Naming Disputed Maritime Features in the South China Sea – “What’s in a Name?”

China and Vietnam have a long history of incidents, because of them acting in relation to disputed parts of the South China Sea. A new chapter to this history was added at the beginning of May 2020, when Vietnam learned that China provided 80 maritime features, belonging to the disputed Spratly and Paracel islands in the South China Sea, with Chinese names. Three decades earlier, in 1983, China embarked on a similar naming exercise of features in the South China Sea.

Looking at the history of incidents between China and Vietnam, it was not the first time an act of naming by one of the States created conflict between the two States. An incident also occurred after Vietnam proclaimed that the ‘South China Sea’ was henceforth to be named as the ‘West Philippine Sea’ in 2012, to which China protested heavily.

But what is the legal value of naming maritime features in the Spratly and Paracel islands by China, from an international law perspective?

Faced with the recent naming, Vietnam protested. Reportedly, it even contemplated to take the issue to international adjudication in order to be settled. Vietnam’s act of protesting is significant from the view of international law, however. This is because, by undertaking a unilateral act, a State, in this case China, may have sought to assert a right, or might have sought to create a new right. A lack of a response to a unilateral act might be construed as that a State has acquiesced in the other State’s claim. In a nutshell, acquiescence is inferred from silence or inaction in a situation that a State should have responded. Protesting against the other State’s unilateral conduct may therefore sometimes be necessary for a State to protect its claims. However, the need for producing a response is intertwined with the circumstances at hand, and not all acts actually demand a response.

International law does not address the issue of naming explicitly (see more generally on this issue E. Franckx, M. Benatar (et al.), ‘The Naming of Maritime Features Viewed from an International Law Perspective’, China Oceans Law Review (2010), pp. 1-40), raising the question of how to deal with this issue. A possible answer may lie in the fact that a State has sovereignty over its territory. The latter encompasses a State’s mainland territory, internal waters, territorial sea, archipelagic waters and high-tide features, as well as the air space above them. An implication of the sovereignty that a State has over its territory, coming down to that it enjoys full powers, would be that this also extends to the naming of maritime features that are located within its territory. By that same token, the name attributed by a State to a part of its territory would be opposable to other States. Of key importance in this regard is that this opposability would extend only to parts of what can be considered a State’s territory. But all this is premised, however, on that there is one State that has a clear title over a territory. This is problematic when applied to disputed parts of the South China Sea, to which multiple States lay claim.

The precise motive underlying the naming exercise by China is difficult to pinpoint, and various motivations have been suggested for what led China to embark thereon. One article has argued that the naming was a reaction to Vietnam being particularly active in relation to the South China Sea, considering Vietnam to have taken advantage of China’s attention having been on dealing with the COVID-19 outbreak. Allusions were also made that, through this act, China sought to reassert its ‘sovereignty over the South China Sea’. This seems to imply that at least part of the reason lying behind the naming of the maritime features in the disputed Spratly and Paracel islands, is that China perceives it as way to strengthen its sovereignty claim over them. A difficulty is, however, that some of these maritime features are submerged. The consequence of this is that they are thus not territory. At the same time, only territory has entitlements to maritime zones under the Law of the Sea.

Maritime features that are below water at high tide are called low-tide elevations (Article 13 of the United Nations Convention on the Law of the Sea (LOSC)). A further consequence from that low-tide elevations are not territory, besides that they lack the ability to generate maritime zones of their own, is that there cannot be a sovereignty dispute between States over a low-tide elevation. This does not mean that they are not without relevance, however: if a low-tide elevation is located within 12 nautical miles (nm) from the baselines of a territory, it belongs to the State that has sovereignty over this nearby territory. Also, a low-tide elevation can be located within a disputed maritime area: that is, if the low-tide elevation is located within 12 nm from a disputed territory – for example, a disputed island.

