South China Sea Strategies for other nations (Not China)

Case Study of Out-of-Control Transnational Adjudicative Body
Tribunal’s conduct serves as a case study of the dangers in delegating too much ill-defined juridical power to an unaccountable, non-democratic transnational institution
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May 23, 2016

Multilateral treaties have become a bedrock of international law, especially since the end of World War II. More than 600 multilateral treaties have been sponsored by the United Nations out of the approximately 8,000 multilateral treaties entered into since World War II. In setting out the parties’ rights and obligations, norms of behavior and dispute resolution mechanisms, carefully written treaties that have buy-in from the member countries can reduce the potential for resort to armed conflict or economic warfare. However, when a party to a multilateral treaty seeks to exploit perceived ambiguities to gain exclusive benefits beyond the intended scope of the underlying treaty, it is risking the legal and moral foundations on which multilateral treaties are based.

The compulsory arbitration provisions contained in the treaty known as the United Nations Convention on the Law of the Sea (UNCLOS) provide a case in point.

UNCLOS establishes the legal framework under which coastal states can claim, manage, and utilize their ocean resources. It defines the maritime zones subject to jurisdiction of coastal states and governs the determination of the bases for delimitation of maritime boundaries.

UNCLOS sets forth an elaborate, multi-phased compulsory dispute resolution process to address the maritime issues within its scope. It stipulates that judgments rendered by the International Tribunal for the Law of the Sea or a specially constituted arbitral tribunal (both referred to in this article as “Arbitral Tribunal”) in accordance with the Convention are final and non-appealable. The process is subject to abuse by UNCLOS parties who seek to upend normal direct channels of diplomacy and negotiations to force a resolution of territorial disputes in their favor.

This article analyzes one example of abuse of UNCLOS’s compulsory dispute resolution process and the Arbitral Tribunal’s overreaching in accepting jurisdiction of a case. The Arbitral Tribunal decided to assume jurisdiction over a maritime territorial dispute between two UNCLOS parties, the Philippines and China. The Philippines had initiated the case despite China’s objection that the subject matter of the dispute was outside of the authority of the tribunal to arbitrate. A final decision on the merits of the Philippines’ case by the Arbitral Tribunal is expected soon. Whatever the substantive outcome of the case turns out to be, most disturbing is that the Arbitral Tribunal determined it had legal authority to impose its will on a non-consenting party to a territorial dispute in the first place.

The United States is not currently a formal party to UNCLOS. Thus, it is not subject to its compulsory arbitration provisions. Joining UNCLOS has strong proponents, including President Obama, who believe that it will give the United States more moral standing to challenge actions in the South China Sea that it objects to. Even without the U.S. being an UNCLOS party, the Obama administration endorsed the Philippines’ compulsory arbitration case against China, a view shared by the New York Times in its May 21st editorial. However, U.S. foreign policymakers and opinion leaders should take heed before reflexively embracing compulsory arbitration provisions in multilateral treaties in the future. There are significant precedential implications to national sovereignty when an unaccountable international adjudicative body, which does not derive its legitimacy from the consent of the governed, is in a position to issue ultra vires decisions under the cloak of international law. The UNCLOS Arbitral Tribunal’s handling so far of the Philippines compulsory arbitration case against China should serve as a warning.

UNCLOS Dispute Resolution Procedures
The preamble of UNCLOS states that its establishment of a “legal order for the seas and oceans” must be “with due regard for the sovereignty of all States.” UNCLOS lays out a multi-pronged dispute resolution process, which it is reasonable for the parties to expect would be implemented “with due regard for the sovereignty of all States.”

Direct bilateral negotiations and consultations are listed as the first level of dispute resolution. The parties can then move to the option of non-binding conciliation. The process of conciliation involves the use of one or more neutral third parties who meet with each of the disputants separately and try to narrow the differences between them through communication of successive proposals and counter-proposals from the parties. The conciliators may also come up with their own proposed solution for consideration by the disputants.

Compulsory arbitration is the final and most extreme form of dispute resolution that an aggrieved UNCLOS party can seek to utilize against the other party to the dispute. It is to occur after other procedures have been exhausted and is subject to the right of the other party to the dispute to opt out of compulsory arbitration under specified circumstances.

