fresh general analysis
lifted from
http://search.japantimes.co.jp/cgi-bin/eo20090224a3.html
Unbalanced bargaining game with China
By DU TRAN
SINGAPORE — The territorial dispute in the South China Sea — referred to as the Spratly Islands dispute — used to be described as a major regional security flash point. Although core issues remain unresolved, economic integration and globalization, since the beginning of this decade, have temporarily shunted parties in the dispute away from direct confrontation.
While the conflict appears to be de-escalating, almost all claimants have been coming up with and relying on nonmilitary means to enforce claims and to consolidate their stance. Some organize tourism field trips to the disputed areas and atolls. Others send scientists there for wildlife research, while other powers with more coercive capital construct permanent structures on disputed reefs and rocks.
The South China Sea dispute is a bargaining game. Each country must decide which of the various strategies it possesses to use against others. The one with the most bargaining power gains the biggest reward. Those with no bargaining power leave empty- handed. The most powerful player will contest aggressively and use superior strength to intimidate weaker foes. And that is what's happening in the South China Sea.
China, the most powerful player, has been exercising a relatively aggressive policy toward other claimants. Since 1947, China has claimed sovereignty over an area that accounts for more than 75 percent of the South China Sea. In 1992 the National People's Congress promulgated these baselines, which, in the words of the U.S. Institute of Peace, defy conventional international legal interpretations.
To enforce its claims, China has resorted to military confrontation — against Vietnam in 1974 and 1988 and against the Philippines in 1996 and 1997.
China also has been very active in enforcing its claims via nonmilitary means. Specifically, China periodically has employed deadly force against civilian fishermen from neighboring countries when they traveled through the disputed waters. China also pressured international oil companies such as BP and Exxon Mobil to back out of joint-venture exploration projects with Vietnam. And China has been building many permanent structures on disputed atolls and rocks for "scientific and humanitarian" purposes.
Underwriting all these measures demands a sophisticated strategy. China plays to divide the Southeast Asian claimants through economic and diplomatic means, while mounting a worldwide propaganda campaign to publicize China's "unequivocal stance."
In late 2007, China announced the formation of a new "city" in the disputed area, although the area referred to barely had a population to speak of and consists mostly of water and desolate islands. On Nov. 24, 2008, China announced that the country would invest more than $29 billion in oil exploration projects.
Both announcements met with surprisingly little opposition from the other claimants. International media largely neglected the first one. The second one made headline news around the globe, yet most reports forgot to mention the territorial dispute in the South China Sea.
China's coercive yet understated diplomatic posturing and success are understandable. What's harder to comprehend is the lack of response on the part of China's rivals. If Vietnam, Philippines, Malaysia and Brunei confront China separately, their failure is certain because they are at a severe disadvantage, both economically and militarily. If they formed a coalition and confronted China as one, it might be strong enough to withstand China's designs.
History has shown that China will concede when it faces an adversary with an equally strong suite. In a recent territorial dispute in the East China Sea, China and Japan agreed June 18, 2008, on mutual exploration and exploitation. According to this agreement, all the joint-venture projects are located along the border originally asserted by Japan, not China. In other words, the border previously drawn by China was of no value. Japan's territorial assertions regarding the East China Sea were upheld.
Nonetheless, a coalition in the South China Sea dispute will not be easy for Vietnam, the Philippines, Malaysia and Brunei. For a coalition to work, these countries must first trust each other. In 2003 and 2004, China easily persuaded the Philippines to sign a bilateral agreement that tossed aside Vietnamese concerns. Lack of trust will make all four countries vulnerable to Chinese manipulation.
These ASEAN countries should put aside conflicting claims over the islands, reefs and rocks in the Spratlys and work collaboratively on a fair division of the disputed area. They must also be more proactive in disseminating information about their position and the legality of their claims on the international stage. Without worldwide support, even a durable coalition of ASEAN members may not be strong enough to counter China over the South China Sea dispute.
