Nine-Dash Mine

Why Beijing should let international law reign in the South China Sea.

Tensions continue to roil Asia's waters, but they are now also finding their way into international arbitration. The perilous churn in the South China Sea, dubbed "Asia's Cauldron" by one leading strategic analyst, stems from the overlapping claims of six states -- Brunei, China, Malaysia, Philippines, Taiwan, and Vietnam -- over a body of water vital to global trade, which contains energy resources and abundant fish stock in its vast depths. Negotiations over a maritime Code of Conduct to stabilize interactions in the South China Sea have been outpaced by the jockeying of ships between China and the Philippines. In the wake of a dangerous and asymmetric two-month standoff over the disputed Scarborough Shoal beginning in April 2012, Manila has rightly sought recourse in international law to manage the dispute through arbitration. For the sake of regional stability and its own interests, Beijing should follow suit.

The legal wrangling started in January 2013, when the Philippines notified China of its intent to bring a challenge under the UN Convention on the Law of the Sea (UNCLOS), an international treaty governing the rights and responsibilities of states in their use of the oceans and seas. (Both China and the Philippines are parties to UNCLOS, while the United States has yet to ratify it.) The Philippines argued then that China's so-called "nine-dash line," which encompasses virtually the entire South China Sea, was unlawful and contrary to UNCLOS.

China's response was to reject the Philippines' notification letter altogether, noting Beijing had opted out of UNCLOS procedures for settling disputes that involve sovereignty claims or maritime boundaries. Beijing must now take a clear and hard look at the merits of abstaining any further. While it may have a legal basis to abstain, acting on it could be strategically shortsighted. Given Beijing's assertions that its nine-dash line is grounded in international law, a greater show of confidence would be to defend its position before a neutral tribunal.

Beijing will have the chance, if it chooses. Despite China's protestations, a five-member Arbitral Tribunal was assembled to hear the Philippines' claims; on March 30, the Philippines announced that it had filed its brief, here called a Memorial, elaborating its challenge. (Intriguingly, Beijing may have asked Manila to delay filing its Memorial in exchange for a mutual withdrawal of ships from the contested Scarborough Shoal.)

China's willingness to abide by international norms would not only telegraph confidence, but could help offset the growing anxiety generated by its military modernization and maneuverings among neighbors who fear the Beijing doctrine may be veering toward realpolitik. For its part, the United States has expressed its support for the Philippines' submission. President Barack Obama's visit to the Philippines in late April will provide an opportunity to reaffirm the importance of such a rules-based approach to managing the dispute. Yet that largely depends on how Beijing responds.

To be sure, nationalist public sentiment stoked by Beijing may have painted China into a corner. Hours after the Philippine Foreign Secretary announced the Memorial's submission on March 30, the Chinese Foreign Ministry responded that it did not accept the Philippines' submission of the dispute for arbitration and called on the Philippines to return to bilateral talks. With its Foreign Minister stating that China will never accede to "unreasonable demands from smaller countries" in the South China Sea, its Defense Minister stating that China will make "no compromise, no concessions," and official media outlets wading in with criticism of the Philippines' "unilateral" actions in filing its Memorial, it will be that much harder to backtrack. Yet submitting to an international tribunal is by no means beyond the pale for Beijing. China regularly engages in the WTO dispute settlement system and has a relatively strong compliance record in the face of adverse rulings, largely due to the reputational costs of non-compliance.

Arbitrating the South China Sea dispute is assuredly more fraught than commercial disputes, grating as it does on China's rawest nerve: territorial sovereignty. That is why it must be complemented by all claimant states exploring the equivalent of an amicable settlement: shelving questions of who owns what and focusing on joint development of resources for which compelling precedent exists. For now, however, Manila's lawyers have staked out important legal ground in the South China Sea. Beijing should consider meeting them there. 

AFP/Getty Images


Russia Is an Arsonist, Pretending to Be a Fire Safety Inspector

The Moscow playbook: predict chaos in Ukraine, then unleash it.

