Blackstone
Brigadier
China hasn't provided any legal document to the Tribunal, other than to notify the ICJ Beijing legally opts out of binding arbitration. China published position papers, but that's just a statement for public consumption.
South China Sea Strategies for other nations (Not China)
- Thread starter PanAsian
- Start date
Brumby
Major
The main charge by China is that the Philippines had breached its obligations, and I quote :
"By unilaterally initiating the present arbitration, the Philippines has breached its obligation under international law." The obvious question is what exactly is the Philippines in breached of? The assertion by China is that both parties had agreed to enter into a state of negotiations. It is irrelevant whether that state has begun, in progress or unilaterally terminated. China is taking the legal view that the Philippines is bound to that state and by initiating arbitration, it has breached that obligation. Your continued emphasis on establishing the status of the state is irrelevant because the breach is independent of state but subject only to performance.
China is bound to observe the obligatory performance by the same way that it is accusing the Philippines of being in breached, and hence the duplicitous charge.
I think you are misunderstanding my intention. As is, we already had a number of exchanges which had accorded both of us the opportunities to express our respective positions. I do not think I can add anything more substantial besides what had been expressed and the prospect of repeating our respective views are becoming more obvious. In such diminishing environment, I am saying to leave it as such and not labour further. I though that was simply a practical consideration. It puzzles me why the issue of strawman is even being raised.
If the island building is part of China's long term goal and plans than it is in pursuance of its own national agenda and interest. I have no issue with that. However, the narrative is that China is forced to react by island building because of the actions of the others is shifting the blame and responsibilities for such a state onto others. Technically that is a major difference.
I can accept the scenario where the other nations just roll over and let China's claim stand as is. It is possible that under such a scenario, China would not have to change the facts on the ground and to incur all the expenditure of island building in the process.
Whilst the details of any discussions are not known, I have posited in another post that the so called negotiations in my view is China will not negotiate on sovereignty but merely offer to the Philippines joint economic access to fishing and drilling. I would ask anyone when subject to such a state whether there is any room for negotiations other than to accept capitulation. We know as a fact that China on many occasions had stated that the disputed territories are indisputable. Anyone willing to explain how do you negotiate something that cannot be disputed?
I think China means the Philippines has breached their previous agreements to negotiate only in a bilateral manner.
It has broken the previous agreement to negotiate in a bilateral manner, I repeat, and that is what resulted in (what I believe China believes) to be the termination of their negotiations.
I should re emphasize that in my view, China is saying the Philippines has broken their obligation to negotiate in a bilateral manner by taking arbitration. That has resulted in the effective termination of negotiations, meaning neither side is bound to whatever previous kinds of performance that were deemed acceptable during negotiations.
Of course, I should also note that during negotiations it does not mean either side is technically required to follow an agreed level of actions, for instance in war it has been quite common for sides to attack each other during or between negotiation meetings to try and force better terms out of the other.
The key agreement that was broken was the agreement to negotiate in a bilateral manner. If China brought in Russia or whomever on its side of the negotiation, then China could be accused of being duplicitous as it had breached that specific agreement to be bilateral.
If you believe that China accusing the Philippines of breaking its obligation to international law means China forfeits its right to respond, then that is a bit illogical isn't it? If one side makes an underhanded move, then does that mean the other side is unable to call them out and then carry out their own similar response?
Then there's the question of whether the island reclamation is actually in breach of China's obligations to intl law... which is another whole massive topic which I won't bother broaching today.
You may not have intentionally created a straw man, but by ignoring the other important premises of my position you had unfortunately made my position much weaker and more assailable, where in reality my position was based on multiple premises acting together.
If it was an honest mistake due to misreading then fair enough.
Yes, and my entire point is that China had other plans and preferences and paths to try out first prior to the island reclamation, and it is when those other more preferable paths were closed that they went to island reclamation.
There are likely other plans beyond island reclamation as well to achieve the same overarching goal if reclamation fails to achieve its aims.
What we are discussing here is inherently about what China may have "desired" in regards to the island reclamation, so it's a difficult topic.
I can agree that China may have desired to conduct island reclamation, but that is contingent on another important belief -- that China very likely and almost certainly had other, earlier desires to resolve the dispute in less confrontational ways as well. Not an unreasonable assertion, in my view.
That still leaves room for negotiation. China says that they will never accept Taiwanese independence either, but that still leaves scope for negotiation. China says their sovereignty over SCS is undisputable, but that still leaves room for negotiation.
