the dispute between philippines and china concerning territorial claims in the west philippine sea

7/29/2019 The Dispute between Philippines and China Concerning Territorial Claims in the West Philippine Sea

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Philippine Case againstChinas Claims in the West

Philippine Sea

Faye Cience C. Bohol2ndBlock 3


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PERTINENT JUDICIAL BODIES

AND LAWS

ITLOS

An independent and diverse body of 21 judges

who are experts in maritime law.

The United Nations Convention on the Law of the

Sea (UNCLOS)

The underlying and most pertinent body of

legislature that is most applicable in maritime

boundary disputes.


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PERTINENT JUDICIAL BODIESAND LAWS

Section 2 of Part XV, Art. 286 of the UNCLOS

If States have a disagreement with regards to

the interpretation of a certain aspect of

UNCLOS and they do not reach an agreementvia normal negotiations, one State can submit

the dispute unilaterally to a court/tribunal for

review.

This process is known in the legal community as

the Compulsory Dispute Settlement (CDS)

system.


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PERTINENT JUDICIAL BODIESAND LAWS

Annex VII Arbitration under UNCLOS

A rather unique feature of UNCLOS is that it allows, under

certain conditions, a State Party to bring another State

Party to arbitration even without the latters consent. This is

allowed under Annex VII when States Parties are unable to

settle a dispute by negotiation, third party resolution or other

peaceful means.

The absence of a party or failure of a party to defend its case

shall not constitute a bar to the proceedings.

An Annex VII arbitral tribunal is composed of five members

free to determine its own procedure. Three members are

jointly selected by the convening parties of the dispute. The

remaining two are unilaterally appointed by each party


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Dispute Concerning the Delimitation ofthe Maritime Boundary between

Bangladesh and Myanmar in the Bay

of Bengal(Case No.16 of ITLOS)

An appropriate precedent to the Philippine case against

Chinas claims in the West Philippine Sea.


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Dispute Concerning On 14 March 2012, the International Tribunal for the

Law of the Sea (ITLOS) released its case judgement.

The first maritime boundary case for ITLOS.

Border delimitation between modern-day Bangladeshand Myanmar re-emerged 30 years after the respective

delegates of each country signed the Agreed M inutes

between the Bangladesh Delegation and the Burmese

Delegation regarding the Delimitation of the Maritime

Boundary between the Two Countr ies(the 1974 Agreed

Minutes) on 23 November 1974.


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Dispute Concerning Jared Bissinger, a research fellow at the National Bureau

of Asian Research, argues that the dispute resurfacedbecause of two primary factors: new discoveries ofhydrocarbon gas reserves in the Bay of Bengal and

increased demand for natural gas in both countries.

The salient points of the 2008 Agreed Minutes concernthe classification of islands, in accordance with Article121 of UNCLOS.

According to Article 121 UNCLOS, only islands that areable to sustain human habitation or economic life of theirown would be subject to the Convention in considerationsdealing with EEZ and continental shelf.


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Dispute Concerning It was proposed that the area of land known as St. Martins

Island be considered as an island, in accordance with Article 121

of UNCLOS (UNCLOS 1982). However, Oyster Island off the

coast of Myanmar would not be considered an island, because it

was deemed uninhabitable due to its lack of fresh water and itsinability to sustain economic life or any permanent population.

On 17 October 2008, two Myanmar Navy vessels escorted four

survey ships to begin exploratory drilling approximately 50

nautical miles southwest of St. Martins Island in the contested

area. Bangladesh responded by calling for a suspension of

Myanmars exploratory drilling until the delimitation of

maritime boundaries had been determined, and also threatened

the use of force against Myanmar with the dispatch of three

Bangladesh Naval vessels.


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Dispute Concerning The lack of any resolution led Bangladesh to pursue third-

party arbitration in accordance with Annex VII UNCLOS

in October 2009.

However, Myanmar chose not to settle the dispute underAnnex VII, but opted rather for arbitration through ITLOS

and concurrent bilateral negotiations.

