that do stand out above the water at high tide and therefore constitute rocks under the Law of the Sea Convention and generate an entitlement to 12 miles only generate an entitlement to 12 miles and not to 200 miles because as I said, they are rocks under the language and definition of the Law of the Sea Convention. Now in this, I should point out the Philippines is not alone. Both Vietnam and Malaysia have declared that none of the features in the Spratly Islands generates a maritime entitlement greater than 12 miles. It's really unclear what China's position is in terms of the entitlements of the features in the Spratlys. China claims sovereignty over all of the Spratlys, notwithstanding the fact that historically it has never occupied or controlled any more than about five or six of them and all of that is since the 1980s, including some of the features from which it forcibly evicted Vietnamese troops that were stationed there. But China's claims as far as they have articulated them are not based on 200 mile entitlements from any of the Spratly features, rather they are based on the nine dashed line and all of the Spratlys are included within that nine dashed line claim. Now I've gone through the main features, the main claims that the Philippines has made in this arbitration in regard to the nine dashed line, in regard to Scarborough Shoal and in regard to the features of the Spratly Islands, both those that are underwater and those that barely stick out above it. China, as you know, has declined to participate formally in the arbitration. This does not mean that China has not attempted to make its case known. In fact, outside of the arbitration, China has been quite aggressive in international forums and in international legal journals and at international conferences attempting to spell out its claim and one presumes influence the arbitrators as well as the entire international community in support of its position through those measures. And we don't object to that as counsel to the Philippines. I can say we welcome China's engagement in the debate. We're happy to take them on legally and in debating the merits of the claim in any forum, although we think the proper one is the arbitral forum. But what I can say about China's arguments is they really don't address the merits of the Philippines' claims. Silence often tells you a lot and China is quite silent when it comes to the merits of the claims that the Philippines has advanced. Even they appear to recognize that what they have claimed cannot be justified under the Law of the Sea Convention or international law generally. But where they have focused their arguments is on jurisdiction. And this is where we see most of the Chinese arguments developed. China claims that the arbitral tribunal is without jurisdiction to hear the Philippines' claims. So with that and without getting too technical or boring you with a legalistic discussion, let me just address those claims very briefly. These are provisions of the United Nations Convention on the Law of the Sea. I said both states are parties. And the key element here is that it provides that where the parties have been unable to reach a settlement diplomatically. And in fact, in regard to their rights and obligations in the South China Sea, the Philippines and China were in diplomatic discussions for more than 17 years before the arbitration was commenced and no progress really was made. So diplomacy was tried, it didn't work before the Philippines launched the arbitration. But this provides that either party to a dispute arising under the convention may institute legal proceedings against the other party. These are binding legal obligations equally binding on the Philippines and China. Article 287 describes where the legal claims may be brought. And I can simplify this for you. It provides that the parties may agree when they become parties to the convention, they can agree on which forum is their preferred forum for the resolution of a dispute. Where they don't select a forum in advance or they don't select the same forum, paragraph five applies. And that means that there will be arbitration of the dispute under the rules and regulations set forth in annex seven, which is an integral part of the convention to which all parties are bound. Article 288 describes the scope of the arbitral tribunals jurisdiction. And you can see it applies to any dispute, any dispute concerning the interpretation or application of the convention. So the question is whether the claims raised by the Philippines fall within the terms of the convention such that an arbitral tribunal convene pursuant to article annex seven would have jurisdiction. Now, what are these claims? These claims are, as I said, that the limits of any state's maritime entitlements are defined in the convention and they are 200 miles. There are certain exceptions for where states can have entitlement to an extended continental shelf beyond 200 miles, they don't apply here and as between the Philippines and China. So what the Philippines is claiming is that China's legal entitlements extend to 200 miles and not beyond. Or in the case of rocks that cannot support human habitation that may be