For Yuriy Sergeyev, the Ukrainian ambassador to the United Nations, the last 72 hours of Russia's stage-managed separatist ferment in Ukraine's eastern and southern regions don't remind him of Moscow's invasion and annexation of Crimea in March. That's because the diplomat's memory goes back much further than that. "The Soviet Union organized separatist movements, and these movements organized pseudo-referenda and immediately demanded military support," Sergeyev said. "It happened in all three Baltic states in the 1930s. The Soviets also tried to do the same in Finland. They failed. It's why they launched a war and tried to occupy all of Finland."

War and occupation are very much on Sergeyev's mind today. In a wide-ranging 90-minute interview with Foreign Policy conducted at the Ukrainian mission in midtown Manhattan, he addressed what he sees as Russian President Vladimir Putin's latest conspicuous efforts to destabilize a nascent, wobbly government in Kiev and to determine Ukraine's national destiny -- with or without the consent of the Ukrainian people. "Russia is pressuring us, involving external partners, to demand from the Ukrainian government constitutional reforms and to have a federalized state," Sergeyev said. "Well, Russia has a federalized state, but the problems in Russia itself demonstrate that this solves nothing. You like such a federal status as Chechnya has? You want the federal status of any of the Caucasian republics?"

But it's unlikely that Russia is interested in a good-faith discussion about Ukraine's future. As Sergeyev readily concedes, Putin is once again marshaling the same semitransparent tradecraft of provokatsiya (which is exactly what it sounds like) that the KGB and Communist Party used to justify their domination of half of Europe in the 20th century. All the markers of forthcoming "fraternal" assistance to the supposedly embattled ethnic Russian population of Ukraine are on display now. 

On Sunday, April 6, approximately 2,000 pro-Russian separatists in Donetsk, Kharkiv, and Luhansk turned out on the streets, occupying and burning regional government buildings. The administrative building in Kharkiv was set alight by burning tires, and Ukrainian police later arrested 70 people. In Luhansk, separatists consisting of former members of the disbanded Berkut riot police raided the armory of the local Ukrainian State Security (SBU) headquarters, allegedly planted explosives in the building, and detained 56 hostages -- who were only released Wednesday. In Donetsk, the region where former President Viktor Yanukovych hails from, 120 or so members of the self-styled "Republican People's Soviet of Donetsk" stormed the regional assembly and declared the establishment of the "People's Republic of Donetsk" in a kind of absurdist and miniature pantomime of Eastern Bloc politicking. The republic's demands? A referendum on May 11 -- two weeks before Ukraine's presidential election (which they also want canceled) are due to take place -- to decide whether the Donetsk region should join the Russian Federation. They also demanded that Putin dispatch a "peacekeeping" force into the region posthaste -- which he may well end up doing before long, despite his demurrals.

Whatever does happen in Ukraine, nobody is pretending that any of what's going on is a grassroots or spontaneous expression of civic discontent. Acting Ukrainian President Oleksandr Turchynov blamed the mayhem on "separatist groups coordinated by Russian special services." White House press secretary Jay Carney said, "There is strong evidence suggesting some of these demonstrators were paid and were not local residents." And Secretary of State John Kerry pretty much confirmed Russia's infiltration of Ukraine as a prelude to a possible invasion of the mainland: "It is clear that Russian special forces and agents have been the catalyst behind the chaos of the last 24 hours," Kerry said on April 8. Ukrainian Interior Minister Arsen Avakov has given pro-Russian crowds occupying government buildings 48 hours to disperse or face "a forceful answer" from state authorities. That deadline expired April 10.

To Sergeyev, it's obvious what's being done to his country. "The fact that the administration offices [in Luhansk] were attacked and surrounded by people with Kalashnikovs, and in uniforms, unidentified, without insignias, makes this resemble the takeover of Crimean parliament by a group of some dozens of people who forced the parliamentarians to vote for a referendum. They're trying to replicate this scenario again, but the local people -- and this is very important -- the local and city government councils in Donetsk, Kharkiv, and Luhansk do not support the separatists." 

