The South China Sea Arbitration

The developments of marine environmental protection obligation in article 192 of UNCLOS and the operational impact on China's marine policy – A south China sea fisheries perspective

Right after the South China Sea Arbitration was concluded on 12th July 2016, it quickly attracted much attention in the world and became one of the international hot events. It is of great importance to infer the dynamic evolution of international relations before and after the hot events through quantitative analysis. International relations can be viewed as many complex social networks, whose structures are often profoundly changed with the emergence of hot events. To explore how multinational relation’s network was affected by the South China Sea Arbitration, Global Database of Events, Location, and Tone (GDELT), is used in this study. GDELT is a massive political science data created for studying world-wide political conflict and instability and contains more than 400-million geolocated events with global coverage from 1979 to the present. We have extracted nearly 30,000 events from July 5 to 25, 2016 related to the South China Sea Arbitration from GDELT, constructed the relation networks of the relevant countries, and found that the structures of the networks changed significantly during this course.

Law of the Sea - Recent Developments in the South China Sea Dispute: The Prospects of a Joint Development Regime edited by WU Shicun and Nong HONG. London / New York: Routledge, 2014. xix + 263 pp. Hardcover: US$49.95. - The South China Sea Disputes and Law of the Sea edited by S. JAYAKUMAR, Tommy KOH, and Robert BECKMAN. Cheltenham / Northampton, MA: Edward Elgar Publishing, 2014. xiv +281 pp. Hardcover: £80. - The South China Sea Arbitration: A Chinese Perspective edited by Stefan TALMON and Bing Bing JIA. Oxford / Portland, OR: Hart Publishing, 2014. xxiv + 249 pp. Hardcover: US$54. - The China-Japan Border Dispute: Islands of Contention in Multidisciplinary Perspective edited by Tim F. LIAO, Kimie HARA, and Krista WIEGAND. Farnham / Burlington, VT: Ashgate, 2015. xii + 202 pp. Hardcover: £70. - Arbitration Concerning the South China Sea: Philippines Versus China edited by WU Shicun and Keyuan ZOU. Farnham / Burlington, VT: Ashgate, 2016. xiii + 290 pp. Hardcover: £110. - Volume 8 Issue 1

This critical Study analyzes in detail the award on jurisdiction and admissibility of 29 October 2015 and the award of 12 July 2016 in the South China Sea Arbitration. After briefly introducing the project and the Study and describing the background to and course of the South China Sea Arbitration and the position of the Chinese Government, the Study moves to address one by one the following matters: jurisdiction; admissibility; historic rights; the status of China’s Nansha Qundao and Zhongsha Qundao; the legality of China’s activities in the South China Sea; due process and evidence. The Study closes with the conclusion that the Tribunal’s many errors deprive its awards of validity and threaten to undermine the international rule of law. Included as annexes are five useful official documents of the Chinese government on jurisdiction, the two awards, China’s territorial sovereignty and maritime rights and interests in the South China Sea, and China’s adherence to the position of settling through negotiation the relevant disputes between China and the Philippines in the South China Sea.

The South China Sea Arbitration which has taken place recently with its final decision published in July 2016 was an action initiated by the Philippines against the People’s Republic of China in an attempt to oppose the latter’s claims of ‘historical rights’ in various maritime features in the South China Sea. The panel was constituted under Annex VII of the United Nations Convention on the Law of the Sea. The Chinese Government opposed the constitution, admissibility and ruling of the entire arbitration. It has since put forward many counter claims to refute the validity of the decision reached. China’s primary concern inevitably lies with the implications of the decision on the ‘Nine-Dash Line’, a historic graphical boundary line that has appeared in the Chinese national atlas as early as 1914. This article will qualitatively dissect the decisions made by the arbitral tribunal from a historical perspective, taking into account diplomatic correspondences and authoritative theories in public international law. Ultimately, this article aims to ascertain the implications of the arbitral rulings on the claims of sovereignty of both countries, which remain the terminal concern of the international community. It will be observed, that the ruling, albeit shrouded in irregularities, has posed irreversible impacts on the situation of the South China Sea saga.

In early 2013, the Philippines initiated the compulsory arbitral procedure under Article 287 and Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS) against China, with regard to their disputes in the South China Sea. Three years later, the ad hoc Arbitral Tribunal rendered its award that declared China’s historic rights claim within the U-shaped line unlawful and that none of the Spratly Islands including Itu Aba (Taiping Island) are “islands” entitled to an EEZ. Although the ROC/Taiwan was not the Philippines’ intended party in the case, it was brought into the proceedings and became a de facto party. This paper will illustrate how Taiwan became relevant to the South China Sea arbitration and analyze possible legal and political implications for Taiwan. It is suggested that the Philippines-initiated arbitration may have more serious political implications for Taiwan’s future claim and position in the South China Sea dispute. In particular, Taiwan should carefully manage the One-China/South China Sea/cross-straits policy triangle after the South China Sea arbitration.

This paper was published in (2017) 15 New Zealand Journal of Public and International Law 265-291. The decision in the South China Sea arbitration in relation to the interpretation of art 121(3) of the United Nations Convention on the Law of the Sea has broad implications for states not party to the case. New Zealand, like many other countries, claims an exclusive economic zone and continental shelf from uninhabited islands, but no other state has objected to those claims. This article applies the South China Sea approach to art 121(3) to show that, if strictly followed, some maritime features that have been regarded as islands might be classified as rocks not capable of generating maritime zones. The article critiques the reasoning of the Arbitral Tribunal, and suggests that another tribunal might not follow its interpretation of art 121(3). In addition, in cases where coastal states such as New Zealand have long-standing claims from uninhabited features, it may be possible to argue that other states cannot challenge these claims based on acquiescence.

