Taiwan Conducts Live Fire Drills on Spratlys, Angering Vietnam

[Viet]

Taiwan must do this sort of thing on a regular basis。

they can do what they want. we see it as waste of time and money.

 

[Aepsilons]

the philippine navy/airforce have zero chance if china resorts to violent means and take the shoals/islands.

as far as I know, the US-PN defence treaty does not cover the south china sea, or west philippine sea. that is the reason why chinese navy becomes increasingly aggressive in the region. I´m afraid, at the moment, nothing can stop the chinese.

I agree with you. Objectively, had the Chinese wanted to take the Philippines' Sierra Madre by force , it could have. Had they wished to seize the Kalayaan Islands, it could with relative impunity. If China really wanted to.

When I examine this situation, it goes back to the 2012 Scarborough Shoal. First of all, all of this could have been prevented had the Philippines sent the Philippine Coast Guard to interdict the Chinese fishing ship that was in the waters poaching whatever fauna there was. Instead, the Philippines sent its newest Cutter that it had purchased from the United States. You never send a naval ship to do Coast Guard's duty. Did the Philippines intend to do this as a symbolic gesture to China? If it did, it was a gargantuan failure in strategic visage. I mean, how can a nation as weak as the Philippines dare edge on a nation like China which qualitatively and quantitatively outguns Manila on all counts and on all sectors. Foolish and utter stupidity.

What did they expect the Chinese side to do? Not do anything? It eventually resulted in a national image game. China didn't back down to defend its image, and the Philippines collapsed.

What is the lesson we can learn from this?
1) Never send a military ship to do Coast Guard duty
2) Be pragmatic in making decisions
3) Be realistic about your current strengths

 

[Carlosa]

Well, at least you get a picture on what happens when misguided nationalism is mixed with foreign policy... which is the "in-thing" for Philippine politicians.

I just don't understand why some are hesitant in buying arms that is not made from the USA because we will only end up with "hands-me-down" weapons. We may even get decent weapons from Russia (like the BMP-3, BMP-T and BTR-T) or even other European, South American, Indian and possibly even Chinese weapons (though I doubt on this last one considering the present situation), but the common complain is that most of those weapons are non-NATO standard weapon.

Aside from misguided nationalism, extreme racial nationalism, particularly the "Pinoy Pride" to the point that we are embarrassing ourselves to the international stage. What does this line line has something to do with Spratlys? Well if you combine Misguided Nationalism, Extreme Racial Nationalism and weak military force due to obstructive politicians, then saber-rattle a regional power and you have a recipe for disaster and butt-hurt drama from the PH side.

Thank you for your objective, detailed analysis !!!!!!!!

Ha ha, Pinatuvo volcano really had a bad timing, didn't it? It made it really easy to kick the American bases out.

Frankly guys, no need to panic here, nobody is going to invade the Philippine's mainland, nobody has the most remote chance to any claims to that. The issue is about the Spratly islands and reefs. And I would say that those territories could be divided into 2 parts, the eastern ones that I believe is clearly Filipino and the western area where is contested by Vietnam and those were named as French possessions by the French. I'm not going to get into who has the best claim for those, that's another story. Of course China claims everything as usual. My point is, its not a matter of national survival or anything like that. That being said, the country has the responsibility of doing what it must do to defend its territories.

Another point that I want to bring. Philippines really need to get rid of that anti American feeling and hatred of USA. Granted that the country has plenty of historical reasons for that because of the bloody repression and atrocities that US forces did during the colonial era in order to break the Filipino resistance, but that was a long time ago. They need to look at the realities of today and get over it. Philippines should learn from Vietnam in that regard. Vietnamese got over the war feelings and actually, most Vietnamese are quite pro American, they admire everything from USA.

I don't agree with Nihonjin1051 statements that Philippines needs to tone down their rhetoric, Philippines is reacting to China's actions. Philippines tried to negotiate with China (what is a futile exercise anyway), Philippines has the guts to go to arbitration and say what everybody else is thinking but they are not willing to say. China gave no alternative to Philippines, so Philippines did what they needed to do and is the only choice they have. China will not compromise on those territories.

