The South China sea arbitration

Name: The South China sea arbitration
Author: Stefan Talmon

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Ingenaaid, 274 blz. | Engels

Hart Publishing | 1e druk, 2015

ISBN13: 9781849465472

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Hoofdrubriek : Juridisch

Juridisch : Burgerlijk recht en procesrecht

Jongbloed : Internationale arbitrage

Hart Publishing 1e druk, 2015 9781849465472

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On 22 January 2013, the Republic of the Philippines instituted arbitral proceedings against the People's Republic of China (PRC) under the United Nations Convention on the Law of the Sea (UNCLOS) with regard to disputes between the two countries in the South China Sea (South China Sea Arbitration). On 19 February 2013, the PRC formally expressed its opposition to the institution of proceedings, making it clear from the outset that it will not have any part in these arbitral proceedings and that this position will not change. It is thus to be expected that over the next year and a half, the Tribunal will receive written memorials and hear oral submissions from the Philippines only. The Chinese position will go unheard. However, the Tribunal is under an obligation, before making its award, to satisfy itself not only that it has jurisdiction over the dispute, but also that the claims brought by the Philippines are well founded in fact and law (UNCLOS Annex VII, Article 9).This book aims to offer a (not the) Chinese perspective on some of the issues to be decided by the Tribunal and thus to assist the Tribunal in meeting its obligations under the Convention. The book does not set out the official position of the Chinese government, but is rather to serve as a kind of amicus curiae brief advancing possible legal arguments on behalf of the absent respondent. The book does not deal with the merits of the disputes between the Philippines and the PRC, but focuses on the questions of jurisdiction, admissibility and other objections which the tribunal will have to decide as a preliminary matter. The book will show that there are insurmountable preliminary objections to the Tribunal deciding the case on the merits and that the Tribunal would be well advised to refer the dispute back to the parties in order for them to reach a negotiated settlement.The book brings together scholars of public international law from mainland China, Taiwan and Europe united by a common interest in the law of the sea and disputes in the South China Sea.

Specificaties

ISBN13:9781849465472

Taal:Engels

Bindwijze:ingenaaid

Aantal pagina's:274

Uitgever:Hart Publishing

Druk:1

Hoofdrubriek:Burgerlijk recht en procesrecht

Jongbloed:Internationale arbitrage

Inhoudsopgave

Preface
Abbreviations
Contributors
Table of Cases
Table of Treaties
Table of National Instruments

1. Introduction
Bing Bing Jia and Stefan Talmon
I. The Disputes between the Philippines and China in the South
China Sea
II. The South China Sea Arbitration
2. The South China Sea Arbitration: Is There a Case to Answer?
Stefan Talmon

I. Introduction
II. Default of Appearance in Historical Perspective
III. The Consequences of Default of Appearance
IV. Possible Preliminary Objections to the Philippines’ Claims

1. Lack of Jurisdiction of the Arbitral Tribunal
a. Limited Subject-Matter Jurisdiction
(1) Lack of Dispute between the Parties
(2) Subject-Matter outside the Jurisdiction of the Tribunal
(a) Sovereignty and other Rights over Land Territory
(b) Historic Titles and Historic Rights
b. Ipso Jure Limitations on Jurisdiction
c. Optional Exceptions to Jurisdiction

2. Inadmissibility of the Claims
a. Obligation to Exchange Views
b. Commitment to Other Means of Dispute Settlement

3. Other Objections of a Preliminary Character
a. Indispensable Third Parties
b. Abuse of Legal Process
V. The Politics of Arbitration
VI. Conclusion
3. Issues of Jurisdiction in Cases of Default of Appearance
Michael Sheng-ti Gau
I. Introduction
II. Default of Appearance and Ensuing Duties of the Tribunal
III. The Requirement of a Dispute between the Parties
1. Determination of the Disputes
a. The First Group of Claims Concerning China’s
Maritime Areas in the South China Sea
b. The Second Group of Claims Concerning Sovereignty of Certain Reefs
c. The Third Group of Claims Concerning the ‘Rock’-Status of Certain Reefs
d. The Fourth Group of Claims Concerning the Philippines’ Claim to Maritime Zones and
Corresponding Rights in the South China Sea
e. The Fifth Group of Claims Concerning the Right to Navigation
f. Conclusion
2. The Real Disputes between the Parties
3. Identity of Disputes under Section 1 and Section 2 of the Convention
IV. The Requirement that the Disputes Concern the Interpretation or Application of the Convention
V. Disputes Removed from Compulsory Jurisdiction under 1
Article 298 UNCLOS
VI. Conclusion
4. The Issue of Admissibility in Inter-State Arbitration
Bing Bing Jia
I. Introduction
II. Primary Obligation to Negotiate: Article 281(1) UNCLOS
1. Agreement to Seek Settlement by Negotiations
a. Agreement as Evidenced in the 2002 Declaration
and Other Official Documents Issued Jointly by China and the Philippines
b. Agreement in the Form of the Treaty of Amity and
Cooperation of 1976, as Amended
c. Conclusion
2. No Relevant and Conclusive Proof as to the Failure of
Negotiations
a. Negotiations Undertaken under the 2002 Declaration
and Other Related Official Documents
b. Negotiations under the Treaty of Amity and
Cooperation in Southeast Asia
c. Conclusion
3. Exclusion of Further Procedures
a. Exclusion under the 2002 Declaration
b. Exclusion under the Treaty of Amity and Cooperation
in Southeast Asia
c. Conclusion 124
4. Summary 124
III. Defects of Certain Claims 125
1. Mootness of Claims 125
2. Vagueness of Claims 127
IV. Abuse of Rights/Procedure 128
V. Estoppel 131
VI. Conclusion 135
5. Jurisprudential Tenability of the Philippines v China 137
Arbitration on South China Sea Disputes?
Haiwen Zhang and Chenxi Mi
I. Introduction 137
II. What Are the Philippines’ Claims against China? 138
III. China’s Reasons for Refusing the Philippines’ Arbitration 141
Request
1. Failure to Fulfil in Good Faith Legal Obligations under 141
UNCLOS
2. Serious Legal Flaws in the Notification and Statement of 146
Claim
3. Breach of Numerous Declarations and Bilateral Agreements 148
IV. Chinese Policy toward Resolution of the South China Sea 149
Disputes
1. The Essence of the South China Sea Disputes 149
2. Integrity of the Dispute Settlement System under UNCLOS 151
3. Peaceful Settlement of the Disputes through Negotiations 152
V. Future of the Arbitration 153
1. Possibility of the Philippines Revising Its Claims or 153
Introducing New Ones
2. Attitude of Vietnam toward the Case 154
3. Attitude of Taiwan Authorities toward the Case 155
VI. Conclusion 156
6. Annexes
I. Selected Documents Relevant to the South China Sea Arbitration 159
II. Select Bibliography on the South China Sea Disputes 219
III. Glossary of Place Names 229
Bibliography 233
Index 241