South China Sea Strategies for other nations (Not China)

Jeff Head

Jeff Head

General
Registered Member
I have opened a specific thread about all the news associated with the US Navy and PLAN in the South China Sea.

US Navy & PLAN - South China Sea Situation News

Read the intro and post news about these vents, and specifics about the vessels there. Leave this page for general strategies for other nations outside China or US.
 
Brumby

Brumby

Major
Deino said:
For me the most funny part of this UNCLOS-story and the so often repeated US-hints to this "law" is that the USA not even signed UNCLOS:


Even more important and for me a true sign for the true US' intentions:


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For me this reads like: we call on unlawful actions if they fit my arguments but otherwise I do what I want to do.

Deino
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This line has so often been mentioned that it has taken at face value to represent the whole truth. However what should also be noted is that in international law, when a head of state makes a declaration that it will abide by the provisions of certain international law it has the same effect and can be held accountable to those provisions in international courts. In this example with UNCLOS, it is my understanding President Reagan make this declaration that the US will abide by UNCLOS provisions. In other words, you can take it to the bank and hold the US to the UNCLOS provision.
 
Blackstone

Blackstone

Brigadier
Brumby said:
This line has so often been mentioned that it has taken at face value to represent the whole truth. However what should also be noted is that in international law, when a head of state makes a declaration that it will abide by the provisions of certain international law it has the same effect and can be held accountable to those provisions in international courts. In this example with UNCLOS, it is my understanding President Reagan make this declaration that the US will abide by UNCLOS provisions. In other words, you can take it to the bank and hold the US to the UNCLOS provision.
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The Constitution is the law of the land in the US, and not dictum from dictators.

The President may negotiate treaties in good faith, but it's the Senate that must ratify them; all Presidental administrations make that point clear in any treaty negotiations.

So, you can't take to the bank US will follow UNCLOS, because the Senate rejected it. US Presidents have generally followed UNCLOS, because no one took the issue to the Supreme Court. But, if the issue is taken to the Court, and if the Supremes say it's un-Constitutional, then that's the law.
 
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Jeff Head

Jeff Head

General
Registered Member
Blackstone said:
The Constitution is the law of the land in the US, and not dictum from dictators.

The President may negotiate treaties in good faith, but it's the Senate that must ratify them; all Presidental administrations make that point clear in any treaty negotiations.

So, you can't take to the bank US will follow UNCLOS, because the Senate rejected it. US Presidents have generally followed UNCLOS, because no one took the issue to the Supreme Court. But, if the issue is taken to the Court, and if the Supremes say it's un-Constitutional, then that's the law.
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Well said.

Without going to deep into all the intricacies, a particular administration can administrate according to "understandings."

But that does not make it a treaty and the "law" in the US.

The House and Senate can challenge such understandings at any time and can, if the will is there, simply defund it. If the president sought to over come that after losing such a debate and vote, then he stands into impeachment territory.

What this means is simply that a particular administration having such an agreement does not hold any promise or guarantee that he will get to do it for long, or that another admin will either.

A treaty on the other hand, does hold successive president to that standard because a treaty becomes law.
 
Brumby

Brumby

Major
Blackstone said:
The Constitution is the law of the land in the US, and not dictum from dictators. The President may negotiate treaties in good faith, but it's the Senate that must ratify them; all Presidental administrations make that point clear in any treaty negotiations. So, you can't take to the bank US will follow UNCLOS, because the Senate rejected it. US Presidents have generally followed UNCLOS, because no one took the issue to the Supreme Court. But, if the issue is taken to the Court, and if the Supremes say it's un-Constitutional, then that's the law.
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I am not referring to the internal legal issues between Presidential declaration (executive nature) and the Senate and the role of the Supreme Court in this. I am referring to an executive declaration that has not been rescinded by subsequent Presidents. It has to do with international laws and norms and what constitutes to be binding externally and not the internal aspect. Bottom line is that any legal document is only as good as the paper it is written on if there is no intention to uphold anything. In contrast, China has supposedly signed on to UNCLOS but so far it seems to be more form than substance.
 
