South China Sea Strategies for other nations (Not China)

Blitzo

Lieutenant General
Staff member
Super Moderator
Registered Member
In order not to be misunderstood, I am not saying China has no legal basis to its claims. If it is under UNCLOS, its case is very weak at best. It doesn't mean China cannot make a claim outside the LOS convention as a historic claim. It just needs to set out its case and the legal premise for its claims. So far it has not done the bare minimum. If China is making a claim under general international law rather than the LOS convention, its claim would still need to be justified under such law. There is generally a three-part legal test under such an approach :
(I) Evidence of effective exercise of authority over its claims;
(ii) Evidence of continuous exercise of authority over its claims; and
(iii) Acquiescence by other states to (i) and (ii).

If everything fails, might is right. You just have to take your pick.

I expect China will eventually make a claim, but later rather than sooner, at a time when it knows a ruling will be made in its favour.
And/or China will pursue negotiations with relevant parties in a way that is acceptable for China.

The reasons for the ambiguity of the claim has been discussed before
 

joshuatree

Captain
I expect China will eventually make a claim, but later rather than sooner, at a time when it knows a ruling will be made in its favour.
And/or China will pursue negotiations with relevant parties in a way that is acceptable for China.

The reasons for the ambiguity of the claim has been discussed before

I agree, I think once the reclamation is completed, China will move towards clarification. China has always preferred bilateral negotiations and it's shown a record of resolving some disputes through such means such as land demarcations with Russia, Vietnam, Pakistan, and Kazakhstan as examples. But with no progress using this venue, China is prepping to meet at least two criteria listed.

(I) Evidence of effective exercise of authority over its claims;
(ii) Evidence of continuous exercise of authority over its claims; and

This is something Vietnam and Philippines have been trying to do for years as well with their occupation and building program.
 

Zetageist

Junior Member
Before UNCLOS a nation cannot make claim to body of water beside territorial shore line.
That changed with UNCLOS with the acceptance of EEZ. Both are based on a baseline which is natural formation that is above waters at high tide.
The land PRC is claim is not nor the open sea that is 200 miles from any shorelines within the 9 dash line.

As I have mentioned before: Thitu Island (Philippines), Itu Aba (Taiping Island - Taiwan), Spratly Island (Vietnam) and Fiery Cross Reef (2 rocks above high tide - China) are all located on 'High Sea' - not within any claimants' 200nm EEZ if not taking continental shelf claim into account.
 

Brumby

Major
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I am familiar with this document as my primary understanding of the legal issues concerning this dispute is derived from this document. I would suggest anyone interested in this subject to read the document as it outlines all the legal issues associated with the dispute.

What you are quoting does not correspond to your conclusion. The selected quotes is just outlining the different manner in which disputes are assessed and dealt with. If you read the document in its entirety, should China wish to pursue it under LOS convention then it is obvious that it has a weak hand primarily the islands/rocks are outside the 200 nm zone.

Extracted below is a summary conclusion from the document which is more comprehensive and instructive.
"China has not clarified its maritime claims associated with the dashed-line maps in a manner consistent with international law. China’s laws, declarations, official acts, and official statements present conflicting evidence regarding the nature and scope of China’s claims. The available evidence suggests at least three different interpretations that China might intend, including that the dashes are (1) lines within which China claims sovereignty over the islands, along with the maritime zones those islands would generate under the LOS Convention; (2) national boundary lines; or (3) the limits of so-called historic maritime claims of varying types.

As to the first interpretation, if the dashes on Chinese maps are intended to indicate only the islands over which China claims sovereignty then, to be consistent with the law of the sea, China’s maritime claims within the dashed line would be those set forth in the LOS Convention, namely a territorial sea, contiguous zone, EEZ, and continental shelf, drawn in accordance with the LOS Convention from China’s mainland coast and land features that meet the definition of an “island” under Article 121 of the Convention. Because sovereignty over South China Sea islands is disputed, the maritime zones associated with these islands would also be disputed. In addition, even if China possessed sovereignty of the islands, any maritime zones generated by those islands in accordance with Article 121 would be subject to maritime boundary delimitation with neighbouring States.

As to the second interpretation, if the dashes on Chinese maps are intended to indicate national boundary lines, then those lines would not have a proper legal basis under the law of the sea. Under international law, maritime boundaries are created by agreement between neighboring States; one country may not unilaterally establish a maritime boundary with another country. Further, such a boundary would not be consistent with State practice and international jurisprudence, which have not accorded very small isolated islands like those in the South China Sea more weight in determining the position of a maritime boundary than opposing coastlines that are long and continuous. Moreover, dashes 2, 3, and 8 that appear on China’s 2009 map are not only relatively close to the mainland shores of other States, but all or part of them are also beyond 200 nm from any Chinese-claimed land feature.

Finally, if the dashes on Chinese maps are intended to indicate the area in which China claims so-called “historic waters” or “historic rights” to waters that are exclusive to China, such claims are not within the narrow category of historic claims recognized in Articles 10 and 15 of the LOS Convention. The South China Sea is a large semi-enclosed sea in which numerous coastal States have entitlements to EEZ and continental shelf, consistent with the LOS Convention; the law of the sea does not permit those entitlements to be overridden by another State’s maritime claims that are based on “history.” To the contrary, a major purpose and accomplishment of the Convention is to bring clarity and uniformity to the maritime zones to which coastal States are entitled. In addition, even if the legal test for historic waters were applicable, the dashed-line claim would fail each element of that test.

