Cossack25A1
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Better watch out for Scarborough Shoal because we might wake up someday and see that place becomes "Scarborough *man-made* Island."
China on the Matter of Jurisdiction in the South China Sea Arbitration
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ahojunk
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It's going to happen, not sure when.
Cossack25A1
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Once the Sierra Madre disintegrates, we will ground another obsolete warship.
William Hung
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I'm pretty sure the Arbitral Tribunal will issue their ruling before the Sierre Madre disintegrates.
If the tribunal rule against the PRC, it will be hard for it to then go and occupy more SCS territory.
If the tribunal rule against the PRC, it will be hard for it to then go and occupy more SCS territory.
Cossack25A1
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I am expecting hostile reaction from the Chinese because the article was written by a Vietnamese.
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International Law and the South China Sea
China’s approach to international law is driving the US and ASEAN into a ‘juridical alliance.’
By Truong-Minh Vu and Trang Pham
December 22, 2014
China’s position paper published on December 7, 2014 is one of the rare documents in which Beijing officially expressed its opinions on the issues in the South China Sea as well as on the arbitration proceedings that the Philippines initiated at the Permanent Court of Arbitration in January 2013. It seems that the motivation was the December 15 deadline (which China has ignored) for its response to the Philippines’s claims before the Tribunal.
China’s views on its refusal to appear in the arbitral proceedings can be summarized in four inter-related main points. First, lying at the heart of the disputes between China and the Philippines is the territorial claims over sovereignty over the archipelagos in the area, rather than interpreting UNCLOS. Therefore, in Beijing’s view it is beyond the scope of the jurisdiction of the Tribunal to entertain the case. Second, China stresses that the Philippines has to respect bilateral statements between them as well as the 2002 ASEAN-China Declaration on the Conduct of Parties in the South China Sea (DOC), in which they agreed to solve their maritime issues through negotiations alone. Third, even if the Philippines has the right to bring the case to the Tribunal, China is not bound by it as in 2006 it submitted a declaration to the United Nations exempting itself from compulsory arbitration and other dispute settlement procedures. And finally, the fact that China has never chosen the other options for arbitration provided by UNCLOS leads to a violation in international law.
It is easy to see that the main argument of China in its position paper is that the Tribunal lacks the jurisdiction to entertain the case. The fact that China focuses on jurisdiction rather than displaying comprehensive counterclaims is hardly a surprise. Indeed, in almost every case of a default of appearance before an international court, the defendant (usually the party refusing to appear) challenges the jurisdiction of the Court. There have been more than 11 cases of default of appearance before the Permanent Court of International Justice (PCIJ) and the International Court of Justice (ICJ). With respect to the International Tribunal for Law of the Sea (ITLOS), there has been just one case where one of the parties to the dispute refused to appear before the Tribunal: the Artic Sunrise case in which the Russian Federation did not participate in the judicial proceedings. Virtually all of the defaulting parties behaved in the same way.
Indeed, it is easy to point to similarities in their declarations. For instance, in the Fisheries Jurisdiction Cases, Iceland declared that the subject matter brought to the International Court of Justice against it by Great Britain and Germany had no basis under the Statute of the ICJ for the Court to exercise its jurisdiction. In addition, it also considered that it would not be willing to confer jurisdiction on the Court; and it would not in any circumstances appoint an agent representing its government. The arguments of China on its December 7, 2014 position paper are in some respects the same.
These challenges to the jurisdiction of the Court can be legally explained. The very first step a court takes before a default of appearance case is to demonstrate that it has the legal authority to deliver a judgment. If the jurisdiction of the Court cannot be found, the case will be terminated; therefore, there is no need for the non-appearing party to address the details of the claims brought against it by the other party.
China may have been timely in publishing its position, but that does not necessarily indicate that Beijing is keen on a legal solution for the South China Sea disputes. In fact, it implies that China is continuing its policy of eliminating challenges to its claims in the area and the possibility of invoking a judicial body to decide the disputes. Norms still are an important facet of South China Sea disputes. Contending parties frame their respective claims in distinct normative contexts. The main illustration is that, whereas China resorts to a concept of “historical waters” and historical legitimacy to back its expansive claim, ASEAN states like Vietnam, the Philippines, or Indonesia oppose it with the Convention on the Law of the Sea (UNCLOS). Interpretations of states’ rights and obligations under UNCLOS, and its applicability to the South China Sea context also diverge from one actor to the other.
