The South China Sea Arbitration: Is There a Case to Answer?

The South China Sea Arbitration: A Chinese Perspective, edited by Stefan Talmon and Bing Bing Jia (Oxford: Hart Publishing, 2014), pp. 15-79

Bonn Research Papers on Public International Law No 2/2014

69 Pages Posted: 10 Feb 2014

See all articles by Stefan A. G. Talmon

Stefan A. G. Talmon

University of Bonn, Institute of Public International Law

Date Written: February 9, 2014

Abstract

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 Philippines’ Memorial is due by 30 March 2014. The Chinese position, on the other hand, 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).

The chapter examines whether the Tribunal has jurisdiction to hear the case, whether the claims brought by the Philippines are admissible and whether there are any other objections which the tribunal will have to decide as a preliminary matter. It aims to offer a (not the) Chinese perspective on some of the issues to be decided by the Tribunal. The chapter is to serve as a kind of amicus curiae brief advancing possible legal arguments on behalf of the absent respondent. It shows 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.

Keywords: South China Sea, Philippines, China, Dispute Settlement, Arbitration, Law of the Sea, UNCLOS, Prelimiminary Objections

Suggested Citation

Talmon, Stefan A. G., The South China Sea Arbitration: Is There a Case to Answer? (February 9, 2014). The South China Sea Arbitration: A Chinese Perspective, edited by Stefan Talmon and Bing Bing Jia (Oxford: Hart Publishing, 2014), pp. 15-79. Available at SSRN: https://ssrn.com/abstract=2393025 or http://dx.doi.org/10.2139/ssrn.2393025

Stefan A. G. Talmon (Contact Author)

University of Bonn, Institute of Public International Law ( email )

Adenauerallee 24-42
D-53113 Bonn
Germany

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