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Vietnam vs China in the Paracel Islands, SCS; updates, discussions
Topic Started: Jun 25 2012, 06:56 PM (3,399 Views)
pachador


I'm amazed that julian ku being a law professor seems to be just repeating/defending the bully's actions that i am starting to wonder if he is part of the army of paid hacks of the bully or he is just deficient in some aspect http://nationalinterest.org/feature/the-philippines-massive-lawfare-blunder-the-south-china-sea-11837
He clearly fails to see or just prefers to overlook, that the bottomline of the philippine case with ITLOS is to get a ruling on who owns who/has jurisdiction/EEZ delineation,etc so that if the philippines and/or its allies resort to physical enforcement in areas specifically ruled by ITLOS as philippine-owned, and the bully retaliates then its much easier for the world to condemn/impose sanctions/or send allied reinforcements.
at the moment, it is still easy for the bully to justify any retaliatory action it takes since pretty much the whole western sea is in dispute. Normally, the UN law of the sea would be enough if all parties were reasonable, but due to bullying enroachments, and insistence on their 9-dash jurisdiction, a specific ITLOS ruling on this western sea is what the philippine filing is all about.
I do not think the philipines is too overly concerned if the bully will agree or comply with the ruling as we already have had enough. once the itlos ruling is issued, then i expect physical enforcement by the philippines and if the bully retaliates , then so be it so the philippine congress will finally wake-up and authorize a massive defense expansion(finally), and besides any physical escalation will stop bully exports and their economy since the shipping lanes and fishing grounds will be shut-down, and vulnerable to assymetric guerilla hit and run attacks, so lets see. e.g., the somalian pirates in their tiny wooden boats were able to elude for quiet a while the big european naval task force. Many foreign analysts do not know that there is a big emotional component to the average filipino thinking, and the more you goad a filipino the more they will resist and not back down- does not matter how big the enemy is. the filipino will let himself be pushed but once he has had enough no amount of intimidation wil make him budge,e.g. filipino decision to file the ITLOS case. the bully is terribly mistaken if it thinks it can intimidate filipinos, it is actually having the opposite effect. I'm telling you, once a filipino boat is sunk or filipinos get killed, you will have a very enraged emotional nation.


Edited by pachador, Dec 15 2014, 02:07 AM.
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Bastion
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Anyone who reads Julian Ku's article would really think that he is likely paid by the Nine-Dash-Liners. He makes it appear like the Nine-Dash -Liners have nothing to fear with the Philippines filing a case in UNCLOS. But the obvious problem is that, the Nine-Dash-Liners are clearly Stressed with the case. They have already done so much to convince the Philippines to withdraw our UNCLOS case, they have also in fact warned Vietnam, not to follow the Philippines in filing a case. How on earth can this case be described by writer Julian Ku "A Massive Lawfare Blunder" if it's the only thing the Tiny and Militarily weak Philippines has done to really scare the Giant Nine-Dash-Liner. Julian Ku even went so far as to say that it is Doomed to Fail and Backfire. so why is the Nine-Dash-Liner spending so much effort to stop it, if it will only fail and backfire?
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Hong Nam
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Apologies... I don't see him as a "paid Chinese 9 dash line advocate". I see him as a pragmatist who definitely isn't for China. It's either that or I think I need to read his articles again here just to be safe and see where he really "stands".

Quote:
 
China and the Philippines Take Their "Battle" Over South China Sea to Military Conference
by Julian Ku


No one in China has really offered a particularly detailed explanation of how the sovereignty claims to the islands can justify the "nine-dash line" (see my earlier post here describing the nine-dash line claim) which goes well beyond a 12 mile territorial sea or the 200 mile exclusive economic zone.

Thus, even if China had sovereignty over every random rock in the South China Sea, it can't quite support the nine-dash line.I wish Chinese scholars would offer a more comprehensive explanation or defense of the nine-dash line, as oppose to muddying the issue by raising their island sovereignty claims. It is the nine-dash line that makes China's claims unusual, and particularly dangerous. And, oddly, it overshadows and weakens China's much better and more legally supportable claims to particular South China Sea islands.

