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| The Sino-Philippine Maritime Row: International Arbitration and the South China Sea; West Philippine Sea | |
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| Tweet Topic Started: Mar 20 2013, 03:30 AM (1,035 Views) | |
| Hong Nam | Mar 20 2013, 03:30 AM Post #1 |
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Bought by China
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The Sino-Philippine Maritime Row: International Arbitration and the South China Sea By Peter A. Dutton Full Article Here What Did the Philippines Claim? As UNCLOS specifically allows countries to exclude sovereignty disputes, maritime border disputes and claims to historic title – and China is on record as doing so - the Philippines cannot litigate ownership of the Spratly Islands nor can the arbitrators draw a maritime boundary for the two parties. Even so, the Arbitral Panel may find that it has jurisdiction to decide some of the other issues that have most frustrated the government of the Philippines. In its official Notification and Statement of Claims, the Philippines made four distinct claims: 1.) China's Nine-Dashed Line is Invalid. First, the Philippines asked the Arbitral Panel to determine that China's nine-dashed line claim to the South China Sea's waters is contrary to UNCLOS and therefore invalid. This is really the heart of the dispute between China. If China were to convincingly claim that the nine-dashed line is based on some kind of "historic title," then presumably the Arbitral Panel does not have jurisdiction to hear this issue because China exercised its right to exclude the matter from consideration. However, China’s claim of "historical title" to such a vast expanse of waters may be viewed by the panel as so unreasonable in light of existing law that the panel may construe UNCLOS as preventing China from making the claim. Indeed, if China is allowed to make such a claim, could Spain and Portugal assert ownership of the world's oceans based on their historic pasts? The Arbitral Panel may choose to shed some light on the legal limits of historical title claims. 2.) China Occupied Mere Rocks. Second, the Philippines claims that China "occupied certain small, uninhabitable coral projections that are barely above water at high tide, and which are 'rocks' under... UNCLOS." The heart of its claim is that "none of the Spratly features occupied by China is capable of sustaining human habitation or economic life of its own." If the Arbitral Panel agrees, then even if China does have sovereignty over the tiny features, as rocks they are legally incapable of generating resource zones (exclusive economic zones or continental shelves). Thus, taken together, the first two Philippine claims assert that neither the nine-dashed line nor geography is a legitimate basis for China to assert jurisdiction over the waters beyond 12 nautical miles from these small rocks. 3.) Chinese Structures on Submerged Features are Illegal. The third Philippine claim is that China "occupied and built structures on certain submerged [features] that do not qualify as islands under UNCLOS, but are parts of the Philippine continental shelf." Some of the submerged features within the nine-dashed line are as close to the Philippines as 50 nautical miles and as far from China's Hainan Island as 550 nautical miles. This assertion claims China has no legal rights to the continental shelf far from its coastlines. Those rights belong to the Philippines since UNCLOS gives a coastal state continental shelf rights "throughout the natural prolongation of its land territory." The Notification specifically challenges Chinese-built structures in four places - Mischief Reef, McKennan Reef, Gaven Reef and Subi Reef - that are submerged at high tide. They lie between 130 and 230 nautical miles from the coastline of the Philippine Island of Palawan. If the Philippines can convince the Arbitral Panel that China's nine-dashed line is invalid, that China has no other valid basis to claim continental shelf rights in the region and that Reed Bank is legally part of the Philippine continental shelf, then Philippine companies will be legally free to pursue the development of lucrative hydrocarbon deposits without Chinese interference. 4.) Chinese Harassment is Illegal. Finally, the Notification asserts that the Chinese "interfered with the exercise by the Philippines of its rights." This portion of the claim refers primarily to Scarborough Reef, the vast majority of which is submerged, but on which there are a few rocks above water at high tide that technically could be claimed as the sovereign territory of China. However, even if China has sovereignty over these small rocks, they generate at most a small Chinese zone of 12 nautical miles, rather than encompassing the entirety of the much larger submerged reef. Thus, the Notification claims that China's seizure of the whole reef was unlawful, as is China's continued interference with the right of Philippine citizens to "enjoy access to the living resources within this zone." What Comes Next? Despite China's recent rejection of the international arbitration process, the Sino-Philippine row is far from over. First, China still has an opportunity to change its position and litigate the issues, or at least to litigate whether the Arbitral Panel has jurisdiction over any of the Philippine claims. Although such a change may be unlikely, doing so would