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Notes: Spratleys, Sabah, China, USA, Vietnam, Philippines

June 11, 2011

China

China to neighbors: Stop oil search in Spratlys – (As of 6/9/2011)

MANILA, Philippines—(UPDATE) China warned Asian neighbors Thursday to stop searching for oil near the disputed Spratly Islands and vowed to assert its sovereignty over the potentially petroleum-rich territory in the West Philippine Sea (South China Sea) despite rival claims.

China and the Philippines have swapped diplomatic protests over the islands, with Filipino officials accusing Chinese forces of intruding into Manila-claimed areas six times since February and of firing shots in at least one incident. Beijing denied the allegation Thursday and said it would use violence only when attacked.

Philippines

http://globalnation.inquirer.net/3845/palace-reiterates-peaceful-resolution-to-spratlys-row-but-dangles-us-card

MANILA, Philippines – Malacañang has reiterated its commitment to the resolution of the Spratlys dispute with China and other claimants “in the most diplomatic and most peaceful way possible” but did not discount the possibility of US involvement if the situation would worsen.

“Hopefully, it doesn’t get to that point because, again, we are committed to the resolution of the issue in the most diplomatic and the most peaceful way possible,” Deputy Presidential Spokesperson Abigail Valte said on radio Saturday.

Vietnam

Vietnam plans live-fire drill after China dispute

(June 10, 2011)

HANOI, Vietnam—A squabble over territory in the South China Sea escalated Friday when Vietnam announced a live ammunition drill in an apparent response to China’s demand that the Vietnamese halt all oil exploration in the area.

The heated verbal clash between the two communist neighbors comes amid a similar spat between China and Philippines earlier in the week over another disputed area of the West Philippine Sea (South China Sea), where several countries are eyeing potentially rich oil and gas reserves.

Vietnam said Friday its Navy would carry out two exercises totaling nine hours Monday in an area off the country’s central Quang Nam province. The announcement posted on the state-owned Northern Maritime Safety Corp.’s website warned boats and ships to stay out of the area. It was the first time Vietnam has issued such an alert about conducting maritime drills.

It came a day after China and Vietnam traded diplomatic punches, with each demanding that the other stay out of waters they claim. The two countries have a long history of maritime scraps in disputed parts of the South China Sea near the Spratly and Paracel islands, but the recent row has sparked an unusually hostile response from Hanoi.

On Thursday, China accused Vietnam of illegally entering its waters and endangering its fishermen’s lives. Hours earlier, Vietnam had slammed China for interfering with its seismic survey off the country’s central coast, saying the Chinese fishing boat supported by two patrol vessels had damaged an exploration cable on a survey boat hired by state-owned PetroVietnam.

Vietnam said it was the second time China had hindered the operation of an oil and gas exploration boat in two weeks, adding that its actions were “completely premeditated” and accusing it of flaring regional tensions in the West Philippine Sea.

Spratlys, Sabah, Philippines

USA

US Destroyer sent to South China Sea amid tension in Spratlys

(June 11, 2011)

The United States has sent one of the most formidable warships, the USS Chung-Hoon, a guided-missile destroyer to the South China Sea and Sulu sea amid tensions between China, Vietnam and the Philippines over the disputed Spratly Islands.

“Yahoo Online News said that USS Chung-Hoon, a guided-missile destroyer, has been sent on an independent deployment to the South China as well as to the Sulu Sea early this week to assert right of free passage in the region,” Philstar.com reports.

“The ship will be sailing through waters that the US considers international waters to assert right of free passage and to demonstrate the international community does not accept national claims to the contrary,” the report said.

US destroyer sent to South China Sea

By Jaime Laude (The Philippine Star) Updated June 11, 2011 12:00 A

The US embassy said the Chung-Hoon is one of the US Navy ships invited to participate in the annual Cooperation Afloat Readiness and Training (CARAT) exercise between the Philippines and the US navies.

“More details (on CARAT) would be released when appropriate,” US embassy spokesman Rebecca Thompson said.

CARAT exercise is held yearly as part of a mutual defense agreement between the Philippines and the US.

