The international-law Irony of U.S. Provocations in South China Sea

[jhungary]

I used the Alaskan transit to refute you claim that US interpret "innocent passage" as challenge to sovereignty. Because US perceived and claimed the transit to be "innocent passage".

China navy transit Alaskan territorial water.
US said that it is "innocent passage" and therefore it is ok.
US still called the area as US territorial water.
ergo, US do not consider "innocent passage" as a challenge to sovereignty.

South China Sea FONOP 2.0: A Step in the Right Direction | Asia Maritime Transparency Initiative

In the wake of the previous Freedom of Navigation Operation (FONOP), the administration’s top concern appeared to be to downplay the transit in order to prevent upsetting Beijing more than necessary. As a result, no U.S. officials would speak on the record about the operation for days, despite extensive coverage in every major media outlet. This left the door open for unattributed statements and speculation to fill the gap. As should have been expected, the result was significant confusion about what exactly the Lassen was objecting to with its FONOP. In reality, it took nearly two months before a U.S. official fully and publicly explained the operation and its intentions.

By contrast, the Department of Defense was ready with a statement on the Curtis Wilbur’s FONOP within hours. Not only did the Pentagon take control of the messaging so it could not spin out of control, as happened following the Lassen’s operation, but it did so with relative clarity. Where did the operation take place? “Within 12 nautical miles of Triton Island.” What did the destroyer do? “Transited in innocent passage.” What excessive maritime claim was it contesting? “Policies [of China, Taiwan, and Vietnam] that require prior permission or notification of transit within territorial seas.”​

Reading from the statements from office of the secretary of defense, it is clear that what US challenge/contest is the process of prior permission or notification. You are adding all sorts of extra thing to the US official statement.

And in your answer to Zsari, you said I use the Chinese Navy Alaskan transit as example of "innocent passage".

I think I need to make a clarification on that.

I use the Alaskan transit as example because US defense official made a statement calling it "innocent passage" (Chinese Warships Made ‘Innocent Passage’ Through U.S. Territorial Waters off Alaska - USNI News).

And because Chinese Navy did not make prior notification to US, some western media are saying that China is engaging in double standard since that is China requirement of "innocent passage".

In fact China is using "transit passage" when transiting Alaskan territorial water, not "innocent passage" as claimed by the US.

https://en.wikipedia.org/wiki/Transit_passage

Transit passage is a concept of the Law of the Sea which allows a vessel or aircraft the freedom of navigation or overflight solely for the purpose of continuous and expeditious transit of a strait between one part of the high seas or exclusive economic zone and another. The requirement of continuous and expeditious transit does not preclude passage through the strait for the purpose of entering, leaving or returning from a state bordering the strait, subject to the conditions of entry to that state.​

Oh my.....

Innocent Passage does not matter where or when it happened, it matter HOW it happened.

Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law

Now, knowing what is Innocent passage. Ask yourselves these question, set aside all the Bering Strait, International Water.

1.) Did China did anything other than transit thru the Alaskan Water, without stopping, without any agenda?

China did nothing, in fact, it enter Alaskan Water with the sole purpose to transit thru the are and go to another area. It does not stop, it does not block the US waterway, it does not launch aircraft, it does not deploy sonar buoy.

2.) What did China do BEFORE passing into Alaskan Water?

NOTHING. China did not say this was a protest, they did not even notified the US Authority. Which is conform to what Innocent Passage should be.

Now, we put international water and the Bering Strait into the equation.

China passing thru Alaskan Water in order to access the Bering Strait, which is an International waterway which connect one side with Attu, Alaska and the other side with Kamchatka, Russia. The Strait, half of its lies in Russian Water, and the half of it, surprise, surprise, lies in US Alaskan Water.

