Award: PCA Case No. 2013-19 -- the Philippines vs. China

[dr demented]

PCA Case No. 2013-19

In the Matter of the South China Sea Arbitration

before the Aribitral Tribunal Constituted Under Annex VII to the 1982 United Nations Convention of the Law of the Sea

Between the Republic of the Philippines and the People's Republic of China

12 July 2016

https://pca-cpa.org/en/cases/7/  (note:  new link revised 6-24-2019)

[adroth]

It appears that the still seems to be a misunderstanding about what the UNCLOS ruling actually means . . . even among our law makers. One that the press is more than willing to capitalize upon.

At the end of the day, all that the ruling does is debunk China's 9-dashed line claim. It neither has basis in fact or in law. It was a massive defeat for them.

However . . . it did not award territory to anyone. The arbitration process does not resolve territorial disputes.

https://www.facebook.com/groups/rpdefense/permalink/1230827667003078/

http://www.rappler.com/nation/162191-ca-member-troubled-yasay-south-china-sea-row?utm_source=facebook&utm_medium=referral

[adroth]

ii. Thitu, West York, and Other High-Tide features

441. The Philippines, which has occupied Thitu since 1970, recalls that it only claims a 12-nautical-mile territorial sea from Thitu and considers it to be a rock for purposes of Article 121(3). The Philippines notes that there is a well on Thitu that contains “brackish but
drinkable water,” but the water must be filtered for safe consumption. The local population on Thitu was transplanted there and has been maintained by the Philippine Government since 2001.

It is only possible to grow vegetables there because soil is continually imported from Palawan and supplies are shipped by naval vessel to personnel monthly.466 The Philippines argues that without the “umbilical cord” of the Philippines’ support, Thitu is—like Itu Aba—incapable of sustaining the habitation of even the small community that the Philippines maintains there.467

The Philippines’ experts take the same view. The Philippines notes that, at 0.21 square kilometres, West York is even smaller than Thitu and Itu Aba. Like Thitu, the Philippines considers West York to be a “rock” unable to sustain human habitation or economic life. According to the Philippines, there is no potable water and agriculture is impossible because the salinity of the water retards growth of introduced plants. There is no population, only a small observation post staffed by a few soldiers sustained by
outside supplies.

Accordingly, the Philippines submits that West York does not have conditions sufficient to sustain human habitation or an economic life.

The Philippines and its experts make similar submissions about the status of other high-tide features in the Spratly Islands, including North Danger Reef, South Danger Reef, Nanshan Island, Sand Cay, Loaita Island, and Swallow Reef.470

The Philippines considers the materials obtained by the Tribunal from the archives of the UK Hydrographic Agency to confirm that the Philippines has correctly categorised the remaining features as “rock[ s] as defined in Article 121(3).”471

The Philippines notes that the China Sea Directory fails to mention the existence of any inhabitants on the features,472
 with other reports describing only the faintest traces of human presence, such as wells with “brackish” water, as on
Loaita Island,473 or foundations of a “small hut”, as in the case of Thitu.474

The Philippines also notes the near-complete lack of vegetation on the features in question.475

Finally, the Philippines also considers that documents obtained by the Tribunal from France’s National Library and National Overseas Archives confirm that “the other features in the South China Sea are incapable of sustaining human habitation or economic life of their own.”

In this regard, the Philippines cites a 1949 internal French Government report which states that these “islands have no fixed population and carry only stunted vegetation.”477

[adroth]

PCA Case No. 2013-19

In the Matter of the South China Sea Arbitration

before the Aribitral Tribunal Constituted Under Annex VII to the 1982 United Nations Convention of the Law of the Sea

Between the Republic of the Philippines and the People's Republic of China

12 July 2016

https://pca-cpa.org/wp-content/uploads/sites/175/2016/07/PH-CN-20160712-Award.pdf

From page 84 of the document

5. Exceptions and Limitations to Jurisdiction

161. Finally, the Tribunal examined the subject matter limitations to its jurisdiction set out in Articles 297 and 298 of the Convention. Article 297 automatically limits the jurisdiction a tribunal may exercise over disputes concerning marine scientific research or the living resources of the exclusive economic zone. Article 298 provides for further exceptions from compulsory settlement that a State may activate by declaration for disputes concerning (a) sea boundary delimitations, (b) historic bays and titles, (c) law enforcement activities, and (d) military activities. By declaration on 25 August 2006, China activated all of these exceptions.