under China's sovereignty, the entitlements extend only to 12 miles and not beyond. And as regards those features, which are either always submerged or low tide elevations that they generate no maritime entitlements, all of these claims fall under specific provisions of the convention, the entitlement to 200 miles, the entitlements of rocks and the entitlements or non entitlements of low tide or submerged features. They are all regulated by specific provisions of the convention and therefore they fall within article 288. They are matters that arise under the convention and therefore within the jurisdiction of an arbitral tribunal convened under article 287. Now China's arguments against jurisdiction are based on article 298. This provides for an exclusion from arbitral jurisdiction of certain kinds of disputes, but only certain kinds of disputes, the one specifically mentioned in this article. And the principle argument of China is that article 298 excludes from compulsory arbitral jurisdiction the interpretation or application of articles 1574 and 83 relating to sea boundary delimitations. Now the convention gives every state that is a party the opportunity, the right, to file a declaration under article 298 if they so choose, excluding these types of disputes from compulsory arbitration. China is not the only state to have submitted a declaration, did it's not the only Asian state, Japan and South Korea have also submitted declarations under article 298. So it's entirely legitimate for China to have excluded itself from compulsory jurisdiction in regard to certain types of disputes. But those types of disputes are the ones and only the ones specified in article 298 which have to do with delimitation of maritime boundaries. And the Philippines case does not concern delimitation of maritime boundaries. In fact, it specifically and intentionally does not address delimitation of maritime boundaries. The Philippines would have been happy to make claims for maritime boundary delimitation but recognize that it could not because a tribunal by virtue of article 298 would not have jurisdiction over such claims. So the tribunal is not being asked to delimit maritime boundaries. It's being asked some very different questions. What are China's entitlements? What are the Philippines entitlements under the convention? Are both states entitled to assert jurisdiction within 200 miles? Is neither state entitled to assert jurisdiction beyond 200 miles? These questions do not concern the delimitation of maritime boundaries. And therefore, we are quite confident that the arbitral tribunal, when it considers the case, will in fact find that it has jurisdiction to proceed to the merits. Now, let me just speak very briefly about two aspects of the rules of the arbitration. Article 9 provides that the failure of one party to appear or to defend its case does not preclude the arbitration from going forward. In fact, at the request of the other party, the Philippines in this case, the tribunal will proceed to decide the case, both on the jurisdictional aspects and on the merits. And that, in fact, is what is happening in this case. Now, we don't have, in international arbitration, the equivalent of what we would call in the United States, for example, a default judgment, where one party appears, makes its claims, the other doesn't show up, and virtually automatically, the court will rule in favor of the claimant state. We don't have that in international arbitration. That's a good thing. So the Philippines still has the burden of convincing the tribunal by the facts and the law that the tribunal has jurisdiction, and then beyond that, that the Philippines is right on the merits of all of the claims I've described for you. One more important rule is Article 11, which provides that the award, the arbitral award, will be final and without appeal. It shall be complied with by the parties to the dispute. So there's no question that when the award finally comes down from the tribunal, it will be final. It will be binding as a matter of law on both states. Let me go through the calendar, and then I will make some concluding remarks. The arbitration was commenced in January 2013 when the Philippines presented to China its notification and statement of claim. Thereafter, under the rules of annex seven to the convention, the arbitral tribunal was composed. It's a five member tribunal. It's an extremely distinguished tribunal composed really of the most outstanding experts on law of the sea in the world. It's presided over by Judge Thomas Mensa of Ghana, a former president of the International Tribunal and the Law of the Sea. It has three other judges or former judges from the International Tribunal on the Law of the Sea, including a former president, Brutegor Wulffram from Germany, Jean-Pierre Côte from France, and Stanislaw Paulak from Poland. And the fifth arbitrator is the longtime head of the Netherlands Institute on the Law of the Sea, Alfred Sons. I think anyone who is familiar with the Law of the Sea, and practices in this area would tell you that it's virtually impossible to compose an arbitral tribunal of greater expertise, greater objectivity, greater