South China Sea Arbitration Research Articles

Island-Building in the South China Sea: Legality and Limits

AbstractAll the claimants in the South China Sea disputes have engaged in various degrees of island-building on many of the geographic features in the Spratly Islands. However, as noted by the Tribunal in the South China Sea Arbitration, none has been on the scale of Chinese island-building on the features which it occupies, which escalated after the Philippines initiated arbitral proceedings in 2013. While the most important aspect of the Award is that it clarified the extent of the respective maritime rights of China and the Philippines in the South China Sea, the Tribunal’s rulings on the reclamation and island-building activities of China are equally significant. To this end, this paper will examine the findings of the Tribunal on the legality of China’s island-building activities as well as legal constraints on such activities (if any). Last, it will explore the implications of these findings for the Southeast Asian claimants and island-building and fortification of the features that they occupy.

Merits Award Relating to Historic Rights in the South China Sea Arbitration: An Appraisal

AbstractThis paper provides an assessment of the Tribunal’s Award on the merits relating to the Philippines’ Submissions No. 1 and 2. First, it argues that the Convention is not the sole legal source of maritime rights. Second, the Tribunal erroneously infers from Article 311 that the Convention prevails over customary international law. Meanwhile, Article 293 does not terminate rules of general international law that are incompatible with the Convention. Third, the Tribunal, by deciding that historic rights under general international law have been superseded by the regimes of exclusive economic zone and continental shelf established under the Convention, fails to draw a distinction between the two separate legal regimes, namely the Convention and general international law. Fourth, as one of the “matters not regulated by the Convention”, historic rights should be governed by, and have been well established in, general international law.

Introductory Remarks

In July 2016, an Arbitral Tribunal constituted pursuant to Annex VII of the Law of the Sea Convention issued an award on the merits in the South China Sea Arbitration between the Philippines and China. Among other issues to be decided was the status of several insular features under the law of the sea regime of islands codified in Article 121 of the UN Law of the Sea Convention (UNCLOS). Article 121, paragraph 1, defines an island as “a naturally formed area of land, surrounded by water, which is above water at high tide.” Like all coastal land territory, islands, with one important exception, generate a full suite of maritime zones: territorial sea, contiguous zone, exclusive economic zone, and continental shelf (Article 121(2)). The important exception is found in the third paragraph of Article 121: “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.”

Remarks by David Freestone

As a teacher of international law for more years than I care to admit, I have to declare at the start of my comments that I admire the South China Sea Arbitration Award greatly. It presents an interpretation of the provisions of the 1982 UN Convention on the Law of the Sea (UNCLOS) on islands and rocks in a comprehensive, carefully considered and intellectually satisfying way. As my colleagues will doubtless point out, it does present problems relating to current existing state practice, but it does to my mind capture what the UNCLOS III drafters had in mind when the 1982 Convention text was put together.

The South China Sea Arbitration: Bindingness, Finality, and Compliance with UNCLOS Dispute Settlement Decisions

AbstractOn 12 July 2016, the Tribunal in theSouth China Seaarbitration issued its final award. China rejected the ruling as “null and void”. The Philippines dismissed it as “a piece of paper” after initially hailing the ruling a “milestone decision”. The reactions of the parties concerned raise important questions about the bindingness, finality, and state compliance with UNCLOS dispute settlement decisions. This paper addresses these questions by dissecting China’s arguments that the award “has no binding force” and by examining the options available for promoting compliance with the award. The paper also considers the broader question of how states generally comply with UNCLOS dispute settlement decisions and evaluates the significance of UNCLOS dispute settlement mechanisms, including theSouth China Seaarbitration, in the absence of external enforcement.

The South China Sea Arbitral Award: Casting Light on Article 121 of unclos

The South China Sea Arbitral Award: Casting Light on Article 121 of unclos

The EU as an Actor in Southeast Asia in the Context of the South China Sea Arbitration

The ruling on 12 July 2016 by the Arbitral Tribunal in the case of the South China Sea dispute between the Philippines and China has had positive impact on the credibility of the Philippines and other Southeast Asian claimant countries. This improved positioning for Southeast Asia vis-à-vis China has however mainly seen the promotion of bilateral country relationships with China and displayed limited utility for the Southeast Asian region as a whole. Despite contemporary unpalatability of multilateralism as a viable means for dispute resolution to the claimant countries, there is an inherent multilateral opportunity to the rise of Sino-Southeast Asian bilateralisms post-ruling, especially favourable for regional, inter-regional, and global for a in which Southeast Asian countries and China interact with international partners. Primary aim of this article is to illustrate this indirect opportunity for multilateralism with focus on the extent to which there has been and is enhanced space for the European Union (EU) and its Member States as international partners to express their commitment to peace and security in the Asia-Pacific in the specific context of the South China Sea arbitration.

What lessons does the Antarctic Treaty System offer for the future of peaceful relations in the South China Sea?

