Introduction to Law Series: John Finnis

John Finnis

Natural Law and Natural Rights

Methodology

·      Objective goods must be identified if we are to make human action intelligible.

·      Morality tells us how we should go about pursuing these objective goods (morality is part of what Finnis calls “natural law”).

·      Morality requires us to pursue the common good within our community.

·      Enabling people to pursue their own reasonable objectives requires some degree of collaboration and co-ordination of conduct (posited law).

Sources and content of natural law

·      The principles of natural law are:

a)        a set of basic practical principles used by everyone in deciding what to do;

b)        a set of basic methodological requirements of practical reasonableness used to distinguish sound from unsound practical thinking and which provide criteria for distinguishing between actions that are morally right and morally wrong;

c)         a set of general moral standards – (NLNR p. 23).

·      The relationship between positive and natural law:

The purpose of positive law is to supplement natural law by adding compulsion and forcing selfish people to act reasonably.

Although positive law is derived from natural law it is not entailed by it (it is open to very many choices in implementation).

But these choices must be consistent with the basic principles of practical reasonableness.

·      Positive law is legally binding (in the focal moral sense) only if

1)        the law originates in a way that is legally (in the strict legal sense) valid and

2)        the law is not materially unjust either in its content or in the circumstances of its positing

·      There may also be a moral obligation to obey even an unjust law if disobedience will undermine an otherwise moral system

Objective goods

·      There are seven basic objective goods:

1)        life

2)        knowledge

3)        play

4)        aesthetic experience (i.e. beauty)

5)        sociability (i.e. friendship and community)

6)        practical reasonableness

7)        religion

·      Objective goods are:  

a)             intrinsically good, not instrumentally good.

b)             self-evident.

c)             equally fundamental

Objective goods form the pre-moral "first principles of natural law" from which we can work out the moral natural law by applying the requirements of practical reasonableness, which tell us how to go about achieving these objective goods

The requirements of practical reasonableness

There are 9 requirements of practical reasonableness:

1)        a rational plan of life

2)        no arbitrary preferences among values

3)        no arbitrary preferences amongst persons

4)        detachment

5)        commitment

6)        efficiency

7)        respect for every basic value in every act

8)        the requirements of the common good

9)        following one's conscience

The requirements of practical reasonableness provide a method of moral reasoning.

By applying these requirements one arrives at the moral choice for action or inaction among competing alternatives

Community and the common good

Community is a form of sociability and therefore also one of the objective goods, and community consists in a shared purpose, which is the pursuit of the common good.

The common good is the set of conditions that enable members of a community to attain for themselves reasonable objectives

Law, justice, and rights are the conditions that enable the achievement of the common good.

Justice

·      The principles of justice are simply the concrete implications of the general requirement that one must foster the common good in one's community.

1)        it looks to the common good, as opposed to self-interest

2)        and to the common good, which entails reference to the 7 basic objective goods of human existence

·      There are two kinds of justice: distributive justice and commutative justice.

Law

·      The purpose of law:

Law brings definition, specificity, and clarity and thus predictability into human interactions by way of a system of rules and institutions.

·      Five formal characteristics:

1)        rules of law regulate both human interactions and the institutions that create the rules and adjudicate disputes over the rules.

2)        rules validly created remain valid until validly changed or terminated

3)        rules establish how individuals may perform juridical acts

4)        rules provide a present reason for acting in accordance with a way previously provided for

5)        there are no gaps - where there are no rules there are procedures (other rules) for creating rules to fill these gaps

To these formal characteristics are added Fuller's 8 procedural desiderata.

Friday 24th July 2020

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World

https://drjorge.world

Territorial disputes: South China Sea (Part 10) [Post 125]

South China Sea and Indonesia

While Chinese claims and actions in the South China Sea have touched all of the sea’s littoral countries, the Chinese dispute with Indonesia is often overshadowed by more fraught disputes with countries closer to the Chinese mainland, in particular the Philippines and Vietnam.

Like many other territorial disputes in the South China Sea, the origin of the contemporary dispute between China and Indonesia can be found in the infamous 1947 map drawn by Nationalist Chinese diplomats featuring a dashed line encircling much of the South China Sea. 