On the other hand, recent developments in the South China Sea, including the dispatch of a Chinese oil rig in the Paracels and the various construction work ongoing in the Spratleys, point to an uneven commitment to the status quo – or lack thereof – by some, if not all parties. Without an agreed baseline, any negotiation is resting on fragile grounds. ASEAN and China have been engaged in substantial talks since the conclusion of the 2002 Declaration of Conduct (DoC), but the prospects of these negotiations leading to a much-awaited Code of Conduct (CoC) seem remote.
The lack of normative order in the South China Sea will pave the way for legal and academic fireworks in 2015. It started with the Department of State of the United States publishing a report (Limits in the Sea) analyzing the legal status of China’s nine-dash-line claim just two days before China’s position paper. This 26-page report offered a detailed breakdown of the legality of the nine-dash-line, concluding that the legal status of the Chinese U-shape line could be found nowhere in the Law of the Sea Convention. This can be seen as a strong and direct attack to the credibility and legitimacy of China’s claims as well as an argument relevant to the South China Sea disputes.
More importantly, the report can also be viewed as a U.S. proposal to ASEAN countries for a “juridical alliance” with respect to the freedom of navigation and dispute settlement in the South China Sea. Given the power discrepancy with China, having the U.S. defend the validity of existing rules and procedures, and their usefulness in dispute management in the South China Sea, is a major asset, especially given that all claimants seek the moral high ground.
Yet the overwhelming priority for ASEAN is resolving its own internal disparities, which have restricted the bloc’s actions against China as well as its ability to engage other major powers in a peaceful South China Sea dispute settlement. The first target is Philippines-Vietnam-Malaysia-Indonesia strategic cooperation. These four states should develop and adopt a common position on various aspects of the law of the sea in the South China Sea, as part of their ongoing efforts to delegitimizethe Chinese nine-dash-line. For ASEAN, operating in the context of a regional power shift, normative and legal approaches were and will remain the most feasible solution in dealing with stronger nations.
Truong-Minh Vu is a foreign affairs and political analyst, focusing on the Southeast Asian region, and a lecturer at the Faculty of International Relations, University of Social Sciences and Humanities, Ho Chi Minh City. He has published articles in numerous academic and policy journals, including Revista Brasileira de Política Internacional, East Asia Policy, E-International Relations and ASIEN. Trang Pham is a lecturer at the Faculty of International Relations, University of Social Sciences and Humanities, Ho Chi Minh City and currently a Nippon Fellow at the International Tribunal for the Law of the Sea (ITLOS).
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International Law and the South China Sea | The Diplomat
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International Law and the South China Sea
China’s approach to international law is driving the US and ASEAN into a ‘juridical alliance.’
By Truong-Minh Vu and Trang Pham
December 22, 2014
China’s position paper published on December 7, 2014 is one of the rare documents in which Beijing officially expressed its opinions on the issues in the South China Sea as well as on the arbitration proceedings that the Philippines initiated at the Permanent Court of Arbitration in January 2013. It seems that the motivation was the December 15 deadline (which China has ignored) for its response to the Philippines’s claims before the Tribunal.
China’s views on its refusal to appear in the arbitral proceedings can be summarized in four inter-related main points. First, lying at the heart of the disputes between China and the Philippines is the territorial claims over sovereignty over the archipelagos in the area, rather than interpreting UNCLOS. Therefore, in Beijing’s view it is beyond the scope of the jurisdiction of the Tribunal to entertain the case. Second, China stresses that the Philippines has to respect bilateral statements between them as well as the 2002 ASEAN-China Declaration on the Conduct of Parties in the South China Sea (DOC), in which they agreed to solve their maritime issues through negotiations alone. Third, even if the Philippines has the right to bring the case to the Tribunal, China is not bound by it as in 2006 it submitted a declaration to the United Nations exempting itself from compulsory arbitration and other dispute settlement procedures. And finally, the fact that China has never chosen the other options for arbitration provided by UNCLOS leads to a violation in international law.
