By Tim Stephens -
Snapshot
- An UNCLOS arbitral tribunal has issued its unanimous award in The South China Sea Arbitration between the Philippines and China.
- The Tribunal agreed with most of the Philippines’ arguments, including that China’s claim to historic rights within a ‘nine-dash line’ encompassing most of the South China Sea is contrary to UNCLOS and exceeds China’s maritime entitlements.
- The South China Sea Arbitration is one of the most complex and significant decisions rendered by an international court or tribunal in the international law of the sea.
In 12 July 2016, an arbitral tribunal (the Tribunal) established under the 1982 United Nations Convention on the Law of the Sea (‘UNCLOS’) issued its unanimous award in the South China Sea Arbitration between the Philippines and China. The Tribunal agreed with most of the Philippines’ arguments, including that China’s claim to historic rights within a ‘nine-dash line’ encompassing most of the South China Sea is contrary to UNCLOS and exceeds China’s maritime entitlements. The decision clarifies several provisions of UNCLOS, most notably article 121 concerning islands, which provides that mere rocks incapable of sustaining human habitation or economic life may only generate a 12 nautical mile territorial sea and not a 200 nautical mile exclusive economic zone (‘EEZ’) or continental shelf.
The South China Sea Arbitration carries major significance for the parties to the arbitration and to the other littoral states in the South China Sea.
History
The South China Sea Arbitration was commenced by the Philippines against China in 2013. The Tribunal had previously issued an award on jurisdiction and admissibility on 29 October 2015 deciding most issues of jurisdiction, while deferring several for determination at the merits phase. The Permanent Court of Arbitration in The Hague served as the registry for the proceedings.
Both the Philippines and China are parties to UNCLOS, and are bound by the provisions of the Convention including those which establish a system of compulsory third-party dispute settlement (except in relation to certain defined exemptions).
China neither accepted nor participated in the arbitral proceedings, but did release a detailed ‘position paper’ in December 2014 setting out its view of the factual and legal issues in dispute.
In China’s absence, the Tribunal took steps to satisfy itself fully that it possessed jurisdiction over the dispute, and to assess whether the Philippines’ claims were well founded in fact and law (including by appointing independent experts to provide reports to the Tribunal on technical points).