Du Tran is a consultant with ERS Group (www.ersgroup.com).©; 2006-2008 OpinionAsia (www.opinionasia.org)
fresh analysis of chinese protest to new philippine baseline bill
from conservative american think tank
http://www.heritage.org/Research/AsiaandthePacific/wm2313.cfm
Spratly Islands: The Challenge to U.S. Leadership in the South China Sea
by Walter Lohman
On the eve of the annual Association of South East Asian Nations (ASEAN) summit this week, an old issue has resurfaced: conflicting claims over the Spratly Islands. The issue is back in the news for good reason; it never really went away.
According to press reports, last week the Chinese vice foreign minister summoned the charge d' affaires from the Philippines embassy to register a "stern protest" over a new Philippines' law formally staking claim to what it calls the "Kalayaan Islands." The Chinese, of course, contend that they hold, in the words of the foreign ministry, "indisputable sovereignty over these islands and their adjacent waters."
China's Unreasonable Claim
There is nothing simple about this dispute. Taiwan and Vietnam claim all of the Spratly Islands. And the specific Bruneian and Malaysian claims overlap those of the Philippines. But it is the Chinese claim--because of its aggressive scope, the history behind it, and China's growing military capacity to back it up--that pose the real problem to regional stability.
The Chinese claim is expansive, to say the least. The Kalayaan Islands are 1,000 nautical miles away from China. By contrast, the Philippines' province of Palawan is roughly 230 miles away. (Incidentally, the Kalayaans are a municipality of Palawan.) Yet China also claims territory even closer to Palawan Island: Mischief Reef, the source of so much diplomatic scuffling 10 years ago, is only 135 miles away.
The distance between China and the territory it is claiming is apparently of no concern to Beijing. Indeed, the Chinese claim not only the Spratlys but 80 percent of the South China Sea. In support of such a massive claim, the Chinese reference 2,000-year-old maps and an imaginative reading of the Law of the Sea Treaty. Critically, the claim is passively supported by China's growing military prowess (double-digit annual growth in military spending and an expanding fleet of sophisticated warships and submarines) and what increasingly appears to be deliberate ambiguity about the intentions behind this buildup.
Highlighting Chinese Ambitions
The Philippines has done the world a great favor by reminding it of Chinese ambitions. The dispute over the South China Sea flared in the mid-to-late 1990s as a result of Chinese efforts to physically fortify their claim to Mischief Reef. Although initially alarmed by China's moves, by 2002 ASEAN was heralding a new era that would essentially set sovereign disputes aside and focus instead on mutual development. This is ASEAN's comfort zone; they were pleased to paper over the problem. But the excessive Chinese claim on the territory of their member states was never withdrawn. And neither were the structures on Mischief Reef that precipitated the crisis.
The Congress and President of the Philippines are staking their claim to the Spratly Islands without apology. They appear prepared to weather Chinese protests. Indeed, there is no cause for them to capitulate. As is, choosing among several draft bills asserting their claim and political pressure to be aggressive, the Philippines settled on a course that was the least objectionable to their neighbors.
This is a diplomatic problem. The possibility that this dispute could escalate to a point where the U.S. could be called to invoke its treaty obligations to the Philippines is remote. It did not reach that point in the mid-1990s--a much more contentious environment than today. But the risk of serious conflict only increases with time.
American Support Needed
One of the greatest values of American security treaties in peacetime, in this case the U.S.-Philippines 1951 Mutual Defense Treaty, is that they clearly show where American loyalties lie.
The United States should unequivocally support the right of the Philippines to stake its claims in the South China Sea. It should also bring attention to the responsible, deliberative, legal nature of its claims. And although it cannot support any party's particular claim, the U.S. can certainly point out the aggressive, unreasonable nature of the Chinese claim. All legalities aside, at some level, any claim to territory should have to pass a common sense test. Claiming sovereignty over 648,000 square miles of sea bordering on eight countries is absolutely untenable. And the U.S. ought to say so.
