China's SCS Strategy Thread

[Blackstone]

google cowpen and impeccable!

On 5 March 2009, the Impeccable was in the

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monitoring submarine activity

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when it was approached by a

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(PLAN)

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, which crossed its bow at a range of approximately 100 yards without first making contact. This was followed less than two hours later by a Chinese

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aircraft, conducting 11 flyovers of Impeccable at an altitude of 600 feet (180 m) and a range from 100–300 feet (30–90 m). The frigate then crossed Impeccable's bow again, this time at a range of approximately 400–500 yards.

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On 7 March, a Chinese intelligence ship contacted the Impeccable over bridge-to-bridge radio, calling her operations illegal and directing Impeccable to leave the area or "suffer the consequences."

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One Chinese crewmen waves a Chinese flag, while another uses a grappling hook to try to snag Impeccable's towed sonar array.
On 8 March 2009, the Impeccable was 75 miles south of

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, China, when it was shadowed by five Chinese ships: a Bureau of Maritime Fisheries Patrol Vessel, a

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What about USS Cowpen and Impeccable? Both ships had the right to sail and conduct legal operations in international water. If anything, it was the Chinese side that acted in an unsafe manner.

Every example you listed so far supports the notion US observed terms of UNCLOS.

 

[Dolcevita]

It's a valid criticism that US hasn't ratified UNCLOS, even though every president has announced intentions to abide by the treaty, and have done just that. But, to the rest of the world, it looks like US says one thing and does another.

Nevertheless, successive Administrations have followed the treaty, and for all practical purposes, it's official US policy. That is the bottom line to gauge what nations do vs. what they say. In that spirit, I ask again what UNCLOS laws do you say US breached?

UNCLOS did not take effect until 1994. Despite this so-called official US policy this and official US policy that, It did not take 10 years before the US technically violated UNCLOS when it invaded Iraq without a clear UN mandate. So really, What good is this so called official US Policy this and official US policy that.

US did not ratify UNCLOS because they see US as a dominant military power and will ignore UNCLOS whenever it is in their interest to do so. Period. Otherwise, the US would have ratified UNCLOS. Simple as that. US reserves the right to bully whomever they want whenever they want when it serves their purpose and does not want to be bound by legality of their actions.

 

[Blackstone]

UNCLOS did not take effect until 1994. Despite this so-called US policy this and US policy that, It did not take 10 years before the US technically violated UNCLOS when it invaded Iraq without a clear UN mandate.

1) The topic was United Nations Convention on the Law of the Sea (UNCLOS)
2) Technically speaking, there was a UN mandate for member states to enforce peace terms from Operation Desert Storm (1991), but that's OT

 

[Dolcevita]

1) The topic was United Nations Convention on the Law of the Sea (UNCLOS)
2) Technically speaking, there was a UN mandate for member states to enforce peace terms from Operation Desert Storm (1991), but that's OT

Did the US violate Iraqi territorial waters when they invaded Iraq in 2003? Technically, the US violated UNCLOS.

 

[vesicles]

1) The topic was United Nations Convention on the Law of the Sea (UNCLOS)
2) Technically speaking, there was a UN mandate for member states to enforce peace terms from Operation Desert Storm (1991), but that's OT

I think you are mixing two independent issues together: legality and morality.

Morally, the US has been doing it correctly, by respecting the UNCLOS.

However, legally, the US is on the wrong side. Keep in mind that we have to go by the book when we deal with legal issues. What is morally right or wrong has nothing to do with legality. As an enforcer of the law, the very first thing the US should do legally should be to ratify the UNCLOS. By not ratifying the UNCLOS but at the same time enforcing the UNCLOS, the US is saying "we are above the law" loud and clear. Legally, you must recognize the law in order to enforce it.

Without ratifying the UNCLOS, the US is legally outside of the laws, thus is in no legal position to have anything to do with anything about the UNCLOS.

 

[Blackstone]

I think you are mixing two independent issues together: legality and morality.

Morally, the US has been doing it correctly, by respecting the UNCLOS.

However, legally, the US is on the wrong side. Keep in mind that we have to go by the book when we deal with legal issues. What is morally right or wrong has nothing to do with legality. As an enforcer of the law, the very first thing the US should do legally should be to ratify the UNCLOS. By not ratifying the UNCLOS but at the same time enforcing the UNCLOS, the US is saying "we are above the law" loud and clear. Legally, you must recognize the law in order to enforce it.

