UNCLOS and Ocean Dispute Settlement: Law and Politics in the South China Sea

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States Parties may opt out of the compulsory procedures for disputes on the interpretation or application of the provisions on maritime boundary delimitation, disputes involving historic bays or titles, and disputes concerning military activities. Several states have made declarations excluding these categories of disputes from the compulsory procedures on the settlement of disputes, including China, Korea and Thailand.

Several states in Asia have resorted to the compulsory dispute settlement procedures in Unclos.

Unclos and Ocean Dispute Settlement: Law and Politics in the South China Sea

First, Malaysia instituted proceedings against Singapore in the dispute concerning Singapore's land reclamation activities in the Johor Strait. Second, Bangladesh instituted proceedings against both India and Myanmar with respect to longstanding disputes on the delimitation of maritime boundaries in the Bay of Bengal.

Activists at a protest in front of the Chinese Embassy in Manila on July 12, ahead of the tribunal ruling.

South China Sea Arbitration Is Actually Issue of Territorial Sovereignty: Legal Expert

Third, Japan instituted proceedings against Russia on the prompt release of its vessels in the Hoshimaru and Tomimaru cases. Fourth, the Philippines instituted proceedings in against China with regard to China's actions in the South China Sea. Most recently, Timor Leste invoked the procedures in Unclos against Australia in an attempt to bring their maritime boundary dispute to "compulsory non-binding conciliation" as provided for in Article of Unclos.

It should be noted that the compulsory dispute settlement procedures in Unclos are applicable only to disputes on the interpretation or application of provisions in Unclos.

Failing or Incomplete? Grading the South China Sea Arbitration

There are no provisions in Unclos on how to determine which state has the better claim to sovereignty over disputed offshore islands. Therefore, the dispute settlement regime in Unclos cannot be invoked to resolve the dispute about who has the better claim to sovereignty over the disputed islands in the South China Sea or East China Sea. Cases have also been instituted against states in the Asian region. Australia and New Zealand instituted proceedings against Japan in the "southern bluefin tuna" cases. In addition, Italy instituted proceedings against India in a case concerning the Enrica Lexie incident that is currently before the International Tribunal for the Law of the Sea.

It should be noted that the compulsory dispute settlement procedures in Unclos are only applicable to disputes on the interpretation or application of provisions in Unclos. The Philippines vs China case In recent months, the spotlight has been put on the dispute settlement regime in Unclos because of the case instituted by the Philippines against China in China refused to participate in the case, but the arbitration proceeded in its absence as provided for in Unclos.

Philippines v. China - Wikipedia

The decision of the tribunal on the merits of the case was given on July The Philippines versus China case highlights several points about the dispute settlement system in Unclos. But first let me correct one common misunderstanding about the case. The Permanent Court of Arbitration at The Hague which is not actually a court is simply providing secretariat services to the Annex VII arbitral tribunal at the tribunal's request.

Information about the case is found on the website of the PCA because it is providing secretariat services to the tribunal. I will now make a few points about the case. First, the Philippines invoked the procedures in Unclos to bring China to arbitration on several disputes concerning the interpretation or application of Unclos. China's consent to participate in this particular arbitration was not required. This is because China, like all other parties to Unclos, consented to the compulsory dispute settlement procedures in Unclos when it ratified the convention. If China believed that the tribunal lacked jurisdiction over some or all of the disputes raised by the Philippines, it had the right to challenge the jurisdiction of the tribunal.

However, it is clear under Unclos that the decision on whether the tribunal has jurisdiction in the case is made by the tribunal, not by the state objecting to its jurisdiction. This is a common principle in international arbitration known as "competence de la competence".

TOKYO (4 p.m.)

Second, the award of the arbitral tribunal is final and binding on the two parties to the dispute, the Philippines and China. However, there is no mechanism by which the tribunal can enforce its decision. The dispute settlement system in Unclos, as in other international treaties, assumes that because states have agreed to the convention and its dispute settlement provisions, they will comply in good faith with decisions of courts or tribunals rendered in accordance with the provisions in the convention.

Significance of ruling In its award, the arbitral tribunal gave rulings on several legal issues that are very significant for all parties to Unclos. First, it confirmed that, under Unclos, a coastal state has sovereign rights to explore and exploit the natural resources in its exclusive economic zone EEZ , and that the sovereign rights of the coastal state in its EEZ are not compatible with "historic rights" claimed by other states. In other words, Unclos provides that the coastal state has sovereign rights to all the fisheries resources in its nautical-mile EEZ, notwithstanding the fact that some of the areas in its EEZ may have been the historic fishing grounds of other states, and notwithstanding the fact that prior to Unclos entering into force, other states may have fished in those waters because they were governed by the principle of freedom of fishing on the high seas.

Second, the tribunal in this case was the first international court or tribunal to interpret and apply the language in Article 3 of Unclos, which provides that "rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf".

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The tribunal ruled that none of the disputed islands in the Spratlys, including the largest, Itu Aba - also known as Taiping - are islands entitled to an EEZ and continental shelf of their own. The tribunal held that all of the largest islands in the Spratlys are "rocks" entitled to no more than a nautical-mile territorial sea.


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However, recently there have been calls to amend the Convention due to some ambiguous provisions which are unable to address a variety of contemporary maritime issues. This book evaluates the applicability and effectiveness of UNCLOS as a settlement mechanism for addressing ocean disputes. The book's central focus is on the South China Sea SCS dispute, one of the most complex and challenging ocean-related conflicts in the world. The book examines the ways in which an emphasis on sovereignty, threats to maritime security and overlapping maritime claims caused by the newly established maritime regimes authorized by UNCLOS are all contributing factors to the SCS dispute.


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