South China Sea Arbitration

Stefan Talmon, D.Phil. (1996), University of Oxford, is Professor of Public Law, Public International Law and European Union Law at the University of Bonn and a Supernumerary Fellow of St. Anne’s College, Oxford. He practices as a Barrister from Twenty Essex, London.

• PrefaceList of Tables and MapsAbbreviationsTable of CasesTable of Treaties and International InstrumentsTable of National InstrumentsGlossary of Place NamesMap 1: The South China Sea1 History of the South China Sea Arbitration1 Disputes in the South China Sea2 Initiation of Arbitration Proceedings by the Philippines3 China’s Rejection of the Arbitration4 Constitution of the Arbitral Tribunal5 Designation of the Permanent Court of Arbitration as Registry6 China’s Default of Appearance6.1 Default of Appearance in Historical Perspective6.2 The Consequences of Default of Appearance7 The Politics of Arbitration8 The Proceedings8.1 The Written Proceedings8.2 The Decision on Bifurcation8.3 The Hearing on Jurisdiction and Admissibility8.4 The Final Submissions8.5 The Award on Jurisdiction and Admissibility8.6 The Hearing on Outstanding Questions of Jurisdiction and Admissibility and the Merits8.7 Post-hearing Proceedings8.8 The Final Award9 Costs of the Arbitration10 The Parties’ Position on the Arbitral Award2 The Philippines’ Statement of Claim1 Introduction2 Lack of Jurisdiction of the Arbitral Tribunal2.1 Limited Subject-Matter Jurisdiction2.1.1 Lack of Dispute between the Parties2.1.2 Subject-Matters outside the Jurisdiction of the Tribunal2.2 Ipso Jure Limitations on Jurisdiction2.3 Optional Exceptions to Jurisdiction3 Inadmissibility of the Claims3.1 Obligation to Exchange Views3.2 Commitment to Other Means of Dispute Settlement4 Other Objections of a Preliminary Character4.1 Indispensable Third Parties4.2 Abuse of Legal Process5 Conclusion3 The Award on Jurisdiction and Admissibility1 Introduction2 Jurisdiction of the Arbitral Tribunal2.1 Dispute Concerning the Interpretation or Application of the Convention2.1.1 Existence of a Dispute2.1.2 Nature of the Dispute2.2 Indispensable Third Party2.3 Obligation to Exchange Views2.3.1 Purpose and Content of the Obligation2.3.2 Exchange of Views with Regard to the Subject-Matter of Individual Submissions3 Admissibility of the Claims3.1 New Claims3.1.1 Formal Amendment of the Statement of Claim3.1.2 Introduction of New Claims3.2 Hypothetical Disputes3.2.1 Assumption of Chinese Sovereignty over Scarborough Shoal3.2.2 Assumption of Chinese Sovereignty over All Islands in the Spratly Islands4 Procedural Questions4.1 Deferment of Unclear Submissions4.2 Conditional Findings of Jurisdiction4.3 Classification of Objections as Not Possessing an Exclusively Preliminary Character4.3.1 The Options to Deal with Preliminary Objections4.3.2 Determining the Character of a Preliminary Objection4.3.3 The Tribunal’s Treatment of Possible Objections to Its Jurisdiction4.4 Production of New Documents5 Conclusions4 The Final Award1 Introduction2 Jurisdiction of the Arbitral Tribunal2.1 Disputes over Claims Involving Historic Titles2.1.1 Historic Titles, Historic Waters and Historic Rights2.1.2 Meaning of ‘Historic Titles’ in Article 298(1)(a)(i) unclos2.1.3 Misrepresentation of China’s Claim as a Claim to Historic Rights to the Living and Non-living Resources within the Nine-Dash Line2.1.4 China’s Claim to Territorial Sovereignty over the Spratly Islands since Ancient Times2.1.5 Ancient Title to the Spratly Islands Archipelago2.1.6 The Relationship between Historic Waters of Archipelagos and unclos2.1.7 Disputes over Claims to Historic Waters of Archipelagos as Disputes Involving Historic Title2.1.8 Conclusion2.2 Disputes Relating to Sea Boundary Delimitation2.2.1 Chinese Maritime Zones Based on the Spratly Islands Archipelago2.2.2 Chinese Maritime Zones Based on Individual High-Tide Features in the Spratly Islands3 Admissibility of Claims and the Exhaustion of Local Remedies4 Procedural Questions4.1 The Principle of Non Ultra Petita4.2 Last-Minute Judicial Fact-Finding5 Conclusions5 Beyond the South China Sea Arbitration1 Possible Aftereffects of the Philippines’ Tactical Admissions1.1 Introduction1.2 The Tactical Admission of Chinese Sovereignty over Scarborough Shoal1.3 Tactical Admissions and the Principle of Good Faith1.4 Legal Effects of Tactical Admissions1.4.1 Binding Unilateral Declaration1.4.2 Estoppel by Conduct1.4.3 Legitimate Expectations1.4.4 Preclusion of Inconsistent Positions1.4.5 Weakening of the Contrary Position1.5 Conclusion2 The ‘Finality’ of the Tribunal’s Final Award2.1 Introduction2.2 Meaning of Finality of Arbitral Awards2.3 Lack of Finality of Judicial Pronouncements on International Law2.4 Means to Call into Question the Substantive Finality of Arbitral Awards2.4.1 International Legislation2.4.2 Conflicting State Practice2.4.3 Subsequent Agreements between the Parties2.4.4 Diverging Decisions by Other Courts and Tribunals2.5 State Reactions Calling into Question the Finality of the Findings on Article 121(3) unclos2.5.1 Silence or Outright Opposition to the Tribunal’s Findings2.5.2 Partisan Endorsements of the Tribunal’s Findings2.5.3 Continuing Contrary State Practice2.6 Previous Jurisprudence Calling into Question the Finality of the Findings on Article 121(3) unclos2.7 ConclusionBibliographyIndex

