Open war in the South China Sea

[MuslimConscript]

Will the South China Sea territorial and jurisdictional disputes trigger an open war in the region? If we think that wars are the last resort to settling disputes between sovereign states, the answer will be no doubt yes. History shows that countries go to war if the peaceful means of dispute settlement over territorial claims fail.

Thus, designing an effective, peaceful mechanism of conflict resolution is most important. However, the South China Sea case is so complex and difficult, involving overlapping territorial and jurisdictional maritime claims among six sovereign states: China, Taiwan, the Philippines, Vietnam, Malaysia and Brunei. Perhaps it is one of the most complicated and challenging maritime disputes ever.

So far, there have been no effective peaceful settlements to overcome the differences and claims among the countries. The dispute settlement mechanisms are weak, as has been evident in the latest incidents in the South China Sea.

Though this may look alarmist, in the future such mechanisms will not be able to avoid potential open wars involving the disputing states and those that have economic and geopolitical interest in the region, such as the US and Australia.

Further wars on a larger scale may destabilize the region. The Battle of the Paracel Islands between the naval forces of the People’s Republic of China (PRC) and the Republic of Vietnam (South Vietnam) on Jan. 19, 1974 is one example. The two countries have been fighting for the Paracel Islands, a tiny, uninhabited archipelago located in the South China Sea, roughly 200 miles from the nearest Asian mainland coast, leaving many killed on both sides.

The most recent incident in the South China dispute, between China and the Philippines, sends a clear message to the claimant states that a more effective and durable dispute settlement procedure is urgently needed. The confrontation occurred in April 2012, when two Chinese surveillance vessels prevented the Philippine warship Gregorio del Pilar from capturing a group of Chinese fishermen in the Scarborough Shoal. The incident turned more complex when on April 14, 2012, the US and the Philippines held their joint annual exercise in Palawan, the Philippines.

By establishing a US military base in Darwin and given Washington’s “backing” for the claimant states, especially the Philippines, against the PRC, the US and Australia have deepened their involvement directly or indirectly in the conflict, making the region more vulnerable to war.

Since the Battle of the Paracel Islands in 1974, at least seven incidents or confrontations have taken place between the PRC and other claimant nations.

Moreover, the recent failure of the foreign ministerial meeting of ASEAN to release a joint communiqué, the first such failure in 45 years, indicates that the group’s member states are not united in approaching this dispute. If ASEAN cannot manage this dispute more carefully, it will face the risk of compromising its centrality, unity and peaceful principles stipulated in its Charter. The greatest potential danger of such a compromise will be the failure to establish the ASEAN Community in 2015.

Therefore, an effective peaceful and durable means of settling the disputes in the South China Sea must be designed. Before creating such a settlement mechanism we first must comprehend the root causes of the failure in resolving such disputes.

The most important of these is there is no automatic, independent and compulsory dispute settlement mechanism adjudicating the claims between sovereign states. Like the adversary procedure of the International Court of Justice, recourse to tribunal to settle disputes in the South China Sea, and therefore its binding decisions, as stipulated in Part XV Articles 279 – 296 of the United Nations Convention of the Law of the Sea (UNCLOS) 1982, must be agreed by the parties to the disputes.

The Declaration on the Conduct of the Parties in the South China Sea (DOC), which was signed by the governments of ASEAN and the PRC on Nov. 4, 2002 in Phnom Penh, and its guidelines adopted in Bali in 2011, do give hope to peacefully managing the disputes in the region. However, this document is merely political with no binding legal force. It only embodies the signatories’ political commitment to promoting peace, stability and peaceful resolution in the South China Sea.

The conflict in the South China Sea is actually a battle for fishing resources, crude oil and natural gas, especially those beneath the Spratly Islands. It is also a fight for strategic control over the core position in the region. In some cases, for example the Gulf War, such a battle triggered open military confrontation.

