Hi everyone!
 
Indeed, I, too, am enjoying this debate. And coming from a southeast asian nation, I am a bit bothered by the incident. I agree that certain freedoms can be exercised on certain areas of the South China Sea (both in the areas "designated" as high seas" and in the EEZ of the littoral states, and even in some parts of the territorial seas), but I don't think that that freedom should be "protected" of "enforced", on behalf of all freedom-loving nations, by any one country. I don't believe that the players involved were trying to, anyways. But the incident is quite disturbing, from a lot of angles (political, military, even environmental), and the lack of authoritative information on territorial and/or maritime claims, extent of claims, maritime boundaries, basepoints and baselines, etc. adds to the worry.
 
Sincerely,
Emma Sarne
Philippines


 

Date: Wed, 11 Mar 2009 16:33:51 +0100
From: [log in to unmask]
Subject: Re: [INT-BOUNDARIES] re mini crisis or not
To: [log in to unmask]

Hello Everyone!

I am enjoying this debate.

Sorry Gbenga but I do not entirely agree :-).

I have a few points on the maritime dimension. Dare I start with the statement that the territorial temptation has turned seawards...eek!  The regime of the Exclusive Economic Zone is unique because it is a combination of coastal states exclusive rights to the resources in the zone with, and most importantly, fundamental freedoms like the freedom of navigation. In trying to establish Territorial Sea regimes beyond the 12nautical mile limit, coastal states undermine the International law of the Sea and more worryingly there is that every present fear of it becoming custom.
This is not a very good idea because the establishment of a Territorial Sea regime in an area hitherto governed by High Sea principles means only coastal states will determine whom to let in, and more worryingly whom to allow passage. So what about the landlocked states? They have to beg or concede certain things in exchange for passage?  What about shipping, trade? Fisheries?  Even security is not left out of this equation... A state with most of its allies accessible by sea can be effectively hemmed in by navigational blocks.

The US argues that it is expressing the International customary common principle of freedom of navigation within  the EEZ and preventing the proliferation of creeping jurisdiction. This is in accordance with its Freedom of Navigation program (although I think this is a bit rich seeing as it is still not party to the Sea convention) China argues that naval ships are not welcome in their EEZ notwithstanding the customary principle of the Freedom of Navigation (although I question its attempt to operate on its unilateral  interpretation of a multi-lateral treaty)
Can I also add that with the EEZ we are talking about 200nautical miles from the baseline...

 I think there are two questions here-

Whether we would rather protect this freedom or allow the cordoning off of substantial coastal areas by coastal states. I shudder at the possibility of a world where it is fine to cordon off 200nm of our seas by turning them into Territorial Seas. 

Whether we need to redefine the exact scope of navigational rights or the exact scope of coastal state's rights in the EEZ.

Only time and future altercations(?) will tell.

B.H. Oxman, The territorial temptation: a siren song at sea, American Journal of International Law 100 (2006), pp. 830–851 is a good introduction into the territorial creep.  I am also publishing an article on the exclusive and inclusive debate this autumn so watch this space.


Warmest Regards,




Ms Nkeiru Joe
Pre-Doc Fellow-Instituut van International Recht
Vrije Universiteit Brussel
Plenilaan 2
1050, Brussels
+32 2 629 2639
[log in to unmask]


2009/3/11 <[log in to unmask]>
There is a reason why the area is known as the "Yellow and South China seas". It is not the "White and South USA seas". What are US naval ships doing continually there? The era when a few states think they have a God given right to patrol other peoples land, air and maritime areas ( and invade them once in a while) is fortunately coming to an end. Mutual sovereignty and respect for others include not having menacing presence close  to other peoples territory and definitely not with state ships and aircraft. These issues always crop up at the beginning of new US administrations. Remember Bush's spy plane patrol crash into Chinese aircraft and descent into China without remorse about eight years ago. If the US does not like it then they can put their money where their mouth is like they have done in Afghanistan and Iraq. Or is there a limit to their power and belief in the utility of war? :-))


----- Original Message -----
From: aletheia kallos <[log in to unmask]>
Date: Tuesday, March 10, 2009 6:14 pm
Subject: [INT-BOUNDARIES] re mini crisis or not
To: [log in to unmask]