"This is an interesting and thought-provoking book that...richly delivers on its promise to “critically engage” with both the Philippines’ submissions and the Tribunal’s rulings in one of the most high-profile cases of contemporary international law. In doing so, it relies on both old and new arguments, some of which seek to challenge widely-held conceptions on important issues relating to the law of the sea in general, and the South China Sea in particular, in ways that are likely to be intellectually uncomfortable for some readers. But perhaps it is time for lawyers (and governments) to become comfortable with being uncomfortable, in order to develop more rounded, robust, resilient solutionsto some of the grand challenges of international law. In that respect, this book is a valuable addition to the discourse on the issues raised by the South China Sea Arbitration and provides an interesting counterpoint to much of the other literature on this topic."Camille Goodman in Ocean Yearbook 38 (2023)."Talmon’s The South China Sea Arbitration: Jurisdiction, Admissibility, Procedure is a well-researched and highly informative book that provides a valuable resource for scholars, policymakers, and anyone interested in the legal issues surrounding the South China Sea dispute. Talmon’s analysis is rigorous and insightful, and his writing is clear and concise, making the book accessible to a wide audience who want to seek a deeper understanding of the complexities of the South China Sea dispute and its legal implications."Kuan-Hsiung Wang in Chinese (Taiwan) Yearbook of International Law and Affairs, Volume 40 (2023)."On some questions, the book may change minds or set a high bar that opposing arguments must meet. At least in respect of some of the Philippines’ claims, Talmon makes a good case that there was not always a pre-existing legal dispute, although the forensic attention to every possible error made by the tribunal at times risks seeming tendentious. Overall, this book valuably provides a definitive statement of the case for China put at its highest." Douglas Guilfoyle in Asian Journal of International Law (2023)."There is no doubt that this book, together with the South China Sea Arbitration awards, will be studied by government legal advisers, scholars and students, for generations to come." Yen-Chiang Chang in Chinese Journal of International Law (2023).