South China Sea Strategies for other nations (Not China)

SamuraiBlue said:

Which is a private citizen's opinion since he is a former official and never been part of UN so it has no reference to the subject.

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By Lam Yen, Thanh Nien News
Monday, July 11, 2016 09:37 Email Print

Vietnam has sent a diplomatic note to Thailand asking it to investigate a recent attack by the Thai Navy on three Vietnamese fishing boats in the Gulf of Thailand.

According to Nguyen Hai Ngoc, first secretary at the Vietnamese embassy in Bangkok, the incident happened at around 2 p.m. on July 8.

Thai vessels attacked the Ben Tre Province-registered boats with a total of 18 people on board, and two people were injured while a man went missing, he said.

They also crashed into and sank two boats, he added.

The injured men, Nguyen Van Teo and Nguyen Van Linh, were taken by helicopter to a hospital in Songkhla Province.

The 15 others will be taken ashore Monday, but it is unclear what will be done with the remaining boat.

A Songkhla court will today try the fishermen for illegally entering and fishing in Thai waters.

Ngoc said that it is against international law and common practice to shoot at foreign fishing boats for such acts.

The embassy has sent representatives to Songkhla to assist the fishermen.

On September 11 last year Thai forces also shot at Vietnamese fishermen and killed one of them.
Thai authorities are yet to respond to a diplomatic note sent by the Vietnamese foreign affairs ministry to investigate.

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Questions of neutrality: China takes aim at judges in South China Sea case
PUBLISHED : Monday, 11 July, 2016, 2:00am
UPDATED : Monday, 11 July, 2016, 2:15am

Chinese officials and media have questioned the neutrality of judges handling the South China Sea case initiated by the Philippines.

Fire has been focused on the person who picked the arbitrators – Japanese judge Shunji Yanai, who has been branded a “rightist” and “unfriendly to China”.

Vice Foreign Minister Liu Zhenmin questioned the “procedural justice” of the appointment and the operation of the tribunal in an article published in the Communist Party mouthpiece magazine Qiushi last Monday.

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China has refused to take part in the proceedings, and in its absence, four of the five arbitrators were appointed by Yanai, who at the time the case was filed in 2013 was president of the International Tribunal for the Law of the Sea (ITLOS), established under the UN Convention on the Law of the Sea. The other one was named by the Philippines.

Liu said Yanai should have avoided involvement given the territorial and maritime disputes between China and Japan in the East China Sea, and Tokyo’s attempts to involve itself in the South China Sea issue.

The judges Yanai appointed included one who had ruled against a party holding a position similar to China in a previous case, Liu added. “Leaving aside the obvious violation of procedural justice, we can hardly make a better explanation of Judge Yanai’s motivation and purpose other than that he did it on purpose,” Liu said.

South Korea also expressed its concerns over Yanai’s presidency of ITLOS as it also has territorial disputes with Japan.

Yanai has long been a figure of scorn among nationalist Chinese. A commentary by Xinhua described Yanai, a former senior Japanese foreign ministry official who also served as the country’s ambassador to Washington, as a “typical rightist, hawkish figure”.

In 2007, during Shinzo Abe’s first term as Japanese prime minister, Yanai served as chairman of a panel set up to advise Abe on his plan to revise the constitution to allow military action overseas. “South Korea also expressed its concerns over Yanai’s presidency of ITLOS as it also has territorial disputes with Japan,” Xinhua said.

Soon after the appointment of the tribunal, Yanai told Japanese broadcaster NHK that the islands of Japan were under enemy threat, according to a research report by the Chinese Initiative on International Law, a Hong Kong and Hague-registered NGO whose members are legal professionals and academics.

Although Yanai did not explicitly name the “enemy”, such a statement was clear enough for China to raise concerns over his impartiality in the case, the report said.

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But its own reaction to verdict may be muted amid uncertainty over how Manila will respond

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Japan Correspondent In Tokyo

Japan is brokering a joint statement on the South China Sea ruling with its counterparts in the Group of Seven (G-7) advanced economies as part of a "proactive diplomacy" drive, though its own reaction to the verdict tomorrow may be muted.

Local media reports last week said the G-7 is expected to issue the statement - the group's third on maritime security since April - to pressure Beijing to respect the decision and follow international law and norms in settling disputes.

China has refused to take part in the arbitration brought against it by the Philippines over its expansive claims in the South China Sea and has said it will not recognise the ruling.

Countries in South-east Asia have a positive track record of referring disputes to the international legal process and abiding by the rulings, analysts have said.

