The South China Sea Arbitration
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The South China Sea Arbitration

The Legal Dimension

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

Bringing together leading experts on the law of the sea, this book provides a detailed analysis of the significant aspects, findings and legal reasoning in the high-profile case of the South China Sea Arbitration between the Philippines and China. It examines major issues discussed in the Arbitration including jurisdiction, procedure, maritime entitlement, and the protection of the marine environment. It also explores the implications of the case for the South China Sea disputes and dispute settlement under the 1982 United Nations Convention on the Law of the Sea.
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Chapter 8: UNCLOS Article 121 and Itu Aba in the South China Sea Final Award: a correct interpretation?

Myron H Nordquist

Abstract

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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