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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 (50,589 Views)
raider1011


^That's another pet peeve: "moral victory", "moral victory", hindi ba nila nakikita what comes next? If the tribunal accepts then Japan, Vietnam and everyone else will jump in after the Philippines. 100% guaranteed they will find excuses to set up their own tribunals and drag China to court. When that happens lagot ang bully.

The sky's the limit for Del Rosario if something comes out of this. He could become the next UN Secretary General that is if he isn't already president. But first . . .
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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Hati
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The problem faced by China that I see is:

If the tribunal denies, then it will be similar to the Senkakus.(as their claims is too similar to ours). Is China willing to "lose" the Senkakus?


If the UN declines to hear this, it will likely affect how countries in maritime dispute see the UN -- something as impotent, like the League of Nations, and waste of taxpayers money.

On the other hand,is it really allowed for countries to exempt itself in certain provisions in International law? Yknow, the US is not a signatory of UNCLOS because it finds certain provisions unacceptable as it perceives them to be hindrance to US navigation. If it is allowed, then the UN is weird and unfair. Laws should be binding, not exempting. Might as well withdraw from the UN if it can't help us fight for our maritime rights per international law.
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Santi Kampilan
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raider1011
Jan 24 2013, 09:42 PM
Hong Nam
Jan 24 2013, 09:37 PM
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.
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. :salute:
Raider, you're cool man. For most part your arguments are well-founded. Good job. This forum is always a learning experience for me and keeps my demented brains active. :armysmile:

That VOA article says it all. Now that the ball is on their court, China will stick to its argument of bilateral talks to keep everything in a state of detente. They may want to resolve the Senkaku stalemate first because it maybe foolish to tackle both problems at the same time. But I could be wrong.
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icefrog
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House, Senate pass resolution backing case vs China

Quote:
 
MANILA, Philippines - The Senate and the House of Representatives approved separate resolutions on Wednesday expressing support for President Aquino’s decision to file an arbitration case against China as the last option for a peaceful settlement of the West Philippine Sea dispute.

The Senate passed Senate Resolution 931 while the House unanimously adopted House Resolution 3004.

“The Philippines has exhausted almost all available tools, mechanisms and fora for the peaceful settlement of the disputes with China under its three-track approach, namely: political, diplomatic and legal track, which includes inviting China to bring the matter peacefully under any of the available dispute settlement mechanisms under Part 15 of UNCLOS (United Nations Convention on the Law of the Sea),” the resolution stated.

“China’s claim in the West Philippine Sea under the nine-dash line is expansive and inconsistent with the provisions of UNCLOS,” it said.

The Senate noted that the nine-dash line claim of China encroaches on the legitimate maritime entitlements of the Philippines and other coastal states in the South China Sea, “thus violating their legitimate rights under international law, specifically UNCLOS.”

Both China and the Philippines are signatories to the UNCLOS, which prescribes the maritime entitlements of coastal states in terms of territorial sea contiguous zone, 200-mile exclusive economic zone and continental shelf.


more: http://www.philstar.com/headlines/2013/01/25/900877/house-senate-pass-resolution-backing-case-vs-china
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superman
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Now were cramming to have this so called last option, what now if China still ignore this arbitration what can we do? We still don't have a credible defense we are much slower than a snail, SRDP is very important from it's very beginning but we discontinued it from 70's sana we develop na ito ngayon maybe we are much ahead with Indonesia or Korea in missile tech. Right now we are still waiting for the LIFT contract, Maestrale, MRV, etc. 1 week nalang Feb. na ano ba yan. If we don't prioritize our own defense all current development will be wipe out in a single strike of China or even other nation, Tama ang sabi ng Vietnam we are such a "lousy coward" because we don't love our country, If we love our country we should defend it to the capacity we can, Congress and Senate puro lang kayo dada pls act now!
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raider1011


PH Still Pursuing 3-Pronged Approach To Solve Sea Dispute

By Roy C. Mabasa
January 24, 2013, 6:25pm

“In fact we have been doing this for a long time,” Secretary-General Henry Bensurto Jr. of the DFA Commission on Maritime and Ocean Affairs Secretariat, told Manila Bulletin. “But nothing has been happening and the assertion continued in a steady and aggressive way without indication that China’s policy would change or be reversed.”

“Given this, we have no other peaceful recourse but to avail ourselves of the arbitration facilities under Part XV and Annex VII of United Nations Convention on the Law of the Sea (UNCLOS),” he pointed out.

Bensurto also pointed out that if China does not participate in the creation of an arbitral tribunal that will decide on the validity of their overarching claims in the West Philippine Sea, the Philippine government can ask the president of the International Tribunal on the Law of the Sea (ITLOS) to exercise China’s rights and select a panel of arbitrators.

He said Beijing has 30 days to decide whether they will respond approvingly to the invitation by the Philippine government to bring their territorial disputes before an arbitral tribunal.

After the 30-day period, which commenced on January 22, the day that China received the statement and notification, the Philippine government has 15 days to request the ITLOS president to choose the arbitrators who was supposed to be selected by Beijing.