A few of the recently named maritime features are high-tide features. When high-tide features are permanently above water and naturally formed, they are considered to be territory. This means that high-tide features may also be subjected to competing sovereignty claims by States. Under the LOSC, islands are divided into two categories: rocks under Article 121(3), and fully-entitled islands, as defined by Article 121(2). The main difference lies in the entitlements that they respectively have to maritime zones. Whereas rocks are only entitled to a territorial sea, not going beyond the maximum limit of 12 nm, and a contiguous zone of an additional 12 nm, fully-entitled islands are entitled to a territorial sea, a contiguous zone, an exclusive economic zone, and a continental shelf; and, if the requirements under Article 76 of the LOSC are met, also an extended continental shelf.

But what legal weight does the act of naming by a State carry in establishing ownership of a high-tide feature, or to indicate evidence of ownership? Put differently, does the act of naming lead to a State’s sovereignty claim being strengthened as a result?

Under international law, States that lay claim to the same land territory, which includes high-tide features, may seek to fortify their sovereignty claim through peaceful means. However, a State’s claim will not be further fortified once the critical date has passed. Although it may be difficult to pin down its exact moment in time, the critical date refers to the date when the sovereignty dispute between the States concerned has crystallised.

As to the question which State has sovereignty over a land territory, in the absence of a relevant treaty, the main issue is which State has a stronger title. International courts and tribunals, if they were to deal with a dispute of this type, will usually first identify the acts of peaceful administration that have been taken by States claiming the same piece of territory, to then weigh and compare these acts, to decide which of the States concerned has a stronger title over the land territory.

International case law in which the aspect of the naming of maritime features played a more substantial role is limited. However, the case of Minquiers and Ecrehos, which was dealt with by the International Court of Justice (ICJ) in 1953, does shine some light on the relevance of naming. In this case, the fact that the United Kingdom (UK) did not name some of the islands that were in dispute, was used by France to argue that they were not within the control of the UK (Counter Memorial of France, pp. 382-383). Particularly relevant in this regard is that the ICJ noted that it “cannot draw any conclusion from the naming of the islands since this question must ultimately depend upon evidence which relates directly to the possession of these groups” (Minquiers and Ecrehos, p. 55). Here, the aspect of naming did not play a significant role for the ICJ in determining which of the States concerned had a stronger title over the islands, because it did not evidence possession of the islands.

In light of the above, it is essential to make a distinction between low-tide elevations and high-tide features, as a sovereignty dispute can only arise concerning the latter. Then, a State may seek fortify its sovereignty claim peacefully. Whether a claim will be strengthened is entwined with whether the critical date has passed, however. But in the context of establishing sovereignty over what can be considered high-tide features, their naming may be an act that actually carries little weight for an international court or tribunal, if it would be asked to deal with the matter.

Abandoning the myth that decisions rendered by international arbitral tribunals are not binding

Against the backdrop of China recently renaming several disputed insular features in the South China Sea, which led to protests from Vietnam, the suggestion has been raised that Vietnam might to turn to “the world arbitration court” to have the matter adjudicated. Although a court by that name does not exist, it may be inferred that reference is made here to an international court or tribunal. A myth rears its head in the same news article, one that has been perpetuated particularly after the Arbitral Tribunal established pursuant to Annex VII of the 1982 Law of the Sea Convention (LOSC) rendered its award in the South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China) in 2013. The myth being that “Arbitral rulings aren’t binding”. To reinforce this seriously flawed argument, the news article does indeed invoke the South China Arbitration.

After the Arbitral Tribunal delivered its decision on the merits in South China Sea Arbitration, some have used it to argue that this arbitral decision, and arbitral decisions in general, are not binding. Having declared under Article 298(1)(a) of the LOSC its non-acceptance of arbitration with respect to maritime boundary disputes or those involving historic titles, China argued that the Arbitral Tribunal could not consider the case on the merits. It also abstained from participating in the proceedings. After the Tribunal assumed that it had jurisdiction over the dispute, and went on to hand down its final decision on the merits, China reinforced its earlier expressed intentions that it would not follow the final outcome of the award.

