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Edited by S. Jayakumar, Tommy Koh, Robert Beckman, Tara Davenport and Hao D. Phan

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Erik Franckx

International courts and tribunals have so far been persistent in refusing to give a specific content to the enigmatic Article 121, paragraph 3 of the 1982 United Nations Convention on the Law of the Sea, even though many occasions to do just that have presented themselves in the past. They were usually able to side-step this core issue of determining the exact legal nature of a particular maritime feature by relying on the law of maritime delimitation. The Arbitral Tribunal in the case initiated by the Philippines against China, however, was deprived of such an option as the People’s Republic of China had explicitly excluded delimitation matters from compulsory dispute settlement under the Convention. This chapter analyses this first, but important step forward in the clarification of Article 121, paragraph 3. Two specific elements of this clarification will be explored, namely the exact meaning of the term ‘rock’ and the grammatical conjunctions used in that paragraph.

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J Ashley Roach

This chapter examines the legal regime of artificial islands, as well as installations and structures, in the law of the sea, its treatment in the Final Award of the Arbitral Tribunal in the matter of the South China Sea Arbitration (Philippines v China), and the implications of the Award. The environmental considerations regarding the construction of these artificial islands, and the Tribunal’s criteria for deciding the status of the naturally formed features in the South China Sea, including those on which the artificial islands were constructed, have been considered in earlier chapters and will not be discussed in this chapter.

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S Jayakumar, Tommy Koh, Robert Beckman, Tara Davenport and Hao Duy Phan

Prior to the Arbitral Award on Jurisdiction and Admissibility on 29 October 2015 and the Final Award on 12 July 2016, legal uncertainties posed a significant impediment to the long-term resolution of the longstanding South China Sea disputes. These uncertainties allowed claimants to put forth arguments which maximised their claims and inevitably exacerbated tensions. This concluding chapter synthesises the analysis in the previous chapters and makes some observations on the significance and implications of the South China Sea Arbitration for the claims over features and their maritime entitlement, cooperation in the South China Sea, and the legal order of the oceans established under the United Nations Convention of the law of the Sea (UNCLOS). 

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Youna Lyons, Luu Quang Hung and Pavel Tkalich

Identification of those insular coral reef formations that qualify as land areas capable of a sovereignty claim and of generating maritime zones is a critical element of the legal discussion relating to the maritime disputes in the South China Sea. This chapter discusses the determination made by the Arbitral Tribunal. First, the chapter presents the main elements of the Arbitral Tribunal’s reasoning and findings. Second, these findings and the approach of the Arbitral Tribunal are compared with the decision rendered by the International Court of Justice in Nicaragua v Colombia. The third section investigates what it means for a reef to qualify as land territory and which ‘high tide’ should be considered. The fourth section discusses the issue of permanence above the sea of high-tide features. Finally the fifth section proposes an application of the South China Sea Arbitration Final Award to the many other insular geographic formations in the South China Sea, the status of which has not been determined by the Arbitral Tribunal.

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Clive R Symmons

The decision of the Arbitral Tribunal in Philippines v China on the issue of historic rights has clarified the formerly vague and interchangeable terminology in international customary law relating to maritime historic claims: showing that the term ‘historic rights’ has a broad meaning but also narrower ones relating to sovereign or non-sovereign historic rights (such as historic fishing rights). More specifically, the term ‘historic title(s)’ (used twice in UNCLOS) signifies a historic claim to sovereignty rights to near-shore areas only as in Article 298 and essentially takes in only historic waters claims as in Article 10(6)—which doctrine consequently remains unaffected by the UNCLOS regime. The Arbitral Tribunal also stressed the dominance and comprehensiveness of UNCLOS in this regard, and in so doing clarified the inter-relationship of the doctrine of historic rights with a supposedly ‘comprehensive’ UNCLOS regime. Thus the Tribunal has shown clearly that past historic non-sovereign rights claims, even insofar as they were allegedly ‘exceptional’, are now effectively legally otiose and, indeed, superseded, if they lie within the EEZ/continental shelf area of another state.

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Stuart Kaye

The Annex VII Tribunal Awards in the jurisdiction and merits phases of the South China Sea Arbitration dealt with the maritime jurisdiction of various features in one of the world’s most contested regions of the world. Five different states lay claim to features in the South China Sea, as well as a claim and occupation of an island by Taiwan. It is long established in international law that if the rights of a third party are in issue within a dispute, then that party has a right of participation in the proceedings, or alternatively that a tribunal will not have jurisdiction to deal with the rights of the third party. In the South China Sea Arbitration, the Tribunal chose to deal with the potential maritime jurisdiction of features of other states, and not to apply the indispensable third party rule to restrict its award. This chapter looks at the application of the indispensable third party rule by the Tribunal, and what the implications of the decision might be in future cases.

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Robert Beckman

On 22 January 2013, the Philippines initiated compulsory arbitration against China under Annex VII of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) with respect to its disputes with China over maritime rights and jurisdiction in the South China Sea. The Arbitral Tribunal issued its Award on Jurisdiction and Admissibility on 29 October 2015 and its Final Award on 12 July 2016. This chapter focuses on the issues of jurisdiction in the case. It reviews the positions of China and the Philippines and the decision of the Arbitral Tribunal on jurisdiction. It looks into the procedural preconditions for compulsory dispute settlement entailing binding decisions provided in UNCLOS. It examines the nature of the disputes and the application of UNCLOS. It analyses jurisdictional issues which were resolved in the jurisdictional phase and issues which were resolved together with the merits. The chapter ends with a few concluding remarks on the decision of the Arbitral Tribunal on jurisdiction.

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Tara Davenport

Unlike domestic law, non-participation does not constitute a bar to international proceedings, and nor does it mean a default judgment will be automatically issued against a non-participating party. However, the procedural rules of many international courts and tribunals require a court or tribunal to ‘satisfy itself not only that it has jurisdiction but that the claim is well founded in fact and law’. This obligation poses unique challenges for an international court or tribunal seized of the dispute, requiring a delicate balancing act between the rights of the non-appearing state and the rights of the appearing state to ensure the proper administration of justice. In the South China Sea Arbitration initiated by the Philippines against China in 2013, China adopted a policy of non-appearance and non-participation from the beginning. The Arbitral Tribunal took a proactive approach in fulfilling its obligation to satisfy itself not only that it has jurisdiction but also that the claim is well founded in fact and law. This chapter will explore the validity of the Annex VII Arbitral Tribunal’s approach to China’s non-appearance in light of the procedural practices of other international courts and tribunals in state-to-state disputes and generally accepted principles of procedural fairness.

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J Ashley Roach

This chapter examines the relationship between the criteria developed by the Arbitral Tribunal for distinguishing a rock from other islands with the environmental protection duties of all states, which the Award did not do. It suggests the Award is not an adverse precedent for those states claiming an exclusive economic zone (EEZ) from rocks. The chapter also reviews state practice in this regard, which the Tribunal did not address in detail in its Award. The chapter concludes that the Tribunal’s criteria must be carefully applied to the facts and circumstances of each high-tide feature in assessing whether each feature is entitled to a continental shelf/EEZ or only a territorial sea, and predicts that few states will change their position on such features.