An arbitral tribunal should have five members – the first one chosen by the party that initiated the proceeding, the second one appointed by the other party, and the three members should be agreed upon by both parties.

“The right of China to choose arbitrators will be exercised by the ITLOS,” Bensurto said.

Manila Bulletin
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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icefrog
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Understanding the Philippines' Unclos arbitral submission

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Manila (Philippine Daily Inquirer/ANN) - After almost a year since the Philippines' stalemate with China on Panatag Shoal (Scarborough Shoal), it's about time we brought the controversy to the binding and compulsory dispute settlement procedure of the UN Convention on the Law of the Sea (Unclos). But contrary to many media reports, the action is not before the International Tribunal on the Law of the Sea (Itlos), or before the United Nations. What was initiated is ad hoc arbitration pursuant to the Unclos.

Under the dispute settlement procedure of the Unclos, state parties may specify where they will submit all disputes over the "interpretation and application" of the Convention, either to the International Court of Justice (ICJ) or the Itlos. If a state party does not specify which body it will bring these disputes to, the default choice will be through binding arbitration under Annex VII of the Convention.

Since both China and the Philippines did not choose either the ICJ or the Itlos, they are both deemed to have agreed to resolve these disputes to binding arbitration.

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.


more: http://ph.news.yahoo.com/understanding-philippines-unclos-arbitral-submission-051003340.html
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raider1011


Why the Philippines Has No Chance of Making China Go to Court

by Julian Ku

Quote:
 
China’s position is that this is a question of sovereignty, and not the Law of the Sea. There is no basis for the ITLOS to assert jurisdiction over this dispute, without China’s consent. This seems right to me. Except that no one is sure exactly what the basis of China’s sovereignty claim is, but assuming it has one, then the Law of the Sea is not going to help the Filipinos out here.

Opinio Juris

:nono: MALI SI KU: we have not gone to ITLOS, we're taking this to an ad hoc arbitral tribunal under Annex VII. Roque the Filipino expert got it right the first time:

Quote:
 
Under the dispute settlement procedure of the Unclos, state parties may specify where they will submit all disputes over the “interpretation and application” of the Convention, either to the International Court of Justice (ICJ) or the Itlos. If a state party does not specify which body it will bring these disputes to, the default choice will be through binding arbitration under Annex VII of the Convention. Since both China and the Philippines did not choose either the ICJ or the Itlos, they are both deemed to have agreed to resolve these disputes to binding arbitration.

Inquirer

Apparently Ku noted this and agrees. Eto nang latest:

Has China Rejected the Philippines Arbitration Already? Not yet.
Quote:
 
"The international court would not take the case without agreements from all parties involved, Dong Manyuan, a researcher at the China Institute of International Studies, told the Global Times."

Uh, yes, that’s true in a general sense. But China has already agreed to allow an Article 287 arbitral tribunal to take this case and at least to determine jurisdiction. Article 288(4) would seem to be the last word on this point.

"4. 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."

Sorry, Global Times! China is stuck with this case, at least as a legal matter, and at least through the jurisdictional phase. I hope the Chinese government is getting better legal advice than this. China could boycott the arbitration, but they would be in a clear violation of Article 287 and Article 288 of UNCLOS. Will it dare to do so?
What Happens if China Tries to Boycott UNCLOS Arbitration? A Japanese Guy Gets to Appoint the Tribunal

Quote:
 
Essentially, this means the President of ITLOS can fill out the rest of the arbitral tribunal if China tries to boycott, by appointing the remaining four members. As Craig Allen of the University of Washington pointed out to me in an email, the current President of ITLOS is Shunji Yanai, a well-respected diplomat and jurist. That is to say, a well-respected Japanese diplomat and jurist. I’ve met President Yanai briefly, and he is a very smart and well-accomplished guy. But Japan is just not on China’s BFF list right now. China’s Weibo Internet commenters might well just blow up if this happens.

Before we break out the champagne, please remember we are at the beginning of a very long road and the first hurdle is getting the tribunal to agree it has jurisdiction. For obvious reasons I sincerely doubt China will attempt a boycott and will try to get their lapdogs este "arbitrators" on the tribunal. In which case the President of ITLOS will not have a role at all.

But if they boycott . . . :lollol:

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


Philippine, Chinese Analysts on South China Sea Row

Zhang Jianjing is managing editor of China Reform, Caixin's monthly magazine featuring extensive commentary and analysis on political and economic issues. Huang Shan is chief of Caixin's international desk.

Attorney Romel Regalado Bagares is executive director of the Manila-based Center for International Law (CenterLaw). Professor Herminio Harry L. Roque Jr. is the director of the Institute of International Legal Studies at the University of the Philippines Law Center, and a member of the governing council of the Asian Society of International Law.



Both countries have vastly differing claims. Can you walk us through them?

Roque: In terms of territorial claims, some things the Philippines holds as proof of effective occupation are the fact that Scarborough served as a target range for Philippine and U.S. naval forces in Subic Bay in Zambales, or that it's been a provisional fishing ground for fishermen in Zambales. Then there are also the maps, including a 1727 map recently found at the British Library, which shows Scarborough as part of the archipelago.