Now, for the purpose of transiting thru Bering Strait, the Chinese Warship have to enter US water thru Attu, to be able to sail into the mouth of Bering Strait and come out in Russian Territorial Water. Now, under international law, the PLAN Ship cannot be stopped in Attu within US water because that was their intention to access the Bering Strait, which China, along with ANY COUNTRY IN THIS WORLD, have the right to access, the US Navy can only stop the PLAN ship from passing thru Attu is by saying Chinese Ship is a threat of US national security (Word in Green) or of any hindrance (Word in Blue) or shooting at other shipping (Word in Red).

Since China passing thru the International Waterway is allowed (Crossing the Bering Strait) How can US protest this? And Since China did not stop (Hindrance) nor committed any threatened gesture like launching an aircraft (security) or shooting at other people (peace) there are NO OTHER OPTION BUT TO GRANT THE CHINESE INNOCENT PASSAGE

On the other hand, even if, for argument sake, I conceded that Triton Island is indeed Chinese territories, Innocent Passage cannot be given. Because....Just ask the same question to yourselves.

1.) Did US ship pass thru the Triton Island without stopping or without Agenda?

They did, they stopped and they were actually maintaining a two way communication toward each other.

2.) What did US do before passing thru the Triton island.

They did warn ahead of time that they were to circumventing the area in protest of the claimant, any claimant.

Which mean, beside US ship passing thru the area peacefully, they were hindering, as well as presenting a security threat. Which mean even if Triton Island is Chinese territories for argument sake, they were not passing thru innocently.

Which couple to the fact that they don't believe the Triton island were in fact Chinese territorial, which completely negate the innocent part of innocent passage.

You acted exactly as i expected.
My friends and I have been playing soccer every Saturday afternoon for 20 yrs at Tasker park Canterbury. We will start at 5pm and you are invited to come. You should not be worried as we are all law law abiding citizen, plus lots of people from HK playing with us too. That will once for all solve it, right?


Hey just did, no one answering.

Called 0431322132 for the second time,where are you man?

All good bro, by the way, my phones were on vibrate.

 

[JSCh]

You have a serious reading comprehension problem, and I do not mean linguistically but in concepts and following a debate.

Alaska is an ESTABLISHED territory of the US, and by centuries of conventions and laws, there are ACKNOWLEDGED boundaries extending into the seas that also made portions of the seas US territory. Any passage thru this territorial water would be either 'innocent' or 'hostile', depending on actions.

Those islands in the SCS that were created by China DO NOT have the equivalent support as that of Alaska. That means Chinese claims about territorial waters can be challenged, not just in principle but in physicality by anyone.

Ex 1: Say a man own a house and it is registered with the government and the bank. Not only that, it acknowledged by the neighbors as a SOVEREIGN property. If you get on that property, ANYONE in his family can order you to leave, even though only the man is the legal owner of said house.

Ex 2: Say a man stake out a parcel in a field. As a parcel, it has some demarcations resembling that of a property, but essentially, it was just something the man drew in the land. No one challenges his claim but then everyone know there is no legal foundation for that claim. The reason no one enter his so-called 'property' is simply because they see no value in challenging him. But if someone more powerful than him can take that parcel away from him, there is nothing the man can do. He cannot petition the government for help. He cannot plead for sympathy from the neighbors.

Alaska is example 1.

The SCS is example 2.

The Triton island is in Paracel island, not Spratly.

Once again,

South China Sea FONOP 2.0: A Step in the Right Direction | Asia Maritime Transparency Initiative

... Con't from the quote of the same article in post 264

Equally important is that the planning of the recent FONOP seems to have been undertaken with the legal clarity and depoliticized nature typical of the Freedom of Navigation Program. Triton’s status as a legal rock or island (most likely the former) under international law is clear—it is above water at high tide and there are no nearby features whose maritime entitlements could complicate the undertaking or meaning of a FONOP. Subi Reef, by contrast, is a submerged feature that lies within 12 nautical miles of an unoccupied rock, which creates legal ambiguity about whether or not it bumps out the territorial sea of that rock and whether there is a legal requirement for innocent passage within 12 nautical miles of it.

