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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 (50,585 Views)
Hong Nam
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Bought by China

raider1011
Jan 30 2013, 03:00 AM
Kerry Concerned About US Military Buildup in Asia

http://s3.zetaboards.com/Defense_Philippines/single/?p=8059431&t=836765


Challenge China
Philippine Daily Inquirer
January 28, 2013 at 1:11 am

Full Article Here


- Why was the Department of Foreign Affairs taking so long?

- It is no secret that the administration needed the time, not only to prepare its case, but to study its legal choices carefully.

- It seems that the government has chosen well. Lawyer Harry Roque, an expert in international law and a Socratic gadfly in Philippine politics, praised the action, in particular the framing of our case: “credit goes to the Solicitor General [Francis Jardeleza] because our submission of claims is crafted in a manner that will exclude all of China’s reservations.”

- What the government has done is to begin the proceedings of ad hoc arbitration (the third of four possible means of resolving disputes involving Unclos)—essentially calling on China to co-form an arbitration panel to resolve only one aspect of the dispute: claims about waters and the continental shelf. (The Unclos does not apply to conflicting claims involving islands.) As the DFA explained: “China’s nine-dash line claim encompasses practically the entire West Philippine Sea (WPS). We must challenge the unlawful claim of China under their nine-dash line in order to protect our national territory and maritime domain.”


- Whether Beijing will agree, in the Philippine case, to the arbitration procedure outlined in the very Law of the Sea which anchors its submission in the Japanese dispute remains to be seen. To be sure, the arbitration provisions under the so-called Annex VII themselves allow for compulsory proceedings; Article 9 includes the principle that “Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.”



With this legal challenge, the issue, finally, is joined.






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raider1011


Hong Nam
Jan 30 2013, 07:03 AM
- Whether Beijing will agree, in the Philippine case, to the arbitration procedure outlined in the very Law of the Sea which anchors its submission in the Japanese dispute remains to be seen. To be sure, the arbitration provisions under the so-called Annex VII themselves allow for compulsory proceedings; Article 9 includes the principle that “Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.”



With this legal challenge, the issue, finally, is joined.
Been there done that myself, Hong:

Quote:
 
What happened last Tuesday was that we began the procedure of binding arbitration by serving China with a notification that we are initiating the same and providing China with a statement of our claims. We have also chosen our arbitrator in what will be a 5-member arbitral tribunal. China should now choose its own arbitrator. Thereafter, both parties should select the rest of the arbitrators from a list maintained by the UN Secretary General. If they cannot agree on the three further arbitrators, it is the president of the Itlos who will make the appointment to complete the tribunal.

After the tribunal has been constituted, China will reply to our statement of claims. It is expected that it will challenge the jurisdiction of the tribunal by invoking its reservation on the dispute settlement procedure.

Inquirer

"Compulsory proceedings" under Annex VII means the President of ITLOS appoints the other four members of the arbitral tribunal should one of the parties boycott/ignore the proceedings.

Annex VII
Article 3
Constitution of Arbitral Tribunal


Quote:
 
(c) The other party to the dispute shall, within 30 days of receipt of the notification referred to in article l of this Annex, appoint one member to be chosen preferably from the list, who may be its national. If the appointment is not made within that period, the party instituting the proceedings may, within two weeks of the expiration of that period, request that the appointment be made in accordance with subparagraph (e).

(d) The other three members shall be appointed by agreement between the parties. They shall be chosen preferably from the list and shall be nationals of third States unless the parties otherwise agree. The parties to the dispute shall appoint the President of the arbitral tribunal from among those three members. If, within 60 days of receipt of the notification referred to in article l of this Annex, the parties are unable to reach agreement on the appointment of one or more of the members of the tribunal to be appointed by agreement, or on the appointment of the President, the remaining appointment or appointments shall be made in accordance with subparagraph (e), at the request of a party to the dispute. Such request shall be made within two weeks of the expiration of the aforementioned 60-day period.

(e) Unless the parties agree that any appointment under subparagraphs (c) and (d) be made by a person or a third State chosen by the parties, the President of the International Tribunal for the Law of the Sea shall make the necessary appointments.