However, from the fact that China did not recognise the validity of the Tribunal’s decision, the inference cannot be drawn that it is therefore not legally binding. To the contrary, Article 296(1) of the LOSC leaves no doubt in this regard: any decision rendered by a court or tribunal assuming jurisdiction over the dispute “shall be final and shall be complied with by all the parties to the dispute”. This is reinforced in Article 11 of Annex VII of the LOSC:  an “award shall be final and without appeal, unless the parties to the dispute have agreed in advance to an appellate procedure. It shall be complied with by the parties to the dispute”. In this light, rather than perpetuating this myth that decisions of international tribunals are not binding, the opposite, that is abandoning this rhetoric, is far more appropriate.

Iran’s Claim that the UK’s Seizure of a Vessel Suspected of Transporting Oil to Syria Constitutes “Piracy”: Mere Rhetoric?

In the early hours of 4 July 2019, a commercial oil tanker (Grace 1), flying the flag of Panama, was boarded and seized while passing through the Strait of Gibraltar by UK marines and the Gibraltar police. Connecting the Mediterranean Sea to the North Atlantic Ocean, the Strait of Gibraltar is one of the busiest shipping routes in the world.

The reason lying behind the seizure of the oil tanker by the UK was that the Grace 1 was suspected of transporting crude oil, which was loaded onto the vessel in an Iranian port, to Syria, in violation of EU sanctions. What might have drawn attention to the vessel, was its circuitous route. Starting at an Iranian port, the vessel first set sail south, to then follow the coastline around the entire African continent up until entering the Strait of Gibraltar, where it was intercepted. Its ultimate destination remains a subject of dispute, however.

The arrest of the vessel led to an outcry in Iran, protesting the lawfulness of the UK’s seizure on several bases. One contention that was raised by Iran, and which will be at the heart of this short blog post, is its condemnation that the UK’s seizure was an act of piracy.

But is there any validity to Iran’s piracy claim from the view of international law? Or, rather, must it be brushed off as rhetoric? The rhetorical force that the label of piracy carries is invariably strong, readily conjuring up vivid images of individuals pillaging and threatening security at sea.

Before delving into the question whether, away from its rhetorical force, Iran’s claim has legal merit, there is a preliminary issue that needs to be addressed: how was it that Iran took centre stage in condemning the UK’s action against the oil tanker? Surely, not in the role of flag State. Ownership, or whatever links a cargo may have to a particular State, is irrelevant from a legal point of view in determining the nationality of a vessel. Interestingly enough, Panama indicated that it had removed the Grace 1 from its registry at the end of May 2019, because of its link to terrorism financing. This does raise the issue – that will not be addressed here – whom the flag State of the Grace 1 is. Iran’s involvement seems to stem rather from that it perceives the seizure by the UK of the oil tanker, carrying Iranian oil, as a provocation, one that has to be read against the background of flaring tensions between the US and Iran that arose over the shooting down of a US drone, and the latter’s pulling out from the earlier agreed nuclear agreement.

Criteria that need to be satisfied for an act to be piracy are given in Article 101 of the 1982 Law of the Sea Convention (LOSC). This provision, reflecting customary international law, establishes what the crime of piracy consists of:

‘any illegal acts of violence or detention, committed for private ends by the crew or the passengers of a private ship or aircraft and directed … on the high seas (or in a place beyond the jurisdiction of any State) against another ship or aircraft, or against persons or property on board such ship or aircraft.’

From this provision, several requirements can be distilled. One being that a violent act must have been committed on the ‘high seas’ or ‘in a place beyond the jurisdiction of any State’. Were a violent act to be committed within the territorial sea, it cannot be included in the definition of piracy under Article 101 LOSC. Such an act would be considered armed robbery at sea.

