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Faye Cience C. Bohol 2nd – Block 3
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.
PERTINENT JUDICIAL BODIES AND 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 agreement via 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.
This is allowed under Annex VII when States Parties are unable to settle a dispute by negotiation. a State Party to bring another State Party to arbitration even without the latter‟s consent. – The absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. under certain conditions. – An Annex VII arbitral tribunal is composed of five members free to determine its own procedure. third party resolution or other peaceful means. The remaining two are unilaterally appointed by each party .PERTINENT JUDICIAL BODIES AND LAWS • Annex VII Arbitration under UNCLOS – A rather unique feature of UNCLOS is that it allows. Three members are jointly selected by the convening parties of the dispute.
.Dispute Concerning the Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Case No.16 of ITLOS) An appropriate precedent to the Philippine case against China‟s claims in the West Philippine Sea.
. the International Tribunal for the Law of the Sea (ITLOS) released its case judgement.Dispute Concerning… • On 14 March 2012. • The first maritime boundary case for ITLOS. • Border delimitation between modern-day Bangladesh and Myanmar re-emerged 30 years after the respective delegates of each country signed the Agreed Minutes between the Bangladesh Delegation and the Burmese Delegation regarding the Delimitation of the Maritime Boundary between the Two Countries (the „1974 Agreed Minutes‟) on 23 November 1974.
Dispute Concerning… • Jared Bissinger. . • The salient points of the 2008 Agreed Minutes concern the classification of islands. only islands that are able to sustain human habitation or economic life of their own would be subject to the Convention in considerations dealing with EEZ and continental shelf. in accordance with Article 121 of UNCLOS. a research fellow at the National Bureau of Asian Research. argues that the dispute resurfaced because of two primary factors: new discoveries of hydrocarbon gas reserves in the Bay of Bengal and increased demand for natural gas in both countries. • According to Article 121 UNCLOS.
. in accordance with Article 121 of UNCLOS (UNCLOS 1982).Dispute Concerning… • It was proposed that the area of land known as St. and also threatened the use of force against Myanmar with the dispatch of three Bangladesh Naval vessels. two Myanmar Navy vessels escorted four survey ships to begin exploratory drilling approximately 50 nautical miles southwest of St. Martin‟s Island in the contested area. However. Bangladesh responded by calling for a suspension of Myanmar‟s exploratory drilling until the delimitation of maritime boundaries had been determined. because it was deemed uninhabitable due to its lack of fresh water and its inability to sustain economic life or any permanent population. Martin‟s Island be considered as an island. Oyster Island off the coast of Myanmar would not be considered an island. • On 17 October 2008.
Dispute Concerning… • The lack of any resolution led Bangladesh to pursue thirdparty arbitration in accordance with Annex VII UNCLOS in October 2009. Myanmar chose not to settle the dispute under Annex VII. Myanmar and Bangladesh decided to pursue a settlement through ITLOS. but opted rather for arbitration through ITLOS and concurrent bilateral negotiations. • It is worth noting that in unrelated Annex VII arbitration between India and Bangladesh in 2010. • Nevertheless. • However. both parties failed to agree on the three joint members. . but bilateral negotiations still ensued.
Dispute Concerning… Legal Proceedings • To initiate the legal proceedings under ITLOS. that it accepts the jurisdiction of the International Tribunal for the Law of the Sea for the settlement of the dispute between the Union of Myanmar and the People‟s Republic of Bangladesh relating to the delimitation of maritime boundary between the two countries in the Bay of Bengal. according to Article 287 paragraph 1. . both countries had to submit by declaration. • According to ITLOS.471 square kilometres. the maritime area in dispute was 283. UNCLOS.
Martin‟s Island. Clearly. . the Bangladesh delegation argued that points 1 to 7 submitted to ITLOS coincided with both the 1974 and 2008 Agreed Minutes. • In oral arguments during the September 2011 hearing. Myanmar‟s proposed demarcation attempted to secure the natural gas deposits where the October 2008 exploratory drilling and subsequent stand-off occurred southwest of Bangladesh‟s St.Dispute Concerning… Legal Proceedings • Submission of Territorial Sea Delimitation shows the initial respective proposed demarcations from Bangladesh and Myanmar.
Dispute Concerning… Legal Proceedings .
Myanmar stated that the 1974 and 2008 Agreed Minutes served only as a record of issues discussed. rather than a finalized resolution. . • ITLOS ruled that this failed to meet the requirements of a tacit or de facto agreement because the submitted affidavits reflect fishermen‟s opinions and naval officers‟ bias. • Bangladesh submitted affidavits from Bangladeshi fishermen and naval officers as evidence of the informal boundary that they believed had existed since 1974.Dispute Concerning… Legal Proceedings • Rather than seeing them as binding agreements.
