This article by Oriana Skylar Mastro was originally published by the Lowy Institute.

Chinese exercises in the South China Sea last month, and the strong US response, show these disputed waters will not soon be calm. While the focus has largely been on military maneuvers, competition in legal positions has also been heating up. Last year, both the United States and Australia risked China’s wrath by officially stating that China’s claims in the South China Sea are unlawful. Other claimants were pleased by this change of policy, but none voiced it prominently.

The issue, however, is not that China flagrantly violates international law – it is that it does so while simultaneously creating a veneer of legal legitimacy for its position.

The conventional wisdom is that China claims sovereignty over “virtually all South China Sea islands and their adjacent waters.” Its claims are “sweeping” and more expansive than those of any other rival claimant. In 2009, Dai Bingguo, then a top Chinese official, first referred to the South China Sea as a “core interest”, a term often used for Taiwan, Xinjiang, and Tibet. While China has not been specific about the extent of its claims, it uses a “nine-dash line” which “swoops down past Vietnam and the Philippines, and towards Indonesia, encompassing virtually all of the South China Sea”, to delineate its claims.

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On the surface, it appears that Chinese leaders are relying on a historical argument to buttress their claims – China traces its interaction with the South China Sea back to the Western Han Dynasty. Thus, Beijing’s narrative about its claims begins as early as the 2nd century BCE, when Chinese people sailed in the South China Sea and discovered some of the region’s land features.

Scholars have meticulously cataloged the dubious nature of this history. And besides, the UN Convention for the Law of the Sea (UNCLOS) does not grant signatories the right make claims based on historical legacy, and the concept of “historic claims” lacks a clear basis in international law.

But this is not actually how China lays claim to 90% of the South China Sea. China’s abuse and misapplication of international law is a bit more complex. There are four levels that build on one another.

First, China claims it has the same rights as archipelagic states, those countries mainly made up of islands. One of the benefits of archipelagic status is that the waters between islands are considered internal waters, like rivers inside a country. Other countries have no right to transit these waters without permission. This archipelagic status is conferred through the UN, and only 22 nations claim it.

Spoiler alert: China is not one of them.

China is undeniably a continental country, but nevertheless, it drew straight baselines around the Paracel Islands and claimed the waters between the islands to be internal waters. Beijing has not done this explicitly for the Spratly islands area, but its reaction to the activities of other countries suggests that is its interpretation. My discussions with Chinese strategists reveal that China will likely explicitly draw baselines to claim internal waters between the Spratly Islands once it has the military capabilities in place to enforce it. (This is not an easy task, as the Spratlys’ sea zone is 12 times that of the Paracels, covering 160,000 to 180,000 square kilometers of water.)

China then claims a 12 nautical mile (nm) territorial sea from the Paracel baseline, not from the individual islands, and in the Spratlys from many features that under international law are not awarded this right, such as artificial islands. Moreover, China’s interpretation of the territorial sea is that the state has the exclusive right to make, apply and execute its own laws in that space without foreign interference. But according to UNCLOS, all ships, civilian or military, enjoy the right of innocent passage through other states’ territorial seas. Moreover, the contiguous zone is considered part of international waters, and states do not have the right to limit navigation or exercise any control for security purposes.

Lastly, China claims 200 nm from the end of the territorial sea as its exclusive economic zone (EEZ), where it claims to have the right to regulate military activity. The US insists that freedom of navigation of military vessels is a universally established and accepted practice enshrined in international law – in other words, states do not have the right to limit navigation or exercise any control for security purposes in EEZs. Australia shares this view, but not all countries accept this interpretation. Argentina, Brazil, India, Indonesia, Iran, Malaysia, the Maldives, Oman, and Vietnam agree with China that warships have no automatic right of innocent passage in their territorial seas. Twenty other developing countries (including Brazil, India, Malaysia, and Vietnam) insist that military activities such as close-in surveillance and reconnaissance by a country in another country’s EEZ infringe on coastal states’ security interests and therefore are not protected under freedom of navigation.