Therefore, without a strong, effective and permanent dispute settlement mechanism with a binding legal force, we can only manage, not settle, the disputes in the South China Sea. For this purpose, it is the time for the UN to reform the jurisdictional powers of the International Court of Justice and amend the dispute settlement provisions of the UNCLOS 1982.

The writer is a legal and policy analyst in the Cabinet Secretariat of Indonesia. The views expressed are his own.

http://www.thejakartapost.com/news/2012/07/28/open-war-south-china-sea.html

 

[ahfatzia]

Since the name Australia is mentioned twice in the article, is the writer trying to draw her into the disputes or are the Indonesians just always have fixations on anything Australia?

Otherwise the article is quite balance albeit no ground breaking new ideas.

 

[Srinivas]

Why there should be Bilateral diplomacy when the International maritime law states clearly China is eying others resources and territory??

 

[Martian2]

Why there should be Bilateral diplomacy when the International maritime law states clearly China is eying others resources and territory??

How many times do I have to keep telling you Indians that international guideline UNCLOS (which the U.S. refuses to recognize) specifically states that it does not pre-empt pre-existing 2,000-year-old Chinese historical territories from the Han Dynasty in the South China Sea?

1. Stop calling it a law. It is not a law. The U.S. does not recognize UNCLOS.

2. Article 15 of UNCLOS specifically exempts pre-existing historical claims from its guidelines (see citation below). Stop lying to people.

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UNITED NATIONS CONVENTION ON THE LAW OF THE SEA

"Article15

Delimitation of the territorial sea between States with opposite or adjacent coasts

Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith."

 

[Srinivas]

How many times do I have keep telling you that international guideline UNCLOS (which the U.S. refuses to recognize) specifically states that it does not pre-empt pre-existing 2,000-year-old Chinese historical territories from the Han Dynasty in the South China Sea?

China is a signatory of that law. your Historic references are fake. Respect UN laws and you will gain friends around you otherwise it will be difficult situation for everybody around the SCS.

 

[Banglar Lathial]

Since the name Australia is mentioned twice in the article, is the writer trying to draw her into the disputes or are the Indonesians just always have fixations on anything Australia?

Otherwise the article is quite balance albeit no ground breaking new ideas.

My question has got nothing to do with the article. You can ignore if you like. What is the meaning of your user ID? I see that one of the names of the person in your avatar is also part of your user ID. Is there any relation between those two things?

 

[Martian2]

China is a signatory of that law. your Historic references are fake. Respect UN laws and you will gain friends around you otherwise it will be difficult situation for everybody around the SCS.

China's agreement to UNCLOS is conditional. China has sent letters to the UN outlining its reservations.

China's agreement to UNCLOS is circumscribed by China's reservations. Otherwise, China will pull out of UNCLOS and join the United States in refusing to recognize it.

Your ridiculous claim of fake historical references is stupid Indian talk and not worthy of a response with citations.

 

[Srinivas]

China's agreement to UNCLOS is conditional. China has sent letters to the UN outlining its reservations.

China's agreement to UNCLOS is circumscribed by China's reservations. Otherwise, China will pull out of UNCLOS and join the United States in refusing to recognize it.

Your ridiculous claim of fake historical references is stupid Indian talk and not worthy of a response with citations.

Tell CCP to pull out of UNCLOS then talk in this thread. As long as you are a signatory you are bound to it. don't be stupid by imitating US.

 

[Martian2]

Tell CCP to pull out of UNCLOS then talk in this thread. As long as you are a signatory you are bound to it. don't be stupid by imitating US.

This is my last reply. I'm getting tired of your stupidity.

Article 15 of UNCLOS exempts China's 2,000-year-old Han Dynasty discovery and claim of the South China Sea islands and maritime territories. Therefore, UNCLOS does not apply.

If UNCLOS annoys China, China will pull out and join the U.S. in refusing to recognize it.

Under either scenario, UNCLOS does not apply. Can an Indian comprehend such straightforward logic?