Article 298 of UNCLOS explicitly gives Convention state parties the right to opt out of compulsory arbitration for disputes concerning, among other things, the interpretation or application of certain provisions of the Convention “relating to sea boundary delimitations, or those involving historic bays or titles.” (Article 298, 1 (a)(i))

UNCLOS Arbitral Tribunal Overstepped the Bounds of its Authority in not Honoring China’s Opt-Out from Compulsory Arbitration
Both China and the Philippines referenced the compulsory arbitration opt-out provisions of Article 298 when they entered into UNCLOS as Convention parties.

Nevertheless, in order to gain leverage in a dispute over territorial boundaries in the South China Sea, the Philippines unilaterally initiated compulsory arbitration proceedings in 2013 against China before the Convention’s Arbitral Tribunal. Although China acted within its rights to reject the jurisdiction of the Arbitral Tribunal, based on its exercise of its Article 298 opt-out rights, the tribunal acted like many transnational bureaucracies do in seeking to expand its authority over sovereign states. It decided to accept jurisdiction over what is essentially a territorial dispute.

When China ratified UNCLOS in 1996, it included the following declaration as part of its accession to the Convention: “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.”

Thus, in entering UNCLOS as a Convention party, China made clear that it was not waiving its pre-existing claims to land and maritime territorial rights, which it believed to be preserved under customary international law, within demarcated areas of the semi-enclosed waters of the South China Sea.

In 2006, China invoked Article 298 in declaring that it “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.”

For its part, the Philippines stated in its own declarations accompanying its signing and ratification of the Convention that such “signing shall not in any manner impair or prejudice the sovereignty of the Republic of the Philippines over any territory over which it exercises sovereign authority, such as the Kalayaan Islands, and the waters appurtenant thereto.” It also declared that its agreement for peaceful resolution of disputes under Article 298 of the Convention “shall not be considered as a derogation of Philippines sovereignty.”

When it served its purpose upon becoming a party to UNCLOS, the Philippines asserted its own “sovereign” claims based on alleged historic rights that it considered non-derogable. However, when it later served the Philippines’ purpose to use UNCLOS’s compulsory arbitration provisions to negate China’s sovereign claims based on its alleged historic rights, the Philippines completely reversed itself on its previously stated principles. The Philippines stated the following in its submission with the Arbitral Tribunal, contradicting its original self-serving UNCLOS accession declaration: “UNCLOS supersedes and nullifies any ‘historic rights’ that may have existed prior to the Convention.”

Under international law, the Philippines should be estopped from using UNCLOS’s compulsory dispute resolution procedures to deny China the same right to protect its sovereignty rights as the Philippines had for all intents and purposes asserted for itself when it joined UNCLOS. The Arbitral Tribunal erred when it deferred instead to the Philippines’ current turn-about of position in order to justify its acceptance of the Philippines’ case for compulsory arbitration.

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The Arbitral Tribunal attempted some fancy footwork in its jurisdiction opinion by claiming that it could make its determination of entitlements to exclusive economic zones, territorial sea rights and continental shelves as the Philippines had requested without having to deal with any dispute over sea boundary delimitations or overlapping claims of territorial sovereignty. The tribunal got it wrong. The issues of historical claims to territorial sovereignty, maritime boundary delimitation and overlapping exclusive economic zones and continental shelves they may generate are inextricably linked with the issues that the tribunal accepted jurisdiction to decide. The Arbitral Tribunal exceeded the limits of its authority in accepting jurisdiction of the Philippines’ compulsory arbitration case by pretending that it could decide certain maritime zone entitlements claims in isolation.

Arbitral Tribunal Overstepped the Bounds of its Authority in Applying UNCLOS to Territorial Claims that Pre-Existed and are Outside the Scope of UNCLOS
The Arbitral Tribunal also erred in its jurisdiction opinion when it concluded that the dispute before it was simply about application or interpretation of the Convention. The tribunal reached this conclusion on the fallacious assumption that the dispute concerned “the interaction of the Convention with another instrument or body of law, including the question of whether rights arising under another body of law were or were not preserved by the Convention.”

The history of the competing sovereign claims preceded the very existence of UNCLOS. Article 15 of UNCLOS preserves the relevance of “historic title or other special circumstances” that may be at variance with other UNCLOS provisions. By definition, UNCLOS does not apply to the central issues in dispute between China and the Philippines.

