 My next, our next presenter is Professor Pete Podroso. I retired Navy captain, I met Pete 24 years ago when I first came in, he was one of my instructors over Naval Justice School, sort of a mentor. 33, almost 34 years in the military, eight years in the Army, 82nd Airborne, and came over to the Navy. It was an amazing career. It was down in Just Cause, down in Panama, as a Navy lieutenant, I think manning a checkpoint with some great experiences. Operationally, none finer than Pete from a JAG perspective, been on a carrier group, things of that nature, was on the investigating officer for the Black Sea bumping off the Crimea coast back in the 1980s between the Soviet Union and the United States, a freedom of navigation ops, so he knows all about that. Then he went off to do some of the big tours in DC at the Pentagon, our office of policy, law of the sea, was the SGA for the Special Operations Seals out in Coronado, and ended up his career as the SGA at our Pacific commander. There's a lot of time talking about Asia-Pacific type items. It's great once again to have Professor Podroso here, so please give him a round of applause as you did. Thank you. Thank you, Kevin. Well, as you can see, we're going to talk about the Pacific maritime disputes over the next hour or so. That's what I've spent most of my time looking at these days, so without any further ado, what I want to do is, first off, I'm going to give you a little bit of background on the law, a basic on law of the sea so that you have a working knowledge of that when you do your seminars over the next two days, but then I'm going to shift and talk specifically about military activities because some nations are trying to alter what the law says about the right to engage in military activities in the exclusive economic zone. And then we'll look at some specific issues that have occurred within the last six months in the East China Sea and the South China Sea so that you can see the relevance of the law of the sea and other international law aspects of how they play out in the real world. So you can see the law of the sea convention, which the U.S. is not a party to, but reflects customary international law so we observe most of its provisions, basically divides the ocean into zones. The closer you are to the land, the more control the coastal state has, the further out you get the greater rights the user states have in the various maritime zones. Everybody, all coastal nations can draw baselines and all the water that is a land word of that baseline is internal waters subject to the exclusive sovereign control of the coastal state. You can't go into the internal waters of another nation without that coastal state's permission. Then they've got a 12 nautical mile territorial sea measured from the baseline and the sea is treated very much the same as sovereign land territory. The only exception is that ships, not aircraft, ships have a right of innocent passage in the territorial sea of another nation. Aircraft in the airspace above the territorial sea do not have a right of transit without the consent of the coastal state. Then you have an additional 12 mile contiguous zone. This is basically a law enforcement zone where the coastal state can exercise customs, fiscal immigration and sanitation laws and enforce those laws out to basically 24 miles into the contiguous zone. For purposes of navigation and overflight, the contiguous zone is treated like the high seas. All nations have a right to transit and operate in the contiguous zone of another nation so long as they're not violating one of those four laws. Then all nations can claim a 200 mile exclusive economic zone. That is a resource zone within the exclusive economic zone the coastal state exercises sovereign rights not sovereign T like they do in the territorial sea, sovereign rights over all of the resources in the exclusive economic zone. So the fish, the oil and gas etc. all belongs to the coastal state and if you want to exploit those resources in the exclusive economic zone of another nation, you have to have that nation's consent. In addition, the coastal state exercises environmental jurisdiction in the EEZ and they also exercise exclusive jurisdiction over marine scientific research in the EEZ. So if you want to engage in any of those types of activities, you have to have the coastal state's permission before you do that. Again, as the contiguous zone the EEZ purposes of navigation and overflight are treated like the high seas. So you can engage in military activities in the exclusive economic zone just like you can in the high seas areas so long as you're not unreasonably interfering with the coastal state's resource rights in that zone. So you can't go in there and conduct a military exercise within 500 meters of one of their offshore oil platforms that would be interfering with their resource rights. So there is some due regard that has to be paid to the coastal state's resource rights but at the same time the coastal state has to pay due regard for the rights of all users to operate in the exclusive economic zone consistent with international law. And then we have the high seas. High seas are open to all nations. No nation may subject the high seas to its sovereign control and all nations can operate in the EEZ again with due regard for the rights of other nations in those zones. That gives you a basic overview of the law of the sea. A couple other important provisions that you need to be aware of in the law of the sea is prior to the 1982 UN law of the sea convention, most international straits, you know, you look to think about Hormuz, Gibraltar the straits of Malacca, they all had a high seas corridor because back then the maximum breath of the territorial sea was only three nautical miles. So that meant that if you wanted to go through the straits of Hormuz you just stayed outside of the territorial sea of the coastal state and you could exercise high seas freedoms of navigation and overflight through the strait. But with the extension of the territorial sea from three to twelve nautical miles under the law of the sea convention all of a sudden 115 international straits were now overlapped by the territorial seas of the littoral coastal nations. What does that mean? Well, remember territorial sea, if you're a submarine you can't navigate through the territorial sea of another nation submerged. You have to be on the surface and you've got to be flying a flag. If you're an aircraft, you can't overfly the territorial sea of another nation. So what did that mean for purposes of international straits? All of a sudden we had a problem that we're not going to be able to get our ships and aircraft or submarines and aircraft into a Persian Gulf for example, because you would have to disclose your presence in effect or request permission if you're an aircraft. So the trade off was this concept of creating transit passage rights through international straits. So all these straits that are now overlapped by territorial seas, the international community still has a right of access through the international strait in the normal mode of operation. What's the normal mode of operation of a submarine? It's submerged. Normal mode of operation aircraft that you can fly through without requesting permission. So now we have a