There is always hope and hopefully the Philippines will do what is right.

 

[Carlosa]

One thing that is hampering the development of the PH as a whole is the centralized nature of government - everything is influenced by "Imperial Manila" (even though I am from Manila, this is very true) that development of the said city comes at the expense of "ignoring" the rest. A solution is a Federal system where the government is less centralized but this alone is not enough as changes must also come from the people themselves, to elect the right leader. Problem is that many "lawyers" are running the show...even in positions that has less relevance to their profession (like an attorney running a government agency that deals with transportation?).
.

Ha ha, It reminds me of Thailand and "Imperial Bangkok", same story there. Many countries are like that. That will not be easy to change.

 

[Aepsilons]

Ha ha, It reminds me of Thailand and "Imperial Bangkok", same story there. Many countries are like that. That will not be easy to change.

A vestigial trait of the 'City State' cultures of days long past, i assume. Afterall, in the past, Siam's seat of power had been centralized in Krungthep Maha Nakhon (Bangkok). The Philippines, the seat of power always was centralized in Manila during the Spanish Colonial Epoch. By this, everything revolved around these cities.

Just like in Espana. Everything revolved around Madrid. I do wonder if this is true for Spain to this day?

 

[Carlosa]

A vestigial trait of the 'City State' cultures of days long past, i assume. Afterall, in the past, Siam's seat of power had been centralized in Krungthep Maha Nakhon (Bangkok). The Philippines, the seat of power always was centralized in Manila during the Spanish Colonial Epoch. By this, everything revolved around these cities.

Just like in Espana. Everything revolved around Madrid. I do wonder if this is true for Spain to this day?

Oh no, not at all, you have the rivalry between Madrid and Barcelona for one thing, but anyway, that doesn't even matter much because Spain is politically organized as regions where each region has a lot of autonomy and powers, so actually is one of the cases where central authority is the most weak. Its actually a very good model to address ethnic divisions.

To elaborate some more on the Spanish system. Each region has a particular cultural identity that defines its identity (Catalans, Basque, Galicians, Andalusians, etc). Each region is composed of a number of provinces. Those regions in some cases have their own languages which they use on a par with Spanish (actually, those languages have de facto priority). The system is very fair and equitative. Still, sometimes a region wants more, like now with Catalunia and they want independence (which from my perspective, they can have it).

Actually, Bangkok is a relatively recent seat of power for Thailand. Sukhotai and Ayuthaya were the traditional power centers.

 

[William Hung]

Thank you a lot for searching such details and your sincere mind to analyze this problem.
I have read your words carefully.What you said is mainly consist of these points...

Maybe the misunderstanding and disputes key is in your opinions.

Thank you my friend for replying. First I want to make a summary of my statements again, not just for you, but also for other people who may have misunderstood my posts. After that, I will discuss all your points one by one.

Firstly, I want to remind you that there are two components to this arbitration case. The first component is whether the tribunal has authority to issue legally binding rulings or not (jurisdiction over the dispute). The second component is whether the tribunal agree with the Philippines arguments or not (merits). For the Philippines to succeed, they must receive favourable decisions in both components.

Now, I'll try to explain what the Philippines is trying to do, and how the PRC responded to it.

As we know, both the Philippines and China are signatories to UNCLOS, which mean that they have legally binded themselves to that UNCLOS laws and conventions.

Under UNCLOS, there is a rule that says that when there is a maritime dispute between two parties, both parties must participate in a dispute settlement procedure as declared in Section 2 Part XV:

SECTION 2. COMPULSORY PROCEDURES ENTAILING BINDING DECISIONS

Article 286

Application of procedures under this section

Subject to section 3, any dispute concerning the interpretation or application of this Convention shall, where no settlement has been reached by recourse to section 1, be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under this section.

Article 287

Choice of procedure

1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State shall be free to choose, by means of a written declaration, one or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention:

(a) the International Tribunal for the Law of the Sea established in accordance with Anne VI;

(b) the International Court of Justice;

(c) an arbitral tribunal constituted in accordance with Anne VII;

(d) a special arbitral tribunal constituted in accordance with Anne VIII for one or more of the categories of disputes specified therein.