The key bit to understand the text above is Article 298, which states

http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf

Article 298

Optional exceptions to applicability of section 2

1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State may, without prejudice to the obligations arising under section 1, declare in writing that it does not accept any one or more of the procedures provided for in section 2 with respect to one or more of the following categories of disputes:

(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,
provided that a State having made such a declaration shall, when such a dispute arises subsequent to the entry into force of this Convention and where no agreement
within a reasonable period of time is reached in negotiations between the parties, at the request of any party to the dispute, accept submission of the matter to conciliation under Annex V, section 2; and provided further that any dispute that necessarily involves the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory shall be excluded from such submission;

(ii) after the conciliation commission has presented its report, which shall state the reasons on which it is based, the parties shall negotiate an agreement on the basis of that report; if these negotiations do not result in an agreement, the parties shall, by mutual consent, submit the question to one of the procedures provided for in section 2, unless the parties otherwise agree;

(iii) this subparagraph does not apply to any sea boundary dispute finally settled by an arrangement between the parties, or to any such dispute which is to be settled in
accordance with a bilateral or multilateral agreement binding upon those parties;

(b) disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law
enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2 or 3;
137

(c) disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it by the Charter of the United Nations, unless the Security Council decides to remove the matter from its agenda or calls upon the parties to settle it by the means provided for in this Convention.

2. A State Party which has made a declaration under paragraph 1 may at any time withdraw it, or agree to submit a dispute excluded by such declaration to any procedure specified in this Convention.

3. A State Party which has made a declaration under paragraph 1 shall not be entitled to submit any dispute falling within the excepted category of disputes to any procedure in this Convention as against another State Party, without the consent of that party.

4. If one of the States Parties has made a declaration under paragraph 1(a), any other State Party may submit any dispute falling within an excepted category against the declarant party to the procedure specified in such declaration.

5. A new declaration, or the withdrawal of a declaration, does not in any way affect proceedings pending before a court or tribunal in accordance with this article, unless the parties otherwise agree.

6. Declarations and notices of withdrawal of declarations under this article shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the States Parties.

[Ayoshi]

http://www.pna.gov.ph/articles/1066319

Palace open to bring arbitration win vs. China to UN
April 2, 2019, 7:53 pm

Panelo made this comment after former Foreign Affairs Secretary Alberto Del Rosario said the Philippines can bring the Permanent Court of Arbitration (PCA)’s ruling on the WPS before the UN body.

“Everything is possible. Kung (if) you’re talking of possibilities, maraming posible (there are a lot of possibilities). But whether magiging (it will be) effective or not is another story,” Panelo said.

He also said President Rodrigo R. Duterte will have the final word on whether the Philippine government would proceed with this move.

“Isa sa mga option iyon (That’s one of the options). I will let—I’m not the President, I’m just his Spokesman. It’s for the President’s decision. I’m just giving you my thoughts on it,” he added.

Panelo said he will also ask Department of Foreign Affairs (DFA) Secretary Teodoro Locsin Jr. “what are his thoughts on this”.

[adroth]

https://thediplomat.com/2019/04/g7-foreign-ministers-address-maritime-asia-north-korea-in-communique/

< Edited >

The statement marked the third year in a row the G-7 foreign ministers had referenced the Indo-Pacific, a concept favored by the United States and Japan to refer to the region extending from the western coast of India to the west coast of the United States.

As in previous years, the G-7 ministers noted their concern about disputes in the East and South China Seas — a particular concern for Japan and the United States, and increasingly France and the United Kingdom. “We emphasize the importance of ongoing negotiations for an effective code of conduct and welcome an agreement that does not derogate from the rights parties enjoy under international law or affect the rights of third parties,” the communiqué noted.

For the third year running, the ministers emphasized the importance of the July 12, 2016, ruling by a Hague-based tribunal in the Philippines’ 2013 case filed against China over its maritime entitlement claims in the South China Sea. That result was described as a “useful basis for further efforts to peacefully resolve disputes in the South China Sea.”

< Edited >

[adroth]

https://www.facebook.com/groups/rpdefense/permalink/2273830849369416/

Ambassador Rosario Manalo explains PH-China issues in PH Seas

https://youtu.be/9DaQYYb3tDc

[adroth]

Duterte confirms he will raise arbitral ruling in next China visit
By: Darryl John Esguerra - Reporter / @DJEsguerraINQ INQUIRER.net / 07:49 PM August 06, 2019

MANILA, Philippines—Speaking before Filipino-Chinese businessmen, President Rodrigo Duterte on Tuesday confirmed that he will raise the subject of the Philippines’ landmark arbitral ruling against China when he visits the Asian powerhouse later this month.

“‘Yung arbitral ruling, pag-usapan natin ‘yan. That’s why I’m going to China.,” Duterte said during the oath-taking of newly-elected officials of the Federation of Filipino-Chinese Chambers of Commerce and Industry, Inc.

Duterte is reportedly set to fly to China later this month and meet with Chinese President Xi Jinping.

< Edited >

However, Duterte noted that he will make sure not to provoke China in invoking the arbitral ruling that invalidated Beijing’s expansive nine-dash line claim in the South China Sea.

< Edited >

Read more: https://globalnation.inquirer.net/178685/duterte-confirms-he-will-raise-arbitral-ruling-in-next-china-visit#ixzz5w3xgRVFA
Follow us: @inquirerdotnet on Twitter | inquirerdotnet on Facebook

[adroth]

Comparing the PCA in the China vs PH case with the Nicaragua vs US ruling at the ICJ

Administrator's note: See related discussion here: https://www.facebook.com/groups/rpdefense/permalink/3042081239211036/

=====

Of Course China, Like All Great Powers, Will Ignore an International Legal Verdict
In ignoring an upcoming verdict on the South China Sea, Beijing is following well-established precedent by great powers.