Nevertheless, Myanmar and Bangladesh decided to pursue

a settlement through ITLOS. It is worth noting that in unrelated Annex VII arbitration

between India and Bangladesh in 2010, both parties failed

to agree on the three joint members, but bilateral

negotiations still ensued.


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Dispute Concerning

Legal Proceedings

To initiate the legal proceedings under ITLOS, both

countries had to submit by declaration, according to

Article 287 paragraph 1, UNCLOS, that it accepts the

jurisdiction of the International Tribunal for the Lawof the Sea for the settlement of the dispute between the

Union of Myanmar and the Peoples Republic of

Bangladesh relating to the delimitation of maritime

boundary between the two countries in the Bay of

Bengal.

According to ITLOS, the maritime area in dispute was

283,471 square kilometres.


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Dispute ConcerningLegal Proceedings

Submission of Territorial Sea Delimitation shows the

initial respective proposed demarcations from

Bangladesh and Myanmar. Clearly, Myanmars

proposed demarcation attempted to secure the naturalgas deposits where the October 2008 exploratory

drilling and subsequent stand-off occurred southwest of

Bangladeshs St. Martins Island.

In oral arguments during the September 2011 hearing,the Bangladesh delegation argued that points 1 to 7

submitted to ITLOS coincided with both the 1974 and

2008 Agreed Minutes.


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Rather than seeing them as binding agreements, Myanmar

stated that the 1974 and 2008 Agreed Minutes served only

as a record of issues discussed, rather than a finalized

resolution.

Bangladesh submitted affidavits from Bangladeshi

fishermen and naval officers as evidence of the informal

boundary that they believed had existed since 1974.

ITLOS ruled that this failed to meet the requirements of atacit or de facto agreement because the submitted affidavits

reflect fishermens opinions and naval officers bias.


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The test for historical tacit or de facto agreement in Article

15 UNCLOS states:

Where the coasts of two States are opposite or adjacent to

each other, neither of the two States is entitled, failingagreement between them to the contrary, to extend its

territorial sea beyond the median line every point of which

is equidistant from the nearest points on the baselines from

which the breadth of the territorial seas of each of the twoStates is measured. The above provision does not apply,

however, where it is necessary by reason of historic title or

other special circumstances to delimit the territorial seas of

the two States in a way which is at variance therewith.


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Demarcation involved a three-step process: first,equidistant lines are drawn based on any relevantcircumstances and are taken into consideration inaccordance with Article 15 of UNCLOS.

While the first step is more objective, the second stepinvolves taking into consideration the concavity of coasts,island presence, relative coastal length andconsiderations relating to economic resources, fisheries,

security concerns and navigation. This second stepconsiders those relevant factors in making adjustments toensure an equitable solution.

Lastly, a test for disproportionality is made to reaffirm

the equitable solution.


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In the absence of a pre-existing and legally-binding agreement,

the Tribunal then looked to determine if any historic title or

other special circumstances were relevant to this specific case.

The Tribunal determined, with no contest from either party, that

no historical titles were relevant to this case.

The Tribunal opted for the middle ground. It awarded St.

Martins Island its own 12 nautical mile territorial sea, but did

not allow for its own relative EEZ or continental shelf.

The Tribunal made a judgement on the delimitation of theterritorial waters. It further judged that the EEZ would follow

the natural prolongation of the demarcation line on a 215 degree

angle (relatively perpendicular to the Myanmar coast) and

extending to 200 nautical miles.


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Lastly, the Tribunal considered continental shelf claims

beyond 200 nautical miles. Myanmar contested that the

Tribunal did not have the jurisdiction to make the

stated judgement. However, the Tribunal referred toArticles 76 and 83 of UNCLOS, which explicitly define

continental shelf and specifically denote clauses for

entitlement beyond 200 nautical miles.

In the end, both Myanmar and Bangladesh willinglyaccepted the Tribunals decision and both have

proceeded with oil and gas exploration partnerships.


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The Philippine Territorial Case

against ChinaInvolving the West Philippine

Sea

Chinas nine-dash line claim on the South ChinaSea covers nearly all of the West Philippine Sea.

Vietnam, Malaysia and Brunei also lay claim to

potentially rich territories in the South China Sea.


