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PH Files Case vs China Before UNCLOS Tribunal; Ph challenges China's 9-dash claims in WPS at UN Tribunal
Topic Started: Jan 22 2013, 05:03 PM (50,587 Views)
raider1011


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. . . here is an illustrative cartoon from a Chinese newspaper, “JingChu Times”, in Central China (although originally from another publication).

Although one doesn’t need to read Chinese to get the jist, here is my attempt to translate anyway.

The Foot is labeled: “Chinese Territory”

The Fish biting the Foot’s toe is labeled: “The Philippines”. The Fish is holding a sign with the words: “Mine!”.

Yes, this Annex VII UNCLOS arbitration claim is really sending shock waves throughout China.


Opinio Juris
Edited by raider1011, Jan 28 2013, 04:38 PM.
God grant me the courage not to give up what I think is right even though I think it is hopeless.

|| Chester W. Nimitz

Loyalty to the Nation ALL the time, loyalty to the Government when it deserves it.

|| Mark Twain
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raider1011


Foreign Ministry Spokesperson Hong Lei's Regular Press Conference on January 23, 2013

Q: First, it is reported that the electoral alliance formed by incumbent Israeli Prime Minister Benjamin Netanyahu's Likud party and the far right Jewish Home party bids fair to win the 19th Israeli parliamentary election. What is China's comment? Second, Philippine Foreign Secretary Albert del Rosario reportedly said on January 22 that the Philippines would ask for international arbitration on its dispute with China on the South China Sea. How does China respond?


A: On your first question, relevant election is Israel's internal affair. We have no comment.

On your second question, China has indisputable sovereignty over the Nansha Islands and their adjacent waters. It is based on full historical and jurisprudential evidence. Territorial sovereignty dispute caused by the Philippines' illegal encroachment on some islets of China's Nansha Islands is the root cause and essence of relevant dispute between China and the Philippines in the South China Sea. China has been firmly opposed to that.

Bearing China-Philippines relations and regional peace and stability in mind, China has been committed to resolving disputes through bilateral consultation and negotiation, which reflects China's good faith and sincerity. To solve relevant disputes through negotiation between directly-concerned sovereign states is also the consensus between China and ASEAN countries as stipulated in the Declaration on the Conduct of Parties in the South China Sea (DOC). All the signatories to the DOC should stand by their solemn commitments.

We hope that relevant country would keep its word, earnestly and fully carry out the DOC and refrain from taking actions that could complicate and aggravate this issue.
God grant me the courage not to give up what I think is right even though I think it is hopeless.

|| Chester W. Nimitz

Loyalty to the Nation ALL the time, loyalty to the Government when it deserves it.

|| Mark Twain
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Mckoyzzz
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raider1011
Jan 28 2013, 04:24 PM
Q2: What is the Philippine case?

A2:
The Philippines has been forced to take a necessarily limited legal track. China has felt more or less secure in its immunity from the binding dispute settlement mechanisms covered by the UN Convention on the Law of the Sea (UNCLOS), to which it and all the other South China Sea claimants are party. This is because Beijing opted in 2006 to take an “out” offered by article 298 of UNCLOS, which allows signatories to exempt themselves from mandatory settlement of several important types of disputes. The most significant exemption in this case is to the resolution of disputes over overlapping maritime boundaries, including territorial seas, EEZs, and continental shelves.

However, the Philippines’ motion for arbitration is careful not to request the delimitation of maritime boundaries. Nor does it ask for the tribunal to resolve the overlapping claims to individual islands in the South China Sea—an issue which is outside the scope of UNCLOS to begin with. Instead, the core of its case rests on two fundamental questions about definition. First, it argues that China’s “nine-dash line” is not supported by UNCLOS, and therefore the only valid maritime claims in the South China Sea are to the territorial seas, EEZs, and continental shelves adjacent to coastlines and islands. This is the only definition of such maritime claims allowed under UNCLOS.

The Philippines’ second major request is for the tribunal to rule on whether certain “islands” occupied by China are islands at all. This is critically important because under UNCLOS only features which are above water at high tide are considered islands capable of generating a 12 nautical mile territorial sea. Any features not above water at high tide are not islands, and belong to whichever country owns the continental shelf on which they sit, or to no one if they lie beyond any continental shelf. The Philippines asserts that Mischief Reef, McKennan Reef, Gavin Reef, and Subi Reef fall under this category.

