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| PH Files Case vs China Before UNCLOS Tribunal; Ph challenges China's 9-dash claims in WPS at UN Tribunal | |
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| Tweet Topic Started: Jan 22 2013, 05:03 PM (50,590 Views) | |
| raider1011 | Jan 24 2013, 09:05 PM Post #71 |
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^Ha? Article 298 is in the convention. |
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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 | Jan 24 2013, 09:12 PM Post #72 |
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Understanding our Unclos arbitral submission By H. Harry L. Roque Philippine Daily Inquirer 8:50 pm | Thursday, January 24th, 2013 What happened last Tuesday was that we began the procedure of binding arbitration by serving China with a notification that we are initiating the same and providing China with a statement of our claims. We have also chosen our arbitrator in what will be a 5-member arbitral tribunal. China should now choose its own arbitrator. Thereafter, both parties should select the rest of the arbitrators from a list maintained by the UN Secretary General. If they cannot agree on the three further arbitrators, it is the president of the Itlos who will make the appointment to complete the tribunal. 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 raises the question as to why the Philippines did not hale China to binding arbitration under the Unclos before 2006. The first incident over Panatag occurred in 1997 during the term of President Fidel Ramos, when we arrested Chinese poachers for illegal fishing in the area and charged them before a metropolitan trial court in Zambales. At that time, China had not yet made reservations on the dispute settlement procedure of the Unclos. Perhaps it was thought that Panatag may be resolved through bilateral negotiations? Whatever the reason, we now have to contend with China’s defense that the dispute is subject to its reservations. Inquirer H. Harry L. Roque is director of the Institute of International Legal Studies, University of the Philippines Law Center. |
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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 | Jan 24 2013, 09:16 PM Post #73 |
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As usual, something we should have done A LONG TIME AGO.
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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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| Hong Nam | Jan 24 2013, 09:18 PM Post #74 |
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Bought by China
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Opinio Juris Game Changer? Philippines Seeks UNCLOS Arbitration with China Over the South China Sea by Julian Ku Source In a potentially huge development, the Government of the Philippines announced earlier today that it has filed for arbitration with China under the UN Convention for the Law of the Sea. The Philippines’ claim places China’s controversial sovereignty claim over the South China Sea (see right) squarely before an international arbitral tribunal convened under Article 287 of UNCLOS. According to the Philippines Foreign Minister, here are the main claims: 1) The Philippines asserts that China’s so-called nine-dash line claim that encompasses virtually the entire South China Sea/West Philippine Sea is contrary to UNCLOS and thus unlawful. Within the maritime area encompassed by the 9-dash line, China has also laid claim to, occupied and built structures on certain submerged banks, reefs and low tide elevations that do not qualify as islands under UNCLOS, but are parts of the Philippine continental shelf, or the international seabed. 2) In addition, China has occupied certain small, uninhabitable coral projections that are barely above water at high tide, and which are “rocks” under Article 121 (3) of UNCLOS.China has interfered with the lawful exercise by the Philippines of its rights within its legitimate maritime zones, as well as to the aforementioned features and their surrounding waters. 3) The Philippines is conscious of China’s Declaration of August 25, 2006 under Article 298 of UNCLOS (regarding optional exceptions to the compulsory proceedings), and has avoided raising subjects or making claims that China has, by virtue of that Declaration, excluded from arbitral jurisdiction. Some early thoughts. As I argued here, I still think the Philippines has a massive jurisdictional problem because of China’s Article 298 declaration excludes the following certain subjects from this kind of arbitration. (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…. China is claiming (at least it has often seemed to be claiming) that it has complete sovereignty over the South China Sea (per the map above). I take the Philippines is arguing that China’s South China Sea claim is not really a “sea boundary delimitation” within the meaning of Article 15. Nor is the Chinese SCS claim about “historic bays” and “titles”. I don’t think that the Philippines has a hopeless case, but I do think they will face a huge challenge to get any arbitral tribunal to assert jurisdiction here, especially since one judge will be appointed by China. On the plus side, if the Philippines manages to get past the jurisdictional hurdle, it seems to me that they have a very good chance of prevailing since China’s claim is hard to square with the rest of UNCLOS. Moreover, they force China to go on the defensive here without actually threatening China in any military or economic way. Strategically, I think I understand why the Philippines has filed this claim. They have very little leverage with China: economically, politically, or militarily. In this forum, the worst case scenario is the Philippines will lose on jurisdiction. This shouldn’t affect the merits of their claims, though. For China, the worst case scenario is that it loses on the merits and would have to face the decision of whether to comply with the tribunal. If they lose, I can see China simply withdrawing from UNCLOS. In any event, I think it is safe to say this it a game changer in the long-running South China Sea dispute. It is also, without question, the most important case that has ever been filed under the dispute resolution procedures of UNCLOS. It will be a crucial test of the UNCLOS institutions, as well as of UNCLOS members. I am skeptical that China will allow itself to be drawn into serious international adjudication (see my argument here), but it will be fascinating to see how China reacts. Julian Ku is Professor of Law and Faculty Director of International Programs. Maurice A. Deane School of Law. B.A., Yale University J.D., Yale Law School Professor Ku teaches international and constitutional law subjects. His main research interest is the intersection of international and domestic law. He has published articles on the constitutional aspects of foreign relations in journals such as the Yale Law Journal,the Supreme Court Review and Constitutional Commentary. He is the co-author, with John Yoo, of a forthcoming book on globalization and the U.S. Constitution from Oxford University Press. He also is a co-founder of the international law weblog Opinio Juris. Edited by Hong Nam, Jan 24 2013, 09:30 PM.