It is easy to see that the main argument of China in its position paper is that the Tribunal lacks the jurisdiction to entertain the case. The fact that China focuses on jurisdiction rather than displaying comprehensive counterclaims is hardly a surprise. Indeed, in almost every case of a default of appearance before an international court, the defendant (usually the party refusing to appear) challenges the jurisdiction of the Court. There have been more than 11 cases of default of appearance before the Permanent Court of International Justice (PCIJ) and the International Court of Justice (ICJ). With respect to the International Tribunal for Law of the Sea (ITLOS), there has been just one case where one of the parties to the dispute refused to appear before the Tribunal: the Artic Sunrise case in which the Russian Federation did not participate in the judicial proceedings. Virtually all of the defaulting parties behaved in the same way.
Indeed, it is easy to point to similarities in their declarations. For instance, in the Fisheries Jurisdiction Cases, Iceland declared that the subject matter brought to the International Court of Justice against it by Great Britain and Germany had no basis under the Statute of the ICJ for the Court to exercise its jurisdiction. In addition, it also considered that it would not be willing to confer jurisdiction on the Court; and it would not in any circumstances appoint an agent representing its government. The arguments of China on its December 7, 2014 position paper are in some respects the same.
These challenges to the jurisdiction of the Court can be legally explained. The very first step a court takes before a default of appearance case is to demonstrate that it has the legal authority to deliver a judgment. If the jurisdiction of the Court cannot be found, the case will be terminated; therefore, there is no need for the non-appearing party to address the details of the claims brought against it by the other party.
China may have been timely in publishing its position, but that does not necessarily indicate that Beijing is keen on a legal solution for the South China Sea disputes. In fact, it implies that China is continuing its policy of eliminating challenges to its claims in the area and the possibility of invoking a judicial body to decide the disputes. Norms still are an important facet of South China Sea disputes. Contending parties frame their respective claims in distinct normative contexts. The main illustration is that, whereas China resorts to a concept of “historical waters” and historical legitimacy to back its expansive claim, ASEAN states like Vietnam, the Philippines, or Indonesia oppose it with the Convention on the Law of the Sea (UNCLOS). Interpretations of states’ rights and obligations under UNCLOS, and its applicability to the South China Sea context also diverge from one actor to the other.
On the other hand, recent developments in the South China Sea, including the dispatch of a Chinese oil rig in the Paracels and the various construction work ongoing in the Spratleys, point to an uneven commitment to the status quo – or lack thereof – by some, if not all parties. Without an agreed baseline, any negotiation is resting on fragile grounds. ASEAN and China have been engaged in substantial talks since the conclusion of the 2002 Declaration of Conduct (DoC), but the prospects of these negotiations leading to a much-awaited Code of Conduct (CoC) seem remote.
The lack of normative order in the South China Sea will pave the way for legal and academic fireworks in 2015. It started with the Department of State of the United States publishing a report (Limits in the Sea) analyzing the legal status of China’s nine-dash-line claim just two days before China’s position paper. This 26-page report offered a detailed breakdown of the legality of the nine-dash-line, concluding that the legal status of the Chinese U-shape line could be found nowhere in the Law of the Sea Convention. This can be seen as a strong and direct attack to the credibility and legitimacy of China’s claims as well as an argument relevant to the South China Sea disputes.
More importantly, the report can also be viewed as a U.S. proposal to ASEAN countries for a “juridical alliance” with respect to the freedom of navigation and dispute settlement in the South China Sea. Given the power discrepancy with China, having the U.S. defend the validity of existing rules and procedures, and their usefulness in dispute management in the South China Sea, is a major asset, especially given that all claimants seek the moral high ground.
Yet the overwhelming priority for ASEAN is resolving its own internal disparities, which have restricted the bloc’s actions against China as well as its ability to engage other major powers in a peaceful South China Sea dispute settlement. The first target is Philippines-Vietnam-Malaysia-Indonesia strategic cooperation. These four states should develop and adopt a common position on various aspects of the law of the sea in the South China Sea, as part of their ongoing efforts to delegitimizethe Chinese nine-dash-line. For ASEAN, operating in the context of a regional power shift, normative and legal approaches were and will remain the most feasible solution in dealing with stronger nations.