Earlier, US Ambassador Harry Thomas Jr. assured the Philippines of support against threats to its security.

Similar Cases: Territorial Claims in the Arctic

Under international law, no country currently owns the North Pole or the region of the Arctic Ocean surrounding it. The five surrounding Arctic states, Russia, the United States, Canada, Norway and Denmark (via Greenland), are limited to an exclusive economic zone (EEZ) of 200 nautical miles (370 km; 230 mi) adjacent to their coasts.[1]

Upon ratification of the United Nations Convention on the Law of the Sea (UNCLOS), a country has a ten year period to make claims to an extended continental shelf which, if validated, gives it exclusive rights to resources on or below the seabed of that extended shelf area.[2] Due to this, Norway (ratified the convention in 1996[3]), Russia (ratified in 1997[3]), Canada (ratified in 2003[3]) and Denmark (ratified in 2004[3]) launched projects to provide a basis for seabed claims on extended continental shelves beyond their exclusive economic zones. The United States has signed, but not yet ratified this treaty, although George W. Bush asked the United States Senate to pass a resolution of ratification on May 15, 2007[4] and on October 31, 2007, the Senate Foreign Relations Committee voted 17-4 to send the ratification vote to the full US Senate.[5]

 

Reagan’s Opposition to Law of the Sea Treaty

National Security Issues

Under the Treaty, a 12-mile territorial sea limit and a 200-mile exclusive economic zone (EEZ) are established. This sets a definitive limit on the oceanic area over which a country may claim jurisdiction. However, innocent passage–including non-wartime activities of military ships–is protected. Even without the Treaty, these boundaries, and the precedent of safe passage, are protected under multiple independent treaties, as well as traditional international maritime law. Additionally, given the United States’ naval superiority, few countries would attempt to deny safe passage. However, under the Treaty, intelligenceand submarine maneuvers in territorial waters would be restricted and regulated.
Environmental and Economic Issues

Former President Reagan refused to sign the Treaty in 1982 due to its innate conflict with basic free-market principles (e.g., private property, free enterprise, and competition). Twelve years later, the Clinton Administration submitted to the U.S. Senate a revised version of the Treaty. This revised version allegedly corrected many of the original objections to the Treaty, but still failed to receive Senate ratification: Therefore, the United States’ provisional participation expired in 1998. The Treaty still requires adherence to policies that regulate deep-sea mining, as well as forcing participants to adopt laws and regulations to control and prevent marine pollution. Additionally, under the Treaty, a corporation cannot bring suit, but must rely upon its country of origin to address the corporation’s concerns before the U.N. agency.
Reagan’s Objections

Former President Reagan’s first objection to the Treaty was the Principle of the “Common Heritage of Mankind,” which dictates that oceanic resources should be shared among all mankind and cannot be claimed by any one nation or people. In order to achieve this goal, the Treaty creates the International Seabed Authority (“Authority”) to regulate and exploit mineral resources. It requires a company to submit an application fee of $500,000 (now $250,000), as well as a bonus site for the Authority to utilize for its own mining efforts. Additionally, the corporation must pay an annual fee of $1 million, as well as a percentage of its profits (increasing annually up to 7%), and must agree to share mining and navigational technology–thereby ensuring that opportunities aren’t restricted to more technologically advanced countries. The decision to grant or to withhold mining permits is decided by the Authority, which consists disproportionately of underdeveloped countries. Technology-sharing is no longer mandatory, however, there are remaining “principles” to guide its use and distribution. Additionally, the Council has been restructured so that the United States has a permanent seat, and developed countries can create a blocking vote.

Secondly, former President Reagan believed that the Treaty would restrict the world’s supply of minerals. The Treaty was originally designed to limit the exploitation of heavy minerals in order to protect the mineral sales of land-locked, developing nations. This is no longer a severe limitation, because production limits to preserve land-based mining have been removed.
The third–and still valid–objection is that mandatory dispute resolution restricts autonomy. Either a U.N. court or tribunal must mandate maritime Issues involving fisheries, marine environmental protection, and preservation, research, and navigation. A country may opt out if the dispute involves maritime boundaries, military, or limited law enforcement activities. Submitting to external jurisdiction creates an uncomfortable precedent. Furthermore, it weakens the U.S. argument of autonomy when it refuses to submit to the International Criminal Court. Additionally, a country must petition to be excluded from mandatory jurisdiction requirements.

