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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 (50,571 Views)
Hong Nam
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Bought by China

Philippines Takes China's Sea Claims to Court
A Washington Lawyer Helps Manila Challenge Beijing's Sea Claims
By ANDREW BROWNE
Oct. 14, 2013 12:40 p.m. ET


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Paul Reichler, a Washington-based lawyer, has spent much of his career representing small countries against big ones: Nicaragua versus the U.S.; Georgia versus Russia; Mauritius versus the U.K., Bangladesh versus India.

His first big victory made headlines in the 1980s when the International Court of Justice in The Hague ruled that U.S. support for Contra rebels trying to overthrow the left-wing Sandinista government of Nicaragua violated international law.

That is one reason to pay attention to the case he launched this year at a United Nations arbitration body: the Philippines versus China.

"Of course we're aware of the enormity of taking on a country like China," says Mr. Reichler, a litigator with the U.S. law firm Foley Hoag.

To some skeptics, Manila's challenge is quixotic. Even if the tribunal decides it has jurisdiction over the case, and then finds in Manila's favor, Beijing could simply ignore the verdict.


Yet there are more than legal considerations at stake.

The case is also significant for what it will signify about the way that China views the world.

China's self-image is wrapped up in its own sense of victimhood at the hands of imperialist powers led by Britain starting in the mid-19th century. That, in turn, has driven a Chinese foreign policy that professes to treat all countries equally, large or small, rich or poor.

But now that China is a global player, and dominates its own backyard, neighbors are asking anxious questions. Will it seek to work within existing international laws, or try to bend them to suit its purposes? As it acquires a blue-water navy to project power far from its own shores, will it be more tempted to use force to settle territorial disputes? And how will it treat smaller countries, like the Philippines, that feel bullied by China's growing military might?

Mr. Reichler is counting on international opinion to sway China's response toward any judgment that doesn't go China's way. "It's a terrible blow to a state's prestige to defy a tribunal's decision," he says.


China uses history to support its claims to the South China Sea and all its land features. These date back to its own imperial days centuries ago, when China treated its neighbors as mere vassals. However, the nine-dash line itself was first published on a map in 1947 by the Chinese Kuomintang government, and the Communists inherited it after the civil war that brought the Communists, led by Chairman Mao, to power.

The line extends almost to Indonesia, some 900 miles from China's southernmost territory, Hainan Island. Such a far-reaching claim has no parallel anywhere in the world.

As for the islands, rocks and reefs that fall within the line, Mr. Reichler makes a technical argument in the Philippines' case. The convention rules that a habitable island is entitled to a 200-mile economic exclusion zone. A rock that juts out of the sea gets 12 miles. A semi-submerged reef gets nothing.

Mr. Reichler's argument is "that all the sea features that the Philippines disputes with China are either rocks or reefs". And, therefore, even if China owns them, it has only limited rights to the surrounding resources. His legal team is pulling together a massive document to support that contention consisting of aerial photographs, naval charts, hydrology reports and geographical findings. "I'm not in a position to say how China will react," he says. "My job is to say [to the Philippines]: 'This is a good case for you to win or not.'"


Wall Street Journal



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Hong Nam
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Hong Nam
Oct 16 2013, 11:49 PM
Philippines Takes China's Sea Claims to Court
A Washington Lawyer Helps Manila Challenge Beijing's Sea Claims
By ANDREW BROWNE
Oct. 14, 2013 12:40 p.m. ET


Mr. Reichler is counting on international opinion to sway China's response toward any judgment that doesn't go China's way. "It's a terrible blow to a state's prestige to defy a tribunal's decision," he says.


Wall Street Journal



China's Definition of the "Peaceful Settlement of International Disputes" Leaves Out International Adjudication
by Julian Ku

China's U.N. Ambassador made a typically anodyne statement recently to the U.N. General Assembly on the Rule of Law at National and International Levels. But there are a few interesting nuggets worth noting that reflect China's skeptical attitude toward international adjudication.

Anyone who follows the Chinese government's diplomatic statements will know that it repeatedly stresses the U.N. Charter's obligation on states to seek peaceful settlements of international disputes. But the Chinese here and elsewhere define this obligation more narrowly than many international lawyers or other states might define it. From the "Rule of Law" statement:


The Chinese government actively upholds peaceful settlement of disputes, proposes to settle international disputes properly through negotiation, dialogue and consultation, thus maintaining international peace and security.


