| Welcome to Philippines Defense Forces Forum. We hope you enjoy your visit. You're currently viewing our forum as a guest. This means you are limited to certain areas of the board and there are some features you can't use. If you join our community, you'll be able to access member-only sections, and use many member-only features such as customizing your profile, sending personal messages, and voting in polls. Registration is simple, fast, and completely free. Join our community! If you're already a member please log in to your account to access all of our features: |
| PH Files Case vs China Before UNCLOS Tribunal; Ph challenges China's 9-dash claims in WPS at UN Tribunal | |
|---|---|
| Tweet Topic Started: Jan 22 2013, 05:03 PM (50,570 Views) | |
| Mckoyzzz | Dec 5 2013, 03:20 PM Post #271 |
|
Ipsa Scientia Potestas Est
![]()
|
PH lawyer on China: Being 'int'l outlaw' has its price by Paterno Esmaquel II Posted on 12/04/2013 1:44 PM | Updated 12/04/2013 3:32 PM MANILA, Philippines – The Philippines' lawyer in its historic case against China said on Tuesday, December 3, that Manila needs an “impeccable” judgment against Beijing to pressure it to take a "more flexible position" on maritime disputes. Paul Reichler, the Philippines' lead counsel before the International Tribunal for the Law of the Sea (ITLOS), hinted China can only do so much to defy a ruling that favors the Philippines. True, Reichler said, international tribunals like the ITLOS have no police force to “make the defendant comply with the order,” but losing parties comply “at least 95%” of the time. “Part of the explanation is that there is a heavy price to pay for a state that defies an international court order, or a judgment of an arbitral tribunal that is seen, that is recognized, in the international community as legitimate, as fair, as correct, as appropriate,” Reichler said in a forum hosted by the US-based Center for Strategic and International Studies (CSIS) on Tuesday evening, Philippine time. “There's a price to be paid for branding yourself as an international outlaw, as a state that doesn't respect, that doesn't comply with international law,” said the topnotch lawyer, who has defended sovereign states for over 25 years. 'Evolutionary process' Reichler explained that soft power involves, among other things, “the state's ability to defend its actions as legal in the international system" that "becomes an important part of the state's ability to influence other states.” He stressed: “It is important therefore not only for the Philippines to obtain a judgment in its favor, but for that judgment to be seen as impeccable in terms of its integrity, its honesty, its fairness, and its legal correctness.” “It may be that it takes some time before China adopts a more flexible position,” he added. “But, at least I would say, it's not unreasonable to think that in the ultimate resolution of this dispute, or these disputes, or parts of these disputes, the fact that the Philippines has a legal judgment in its favor that's recognized internationally as valid and binding and legitimate and correct, will play some role in the evolutionary process toward an acceptable solution.” <snipped> The lawyer said he expects a ruling by mid-2015. <snipped> 'Opportunity to compete' Reichler said he is keen on helping poor countries. "In a court, or before an arbitral tribunal, a small state that is weaker militarily, economically, commercially, has the opportunity at least to compete on equal terms with a much larger, more powerful state,” the lawyer said. Reichler said the Philippines arms itself with the following claims before the ITLOS: “first and foremost,” a declaration against China's controversial 9-dash line; a determination that Scarborough Shoal is not an island but a group of rocks; and a similar determination that classifies disputed portions of the Spratly Islands as rocks "Fundamentally, what the Philippines seeks is a declaration that all of the rights and entitlements in the South China Sea, including the rights to the resources, living and non-living, are governed by the UN Convention on the Law of the Sea (UNCLOS). And under that convention, the 9-dash line is inconsistent and unlawful,” Reichler said. PH: Call it a rock Reichler said the Philippines also wants the arbitral tribunal to “determine the status” of the disputed Panatag (Scarborough) Shoal. “Is it a true island which would generate, like a state with a coastline, a 200-mile exclusive economic zone and continental shelf? Or is it what the convention refers to as a rock, an insular feature that is above water at high tide – which is the definition of an island under the convention – but which is so insignificant that it cannot sustain human habitation or economic life of its