New poll data does tend to agree with the ambassador's assessment of popular will. The Institute for Social Research and Policy Analysis, acting as a consortium of a host of Donetsk-based NGOs, found that 65.7 percent of residents in that region want to remain a part of Ukraine, while only 18.2 percent want to join Russia. But even among the separatists, there's by no means agreement as to what should follow, an autonomous republic or wholesale incorporation into the Russian Federation.

Sergeyev admits that there is indeed genuine separatist sentiment in Ukraine's eastern regions, owing to poverty and so-called "economic migration," whereby cities such as Luhansk send their tax money to Kiev. "The region is very depressed, despite the fact that it has a lot of industry and coal mines. That's why it's easy to play on these negative sentiments, to encourage people and remind them: ‘Look how lucky you were in the Soviet Union.' Because it's true. They were seriously subsidized [then]: The salary of the coal miners was equal to or higher than that of engineers or professors in universities."

In many ways, the Ukrainian crisis represents the unfinished business of the post-Soviet reordering of Europe. Except Putin doesn't need an all-encompassing ideology to carve up the continent; he only needs a carefully directed shadow play that reminds a Red Army veteran or the pensioner grandmother how good life used to be during the bad old days when Russia ran everything.

"For the last 23 years, nothing happened to make these people's lives better. There were no reforms, either under the democratic Yushchenko regime or under Yanukovych," said Sergeyev. That's why the country is now so vulnerable to Russian machinations. "This is the old Soviet trick: what Russia did in Crimea, its accumulation of forces around the [Ukraine-Russia] border. Even if Russia has no plans to continue an invasion, they have started to use this threatening buildup as a tool in their negotiations with the West. ‘Look,' they say, ‘you are to agree with us that Ukraine should not be aligned, not only with NATO but also with the European Union, because otherwise separatism will continue. It will divide and destroy Ukraine.' This is the Russian argument."

In his extraordinary poem "Child of Europe," Polish poet laureate Czeslaw Milosz defined this "argument" as follows: "Learn to predict a fire with unerring precision/ Then burn the house down to fulfill the prediction." Now consider the evidence of Russia's latest incarnation as both fire safety inspector and arsonist.

The Russian Foreign Ministry released a statement on Monday that read very much like a threat commingled with an ominous self-fulfilling prophecy: "If an irresponsible attitude to the fate of the country, to the fate of its own people, on the part of political forces that call themselves the Ukrainian government continues, then Ukraine will inevitably encounter ever new difficulties and crises."

Moscow is doing its best to ensure there is no lack of new difficulties and crises. The Daily Beast reported that Yanukovych's cronies, such as former Presidential Chief of Staff Andrei Klyuyev, have been meeting with local ethnic Russians and have "offered laid-off factory workers money, if they joined pro-Russian protests and manned checkpoints set up to hinder Ukrainian military movements and preparation for any Russian military incursion." It also reported a new U.S. intelligence estimate of Russia's military buildup at the border with Ukraine: Now there are thought to be 80,000 troops -- almost a 50 percent increase from the estimate given to the Wall Street Journal a little over a week ago, and in marked contrast to what German officials were claiming just days ago, namely that Russia was decreasing its troop presence in military bivouacs close to Ukraine's territory.

In fact, Russian military personnel may already be in Donetsk. Journalists posted photographs taken this week of separatists wearing insignia-less apparel, carrying AK-47s and wearing the striped T-shirts of the VDV -- Russian Naval and Airborne troops who helped seize Crimea. The Ukrainian SBU has also put forward claims that it has captured Russian spies.

One man, Roman Sergeyevich Bannykh, was apparently caught trying to infiltrate the country via the Krasnaya Talovka border crossing into Luhansk. Ukraine's state security says that Bannykh is an agent of the GRU -- Russian military intelligence -- and that he actually tried to enter Ukraine once before for the purposes of "sabotage" in Luhansk.