So far so good. But for many international lawyers, and for many states, the "peaceful settlement of international disputes" would also include other means listed in Article 33(1) of the Charter.

The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.


Now Article 33(1) simply lists options, it does not mandate all states use every one of these processes to resolve disputes. But it is striking how the Chinese government goes out of its way to downplay arbitration and judicial settlement from its public statements on "peaceful settlements of disputes" and in a statement about the importance of the rule of law at the international level. Indeed, this particular statement on the rule of law goes out of its way to denounce the abuse of arbitration and judicial settlement.

The Chinese delegation believes that the decision to resort to arbitrary or judicial institutions to settle international disputes should be based on the principles of international rule of law and premised on equality and free will of states concerned. Any action to willfully refer disputes to arbitrary (sic) or judicial institutions in defiance of the will of the states concerned or provisions of international treaties constitutes a violation of the principles of international rule of law and is thus unacceptable to the Chinese government.


Hmm... I wonder what country has willfully referred a dispute to arbitration in defiance of China's will recently?
I am not criticizing China's legal position here, which seems eminently defensible and reasonable. I do think that its approach, which privileges a state's will and "sovereign equality" as a principle of international law, will naturally lead it to de-emphasize arbitration and judicial settlement. And since China's opposition to the Philippines' arbitration is based on a theory of state non-consent and lack of jurisdiction, I think it is unlikely to climb down from this position and accept the legitimacy of the UNCLOS arbitration.


Which is why I find it hard to accept the theory put forth by the Philippines lead U.S. counsel, Paul Reichler, as to why China will ultimately accept the arbitral tribunal award in that dispute. In an interview in the WSJ, Reichler relies on the reputational damage China will suffer if it defies the arbitral tribunal and the advantages China would get out of a "rules-based" system. But China's view of a "rules-based" system does not necessarily require it to submit to arbitration to set the "rules." China already has a robust vision of how it can be a "rule of law" nation and avoid arbitration and judicial settlement. Nothing the UNCLOS tribunal does will likely change this view. Indeed, to the extent that other nations share its views, it will also lessen any reputation damage it suffers from a negative award.



Opinio Juris



Edited by Hong Nam, Oct 19 2013, 01:24 AM.

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icefrog
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Tribunal decision on PH case vs China may be out early next year – report

Quote:
 
MANILA, Philippines – The decision of the Arbitral Tribunal on the maritime dispute case between the Philippines and China may come “a lot faster,” as early as 2014, because of China’s refusal to participate in the proceedings, the Philippines lead counsel said in an interview with a newspaper in the United States.

“Arbitrations under the Law of the Sea Convention have normally taken between three and five years from beginning to end. However, in all those cases, there were two parties fighting it out,” lawyer Paul Reichler said in an exclusive interview with the Wall Street Journal last October 15.

“The proceedings will go a lot faster in this case if China holds to its current position not to actively participate,” he said.
In January 2013, the Philippines initiated arbitration proceedings against China over its claim of “indisputable sovereignty” in nearly the entire South China Sea.


Read more: http://globalnation.inquirer.net/88579/tribunal-decision-on-ph-case-vs-china-may-be-out-early-next-year-report#ixzz2idob1PsN
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Hong Nam
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The following were snipped from the article:

"Choosing Sides or Choosing Peace? U.S. Strategy in the South China Sea Dispute" Center for International Maritime Security (CIMSEC)


Quote:
 

Whereas the underlying tensions of the dispute relate to which State owns what island, Manila has cleverly requested that the tribunal restrict its judgment to something much more precise. Specifically, the arbitration request doesn't ask the tribunal to determine ownership on a historical basis per se, but that it only clearly establish the sovereignty rights of the Philippines under UNCLOS due to the claimed non-island status of the reefs and shoals.