Opinio Juris


Quote:
 
China Updates its Talking Points on the Philippines Arbitration
by Julian Ku

It is the first time, as far as I know, that a Chinese government spokesman has offered a detailed explanation of China’s legal position in the Philippines arbitration. It still doesn’t fully make sense, or at least it is still not fully responsive, but it is something at least. China’s explanation goes something like this.

Quote:


1. It is the Philippines that is illegally occupying various islands in the South China Sea, not China.

2. Although the Philippines claims it is not seeking to contest sovereignty in the arbitration, it has consistently said it is seeking a “durable solution” to dispute. This is “self contradictory.”

3. The principle of the “Land Dominates the Sea” means that all of the Philippines’ claims are essentially maritime delimitation claims that “inevitably” involve resolving questions of territorial sovereignty over various islands and reefs. But these are the questions excluded from UNCLOS arbitration. Hence, China’s rejection of arbitration has a “a solid basis in international law.”

4. Every nation in the region, including China and the Philippines, has committed to the Declaration of the Code of Conduct for the South China Sea, which obligates them to resolve disputes on territorial and maritime rights through bilateral negotiations.



Let’s toss out points 1 and 4 since they don’t really change much of the legal analysis on whether China’s rejection of arbitration has a “solid basis in international law.”

The really interesting parts of the statements are in points 2 and 3. To China, the Philippines is misleading everyone by pretending to be interested in the Law of the Sea when they are really trying to advance their sovereignty claims. I am not sure that “durable solution” necessarily means “resolving sovereignty claims” but I suppose it is plausible.

The most important point is Number 3, which is that the disputes over the island/rock/reef distinction or the Nine Dash Line are so inextricably linked with sovereignty that they cannot be separated.

This is really what a jurisdictional challenge would look like, if China argued its case. I think this is the most plausible part of China’s argument, but it is not exactly a slam dunk. First of all, China’s invocation of the “Land Dominates the Sea” doesn’t help their argument much here since the infamous Nine Dash Line doesn’t seem to flow from any land claims, or at least China has usually based the Nine Dash Line on “historic rights,” not land.

In any event, the Philippines is not rejecting the “Land Dominates the Sea” principle. They are just arguing that the “land” China is relying on is a rock, not an island within the meaning of UNCLOS Art. 121(3), and hence cannot grant China a 12 mile territorial sea even if China did have sovereignty. Since some of these rocks/islands fall within the Philippines Exclusive Economic Zone, this is not a sovereignty issue but a UNCLOS issue. I am not sure that the Philippines is right about this, but they certainly have a good case.

It is also worth noting that the Chinese statement is conspicuously silent on China’s obligation under UNCLOS to at least allow a UNCLOS arbitration tribunal to determine whether it has jurisdiction (UNCLOS Art. 288(4)). China’s statement simply assumes that the jurisdictional issue is clear, and it has no further obligations. As almost any lawyer could tell you, jurisdictional issues are almost never clear, and even when they are, you have an obligation to go to court/arbitration to resolve them.

So China is slowly beginning to engage on this issue, and they are making a bit of progress. Still, they need better talking points. (And they need to be careful invoking the phrases like the “Land Dominates the Sea,” that could come back to hurt them later.)


Opinio Juris

Quote:
 
What Does China Mean When It Celebrates the "International Rule of Law"?
by Julian Ku


* International Rule OF Law, not Rule BY Law

In promoting international rule of law, the most important thing is to use universally applicable rules in international relations to distinguish right and wrong, end disputes and seek a win-win solution through coordination. This is vital to international rule of law. The formulation, interpretation and application of international law should all be conducive to this goal. Under no circumstances should we inflate the arrogance of hegemonism and power politics, still less use international rule of law to instigate disagreement and friction,for it will only lead us to a wrong direction.

- There is a traditional Chinese "Legalist" tradition that thinks of law as an instrument for ruling society, but less so as a constraint on lawmakers and government. Most expect the Party to remain effectively above the law for most key matters in the future, but for law to be used as a mechanism of social and political control of everyone else.

- Indeed, in its call for universally applicable principles, democratic lawmaking, and the use of law to restrain strong states from taking advantage of the weak, the Chinese Communist Party is invoking a version of rule of law that many Westerners would be familiar with. It will be interesting to see if this conception bleeds over into the Party's push for domestic rule of/by law reform.