The difference in clarity between the two operations is evident in the official explanations of their purposes. Compare the language of the Pentagon statement regarding the Curtis Wilbur’s transit to Defense Secretary Ashton Carter’s explanation of the Lassen’s operation:

Given the factual uncertainty, we conducted the FONOP in a manner that is lawful under all possible scenarios to preserve U.S. options should the factual ambiguities be resolved, disputes settled, and clarity on maritime claims reached. The specific excessive maritime claims challenged in this case are less important than the need to demonstrate that countries cannot restrict navigational rights and freedoms around islands and reclaimed features contrary to international law as reflected in the LOS Convention.​

Whether China claim could or could not be challenged is not relevant, since the statements from the office of the secretary of defense clearly stated that US is not challenging it.

This operation was about challenging excessive maritime claims that restrict the rights and freedoms of the United States and other, not about territorial claims to land features. The United States takes no position on competing sovereignty claims between the parties to naturally-formed land features in the South China Sea. The United State does take a strong position on protecting the rights, freedoms, and lawful uses of the sea and airspace guaranteed to all countries, and that all maritime claims must comply with international law.​

Oh my.....

Innocent Passage does not matter where or when it happened, it matter HOW it happened.

.....The rest of the giberish deleted.​

https://en.wikipedia.org/wiki/Innocent_passage

Innocent passage is a concept in law of the sea which allows for a vessel to pass through the territorial waters of another state subject to certain restrictions. The UN Convention on the Law of the Sea defines innocent passage as:

Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law.[1]​

See the big red letter?

It say territorial water.

That's right, Innocent passage apply ONLY to territorial water.

You seem to have the habit of interpreting thing by your own whim, with total disregard of the fact on the ground. Amazing!!

 

[CAPRICORN-88]

 

[jhungary]

The Triton island is in Paracel island, not Spratly.

Once again,

South China Sea FONOP 2.0: A Step in the Right Direction | Asia Maritime Transparency Initiative

... Con't from the quote of the same article in post 264

Equally important is that the planning of the recent FONOP seems to have been undertaken with the legal clarity and depoliticized nature typical of the Freedom of Navigation Program. Triton’s status as a legal rock or island (most likely the former) under international law is clear—it is above water at high tide and there are no nearby features whose maritime entitlements could complicate the undertaking or meaning of a FONOP. Subi Reef, by contrast, is a submerged feature that lies within 12 nautical miles of an unoccupied rock, which creates legal ambiguity about whether or not it bumps out the territorial sea of that rock and whether there is a legal requirement for innocent passage within 12 nautical miles of it.

The difference in clarity between the two operations is evident in the official explanations of their purposes. Compare the language of the Pentagon statement regarding the Curtis Wilbur’s transit to Defense Secretary Ashton Carter’s explanation of the Lassen’s operation:

Given the factual uncertainty, we conducted the FONOP in a manner that is lawful under all possible scenarios to preserve U.S. options should the factual ambiguities be resolved, disputes settled, and clarity on maritime claims reached. The specific excessive maritime claims challenged in this case are less important than the need to demonstrate that countries cannot restrict navigational rights and freedoms around islands and reclaimed features contrary to international law as reflected in the LOS Convention.​

Whether China claim could or could not be challenged is not relevant, since the statements from the office of the secretary of defense clearly stated that US is not challenging it.

This operation was about challenging excessive maritime claims that restrict the rights and freedoms of the United States and other, not about territorial claims to land features. The United States takes no position on competing sovereignty claims between the parties to naturally-formed land features in the South China Sea. The United State does take a strong position on protecting the rights, freedoms, and lawful uses of the sea and airspace guaranteed to all countries, and that all maritime claims must comply with international law.​

https://en.wikipedia.org/wiki/Innocent_passage

Innocent passage is a concept in law of the sea which allows for a vessel to pass through the territorial waters of another state subject to certain restrictions. The UN Convention on the Law of the Sea defines innocent passage as:

Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law.[1]​

See the big red letter?

It say territorial water.

That's right, Innocent passage apply ONLY to territorial water.

You seem to have the habit of interpreting thing by your own whim, with total disregard of the fact on the ground. Amazing!!