As you can see here, the Philippines is using option (c) and the tribunal's ruling will be binding.

But China has rejected this tribunal by arguing that they have the right to reject those procedures and its ruling because they have already made a declaration in 2006 for exemption. Here is the declaration:

“The Government of the People’s Republic of China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention.”

China is declaring that they can reject these compulsory dispute settlement procedures if the dispute belongs to the three categories listed in Article 298. Here is Article 298:

Article 298

Optional exceptions to applicability of section 2

1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State may, without prejudice to the obligations arising under section 1, declare in writing that it does not accept any one or more of the procedures provided for in section 2 with respect to one or more of the following categories of disputes:

(a) (i) disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles, provided that a State having made such a declaration shall, when such a dispute arises subsequent to the entry into force of this Convention and where no agreement within a reasonable period of time is reached in negotiations between the parties, at the request of any party to the dispute, accept submission of the matter to conciliation under Anne V, section 2; and provided further that any dispute that necessarily involves the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory shall be excluded from such submission;

(ii) after the conciliation commission has presented its report, which shall state the reasons on which it is based, the parties shall negotiate an agreement on the basis of that report; if these negotiations do not result in an agreement, the parties shall, by mutual consent, submit the question to one of the procedures provided for in section 2, unless the parties otherwise agree;

(iii) this subparagraph does not apply to any sea boundary dispute finally settled by an arrangement between the parties, or to any such dispute which is to be settled in accordance with a bilateral or multilateral agreement binding upon those parties;

(b) disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2 or 3;

(c) disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it by the Charter of the United Nations, unless the Security Council decides to remove the matter from its agenda or calls upon the parties to settle it by the means provided for in this Convention.

In other words, if anyone wants to raise a dispute against China that belongs to any of these categories, then China has the right to ignore it. Any ruling on these kind of dispute will not be legally binding on China (meaning, the tribunal has no jurisdiction over the dispute).

But the Philippines is arguing that the dispute that they are bringing to the arbitral tribunal does not belong to any of the categories as listed in Article 298. The Philippines is saying that the Chinese 2006 declaration can only be invoked if the dispute belong to the 3 categories described in Article 298, but the dispute that they are bringing to the tribunal is not under that category.

So if China cannot invoke the 2006 declaration, then it means that the tribunal will go ahead and investigate the dispute according to Section 2 Part XV. More importantly, their ruling will be legally binding on China (but not enforced).

Since there is a disagreement about whether the tribunal has jurisdiction over the dispute or not, it will be up to the tribunal to decide according to Article 288 (4):

4. In the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.

After the decision about jurisdiction has been settled (the first component), the tribunal will then move on to open the arbitral case (or not, depending on their jurisdictional decision). This will then be the second component (merits).

The Philippines' arbitration notification and statement of claim can be found here:


My notes:

-UNCLOS has jurisdiction over water only, it has no jurisdiction over land.

-I've read the Philippines' notification and they seem to be only asking the tribunal to declare jurisdiction over the submerged reefs and waters. They won't seek arbitration over the few rocks that is above water during high tide (i.e. the few reefs that I mentioned in an earlier post). @Carlosa, I was right, those rocks may have 22km territorial water boundaries.

-We can analyse the jurisdictional issue (the first component) but we cannot analyse the Philippines dispute case itself (the second component) as it hasn't been made public yet.

-One thing we can know for sure about the second component if the tribunal decide to accept jurisdiction over the dispute: China cannot be there to defend itself. Well, they have the final deadline of 15 December 2013 to declare their participation or not. It is most likely that China will not participate. In this case, the Philippines will be at a great advantage since the tribunal will only need to hear their case and nothing from the Chinese case.

 

[Carlosa]

-One thing we can know for sure about the second component if the tribunal decide to accept jurisdiction over the dispute: China cannot be there to defend itself. Well, they have the final deadline of 15 December 2013 to declare their participation or not. It is most likely that China will not participate. In this case, the Philippines will be at a great advantage since the tribunal will only need to hear their case and nothing from the Chinese case.