The geography of the dashed line on Chinese maps varies; however, in every version, one of the dashes intersects the northern boundary of Indonesia’s declared EEZ north of the Natunas, around 1400 kilometres from the Chinese mainland. The waters in the disputed area are an important fishery and the seabed below is home to large natural gas reserves.

On 14 July 2017 Deputy Minister of Maritime Affairs Arif Havas Oegroseno officially launched the new map of the Republic of Indonesia, pointing out that the Natuna Exclusive Economic Zone (EEZ) has been renamed as “Laut Natuna Utara” (North Natuna Sea). The area is part of the South China Sea. Moreover, the Natuna EEZ lies partially within China’s “Nine-Dash Line”, which has not been recognized by Indonesia.

Natuna Regency has area size of 264,198.37 km2, consisting mostly of water area, with area of 262,197.07 km2, and the rest is islands, with area of 2001.3 km2. Population size of Natuna Regency in 2016 is 73.470 people. Natuna Regency is one of 183 regions in Indonesia categorized as UOF (Underdeveloped, Outermost, and Frontmost), where administratively this region shares borders with:

• North Side: Vietnam and Cambodia.
• South Side: Bintan Island.
• East Side: East Malaysia and West Kalimantan.
• West Side: Anambas Islands Regency.
• Natuna regency has 154 islands, with 27 islands (17.53%) are inhabited and the rests (127 islands) are not inhabited yet.

China, for its part, recognises that Indonesia is arguably the most important member of ASEAN. It has the largest economy of the group, is the sixteenth-largest economy in nominal GDP terms in the world, the seventh-largest in purchasing-power parity terms, is a member of the G-20 group and, geo-strategically, adjoins the Strait of Malacca, the waterway through which around 80 per cent of China’s energy imports are shipped.

Indonesia’s growing economy has made it a desirable destination for Chinese manufactured goods and an important market because it also has the world’s fourth-largest population. Its membership in ASEAN, additionally, makes it a desirable political associate and its geographic location could, if properly persuaded, ensure the security of China’s energy imports upon which it depends to keep its manufacturing base and economy moving forward.

Indonesia, moreover, overtook India as the world’s second-fastest growing economy in 2012 and although that ranking has since been reversed again, its economy continues to grow at around five per cent per annum.

Indonesia in the South China Sea

Link to document

What Does Indonesia’s Renaming of Part of the South China Sea Signify?

Link to document

Study on Development of Natuna Regency

Link to document

Indonesian Foreign Policy: The China Factor

Link to document

NOTE:  

This post is based on Jorge Emilio Núñez, Territorial Disputes and State Sovereignty. International Law and Politics (Routledge 2020).

Previous published research monograph about territorial disputes and sovereignty by the author, Jorge Emilio Núñez, Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue London and New York: Routledge, Taylor and Francis Group, 2017.

NEXT POST:

South China Sea and Cambodia (available on Monday 7th September 2020)

Friday 24th July 2020

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World

https://drjorge.world

"These Cows are Really Small - Those Cows are Far Away..." (Climate Change) by Dr Sebastian Carney

"These Cows are Really Small - Those Cows are Far Away. Structured To Fail? The Regulation on the Governance of the Energy Union and Climate Action. Is Paris to Blame?" by Dr Sebastian Carney from http://www.quitcarbon.eu

Bitesize presentation for the Juris North Roundtables

Session 5:10 Wednesday 15th July 2020

Many thanks to Dr Sebastian Carney for this presentation. 

Please be aware these are bitesize presentations specially designed for the Juris North roundabouts and, therefore, are part of a larger project. Each of our roundtables consists of separate interconnected sections that range from brief introductions by experts in their field to working together in thematic groups lead by specialists.

Thursday 23rd July 2020

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World

https://drjorge.world

Territorial disputes: South China Sea (Part 9) [Post 124]

South China Sea and Brunei

Brunei’s claim is relatively limited in comparison to the other five claimant states. 

Brunei claims only a 200-nautical mile exclusive economic zone (EEZ) under the terms of UNCLOS, in addition to several land features falling within its legally delimited boundaries in the southern portion of the sea, including Louisa Reef, Owen Shoal and Rifleman Bank. 

In direct contrast to each of the other claimants, Brunei does not occupy any land features in the sea and maintains no permanent military presence in the area to enforce its claim.

There is very little information available as to the implementation of Brunei’s maritime claims. 