absolute right nonsuspendable right during peace time of transit passage through international straits. U.S. position is it applies shoreline to shoreline. Not all nations agree with that. And the reason we say it applies shoreline to shoreline is not for ship purposes because you're not going to navigate that close to the coast anyway. But you might want to have an aircraft fly that within a mile of the coast. And that would be permissible under the transit passage regime even though you would technically be in the national airspace of that coastal state. But because you have a right of transit passage, you do not have to have the coastal state's permission to transit through that corridor. One thing that the coastal state can do, they can go to the international maritime organization and have traffic separation schemes approved for safety of navigation purposes and most international straits that have a significant amount of traffic in them do have IMO approved traffic separation schemes in the strait. What does that mean for warships? Really it doesn't mean anything because under the Solas Convention which is the convention that traffic separation schemes are approved under there's a sovereign immunity exception that warships don't have to comply. They can comply if they want to but there is no legal obligation for a warship to comply with a traffic separation scheme. But in most cases they will because of safety of navigation concerns. A similar concept with transit passages archipelagic sea lanes passage. One other thing that the convention created was the right of an archipelagic nation and you think of island nations because an archipelagic nation has to be an island nation and then it has to meet certain tests of requirements of water ratio to land ratio in order for it to qualify as an archipelago but if it does qualify and here's an example of Indonesia is obviously an archipelago under the convention the Philippines. A lot of archipelagos about 17 or 18 that are recognized around the world but again the convention allows the archipelagic nation to draw straight baselines around all the islands and then all the waters inside the baselines are considered archipelagic waters and they're treated like the territorial sea for purposes of navigation. You cannot go overfly the archipelagic waters of an archipelagic nation without their consent because archipelagic waters are the same technically as territorial seas. So what the convention did was it created this right of archipelagic sea lanes passage very similar to the exact same rules for archipelagic sea lanes passage and what it does is that the international community can use all the normal routes used for international navigation through that archipelago in the normal mode of operation. So here you can see Indonesia has gone to the only nation that's gone to the IMO and has designated three north-south sea lanes with some associated spurs but while we were negotiating this at the IMO the US and Australia came in and said those aren't the only internationally recognized routes through the Indonesian archipelago there's also some major east-west routes that are available and the IMO agreed and what the bottom line is that even though Indonesia has only designated three archipelagic sea lanes the right of archipelagic sea lanes passage continues to apply in all the normal routes used for international navigation until such time as Indonesia goes back to the IMO and it does a full designation of all the normal routes. So that's where we are right now with regards to archipelagic sea lanes passage with Indonesia you can see in the sea lanes you have a right of archipelagic sea lanes passage and then you have a right of innocent passage in archipelagic waters. Alright so that's your very quick overview of the law of the sea the convention has very specific rules in it some of them are more open to interpretation in others and that leads some states to have what we call excessive maritime claims straight baselines being an example the normal the convention says that the normal baseline that a coastal state will use is the low water mark shown on this large scale chart however it does provide an exceptional circumstances where the coastline is deeply indented or there's a fringe of islands along the coast that allows the coastal state to use straight baselines along the fringing islands or to close off the deep indentations think Norway the fjords off Norway they can close those off with straight baselines the problem is that probably 95% of the countries that use straight baselines do so illegally under the law of the sea convention because they don't meet that criteria of deeply indented coastal fringing islands so that's a problem area and the problem is that when you have a straight baseline that's illegal what does that do it pushes all the maritime zones further out doesn't it because all the maritime zones are measured from the baseline so if you've got a country that has an excessive straight baseline all of a sudden what might have been an EEZ area is now a territorial sea area and that might create a problem when you want to have access and engage in military activities in that area restrictions on innocent passage as I mentioned all ships even warships have a right of innocent passage in territorial sea is that say if you're a warship you have to have my permission before you can transit an innocent passage through my territorial sea about 30 or 40 countries that do that out of the 160 some countries that are parties to the convention other restrictions on innocent passage might be nuclear power ships may require the permission of the coastal state before they can transit through the territorial sea and innocent passage again these are illegal requirements but some states try to enforce them another area security jurisdiction as I mentioned the contiguous zone really applies to four laws customs, fiscal, immigration, and sanitation but some states will say we also have security jurisdiction in the contiguous zone so you cannot engage in any type of military related activities in our contiguous zone because that violates our sovereignty again illegal claim but we see that in some cases the most problematic one for us right now is restrictions on military activities in the EEZ because we're talking about 200 mile zone off the coast that's pretty significant and I'll talk a little bit more about that in detail in a minute restrictions on transit passage Iran for example says that if you're not a party to the convention read United States you don't have a right of transit passage because you're not a party to the convention therefore you don't have a right of transit passage through the Straits of Hormuz some coastal nations will restrict transit passage for nuclear powered vessels for ships carrying hazardous cargo that's been a problem in the past again illegal requirements but some nations will do that same thing with the restrictions on archipelagic sea lanes passage and then historic bays historic waters are considered to be inter if it's a valid claim a historic bay would be internal waters which means you have to have the permission of the coastal state to go into that area Peter the Great Bay for example the Russians claim that to be internal waters in the old days