own?" he said. Reichler said the Philippines wants the tribunal to classify Panatag as a group of rocks. He described the rocks there as “barely big enough to support the Philippine flag.” <snipped> How will calling it a rock help the Philipppines? The lawyer explained that under UNCLOS, an arbitral tribunal, “does not have jurisdiction to determine sovereignty over land features.” It's a law on the sea, after all. The land dispute, then, will remain at a standstill after the ITLOS ruling. But cassifying Panatag as rocks will, at least, narrow the disputed portions of the sea. This is because rocks don't generate a 200-mile EEZ. “For the Philippines, it is important to have this feature classified as a rock rather than an island because most of the surrounding waters then would be subject to the exclusive entitlement of the Philippines, and only a small part of the sea would be subject to dispute, ultimately to be resolved whenever sovereignty over Scarborough Shoal is determined,” Reichler said. Reichler said the Philippines also requested the tribunal to also classify disputed portions of the Spratlys as rocks. He said it is “similar to the objective in regard to Scarborough Shoal.” <snipped> Citing the UNCLOS, however, Reichler said once the tribunal issues its ruling, it's game over for the two parties. “It's not appealable, and it is binding.” Rappler |
![]() "Do not condemn the judgment of another because it differs from your own. You may both be wrong -- Dandemis" | |
![]() |
|
| israeli | Dec 8 2013, 09:27 AM Post #272 |
![]()
|
China pulls out of UN process over territorial dispute with Philippines Paul Lewis in Washington theguardian.com, Friday 6 December 2013 18.25 GMT China is taking the highly unusual step of refusing to participate in a United Nations arbitration process over a territorial conflict with the Philippines, one of five countries challenging Beijing’s claims of ownership over the oil-rich South China Sea. <snipped> China sent its only aircraft carrier to the disputed waters off the coast of the Philippines for the first time last week, in a move Manila said raised tensions. China’s military said the carrier Liaoning will conduct drills in the area, accompanied by two destroyers and two frigates. Dealing with the fallout over China’s territorial claims has become the dominant issue for the US vice-president, Joe Biden, who is currently touring the Asia Pacific region. Biden arrived in South Korea on Thursday after high-level bilateral meetings in China and Japan that were dominated by the issue of the air defence zone. The Philippines will submit its formal case to the UN arbitration tribunal of judges, which has agreed to hear the case at The Hague, in March. A preview of their arguments were outlined this week in Washington by Paul Reichler, an expert attorney at Foley Hoag LLP hired by Manila to handle the case. He said China’s blank refusal to participate in the tribunal process, a move it revealed to the Philippines by way of diplomatic letter in February, marked the first time a state had ever refused to take part in an inter-state arbitration under the 1982 UN Convention on the Law of the Sea. Under the convention, the panel of senior international judges is still required to issue a ruling in the case, despite China’s non-cooperation, although Reichler conceded there were no way of enforcing any ruling. But he added: “There is a price to be paid for branding yourself an international outlaw – a state that does not comply with the rules.” China declined an opportunity to comment on the case. <snipped> In a bid to strengthen its claims, China has constructed concrete installations on some underwater formations, complete with basketballs and helipads. “A state cannot transform an underwater feature into an island by building on top of it,” Reichler said at a seminar organised by the Center for Strategic and International Studies. In simple terms, the judges will in part be asked to determine when a rock can be defined as an island. If a rock protruding from the sea cannot sustain human life or economic activity, for example, the associated rights in surrounding waters are, under the convention, dramatically reduced, regardless of which state claims ownership. Reichler also showed one slideshow of an island that, at high-tide, consisted of rocks that only just protruded out of the water. “It is barely big enough to support the Filipino flag,” he said. |
| "To secure peace is to prepare for war." - Carl Von Clausewitz | |
![]() |
|
| pachador | Dec 8 2013, 02:55 PM Post #273 |
![]()
|
This news reporter sure needs a lot of catching up - he needs to do more research. he is reporting on something that has been reported a while back.
Edited by pachador, Dec 8 2013, 02:56 PM.