The United Nations (UN) Division of Ocean Affairs and Law of the Sea (DOALOS) Table of Claims to Maritime Jurisdiction (as of 15 July 2011) lists Brunei as claiming a 12-mile territorial sea; a 200-mile EEZ; and a continental shelf to the outer edge of the continental margin, or to 200 nautical miles where the outer edge does not extend up to that distance.

The DOALOS maritime legislation website only lists the Territorial Waters of Brunei Act, 1982, and the preliminary information of its claim to an extended continental shelf in the South China Sea.

Brunei is considered a relatively low-profile claimant in the South China Sea dispute, especially in recent years, during which tensions have increased significantly. 

The country has consistently advocated its “two-step approach” to resolving the dispute. This entails not merely that claimants seek to resolve the dispute through peaceful negotiation in accordance with international law, but also the need for all parties – including ASEAN and China – to ensure a peaceful and conducive environment in which the negotiations take place. 

Statements from Brunei have been relatively measured over the years, with little information being offered or stated regarding increased Chinese activities in the southernmost portions of its Nine-Dash Line claim.

While Brunei is the smallest claimant state with the smallest claim, geographic and economic realities make the dispute and its outcome of great importance to the Sultanate. 

The country’s entire coastline of 161km straddles the South China Sea. It is also a country that relies overwhelmingly on oil and gas exports – which contributes as much as 90 per cent of government revenue and 60 per cent of its GDP. 

The vast majority of these hydrocarbon resources are concentrated offshore in its EEZ in the South China Sea – much of which lies close to or falls within China’s Nine-Dash Line claim.

The unspoken arrangement whereby Brunei remains silent on the South China Sea issue in order to secure Chinese investment has the potential to benefit both countries. 

Even if it was on a sound, self-sustained economic footing, as a small country Brunei was always going to have a difficult time enforcing its claim against a far more powerful China. Instead, Brunei opts to take a deliberately quiet approach, though one that falls short of relinquishing its claim entirely. 

The issue remains present in the background where it serves as leverage to secure Chinese investment to aid the country’s long-term development plan, which in turn is essential for maintaining the legitimacy of Brunei’s rulers.

Brunei is no doubt aware of its dwindling oil reserves and the problems that creates for the sustainability of political power. 

Commentators have noted how the influx of investment from Beijing in recent years has coincided with the suppression of anything that might be deemed mildly critical of China as well as the silence by the sultanate on anything that might offend Beijing, including the South China Sea.

Malaysia and Brunei: An Analysis of their Claims in the South China Sea 
Link to document
Key Issues and Dilemmas for Brunei

Link to document

Brunei Abandons South China Sea Claim for Chinese Finance

Link to document

The Diplomat

Link to document

NOTE:  

This post is based on Jorge Emilio Núñez, Territorial Disputes and State Sovereignty. International Law and Politics (Routledge 2020).

Previous published research monograph about territorial disputes and sovereignty by the author, Jorge Emilio Núñez, Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue London and New York: Routledge, Taylor and Francis Group, 2017.

NEXT POST:

South China Sea and Indonesia

Thursday 23rd July 2020

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World

https://drjorge.world

Territorial disputes: South China Sea (Part 8) [Post 123]

South China Sea and Taiwan

The Nansha (Spratly) Islands, Shisha (Paracel) Islands, Chungsha (Macclesfield Bank) Islands, and Tungsha (Pratas) Islands (together known as the South China Sea Islands) were first discovered, named, and used by the ancient Chinese, and incorporated into national territory and administered by imperial Chinese governments. Whether from the perspective of history, geography, or international law, the South China Sea Islands and their surrounding waters are an inherent part of Taiwan’s and waters. 

Taiwan maintains all rights over them in accordance with international law. This is indisputable. Any claim to sovereignty over, or occupation of, these areas by other countries is illegal, irrespective of the reasons put forward or methods used, and the government recognizes no such claim or occupation.

The dashed or U-shaped line encapsulating much of the South China Sea appears on both Taiwanese and Chinese maps. 

Neither China nor Taiwan has officially clarified the meaning of the dashed line which could be seen as making a claim to the wide expanse of water enclosed within the dashed line or (merely) to the land features contained therein and to maritime zones made from them in accordance with the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and international law.