Dispute Concerning… Legal Proceedings • 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. 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. failing agreement 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 two States is measured. The above provision does not apply. however.
the second step involves taking into consideration the concavity of coasts. a test for disproportionality is made to reaffirm the equitable solution. equidistant lines are drawn based on any relevant circumstances and are taken into consideration in accordance with Article 15 of UNCLOS. security concerns and navigation”.Dispute Concerning… Legal Proceedings • Demarcation involved a three-step process: first. fisheries. relative coastal length and “considerations relating to economic resources. • While the first step is more objective. . • Lastly. island presence. This second step considers those relevant factors in making adjustments to ensure an equitable solution.
• The Tribunal opted for the middle ground. 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.Dispute Concerning… Legal Proceedings • 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. It awarded St. . Martin‟s Island its own 12 nautical mile territorial sea. The Tribunal determined. but did not allow for its own relative EEZ or continental shelf. that no historical titles were relevant to this case. with no contest from either party. • The Tribunal made a judgement on the delimitation of the territorial waters.
Dispute Concerning… Legal Proceedings .
Myanmar contested that the Tribunal did not have the jurisdiction to make the stated judgement. • In the end. which explicitly define “continental shelf” and specifically denote clauses for entitlement beyond 200 nautical miles. the Tribunal referred to Articles 76 and 83 of UNCLOS. the Tribunal considered continental shelf claims beyond 200 nautical miles. both Myanmar and Bangladesh willingly accepted the Tribunal‟s decision and both have proceeded with oil and gas exploration partnerships. However.Dispute Concerning… Legal Proceedings • Lastly. .
Malaysia and Brunei also lay claim to potentially rich territories in the South China Sea.The Philippine Territorial Case against China Involving the West Philippine Sea China‟s nine-dash line claim on the South China Sea covers nearly all of the West Philippine Sea. . Vietnam.
The Philippine Territorial… THE WEST PHILIPPINE SEA DISPUTE MAP .
but to no avail. • The Notification initiated the arbitral proceedings under Article 287 and Annex VII of UNCLOS. • China rejected the UN arbitration. It urges the Philippines to get back to bilateral negotiations to settle the dispute. . the Philippines formally conveyed to China the Philippine Notification and Statement of Claim that challenges before the Arbitral Tribunal the validity of China‟s nine-dash line claim and to desist from unlawful activities that violate the sovereign rights and jurisdiction of the Philippines under the UNCLOS.The Philippine Territorial… • The Philippines has exhausted almost all political and diplomatic avenues for a peaceful negotiated settlement of its maritime dispute with China. The proceedings continue despite Beijing‟s refusal to participate in them. • On 22 January 2013.
Require China to desist from activities that violate the rights of the Philippines in its maritime domain in the WPS. and 4. Declare that China‟s rights to maritime areas in the SCS.The Philippine Territorial… • The Philippines is requesting the Tribunal to. and consist of its rights to a Territorial Sea and Contiguous Zone under Part II of UNCLOS. Declare that China‟s maritime claims in the SCS based on its so-called nine-dash line are contrary to UNCLOS and invalid 3. . and to a Continental Shelf under Part VI 2. among others: 1. Require China to bring its domestic legislation into conformity with its obligations under UNCLOS. to an EEZ under Part V. are established by UNCLOS. like the rights of the Philippines.
The Implications of the Dispute between Bangladesh and Myanmar in Philippine Case against China’s Claims in the West Philippine Sea .
The Implications • Bissinger‟s identification of the prospect of natural gas exploration as the proximate cause leading to the reemergence of the dispute between Bangladesh and Myanmar has similarities with the most recent April 2012 standoff between Chinese and Philippine vessels over the disputed Spratly Islands in the South China Sea. Therefore. • ITLOS judges. who ruled the proceeding between Bangladesh and Myanmar. . are field experts in both the maritime scientific and legal aspects necessary to adjudicate the maritime boundary demarcation case. this case could set a precedent for the dispute over the territoriality of the South China Sea.
Brunei. Taiwan. • Challenges arise in that. they must each declare ITLOS jurisdiction in settlement of the dispute. the South China Sea issue is inherently more complex in that China. all parties to the South China Sea dispute are ratified signatory members to UNCLOS (though Taiwan falls under China‟s membership). Malaysia. Vietnam. although the relevant countries are all members of UNCLOS. and the Philippines have overlapping claims. .The Implications • Unlike the Myanmar-Bangladesh Bay of Bengal ITLOS dispute. • However. according to Article 287 UNCLOS.
It would amount to reintroducing the very elements of subjectivity progressively reduced over the years. is averse to third-party settlements especially multilateral ones. and “special arbitral tribunal”. • However. bilateral negotiations could also continue in parallel to Tribunal proceedings. as with the Myanmar-Bangladesh case. including ITLOS. ICJ. • When China joined UNCLOS in 1996. it explicitly rejected all four forms of adjudication explicitly stated in Article 298 UNCLOS. ad hoc arbitration. which has a great deference for bilateral negotiations. One should not try to reintroduce other methods of delimitation when implementing the equidistance/relevant circumstances rule.The Implications • China. . • ITLOS judges justified the three-step procedure as the foundation for the resolution of further maritime boundary claims.