neutrality, impartiality, greater integrity. And the Philippines is very happy about that. We were not looking or hoping for a tribunal that would be pro-Philippines or anti-China. That would not be in the Philippines' interests or in the interests of the rule of law generally. What we wanted and hoped for was a tribunal of this caliber, of this credibility, so that the award, whatever it is, will have the greatest respect in the international community. And we feel that will be the case, again, whatever the award is. In March of this year, just a few months ago, the Philippines filed its memorial, its written case on jurisdiction and on the merits. That includes all the factual and legal arguments, as well as thousands of pages of documentation. Evidence, if you will, supporting the Philippines' claims, including many, many maps. The tribunal has decided that China shall have until the 15th of December of this year to file a counter memorial. It's response to the Philippines' memorial. Again, China has so far indicated that it does not intend to participate formally. So at this point, one would have to assume that China will not submit the counter memorial, although we still hope that they will change course and will do so. We want them to participate in the arbitration. But if they do not, they cannot be, and they cannot be persuaded to participate, the tribunal has an alternate procedure, and that is on the following day, the tribunal will present a series of questions, both on jurisdiction and merits to the Philippines, arising from the Philippines' memorial, and give the Philippines approximately three months to answer those questions. I think it'll be, it's very clear that the members of the tribunal will do everything possible to familiarize themselves with China's claims. And I think we assume they will be reading all of these law review articles and other articles that China has caused to be put into publication. Again, we're happy about that. We want all of China's claims to be out in the open so that they can be duly considered by the tribunal and of course responded to by the Philippines. The oral hearings will be held between the 7th and 18th of July, 2015. Again, we hope China will participate, but if not, they will go forward anyway with the Philippines appearing before the tribunal to make its arguments and to respond to questions from the tribunal. Normally, arbitral awards are issued within six or six to eight months of the conclusion of the oral hearings. So we are anticipating the award, the final judgment of the tribunal, in January, 2016 or sometime between January and March, 2016. Now, I have some concluding remarks, if I may, which some conclusions I'd like to draw from all of this and perhaps reflecting some of the comments that were made by other speakers yesterday and this morning. The first point that I want to emphasize is the importance of the rule of law in international relations and I couldn't have been happier with the deputy assistant secretary of state's comments this morning on the importance of the rule of law, particularly as applied to resolution of the conflict in the South China Sea. It's not a question of law or security, but international peace and security are inextricably connected to, intertwined with the rule of law and in no place is that clearer than in the South China Sea. As Mr. Fuchs commented, international law should be the basis for claims in the South China Sea and for their resolution and I think this case is emblematic of that. I believe he gave a very reasoned and balanced presentation. I don't think it helps to demonize China. China is a great state, a great power with an immensely impressive civilization and history. I think those of us who are interested in the rule of law and some of those like myself who spent 30 plus years trying to see it manifested, I think from our perspective, we think that the objective ought to be to encourage China to become a greater part, a fuller part of the international legal community to become a state that more fully embraces the rule of law and international relations. Now some may consider this idealistic, if not indeed naive. I don't. 10 years ago, you would have been thought idealistic or naive if you suggested that China would become part of the World Trade Organization, would submit to the jurisdiction of World Trade Organization dispute resolution bodies and you might have been considered crazy if you suggested that China would accept adverse rulings of the World Trade Organization dispute resolution bodies. But we see that China's attitude toward international law has evolved. I don't think that's strictly for academic or moralistic reasons. I think China understands as many great powers do that its interests lie in promoting a stronger rules-based international community because in the long run, we all benefit from that and above all the great powers which have the most to lose when rules break down and chaos reigns. So I think we would be doing a better service by encouraging China to become a more fuller participant in the international legal regime than we do by denouncing it or calling it names or defaming it. The goal is to engage China not to alienate