Without ratifying the UNCLOS, the US is legally outside of the laws, thus is in no legal position to have anything to do with anything about the UNCLOS.

I'm only addressing the legal dimension and not the moral or practical ones.

US isn't legally outside UNCLOS, because its interpretation on FON in EEZ is accepted as international norm. If it was legally wrong, then aggrieved countries could drag it to the International Court of Justice for adjudication. Since silence is acquiescence, US interpretation is correct.

 

[Hendrik_2000]

What about USS Cowpen and Impeccable? Both ships had the right to sail and conduct legal operations in international water. If anything, it was the Chinese side that acted in an unsafe manner.

The keyword here is peaceful use of the sea and it extend the definition of innocent passage to the EEZ .AND THE WORD"DUE REGARD TO COASTAL STATE " COLLECTING INFORMATION OF THE COASTAL STATE IS NOT A PEACEFUL ACT. Read this from convention of sea article 19
2. These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area

Security Jurisdiction under the Law of the Sea Convention


The Law of the Sea Convention does not deal with security issues to a significant extent. It almost completely avoids consideration of the law of naval warfare, and references to security matters are not dealt with in a single location, in the context of other matters. Such references as there are can be found concentrated in the context of the regime of innocent passage, where the coastal State may temporarily suspend innocent passage for the purposes of essential security protection[1], and where different activities are deemed “to be prejudicial to the peace, good order or security of the coastal State” if they occur on board a foreign ship in the territorial sea of the coastal State.[2]


Article 19 of the Law of the Sea Convention indicates the activities of a vessel that are considered inconsistent with a right of innocent passage:


1. 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.

2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities:

(a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;

(b) any exercise or practice with weapons of any kind;

(c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State;

(d) any act of propaganda aimed at affecting the defence or security of the coastal State;

(e) the launching, landing or taking on board of any aircraft;

(f) the launching, landing or taking on board of any military device;

(g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;

(h) any act of wilful and serious pollution contrary to this Convention;

(i) any fishing activities;

(j) the carrying out of research or survey activities;

(k) any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State;


[1] Article 25(3) of the Law of the Sea Convention provides:

The coastal State may, without discrimination in form or in fact among foreign ships, suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its security, including weapons exercises. Such suspension shall take effect only after having been duly published.

A provision with similar effect extends the same right to an archipelagic State in respect of archipelagic waters where innocent passage may be exercised. See Article 52(2), Law of the Sea Convention.

[2] Article 19, Law of the Sea Convention

 

[tidalwave]

Denouncing UNCLOS remains option for China after tribunal ruling
By Stefan Talmon Source:Global Times Published: 2016-3-3 17:40:18

For many years, the People's Republic of China has been a strong supporter of the UN Convention on the Law of the Sea (UNCLOS). Recently, however, China's experience has been that the Convention and, in particular, its provisions on compulsory dispute settlement, may be exploited by other states for political reasons.
25 2006 when it excluded all of these disputes from the compulsory dispute settlement mechanisms under UNCLOS.

According to Article 288(4) of UNCLOS, it is not, however, the contracting party but rather the arbitral tribunal that determines whether a dispute exists and defines its content.

This holds considerable risks and uncertainties for the parties, especially in case of tribunals that engage in judicial activism, as was demonstrated by the Tribunal's Award on Jurisdiction and Admissibility of October 29 2015 in the South China Sea Arbitration.

While the Tribunal accepted that a dispute in international law requires that there be "positive opposition" between the parties, it did not, and could not, establish such opposition and, instead, established a dispute "by inference."

What is, in fact, a dispute on territorial sovereignty and maritime delimitation was redefined by the Tribunal as a dispute concerning the status of maritime features and the source of maritime entitlements, questions on which, as the Tribunal rightly noted, China had never expressed a detailed position. If the Arbitral Tribunal in its Award on the Merits, which is expected later in 2016, decides this "dispute" in a way that infringes China's territorial sovereignty over the Nansha Islands, China might consider denouncing the Convention.