One of these is the dispute between Singapore and Malaysia over Pedra Branca, an island 50km off the Singapore coast.

Although Singapore had possession of the island, it agreed to arbitration at the International Court of Justice, which in 2008 awarded sovereignty over the island to Singapore. Both countries abided by the outcome, allowing them to continue to work together.

KEEPING LATITUDE
The Japanese government wants to keep space for questioning the court decision when necessary. But Japan will probably repeat its basic stance - the territorial dispute should be dealt with in accordance with the 'rule of law'.

DR RYOKO NAKANO, from Japan's Kanazawa University, who noted that Japan has resumed Antarctic whaling in spite of an international court ruling for it to cease such actions, and that may prompt Tokyo to keep its response to the South China Sea verdict low-key.

In the current case before the Permanent Court of Arbitration, Japan is not a claimant state in the South China Sea, which is a vital waterway for global trade. But it sees the increasing Chinese military might as a threat and, to counter this, it has pledged naval support to Vietnam and the Philippines.

Dr Masashi Nishihara, president of Japan's Research Institute for Peace and Security, noted that Tokyo, as leader of the G-7 this year, is taking efforts "to bring its G-7 counterparts in line with Asean allies".

He said: "Before the G-7 meetings, some of the European countries did not take any particular interest in the South China Sea, but since then they have begun to take greater interest."

France raised some eyebrows at last month's Shangri-La Dialogue security forum in Singapore when it proposed that European navies coordinate patrols in Asian waters to reinforce a rules-based maritime order.

Japan is embroiled in a separate dispute with China over islets in the East China Sea.

Tomorrow's decision follows Chinese allegations last week - which Japan has vehemently denied - that two Japanese fighter jets had taken "provocative actions" at high speed near a pair of Chinese fighter jets over the East China Sea.

But Dr Ryoko Nakano, who teaches international relations at Japan's Kanazawa University, noted that Japan may keep its response low-key for two reasons.

First, it remains uncertain how recently elected Philippine President Rodrigo Duterte will deal with the decision and Japan "does not want to look overexcited".

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One day to go for Hague tribunal verdict that will cause ripples across East Asia

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The Hague: When the

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(PCA) delivers its verdict on the South China Sea dispute here tomorrow, it is likely to stay clear of three sensitive issues.

First, the tribunal will not rule on the validity or legality of the ‘nine-dash-line’ (shown in the map above as the solid red claim line) that has been invoked by China to assert its “sovereignty” over islands and other maritime features in the South China Sea. Second, the PCA will not assess whether new “islands” created by China through sand dredging and land reclamation since 2013 constitute sovereign territory. And third, the arbitral tribunal will make no attempt to delineate a maritime boundary that is acceptable to China and the Philippines.

Instead, the PCA on Tuesday will answer two narrow questions:

• First, whether China has certain “historical rights” that grant it absolute entitlements in the South China Sea; and
• Second, if maritime features in the sea like Mischief Reef, Fiery Cross Reef and Scarborough Shoal are “low-tide elevations” or “rocks” within the meaning of the UN Convention on the Law of Sea (UNCLOS).

The tribunal’s decision may not set headlines on fire, but it will force a legal imprimatur on the resolution of future South China Sea disputes, not just between China and the Philippines, but among all littoral states that have staked a claim to the islands in the region – including Malaysia, Brunei and the Philippines.

This is precisely the outcome that China wants to avoid, which explains why Beijing has made no formal representation before the arbitral tribunal since proceedings began in July 2013.

What Philippines wants
The Philippines government, led then by a belligerent president Benigno Aquino III, approached the Permanent Court of Arbitration in January 2013 with a simple request: uphold plainly Manila’s rights under UNCLOS with respect to its territorial sea, exclusive economic zone and continental shelf.

UNCLOS – the international treaty governing maritime matters – grants countries a 200 nautical mile exclusive economic zone, even though a state’s territorial waters extend only as far as 12 nautical miles.

In other words, the Philippines sought to affirm its sovereign economic rights on any maritime feature in South China Sea that extended upto 200 miles from its shores. To support this claim, Manila argued that the Spratly Islands (which China refers to as the ‘Nansha Islands’) and other assorted reefs and shoals in the area — which are occupied by China, the Philippines, Taiwan, Malaysia and Vietnam — are merely rocks or low-tide features that do not confer any sovereign rights to the occupying state. The governance of marine resources and the exploitation of oil and gas reserves in the South China Sea, the Philippines insisted, must be based on the clear rules set by the UN Convention on the Law of the Sea.

