Delimitation as an Exception to the UNCLOS Compulsory Dispute Settlement Procedures

Abstract

The key issues in the South China Sea arbitration concern the interpretation and application of the delimitation exception stipulated in Article 298 of the UNCLOS. Against this background, this article examines the meaning of the delimitation exception by applying the VCLT interpretation rule and resorting to relevant case law. It finds that the exception should be interpreted to cover disputes on and connected with the delimitation process (i.e., delimitation-relevant disputes). Seeking a balanced application of the exception, this article further assesses typical disputes within the reach of delimitation and discusses procedural requirements, criterion and methods for identifying delimitation-relevant disputes. Consequently it concludes that claims in the South China Sea arbitration are delimitation-relevant; as a result, the Arbitral Tribunal shall have no jurisdiction and the way forward is to return to sincere negotiation.

Keywords: dispute settlement, law of the sea, the South China Sea