Other Models – Joint Utilization: Iceland, Norway, and Russia

This Protocol entered into force 1999-07-15.

Agreement between the Government of Iceland, the Government of Norway and the Government of the Russian Federation concerning Certain Aspects of Co-operation in the Area of Fisheries

The Government of Iceland, Government of Norway and the Government of the Russian Federation, hereinafter referred to as the Parties;

Determined to ensure the long-term conservation and sustainable utilisation of the fish stocks concerned in their entire area of distribution, and committed to the principle of responsible fishing;

Having regard to the importance of close co-operation between the Parties;

Having regard to the relevant provisions of the 1982 United Nations Convention on the Law of the Sea and the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks;

Committed to promoting and conducting marine scientific research and to basing their respective management measures for the relevant stocks on the best scientific advice;

Recognising that a considerable part of the living marine resources of the northern Norwegian and Barents Seas represents a single regulated biological stock system;

Have agreed as follows:
Article 1

The Parties agree to enhance co-operation of mutual benefit in the field of fisheries and for this purpose to establish by this Agreement principles and procedures for such cooperation based on a precautionary approach and in accordance with international law.
Article 2

The Parties may agree on a reciprocal basis to exchange annual quotas in their respective exclusive economic zones, and to grant vessels of the other Parties access to fish quotas in their respective exclusive economic zones, taking fully into account the biological situation and the development of the stocks concerned, as well as the interests of the national fisheries.
Article 3

Details of the quota exchanges, based on management decisions taken by the coastal states, provisions for access to fishing by the Parties referred to in Article 2, as well as provisions on other matters referred to in Article 8, which the Parties may agree on, shall be regulated in protocols under this Agreement between the Governments of Iceland and Norway, and the Governments of the Russian Federation and Iceland, providing a reasonable balance in their bilateral fisheries relations.

The Parties shall make every effort to agree on the protocols.
Article 4

The Parties agree that total catches from a stock taken under the protocols referred to in Article 3 by vessels flying their flags, wherever they are taken, shall not exceed the total quotas for that stock as set out in the protocols referred to in Article 3. This provision is without prejudice to any agreement between private entities, concluded in accordance with national rules and regulations of the Parties, that may include additional fishing possibilities.

The quotas referred to in Article 2 shall be taken in the exclusive economic zones and the Parties will refrain from any claims for additional fishing possibilities on that stock.
Article 5

The Parties will ensure that fishing vessels flying their flag comply with the conservation and management measures as well as national rules and regulations established for the operation of fishing activities referred to in Article 2. Adequate advance notice shall be provided of such measures, rules and regulations.
Article 6

The Parties shall work together to investigate possibilities and take measures, when relevant, to discourage any of their nationals from being party to arrangements by which they register a fishing vessel under the flag of another state for the purpose of engaging in fishing activities that undermine the effectiveness of this Agreement and of the management measures referred to in Article 5.

 

 

***

Initial Impressions:

Short-Term:

  • The Philippines needs to accelerate its defense modernization program – that’s IF – it has the money.
  • Diplomacy – ASEAN+Japan+USA+Aus+NZ / UN Security Council
  • Pass legislation on borders
  • Reduce dependence on oil
  • US Mutual Defense Treaty
  • Diplomacy – Bilateral Talks with China
  • Diplomacy – Bilateral Talks with Vietnam
  • Diplomacy – Intra ASEAN Dialog

Identify exclusive economic zones based on Laws of Sea Treaty (if applicable)

Long-Term:

  • Take the cue from Taiwan – Get wealthy and get armed to the teeth
  • More trade in renewables with China
  • Establsh a protocol for oil extraction similar to the Norway, Iceland, Russia Fisheries Agreement.

