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Thayer South China Sea: The Philippines Takes South China Sea Dispute to UNCLOS Arbitral Tribunal.

Thayer South China Sea: The Philippines Takes South China Sea Dispute to UNCLOS Arbitral Tribunal.

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Published by Carlyle Alan Thayer

Six briefing papers that analyse the Philippines' decision to take its territorial dispute with China in the South China Sea to an Arbitral Tribunal establshed under the United Nations Convention on Law of the Sea.

Six briefing papers that analyse the Philippines' decision to take its territorial dispute with China in the South China Sea to an Arbitral Tribunal establshed under the United Nations Convention on Law of the Sea.

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Categories:Types, Research, Law
Published by: Carlyle Alan Thayer on Jan 24, 2013
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09/17/2013

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Background Briefing:South China Sea: PhilippinesTakes Case to UN - 1Carlyle A. ThayerJanuary 23, 2013
[client name deleted]Q1. The Philippines announced today that it is taking the South China Sea issue to anUNCLOS tribunal (see story below). Does this change anything? Will China just refuseto participate, and in those circumstances, the tribunal would be fairly meaningless?
Philippines sends China to UN arbitral tribunal
English.news.cn2013-01-22
 
16:32:51MANILA, Jan. 22 (Xinhua) -- The Philippine Department of Foreign Affairs (DFA)announced Tuesday that the country had brought the South China issue to theArbitral Tribunal under the United Nations Convention on the Law of the Sea(UNCLOS).Philippine Foreign Secretary Del Rosario said at a press conference on Tuesday thatthe DFA handed a note verbale to Chinese ambassador Ma Keqing Tuesdayafternoon.ANSWER: China opted out of arbitral clauses of UNCLOS when it ratified theconvention. Nonetheless, the Arbitral Tribunal can take on a submission by thePhilippines and issue an award. If this award supported the Philippines, it would beon better legal and moral grounds than China. By taking this action the Philippines isdefying China whose deputy foreign minister, Fu Yuing, told Secretary del Rosarionot to internationalize their dispute by (a) going to the UN (b) raising it with thirdparties including allies [read the US] and (c) not to hold high-profile public pressconferences.Q2. China is not covered by the mandatory dispute resolution mechanisms of ITLOS?ANSWER: Yes in a declaration made on August 25, 2006, after ratification, Chinadecl
ared that it “does not accept any of the procedures provided for in Section 2 of 
Part XV of the Convention with respect to all the categories of disputes referred to in
paragraph 1 (a) (b) and (c) of Article 298 of the Convention.”
 
Thayer Consultancy
ABN # 65 648 097 123
 
2
Part XV, Article 297 (invoked by the Philippines) includes four choices for arbitration:International Tribunal for the Law of the Sea; International Court of Justice; anarbitral tribunal; and a special arbitral tribunal.Article 298 includes (a) delimitation of territorial sea, (b) delimitation of EEZ and (c)delimitation of the continental shelf.Q3. Are there no practical consequences if China were to ignore an advisory opinion?
ANSWER: Yes. But China’s 9 dash line claim would be undermined.
 From my reading of UNCLOS any signatory has the right to ask for a ruling on theinterpretation of UNCLOS to an arbitral tribunal provided it has notified the otherparty(ies) to the dispute. The Philippines, after notifying China, can lodge anapplication for an arbitral tribunal. China is required to respond. The Tribunal iscomposed of 5 persons, one nominated by each party and the other three by mutualagreement. The Arbitral Tribunal has the power to determine whether it has jurisdiction over the matters brought before it.
If these conditions are met “theaward shall be final… it shall be complied with by the parties to the dispute” (Annex
VII, Article 11). But China cannot be compelled to participate in arbitral proceedingsbecause of its Declaration of August 25, 2006.S
uggested citation: Carlyle A. Thayer, “
South China Sea: Philippines Takes Case to UN- 1
,”
Thayer Consultancy Background Brief 
, January 23, 2013.
 
 
Background Briefing:South China Sea: PhilippinesTakes Case to UN - 2Carlyle A. ThayerJanuary 23, 2013
[client name deleted]Foreign Secretary of Philippines announced the Philippines will unilaterally bring itsScarborough Shoal dispute wit China to the International Tribunal on the Law of theSea (ITLOS
) in spite of Beijing’s rejection. Some cast doubt that
ITLOS has no powerin solving the dispute in the case that one of the parties in the dispute disapproves.So, what's behind the move of Philippines and how could it affect the situation of South China Sea dispute? What is your assessment?ANSWER: China opted out of the binding dispute settlement mechanism clauses of UNCLOS just after it ratified the convention. Nonetheless, the UNCLOS arbitraltribunal can take on a submission by the Philippines and issue an award. If thissupported the Philippines, the Philippines would be on better legal and moralgrounds than China. By taking this current action the Philippines is defying Chinawhose deputy foreign minister, Fu Ying, told Secretary del Rosario not tointernationalize their dispute by (1) going to the UN, (2) raising it with third partiesincluding allies [read the US], and (3) not to hold high-profile public pressconferences. In other words, the Philippines has opened a legal front against Chinesewishes. China
s demand that the South China Sea not be internationalized is nowdead in the water.
Suggested citation: Carlyle A. Thayer, “
South China Sea: Philippines Takes Case to UN- 2
,”
Thayer Consultancy Background Brief 
, January 23, 2013.
Thayer Consultancy
ABN # 65 648 097 123

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