Category: Law of the Sea Convention (UNCLOS)

By: Julia Gaunce

PDF Version: The South China Sea Award and the duty of “due regard” under the LOSC

Decision Commented On: Award on the Merits of the Annex VII Tribunal, In the Matter of the South China Sea Arbitration, The Republic of the Philippines v The People’s Republic of China, 12 July 2016

As recited in an earlier post by Nigel Bankes, the Annex VII Tribunal in the South China Sea Arbitration (SCSA) handed down its Award on the Merits in the dispute between the Philippines and China on 12 July 2016. The dispute between the parties involves China’s extensive maritime claims in the South China (many within the context of the so-called nine dash line), claims in relation to fishing activities by Chinese flagged vessels, as well as claims in relation to China’s dredging and construction activities associated with reclamation activities on a series of maritime features in the South China. The Tribunal ruled in favour of the Philippines on almost all issues in its 479 page unanimous and comprehensive decision.

This post examines the Tribunal’s interpretation of the duty of “due regard” under the United Nations Law of the Sea Convention (LOSC) Article 58(3) in the course of its consideration of Submission No. 9 by the Philippines. That submission requested that the Tribunal declare that “China has unlawfully failed to prevent its nationals and vessels from exploiting the living resources in the exclusive economic zone of the Philippines” (at para 717). The obligation of “due regard” is one of the key mechanisms adopted in the LOSC to balance the potentially competing interests of coastal states and other uses of the new maritime zone, the exclusive economic zone, recognized by LOSC.

By: Alex G. Oude Elferink

PDF Version: The South China Sea Arbitration’s Interpretation of Article 121(3) of the LOSC: a Disquieting First

Decision commented on: The Matter of the South China Sea Arbitration, Between the Republic of Philippines and The People’s Republic of China, Award on the Merits (Award) of 12 July 2016 (Registry, the Permanent Court of Arbitration).

Introduction

The central issue in the arbitration instituted by the Philippines against China under the United Nations Convention on the Law of the Sea (LOSC) on 22 January 2013 no doubt concerned the question whether the Spratly Islands and Scarborough Reef have a continental shelf and an exclusive economic zone. If this were to be the case, and China’s sovereignty claim over the islands were to be vindicated, their potential continental shelf and exclusive economic zone entitlement would extend to most of the South China Sea. In this case, the continental shelf and the exclusive economic zone of the islands would have to be delimited with that of the other States surrounding the South China Sea and China would have undisputed water-column rights in the central part of the South China in accordance with Part V of the LOSC. This outcome would also have limited the availability of third party settlement under Part XV of the LOSC to resolve the law of the sea dimension of the South China Sea dispute. China has made a declaration excluding maritime boundary delimitation from compulsory dispute settlement mechanisms in accordance with article 298 of the Convention. On the other hand, if the Spratly Islands and Scarborough Reef do not have a continental shelf and exclusive economic zone, the area beyond their territorial sea would be part of the continental shelf and exclusive economic zones of the other States surrounding the South China Sea and the islands would only be entitled to a 12-nautical-mile territorial sea and a 24-nautical-mile contiguous zone.

By: Endalew Lijalem Enyew

PDF Version: The South China Sea Award and the Treatment of Traditional Fishing Rights within the Territorial Sea

Decision commented on: The Matter of the South China Sea Arbitration, Between the Republic of Philippines and The People’s Republic of China, Award on the Merits (SCSA) of 12 July 2016 (Registry, the Permanent Court of Arbitration).

Pursuant to Articles 286, 287 and Article 1 of Annex VII of the Convention on the Law of the Sea (LOSC), on 22 January 2013, the Republic of Philippines instituted arbitral proceedings concerning the legal basis of maritime rights and entitlements in the South China Sea, the status of certain geographical features in the South China Sea, and the lawfulness of certain actions taken by China in the South China Sea. The Arbitral Tribunal (hereafter Tribunal) was fully constituted on 21 June 2013.

The Philippines made fifteen submissions to the Tribunal, of which submission No. 10 is the focus of this post. In this submission the Philippines requested the Tribunal to adjudge and declare that: “China has unlawfully prevented Philippine fishermen from pursuing their livelihoods by interfering with traditional fishing activities at Scarborough Shoal” (SCSA, para. 112(B)(10)). Since both parties claimed sovereignty over the Scarborough Shoal and the issue of sovereignty is not yet settled and could not be resolved by this arbitration, the Philippines submission No. 10 is based on the alternative premise that if China is sovereign over Scarborough Shoal, then China has failed to respect the traditional fishing rights of Philippine fishermen within the territorial sea of that Shoal. The Tribunal had earlier decided (at paras 554 – 556) that the Shoal was a rock within the meaning of Article 121 of LOSC and thus capable of generating a territorial sea but not an exclusive economic zone (EEZ) or a continental shelf. The Tribunal was careful to state (para. 793) that its conclusions were not predicated on the assumption that either Party had sovereignty over the Shoal. Hence, the Philippines’ submission No. 10 involves one important issue: the application of traditional fishing rights (TFRs) within the territorial sea of another State. The Tribunal unanimously decided that it had jurisdiction to rule on this submission “to the extent that the claimed rights and alleged interference occurred within the territorial sea of Scarborough Shoal” (Award on Jurisdiction and Admissibility, para. 407). This is because the submission related neither to sovereignty nor maritime delimitation; nor does it engage any limitation or exception under Articles 297 and 298 of the LOSC that may exclude the jurisdiction of the Tribunal (Award on Jurisdiction and Admissibility, paras. 407 & 413(g)).

JCLOS Blog Admin: This is the first of what we hope will be a series of different posts over the next few weeks on the Award on the Merits in the South China Sea Arbitration.

By: Nigel Bankes

PDF Version: The South China Sea Award and the Vienna Convention on the Law of Treaties

Decision Commented On: Award on the Merits of the Annex VII Tribunal, In the Matter of the South China Sea Arbitration, The Republic of the Philippines v The People’s Republic of China, 12 July 2016.

The Annex VII Tribunal in the South China Sea Arbitration handed down its decision on the merits in the dispute between the Philippines and China on 12 July 2016. The dispute between the parties involves China’s extensive maritime claims in the South China Sea (many within the context of China’s so-called nine dash line); claims in relation to fishing activities by Chinese flagged vessels; and claims in relation to China’s dredging and construction activities associated with reclamation activities on a series of maritime features in the South China Sea. The Tribunal ruled in favour of the Philippines on almost all issues in its 479 page unanimous and comprehensive decision.  There are already a number of posts on the Award; see, for example the useful first thoughts offered by Doug Guilfoyle on the blog of the European Journal of International Law.