South China Sea Arbitration Research Articles

Book Review of Stefan Talmon, The South China Sea Arbitration—Jurisdiction, Admissibility, Procedure

Book Review of Stefan Talmon, <i>The South China Sea Arbitration—Jurisdiction, Admissibility, Procedure</i>

Book Review of Xuechan Ma, The Spratly Islands and International Law: Legal Solutions to Coexistence and Cooperation in Disputed Areas

1. The book under review is Xuechan Ma, The Spratly Islands and International Law:Legal Solutions to Coexistence and Cooperation in Disputed Areas, Koninklijke Brill NV, 2022, xxiv + 372 pp., index; ISBN: 978-90-04-50432-5. How to eliminate conflicts and promote maritime cooperation in the South China Sea is always a hot topic for academics. The book is a new try in this field after the delivery of the South China Sea Arbitration award. Instead of the whole area or other areas of the South China Sea, the book focuses only on the Spratly Islands area because the disputes in the Spratly Islands area are the most complicated ones and the analysis of these disputes might have implications for disputes in other areas of the South China Sea. 2. In addition to the introduction and conclusion (Chapters 1 and 9), the book is divided into two parts. Part 1 (Chapters 2–4) seeks to set out a predictable territorial order and permissible scope of unilateral activities to ensure peaceful coexistence of the disputant States in the Spratly Islands area. Part 2 (Chapters 5–8) probes the international legal frameworks for cooperation in resource utilization and pollution management among disputant States.

Remodeling of International Regimes in Neoliberal Institutionalism Perspective: Case Study of the South China Sea Arbitration

Among the various disputes in the South China Sea, the China-Philippines arbitration case embodies the legalization of international conflict resolution. However, after the ruling was issued, China viewed it as a “scrap of paper,” and the Philippines had no intention of restraining China through the ruling. International law is considered a “paper tiger” due to the lack of mandatory enforcement, and international regimes were once seen as dysfunctional and chaotic systems. Then both China and the Philippines put bilateral relations back on track through economic diplomacy and negotiations. It is clear that sovereignty is at the core of maintaining international law and regimes, but it does not mean that states can adopt the principle of “self-help”. How can international regimes be reshaped to be flexible and resilient, and how can a virtuous model of balances between state power and international regimes be achieved in future international conflict resolution? To answer these questions, this study will explore the possibility of transforming and reshaping international regimes, using neoliberal institutionalism as a logical starting point and complex interdependence theory as a model framework. International regimes are not a means for the weaker states to achieve their claims; achieving a win-win situation in economic and power reciprocity is the most direct way to resolve disputes over the South China Sea, and the resilience of international regimes is reflected by expanding from bilateral to multilateral models of shared governance in the South China Sea through alliance politics and economic diplomacy.

An Analysis of the Variation and Impact of Sino-Philippines Economic and Trade Relations during the Duterte Administration

This paper aims to investigate the variation and impact of Sino-Philippines economic and trade relations during the presidency of Rodrigo Duterte. The Duterte administration had implemented a foreign policy that differed significantly from its predecessor, adopting a strategy of "balancing relations equally between China and the United States" and suspending the contested South China Sea arbitration ruling. By analyzing relevant data and policies, this study explores changes in trade volume, investment patterns, and collaborative projects, while assessing the consequences of these transformations for economic development and bilateral relations. The findings reveal a significant shift in Sino-Philippines economic and trade relations during the Duterte administration, leading to a remarkable turnaround in the overall bilateral relationship. This transformation has had profound implications for the Philippines domestic economy, regional cooperation, and interactions between the two nations. The results of this research contribute to a deeper understanding of the dynamics of Sino-Philippines economic and trade relations during the Duterte era and offer insights for further studies.

CHINA’S SOUTH CHINA SEA CLAIMS, THE HISTORIC RIGHTS DEBATE AND THE MIDDLE APPROACH OF ISLAMIC INTERNATIONAL LAW

The notion of historic rights forms the major basis to the claim by China to ‘islands’ in the South China Sea and the adjacent waters which are located within what is known as the nine-dash line. The South China Sea Arbitration case (Philippines v. China) has shown divergence between China’s interpretation of historic rights and the territorial acquisition regime under positive international law. This paper argues that Islamic international law has clearer principles on historic rights that do not upset the territorial sovereignty of coastal states. However, these principles must be appraised in the correct context of Islamic international law because it subscribes to a different approach to state sovereignty. Due to the importance of historic rights in this paper, the authors used both black letter and historical approaches to legal research. With historical legal research, the authors looked at the historical facts objectively in order to know how legal rules on sovereignty claims over maritime areas are formed throughout history particularly from the perspective of Islamic international law. This paper enables Islamic international law to offer a middle ground in which the proponents and opponents of China’s historical rights claims could meet.

