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

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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  (note:  new link revised 6-24-2019)

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.

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


--- Quote from: dr demented on September 25, 2016, 02:21:24 PM ---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

--- End quote ---

From page 84 of the document

--- Quote ---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.
--- End quote ---

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

--- Quote ---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;

(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.
--- End quote ---


--- Quote ---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”.
--- End quote ---


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