China's SCS Strategy Thread

[Blackstone]

Jeff- agreed on artificial islands don't get 12 mile limit, and maybe not even 500 meters. Also agree US has the right to fly/sail patrols up to whatever limits international laws permit. I've never believed otherwise. Disagree on expost facto use of UNCLOS on sovereignty disputes that existed prior to creation of UNCLOS. It's a sharp and important point on what is just.

 

[plawolf]

I would suggest everyone go and read the UNCLOS itself. Read the history of UNCLOS I, II, and III.

Here is an excellent article explaining it in detail:

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Here's another summary from UNLAWOFTHESEA.ORG

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Here is the direct link to the UNCLOS on the UN Site:

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I have red these now and I believe both Brumby and SamuraiBlue (who have been posting about it on the South China Sea Strategy-Non-Chinese Nations Thread) are correct.

UNCLOS, to which China is a signatory, outlines a very detailed framework of dealing with these very issues to which all signatories have agreed.

It is very specific about historical context, and in the vast majority of cases, sets it aside in favor of this framework. In the very specific and narrow cases it is not set aside, I can not see that these SCS claims would qualify.

So, the nations signing UNCLOS have agreed, by treaty, to a very specific framework of considerations regarding what constitutes, among other things, islands that can claim a territorial surrounding ocean limit. They agree that these definitions will be what is used legally to determine what does and what does not apply.

...and guess what?

Nope. China very specifically opted out of the clauses that sets aside historical claims upon ratification.

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China

[Original: Chinese]

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:

In accordance with the decision of the Standing Committee of the Eighth National People's Congress of the People's Republic of China at its nineteenth session, the President of the People's Republic of China has hereby ratified the United Nations Convention on the Law of the Sea of 10 December 1982 and at the same time made the following statement:

1. In accordance with the provisions of the United Nations Convention on the Law of the Sea, the People's Republic of China shall enjoy sovereign rights and jurisdiction over an exclusive economic zone of 200 nautical miles and the continental shelf.

2. The People's Republic of China will effect, through consultations, the delimitation of the boundary of the maritime jurisdiction with the States with coasts opposite or adjacent to China respectively on the basis of international law and in accordance with the principle of equitability.

3. The People's Republic of China reaffirms its sovereignty over all its archipelagos and islands as listed in article 2 of the Law of the People's Republic of China on the territorial sea and the contiguous zone, which was promulgated on 25 February 1992.

4. The People's Republic of China reaffirms that the provisions of the United Nations Convention on the Law of the Sea concerning innocent passage through the territorial sea shall not prejudice the right of a coastal State to request, in accordance with its laws and regulations, a foreign State to obtain advance approval from or give prior notification to the coastal State for the passage of its warships through the territorial sea of the coastal State.

Declaration made after ratification (25 August 2006)

Declaration under article 298:

The Government of the People's Republic of China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention.

 

[Yvrch]

Using history as a valid reference point to stake a claim on sovereignty of SCS waters is really interesting. Is this Chinese version of American exceptionalism? Like Blitzo said US can't stop new Chinese bases in SCS without an actual firefight, dicing and slicing the meanings and wordings of any treaties would be just ineffectual protestations against Chinese heft. If US Congress starts talking about economic sanctions on China for SCS activities, then I's say US is serious. Drones and LCS are just pesky little flies that make buzz but meant squat.

 

[joshuatree]

In addition to Jeff Head's excellent suggestion, I would suggest also reading what respective States have made in their declarations. As plawolf highlighted, China signed on with the intent that certain historic claims will not be written off simply because of UNCLOS. And to be fair, one has to read what declarations of other States consist of because a few of them also interject exceptions to UNCLOS or their own interpretations. Was this the intent of UNCLOS? If UNCLOS was rigid and not allowing any declarations, would it have gotten as many signatories has it currently has? No doubt the US has yet to ratify because of concerns on certain elements within UNCLOS. However, it also makes the US look rather disingenuous when stressing on international norm but not officially subjecting itself to it.

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[advill]

If China decided to disregard some of the UNCLOS rulings and use Chinese history to support its claims, this is unfortunate as it is a prominent member of the UN & the Security Council. China use of "Strong Military/Naval Muscles" in its territorial claims, disregarding other small claimants emphasised its dictum of "Might is Right " - So stay off my newly claimed territory & its air space (South China Sea). More troubling events expected.

 

[Brumby]

Nope. China very specifically opted out of the clauses that sets aside historical claims upon ratification.

In my view that is simply disingenuous of China of taking the benefits and not the obligations. One of the driving force behind UNCLOS was the constant disputes arising between states driven by historic claims and UNCLOS recognised this as a problem to world peace and by general consensus dealt with it as embodied in the provisions. Whilst I acknowledge China's right as a sovereign nation to opt out, such action also undermines the very essence of the convention. It is like agreeing to an employment contract and accepting vacation days; salary and stock options whilst opting out on responsibilities and work hours. It is like having the cake and eating it.

 

[Brumby]

If China decided to disregard some of the UNCLOS rulings and use Chinese history to support its claims, this is unfortunate as it is a prominent member of the UN & the Security Council. China use of "Strong Military/Naval Muscles" in its territorial claims, disregarding other small claimants emphasised its dictum of "Might is Right " - So stay off my newly claimed territory & its air space (South China Sea). More troubling events expected.

The trouble is China is not even making out a case for its claim based on whatever nebulous historic reason(s). Personally, I don't believe China has the law nor facts on its side and so it is being evasive as a strategy. After all they are getting away with it. It just need to do a better job on the PR front.

 

[Blackstone]

In my view that is simply disingenuous of China of taking the benefits and not the obligations. One of the driving force behind UNCLOS was the constant disputes arising between states driven by historic claims and UNCLOS recognised this as a problem to world peace and by general consensus dealt with it as embodied in the provisions. Whilst I acknowledge China's right as a sovereign nation to opt out, such action also undermines the very essence of the convention. It is like agreeing to an employment contract and accepting vacation days; salary and stock options whilst opting out on responsibilities and work hours. It is like having the cake and eating it.

That's a too narrow and erroneous take on China embracing the benefits and rejecting the responsibilities. Opting out of specific sections of international law UPFRONT is common and completely acceptable in international affairs. China had specific problems with sections of UNCLOS, and instead of boycotting the international body, it signed on with reservations that were accepted by all treaty partners at the time. People could agree or disagree with China's actions, but no one, absolutely no one, can say China is breaking the letter of the law. As for your "very essence of the convention," what the hell is that? Who determines what it means? Is there only one correct answer, or are there multiple correct answers?

 

[balance]

An interesting article of what can happen in SCS. Most of the comments disagree with the author. Most of their disagreements are mostly about the author itself, not about his thought. It will be good to analyze the article itself rather than the author's position. In my opinion, the article itself is pretty realistic about what can happen in SCS.

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[Blackstone]

The trouble is China is not even making out a case for its claim based on whatever nebulous historic reason(s).

China is indeed making a case for itself in official statements and in domestic and international media. You may not like the information/propaganda from China ministries and officials, but a case they are most definitely making. Doing very well too, China is, from a goal oriented perspective.

Personally, I don't believe China has the law nor facts on its side and so it is being evasive as a strategy. After all they are getting away with it. It just need to do a better job on the PR front.

To say China has neither law nor facts is demonstrably false. I say that because there are boatloads of claims and counter claims between China, Vietnam, and Philippines, and all sides have put their version of facts/laws to the world. Truth is, no one really knows if any of the claimants has some, all, or none of the law on its side, and the International Court of Justice could shed some light on how an unbiased court sees the complex issue, regardless of who opted out of arbitration.