In addition to the low-tide elevations which the Philippines asks the tribunal to affirm are not islands, it also argues that certain high-tide features on which China has built structures are entitled to only a territorial sea, not a 200 nautical mile EEZ or continental shelf. This rests upon UNCLOS rules stating that only islands capable of supporting human habitation and/or independent economic activity generate EEZs of their own. The Philippines lists Scarborough Shoal, Johnson South Reef, Cuarteron Reef, and Fiery Cross Reef as features occupied by China that do not meet this requirement.

In the case of all eight features listed, both geography and legal precedent make the Philippines’ case close to air-tight.


Q3: What comes next?

A3:
. . . Assuming the judges take up the case, Secretary del Rosario predicted that it would last three to four years, before the tribunal will issue its “award”, or decision. The awards of an arbitral tribunal are declared by UNCLOS to be binding on both parties of the dispute. It is also important to note that China cannot obstruct the proceedings of the tribunal. Appendix VII of UNCLOS, which covers the workings of an arbitral tribunal, is explicit that the refusal of either party to participate will neither prevent nor prejudice the decision of the tribunal.

The big question will be whether or not Beijing follows the “binding” decision of the tribunal; there are no sanctions or repercussions enumerated by UNCLOS should it fail to do so and the notion of outside interference to force it to abide by the findings is nearly inconceivable. That would be a crippling blow to China’s image. The argument constantly put forth from the Chinese, that a rising China will be a responsible player in the global order and a protector of the global commons, would be undone overnight. Recognizing that, China might well deem the price of refusal too high and abide by the tribunal’s decision.

Center for Strategic & International Studies

sounds like a carefully thought-out case by the Philippines... they must have looked at every nooks and corners of this case before officially filing it to UNCLOS...
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"Do not condemn the judgment of another because it differs from your own. You may both be wrong -- Dandemis"
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raider1011


^I hope you're right. Here's the guy our legal team picked to sit on the arbitral tribunal: Judge Rüdiger Wolfrum, a German jurist.

China is obliged to appoint their man within 30 days. The remaining members, each country will nominate their picks and then debate the final three. If China refuses to participate, the President of ITLOS (Judge Yanai, Japanese) will name the final four members.
Edited by raider1011, Jan 28 2013, 05:45 PM.
God grant me the courage not to give up what I think is right even though I think it is hopeless.

|| Chester W. Nimitz

Loyalty to the Nation ALL the time, loyalty to the Government when it deserves it.

|| Mark Twain
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Mckoyzzz
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raider1011
Jan 28 2013, 05:05 PM
Foreign Ministry Spokesperson Hong Lei's Regular Press Conference on January 23, 2013

Q: First, it is reported that the electoral alliance formed by incumbent Israeli Prime Minister Benjamin Netanyahu's Likud party and the far right Jewish Home party bids fair to win the 19th Israeli parliamentary election. What is China's comment? Second, Philippine Foreign Secretary Albert del Rosario reportedly said on January 22 that the Philippines would ask for international arbitration on its dispute with China on the South China Sea. How does China respond?


A: On your first question, relevant election is Israel's internal affair. We have no comment.

On your second question, China has indisputable sovereignty over the Nansha Islands and their adjacent waters. It is based on full historical and jurisprudential evidence. Territorial sovereignty dispute caused by the Philippines' illegal encroachment on some islets of China's Nansha Islands is the root cause and essence of relevant dispute between China and the Philippines in the South China Sea. China has been firmly opposed to that.

Bearing China-Philippines relations and regional peace and stability in mind, China has been committed to resolving disputes through bilateral consultation and negotiation, which reflects China's good faith and sincerity. To solve relevant disputes through negotiation between directly-concerned sovereign states is also the consensus between China and ASEAN countries as stipulated in the Declaration on the Conduct of Parties in the South China Sea (DOC). All the signatories to the DOC should stand by their solemn commitments.

We hope that relevant country would keep its word, earnestly and fully carry out the DOC and refrain from taking actions that could complicate and aggravate this issue.

same old poopy statement by China...


  • > indisputable sovereignty
    > full historical evidence
    > Philippines' illegal occupation
    > commitment to peace and stability to the region
    > bilateral negotiation
    > adhere to the code of conduct
    > refrain from taking actions that could complicate and aggravate this issue

it seemed all Chinese spokesperson or anyone being interviewed memorize these lines and given like an automated answer...
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seWer Rat
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They know we have a strong chance of winning a favorable verdict under the UNCLOS thats why they always bring forth the "bilateral agreement" which is just obvious stonewalling of course.
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Mckoyzzz
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raider1011
Jan 28 2013, 05:37 PM
^I hope you're right. Here's the guy our legal team picked to sit on the arbitral tribunal: Judge Rüdiger Wolfrum, a German jurist.

