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South China Sea Arbitration and its Application to Dokdo

  • Seokwoo LEE (a1) and Leonardo BERNARD (a2)
Abstract

On 12 July 2016, the Arbitral Tribunal formed under Annex VII of the 1982 United Nations Convention on the Law of the Sea issued its decision on the proceeding brought by the Philippines against China relating to certain activities in the South China Sea. The Tribunal’s decision was hotly anticipated as it dealt with various important issues relating to law of the sea and the interpretation of the Convention. It dealt with issues including the jurisdiction of the Tribunal, the legal status of maritime features, historic rights, and duty to preserve the marine environment. Although it remains to be seen whether states will follow the Tribunal’s precedent, questions arose on whether such precedent can be applied to other unresolved issues in other parts of the world. This paper looks at the application of the precedent established by the South China Sea arbitration to the situation involving Dokdo between Korea and Japan.

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*

Professor, Inha University Law School, Republic of Korea.

**

PhD candidate, Australian National Centre for Ocean Resources & Security (ANCORS), University of Wollongong, Australia.

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1. United Nations Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 3 (entered into force 16 November 1994) [UNCLOS].

2. The Republic of the Philippines v. The People’s Republic of China, Award on the Merits [2016] Permanent Court of Arbitration Case No. 2013–19, 12 July 2016.

3. Korea ratified UNCLOS on 29 January 1996, while Japan ratified it on 20 June 1996. See UN Division for Ocean Affairs and the Law of the Sea, “Chronological Lists of Ratifications of Accessions and Successions to the Convention and the Related Agreements”, online: UN < http://www.un.org/depts/los/reference_files/chronological_lists_of_ratifications.htm>.

4. Republic of Korea, “Declaration Made after Ratification” UN (18 April 2006), online: UN <http://www.un.org/depts/los/convention_agreements/convention_declarations.htm#RepKorea%20after%20ratification>.

5. Republic of the Philippines Department of Foreign Affairs Manila, “Notification and Statement of Claims, No 13-0211” Philippine Embassy (22 January 2013), online: Philippine Embassy <http://www.philippineembassy-usa.org/uploads/pdfs/embassy/2013/2013-0122-Notification%20and%20Statement%20of%20Claim%20on%20West%20Philippine%20Sea.pdf>.

6. The Philippines ratified UNCLOS on 8 May 1984, while China ratified it on 7 June 1996. See UN Division for Ocean Affairs and the Law of the Sea, “Chronological Lists of Ratifications of Accessions and Successions to the Convention and the Related Agreements”, online: UN < http://www.un.org/depts/los/reference_files/chronological_lists_of_ratifications.htm>.

7. Notification and Statement of Claim of the Philippines, supra note 5 at para. 31.

8. UNCLOS sets out a legal order for the seas and oceans to facilitate international communication and promote peaceful uses of the seas and oceans, equitable and efficient utilization of their resources, conservation of their living resources, and study, protection, and preservation of the marine environment; see the preamble of UNCLOS.

9. Notification and Statement of Claim of the Philippines, supra note 5 at para. 31.

10. PCA Press Release, “Arbitration between the Republic of the Philippines and the People’s Republic of China: Arbitral Tribunal Establishes Rules of Procedure and Initial Timetable” (27 August 2013), online: PCA <https://pcacases.com/web/sendAttach/227>.

11. See generally UNCLOS, Annex VII at art. 9.

12. Ministry of Foreign Affairs of the People’s Republic of China, “Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines”, Position Paper, 7 December 2014 (hereinafter the “Position Paper”).

13. For further details on the geographical description of the features in the Spratly Islands, see David HANCOX and Victor PRESCOTT, “A Geographical Description of the Spratly Islands and an Account of Hydrographic Surveys Amongst Those Islands” (1995) 6 IBRU Maritime Briefings 1.

14. UNCLOS, supra note 1 at art. 121(3).

15. The Philippines challenges the maritime claims that can be made from the disputed “rocks” currently occupied by China (the Scarborough Shoal, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef). The Philippines also argues that the geographic features in the Spratly Islands that are currently occupied by China (Mischief Reef, McKennan Reef, Gaven Reef, and Subi Reef) do not meet the definition of an island as set out in art. 121(1) of UNCLOS. See Notification and Statement of Claim of the Philippines, supra note 5.

16. Ibid.

17. Ibid, at paras. 11–12.

18. See Arbitration Between the Republic of the Philippines and the People’s Republic of China, Award on Jurisdiction and Admissibility [2015] Permanent Court of Arbitration Case No. 2013-19, 29 October 2015, at para. 169.

19. Position Paper, supra note 12 at para. 14.

20. China has made a formal declaration excluding maritime boundary delimitation claims from the Convention’s compulsory binding dispute settlement mechanism and this is one of the main reasons why China refuses to accept the jurisdiction of the ad hoc Arbitration Tribunal formed under UNCLOS. See UN Division for Ocean Affairs and the Law of the Sea, “Declaration Under Article 298 by the Government of the People’s Republic of China” (25 August 2006), online: UN <http://www.un.org/depts/los/convention_agreements/convention_declarations.htm#China Upon ratification>.

