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The article discusses a possible revision to the United Nations Convention on the Law of the Sea (UNCLOS) in light of territorial disputes in the South China Sea. Topics include the notion of sovereignty in relation to disputes over rocks and islands in the South China Sea, dispute resolution provisions under the UNCLOS in light of competing territorial claims by China and the Philippines, and UNCLOS treatment of exclusive economic zones (EEZs) in relation to artificial islands.

In early 2013, pursuant to the United Nations Convention on the Law of the Sea (UNCLOS) treaty, the Philippines initiated compulsory arbitration against China in an attempt to finally settle their South China Sea disputes. Tired after years of futile negotiating and what it views as belligerent Chinese actions in the Sea, the Philippines hopes that a UN tribunal will reject China's nine-dash line and its claims of sovereignty over much of the Sea. International legal regimes are systems of choice, and China must calculate if it is in its national interest to comply with an adverse award. As an aspiring power, the political, economic, and military costs of ignoring a UN tribunal to China are high. Yet, China's strict adherence to a historic right to the Sea's waters and islands may preclude it from seeing the wisdom in complying with a UN award. Thus, the solution to peace in the South China Sea may sit outside of UNCLOS and may necessitate a freeing from UNCLOS obligations. [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]

This article first highlights in Part I the procedural posture of the South China Sea Arbitration (the Philippines v. China) case and the affirmative duty of the Arbitral Tribunal under Article 9 of Annex VII to the UNCLOS, faced with the absence of China, to investigate conscientiously its own jurisdiction by taking notice of all available information and materials whether or not they are submitted to the Tribunal. Part II summarizes the Philippines' claims and highlights their nature as well as the delimitation geographical framework and the delimitation situation in this matter. The Philippines “skillfully” fragments a big dispute with China into various free-standing-appearing entitlement claims and activities claims in order to conceal the sovereignty-delimitation nature of the dispute or claims. Part III discusses the jurisdictional obstacles or objections ratione temporis and ratione materiae. The dispute is outside the jurisdiction of Section 2 courts and tribunals, because it predated the entry into force of the UNCLOS with respect to China. Furthermore, the Philippines' claims are essentially land territorial sovereignty matters, not concerning the interpretation or application of the UNCLOS, or are dependent on the resolution of land territorial sovereignty claims. Part IV discusses the jurisdictional obstacles or objections based on Article 298 of the UNCLOS and China's 2006 optional exceptions declaration as well as the Philippines' related Understanding. When defragmented as they must be because of the delimitation geographical framework and/or delimitation situation, the Philippines' claims constitute one delimitation dispute with China. In any event, a dispute “concerning” the interpretation or application of the provisions on delimitation or “relating to” “delimitation” within the meaning of Article 298 has a broader scope than a delimitation dispute, however strict a reading one gives to that term. All these issues have been excluded by China from the jurisdiction of Section 2 courts and tribunals. Such a defragmentation approach must be applied by the Tribunal. In addition, the “nine dash line” claims may present disputes involving historic title or historic rights as relevant circumstances in a potential delimitation between the Philippines and China, all being excluded matters. The Philippines' Understanding may also serve to exclude this case from the Tribunal's jurisdiction. Part V summarizes the arguments made in this article. [ABSTRACT FROM PUBLISHER]