According to Article 317 of UNCLOS, a state party may denounce the Convention by written notification to the Secretary-General of the UN and may indicate its reasons. Such a denunciation would take effect one year after the date of receipt of the notification.

While China would not be discharged by reason of the denunciation from obligations that accrued while it was a party to the Convention, it would be protected against similar future claims brought by Vietnam, Indonesia or Malaysia with regard to the South China Sea, or by Japan with regard to the East China Sea.

Would there be any serious disadvantages for China if it denounced UNCLOS? The short answer is: no. China would continue to enjoy most of the advantages of UNCLOS because today the majority of its provisions are considered to be part of customary international law. The only exceptions are the provisions on the Area, i.e. deep seabed mining (Part XI), the development and transfer of marine technology (Part XIV) and the provisions on the compulsory settlement of disputes (Part XV).

The US, for example, has not been a contracting state of the Convention for the last 33 years and has not suffered any

Knowing full well that disputes over territorial sovereignty and maritime delimitation do not fall under the UNCLOS dispute settlement mechanisms, the Republic of the Philippines, in an act of legal warfare ("lawfare"), nevertheless instituted arbitration proceedings against China before a UNCLOS Annex VII arbitral tribunal with regard to the disputes between the two countries in the South China Sea.

During the negotiations on the Convention in the 1970s, China raised concerns about the dispute settlement provisions, which it considered "inappropriate," and argued that the provisions should not be included in the Convention itself.

China's suggestion was that the provisions should form a separate protocol so that countries could decide for themselves whether or not to accept compulsory dispute settlement.

By way of compromise, it was agreed that certain disputes would not be included in UNCLOS's compulsory dispute settlement mechanisms and that others could be removed by express declaration of states parties.

The latter included disputes relating to sea boundary delimitation, historic titles, sovereignty or other rights over continental or insular land territory, military activities and law enforcement activities. China duly made use of this opportunity on August
serious problems. On the contrary, it enjoys most of the advantages under the Convention such as freedom of navigation and overflight, the rights of the Exclusive Economic Zone and the continental shelf without carrying any of the burdens.

China would no longer have a judge on the International Tribunal for the Law of the Sea and would no longer be represented on the Commission on the Limits on the Continental Shelf. It could also no longer be a member of the International Seabed Authority.

China could probably lay claim to an outer continental shelf and its resources under customary international law but its energy companies would be excluded from the exploration and exploitation of the Area, unless registered and sponsored by another contracting party.

Whether China ultimately wants to continue to be a party to UNCLOS should be the result of a legal and political cost-benefit analysis. The Convention itself opens the way for China to leave the Convention and it would have good reasons to do so if its territorial sovereignty was undermined by a decision of an arbitral tribunal established under the Convention.

 

[plawolf]

2) Technically speaking, there was a UN mandate for member states to enforce peace terms from Operation Desert Storm (1991), but that's OT

Convenient that the examples you asked for are deemed OT when they prove hard to brush off no?

That enforcing peace terms from Desert Storm is so much spin! What happened to WMDs?

Another example that I know of is that a number of years ago a USN warship stopped and boarded a Chinese cargo ship in international waters on suspicion it was carrying arms to Iran.

Iran was not under UN sanctions at the time, but under US sanctions.

In that instance, the US was wrong and didn't find any arms on the Chinese cargo ship (why no mainstream western media picked up the story).

There were reports in Chinese at the time, and a few brief bulletins in English, but its nearly impossible to find those stories now.

That was a clear and fragrant breach of UNCLOS and FON, so if anyone still have a link to those stories, it would be greatly appreciated.

 

[mr.bean]

if my memory is correct that must be the Chinese ship Yinhe which was stopped in international waters by the USN. i think it was about 1993 and Jiang zemin was President of China. the US accused China of shipping weapons to Iran so they intercepted a Chinese flag ship in international waters and demanded to board it for inspection! the Chinese of course refused and there was a standoff for days. final solution was that a neutral country was allowed to board the Yinhe to inspect the cargo, that was Saudi Arabia. They found none of the items the US accused China was smuggling and the ship was freed to go to it's final destination. The US refused to apologize or compensate for that incident and accused the Chinese of dumping the alleged weapons in the ocean prior to the boarding! that respecting international law american style for you. if anyone can dig up the original articles of the Yinhe incident that would be interesting to read.