Truong-Minh Vu is a foreign affairs and political analyst, focusing on the Southeast Asian region, and a lecturer at the Faculty of International Relations, University of Social Sciences and Humanities, Ho Chi Minh City. He has published articles in numerous academic and policy journals, including Revista Brasileira de Política Internacional, East Asia Policy, E-International Relations and ASIEN. Trang Pham is a lecturer at the Faculty of International Relations, University of Social Sciences and Humanities, Ho Chi Minh City and currently a Nippon Fellow at the International Tribunal for the Law of the Sea (ITLOS).
-----
International Law and the South China Sea | The Diplomat
TaiShang
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“China, Vietnam should avoid ‘megaphone diplomacy'”
December 27, 2014, The Brics Post
Yu Zhengsheng (L), a member of the Standing Committee of the Political Bureau of the Communist Party of China (CPC) Central Committee meets with Vietnamese Prime Minister Nguyen Tan Dung in Hanoi, capital of Vietnam, Dec. 26, 2014 [Xinhua]
China and Vietnam have vowed to improve mutual trust and assuage hurt relations during a top Chinese leader’s visit to Hanoi, state-media reports said. The two Communist states are trying to find a solution to a territorial dispute in the South China Sea.
China’s top political advisor Yu Zhengsheng and Vietnamese Prime Minister Nguyen Tan Dung agreed to “properly settle the maritime disputes and control their differences through dialogues” said Chinese agency Xinhua.
“The maritime issue is highly complicated and sensitive, which requires negotiations to manage and control differences,” said Zhengsheng, the fourth-ranked member in the elite Politburo Standing Committee of the Communist Party.
Zhengsheng, who heads an advisory body to China’s parliament, also met Le Hong Anh, a member of the Vietnamese Communist Party’s politburo.
“Megaphone diplomacy can only trigger volatility of public opinion, which should be avoided by both sides,” said the Chinese leader, who is in Hanoi for a three-day official visit.
The Chinese leader was quoting British Foreign Secretary in 1985, Geoffrey Howe who warned, “Megaphone diplomacy leads only to a dialogue of the deaf.”
Vietnam took its dispute with China to the Hague when Hanoi filed a formal submission with an arbitration tribunal challenging a position paper Beijing submitted on December 7. In its paper, Vietnam’s Foreign Ministry rejected China’s legal objections to an arbitration case filed by the Philippines.
Zhengsheng’s trip is aimed at resolving one of the worst breakdowns in relations between the two Communist states.
A Chinese oil rig’s deployment set off anti-Chinese riots in Vietnam in May in which at least four people were killed.
China claims about 90 percent of the South China Sea, although Vietnam and Philippines also lay contesting claims to parts into the maritime heart of Southeast Asia.
Vietnam in August decided to compensate the victims of the anti-China protests in May.
China has accused Vietnam of ramming its ships more than 1,000 times in a part of the sea recently.
Vietnam says the Chinese platform was in its 200-nautical-mile exclusive economic zone and on its continental shelf. China has said the rig was operating completely within territory occupied by China.
Bilateral trade between the two countries has, however, swelled to $50 billion annually.
Despite the dispute, China remained the biggest trade partner of Vietnam in the first nine months of 2014, accounting for some 19.5 per cent of Vietnam’s total trade turnover.
According to statistics of Vietnam Customs, during the nine-month period, Vietnam sold over $11.094 billion worth of goods to China and spent nearly $31.27 billion for imports from China.
Trade revenue between Vietnam and China in January-September stood at $42.364 billion, said the customs office.
Phones, machinery, steel, fabric and computers were among top import items from China. Bilateral trade between the two countries has swelled to $50 billion annually.
“We are ready to beef up coordination with Vietnam, enhance personnel training and media swaps, to lay solid public opinion foundation for the development of China-Vietnam ties,” the visiting Chinese leader said on Friday.
Vietnamese Prime Minister Nguyen Tan Dung urged the Chinese side to promote substantial progress in their negotiations regarding the maritime demarcation of the bay mouth of Beibu Gulf.
Yu is visiting Hanoi from Thursday to Saturday at the invitation of the Communist Party of Vietnam Central Committee and the Fatherland Front of Vietnam.