In other words, while international law may support the position of the US and Australia on legal behavior within the EEZs, countries need to work harder to solidify this norm more broadly.

Through these three positions alone on internal waters, territorial seas and EEZs, China lays claim to approximately 80% of the South China Sea. Then China uses the nine-dash line to cover the remaining territory and provide redundancy by claiming “historic waters” – i.e., that China has historically controlled this maritime environment – again, a view that has no basis in international law.

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The US has taken steps to challenge the false legal basis of China’s claims. This is the main purpose behind freedom-of-navigation operations, or FONOPS – to demonstrate through action that the US does not accept China’s position that areas are not international waters but internal or territorial waters. In other instances, the US is signaling that it does not accept an area to be in China’s EEZ, although China would not have the right to regulate military activity there anyway.

But undermining China’s false legal claims will take more than military operations and harsh statements. In 2016, the Hague Tribunal ruled that China’s claims of historic rights in the South China Sea lacked legal foundation, China’s actions in the region infringed on the rights of the Philippines, and features in the Spratlys are not entitled to EEZs or territorial zones. Yet Washington’s ongoing refusal itself to ratify UNCLOS undermines the general effectiveness of pushing back against Beijing with legal tools of statecraft. Additionally, Washington squandered an opportunity to support the Philippines in enforcing the international legal tribunal’s 2016 ruling in its favor, further reducing the attractiveness for other claimants to challenge Beijing on legal grounds.

The US should not make the same mistake twice. It should support other claimants that may want to pursue legal action against China (Vietnam is currently considering this course of action). Then, when the tribunal rules once more against China, the US should lead the charge to enforce the ruling.

China is using all the tools of statecraft at its disposal to gain control over this vital strategic waterway. The US and its allies should do the same.

On February 10, 2021, the China Program at Shorenstein APARC hosted Professor Oriana Skylar Mastro, Center Fellow at the Freeman Spogli Institute for International Studies​ for the virtual program "Military Competition with China: Harder to Win Than During the Cold War?" Professor Jean Oi, William Haas Professor of Chinese Politics and director of the APARC China Program, moderated the event.

As US-China competition intensifies, experts debate the degree to which the current strategic environment resembles that of the Cold War. Those that argue against the analogy often highlight how China is deeply integrated into the US-led world order. They also point out that, while tense, US-China relations have not turned overtly adversarial. But there is another, less optimistic reason the comparison is unhelpful: deterring and defeating Chinese aggression is harder now than it was against the Soviet Union. In her talk, Dr. Mastro analyzed how technology, geography, relative resources and the alliance system complicate U.S. efforts to enhance the credibility of its deterrence posture and, in a crisis, form any sort of coalition. Mastro and Oi's thought-provoking discussion ranged from the topic of why even US allies are hesitant to take a strong stance against China to whether or not Taiwan could be a catalyst for military conflict. Watch now: 

This op-ed by Donald K. Emmerson first appeared in The Jakarta Post.

Above all, Trump wanted to be a winner. History granted his wish. He is the first president in the 245-year life of his country to have been impeached twice. By that standard, he won the title of America’s Worst President (AWP)—worse than any of the 44 presidents who preceded him.

AWP rhymes with 'gawp,' and that’s what he also wanted: to be stared at, talked about, catered to, the center of fawning attention, unforgettably present, dominating the news, astride the world in which the news is made. He wanted applause. His ravenous insecurity—narcissism—inflated his ego to continental size. In effect, in his authoritarian imagination, the “extremely stable genius” that he called himself deserved to be the indispensable “me” in “America,” without which the country’s name and the country itself would crumble.

The roars and chants of Trump’s crowds slaked his thirst for veneration. But they imprisoned him in his “base.” By satisfying his craving to be idolized, they gave him no reason to convince the unimpressed. How much more gratifying it must have been for him to bask in mass flattery at rallies than to engage in the difficult business of persuading the uncommitted. That would have taken assets he lacked: empathy, knowledge, intelligence, and a willingness not to lie.