But the thing is, Scarborough, because it's so tiny, doesn't really qualify as an island. The land surface is negligible – it's about 125 square meters during low tide. It's a rock. So what we're really talking about here is the waters, and for this you have to go by the laws applicable to maritime zones, which are governed by the United Nations Convention on the Law of the Sea (UNCLOS).

Bagares: . . . The first has to do with the Philippines' EEZ. The EEZ is the 200 nautical mile sea zone over which the coastal state – the state from whose shores this distance is measured – exercises sovereign rights. Only the coastal state can exploit the resources in this zone. This just has to do economic rights, but it is not equivalent to full sovereignty. You don't own the islands.

Scarborough is about 130 nautical miles from the nearest Philippine land mass, so this puts Scarborough firmly within our EEZ.

Second, under the Philippines' 2009 baselines law, Republic Act 9522, Scarborough is considered a regime of islands made part of Philippine territory. In this case, it is a full sovereign claim or a claim ownership over Scarborough Shoal, not just a claim under the EEZ. But from this point of view, what we are still looking at is that if Scarborough is considered as an island, then it will have its own territorial sea, contiguous zone, and 200-nautical mile EEZ. . . .

There has actually been a direct admission by China that the shoal is part of the Philippines' EEZ, although they say this still does not trump their claim.

Huang: China draws its map on the basis of its historical occupation and management of these sea areas. China maintains that its armies and its fishermen have had a long history of exploring and developing the South China Sea area as outlined by the 9-dash line.


Do historical claims take precedence over UNCLOS?

Roque: If you look at jurisprudence under international law, there is no recognition of ancient title alone.

There have been previous rulings in the tribunal with regard to historical claims. One is Pulau Ligitan and Pulau Sipadan, the other is Eritrea versus Yemen. In both cases, so-called ancient titles have been unreliable and difficult to prove. The same goes with maps. Ancient maps are unreliable, oftentimes conflicting. Oftentimes, these historical records do not actually pertain to the disputed territories.

Bagares: With regard to maps, we're now talking about international law – not the UNCLOS – because China's 9-dash claim is apparently a territorial claim.

Maps don't count for much in international law. There are some cases in the International Court of Justice (ICJ) where maps did count, but these were maps made by a joint commission of the contending parties. One example is the Temple of Preah Vihear case between Cambodia and Thailand, where eventually the court said that it belonged to Cambodia, since Thailand did not protest the map created by the joint commission.

But the maps here are in the nature of historic claims. And in international law to date, contemporary international law does not consider historical claims as having much weight as far as claim to ownership is concerned. And you can use maps for supporting arguments, but you can't use them as the main basis for making a claim of ownership.


The Philippines has invited China to take the matter to the International Tribunal of the Law of the Sea (ITLOS). But China said it previously submitted a written statement to the UN, making it clear that it does not accept international arbitration "as described in section twp of part XV of UNCLOS in disputes ... concerning maritime delimitation, territory and military activities." What do you think of this?

Bagares: When China became a party to the UNCLOS in 2006, it did indeed invoke the so-called article 298 exception. However, other provisions under UNCLOS specify that it is the coastal state that is allowed to make these reservations.

With regard to Scarborough, the coastal state is the Philippines.
The closest Chinese land mass is 1,200 nautical miles away. Obviously, China cannot claim to be the coastal state. So under the convention, it is the Philippines that has the right to opt itself out of compulsory jurisdiction.

So it's not a question of whether we're trying to compel China to bring the matter to the UNCLOS, as China is party to the UNCLOS and therefore subject to compulsory binding dispute settlement proceedings. It's a question of whether China can actually raise these exceptions.

Huang: As far as I know, the ITLOS is indeed a toothless vehicle and has no mandate to obligate its member states to follows its verdicts. Any party that refuses to settle in ITLOS is allowed to do this.

Caixin Online


Interesting angle from Bagares ("coastal state exception"). And there goes the ITLOS misconception again on the part of the Chinese . . .

:armyroleyes: Anyhow, that's beside the point: malinaw na malinaw . . . our analysts are better than yours :banana:
Edited by raider1011, Jan 26 2013, 11:51 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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Hong Nam
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raider1011
Jan 26 2013, 11:48 PM
Huang: As far as I know, the ITLOS is indeed a toothless vehicle and has no mandate to obligate its member states to follows its verdicts. Any party that refuses to settle in ITLOS is allowed to do this.

Caixin Online


Interesting angle from Bagares ("coastal state exception"). And there goes the ITLOS misconception again on the part of the Chinese . . .

:armyroleyes: Anyhow, that's beside the point: malinaw na malinaw . . . our analysts are better than yours :banana:
I think Huang Shan knows how weak their argument is. Hence, they all expect China to not honour the decision and just rely on the fact that ITLOS is and I quote "a toothless vehicle."

A common argument stance of the weak. - "We are going to lose, but who cares, there's nothing they can do about it."



One step at a time.... It will come. :snipemo:

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