Ultimately, the U.S. cannot remain neutral in a dispute between an ally and its competition for regional influence--China. If an alliance does not at least mean dispensing with neutrality in choosing your friends, then what does it mean? Playing on the ambiguities in the American position and on weaknesses plaguing perceptions of its commitment to the region, the Chinese are content to slowly turn up the heat on the South China Sea. Silence abets their aspirations.
The Spratly Islands dispute is not just the Philippines' problem. It is an even bigger problem for the United States and all who rely on American leadership in the Asia Pacific. Left unchallenged, the Chinese claim to the South China Sea could one day leave the American Pacific Fleet asking Chinese permission to conduct routine operations. If the Chinese claims calcify at a pace similar to the development of their navy, in another 10 years, the U.S. will have a real crisis on its hands.
Walter Lohman is Director of The Heritage Foundation's Asian Studies Center.
chinese view of new philippine spratly baseline bill
lifted from
http://news.xinhuanet.com/english/2009-02/24/content_10880660.htm
MANILA, Feb. 23 (Xinhua) -- Legal and academic documents and official maps in the Philippines show that its controversial territorial claims in the South China Sea has been disputable even inside the country over the past three decades.
Last week, the Philippine Congress passed the 2009 baseline bill that extends the archipelago's territory to include China's Huangyan Island and part of Nansha Islands in the South China Sea. The Chinese Foreign Ministry has lodged a stern protest, denouncing Manila's claim as "illegal and invalid."
But back in July 1997, Judge Eliodoro C. Ubiadas of the regional trial court of Olongapo city in Zambales province in a verdict dismissed, for lack of legal basis, the illegal entry charges filed against 21 Chinese fishermen detained seven nauticalmiles southeast of Huangyan Island, or Scarborough Shoal known by Filipinos.
The Philippines claimed the area is its territory or belongs to its exclusive economic zone. But Judge Ubiadas invoked a provision in the Presidential Decree 1599 stating that even though the exclusive economic zone extends to a distance of 200 nautical miles from the baselines, in cases where the outer limits of Philippines' exclusive economic zone overlap that of an adjacent or neighboring state, the common boundaries shall be determined byan agreement with the state concerned.
The accused "were apprehended in a place over which there is yet no agreement between the Chinese and the Philippine governments," so there can be no legal basis to conclude that "the accused entered the Philippine territory illegally," Judge Ubiadasruled.
Historical documents indicate that Huangyan Island has been part of China since the Yuan Dynasty (1271 to 1368), despite its geographical vicinity to the Philippine shore.
International law experts said that geographical vicinity does not at all constitute a basis for territorial claim and the Philippines can not claim sovereignty over the Huangyan Island solely on the ground that it is within 200 nautical miles from Philippine mainland.
The Huangyan Island lies 200 km west of the coastline of Zambales province.
Meanwhile, the 2009 baseline bill of the Philippines extends to cover more than 50 islets, shoals, and reefs of China's Nansha Islands, known as the Kalayaan Island Group by Manila.
The islands are declared as belonging and subject to the sovereignty of the Philippines under Presidential Decree 1596, a unilateral order issued by late president Ferdinand Marcos in 1978to claim sovereignty over the islands by geological proximity and "historic records," according to the baseline bill.
However, official maps sanctioned by the Philippine authority had only started to include the islands in the late 1970s and it was not until 10 years ago that "updated" maps with Nansha Islands within the Philippine territorial limits started to be widely circulated in the Philippines.
However, the latest Political Map of the Philippines available in bookstores, certified by the National Mapping and Resource Information Authority, clearly placed Huangyan Island outside the Philippine territorial limits.
Scholars said the undisputed and internationally accepted Philippine territorial limits are the ones decided by the treaty between the United States and Spain on Dec. 10, 1898 and the treaty between the United States and Spain on Nov. 7, 1900 and the treaty between the United States and Great Britain on Jan. 2, 1930.
Of all these treaties, Nansha Islands are outside of the Philippine territorial limits and Manila reiterated it in the Philippine constitution and other relevant treaties from 1930s to the 1970s.