> concurrent intel & analysis lifted from
> http://www.stratfor.com/analysis/20090309_china_u_s_naval_incident_and_wider_maritime_competition
> generally agrees with & enlarges upon my previous comments
>
> China, U.S.: A Naval Incident and Wider Maritime Competition
> March 10, 2009 | 1041 GMT
>
> Summary
> Chinese vessels appear to be acting with increasing aggression
> toward a pair of U.S. ocean surveillance ships in the Yellow and
> South China seas. Though such aggression is not unprecedented,
> it is a departure from China’s behavior of recent years, and it
> could indicate rising maritime tensions among many of the
> region’s naval powers.
>
> Analysis
> Chinese sailing vessels have behaved with increasing aggression
> toward two U.S. ocean surveillance ships operating in the Yellow
> and South China seas. Though this recent behavior is not
> unprecedented, the U.S. 7th Fleet is characterizing it as a
> departure from normal interactions and the most aggressive
> behavior the fleet has seen from China in a long time. These
> aggressive moves might herald things to come as the maritime
> environment around China becomes increasingly active — and crowded.
>
> On March 4, the USNS Victorious (T-AGOS 19) had an encounter at
> night with a Chinese Bureau of Fisheries patrol vessel in the
> Yellow Sea. The USNS Impeccable (T-AGOS 23) was approached more
> aggressively in the South China Sea the next day, when a Chinese
> People’s Liberation Army-Navy (PLAN) frigate reportedly crossed
> the Impeccable’s bow at a range of about 100 yards, and the
> Impeccable was buzzed nearly a dozen times at low altitude by a
> Y-12, a Chinese-made twin-engine turbo prop. Reportedly, the
> ship was threatened verbally over bridge-to-bridge radio on
> March 7 as well.
>
> But it was the March 8 incident with the Impeccable that
> garnered the most attention. According to reports, a PLAN
> intelligence collection ship, a Bureau of Maritime Fisheries
> patrol vessel, a State Oceanographic Administration patrol
> vessel and two small Chinese-flagged trawlers were all involved
> in what the U.S. Navy has characterized as coordinated
> harassment of the Impeccable. Some of the ships were within 25
> feet of the Impeccable at one point and stopped in front of the
> U.S. ship so close that the crew executed an emergency all stop
> to avoid a collision.
>
> The Impeccable is an ocean surveillance ship, part of the
> Military Sealift Command, and is operated by a mixed crew of
> civilian and military personnel. Capable of deploying towed
> acoustic arrays, the U.S. ship was operating within 75 miles of
> Hainan Island, where a number of sensitive PLAN and other
> military activities are conducted (reportedly including the
> deployment of the PLAN’s next-generation nuclear-powered attack
> and ballistic missile submarines). China would at least be
> concerned about the United States refining its knowledge of the
> submarine operating environment, and likely felt compelled to
> assume that the Impeccable was conducting other surveillance and
> intelligence-gathering activities.
>
> This is not a new dynamic. It is the same basic dynamic that
> gave rise to the EP-3 Ares II incident in 2001, in which a
> Chinese aircraft collided with a U.S. signals intelligence
> aircraft, forcing the EP-3 to land at Hainan Island. Normally,
> these activities are routine, and both sides abide by
> internationally accepted or even unspoken sets of rules. But
> when one side chooses to escalate the situation, matters can
> quickly spiral out of control.
>
> Part of this is simply a matter of increased PLAN activity,
> characteristic of a larger shift in how Beijing employs its
> navy. But with the PLAN’s 60th anniversary approaching in April
> (a formal announcement about its plans for an aircraft carrier
> fleet is anticipated), and the impending return of its first
> squadron deployed to the coast of Somalia, the Chinese navy is
> undoubtedly feeling rather confident and accomplished these days.
>
> But internal tensions may also be at play. With the financial
> crisis in full swing, the PLAN may also be attempting to drum up
> incidents for budgetary purposes, to forestall major fiscal cuts
> to its accounts.
>
> More importantly, the March 8 incident is emblematic of broader
> maritime tensions in the East Asian sphere — and not just
> between China and the United States. Over the past several
> months, tensions over long-standing maritime territorial
> disputes have once again risen across the region. North Korea
> has once again declared that it does not abide by the Northern
> Limit Line, the maritime extension of the Demilitarized Zone in
> the West/Yellow Sea, warning that a clash with South Korean
> naval vessels patrolling the area could occur. Japan, meanwhile,
> has launched a 10-year seabed mapping and underwater resource
> prospecting program, triggering warnings from Seoul and Beijing
> not to use the operations to lay claim to the disputed
> Tokdo/Takeshima and Senkaku/Daiyoutai islands respectively. And
> China’s competing claims over islands in the South China Sea are
> also resurfacing, provoking counterclaims from the Philippines,
> Malaysia and Vietnam.
>
> In short, the waters around China are becoming more crowded and
> the mood increasingly contentious. The March 8 incident could
> herald increased volatility in the maritime environment — across
> the region — for years to come.
>
> also
> if i might conserve messages
> which are all inextricably intertwingled anyway
> special thanx to barbara for hailing me before the hague again
> re spratly islands etc
> with the following update i had til now sent only to victor
> imagining no one else cared
> & thinking not to bother all the rest of you with it
>
> it looks like malaysia has finally acted
> obliquely but demonstratively
> & has provoked taiwan into likewise belatedly joining china &
> vietnam
> in reacting to the philippine spratly baseline bill
> even as china moderates its tone & stance but ups the diplomacy
> the asean summit having passed by undramatically
>
> & no public acknowledgement at all yet from brunei btw
>
> http://www.earthtimes.org/articles/show/258739,taiwan-upholds-
> claim-over-spratlys-after-malaysia-premiers-visit.html
> http://www.nst.com.my/Current_News/NST/Saturday/NewsBreak/20090307165945/Article/index_html
> http://globalnation.inquirer.net/news/news/view/20090306-
> 192736/New-Chinese-envoy-arrives-in-RP
>
> also
> albeit less so
> http://taiwanjournal.nat.gov.tw/ct.asp?CtNode=122&xItem=49115
> yet not without reverberation
> http://businessmirror.com.ph/home/opinion/7008-da-gets-
> unwarranted-flak-.html
>
> hope it helps or at least entertains
>
> best
> a
>
>
>
>
>      
>

Dr. Gbenga Oduntan
Lecturer in International Commercial Law,
Kent Law School,
Eliot College,
University of Kent,
Canterbury,
Kent CT2 7NS, UK.

Phone:
Switchboard 0044 (0)1227 764000 (ext 4817)
Direct Line 0044 (0)1227 824817
Fax: 0044 (0) 1227 827831

Email: [log in to unmask]
http://www.kent.ac.uk/law/people/index.htm






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