|
![]() |
|
| Hong Nam | Dec 8 2013, 05:14 PM Post #274 |
|
Bought by China
![]()
|
Russia Ignores ITLOS, Formally Violates its UNCLOS Obligations, and No One Cares by Julian Ku December 2 was the date set by the International Tribunal for the Law of the Sea for compliance with its ORDER that Russia "immediately release the vessel Arctic Sunrise and all persons who have been detained, upon the posting of a bond or other financial security by the Netherlands... " The Netherlands has posted that bond, and as far as I can tell, the Arctic Sunrise has not been released, and none of the detainees have been allowed to leave the "territory and maritime areas under the jurisdiction of the Russian Federation." (All have been granted bail, though.) Russia has no obligation to participate in the ITLOS proceeding, but it has a clear obligation under Article 290(5) to "comply promptly with any provisional measures prescribed... " by the ITLOS. So Russia is now in plain violation with a lawful judgment of the ITLOS. What is amazing about this violation in plain sight is that the media appears to have forgotten about this lingering ITLOS order. Russia ignores the ITLOS, and... nothing. Even the reliable Greenpeace Blog is fairly quiet since their folks are out on bail. So it turns out no one really cares all that much that the ITLOS has been essentially rendered a nullity in this case as a result of the unilateral action of one of UNCLOS's member states. I suppose that the Dutch are working out some sort of diplomatic settlement. But this doesn't change the formal legal violation. Why do I bring this up? Because if Russia takes no reputational hit from its defiance of ITLOS here, then it seems less likely that other states will worry about the reputational hit from defying ITLOS or other international courts. Hence, Paul Reichler (the Philippines U.S. attorney in its arbitration) is almost certainly wrong when he said recently:
Hmm... Iran in 1980 (Hostages), the U.S. in 1984 (Nicaragua) and 2008 (Mexico), Colombia in 2013 (Nicaragua)... uh, sorry Paul, I'm not seeing any heavy prices being paid. So far, Russia is offering a real-life empirical counter-example to Reichler's claim. Indeed, I don't see that Russia is paying much of a price at all, so far. Maybe this is because Russia's international reputation is not exactly at an all time high, right now. Still, China is watching. If Russia can ignore ITLOS in a case where they actually have detained 30 foreign nationals (mostly from the U.S., Australia, and Europe), then do we really think China will suffer much damage from ignoring an arcane ruling about a bunch of rock/islands where no actual human beings are actually affected? Opinio Juris Edited by Hong Nam, Dec 8 2013, 05:17 PM.
|
![]() Constructions Mecaniques de Normandie - C Sword 90 | |
![]() |
|
| Hong Nam | Dec 8 2013, 05:30 PM Post #275 |
|
Bought by China
![]()
|
A bit worrying I admit. Is it perhaps no one really cares about Greenpeace? Is it Greenpeace has stepped on too many toes that countries of influence look the other way? I would like to think that this would not be so in the case of The Philippines. However, before we decide to trounce upon Mr. Ku's somewhat bleak article. Do note that all his previous posts are quite supportive of the Philippines' action. So, with that considered... I see it as a warning from Mr. Julian Ku to the Philippines that you should not rely on whatever the ITLOS ruling would be. It is a message for you to get prepared for any eventuality - for better or for worse. Avante Las Islas Filipinas! Edited by Hong Nam, Dec 8 2013, 05:32 PM.
|
![]() Constructions Mecaniques de Normandie - C Sword 90 | |
![]() |
|
| Mckoyzzz | Dec 8 2013, 06:15 PM Post #276 |
|
Ipsa Scientia Potestas Est
![]()
|
The irony was that, that in early 2000, in separate proceedings, Russia applied to the International Tribunal for the Law of the Sea (ITLOS) for prompt release of the "Volga" vessel under the United Nations Convention on the Law of the Sea (UNCLOS). Russia was successful in those proceedings and ITLOS ordered the vessel's prompt release on less strigent terms than sought by Australia. The setting of the case is very much similar to what happened now with Greenpeace activists and it's ship. File of the case is here. Some details here. An opinio juris from Australia has this to say: " On December 2 a deadline elapsed for Russia to respond to ITLOS's order to release the Arctic Sunrise and crew - and there is no sign that it might do so. As ANU professor Don Rothwell said, Russia cannot pick and choose when it will abide by a treaty it has signed and relied upon in the past. This kind of calculated snub damages international relations. If you can't reliably predict another nation's actions under law, there is even less reason to trust it. If Russia decides it's not convenient to comply on Arctic Sunrise, what might its decision be in a costly trade case? The onus is now on other governments, such as Australia's, to call out Moscow's failure. The Abbott government has declined to speak up on behalf of the Arctic Sunrise's activists, and particularly Australian Colin Russell. It has left it as a consular matter. Russia's dismissal of the tribunal goes far beyond that. |
![]() "Do not condemn the judgment of another because it differs from your own. You may both be wrong -- Dandemis" | |
![]() |
|
| seWer Rat | Feb 11 2014, 07:56 PM Post #277 |
|
amateur sewer cleaner
![]()
|
