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South China Sea Arbitration
Published online by Cambridge University Press: 01 January 2021
Abstract
Arbitration — Jurisdiction and admissibility — United Nations Convention on the Law of the Sea, 1982 (“UNCLOS”) — UNCLOS Part XV and Annex VII — Preliminary matters — Consequences of non-participation by respondent in arbitration proceedings — Whether arbitration constituting abuse of legal process — Identification and characterization of dispute — Whether dispute concerning interpretation and application of UNCLOS — Whether dispute concerning territorial sovereignty — Whether dispute concerning maritime delimitation — Whether third parties indispensable to proceedings
Arbitration — Preconditions to Tribunal’s jurisdiction — UNCLOS Part XV, Section 1 — UNCLOS Articles 281, 282 and 283 — Whether Parties agreeing to seek settlement by a means of their own choice — Whether settlement reached by recourse to agreed means — Whether Parties’ agreement excluding further procedure — Whether Parties agreeing through general, regional or bilateral agreement to submit dispute to procedure entailing binding decision — Whether Parties having agreed to opt back in to Part XV — Obligation to exchange views — Obligation to negotiate prior to initiation of compulsory procedures
Arbitration — Limitations and exceptions to Tribunal’s jurisdiction — UNCLOS Part XV, Section 3 — Automatic limitations under Article 297 — Optional exceptions under Article 298 — China’s declaration under Article 298 — Exclusions concerning maritime delimitation — Exclusions concerning historic titles — Exclusions concerning military activities — Exclusions concerning law enforcement activities — Whether issues of jurisdiction possessing exclusive preliminary character
Sea — Scope of UNCLOS — Title to land territory — Historic rights to maritime spaces — South China Sea — China’s “nine-dash line” — Scope of maritime entitlements under UNCLOS — Historic rights to living and non-living resources within nine-dash line
Sea — Islands and other maritime features — UNCLOS Articles 13 and 121 — Maritime entitlement of features — Whether features constituting low-tide elevations — Whether low-tide elevations capable of appropriation — Whether features constituting rocks — Whether Spratly Islands having high-tide features
Sea — Fisheries — UNCLOS Articles 2(3), 56, 58, 60, 77 and 80 — Traditional fishing at Scarborough Shoal — Whether China interfering with oil exploration at Reed Bank — China’s 2012 moratorium on fishing in South China Sea — Flag State’s obligation of due diligence over fishing vessels — Whether China constructing artificial islands and installations at Mischief Reef — Philippines’ jurisdiction over artificial islands in exclusive economic zone and continental shelf
Sea — Marine environment — UNCLOS Articles 123, 192, 194, 197 and 206 — Marine environment protection — Whether China engaging in harmful fishing practices — Whether China constructing artificial islands, installations and structures on seven reefs in Spratly Islands — Obligation to prevent direct harvesting of endangered species — Obligation to prevent destruction of endangered species’ habitat — Obligation to cooperate — Obligation to communicate environmental impact assessment
Sea — Safety at sea — UNCLOS Article 194 — Convention on the International Regulations for Preventing Collisions at Sea, 1972 (“COLREGS”) — COLREGS Rules 2, 6, 7, 8, 15 and 16 — Safety of navigation — Risks of collision — China’s operation of law enforcement vessels at Scarborough Shoal
Sea — Dispute settlement — UNCLOS Part XV — UNCLOS Articles 279, 296 and 300 — Duty to refrain from aggravating or extending a dispute during settlement proceedings — General international law — Duty to abstain from measure capable of exercising prejudicial effect on execution of decision
Treaties — Binding agreements — Declaration of Conduct of Parties — Bilateral agreements — Treaty of Amity and Cooperation in Southeast Asia, 1976 — Convention on Biological Diversity, 1992 — Whether Declaration of Conduct binding agreement on means of dispute settlement — Whether bilateral statements constituting legally binding agreements — Interpretation
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- © Cambridge University Press 2017