South China Sea Strategies for other nations (Not China)

joshuatree said:

Okay, but I think just addressing artificial islands in one lump grouping is still too vague for the issue at hand. So far, it seems most of the back and forth between China and the US is centered around Fiery Cross Reef because it's the first one to have an almost completed runway. FCR is noted as having two rocks above high tide in its natural state which would categorize the feature as a rock and UNCLOS does afford rocks their own territorial sea.

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I think the choice for the FON is the one where there is least room for ambiguity in terms of whether it is a rock or an island to minimise issues. Whether there is an airfield is irrelevant for purposes of FON.

joshuatree said:

While not part of UNCLOS, international law corresponds sovereign airspace with the maritime definition of territorial waters. So in this instance, the Chinese are not violating international law.

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I don't believe that is the case, not from a detailed legal argument that I have seen. In fact the reverse is true that there is a recognition that sovereign airspace lags maritime legal development in international issues. There are attempts to equate I.e. to sync them in terms of a legal framework but I don't believe we are there yet.

You should also note that in international law, there is a well known legal principle that should be regarded as part of the consideration and that is the Lotus Principle. It is an old established case law that basically outlines the principle that what is not specifically prohibited is allowed. In the case of UNCLOS, it is very clear the legislative text specifically prohibits the creation of territory seas around artificial structures.

Blackstone said:

My claim is US FON operation is an important issue, because it's an attempt to affirm US military primacy and to assuage China's maritime neighbors US could still be counted on to protect them. It's all part of what Obama calls "who leads" in Asia.

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Ok I understand where you are coming from. I know that has been your consistent view and I respect that.

Brumby said:

I don't believe that is the case, not from a detailed legal argument that I have seen. In fact the reverse is true that there is a recognition that sovereign airspace lags maritime legal development in international issues. There are attempts to equate I.e. to sync them in terms of a legal framework but I don't believe we are there yet.

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The Convention on International Civil Aviation signed in 1944 by 52 states with last revision in 2006 states

Article 1 - The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory.

Article 2 - For the purposes of this Convention the territory of a State shall be deemed to be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State.

Currently, the Chicago Convention has 191 state parties.

Brumby said:

You should also note that in international law, there is a well known legal principle that should be regarded as part of the consideration and that is the Lotus Principle. It is an old established case law that basically outlines the principle that what is not specifically prohibited is allowed. In the case of UNCLOS, it is very clear the legislative text specifically prohibits the creation of territory seas around artificial structures.

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Yes but one can't ignore what's underneath the artificial portions of the current features. I didn't say all the artificial features are entitled to territorial seas, only those where the natural features underneath had always entitled them territorial seas.

joshuatree said:

The Convention on International Civil Aviation signed in 1944 by 52 states with last revision in 2006 states

Article 1 - The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory.

Article 2 - For the purposes of this Convention the territory of a State shall be deemed to be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State.

Currently, the Chicago Convention has 191 state parties.




Yes but one can't ignore what's underneath the artificial portions of the current features. I didn't say all the artificial features are entitled to territorial seas, only those where the natural features underneath had always entitled them territorial seas.

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If you are dealing with established situations without disputes, controversies or ambiguity then yes I agree that is straight forward because the 12 nm territory are recognised sovereign space both at sea and in the air. However islands/rocks which itself are subject to recognition as to its true state are different from land mass besides the fact they themselves are subject to disputes in matter of sovereignty. They are in effect no longer straight forward conversations.

Additionally, the matters currently before the International High Court would also be instructive and clarify certain issues once the legal decisions are published.

With the reference point lost under concrete I believe no one can prove it still maintains it's natural features.

Brumby said:

If you are dealing with established situations without disputes, controversies or ambiguity then yes I agree that is straight forward because the 12 nm territory are recognised sovereign space both at sea and in the air. However islands/rocks which itself are subject to recognition as to its true state are different from land mass besides the fact they themselves are subject to disputes in matter of sovereignty. They are in effect no longer straight forward conversations.

Additionally, the matters currently before the International High Court would also be instructive and clarify certain issues once the legal decisions are published.

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While the issue of competing claims to sovereignty exists, this does not change the underlying entitlements to certain features that were naturally above high tide. Which means per UNCLOS and the Chicago Convention, those features have their own territorial sea and air space. That remains straight forward.

