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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 (50,578 Views)
Hong Nam
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Game On!
ITLOS President Appoints Second Arbitrator in Philippines-China Arbitration

by Julian Ku

Full Article Here


The interesting question is what China will do now. It seems likely that they will continue to ignore the arbitration and question its propriety. But China can no longer claim that the arbitration cannot proceed without China's participation. This article from the reliably hawkish state-owned Global Times offers a pretty clear-eyed analysis, correctly noting that UNCLOS itself grants the ITLOS arbitral tribunal the power to determine its own jurisdiction, and that UNCLOS also specifies the procedure for appointing arbitrators. It also notes that China's position is going to be somewhat more difficult, and that the Philippines is using this legal proceeding to level the playing field somewhat in this maritime dispute.

The nationality of President Shunji Yanai has not gone unnoticed. As this news broadcast puts it, "Expert Says Nationality of ITLOS President Detrimental to China". The broadcast (full of ominous shots of the Japanese flags (interspersed with ominous shots of the U.S. flag since the US is often believed to be behind the Philippines litigation) also notes that Japanese nationals have also acquired other important positions within UNCLOS. If things start to go south for China in UNCLOS institutions, expect this little factoid about Japan's nefarious control of UNCLOS institutions to pop up more often in the Chinese media.


Edited by Hong Nam, Mar 29 2013, 02:50 AM.

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spraret
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PH to stick with arbitration under UNCLOS to pursue Spratly claims



Quote:
 
MANILA, Philippines — The Philippines reiterated, on Thursday, its commitment to the peaceful settlement of its claims in the West Philippine Sea or the South China Sea area through arbitration proceedings under the 1982 United Nations Convention on the Law of the Sea, or UNCLOS.

Speaking before the Association of Southeast Asian Nations’ foreign ministers meeting in Bandar Seri Begawan, Foreign Affairs Secretary Albert del Rosario emphasized on Thursday, that “the Philippines’ recourse to arbitration is firmly rooted in the tradition of good global citizenship.”

“The Philippines shall always adhere to the peaceful settlements of disputes through lawful, non-coercive and transparent means that promote the healthy functioning of an equitable and rules-based international system,” said the Department of Foreign Affairs head.

Del Rosario asserted that Manila’s arbitration initiative, “when objectively considered, will benefit all parties.”

“For the Philippines, it will clearly define what is legitimately ours, specifically maritime entitlements under the UNCLOS with regards to our fishing rights to resources and our right to enforce our laws within our Exclusive Economic Zone (EEZ),” he said.



Read more: http://globalnation.inquirer.net/71879/ph-to-stick-with-arbitration-under-unclos-to-pursue-spratly-claims#ixzz2QEoyEfo7
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gammy322
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European Parliament adopts resolution backing PHL arbitration on West Philippine Sea
By: InterAksyon.com
April 23, 2013 6:15 PM


The European Parliament has adopted a resolution approving a report which included its support for the Philippines’ arbitration initiative, under the 1982 United Nations Convention on the Law of the Sea (UNCLOS), in clarifying the country’s maritime entitlements in the West Philippine Sea.

Accordiong to the Department of Foreign Affairs, a paragraph on the West Philippine Sea was included in the report, saying the European Parliament “...underlines the global importance of the South China Sea through which one third of the world’s trade passes through it; is alarmed at the escalating tension and therefore urgently appeals to all parties involved to refrain from unilateral political and military actions, to tone down statements and to settle their conflicting territorial claims in the South China Seas by means of international arbitration in accordance with international law, in particular the UN Convention on the Law of the Sea, in order to ensure regional stability.”



http://www.interaksyon.com/article/60141/european-parliament-adopts-resolution-backing-phl-arbitration-on-west-philippine-sea

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ITLOS completes five-man tribunal that will hear PHL case vs. China
MICHAELA DEL CALLARApril 25, 2013 4:38pm


The Philippines’ case against China took another step forward after a United Nations arbitration body named the last three judges in the five-man tribunal that will hear Manila’s complaint over what it calls Beijing’s “excessive” claim to the South China Sea.

