Taiwan Conducts Live Fire Drills on Spratlys, Angering Vietnam

[Aepsilons]

Why did the PRC declined to participate? Im not sure, but I suspect that they probably dont feel confident that they could win against the Philippines in this arbitration case. Otherwise, if the PRC has sufficient historical evidences and legal basis for their claims (like they always say), then why not settle it in the tribunal once and for all?

I've debated this with several PRC members already in the "China's Island and International Law" thread but I'll mention one thing here:

The naive PRC members get excited about the land reclamation work in the SCS. China's doing it at such a fast pace and on such a large scale that it amazes a lot of people. But little did they know that the PRC is doing the land reclamation with the Filipino's arbitration case in mind and is actually a sign of the PRC's desperation. Let me explain:

The ruling of the arbitration tribunal will be legally binding. But in 2006, China made a declaration relying on article 298 (under UNCLOS provisions) to affirm that they will not accept any arbitration.

But article 298 only applies to disputes surrounding EEZ, continental shelves and territorial water boundaries. However, most of the natural reefs or rocks that are currently in the possession of the PRC are totally submerged under water during high tide. And according to UNCLOS, such reefs cannot have any claims for any EEZs, continental shelves or any territorial water boundary. They must be fully emerged during high tide and must be able to sustain human habitation to have those water boundaries.

This means that the PRC cannot invoke article 298 to declare that they dont need to accept any arbitration.

So now, you can begin to see why they are desperately working on land reclamation. They want to turn those natural reefs and rocks into artificial Islands that doesnt fully submerge below water during high tide. Thus the PRC will claim that these "islands" now have EEZs, a continental shelf and can invoke article 298 to reject the Philippines' arbitration case.

And they are doing this at such a fast and large scale simply because the arbitration tribunal will be making their decision about the dispute's jurisdiction soon.

@Cossack25A1 @Ayan81, etc. you guys may want to give your input from a Filipino's perspective.



I'm not sure why VN didnt join the Philippines in the arbitration case but I suspect that they want to wait and see the initial outcome first. There are actually other avenues to settle the dispute such as taking it to the ICJ or ITLOS. The Philippines decided to go for the Arbitration Tribunal. If the tribunal decide that they do have jurisdiction over the dispute, I suspect that VN will go ahead and submit an arbitration case of their own. If the arbitration tribunal decide that they do not have jurisdiction over such dispute, then VN would probably explore the ICJ or ITLOS option. Hence, they will wait for this arbitration outcome first before they decide their option.

@Rechoice @Soryu @BoQ77, @Carlosa, @Viet, etc. you want to give your opinions?

China chose to decline because it does not recognize the Philippines' claim, as specified in the Note Verbale the Chinese Government passed onto the Philippines. Either case, if the International Court rules an arbitration in favor of the Philippines, there is no way that it can enforce it.

But from reading Chinese media , my guess is that the Chinese side puts greater emphasis on Chinese Domestic Law. If there is some conflict between Chinese Domestic Law and International Law, then the CPC will, of course, favor the Chinese Domestic Law. In the case of territorial sovereignty and UNCLOS. Domestic Law Trumps International Law; this is the reason why the United States did not sign UNCLOS.

Plus, wasn't there a special clause China placed prior to signing UNCLOS? I think they clearly emphasized that they agree with UNCLOS and right of EEZs, so long as Chinese core territory is not violated.

 

[William Hung]

China chose to decline because it does not recognize the Philippines' claim, as specified in the Note Verbale the Chinese Government passed onto the Philippines.

Of course China doesnt recognise the Philippines'claim. China refused to participate based on the claim that the arbitration tribunal doesnt have jurisdiction over the dispute.

But from reading Chinese media , my guess is that the Chinese side puts greater emphasis on Chinese Domestic Law. If there is some conflict between Chinese Domestic Law and International Law, then the CPC will, of course, favor the Chinese Domestic Law.

Wrong! you have been reading C-Dragon and the fenqing here. No CCP officials would publicly say that the PRC puts more emphasis on domestic law over international law. They will want to say that their actions are in accordance to international laws.