Libya used to claim the Gulf of Sidra as historic waters it drew the line of death across the the Gulf of Sidra and resulting in a number of incidents with the United States over the years that's just an example of how even though the convention says one thing nations will interpret it in a different way and apply the the rules that suits their purposes now if you want to find out what excessive claims exist in the world just go to this website and Kevin you hung this on the they have access to these slides okay this website here run by the Navy Jag lists every it's the maritime claims reference manual lists every nation in the world that has the maritime claim and it lists whether or not it is an excessive claim in the view of the United States and if it is an excessive claim it will also state when we conducted a freedom of navigation assertion or when we filed a diplomatic protest against that nation objecting to their maritime claim so very useful reference when you're actually doing operations if you're doing operations off the coast of the nation you may want to pull the maritime claims reference manual and figure out what are the maritime claims of the neighboring nations are we going to somehow run into problems because they may have an excessive claim that may impact our operations so good reference point for you to take a look at sometime in the future alright I want to talk a little bit more about the exclusive economic zone because again this is also a creature of the convention the exclusive economic zone did not exist until the convention was finalized in 1982 there had been some fishery zones the United States being one had claimed 200 mile fishery zone some nations had claimed 200 nautical mile territorial seas which were very excessive but the convention kind of made a compromise and said okay we'll have this exclusive economic zone where the coastal state can exercise resource rights because that's really what the coastal state was interested in was having access to the resources in the exclusive economic zone but as you can see almost 40% of the world's oceans is comprised of exclusive economic zones so if you are one of these countries that claims the right to restrict military activities in the exclusive economic zone that creates a problem for user states because you can see that a lot of all of southeast of the south china sea obviously the Mediterranean the Persian Gulf they're completely overlapped by the 200 mile zones of the various coastal nations so if they can restrict military activities in the EEZ then that's a problem particularly for a maritime nation like the United States there you can see the 18 countries that purport to restrict military activities in the EEZ you can see it's regionalized by and large as you can see the red ones are the southeast Asia Pacific nations that purport to regulate military activities in the EEZ but you can see the other ones are also regionalized with and then what I call the Portugal conspiracy which is Portugal, Brazil and Cape Verde the former colonies of Portugal also have restrictions on military activities in the EEZ now the restrictions that are imposed by these nations vary from country to country they're not all the same some might prohibit military marine data collection so if you've got a special mission ship that's conducting surveillance in some of these EEZ if you're one of these nations like let's pick on china for example they're saying that you're engaged in marine scientific research and who has jurisdiction of a marine scientific research in the EEZ it's the coastal state but collecting intelligence isn't marine scientific research so they don't have jurisdiction over other requirements prior notice and consent before you go in there to do military activities they might be environmental restrictions imposed again some nations will say that low frequency acoustic sonar harms the marine mammals in their exclusive economic zone and therefore you can't engage in that type of activity in their EEZ problem with that argument is that that's an environmental jurisdiction and under the convention warships and other sovereign immune vessels do not have to comply with any of the environmental provisions of the convention there's a complete exemption in the convention that allows us to carve out all the environmental provisions from application to our sovereign immune warships and other government owned or operated vessels and then some national security restrictions now having said that we've got 18 countries that say you can't engage in these activities there's only been three countries that have used force to try to enforce their claims against the US most of you won't remember but in 68 you had the Pueblo about 16 nautical miles off of an island off of North Korea and sent to the area to collect intelligence overtly to gauge how the Soviets and how the North Koreans would respond to the presence of that ship there I think they got a little bit more than they bargained for the vessel was attacked by the North Koreans and the crew was held hostage for over a year or almost a year until they were finally released China however has been the more notable country that's interfered with military activities in the EEZ and this is just a sample of the events that have made it into the newspapers this stuff goes on all the time in the East China Sea in the South China Sea in the Yellow Sea where the Chinese will harass military vessels and aircraft that are within their EEZ but these are the ones that actually make the newspapers Bowditch an EP3 incident in 2001 this was during a timeframe where the administration had just changed over the Bush administration was coming into power most political appointees were not yet in place in the Pentagon or at the State Department I think China took the opportunity to see how the US would respond to this type of harassment you remember the EP3 incident was fairly significant because it resulted in mid-air collision of a US aircraft and a Chinese fighter Chinese pilot was killed and the aircraft had to make an emergency landing on Hainan Island and they were held captive there for about two weeks until we negotiated their release and got them out of there and got the plane out of there about July of that same year 2001 fast forward eight years from then and now Obama's administration is coming in what happens you got the victorious and you got the impeccable incidents in 2009 the George Washington incident occurred in 2010 somebody asked a question about the Cheonan sinking George Washington was sent to conduct exercises in the Yellow Sea with the Korean Navy following the sinking of the South Korean vessel the Chinese objected saying that the presence of a carrier that close to the Chinese coast was contrary to the national security interest and therefore the George Washington should not be allowed to conduct any type of operations in the Yellow Sea because that would be a threat to their security U-2 incident in 2011 intercept of the U-2 that was flying through the Taiwan Strait now the Taiwan Strait isn't one of these international straits because it's wide enough across to have a high seas corridor so really anybody can go through the Taiwan Strait outside of 12 miles of the coast of Taiwan and 12 miles off the coast of