If other claimants are unable to negotiate on those terms then they are free to try what methods they want. I think we're both in agreement on this particular nature of the issue.
Brumby
Major
You seem to place a lot of emphasis on the word bilateral as your main point. Obviously in any negotiations it has to be at a minimum be bilateral because you can't negotiate with your own self. However negotiations can also be tri lateral or multi lateral.
You have to demonstrate that the Philippines has agreed to negotiate bilaterally as an exclusive arrangement. Is that factually correct? There can't be a breached unless that is what was agreed in the first place.
That again is a counter factual proposition. Has any of the claimants voiced opposition to bringing Russia in if indeed it was necessary?
You are being premature in your accusation. You first have to establish that the Philippines is in breached of any agreement. I did not say China cannot call out. You are attempting to change the narrative. I am simply pointing out that China is exhibiting the same duplicitous behaviour that it is accusing the Philippines of behaving. You seem to have a problem accepting this situation by your convoluted reasoning with the supposedly bilateral breach.
If you wish to advance, the view that reclaiming over 2000 acres of land while in negotiations is not destabilising and detrimental to any good faith then nothing will. Since China is unwilling to go before any arbitration, what body in the world is going to determine that China is in breach of? You are making a rhetorical statement.
Straw man is substituting an object and debunking that substituted object as sufficient rebuttal against the original object.
Using the Taiwanese example is indeed a straw man to equate to the Philippines situation. China's claims are nebulous. It is declaring sovereignty by fiat. That was the way when the Chinese emperor in those days make laws. China is behaving as if the countries in the SCS are vassals states subject to its decree.
Other than repeating that there is room for negotiations, what exactly is left for negotiations?
The point however is that it was always important for China that negotiations were to remain bilateral and the philippines had agreed to such bilateral standards and to not involve third parties in their bilateral territorial dispute.
In china's position paper, their third part plainly says:
30. With regard to disputes concerning territorial sovereignty and maritime rights, China has always maintained that they should be peacefully resolved through negotiations between the countries directly concerned. In the present case, there has been a long-standing agreement between China and the Philippines on resolving their disputes in the South China Sea through friendly consultations and negotiations.
In the case of disputes between China and the Philippines, it means bilateral negotiations. At the very least the phrase "countries directly concerned" makes it clear that only countries involved in the bilateral dispute should be involved in negotiations, as seen below:
31: Under the Joint Statement between the People's Republic of China and the Republic of the Philippines concerning Consultations on the South China Sea and on Other Areas of Cooperation, issued on 10 August 1995, both sides "agreed to abide by" the principles that "[d]isputes shall be settled in a peaceful and friendly manner through consultations on the basis of equality and mutual respect" (Point 1); that "a gradual and progressive process of cooperation shall be adopted with a view to eventually negotiating a settlement of the bilateral disputes" (Point 3); and that "[d]isputes shall be settled by the countries directly concerned without prejudice to the freedom of navigation in the South China Sea" (Point 8).
34. The Joint Press Statement of the Third China-Philippines Experts' Group Meeting on Confidence-Building Measures, dated 4 April 2001, states in Point 4 that, "The two sides noted that the bilateral consultation mechanism to explore ways of cooperation in the South China Sea has been effective. The series of understanding and consensus reached by the two sides have played a constructive role in the maintenance of the sound development of China-Philippines relations and peace and stability of the South China Sea area."
35: The mutual understanding between China and the Philippines to settle relevant disputes through negotiations has been reaffirmed in a multilateral instrument. On 4 November 2002, Mr. Wang Yi, the then Vice Foreign Minister and representative of the Chinese Government, together with the representatives of the governments of the member States of the Association of Southeast Asian Nations ("ASEAN"), including the Philippines, jointly signed the Declaration on the Conduct of Parties in the South China Sea ("DOC"). Paragraph 4 of the DOC explicitly states that, "The Parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means ... through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea."
40. By repeatedly reaffirming negotiations as the means for settling relevant disputes, and by emphasizing that negotiations be conducted by sovereign States directly concerned, the above-quoted provisions of the bilateral instruments and Paragraph 4 of the DOC obviously have produced the effect of excluding any means of third-party settlement.
If these don't make you believe that through various agreements over the years that they've both agreed to keep the dispute between China and the Philippines to be only bilateral and not involve third parties, then I don't know what will.
