The Legal Dimension
Edited by S. Jayakumar, Tommy Koh, Robert Beckman, Tara Davenport and Hao D. Phan
Chapter 8: UNCLOS Article 121 and Itu Aba in the South China Sea Final Award: a correct interpretation?
The 12 July 2016 Arbitral Award on the Merits (Award) in the dispute between the Philippines and China resulted in a pyrrhic victory for the Philippines. The fundamental reason was that the Arbitral Tribunal erred in its interpretation and application of the United Nations Convention on the Law of the Sea (UNCLOS) definition of what is an ‘island’ and what is a ‘rock’ with respect to Itu Aba in the Spratly Islands. This chapter does not analyse all the issues in the 500-page Award, but instead focusses on the crucial aspect of an accurate interpretation of the definitional text of Article 121 and its application to Itu Aba. The chapter discusses the legislative history of Article 121 and the unique negotiating context in which its text was drafted at the Third United Nations Conference on the Law of the Sea (UNCLOS III).
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