Dude, you need to have your eye check.......

Already said, innocent passage does NOT matter where or when but how. Being in International Water, Territorial Water, or Contagious water does not alter the definition of Innocent Passage. It was HOW THE COUNTRY'S CONDUCT during the passage that counts.

Innocent passage can indeed happened during an international transit, just no coastal state would have control of it, hence no argument and basically, every shipping passing thru any international water is indeed passing thru innocently. If your shipping weren't passing thru innocently thru an international waterway (ie not in a peaceful manner, hindering other traffic, or present as a security risk), the country where your ship is registered will still be hold responsible, but this part of the law is another category, and people like you can't understand this, sure as hell you won't understand that.

Also, In my last post, I have already assumed the triton island was indeed Chinese Territorial Water for argument sake let's recap what I wrote.

On the other hand, even if, for argument sake, I conceded that Triton Island is indeed Chinese territories, Innocent Passage cannot be given. Because....Just ask the same question to yourselves.

1.) Did US ship pass thru the Triton Island without stopping or without Agenda?

They did, they stopped and they were actually maintaining a two way communication toward each other.

2.) What did US do before passing thru the Triton island.

They did warn ahead of time that they were to circumventing the area in protest of the claimant, any claimant.

Which mean, beside US ship passing thru the area peacefully, they were hindering, as well as presenting a security threat. Which mean even if Triton Island is Chinese territories for argument sake, they were not passing thru innocently.

Which couple to the fact that they don't believe the Triton island were in fact Chinese territorial, which completely negate the innocent part of innocent passage.

Dude, it IS NOT AN INNOCENT PASSAGE as long as the US have stopped and announced it was a challenge before the voyage was set, it can be outside Hainan or Qingtao and it WOULD STILL NOT BE AN INNOCENT PASSAGE.

That's the law.

Geez, just exactly how thick were you?

 

[JSCh]

Dude, you need to have your eye check.......

Already said, innocent passage does NOT matter where or when but how. Being in International Water, Territorial Water, or Contagious water does not alter the definition of Innocent Passage. It was HOW THE COUNTRY'S CONDUCT during the passage that counts.

Innocent passage can indeed happened during an international transit, just no coastal state would have control of it, hence no argument and basically, every shipping passing thru any international water is indeed passing thru innocently. If your shipping weren't passing thru innocently thru an international waterway (ie not in a peaceful manner, hindering other traffic, or present as a security risk), the country where your ship is registered will still be hold responsible, but this part of the law is another category, and people like you can't understand this, sure as hell you won't understand that.

There you go again.

"Innocent passage" is a legal term, not an ordinary english phrase.

The definition of "innocent passage" said territorial water.

You cannot just add things anyway you like.

Also, In my last post, I have already assumed the triton island was indeed Chinese Territorial Water for argument sake let's recap what I wrote.



Dude, it IS NOT AN INNOCENT PASSAGE as long as the US have stopped and announced it was a challenge before the voyage was set, it can be outside Hainan or Qingtao and it WOULD STILL NOT BE AN INNOCENT PASSAGE.

That's the law.

Geez, just exactly how thick were you?

Once again(I am really getting tire of this),

Full statement of US Dept. Defense on USS Curtis Wilbur’s FONOP past Triton Island | South China Sea

...
This operation challenged attempts by the three claimants, China, Taiwan and Vietnam, to restrict navigation rights and freedoms around the features they claim by policies that require prior permission or notification of transit within territorial seas. The excessive claims regarding Triton Island are inconsistent with international law as reflected in the Law of the Sea Convention.

During the operation, the USS Curtis Wilbur, (DDG 54) transited in innocent passage within 12 nautical miles of Triton Island.
...
No claimants were notified prior to the transit, which is consistent with our normal process and international law.
​

I recap the points in red

• US challenged policies that require prior notification
• The transit is innocent passage
• No claimants were notified

they are clearly stated in the statement.

