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South China Sea Lawfare: Post-Arbitration Policy Options and Future Prospects

Report · 2017

Download the report: South China Sea Lawfare (2017)

On July 12, 2016, the Tribunal in the South China Sea arbitration case issued its Award, officially bringing closure to the arbitral proceedings initiated by the Philippines against China in early 2013. In the Award, the Tribunal’s conclusions overwhelmingly supported the Philippines’ positions regarding almost all of the fifteen submissions in its Memorial. The Tribunal also rejected or opted not to take into account the vast majority of China’s positions as elaborated through official statements and was similarly not persuaded by arguments issued or evidence presented by Taiwan.

The Award, especially due to relevant countries’ policy responses and the enduring controversy over its content, has significant implications for the South China Sea maritime territorial disputes, which remain one of the most potent and complex issues affecting stability and security in the Asia-Pacific region and beyond. In the post-arbitration context, rival claimants and major stakeholders have been forced to recalibrate their rhetoric, strategies, and policies in order to safeguard their interests and rights in the maritime area while maintaining an image internationally that is conducive to achieving these aims.

This report, entitled South China Sea Lawfare: Post-Arbitration Policy Options and Future Prospects, builds upon the success of the first South China Sea Lawfare report that was published in early 2016. By bringing together an international team of experts writing on the different approaches of each claimant and stakeholder, it aims to serve as a more inclusive reference on post-arbitration South China Sea policy issues than the many other analyses published in the aftermath of the Award.

In Part I: Introduction, the report begins by giving a brief overview of the arbitral proceedings in historical perspective and summarizing the legal positions of the parties involved and the Tribunal’s conclusions as described in its two awards. In Part II: Rival Claimants and Part III: Major Stakeholders, the chapters focus on (1) the specific policy approaches of each country or actor; (2) the implications of the Award for each; (3) the legal, diplomatic, and security policy options available to them; and (4) their future prospects in the post-arbitration context of the South China Sea. In Part IV: Conclusion, the report explores the implications of the Award for international maritime law and the future of maritime territorial disputes. By encouraging and compiling a diversity of views on the South China Sea, the editors hope that this report will serve over the coming years as a resource for policymakers, a foundation for future research, and an example of constructive international collaboration in the midst of the disputes.

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What are the implications of the Award in the Philippines v. China arbitration case for the United States’ role in the Asia-Pacific region?

The Award in the Philippines v. China arbitration case may have several major implications for the United States’ role in the region.

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What are the implications of the Award in the Philippines v. China arbitration case for Taiwan’s maritime policy?

From President Tsai Ing-wen’s inauguration on May 20, 2016, to the issuance of the Award on July 12, 2016, there was sufficient evidence to believe that the new administration was keeping its options open in terms of potentially accepting, perhaps implicitly, some or all of the Tribunal’s conclusions.

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What are the implications of the Award in the Philippines v. China arbitration case for the marine environment?

Part XII of the United Nations Convention on the Law of the Sea (UNCLOS) codifies States’ “obligation to protect and preserve the marine environment.” In the Philippines’ arbitration case against China, its submissions addressed and sought the Tribunal’s conclusions on several relevant environmental issues. In the final Award, the protection of the marine environment was taken into consideration, and there are two major potential implications of the Award for environmental issues. These relate to (1) the preservation of the marine environment and (2) environmental cooperation between countries.

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What are the implications of the Award in the Philippines v. China arbitration case for international trade and shipping?

International trade and shipping depend on the security of sea lines of communication (SLOCs). Key global shipping routes pass through the South China Sea, so the Award in the Philippines v. China arbitration case could have both positive and negative implications for the security of these waterways.

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What are the implications of the Award in the Philippines v. China arbitration case for fishing and the exploitation of living resources?

Although the Award clarifies littoral states’ rights and entitlements under UNCLOS regarding fishing and the exploitation of living resources in certain areas of the South China Sea, there remains controversy as China and Taiwan have indicated that the Award has no legal effect on their rights, entitlements, and activities in the maritime area. This disagreement and lack of resolution of the issue raises the possibility of three scenarios – two positive and one negative – emerging.

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Taiping Island’s Legal Status: Questions Remain in the Aftermath of the Award

Issue Briefings, 16 · 2016

Far from making progress towards a South China Sea dispute settlement, the Award in the Philippines v. China arbitration case has all but ensured that debate will continue. In particular, the Tribunal’s controversial conclusions regarding Itu Aba (Taiping) Island’s legal status may have already reduced the effectiveness and perceived validity of the Award.

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Philippines v. China Arbitration Case: Official Responses to the Award

Features · 2016

South China Sea Think Tank compiles the official responses of claimants and major stakeholders to the Award of July 12, 2016, in the Philippines v. China arbitration case.

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Philippines v. China Arbitration Case: Summary of the Philippines’ Submissions and Tribunal’s Awards

Features · 2016

South China Sea Think Tank summarizes the Philippines’ submissions and additional claims, the Tribunal’s conclusions contained in its Award on Jurisdiction and Admissibility, and its conclusions made in its final Award in the Philippines v. China arbitration case.

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Interview with Raul (Pete) Pedrozo: U.S. South China Sea Policy, Freedom of Navigation Operations, and Accession to UNCLOS

Perspectives 9 · 2016

The South China Sea Think Tank interviews Raul (Pete) Pedrozo about the U.S. responses to the Philippines v. China arbitration case, recent U.S. Navy freedom of navigation operations in the South China Sea, and the possibility of U.S. accession to the United Nations Convention on the Law of the Sea (UNCLOS).

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