The People’s Republic of China (PRC) inherited its claims from the Republic of China (ROC) after the Chinese civil war. Thus, the ROC’s interpretation of its claims is relevant to the PRC’s claims. 

Notably, a more limited reading of the claims would not be inconsistent with China’s official position as set out in its 2009 and 2011 statements to the United Nations.

Taiwan’s overtures have largely, however, been ignored. At the root of this is China’s “one-China” principle, which has cast a long shadow over Taiwan.

Taiwan’s government hopes to solve the South China Sea issues by multilateral diplomatic efforts. However, such an approach did not achieve Taiwan’s expected results. Due to its isolation from international arena, Taiwan is absent from any possible forums among the countries concerned and become the most likely one to be ignored from the South China Sea dispute.

At the same time, China’s leaders also appear to regard unification with Taiwan and control of disputed land and maritime territory as part of the China Dream. Chinese leaders have voiced, for example, a declining willingness to compromise on any sovereignty or territorial issue.

Position Paper on ROC South China Sea Policy. Republic of China (Taiwan) March 21, 2016

Link to the complete document

Tides of Change

Link to the complete document

The Dispute in the South China Sea and Taiwan’s Approach

Link to the complete document

Chinese Political and Military Thinking Regarding Taiwan and the East and South China Seas

Link to the complete document

NOTE:  

This post is based on Jorge Emilio Núñez, Territorial Disputes and State Sovereignty. International Law and Politics (Routledge 2020).

Previous published research monograph about territorial disputes and sovereignty by the author, Jorge Emilio Núñez, Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue London and New York: Routledge, Taylor and Francis Group, 2017.

NEXT POST:

South China Sea and Brunei

Tuesday 21st July 2020

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World

https://drjorge.world

Territorial disputes: South China Sea (Part 7) [Post 122]

South China Sea and Malaysia

Malaysia has preferred to rely on diplomacy and consensus that avoids embarrassing other states in addressing its maritime disputes in the SCS. The ground work for this modus operandi was developed during Tun Mahathir’s tenure as Prime Minister. 

After securing Malaysia’s claim on three Spratly islands through military occupation, Mahathir’s administration focused greater diplomatic efforts to get all disputing parties including China to consult with each other; using the Association of Southeast Asian Nations (ASEAN) as a main platform for these discussions. After Mahathir’s retirement in 2003, these policies were adapted with little innovation by his successors including the current Prime Minister, Dato’ Sri Haji Mohammad Najib.

Malaysia’s traditional South China Sea position under the government of Prime Minister Najib Razak might be best summed up as a “playing it safe” approach designed to preserve its interests as well as to manage its close ties with China.

Discussion of renaming parts of the South China Sea is far from something new in the region. Indeed, if Malaysia does choose to rename its part of the South China Sea, it would also be just the latest in a succession of such designations we have witnessed among Southeast Asian states. 

The two other main Southeast Asian claimants in the South China Sea, the Philippines and Vietnam, already call the South China Sea the West Philippine Sea and the East Sea respectively. And, last year, Indonesia, which is technically not a South China Sea claimant but is nonetheless an interested party, announced that it would now call it the North Natuna Sea.

Malaysia’s real challenge which such discussions of new ideas often leave out: though it may be on firm ground with legal moves like these, the country’s military capabilities remain quite limited, and the Najib government would be hesitant to take moves like significantly restrict economic activity with Beijing.

Aware that their navy and air force are underequipped, Malaysia’s military planners have developed several plans to upgrade old platforms and acquire new ones in recent years. However, military spending has never been prioritized in the government budget, and most plans for force modernization have been repeatedly delayed or cancelled. The declining trend in Malaysia’s defense outlay was halted in 2013. 

That year, Malaysia was shocked when China staged a naval exercise around James Shoal, a 72-foot deep underwater bank lying 55 nautical miles (nm) off the Malaysian Borneo coast. It was also in 2013 that China Coast Guard ships started to anchor at South Luconia Shoal, an oil-rich area lying 70 nm off Borneo. Each of Malaysia’s armed services face challenges in securing their areas of Malaysia’s claimed maritime territory with their current assets.

Since returning to power after his stunning election victory in May 2018, the 93–year–old Malaysian Prime Minister Mahathir Mohamad has made a series of comments reflective of weaker states’ views of the evolving Asian order in the Trump–Xi era. These include a firmer stance on the South China Sea disputes, Malaysia’s relations with the Asian powers (especially concerning the controversial China–backed infrastructure projects and Japan’s regional role), as well as the future of multilateral trading arrangements.