 

[ahfatzia]

My question has got nothing to do with the article. You can ignore if you like. What is the meaning of your user ID? I see that one of the names of the person in your avatar is also part of your user ID. Is there any relation between those two things?

That's actually my Chinese nick name 阿發仔 which is same as the movie star in my avatar. Of course we're both are grown now so the last character 仔 (a kid) is no longer used. My nephew call me 阿發叔 where the last character means uncle, just to show how Chinese language works in this case- very simple except the writings.

 

[Srinivas]

This is my last reply. I'm getting tired of your stupidity.

Article 15 of UNCLOS exempts China's 2,000-year-old Han Dynasty discovery and claim of the South China Sea islands and maritime territories. Therefore, UNCLOS does not apply.

If UNCLOS annoys China, China will pull out and join the U.S. in refusing to recognize it.

Under either scenario, UNCLOS does not apply. Can an Indian comprehend such straightforward logic?

Don't live in fools paradise go through the below links

China: Unclos not legal basis to resolve sea row | Sun.Star

"The UN Convention on the Law of the Sea is not the legal basis to determine the territorial sovereignty of the Huangyan Island and cannot change the fact that the island belongs to China," Hong said, referring to the UN convention that provided for the 200-nautical mile Exclusive Economic Zone (EEZ) that the Philippines is proposing to be used to resolve the territorial sovereignty issue of the shoal.

No where Chinese official response claims the UNCLOS excludes so called fake Han dynasty discoveries.


Here is another link

Unclos experts say China

Unclos experts say China’s sea claims hold no water



Two international experts said yesterday that China’s extensive nine-dash line claim on virtually the entire West Philippine Sea — which Beijing anchors on history — lacked merit under modern international laws.
But rival claimants like the Philippines may find it tough to bring the long-hanging territorial disputes to international arbitration because of the usually long time it takes to resolve such rifts and the need for China’s approval before any case could be considered for arbitration, the experts said.
With the Association of Southeast Asian Nations (Asean) unable to effectively help bring about a resolution because of its policy of deciding by consensus — which empowers just one of its 10 member-countries to block any proposed solution — the best option for now may be for bilateral or multilateral negotiations or shelving the conflicts to allow joint development of contested areas, the experts explained.
Asked to assess China’s nine-dash line territorial claim, University of Chicago Law School Prof. Tom Ginsburg, who specializes in International Law and Political Science, said Beijing’s claim did not hold much merit under current international laws.
A recent Chinese move to establish a new city called Sansha under its southern Hainan province to politically administer China’s claimed territories in the West Philippine Sea or South China Sea was a sort of an acknowledgement of the inadequacy of its nine-dash claim.
“It doesn’t have much merit from the point of view of the modern international law of the sea. I don’t think you’d find a modern international