For these reasons, unless China clarifies that the dashed-line claim reflects only a claim to islands within that line and any maritime zones that are generated from those land features in accordance with the international law of the sea, as reflected in the LOS Convention, its dashed-line claim does not accord with the international law of the sea."
 

Blackstone

Brigadier
I have to disagree. In modern times, UNCLOS is the main terms of reference to settle international disputes of the sea and precisely why it was put together to help resolve disputes. Having said that, that doesn't mean two interested state can't agree outside the provisions of the convention provided there are no third parties objecting. By default, the LOS convention is the go to provisions and precisely what Samurai is referencing. If for example China doesn't want to abide by the convention then there is nothing others can do about it. One just have to ensure you can't have the cake and eat it.
The problem is, Brumby, UNCLOS wasn't setup to deal with sovereignty disputes
I have to disagree. In modern times, UNCLOS is the main terms of reference to settle international disputes of the sea and precisely why it was put together to help resolve disputes. Having said that, that doesn't mean two interested state can't agree outside the provisions of the convention provided there are no third parties objecting. By default, the LOS convention is the go to provisions and precisely what Samurai is referencing. If for example China doesn't want to abide by the convention then there is nothing others can do about it. One just have to ensure you can't have the cake and eat it.
You miss the mark, Brumby. UNCLOS wasn't intended to settle sovereignty disputes on various land features, especially disputes that existed before UNCLOS was created. SCS is one such case where original sovereignty claims preceded UNCLOS, so unless claimants agree to use it to solve their opposing claims, it has no jurisdiction. A secondary problem is China opted out of involuntary International Court arbitration, so the issues can't be solved in The Hague anyway.
 

Blackstone

Brigadier
In order not to be misunderstood, I am not saying China has no legal basis to its claims. If it is under UNCLOS, its case is very weak at best. It doesn't mean China cannot make a claim outside the LOS convention as a historic claim. It just needs to set out its case and the legal premise for its claims. So far it has not done the bare minimum. If China is making a claim under general international law rather than the LOS convention, its claim would still need to be justified under such law. There is generally a three-part legal test under such an approach :
(I) Evidence of effective exercise of authority over its claims;
(ii) Evidence of continuous exercise of authority over its claims; and
(iii) Acquiescence by other states to (i) and (ii).

If everything fails, might is right. You just have to take your pick.
Once again you're mistaken on the proper usage of UNCLOS, and since you've proven yourself to be an intelligent and reasonable person in the past, I'm forced to the conclusion you're doing it on purpose. If you believe yourself to be right, then show us the following:
1) What does UNCLOS say about sovereignty disputes? Hint, EEZ isn't sovereignty.
2) Where in UNCLOS does it say it's the authority on sovereignty disputes before UNCLOS was created? Hint, it's silent on the issue.
 

joshuatree

Captain
For these reasons, unless China clarifies that the dashed-line claim reflects only a claim to islands within that line and any maritime zones that are generated from those land features in accordance with the international law of the sea, as reflected in the LOS Convention, its dashed-line claim does not accord with the international law of the sea."


Actually the last paragraph corresponds with what I said, if the nine dash only reflects a claim of land features within the dashes and whatever territorial seas plus EEZs they are entitled to derived from those features, then the nine dashes are not completely out of sync with UNCLOS. The article goes further on the issue then being who actually owns the features and that's another debate but the last few pages of posts in this thread were about the dashes not complying with UNCLOS. All I'm pointing out is under this scenario, it can be.
 

Blackstone

Brigadier
I am familiar with this document as my primary understanding of the legal issues concerning this dispute is derived from this document. I would suggest anyone interested in this subject to read the document as it outlines all the legal issues associated with the dispute.
Oh really? What part or parts of the US document do you disagree with? I ask that because I also agree with the document, which mainly calls for China to clarify its position on the 9-dash line and everything in it. It also outline related issues for consideration, but nowhere does the document say China must allow UNCLOS to rule over all aspects of its SCS disputes with other claimants. And UNCLOS uber alles is your main point, isn't it?
 

SamuraiBlue

Captain
Once again you're mistaken on the proper usage of UNCLOS, and since you've proven yourself to be an intelligent and reasonable person in the past, I'm forced to the conclusion you're doing it on purpose. If you believe yourself to be right, then show us the following:
1) What does UNCLOS say about sovereignty disputes? Hint, EEZ isn't sovereignty.
2) Where in UNCLOS does it say it's the authority on sovereignty disputes before UNCLOS was created? Hint, it's silent on the issue.

Blackstone you sound like a broken record player in which within your prior post agreed with Brumby's explanation which had completely blown your claim out of the water.
I suggest you stop arguing for the sake of arguing.
 

Blackstone

Brigadier
Blackstone you sound like a broken record player in which within your prior post agreed with Brumby's explanation which had completely blown your claim out of the water.
I suggest you stop arguing for the sake of arguing.
What you're doing is known as pot calling the kettle black (google it if you don't understand its meaning). You reserve the right to repeat fallacious arguments, but object to others pointing out your mistakes. You can't win SCS and UNCLOS arguments with logic and facts. Full stop.
 
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