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The South China Sea Arbitration Decision: The Need for Clarification

  • Thomas J. Schoenbaum (a1)

Extract

On July 12, 2016, a five-person panel of the Permanent Court of Arbitration in the Hague, constituted as an Arbitral Tribunalunder Annex VII of the United Nations Convention on the Law of the Sea (1982) (UNCLOS), handed down a judgment that is surely the most important set of jurisprudential rulings in the modern history of the international law of the sea.

In a case brought in 2013 by the Philippines against China to contest Chinese claims and actions in the South China Sea, the Tribunal ruled in favor of the Philippines on virtually every issue of the dispute. The Tribunal also clarified many murky issues and problems inherent in provisions of the UNCLOS. The judg-ment, therefore, is a landmark ruling that is significant not only for the South China Sea, but also for contested maritime rights and responsibilities in other maritime areas of the world.

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References

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1 Technically this judgment is termed an arbitration “Award.” For a complete summary of the Award, see Lucy Reed & Kenneth Wong, Marine Entitlements in the South China Sea: The Arbitration Between the Philippines and China, 110 AJIL (forthcoming 2016).

2 The South China Sea Arbitration (Phil. v. China), PCA Case No. 2013-19, Awardon Jurisdiction and Admissibility (Oct. 29, 2015) [here in after Awardon Jurisdiction].

3 The South China Sea Arbitration (Phil. v. China), PCA Case No. 2013-19, Award (July 12, 2016) [here in after Final Award].

4 Id. at paras. 1191-1201.

5 Id. at para. 1201.

6 Statement of the Ministry of Foreign Affairs of the People’s Republic of China on the Award of 12 July 2016 of the Arbitration Tribunalon the South China Sea Established at the Request of the Republic of the Philippines (July 12, 2016).

7 For a more complete account of the development and promulgation of the nine dash line, see Zhiguo Gao & Bing Bing Jia, The Nine-Dash Line in the South China Sea: History, Status, and Implications, 107 AJIL 98 (2013).

8 Id.

9 Id. at 108.

10 Award on Jurisdiction, supra note 2, at paras. 397-399.

11 Final Award, supra note 3, at para. 204.

12 Id.

13 Id. at para. 206.

14 Id. at paras. 207-214.

15 Id. at paras. 215-229.

16 Id. at para. 229.

17 Id. at para. 261.

18 Id. at para. 262.

19 Id. at para. 275.

20 Id. at para. 231.

21 Id. at para. 243.

22 Continental Shelf (Tunis. v. Libya), 1982 ICJ REP. 18, 74, para. 100 (Feb. 24).

23 Fisheries Case (U.K. v. Nor.), 1951 ICJ REP. 116,130 (Dec. 18).

24 Continental Shelf, supra note 22, at 74; Land, Island and Maritime Frontier Dispute (El Sal. v. Hond., Nicar.intervening), 1992 ICJ REP. 351, para. 384 (Sep. 11). In U.S. practice, assertion of an historic waters claim requires not silent acceptance by foreign states but affirmative, knowing acquiescence. Arthur W. Rovine, 1973 Digest of United States Practice in International Law, 244-245 (1974); Marjorie M. Whiteman, 4 Digest of International Law, 233-238 (1965).

25 Final Award, supra note 3, at para. 804(b). The Tribunal cited (id. at para. 256) in support of its conclusion the case, Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can v. U.S.), 1984 ICJ REP. 246, 341-342, para. 235 (Oct. 12). This ruling may be distinguished since the adjudication in the Gulf of Maine case occurred ten years before UNCLOS went into force, and specific provisions of UNCLOS were not involved in the case.

26 Final Award, supra note 3, at para. 804.

27 Historic/traditional fishing rights have been relevant in many cases. See Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, 2001 ICJ REP. 40, paras. 235-236 (Mar. 16); Eritreav. Yemen, Award of the Arbitral Tribunal, Phase I, 22 RIAA 209, paras. 525-526 (Oct. 9, 1998); Fisheries Jurisdiction Case (U.K. v. Ice.), Merits, 1974 ICJ REP. 3, 26 (July 25); Maritime Delimitation in the Area between Greenland and Jan Mayen (Den. v. Nor.), 1993 ICJ REP. 38, para. 15 (June 14); Barbados v. Trinidad & Tobago, Award of the Arbitral Tribunal, 45 ILM 798, paras. 247, 266, 292 (Apr. 11, 2006).

28 Eritrea v. Yemen, supra note 27, at para. 526.

29 Barbados v. Trinidad & Tobago, supra note 27, at para. 292.

30 Final Award, supra note 3, at para. 803, 812.

31 Id. at para. 812.

32 Id. at paras. 231-243.

33 Id. at para. 804.

34 The Tribunal expressed its disagreement with the arbitral tribunalin the Eritreav. Yemen case. Id. at para. 803.

35 Id. at paras. 805-806.

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The South China Sea Arbitration Decision: The Need for Clarification

  • Thomas J. Schoenbaum (a1)

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