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1. Arbitration as a Means to Settle Territorial Disputes in the South China Sea: Case Study and History of China and The Philippines

Author:
Monika Chansoria
Publication Date:
05-2020
Content Type:
Policy Brief
Institution:
Japan Institute Of International Affairs (JIIA)
Abstract:
South China Sea’s territorial disputes gained the spotlight yet again with the April 18, 2020 announcement1 by China’s State Council, through which, it approved setting up ‘two new’ municipal districts (dependencies of the southernmost Sansha city, in the Hainan province) covering the South China Sea – namely the ‘Xisha District’ and ‘Nansha District’. Home to an estimated 11 billion barrels of untapped oil, and 190 trillion cubic feet of natural gas, the Spratly Islands in the South China Sea possess rich natural resources and fishing areas. The Fiery Cross Reef will be in charge of the administration of the islands, reefs, and sea areas of the Spratly Islands.2 The Fiery Cross Reef used to be an underwater reef that was converted into an artificial island following massive land reclamation undertaken by China. This reef was virtually untouched by manmade structures until March 2014 and was transformed into an artificial island in the span of one year by March 2015. Furthermore, the Woody Island will be in charge of the administration of the islands, reef, and sea areas of the Paracel Islands.3 China’s Ministry of Civil Affairs and the Ministry of Natural Resources has released the longitudes, latitudes, and standardized names of 25 islands and reefs and 55 undersea geographic entities in the disputed South China Sea. The listed islands include Sanzhizai – an islet north of the Woody Island in Sansha city in South China’s Hainan Province.
Topic:
Territorial Disputes, Geopolitics, and Arbitration
Political Geography:
China, Asia, Philippines, and South China Sea

2. UNCLOS Dispute Settlement in Context: The United States’ Record in International Arbitration Proceedings

Author:
Julia Brower, Christina Koningisor, Ryan Liss, and Michael Shih
Publication Date:
12-2012
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
The United Nations Convention for the Law of the Sea (UNCLOS) establishes a compulsory dispute settlement regime for resolving disagreements between member states. Critics of the Convention have argued that the mandatory dispute resolution provisions force member states to cede too much control over the dispute resolution process to an international body. They have also argued that the dispute resolution process is biased against the United States, and that the United States tends to fare poorly in international arbitration proceedings. This report addresses the first criticism by examining possible exceptions to mandatory dispute resolution provisions. At least one Annex VII tribunal has interpreted Article 281(1) of UNCLOS to permit states to contract around the mandatory dispute resolution provision through regional agreements. However, a subsequent tribunal applied a much more constrained interpretation of the Article 281 exception. Ultimately, the impact of this exception will depend upon which interpretation is applied. The report also examines the scope of the Article 298(1)(c) exception, which exempts from binding resolution “disputes in respect of which the Security Council . . . is exercising the functions assigned to it by the [U.N.] Charter.” This exception is not confined to specific subject matters, but it is limited by the procedural difficulties of adding or removing an item from the Security Council’s agenda, as well as by the political costs that such an effort entails. Finally, the report notes that UNCLOS’s compulsory dispute settlement regime is not accompanied by similarly robust enforcement provisions. The report addresses the second criticism by examining the United States’ record in arbitration proceedings under eighteen multilateral treaties containing mandatory dispute resolution provisions, as well as a series of bilateral aviation agreements that provide for mandatory dispute resolution. Fifteen of those agreements have yielded very few readily identifiable arbitration proceedings involving the United States.
Topic:
International Law, United Nations, Legal Theory, and Arbitration
Political Geography:
North America and United States of America