The preamble of UNCLOS states that its establishment of a “legal order for the seas and oceans” must be “with due regard for the sovereignty of all States.” The Convention parties thereby evidenced their intent that UNCLOS does not extinguish their historic usage-based sovereignty claims unless expressly countermanded in the text of the Convention. There is no such express agreement of the parties to revoke their specific historical sovereign claims. To the contrary, as described above, both China and the Philippines made clear their very opposite intentions in their respective UNCLOS declarations. Moreover, under the principle of “non-retroactivity of treaties” enshrined in the Vienna Convention on the Law of Treaties adopted in 1969, UNCLOS, which came into force subsequently, cannot be used to retroactively defeat either party’s sovereign claims unless both parties agree to accept the decision of the Arbitral Tribunal as final and binding. China has not given its consent.

China argues it has historical rights to islands and adjacent areas within the South China Sea, originally derived from fishing activities undertaken consistently for many centuries. China claims it was the first country to discover, name, develop and manage the South China Sea islands, and was also the first to continuously exercise sovereign jurisdiction over them. Nearly seven decades ago, China published a map depicting segments (dashes) encircling waters, islands, and other features of the South China Sea as to which China has asserted historic territorial and maritime rights.
With some slight revisions, China has since re-published this map and continues to assert its sovereign rights.

The Philippines has also claimed sovereign territorial and maritime rights in areas that overlap China’s claims, beginning in earnest in the early 1970’s when oil was discovered.

Whatever the merits of the competing historical claims may be, they both precede the very existence of UNCLOS and were not expressly revoked when UNCLOS came into effect. Thus, sovereignty disputes over certain islands and adjacent waters based on competing historical claims lie outside of the jurisdiction of the UNCLOS Arbitral Tribunal to adjudicate.

Yet in accepting jurisdiction of the Philippines’ case, the tribunal stated that any dispute regarding China’s claim to historic rights in the South China Sea was “a dispute concerning the interpretation and application of the Convention” and could be deferred until the tribunal’s decision on the merits of the case. It admitted that its “jurisdiction to consider this question…would be dependent on the nature of any such historic rights and whether they are covered by the exclusion from jurisdiction over ‘historic bays or titles’ in Article 298.” However, the tribunal then stated, “The nature and validity of any historic rights claimed by China is a merits determination.”

The tribunal engaged in circular reasoning by deferring the threshold question as to whether it had jurisdiction to decide China’s claim to historic rights in the South China Sea to the merits phase, which it can only reach if it had jurisdiction in the first place. To paraphrase Alice-in-Wonderland, the tribunal believes in a decision on the merits first – jurisdiction afterwards.

UNCLOS Arbitral Panel Short-Circuited Diplomacy
By accepting jurisdiction to decide the case, .the tribunal also went along with the Philippines’ scheme to bypass the bilateral negotiation process the Philippines and China had previously committed to on various occasions. The commitment is documented in a series of bilateral agreements, joint statements of the leaders of both countries, and a multilateral Declaration on the Conduct of Parties in the South China Sea signed by China and the members of ASEAN, including the Philippines, in 2002.

Even after the Philippines had filed its case for compulsory arbitration, the Philippines submitted a plan to the United Nations outlining a three stage approach to dispute resolution in which arbitration would be the “final approach.” It identified implementation of the Declaration and negotiation of a binding regional code of conduct for the disputed waters as the earlier stages. But to justify the fact that it had already filed its compulsory arbitration case while regional diplomatic efforts on the first two stages of its own plan were still ongoing, the Philippines made the illogical claim that all three stages could be pursued simultaneously. The unintended consequence of creating a winner and loser in a compulsory arbitration case, particularly if the losing party had not consented to the tribunal’s jurisdiction in the first place, will likely serve to harden both parties’ negotiating positions and place a diplomatic solution further out of reach.

Conclusion
For all the reasons discussed in this article, the UNCLOS Arbitral Tribunal acted arbitrarily and capriciously when it granted the Philippines’ request to accept jurisdiction of the Philippines’ compulsory arbitration case against China. This article analyzed how the tribunal aggrandized itself at the expense of national sovereignty. The tribunal’s conduct serves as a case study of the dangers in delegating too much ill-defined juridical power to an unaccountable, non-democratic transnational institution, which begins to take on a life of its own. Its assertion of compulsory governance powers undermines diplomacy and negotiated dispute resolution among the member states, who were parties to the treaty that gave birth to the transnational institution to begin with. Instead, it serves its own parochial interests in building up its power as a fixture of supranational governance.

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X. Exclusion of certain disputes from compulsory conciliation
As noted above, any State making an Article 298 declaration is, nevertheless, obliged to submit to conciliation. However, there are a number of exceptions to this obligation. Completely excluded from the obligation to submit to conciliation are disputes that arose before the entry into force of UNCLOS.

