Saturday, July 25, 2015

• The Wheels of Lawfare: Grinding Slow but Fine? By CDRSalamander

One of the best panels at a USNI/AFCEA West conference in recent years was the 2014 “What About China” panel that included some folks in my pantheon; VADM Foggo, James Holmes, and CAPT Fanell in the company of CAPT Adams and the duty JAG, CAPT Belt.


Part of the discussion involved using lawfare to gum up the Chinese works, and use this if not to shape developments, then at least to slow down Chinese actions in the western Pacific.

In the July 18th edition of The Economist, they outline a perfect example of lawfare on if not the tactical, then at least the operational level.

On July 13th a tribunal in The Hague concluded a first week of hearings related to its bitter dispute with China over maritime boundaries in the South China Sea. China insists that its claim, which covers most of the vast and strategically vital sea, is not a matter for foreign judges, and was not represented.

Such has been China’s position ever since the Philippines lodged a case in 2013 at the Permanent Court of Arbitration in The Hague, arguing that the U-shaped, nine-dashed line used by China to define its claim is illegal. But in its anxiety to dismiss the validity of the case, China may have blundered. The tribunal has ruled that documents issued by China to explain its objections “constitute, in effect, a plea”. The tribunal has sent all the relevant papers to the Chinese government and given it time to respond. China has become a participant in the case, despite its absence.
Well played my Philippine friends; well played.

The United Nations Convention on the Law of the Sea (UNCLOS) sets out how different maritime features generate claims to territorial waters and “exclusive economic zones” (EEZ). A reef submerged at high tide generates nothing, while a rock above water has a 12- nautical-mile (22km) territorial claim around it. A habitable island generates an additional EEZ of up to 200 nautical miles from its shore.

The Philippines argues that none of the features China occupies in the Spratly Islands is an island. At best, it says, each is entitled only to a 12-nautical-mile claim and none generates an EEZ. For almost the past two years China has been frantically reclaiming land around these features and expanding their size, adding buildings and, in some cases, new airstrips and harbours. But UNCLOS is clear: man-made structures do not count.

The tribunal must first decide whether it has the jurisdiction to hear the case at all. If it concludes that it does, which may not be known until late this year, a verdict may take several more months. If the Philippines wins, China will almost certainly refuse to accept the decision. Even the hope that a moral defeat would have a chastening effect on China’s behaviour seems a little tenuous, given the gusto with which it is filling in the sea.


This is worth a try – and is just in line with CAPT Belt’s COA. Very well played.

As for China’s sand castles, I think we are one Bull Halsey memorial super-typhoon away from Mother Nature taking care of that problem – but until then, launch the ready lawyers.


The liberty in The Hague is top notch.
As a final note, if you didn’t catch the panel the first time, here it is.

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