By Graham Allison
July 11, 2016

https://thediplomat.com/2016/07/of-course-china-like-all-great-powers-will-ignore-an-international-legal-verdict/

< Edited >

The United States has never been sued under the Law of the Sea because – unlike China – Washington has not ratified the international agreement and is thus not bound by its rules. Expect Chinese commentators to emphasize this point in the mutual recriminations that will follow the Court’s announcement.

The closest analogue to the Philippines case involving the United States arose in the 1980s when Nicaragua sued Washington for mining its harbors. Like China, the United States argued that the International Court of Justice did not have the authority to hear Nicaragua’s case. When the court rejected that claim, the United States not only refused to participate in subsequent proceedings, but also denied the Court’s jurisdiction on any future case involving the United States, unless Washington explicitly made an exception and asked the Court to hear a case. If China followed that precedent, it could withdraw from the Law of the Sea Treaty altogether – joining the United States as one of the world’s only nations not party to the agreement.

In the Nicaragua case, when the Court found in favor of Nicaragua and ordered the United States to pay reparations, the U.S. refused, and vetoed six UN Security Council resolutions ordering it to comply with the court’s ruling. U.S. Ambassador to the UN Jeane Kirkpatrick aptly summed up Washington’s view of the matter when she dismissed the court as a “semi-legal, semi-juridical, semi-political body, which nations sometimes accept and sometimes don’t.”

Observing what permanent members of the Security Council do, as opposed to what they say, it is hard to disagree with realist’s claim that the PCA and its siblings in The Hague – the International Courts of Justice and the International Criminal Court – are only for small powers. Great powers do not recognize the jurisdiction of these courts – except in particular cases where they believe it is in their interest to do so. Thucydides’ summary of the Melian mantra – “the strong do as they will; the weak suffer as they must” – may exaggerate. But this week, when the Court finds against China, expect Beijing to do as great powers have traditionally done.

< Edited >


======

After the arbitration: Does non-compliance matter?
BY LAN NGUYEN AND TRUONG MINH VU | JULY 22, 2016

https://amti.csis.org/arbitration-non-compliance-matter/

< Edited >

Nicaragua v United States
In the Nicaragua v United States case, after the ICJ found that it had jurisdiction to entertain Nicaragua’s claims, the United States decided not to participate in the merits phase of the case. The United States further showed its disapproval by terminating the 1955 Treaty on Friendship, Commerce, and Navigation between Nicaragua and the United States and withdrawing its declaration under Article 36(2) of the UN Charter, which together provided the basis for the court’s jurisdiction in the case. In its 1986 judgment on the merits, the ICJ held that the United States had violated both treaty law and customary international law by supporting the Contra rebels, and ordered the United States to refrain from all such acts and make reparation to Nicaragua.

Instead the United States ignored Nicaragua’s request for negotiations on compensation and refused to stop its support for the Contras. Faced with the United States’ outright defiance of the decision, Nicaragua tried to enforce the judgment through various platforms. Article 94(2) of the UN Charter says, “If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.” Nicaragua accordingly turned to the UN Security Council, but several draft resolutions were never adopted due to the United States’ veto as a permanent member of the council.

Nicaragua then turned to the UN General Assembly, where its endeavors proved to be more successful. The General Assembly adopted four resolutions calling for “full and immediate compliance with the Judgment of the International Court of Justice.” The United States, however, continued to say that the ICJ did not have jurisdiction in the case. Even as it began to bring claims before the ICJ again for damages, Nicaragua elected a new president who was backed by the United States and subsequently discontinued the proceedings in 1992.

The Nicaragua v United States case was perhaps the most prominent example of a state that did not appear before an international court and then openly defied its final decisions. In some ways, Nicaragua did not succeed in securing full U.S. compliance with the judgment. However, the litigation was not at all useless.

Its strategy to resort to the Security Council and General Assembly had the effect of securing publicity for the issue, which helped convince the U.S. Congress to cut-off aid to the Contras in 1988. The United States subsequently lifted its trade embargo against Nicaragua in 1990 and provided the new government of Violeta Chamorro with a significant aid package. So, U.S. non-compliance notwithstanding, Nicaragua’s initiation of the case and its subsequent strategy eventually helped secure its intended outcome.

< Edited >

The Nicaragua v United States and Arctic Sunrise cases show that non-appearance does not necessarily lead to permanent non-compliance, whatever the rhetoric used. It may be tempting, therefore, to draw an analogy between these and the Philippines v China case by envisioning a scenario in which Beijing, despite its rejection of the arbitration, will come to terms and comply, at least in large part, with the arbitral award. Nevertheless, one should be cautious about jumping to such conclusions. The main reason being that the subject-matter of the cases differs fundamentally.

< Edited >