it, not to cause it to dig its heels in and to become intransigent. The second point I wanna make and it's very closely related to this is in response although it wasn't directed to me, I'd like to respond to Professor Cohen's point about the Bangladesh India arbitral award which was actually issued on Tuesday of this week. I spent five years as Bangladesh's legal counsel in that case and in the companion case between Bangladesh and Myanmar and of course we're very, I'm not neutral in that case either but we're very, very gratified by the arbitral award which is very much in Bangladesh's favor. But I come not to brag about a victory but to underscore the credit that goes to India. A great power, a rising power, of the second most populous state in the world which has accepted the result. Now you have to understand as well that India loses almost 20,000 square kilometers of the northern Bay of Bengal which it had historically claimed, including 10 oil blocks which now belong to Bangladesh. But India hesitated not a moment in accepting the result and indicating that it would comply with it. You might also be interested that the arbitrator appointed by India was the lone dissent on the tribunal. Normally these are decided five to nothing. This one was four to one because the arbitrator appointed by India who happens to be of Indian nationality but a very distinguished international lawyer dissented very strongly from the majority decision. Nevertheless it is fully binding as if it were five to nothing. But India, a great power, an Asian power, a neighbor of China has elevated the rule of law over its narrower interests in the Bay of Bengal which according to studies is potentially a lot richer in oil and gas than the South China Sea appears to be. But India has accepted it. It's a great example of a great state's commitment to the rule of law and why does India accept it? Well, I think we have to conclude states have interests as a former secretary of state said, not morals but interests. States are not human beings, they have interests. India has concluded that its interests are better served by complying with the rule of law by strengthening the rule of law in international relations including its interests in peace and security in the region where it lives. And that brings me to what the United States can do to help bring about a peaceful resolution in the South China Sea in accordance with the rule of law. And many things have been said and I disagree with nothing that Deputy Assistant Secretary Fugue said. As I said, I was very pleased with what he did say. But I think there's one thing above all that the United States can do that it hasn't done. And that is ratify the UN Convention on the Law of the Sea. Every president since Ronald Reagan, every US President, Democrat, Republican has supported, has urged US ratification of the Law of the Sea Convention. In fact, it starts with Reagan because that's when the Law of the Sea Convention was concluded in 1982. The US was one of the main architects of the convention and concluded at the time that the convention served US interests including US strategic interests. And that conclusion has never changed. Every US Secretary of State, as well as every president, has supported ratification. The Joint Chiefs have always supported ratification and every significant client interest, the shipping industry, exporters, mining companies, oil companies have supported US ratification of the Law of the Sea Convention. Now, why is it especially significant now and in the context of the South China Sea? Well, we're promoting acceptance of compliance of the rule of law and we consider that that's essential to international peace and security. China is a party to the Law of the Sea Convention. China is bound by it whether we are a party or not. When China ratified the convention, they knew the United States was not a party at that time so China's ratification was not contingent on US ratification. They are bound by it either way. Nevertheless, they make a somewhat sympathetic political argument. Why should they be bound by the convention? Why should they have to comply with it when the United States, which is a great power and asserts important strategic interests in the South China Sea, has pivoted in that direction as we have heard when the United States is free of it and doesn't have to comply with it. Why should China be subject to different rules than the United States? I said that's a political argument. It's not a legal one. China is bound by the convention because they're a party. But why shouldn't the United States engage in that argument? Why shouldn't the United States remove China's excuse and why shouldn't the United States ratify the convention? More than 180 states have done it. Every other great power is a party to it. It's really mystifying. It's anomalous and frankly it's a disgrace that the United States has not ratified the convention. Two other comments. We heard the Deputy Assistant Secretary say that the United States supports ratification and I applaud him for that. But it's not enough to say we support it. Where is the effort? Where is the effort from this administration or prior