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In the South China Sea Arbitration, China resolutely decided to not appear, without even appointing its own arbitrator to an arbitration under Annex VII of the 1982 UN Convention on the Law of the Sea (UNCLOS). Many criticized this decision as unwise, and argued that the conventional litigation wisdom of contesting jurisdiction exclusively at the preliminary phase serves to better China's interests, since it would not prejudice its decision of nonappearance at the subsequent proceedings over merits. The validity of such a "wise" tactic rests upon bifurcation--the division of the proceedings into determination of jurisdiction and determination of merits. Bifurcation has been routinely practiced by the International Court of Justice (ICJ) but has not been used much in other forums of inter-state dispute settlement. The author undertakes the first investigation of 14 cases which eventually went to the UNCLOS arbitration (as of 2018). It finds that the majority of tribunals adopted ad hoc Rules of Procedures by which the tribunals retained discretion on the matter of bifurcation (discretionary bifurcation), and in practice the tribunal's flexibility terminates upon the rejection of the request to bifurcate. In contrast, Article 79 of the ICJ's Rules of Court, allows the Court to adjudicate on questions raised within a duly submitted preliminary objection, with no proceedings on the matter of bifurcation (rule-based bifurcation). This paper traces issues of bifurcation to the Permanent Court of International Justice (PCIJ), to evaluate why and how in the ICJ bifurcation becomes a procedural right, finding that when rulebased bifurcation was added to the article governing preliminary objections in 1926, they believed jurisdictional objections deserved special treatment in the Rules of Court, allowing the Court to better handle jurisdiction of inter-state disputes which was confined by the consent of the parties. The subsequent revisions of the Rules of Court in 1936, 1946, 1972, 1978, and 2001 gradually but solidly provide that a party is entitled to bifurcation, notwithstanding a general belief that bifurcation reduces the Court's efficiency. [ABSTRACT FROM AUTHOR]

Many international legal experts believe that thePhilippinesv.Chinaarbitration award of 12 July 2016 represents a game changer for South China Sea dispute settlements because the award has brought a breathtaking legal clarity to the complex disputes. This article argues that the sweeping nature of the award had a very paradoxical effect on Chinese policy. The arbitration ruling has led to the hardening of China’s claims, but it has also raised a new readiness among Chinese policymakers to renew negotiations. The sweepingness of the award makes it hard for the Philippines to reach a negotiated compromise with China on the basis of the award, but it also presents a surprising political opportunity in regional politics for the major actors involved to lower tensions and recalibrate policies. Although China’s new readiness to negotiate is welcome, the overall impact of the three-and-a-half-year-long arbitration is likely to create a deadlock in negotiations in the near future. Paradoxically, this may raise the importance of political and power-centred approaches to regional dispute settlements, as the legal approach embodied by arbitration continues to meet Chinese defiance. [ABSTRACT FROM PUBLISHER]

China claims "historic rights" over the islands and other maritime features in the South China Sea. The Philippines contests these claims on the ground that they are incompatible with the 1982 Convention on the Law of the Sea. It initiated arbitration under Annex VII of the (UNCLOS) for a declaratory judgment to that effect. China rejected the arbitral procedure in part because of its 2006 Declaration which excludes all such disputes from the compulsory dispute settlement procedure of the Convention. This paper examines the recent award of the Arbitral Tribunal accepting jurisdiction over the some of the submissions made by the Philippines. It finds that the UN Convention on the Law of the Sea has very little to offer to decide on issues of sovereignty and associated issues of overlapping maritime entitlements. [ABSTRACT FROM AUTHOR]

The multilateral territorial dispute over the South China Sea has intensified in recent years. In response, some observers endorse the apparent turn to " lawfare" on display in the ongoing Philippines v. China arbitration, conducted under Annex VII of the UN Convention on the Law of the Sea (UNCLOS). Yet the limited subject matter of this arbitration means that it can contribute only modestly to any ultimate resolution between claimants. Indeed, the Chinese side has argued against tribunal jurisdiction precisely on the basis of the primacy of questions over territorial sovereignty--which are barred from UNCLOS proceedings--to the determination of all other legal issues being contested between the parties. This Article assesses the merits of these and other major objections to the UNCLOS arbitration and proposes a supplemental legal mechanism: an international Commission of Inquiry (COI) by involved states, addressing French, Japanese, and other extra-regional states' now inactive claims regarding the sovereign status of the region' s various island territories through the end of World War II hostilities in 1945. Such a COI would acknowledge, as the UNCLOS arbitration does not, the centrality of the legal issue of territorial sovereignty to the dispute. Yet by limiting its findings to the islands' contested status during the period of European and Japanese colonialism in Asia, rather than determining current ownership, a COI could nonetheless avoid exacerbating tensions or alienating claimants. Most importantly, such an approach could serve to establish a narrowed, but still ample, range of possible legal claims and outcomes for further adjudication. Claims based on "discovery" and " conquest" could at least potentially be ruled out, leaving only " cession" -based arguments (the implications of which are considerably less divisive, as they are premised on mutual recognition between equal states). A COI would also be based upon and contribute to a regional " epistemic community" of juridical expertise, furthering transnational civil society ties between claimant states. Finally, the positivistic discourse based on the principle of legal equality pursued by a COI as here proposed could, potentially, more generally dissuade unilateral behavior by individual states, while promoting mutual recognition and cooperative arrangements among regional actors. [ABSTRACT FROM AUTHOR]

The U-shaped line in the South China Sea has been recently challenged in the international community and this challenge reached its climax when the Philippines presented China with a Notification and Statement of Claim under Article 287 and Annex VII of the 1982 United Nations Convention on the Lawof the Sea (LOSConvention) on 22 January 2013. In its Statement of Claim, the Philippines requests the Annex VII Arbitral Tribunal to adjudge and declare that China's maritime claims based on the U-shaped line are contrary to the LOS Convention and invalid. Against this background, this article will analyze the issues concerning the related submissions of the Philippines. [ABSTRACT FROM AUTHOR]

In January 2013 the Philippines invoked the dispute settlement system under UNCLOS in order to resolve its long-standing dispute with the People's Republic of China over the South China Sea and more specifically concerning Scarborough Shoal and the Spratly Islands. The arbitral tribunal constituted under Annex VII UNCLOS, without the PRC taking part in the proceedings as of yet, faces a challenging task in deciding whether or not it has jurisdiction over the case submitted by the Philippines. This article therefore examines the dispute settlement system of UNCLOS with regard to the jurisdiction of the tribunal in the pending Philippines - PRC South China Sea dispute. While at first glance UNCLOS appears to provide for a comprehensive system of compulsory jurisdiction, a number of exceptions, either applicable ipso facto or by virtue of unilateral declarations made at the time of signature or ratification of UNCLOS, leave only a thin layer of jurisdictional grounds, if any at all, for the arbitral tribunal to deal with and eventually decide the South China Sea dispute between the Philippines and the PRC. This implies that the arbitral tribunal is facing intriguing legal questions in this highly political procedure, the relevance of which extends far beyond the case at hand. [ABSTRACT FROM AUTHOR]