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It is thus necessary to examine the distinction between ‘past’ and ‘future’ disputes.

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As far as future disputes are concerned there are three further exclusions from compulsory conciliation:

(a) Mixed disputes

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(that is, disputes that necessarily involve the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory);

(b) Disputes finally settled by an arrangement between the parties

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(probably also including an arrangement resulting from acceptance by the parties of an arbitral or judicial decision, such as those rendered by the ICJ in disputes between Libya and Tunisia, and between Libya and Malta)

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; and

(c) Disputes that are to be settled in accordance with a bilateral agreement binding upon the parties to the dispute.

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From these exclusions, the issue of past disputes raises the most questions. Because every dispute may have some roots in the past, particularly sea boundary delimitation disputes, a clear distinction is not easy to draw. As to this difficulty, it was pointed out during the intersessional consultations of the working group at UNCLOS III that according to international jurisprudence and rules of jurisdiction there is a large discretionary element in the decisions about the so-called crucial date of when a dispute arises.

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Delegations that opposed the exclusion of ‘past’ disputes from compulsory procedures underlined the difficulties caused by the vagueness of the criteria the proposed distinction would be based on. On the other hand, those who preferred to limit compulsory conciliation to ‘future’ disputes only, were afraid of the creation of a system which might incite States to re-open past disputes or revive old territorial claims, and in such a way to destabilize existing conditions.

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The determination of the date of a dispute has been a decisive factor in the issue of jurisdiction in a number of PCIJ and ICJ cases.

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The interpretation of the elements of the dispute, by tracing the chronological development of events and the causal relationship between them and the conflict of views expressed in the controversy, along with the ascertainment of the link between the rise of such a conflict and the exclusion date, serves as the major technique in determining jurisdictional issues.

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Such interpretations have been made free from the application of any rigid criteria and have been considered as a question to be decided in regard to each specific case.

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This exclusion of past disputes is particularly interesting in light of the current dispute between Australia and East Timor. Is this a dispute that arose before or after the entry into force of UNCLOS? In order to determine the date of the dispute, it is necessary to examine the background to this matter.

The question of delimitation of the maritime boundaries in the Timor Sea was first dealt with by Australia and Indonesia in the wake of Portugal’s withdrawal as the administering authority, and Indonesia’s subsequent annexation of East Timor in 1975. Australia’s de jure recognition of Indonesian sovereignty over East Timor in 1979 paved the way for negotiations between Australia and Indonesia on the area known as the ‘Timor Gap’ which had been left undelimited by the 1972 seabed treaty between Australia and Indonesia.

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As Australia and Indonesia could not agree on a permanent seabed boundary, they entered into a joint development agreement which provisionally dealt with the area in dispute. The so-called ‘Timor Gap Treaty’

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was specifically stated to be without prejudice to the positions of the parties with respect to permanent continental shelf delimitation.

Indonesia relinquished its control over East Timor in October 1999. Pursuant to UN Security Council resolution 1272/1999 of 29 October 1999 the United Nations Transitional Administration in East Timor (UNTAET) assumed responsibility for administration of East Timor from that date. Thus, the Timor Gap Treaty ceased to be in force between Australia and Indonesia on this date. In order for East Timor to share the benefits of resource exploitation in the Timor Gap, Australia and UNTAET exchanged notes on behalf of the people of East Timor in February 2000 to effectively continue, mutatis mutandis, the terms of the Timor Gap Treaty without prejudice to the position of the future independent government of East Timor.

Upon East Timor’s independence on 20 May 2002, Australia and East Timor signed the ‘Timor Sea Treaty’ which entered into force in April 2003.

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Whilst there are a number of differences between the former ‘Timor Gap Treaty’ with Indonesia and the new ‘Timor Sea Treaty’ with East Timor, the concept is similar in that it creates a joint development area to enable exploitation to continue pending final delimitation of the maritime boundary. As mentioned earlier, negotiations are currently being held between Australia and East Timor regarding the final boundary.