This may seem like an innocuous claim, but its political significance cannot be overstated. Should the tribunal use the provisions of UNCLOS to adjudicate the South China Seas dispute, it will deal a fatal blow to China’s “nine dash line”. The “nine dash line”, claimed officially by China as its outer maritime boundary in the area since 1947, has no basis in the UN regime. It was an eminently political product, with little clarity in Beijing’s policy statements on what the “line” actually signified.

The Chinese position
Unsurprisingly, the Chinese government has claimed that this is a dispute over territorial sovereignty, which the Permanent Court of Arbitration has no remit to examine. If the maritime boundaries in the South China Sea themselves have not been determined, this argument goes, how can an arbitral tribunal identify the Philippines’ Exclusive Economic Zone?

Beijing has also insisted that the “unilateral” conduct of the Philippines in pushing for “compulsory dispute settlement” is barred by several bilateral agreements on the South China Sea. Since the sovereign rights over marine resources in the sea were never negotiated between both parties, the dispute should be heard by a third party after all political options are exhausted, China has asserted.

Though UNCLOS envisages several methods of dispute resolution, most disputes between parties have been handled by the PCA.

To protest the “encroachment” of its mandate by the PCA, China has refused to participate in the arbitration. Between July and November 2015, the PCA held seven hearings on the jurisdiction and merits of the case, sending the Chinese Embassy in The Hague a daily transcript of the proceedings. In response to the arbitration, China’s foreign ministry put out two

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highlighting its claims.

Clash of law and geopolitics
In October 2015, however, the tribunal dismissed China’s position that it lacked the jurisdiction to adjudicate the matter, stating that the dispute is centrally about the “interpretation of provisions” in UNCLOS.

Should UNCLOS become the touchstone for distributing maritime rights and responsibilities in the South China Sea, any discussion about the nine-dash-line would be rendered academic. What the Philippines would lack in political clout to demolish, it would accomplish by legal means. This scenario looks increasingly likely: in May 2016, China’s vice foreign minister Liu Zhenmin

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a US media delegation that “the award will probably be in the Philippines favour”. Beijing has also made it amply clear that it will not accept the July 12 ruling.

The Philippines, under a new president who does not share his predecessor’s affection for the United States, has

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of escalating a political dispute with China by legal means.

Days before the verdict, President Rodrigo Duterte sought “direct talks with China as soon as possible”. The PCA’s verdict may be a setback for Beijing but it will irreparably set back relations between both parties, with serious consequences for the stability of the region. In the process of staking its claim, the Philippines may have already risked ties with Taiwan, which is concerned that the tribunal’s verdict may bear adversely on the legal character of the Itu Aba island in the Spratlys, under its control.

As former diplomat Dai Bingguo

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during his recent visit to Washington D.C., it was the United States under General Douglas MacArthur that helped the (then) Republic of China reclaim the Nansha Islands after World War Two. If political exigency drove the US to support China then, it is now nudging the Philippines towards a confrontation with Beijing that Manila cannot afford.

In the aftermath of the pronouncement, India too would do well to maintain a careful distance from the arbitral ruling — this is a dispute characterised by strong legal claims on both sides, but brought to a head prematurely by the geopolitical churn in Asia. It would be unwise for New Delhi to be caught in its currents.

Arun Mohan Sukumar heads the Cyber Initiative at the Observer Research Foundation, New Delhi.

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Equation said:

NO the court has NO jurisdiction over sovereignty issue as told by In an interview with Channel NewsAsia’s Conversation With, Mr He Yafei, China’s former Vice Foreign Minister.

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confusion said:

A real judge on a court with real legitimacy would most likely have recused himself from this case with a political background like Yanai's. However, he didn't see fit to do so, and appointed 4 of the 5 judges in this case (the other judge was chosen by the Philippines).

Other judges on ITLOS have recused themselves before, so if the legitimacy of the ruling is called into question, it's Yanai's own actions and history that are to blame. It's clear that the PCA is a highly politicized, ad hoc committee with very little real judicial integrity.

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Brumby said:

Firstly I am surprised that you invoke my argument as strawman. Although we have opposing views I do find your arguments typically sound except on this occasion. A strawman proposition is when I attempt to rebut a shadow instead of the body as sufficiency. Where is the strawman?

The reported precondition as set by China is not some incidental conditions but is core to the dispute i.e. sovereignty. Such a precondition undermines the whole purpose of the negotiation as it is capitulation on a core issue. In fact I would venture to say that for China to insist on such a precondition is sufficient to label China as not negotiating in good faith. As such, one can hardly fault the Philippines in terminating the talks.