So what does supporting Manila's arbitral filing suggest?
a.) declare that China's rights in regard to maritime areas in the SCS, like the rights of the Philippines, are those established by UNCLOS;

b.) declare that China's maritime claims in the SCS based on its so-called "nine-dash line" are contrary to UNCLOS and invalid;

c.) require China bring its domestic legislation into conformity with its obligations under UNCLOS;

d.) declare that Mischief Reef and McKennan Reef are submerged features that form part of the Continental Shelf of the Philippines under Part VI of the Convention, and that China's occupation of and construction activities on them violate the sovereign rights of the Philippines;

e.) require that China end its occupation of and activities on Mischief Reef and McKennan Reef;

f.) declare that Gaven Reef and Subi Reef are submerged features that are not above sea level at high tide, not islands under UNCLOS, not located on China's Continental Shelf, and China's occupation and construction activities on these features are unlawful;

g.) require China to terminate its occupation of and activities on Gaven Reef and Subi Reef;

h.) declare that Scarborough Shoal, Johnson Reef, Cuarteron Reef and Fiery Cross Reef are submerged features and are "rocks" under Article 121(3) of UNCLOS;

i.) require that China refrain from preventing Philippine vessels from exploiting the living resources in the waters adjacent to Scarborough Shoal and Johnson Reef;

j.) declare that the Philippines is entitled under UNCLOS to a 12nm territorial sea, a 200nm Exclusive Economic Zone (EEZ), and a Continental Shelf under UNCLOS, measured from its archipelagic baselines;

k.) declare that China has unlawfully claimed, and has unlawfully exploited, the living ad non-living resources in the Philippines' EEZ and Continental Shelf;

l.) declare that China has unlawfully interfered with the exercise by the Philippines of its rights to navigation and other rights provided under UNCLOS;

m.) require China desist from these unlawful activities.

Note: China has refused the arbitration request. Annex VII, Article 9 of UNCLOS, however, provides that "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."

Although the Philippines did not request that the tribunal resolve the sovereignty claims directly, it does ask it to determine a very significant issue: whether the disputed features are rocks or islands. In these instances, the Philippines believes determinations that they are not islands would further its aims.


CIMSEC


The convention rules that a habitable island is entitled to a 200-mile economic exclusion zone. A rock that juts out of the sea gets 12 miles. A semi-submerged reef gets nothing.
Edited by Hong Nam, Oct 26 2013, 11:03 PM.

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China’s ICJ Judge Xue Hanqin Publicly Defends China’s Non-Participation in UNCLOS Arbitration
by Julian Ku


In one corner, Prof. Harry Roque from the University of the Philippines presented a relatively even description of the Philippines’ claim against China during a panel on the Law of the Sea in Asia (click here for his blogging on this same event). In the other corner, was Judge Xue Hanqin, China’s member of the International Court of Justice. Although she was not listed as a panel participant, she stood up after Prof. Roque’s presentation to offer a 15-minute extemporaneous defense of China’s position.

Judge Xue is no longer officially affiliated with the Chinese government, but she has served in high diplomatic positions before her current post. One of her prior positions, indeed, was as China’s Ambassador to the Association of Southeast Asian Nations (ASEAN) where she was involved in negotiations with Vietnam over maritime rights.

On the other hand, Judge Xue wants to make clear she is not representing China in any official or unofficial capacity and that she does not endorse the summary of her views below.



Quote:
 
Judge Xue began by praising the “important presentation” by Prof. Harry Roque. She explained that her purpose was to “enhance understanding of China’s position” because China has “had a long silence” on this issue. She noted that her background with ASEAN kept her cognizant of the issues at stake.

She then agreed with Prof. Roque that China should be criticized for not explaining its position on the dispute. She would endeavor to do so.
She noted that (as Prof. Roque had explained), the UNCLOS arbitral tribunal had no jurisdiction over territorial disputes. She then pointed out that all of the evidence presented by the Philippines in their notice of arbitration was about territorial boundaries. China was not the only country to limit the jurisdiction of the UNCLOS tribunal, indeed, 40 countries have made similar declarations to China’s, including India.

As to the “Nine Dash” line, she offered two questions to defend its claims. First, she asked whether a country is required to give up all prior territorial claims? Put another way, Judge Xue pointed out that the Nine Dash Line was drawn in 1947 well before UNCLOS was established. Second, she asked why, if the Nine-Dash Line was so controversial, haven’t any countries in the South China Sea raised objections until recently. The answer, she announced, is the discovery of fossil fuels under the seabed.

