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 Chinese position 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).This book aims to offer a (not the) Chinese perspective on some of the issues to be decided by the Tribunal and thus to assist the Tribunal in meeting its obligations under the Convention. The book does not set out the official position of the Chinese government, but is rather to serve as a kind of amicus curiae brief advancing possible legal arguments on behalf of the absent respondent. The book does not deal with the merits of the disputes between the Philippines and the PRC, but focuses on the questions of jurisdiction, admissibility and other objections which the tribunal will have to decide as a preliminary matter. The book will show 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.The book brings together scholars of public international law from mainland China, Taiwan and Europe united by a common interest in the law of the sea and disputes in the South China Sea.
Stefan Talmon, DPhil MA (Oxford University), LLM (Cambridge University) is Professor of Public International Law and Director at the Institute for Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St Anne's College, Oxford. Prior to taking up the chair at Bonn he was Professor of Public International Law at the University of Oxford. He practices in the field of international law as a Barrister from 20 Essex Street Chambers, London. Bing Bing Jia, DPhil (Oxford University) is Professor of International Law, Law School, Tsinghua University, Beijing. Prior to taking up his post at Tsinghua he served as Legal Officer at the ICTY and, temporarily, the ICTR (1998-2004), and previously served as Law Clerk at the ICTY (1996-1998). He also acts as a consultant on matters of international law and serves on the editorial boards of Ocean Development and International Law, International Review of the Red Cross and the Chinese Journal of International Law.
1. Introduction Bing Bing Jia and Stefan Talmon I. The Disputes between the Philippines and China in the South China Sea II. The South China Sea Arbitration 2. The South China Sea Arbitration: Is There a Case to Answer? Stefan Talmon I. Introduction II. Default of Appearance in Historical Perspective III. The Consequences of Default of Appearance IV. Possible Preliminary Objections to the Philippines' Claims V. The Politics of Arbitration VI. Conclusion 3. Issues of Jurisdiction in Cases of Default of Appearance Michael Sheng-ti Gau I. Introduction II. Default of Appearance and Ensuing Duties of the Tribunal III. The Requirement of a Dispute between the Parties IV. The Requirement that the Disputes Concern the Interpretation or Application of the Convention V. Disputes Removed from Compulsory Jurisdiction under Article 298 UNCLOS VI. Conclusion 4. The Issue of Admissibility in Inter-State Arbitration Bing Bing Jia I. Introduction II. Primary Obligation to Negotiate: Article 281(1) UNCLOS III. Defects of Certain Claims IV. Abuse of Rights/Procedure V. Estoppel VI. Conclusion 5. Jurisprudential Tenability of the Philippines v China Arbitration on South China Sea Disputes? Haiwen Zhang and Chenxi Mi I. Introduction II. What Are the Philippines' Claims against China? III. China's Reasons for Refusing the Philippines' Arbitration Request IV. Chinese Policy toward Resolution of the South China Sea Disputes V. Future of the Arbitration VI. Conclusion 6. Annexes I. Selected Documents Relevant to the South China Sea Arbitration II. Select Bibliography on the South China Sea Disputes III. Glossary of Place Names