Opinio Juris


Quote:
 
The Battle of the South China Sea Editorials
by Julian Ku


- Vietnam's government has been flooding the Internet with various articles, interviews, and statements accusing China of violating international law by moving an oil rig into waters Vietnam claims as its own. In general, these are pretty effective, although I do think Vietnamese scholars lose a bit of credibility when they insist that China has "no legal grounds" for its actions.


- Meanwhile, the Philippines has continued its steady drumbeat of legal articles, including this fascinating essay by Philippines Supreme Court Judge Antonio Carpio.


China has no legal obligation to participate in the UNCLOS arbitration, but its non-participation is hardly a sign of respect for international law when that arbitral tribunal has the power to determine its own jurisdiction.

Of course, international law is not China's strongest suit here. But it is interesting to see how China is using international law to support its actions. Moreover, all China has to do is muddy the waters by establishing that international law does not plainly compel any particular outcome. If the international legal arguments are fought to a draw, China is in a good position to win the overall game.

Opinio Juris

Quote:
 
Game On, Again? Vietnam Planning to File Legal Action Against China Over South China Sea Dispute
by Julian Ku
Opinio Juris


The Philippines Government has stated that Vietnam has consulted it about its ongoing arbitration case against China and the two nations issued a joint statement of solidarity opposing China's actions in the South China Sea.

I am doubtful that an additional arbitration will lead to China backing down. Certainly, the Philippines arbitration has not caused China to moderate its behavior toward the Philippines. The extra added pressure of a Vietnam arbitration is not huge, and my guess is that China will continue to simply ignore the arbitrations, reputational costs be damned.

Opinio Juris

Quote:
 
So How is China Reacting to the Philippines Arbitration Submission? Not Very Well
by Julian Ku


China has not been quiet in reacting to the Philippines filing Sunday of its memorial in the UNCLOS South China Sea arbitration. The People's Daily has released a full-scale defense of China's legal and policy position. The heart of China's argument is that this whole Philippines dispute is about sovereignty over the Nansha Islands, parts of which the Philippines is illegally occupying.

The People's Daily editorial doesn't mention the elephant in the room: China's controversial Nine Dash Line claim that encompasses most of the South China Sea. Neither the editorial nor the foreign ministry mentions the Nine Dash Line or provides any defense of it on the merits or even for why it should not be included in the jurisdiction of the tribunal.

This omission is telling. If China did not have the Nine Dash Line claim, both its legal and political position in the South China Sea, would be much stronger. But as long as China maintains this claim, it risks serious blowback in the region.

Opinio Juris

Quote:
 
China's Definition of the "Peaceful Settlement of International Disputes" Leaves Out International Adjudication
by Julian Ku


I am not criticizing China's legal position here, which seems eminently defensible and reasonable. I do think that its approach, which privileges a state's will and "sovereign equality" as a principle of international law, will naturally lead it to de-emphasize arbitration and judicial settlement. And since China's opposition to the Philippines' arbitration is based on a theory of state non-consent and lack of jurisdiction, I think it is unlikely to climb down from this position and accept the legitimacy of the UNCLOS arbitration.

Which is why I find it hard to accept the theory put forth by the Philippines lead U.S. counsel, Paul Reichler, as to why China will ultimately accept the arbitral tribunal award in that dispute. In an interview in the WSJ, Reichler relies on the reputational damage China will suffer if it defies the arbitral tribunal and the advantages China would get out of a "rules-based" system. But China's view of a "rules-based" system does not necessarily require it to submit to arbitration to set the "rules." China already has a robust vision of how it can be a "rule of law" nation and avoid arbitration and judicial settlement. Nothing the UNCLOS tribunal does will likely change this view. Indeed, to the extent that other nations share its views, it will also lessen any reputation damage it suffers from a negative award.

Opinio Juris


Hope that would help "paint" a clearer understanding on what he really means... and it certainly isn't that of a "paid 9-dash liner". :armyroleyes:





Edited by Hong Nam, Dec 16 2014, 01:49 AM.