The arbitral tribunal decides whether it has jurisdiction afterwards.
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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I think the only way that tribunal will not have jurisdiction of this case is if China managed to convince them that the Scarborough shoal is an island, because the UNCLOS only handles cases relating to the sea and subsea laws and not on land territories...


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...Del Rosario said the Philippines is asserting that the Arbitral Tribunal has jurisdiction to hear and make an award based on its Notification and Statement of Claim because the dispute is about the interpretation and application by States Parties of their obligations under the UNCLOS.

Article 287 [1] of UNCLOS provides that “settlement of disputes concerning the interpretation and application of this Convention” may be referred by the Parties for resolution under Part XV of UNCLOS, del Rosario said.

The Philippines said the claim is well-founded in fact and law based on the Notification and Statement of Claims and supplementary documents that will be submitted in the course of the arbitral proceedings, he added.

APDFORUM.COM
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Mckoyzzz
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Excerpt from Taiwanese Strait Times/Asia News Correspondent


Manila deals a clever hand with desire for arbitration
By William Choong, The Straits Times/Asia News Network
January 30, 2013, 11:50 am TWN

<snipped>

More importantly, China had in 2006 excluded itself from dispute settlement mechanisms available under Unclos. This relates to issues pertaining to maritime delineation, historic bays and military activities. Hence, China will not be compelled to participate in the arbitral tribunal.

But if one examines Manila's case, as detailed in a 21-page note verbale with notification and statement of claim released last Tuesday, the Philippines does have some tricks up its sleeve.

The document states that Manila is not asking the tribunal to decide on which country enjoys sovereignty over the islands, nor a delimitation of any maritime boundaries. And Manila did not raise any subjects China has excluded from arbitral jurisdiction.

Instead, the Philippines is calling on the tribunal to decide on a major issue -- whether China's so-called nine-dash or nine-dotted line claim to nearly the entire South China Sea is lawful.


Within the maritime area encompassed by the nine-dash line, China has also laid claim to, occupied and built structures on certain "submerged banks, reefs and low tide elevations that do not qualify as islands under Unclos but are parts of the Philippine continental shelf," Manila's statement said. These features include Mischief Reef, which China occupied in 1995. China also occupied what the Philippines calls Scarborough Shoal last June.

By asking the tribunal to decide on the legality of China's nine-dash line under Unclos, the Philippines has essentially dealt a clever hand -- China might have to clarify the extent and basis for its nine-dotted line claim.

This is something that many analysts have been calling for. Singapore's former senior minister S. Jayakumar said in 2011 that China should clarify its "puzzling and disturbing" nine-dotted lines map, since it had no apparent basis under Unclos and could be interpreted as a claim of all maritime areas within those lines.

<snipped>

Speaking to The Straits Times on condition of anonymity, a legal expert said that Manila's submission might even compel China -- which has largely been leery of settling territorial disputes in international fora -- to change its mind.

Beijing would be wise to seek expert counsel before it decides whether to participate or even challenge the tribunal's jurisdiction, he said. "Beijing's initial reaction is likely that it would not participate. But if they seek expert advice, they will find it is a more complex decision than they first thought," the expert said.

Even if China doesn't participate, a decision by the tribunal in Manila's favor would put it on higher legal and moral ground, says Professor Carl Thayer at the University of New South Wales.

Dr. Ian Storey, a senior fellow at the Institute of Southeast Asian Studies, said that China is facing a lose-lose situation.

"If it ignores the submission, then it will leave itself open to criticism that it does not adhere to international legal norms. If it decides to argue its case before the tribunal, it will have a very difficult task of justifying the legality of the nine-dash line and its claims to 'historic rights' within the limits of that line -- and it might lose," he said.

An ASEAN diplomat who requested not to be named agreed.

"If they don't fight the tribunal's jurisdiction, it might embolden other claimants in the South China Sea dispute. If they do fight and win, they could lose in the court of international opinion," the diplomat said.

Analysts also noted that the Philippines has prepared its case well by recruiting top American lawyer Paul Reichler. He is a giantslayer in the realm of public international law, and became famous in 1984 when he won Nicaragua's case against the U.S. over its paramilitary activities in Central America.