 

To be continued

One Comment
  1. vokoyo permalink

    They are an inalienable part of China’s territory according to historical facts and international law; Japan’s claim untenable

    Situated in the East China Sea, due east of Fujian province and northeast of Taiwan, the Diaoyu Islands are the farthest eastern islands of China. They are about 190 nautical miles from the Dongshan Island of Fujian province, 90 nautical miles to the northeast of Keelung city of Taiwan, and 78 nautical miles from the Yunaguni Island of the Ryukyu Islands. The Diaoyu Islands refer to a group of islands that include the main one, Diaoyu Island, and some smaller islands and reefs like Huangwei Island, Chiwei Island, Beixiao Island, Nanxiao Island and three other islets. They are scattered in a sea area at 123 degrees 20 minutes ~ 124 degrees 45 minutes east longitude and 25 degrees 44 minutes ~ 26 degrees north latitude, covering a total land area of 6.5 square kilometers. The surrounding waters of the islands have rich fishing resources and have long been an important fishing ground for people in Fujian and Taiwan of China since ancient times. The well-known Emery Report pointed to the existence of abundant oil and natural gas resources on the continental shelf of the East China Sea.

    (1) The Diaoyu Islands are an inalienable part of China’s territory.

    China was the first country that discovered and explored the Diaoyu Islands and obtained sovereignty by occupation. Since ancient times, the Chinese have fished, collected medicinal herbs and sought shelters on these islands and in their surrounding waters. No later than the Ming Dynasty (1368-1644), the islands had been discovered, explored and named by the Chinese. Ancient Chinese books, such as the Book on Voyage Routes and the Voyage with a Tail Wind, kept a complete record of the navigation routes used by Chinese fishermen in this sea area. Due to the natural conditions at sea and the possession of technology such as ship-building at that time, only the Chinese military and civilians could reach the islands during the monsoon season. They navigated through the islands and sought haven there in stormy weather. They carried out economic activities such as fishing, collecting herbs and picking fruits. For about five centuries until 1895, China had never been interfered in its exercise of these rights.

    One cannot speak of the Diaoyu Islands without mentioning Ryukyu Kingdom. Ryukyu Kingdom was a vassal state of the Ming and Qing dynasties to which it paid tributes, while the latter sent envoys to grant honorific titles to the kings in Ryukyu in recognition of their rule. The Diaoyu Islands were on the navigation route from China’s mainland to Ryukyu Kingdom. Chinese officials on mission to Ryukyu all referred to these islands as their navigation marks. They put down in the official documents such as the Record of the Mission to Ryukyu with detailed descriptions of their voyages through the Diaoyu Island, Huangwei Island and Chiwei Island and repeatedly confirmed the boundary between China and Ryukyu. Historical facts tell us that the Diaoyu Islands do not fall into the domain of Ryukyu. China’s historical records and official documents all show that it was the Chinese people who first discovered, developed and utilized the Diaoyu Islands. According to the international law of that time, discovery means occupation and occupation means obtainment of territorial sovereignty. Therefore, China obtained sovereignty over the Diaoyu Islands by occupation.

    The Chinese government exercised effective rule and administration, and strengthened its sovereignty over the Diaoyu Islands. Successive Chinese governments all included the Diaoyu Islands into the confines of China’s territory and exercised sovereignty and effective rule by taking measures to develop, utilize and administer the islands. In 1171, General Wang Dayou guarding Fujian established military camps on Penghu Islands and sent officers to station in the islands. Taiwan and its affiliated islands including the Diaoyu Islands were under the military command of Penghu and, in terms of administration, they were under Jinjiang of Quanzhou, Fujian province. Both the Ming and Qing dynasties incorporated the Diaoyu Island and its affiliated islands into their territory and designated them as part of the maritime defense areas. The Book on Managing the Sea (1562, Ming Dynasty) and Imperial Map of Chinese and Foreign Lands (1863, Qing Dynasty) made clear descriptions about the area. Historical facts show that the Chinese government has administered the Diaoyu Islands in various ways and effectively exercised and strengthened its sovereignty over the Islands.

    (2) Japan’s arguments about its claim of sovereignty over the Diaoyu Islands are untenable.

    There are mainly two legal arguments that Japan has evoked to justify its occupation of the Diaoyu Islands: First, occupation of so-called terra nullius, second, acquisition by prescription (prescriptio acquisitive). Both arguments are untenable.

