MIMA Conference
on the South China Sea
Kuala Lumpur, 12-13 December 2011
UNCLOS Dispute Settlement System
and the South China Sea
Robert C Beckman
Director, Centre for International Law (CIL)
National University of Singapore
Organization of Presentation
1. UNCLOS and the Sovereignty Disputes
2. UNCLOS Dispute Settlement Regime: General
Principles
3. Optional Exceptions under Article 298
4. Prospects for Contentious Cases
5. Prospects for an ITLOS Advisory Opinion
6. Conclusions
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Part 1
UNCLOS & Sovereignty
Disputes in South China Sea
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Sovereignty Disputes & UNCLOS
UNCLOS has no provisions on how to determine
sovereignty over insular territory, including islands
Therefore, the UNCLOS Dispute Settlement System
in Part XV cannot be invoked to resolve disputes
over which State has the better claim to sovereignty
over islands
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Sovereignty Disputes in South China Sea
Issue of who has the better claim to sovereignty over
the islands is governed by customary international law
The sovereignty disputes cannot be referred to a court
or tribunal unless the parties agree
Given the number of claimants and complexity of the
disputes, it is not likely that the claimant States will
agree to resolve the sovereignty disputes through
adjudication or arbitration
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Part 2
Dispute Settlement Regime
in UNCLOS Part XV:
General Principles
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UNCLOS, Part XV
• General principle is that any dispute between parties
over the interpretation or application of a provision of
UNCLOS is subject to the system of compulsory
binding dispute settlement in Section 2
• By becoming a party to UNCLOS, State Parties are
giving their consent to referring disputes to
adjudication or arbitration
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Section 2, Article 286
SEC 2. COMPULSORY PROCEDURES ENTAILING BINDING
DECISIONS
Article 286. Application of procedures under this section
Subject to section 3, any dispute concerning the
interpretation or application of this Convention shall,
where no settlement has been reached by recourse to
section 1, be submitted at the request of any party to the
dispute to the court or tribunal having jurisdiction under
this section.
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Choice of Procedure under Article 287
A State shall be free to choose, by means of a written declaration, one
or more of the following means for the settlement of disputes
concerning the interpretation or application of this Convention:
1. INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA (ITLOS)
established in accordance with Annex VI;
2. INTERNATIONAL COURT OF JUSTICE (ICJ);
3. ARBITRAL TRIBUNAL constituted in accordance with Annex VII;
4. SPECIAL ARBITRAL TRIBUNAL constituted in accordance with
Annex VIII for one or more of the categories of disputes specified
therein.
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“Default Procedure”
Article 287 (5):
If the parties to a dispute have not accepted the same
procedure for the settlement of the dispute, it may be
submitted only to ARBITRATION in accordance with
Annex VII, unless the parties otherwise agree.
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Applicable Law [Article 293]
1. Article 293 provides that a court or tribunal having
jurisdiction under this section shall apply this
Convention and other rules of international law not
incompatible with this Convention.
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Binding Force of Decisions
Article 296 provides that:
1. Any decision rendered by a court or tribunal having
jurisdiction under this section shall be final and shall be
complied with by all the parties to the dispute.
2. Any such decision shall have no binding force except
between the parties and in respect of that particular
dispute.
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Part 3
Optional Exceptions under
Article 298
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Article 298. Optional Exceptions
States parties have the option to formally declare that they
do not accept Section 2 for the following categories of
disputes:
1. the interpretation or application of articles 15, 74 and 83
relating to sea boundary delimitations, or those
involving historic bays or titles
2. Disputes concerning military activities
3. Disputes concerning law enforcement activities relating
to rights and jurisdiction of coastal States over
resources in EEZ
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Historic Bays and Titles
Disputes on historic bays and titles are excluded
from compulsory DS under section 2
This would exclude CBDS for any disputes on the
interpretation or application of:
◦ Article 10(6) on historic bays
◦ Article 15 on delimitation of the territorial sea,
which mentions “historic title” as a possible
special circumstance
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Historic Titles and Historic Rights
Article 298 may also exclude disputes on whether a
State has historic title over maritime space under
customary international law
A claim to historic title is based on a claim to
sovereignty over maritime space which has been
treated as internal waters and accepted by other States
Article 298 exclusion would not include claims based
on “historic rights” to fisheries or other resources
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Conciliation under Article 298
• Article 298 ensures that States which make a declaration
excluding disputes on the interpretation or application of
articles 15, 74 and 83 relating to sea boundary
delimitations cannot be required to refer such disputes to
the system of binding arbitration or adjudication under
Section 2 of Part XV
• However, they may nevertheless be required to submit
the dispute to compulsory conciliation
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Conciliation under Art 298
A State having made a declaration excluding disputes
on maritime boundaries or historic title shall,
when such a dispute arises subsequent to the entry
into force of UNCLOS [Nov 1994]
and where no agreement within a reasonable period of
time is reached in negotiations between the parties,
at the request of any party to the dispute,
accept submission of the matter to CONCILIATION
under Annex V, section 2;
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Exception from Conciliation
and provided further that
any dispute that necessarily involves the concurrent
consideration of any unsettled dispute concerning
sovereignty or other rights over continental or
insular land territory
shall be excluded from such submission;
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Conciliation Report
(ii) after the conciliation commission has presented
its report, which shall state the reasons on which it is
based,
the parties shall negotiate an agreement on the basis
of that report;
if these negotiations do not result in an agreement,
the parties shall, by mutual consent, submit the
question to one of the procedures provided for in
section 2, unless the parties otherwise agree;
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Part 4
Prospects for
Contentious Cases
in the South China Sea
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Effect of China’s Declaration
China has submitted a declaration to the UN
Secretary-General exercising its right to exclude all
disputes listed in Article 298
The effect of China’s Declaration requires a careful
analysis of Article 298
Whether the declaration is applicable could depend
in part on how the issue for determination is framed
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Challenge to Jurisdiction
If another State invoked the CBDS System in
UNCLOS, China might challenge the jurisdiction of
the tribunal on the ground that the dispute is
excluded by its declaration under 298
Article 288 (4) provides that in the event of dispute on
whether a court or tribunal has jurisdiction, the matter
shall be settled by a decision of that court or tribunal.