At the very least that part of the position paper should convince you that in China's eyes, that both sides had agreed to be bilateral, yes?
It is beside the point whether others had voiced opposition or not to China involving a third party.
The point is that China has voiced opposition against bringing in third parties into the dispute, and if China had carried out actions which goes against their position of involving third parties then they could be accused of being equally duplicitous as the Philippines are.
More importantly, even if China had brought in third parties, if they had done so after the Philippines first broke their obligation and broke whatever negotiations that had existed, they would not technically by definition be duplicitous because by that point negotiations and good faith would have ended anyway and China would have the right to respond through various means as deemed necessary.
On the contrary, you seem to be unable to accept that it was always important for China that the negotiations to be bilateral and to at the very least keep out third parties.
They're. Not. In. Negotiations. That has been my view the whole time, that they aren't negotiating between each other while China has been undergoing its reclamation
If you're saying that China believes they are still in negotiations while they are also carrying out reclamation then I'd like to see what the premises of that belief are.
And isn't that exactly what you did? Like I said, if it was an honest mistake then fair enough, but you have yet to acknowledge that your misinterpretation of my position was even a misinterpretation in the first place.
I use the Taiwan example to show that there is always room for negotiation if one is willing to accept a fundamental red line that the other party is clearly delineateing.
If a party is not willing to accept that a red line exists then they are free to use whatever means to force the other side to retract their self delineated red line.
I said they can negotiate if they're willing to accept the initial terms of the negotiation. If they're not willing to negotiate under those terms then they're free to use other means to force China to come up with better terms. That's always been my position.
Brumby
Major
Important for China itself doesn't signified a breach on the part of the Philippines. You have to demonstrate that the Philippines had agreed to solely bilateral negotiations as a binding condition. If my memory serves me, I note on many occasions that the Philippines took a contrary position. If both parties never agreed to the terms, than whatever transpired can best be summed up as non binding. If it is non binding then there is no breach to begin with.
At best, the terms that you have sighted in China's position paper brings us full circle to the original starting point. That is, the Philippine breached and likewise China breached and so is the pot calling the kettle which was effectively my original statement regarding duplicitous.
Reading clause 31 doesn't support your assertion of exclusive bilateral negotiations and I quote "[d]isputes shall be settled by the countries directly concerned" This means the provision for multi lateral negotiations provided the countries are directly concerned.
It is not besides the point but precisely your point.
The core nature of your narrative in this context is not about duplicitous but whether it is in breach.
We have yet to establish that the Philippines is in breach of anything. Secondly, once you conduct your own self in the same manner, you loose the moral authority and hence by nature is duplicitous.
It would be disingenuous of me to deny that it has always be China's intention to conduct the negotiations bilaterally but by the same token the Philippines had taken a contrary position publicly. The issue is whether there was ever any binding agreement to negotiate in a certain manner.
By the simple notion that in the Dec 2014 position paper, China is implicitly making that argument as a means to stop the Philippines from going before the Tribunal
What substitution did I made to qualify as a straw man?
I have already mentioned it is a straw man simply because the conditions are different
Precisely why the Philippines had gone for arbitration because the terms are unreasonable because it calls for submission. China is effectively behaving that might is right. I would still ask what room is left for negotiations for those that are making that point.
I would sum it this way. China is effectively proposing, what is mine is mine (per nine dash). What is the Philippines (per UNCLOS) is mine. That is the red line and is indisputable. Let's negotiate.
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If my cited passages from the Position Paper doesn't convince you that both sides had agreed to bilateral negotiations then that is fine.
China had not breached the obligation to keep negotiations bilateral as they did not seek to involve a third party.
But you're not including the direct part preceding that sentence which outlines the dispute as being bilateral in nature: (Point 1); that "a gradual and progressive process of cooperation shall be adopted with a view to eventually negotiating a settlement of the bilateral disputes" (Point 3); and that "[d]isputes shall be settled by the countries directly concerned without prejudice to the freedom of navigation in the South China Sea" (Point 8).
this sentence is way to meta for me.
Yes, and first we have to agree on what the original agreements meant.
In this case we are talking about a hypothetical scenario, but in my view, if two parties (A and B) have agreed to not do "action X" and if party A did action X, then party B should have the right of response and retaliation. If party B then said "party A's action X is wrong but we will also refrain from retaliating" and then they went and retaliated anyway, then I would consider it duplicitous. Once an agreement is broken I see both sides as being free to respond and act as they see fit.