    By international law, the object of occupation shall be limited to terra nullius. Terra nullius refers to land which has never been subject to the sovereignty of any state or over which any prior sovereign state has expressly or implicitly relinquished sovereignty. The fact is that Diaoyu Island and its affiliated islands have been subject to the sovereignty of the Chinese government as its sea defense area since the Ming Dynasty. They are an inalienable part of China’s territory. Due to the inhospitable natural environment, these islands are not permanently inhabited and fishermen only take up abode on these islands for seasonal activities. But having no permanent residents does not make these islands terra nullius. The Diaoyu Islands are not terra nullius. They are China’s territory. The Japanese government and society are well aware of this fact. The official archives of the Japanese government and documents and correspondence of Japanese officials all record and give evidence to this. For example, in the letter to Home Minister Aritomo Yamagata, then Japanese Foreign Minister Kaoru Inoue wrote in explicit terms that these islands had already been given Chinese names by the Qing government and that the Japanese government had been admonished by the Qing government for coveting these islands. Since the Diaoyu Islands are not terra nullius, Japan’s so-called occupation is non-existent. Ex injuria jus non oritur (A legal right or entitlement cannot arise from an unlawful act or omission) is a fundamental principle of international law. Japan’s so-called occupation is mala fide, illegal and unjustifiable; it therefore does not have the legal effect as what may arise from occupation recognized by international law.

    The other argument that Japan presents is “long and continuous effective administration”, that is, to obtain sovereignty over the Diaoyu Islands based on acquisition by prescription (prescriptio acquisitive).

    “Acquisition by prescription” of territory has been all along an extremely disputable issue in international law. Those against it totally deny the legitimacy of prescription as a way to obtain territory. They are of the view that this is “merely a legal argument serving expansionist countries for occupying others’ territories”. Those for it see prescription as a way to obtain territory, it is defined as “the acquisition of sovereignty over a territory through continuous and undisturbed exercise of sovereignty over it, and during such a period as is necessary to create under the influence of historical development the general conviction that the present condition of things is in conformity with international order.” International judicial practice has never clearly confirmed the status of “prescription” as an independent way to acquire territory. As for the exact time span of the “period as is necessary”, international law has no final verdict to make it 50 years or 100 years.

    If we put aside the legitimacy of “acquisition by prescription” and merely examine the key factors, it is clear that both the Chinese central government and the Taiwan local authority have been firm, explicit and consistent on issues concerning China’s sovereignty over the Diaoyu Islands and in opposing Japan’s attempt to steal them. They have launched protests, especially diplomatic protests, against official and government-supported civilian activities, including setting up a lighthouse on the Diaoyu Island by Japanese right-wingers, “nationalizing” the lighthouse by the Japanese government, paying the “rent” for land on the Diaoyu Islands to those so-called non-governmental owners, and submitting a chart specifying the so-called baselines of the territorial sea of the Diaoyu Islands to the United Nations by the Japanese government. Japan can never gain legitimate rights over the Diaoyu Islands through occupation no matter how long it may last.

    (3) Agreements between Japan and the United States cannot grant Japan sovereignty over the Diaoyu Islands.

    In the wake of World War II, the Cairo Declaration and the Potsdam Proclamation, the outcome of the Anti-fascist victory clearly defined the territory of Japan. According to the Cairo Declaration issued by China, the US and the UK in December 1943, their purpose is that “Japan shall be stripped of all the islands in the Pacific which she has seized or occupied since the beginning of World War I in 1914, and that all the territories Japan has stolen from the Chinese” shall be restored to China. “Japan will also be expelled from all other territories which she has taken by violence and greed”.

    The Potsdam Proclamation issued in 1945 reaffirmed that “the terms of the Cairo Declaration shall be carried out and Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands as we determine”. On Jan 29, 1946, the Supreme Commander for the Allied Powers Instruction No 667 explicitly stipulated the range of the Japanese territory, which included the four major islands of Japan (Honshu, Hokkaido, Kyushu, Shikoku) and the approximately 1,000 smaller adjacent islands, including the Tsushima Islands and the Ryukyu Islands north of 30 degrees north latitude. The delimitation of the Japanese territory by the Cairo Declaration and the Potsdam Proclamation is clear-cut. The Diaoyu Islands are not included in the Japanese territory in any way.