International Broadcasting During Times of Conflict: A Comparison of China’s and Russia's Communication Strategies

ABSTRACT The vital role of international broadcasting during times of international conflict has gained increasing attention; however, national variations in terms of communication strategies have rarely been explored in depth. This study fills this research gap by providing a comparative analysis of the communication strategies of Chinese and Russian state-sponsored international broadcasters. By examining CGTN’s coverage of the South China Sea arbitration and RT’s coverage of the Ukraine crisis in 2014, we find that the Chinese international broadcaster preferred official Chinese sources and a peace frame during a time of conflict, whereas its Russian counterpart tended to engage with Western countercultural speakers and present conflict frames. We further interpret the two media’s different usage of sources and frames in the light of the media’s organizational culture and the sponsoring states’ national identities. The research advances the scholarship on the increasingly intensive information war between the East and the West through the way international broadcasters cover international conflicts. It enriches our understanding of the cultural and national dynamics underpinning the non-Western emerging countries’ approaches of international communication.

Analysis of the Legal Role of Geospatial Intelligence: A Case Study of South China Sea Arbitration of 2016

Analysis of the Legal Role of Geospatial Intelligence: A Case Study of South China Sea Arbitration of 2016

Implementing the Interpretation of Article 121 Paragraph (3) of the UNCLOS Conducted by The Permanent Court of Arbitration towards Sekatung Island as a Maritime Feature in Indonesia-Vietnam’s Maritime Delimitation Negotiation

Indonesia’s government is conducting a maritime delimitation negotiation with Vietnam since 2021 discussing the delimitation of the EEZ. According to a method of delimitation, determining the status of a maritime feature is one of many vital points to be discussed during a delimitation negotiation. Sekatung Island, a small island belongs to Indonesia, which located between Indonesia and Vietnam has a vital part to determine the width of Indonesia’s EEZ. Article 121 paragraph (3) of the UNCLOS is the main legal basis to determine the legal status of Sekatung Island. Aforementioned Article has been interpreted by the Permanent Court of Arbitration in the South China Sea Arbitral Award. In summary, the PCA declared maritime features must have the natural capacity to sustain human habitation and economic life of their own, based on historic evidences, in order to determine such features as fully entitled island with up to 200 nautical miles of EEZ and continental shelf. The purpose of this article is to give a point of view for Indonesia’s government regarding the deficiency of such interpretation by the PCA which may leads to disadvantaging Indonesia’s position during delimitation negotiation, if in any case the government would implement such interpretation to determine the legal status of Sekatung Island.&#x0D; &#x0D; Keywords: South China Sea Arbitral Award, Rocks, UNCLOS, maritime delimitation

The Unfortunate Wording of Article 121(3) of unclos and Its Interpretation in the 2016 South China Sea Arbitration Award

Abstract Article 121(3) of the 1982 United Nations Convention on the Law of the Sea (unclos) provides for the legal definition of the term “rocks” in international law. This article focuses on key aspects of the interpretation of this provision by the South China Sea Arbitral Tribunal in its Award of 12 July 2016 taking into consideration the current state and prospects of development of international law regarding Article 121(3) of unclos. This research discusses in particular, the method of interpretation applied by the Arbitral Tribunal to define the terms established in Article 121(3) of unclos as well as the meaning given to those terms by the Arbitral Tribunal. In addition, this article examines the (potential) impact of the South China Sea Arbitral Tribunal Award of 12 July 2016 on future State practice and jurisprudence as regards the interpretation and application of Article 121(3) of unclos.

Scrutinising the Maritime Zones Around Australia’s Sub-Antarctic Islands

Abstract In 2016, the South China Sea Arbitral Tribunal was the first tribunal or court to interpret Article 121(3) of the United Nations Convention on the Law of the Sea. The Tribunal’s interpretation raises international law questions regarding the validity of claimed exclusive economic zones (eezs) and continental shelf maritime areas around many islands including Australia’s sub-Antarctic Islands. Owing to their geographical remoteness, harsh climates, lack of resources, as well as never been ‘home’ to any group of people in a settled way, questions have been raised as to the validity of Australia’s claimed maritime zones with respect to Article 121(3) in both pre- and post-South China Sea Arbitral Award commentary. The article assesses the validity of Australia’s claim by applying the Tribunal’s interpretation of Article 121(3) to the physical and historical facts of the Islands while raising alternate interpretations offered by prior and subsequent commentary. Three examples of possible State practice are reviewed for evidence of other interpretations that may have been agreed to by parties to the Convention. The findings are that Heard and Macquarie Islands are likely classified as islands entitled to an eez and continental shelf whereas McDonald Island is more likely to be an Article 121 ‘rock’.

