COVER PHOTO U.S. NAVY PHOTO BY MASS COMMUNICATION SPECIALIST JANUARY 2017 2ND CLASS CONOR MINTO/RELEASED. 1616 Rhode Island Avenue NW Washington, DC 20036 202 887 0200 | www.csis.org Lanham • Boulder • New York • London 4501 Forbes Boulevard In the Wake Lanham, MD 20706 301 459 3366 | www.rowman.com of Arbitration Papers from the Sixth Annual CSIS South China Sea Conference EDITORS Murray Hiebert Gregory B. Poling Conor Cronin ISBN 978-1-4422-7984-1 A Report of the CSIS SOUTHEAST ASIA PROGRAM AND THE Ë|xHSLEOCy279841z v*:+:!:+:! ASIA MARITIME TRANSPARENCY INITIATIVE Blank JANUARY 2017 In the Wake of Arbitration Papers from the Sixth Annual CSIS South China Sea Conference EDITORS Murray Hiebert Gregory B. Poling Conor Cronin A REPORT OF THE CSIS SOUTHEAST ASIA PROGRAM AND THE ASIA MARITIME TRANSPARENCY INITIATIVE Lanham • Boulder • New York • London 594-67931_ch00_2Pa.indd 1 1/20/17 12:19 PM About CSIS For over 50 years, the Center for Strategic and International Studies (CSIS) has worked to develop solutions to the world’s greatest policy challenges. T oday, CSIS scholars are providing strategic insights and bipartisan policy solutions to help decisionmakers chart a course toward a better world. CSIS is a nonprofit organ ization headquartered in Washington, D.C. The Center’s 220 full- time staff and large network of affiliated scholars conduct research and analy sis and develop policy initiatives that look into the future and anticipate change. Founded at the height of the Cold War by David M. Abshire and Admiral Arleigh Burke, CSIS was dedicated to finding ways to sustain American prominence and prosperity as a force for good in the world. Since 1962, CSIS has become one of the world’s preeminent international institutions focused on defense and security; regional stability; and transnational challenges ranging from energy and climate to global health and economic integration. Thomas J. Pritzker was named chairman of the CSIS Board of Trustees in November 2015. Former U.S. deputy secretary of defense John J. Hamre has served as the Center’s president and chief executive officer since 2000. CSIS does not take specific policy positions; accordingly, all views expressed herein should be understood to be solely those of the author(s). © 2017 by the Center for Strategic and International Studies. All rights reserved. Acknowl edgments This report is made pos si ble by general support to CSIS. No direct sponsorship has contributed to its publication. ISBN: 978-1-4422-7984-1 (pb); 978-1-4422-7985-8 (eBook) Center for Strategic & International Studies Rowman & Littlefield 1616 Rhode Island Ave nue, NW 4501 Forbes Boulevard Washington, DC 20036 Lanham, MD 20706 202-887-0200 | www . csis . org 301 - 459 - 3366 | www . rowman . com 594-67931_ch00_2Pa.indd 2 1/20/17 12:19 PM Contents v Preface PART 1. THE SOUTH CHINA SEA IN 2016 3 CHAPTER 1 | U.S. South China Sea Policy 2015–2016: The Growing Role of the Defense Department Michael McDevitt 18 CHAPTER 2 | Understanding Malaysia’s Approach to the South China Sea Dispute Elina Noor PART 2. LEGAL ISSUES 33 CHAPTER 3 | Philippines v. China: Impact of the Arbitral Tribunal Award on the Merits Jay L. Batongbacal 47 CHAPTER 4 | The Effects of the South China Sea Dispute and the Arbitral Ruling on UNCLOS and International Law Erik Franckx 58 CHAPTER 5 | The Law Concerning Military Activities on the Continental Shelf in the Aftermath of the South China Sea Arbitration James Kraska PART 3. MILITARY MODERNIZATION AND CAPACITY BUILDING 71 CHAPTER 6 | China’s Military Modernization and the South China Sea Timothy R. Heath 83 CHAPTER 7 | Indonesia’s Naval and Coast Guard Upgrades and Jokowi’s Global Maritime Fulcrum Natalie Sambhi 95 CHAPTER 8 | Military Modernization and Capacity Building in the Philippines and Vietnam Carlyle A. Thayer III 594-67931_ch00_2Pa.indd 3 1/20/17 12:19 PM PART 4. THE ENVIRONMENTAL QUESTION 113 CHAPTER 9 | Destroyed Reefs, Vanishing Giant Clams: Marine Imperialism E. D. Gomez 124 CHAPTER 10 | Offshore Coral Reefs and High- Tide Features of the South China Sea: Origins, Resources, Recent Damage, and Potential Peace Parks John W. Mc Manus 148 CHAPTER 11 | Marine Biodiversity at Spratly Islands and Proposal for Establishing Marine Protected Areas Kwang- Tsao Shao 159 About the Editors and Contributors IV Contents 594-67931_ch00_2Pa.indd 4 1/20/17 12:19 PM Preface The Center for Strategic and International Studies (CSIS) hosted its sixth annual South China Sea conference on July 12, 2016. The day featured keynote speeches from Senator Dan Sullivan (R- AK), Committee on Armed Ser vices, and Daniel Kritenbrink, se nior director for Asian Affairs on the National Security Council, as well as four panel discussions with highly respected experts from 10 countries. The event