China is obliged to appoint their man within 30 days. The remaining members, each country will nominate their picks and then debate the final three. If China refuses to participate, the President of ITLOS (Judge Yanai, Japanese) will name the final four members.
There IS a chinese member of the tribunal... Zhiguo Gao (China)


Anyhow, according to the UNCLOS, the judges in the tribunal are selected based on those "persons enjoying the highest reputation for fairness and integrity and of recognized competence in the field of the law of the sea.".


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raider1011


Mckoyzzz
Jan 28 2013, 06:25 PM
raider1011
Jan 28 2013, 05:37 PM
^I hope you're right. Here's the guy our legal team picked to sit on the arbitral tribunal: Judge Rüdiger Wolfrum, a German jurist.

China is obliged to appoint their man within 30 days. The remaining members, each country will nominate their picks and then debate the final three. If China refuses to participate, the President of ITLOS (Judge Yanai, Japanese) will name the final four members.
There IS a chinese member of the tribunal... Zhiguo Gao (China)


Anyhow, according to the UNCLOS, the judges in the tribunal are selected based on those "persons enjoying the highest reputation for fairness and integrity and of recognized competence in the field of the law of the sea.".


Arbitral tribunal under Annex VII is not the same as ITLOS, the case is before the arbitral tribunal not ITLOS. Gao sits on ITLOS a permanent body but has not been formally nominated for the ad hoc arbitral tribunal unlike Wolfrum. Gao might be China's pick eventually but that hasn't happened yet.

Quote:
 
VI. APPOINTMENT OF ARBITRATOR

42. In accordance with the requirements of UNCLOS Annex VII, Article 3(b), the Philippines hereby appoints Judge Rudiger Wolfrum as a member of the Arbitral Tribunal.

www.dfa.gov.ph/index.php/downloads/doc_download/523-notification-and-statement-of-claim-on-west-philippine-sea
Edited by raider1011, Jan 28 2013, 06:53 PM.
God grant me the courage not to give up what I think is right even though I think it is hopeless.

|| Chester W. Nimitz

Loyalty to the Nation ALL the time, loyalty to the Government when it deserves it.

|| Mark Twain
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raider1011


Many people are confused even the experts. To put it to rest, again, the case is before the arbitral tribunal not ITLOS. :salute:

Ad hoc (temporary) arbitral tribunal is not the same as ITLOS a permanent body. We had the choice to file the case at ITLOS but in the end we chose an arbitral tribunal.

Quote:
 
7.Who filed the case and where?

The Philippines filed the arbitration case against China. The parties will have to agree on the place where the arbitral tribunal will hold the hearing of the case.

Under UNCLOS, Parties to a dispute have the choice on where to file the case, either in the International Court of Justice, ITLOS, arbitral tribunal and special arbitral tribunal. The Philippines chose to bring this case before the arbitral tribunal because it believes it is the appropriate body to hear the complaint of the Philippines against China.

DFA
God grant me the courage not to give up what I think is right even though I think it is hopeless.

|| Chester W. Nimitz

Loyalty to the Nation ALL the time, loyalty to the Government when it deserves it.

|| Mark Twain
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Prinsipe Abante
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Duminus
Jan 28 2013, 01:40 PM
Warning to AVBSupersonic a.k.a. Prinsipe Abante - stop team tagging the thread using both usernames pretending as if you are two different posters. :cop:















I beg your pardon Mr. Diminus, marami kami dito mga Fil-Am and Fil-Brit na magkakilala sa trabaho here in Lakenheath, Mildenhall and other US Bases here in UK, I'm sorry to disappoint you, but you are mistaken Sir, Mr. AVB and I are just two of the many few PDFF member friends works in the field w/ USAF and NATO.

Sana lang nakikita niyo rin yung iba kapag nag "Team tag" sila or may ginagawang inappropriate para kasing na single out yung iba? We're just group of friends who share same opinions most of the time.

Other members here often times minamaliit pa ang ibang "expat" members dito, FYI Filipino Immigrants feels more Nationalistic than most of the Pinoys living in P.I., with less the crab and corruption, for we represent the Philippines on a daily basis.

I'm surprised at nag warning kayo, when sa isa pang kaibigan namin dito na si Tony Stark eh banned agad w/o warning? Some MODs here are Bias sad to say. :dunno: :nono:

FYI, most of the time we all use the same WiFi hotspot inside the base. :salute:
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