China because they have this high seas corridor but again Chinese intercepted the U-2 in 2011 not solely a US issue we've had Indian ships that have also been harassed by the PLA Navy in the South China Sea and then in 2013 the impeccable incident and most recently in December of last year the cow pens incident cow pens was conducting surveillance of China's new aircraft carrier it was in the South China Sea doing military exercises one of the escort ships radioed the cow pens and told them to leave the area cow pens responded saying we're not leaving, we have a right to be here as a result then the Chinese ship maneuvered within 500 meters of the cow pens came to a full stop forcing the cow pens to take evasive action in order to avoid a collision now the initial response or I should say the justification given by the Chinese was that the cow pens had entered a 45 kilometer inter defensive layer and that was a trip wire for them and therefore cow pens didn't have any business being there however that ignores the fact that just the previous month there was a PLA frigate that had been within 30 kilometers of the George Washington battle group that was conducting exercises in the South China Sea so kind of a do as I say, not as I do type of mentality that sometimes the Chinese will try to impose on other nations and they also said that the cow pens was harassing the carrier and its formation which is absolutely a ridiculous argument to make how did we respond, how did they respond initially both sides and we tried to downplay the incident we did deliver a diplomatic protest because it was a violation of the collision regulations for the PLA warship to do what it did so we did file a protest but we pretty much tried to downplay it saying that both sides had acted professionally etc but then a couple days later we found out that one of the previous the Chinese had indicated they had issued a notice to mariners setting out the area where the aircraft carrier was going to be conducting its operations and that other nations should stay out of that area for their own safety and we do that all the time too, we'll set out a notice to mariners when we're going to do a military exercise on the high seas or in somebody's EEZ that sets out the parameters of the aircraft carrier, we want to make sure that innocent shipping doesn't go in there and get itself particularly if we're using live ammunition for safety navigation purposes we want to make sure that the area is clear so the Chinese said that they had issued this notice to mariners, well they did but they didn't issue until the day after the incident had occurred and when the Secretary Hagel found out that it hadn't been issued until the day after his response was a little bit more a tougher response than we had originally seen saying that this was unhelpful, irresponsible it could result in a eventual miscalculation and that this was a clear violation of the collision regulations, that's one of the only treaties that applies to warships, a warship has to comply with the collision regulations just like a merchant vessel does so in the United States and China are both parties to that treaty. Just to summarize I'll give you an example of how China uses the law to their advantage or to try to make their state their position more effective in the eyes of the international community. If you look back in 2001, when we had the Bowditch and the EP3 incident, these were the legal arguments that they were making we were saying that the fact that a US special mission ship or the fact that a surveillance aircraft was in their exclusive economic zone or in the airspace above their exclusive economic zone was a violation of their national security interest it violated the peaceful purposes provisions of the convention which basically they were trying to equate the presence of a surveillance vessel as a threat or use of force against the territorial integrity of China and then the proximity to the mainland they were arguing that why are we conducting operations 70 miles off the coast, why can't we do this 250 miles off the coast, is there a need for us to be within 70 miles of the coast the platforms that were used to harass were military either the PLAN or PLA Air Force were the platforms that were used to interfere with our military activities after the EP3 incident China got a lot of bad press the way they handled that incident as a result China started rethinking some of their legal arguments they never changed this even today in 2014 they're still arguing these same things but they started adding new legal arguments to their position so in 2002 they passed a domestic law a survey and mapping law and what that law does is it basically says that any type of data collection in the water column of the Chinese EEZ is subject to their to their control and consent again as I mentioned surveillance, collecting intelligence is not the same as marine scientific research it might look like it's the same thing but the purposes are different and the coastal state has no jurisdiction over the collection of intelligence in their exclusive economic zone based on an argument that it's marine scientific research again that didn't carry a whole lot of weight in the international community so beginning in about 2005 when we have a bilateral agreement with the Chinese called the military maritime consultative agreement where we get together once or twice a year to the extent that we're not you know not meeting because we've sold weapons to Taiwan or something but at the 2005 meeting of the MMCA in Shanghai was published by one of the Chinese lawyers and he started making this argument that our use of sonar was harming their marine mammals use of sonar was disrupting the fish patterns in the Chinese EEZ and that was an interference with their resource rights that was all in conjunction with about the same time that a lawsuit started in U.S. in California where some environmental groups sued the Navy saying the same thing that low frequency acoustic sonar was harming marine mammals and that was a violation of U.S. law for the U.S. Navy to engage in those types of activities the NGOs won at the district court they won at the night circuit court of appeals the case was then taken to the Supreme Court by the Navy and the Supreme Court overturned the lower court's decision saying that the Navy's interest in training realistically outweighed the interest of the environmental groups in protecting the marine mammals if in fact low frequency acoustic sonar did harm marine mammals there was no finding that that was actually the case but whatever the decision of the court the Chinese looked at that and they said well that might be a good argument for us to make against the United States and that their intelligences are now harming our resources platforms for harassment purposes have changed completely to their civilian law enforcement vessels you didn't see PLA vessels engaging in any type of harassment during this time period it was all being done by China Maritime the state ocean administration and the fisheries law enforcement command as well as their customs view again these arguments didn't carry a whole lot of weight so in 2013 we thought well maybe the Chinese have finally seen the light because at the Shangri-La Dialogue in 