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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 (50,584 Views)
raider1011


Mckoyzzz
Jan 30 2013, 04:51 PM
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?
The "merits, evidences and facts" regarding the validity of the "nine-dash line" is one thing. The jurisdiction of the arbitral tribunal is another. Two different questions entirely.

The second will be decided by interpretation of the relevant provisions under UNCLOS especially Annex VII. The first will be decided after the second, when or if the arbitral tribunal decides to accept the case = proper jurisdiction.

UNCLOS itself makes clear "disputes" about jurisdiction can arise and that they will be settled by the arbitral tribunal:

Quote:
 
"4. In the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal."

The question of jurisdiction will be the very first tabled. Jurisdiction before everything, that is the rule anywhere: a murder happened in Manila, do we file the case before a judge in Beijing? Same question here, who has the right to hear the case? Where is the proper forum?
Edited by raider1011, Jan 30 2013, 05:13 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 30 2013, 05:11 PM
Quote:
 
"4. In the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal."

I am with you that jurisdictional matters are taken and decided first... there's no argument there...

However, for me the paragraph above is vague... where will they base their decision that they do or they do not have jurisdiction over the PH-China case? This is a very sensitive case and any decisions made by the tribunal must abide by its own rules of law... otherwise, it may be questioned...

Taking this into account, once a jurisdictional decision is made... the tribunal may declare: "By virtue of Article XXX Section XXX Sub-paragraph XX........ this tribunal has no jurisdiction over this case...." But that decision must be supplemented and backed by the UNCLOS law... right?
Edited by Mckoyzzz, Jan 30 2013, 05:49 PM.
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raider1011


^I said it will be decided by going to the "relevant provisions" of UNCLOS. China has an out and it's based on the exception granted by Article 298. The Philippines argues the exception is not all-inclusive:

Article 298
Optional exceptions to applicability of section 2

Quote:
 
1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State may, without prejudice to the obligations arising under section 1, declare in writing that it does not accept any one or more of the procedures provided for in section 2 with respect to one or more of the following categories of disputes:

(a) (i) disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles, . . .

(b) disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2 or 3;

(c) disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it by the Charter of the United Nations, unless the Security Council decides to remove the matter from its agenda or calls upon the parties to settle it by the means provided for in this Convention.

Evidently UNCLOS recognizes multiple kinds of disputes. The case filed by DFA should not fall under (a), (b) or (c) otherwise it will be shot down because of the exception. That is not a question of "merits" or motherhood statements like "rule of law". Jurisdiction revolves around reading and interpretation of the rules themselves. Not maps or other evidence but the wording, the letter, the bare meaning of UNCLOS provisions themselves.

Sa madaling salita China will try to avoid facing the music through a legal technicality. Unfair? How can we complain, we are a signatory. Nanjan yan sa pinimirmahan natin. We know this can happen. Pagalingan na lang ng abogado yan.
Edited by raider1011, Jan 30 2013, 06:08 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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Okay, okay... I got you man... relax... I just wanted to clear out my confused mind for these articles, sections, paragraphs and it's interpretations.... I'm sure marami din dito ang litong-lito... buti ka nga at mukhang mas in depth ang understanding mo sa batas na ito...

Anyhow, it seemed that this is the only way out of the Chinese... battling it out with jurisdiction and possible technicalities...

However, PH apparently is prepared for this eventuality...


Quote:
 
The Philippines asserts 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.

The Philippines further asserts that 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.


DFA.gov.ph


Quote:
 
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. This can either be that the controversy relates to the exercise of sovereign rights and/or involves an issue of maritime delimitation. Both these grounds are provided in the reservations made by China in 2006.

This notwithstanding, credit goes to the Solicitor General because our submission of claims is crafted in a manner that will exclude all of China’s reservations. For instance, the submission asked the tribunal to rule on the validity of the controversial "nine-dash line," since it does not constitute either China’s internal waters, territorial sea, or exclusive economic zone. This asks the tribunal to rule, as an issue of interpretation of the Unclos, whether the nine-dash lines comply with the Convention.


Asia News Network
Edited by Mckoyzzz, Jan 30 2013, 06:37 PM.
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shoot_to_kill
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wily_pest
Jan 30 2013, 03:48 PM
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.
this was the plan back then by marcos but was stop by the americans since they don't want vietnam to have a war on two fronts( sa mga magtatanong ng links know your freaking history)

at present, no need to do that, save you anger against the intsik

there's no doubt that we are no cowards heck quoting mayweather :rifle: he even thought that our forefathers were on steroids back then during the PHIL-Amreican war hence the introduction to the islands of the 1911 .45
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shoot_to_kill
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raider1011
Jan 30 2013, 06:04 PM
^I said it will be decided by going to the "relevant provisions" of UNCLOS. China has an out and it's based on the exception granted by Article 298. The Philippines argues the exception is not all-inclusive:

Article 298
Optional exceptions to applicability of section 2

Quote:
 
1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State may, without prejudice to the obligations arising under section 1, declare in writing that it does not accept any one or more of the procedures provided for in section 2 with respect to one or more of the following categories of disputes:

(a) (i) disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles, . . .