Of course that's what they're arguing. It's a means to stop the Philippines from going to the Tribunal, or to involve other third parties in general.
If the Philippines wanted to involve third parties I would prefer it if they had first clearly said that they were going to cross this line and go back on the previous agreements they had made.
The point is that in China's view, both sides had over the years agreed to negotiate without involving third parties and that the Philippines, by going to the Tribunal, has violated those past agreements. If you have evidence that the Philippines do not consider past agreements as limiting the negotiations to be only bilateral, then it means there is a difference in interpretation of the phrasing of those documents.
If that were the case, then at best you could argue that China's claim that the Philippines had breached its obligation to their past agreements is dependent on interpretation of the past agreements.
By leaving out key parts of my position. I had effectively said "premise A+premise B+premise C results in conclusion D". What you had said effectively left out premise B and C and only left premise A as the only one preceding conclusion D.
I disagree. Red lines exist for all kinds of negotiations and disputes. If parties do not agree to a red line they can simply not enter the negotiations in the first place.
In which case by all means they could have gone for arbitration, but then they shouldn't have agreed to the bilateral negotiations to begin with, or at least directly outright said that they are going to cross china's red line of not involving third parties.
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Brumby
Major
r
It is because the clauses that you quoted namely 30 to 35 does not support your assertion in the wording of the text. For example, clause 30 quotes "With regard to disputes concerning territorial sovereignty and maritime rights, China has always maintained that they should be peacefully resolved through negotiations between the countries directly concerned. In the present case, there has been a long-standing agreement between China and the Philippines on resolving their disputes in the South China Sea through friendly consultations and negotiations."
Note the phrase " China has always maintained" suggest it is a unilateral position. Then the following sentence talks about resolving disputes through friendly negotiations. There is no explicit mention of exclusive bilateral negotiations. You should also note in international law established under the "Lotus principle" what is not specifically excluded is allowed.
The fact is after China submitted its position paper, the Tribunal then scheduled time for the Philippines to respond and which it did in a 3000 page supplemental submission. We know the facts and arguments are now before the Tribunal. We shall know once the Tribunal publishes its findings which of our views are closer to the facts.
Collectively I do not believe they made your case stronger because if I remember the context it was about proportionate. None of them singularly or collectively corresponds in my view of meeting the proportionate test.
As for the red line, it is a false assumption to state that red lines are made known upfront.
It is because the clauses that you quoted namely 30 to 35 does not support your assertion in the wording of the text. For example, clause 30 quotes "With regard to disputes concerning territorial sovereignty and maritime rights, China has always maintained that they should be peacefully resolved through negotiations between the countries directly concerned. In the present case, there has been a long-standing agreement between China and the Philippines on resolving their disputes in the South China Sea through friendly consultations and negotiations."
Note the phrase " China has always maintained" suggest it is a unilateral position. Then the following sentence talks about resolving disputes through friendly negotiations. There is no explicit mention of exclusive bilateral negotiations. You should also note in international law established under the "Lotus principle" what is not specifically excluded is allowed.
The fact is after China submitted its position paper, the Tribunal then scheduled time for the Philippines to respond and which it did in a 3000 page supplemental submission. We know the facts and arguments are now before the Tribunal. We shall know once the Tribunal publishes its findings which of our views are closer to the facts.
A breach is not solely on one type of action. In its own submission, China mentioned the principle of friendly and peaceful negotiations. Undertaking one of the largest reclamation on disputed territory and then enacting a military zone around it is not exactly being peaceful and friendly.
Bilateral disputes does not exclude multi lateral negotiations because they are not mutually exclusive. Secondly, some of the disputes are not bilateral in nature but involving several parties. In essence, it defies logic to even consider it as a practical approach.
As you then went on to say we are not discussing hypotheticals. The basis of my comments are China's argument before the Tribunal.
I think it is best that we wait until the Tribunal makes its findings known. You are the one making the assertion that the negotiations are bilateral. The onus is on you to provide the evidence to support your position. My job is in the rebuttal.
Collectively I do not believe they made your case stronger because if I remember the context it was about proportionate. None of them singularly or collectively corresponds in my view of meeting the proportionate test.