With regards to US planned action, since it has proclaimed more than once that it does not have a claim in the SCS nor take sides, then regardless of who has sovereignty over those high tide features, the US would be violating sovereign airspace if flying within 12 NM. It's not international airspace. As for sailing within 12 NM as a demonstration of FON, this is already afforded by UNCLOS. So for those in the camp believing the USN sailing within 12 NM will demonstrate it isn't Chinese sovereignty, it doesn't accomplish that.

The arbitration panel will not be deciding the issue of sovereignty. Infact, the Filipino case argument regarded features as rocks and skips over them in order to make their case admissible. Taking all this into account, it means what the Chinese have done hasn't definitively violated any law and won't be judged any time soon on it either.

SamuraiBlue said:

With the reference point lost under concrete I believe no one can prove it still maintains it's natural features.

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Two sides of a coin, no one can disprove it either. Furthermore, the Dept of Foreign Affairs of the Philippines in Jan 2013 submitted Note Verbale No 13-2011 which listed Johnson Reef, Cuarteron Reef, and Fiery Cross Reef as rocks above high tide in natural state. So there is really no doubt about whether they were above high tide or not prior to reclamation.

joshuatree said:

While the issue of competing claims to sovereignty exists, this does not change the underlying entitlements to certain features that were naturally above high tide. Which means per UNCLOS and the Chicago Convention, those features have their own territorial sea and air space. That remains straight forward.

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At face value that appears to be the reading of the text but proofing it may well become impossible because the natural features are now under concrete. The issues now before the tribunal is instructive as it has been asked to make a determination of the eight islands currently occupied by China whether it is island or rock.

joshuatree said:

With regards to US planned action, since it has proclaimed more than once that it does not have a claim in the SCS nor take sides, then regardless of who has sovereignty over those high tide features, the US would be violating sovereign airspace if flying within 12 NM.

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As the United States has not recognized Chinese title to the features, it is not obligated to observe requirements of a theoretical territorial sea and may treat the feature as terra nullius. More importantly, even assuming that one or another state may have lawful title to a feature, other states are not obligated to confer upon that nation the right to unilaterally adopt and enforce measures that interfere with navigation, until lawful title is resolved. In fact, observing any nation’s rules pertaining to features under dispute legitimizes that country’s claim and takes sides which the US has consistently said it will not do.

joshuatree said:

The arbitration panel will not be deciding the issue of sovereignty. Infact, the Filipino case argument regarded features as rocks and skips over them in order to make their case admissible. Taking all this into account, it means what the Chinese have done hasn't definitively violated any law and won't be judged any time soon on it either.

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Whilst I agree that the tribunal will not be addressing the issue of sovereignty, the Philippines has specifically asked the tribunal to address whether the eight islands currently occupied by China are rocks or islands and consequently their entitlements. This goes a long way in establishing the limits of the claim regardless of who has final ownership.

In regards to whether China has violated any law it is dependent on whether the 12 nm limit is placed on all the reclaimed islands since some do not meet the standard before the reclamation.

joshuatree said:

Two sides of a coin, no one can disprove it either. Furthermore, the Dept of Foreign Affairs of the Philippines in Jan 2013 submitted Note Verbale No 13-2011 which listed Johnson Reef, Cuarteron Reef, and Fiery Cross Reef as rocks above high tide in natural state. So there is really no doubt about whether they were above high tide or not prior to reclamation.

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With no proof it can and will be classified as an artificial island that has no territorial water beyond 500 meters when taken to International court of
That is how court of law operates and one of the consequences of destroying natural formation to suit own purpose.

SamuraiBlue said:

With no proof it can and will be classified as an artificial island that has no territorial water beyond 500 meters when taken to International court of

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That is how court of law operates and one of the consequences of destroying natural formation to suit own purpose.

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Strawman argument. I already provided one official document from another state besides China agreeing at least three features are rocks per the UNCLOS classification. And that state is the Philippines which isn't friendly to China in those waters at all. That's already one proof. There are many other unofficial non-Chinese reports predating reclamation that described some of those features as being above high tide as well. A court operates on what available evidence is brought to the case and burden of proof is on those laying charge that none of the features are naturally above high tide. That's how it works.

With your rationale on consequences of destroying natural formation to suit one's purpose, Okinotori should be reclassified as merely an artificial island with a safety zone of no more than 500 meters because the Japanese have actively altered the natural progression of the feature which would be complete destruction of the last two remaining tiny rocks above high tide due to natural erosion from storms and wave action.