The 1987 constitution, however, revised the Philippine national territory to include "all other territories over which the Philippines has sovereignty or jurisdiction," evading the constitutionality issue for absorbing territories Manila does not own by historic rights or internationally accepted legal titles.
In his 1999 book "The Nanshas (Spratlys) Disputes," Dr. Robert Hsiao Shiching, a former professor of the University of Sto. Tomasin Manila, said the approximate area of 64,976 square miles of the islands has long been a portion of China's Nansha Islands and China's sovereignty over the Nanshas has been widely recognized by the international community.
Despite their geographical proximity to the western territorial boundaries of the Philippines, "the Nansha Islands are suited beyond the Philippine continental platform and separated from Philippine territory limits by the 1,300-2,600 meters deep Palawan Trench along the Palawan Passage," Dr. Shiching said in the book.
Manuel O. Chua, chairman of the Board of Trustees of the Manila-based Tulay Foundation, Inc., said he gave a copy of the book to Miriam Defensor-Santiago, chairperson of the Senate Foreign Relations Committee before she completed drafting the baseline bill, to avoid tension and promote understanding, cooperation and amity between the Philippines and China.
"It's a highly political issue. Actually many lawmakers are in favor of a more aggressive version of the bill," Chua said of the bill's passage.
Chua lamented the brewing tension in the South China Sea, and considered it a setback after China and countries of the Association of Southeast Asian Nations agreed on a landmark code of conduct in 2002 -- the Declaration on the Conduct of Parties in the South China Sea.
In the declaration, signatories agreed to seek a peaceful settlement of the disputes over the South China Sea through friendly coordination and negotiation and to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability.
view of domestic philippine opposition to new spratly baseline bill
lifted from
http://www.bworldonline.com/BW022709/content.php?id=145
The Baselines Bill, which essentially re-describes to the international community what our country’s territory is, arose from a rather un-mandatory requirement in the UNCLOS. There is actually an existing Baselines law (RA 3046, as amended by RA 5446, enacted in 1961) that, along with PD 1596, prescribed baselines expressly including Sabah and Kalayaan Islands as part of Philippine territory. The present Baselines Bill, however, placed Kalayaan (and Scarborough Shoal) outside the baselines and categorized them instead as a "regime of islands" under Philippine jurisdiction.
Despite the probable good intent in excluding Kalayaan from the baselines’ coverage, the same has the overall effect of mitigating the strength of the Philippine claim. The rationale for falling back on the "regime of islands" concept is, according to its defenders, to give consideration to the claim of China (as well as Vietnam, Malaysia, Brunei, and Taiwan). However, such reason overall does not make sense, serving neither national, legal, nor diplomatic interests, and merely leaves our public officials looking as if they’re lawyering for the other countries. As far as we’re concerned, whether the claim is made domestically or internationally, the islands are ours — period — and it’s up to the other countries to prove otherwise.
To say that it’s better to have a "nuanced" claim to the islands for purposes of international comity is wrong because in international law terms what all that "nuance" merely succeeded in doing is to cede further ground to the Chinese. We also signaled to the world that, again, our positions are divided on a matter relating to national interest. This year we toned down our language regarding our claim. What about next year or the year following or the decade hence? Under international law practice, our laws, rules, government opinions, and judicial decisions, as well as textbooks and even newspaper articles, all constitute evidence of what our internal customary law on that particular international law issue is. That is why in international law, words do matter. The difference between an express claim and a "nuanced" claim based on an UNCLOS phrase "regime of islands" is significant and note that this softening in language all took place in a matter
of a mere 30 years from the time former President Marcos staked our claim by way of PD1956 and PD1599 in 1978.