reassure China's increasingly anxious neighbors that it is committed to institutional rather than power-based resolution of disputes. China's second option - and perhaps the most likely - is to continue to refrain from participating and to hope for a favorable outcome. If China loses the case, it could declare the process void and ignore its results. Failing to participate and especially ignoring an adverse verdict, however, would convince China's neighbors that China does not intend to play by international rules. In response, others in the region and beyond would have to seek ways to bolster a rules-based order that gives all claimants an equal weight against a larger China. Third, China may believe its best option is to try to isolate and coerce the Philippines into dropping the arbitration. This too may backfire by increasing international disapproval, which has already reached considerable levels. Additionally, it may be ineffective in the end, since the Philippines learned during the Scarborough Reef incident that it is less economically and politically exposed to Chinese pressure than some other regional states. Perhaps worse for China is that if it chooses the path of coercion, then Beijing itself will have proven the "China threat theory" it so decries. Finally, given the risks and ramifications of each of these options, Beijing may decide to engage in quiet negotiations with Manila to withdraw the case. Doing so, however, would require the Chinese to give the Philippines something meaningful, such as renewed access to Scarborough Reef, assurances that Philippine oil and gas development can proceed without harassment and a pledge that negotiations on a final outcome will continue in good faith. However, such negotiations can only be successful if the Philippines acts as a discreet and reasonable negotiating partner. If Beijing chooses this fourth approach, and if Manila engages in quiet diplomacy, then there is some hope that a productive accommodation can be reached. In that event, international litigation will have served President Aquino's purpose to find "a peaceful and rules-based resolution of disputes ... in accordance with international law." ** Check-mate |
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| wily_pest | Mar 20 2013, 09:36 AM Post #2 |
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best case scenario: quiet resolution with china is achieved, it should only be a full acceptance that the whole eez is recognized as belonging to the phil. and intrusion would be halted. worst case scenario: continue to pursue case to the UN until completed and ruled by UN that the full eez, as belonging to the phil. despite the renunciation by china. this gives the phil. military justification to shoot any illegal intruder, albeit risking a shooting war. the UN has to respond and the test of alliance with the US will have to be tested. other worst case scenario: the arbitration in the UN would be postponed due to chinese and/or allied political pressure. the UN would deem that ruling in favor of the phil. may start mayhem in the strategic area of the globe and ruling in favor of china would be impossible. therefore maintaining the status quo of chinese encroachment is more acceptable to the world than a phil. capitulation or a shooting war. in this scenario when it is obvious that arbitration had been hijacked by politics, this should also give legitimacy to the phil. claim. therefore self-proclamation of eez ownership becomes justified and shooting first is a true option. Edited by wily_pest, Mar 20 2013, 09:37 AM.
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| Management of many is the same as management of few. It is a matter of organization. Sun Tzu | |
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| Hong Nam | Mar 20 2013, 01:08 PM Post #3 |
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Bought by China
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One thing is certain my friend. This will serve as an "incubator" on what the future is like for the UNCLOS and ITLOS. - "We are living in interesting times." Time is of the utmost. Frustration is rife, but bear in mind that our disappointment is nothing compared to that of those in the service of your beloved country. |
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| pachador | Mar 21 2013, 05:58 AM Post #4 |
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i do not agree for 2 reasons on "engage in quiet negotiations with Manila to withdraw the case. Doing so, however, would require the Chinese to give the Philippines something meaningful, such as renewed access to Scarborough Reef, assurances that Philippine oil and gas development can proceed without harassment" why ? 1.) there is a future scenario that the bully will back out of this quiet agreement when they have become much more powerful and will enroach again. their past and current behavior has shown that already. magugulang yan sila. 2.) if they enroach again in the future, we might not have another chance with UNCLOS if the bully's influence increases and becomes pervasive that they can control world bodies such as unclos into not accepting anymore the scarborough case. the philippine govt needs to stick to their guns and wait for the ITLOS ruling or outcome , and not back-out just because of some sweet talk flattery from the bully. Edited by pachador, Mar 21 2013, 05:59 AM.
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