The South China Sea Arbitration is a leading case in a new generation of environmental disputes, namely, environmental disputes that occur in disputed territorial or maritime areas. The dispute between the Philippines and China before the United Nations Convention on the Law of the Sea (UNCLOS) Annex VII Tribunal (the Tribunal) dealt in significant part with the Philippines’ allegations of environmental violations by China. The Philippines asserted that China tolerated harmful fishing practices and proceeded with harmful construction activities, and that both caused serious harm to the marine environment of the South China Sea.

The South China Sea Arbitration （the arbitral proceedings unilaterally instituted by the Philippines against China in January 2013 under the United Nations Convention on the Law of the Sea （UNCLOS） ） , has proven to be a particularly high-profile event due to the tense situation in and around South East Asia. The deadlocked negotiation between these two countries after the minor maritime incidents over the territorial sovereignty of the islands and shoals in the South China Sea may well have motivated the Philippine government with various support offered by some interested states to settle the dispute by way of a third-party mechanism of dispute settlement available under international law. China, nowadays a rising super power alongside the United States and one of the five permanent mem bers of the United Nations Security CouncilUNSC） , has already clarified its intention not to take part in the proceedings and to resolve the territorial and maritime issue through direct talks with the parties concerned, including the Philippines. 1 China’ s rebuff was disappointing, particularly for the international lawyers who were looking forward to the possible outcome of a small powerless country beating a super-power by way of legal justice. It is little wonder, however, that those who cast a doubtful eye on the proceedings from the beginning may have taken this outcome for granted in the light of past precedents such as the Nicaragua case brought before the International Court of Justice （ICJ） ,

In the South China Sea Arbitration between the Republic of the Philippines and the People’s Republic of China the Arbitral Tribunal constituted under Annex VII to the United Nations Convention on the Law of the Sea on 29 October 2015 issued its Award on Jurisdiction and Admissibility. The Tribunal rejected China’s objection that the disputes presented by the Philippines concerned, in essence, the extent of China’s territorial sovereignty in the South China Sea and were thus outside the Tribunal’s jurisdiction. The Tribunal found, inter alia, that the Philippines’ submissions reflected disputes between the parties concerning the interpretation or application of the Convention, that there was no other State indispensable to the proceedings, and that the Philippines had met the requirement under Article 283 of the Convention that the parties exchange views regarding the settlement of their disputes. This paper examines the Tribunal’s findings with regard to each and every of the Philippines’ 15 final submissions and demonstrates that some of its findings on the Tribunal’s jurisdiction and the admissibility of the Philippines’ claims are seriously flawed and based on procedural irregularities.

On 22 January 2013, the Republic of the Philippines instituted arbitral proceedings against the People’s Republic of China (PRC) under the United Nations Convention on the Law of the Sea (UNCLOS) with regard to disputes between the two countries in the South China Sea (South China Sea Arbitration). On 19 February 2013, the PRC formally expressed its opposition to the institution of proceedings, making it clear from the outset that it will not have any part in these arbitral proceedings and that this position will not change. It is thus to be expected that over the next year and a half, the Tribunal will receive written memorials and hear oral submissions from the Philippines only. The Philippines’ Memorial is due by 30 March 2014. The Chinese position, on the other hand, will go unheard. However, the Tribunal is under an obligation, before making its award, to satisfy itself not only that it has jurisdiction over the dispute, but also that the claims brought by the Philippines are well founded in fact and law (UNCLOS Annex VII, Article 9).The chapter examines whether the Tribunal has jurisdiction to hear the case, whether the claims brought by the Philippines are admissible and whether there are any other objections which the tribunal will have to decide as a preliminary matter. It aims to offer a (not the) Chinese perspective on some of the issues to be decided by the Tribunal. The chapter is to serve as a kind of amicus curiae brief advancing possible legal arguments on behalf of the absent respondent. It shows that there are insurmountable preliminary objections to the Tribunal deciding the case on the merits and that the Tribunal would be well advised to refer the dispute back to the parties in order for them to reach a negotiated settlement.

This book discusses the legal and procedural issues raised by China’s default in the South China Sea Arbitration

Journal Article The Tribunal’s Award in the “South China Sea Arbitration” Initiated by the Philippines Is Null and Void Get access Chinese Journal of International Law, Volume 15, Issue 2, June 2016, Pages 457–487, https://doi.org/10.1093/chinesejil/jmw027 Published: 14 October 2016

This brief paper comments on the clinical isolation and one-sided tendencies in the Philippines' oral arguments in the South China Sea arbitration, with illustrations from its arguments on (1) negotiation as the agreed exclusive choice for dispute settlement, (2) sovereignty matters, (3) the optional exception of delimitation-related disputes; (4) the optional exception of military activities disputes; and (5) environmental claims.

On 12 July 2016, the arbitral tribunal constituted under Annex VII of the United Nations (UN) Convention on the Law of the Sea (UNCLOS) issued its award in the South China Sea Arbitration between the Philippines and China. According to Article 11 of Annex VII, the award of the arbitral tribunal shall be ‘final’. The provision reiterates the general statement in Article 296(1) UNCLOS that any decision rendered by a court or tribunal having jurisdiction under part XV, section 2, of UNCLOS shall be ‘final’. In its award, the tribunal decided a number of general questions of the law of the sea, including the meaning of the term ‘rocks’ in and the relationship between UNCLOS and customary international law. This article examines what ‘finality’ of an arbitral award means with regard to decisions on such general questions of law or, in other words, in what way such decisions can be considered ‘final’.