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    Greater China
     Aug 25, '14

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US flags China as a maritime outlaw
By Peter Lee

A think tank called CNA recently issued a 140-page report titled "China versus Vietnam: An Analysis of the Competing Claims in the South China Sea" authored by Raul (Pete) Pedrozo. [1] It provides a further legal rationale for growing US efforts to inject itself into South China Sea exclusive economic zone (EEZ) disputes on behalf of Vietnam and against the People's Republic of China.

A few reasons why attention should be paid.

First, the institution.

CNA is described as a non-profit corporation. A fuller description would be a "US Navy analytic division dating to 1942 that works

exclusively for and is funded exclusively by the US government but was corporatized in the 1990s so it could dip its beak into non-DoD government work through a division called the Institute for Public Research".

You could say that "CNA" stands for "Center for Naval Analyses", the name of its antecedent organization. But you'd be wrong, according to CNA, in a "note to reporters and editors": CNA is not an acronym and is correctly referenced as "CNA Corporation, a non-profit research and analysis organization located in Arlington, VA.

So, consider CNA a meaningless collection of letters for a center that does analyses for the Navy and Marine Corps, whose main job is studying systems, tactical, and strategic issues for the USN and USMC. It has one unique regional focus, a "China Studies" division of 20 or so in-house analysts buttressed by "an extensive network of subject-matter experts from universities, government, and the private sector from around the world".

Second, the author, a "subject-matter expert", Captain Pedrozo:
Captain Raul (Pete) Pedrozo, US. Navy (Ret.). Former Professor of International Law, US. Naval War College; Staff Judge Advocate, US Pacific Command; and Special Assistant to the Under Secretary of Defense for Policy.
Fans of PRC maritime disputes are or should be quite familiar with the work of Captain Pedrozo.

When the PRC harassed the US naval survey vessel USNS Impeccable in 2009 and tried to assert that military surveillance inside the PRC EEZ was a violation of the UN Convention of the Law of the Sea, Captain Pedrozo produced highly important opinions, Close Encounters at Sea: the USNS Impeccable Incident and Preserving Navigational Rights and Freedoms: The Right to Conduct Military Activities in China's Exclusive Economic Zone. [2]

In these documents, Captain Pedrozo made a point of declaring that the USNS Impeccable was not engaged in any sort of anodyne mapping exercises, but was actually conducted military surveillance against PLAN subs, thereby exempting the Impeccable from any UNCLOS obligations to butt out of the PRC EEZ. This argument, judging by the recent dispatch of a PLAN surveillance into the US EEZ during RIMPAC, has apparently won the PRC's acceptance.

Captain Pedrozo's arguments that the PRC was improperly threatening legal military (not commercial) activities inside the PRC EEZ provided the basis for Secretary of State Hillary Clinton's declaration at ASEAN in 2010 that the US had a national interest in protecting freedom of navigation in the South China Sea, and got the whole "pivot to Asia" ball rolling.

Captain Pedrozo, it is safe to say, is a big gun in the anti-PRC lawfare arsenal. In passing, it should be noted he is no friend of the PRC or its maritime pretensions.

Rather amusingly, in 2012 he recommended against against the US government concluding a agreement with the PRC to guard against collisions of naval vessels, largely on the novel grounds that it would encourage what might be termed "excessive Chinese uppitiness":
[A]lthough an INCSEA [Incidents at Sea] agreement could, in theory, reduce the possibility of miscalculation during un-alerted sea encounters between US. and Chinese naval and air forces, there are many reasons that the United States should not pursue such an arrangement. First, unlike the Soviet Navy, the PLA Navy is not a "blue water" navy with global reach and responsibilities. Elevating the PLA Navy to such a stature would not be in the best interests of the United States… [A]n INCSEA agreement with the PRC would significantly enhance the stature of the PLA Navy by suggesting it was a naval power on par with US. and former Soviet Navies . It would also force the US. Navy to treat the PLA Navy as an equal, something which it clearly is not. [3]
Rather less amusingly and, I suppose, considerably more significantly, lack of an INCSEA agreement also will increase US Navy latitude in peremptorily brushing aside PLAN ships during the maritime confrontations that, if advocates of a more forward US military posture in PRC's maritime sphere prevail, will becoming more and more common in the upcoming years.

Third, the subject matter.

The terminally FUBAR sovereignty issues of the Spratly Islands do receive a thorough parsing, but the main event is the Paracels, the cluster of islands south of Hainan, near Vietnam, completely occupied by the PRC, disputed by Vietnam, and the locale in which the PRC parked the HYSY 981 rig, partly as a signal that the US military presence in the South China Sea was, by Chinese estimation, neither justifiable nor necessary.

Fourth, an interesting question begged by the report, and actually raised in the foreword, by the Project Director, Michael McDevitt:
Importantly, this analysis of Vietnamese claims versus Chinese claims to the Paracel and Spratly archipelagoes was not undertaken as a prelude to a recommendation that the United States depart from its long held position of not taking a position on competing sovereignty claims in the South China Sea. That is not the intent, nor is it one of the recommendations of the project.
Yeah, so if the US government doesn't take a position on sovereignty claims, why did the top Navy think tank retain the top Navy sea lawyer (now retired) to crank out 140 pages of densely argued and heavily cited verbiage on the topic?

Fifth, the conclusion, a tenacious if not tendentious rebuttal of PRC claims and an unambiguous assertion by Captain Pedrozo of the superiority of Vietnamese claims to both the Paracels and the Spratlys.

Claims, I might add, that are not exactly a slam dunk, as McDevitt acknowledges in his foreword:
The Pedrozo analysis differs in part from two other third party analyses, one by Dr. Marwyn S. Samuels, an American scholar, who wrote the first detailed study on the origins of the disputes among China, Vietnam and in the Philippines. A meticulous scholar who used Vietnam and Chinese sources, his Contest for the South China, holds up very well some 40 years later. Samuels concluded that China had the better claim to the Paracels, but that China's claim to the Spratly's was "highly questionable." His judgments were partially echoed by Australian scholar Dr. Greg Austin, who has legal training. In his well?regarded China's Ocean Frontier, published in 1998. Austin found that China had "superior rights in the Paracels," but the legal complexity of the disputed Spratly claims meant that, "PRC claims to the entire Spratly group are at least equal to any other.

Pedrozo's findings are supported by Professor Monique Chemillier Gendreau in her work, Sovereignty over the Paracel and Spratly Islands. Professor Chemillier Gendreau is a legal scholar and Professor Emeritus at Paris University Diderot.

In reviewing all of these works, it is clear to me that in the unlikely event these claims are ever taken to the International Court of Justice to resolve the disputes over sovereignty the process will be long and difficult. None of the claimants has what might be called an "open and shut" legal case - although the consensus among scholars seems to be that China's claims in the Spratlys are weaker than those to the Paracels.

The reality on the ground is that China has occupied the entire Paracel group for 40 years, and short of military action by Vietnam to recapture the archipelago, will never leave.
So, despite US government policy of not taking sides in the South China Sea sovereignty issue, a US government think tank tasks top Navy lawyer to investigate the issue, and he comes up with his own revisionist take, assigning sovereignty to the Vietnamese for islands the PRC "will never leave".


One proximate motive, it can be confidently advanced, is that somebody within the US military establishment wanted to give aid and comfort to Vietnam in its struggle with the PRC (and in support of the burgeoning reform faction inside the Vietnamese Communist Party elite favoring rapprochement with the United States and a concerted anti-China policy).

Continued 1 2

'Paramilitarizing’ the South China Sea (Aug 18, '14)



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