In the case of territorial sovereignty and UNCLOS. Domestic Law Trumps International Law; this is the reason why the United States did not sign UNCLOS.

The PRC is signatory to UNCLOS, so they are bound by the laws of UNCLOS.

The PRC have never said they are not legally binded to UNCLOS. Nor did they say that their domestic law trumps the UNCLOS. You are mistaken here.

What the PRC said was that they still accept UNCLOS but they have made an additional declaration in 2006 under UNCLOS's provisions in article 298 and can thereby reject any arbitration. In other words, UNCLOS won't have any jurisdiction over China's water dispute.

You cannot compare the US to the PRC because the US never joined the UNCLOS.

Plus, wasn't there a special clause China placed prior to signing UNCLOS?

I've already mentioned this in my previous post. That 2006 declaration is this "special clause."

However, this special clause only covers disputes on EEZs, continental shelves and water territorial boundary. Those reefs do not have such boundaries and so the Philippines claim that the 2006 "special clause" doesnt cover this dispute. It will be up to the tribunal to decide this.

I think they clearly emphasized that they agree with UNCLOS and right of EEZs, so long as Chinese core territory is not violated.

But according to UNCLOS, those reefs in its natural state does not have any EEZs or any other water boundaries.

 

[Viet]

I'm not sure why VN didnt join the Philippines in the arbitration case but I suspect that they want to wait and see the initial outcome first. There are actually other avenues to settle the dispute such as taking it to the ICJ or ITLOS. The Philippines decided to go for the Arbitration Tribunal. If the tribunal decide that they do have jurisdiction over the dispute, I suspect that VN will go ahead and submit an arbitration case of their own. If the arbitration tribunal decide that they do not have jurisdiction over such dispute, then VN would probably explore the ICJ or ITLOS option. Hence, they will wait for this arbitration outcome first before they decide their option.

@Rechoice @Soryu @BoQ77, @Carlosa, @Viet, etc. you want to give your opinions?

VN government has completed the paperwork. we wait for the outcome of the PH case. Unless meanwhile China escalates the conflict, for example by redeploying the oil rig into our EEZ waters, we will go ahead to the court.

Vietnam Prepares Suit Against China in Spat Over Oil Rig - Bloomberg

 

[Rechoice]

I'm not sure why VN didnt join the Philippines in the arbitration case but I suspect that they want to wait and see the initial outcome first. There are actually other avenues to settle the dispute such as taking it to the ICJ or ITLOS. The Philippines decided to go for the Arbitration Tribunal. If the tribunal decide that they do have jurisdiction over the dispute, I suspect that VN will go ahead and submit an arbitration case of their own. If the arbitration tribunal decide that they do not have jurisdiction over such dispute, then VN would probably explore the ICJ or ITLOS option. Hence, they will wait for this arbitration outcome first before they decide their option.
@Rechoice @Soryu @BoQ77, @Carlosa, @Viet, etc. you want to give your opinions?

You are right. WE do not play all our cart in this moment, bro. We should go to arbitration in reasonable time and nature of ours certain categories of disputes would be not overlap with the Philippine's case.

 

[Carlosa]

You are right. WE do not play all our cart in this moment, bro. We should go to arbitration in reasonable time and nature of ours certain categories of disputes would be not overlap with the Philippine's case.

VN needs to play for time right now. If VN goes to arbitration, China will be fuming and things will escalate. That's not in the interest of VN at the moment.

By the way, I'd love to see VN in the tribunal eventually.

 

[Carlosa]

Of course China doesnt recognise the Philippines'claim. China refused to participate based on the claim that the arbitration tribunal doesnt have jurisdiction over the dispute.



Wrong! you have been reading C-Dragon and the fenqing here. No CCP officials would publicly say that the PRC puts more emphasis on domestic law over international law. They will want to say that their actions are in accordance to international laws.



The PRC is signatory to UNCLOS, so they are bound by the laws of UNCLOS.