The straw man isn't the red line but the nature of Taiwan vs. islands in the SCS. They are not comparable in terms of sovereignty. China's claims in the SCS is so nebulous that it is not even prepared to outline its basis. In my view it is so weak that it doesn't stand up to scrutiny and the reason why China has been evasive in this area. I don't think anyone is disputing Taiwan with regards to whether it is part of China.
As for the red line, it is a false assumption to state that red lines are made known upfront.
We should give the bilateral negotiations contention a rest and wait for the Tribunal to provide its findings because clearly we are beating this to death.
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Through those passages there have been also been repeated statements that both sides agree to involve only the sovereign states concerned in the resolution of the territorial dispute, in various joint statements and agreements over the years.
I've underlined them in previous posts, and I'm not going to use more space in this reply to copy and paste them here again.
I'm not sure what the Tribunal has to do with this -- China has stated that they are not going to participate in the arbitration process.
Okay, well then you should have described that you thought China was being duplicitous because it was breaching other things outside of the bilateral negotiations obligation, which is what I thought you have been referring to this entire time.
If that's the case, then I appreciate your position, however mine is different as I view China is responding to an unfriendly move (involving a third party) with its own unfriendly move which it has a right to do. It also has a right to say that the Philippines had breached its obligation, while carrying out its own unfriendly moves in response.
If China had stated that it would refrain from carrying out unfriendly moves and then ended up carrying out its own unfriendly moves then China could be considered duplicitous in that case.
The specific passage I quote is from the "Joint Statement between the People's Republic of China and the Republic of the Philippines concerning Consultations on the South China Sea and on Other Areas of Cooperation" -- so by nature they are specifying that it refers only to the bilateral disputes between China and the Philippines.
And yes, bilateral disputes in this case between China and the Philippines in that agreement does exclude multilateral negotiations as it says disputes will be settled by countries directly concerned.
(Point 1); that "a gradual and progressive process of cooperation shall be adopted with a view to eventually negotiating a settlement of the bilateral disputes" (Point 3); and that "[d]isputes shall be settled by the countries directly concerned without prejudice to the freedom of navigation in the South China Sea" (Point 8).
Um, China isn't taking part in the tribunal, nor is the position paper meant to hold a position in the specific arbitration process itself. They say so as much quite clearly:
"2. This Position Paper is intended to demonstrate that the arbitral tribunal established at the request of the Philippines for the present arbitration ("Arbitral Tribunal") does not have jurisdiction over this case. It does not express any position on the substantive issues related to the subject-matter of the arbitration initiated by the Philippines. No acceptance by China is signified in this Position Paper of the views or claims advanced by the Philippines, whether or not they are referred to herein. Nor shall this Position Paper be regarded as China's acceptance of or participation in this arbitration."
I'm not even sure what the Tribunal has to do with our discussion because we're talking about whether the negotiations between China and the Philippines were agreed to be bilateral only.
Okay, well if that is your position then at least you are able to consider my position in its entirety. Personally I'm surprised that you're bringing up the proportionate test again when a few pages back you agreed that no party is required to be proportional.
You know something, forget I mentioned Taiwan. Clearly it was a bad example that brought up a whole other can of worms.
I'll use the Syrian chemical weapon red line example instead, from Obama, who threatened to get involved in the Syrian civil war if Assad used chemical weapons. What happened was that negotiations helped by Russia allowed Assad to effectively cooperate and not cross that red line by disposing of their chemical weapons so Assad would not cross it and thus would not result in US military intervention.
I repeat, I use the red line analogy just to say that there are ways to negotiate around it.
China has also made it quite clear that it strongly opposed the involvement of third parties in bilateral disputes over the years and emphasized its importance in various agreements between them and the Philippines over the years.
I am very surprised as to why the Tribunal has been brought up in this particular reply of yours because China is not taking part in the arbitration process.
I'm also not sure why you would ask to drop the bilateral negotiations aspect of the discussion, because the entire reason we are quibbling over is whether the negotiations were bilateral or not, and whether the Philippines had broken good faith by expanding the scope to include a third party. Since five or more pages back, the point that Shen had made and which I had inherited is that China's reclamation was in response to (or justified by, if you want to prefer to use that word) an accumulation of involvement of third parties in various bilateral disputes culminating in the Philippines Tribunal case.
Therefore the entire basis of each of our positions is dependent on whether both sides had agreed to have only bilateral negotiations or not.
I'm not sure what the Tribunal has to do with us trying to assess whether they had agreed to only be in bilateral negotiations or not.