2003 one of the Chinese officers there publicly stated that the Chinese had been engaging in military activities in the USEEZ off of Guam and off of Hawaii without seeking consent of the United States so we figured well maybe they've come around they're trying to develop a blue water navy they see the value of being able to engage in military activities in other nations EEZ so maybe they've seen the light but then we have the impeccable in the cow pens incident a couple months later so have they changed their legal position I don't think so I still think that they want to be able to engage in military activities in our EEZ because we won't object to that but at the same time they don't want us for all of these reasons to engage in those types of activities in their exclusive economic zone okay let's switch gears now a little bit talk about some of the territorial disputes I'm not going to talk about all of them I'm going to focus primarily on the South China Sea territorial disputes with the parasails and the and the Spratly Islands because those are the ones that are in the news more often I'll also talk about the Senkaku Islands which is a dispute between China and Japan when I talk about the recently declared air defense identification zone in the East China Sea okay so you look at the South China Sea the islands in the South China are claimed in their entirety by China by Taiwan and by Vietnam portions are claimed by Malaysia the Philippines and then Brunei claims a fishing zone in the South China Sea these very proficient or prolific fishing grounds they're used extensively by the regional nations for sources of protein there's also potential oil and gas off the coast of all of these nations and strategic sea lines of communication a third of world shipping goes through the South China Sea every year 100% of the world's oil goes through the South China Sea every year so the very strategic sea lines of communication from a world economy standpoint you can see here the various claimants China basically draws a it's a nine dashed line we'll talk about that later but everything that's within the cow's tongue it's called the cow's tongue all of the land features within the cow's tongue China claims as sovereign Chinese territory you can see Vietnam also has a claims virtually all of the South China Sea islands the Philippines a portion not all but a portion Malaysia a small portion then as I mentioned Brunei it's really all about oil and gas you can see there's already a significant amount of oil and gas development off the coast of Malaysia and Brunei some not so extensive off the Philippines some off of Vietnam but potential for significant oil and gas in these areas so for the Philippines Reed Bank very proven reserves that could be instrumental to developing their economy about 130 some miles off the coast of the Philippines these are the features that are physically occupied by the various countries you can see Vietnam occupies the most of them Vietnam being the black squares Taiwan only has one island occupied it's been occupied by Taiwan since 1946 they were sent there as part of the Allied forces to disarm the Japanese forces that were stationed on Ituobu Island and they never left even though in March of 1946 pursuant to an agreement with the French all the Allied forces were supposed to leave occupied territory so that the French could come back into China and reestablish their control over French into China Ituobu by the way is the only island that has a fresh water source none of the other features in the South China Sea have fresh water source which is significant when you start talking about what maritime zones these features are going to be entitled to regardless of who has sovereignty what type of maritime zones can they claim if you're an island you get the same maritime zones that a coastal state does so you can get a 200 mile exclusive economic zone if you have an island if you're a submerged reef you get nothing but a maritime zone and if you're a rock which is a feature that's above water but can't sustain human habitation you only get a 12 mile territorial sea so depending on how these features are classified will depend on the maritime zone that they're entitled to and that could be significant in trying to resolve the ongoing dispute but you can see Vietnam occupies the most followed by the Philippines and then China and Malaysia by a number of the features talk about the cow's tongue this has been in existence since 1948 it was put out first by the Republic of China by the Taiwanese Chiang Kai-shek's folks it originally was an 11 dash line there was two additional lines that were over here in the Gulf of Tonkin but there was a once the China and North Vietnam entered into a bilateral agreement that resolved the boundary in the Gulf of Tonkin the two lines up here went away but they still have this 9 dash line and their argument is basically that they have all the islands, all the land features are sovereign territory then they have each of those features can claim at least a 12 nautical mile territorial sea if not a 200 mile exclusive economic zone and then all the rest of the waters that are encompassed within the cow's tongue they have exclusive sovereign resource rights so basically they're treating it like an exclusive economic zone for purposes of resource rights but you can see it's been pretty consistent since 48 all the way up until 2013 when they published new official state maps of China now under international law the fact that you discover a land feature doesn't mean that it's your sovereign territory that used to be the rule so you know when the Spanish came to the new world they claimed the you know what Cuba or whatever for the kingdom of Spain that was okay back then but under contemporary international law if you discover a land feature then you still have to effectively occupy that territory before it can become your sovereign territory that's shown by two things public and permanent intent to occupy as well as a peaceful and continuous occupation of the feature now I've just completed a very extensive research project on Chinese claims in the South China Sea visa v vietnam's claims and my conclusion is that China has absolutely no claim whatsoever to any of the South China Sea islands so what is China trying to do they're trying to show that we have effective occupation of these areas therefore and they're under our administrative control so under international law these features are ours they don't belong to any other country so what are they doing to demonstrate this effective occupation well you recall in 74 as the US was withdrawing from South Vietnam during the war China took advantage of our preoccupation with our withdrawal and invaded the parasol islands the crescent group of the islands which was occupied by South Vietnamese forces and expelled the South Vietnamese garrison from the islands clearly a violation of Article 24 of the Charter for violating the territorial integrity of another nation at this time South Vietnam had inherited French claims France in my research France was the last country to really have clear title to the South China Sea islands so when the Japanese invaded in World War II at the conclusion of the war 1951 peace treaty Japan renounces its rights to the