(b) disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2 or 3;

(c) disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it by the Charter of the United Nations, unless the Security Council decides to remove the matter from its agenda or calls upon the parties to settle it by the means provided for in this Convention.

Evidently UNCLOS recognizes multiple kinds of disputes. The case filed by DFA should not fall under (a), (b) or (c) otherwise it will be shot down because of the exception. That is not a question of "merits" or motherhood statements like "rule of law". Jurisdiction revolves around reading and interpretation of the rules themselves. Not maps or other evidence but the wording, the letter, the bare meaning of UNCLOS provisions themselves.

Sa madaling salita China will try to avoid facing the music through a legal technicality. Unfair? How can we complain, we are a signatory. Nanjan yan sa pinimirmahan natin. We know this can happen. Pagalingan na lang ng abogado yan.
let's assume the tribunal has no jurisdiction, what would be the next step?

normally to refile the case to the tribunal which has original jurisdiction.

the government personnel who concocted this was no -----, he already foresaw that the chinks will use the "lack of jurisdiction card" he gambled, for what? to tell to the world about our dilemma, furthermore this was not an overnight decision, this was researched thoroughly. if the tribunal made a decision that there was indeed lack of jurisdiction then we should ask that tribunal where to file the case? dito sila mapapahiya kasi there is no other tribunal(kung sagot mo icc or icj magaral ka muna)... save them, then the unclos would just be another piece of paper and no one would respect the maritime domain of other state and the rule of the cannon will once again prevail.

have faith on the person who's dealing with this, this is a game of chess and with the little time he got studying the opponents move he did a great job! why? cause he filed a case when china filed the case against japan, hence there goes the lack jurisdiction card - china cannot contend there's no jurisdiction when he himself invoked the jurisdiction of the tribunal when it filed a case

their claim on senkaku is also based on their s h i t t y historical crap same with us!

ganun ka simple. PERFECT TIMING FOR US

china never even studied this case, since their goal is to bully us into submission.




AND THE ONLY CARD THAT CHINA CAN PLAY HERE IS LACK OF JURISDICTION
Edited by shoot_to_kill, Jan 30 2013, 07:59 PM.
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icefrog
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China is firm, refuses int'l arbitration over territorial row

Quote:
 
China still refuses to face international arbitration with the Philippines over hotly contested territories in the West Philippine Sea.

A post in a state-regulated Chinese news portal China.org.cn said Beijing is instead pushing for dispute settlement with Manila through bilateral talks.


http://ph.news.yahoo.com/china-is-firm--refuses-int-l-arbitration-over-territorial-row-111601769.html


-----

As expected. They are refusing.This is already moral victory!!
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icefrog
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China opposes taking sea disputes to UN

Quote:
 
China has reiterated its opposition to the Philippines' request to take South China Sea disputes to a UN tribunal, Foreign Ministry spokesman Hong Lei said on Thursday.

Responding to a question at a daily news briefing, Hong Lei said, "China disagrees with moves that go against the consensus (reached before)."

China signed the Declaration on the Conduct of Parties in the South China Sea (DOC) with members of the Association of Southeast Asian Nations (ASEAN) in 2002. According to the declaration, relevant disputes should be solved through friendly talks and negotiations by sovereign states directly concerned.

Hong made the remarks after Chairman of the U.S. House Committee on Foreign Affairs, Ed Royce, met with Philippine officials on Tuesday. Royce said China should agree to face the Philippines before a U.N. arbitration tribunal to avoid regional turbulence.


http://china.org.cn/world/2013-01/31/content_27855302.htm
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pachador


guys,
we have a very good case. the lead attorney for the philippine side is the best in the world on this issue. he is a kano. we are paying him big bucks so he already gave counsel on how we will file our case, etc etc.
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pachador


bakit nila pinagpipilit yung bilateral talks ? ang daga na makikipag-bilateral talks sa elepante ay isang estupido na daga. noon pa man other countries including our country favor multilateral talks. mga sirang plaka ang mga ito...ad besides, there is nothing to talk about anymore because they insist on their dash line claim , essentially if we talk with them it will be surrender not negotiation since they will not negotiate. this is precisely why we are bringing it to the UN.
who are they kidding ??
Edited by pachador, Feb 2 2013, 08:49 AM.
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