“We are hoping that this case that we filed with the tribunal will proceed as soon as possible,” Foreign Affairs spokesman Raul Hernandez told a press briefing Thursday.

International Tribunal on the Law of the Sea (ITLOS) President Shunji Yanai on April 24 transmitted a letter to Philippine Solicitor General Francis Jardeleza, head of the Philippine legal team on the arbitration case, informing Manila of the appointment of Mr. Jean-Pierre Cot (France), Mr. Chris Pinto (Sri Lanka), and Mr. Alfred Soons (The Netherlands.)

Yanai earlier appointed Mr. Stanislaw Pawlak (Poland) as the second member of the tribunal who will represent China in the proceedings. The Philippines, on the other hand, nominated Mr. Rudiger Wolfrum (Germany) to the tribunal.

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China slams Philippine bid to 'legalize' occupation of islands

BEIJING - China accused the Philippines on Friday of trying to legalize its occupation of islands in the disputed South China Sea, repeating that Beijing would never agree to international arbitration.

Frustrated with the slow pace of regional diplomacy, the Philippines in January angered China by asking a U.N. tribunal to order a halt to Beijing's activities that it said violated Philippine sovereignty over the islands, surrounded by potentially energy-rich waters.

Claims by an increasingly powerful China over most of the South China Sea have set it directly against U.S. allies Vietnam and the Philippines. Brunei, Taiwan and Malaysia also claim parts of the waters and China has a separate dispute with Japan in the East China Sea.


http://www.abs-cbnnews.com/focus/04/26/13/china-slams-philippine-bid-legalize-occupation-islands
First they ignore you, then they laugh at you, then they fight you, then you win
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im waiting for u!
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Batusai
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The Philippines must immediately withdraw personnel and facilities from the islands


I just read the whole article and I don't like the tone on the manner they said this line. They are ordering a sovereign country like our to withraw ? :nono: I don't wanna speculate without basis but remember the recent Chinese navy exercise in James Shoal?

http://www.abs-cbnnews.com/focus/04/26/13/china-slams-philippine-bid-legalize-occupation-islands
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gammy322
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Batusai
Apr 26 2013, 06:45 PM
Quote:
 
The Philippines must immediately withdraw personnel and facilities from the islands


I just read the whole article and I don't like the tone on the manner they said this line. They are ordering a sovereign country like our to withraw ? :nono: I don't wanna speculate without basis but remember the recent Chinese navy exercise in James Shoal?

http://www.abs-cbnnews.com/focus/04/26/13/china-slams-philippine-bid-legalize-occupation-islands
well, that's what bullies do.... :nono:
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Hong Nam
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Game On! ITLOS President Appoints Final 3 Members of Philippines-China Tribunal
by Julian Ku


Yesterday, President of the International Tribunal for the Law of the Sea, Shunji Yanai, announced the appointment of the final three members of the Annex VII UNCLOS tribunal.

Quote:
 
International Tribunal on the Law of the Sea (ITLOS) President Shunji Yanai on April 24 transmitted a letter to Philippine Solicitor General Francis Jardeleza, head of the Philippine legal team on the arbitration case, informing Manila of the appointment of Mr. Jean-Pierre Cot (France), Mr. Chris Pinto (Sri Lanka), and Mr. Alfred Soons (The Netherlands.)

Yanai earlier appointed Mr. Stanislaw Pawlak (Poland) as the second member of the tribunal who will represent China in the proceedings. The Philippines, on the other hand, nominated Mr. Rudiger Wolfrum (Germany) to the tribunal.



If China continues to ignore the arbitration, it is worth keeping in mind that UNCLOS actually has a provision guiding tribunals in this situation.

