Oxman: The South China Sea Arbitration Award

Bernard Oxman (Univ. of Miami - Law) has posted The South China Sea Arbitration Award. Here's the abstract:

On January 22, 2013, the Philippines submitted to arbitration its dispute with China regarding the interpretation and application of the UN Convention on the Law of the Sea in the South China Sea. China declined to participate, but did communicate its position on jurisdiction and certain other matters. On July 12, 2016, the arbitral Tribunal rendered its unanimous award. It concluded that China’s claim of historic rights to the maritime areas of the South China Sea encompassed by China’s “nine-dash line” is contrary to the Convention. Without addressing the competing claims to sovereignty over the islands, the Tribunal also determined that all of the Spratly Islands features that emerge above high tide are “rocks” that do not generate entitlement to an exclusive economic zone or continental shelf beyond a 12-mile territorial sea. In addition, the Tribunal found that China’s island-building activities in the Spratly’s, commenced after the dispute was submitted to arbitration, caused extensive damage to coral reefs that violated the environmental provisions of the Convention, and also aggravated and extended the dispute. The Tribunal held that failure to control fishing for internationally protected endangered species and failure to respect international collision regulations violated the Convention. The award also protected traditional artisanal fishing in the territorial sea of Scarborough Shoal. The perceptions of those that border and use the South China Sea will unquestionably be affected by the award’s authoritative contribution to the law of the sea. Among the award’s long term effects may be a tempering of disputes over small features at sea and the entitlements they generate, as well as a decline in gratuitous environmental disruption occasioned by attempts to artificially enhance such features to reinforce claims to maritime jurisdiction.