parasols into the Spratly Islands they revert back to France their original owner then South Vietnamese inherits those as the successor state to France leaves Indochina in the 1950s as a result of the French Indochina war then when the North and the South Vietnam unite now the socialist republic of Vietnam acquires South Vietnam Vietnam's interest in the South China Sea islands so Vietnam in my mind clearly has legitimate title to both the parasols and to the Spratlys fast forward 14 years later what's happening in 1988 the Soviet Union is imploding they are North Vietnam's ally so once again China takes advantage of the preoccupation of the Russian government, the Soviet government invades Johnson South Reef sinks a number of North Vietnamese vessels kills about 70 North Vietnamese sailors and then occupies 6 features in the Spratly archipelago again fast forward a few more years what's happening in 1995 US has withdrawn from the Philippines in the early 90s so what does China do they take advantage of this they know that the US isn't going to intervene and they occupy Mr. Reef which is off the coast and then in 2012 we had another incident involving the Philippines where two China Maritime surveillance ships prevented a Philippine warship from arresting illegal Chinese fishermen that were fishing in Scarborough Shoal, you can see it here it's about well within the 200 nautical mile exclusive economic zone of the Philippines and a great distance from Hanoi Island which is the nearest territory that China has clear jurisdiction over and most recently we saw again that they've pretty much taken control of Scarborough Shoal and are preventing Philippine fishermen from operating in the area some of the other things that China's been doing every year they impose a fishing ban south of the parasols probably arrest about 400 Vietnamese fishermen every year hold them for a year find them confiscate their boats and their catch anytime any of the other nations make any type of acclaim to the South China Sea area there will be diplomatic protests filed by the Chinese government they've increased their presence whether that be civilian law enforcement or naval exercises they're sending fishing fleets to the area for to have an increased presence they've enacted some domestic laws they've established a prefecture level city in 2012 that is now responsible for administration of both the parasols and the Spratly Islands stood up a military garrison there and have authorized the maritime police that operate from An An Island to board foreign vessels that are in the South China Sea that are illegally fishing and most recently they've issued some new fishing regulations that we'll talk about in a little bit other ways that they're trying to demonstrate that they exercise effective control and that the resources within the region belong to the Chinese government is through harassment of resource rights of the other coastal nations here you see there's a bank in 2011 we had a seismic survey ship that was conducting a survey of the Reed Bank area for oil and gas because there has been there's significant proven reserves of oil and gas in the area you can see it's 85 nautical miles off the coast of Palawan clearly within the 200 nautical miles exclusive economics under the Philippines and the vessel was ordered out of the area by Chinese vessels May of 2011 again 116 miles off the coast of Vietnam within the 200 mile exclusive economic zone of Vietnam you had a seismic survey ship the Bingmen 2 that had its cable cut by Chinese vessels while it was conducting a survey same thing in June Viking 2 also a Vietnamese vessel 60 miles off the coast was harassed by Chinese civilian law enforcement and then in November of last year another incident with the Bingmen about 45 nautical miles off the coast where China is interfering with their resource rights China has also indicated that it is going to lease a number of oil blocks and enter into joint development projects with foreign oil companies that all 9 of the blocks are within the 200 nautical miles exclusive economic zone of Vietnam who has jurisdiction over the resources in that area it is clearly not the Chinese it is the Vietnamese now the only country that really stood up to the Chinese is the Philippines they initiated a arbitral proceeding against China in January of last year under the compulsory dispute settlement provisions of the convention they are both parties of the law of the sea convention there is a process by which parties of the convention can file for compulsory dispute settlement and relief being sought by the Philippines is a declaration from the tribunal saying hey everybody should get their maritime zones that are authorized under the law of the sea convention their territorial seas and exclusive economic zones and their continental shelves continental shelves can go out to 200 miles or in certain cases even further if they meet certain scientific criteria they want a declaration by the tribunal that the Nang Dash line is illegal they want a determination on the status of the features and remember I mentioned if you're an island you get all the zones if you're a rock you only get a territorial sea and if you're a low tide elevation you get nothing so they want a determination as to what the status of all the features are so that you can start drawing a map that shows where the potential overlap claims might be and then they also want a declaration that they have a right to exercise their resource rights in their exclusive economic zone as well as the continental shelf. China has refused to participate in the proceedings the oral hearings will probably occur within the next few months the problem with the dispute settlement provisions of the convention are that there really is no enforcement mechanism so even if the Philippines prevails before the tribunal and the tribunal says yeah you're right everything that China is doing is illegal as long as China hasn't participated in the proceedings there is no enforcement mechanism that the Philippines can rely on other than public opinion world opinion to try to convince China to comply with the with the order of the tribunal how did China respond like I said they didn't participate what they did do was they've combined all of their civilian law enforcement bureaus into one China maritime police bureau that's restructured under the state ocean oceanic administration you can see there's five different law enforcement agencies that engage in maritime law enforcement for China what does this mean it means that now they've got really increased capacity to be able to have greater patrols as well as have increased manning vessels aircraft etc what's the US been doing since 2011 to 2011 well we've been negotiating this Trans-Pacific Partnership Agreement which is a really kind of like an economic type of an agreement China specifically being excluded from those negotiations for the first time a president of the United States attended the East Asia Summit that had never occurred before at the 2012 sharing a dialogue the Secretary of Defense announced our rebalance to the Pacific where the naval forces will be approximately 60% of our naval forces will be stationed in the Pacific in 2011 we also entered into a new defense cooperation agreement with