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| raider1011 | Jan 24 2013, 09:26 PM Post #75 |
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^Kaya nga. What have I been saying from the beginning.
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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 | Jan 24 2013, 09:33 PM Post #76 |
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Losing on jurisdiction wouldn't affect the merits of our claims but it wouldn't affect China's either. No jurisdiction no decision. So that part is wrong: we are already in a worst-case scenario. The point is to get us out of it. We have no leverage so what's left? Edited by raider1011, Jan 24 2013, 09:43 PM.
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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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| Hong Nam | Jan 24 2013, 09:37 PM Post #77 |
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Bought by China
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This is the beauty of this thread. We learn from others and somehow feel gratified when our opinions are backed by others. Most especially if those individuals are held with high esteem by their peers in their own fields of expertise. One step at a time. The road isn't easy and is paved with peril. But that is what makes life interesting and worth living for. Edited by Hong Nam, Jan 24 2013, 09:40 PM.
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| raider1011 | Jan 24 2013, 09:42 PM Post #78 |
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Exactly the point, Hong Nam. I don't like to argue but I appreciate Mckoyzzz and Santi pointing to evidence and using proper arguments. We have to avoid adding to the confusion. My BP rises when I see PHILIPPINES PHILIPPINES PHILIPPINES FIGHT FIGHT FIGHT without a cold-blooded look at the facts. Yun lang. I apologize for my tone if anyone found it offensive.
Edited by raider1011, Jan 24 2013, 09:44 PM.
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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 | Jan 24 2013, 10:48 PM Post #79 |
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Ipsa Scientia Potestas Est
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It has been very complicated ever since the beginning of the dispute... and now these filing of case of PH to UNCLOS... I'm sure most of us here are not lawyers or law experts of sort that's why we really need to be careful in dealing and defining these UN laws, and as much as possible we need to use words in Layman's term, for the sake of those who are not aware of the full extent of these laws [that includes me]... Even lawyers will have their own interpretations.. tayo pa kaya... ;) Anyhow, as for me in case the tribunal will have no jurisdiction of these case, there should another way to create, possibly a special tribunal just for this particular case... or else the whole UNCLOS is complete nonsense... Edited by Mckoyzzz, Jan 24 2013, 10:50 PM.
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![]() "Do not condemn the judgment of another because it differs from your own. You may both be wrong -- Dandemis" | |
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| Hong Nam | Jan 24 2013, 11:04 PM Post #80 |
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Bought by China
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China Likely to Ignore Philippines' Challenge in South China Sea William Gallo January 23, 2013 Full Article Here Analysts say China will likely ignore the Philippines' decision to take a long-running territorial feud to an international tribunal, continuing its insistence on solving maritime disputes without third party involvement. Most observers say China will almost certainly not agree to participate in the panel, in keeping with its long-standing policy of solving territorial disputes through direct negotiations. Carl Thayer of Australia's University of New South Wales tells VOA the tribunal may be able to move forward without Chinese participation. He says the Philippines hopes a favorable decision would give it a moral victory. "It's [a case] that not only has the legal side, but also has a strong moral suasion. If the tribunal ruled even partly in the Philippines' favor, it would deflate China's claims and give more legality and international cover to the Philippines." Sam Bateman, a maritime security expert, acknowledges China's refusal to participate in the tribunal "probably won't be a great public relations success." But he tells VOA that may be exactly what the Philippines government is aiming for. "I see it in many ways as a bold gesture by the Philippines, hoping that China will respond negatively," says Bateman, a senior fellow at the S. Rajaratnam School of International Studies in Singapore, who described the move as Manila's "attempt to take the high ground." ** With regards to Carl Thayer of UNSW on how the tribunal may be able to move forward without Chinese participation. - It does not say. |
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8:33 AM Jul 11