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soryang

(3,299 posts)
3. "disputed waters?"
Wed May 5, 2021, 07:13 PM
May 2021

They are international waters. there is no territorial claim associated with a reef beyond the national territorial boundary. The claims in dispute are EEZ claims which do not affect navigable waters. They affect marine resources.

Preexisting disputes are not determined by UNCLOS. China made this clear when they signed UNCLOS, that they took exception to preexisting disputes. There is therefore, no jurisdiction for an arbitration. The island of Taiping is occupied by Taiwan in the Spratleys. This island is not a "rock" as the ITLOS decision determined to wish away the Chinese claims to the EEZ associated with it. Both Taiwan and the PRC dispute the arbitration. Taiping is closer to Whitsun Reef than the Philippine coast. China never consented to the arbitration nor did it ever waive the tribunal's complete lack of jurisdiction.

The bottom line is there is no PCA/ITLOS jurisdiction over Chinese sovereignty claims:

…The overall obligation to submit to a compulsory conciliation procedure under 298(1)(a)(i) will however not apply in respect of a maritime boundary dispute which “necessarily involves the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over the continental shelf or insular territory”.21 In other words, obligation contained in article 298(1)(a)(i) to submit a conciliation procedure is subject to three conditions: (i) the dispute should have arisen after the Convention entered into force; (ii) no agreement could be reached between the parties settling the dispute within a reasonable period of time; and (iii) that the dispute did not involve “the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental shelf or insular land territory”.*
*The South China Sea Arbitration (The Philippines v. China): Assessment of the Award on Jurisdiction and Admissibility
Sreenivasa Rao Pemmaraju Author
Chinese Journal of International Law, Volume 15, Issue 2, June 2016, Pages 265–307, https://doi.org/10.1093/chinesejil/jmw019
Published: 20 June 2016 https://academic.oup.com/chinesejil/article/15/2/265/2548386

The PCA decision proceeds from a Philippine admission arguendo on the jurisdictional exclusion for territorial claims to a complete rejection of Chinese EEZ claims in the Spratley’s (and the Paracels by western operational extension).

“73…To this extent there is obvious contradiction or lack of consistency in the position of the Tribunal. On the one hand, it declares that it is not empowered to deal with issues of sovereignty and maritime delimitation in view of the Chinese Declaration pertaining to the disputes under the UNCLOS but, on the other hand, it declares itself competent to examine “the source of maritime entitlements of China in the South China Sea”. In that sense, the position of the Tribunal is manifestly self-contradictory.”*
*Id., https://academic.oup.com/chinesejil/article/15/2/265/2548386

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