She also pointed out China has never treated the Nine Dash Line as a boundary since it has never tried to exclude or otherwise prevent international navigation in the South China Sea.

She then asked another question (and one many of us have been asking): Why has China not appeared to contest jurisdiction?
She answered this question indirectly. “If you look at the [Philippines’] application,” she said, “no country can fail to see that it was designed, oh-so-cleverly designed, so as to mix the questions of jurisdiction with the merits.” For China, she explained, rejecting arbitration here “is a matter of principle.”

Additionally, the various claimant states in the South China Sea had agreed in their Code of Conduct to settle disputes among themselves through negotiations. Indeed, she noted that when China approved the Code of Conduct back in 2009, the legal department of the Ministry of Foreign Affairs objected to language in the code of conduct that seemed to make the requirement to negotiate mandatory rather than simply a non-binding promise. But eventually, the legal department yielded and the Code of Conduct was approved as (at least in China’s view) an obligatory legal obligation.

Judge Xue also referred to a recent article on the South China Sea dispute in the New York Times Magazine. In that article, she noted that a graphic of the different islands in the South China Sea shows that China doesn’t actually occupying most of the islands. She seemed to suggest that China is hardly the aggressor that it is sometimes portrayed as.

There is no doubt, Judge Xue went on to say, that the disagreements in this region are serious. Instead of litigation, members of the ASEAN and China should work to build up trust. They should also consider the regional characteristics and diversity of the different states in approaching international legal issues. For instance, she said, when a defendant gets sued in China, they take it very personally and get angry at the plaintiff.

In closing, Judge Xue reminded her listeners that during the 1997 Asian financial crisis, China played a very important role in helping its neighbors through that crisis. That spirit of friendly consultations and dialogue should help China and ASEAN get through these disputes. That is the spirit China brings to this situation.



Opinio Juris
Edited by Hong Nam, Nov 23 2013, 01:52 AM.

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pachador


Her thinking is flawed because she does not separate cultural norms from legal/rational reasoning. in tagalog what she is trying to say is "daanin natin to sa usapang kaibigan, :lollol: if this is the best argument that the bully's legal luminaries can give, then no wonder this issue will never be resolved on a bilateral level except by surrender of the weaker country. Hence , our only recourse is UNCLOS.

Hong Nam
Nov 23 2013, 01:48 AM
China’s ICJ Judge Xue Hanqin Publicly Defends China’s Non-Participation in UNCLOS Arbitration
by Julian Ku


In one corner, Prof. Harry Roque from the University of the Philippines presented a relatively even description of the Philippines’ claim against China during a panel on the Law of the Sea in Asia (click here for his blogging on this same event). In the other corner, was Judge Xue Hanqin, China’s member of the International Court of Justice. Although she was not listed as a panel participant, she stood up after Prof. Roque’s presentation to offer a 15-minute extemporaneous defense of China’s position.

Judge Xue is no longer officially affiliated with the Chinese government, but she has served in high diplomatic positions before her current post. One of her prior positions, indeed, was as China’s Ambassador to the Association of Southeast Asian Nations (ASEAN) where she was involved in negotiations with Vietnam over maritime rights.

On the other hand, Judge Xue wants to make clear she is not representing China in any official or unofficial capacity and that she does not endorse the summary of her views below.



Quote:
 
Judge Xue began by praising the “important presentation” by Prof. Harry Roque. She explained that her purpose was to “enhance understanding of China’s position” because China has “had a long silence” on this issue. She noted that her background with ASEAN kept her cognizant of the issues at stake.

She then agreed with Prof. Roque that China should be criticized for not explaining its position on the dispute. She would endeavor to do so.
She noted that (as Prof. Roque had explained), the UNCLOS arbitral tribunal had no jurisdiction over territorial disputes. She then pointed out that all of the evidence presented by the Philippines in their notice of arbitration was about territorial boundaries. China was not the only country to limit the jurisdiction of the UNCLOS tribunal, indeed, 40 countries have made similar declarations to China’s, including India.