lawyer who would say it’s compatible with the general understandings of the law of the sea,” Ginsburg told reporters on the sidelines of the Angara Center for Law and Economics Forum Friday.
China’s recent move to bring all its claimed South China Sea areas under the ambit of the recently established “Sansha City” was “an internal recognition that the nine-dash line on its own was not enough to make a viable claim,” Ginsburg said.
“If you do have a populated territory, then the maritime baselines can be calculated from that place. Extending populated areas in the South China Sea is an effective strategy from the law of the sea,” he added.
Top arbitration lawyer Yas Banifatemi, of the Paris-based Shearman & Streling said China’s historical basis for its huge territorial claims is a throw-back in time that could no longer be used and cited under modern-day laws, where the international community subscribes to and uphold.
Asked if China’s historical basis for its claims would hold water, Banifatemi replied: “No, I don’t think so. It was something that was done in certain circumstances and certain people in different context and history and economic context and that’s over. They have to take international law as it exists and to achieve something that is compatible with the principles of international law that exists today.”
China, Banifatemi said, “should abide by the United Nations Convention on the Law of the Sea (Unclos) definitely because China is covered by the provisions of the convention.”
Benifatemi was referring to the 1982 treaty that bestows coastal states, like the Philippines, the right to manage, develop and exploit resources in areas covered by its exclusive economic zone (EEZ).
It is signed by the Philippines, China and 162 other states.
The West Philippine Sea — a strategic and resource-rich waterway where a bulk of the world’s trade pass — had been a source of conflict among competing claimants such as four Asean members — Philippines, Vietnam, Malaysia, Brunei — and China and Taiwan. Other Asean members are Singapore, Thailand, Indonesia, Cambodia, Laos and Myanmar.
The South China Sea is dotted with islands, reefs, cays, shoals and rock formations and is believed to be rich in natural gas and oil deposits.
Analysts feared that the competing claims could spark a military conflict in the region.
In the latest flare-out between Manila and Beijing, the two Asian neighbors had been engaged in a standoff from April to June this year when Chinese vessels intruded into a shoal called Bajo de Masinloc or Scarborough, which Philippine officials say is part of its territory.
Vietnam likewise protested what it calls increasing Chinese aggression in the resource-rich waters. Beijing recently tendered bids for several gas and oil exploration areas within Hanoi’s waters.
Further complicating the situation is China’s recent establishment of Sansha City - a move protested by Vietnam, the Philippines and Malaysia.
Although experts say a major war in the South China Sea is not likely, they have not ruled out accidental and limited armed skirmishes and have urged countries to use diplomatic means to resolve their conflicting claims.
The United States, which has been reasserting its role as an Asia-Pacific power, has declared that the peaceful resolution and freedom of navigation in the waters is in its national interest

 

[ahfatzia]

China's agreement to UNCLOS is conditional. China has sent letters to the UN outlining its reservations.

China's agreement to UNCLOS is circumscribed by China's reservations. Otherwise, China will pull out of UNCLOS and join the United States in refusing to recognize it.

Your ridiculous claim of fake historical references is stupid Indian talk and not worthy of a response with citations.

Both China and the Philippines have a provision when they ratified the UNCLOS and that's the law doesn't bind them when it comes to territorial disputes.

 

[Martian2]

At Indian, no one cares what you guys think. You are a long way from the Indian Ocean.

 

[SpiritHS]

This is my last reply. I'm getting tired of your stupidity.

Article 15 of UNCLOS exempts China's 2,000-year-old Han Dynasty discovery and claim of the South China Sea islands and maritime territories. Therefore, UNCLOS does not apply.

If UNCLOS annoys China, China will pull out and join the U.S. in refusing to recognize it.

Under either scenario, UNCLOS does not apply. Can an Indian comprehend such straightforward logic?

the neighboring countries of China have a long history over 2,000 years of Chinese, they do not BIG mouth like the Chinese , because they are not inferior to their history.
Qin Shihuang was burning books, killing students ... why Chinese still keep the history?
You have a history of fraud ! Chinese history is the Civil War and the invasion, I can not understand why the Chinese people feel proud!
ancient Chinese history, bring them to international courts of law of the sea! why only blatant?

 

[Martian2]

the neighboring countries of China have a long history over 2,000 years of Chinese, they do not BIG mouth like the Chinese , because they are not inferior to their history.
Qin Shihuang was burning books, killing students ... why Chinese still keep the history?
You have a history of fraud ! Chinese history is the Civil War and the invasion, I can not understand why the Chinese people feel proud!
ancient Chinese history, bring them to international courts of law of the sea! why only blatant?

Nope. I'm not going to rehash all of my posts with reputable citations from other threads.

The French oil company ELF discovered a 15th century Chinese galleon shipwreck off the coast of Borneo. I have asked you Vietnamese to show comparable physical proof to back up your claim of traversing the South China Sea. You have failed to provide a reputable citation for a SINGLE ancient Vietnamese shipwreck in the South China Sea.

The evidence proves China has discovered, claimed, and sailed the South China Sea for 2,000 years. There is no physical proof at all for a comparable claim by Vietnam. You Vietnamese are trespassers.