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The Philippine Territorial

THE WEST PHILIPPINE SEA DISPUTE MAP


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The Philippine Territorial The Philippines has exhausted almost all political and

diplomatic avenues for a peaceful negotiated settlement of itsmaritime dispute with China, but to no avail.

On 22 January 2013, the Philippines formally conveyed toChina the Philippine Notification and Statement of Claimthat challenges before the Arbitral Tribunal the validity ofChinas nine-dash line claim and to desist from unlawfulactivities that violate the sovereign rights and jurisdiction ofthe Philippines under the UNCLOS.

China rejected the UN arbitration. It urges the Philippines toget back to bilateral negotiations to settle the dispute.

The Notification initiated the arbitral proceedings underArticle 287 and Annex VII of UNCLOS. The proceedingscontinue despite Beijings refusal to participate in them.


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The Philippine Territorial The Philippines is requesting the Tribunal to, among others:

1. Declare that Chinas rights to maritime areas in the SCS,

like the rights of the Philippines, are established by

UNCLOS, and consist of its rights to a Territorial Sea and

Contiguous Zone under Part II of UNCLOS, to an EEZ

under Part V, and to a Continental Shelf under Part VI

2. Declare that Chinas maritime claims in the SCS based on its

so-called nine-dash line are contrary to UNCLOS and invalid

3. Require China to bring its domestic legislation into

conformity with its obligations under UNCLOS; and

4. Require China to desist from activities that violate the rights

of the Philippines in its maritime domain in the WPS.


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The Implications of the Disputebetween Bangladesh and

Myanmar in Philippine Case

against Chinas Claims in the

West Philippine Sea


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The Implications Bissingers identification of the prospect of natural gas

exploration as the proximate cause leading to the re-emergence of the dispute between Bangladesh andMyanmar has similarities with the most recent April 2012

standoff between Chinese and Philippine vessels over thedisputed Spratly Islands in the South China Sea.

ITLOS judges, who ruled the proceeding betweenBangladesh and Myanmar, are field experts in both the

maritime scientific and legal aspects necessary toadjudicate the maritime boundary demarcation case.Therefore, this case could set a precedent for the disputeover the territoriality of the South China Sea.


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The Implications Unlike the Myanmar-Bangladesh Bay of Bengal

ITLOS dispute, the South China Sea issue isinherently more complex in that China, Taiwan,Vietnam, Malaysia, Brunei, and the Philippines

have overlapping claims. However, all parties to the South China Sea dispute

are ratified signatory members to UNCLOS(though Taiwan falls under Chinas membership).

Challenges arise in that, although the relevantcountries are all members of UNCLOS, accordingto Article 287 UNCLOS, they must each declareITLOS jurisdiction in settlement of the dispute.


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The Implications China, which has a great deference for bilateral negotiations, is

averse to third-party settlements especially multilateral ones.

When China joined UNCLOS in 1996, it explicitly rejected all

four forms of adjudication explicitly stated in Article 298

UNCLOS, including ITLOS, ICJ, ad hoc arbitration, and

special arbitral tribunal. However, as with the Myanmar-Bangladesh case, bilateral

negotiations could also continue in parallel to Tribunal

proceedings.

ITLOS judges justified the three-step procedure as thefoundation for the resolution of further maritime boundary

claims. One should not try to reintroduce other methods of

delimitation when implementing the equidistance/relevant

circumstances rule. It would amount to reintroducing the very

elements of subjectivity progressively reduced over the years.


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The Implications Article 15 UNCLOS would also be relevant to South China

Sea resolution in that, unlike in the Myanmar-Bangladeshcase, which did not have historical ties nor special

circumstances, the South China Sea dispute likely will.

The Peoples Republic of China has referenced its historical

maritime charts that show the 1947 Republic of Chinasterritory in an eleven-dashed line that extends into the EEZ

of multiple countries and includes both the Paracel and

Spratly Islands. It is peculiar to note that this issue also

increases in complexity as the PRC references only a nine-dashed line in its current claims, omitting two dashes in the

Gulf of Tonkin.