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pachador


if we are going to be pragmatic like him , obviously, we will have bilateral negotiations with the bully and tell them they can have everything, and there will be no war. what the bully is doing is using overpowering visual and verbal displays of intimidation to send signals for the victim to just go with the flow. in the philippines we call that "golpe de gulat" or in tagalog "naninindak" , and we are tired of it.
being nationalistic is not pragmatic because it means sticking to the country's constitution which we have to if we are to honor our pledge as citizens we make to the country that we recited when we were still in elementary and high school during flag ceremony.
here it that article:
headline http://nationalinterest.org/feature/the-philippines-massive-lawfare-blunder-the-south-china-sea-11837
the "massive blunder" is in his mind not in ours, what does he suggest we do ?, not file a case ?
content of article: "The Philippines’ “lawfare” strategy is almost certainly going to fail, "
everything he says in the above article, we already know about. it is immaterial if the bully refuses to comply, it is immaterial if the bully is angry, if we let this things bother us then we have surrendered to the bully's demands. what we are after is the exact delineation of the lines so if we physically enforce within areas awarded to us by ITLOS, we know we are legally right, what happens after that such as if the bully retaliates is their call, but we cannot be paralyzed by fear as to what will be the bully's next move. we can only do what is right specifically what is legally right under international law, specifically the ITLOS ruling we are awaiting. this is the reason for our filing the case with ITLOS.
Edited by pachador, Dec 16 2014, 07:10 AM.
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Hong Nam
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Hey, what is written is written. No need to turn things around. Nationalism isn't and was never part of the discussion... The author - Julian Ku - is. Your standing in front of your flag is a non issue - (Honestly, I don't really care if you do or don't). Being paralysed by fear isn't an issue too - He isn't...) Shall we discuss about our automobile preferences while we are at it? Or should you just stick to the issue?

His articles clearly show that he isn't what you think he is. No need to discuss it even further as it's pretty obvious that one is quick to "judge" others without reading and taking things into context.

ENOUGH SAID. Those articles above can prove one or two things depending on your perspective, and they both point to you being wrong.










Edited by Hong Nam, Dec 16 2014, 11:38 AM.

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pachador


i think we are looking at it from different lenses. you are discussing Ku's article in isolation, and you can afford to be detached because you are not filipino as you claim. I prefer to discuss not only the article but the side-issues or ramifications of what he said. for example, he said "The Philippines’ “lawfare” strategy is almost certainly going to fail" so even if he tries to balance his article by saying its ok to file the case, I still dont know the intent of saying "The Philippines’ “lawfare” strategy is almost certainly going to fail"
now what do i mean by ramifications ? if his article will have an incremental effect on top of other negative articles or verbal opionions as to sway the public or the govt then whether Ku intended it or not, this article and other like-minded articles either by the same author or other authors will have the effect of diluting filipino opposition to the bully so its good policy from a propaganda/psychological warfare view in other words to attack any neutral or anti- looking article. The intent is to marshall filipino public opinion to be overwhelmingly anti-bully, no fence-sitters because the side with the stronger will and fortitude will win in the long run even if the other side is more powerful. for example, the intense nationalism of the north vietnamese enabled it to keep fighting inspite of overwhelming american firepower.
historically, during the philippine revolution against spain, the filipino-american war, and world War II, the fence-sitters, the neutrals, the appeasers were in general the ones who collaborated with the enemy. many of them were influential rich so after the war it was difficult to prosecute them or charges were dropped. I see the same pattern now, and we can already identify who are the ones more likely to collaborate with the bully from their statements in the news, and in social media.


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Hong Nam
Dec 16 2014, 11:27 AM
Hey, what is written is written. No need to turn things around. Nationalism isn't and was never part of the discussion... The author - Julian Ku - is. Your standing in front of your flag is a non issue - (Honestly, I don't really care if you do or don't). Being paralysed by fear isn't an issue too - He isn't...) Shall we discuss about our automobile preferences while we are at it? Or should you just stick to the issue?

His articles clearly show that he isn't what you think he is. No need to discuss it even further as it's pretty obvious that one is quick to "judge" others without reading and taking things into context.

ENOUGH SAID. Those articles above can prove one or two things depending on your perspective, and they both point to you being wrong.