21. China’s “Note Verbale” to the Permanent Court of Arbitration, supra note 10.

22. Notification and Statement of Claim of the Philippines, supra note 5 at para. 40.

23. Position Paper, supra note 12.

24. Permanent Court of Arbitration, “The Arbitral Tribunal Sets Dates for Hearing on Jurisdiction and Admissibility”, Fourth Press Release, 22 April 2015, online: PCA <https://pcacases.com/web/sendAttach/1298>.

25. Award on Jurisdiction and Admissibility, supra note 18.

26. Department of Foreign Affairs, Republic of the Philippines, “Statement on the Philippines’ Supplemental Submission to the Arbitral Tribunal”, 16 March 2015, online: PCA <https://files.pca-cpa.org/pcadocs/Supplemental%20Written%20Submission%20Volume%20I.pdf>.

27. See the Press Release of the Permanent Court of Arbitration, supra note 24.

28. Award on Jurisdiction and Admissibility, supra note 18 at para. 75.

29. See ibid., at para. 407.

30. Ibid., at paras. 408, 410.

31. Ibid., at paras. 398–412.

32. The nine-dash line was drawn in 1947 by the then Chinese Nationalist government and was first published in February 1948. Originally, the map showed the Pratas Islands, the Paracel Islands, the Macclesfield Bank, and the Spratly Islands as being “part” of China with the use of an eleven-dashed line. The two-dashed line in the Gulf of Tonkin was deleted in 1953 with the approval of the then Premier Zhou Enlai. See LI Jinming and LI Dexia, “The Dotted Line on the Chinese Map of the South China Sea: A Note” (2003) 34 Ocean Development & International Law 287 at 290.

33. Award on the Merits, supra note 2 at 473.

34. Ibid., at 474.

35. Ibid., at 475.

36. Dae-song, HYUN, “The Dokdo-Takeshima Issue: Its Origins and the Current Situation” in HYUN Dae-song, ed., The Historical Perceptions of Korea and Japan (South Korea: NANAM Publishing House, 2008), 37 at 37.

37. Ibid.

38. Jin-mieung, LI, Dokdo: A Korean Island Rediscovered (South Korea: Northeast Asian History Foundation, 2010) at 9. See also ibid. at 38.

39. Hyun, supra note 36 at 38–9.

40. Ibid., at 77.

41. Li, supra note 38 at 11.

42. Award on the Merits, supra note 2 at 476.

43. Ibid., at para. 1024.

44. Ibid., at paras. 374–8.

45. Ibid., at para. 1025.

46. The Tribunal found that “[t]he term ‘human habitation’ should be understood to involve the inhabitation of the feature by a stable community of people for whom the feature constitutes a home and on which they can remain”. The Tribunal continues by stating that “the term ‘economic life of their own’ is linked to the requirement of human habitation, and the two will in most instances go hand in hand”. See Award on the Merits, supra note 2 at paras. 542–3.

47. Ibid., at para. 626.

48. Position Paper, supra note 12.

49. For the up-to-date official texts of declarations and statements that contain optional exceptions to the applicability of Part XV, s. 2, under art. 298 of UNCLOS, see UN, “Settlement of Disputes Mechanism” UN (20 June 2017), online: UN <www.un.org/Depts/los/settlement_of_disputes/choice_procedure.htm>.

50. Notification and Statement of Claim of the Philippines, supra note 5 at para. 40.

51. Award on the Merits, supra note 2 at para. 6.

52. Ibid., at para. 686.

53. Li, supra note 38 at 9.

54. Ibid.

55. Ministry of Foreign Affairs of the People’s Republic of China, “Foreign Ministry Spokesperson Hua Chunying’s Regular Press Conference on April 9, 2015”, online: Ministry of Foreign Affairs of the People’s Republic of China <http://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/t1253488.shtml>.

56. Michaela DEL CALLAR, “Chinese Claim of South China Sea Reclamation not Causing Damage Unacceptable—DFA”, 13 April 2015, online: GMA News Online <http://www.gmanetwork.com/news/news/nation/468746/chinese-claim-of-south-china-sea-reclamation-not-causing-damage-unacceptable-dfa/story/>.

57. See Case Concerning Land Reclamation by Singapore in and Around the Straits of Johor (Malaysia v. Singapore), Provisional Measures [2003] ITLOS, Order of 8 October 2003.

58. Guyana v. Suriname, Award [2007] Permanent Court of Arbitration Case No. 2004-04, 17 September 2007, at para. 407.

59. Award on the Merits, supra note 2 at para. 983.

60. Ibid., at para. 988.

61. Ibid., at para. 991.

* Professor, Inha University Law School, Republic of Korea.

** PhD candidate, Australian National Centre for Ocean Resources & Security (ANCORS), University of Wollongong, Australia.

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Asian Journal of International Law
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