But does the Strait of Gibraltar meet the description of  ‘high seas’ or ‘a place beyond the jurisdiction of any State’? To start with some background, the entire Strait of Gibraltar is composed of waters that are either part of coastal States’ their territorial seas or exclusive economic zones, thus being under their sovereignty or jurisdiction of the relevant coastal States respectively. Further complicating matters is that some of these waters are disputed, because of the ongoing sovereignty dispute between the UK and Spain over Gibraltar. However, even if disputed waters are underpinned by a sovereignty dispute, they cannot be considered high seas.

Nowadays, most scholars adhere to the view that the Gibraltar Strait can be considered a strait that falls within the scope of Part III LOSC. The implication of which would be there being a right of transit passage for vessels. However, Article 34 LOSC makes it clear that the coastal State’s sovereignty and jurisdiction within a strait is not affected. In this light, if a vessel passes through the territorial sea part of a strait, criminal jurisdiction pursuant to Article 27 LOSC might arguably still exist for the coastal State. So, to know the exact location of where the Grace 1 was boarded and arrested is critical in determining whether the geographical scope requirement laid down in Article 101 LOSC has been met.

As its first sentence makes clear, an illegal act “of violence or detention” has to be committed for ‘private ends’. Looking at the UK’s seizure of the oil tanker, a private end component is fundamentally lacking. By its very nature, the UK’s action was public; it occurred with the authorisation of a State. And there is a further difficulty for Iran’s piracy claim to succeed. For an act to fall within the scope of Article 101 LOSC, it must have been committed by the crew or passengers of a private ship against another ship.

And was the act at all violent? What only could be construed as a ‘violent’ act or ‘detention’ would be the boarding and arresting of the Grace 1. Rather, the UK response concerned law enforcement, which does not constitute a violent act in and of itself; that is, as long as it occurs in accordance with international law. The dividing line between what constitutes law enforcement and a threat of the use of force, may not always be easily drawn, as during lawful enforcement a measure of force may be involved, but this is permissible if it is necessary, unavoidable and proportional.

Given that the requirements for an act to be considered piracy under Article 101 LOSC are cumulative, Iran’s claim cannot be upheld, seemingly failing to meet a plethora of requirements. But at the same time, it is questionable whether Iran’s use of the word piracy, or a variation thereon, to condemn the seizure is meant to convey its legal position on the matter. It seemingly fits into a broader development, where it has become en vogue to refer to all violent acts that occur at sea as piracy, no matter whether it satisfies the legal definition thereof under international law (see more generally on this phenomenon J. Schechinger, ‘An incident of “piracy” off the coast of Suriname? The definition of piracy and the use (and misuse) of international law terminology’, MarSafeLaw Journal (forthcoming)).

Compensation for the unlawful arrest and detention of the Arctic Sunrise and its crew

Arbitral Tribunal orders the Russian Federation to pay a little under 5,4 million euros to the Netherlands

On 18 July 2017, almost two years after that an Arbitral Tribunal (Tribunal) found that the Russian Federation must compensate the Netherlands following the wrongful arrest of the Arctic Sunrise and its crew, the Tribunal handed down its Award on the issue of compensation.

Background

Before looking at this recent decision in more in depth, the history of the dispute will be laid out. Starting on 18 September 2013, when Greenpeace activists tried to enter the Russian offshore oil platform (the Prirazlomnaya) in order to protest against attempts to begin exploiting oil and gas resources in the Arctic. One day later, the Russian Federation boarded and arrested the Arctic Sunrise and detained its crew. Subsequently, the vessel was brought to the port of Murmansk and the crew was charged with having committed a range of administrative and criminal offences, including acts of terrorism and hooliganism.