Edited by pachador, Dec 16 2014, 12:37 PM.
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Hong Nam
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It's really simple...

He believes that "lawfare" alone will not deter China - as it is putting "all eggs in a single basket". What is clearly implied here is that other options - diplomatic and military options should be of equal importance. That's what is needed to deal with China.

So, you are in the same side (albeit with different opinions)... Which makes him a definite anti-China 9 dash line person. Hence, he obviously isn't under the Chinese government's payroll.

AND THAT IS THE ISSUE.

Branding people as under the payroll of China without understanding who or what they are proposing is just ridiculous and blatantly irresponsible.



Edited by Hong Nam, Dec 16 2014, 01:43 PM.

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pachador


so Ku still does not know that we have been trying diplomacy with the bully since the 1995 mischief reef crisis ? diplomacy is a farcical option that the government is just going through the motions because of the outrageous 9-dash bully line. Every few months the bully will announce with fanfare their overtures for peace and diplomacy and yet , its the same ridiculous position that they stand by. its one big joke.
Military options such as defense buildup is obviously sorely lacking that is why i am hoping, half-seriously, that the bully sink a few philippine vessels because...lets just say there are countrymen/officials who do not do anything until the last minute, and that is when they start panicking.
As for the military moves, the AFP does act if push comes to shove. in the 1995 mischief crisis, pagasa island was buzzed by bully choppers after philippine frogmen blew up a giant satellite marker that they installed off pagasa island, our frogmen also blew up other bully scaffoldings and buoys in the other reefs such as Sabina shoal that were to become sister platforms to the mischief platform. today is different because the bully is much better armed, that is why before our puny military acts forcefully again(damn the torpedoes) they want to make sure about the exact delineations of the boundaries that hopefully will happen after the ITLOS ruling, so our allies and UN can easily pinpoint who is the culprit(obviously, the one who crossed the delineated line)

the immediate reason that many analysts overlook on why the bully is pushing this 9-dash line is intense pressure from the bully fishing industry that sorely needs to fish inside the 200 mile EEZs of neighboring countries and they need the bully navy to protect their illlegal fishing. the bully fishing grounds is polluted and severely depleted due to fast-rising demand for seafood among the growing rich and middle class in bullyland.

Hong Nam
Dec 16 2014, 01:42 PM
It's really simple...

He believes that "lawfare" alone will not deter China - as it is putting "all eggs in a single basket". What is clearly implied here is that other options - diplomatic and military options should be of equal importance. That's what is needed to deal with China.

So, you are in the same side (albeit with different opinions)... Which makes him a definite anti-China 9 dash line person. Hence, he obviously isn't under the Chinese government's payroll.

AND THAT IS THE ISSUE.

Branding people as under the payroll of China without understanding who or what they are proposing is just ridiculous and blatantly irresponsible.





Edited by pachador, Dec 16 2014, 03:08 PM.
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Hong Nam
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^^ Excellent...

Twisting and turning and try to muddle the course of the topic by skirting the original issue by statements that nobody had ever doubted or even disagreed on. Does that seem familiar? It should. Your pattern of argument mirrors the style of the Chinese foreign ministry... Ironic how we abhor their statements which totally ignores the issues by "pulling something out of the hat" to counter your country's reasonable arguments when we ourselves do it.

An "A" is followed by a "B"... To use a "Z" to follow an "A" is utterly befuddling.
And here I was with so many questions and realising that the answers were just here all along. Thank you.


Edited by Hong Nam, Dec 17 2014, 01:06 AM.

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I AGREE that being too fast in branding People under the payroll of China could be unfair, but this reaction even if we might consider it as Unfair, is a common Knee genius reaction when we make comments that what the Philippines is doing is a massive Lawfare Blunder, doomed to fail and will likely backfire. How can he say this, when as of the present, without the UNCLOS decision, China has already shown obvious signs of stress. and this stress on China could only worsen if the Philippines gets a positive decision from UNCLOS. So I don't really see how Juian Ku sees this as a wrong move, when it is already working before it is even completed. I don't expect this to be our silver bullet, but it is a move on the right direction. And a right direction is something the Philippines needs a lot of. So shooting this idea down surely wakes up some Nationalism in us.
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