And you keep saying about intent, there is nothing in UNCLOS that is related to intent. And even if somehow the perceived intention make the passage not innocent, the US gov't has released a statement clearly stated "innocent passage", that mean it clarify US gov't intention to be innocent .

BTW, you have any idea what kind of legal and political headache it would have created, if US gov't stated that the passage is not innocent?

 

[dichoi]

.
Business| Fri Nov 6, 2015 2:13am EST

'Hope to see you again': China warship to U.S. destroyer after South China Sea patrol

ONBOARD THE USS THEODORE ROOSEVELT, SOUTH CHINA SEA | BY YEGANEH TORBATI

http://www.reuters.com/article/us-southchinasea-usa-warship-idUSKCN0SV05420151106

 

[jhungary]

There you go again.

"Innocent passage" is a legal term, not an ordinary english phrase.

The definition of "innocent passage" said territorial water.

You cannot just add things anyway you like.


Once again(I am really getting tire of this),

Full statement of US Dept. Defense on USS Curtis Wilbur’s FONOP past Triton Island | South China Sea

...
This operation challenged attempts by the three claimants, China, Taiwan and Vietnam, to restrict navigation rights and freedoms around the features they claim by policies that require prior permission or notification of transit within territorial seas. The excessive claims regarding Triton Island are inconsistent with international law as reflected in the Law of the Sea Convention.

During the operation, the USS Curtis Wilbur, (DDG 54) transited in innocent passage within 12 nautical miles of Triton Island.
...
No claimants were notified prior to the transit, which is consistent with our normal process and international law.
​

I recap the points in red

• US challenged policies that require prior notification
• The transit is innocent passage
• No claimants were notified

they are clearly stated in the statement.

And you keep saying about intent, there is nothing in UNCLOS that is related to intent. And even if somehow the perceived intention make the passage not innocent, the US gov't has released a statement clearly stated "innocent passage", that mean it clarify US gov't intention to be innocent .

BTW, you have any idea what kind of legal and political headache it would have created, if US gov't stated that the passage is not innocent?

Quite honestly sick of arguing with you, you ara going and going around in a circle.

SO I am gonna say this one LAST TIME. Get it or not is up to you

Innocent Passage is all about intention, if I intent to break peace, security or good order of your coast, that cannot be said as an innocent passage. The US was protesting the right of Innocent Passage, not conducting an innocent passage itself.

Innocent Passage can Happen in Territorial Water, Contagious Water, Exclusion Economic Zone and international water.

Have explain an all aspect of the law, reference given, so again, take it or not is up to you. I just hate to type the same thing all the time, it's a waste of time and resource.

 

[JSCh]

Quite honestly sick of arguing with you, you ara going and going around in a circle.

SO I am gonna say this one LAST TIME. Get it or not is up to you

Innocent Passage is all about intention, if I intent to break peace, security or good order of your coast, that cannot be said as an innocent passage. The US was protesting the right of Innocent Passage, not conducting an innocent passage itself.

Innocent Passage can Happen in Territorial Water, Contagious Water, Exclusion Economic Zone and international water.

Have explain an all aspect of the law, reference given, so again, take it or not is up to you. I just hate to type the same thing all the time, it's a waste of time and resource.

Man, you are stubborn.

That definition is your definition, could not be found anywhere else.

Who do you think you are? You can used that definition for your own private pleasure, but don't expect other to accept your personal interpretation that is not ground in reality.

 

[jhungary]

Man, you are stubborn.

That definition is your definition, could not be found anywhere else.

Who do you think you are? You can used that definition for your own private pleasure, but don't expect other to accept your personal interpretation that is not ground in reality.

man, nobody actually care what you think.

yeah, this is not an international definition of innocent passage, people can do whatever the hell they want in high sea without any responsibility and innocent passage only happens in territorial water. Happy?

Wonder what kind of education they are doing in fascist china now. if they manage to turn out people like this. Uncog your brain mate.

 

[JSCh]

man, nobody actually care what you think.

yeah, this is not an international definition of innocent passage, people can do whatever the hell they want in high sea without any responsibility and innocent passage only happens in territorial water. Happy?

