China's SCS Strategy Thread

[Blackstone]

@Blackstone

USA versus Nicaragua went straight to the ICJ because of the seriousness of the other activities that the USA shamefully undertook.

If it had gone to UNCLOS, then it is clear that the US violated commercial freedom of navigation by placing sea mines to disrupt shipping going to and from Nicaraguan waters.

Therefore your statement that the US has observed UNCLOS is factually incorrect.

It should be that the US observes UNCLOS most of the time, except when it doesn't suit the USA.

What I was trying to point out is UNCLOS wasn't around for the US v Nicaragua case, ergo no UNCLOS rules were broken by the US. Let's keep cases to after UNCLOS was ratified by the nations of the world.

 

[AndrewS]

@Blackstone

The Yinhe incident is an example of impeding freedom of navigation.

The US acted on intelligence that there were materials onboard for the production of chemical weapons. However the sale, purchase and transport of such materials did not violate any Chinese or Iranian laws, nor were there any international treaties covering the trade at that time.

This all happened in international waters, where US domestic laws implementing sanctions have no authority.

Again, this is an example of the US violating UNCLOS on commercial freedom of navigation when it suits the US.

And it was even more embarassing that after the US went to all that trouble - that those materials for chemical weapons didn't actually exist on the ship.

 

[Blackstone]

@Blackstone

The Yinhe incident is an example of impeding freedom of navigation.

The US acted on intelligence that there were materials onboard for the production of chemical weapons. However the sale, purchase and transport of such materials did not violate any Chinese or Iranian laws, nor were there any international treaties covering the trade at that time.

This all happened in international waters, where US domestic laws implementing sanctions have no authority.

Again, this is an example of the US violating UNCLOS on commercial freedom of navigation when it suits the US.

And it was even more embarassing that after the US went to all that trouble - that those materials for chemical weapons didn't actually exist on the ship.

AndrewS, my original claim is US agreed to following provisions of UNCLOS, even though the Senate hasn't ratified it, so cases are only relevant if they directly involve UNCLOS, after US said it would follow it. The Yinhe incident occurred in 1993, before UNCLOS was even completely ratified by UN member nations, so it is out of bounds for this discussion.

 

[PanAsian]

Sure, in courts of law, otherwise it's just opinions. However, current international norm on FON isn't being challenged in international courts, and it seems all sides are willing to let status quo be. What is that status quo? Those who agree with current FON norms proceed as is, and those that don't agree make their objections known through official communication channels, and in in the public media.

The laws, courts, and "international norms" are all arbitrary constructs including your choice to ignore and deny all facts that don't support your argument. There has been plenty of recorded disagreement regarding military FON which also has already been widely discussed on this forum. Everyone has the right to proceed per their interpretation of the norm and that is exactly what everyone is doing, the weak merely has more limited options.

 

[AssassinsMace]

There's a story out now about how Chinese exports of armed drones violates MTCR which is why anyone is buying them because the US abides by MTCR. Yet every story I read mentions the only countries the US has sold drones to are Great Britain and Italy. Then the US has violated MTCR.

 

[Blackstone]

The laws, courts, and "international norms" are all arbitrary constructs including your choice to ignore and deny all facts that don't support your argument. There has been plenty of recorded disagreement regarding military FON which also has already been widely discussed on this forum. Everyone has the right to proceed per their interpretation of the norm and that is exactly what everyone is doing, the weak merely has more limited options.

One of the options available to the so-called "weak" is bringing the case to the ICJ for FON clarification, and if the ICJ decides against current norms, then the weak has the force of international law on its side. So, in this specific case, I'd say the weak side actually has strong option. It's not likely China would bring the case, since it might look bad for opting out of Philippine's law suit, but it could always encourage another aggrieved party to do it.

 

[plawolf]

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.

Ironically, you have inadvertently hit the nail on the head with regards to why the U.S. Not ratifying UNCLOS is inherently unfair to others - no one could challenge American interpretations and subsequent policy and action.