administrations to get the Law of the Sea Convention ratified? If everyone supports it, why isn't it a priority to get it done? It's not enough to say that we support it, to pay lip service to it. What's required is to make it a priority. Now in the South China Sea, we see why it is a priority and why it should have been a priority over the last 30 years. But it's not too late. There is this crisis and there will be others. And we need to be a party to the convention so that we with moral and political authority can encourage with greater prospects of success, compliance with the rule of law in international relations. And perhaps, just perhaps, in light of the fact that we've been focused on these issues here for the last two days, perhaps one of the many positive outcomes of this conference could be a dedication by all of us here, including CSIS with all of its immense intellectual resources to encouraging the U.S. administration, and if not this one, the next one, whatever color it may be, red or blue or purple, to make a priority of U.S. ratification of the law of the sea convention and to make it clear to the rest of the world that the U.S. is truly committed to the rule of law in international relations and particularly to the rule of law as the means for resolution of the conflicts in the South China Sea. Thank you very much and happy to take a few questions. Thank you, Paul. We do have time for a couple questions. I did want to ask, Paul, since you were involved with Nicaragua, this came up yesterday that in the case of Nicaragua that it was alleged that the U.S. failed to honor the award or didn't comply with the decision of the court. Could you address that question? Certainly. Let me say that in over 95% of the cases, the parties comply with the awards or judgments of international courts or arbitral tribunals in interstate disputes. Over 95% of the cases, there is compliance and that includes not only by the winning state but by the losing state. So it is very rare that a state does not comply with the award or judgment of an international court or arbitral tribunal. I could go on at some length but I won't as to the reasons why states consider that it's so important to uphold the rule of law or at least be seen by the rest of the international community as upholding the rule of law but that may be outside the scope of the question. So let me come directly to the issue of the United States. I don't think it was the greatest day in the history of the United States when the administration of President Reagan made a decision to defy the ruling of the International Court of Justice in the case brought by Nicaragua over US support for military activities and paramilitary activities to overthrow the government of Nicaragua including the mining of Nicaragua's harbors. However, the Congress took a different view. The Congress cut off all funding to the Contras after the ruling of the International Court of Justice and forced the change in US policy which ultimately led to a peaceful settlement between the Sandinista government of Nicaragua and the Contras to democratic elections which you know were won by the opposition led by President Violeta Chamorro. And ultimately a settlement was reached with Nicaragua over the claims made in the litigation. So even that is a case where, and I certainly acknowledge, the US administration at the time was willing to defy the judgment of the court. In fact, the Congress brought the United States into compliance largely with the judgment and ultimately the case was settled. So I think that is not an example that China can invoke as excuse or pretext for failing to comply with an award in this case assuming the award goes against China. Like the papers you have filed in this arbitration, your presentation today shows the highest skills of advocacy. Now I want to get down to cases. You mentioned the Chinese emphasis on jurisdiction and you point out that the question really will be, does this case involve C boundary limitation? Now it's a possible challenge as you say, the main challenge in this case is to the nine dash nine. If the tribunal invalidates the nine dash nine, why is that not a C boundary delimitation? And related to that is a point I don't think you've mentioned the other provision for exempting China from the jurisdiction of the tribunal relates to historic title. What is historic title? Does that involve the nine dash nine? Because it seems to me that shaping up is perhaps the nub of the jurisdictional question. Well, thank you for your kind remarks. In regard to the questions, there is not only a conceptual but a legal difference, differentiation between entitlement and delimitation. And I see this all the time because this is the way cases are argued, delimitation cases even are argued before tribunals such as the ICJ and ITLOS and arbitral tribunals. First comes entitlement and then comes delimitation. Entitlement comes under different articles of the convention. In the case of the EEZ and continental shelf it's articles 74 and 83, not the articles that deal with delimitation which are specified in article 298. And a state's entitlement is based on the convention and international law again to