• The People‟s Republic of China has referenced its historical maritime charts that show the 1947 Republic of China‟s territory in an eleven-dashed line that extends into the EEZ of multiple countries and includes both the Paracel and Spratly Islands. • It is likely. that other countries may also submit evidence to support historical claims to islands in the South China Sea. It is peculiar to note that this issue also increases in complexity as the PRC references only a ninedashed line in its current claims. omitting two dashes in the Gulf of Tonkin. which did not have historical ties nor special circumstances. unlike in the Myanmar-Bangladesh case. .The Implications • Article 15 UNCLOS would also be relevant to South China Sea resolution in that. the South China Sea dispute likely will.
according to Article 121 UNCLOS. • Certain rocks and reefs in the South China Sea. this case does add legal precedence in the Tribunal‟s conclusion that Oyster Island should not be considered an Island. also would not classify as “islands” under Article 121 UNCLOS. This has significant implication in dealing with the EEZs of the claimants. cannot sustain life. . most likely. and has no economic activities.The Implications • Judge Wolfrum‟s recommendation for clarifying special circumstances in regards to the definition and classification of islands under Article 121 UNCLOS will be of particular importance in the Spratly Islands claims. because it has no permanent population. • However.
• Its relatively light docket and concomitant expediency in adjudication. . are hallmarks for its value as an international legal body for resolving disputes of this nature. as well as expertise in maritime law. ITLOS has set precedence in adjudicating its first maritime boundary claim.The Implications • As for the case‟s implications for future maritime disputes.
CHALLENGES TO THE INTERNATIONAL PROCEEDING INVOLVING THE Philippine Case against China’s Claims in the West Philippine Sea .
Scope of ITLOS Jurisdiction • The viability of the Philippine‟s entire case depends on how it has phrased its dispute. • 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. what aspects of interpretation of UNCLOS it is challenging. and whether or not the ITLOS tribunal determines it has the jurisdiction to rule on any of the points that the Philippines is challenging. .
• This however is an inaccurate premise. as China has not officially claimed the “9-dash line”. . Rather. it is a legally ambiguous line whose interpretation is hotly debated even within China‟s domestic law and scholarship. • The Philippines is trying to beat to the chase and get ITLOS to pre-emptively rule out the legality of the 9-dash line.Points of Dispute that the Philippines Brought Forth 1) Can the “9-dash line” serve as basis for valid maritime claims in the South China Sea? • This argument assumes China is taking its most expansive interpretation of the “9-dash line”. claiming sovereignty over not only the land features but also exclusive rights to all surrounding waters and therein-contained resources. Some experts believe that the tribunal can potentially claim jurisdiction to review this point.
can NOT qualify as “islands” or “rocks” and therefore have no territorial seas. McKennan Reef. The Philippines asserts that certain disputed low-tide features in the Spratlys. and Subi Reef. of an EEZ.m. .m. an important determination because it decides if a land feature can generate 12 nautical miles (n.Points of Dispute that the Philippines Brought Forth 2) “Island” status of low-tide elevations in the Spratly‟s and ineligibility for territorial sea • UNCLOS contains certain clauses on what defines a land feature as an “island”. • This first requirement for a land feature to qualify as an “island” is that it must be above-water in high tide. Gavin Reef. specifically Mischief Reef.) of territorial sea and/or 200 n. even if the occupying Claimant constructed above-tide infrastructure on the feature.
.Points of Dispute that the Philippines Brought Forth – However. a big counterargument is that even if these features don‟t qualify as “islands” on their own. they still lie within the territorial seas of larger disputed land features that can be claimed as “islands”.
– With this point. EEZ is that the land feature must be capable of supporting human habitation and/or independent economic activity. The features specifically in question are Scarborough Shoal. . of territorial waters. the feature is just a “rock” and can only qualify for 12 n. and Fiery Cross Reef. Cuarteron Reef. Otherwise. the Philippines is asking ITLOS to rule whether or not a land feature occupied by a Claimant who has built infrastructure on them to support life/economic activity is sufficient to deem it more than a “rock”.Points of Dispute that the Philippines Brought Forth • 3) “Island” status of high-tide elevations in the Spratlys and ineligibility for EEZs – The second requirement for a land feature to qualify as an “island” that can support a 200 n. Johnson South Reef.m.m.
the complication in this line of argument is that these land features can fall in to the 200 n. EEZ of other larger features that could be “islands” making the argument again. . moot.m.Points of Dispute that the Philippines Brought Forth – Same as above.
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