by: Ted Laguatan
Based on applicable international maritime and related laws, China knows that if she petitions the United Nations International Court of Justice or the International Tribunal for the Law of the Sea to affirm her dubious claim that she owns everything in the South China Sea aka West Philippine Sea — her chances of winning are about as likely as having a snowfall in the Sahara desert.
Both Courts have proper jurisdictions to settle sovereignty issues between nations regarding marine territories — such as those concerning the Spratly and Paracel islands.
Let’s imagine what most likely would happen if China does take her case to the International Court of Justice and the representative of China — let’s call him Mr. Lee — is before the Court headed by the Presiding Judge. Consider this scenario:
Judge: “Please inform this Court of the basis for your claim that the entire South China Sea aka West Philippine Sea belongs completely to the People’s Republic of China?”
Mr. Lee: “Thank you, your honor. Our claim is based on the historical fact that this entire area has belonged to us since the Han Dynasty.”
Judge: “How do you intend to prove your case?”
Mr. Lee: “I will present to this Court an almost two thousand year old Han Dynasty map that indicates the limits of the Han Dynasty kingdom.”
Judge: “Let’s assume for purposes of discussion that the Philippines, Vietnam, Malaysia, Brunei and other surrounding countries were provinces or part of the Han Dynasty during its time even if the map you hold may just actually be a navigational map which does not really define the limits of the Han Dynasty. Now my study of China’s history indicate that the Han Dynasty lasted from 206 B.C. To 220 A.D. Is this correct?”
Mr. Lee: “Yes your honor.”
Judge: “I assume Mr. Lee that you are familiar with Alexander the Great, the young Macedonian king who conquered much of the ancient world.”
Mr. Lee: “I am, your honor.”
Judge: “At the time of his death in 323 B.C., Alexander’s kingdom included Greece, Syria, Persia now known as Iran, Egypt and a part of India. Are you aware Mr. Lee that Macedonia, Alexander’s country — is now known as the Republic of Macedonia?”
Mr. Lee: “If you say so your honor.”
Judge: “Good! You appear to know your history. I assume you are also familiar with the Roman Empire which existed for over a thousand years.”
Mr. Lee: “Thank you your honor, I do read history.”
Judge: “You are then aware Mr. Lee that at its height, the Roman Empire included most of Europe and parts of Africa and Asia.”
Mr. Lee: “I am aware, your honor.”
Judge: “Now Mr. Lee, since the time of Alexander, the Roman Empire and the Han Dynasty — through the course of time and historical events, various independent countries have emerged in Europe, Africa and Asia — which now have their own respective territories. This is a reality which we all have to accept, wouldn’t you say?”
Mr. Lee: “We cannot deny reality, your honor.”
Judge: “Now Mr. Lee, another undeniable reality is that Alexander’s empire, the Roman empire and the Han Dynasty kingdom are no longer existent — am I correct in my observation?
Mr. Lee: “You are correct, your honor.”
Judge: “Now Mr.Lee, in all candor, do you seriously believe that if the Republic of Macedonia and the Italian government were to come before this Court and petition us to affirm that they own the territories of these now independent countries because they were once a part of Alexander’s empire or the Roman empire — that we would be persuaded to grant these petitions?”
Mr. Lee: “I understand what you are getting at, Judge — but most of what we are claiming as ours is marine area and not land.”
Judge: “The Spratlys and the Paracel islands are not land? Anyway, isn’t it a fact that China is a signatory to the 1982 United Nations Convention on the Law of the Sea (UNCLOS) which she ratified on July 6, 1996 thereby agreeing to be bound by its provisions — and part of which is that anything within 200 miles from the baseline of a country belongs to that country?"
Mr. Lee: “China did agree to those provisions at a time when it was not yet aware of the far reaching consequences of UNCLOS to her national interests.”