It is likely, that other countries may also submit evidence to

support historical claims to islands in the South China Sea.


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The Implications Judge Wolfrums recommendation for clarifying special

circumstances in regards to the definition andclassification of islands under Article 121 UNCLOS willbe of particular importance in the Spratly Islands claims.

However, this case does add legal precedence in theTribunals conclusion that Oyster Island should not beconsidered an Island, according to Article 121 UNCLOS,because it has no permanent population, cannot sustain

life, and has no economic activities. Certain rocks and reefs in the South China Sea, most

likely, also would not classify as islands under Article121 UNCLOS. This has significant implication in dealing

with the EEZs of the claimants.


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The Implications As for the cases implications for future maritime

disputes, ITLOS has set precedence in adjudicating its

first maritime boundary claim.

Its relatively light docket and concomitant expediencyin adjudication, as well as expertise in maritime law,

are hallmarks for its value as an international legal

body for resolving disputes of this nature.


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CHALLENGES TO THE

INTERNATIONAL PROCEEDING

INVOLVING THE Philippine Caseagainst Chinas Claims in the

West Philippine Sea


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Scope of ITLOS Jurisdiction

The viability of the Philippines entire case depends on

how it has phrased its dispute, what aspects of

interpretation of UNCLOS it is challenging, and

whether or not the ITLOS tribunal determines it hasthe jurisdiction to rule on any of the points that the

Philippines is challenging.

UNCLOS does not give ITLOS the power to directly

review sovereignty or maritime delimitations disputes.ITLOS can only review disputes with regards to

INTERPRETTATION AND APPLICATIONS of

UNCLOS.


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Points of Dispute that the

Philippines Brought Forth1) Can the 9-dash line serve as basis for valid maritimeclaims in the South China Sea?

This argument assumes China is taking its most expansiveinterpretation of the 9-dash line, claiming sovereignty overnot only the land features but also exclusive rights to allsurrounding waters and therein-contained resources.

This however is an inaccurate premise, as China has notofficially claimed the 9-dash line. Rather, it is a legallyambiguous line whose interpretation is hotly debated evenwithin Chinas domestic law and scholarship.

The Philippines is trying to beat to the chase and get ITLOSto pre-emptively rule out the legality of the 9-dash line. Someexperts believe that the tribunal can potentially claimjurisdiction to review this point.


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Points of Dispute that thePhilippines Brought Forth

2) Island status of low-tide elevations in the Spratlys andineligibility for territorial sea

UNCLOS contains certain clauses on what defines a land

feature as an island, an important determination because it

decides if a land feature can generate 12 nautical miles (n.m.)of territorial sea and/or 200 n.m. of an EEZ.

This first requirement for a land feature to qualify as an

island is that it must be above-water in high tide. The

Philippines asserts that certain disputed low-tide features inthe Spratlys, specifically Mischief Reef, McKennan Reef,

Gavin Reef, and Subi Reef, can NOT qualify as islands or

rocks and therefore have no territorial seas, even if the

occupying Claimant constructed above-tide infrastructure onthe feature.


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However, a big counterargument is that even if

these features dont qualify as islands on

their own, they still lie within the territorial seas

of larger disputed land features that can beclaimed as islands.


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3) Island status of high-tide elevations in theSpratlys and ineligibility for EEZs The second requirement for a land feature to qualify as

an island that can support a 200 n.m. EEZ is that the

land feature must be capable of supporting humanhabitation and/or independent economic activity.Otherwise, the feature is just a rock and can onlyqualify for 12 n.m. of territorial waters.

With this point, the Philippines is asking ITLOS to rule

whether or not a land feature occupied by a Claimantwho has built infrastructure on them to supportlife/economic activity is sufficient to deem it more than arock. The features specifically in question areScarborough Shoal, Johnson South Reef, Cuarteron

Reef, and Fiery Cross Reef.


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Same as above, the complication in this line of

argument is that these land features can fall in

to the 200 n.m. EEZ of other larger features

that could be islands making the argumentagain, moot.

the dispute between philippines and china concerning territorial claims in the west philippine sea

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