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Provisions subject to CBDS
Article 121(1) on islands
Article 121(3) on rocks
Article 13 on low-tide elevations
Article 60 on artificial islands
Article 7 on straight baselines
Article 6 on reefs
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Dispute on Historic Rights
China has often asserted that it has exercised historic
rights in the waters in the South China Sea, including
fishing rights in the waters inside the 9-dashed line which
are within the 200 nm EEZ claimed by other States
China’s Article 298 exclusion of disputes on historic bays
and titles would not exclude a court or tribunal from
considering the issue of whether China has historic rights
in the EEZ of other States in the South China Sea
Court could examine whether China has historic rights or
jurisdiction inside the 9-dashed lines
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China’s Note Verbale of 7 May 2009
China has indisputable sovereignty over the islands
in the South China Sea and the adjacent waters,
and enjoys sovereign rights and jurisdiction over the
relevant waters as well as the seabed and subsoil
thereof (see attached map).
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China’s Note Verbale of 11 April 2011
Since 1930s, the Chinese Government has given
publicity several times [to] the geographical scope of
China’s Nansha Islands and the names of its
components. China’s Nansha Islands is therefore
clearly defined. In addition, under the relevant
provisions of [UNCLOS and China’s laws on Territorial
Sea, EEZ and Continental Shelf] China’s Nansha
Islands is fully entitled to Territorial Sea, Exclusive
Economic Zone (EEZ) and Continental Shelf.
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26 May Incident in Block 148
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Dispute on Islands and Rocks
Philippines has claimed Reed Bank is not an area in
dispute because it is within its EEZ and outside the
12 nm territorial sea of any disputed island
China has not officially claimed maritime zones from
any islands in the South China Sea so not clear if it
claims an EEZ or CS from the disputed islands near
Reed Bank
Tribunal could consider whether the islands near
Reed Bank are rocks which are not entitled to an EEZ
or CS of their own
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June 2011 Incident with Philippines
Iroquois Reef & Amy Douglas Bank
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Nanshan Island (Philippines)
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Flat Island(Philippines)
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Part 5
Prospects for ITLOS
Advisory Opinion
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UNCLOS & Advisory Opinions
Advisory jurisdiction of ITLOS is based on Article 21
of the Statute of the Tribunal, which states that the
jurisdiction of the Tribunal comprises all disputes
and all applications submitted to it and all matters
specifically provided for in any other agreement
which confers jurisdiction on the Tribunal.
The Rules of the Tribunal give it the authority to give
advisory opinions in certain circumstances.
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Article 138 of Rules of Tribunal
Article 138 of the Rules of the Tribunal provides:
1. The Tribunal may give an advisory opinion
on a legal question if an international
agreement related to the purposes of the
Convention specifically provides for the
submission to the Tribunal of a request for an
advisory opinion.
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Request by ASEAN Claimants
Two or more ASEAN claimants could enter into an
agreement on cooperation in the South China Sea
The agreement could establish a body and authorize
that body to request an advisory opinion from ITLOS
on legal issues as to how UNCLOS applies in the
South China Sea
For example, the body could request an advisory
opinion how to interpret and apply Article 121(3)
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Part 6
Conclusions
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Conclusions
1. The dispute settlement regime in UNCLOS cannot
be used to resolve the disputes concerning the
merits of sovereignty claims to the islands in the
South China Sea
2. China has exercised its right to opt out of the
system of dispute settlement for disputes
concerning the interpretation or application of the
UNCLOS provisions on maritime boundary
delimitation as well as disputes on historic titles
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Conclusions
3. Disputes concerning China’s objections to
activities within the EEZ of Vietnam or the
Philippines may be subject to the system of CBDS
in section 2 of Part XV
4. Such disputes are about the interpretation and
application of Article 121 and the rights and
jurisdiction of China within the 9-dashed line
5. If the Tribunal were to decide that the disputes fall
within Article 298 because they involve the first
stages of delimitation, the disputes may be subject
to CONCILIATION
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Conclusions
6. Two or more Claimant States could request an
Advisory Opinion from ITLOS on legal issues
relating to the South China Sea if they comply with
the requirements in Article 138 of the Tribunal
7. An arbitral decision or advisory opinion could
clarify some of the intentionally vague provisions
of UNCLOS such as Art 121(3)
8. An arbitral decision or advisory opinion could
clarify the “areas in dispute” that can be subject to
“joint development” arrangements
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Thanks for Your Attention
Prof Robert Beckman
Director, Centre for International Law (CIL)
National University of Singapore
Email: CILDIR@[Link]
Website: [Link]
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