Judge: “I will not mince my words Mr. Lee. What you mean is that at that time, the world, including China, was not yet aware, that vast deposits of oil and natural gas were to be found within the territorial limits of neighboring countries. Now because of this awareness, even if China knows she is trespassing and violating international law, she is using the coercive might of her size, military or otherwise — to grab these enormous reserves of petrowealth from the territories of her smaller, weaker, poorer neighbors — who badly need these assets to improve the plight of their own people."
Postscript: In view of all the facts and existing applicable law, the likelihood is that the UN court will find China’s petition to be without merit.
Notwithstanding requests from the Philippines, neighboring countries and the United States to bring West Philippine Sea sovereignty issues to the United Nations, China has steadfastly refused to do so. Instead, it is constantly involved in mind games, using scare tactics, insisting that everything in the whole West Philippine Sea is theirs and that this issue is non-negotiable.
By so doing, the gigantic oil hungry dragon seeks to condition the national minds of her neighbors to forcibly accept inequitable bilateral settlement agreements — without United Nations or United States involvement. The Philippines, Vietnam and other neighbor countries must not fall into this trap. They should unite and create an alliance and insist — with the aid of the global community, with military means if necessary — that China should respect their rights and leave their national patrimony alone.
The most loudly applauded part of President Benigno Simeon Aquino’s State of the Nation speech was his strong affirmation that what belongs to the Philippines stays in the Philippines. Everyone understood his meaning: The Philippines will stand firm against China’s bully tactics and mind games in trying to grab our energy and marine resources.
What a big difference to have a trustworthy President who provides moral leadership and looks after the interests of the nation instead of one ready to sell out the country’s patrimony for personal gain.
Source: http://goo.gl/ChRvAl
Showing posts with label Agreement. Show all posts
Showing posts with label Agreement. Show all posts
Friday, February 28, 2014
Tuesday, February 25, 2014
Negotiating the South China Sea
by: Huy Duong
Although the Spratly Islands have received most international focus, the issue of sovereignty in the South China Sea is actually made up of a number of separate disputes, with the Paracels Islands being claimed by Vietnam and China, Scarborough Shoal contested by China and the Philippines, and the Spratly Islands claimed in whole or in part by Brunei, China, Malaysia, the Philippines, and Vietnam. In addition, there are also clashes over maritime areas, such as exclusive economic zones and extended continental shelves.
The dispute over the Paracels and the waters belonging to them is a bilateral matter between China and Vietnam, and so bilateral negotiations should be appropriate. Similarly, the dispute over Scarborough Shoal and its waters is a bilateral matter between China and the Philippines, and so could be resolved in a similar way. The Spratlys and the waters belonging to them, however, are claimed wholly or partly by Brunei, Malaysia, the Philippines, Vietnam, and China, and this dispute is therefore multilateral by definition. As such, resolution of the Spratlys dispute requires a multilateral mechanism involving all the claimants.
China’s officially stated approach for resolving the South China Sea disputes is through bilateral negotiations, and so it’s interesting to examine how this approach is being applied in practice.
First, there’s the Paracels dispute. Despite insisting on the approach of bilateral negotiations, China has refused to apply it. On the Spratlys dispute, clearly bilateral negotiations couldn’t be expected to bring about a settlement of this multilateral dispute. Supposing the Philippines and Vietnam were to negotiate and settle bilaterally the dispute over the Spratlys and the waters belonging to these islands, would China accept that as a solution?
Third, let’s consider what China means by ‘negotiation.’ The fact is that China’s policy isn’t to negotiate on the issue of sovereignty, but rather to maintain its stance that (a) sovereignty belongs to China, (b) the claimants should shelve the sovereignty disputes and, (c) the claimants should jointly develop the resources with China. Therefore, by ‘negotiation,’ China only means negotiation on temporary arrangements, not negotiation on the issue of sovereignty.
These three considerations show that China’s approach of ‘bilateral negotiations’ isn’t aimed at actually resolving the sovereignty disputes. From the point of view of strategy, the absence of a settlement gives China, as the claimant with overwhelming hard and soft power, increasing opportunities to strengthen its controls and weaken those of the others. Another reason for the bilateral approach is that if the Southeast Asian claimants deal with China individually, they’ll be more likely to succumb one by one to China’s superior strength.