Quote:
 
Article 9 Default of appearance

If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.


http://opiniojuris.org/2013/04/25/game-on-itlos-president-appoints-final-3-members-of-philippines-china-tribunal/


A classic case of "shooting oneself on the foot".
Edited by Hong Nam, Apr 28 2013, 12:43 PM.

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Hong Nam
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China Updates its Talking Points on the Philippines Arbitration
by Julian Ku

It is the first time, as far as I know, that a Chinese government spokesman has offered a detailed explanation of China’s legal position in the Philippines arbitration. It still doesn’t fully make sense, or at least it is still not fully responsive, but it is something at least. China’s explanation goes something like this.


Quote:
 
1. It is the Philippines that is illegally occupying various islands in the South China Sea, not China.

2. Although the Philippines claims it is not seeking to contest sovereignty in the arbitration, it has consistently said it is seeking a “durable solution” to dispute. This is “self contradictory.”

3. The principle of the “Land Dominates the Sea” means that all of the Philippines’ claims are essentially maritime delimitation claims that “inevitably” involve resolving questions of territorial sovereignty over various islands and reefs. But these are the questions excluded from UNCLOS arbitration. Hence, China’s rejection of arbitration has a “a solid basis in international law.”

4. Every nation in the region, including China and the Philippines, has committed to the Declaration of the Code of Conduct for the South China Sea, which obligates them to resolve disputes on territorial and maritime rights through bilateral negotiations.



Let’s toss out points 1 and 4 since they don’t really change much of the legal analysis on whether China’s rejection of arbitration has a “solid basis in international law.”

The really interesting parts of the statements are in points 2 and 3. To China, the Philippines is misleading everyone by pretending to be interested in the Law of the Sea when they are really trying to advance their sovereignty claims. I am not sure that “durable solution” necessarily means “resolving sovereignty claims” but I suppose it is plausible.

The most important point is Number 3, which is that the disputes over the island/rock/reef distinction or the Nine Dash Line are so inextricably linked with sovereignty that they cannot be separated.

This is really what a jurisdictional challenge would look like, if China argued its case. I think this is the most plausible part of China’s argument, but it is not exactly a slam dunk. First of all, China’s invocation of the “Land Dominates the Sea” doesn’t help their argument much here since the infamous Nine Dash Line doesn’t seem to flow from any land claims, or at least China has usually based the Nine Dash Line on “historic rights,” not land.

In any event, the Philippines is not rejecting the “Land Dominates the Sea” principle. They are just arguing that the “land” China is relying on is a rock, not an island within the meaning of UNCLOS Art. 121(3), and hence cannot grant China a 12 mile territorial sea even if China did have sovereignty. Since some of these rocks/islands fall within the Philippines Exclusive Economic Zone, this is not a sovereignty issue but a UNCLOS issue. I am not sure that the Philippines is right about this, but they certainly have a good case.

It is also worth noting that the Chinese statement is conspicuously silent on China’s obligation under UNCLOS to at least allow a UNCLOS arbitration tribunal to determine whether it has jurisdiction (UNCLOS Art. 288(4)). China’s statement simply assumes that the jurisdictional issue is clear, and it has no further obligations. As almost any lawyer could tell you, jurisdictional issues are almost never clear, and even when they are, you have an obligation to go to court/arbitration to resolve them.

So China is slowly beginning to engage on this issue, and they are making a bit of progress. Still, they need better talking points. (And they need to be careful invoking the phrases like the “Land Dominates the Sea,” that could come back to hurt them later.)



http://opiniojuris.org/2013/04/26/china-updates-its-talking-points-on-the-philippines-arbitration-still-rejects-arbitration/

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dewey
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i just hope that the arbitration favors us and china leaves us in peace.

imho, dapat dito lahat na ng claimant countries kasali para mas malakas ang kaso and not to mention mas malakas ang enforcement if manalo. that way maybe china will think twice
IDI@T!!! COWARD!!!
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