\u201cHuman Habitation or Economic Life of their Own\u201d: The Definition of Features\xa0Between History, Technology and the Law

Article 121(3) of the United Nations Convention on the Law of the Sea (UNCLOS) establishes the regime of geographical features. It distinguishes the island from rocks, by defining the former as a naturally formed area of land, surrounded by water, which is above water at high tide; the latter as features ‘which cannot sustain human habitation or economic life of their own.’ The nature of the feature impacts on the sovereign rights recognized to the coastal States: if the feature is qualified as an island, it entitles the coastal State to 200 miles of exclusive economic zone and continental shelf, with undisputed right of exclusive exploitation of natural resources located within the area. By contrast, if the feature is qualified as a rock, the coastal State is only entitled to the territorial sea. Article 121(3) of UNCLOS and the formula ‘rocks which cannot sustain human habitation or economic life of their own’ have been subject to substantive interpretation for the first time by an international tribunal in The South China Sea Arbitration (Philippines v. China) Award. Starting from this Award, the present paper explores further the requisites of ‘human habitation or economic life’ and discusses what value shall be attributed to the technological development vis à vis historical excursus. The paper will review relevant States’ practice, scholarly works and tribunals’ decisions in the field and discuss how far (if any) could technological means go to support a feature’s capacity.

The South China Sea Arbitration: Toward an International Legal Order in the Oceans, written by Yoshifumi Tanaka

The South China Sea Arbitration: Toward an International Legal Order in the Oceans, written by Yoshifumi Tanaka

The South China Sea Arbitration and New Zealand's Maritime Claims

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 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

States have the obligation to protect and preserve the marine environment under Article 192 of the United Nations Convention on the Law of the Sea (UNCLOS), however, the wording in Article 192 of UNCLOS is too general to apply in practice. For a quarter of a century since UNCLOS entered into forth in 1994, the marine environmental protection obligation has been interpreted and developed by international courts and tribunals, especially by the South China Sea (SCS) Arbitration. This paper first analyzes the developments of marine environmental protection obligation made by the SCS Arbitration in submission 11 and 12B. Then the paper aims to demonstrate that, even though China repeated its non-compliance policy towards the SCS Arbitration, the developments of marine environmental protection obligation made by the SCS Tribunal still had significant operational impact in China's marine policy, especially in China's SCS fisheries policy.

Review of the South China Sea Arbitration Ruling

Review of the South China Sea Arbitration Ruling

Joint Development of Hydrocarbon Resources in the South China Sea After the Philippines Versus China Arbitration?

After the tribunal in the South China Sea arbitration found that China is not entitled to claim maritime zones beyond the entitlements that the Law of the Sea provides for, the Philippines and China reentered into negotiations about the joint development of hydrocarbon resources and have come to an understanding on fisheries. Philippine lawyers have criticized these attempts as “waiving” or “compromising” the arbitral tribunal’s award and the Philippines’ claim. This article analyzes the consequences of the award for state obligations under Articles 74(3) and 83(3) of the United Nations Convention on the Law of the Sea. The article discusses whether and in what way joint development arrangements adopted despite the absence of China’s entitlement to the maritime area in question could prejudice or be factually detrimental to the Philippines’ claim.

Joint Development of Offshore Oil and Gas Resources in the South China Sea—New Contexts for Regional Cooperation Following the South China Sea Arbitration

Joint Development of Offshore Oil and Gas Resources in the South China Sea—New Contexts for Regional Cooperation Following the South China Sea Arbitration

A Strategy of Non-Participation before International Courts and Tribunals

Abstract One of the greatest challenges facing international courts and tribunals today is a State’s decision not to participate in a proceeding. Ever since China refused to take part in the South China Sea arbitration in 2013, there have been no fewer than nine additional inter-State cases of non-participation. The existing literature views this growing phenomenon as a problem. This article, however, takes the perspective of the non-participating State, and thus views non-participation as a strategy. After examining the law and practice of non-participation, the article discusses a series of strategic considerations that States should take into account when deciding whether to participate in a proceeding. In doing so, the article hopes not only to advise States considering non-participation, but also to help others understand the reasons behind a State’s decision of non-participation.

Along the Academe‐Policy Frontier: A Tribute to Aileen S.P. Baviera

Along the Academe‐Policy Frontier: A Tribute to Aileen S.P. Baviera

Status of Rocks in the Law of the Sea with Relying on the South China Sea Arbitration Award

Status of Rocks in the Law of the Sea with Relying on the South China Sea Arbitration Award