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So how could Americans have elected such a demagogue? Trump was corrupt but charismatic. He broke the rules. He said whatever was on his mind. He appealed to the streak of individualism in American culture. He ran his campaign and his presidency as a mass entertainment featuring a lone patriot fighting a “deep state” controlled by globalist elites. Especially in rural areas between Silicon Valley and the Boston-to-Washington corridor, millions of white Americans felt threatened by the transfer of jobs from physical toward mental labor in a computerized society whose racial make-up was increasingly non-white. Globalization fed those anxieties. Trump stoked them. He promised to end them and “make America great again.”

Joe Biden defeated Trump in both the popular vote and the Electoral College—respectively by 4.4 and 13.7 percent. Biden’s margins were narrower than one might have wished, given the blatant flaws in Trump’s character, including the 30,573 false or misleading claims that he made during his presidency as tracked and noted by The Washington Post . The egregiousness of his behavior is, however, a double testament to America’s democratic system: to its failure to select a less despicable leader, yes, but also to its success in providing the lawful framework within which his desperate effort to stage what in Latin America would be called an autogolpe or “self-coup” could be and was overcome.

On 1 February 2021, watching television at his 126-room estate in Palm Beach, Florida, ex-president Trump would have learned of the coup in Myanmar and might have envied Senior General Min Aung Hlaing. Both men had been banned by Facebook for inciting violence in their respective countries—Trump in 2021, the general in 2018. Both had suffered defeats in elections held just five days apart in 2020—3 November in the US, 8 November in Myanmar. Both had rejected the voters’ verdict, claiming fraud. But whereas Trump’s frantic and deadly effort to subvert the US election and retain power failed, Min Aung Hlaing’s self-coup has succeeded, at least for now. The general quickly seized full power despite his party’s massive embarrassment at the polls in November, Aung San Suu Kyi’s party having won 83 percent of the available seats. In contrast, Trump could not reverse his exit from power despite a far slimmer margin of electoral defeat. To the extent that the ex-president was even aware of the difference, it could have fanned what angry envy of the general he may have felt.

Trump failed mainly due to the checks and balances that generally call government to account in America. Min Aung Hlaing succeeded in no small part thanks to the checks and balances in the bank accounts of the generals who have compromised Myanmar’s transition to democracy and helped make it the second most corrupted country in Southeast Asia (after Cambodia) as measured by the Corruption Perceptions Index.

Among the many reactions to the Burmese coup, several stand out for their courage and creativity. UN Secretary General António Guterres was unequivocal. "It's absolutely unacceptable,” he said, “to reverse the result of the elections and the will of the people.” Presumably speaking on behalf of the UN, its secretariat, or himself, or all three, he went further: "We'll do everything we can to mobilize all the key actors of the international community to put enough pressure on Myanmar to make sure that this coup fails." 

This notable response came from Indonesia’s former foreign minister Marty Natalegawa: “Deafening silence in the face of assaults against democratic principles [has] increasingly become the norm,” he said. He urged ASEAN to “demonstrate its relevance: It must speak urgently for the respect of constitutional process and rule of law in Myanmar, and call for the immediate release of those unlawfully detained.”

In the days immediately following the coup, ASEAN’s Bruneian secretary general said nothing about it, preferring to remain, in the Indonesian expression, “silent in a thousand tongues.” Speaking for ASEAN as its current chair, however, Brunei’s government did at least encourage a “return to normalcy in accordance with the will and interests of the people of Myanmar,” noting that the group charter’s called for adherence to “democracy, the rule of law” and “human rights and fundamental freedoms.”

As for ASEAN’s next chair, Cambodia, its strongman Hun Sen did speak, but only to say that "Cambodia does not comment on the internal affairs of any country at all.” Hun Sen’s restraint made historical sense. Had Cambodia’s old despot chosen to criticize Myanmar’s new despot, observers could have noted that Min Aung Hlaing had only done what Hun Sen himself had bloodily accomplished in 1997 by seizing full control over Cambodia in a self-coup of his own that had enabled him to become the longest-serving prime minister in the world.

