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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 (50,547 Views)
MSantor
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PDFF Mod Group
As expected:

Diplomat

Quote:
 
Don’t Believe China’s South China Sea Case Statement

Beijing’s statement on the case has little basis in international law.

By Do Viet Cuong
November 03, 2015

(...SNIPPED)

China’s non-acceptance of and non-participation in the arbitration

According to the Statement, China declared that the PCA’s ruling is “null and void” and has “no binding effect” that “elaborated on the legal grounds for China’s non-acceptance of and non-participation in the arbitration.” In other words, China is continuing to claim that it is not bound by the PCA for lack of jurisdiction, although the PCA has now found it has jurisdiction over the case.

In doing so, China is clearly ignoring the provision of Article 288(4) UNCLOS which reads: “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.”

(...SNIPPED)


"If you think you can do a thing or think you can't do a thing, you're right." - Henry Ford

"Courage is going from failure to failure without losing enthusiasm."
- Winston Churchill


"If everyone is thinking alike, someone isn't thinking"- Gen. George S. Patton
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MSantor
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China will lose big if it simply ignores the UNCLOS ruling:

Diplomat

Quote:
 
International Law Is the Real Threat to China's South China Sea Claims

If an arbitral tribunal finds China in breach of UNCLOS, the international pressure on Beijing would be enormous.

By Jill Goldenziel
November 03, 2015

Tensions escalated between Washington and Beijing last week as a U.S. warship approached an artificially created Chinese island in the South China Sea. But the real threat to China came in the courtroom, when an arbitral tribunal in The Hague held that it has jurisdiction over key issues in the Philippines’ dispute against China over its South China Sea claims. Whether the Philippines wins or loses in the next phase of the case, the ruling will have serious consequences for China’s role as a world power.

Although China says its claims to the South China Sea are indisputable, the Tribunal’s ruling only escalates a long-running conflict. Besides being one of the world’s busiest maritime routes, the South China Sea is rich in fish stocks as well as oil and gas deposits. China, the Philippines, Vietnam, Brunei, Taiwan, and Malaysia all have overlapping claims in the sea. To cement its position, China has recently built seven artificial islets over uninhabited reefs and shoals. China believes that it controls the 80-90 percent of the 1.35 million square-mile sea that falls within the “nine-dashed line,” a feature drawn on Chinese maps by its Nationalist government in 1947.

Unable to challenge China militarily, the Philippines turned to the law. In 2013, the Philippines filed a case in the Permanent Court of Arbitration in The Hague, asserting its rights to exploit the 200-nautical mile Exclusive Economic Zone that extends from the archipelago into the South China Sea. The Philippines brought their claim under the United Nations Convention on the Law of the Sea (UNCLOS), to which both states are parties. China scoffed, claimed that the Tribunal had no jurisdiction, and boycotted the proceedings.

(...SNIPPED)


"If you think you can do a thing or think you can't do a thing, you're right." - Henry Ford

"Courage is going from failure to failure without losing enthusiasm."
- Winston Churchill


"If everyone is thinking alike, someone isn't thinking"- Gen. George S. Patton
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raider1011


Is China Moving Towards Compromise in the South China Sea?

by Bill Hayton

Chatham House

Quote:
 
31 October 2015

Similar language was found in the pages of the Global Times newspaper, often the home of hawkish hyperbole. However its main op-ed article about the USS Lassen’s transit stressed the importance of staying calm and analysing what the US had actually done. It then gave its readers an explanation of the meaning of UNCLOS’s provisions on territorial waters and, remarkably, informed them that China’s holdings in the Spratlys are not habitable islands and therefore do not qualify for a 200nm Exclusive Economic Zone around them. Given the paper’s ideological bent, this smacks of an effort in ‘public opinion management’. ...

Why is China prepared to do this? There seem to be several factors. The most significant has been the consistent deployment of US statecraft. Washington has mobilised its full range of tools, from diplomatic discussions to gunboat diplomacy, to persuade and, to some extent, coerce Beijing into respecting the provisions of UNCLOS. Simultaneously the Chinese leadership may have come to see the benefits of UNCLOS for a country so dependent on sea-lanes for food, trade and energy supplies. UNCLOS has also legitimised China’s growing offshore naval power, facilitating transit through other countries’ EEZs, through the Japanese archipelago and as far as the US bases in Guam and Hawaii.