Meanwhile, newspaper Ukrainska Pravda has noted a second arrest of one Maria Koleda, another Russian citizen said to be working for Russian intelligence. According to the website, a media outlet for the Nikolaev region of Ukraine, she's also a member of Rosmol, a Komsomol-like Putinist youth movement. "Between the 5th and 6th of April, the foreigner held several meetings with leaders and activists from the pro-Russian movements in Kherson, and then visited some regional centers in the oblast to monitor the situation on the ground," the SBU claimed in a report quoted by the Ukrainska Pravda. Koleda was said to be reconnoitering the feasibility of entry of Russian forces from Crimea into southern Ukraine, and she was arrested with a traumatic pistol modified to fire live ammo -- which she apparently admitted to using to injure people in Mykolaiv -- and with "guidelines for preparing diversionary groups."

To make matters worse, Ukraine's police force and its own security services are widely believed to be riddled with Russian spies. Sergeyev says this is an ongoing problem and a holdover from the Yanukovych period. "We know that acting agents from the FSB [Russia's successor apparatus to the KGB] and other secret services of Russia were in the government of Yanukovych as advisors, particularly around the former Prime Minister [Mykola] Azarov." Russian intelligence was definitely working cheek by jowl with both the SBU and the Berkut on the streets of Maidan before Yanukovych's departure. The former head of the SBU, Igor Smeshko, claimed in late March that "hundreds" of Russian spooks were running around Ukraine: "Even after the new government addressed Russia about this group of FSB officers and demanded to know what they were doing to Maidan and to Ukraine, Moscow sent us a strange message in reply that they were only protecting the Russian Embassy!"

Elsewhere, Russia's demands on a government it wishes to destroy border on tragicomic. I asked Sergeyev about the continued reliance of Russia's military industrial complex on his country's manufacturing; critical parts of everything from fighter jets to intercontinental ballistic missiles are built in Ukraine. Does Sergeyev believe this extensive defense cooperation will continue in light of Kiev's pro-Western tilt? "My personal opinion is that, yes, we have to diversify our military technologies because we cannot be so dependent on an aggressor who occupies our territory and is threatening us. Recently, Russia [said] openly that it would not like us to share the technology behind the production of ballistic missiles with any other parties. It sounds very strange to me. They violated our agreement under the Budapest Memorandum [a 1994 protocol which guaranteed Ukraine's sovereignty and territorial integrity in exchange for its relinquishment of nuclear weapons], and now they're asking us not to violate our military agreements with them."

In other words, Russia is ordering Ukraine not to hawk the secrets about the very weapons with which Russia is now threatening to invade Ukraine.

Sergeyev thinks the only real way to stop the Kremlin is to implement bigger and harder-hitting sanctions -- not against Russian officials or their oligarch cronies, as the United States and European Union have done, but against state institutions that really matter. Which ones? Rosneft and Gazprom, the oil and gas energy behemoths. "This is what Russia is based on," he said. "It's selling gas and oil, investing in its military sphere. It's not investing money in its social sphere or in industry." 

As for the fate of Crimea, the diplomat was fairly resigned. "OK, so it happened. We are in the process of withdrawing our troops. It's a signal that we do not want to have war at all with Russia." He's also not so sure that suing Russia in the International Court of Justice over the annexation of the peninsula will deliver much more than a "moral or political victory." Rather, whether or not Ukraine ever regains Crimea may come down to a grass-is-greener question for those who now find themselves the willing or unwilling citizens of the Russian Federation.

Other Moscow-ruled autonomous republics, Sergeyev said, don't bode well for the peninsula's future. "Compare the situation in Abkhazia today with the situation in Adjara, in Georgia. Abkhazia used to be the best resort in the Soviet Union. And now this is the worst place. Nothing changed from the [2008 Russia-Georgia] war. They have no tourist attraction, no economic incentives. In Adjara, Donald Trump erected several big hotels there. If Russia failed to invest in Abkhazia a single ruble, they could hardly invest in Crimea."

Alexander KHUDOTEPLY/AFP/Getty Images