Comment was also made that to include the Kalayaan Islands within the baselines would violate the UNCLOS. But that’s according to whom? And again, why are our officials lawyering for the other countries? Our territory is that declared by our Constitution and not by various interpretative readings of the UNCLOS. We can even choose to pull out of UNCLOS just to protect our territory. That’s doable. The US, for example, refrains from ratifying the UNCLOS for sovereignty and economic reasons. Besides, why admit that the inclusion of Kalayaan violates the UNCLOS? That’s for the other countries to prove. Let them sue us before international tribunals, which perhaps could be the best thing that could happen to us in regard to our claim.
Incidentally, whenever our officials speak of referring this matter to the UN, the ICJ, or any international tribunal, they reveal a lack of familiarity with how international law works. The matter will not be taken up by the UN because China is a permanent member of the Security Council with veto powers. We cannot bring the other country claimants to the ICJ because none of them has an existing optional jurisdiction clause filed with the Court. We can’t sue them before the International Tribunal of the Law of the Sea or to arbitration because none of them will likely consent to being brought before such proceedings. The best way to get this resolved quickly is to actually invite these countries to sue us, which they won’t because that’s how international law and politics is played.
As expected, China reacted hysterically to our baselines bill, which tells you of how futile making a "nuanced" claim is. They would have reacted that way no matter how subtle we make our claim. The only way to keep China from making their normal fuss is to just say we’re dropping our claim, which is unthinkable. Neither should we worry too much about Chinese saber rattling. They won’t attack another country just because of a mere baselines law. Presumably a civilized country, China will simply have to keep its UNCLOS commitment to settle disputes by "peaceful means."
So we just sit back, continue strongly maintaining our claim, and wait. The Chinese are thinking in decades and so should we. Note that China has no qualms in saying outright that the islands are theirs (" The government of the People’s Republic of China has indisputable sovereignty over these islands and their adjacent waters," according to the Chinese foreign ministry), so should we. Bottom line, we should focus on protecting our nation’s interests and let the other countries worry about theirs.
Contact: [log in to unmask] Visit my blog at www.paseoblur.blogspot.com
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pursuant to the following news reports posted here last week
https://www.jiscmail.ac.uk/cgi-bin/webadmin?A2=ind0902&L=INT-BOUNDARIES&T=0&F=&S=&X=2FE0FE7858376BDC9A&Y=aletheiak%40yahoo.com&P=13455
with maps archived
lifted from
http://www.gmanews.tv/story/149541/RP-China-tension-looms-as-baselines-bill-set-for-signing
(Updated 10:30 p.m.) MANILA, Philippines - The Philippines will not back down from its claim over the "regime of islands" identified in the newly ratified baselines bill despite China's reported strong protest over it, House committee on Foreign Affairs chair Antonio Cuenco said on Thursday.
In an interview with reporters, Cuenco said the Chinese government should "cool down" and let the issue on the sovereignty over parts of Spratly Islands and the Scarborough Shoal be settled before the International Court of Justice.
Meanwhile, Executive Secretary Eduardo Ermita announced Thursday that the baselines bill might be signed by President Gloria Macapagal Arroyo next week.
At the House, Cuenco said: "We reiterate our sovereignty over these islands. If the Chinese government does not like that then let the issue be settled before the International Court of Justice."
"Just cool down. We are appealing to the Chinese government to cool down," the lawmaker said.
Cuenco maintained that the Philippine government is willing to talk to China. "They're our friends, they're our closest neighbors in Asia," he said.
Despite this, the Cebu City representative said the Philippines would "never" abandon its claims over the islands, even if China threatens to hit back at the Philippines through economic deals.
"We will not be threatened by any of these countries and we will never, never abandon our claims thereon," Cuenco said.
"Sovereignty is priceless. We will not bargain our sovereignty
at any price, at any cost," he added.
For his part, Muntinlupa City Rep. Rozzano Rufino Biazon said the Philippine government's response to China's reported protest, as well as on the custody case of convicted rapist Lance Corporal Daniel Smith, will be a "test" on how the Philippines will hold out against the two of the world's superpowers.
