The Award of the Arbitral Tribunal in the Philippines v China case was a resounding victory for the Philippines as well as a bold and potentially landmark decision.
The key issue for the Philippines was whether China could lawfully claim historic rights to resources within the nine-dash line on Chinese maps, if such areas are within the exclusive economic zone or on the continental shelf of the Philippines under unclos. In deciding this issue the Tribunal had to address the fact the exact legal basis for China’s claim to historic rights in the South China Sea, and the nature and scope of such claims, was ambiguous. The Tribunal addressed the issue of ambiguity in its award on jurisdiction, and ruled that it could draw inferences from China’s conduct in determining the nature of its claim to historic rights.
In its Award on the Merits the Tribunal ruled that unclos allocated rights and jurisdiction to the natural resource in the oceans, and that under unclos, coastal States have sovereign rights to explore and exploit the natural resources in their exclusive economic zone and continental shelf. Consequently, whatever historic rights China claimed to resources in the South China Sea, those rights were extinguished when UNCLOS entered into force insofar as they were a claim to resources that are now in the maritime zone of other States.
Robert Beckman and Zhen Sun
The 1982 United Nations Convention on the Law of the Sea (unclos) is widely viewed as a “constitutive” instrument that provides a legal framework that is being filled in, rounded out and complemented by existing and subsequently enacted international agreements and customary international law. The International Maritime Organization (imo) is the preeminent international organization with competence to establish international rules and standards for the safety, security and environmental performance of international shipping. In other words, on matters relating to international shipping, unclos outlines the rights and obligations of States parties in various maritime zones that must be exercised and fulfilled through implementation instruments under the auspices of imo.
This article will examine and discuss the relationship between unclos and imo instruments. First, it will provide an overview of imo, including its historical background, its mandates and structure, and the major instruments that are under its auspices. It will then look at the relationship between unclos and imo, and discuss how imo and its instruments have been incorporated into unclos. Furthermore, it will discuss the role of imo and its instruments in assisting States to exercise their rights and fulfil their obligations under unclos.
Environmental Aspects of the Philippines v China Award
Zoe Scanlon and Robert Beckman
The Philippines v China Award contained a number of novel and highly progressive findings with respect to obligations for the protection of the marine environment under UNCLOS. Thus far, these elements of the decision have gone largely unexamined in the surrounding literature. This article concentrates on two specific aspects of these findings: the obligations in respect of environmental impact assessments in articles 205 and 206, and articles 197 and 123 and the duty to cooperate. It analyses the Award and identifies some concerns with the Tribunal's reasoning in these areas. Although broadly, the Award upholds effective protections for the marine environment; this article highlights aspects of the decision in which different approaches could have been taken that would have led to stronger outcomes for the marine environment.