Australia which allows for the rotational deployment of up to 2,500 Marines in the Darwin area of Australia in addition it gives us greater access to their airfields as well as some of their ports on the north and on the western side of Australia very important agreement with New Zealand in 2013 we've had strained relationships with New Zealand for many years because of their nuclear stance but this is a significant arrangement for the first time SECDEF now on a case by case basis can authorize a New Zealand warship to enter a US Navy port up until 2013 they couldn't do that so when a New Zealanders came to participate in RIMPAC for example in Hawaii they'd have to tie up the pier down where the cruise ships were they weren't allowed to tie up in Pearl Harbor with the rest of the naval ships that were participating in the exercise it's a very significant agreement we've also gotten increased access with Vietnam as well as increased military exercises with the Vietnamese as well as with the Philippines same thing a lot more ships and aircraft going into Subic and into Clark where our old bases used to be we're also looking to do a rotational deployment of Marines through the Philippines like we've done in Australia the agreement is very close to being completed I've read something probably by end of March or early April the new access agreement should be signed between the US and the Philippines one other thing for the first time we see a US official this isn't an official US government position because it's not something that we've communicated directly to the Chinese government but for the first time we see a US official criticizing the 9-dash line calling it into question with the legal validity of the 9-dash line so you got Assistant Secretary of State Russell as well as the ambassador in the Philippines saying that this 9-dash line doesn't pass the straight face when it comes to legal validity that's a significant step because up to now we've kind of taken a position of neutrality with regards to the 9-dash line so this is a good thing alright let's talk about some of the other incidents that have occurred under international law all nations can declare an air defense identification zone to include international airspace they can use unilaterally there is no organization that governs how or when you can declare an air defense identification zone and it's done so to establish conditions of entry into your national airspace so what it requires is if you're going to enter US national airspace for example you've got to provide advance notification to the US government that you're going to do that if you're not if you're just going to transit through the air defense identification zone and have no intentions of entering the US national airspace so within 12 miles then there's no requirement for you to comply with the ADIS procedures as I mentioned we were the first nation with Canada to declare air defense identification zone around North America in the early 1950s we also have one around Alaska we have one around Hawaii and we have one around Marshall Islands so that's the novel about this for us for the United States to have a nation declare an air defense identification zone under our ADIS procedures if as I mentioned if you're going to enter US national airspace then you've got to provide identification and what that requires is you've got to fire a flight plan you've got to have an operating two-way radio so you can communicate with their traffic controllers and you have to have an operable radar beacon transponder to indicating who you are and again these procedures only apply to aircraft that have an intention of entering US national airspace so what's China done in November of 2013 they declared a fairly extensive air defense identification zone in the east China sea to include the disputed Senkaku islands with Japan the object stated objective of the air defense identification zone to defend their national territory sovereignty and territorial air security etcetera all aircraft entering the zone have to comply and if you don't comply then they have these unspecified defensive measures would be taken against aircraft that did not comply with the ADIS procedures now as I mentioned we didn't have a problem with them declaring an ADIS because we've got our own ADIS so it would be kind of disingenuous for us to say well the US can have an ADIS but China can't you can't make that kind of an argument the problem is that it applies to all aircraft whether they intend to enter national airspace or not so if you're flying out here if you're going from South Korea and you're flying to the Philippines and you cross the outer edge of the air defense identification zone China requires you to provide notice that you're going to do that and comply with their ADIS procedures so that's a problem the additional problem is that it overlaps pre-existing air defense identification zones in the region both South Korea and Japan have had air defense identification zones that the US declared back in the early 50s after the war and then in the 1960s the South Koreans and the Japanese assumed control of these air defense identification zones but they've been around for a long time so what does China do without consulting with these other nations they just went ahead and established their own ADIS to overlap the pre-existing zones of these other nations again an effort to in my mind is aimed directly at the Senkaku Island dispute to try to change the status quo again a demonstration on their part that they effectively have administrative control of the Senkaku Island by establishing this air defense identification zone as you can imagine the Japanese weren't happy they basically said that this unduly infringes freedom of flight in the international airspace remember I told you over the high seas nobody has the right to regulate the water or the airspace above the high seas the international airspace because it requires all aircraft to comply whether they have an intent to enter China's national airspace or not the Japanese are saying that that therefore infringes on freedom of overflight not valid and to them as I mentioned is a clear effort on their part to change the status quo of the Senkaku Island dispute South Korea responded a little differently as you recall their identification zone used to be right here well they've extended it now south into the Chinese air defense identification zone to include Suyeon Rock or Ayodo Reef which is a dispute between China and South Korea as to who owns this submerged rock is a rock that's four feet below sea level and both of them are claiming sovereignty over it saying that it's their sovereign territory so pretty ridiculous argument on both their side but still that was the response from South Korea to extend their air defense identification zone to encompass the disputed area in response to the Chinese efforts to do the same U.S. our State Department issued some concerns increases tensions in the region we don't support efforts to apply these procedures aircraft that are not attending the international airspace and we have defense commitments to our allies i.e. South Korea and to Japan in this area DOD statement very similar destabilizing attempt to change the status quo it's not going to change how we conduct