Critical Southeast Asian voices, unconstrained by look-the-other-way diplomacy, have been heard. The chairman of the ASEAN Parliamentarians for Human Rights, Charles Santiago, has urged ASEAN to send a high-level delegation to Myanmar to tell Min Aung Hlaing that his coup “violates ASEAN principles and the ASEAN charter” and is “not acceptable.” “If Myanmar does not turn around,” he added, “there should be proceedings to expel Myanmar out of ASEAN.”

Who is better positioned to deal with this crisis than ASEAN’s largest and debatably least authoritarian member country? It was Indonesia’s Natalegawa who patched up ASEAN’s consensus after Hun Sen damaged it on China’s behalf in 2012. And it is Natalagewa who believes, with the Myanmar coup in mind, that “at this critical juncture for the region, Indonesia must demonstrate its leadership within ASEAN.”

Indonesia’s president Jokowi, rather than trying to rally the region against the coup, will likely continue to focus on domestic economic growth. Not to mention the existential priority that COVID-19 also warrants on his agenda.

So why not task Natalegawa with a damage-control trip around the region comparable the one he took with some success in 2012? He could start with fact-finding in Myanmar. He could then explore an intra-ASEAN understanding that would reassert the core democratic values in the ASEAN Charter while lessening, if possible, the chance that Myanmar will revert to entrenched and fully authoritarian rule. That may be a lost cause. But nothing ventured, nothing gained.

Although Donald Trump is no longer in office, America is still not safe from Trumpism. But America’s system—democracy—is working as it should. Is ASEAN really a dictators’ club? Or does it, too, when threatened from within, have a system that can at least manage and minimize the damage that is, in Myanmar as I write this, being done?

This article was originally written by Melissa De Witte on behalf of Stanford News.

As Monday’s coup in Myanmar demonstrates, democracy is often fragile and subject to setbacks, says former U.S. ambassador to Myanmar and Stanford visiting scholar, Scot Marciel.

Here, Marciel discusses how in a country like Myanmar (formerly Burma), which was under military rule from 1962 to 2011, establishing a democracy takes time. Despite democratic reforms over the past decade, the military in Myanmar has held onto a considerable amount of power, said Marciel, noting that it is difficult to build not only a representative parliament but other democratic institutions including an independent judicial system, a fair police force and a free press.

While Monday’s coup is a major setback in Myanmar’s fight for democracy, Marciel said that there are many people in the country who will do what they can to restore their elected government and build the foundations of democracy.

Marciel is a visiting scholar at the Walter H. Shorenstein Asia-Pacific Research Center (APARC), Stanford’s hub for interdisciplinary research, education and engagement on contemporary Asia that is run under the auspices of the Freeman Spogli Institute for International Studies. Marciel served as U.S. Ambassador to Myanmar from March 2016 through May 2020. From 2010 to 2013, Scot Marciel served as U.S. Ambassador to Indonesia.

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What do people who have not spent extensive time studying or living in Myanmar need to know about its history to better understand Monday’s coup?

A couple of things. First, as historian Thant Myint-U has written, Myanmar is an unfinished nation, in the sense that the diverse communities that make up the country have never truly solidified as a unified nation. The country has been in near-constant conflict, mostly between the majority Bamar ethnic group and the many ethnic minority communities that inhabit much of Myanmar’s border areas. Second, the military staged a coup in 1962 and ran the country for nearly 50 years before allowing some movement toward representative democracy beginning in 2011-2012. So the military has long been a dominant force in the country, and – even after the reforms of the past decade – retained substantial power.

Is there anything that is often misunderstood about its history and its people?

In the West, many people have tended to view Myanmar mostly through the prism of a struggle for democracy between the military and the civilian opposition, led by Aung San Suu Kyi. That is a critically important part of the story, for sure. Perhaps equally important, however, has been the struggle of the many ethnic minority communities for equality, a degree of autonomy, and respect for their own histories, cultures and languages. This struggle has produced widespread conflict, significant human rights abuses, and large numbers of refugees and displaced people for decades.