A third factor is the implications of the Philippines case at the PCA. Although China puffs defiance at the tribunal it is unlikely to be comfortable being painted as a violator of international law should the case go against it – as seems increasingly likely.
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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raider1011


South China Sea: International Arbitration moves forward as PAC rules on Jurisdiction

by Alex Calvo

Center for International Maritime Security

Quote:
 
November 6, 2015

Since, out of 15 submissions, not one has been determined at this stage to be ultra vires (beyond the powers of) the Court, it is difficult to overstate the degree to which this constitutes a major victory for the Philippines. Having said that, we should remember that this arbitration case, and more generally appeals to international law, the rule of law at sea, and peaceful resolution of disputes in accordance with international law, are only an aspect of Manila’s strategy to deal with Chinese expansionism. They should not be seen in isolation, but rather in conjunction with rearmament, and stronger bilateral and multilateral relations with fellow maritime democracies. Unless the Philippines can upgrade their military, regaining lost capacities such as combat jets, and being able to deal with the different levels of warfare (including non-lethal force at sea), a victory in the final stage of this legal battle may end up being little more than a footnote in history books.
Edited by raider1011, Nov 6 2015, 11:28 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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emesber
Trainee
[ *  * ]
Ancient Chinese map showing Spratlys and Bajo de Masinloc is not part of China.


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Em Esber Blog 2


Spratly islands and Bajo de Masinloc in Ancient Chinese Maps, Spanish and other Foreign Maps.

http://jibraelangel2blog.blogspot.com/2015/11/spratly-islands-and-bajo-de-masinloc-in.html

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MSantor
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The case continues at the Hague:

Philippine Star

Quote:
 
Philippines vs China oral hearing set on November 24
By Patricia Lourdes Viray (philstar.com) | Updated November 11, 2015 - 3:03pm

MANILA, Philippines - The Permanent Court of Arbitration under the United Nations has set the date for the hearing on the Philippines's claims against China in connection to the South China Sea dispute, the Department of Foreign Affairs (DFA) said on Wednesday.

"The oral hearing on the merits of the Philippines-China arbitration case under Annex VII of the United Nations Convention on the Law of the Sea will be held from 24 November to 30 November 2015 at The Hague, the Netherlands," the DFA said in a statement.

Last October 30, the tribunal issued its award on jurisdiction over the said case, citing that it concerns the role of "historic rights" and source of maritime entitlements in the disputed sea.

(...SNIPPED)


"If you think you can do a thing or think you can't do a thing, you're right." - Henry Ford

"Courage is going from failure to failure without losing enthusiasm."
- Winston Churchill


"If everyone is thinking alike, someone isn't thinking"- Gen. George S. Patton
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MSantor
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Philippine Star

Quote:
 
Philippines ready for next round of arbitration on sea dispute
By Aurea Calica (The Philippine Star) | Updated November 14, 2015 - 12:00am

MANILA, Philippines - The Philippines is gearing up for the next round of its legal battle with China before the international arbitral tribunal over the West Philippine Sea, with hearings on the merits of Manila’s case against Beijing set on Nov. 24-30.

“The preparation for the second round of argumentation has been going on from the time that we had formally filed our memorial,” deputy presidential spokesperson Abigail Valte said in a press briefing yesterday.

Valte said the same law firm would represent the country in the second round, apparently referring to the Boston-based law firm Foley Hoag led by lawyer Paul Reichler.

(...SNIPPED)


"If you think you can do a thing or think you can't do a thing, you're right." - Henry Ford

"Courage is going from failure to failure without losing enthusiasm."
- Winston Churchill


"If everyone is thinking alike, someone isn't thinking"- Gen. George S. Patton
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MSantor
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Philippine Star

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Phl confident of case as oral hearings on sea row begin this week
By Alexis Romero (philstar.com) | Updated November 22, 2015 - 5:18pm

MANILA, Philippines - Two days before the oral hearing on the merits of the Philippines’s arbitration case against China, Malacañang said it is optimistic that it will be able to present a “very good case” before the international court.