Another component of China’s approach, one that is unstated but still practised, is an effort to maximise the contested area. China’s mysterious U-shaped line covers most of the South China Sea. Its actions, e.g. those against the Philippines at the Reed Bank in March 2011 and those against Vietnam’s survey ships Binh Minh 2 and Viking 2 in May and June 2011, were within the area claimed by China, though not far off the Philippine and Vietnam coasts. In a dispute, the party that has overwhelming strength is likely to achieve more aims than the others. Therefore, the larger the contested area, the more China is likely to gain.
While the approach for China has three components, namely maximising the contested area, temporarily maintaining the condition of a sovereignty dispute while consolidating effective control, and drawing on ‘divide and conquer,’ the Southeast Asian claimants, being the weaker parties to the disputes, seem to be adopting the opposite approach: minimising the contested area.
In the attempt to minimise the contested area, the Southeast Asia claimants can appeal to international law regarding maritime delimitation, including the principles codified in the United Nations Convention on the Law of the Sea to minimise the extent of the waters belonging to the contested islands.
According to Article 121.3 of UNCLOS, ‘Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.’ If this is applicable to the Paracels, Spratlys, and Scarborough Shoal, then they will have at most a 12-nautical-mile territorial sea.
Even if Article 121.3 of UNCLOS isn’t considered applicable, the Paracels, Spratlys, and Scarborough Shoal are tiny. Therefore, according to international law, they ‘generate’ far fewer EEZs and continental shelves than the uncontested territories around the South China Sea. This means that even if the Paracels, Spratlys, and Scarborough Shoal are considered to merit EEZs, their EEZs wouldn’t extend far beyond 12 nautical miles.
The Philippines has called on China to take the dispute to the International Tribunal on the Law of the Sea (ITLOS), most likely in an attempt to limit the contested area according to the above principle. After China rejected adjudication, the Philippines declared that it would still take the case to the ITLOS. Subsequently, Vietnam’s ambassador to the Philippines, Nguyen Vu Tu, said: ‘Vietnam joins the Philippines’ initiative…in calling for a rules-based approach in resolving the maritime disputes.’ Tu also stressed that a multilateral approach in discussing the disputes is ‘the only way to go.’
Despite the fact that the Southeast Asia claimants can’t yet be united regarding the sovereignty issue, they can indeed be united in the common approach of minimising the contested area utilising multilateral mechanisms, and so they can achieve strength in numbers.
However, while this common approach gives the Southeast Asian claimants a legal and diplomatic advantage over China, these claimants still don’t have enough resources to resist China’s attempt to achieve effective control. This is why the United States’ interest in the disputes is important to them. Equally, this is why that same interest is objectionable to China.
While the United States may have no rights or interest in the issue of sovereignty over the contested islands, the issue of sovereign rights over maritime space is a different matter.
First, the middle of the South China Sea is an area that potentially doesn’t belong to any state as an EEZ, and all states may share equal rights over the water column in this area. If a country tries to claim excessive maritime space in the South China Sea, that threatens to take away the rights of the international community, including those of the United States, in this central area.
Second, while China states that it respects the freedom of navigation in the South China Sea, China’s interpretation of the freedom of navigation in an EEZ is far more restrictive than that of the United States. The clashes between China and the US regarding military surveillance in the South China Sea stem from this difference in interpretation.
Third, China has never stated officially what the U-shaped line means, the extent of its claims in the South China Sea, or what rights it claims within those claimed areas. China’s lack of transparency poses a risk to all states that use the South China Sea, including to the United States and its allies. For example, Singapore, which isn’t a party to the disputes, has urged China to clarify its claims, ‘as the current ambiguity as to their extent has caused serious concerns in the international maritime community.’
Fourth, maximising the contested area, as China seeks to do, increases the risk of conflict and the risk of adverse effects on user states of the South China Sea, including on the United States and its allies.