The court already appointed a Polish judge to represent China's interest.

 

[kyle Chiang]

Thank you my friend for replying. First I want to make a summary of my statements again, not just for you, but also for other people who may have misunderstood my posts. After that, I will discuss all your points one by one.

Firstly, I want to remind you that there are two components to this arbitration case. The first component is whether the tribunal has authority to issue legally binding rulings or not (jurisdiction over the dispute). The second component is whether the tribunal agree with the Philippines arguments or not (merits). For the Philippines to succeed, they must receive favourable decisions in both components.

Now, I'll try to explain what the Philippines is trying to do, and how the PRC responded to it.

As we know, both the Philippines and China are signatories to UNCLOS, which mean that they have legally binded themselves to that UNCLOS laws and conventions.

Under UNCLOS, there is a rule that says that when there is a maritime dispute between two parties, both parties must participate in a dispute settlement procedure as declared in Section 2 Part XV:



As you can see here, the Philippines is using option (c) and the tribunal's ruling will be binding.

But China has rejected this tribunal by arguing that they have the right to reject those procedures and its ruling because they have already made a declaration in 2006 for exemption. Here is the declaration:



China is declaring that they can reject these compulsory dispute settlement procedures if the dispute belongs to the three categories listed in Article 298. Here is Article 298:



In other words, if anyone wants to raise a dispute against China that belongs to any of these categories, then China has the right to ignore it. Any ruling on these kind of dispute will not be legally binding on China (meaning, the tribunal has no jurisdiction over the dispute).

But the Philippines is arguing that the dispute that they are bringing to the arbitral tribunal does not belong to any of the categories as listed in Article 298. The Philippines is saying that the Chinese 2006 declaration can only be invoked if the dispute belong to the 3 categories described in Article 298, but the dispute that they are bringing to the tribunal is not under that category.

So if China cannot invoke the 2006 declaration, then it means that the tribunal will go ahead and investigate the dispute according to Section 2 Part XV. More importantly, their ruling will be legally binding on China (but not enforced).

Since there is a disagreement about whether the tribunal has jurisdiction over the dispute or not, it will be up to the tribunal to decide according to Article 288 (4):



After the decision about jurisdiction has been settled (the first component), the tribunal will then move on to open the arbitral case (or not, depending on their jurisdictional decision). This will then be the second component (merits).

The Philippines' arbitration notification and statement of claim can be found here:


My notes:

-UNCLOS has jurisdiction over water only, it has no jurisdiction over land.

-I've read the Philippines' notification and they seem to be only asking the tribunal to declare jurisdiction over the submerged reefs and waters. They won't seek arbitration over the few rocks that is above water during high tide (i.e. the few reefs that I mentioned in an earlier post). @Carlosa, I was right, those rocks may have 22km territorial water boundaries.

-We can analyse the jurisdictional issue (the first component) but we cannot analyse the Philippines dispute case itself (the second component) as it hasn't been made public yet.

-One thing we can know for sure about the second component if the tribunal decide to accept jurisdiction over the dispute: China cannot be there to defend itself. Well, they have the final deadline of 15 December 2013 to declare their participation or not. It is most likely that China will not participate. In this case, the Philippines will be at a great advantage since the tribunal will only need to hear their case and nothing from the Chinese case.

You are really a sciential and prudential guy.And I think we have reach few consensus in cognize perceive of this question.China and PH has disputes and their own justification.We should take proper procedure to solve this problem.

China will take our own steps in UNCLOS court,including rejecting the arbitration by law.And we will respect ICJ's decisions.Just wait and to see what will happen.

 

[SrNair]

I agree with you. Objectively, had the Chinese wanted to take the Philippines' Sierra Madre by force , it could have. Had they wished to seize the Kalayaan Islands, it could with relative impunity. If China really wanted to.