Wonder what kind of education they are doing in fascist china now. if they manage to turn out people like this. Uncog your brain mate.

"innocent passage" is a specific legal term invented for an international agreement. That a great many nations signed and rectified. With specific term and definition.

And you want to just anyhow interpret it anyway you like, like I say, don't expect other to accept it because you said so.

And also,

the office of secretary of defense's statement specifically said the operation around Triton island is "innocent passage"

During the operation, the USS Curtis Wilbur, (DDG 54) transited in innocent passage within 12 nautical miles of Triton Island.

And you say it is not.

Don't expect other to accept your word over the US gov't.

 

[jhungary]

"innocent passage" is a specific legal term invented for an international agreement. That a great many nations signed and rectified. With specific term and definition.

And you want to just anyhow interpret it anyway you like, like I say, don't expect other to accept it because you said so.

And also,

the office of secretary of defense's statement specifically said the operation around Triton island is "innocent passage"

And you say it is not.

Don't expect other to accept your word over the US gov't.

Whatever, turning around and around and around and around like a energizer bunny would not make your point more valid.

I quoted UN Law, UN definition and case law, you quote some news story, but hey, if it make you happier. I don't mind.

 

[Tiqiu]

.
Business| Fri Nov 6, 2015 2:13am EST

'Hope to see you again': China warship to U.S. destroyer after South China Sea patrol

ONBOARD THE USS THEODORE ROOSEVELT, SOUTH CHINA SEA | BY YEGANEH TORBATI

'Hope to see you again': China warship to U.S. destroyer after South China Sea patrol| Reuters

Very interesting...

I think in long rung this right of innocent passage will work on China's side once China has a navy fleet that sails around the global to protect its interest. That is why insofar China has acted carefully in its response to these incidents in SCS. For the sake of argument, even China is unable to make the US stop doing this in SCS, these precedents can be used in the future should Chinese navy choose to sail around like what the US has been doing.

What China needs to do now is to pace up its navy build up to another higher level to finally match the US. As China now is the NO.1 foreign trade partner for 220 countries including the US, China's interest lies for beyond the SCS.

In the jungle the big 5 sometimes ate each other, but their instinct also told them to uphold the rules favoring them since the beginning.

 

[gambit]

The Triton island is in Paracel island, not Spratly.

And I was talking about general principles.

There is no comparison between the territorial waters off Alaska vs the claimed 'territorial' waters off any man-made island or island that have dubious territoriality.

 

[dichoi]

Very interesting...

I think in long rung this right of innocent passage will work on China's side once China has a navy fleet that sails around the global to protect its interest. That is why insofar China has acted carefully in its response to these incidents in SCS. For the sake of argument, even China is unable to make the US stop doing this in SCS, these precedents can be used in the future should Chinese navy choose to sail around like what the US has been doing.

What China needs to do now is to pace up its navy build up to another higher level to finally match the US. As China now is the NO.1 foreign trade partner for 220 countries including the US, China's interest lies for beyond the SCS.

In the jungle the big 5 sometimes ate each other, but their instinct also told them to uphold the rules favoring them since the beginning.

Yes. it is interesting, Chinese will see again and again US warships patroled in Paracel and in Spratly too.

 

[JSCh]

And I was talking about general principles.

There is no comparison between the territorial waters off Alaska vs the claimed 'territorial' waters off any man-made island or island that have dubious territoriality.

Once again (I wonder how many times I have to do this), from office of SoDef,

This operation was about challenging excessive maritime claims that restrict the rights and freedoms of the United States and other, not about territorial claims to land features. The United States takes no position on competing sovereignty claims between the parties to naturally-formed land features in the South China Sea. The United State does take a strong position on protecting the rights, freedoms, and lawful uses of the sea and airspace guaranteed to all countries, and that all maritime claims must comply with international law.
​

Triton island is a naturally formed land features that is entitled to territorial water, I do not think that is controversial. And territorial water is just territorial water, there isn't grade of territorial water under international law, and that is all that matter.