The Netherlands initiates Proceedings before an Arbitral Tribunal 

Some two weeks later, on 4 October 2013, The Netherlands, being the flag State of the Arctic Sunrise, started proceedings before an Arbitral Tribunal that was established pursuant to Annex VII of the 1982 Law of the Sea Convention. The Russian Federation refused to participate in the Arbitral proceedings that were initiated by the Netherlands. The position of the Russian Federation was, that this type of dispute was beyond the jurisdiction of an international court or tribunal, due to a declaration it had made at the time of becoming a party to the 1982 Law of the Sea Convention. However, the proceedings went ahead, despite the non-participation of the Russian Federation.

The Netherlands requests Interim Measures from the ITLOS

On 21 October 2013, the Netherlands requested interim measures from the International Tribunal for the Law of the Sea (ITLOS). According to the Netherlands, the Russian Federation had to immediately release the Arctic Sunrise and its crew, after the posting of a bond, upon which they would be free to leave Russian territory as well as any maritime areas under its jurisdiction. ITLOS gave an Order on interim measures on 22 November 2013. Initially, the Russian Federation did not comply with the Order of the ITLOS – eventually, however, the vessel and crew were released in late November 2013. The Russian release of vessel and crew was based on its national laws, the Order of the ITLOS played no decisive role in this, according to the Russian Federation  – as it happened, the effect of the national laws and regulations on which the Russian Federation relied, coincided with what was set out by the ITLOS in its Order containing interim measures.

Arbitral Award on the Merits

One of the main substantive issues on which the Arbitral Tribunal was asked to rule during the merits phase, was the (un)lawfulness of the response of the Russian Federation to the presence of the Arctic Sunrise and its crew. The gist of the argument of the Netherlands was that, as the flag State, it had sole jurisdiction over the ship and the crew on-board during the entirety of this incident (Article 58 of the 1982 Law of the Sea Convention). On 14 August 2015, the Tribunal released its Award on the merits. The Arbitral Tribunal found that the Netherlands had exclusive jurisdiction over the Arctic Sunrise whilst it was operating in the exclusive economic zone of the Russian Federation. This means that the Russian Federation could have only lawfully initiated steps against the vessel that was flagged to the Netherlands and its crew with the latter’s consent. After coming to this conclusion, the Tribunal went on to state that the Netherlands had to be compensated.

Arbitral Award on Compensation

In its recent Award on compensation, the Tribunal set the total amount of compensation owed by the Russian Federation to the Netherlands at a little under 5,4 million euros. This sum was arrived at by adding up the damage that was done to the Arctic Sunrise (EUR 1,695,126.18); compensation related to the unlawful arrest, prosecution and detention of its crew (EUR 600,000); a variety of other damages incurred by the Netherlands, including the failure to release the vessel and crew in a timely manner (EUR 2,461,935.43); costs made by the Netherlands in issuing a bank guarantee (EUR 13,500); and lastly, the Netherlands had to be reimbursed for paying the full amount of deposits required by the Tribunal (EUR 625,000) – meaning that the Russian Federation had to pay the half it owed of the costs that were needed for the proceedings to be initiated. Although the Russian Federation is required under international law to abide by the ruling on compensation, whether it will actually do so remains to be seen.

 

The Award of the Arbitral Tribunal in the South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China): the legitimacy of China’s position takes a heavy (at least symbolic) blow

On 12 July 2016, the Arbitral Tribunal, established pursuant to Annex VII of the 1982 Law of the Sea Convention (LOSC or LOS Convention), delivered its award in the South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China). In 2013, the proceedings were unilaterally initiated by the Philippines concerning the relevant disputes in the South China Sea between the Philippines and China. Having declared under Article 298(1)(a) LOSC its non-acceptance of arbitration with respect to maritime boundary disputes or those involving historic titles, China has refused to participate in the proceedings. Irrespective of the refusal of China to participate – which, in hindsight, seems to have not worked to its advantage – the Tribunal found in 2015 that it had jurisdiction to proceed to deal with the matter on the merits.

