The South China Sea Arbitration between the Republic of the Philippines and the People’s Republic of China will probably acquire the same iconic status in the law of the sea as the case concerning Military and Paramilitary Activities in and against Nicaragua between Nicaragua and the United States of America did in the law on the use of force and general international law. It has been said that 12 July 2016, the date of the Final Award in the case, ‘will remain etched in the history of international adjudication.’¹ The South China Sea Arbitration is another example of a legal case brought by David against Goliath where Goliath vigorously disputed the tribunal’s jurisdiction and the admissibility of David’s claims and, for that reason, decided not to participate in the proceedings and, in the end, comply with the decisions. The awards in the South China Sea Arbitration, like the judgments in the Nicaragua case, will be studied by generations of government legal advisers, scholars, and students for years to come. The two South China Sea awards are already today the most commented upon decisions in the legal literature on the law of the sea.

The Arbitral Tribunal in the South China Sea Arbitration dealt with a host of substantive legal questions, including the status of maritime features and their entitlement to maritime zones, (traditional) fishing rights, the obligation to protect and preserve the maritime environment and the obligation to secure the safety of navigation.

The most contentious and hotly debated issues throughout the proceedings, however, concerned the Tribunal’s jurisdiction and the admissibility of the Philippines’ claims. These issues were both technically highly complex and legally extremely challenging.² The Tribunal’s findings on the existence and nature of a dispute concerning the interpretation and application of the United Nations Convention on the Law of the Sea (unclos), the scope of jurisdiction for mixed disputes, the content and scope of the ipso jure limitations and optional exceptions to the jurisdiction of unclos Annex vii Arbitral Tribunals, the classification of objections to the Tribunal’s jurisdiction as not possessing an exclusively preliminary character, the content of the obligation to exchange views, the preclusion of the unclos dispute settlement mechanisms by other dispute settlement agreements, the meaning of ‘an indispensable third party’, the exhaustion of local remedies, the principles of abuse of process and non ultra petita, and the admissibility of new or hypothetical claims, etc are of general relevance and importance and will outlive the South China Sea Arbitration. It is the Arbitral Tribunal’s findings on these procedural questions that form the focus of analysis of this study.

The book examines the relevant questions of jurisdiction, admissibility, and procedure at each stage of the proceedings. This chronological approach allows, inter alia, a demonstration of how the Philippines’ claims and arguments changed and developed over time in response to the absent party’s objections to jurisdiction and admissibility and the Tribunal’s questions and decisions. It also allows examination and comparison of the Tribunal’s findings at each stage of the proceedings.

The book consists of five chapters. After a general introduction to the history of the South China Sea Arbitration (Chapter 1), the three main parts deal with the questions of jurisdiction, admissibility, and procedure at each stage of the proceedings: the Notification and Statement of Claim (Chapter 2), the Award on Jurisdiction and Admissibility (Chapter 3) and the Final Award (Chapter 4). The last chapter looks beyond the South China Sea Arbitration, examining the long-term legal effects of the Philippines’ tactical admissions during the proceedings and asking to what extent the Tribunal’s ‘Final Award’ is actually final.

The study critically engages both with the Philippines’ submissions and the Tribunal’s rulings. It finds that the Tribunal was lacking jurisdiction to decide the case and that some of the Philippines’ claims were also inadmissible. In short, it concludes that the case was decided wrongly. This will most likely lead to accusations of partisanship or even intimations that the author is in the pay of China. It must therefore be emphasised that the study is in no way intended to call into question the binding force of decisions rendered by the unclos dispute settlement mechanisms, which is clearly spelt out in Article 296 unclos. There is also no hidden agenda to denigrate the arbitrators, who are international lawyers of the highest repute and whose expertise and experience is unrivalled. It is nevertheless the task of the academic lawyer to show the weaknesses in judicial reasoning and point out procedural flaws. This is even more important in a case like the South China Sea Arbitration that will no doubt have a significant impact on future proceedings before the unclos dispute settlement mechanisms.³

Some of the material in this book has been published before as ‘The South China Sea Arbitration: Is There a Case to Answer?’,⁴ ‘The South China Sea Arbitration: Observations on the Award on Jurisdiction and Admissibility’,⁵ ‘Objections Not Possessing an “Exclusively Preliminary Character” in the South China Sea Arbitration’,⁶ and ‘The South China Sea Arbitration and the Finality of “Final” Awards’.⁷ This material has been thoroughly revised, rearranged and updated, taking into account the recent literature and case law. Chapters 1, 4 and 5.I were written specifically for this book. Chapter 4, in particular, is based on extensive archival research in the National Archives of the United Kingdom, Ireland and New Zealand (the main protagonists of the negotiations of Article 121 unclos) as well as the National Archives of the United States and Germany. The views of these countries on the South China Sea disputes since the beginning of the 20th century and their position on the relevant provisions of unclos are assembled and analysed. While there are no official records of the negotiations in the various working groups on Article 121 unclos and the relevant dispute settlement provisions of the Convention during the Third United Nations Conference on the Law of the Sea, the main protagonists and the United States kept detailed informal, sometimes verbatim, records of these meetings, which largely coincide. The findings of the Tribunal are examined against the background of these travaux préparatoires of unclos.

For their invaluable assistance with the archival research, I would like to thank Jack Kenny, Grace Abbott, Mubarak Waseem, Kristina Schönfeldt and Surendra Kumar. Jack Kenny also prepared the maps in this book, for which I am very grateful. I am also deeply indebted to Mary Lobo for copy-editing and making this a better book. The book is dedicated to Professor Bing Bing Jia of Tsinghua University, a long-time friend from Oxford student days who introduced me to the South China Sea disputes.

Stefan Talmon

Institute for Public International Law

University of Bonn