Tensions in the South China Sea are typically analysed either from a power perspective, which emphasises the ambitions of a rising China and the potential for conflict; or from an international law perspective, which typically assesses the scope for resolution of competing claims under the United Nations Convention on the Law of the Sea and the impact of the South China Sea arbitration. There have also been efforts to analyse the potential for creative legal solutions, including consideration of the Antarctic Treaty System as a potential model. This paper revisits the Antarctic analogy. Rather than view this from a law or politics perspective, the paper suggests that viewing Antarctic Treaty provisions as having been championed by a rising power whose interests were not closely supported by application of the existing legal regime yields rather different lessons and offers cautious grounds for optimism.

The Permanent Court of Arbitration’s Exegesis of the Regime of Islands and China’s Nine-Dash-Line Claims in the South China Sea Arbitration

The big South China Sea is one of the most dangerous hotspot in the world. By words and actions, there are sixclaimants of the South China Sea. The People’s Republic of China and the Republic of the Philippines are some ofthem. Each want to control the numerous features and resources in boosting their economic interests. The UnitedNations was actively involved in the settlement of the disputes for their own security and economic interests. Thegreat ownership question that comes about in this is the rightful owner of the South China Sea which involved theNine-Dash Line claims by the government of the People’s Republic of China, which laid claims to the ParacelIslands, the Spratly Islands, the Pratas Islands, the Maccles field Bank and the Scarborough Shoal. In the Arbitrationbetween the two parties: China and Philippines, Annex VII of the United Nations Convention on the Law of the Seawas relied upon by the tribunal which gave award on 29th October, 2015 on admissibility and jurisdiction. Howeverthe objection that was presented by China was rejected by the tribunal. This was because of the issue of the territorialsovereignty of China in the South China Sea which was not within the jurisdiction of the tribunal. The tribunal foundinteralia that the submission made by Philippines showed the dispute between the parties putting in mind theConvention interpretation and application. The requirements under article 283 of the Convention were met by thePhilippines in regards to the settlement of the dispute. This paper examines the South China Sea arbitration awardand the interpretation and the application of the regime of islands under article 121 of the United Nations Conventionon the Law of the Sea.

Reflections on the Interpretation and Application of Article 121(3) in the South China Sea Arbitration (Merits)

ABSTRACTThe 2016 South China Sea Arbitration Award provided a detailed review of the interpretation of Article 121(3) of the U.N. Convention on the Law of the Sea. According to the Tribunal, Article 121(3) performs a preventive function by disabling tiny features from unfairly generating enormous entitlements to maritime space that does not serve the local population. This provision also contributes to safeguarding of the Common Heritage of Mankind. The Tribunal's interpretation seems to reflect development of the law of the sea toward protection of the common interests of the international community. However, since the Tribunal's interpretation is not anchored in state practice and the jurisprudence, whether the interpretation can be generalized needs careful consideration.

Reflections on Historic Rights in the South China Sea Arbitration (Merits)

Abstract The Annex vii Arbitral Tribunal, in its arbitral award of 12 July 2016, ruled that China’s claims to historic rights with respect to the maritime areas of the South China Sea encompassed by the “nine-dash line” are contrary to the un Convention on the Law of the Sea. To support this conclusion, the Tribunal undertook detailed review with regard to the concept of historic rights and the relationship between China’s claimed historic rights and the Convention. The temporal or historical element can be regarded as a key element to establish historic rights. However, the Tribunal took an approach that minimises the role of the temporary element when examining the legality of China’s claimed historic rights. The Tribunal’s view provides an important insight into the concept of historic rights in the international law of the sea.

South China Sea Arbitral Awards: Main Findings and Assessment

The South China Sea arbitration was an unusual case involving many intricate legal and factual issues. The proceedings were both procedurally and substantively complex. In addition, the arbitration was marred from the beginning by China’s refusal to participate in the proceedings. Nevertheless, an arbitral tribunal was constituted in accordance with Annex vii to the UN Convention on the Law of the Sea. Once constituted, the Tribunal was able to conduct the proceedings expeditiously while assuring procedural fairness to both parties. The arbitral proceedings, which lasted three and half years since its initiation by the Philippines in January 2013, eventually produced two voluminous Awards. Both Awards were decided unanimously. The Awards marked an important milestone in terms of clarifying various provisions of the Convention. In particular, the Tribunal clarified the relationship between the Convention and prior historic rights that are at variance with its Convention. The Tribunal also undertook an unprecedented task in determining how Art. 121 (3) of the Convention should be interpreted and applied. The Tribunal took a broad and proactive approach towards the scope of the marine environment as well as that of the obligation of States to protect the marine environment. The Awards, however, are not free of controversy. Questions can be raised as to several aspects of the Awards. The Awards would have implications that go far beyond the immediate dispute. For the dispute between the Philippines and China, it remains to be seen whether the Awards, by addressing some of the most contentious legal issues, would help the Parties to find a constructive solution to their dispute in the South China Sea.

China and the South China Sea Arbitration: Geopolitics Versus International Law

ABSTRACTThis article analyzes China’s geopolitical maneuvers in the wake of the International Arbitral Court ruling over the South China Sea territorial disputes brought up by the Philippines. It finds that while the Philippines won the case in the sphere of international law, China won the geopolitical battle not only because the court does not have effective enforcement mechanisms but also because the international community lacked the will to induce significant compliance given China’s forceful rejection as a great power.