The PRC have never said they are not legally binded to UNCLOS. Nor did they say that their domestic law trumps the UNCLOS. You are mistaken here.

What the PRC said was that they still accept UNCLOS but they have made an additional declaration in 2006 under UNCLOS's provisions in article 298 and can thereby reject any arbitration. In other words, UNCLOS won't have any jurisdiction over China's water dispute.

You cannot compare the US to the PRC because the US never joined the UNCLOS.



I've already mentioned this in my previous post. That 2006 declaration is this "special clause."

However, this special clause only covers disputes on EEZs, continental shelves and water territorial boundary. Those reefs do not have such boundaries and so the Philippines claim that the 2006 "special clause" doesnt cover this dispute. It will be up to the tribunal to decide this.



But according to UNCLOS, those reefs in its natural state does not have any EEZs or any other water boundaries.

Reefs are underwater at high tide, so they don't have a right to anything. Artificial building on a reef does not change the status either. They can build a 100 square km if they want, it does not change the status.

By the way, Spain has maps that show that Scarborough shoal was part of the Spanish colony of Philippines. Philly does not have those maps, but Spain does andI Spain already gave them to Phily and that will sink the chinese case since it shows 600 years of continued administration, Spanish, USA and Phily. That's very bad news for China.

 

[Rechoice]

VN needs to play for time right now. If VN goes to arbitration, China will be fuming and things will escalate. That's not in the interest of VN at the moment.

By the way, I'd love to see VN in the tribunal eventually.

I think that the SCS dispute is small game in the big game china has been began to do here in East and South East Asia . In the short term China would like to set up her domination in area . In the long term china would like to follow concurrence with USA to rule all the world.

The aggressive activities of China recently with intention is that, for testing determination of people in the region and real intention of USA, when USA is busy in Middle East. Briefly, China would like to apply jungle law here.

What we can do in this moment ? when you are in Vietnam, you can know our proverb : biết địch biết ta, do know the rival and do know ourself.

Vietnam will go to UNCLOS arbitration, but not in this moment.

 

[Carlosa]

I think that the SCS dispute is small game in the big game china has been began to do here in East and South East Asia . In the short term China would like to set up her domination in area . In the long term china would like to follow concurrence with USA to rule all the world.

The aggressive activities of China recently with intention is that, for testing determination of people in the region and real intention of USA, when USA is busy in Middle East. Briefly, China would like to apply jungle law here.

What we can do in this moment ? when you are in Vietnam, you can know our proverb : biết địch biết ta, do know the rival and do know ourself.

Vietnam will go to UNCLOS arbitration, but not in this moment.

I think you are right. The chinese are greedy and the more they get, the more they want.

 

[William Hung]

You are right. WE do not play all our cart in this moment, bro. We should go to arbitration in reasonable time and nature of ours certain categories of disputes would be not overlap with the Philippine's case.

VN needs to play for time right now. If VN goes to arbitration, China will be fuming and things will escalate. That's not in the interest of VN at the moment.

By the way, I'd love to see VN in the tribunal eventually.

I used to think that the VCP was too scared to file a case. But from a legal perspective,
fear of a fuming China was probably not the reason.

From my perspective, VN is just waiting to see what the best option is. UNCLOS gives 4 options to settle a water dispute. The Philippines picked the third option. VN is waiting to see the outcome of this option. If this arbitral tribunal rejects the Philippines' case, VN will try one of the other 3 court or tribunals.

So, they don't want to join the Philippines'tribunal case now. Because if VN joined and the tribunal make a decision against the case, then the decision will be final and legally binding, which means that they can't go for the other 3 options. Doing it separately means that two different court or tribunal case can be used against China.

 

[Carlosa]

I used to think that the VCP was too scared to file a case. But from a legal perspective,
fear of a fuming China was probably not the reason.

From my perspective, VN is just waiting to see what the best option is. UNCLOS gives 4 options to settle a water dispute. The Philippines picked the third option. VN is waiting to see the outcome of this option. If this arbitral tribunal reject the case, VN will try one of the other 3 court or tribunals.