As to the “Nine Dash” line, she offered two questions to defend its claims. First, she asked whether a country is required to give up all prior territorial claims? Put another way, Judge Xue pointed out that the Nine Dash Line was drawn in 1947 well before UNCLOS was established. Second, she asked why, if the Nine-Dash Line was so controversial, haven’t any countries in the South China Sea raised objections until recently. The answer, she announced, is the discovery of fossil fuels under the seabed.

She also pointed out China has never treated the Nine Dash Line as a boundary since it has never tried to exclude or otherwise prevent international navigation in the South China Sea.

She then asked another question (and one many of us have been asking): Why has China not appeared to contest jurisdiction?
She answered this question indirectly. “If you look at the [Philippines’] application,” she said, “no country can fail to see that it was designed, oh-so-cleverly designed, so as to mix the questions of jurisdiction with the merits.” For China, she explained, rejecting arbitration here “is a matter of principle.”

Additionally, the various claimant states in the South China Sea had agreed in their Code of Conduct to settle disputes among themselves through negotiations. Indeed, she noted that when China approved the Code of Conduct back in 2009, the legal department of the Ministry of Foreign Affairs objected to language in the code of conduct that seemed to make the requirement to negotiate mandatory rather than simply a non-binding promise. But eventually, the legal department yielded and the Code of Conduct was approved as (at least in China’s view) an obligatory legal obligation.

Judge Xue also referred to a recent article on the South China Sea dispute in the New York Times Magazine. In that article, she noted that a graphic of the different islands in the South China Sea shows that China doesn’t actually occupying most of the islands. She seemed to suggest that China is hardly the aggressor that it is sometimes portrayed as.

There is no doubt, Judge Xue went on to say, that the disagreements in this region are serious. Instead of litigation, members of the ASEAN and China should work to build up trust. They should also consider the regional characteristics and diversity of the different states in approaching international legal issues. For instance, she said, when a defendant gets sued in China, they take it very personally and get angry at the plaintiff.

In closing, Judge Xue reminded her listeners that during the 1997 Asian financial crisis, China played a very important role in helping its neighbors through that crisis. That spirit of friendly consultations and dialogue should help China and ASEAN get through these disputes. That is the spirit China brings to this situation.



Opinio Juris
Edited by pachador, Nov 23 2013, 04:25 AM.
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Hong Nam
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Viribus Mari Victoria? Power and Law in the South China Sea
Peter Dutton



- The Philippines is an excellent example of a country that made the decision to embrace full normative conformity with the provisions and requirements of UNCLOS as a way to enhance its power status in relation to its maritime claims. In doing so, the country used international law to enhance and expand its ability to protect and defend its vital national interests. Prior to 2008, the Philippines labored under a centuries-old colonial articulation of its maritime sovereignty that bore no resemblance to current international law, but which was enshrined in its constitution and was therefore very politically difficult to change. Nonetheless, by spring 2009, the Philippine government found the political will to bring every aspect of its domestic legislation into full conformity with UNCLOS, throwing off centuries-old, non-normative claims based on the vestiges of history. In doing so, since many of its maritime claims conflict with those of Vietnam and China, the Philippines is leading it stronger neighbors by example.


- China's stated preference is bilateral negotiations to resolve the conflict, but these negotiations have gone nowhere over the past two decades because China demands more than its negotiating partners are willing to give up. The Chinese have so far refused to submit to international arbitration or litigation because, although there is no doubt that the Chinese sincerely believe their claims are just and appropriate, they know that international law does not support many of their assertions, especially their more expansive claims - such as jurisdiction over the waters of the South China Sea based on the 9-dashed line.


- Only one aspect of China's strategy can be said to involve international law. China uses the language of the law to justify its claims and its right to use power to pursue them. Regrettably, so far, China has chose not to formally conform its claims to relevant international law or to use international legal mechanisms to help resolve its maritime disputes with neighboring states.


- So far, China continues to reject participation in the arbitral process initiated by the Philippines, even though arbitration will continue without them. The process, therefore, presents China with several challenges. First, China's continuing failure to reach a negotiated settlement with any of its neighbors has exposed China to the risk of international litigation of the issues. If the Philippines is successful, other states may well join in the process or initiate arbitration of their own. Thus, one impact of the arbitration is that Beijing has, at least temporarily, lost the strategic initiative it so painstakingly developed through the combined strategy of diplomatic stalling and non-militarized coercion at sea. Second, if the arbitration goes forward Beijing will be at a serious disadvantage because it is doubtful that several Chinese assertions about their South China Sea rights will survive the scrutiny of international law.