our military operations in the area and we reaffirm our defense obligations under our treaty with Japan because we specifically apply the mutual defense treaty to the Senkaku Islands because they are islands that are under the administration of Japan after World War II the Senkakus and the other Ryukus islands including Okinawa were placed under U.S. administration in 1972 we turned administrative control of the Ryukus and the Senkaku Islands back to the government of Japan so as a result they are territory that fall within the scope of our defense obligations under our mutual defense treaty with Japan just some other reactions from some other countries both within the region and out of the region you'll have access to this later we also conducted a freedom of navigation assertion shortly after the ADIZ was announced by sending B-52 bombers from Guam to enter the southern end of the air defense identification zone without providing notice to the Chinese government Japan and the Koreans did the same the Koreans in the vicinity of Ayodo Rock conducted a FON challenge as did the Japanese in the vicinity of the Senkakus down here and then they did a joint search and rescue exercise as well in the air defense identification zone without notifying the Chinese and another exercise by the Koreans now as I mentioned the US said well this isn't valid because it applies to all aircraft that are going to transit through the ADIZ whether they have intent to enter the national airspace of China or not but then we did something somewhat strange we had the FAA issued a notice to Airmen saying that all civilian carriers so United Delta etc. you will comply with China's new ADIZ requirements so on the one hand we're saying that it's invalid and we don't want we're not going to comply and on the other hand we're telling our civilian aircraft to comply the stated purpose being for safety of navigation which I think is somewhat ridiculous because China is stupid enough to shoot down a civilian aircraft that's flying a couple hundred miles off their coast it's just not going to happen Japan and the Korea on the other hand told their aircraft their civilian aircraft not to comply they don't view this as a valid air defense identification zone the requirements are invalid therefore they're telling their aircraft do not comply but other countries have joined the US side indicating that their aircraft will comply with the ADIZ requirements the second issue that we'll look at is on the 14th of January of this year China issued new fisheries regulations that basically says anybody that wants to fish in the South China Sea has to have the permission of the Chinese government to do so if you don't have the permission of the Chinese government we will seize your catch and you will be fined $82,000 for non-compliance with the sufficient of China to fish in the South China Sea again our response provocative no bases under international law Philippines they're obviously upset they rely heavily on their fishermen rely heavily on the South China Sea for their livelihood escalate tensions threat to peace and security contrary to the 2002 declaration of conduct which is something that China has signed is a non-binding agreement but still requires the parties, the ASEAN and China not to do things to increase tensions in the South China Sea as they're trying to resolve the underlying territorial disputes in the area Vietnam also illegal requirement on a part of China and here's China's response this has been in existence for a long time and this is in practice with, or in line with international practice in order to preserve the fish stocks in the South China Sea so just to sum up when we look at China's claims remember I enlisted all those excessive claims on that one page China has excessive claims on all of those areas whether it be illegal straight baselines historic bay claims EEZ you name it they have an excessive claim for every one of those we have protested all of those either diplomatically or through a freedom of navigation assertion with ships or aircraft South China Sea islands our position is we do not take a position on the underlying sovereignty dispute in the South China Sea whether it's a parasel of the Spratlys however we do have a national interest in freedom of navigation and access to the South China Sea because it is a strategic sea lines of communication and it's an area where we exercise routinely and we support what the Philippines is doing which is multilateral dispute settlement and as well as a binding ASEAN code of conduct as opposed to just a non-binding declaration of conduct we expect that all maritime claims will be settled in accordance with international law and that the one side won't use threat or coercion to try to intimidate the other parties to settle the dispute with regards to our defense obligations to the Philippines and the South China Sea we have told the Philippines that the mutual defense does not apply to the land territory that they claim in the South China Sea because we don't take a position on the underlying validity of those claims. However the treaty does provide that or does apply to any attack on Philippine forces in the Pacific so right now we've got about a half dozen or a dozen Philippine Marines that are living on a on a hull of a ship that they beached in to Thomas Shull and the Chinese have prevented their resupply by by civilian ships they did drop some supplies by air but what happens if the Chinese use force against those Marines on to Thomas Shull does our defense obligations under the treaty apply and I would argue that it does because it's an attack on Philippine forces in the Pacific same thing with the Senkakus we do not take a position on the underlying territorial dispute however I will say I've just started a new research project to determine China's claim versus Japan's claim versus the Senkaku Islands and one thing that I've found in my initial research is that our position used to be that Japanese did exercise sovereignty over the Senkaku Islands because if they didn't there was no reason for them to be placed under US administration after the war they would have just been given back to China like Taiwan and the Pescadoras were given back to China and Manchuria was given back to China so our initial position back during the negotiations of the 1951 peace treaty was that they had residual sovereignty in the Senkaku and they were just being placed under US administration however that changed in the 70's we got some pressure from Taiwan they were in the process of losing their seat at the UN there was also some we were engaged in some trade negotiations with Taiwan and as a result of that we changed our position to basically say we don't take a position now on the underlying sovereignty claims to the Senkaku Islands however we have said very specifically that our mutual defense obligations under the treaty do apply because the treaty is written to say that it applies to all territory that is administered by Japan not that it's Japanese territory as long as it's administered by Japan then the treaty applies so we've been very emphatic to state that our mutual defense obligations apply in the Senkakus we're China to take some type of measure use of force against Japanese in the Senkakus questions