As the legal expert put it: "He is a wise choice. He has done David versus Goliath before."

China has 30 days to decide whether it would nominate an arbitrator to the tribunal. The Philippines has already nominated Judge Rudiger Wolfrum, a former president of the International Tribunal for the Law of the Sea, as a member of the tribunal.

<snipped>

Manila took many by surprise when it tabled its "well-written" submission last week, the ASEAN diplomat said. "To be honest, overall expectations of the Philippine diplomatic service are low. But what they did do is to listen to good legal advice. The submission was written by someone who really knew his job. They have stunned us by being so together on this case."



CHINAPOST.COM.TW
Edited by Mckoyzzz, Jan 30 2013, 02:01 PM.
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Hong Nam
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Mckoyzzz
Jan 30 2013, 01:23 PM

I think the only way that tribunal will not have jurisdiction of this case is if China managed to convince them that the Scarborough shoal is an island, because the UNCLOS only handles cases relating to the sea and subsea laws and not on land territories...


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Only the communist Chinese are brilliant enough to call that an Island. What I see are rocks. :headbang:

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Hong Nam
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Mckoyzzz
Jan 30 2013, 01:58 PM
Excerpt from Taiwanese Strait Times/Asia News Correspondent


Manila deals a clever hand with desire for arbitration
By William Choong, The Straits Times/Asia News Network
January 30, 2013, 11:50 am TWN


Great article here Mac! Thanks.



Yes, it is in fact brilliant. They really outdid themselves this time. Bravo! :armycheers:
It's either the Chinese didn't do their homework or just plain forgot the writings of Sun Tzu and just under-estimated the Philippines. They didn't see this coming and it's going to give them a nasty headache the size of Jupiter.



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Mckoyzzz
Jan 30 2013, 01:23 PM

I think the only way that tribunal will not have jurisdiction of this case is if China managed to convince them that the Scarborough shoal is an island, because the UNCLOS only handles cases relating to the sea and subsea laws and not on land territories...
One of the features of the case is to have the arbitral tribunal rule on whether or not "certain "islands" occupied by China are islands at all". The arbitral tribunal can't do that before deciding whether or not they have jurisdiction.

The DFA's tactic is taking a "limited legal track". Yes China has an "out" but DFA is arguing the exception under Article 298 is not all-inclusive.

Quote:
 
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.

Center for Strategic & International Studies

It's not the answers but the questions being tabled that will decide jurisdiction. That is true anywhere, how can you provide answers before deciding whether or not you're fit to give them?
Edited by raider1011, Jan 30 2013, 03:19 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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wily_pest
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The Phil. should milk this arbitration to 2015 or until such time that the minimum credible force is in place. Thus, if all else fails, despite the UN positive ruling for the Phil., it would have enough milt. muscle to make some noise availing itself of a physical confrontation to make the world notice.

Now the real chess with China begins!

Phil: e4 (Roy Lopez?)

China:
Management of many is the same as management of few. It is a matter of organization. Sun Tzu
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wily_pest
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And for those who call the Filipinos as "lousy cowards," a swift take over of the occupied Pugad Island will be the example the Phil. can use to show China, Vietnam, Malaysia and the world, it can back up it's agenda by force and the new milt. power has arrived.

A silent insertion of navy SEALs can be made to take over the Viet garrison and then a landing of the main force. Or, a quick 30 sec. bombardment of the garrison and landing the main force. Either way, I am cool with that. The trick is to make sure the PN will maintain a blockade around the island for an indefinite period of time.

What does it really take to force an occupation? Even an army 1st Lt. can conceptualize the tactics.

And as I said before the civilian population can continue to go about it's business as legal permanent residents of the Phil. island they occupied. Their children born there at the occupation will be Phil. citizens, going to an imposed Phil. public school. The truth of the matter is most of them will probably rather live under Phil. freedom than their communist one as long as they are treated correctly.
Management of many is the same as management of few. It is a matter of organization. Sun Tzu
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Mckoyzzz
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raider1011
Jan 30 2013, 03:09 PM
That is true anywhere, how can you provide answers before deciding whether or not you're fit to give them?

But how can they decide on jurisdiction without basing them on merits, evidences and facts submitted?
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