Full Description
This book examines the South China Sea Arbitration between the Philippines and China, widely hailed as a landmark case in the law of the sea. Stefan Talmon argues that while the Tribunal assembled international lawyers of the highest repute and unrivalled experience, the case was nevertheless decided wrongly. He examines every step of the proceedings and critically engages with both the Philippines' submissions and the Tribunal's rulings. He finds that the Tribunal was lacking jurisdiction to decide the case, that some of the Philippines' claims were also inadmissible, and that the Tribunal's awards were tainted with procedural errors.
Contents
Preface
List of Tables and Maps
Abbreviations
Table of Cases
Table of Treaties and International Instruments
Table of National Instruments
Glossary of Place Names
Map 1: The South China Sea
1 History of the South China Sea Arbitration
1 Disputes in the South China Sea
2 Initiation of Arbitration Proceedings by the Philippines
3 China's Rejection of the Arbitration
4 Constitution of the Arbitral Tribunal
5 Designation of the Permanent Court of Arbitration as Registry
6 China's Default of Appearance
6.1 Default of Appearance in Historical Perspective
6.2 The Consequences of Default of Appearance
7 The Politics of Arbitration
8 The Proceedings
8.1 The Written Proceedings
8.2 The Decision on Bifurcation
8.3 The Hearing on Jurisdiction and Admissibility
8.4 The Final Submissions
8.5 The Award on Jurisdiction and Admissibility
8.6 The Hearing on Outstanding Questions of Jurisdiction and Admissibility and the Merits
8.7 Post-hearing Proceedings
8.8 The Final Award
9 Costs of the Arbitration
10 The Parties' Position on the Arbitral Award
2 The Philippines' Statement of Claim
1 Introduction
2 Lack of Jurisdiction of the Arbitral Tribunal
2.1 Limited Subject-Matter Jurisdiction
2.1.1 Lack of Dispute between the Parties
2.1.2 Subject-Matters outside the Jurisdiction of the Tribunal
2.2 Ipso Jure Limitations on Jurisdiction
2.3 Optional Exceptions to Jurisdiction
3 Inadmissibility of the Claims
3.1 Obligation to Exchange Views
3.2 Commitment to Other Means of Dispute Settlement
4 Other Objections of a Preliminary Character
4.1 Indispensable Third Parties
4.2 Abuse of Legal Process
5 Conclusion
3 The Award on Jurisdiction and Admissibility
1 Introduction
2 Jurisdiction of the Arbitral Tribunal
2.1 Dispute Concerning the Interpretation or Application of the Convention
2.1.1 Existence of a Dispute
2.1.2 Nature of the Dispute
2.2 Indispensable Third Party
2.3 Obligation to Exchange Views
2.3.1 Purpose and Content of the Obligation
2.3.2 Exchange of Views with Regard to the Subject-Matter of Individual Submissions
3 Admissibility of the Claims
3.1 New Claims
3.1.1 Formal Amendment of the Statement of Claim
3.1.2 Introduction of New Claims
3.2 Hypothetical Disputes
3.2.1 Assumption of Chinese Sovereignty over Scarborough Shoal
3.2.2 Assumption of Chinese Sovereignty over All Islands in the Spratly Islands
4 Procedural Questions
4.1 Deferment of Unclear Submissions
4.2 Conditional Findings of Jurisdiction
4.3 Classification of Objections as Not Possessing an Exclusively Preliminary Character
4.3.1 The Options to Deal with Preliminary Objections
4.3.2 Determining the Character of a Preliminary Objection
4.3.3 The Tribunal's Treatment of Possible Objections to Its Jurisdiction
4.4 Production of New Documents
5 Conclusions
4 The Final Award
1 Introduction
2 Jurisdiction of the Arbitral Tribunal
2.1 Disputes over Claims Involving Historic Titles
2.1.1 Historic Titles, Historic Waters and Historic Rights
2.1.2 Meaning of 'Historic Titles' in Article 298(1)(a)(i) unclos
2.1.3 Misrepresentation of China's Claim as a Claim to Historic Rights to the Living and Non-living Resources within the Nine-Dash Line
2.1.4 China's Claim to Territorial Sovereignty over the Spratly Islands since Ancient Times
2.1.5 Ancient Title to the Spratly Islands Archipelago
2.1.6 The Relationship between Historic Waters of Archipelagos and unclos
2.1.7 Disputes over Claims to Historic Waters of Archipelagos as Disputes Involving Historic Title
2.1.8 Conclusion
2.2 Disputes Relating to Sea Boundary Delimitation
2.2.1 Chinese Maritime Zones Based on the Spratly Islands Archipelago
2.2.2 Chinese Maritime Zones Based on Individual High-Tide Features in the Spratly Islands
3 Admissibility of Claims and the Exhaustion of Local Remedies
4 Procedural Questions
4.1 The Principle of Non Ultra Petita
4.2 Last-Minute Judicial Fact-Finding
5 Conclusions
5 Beyond the South China Sea Arbitration
1 Possible Aftereffects of the Philippines' Tactical Admissions
1.1 Introduction
1.2 The Tactical Admission of Chinese Sovereignty over Scarborough Shoal
1.3 Tactical Admissions and the Principle of Good Faith
1.4 Legal Effects of Tactical Admissions
1.4.1 Binding Unilateral Declaration
1.4.2 Estoppel by Conduct
1.4.3 Legitimate Expectations
1.4.4 Preclusion of Inconsistent Positions
1.4.5 Weakening of the Contrary Position
1.5 Conclusion
2 The 'Finality' of the Tribunal's Final Award
2.1 Introduction
2.2 Meaning of Finality of Arbitral Awards
2.3 Lack of Finality of Judicial Pronouncements on International Law
2.4 Means to Call into Question the Substantive Finality of Arbitral Awards
2.4.1 International Legislation
2.4.2 Conflicting State Practice
2.4.3 Subsequent Agreements between the Parties
2.4.4 Diverging Decisions by Other Courts and Tribunals
2.5 State Reactions Calling into Question the Finality of the Findings on Article 121(3) unclos
2.5.1 Silence or Outright Opposition to the Tribunal's Findings
2.5.2 Partisan Endorsements of the Tribunal's Findings
2.5.3 Continuing Contrary State Practice
2.6 Previous Jurisprudence Calling into Question the Finality of the Findings on Article 121(3) unclos
2.7 Conclusion
Bibliography
Index