When I examine this situation, it goes back to the 2012 Scarborough Shoal. First of all, all of this could have been prevented had the Philippines sent the Philippine Coast Guard to interdict the Chinese fishing ship that was in the waters poaching whatever fauna there was. Instead, the Philippines sent its newest Cutter that it had purchased from the United States. You never send a naval ship to do Coast Guard's duty. Did the Philippines intend to do this as a symbolic gesture to China? If it did, it was a gargantuan failure in strategic visage. I mean, how can a nation as weak as the Philippines dare edge on a nation like China which qualitatively and quantitatively outguns Manila on all counts and on all sectors. Foolish and utter stupidity.

What did they expect the Chinese side to do? Not do anything? It eventually resulted in a national image game. China didn't back down to defend its image, and the Philippines collapsed.

What is the lesson we can learn from this?
1) Never send a military ship to do Coast Guard duty
2) Be pragmatic in making decisions
3) Be realistic about your current strengths

Perhaps Philipines thought that US would come for their back up.
But I absolutely agree with your comments.China is much powerful and Philipines did a folly by expanding the game.

 

[William Hung]

Thank you a lot for searching such details and your sincere mind to analyze this problem.

OK my friend, now I will address your points one by one.

(1)This arbitration case does not concern or involve "historic bays or titles"
(2)2006 declaration of China can't be used in this issue refer to (1).Therefor,China should not refuse arbitration.

Yes, but not just because (1), but also because it does not involve in any dispute mentioned in article 298.

I didn't say China should not refuse arbitration. China can refuse it because the tribunal does not have any mechanism to enforce arbitration. I'm simply asking what would be the legal status of China refusing arbitration.

(3)All of the reefs currently in China's possession does not have any EEZs, continental shelves or water boundaries.So China has broken few clauses of UNCLOS engagement.

Yes, according to article 121(3) under provisions of UNCLOS, it clearly says that any rocks that cannot sustain human habitation will not have any EEZ or continental shelf.

Maybe the misunderstanding and disputes key is in your opinions.
There are few Chinese points:
(1)This issue has involved in historic and titles. We firstly mapping and named these islands such as Huangyan island.In 1279,Yuan dynasty has started a project "mapping the four seas of China"(四海测绘) in this island.In January,1935,China's amphibious map review committee list this island as one of Chinese South-China sea islands.PH firstly claimed for these islands in 1946.
(2)So,2006 declaration of China can be used even concerning to "historic bays or titles".

No, the arbitration dispute case that the Philippines is bringing to the tribunal will not involve any dispute on historic titles.

China will not be at the tribunal to talk about historical issues. This mean that the dispute will not involve anything about historic titles.

The Philippines is aware of your 2006 declaration so they have carefully written their dispute case so it doesn't involve any historic titles issue.

Their disputes documents has not been made public yet. But one of their legal expert said that they have carefully wrote those documents so that it will avoid any historic titles issue so that China can't use the 2006 declaration:

Understanding our Unclos arbitral submission « Harry Roque's Blog

Here is what one of their legal expert say:

After the tribunal has been constituted, China will reply to our statement of claims. It is expected that it will challenge the jurisdiction of the tribunal by invoking its reservation on the dispute settlement procedure. This can either be that the controversy relates to the exercise of sovereign rights and/or involves an issue of maritime delimitation. Both these grounds are provided in the reservations made by China in 2006.

This notwithstanding, credit goes to the Solicitor General because our submission of claims is crafted in a manner that will exclude all of China’s reservations.

They have written the case so that it doesn't mentioned any dispute listed in Article 298.

And in Article 298 in 2006 declaration of China:(iii) this subparagraph does not apply to any sea boundary dispute finally settled by an arrangement between the parties, or to any such dispute which is to be settled in accordance with a bilateral or multilateral agreement binding upon those parties.This is a another specific line comparing to the chaotic history disputes.

I think you have misunderstood this clause. This clause does not help China. It simply stated that if there is already a boundary dispute already settled between the parties, then Article 298 does not apply to such agreement.

(3) Chinese water boundaries is based on our nine-dotted line and the Taiping island of Taiwan proves the EEZs, continental shelves of China.

The Philippines case is not targetting Taiping island or Vietnam's islands. You can check their arbitration notification sent to China. Their dispute case are only targetting the some reefs currently in China's possession. And under UNCLOS law, these reefs don't have any EEZs or continental shelf. A few rocks will have 22.2km territorial water boundary only.

