South China Sea Arbitral Award Research Articles

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.

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.
 
 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.

\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.

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

Should the Diaoyu/Senkaku Islands Be Classified as Islands or Rocks? An Examination in Light of the South China Sea Arbitration Award

Abstract In July 2016, an Arbitral Tribunal handed down its award in the South China Sea dispute between the Philippines and China. In addition to considering the legal status of the controversial nine-dash line, the Tribunal also provided the first judicial interpretation of Article 121 of the LOSC, thereby shedding light on what maritime features may be regarded as islands and not rocks within the meaning of that article, and therefore entitled to an exclusive economic zone (EEZ) and continental shelf. This article considers the decision reached by the Tribunal, and the views expressed in the literature, applying them to an analysis that attempts to answer whether the Diaoyu/Senkaku Islands (sovereignty over which is disputed by China and Japan) in the East China Sea would qualify as islands, and thus entitled to an EEZ and as a continental shelf, or as rocks and therefore not so entitled.

Can the South China Sea Tribunal’s Conclusions on Traditional Fishing Rights Lead to Cooperative Fishing Arrangements in the Region?

Disputes over territorial sovereignty have motivated states to take confrontational positions in respect of vessels from other states fishing in areas around disputed features in the South China Sea. This article suggests that the doctrine of traditional fishing rights, as expressed in the South China Sea Arbitral Award, could provide a legal mechanism that allows states to cooperate on fisheries management without compromising their sovereign claims. However the Tribunal’s conclusions on traditional fishing left a number of key questions unresolved that would need to be subject to further negotiation. There are considerable practical obstacles, especially a lack of political will, that would probably prevent such an agreement from coming to fruition. Nevertheless, this article provides an assessment of a potential option that could be used to foster cooperative fishing arrangements in a particularly contested maritime space.

The South China Sea Arbitral Award amidst Shifting Philippine Foreign Policy

Abstract The South China Sea Arbitral Tribunal award was an overwhelming legal and moral victory for the Philippines. The arbitral tribunal categorically declared that China’s nine-dash line claim is incompatible with the UN Convention on the Law of the Sea. However, China’s defiance of the ruling and refusal to honor and implement the award pose a serious challenge to Manila’s victory. In addition, the astonishing shift in Philippine foreign policy direction, alongside the change in government, flouts the arbitral award and undermines previous State policies assertive of Philippine maritime and territorial claims in the South China Sea. The current direction of Philippine-China relations under Philippine President Rodrigo Duterte has demonstrated positive signs of improvement compared with acrimonious bilateral relations pursued by the previous Aquino administration. The arbitral award has largely been set aside in the government’s effort to restore amicable economic and diplomatic relations with China. This paper examines the South China Sea arbitral award amidst shifting Philippine foreign policy under the administration of President Rodrigo Duterte.

A Chinese Perspective of Treaty Interpretation on the Status of Maritime Features: In Response to the South China Sea Arbitration Award

The status of maritime features is one of the core issues in the South China Sea Arbitration. The essence of this issue is territorial sovereignty and maritime delimitation disputes between China and the Philippines. Based on the interception of certain facts and evidence, the Tribunal did not interpret the China’s diplomatic position as it wanted, and it had an intensely subjective interpretation of Article 121(3) of the United Nations Convention on the Law of the Sea of 1982. Combined with the Chinese government’s positions before and after the publicity surrounding the Award, this paper, which takes the logical approaches of the Award as the main line, focuses on chapter 6 of the Award, raising questions about disputes on the status of maritime features, analyzing the treaty interpretations related to the status of maritime features, and clarifying the defections.

The South China Sea Arbitral Award: Evolving Post‐Arbitration Strategies, Implications and Challenges

On 12 July 2016, the Arbitral Tribunal formed under Annex VII of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) issued its award on the case brought by the Philippines against China over maritime claims in the South China Sea. The landmark victory categorically declared that China's nine‐dash line claim is incompatible with the UNCLOS. The award was also an authoritative interpretation of various important issues relating to UNCLOS including the legal status of maritime features, historic rights, and the duty to preserve the marine environment. However, despite the final and binding nature of the arbitral ruling, China continues to reject the ruling. The shift in Philippine foreign policy under the Duterte administration has led to setting aside the ruling in order to restore amicable diplomatic and economic relations with China. This Special Issue of Asian Politics & Policy explores and revisits the South China Sea arbitral award from a multi‐faceted perspective, focusing on challenges, implications, and post‐arbitration strategies.

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 Arbitral Award: Casting Light on Article 121 of unclos

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

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.

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.

Philippines v. China The South China Sea Arbitral Award: Implications for Policy and Practice

<i>Philippines v. China</i> The South China Sea Arbitral Award: Implications for Policy and Practice

Interpretative Guide on the Legal Status of Maritime Features in the South China Sea Arbitral Award and its Implications for the Policy on Dokdo

Interpretative Guide on the Legal Status of Maritime Features in the South China Sea Arbitral Award and its Implications for the Policy on Dokdo

The South China Sea Arbitration Award

On January 22, 2013, the Philippines submitted to arbitration its dispute with China regarding the interpretation and application of the UN Convention on the Law of the Sea in the South China Sea. China declined to participate, but did communicate its position on jurisdiction and certain other matters. On July 12, 2016, the arbitral Tribunal rendered its unanimous award. It concluded that China’s claim of historic rights to the maritime areas of the South China Sea encompassed by China’s “nine-dash line” is contrary to the Convention. Without addressing the competing claims to sovereignty over the islands, the Tribunal also determined that all of the Spratly Islands features that emerge above high tide are “rocks” that do not generate entitlement to an exclusive economic zone or continental shelf beyond a 12-mile territorial sea. In addition, the Tribunal found that China’s island-building activities in the Spratly’s, commenced after the dispute was submitted to arbitration, caused extensive damage to coral reefs that violated the environmental provisions of the Convention, and also aggravated and extended the dispute. The Tribunal held that failure to control fishing for internationally protected endangered species and failure to respect international collision regulations violated the Convention. The award also protected traditional artisanal fishing in the territorial sea of Scarborough Shoal. The perceptions of those that border and use the South China Sea will unquestionably be affected by the award’s authoritative contribution to the law of the sea. Among the award’s long term effects may be a tempering of disputes over small features at sea and the entitlements they generate, as well as a decline in gratuitous environmental disruption occasioned by attempts to artificially enhance such features to reinforce claims to maritime jurisdiction.

Senkaku/Diaoyu: Are They Islands?

The suspected presence of vast hydrocarbon deposits in the adjacent waters of the Senkaku/Diaoyu island group renders these features intrinsically valued for the maritime boundary to be drawn between Japan and China in the East China Sea. Given that offshore geographical features qualifying as islands in a legal sense may potentially generate extensive areas of seabed jurisdiction in the same manner as continents, the connection between the features’ maritime generating capacity and the associated sovereign rights over surrounding seabed energy resources becomes self-evident. This paper considers the legal status of the disputed Senkaku/Diaoyu islands in the East China Sea and the potential legal implications for the future maritime delimitation between China and Japan. In doing so, it reviews the relevant provisions of the UN Convention on the Law of the Sea (UNCLOS) on the regime of islands and applies this analysis to the case of the Senkaku/Diaoyu features in the East China Sea. It also considers the most recent South China Sea Arbitration Award on the interpretation and application of Article 121 of UNCLOS to the disputed South China Sea insular features. The paper concludes that whilst there has been no certain rule or consensus on how the said provisions of UNCLOS are to be interpreted and applied, it is highly doubtful that an international court or arbitral tribunal would find any of the Senkaku/Diaoyu islands being an island in a legal sense.