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Myron H. Nordquist and William G. Phalen

The 12 July 2016 Arbitration Award on the Merits (Award) in the dispute between the Republic of the Philippines (Philippines) and the People’s Republic of China (China) resulted in a pyrrhic victory for the Philippines. The fundamental reason was that the Arbitration Tribunal erred in its interpretation and application of the un Convention on the Law of the Sea (unclos) definition of what is an “island” and what is a “rock” with respect to Itu Aba/Taiping, in the Spratly/Nansha Islands (see Figure 1.1). By holding that Itu Aba/Taiping was a “rock,” the Tribunal determined that the maritime feature was only entitled to a 12 nm territorial sea. Had Itu Aba/Taiping been found to be an “island,” the feature would have been entitled to a 200 nm Exclusive Economic Zone (eez) under unclos. This eez would have overlapped with the eez claims of several other nations including the Philippines. Pursuant to a 25 August 2006 China Declaration, as provided in unclos Article 298, the overlapping sea boundary disputes would bar the Tribunal from taking compulsory jurisdiction in the case.

Figure 1.1
Figure 1.1

Aerial photo of Itu Aba/Taiping Island taken though a glass window of a Taiwanese military plane on March 23, 2016.

This Study does not analyze all the issues in the 500-page Award, but instead focuses on the crucial aspect of an accurate interpretation of the definitional text of Article 121 and its application to Itu Aba/Taiping. The goal of the Study is to interpret accurately the text in the Convention and to confirm its meaning by its context through a comprehensive review of the relevant legislative history of the term at the Third un Conference on the Law of the Sea (Conference) negotiations. The co-authors offer special qualifications for this effort in that Professor Nordquist was an official delegate to the unclos negotiations and was personally involved when the original text of Article 121 was formulated during the Third Conference negotiations. Mr. Phalen is a former marine geologist who was present as a student at the Rhodes Academy of Oceans Law and Policy in July 2016 when two of the Award Arbitrators orally explained much of the Tribunal’s rationale for the Award. The co-authors’ opinions and comments about the Award presented in this study, however, only reflect their personal conclusions.

Part i of this study provides what was lacking in the Award: a detailed scrutiny of the background and context for the text of Article 121. Part ii consists of what the co-authors believe is an objective interpretation and application of the Article 121 text for Itu Aba/Taiping. This Study includes two maps (figures 1.3 and 1.4) showing the actual overlap of claims that occurs. Figure 1.4 shows how even if one applies the Tribunal’s determination that the various relevant features were “rocks” only entitled to 12 nm territorial seas, overlaps still exist disqualifying the case from compulsory jurisdiction. In Part iii, the study delves into supplementary sources to confirm its interpretation of Article 121(3) and presents several case studies of unprotested examples in State Practice, which would be adversely affected were the methodology of the Award applied.


Tatiana Sorokina and William G. Phalen

This work is devoted to analysis of the Russian legislation that regulates the use of the Northern Sea Route (nsr). The strategic documents of the Russian Federation reflect plans and priorities for the development of the nsr. The main innovations of the relevant Russian legislation in the considered sphere are to improve infrastructure in the northern territories to facilitate shipping and mineral extraction. While many of the policies are still being negotiated, there is urgency within the Russian government to get funding and legal frameworks in place before the nsr becomes heavily trafficked. This paper also briefly analyzes the Russian position on domestic control over foreign vessels’ navigation in the nsr waters. The underpinnings of that position are represented in Russia’s most recent submission to the Commission on the Limits of the Continental Shelf (clcs). The relevant aspect of the submission to this paper is the assertion that the territorial claim over the nsr complies with the United Nations Convention on the Law of the Sea. Additional commentary is provided on the potential division of oil and gas rights in the Arctic as well as on the potential role for the Arctic Council in managing development of the region. The unique vulnerability of the region combined with the Arctic States’ ambitious development goals prompted largely by accelerated melting of sea ice poses an unprecedented environmental threat that must be considered during the formation of domestic and international regulations.