a 12 mile territorial sea and a 200 mile exclusive economic zone and continental shelf. Only after you determine a state's entitlement can you begin to address the question of delimitation. It's an entirely separate question because delimitation occurs and indeed is only required and only occurs where you have overlapping entitlements. In the easiest case to imagine since I don't have charts or graphics to show you, imagine two states that are opposite each other across a wide expanse of sea and they're separated by 500 miles. Each state projects its maritime entitlements in the direction of the other out to 200 miles. But they don't intersect or overlap because 200 miles and 200 miles is 400 miles is still another 100 miles in between. So a quarter tribunal can determine the entitlements in that case without getting into the question of delimitation. In fact, it can't get into delimitation. Delimitation would only occur in this case. Now instead of being 500 miles, let's move these apart. Let's move these two states with opposite facing coasts closer together. Now they're 300 miles apart. And if you project 200 mile maritime zones for either one, we find that there is 100 miles in between them where their maritime zones, where their entitlements overlap. Delimitation is only required. It can only occur within that 100 miles. So the other 100 miles that state A is claiming, which are to the east or state B is claiming, to the east or the west of the overlap zone, constitutes entitlement, but there's no need for delimitation because there are no overlapping entitlements. So conceptually, and as well as legally in terms of the sources of rights in different articles of the convention, entitlement is a different question than delimitation. When the Philippines claims that China's entitlements extend to 200 miles and not beyond, we find that for most of the South China Sea and most of the Philippines 200 mile zone, there's no overlap. So no delimitation is required. There could not be a delimitation there. The only area where there is an overlap of 200 mile zones is off the northwest coast of the Philippines and the southeast coast of China. There's a bit of an overlap there. And of course, if, as the Philippines recognizes, Taiwan is part of China, then there's an overlap between Taiwan and the Philippines. But it's only in that northern, and with respect to the Philippines, northern and northwestern part of the South China Sea where there's any overlap at all, where delimitation could occur and we're not seeking that in this case. We can't because of China's article 298 declaration. So there is a, we believe that this tribunal, which is expert in law of the sea, knows the convention inside out, will have no difficulty distinguishing between entitlement and delimitation. And I talk so much, I forgot your second question. Historic title. Oh, historic title. Well, right, this is something obviously we've studied a great deal in great depth. We've addressed in our memorial, which we can't make public until the oral hearings. At the time of the oral hearings, the written pleadings can become public, so that will be in July of next year. We'd love to make it public if we could. And I think you'd be interested by the argument. But historic title, in regard to areas beyond the territorial sea, was specifically excluded, it's precluded by the UN Convention on the Law of the Sea. Any claims to historic title to what formerly were the high seas were excluded, were superseded by the creation of the exclusive economic zone and the continental shelf. So beyond 200 miles, there is no possibility of a state that's a party to the convention of claiming historic title. Secondly, historically, historic title claims were only made in areas contiguous to the coastline, closely contiguous to the coastline, principally in what we know as historic bays, indentations of the coastline where they were treated as internal waters historically by those states. But for a claim of historic title to be sustained under the law, even under the law prior to the convention, it has to be a claim where a state has, A, asserted this claim continuously and for a long time, and B, it has to have been acquiesced in by its neighboring states. In the case of the nine-dash line, as I said, China did not assert it publicly until 2009, it was immediately objected to by all of its neighboring states, including, well, most of its neighboring states, some remain silent, but it was objected to by the Philippines, Vietnam, Malaysia in particular, Indonesia as well, and clearly there's no acquiescence. So either under pre-convention law or post-convention law, the historic title claim is a complete non-starter, it's a complete loser. But they talk about, I would also say on the facts, if you look at the evidence of Chinese activities in the South China Sea, it's only in the 20th century that they begin to venture south of Hainan with any degree of consistency. And no claims were asserted in the Spratlys, which they now call the Nancha Islands, until recent decades. Well, I'd like to ask you to join me in thanking Paul for his comments. We're terrific, Paul, thank you very much. Thank you very much.