    On Sept 8, 1951, Japan and the US concluded the San Francisco Peace Treaty in the absence of China and the Soviet Union, two victorious countries in the war against Japan, putting Nansei Shoto south of 29 degrees north latitude (including the Ryukyu Islands and the Daito Islands) under the US trusteeship. The Diaoyu Islands were not mentioned in the treaty, nor by the Japanese government’s later explanations thereof. On Dec 25, 1953, the United States Civil Administration of the Ryukyu Islands issued the Civil Administration Proclamation No 27 on the geographical boundaries of the Ryukyu Islands and defined the areas administered by the US government and the Ryukyu Civil Administration as the islands, islets, atolls, rocks and territorial waters along 24 degrees north latitude and 122 degrees east longitude. This proclamation included the Diaoyu Islands, China’s territory, into their areas of administration. These islands were also included in the areas to be returned to Japan under the Japan-US Okinawa Reversion Agreement signed on June 17, 1971. The Japanese government takes the above-mentioned agreement as the legal ground for its claim of territorial sovereignty over the Diaoyu Islands.

    On Dec 30, 1971, the Chinese Foreign Ministry pointed out in its statement that “the incorporation by the United States and Japan of China’s Diaoyu and other islands into the area of reversion under the Okinawa Reversion Agreement is totally illegal. It does not in any way change the territorial sovereignty of the People’s Republic of China over the Diaoyu and other islands”. The US government also stated that returning the administrative authority over these islands gained from Japan to Japan does not in any way undermine relevant sovereign claim. The United States cannot increase the legal right Japan had prior to its handover of the administrative authority over these islands to China, nor can it undermine the right of other claimants because of the return of the administrative authority to Japan. All the conflicting claims over these islands are issues that should be resolved by the parties concerned among themselves. On Sept 11, 1996, US State Department spokesperson Nicholas Burns said further that the US neither recognizes nor supports any country’s sovereign claim over the Diaoyu Islands.

    On Sept 1951, the Chinese government issued a statement regarding the San Francisco Peace Treaty signed by the US and Japan without the involvement of the Chinese people and the lawful government of China. It pointed out the illegal nature of the treaty. The “trusteeship” and “reversion” deriving from the treaty included the Diaoyu Islands, thus violating China’s territorial sovereignty and becoming the source of the territorial dispute between China and Japan. The San Francisco Peace Treaty and other relevant documents have no right to cover or determine the ownership of the Chinese territory, and cannot have any legal judgment that extends the sovereignty of Diaoyu Islands to Japan.

    The Diaoyu Islands are an inalienable part of China’s territory. The so-called administrative authority the US “got from” and “returned to” Japan is unjustified. Japan’s claim over the sovereignty of the Diaoyu Islands on that basis has no legal ground in international law.

    Conclusion

    Japan has never given up its attempt to gain sovereignty over the Diaoyu Islands. It first destroyed China’s markings on the islands, then renamed the islands, and built a heliport and other facilities. In recent years, Japan went even further. It abetted what it called “civilian actions” to create a fait accompli of “actual control” of the Diaoyu Islands, followed by government renting and “takeover” actions. All this aim to pave the legal grounds for its occupation of the Diaoyu Islands and gradually win recognition from the international community. However, Japan’s claim to sovereignty over the Diaoyu Islands and its encroachment are illegal in the first place. Therefore, its carefully designed “government actions” have no legal ground and do not constitute the execution of state power. They never had, and will never have, any legal effect.

    Article II of the Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone promulgated in 1992 makes clear that the Diaoyu Islands and other islands are Chinese territory, and reaffirms the legality of China’s ownership of them. In 2009, a Chinese marine surveillance and law enforcement ship was sent to the Diaoyu Islands in repudiation of Japan’s “acquisition by prescription”. This was also a concrete action of China’s exercise of sovereignty over the Diaoyu Islands.

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