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The South China Sea Arbitration: Jurisdiction, Admissibility, Procedure de Stefan Talmon

The South China Sea Arbitration: Jurisdiction, Admissibility, Procedure: Publications on Ocean Development, cartea 99

Autor Stefan Talmon
en Limba Engleză Hardback – 10 aug 2022
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.
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Specificații

ISBN-13: 9789004381186
ISBN-10: 900438118X
Dimensiuni: 155 x 235 mm
Greutate: 0 kg
Editura: Brill
Colecția Brill | Nijhoff
Seria Publications on Ocean Development

Notă biografică

Stefan Talmon, D.Phil. (1996), University of Oxford, is Professor of Public Law, Public International Law and European Union Law at the University of Bonn and a Supernumerary Fellow of St. Anne’s College, Oxford. He practices as a Barrister from Twenty Essex, London.

Cuprins

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

1History 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
6.1Default of Appearance in Historical Perspective

6.2The Consequences of Default of Appearance


7 The Politics of Arbitration

8 The Proceedings
8.1The Written Proceedings

8.2The Decision on Bifurcation

8.3The Hearing on Jurisdiction and Admissibility

8.4The Final Submissions

8.5The Award on Jurisdiction and Admissibility

8.6The Hearing on Outstanding Questions of Jurisdiction and Admissibility and the Merits

8.7Post-hearing Proceedings

8.8The Final Award


9 Costs of the Arbitration

10 The Parties’ Position on the Arbitral Award


2The Philippines’ Statement of Claim
1 Introduction

2 Lack of Jurisdiction of the Arbitral Tribunal
2.1Limited Subject-Matter Jurisdiction
2.1.1 Lack of Dispute between the Parties

2.1.2 Subject-Matters outside the Jurisdiction of the Tribunal


2.2Ipso Jure Limitations on Jurisdiction

2.3Optional Exceptions to Jurisdiction


3 Inadmissibility of the Claims
3.1Obligation to Exchange Views

3.2Commitment to Other Means of Dispute Settlement


4 Other Objections of a Preliminary Character
4.1Indispensable Third Parties

4.2Abuse of Legal Process


5 Conclusion


3The Award on Jurisdiction and Admissibility
1 Introduction

2 Jurisdiction of the Arbitral Tribunal
2.1Dispute Concerning the Interpretation or Application of the Convention
2.1.1 Existence of a Dispute

2.1.2 Nature of the Dispute


2.2Indispensable Third Party

2.3Obligation 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
3.1New Claims
3.1.1 Formal Amendment of the Statement of Claim

3.1.2 Introduction of New Claims


3.2Hypothetical 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
4.1Deferment of Unclear Submissions

4.2Conditional Findings of Jurisdiction

4.3Classification 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


4.4Production of New Documents


5 Conclusions


4The Final Award
1 Introduction

2 Jurisdiction of the Arbitral Tribunal
2.1Disputes 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


2.2Disputes 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
4.1The Principle of Non Ultra Petita

4.2Last-Minute Judicial Fact-Finding


5 Conclusions


5Beyond the South China Sea Arbitration
1 Possible Aftereffects of the Philippines’ Tactical Admissions
1.1Introduction

1.2The Tactical Admission of Chinese Sovereignty over Scarborough Shoal

1.3Tactical Admissions and the Principle of Good Faith

1.4Legal 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


1.5Conclusion


2 The ‘Finality’ of the Tribunal’s Final Award
2.1Introduction

2.2Meaning of Finality of Arbitral Awards

2.3Lack of Finality of Judicial Pronouncements on International Law

2.4Means 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


2.5State 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


2.6Previous Jurisprudence Calling into Question the Finality of the Findings on Article 121(3) unclos

2.7Conclusion


Bibliography

Index