The issue of the conversation as I said is whether the precondition sets up a climate for continuing negotiations. The Philippines made a choice under the said conditions and legally and philosophically there is no obligation on the Philippines to pursue dual track. That may be your argument but is merely a choice.

The other claimants don't set it as a precondition in the negotiations (at least I have not seen any evidence of it). Your example of the joint exploration is testament that both countries can come to some acceptable arrangement when sovereignty is not in the picture. It affirms the fact that by placing it as a precondition, China is in fact sabotaging the prospect of any talks.

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Brumby said:

The side stepping by the Philippines regarding the 12 nm is for the purpose of the arbitration. My point about impediment was over access to navigate. They are not the same discussions.

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Brumby said:

Not so according to historical maps.

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SamuraiBlue said:

Yanai is not part of the actual arbitration process nor is Japan involved in the case.
Basically he just named the judges and that is that he has no power over the actual process.
You can only recuse something if you have special interest and involvement has direct influence.

The Judges are from France, the Netherlands and Ghana.
A German represented Philippines while a Polish represented PRC.

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With China set to reject the upcoming ruling on the South China Sea by the UN's Permanent Court of Arbitration, what’s the next step to containing the simmering dispute?

President John Kennedy’s 'flexible response' strategy might provide an answer.

In early 1961, Kennedy and Defense Secretary Robert McNamara realized that the US’ massive nuclear arsenal could help prevent major war with the Soviet Union, but could not be relied on for emerging challenges; lower-level conflict and intimidation in the peripheries of the Cold War.

They knew they needed a wider range of military, diplomatic, political and economic options readily on hand so that US measures could be appropriately calibrated to address these new concerns.

As Kennedy put it to Congress that year, the US posture "must be sufficiently flexible and under control to be consistent with our efforts to explore all possibilities and to take every step to lessen tensions."

Applying this philosophy to today’s predicament means developing enough flexible options up and down the full ladder of possibilities in order to quickly and credibly respond to escalatory action in the South China Sea.

That’s because a top-heavy strategy of trying to coerce the opposing sides into a resolution of the South China Sea dispute is almost certainly doomed to fail.

Influencing the behavior of China, Vietnam, the Philippines and others involved in the dispute is extremely tough.

They’ve intimately tied their territorial and maritime claims to issues of sovereignty, nationalism, and history and will be hard-pressed to change course.

But trying to push them to the negotiating table through a show of force may be more than countries like the US, Japan or Australia can stomach.

China believes it has more at stake than others and is betting that all the other countries will blink first.

That would be bad news for the region – including China, the US and Australia.

At best, it would set a bad precedent for the future of the Asia-Pacific. At worst, it would lead to a boiling over of the dispute into conflict.

The other tricky problem in the South China Sea has been China’s use of 'salami tactics'; the practice of slowly advancing its position through a series of small, incremental moves.

Each slice of the salami, such as China’s dredging and island building in the South China Sea, is small enough to make any threat of action by the US seem excessive and unreasonable.

But in the long-run, such incrementalism could mean China exercising effective control over the territory within the nine-dash line without ever resorting to majorly inflammatory actions.

Developing a series of incremental responses would help address this problem.

Constructing a flexible response requires developing proportionate reactions to meet each provocative or territorially ambitious action, beginning with improved responses at the bottom rungs of the ladder.

This would include being more vocal about interests of non-claimants in the South China Sea, clearly articulating the dangers to the region of escalating hostility, and being willing to criticize the behavior we see as harmful to the region.

A rung up the ladder would see increased dialog with news media and the release of frequent statements to heighten public awareness.

A key next step would mean not just vocalizing displeasure – but also trying to stigmatize poor behavior, such as disregard for international law.

While risky, strategies of international shaming can force countries to question their policies and whether they have been misunderstood

Indeed, shaming tactics have helped nudge countries grudgingly towards major policy shifts – for example, giving up the use of land-mines and chemical and biological weapons and enforcing human rights.

Strategies to stigmatize poor behavior could include withdrawing embassy personnel, symbolically barring ships from entry to ports, showing displeasure with resource companies considering doing business in disputed territories, and altering existing meetings and programs.

It’s also important to maintain the top rungs of the ladder to help build the credibility of the other options.

That means maintaining options such as enhancing our security relationships with regional partners which share our approach, conducting naval and airspace exercises, and building the capacity of other countries in the region.

The ultimate goal of developing a flexible response would be to have an off-the-shelf ability to actively respond to growing concerns before they become crises with the idea of pushing conflict back towards a lessening of tensions.

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