China has earlier cast aspersions on US moves to “provoke” tension by supporting its regional allies, Vietnam and the Philippines.
Earlier in October, Washington partially lifted its arms embargo on Vietnam, a move intended to bolster Hanoi’s confidence in its dealings with China.
Earlier this month, China told the United States to stay out of disputes over the South China Sea and denounced a US State Department report on the disputed waters.
December 27, 2014, The Brics Post
Yu Zhengsheng (L), a member of the Standing Committee of the Political Bureau of the Communist Party of China (CPC) Central Committee meets with Vietnamese Prime Minister Nguyen Tan Dung in Hanoi, capital of Vietnam, Dec. 26, 2014 [Xinhua]
China and Vietnam have vowed to improve mutual trust and assuage hurt relations during a top Chinese leader’s visit to Hanoi, state-media reports said. The two Communist states are trying to find a solution to a territorial dispute in the South China Sea.
China’s top political advisor Yu Zhengsheng and Vietnamese Prime Minister Nguyen Tan Dung agreed to “properly settle the maritime disputes and control their differences through dialogues” said Chinese agency Xinhua.
“The maritime issue is highly complicated and sensitive, which requires negotiations to manage and control differences,” said Zhengsheng, the fourth-ranked member in the elite Politburo Standing Committee of the Communist Party.
Zhengsheng, who heads an advisory body to China’s parliament, also met Le Hong Anh, a member of the Vietnamese Communist Party’s politburo.
“Megaphone diplomacy can only trigger volatility of public opinion, which should be avoided by both sides,” said the Chinese leader, who is in Hanoi for a three-day official visit.
The Chinese leader was quoting British Foreign Secretary in 1985, Geoffrey Howe who warned, “Megaphone diplomacy leads only to a dialogue of the deaf.”
Vietnam took its dispute with China to the Hague when Hanoi filed a formal submission with an arbitration tribunal challenging a position paper Beijing submitted on December 7. In its paper, Vietnam’s Foreign Ministry rejected China’s legal objections to an arbitration case filed by the Philippines.
Zhengsheng’s trip is aimed at resolving one of the worst breakdowns in relations between the two Communist states.
A Chinese oil rig’s deployment set off anti-Chinese riots in Vietnam in May in which at least four people were killed.
China claims about 90 percent of the South China Sea, although Vietnam and Philippines also lay contesting claims to parts into the maritime heart of Southeast Asia.
Vietnam in August decided to compensate the victims of the anti-China protests in May.
China has accused Vietnam of ramming its ships more than 1,000 times in a part of the sea recently.
Vietnam says the Chinese platform was in its 200-nautical-mile exclusive economic zone and on its continental shelf. China has said the rig was operating completely within territory occupied by China.
Bilateral trade between the two countries has, however, swelled to $50 billion annually.
Despite the dispute, China remained the biggest trade partner of Vietnam in the first nine months of 2014, accounting for some 19.5 per cent of Vietnam’s total trade turnover.
According to statistics of Vietnam Customs, during the nine-month period, Vietnam sold over $11.094 billion worth of goods to China and spent nearly $31.27 billion for imports from China.
Trade revenue between Vietnam and China in January-September stood at $42.364 billion, said the customs office.
Phones, machinery, steel, fabric and computers were among top import items from China. Bilateral trade between the two countries has swelled to $50 billion annually.
“We are ready to beef up coordination with Vietnam, enhance personnel training and media swaps, to lay solid public opinion foundation for the development of China-Vietnam ties,” the visiting Chinese leader said on Friday.
Vietnamese Prime Minister Nguyen Tan Dung urged the Chinese side to promote substantial progress in their negotiations regarding the maritime demarcation of the bay mouth of Beibu Gulf.
Yu is visiting Hanoi from Thursday to Saturday at the invitation of the Communist Party of Vietnam Central Committee and the Fatherland Front of Vietnam.
China has earlier cast aspersions on US moves to “provoke” tension by supporting its regional allies, Vietnam and the Philippines.
Earlier in October, Washington partially lifted its arms embargo on Vietnam, a move intended to bolster Hanoi’s confidence in its dealings with China.
Earlier this month, China told the United States to stay out of disputes over the South China Sea and denounced a US State Department report on the disputed waters.
ahojunk
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