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The South China Sea Arbitration: the Republic of Philippines vs. the People's Republic of China

First Reactions to the Philippines v China Arbitration Award Concerning the Supposed Historic Claims of China in the South China Sea

Author: Clive R. Symmons

Asia-Pacific Journal of Ocean Law and Policy 1 (2016) 260-267

Judging from the conferences I have already attended on the Award on the Merits of the Arbitral Tribunal in the case of Philippines v China (2016), the Tribunal’s award has already received much critical comment from many international lawyers. However this may be, on the matter of historic maritime claims – speaking as one who has researched deeply into, and has written a book, on historic waters[1] (wherein I belaboured the shortcomings of this customary international law doctrine as I found it), and who has since written critically-orientated papers on the validity of the supposed Chinese historic claim in the South China Sea (hereafter ‘SCS’)[2] – I applaud the findings of the Tribunal on this issue. For the basic reason that at last the question of historic maritime rights in the contemporary law of the sea has arisen for adjudication in a very direct fashion; and has received a detailed consideration from an international adjudicative body in the context of UNCLOS (rather than as a superficial non-UNCLOS-based consideration as, for example, by the ICJ on the particular facts of the Gulf of Fonseca case[3]).

The reason, then, for this positive sentiment is that I consider that the Tribunal has not only clarified the past vague and inter-changeable terminology of the meanings of terms bandied about in past ICJ case law and international documentation relating to historic claims at sea (eg, in Tunisia v Libya)[4] – such as ‘historic rights’ and ‘historic title’ – but has also clarified the inter-relationship and interaction of this doctrine with UNCLOS; and, in so doing, has clearly and convincingly demonstrated the dominance of UNCLOS’ treaty regime in respect of such essentially customary international law issues (as are potentially preserved in UNCLOS’ preamble). Albeit this initially came about in the narrower context of the arbitral Tribunal needing to determine whether the Chinese supposed historic maritime claim in the scs was caught by the ‘optional exceptions’ to the arbitral Tribunal’s jurisdiction. Article 298(1)(a) of UNCLOS provides that a State Party may declare that disputes involving ‘historic bays or titles’ be excluded from compulsory arbitration (as China indeed invoked by a declaration on 25 August 2006).

The way the Tribunal dealt with this issue was methodical, logical and legally acceptable, especially considering the ambiguity of the Chinese claim to historic rights (as was much commented on by the Tribunal,[5] as also in the Philippines pleadings in the case). […]

Read the full article at https://maritimearchives.files.wordpress.com/2017/01/first-reactions-to-the-philippines-v-china-arbitration-award-concerning-the-supposed-historic-claims-of-china-in-the-south-china-sea.pdf

Notes

About the author: Clive R. Symmons is a Visiting Research Fellow in Trinity College, Dublin, Ireland. Email: csymmons@tcd.ie

[1] Clive R. Symmons, Historic Waters in the Law of the Sea: A Modern Re-Appraisal (Nijhoff, 2008).

[2] See eg, my chapter “Historic Waters and Historic Rights in the South China Sea”, in Shicun Wu, Mark Valencia and Nong Hong (eds), UN Convention on the Law of the Sea and the South China Sea (Ashgate, 2015), at 191

[3] El Salvador v. Honduras [1990] ICJ Reports, at 116.

[4] [1982] icj Reports, at 18. In this case the icj seems to use the expressions ‘historic rights’ and ‘historic title’ interchangeably, though the Tribunal in the Philippines v China in the South China Sea Arbitration cites the case as supporting its interpretative decision on the meaning of ‘historic title’. See Merits Award of 12 July 2016, PCA Case No. 2013–19, at para 224

[5] Ibid, at para 180.

 

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