Noting the definition of dispute discussed earlier in this paper, it appears quite clear that there was in fact a dispute between Australia and Indonesia in that each State’s claim regarding the boundary was opposed by the other. The Timor Gap Treaty did not resolve this dispute as it was merely a provisional agreement without prejudice to the positions of the parties as to the final boundary. This dispute arose in the early 1980’s and thus clearly before the entry into force of UNCLOS. The question to consider is whether the current dispute with East Timor is merely a continuation of the old dispute with Indonesia and thus a past dispute excluded from compulsory conciliation, or whether East Timor’s independence creates a break in the chain. The effect of state succession on the question of ‘past disputes’ has not been tested. However, it would appear from an examination of the definition of dispute, that as a new State is involved in the matter, it would be considered a new dispute. It is relevant here that UNCLOS excludes past disputes rather than ‘past facts and situations’. In relation to a reservation ratione temporis which referred to disputes only and did not exclude the consideration of past facts or situations, the PICJ held that the Court’s jurisdiction over disputes arising subsequent to the exclusion date is not limited to situations or facts subsequent to that date.

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As will be seen below, if the jurisdiction of the conciliation commission were to be challenged on this basis, the conciliation commission would have to determine for itself whether it has jurisdiction and thus would have to rule on this issue.

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No. The United States signed the treaty on April 24, 1970. The U.S. Senate has not given its advice and consent to the treaty. The United States considers many of the provisions of the Vienna Convention on the Law of Treaties to constitute customary international law on the law of treaties.

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The Philippines had argued that China’s so-called “historic” claims to the waters of the South China Sea — outlined in a sweeping “nine-dash line” that purports to show Chinese control over nearly all of the waterway — date only to 2009 and lack all basis in the historical record and in international law. Lawyers noted in particular that none of the features in dispute — from Fiery Cross Reef to Gaven Reef — had any Chinese-language names until recently, belying Beijing’s claims of a long, documented, historical relationship with those rocky outcrops.

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ahojunk said:

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2016-06-04 08:52 | China Daily | Editor: Mo Hong'e

Vietnam tells China warships welcome in one of its harbors

Senior defense officials attending a high-profile security forum echoed China's call for nations to properly tackle disputes in the South China Sea while maintaining peace and stability.

One of the officials, Nguyen Chi Vinh, Vietnam's deputy minister of national defense, said his country "warmly welcomes" Chinese warships to visit one of its harbors and is ready to boost cooperation between the two countries' coast guards.

He made the remarks on the sidelines of the annual Shangri-La Dialogue, which opened in Singapore on Friday.

Experts said the move will improve interaction for regional security and help ease tensions.

Sun Jianguo, deputy chief of the Joint Staff Department of China's Central Military Commission, elaborated on the country's position on the South China Sea while meeting with senior defense officials from other countries.

The Vietnamese deputy defense minister told Sun that visiting Chinese vessels are welcome to conduct joint drills with the Vietnamese Navy in humanitarian relief and maritime search and rescue programs.

Although he did not name the harbor, experts said it might be Cam Ranh Bay in southern Vietnam, a key stronghold that received two Japanese warships on May 29.

Jia Duqiang, a researcher of Southeast Asian studies at the Chinese Academy of Social Sciences, said Vietnam is "sending a positive signal" amid lingering tension in the South China Sea.

It is meant as "a gesture to ease a confrontational situation and expel China's doubts", Jia said.

The recent tension, fueled by an international arbitration case filed by the Philippines against China over the the South China Sea issue, "has prompted some countries, including Vietnam, to rethink", he said.

"As arbitration serves no good purpose in resolving the issue and maintaining peace, it is necessary for countries to return to the negotiating table," Jia said.

Indonesian Defense Minister Ryamizard Ryacudu told Sun that the South China Sea is a "common home" for all countries in the region, and they should jointly safeguard regional security.

Ryacudu said disputes over maritime sovereignty should be resolved gradually, taking into consideration many factors, such as the Declaration on the Conduct of Parties in the South China Sea, UN charters and historical backgrounds.

New Zealand Defense Minister Gerry Brownlee said all parties involved should boost dialogue and communication, seek common ground and properly tackle disputes.

Mark Binskin, chief of the Australian Defence Force, said both Australia and China are committed to ensuring regional prosperity and development, and Australia is ready to maintain dialogue and communication with China.

Zhang Junshe, a senior researcher at the PLA Naval Military Studies Research Institute and a delegate attending the dialogue, said the talks on Friday show widespread support for direct dialogue and negotiation by countries directly involved to solve their disputes, which Zhang said is the "only correct and feasible way".

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confusion said:

The nine-dash-line is powerful precisely because it predates UNCLOS. Although the nine-dash-line is not in-line with current UNCLOS interpretation, just like Australia's unfair maritime border with Indonesia, it doesn't have to be, and both are outside the bounds of compulsory arbitration.

I'm starting to think that this whole exercise was a ruse to trick or shame China into giving up its very powerful nine-dash-line claim.