Presidential spokesman Edwin Lacierda said the Philippines’s lawyers studied the case thoroughly from all angles before filing it before the international arbitral tribunal.

“We studied our claims in the light of the United Nations Convention on the Law of the Sea. We have seen the initial response of the tribunal with respect to the issue of jurisdiction. Our lawyers have prepared for this,” Lacierda told state-run radio station dzRB on Sunday.

“We have anticipated all angles and, again, are we confident? Yes, we are confident that we can present a very good case before the arbitral tribunal, and we certainly hope that the jurors will see it our way,” he added.

(...SNIPPED)


"If you think you can do a thing or think you can't do a thing, you're right." - Henry Ford

"Courage is going from failure to failure without losing enthusiasm."
- Winston Churchill


"If everyone is thinking alike, someone isn't thinking"- Gen. George S. Patton
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MSantor
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Diplomat

Quote:
 
Who Is Really Overstepping the Bounds of International Law in the South China Sea?

Why the recent ruling from The Hague on jurisdiction is hardly a victory for the Philippines.

By Allen Yu
November 18, 2015

When the Permanent Court of Arbitration in The Hague recently announced that it would take “jurisdiction” over Philippines’ arbitral claims against China, many reported the decision as a victory for the Philippines and as a triumph of the “rule of law.” I beg to differ. The Court, on the contrary, has muddled, not upheld, international law, and by trivializing the states’ duty to negotiate in good faith – as enshrined in the U.N. charter, stipulated in the UNCLOS, and specifically agreed to between the parties – has greatly damaged the prospect for peace, cooperation, and a final resolution of the disputes.

China’s 9-Dashed Line

By far the most serious and important of the Philippines’ claims are allegations that China has no historic rights to the South China Sea under the UNCLOS. More specifically: 1.) China is not entitled to maritime rights beyond the sui generis rights provided under the UNCLOS; and 2.) China’s historical “9-dashed” line contravenes the UNCLOS.

The Chinese side has refused to participate on the ground that UNCLOS does not cover sovereignty issues, and that Article 298 specifically guarantees signatories the right to opt out from compelled arbitration over “disputes … involving historical bays and titles.”

(...SNIPPED)

"If you think you can do a thing or think you can't do a thing, you're right." - Henry Ford

"Courage is going from failure to failure without losing enthusiasm."
- Winston Churchill


"If everyone is thinking alike, someone isn't thinking"- Gen. George S. Patton
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Hong Nam
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Bought by China

MSantor
Nov 24 2015, 10:23 AM
Diplomat

Quote:
 
Who Is Really Overstepping the Bounds of International Law in the South China Sea?

Why the recent ruling from The Hague on jurisdiction is hardly a victory for the Philippines.

By Allen Yu
November 18, 2015



What is more interesting and which you should have posted (in my humble opinion of course) would have been the rebuttal made by someone who goes with the nome de plume Jose Rizal. He actually sent Allen Yu scampering about like a headless chicken.



- Wow the author conveniently mixes up "historic title" and "historic waters". The two are different. However, one fundamental aspect of Unclos was that the signatories have relented to let go of "historic claims" in exchange for a recognized EEZ and Territorial sea. This fact is conveniently left out by the author.

- The ultimate goal is for the Court to pronounce that China is entitled only to rights arising from its mainland coasts and Hainan Island. But short of that, the more land features Philippines can eliminate as capable of generating maritime rights, the harder it would be China to justify its "9-dashed" line.

- Delimitation is not the same as entitlement. Although latter is a condition sine qua non for the former. However, say after determining entitlement (which can be compulsorily arbitrated), we find there are no disputes as to delimitation. Everyone agrees... oh yes your seas go this far mine goes this far.


Article121 - Regime of islands

1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide.

2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.

3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf."

- What the hell is unclear here. The author just says "maritime rights", nicely vague aye. The article is simple and clear, island is above water at high tide. Two types of maritime rights, territorial sea and EEZ. Number 3 above, if it is true, no EEZ just territorial sea. LTE none of both. Geeez obvious isn't it. Then there is tirade about new technologies, when it is a constant in international law that the case will be decided when the dispute arised or started. So it is a fixed date. Technologies... give me a break.






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