Lawmakers file reso urging UN to expedite decision on territorial dispute February 11, 2014 6:08 pm As the tension escalate over the West Philippine Sea, four lawmakers on Tuesday filed a resolution at the House of Representatives asking the United Nations (UN) arbitration tribunal to expedite its decision on the Philippine government’s petition on the territorial row with China. Reps. Ben Evardone of Eastern Samar, Cesar Sarmiento of Catanduanes, Dakila Carlo Cua of Quirino, and Rene Relampagos of Bohol filed House Resolution 796, urging the judges of the arbitration tribunal to expedite the case involving the disputed claims over certain areas in the sea and called on China to resolve the conflict under the UN Convention on the Law of the Sea (Unclos). “The early resolution of the arbitration case filed with the UN arbitration tribunal of judges could permanently settle the conflicting claims [therein] and ensure the peace and stability in the region,” the resolution stated. January 21, 2013, the Philippines initiated an arbitration process seeking to declare ‘illegal’ Beijing’s expansive and forceful nine-dash line claim which harbors on the maritime economic zone of the Philippines and other neighboring countries, including Malaysia, Brunei, Vietnam, and Taiwan. more |
| To avoid criticism, write nothing, say nothing, do nothing, BE NOTHING. | |
![]() |
|
| Hong Nam | Feb 19 2014, 04:05 PM Post #278 |
|
Bought by China
![]()
|
Someone (Prof. Stefan Talmon) Finally Makes An Argument In Favor of China in the Philippines UNCLOS Arbitration by Julian Ku Abstract from a chapter of Prof. Talmon's book: "The chapter examines whether the Tribunal has jurisdiction to hear the case, whether the claims brought by the Philippines are admissible and whether there are any other objections which the tribunal will have to decide as a preliminary matter. It aims to offer a (not the) Chinese perspective on some of the issues to be decided by the Tribunal. The chapter is to serve as a kind of amicus curiae brief advancing possible legal arguments on behalf of the absent respondent. It shows that there are insurmountable preliminary objections to the Tribunal deciding the case on the merits and that the Tribunal would be well advised to refer the dispute back to the parties in order for them to reach a negotiated settlement." I've only taken a quick look at Prof. Talmon's pretty comprehensive discussion, and it really does read like an "amicus brief" for China on the question of jurisdiction. I will have to consider more carefully Prof. Talmon's claim that the 9-Dash Line claim can fit into the "historic waters" exception to jurisdiction, but overall it seems like a very careful and persuasive treatment. Opinio Juris **An amicus curiae is someone who is not a party to a case who offers information that bears on the case but who has not been solicited by any of the parties to assist a court. Edited by Hong Nam, Feb 19 2014, 04:08 PM.
|
![]() Constructions Mecaniques de Normandie - C Sword 90 | |
![]() |
|
| Hong Nam | Feb 19 2014, 10:19 PM Post #279 |
|
Bought by China
![]()
|
China's "Nine-Dash Line" is Dangerous The principle behind China's "nine-dash line" threatens the stability of far more than the South China Sea. By Zachary Keck February 19, 2014 The U.S. has lodged its objection to China's "nine-dash-line" claim to the South China Sea. It is right to do so for two reasons. First, in contrast to what China claims, the U.S. clearly stating its position on the conflict will reduce the chance that the U.S. and China will come to blows over the South China Sea. Second and more important reason the U.S. is right in challenging China's "nine-dash line" in the South China Sea is that Beijing's claim is inherently destabilizing and not just for the Asia. China's claim to 90 percent of the South China Sea is rooted primarily in the notion that past Chinese rulers have at times maintained sovereignty over the various islands and reefs in the waters. Allowing China to establish the principle that states can claim territory based on what their country has at times controlled would be disastrous for the simple reason that borders have been fluid throughout history. As a result, there would be a never-ending series of overlapping claims of sovereignty that would place countless states on a path to conflict. Ironically, few states would fare worse than China should its "nine-dash line" principle be upheld given how often parts of China have been invaded and occupied by outsiders: - 19th and early 20th century European colonial period when countries like Germany, France, and Great Britain laid claims to parts of China. - Imperial Japan also controlled large sways of China giving Shinzo Abe the right to claim sovereignty over those parts of China. - Mongolia could demand that its claim to sovereignty over China in its entirety because of the Mongol occupation of China in the 13th Century. - The Turkish people of Xinjiang province could claim that part of the PRC on the grounds that it was part of Turkestan before the Qing Dynasty recaptured it. The Diplomat Edited by Hong Nam, Feb 19 2014, 10:21 PM.
|
![]() Constructions Mecaniques de Normandie - C Sword 90 | |
![]() |
|
| Hong Nam | Feb 26 2014, 12:03 AM Post #280 |
|
Bought by China
![]()
|
China gearing up for battle at the legal front?
They have a lot of catching up to do. You - The Philippines has had a long head start and the "battle" is coming soon. |
![]() Constructions Mecaniques de Normandie - C Sword 90 | |
![]() |
|
| 1 user reading this topic (1 Guest and 0 Anonymous) | |
| Go to Next Page | |
| « Previous Topic · West Philippine Sea · Next Topic » |










8:33 AM Jul 11