Added points of China:
(1)These disputes should be solved by bilateral negotiations.Taking tough measures or playing international politic game will only hurt our relations.

My friend, I'm not the leader of the Philippines, Vietnam or the tribunal. So there is no point in discussing this.

(2)PH has presented the appeal to ICJ.We will reject the arbitration by law within UNCLOS and respect the decisions of international court.

No, the Philippines is bringing their case to an arbitral tribunal, not the ICJ. They are two different entities.

As I mentioned in my previous post, the tribunal will decide whether China's rejection is legal or illegal. It is not up to China or the Philippines.

 

[Carlosa]

Perhaps Philipines thought that US would come for their back up.
But I absolutely agree with your comments.China is much powerful and Philipines did a folly by expanding the game.

What practical alternative did Philippines have other than expanding the game?

China made it very clear that they will not compromise on the sovereignty of those territories or waters. That's why they already defined that issue as a hard core interest and there is no negotiation on those. The final outcome was already set; at least Philippines now have a chance to shame China and make them lose face if they win the arbitration. Philippines economy is doing well and it does not need China. Actually, Its a liability to depend on China economically.

Also, as a possibility, if they win the arbitration, that might give the legal backing to an outside power to take those territories back.

 

[William Hung]

It would be end game for us. If this happens, will the US get involved as they are getting busy on issues about Russia and ISIS and the China holds most of US debts... and that Japan, Taiwan and South Korea are strategically more valuable than us.

I don't know if the US will intervention or not.

If you're interested, you can check my two previous posts that summarised my analysis.

What I was arguing is that there is a good chance that the tribunal will declare jurisdiction over the dispute, at least for some of those reefs that are submerged underwater. And if they declare this, the Philippines will have a good chance to win it's case because China will not be at the tribunal to defend itself.

And if the Philippines wins, it would legally trigger your MDT with the US because China would be officially regarded as illegally occupying your territory/EEZ under international law.

Then the US will need to decide whether to intervene or to ignore their MDT obligation. Now that is an interesting question.

The court already appointed a Polish judge to represent China's interest.

Yes, and that is one disadvantage that China has put itself into. While the Philippines asked for a representative judge/arbitrator that they know would be favourable to them, China gets a representative Judge appointed randomly by the ICJ judge.

 

[William Hung]

You are really a sciential and prudential guy.And I think we have reach few consensus in cognize perceive of this question.China and PH has disputes and their own justification.We should take proper procedure to solve this problem.

China will take our own steps in UNCLOS court,including rejecting the arbitration by law.And we will respect ICJ's decisions.Just wait and to see what will happen.

The tribunal will decide if China can legally reject or not.

But you are right, we will need to wait and see. Some expert said that it will be around 2016 that the tribunal will release its decision. It's about the same time that the US will have it's new President.

 

[SrNair]

What practical alternative did Philippines have other than expanding the game?

China made it very clear that they will not compromise on the sovereignty of those territories or waters. That's why they already defined that issue as a hard core interest and there is no negotiation on those. The final outcome was already set; at least Philippines now have a chance to shame China and make them lose face if they win the arbitration. Philippines economy is doing well and it does not need China. Actually, Its a liability to depend on China economically.

Also, as a possibility, if they win the arbitration, that might give the legal backing to an outside power to take those territories back.

Phillipines should protect their territory at any cost.Chinese are too smart to use this irrittating arrogant behaviour for claiming others land.Both in sea and land they are using the same strategy.
They started this behaviour around a few years ago in SCS ,this aggressive behaviour.
But they are implementing this same strategy in our border since 1962. We had lost some area at that time.
In here Philipinnes need a long term strategy.You should use your diplomacy to consolidate the power of SCS and ASEAN nations.US have severe limitation because that China is around corner.
In this case PRC intentionally provoked Philipines .And Philipines did exactly what they want.
When PLA create issues in our border we will send ITBP not Army and also use diplomacy simultaneously.If we expand it then they will again expand in a way that we cant anticipiate it.