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WALKOM: In spite of Trudeau, G7 gets failing grade
Thomas Walkom
Published June 1, 2016 - 2:26pm

Japanese Prime Minister Shinzo Abe, centre, chats with U.S. President Barack Obama, fifth left, as other leaders of the Group of Seven industrial nations, from left, Italian Prime Minister Matteo Renzi, German Chancellor Angela Merkel, Canadian Prime Minister Justin Trudeau, top and British Prime Minister David Cameron, far right, on May 26 in Japan. (AP)

Last week’s G7 meeting in Japan was an opportunity missed.

The leaders of seven important countries, including Canada, had a chance to do something that would rekindle the sputtering global economy.

...

They failed. Italy's Matteo Renzi was on side with Canada and Japan, as were France’s François Hollande and U.S. President Barack Obama.

But Germany’s Angela Merkel and Britain’s David Cameron insisted that debt and deficit control were more important than fiscal stimulus.

The final communiqué from the two-day session said essentially that each nation would continue to do what it thought best.

There would be no attempt at overall economic co-ordination.

Given that the G7 was devised in 1975 specifically to encourage the world's major capitalist economies to co-ordinate their actions, this was a signal failure.

Sometimes, attempts at international economic co-ordination have worked. The most notable example occurred in 2008, when an expanded version of the G7, known as the G20, agreed to run deficits in order to bring the world out of recession.

Even Stephen Harper, who at the time was Canada’s very fiscally conservative prime minister, signed on to that pledge. And it succeeded.

But there is no agreement now, either among the 19 nations that make up the G20 (the 20th member is the European Union) or among the seven who met in Japan on Thursday and Friday.

As a result, the global economy just slogs along. It’s not weak enough to push the world back into recession. But it's not strong enough to deliver jobs and adequate income.

Even Canada, which has done relatively well, isn’t exempt. The Bank of Canada predicts this country's economy will shrink slightly in the April-June period, in part because of the Fort McMurray wildfire.

A Conference Board survey reports that Canadian manufacturers expect to reduce capital spending by almost 11 per cent this year.

The International Monetary Fund, which exists to backstop nations in financial trouble and which has never been a hotbed of radicalism, headlined its April update of the world economy: “Too slow for too long.”

The IMF has been urging world leaders to do exactly the kind of things that Trudeau and Abe called for last week in Japan.

So what do we make of the G7? In some ways, its time has passed. It no longer represents the world’s major economies. China is conspicuously absent. Russia, briefly a member of what was then called the G8, was summarily expelled in 2014 for the sin of annexing Crimea.

For a while, the hope was that the G20 (which does include China and Russia) would handle economic matters, leaving the G7 to ponder weightier questions, such as international security.

But the G20 seems increasingly bogged down. Its bright lights — the so-called emerging economies, such as Brazil, Russia, India and China — have dimmed.

Brazil is in political chaos. Russia has been hammered by falling oil prices. Even the Chinese economy is not as stellar as it was.

Meanwhile, the G7’s attempt to focus on security has been hamstrung by the gradual re-emergence of Cold War politics. Beijing is at daggers drawn with the U.S. and Japan over who controls the South China Sea. Russia and NATO are remilitarizing the border between Eastern and Western Europe.

When the pro-West G7 does pronounce on such matters — as it did again last week — it does so with little moral authority.

John Kirton of the University of Toronto's G7 Research Group routinely grades summits. He gave this one a B-/C+ grade over all, largely because of what the leaders said about security. I thought he was being kind.

But Kirton gave the summit a failing grade, F, for its approach to the global macroeconomy. I thought he was being kind there as well.

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Brumby said:

The nine-dash is no more than dashes in a map grounded on air dressed as an indisputable claim using rhetoric. Powerful? How so because it predates?

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Countries contesting China's claims in the disputed South China Sea should not underestimate the legality of Beijing's arguments, said Mr George Yeo, Singapore's former foreign minister and current chairman of Hong Kong-based Kerry Logistics.

"China's claims are not weak… I can understand the force of feelings from South-east Asian countries but it would be a serious mistake to underestimate the legality of China's claims and therefore underestimate their will," he said yesterday during a panel session at the World Economic Forum on Asean held in Kuala Lumpur.

Citing Beijing's assertions that its claims in the contested waters date back to the Qing dynasty, Mr Yeo said that countries did not earlier object to China when it drew the controversial nine-dash line. Beijing uses the nine-dash line to mark a large swathe of the areas in the South China Sea that it claims.

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