Blackstone

Blackstone

Brigadier
Brumby said:
... It has to do with international laws and norms and what constitutes to be binding externally and not the internal aspect. Bottom line is that any legal document is only as good as the paper it is written on if there is no intention to uphold anything. In contrast, China has supposedly signed on to UNCLOS but so far it seems to be more form than substance.
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Let me challenge you a bit by asking of you what UNCLOS provisions China has violated and what court agrees with that claim? Evidence show China's record in International Trade Court is good; it wins some cases, and loses some cases, but it follows court rulings and generally supports established norms.

With regards to UNCLOS, the ICJ hasn't rendered decisions on any portion of Philippines' suit, so it's possible ICJ may agree with China on lack of jurisdiction. Until the judges hand down some decisions, I don't think it's just to say with certainty China violated UNCLOS rules. I accept some SDF posters have legal backgrounds and can make arguments from learned positions, but even they can't say China violated portions of UNCLOS with certainty.
 
Brumby

Brumby

Major
Blackstone said:
Let me challenge you a bit by asking of you what UNCLOS provisions China has violated and what court agrees with that claim? Evidence show China's record in International Trade Court is good; it wins some cases, and loses some cases, but it follows court rulings and generally supports established norms.
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It is a rhetorical in nature with this issue because since China simply refuses to go before an international court then this question can never be addressed. The closest we can get to is by China clearly infringing on specific provisions of UNCLOS by is actions like the 12 nm issue over low tide elevations of artificial islands but just look at the amount of dancing around this one point.

Blackstone said:
With regards to UNCLOS, the ICJ hasn't rendered decisions on any portion of Philippines' suit, so it's possible ICJ may agree with China on lack of jurisdiction. Until the judges hand down some decisions, I don't think it's just to say with certainty China violated UNCLOS rules. I accept some SDF posters have legal backgrounds and can make arguments from learned positions, but even they can't say China violated portions of UNCLOS with certainty.
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I am careful with words. In the specific post that you are commenting on, I did not say to the effect about China violating specific provisions of UNCLOS. I simply highlighted between form and substance.
 
Brumby

Brumby

Major
South China Sea Conflict Update 2015: Hague Agrees To Hear Claims From Philippines Over Disputed Territory

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An international tribunal in the Hague, Netherlands,
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concerning an ongoing dispute over land claims in the South China Sea, Agence France-Presse reported Thursday. Controversy over the territories known as the Spratly Islands and the surrounding waters has been building over the past several weeks as China grows more bold in its claim of sovereignty over the region, and as other international powers, including the United States, are drawn into the fray.
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It is a significant development for the Philippines in establishing prima facie evidence that it has a case and will get its day in court.


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The Philippines had asked the Hague-based panel to consider its case under the convention, which falls within the panel's jurisdiction.

The panel
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that it had the authority to hear seven of Manila's submissions under the convention.

The court said in a statement that it rejected the argument by China that the "dispute is actually about sovereignty over the islands in the South China Sea and therefore beyond the tribunal's jurisdiction".

The court instead ruled that the case reflects "disputes between the two states concerning the interpretation or application of the convention".
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The decision of the 5 member panel was unanimous. It will rule on the rocks and islands which I think is good for all as it removes the ambiguity on interpretation.
 
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SamuraiBlue

SamuraiBlue

Captain
I hope this will bring some civility to the issue.

The Hague court agrees to take up South China Sea row

THE HAGUE —An international tribunal ruled Thursday it had the power to hear a case brought by the Philippines over disputed islands in the South China Sea, in a move likely to trigger fury in Beijing.

Manila has insisted the U.N. Convention on the Law of the Sea, which the Philippines and China have both ratified, should be used to resolve the bitter territorial row over isolated reefs and islets, which has triggered growing international alarm.

But China has refused to participate in the proceedings, arguing the Permanent Court of Arbitration—which is more than a century old and based in The Hague—had no jurisdiction over the case.

“Reviewing the claims submitted by the Philippines, the tribunal has rejected the argument” by China that the “dispute is actually about sovereignty over the islands in the South China Sea and therefore beyond the tribunal’s jurisdiction,” the court said in a statement.

Instead, the court ruled the case reflects “disputes between the two states concerning the interpretation or application of the Convention”—something which falls within its remit..... to read more
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