A critical aspect for the Tribunal to assess was whether the declaration made by China pursuant to Article 298(1)(a)(i) LOSC would prohibit it from considering the case on the merits, because the submissions of the Philippines were concerned with categories of disputes that China has excluded from the jurisdictional reach of an international court or tribunal: those concerning a historic title or maritime delimitation. The Tribunal concluded that the matters brought to its attention did not bear on the issue of delimitation (para. 214), since disputes over whether certain maritime features have entitlements to maritime zones are separate from the issue of delimitation, which is essentially concerned with dividing overlapping entitlements that have been established. On the matter of a historic title, the Tribunal went to analyse the meaning of ‘historic title’. In this context, it was deemed critical that reference was made to ‘title’, which means in legal jargon the complete ownership over something. The word ‘sovereignty’ only surfaces in the LOSC in connection with the territorial sea, where the coastal State has sovereignty up to a point that is 12 nautical miles (nm) removed from its coast. Given the Chinese reliance on that it has certain historic rights over the South China Sea, its claim was interpreted as not being concerned with the claiming of a historic title (paras. 225-226, 229).

There are a number of critical substantial findings of the Tribunal to be found in the award, some aspects which may have more wide-reaching implications. The following four findings will be briefly discussed in this blog post:

  1. One of the main findings of the Tribunal is that it dismissed the validity under international law of the Chinese ‘nine-dash line’. The specifics of the nine-dash line have never been really elaborated on by China, and have given risen to different interpretations (see e.g. here, here, here and here). One interpretation is that China has claimed to have some sort of a ‘special’ historic right over the relevant areas of the South China Sea that are within the nine-dash line, by virtue of a long and consistent practice of where some measure of authority was continuously exercised. A second interpretation is that the maritime features located within the nine-dash line are all under the sovereignty of China and, at least some of them, could project maritime zones up to at least the 200 nm limit. According to the Tribunal, the extent of maritime entitlements of States in the South China Sea are regulated by the LOSC, and the nine-dash claim of China, as far as it goes beyond the limits imposed by the LOSC, is superseded by the LOSC. Although the Tribunal found the alleged Chinese historic rights to be fully incompatible with the LOS Convention, basically, the rights China claimed to have are in fact assigned to other coastal States in the area under the concept of the Exclusive Economic Zone (EEZ). However, the door was left open for that under certain circumstances – and following, amongst others, the judgment in the Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom) – a historic title and right might be brought under the regime set out in the LOS Convention (para. 238).
  2. Another critical finding was that none of the maritime features China claims to have sovereignty over, including those that are part of the hotly contested Spratly Islands, have entitlements to an EEZ or continental shelf. Therefore, according to the Tribunal, there was no overlap of the entitlements of China and the Philippines to the same maritime space, given that China has no territory from which it is entitled to claim maritime zones up to at least 200 nm, which would have otherwise created an overlap with the entitlements and claims of the Philippines. As regards the hotly contested Spratly Islands, the reasoning of the Tribunal suggests that these have at best an entitlement to a territorial sea. According to the Tribunal, none of the disputed maritime features that are part of the Spratly Islands meet, without human assistance, the conditions set out under Article 121(3) of the LOSC, that is that they can sustain human habitation or economic life of their own. The threshold concerning when isolated maritime features would be entitled to an EEZ and continental shelf seems to have been set high by the Tribunal. Its approach as to how to define a ‘rock’ within the meaning of Article 121(3) of the LOSC may have more widespread consequences, and may raise some concerns on the part of other States that are faced with similar issues.
  3. Pursuant to the LOS Convention, different types of maritime features have different entitlements to generate maritime zones, ranging from those that can claim zones up to the 200 nm mark to those that due to their characteristics have no entitlements to maritime zones at all. Falling into this latter group are so called low-tide elevations. These can, assuming they are located in close proximity to the coasts of States, be relevant in the measuring of the baseline, but have no entitlements to maritime zones of their own. In contrast, islands are principally treated similarly to land and have entitlements to a territorial sea, EEZ and continental shelf. Rocks, on the other hand, may only be accorded part of the treatment that islands receive: that is, whenever they fall within the paragraph 3 exception of Article 121 LOSC, that they are unable to sustain human habitation or have an economic life of their own, the most they can generate in terms of maritime zones is a territorial sea. For example, Scarborough Shoal, which has been the venue for various incidents between China and the Philippines, was classified by the Tribunal as a rock that is unable to meet the two conditions set out in Article 121(3) of the LOS Convention. Further, the Tribunal found that Mischief Reef is a low-tide elevation, which is thus unable to generate any maritime zones of its own. As a result of this classification, and given that low-tide elevations cannot be appropriated by States, there could be no sovereignty dispute over Mischief Reef, and more generally between China and the Philippines. The Tribunal went on to state that Mischief Reef is firmly placed in what can be regarded to be the EEZ of the Philippines. Therefore, amongst others, fishing activities that have been performed by Chinese fishermen at Mischief Reef infringed on the sovereign rights the Philippines has over the EEZ, pursuant to the LOS Convention. This same reef was also used by China to construct a large artificial island on top, whilst proceedings before the Tribunal were already set in motion. Given that this happened without the consent of the Philippines, which would have been required because Mischief Reef is a low-tide elevation located within its EEZ and continental shelf, China infringed on the sovereign rights that the Philippines has in this regard.
  4. More generally, and in addition to the actions undertaken concerning Mischief Reef, the land reclamation works and construction of artificial islands that China conducted on a broader scale, and in relation to a number of other maritime features (e.g. Cuarteron Reef, Fiery Cross Reef) in the South China Sea, were heavily condemned by the Tribunal. The Tribunal found that China aggravated the existing dispute between China and the Philippines through the reclamation works it conducted, whilst the dispute was brought to the consideration of the Tribunal. It also found that the Chinese actions aggravated the existing dispute between the parties over the Spratly Islands – however, it needs to be noted that this dispute figures, besides China and the Philippines, four additional players (i.e. Taiwan, Malaysia, Vietnam and Brunei). The Chinese reclamation works and building of artificial islands were also condemned for not being in line with the obligations that States have under the LOSC, particularly under Article 192 and 194(5) LOSC, in relation to the protection of the marine environment.