What are some of the difficulties in establishing, and maintaining, democratic rule in a country like Myanmar?

First, persuading the military to give up power, depart from politics, and play a more appropriate role in the country. Second, it is very difficult to build the institutions of democracy, including not only parliament, but also a strong, independent judicial system, an effective and fair police force, and respect for the critical role of civil society and the independent media. In Myanmar, another essential aspect is to shift from historically centralized rule to a federal structure that would allow the various communities across the country to have more of a say in how they are governed.

As ambassador to Myanmar, what was it like working with not only the country’s policymakers but also its people? What did you learn from them about how democracy is established? And how did those experiences shape your perspective?

In Myanmar, I met so many people, all over the country, from many different walks of life, who had sacrificed and continued to sacrifice to try to build democracy and respect for human rights. Some operated at the national level, others at the local level. It was a good reminder that democracy isn’t just imposed from the top; it requires careful building at the community and state level, with intensive involvement by the various communities. It also takes time and, as we have seen this week, is often fragile and subject to setbacks. In other words, it is a long-term effort that requires persistence, courage, and participation by large numbers of people. Establishing a democracy is a lengthy, painstaking effort that can be upended, particularly if the armed forces are politicized and pursue their own agenda.

Is there anything else you would like to add? 

This week’s military takeover constitutes a major setback, but the story of Myanmar’s struggle for democracy is not over. Many people there will continue to do what they can to restore elected government and build, brick by brick, the foundations of democracy.

This analysis by Oriana Skylar Mastro originally appeared in The Interpreter, by the Lowy Institute.

China’s strategy in responding to concerns about its intentions in the South China Sea is to claim that none of the activities, statements or behaviours that concern other countries are actually happening.

China claims it has not militarised the South China Sea, but that the United States “is the real pusher of militarisation” in these waters. Its leaders often argue that China is a peace-loving country only interested in defending itself. As the China’s General Wei Fenghe stated at the Shangri-La Dialogue in 2018, “China has never provoked a war or conflict, nor has it ever invaded another country or taken an inch of land from others. In the future, no matter how strong it becomes, China shall never threaten anyone.”

China has similarly brushed off concerns of other claimants, such as Vietnam, about its intensifying military exercises in the South China Sea and largely ignored Australia’s assertion at the United Nations that China’s claims have no legal backing.

So apparently it is all one big misunderstanding.

On 24 November, former Chinese ambassador Fu Ying criticised the United States in a New York Times op-ed for raising multiple issues that in her mind do not exist. Thus, the way to resolve the growing bilateral tensions is for the two countries “to have candid talks to better understand each other’s intentions and cultivate trust”.

So, in the Chinese communist spirit of 实事求是, or “seeking truth from facts”, I have charted the military capabilities China has deployed to the South China Sea, which are displayed with references on the map below. The Paracel Islands and the Spratly Islands are under dispute; Hainan Island is a recognised part of China, but I include it because the military capabilities in situ have implications for Chinese military options in the South China Sea writ large.

Brett McGurk, former presidential envoy for the global coalition to defeat ISIS, joins Andrea Mitchell to discuss the last minute foreign policy moves, including the decision to draw down the number of troops in Afghanistan, that President Trump is saddling the incoming Biden administration with.

Watch interview at MSNBC

Special forces veteran and Stanford scholar Joseph Felter will never forget when U.S. Army General Stanley McChrystal was briefed on a study Felter had co-authored concluding that civilian casualties inflicted by international forces in Afghanistan increased insurgent violence.

McChrystal was gripped by one finding in particular in the analysis by Felter and his colleague, Radha Iyengar: If the International Security Assistance Force (ISAF) could eliminate incidents that left at least two civilians dead, then there would be one less insurgent attack over the following six weeks.

Read the rest at  Stanford News