fortuitously fell on the same day that the arbitral tribunal at the Permanent Court of Arbitration in The Hague issued its ruling on the Philippines’ case against China’s claims in the South China Sea. The conference provided the panelists and the audience with a first opportunity to grapple with the results of the tribunal ruling and begin to mea sure its impact. This report contains papers by 11 of the panelists, providing a wide array of perspectives on the po liti cal, l egal, military, and environmental outlook for the South China Sea in 2016. The papers herein are based on the subject m atter to which their authors spoke: • Elina Noor and Admiral Mike McDevitt discuss the state of the South China Sea in 2016. • Erik Franckx, Jay Batongbacal, and James Kraska discuss l egal issues of the ruling and next steps. • Carlyle Thayer, Timothy Heath, and Natalie Sambhi discuss military modernization and capacity building in the region. • John Mc Manus, E. D. Gomez, and Kwang- Tsao Shao discuss the impact of the disputes on the environment. The papers that follow represent the views of the authors and do not reflect those of CSIS, the Southeast Asia Program, or the Asia Maritime Transparency Initiative. V 594-67931_ch00_2Pa.indd 5 1/20/17 12:19 PM 594-67931_ch00_2Pa.indd 6 1/20/17 12:19 PM PART ONE The South China Sea in 2016 594-67931_ch01_2Pa.indd 1 1/20/17 12:18 PM 594-67931_ch01_2Pa.indd 2 1/20/17 12:18 PM 01 U.S. South China Sea Policy 2015–2016: The Growing Role of the Defense Department Michael McDevitt INTRODUCTION There should be no m istake: the United States wi ll fly, sail and operate wherever international law allows. ​Amer i ca, alongside its allies and partners . ​­will not be deterred from exercis- ing t hese rights. ​­After all turning an underwater rock into an airfield simply does not afford the rights of sovereignty or permit restrictions on international air or maritime transit. — Secretary of Defense Ashton Car ter This statement made over a year ago at the high- profile Asia- oriented security Shangri- La Dia- logue in Singapore on May 30, 2015 has become the single most repeated statement of U.S. policy regarding the South China Sea.1 Since the U.S. secretary of defense, Ashton Car ter, added this new formulation to Washington’s South China Sea public policy position, it has been used repeatedly by U.S. officials, including President Barack Obama. What was initially a reaction to China’s artificially created islands has become the term of art when U.S. officials speak more broadly about maritime- oriented security issues in East Asia. One reason it has become so popu- lar is b ecause it succinctly conveys Washington’s harder- nosed approach to spelling out tradi- tional U.S. maritime interests while implicitly saying no country can keep us out of East Asia. When applied to the South China Sea, it also conveys a diff er ent U.S. public policy perspective than the more traditional statements, which focused on peaceful resolution and exhortations 1. ​Secretary of Defense Ashton Car ter, “A Regional Security Architecture Where Every one Rises” (pre sen ta tion, IISS, Shangri- La Dialogue, Singapore, May 30, 2015), http:// www . defense . gov / Speeches / Speech . aspx ? SpeechID​= ​1945 . 3 594-67931_ch01_2Pa.indd 3 1/20/17 12:18 PM imploring China to follow a rules- based approach to solve difficulties in the South China Sea. Now these long- standing U.S. public policy statements have not dis appeared; instead they have been augmented by the more muscular “sail and fly where international law allows” mantra. Why? It can be argued that Washington became tired of looking toothless when its many years of almost single- minded focus on diplomatic discourse, public and private, that urged Beijing to moderate its efforts to claim sovereignty over all the land features in the South China Sea (along with jurisdiction over huge swaths of the surrounding waters) were largely ignored. Island building in the Spratly Islands appears to be the straw that broke the camel’s back and pushed Washington toward a more military- buttressed policy approach to China’s South China Sea activities. Sailing and flying wherever international law allows is essentially saying the United States can operate its air and naval forces anywhere it chooses to in international airspace and on the high seas, and t here is nothing that China, or anyone e lse for that matter, can do about it— unless they want to start a war. A LEADING ROLE FOR THE DEPARTMENT OF DEFENSE Coming as it did from the secretary of defense rather than the secretary of state, the Car ter state- ment was the most public example of the growing involvement of the U.S. security establishment in South China Sea policy, a trend that has been building over the past three years.