The Vicissitudes of Dispute Settlement under the Law of the Sea Convention

The South China Sea Arbitration raises important questions about the potential operation of the dispute settlement system enshrined in Part xv of the United Nations Convention on the Law of the Sea (losc). This article explores the scope and different limitations that we are seeing in the interpretation of the losc dispute settlement regime with a particular focus on the South China Sea Arbitration. This examination questions the contours of the losc Part xv dispute settlement regime and its utility in resolving disputes relating to the South China Sea.

Navigation in the South China Sea:Why Still an Issue?

The safety of navigation remains an issue in the sense that navigation through the South China Sea is essential for world seaborne trade and communications, and the lingering territorial and maritime disputes would constitute a threat to the safety of navigation there. In recent years, the term ‘freedom of navigation’ has become a pivotal expression in the rivalry between China and the United States in the South China Sea. This paper starts with addressing the international legal framework concerning navigation, followed by state practice in the South China Sea, including domestic legislation and safety measures. It then discusses the issue of military activities in the exclusive economic zone and their implications for the freedom of navigation. The paper identifies several issues connected to navigation, such as the U-shaped line, law enforcement patrols, and the recent South China Sea Arbitration. A brief conclusion is provided at the end.

Dredge Your Way to China?

This article examines five of the most important legal issues arising from Chinese reclamation and construction in disputed areas of the South China Sea. First, does the construction have any impact on competing territorial claims in the South China Sea? Second, does the construction affect rights to maritime zones? This involves consideration of the differing legal significance of islands, rocks, low tide elevations and artificial islands, the relevance of land reclamation and construction in this context, and the resulting implications for maritime zones including territorial seas, eezs and safety zones. Third, are there other legal consequences arising from the Chinese activity (for example, on environmental grounds)? Fourth, does the construction bolster any potential ability of China to impose an Air Defence Identification Zone in the South China Sea? Fifth, what is the significance – legally and practically – of the award in the South China Sea Arbitration?

South China Sea after the Philippines v. China Arbitration

The South China Sea encompasses the Straits of Malacca, one of the most important shipping lanes in the world. It is also one of the world’s richest marine biodiversity areas, with abundant and diverse marine resources. On 12 July 2016, the Arbitral Tribunal in The Hague handed down its Final Award on the Philippines v. China arbitration (South China Sea Arbitration). The Award attracted much attention across the globe. The arbitration was very disappointing from a Chinese perspective and a great victory for the Philippines. The South China Sea, however, is not only about China and the Philippines. Ten coastal States surround the sea area. Six of which have competing claims in the sea area. Leading economies like Japan, Korea and Australia also rely heavily on the South China Sea as a key trade route. While the South China Sea Arbitration sheds light on some legal issues it also generates further questions.

The South China Sea Arbitral Award: legal implications for fisheries management and cooperation in the South China Sea

This case note discusses the recent Award in the South China Sea arbitration and its implications for fisheries management and cooperation in the South China Sea. It argues that by rejecting the validity of the nine-dash line claim, clarifying the maritime entitlements of all the features in the Spratlys, and denouncing a number of Chinese activities in the South China Sea, the Award has remarkably contributed to narrowing the geographical scope of the disputes and thus defining the rights and obligations of States in different maritime areas. Ultimately, the Award has laid the foundation for future regional and bilateral efforts to cooperate, especially those of fisheries management and fisheries management cooperation in the South China Sea.

Interpretation and Application of Article 298 of the Law of the Sea Convention in Recent Annex VII Arbitrations: An Appraisal

ABSTRACTArticle 298 of the UN Convention on the Law of the Sea allows state parties to exclude certain categories of disputes from the compulsory procedures entailing binding decisions. This provision serves as a “safety valve” by excluding sensitive issues mainly related to sovereignty. This article examines the three recent Annex VII Arbitral Awards (the South China Sea Arbitration; the Arctic Sunrise Arbitration; and the Chagos Marine Protected Area Arbitration) that assessed the interpretation and application of Article 298.

How Does the Amicus Curiae Submission Affect a Tribunal Decision?

AbstractIn the South China Sea Arbitration initiated by the Philippines against China, the Chinese (Taiwan) Society of International Law (CSIL) submitted an amicus curiae brief to the Annex VII arbitral tribunal established in accordance with United Nations Convention on the Law of the Sea (UNCLOS). This article first analyzes the definition and legal nature of amicus curiae status, then introduces cases involving amicus curiae in the International Court of Justice (ICJ) and UNCLOS dispute settlement mechanisms. By analyzing relevant statutes and rules of procedure, this article assesses the acceptance of amicus curiae submissions by international courts or tribunals, in different dispute settlement mechanisms. Finally, the article describes the significance of the amicus curiae brief submitted by CSIL to the arbitral tribunal, concluding that the South China Sea Arbitral Tribunal did take the amicus curiae submission into account, but exercised caution in its consideration.