- Thus, another impact is that Beijing could lose even the mere fig leaf of legal credibility for some of its important maritime claims. Thus, a very important outcome of this case could be that China is faced with the embarrassment of the formal international rejection of its claims and a clear reinforcement of the rules and norms concerning rights and obligations at sea that UNCLOS establishes. How China would react to being so clearly set on the wrong side of widely accepted international norms remains to be seen.


- Continued failure by China to participate in the process or, worse, a decision to ignore unfavorable results, would be a signal from Beijing that no amount of international disapproval will sway it. Thus, since there is a relation between power and international laws and norms, an impact could be to encourage others in the region and beyond to enhance coercive capacity and engage in accelerated balancing activities in order to reinforce their claim strength and their overall security in the face of a more powerful China.


- How do states change the calculus of interests to bring outsiders into the international circle of states perceiving that the rules and norms of international law should be followed? Certainly, military power, especially naval power, can be a powerful reinforcing mechanism for political efforts to bring others into compliance with international law in the maritime domain. Naval power can supplement political efforts to reinforce international rights at sea through such efforts as freedom of navigation operations. It can also signal support for compliant states and it can demonstrate resolve to protect the normative international legal order. In these ways, a dominant state or a group of collectively strong states can use power to set limits on normative deviations from international law.


- The Philippine arbitration, for instance, is fundamentally a political act. Other states can and should express public support for the Philippine approach to dispute resolution. The combined power of supportive political will and use of international legal institutions may provide a strong gravitational pull in the direction of stability through normative compliance. One of the best outcomes in such cases is for this gravitational pull to result in more meaningful bilateral negotiations than were previously possible. Thus, perhaps the single biggest impact of the Philippine arbitration is that it incentivizes China to re-open the avenue of bilateral negotiations on terms that are more realistically acceptable to the Philippines. By extension the same may be true for the other states with which China has maritime disputes, especially if the international community openly is openly and publicly supportive of use of diplomatic and institutional measures and disapproving of power-based dispute resolution actions.


- In the end, there may be nothing that can persuade China to abandon its power-based strategies for consolidating its control over the islands and other territorial features in the South China Sea. If so, China will have to pay the price for its policies and that price may be that they command sand bars but not friends. However, as this dynamic unfolds over the coming months, years, and perhaps decades, the role of international law in the South China Sea will be to serve as the steady counterweight to raw power. China may find that whatever incremental victories sea power provides, the Chinese people may ultimately lose more than they gain.




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Santi Kampilan
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"Thus, perhaps the single biggest impact of the Philippine arbitration is that it incentivizes China to re-open the avenue of bilateral negotiations on terms that are more realistically acceptable to the Philippines."
If they do re-open and as a face-saving gesture and realistically acceptable to us, we should go the bilateral route. If not, let them pay the price.
Optimism aside, the fact that they "drew the line in the sand" already, it's pretty hard to undo the "core interest" laws they've enacted.
Edited by Santi Kampilan, Dec 5 2013, 04:03 AM.
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If they will not abide with an unfavorable result IMO they are setting themselves up for an invasion/conflict from a foreign power. Some one could very well use the same tactics they are using and China can't go to the International community and use Int'l law for help.

How many real friends do they have? Even Russia is wary of them to the point of Russia recently reaching out to Japan.
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pachador


icefrog
Dec 5 2013, 04:10 AM
If they will not abide with an unfavorable result IMO they are setting themselves up for an invasion/conflict from a foreign power. Some one could very well use the same tactics they are using and China can't go to the International community and use Int'l law for help.

How many real friends do they have? Even Russia is wary of them to the point of Russia recently reaching out to Japan.
thats correct, if you remember the article about the future wars, the bully must wage, russia is last on the list, and its really for practical reason , and thats because russia is the strongest of the claimants to confront over disputed territories. the bully hopes that by the time they confront russia, that the bully is already strong enough.
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