"The Philippine position in relation to China's protest against the baselines bill should be consistent with the government stand on the Smith case. Both involve Philippine sovereignty and both are based on decisions by constitutional bodies, that is, Congress and the Supreme Court. And it appears that the executive branch's eventual action will decide if the legislative and judicial branches will be upheld," said Biazon.
"This will be a test for the administration since it is now held against the two world superpowers, its counterpart branches of government, and Philippine sovereignty," he said.
Baselines bill defended
Press Secretary Cerge Remonde said the reaction of Beijing is "not surprising" since it is also a long-standing claimant of the disputed islands, which were included by the Philippines in the "regime of islands" under the baseline bill.
Remonde, however, stressed that the Philippines needs the baseline law to meet the United Nations Convention on the Laws Of the Seas (UNCLOS) deadline in May.
"It will be then up to the UN to resolve the issue," he said referring to the May 13, 2009 deadline for the submission of the "the extended continental shelf" or the list of territories of a country.
The Chinese Foreign Minister had summoned the Philippines' charge d' affaires Maria Barbers last Wednesday to lodge a "stern protest" over the ratified baseline bill, which Beijing claimed had violated their "indisputable sovereignty" over the Kalayaan Island Group and the Scarborough Shoal.
The disputed islands were identified by the Philippine Congress as a "regime of islands under the Republic of the Philippines." This means that the Philippines continues to lay claim over the regime of islands even if it has not been included in the country's territory.
Remonde said despite China's protest, the bill "will be put into law" stressing that it is necessary to comply with the UNCLOS and ensure international recognition of the country's archipelagic baselines.
"We are doing this to comply with UNCLOS and once complied with, we will get international recognition on what we are claiming as part of our baseline. It will happen but of course there will be other claimants," he said.
Foreign Affairs Undersecretary Bayani Mangibin said China's reaction was expected but this same concern of other claiming countries like China was taken into consideration when the bill was crafted.
Mangibin said there was no violation of any sovereign policies adding that it even took the country's officials awhile to craft the law to ensure that all concerns would be considered.
He said there are no plans to file any diplomatic protest at the moment, but the Philippines is considering summoning China's own ambassador to the Philippines to "foster dialogue" and eventually "enlighten them" on the issue.
"We also share the sentiment of China. They said that they would like to strengthen the relationship of Philippines and China, and this is where we would like to direct our discussion on this issue. As a matter of fact, we are open for dialogue and consultation as provided by the declaration on Conduct in the South China Sea," he said.
He also expressed confidence that despite this "misunderstanding," the Philippines and China's relationship would remain. He said the bilateral relations of the two countries have gone a long way and had even been strengthened by the several visits of President Arroyo to China.
"It is our hope that the bill will be respected, and that's the reason we are very optimistic that this particular misunderstanding will be resolved…We will make them (China) understand and realize that their concerns have been considered during the crafting of the bill, and in this way they will really appreciate our present position," he said.
Asked why China was "reacting" sternly over the bill, Mangibin said it is because China is already "a step ahead" of the Philippines in staking a claim over the disputed islands. He said the important thing is that the Philippines has not recognized and accepted China's claim and that the country is not abandoning its own claim.
He said possible threats posed by China, especially since it is one of the superpower countries, had long been present but continued dialogue had prevented any conflict from arising.
On plans of some groups to question the constitutionality of the baseline bill, Mangibin said the Philippines is a "democratic country and we will respect that." - GMANews.TV
earlier in china
http://www.bjreview.com.cn/headline/txt/2009-02/19/content_179347.htm
& in vietnam
http://english.vietnamnet.vn/politics/2009/02/830568/
even some philippine objections too
http://www.abs-cbnnews.com/nation/02/18/09/baja-baselines-bill-weakens-rp-claim-kalayaan
all in response to
http://www.abs-cbnnews.com/nation/02/17/09/rp-stakes-claim-part-disputed-spratlys
but no reactions yet from the several other parties
curiously the philippine claim actually appears smaller than this earlier version
http://www.spratlys.org/maps/1/paracel_spratly_88.jpg
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