You mention the ICJ, but seem blithely unaware that's another international organisation the U.S. Resolutely refuses to be bound by.

As things stands, no country could mount any legal challenge to American interpretations of what UNCLOS or any other matter of international law means.

Basically, America is effectively saying 'what I do is within the bounds of international law as I interpret it, so it's legal, and if you don't agree with me, you are wrong and can go suck it'.

 

[AndrewS]

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.

@ Blackstone

That statement is factually incorrect.

China and India alone account for 35% of the global population, and disagree with the US intepretation of whether UNCLOS FON allows military activity within the EEZ. That is a significant dissenting minority opinion by itself.

Pakistan, Bangladesh and Malaysia are also notable parties agreeing to this view, and I suspect that if countries had to choose, there would be others agreeing with this view.

Remember that EEZ is seen incorrectly as quasi-territory, so of course most countries won't want foreign militaries to have the right to do as they want.

Therefore if a popular vote was held, I suspect the Chinese/Indian position would win amongst UNCLOS signatories and also at an overall global level.

This would then place the US interpretation of military FON as definitely outside of the international norm and in contravention of UNCLOS.


===
But on a more practical note, such a vote won't happen for a number of reasons, and we will simply be left with the situation as it is today and always has been.

Which is that the country with the most powerful navy decides what the rules are.

And from the Chinese point of view, whilst China currently disagrees with military activities under FON, that view will change if China ends up with the biggest navy in 20+ years time.

 

[Blackstone]

Ironically, you have inadvertently hit the nail on the head with regards to why the U.S. Not ratifying UNCLOS is inherently unfair to others - no one could challenge American interpretations and subsequent policy and action.

You mention the ICJ, but seem blithely unaware that's another international organisation the U.S. Resolutely refuses to be bound by.

As things stands, no country could mount any legal challenge to American interpretations of what UNCLOS or any other matter of international law means.

Basically, America is effectively saying 'what I do is within the bounds of international law as I interpret it, so it's legal, and if you don't agree with me, you are wrong and can go suck it'.

What I'm saying are the facts of the case: current international military FON norms are along US views, and that's the status quo. I say "military" because there doesn't seem to be any arguments on civil and commercial FON. Some nations have opposite views on military FON, and they are the revisionists. The revisionist powers have a chest of tools to challenge status quo, and they are free to use any and all of their tools to get their way. Of course, if the status quo powers believe changes harm or degrade their national interests, then they will use their own chest of tools to resist.

That's how it is in the real world; there really isn't a right or wrong to either camp's views on FON.

 

[Blackstone]

@ Blackstone

That statement is factually incorrect.

China and India alone account for 35% of the global population, and disagree with the US intepretation of whether UNCLOS FON allows military activity within the EEZ. That is a significant dissenting minority opinion by itself.

Pakistan, Bangladesh and Malaysia are also notable parties agreeing to this view, and I suspect that if countries had to choose, there would be others agreeing with this view.

Remember that EEZ is seen incorrectly as quasi-territory, so of course most countries won't want foreign militaries to have the right to do as they want.

Therefore if a popular vote was held, I suspect the Chinese/Indian position would win amongst UNCLOS signatories and also at an overall global level.

This would then place the US interpretation of military FON as definitely outside of the international norm and in contravention of UNCLOS.

If wishes were horses then beggars would ride. What you say has no relation to reality of how nations conduct themselves in the world. Not even China insist on UN votes being proportional to national populations.

But on a more practical note, such a vote won't happen for a number of reasons, and we will simply be left with the situation as it is today and always has been.

Which is that the country with the most powerful navy decides what the rules are.

And from the Chinese point of view, whilst China currently disagrees with military activities under FON, that view will change if China ends up with the biggest navy in 20+ years time.

That's what I've been saying all along; China might embrace current FON norms, when it has more military power to protect its increasingly far flung and volunerable commercial empire, at a time when the US appears to be entering a more isolationist phase it goes through periodically.