Given these considerations, it’s in the interests of the United States that the area of the waters belonging to the contested islands is minimised. This aligns with what would benefit the Southeast Asian claimants, and is contrary to China’s aims, all without the US necessarily taking sides on the question of sovereignty over the contested islands and over the waters belonging to them.
From a geopolitical point of view, if the South China Sea were to become dominated by China, or if Southeast Asia were to fall into China’s orbit, there would be significant effects on the balance of power in the Western Pacific and Eastern Indian Ocean. It’s also in the interests of the United States to prevent these possibilities from transpiring.
With this in mind, it seems likely that the Southeast Asian claimants and the United States will try to act on their common interests, without the necessity of the US taking a position on the question of sovereignty over the contested islands and over the waters belonging to them. In the meantime, expect China to try to keep opposing US involvement and working to prevent Southeast Asian claimants from acting together.
Although the Spratly Islands have received most international focus, the issue of sovereignty in the South China Sea is actually made up of a number of separate disputes, with the Paracels Islands being claimed by Vietnam and China, Scarborough Shoal contested by China and the Philippines, and the Spratly Islands claimed in whole or in part by Brunei, China, Malaysia, the Philippines, and Vietnam. In addition, there are also clashes over maritime areas, such as exclusive economic zones and extended continental shelves.
The dispute over the Paracels and the waters belonging to them is a bilateral matter between China and Vietnam, and so bilateral negotiations should be appropriate. Similarly, the dispute over Scarborough Shoal and its waters is a bilateral matter between China and the Philippines, and so could be resolved in a similar way. The Spratlys and the waters belonging to them, however, are claimed wholly or partly by Brunei, Malaysia, the Philippines, Vietnam, and China, and this dispute is therefore multilateral by definition. As such, resolution of the Spratlys dispute requires a multilateral mechanism involving all the claimants.
China’s officially stated approach for resolving the South China Sea disputes is through bilateral negotiations, and so it’s interesting to examine how this approach is being applied in practice.
First, there’s the Paracels dispute. Despite insisting on the approach of bilateral negotiations, China has refused to apply it. On the Spratlys dispute, clearly bilateral negotiations couldn’t be expected to bring about a settlement of this multilateral dispute. Supposing the Philippines and Vietnam were to negotiate and settle bilaterally the dispute over the Spratlys and the waters belonging to these islands, would China accept that as a solution?
Third, let’s consider what China means by ‘negotiation.’ The fact is that China’s policy isn’t to negotiate on the issue of sovereignty, but rather to maintain its stance that (a) sovereignty belongs to China, (b) the claimants should shelve the sovereignty disputes and, (c) the claimants should jointly develop the resources with China. Therefore, by ‘negotiation,’ China only means negotiation on temporary arrangements, not negotiation on the issue of sovereignty.
These three considerations show that China’s approach of ‘bilateral negotiations’ isn’t aimed at actually resolving the sovereignty disputes. From the point of view of strategy, the absence of a settlement gives China, as the claimant with overwhelming hard and soft power, increasing opportunities to strengthen its controls and weaken those of the others. Another reason for the bilateral approach is that if the Southeast Asian claimants deal with China individually, they’ll be more likely to succumb one by one to China’s superior strength.
Another component of China’s approach, one that is unstated but still practised, is an effort to maximise the contested area. China’s mysterious U-shaped line covers most of the South China Sea. Its actions, e.g. those against the Philippines at the Reed Bank in March 2011 and those against Vietnam’s survey ships Binh Minh 2 and Viking 2 in May and June 2011, were within the area claimed by China, though not far off the Philippine and Vietnam coasts. In a dispute, the party that has overwhelming strength is likely to achieve more aims than the others. Therefore, the larger the contested area, the more China is likely to gain.
While the approach for China has three components, namely maximising the contested area, temporarily maintaining the condition of a sovereignty dispute while consolidating effective control, and drawing on ‘divide and conquer,’ the Southeast Asian claimants, being the weaker parties to the disputes, seem to be adopting the opposite approach: minimising the contested area.
In the attempt to minimise the contested area, the Southeast Asia claimants can appeal to international law regarding maritime delimitation, including the principles codified in the United Nations Convention on the Law of the Sea to minimise the extent of the waters belonging to the contested islands.