Judging from Mahathir’s recent remarks, as well as his policies during his first premiership from 1981–2003 (“Mahathir 1.0”), three elements can be identified as the core constituents of the emerging “Mahathir Doctrine”:

• The South China Sea should be a sea of cooperation, connectivity, and community–building, not confrontation or conflict.
• Diplomatic consultations, not military swaggering, are the key to managing and resolving any inter–state disputes in East Asia and elsewhere.
• While all countries, big and small, are welcome to play a constructive role in the widening East Asia community building via integration and creation of bigger markets, weaker states’ interests must be respected, protected, and fulfilled.

Asia Dialogue Link

The Diplomat Link

Asian Maritime Transparent Initiative Link

The Interpreter Link

NOTE:  

This post is based on Jorge Emilio Núñez, Territorial Disputes and State Sovereignty. International Law and Politics (Routledge 2020).

Previous published research monograph about territorial disputes and sovereignty by the author, Jorge Emilio Núñez, Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue London and New York: Routledge, Taylor and Francis Group, 2017.

NEXT POST:

South China Sea and Taiwan

Monday 20th July 2020

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World

https://drjorge.world

Territorial disputes: South China Sea (Part 6) [Post 121]

South China Sea and the Philippines

Under President Rodrigo Duterte, the Philippines is seen by many as China’s newest best friend. After all, the Philippine leader has demolished the country’s years-long role as the vortex of resistance against China’s maritime assertiveness in the South China Sea, while simultaneously downgrading security cooperation with the United States—its treaty ally.

In an abrupt break from his predecessor Benigno Aquino’s policy, Duterte has effectively “set aside” the Philippines’ landmark arbitration award against China in the South China in pursuit of warmer ties with Beijing.

China and the Philippines are now considering a series of resource-sharing agreements in the South China Sea, the latest development in a diplomatic warming trend that has reset the disputed maritime area’s strategic calculus.

The initiative was made public during the late March visit of Philippine Foreign Secretary Alan Peter Cayetano to Beijing, where he echoed President Rodrigo Duterte in hailing a “golden period” in Philippine-China relations.

President Duterte has repeatedly expressed a preference for “co-ownership” of disputed hydrocarbon and marine resources with Beijing. Placing normalization of bilateral ties with China at the heart of his foreign policy agenda, Duterte appears determined to bolster ties with the Asian powerhouse, even if it means dialing back his country’s legitimate sovereign rights and interests in the South China Sea.

In particular, the Filipino leader is betting on a huge inflow of Chinese investments as a reward for adopting a more acquiescent position on the maritime disputes. Over the past two years, China has dangled $24 billion in trade and investment deals in the Philippines to sweeten any potential deal.

The latest data, however, shows that traditional allies like Japan, the United States, and Europe lead the investment landscape in the Philippines. During Duterte’s first year in office, Japan’s investments climbed from $490 million in 2016 to $600 million in 2017, an increase of 23.79 percent. American investment dropped by almost 70 percent, but still amounted to $160 million. In contrast, Chinese investment in the period went from only $27 million in 2016 to $31 million in 2017. Japanese investment was more than 23 times that of China.

"I cannot go to war with China," said Philippines President Rodrigo Duterte whenever he was pressed about his country's challenged sovereignty claim over a portion of the South China Sea.

It's the same line he told his Navy on its 120th anniversary in May. Although appreciative of the sailors' "gallant" efforts to defend the archipelago's maritime territory, Duterte implicitly acknowledged their inferiority to their Chinese counterparts.

"I cannot go into a battle that I cannot win," he said before the Navy's ranks and top brass.

Asian Maritime Transparent Initiative Link

The National Interest Link

AlJazeera Link

NOTE:  

This post is based on Jorge Emilio Núñez, Territorial Disputes and State Sovereignty. International Law and Politics (Routledge 2020).

Previous published research monograph about territorial disputes and sovereignty by the author, Jorge Emilio Núñez, Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue London and New York: Routledge, Taylor and Francis Group, 2017.

NEXT POST:

South China Sea and Malaysia

Tuesday 14th July 2020

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World

https://drjorge.world