Directly after the award on the merits was handed down, China sought to brush over the validity of the award as being farcical in the extreme. In a further – undeniably weak – attempt to challenge the value of the award, a government sanctioned press release resorted to attacking a number of the individual members of the Arbitral Tribunal for exhibiting a perceived lack of consistency between the decision that the Tribunal arrived at and their earlier pronounced views in literature. In support of its position that the Arbitral Tribunal wrongly found to have jurisdiction over the dispute, in its view essentially by misconstruing what lies at the core of the dispute, China in this same press release cited heavily from an article previously published by Talmon, who expressed his misgivings over the Tribunal assuming jurisdiction over the dispute.

Given that the award was dismissed with a significant measure of exaggeration by China, and that it already indicated earlier, and subsequently reinforced its intentions to not follow the final outcome of the award, the question remains as to what effect the award might have on the (sometimes volatile) situation in the South China Sea. The position that China finds itself in is not an easy one. However, contrary to the ad hominin arguments aimed against individual members of the Tribunal, and the perceived biased composition it was argued to have according to the Chinese side, there is no doubt that the Tribunal was impartial and constructed in conformity with the LOS Convention – which not unimportantly, China is a party to. Although the award of the Tribunal is not enforceable, it carries substantial (diplomatic) weight. The fact that its legal position concerning the South China Sea was overwhelming rejected by the Tribunal will necessitate a rethinking on the part of China of its legal arguments, if it wants to pursue an amicable solution through diplomacy. Entering into negotiations with other claimant States bordering the South China Sea, on the basis of a position that has been essentially rejected by an independent Tribunal that has been constructed in accordance with the LOSC, is unlikely to bear much fruit.