According to Article 121.3 of UNCLOS, ‘Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.’ If this is applicable to the Paracels, Spratlys, and Scarborough Shoal, then they will have at most a 12-nautical-mile territorial sea.
Even if Article 121.3 of UNCLOS isn’t considered applicable, the Paracels, Spratlys, and Scarborough Shoal are tiny. Therefore, according to international law, they ‘generate’ far fewer EEZs and continental shelves than the uncontested territories around the South China Sea. This means that even if the Paracels, Spratlys, and Scarborough Shoal are considered to merit EEZs, their EEZs wouldn’t extend far beyond 12 nautical miles.
The Philippines has called on China to take the dispute to the International Tribunal on the Law of the Sea (ITLOS), most likely in an attempt to limit the contested area according to the above principle. After China rejected adjudication, the Philippines declared that it would still take the case to the ITLOS. Subsequently, Vietnam’s ambassador to the Philippines, Nguyen Vu Tu, said: ‘Vietnam joins the Philippines’ initiative…in calling for a rules-based approach in resolving the maritime disputes.’ Tu also stressed that a multilateral approach in discussing the disputes is ‘the only way to go.’
Despite the fact that the Southeast Asia claimants can’t yet be united regarding the sovereignty issue, they can indeed be united in the common approach of minimising the contested area utilising multilateral mechanisms, and so they can achieve strength in numbers.
However, while this common approach gives the Southeast Asian claimants a legal and diplomatic advantage over China, these claimants still don’t have enough resources to resist China’s attempt to achieve effective control. This is why the United States’ interest in the disputes is important to them. Equally, this is why that same interest is objectionable to China.
While the United States may have no rights or interest in the issue of sovereignty over the contested islands, the issue of sovereign rights over maritime space is a different matter.
First, the middle of the South China Sea is an area that potentially doesn’t belong to any state as an EEZ, and all states may share equal rights over the water column in this area. If a country tries to claim excessive maritime space in the South China Sea, that threatens to take away the rights of the international community, including those of the United States, in this central area.
Second, while China states that it respects the freedom of navigation in the South China Sea, China’s interpretation of the freedom of navigation in an EEZ is far more restrictive than that of the United States. The clashes between China and the US regarding military surveillance in the South China Sea stem from this difference in interpretation.
Third, China has never stated officially what the U-shaped line means, the extent of its claims in the South China Sea, or what rights it claims within those claimed areas. China’s lack of transparency poses a risk to all states that use the South China Sea, including to the United States and its allies. For example, Singapore, which isn’t a party to the disputes, has urged China to clarify its claims, ‘as the current ambiguity as to their extent has caused serious concerns in the international maritime community.’
Fourth, maximising the contested area, as China seeks to do, increases the risk of conflict and the risk of adverse effects on user states of the South China Sea, including on the United States and its allies.
Given these considerations, it’s in the interests of the United States that the area of the waters belonging to the contested islands is minimised. This aligns with what would benefit the Southeast Asian claimants, and is contrary to China’s aims, all without the US necessarily taking sides on the question of sovereignty over the contested islands and over the waters belonging to them.
From a geopolitical point of view, if the South China Sea were to become dominated by China, or if Southeast Asia were to fall into China’s orbit, there would be significant effects on the balance of power in the Western Pacific and Eastern Indian Ocean. It’s also in the interests of the United States to prevent these possibilities from transpiring.
With this in mind, it seems likely that the Southeast Asian claimants and the United States will try to act on their common interests, without the necessity of the US taking a position on the question of sovereignty over the contested islands and over the waters belonging to them. In the meantime, expect China to try to keep opposing US involvement and working to prevent Southeast Asian claimants from acting together.
Huy Duong is a freelance writer who contributes articles on the South China Sea disputes to the BBC and VietnamNet. He would like to thank David Brown, Ha Nguyen, Dang Vu, Thuy Tran, and Truong Le for their valuable comments and discussions.
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