So, they don't want to join the Philippines'tribunal case now. Because if VN joined and the tribunal make a decision against the case, then the decision will be final and legally binding, which means that they can't go for the other 3 options. Doing it separately means that two different court or tribunal case can be used against China.

That also makes sense.

 

[William Hung]

Reefs are underwater at high tide, so they don't have a right to anything. Artificial building on a reef does not change the status either. They can build a 100 square km if they want, it does not change the status.

Correct. To put it more precisely, China only possesses 3 Islands in the Spratly and the other four are only reefs.

China depended on a special declaration they made to UNCLOS in 2006 to protect them from any arbitration.

That 2006 declaration was actually very clumsy. Basically, it is a special clause that says that China will not accept any arbitration on any disputes between EEZs, continental shelves and water territorial boundaries.

But under UNCLOS, reefs do not have any EEZs or water boundaries. And those other 3 Islands can only have a 22km water boundary around its shoreline. That means that their special clause may not protect them from this arbitration case.

My prediction: the tribunal may not accept that it has jurisdiction over the 3 Islands and the 22km water perimeter surrounding it. However, it will decide that it has jurisdiction over the other 4 reefs in China's possession.

This could mean that the tribunal may declare that only 3 Islands under PRC occupation are disputed territories. They may declare the rest of the water body as belonging to the Philippines' EEZ.

@kyle Chiang

 

[William Hung]

By the way, Spain has maps that show that Scarborough shoal was part of the Spanish colony of Philippines. Philly does not have those maps, but Spain does andI Spain already gave them to Phily and that will sink the chinese case since it shows 600 years of continued administration, Spanish, USA and Phily. That's very bad news for China.

Even worse for China is that if the arbitral tribunal accept jurisdiction over the dispute, China can't be there to defend its own case. I wouldn't be surprised if China changes its mind and ask the tribunal to allow China to participate.

 

[Carlosa]

Even worse for China is that if the arbitral tribunal accept jurisdiction over the dispute, China can't be there to defend its own case. I wouldn't be surprised if China changes its mind and ask the tribunal to allow China to participate.

That would be nice.

What 3 islands China has? I thought they were all reefs?

 

[Rechoice]

I used to think that the VCP was too scared to file a case. But from a legal perspective,
fear of a fuming China was probably not the reason.

From my perspective, VN is just waiting to see what the best option is. UNCLOS gives 4 options to settle a water dispute. The Philippines picked the third option. VN is waiting to see the outcome of this option. If this arbitral tribunal rejects the Philippines' case, VN will try one of the other 3 court or tribunals.

So, they don't want to join the Philippines'tribunal case now. Because if VN joined and the tribunal make a decision against the case, then the decision will be final and legally binding, which means that they can't go for the other 3 options. Doing it separately means that two different court or tribunal case can be used against China.

It is just what I said above briefly, we do not put our egg in to one bag with Philippine, we have chance to choice for our best.

 

[Carlosa]

Correct. To put it more precisely, China only possesses 3 Islands in the Spratly and the other four are only reefs.

China depended on a special declaration they made to UNCLOS in 2006 to protect them from any arbitration.

That 2006 declaration was actually very clumsy. Basically, it is a special clause that says that China will not accept any arbitration on any disputes between EEZs, continental shelves and water territorial boundaries.

But under UNCLOS, reefs do not have any EEZs or water boundaries. And those other 3 Islands can only have a 22km water boundary around its shoreline. That means that their special clause may not protect them from this arbitration case.

My prediction: the tribunal may not accept that it has jurisdiction over the 3 Islands and the 22km water perimeter surrounding it. However, it will decide that it has jurisdiction over the other 4 reefs in China's possession.

This could mean that the tribunal may declare that only 3 Islands under PRC occupation are disputed territories. They may declare the rest of the water body as belonging to the Philippines' EEZ.

@kyle Chiang

By the way, China doesn't have just 7 locations in Spratlys, its about double that. Many sources still keep talking about the original 7, but china has been encroaching in reefs here and there and now is a lot more.