Document Type : Original Article

Authors

1 faculty of law/ Qom university

2 phD student of international law/ Qom university

10.22034/irlsmp.2021.121430

Abstract

The South China Sea has been the site of one of the most important maritime disputes in five decades. Tensions are so high that some predict World War III will break out in the region. The Philippines's referral for arbitration in respect of some of its disputes with China resulted in the issuing of a 2016 arbitration award. The legal and political significance of this Award has caused debates among scholars. The legality of the Award and the validity of the court's arguments in various positions are among the topics of these discussions. In this study, our main question is that how much this award has contributed to resolve and to clarify the legal aspects of the maritime disputes between the parties. Our secondary question is the impact of this Award on regional and international peace. The findings of this study indicate that the arbitral tribunal's approach has a significant impact on Understanding the concept of "historical rights" as well as the explanation and interpretation of marine environmental protection provisions in the 1982 Convention on the Law of the Sea. In the tribunal's view, by joining the Convention on the Law of the Sea, the rules concerning maritime zones, except in rare cases, override the historical rights of States. It also played an important role in defining and explaining various maritime features; including islands, rocks, and low-tide elevations. However, the effect of the award on reducing tensions in the South China Sea, Chinese government policies and Regional peace is in doubt.

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References
A-Books
-Heinrich Raditio, K (2019). Understanding China’s Behavior in the South China Sea, Palgrave.
-Buszynski, L  and Roberts,C (ed) (2015). The South China Sea Maritime Dispute: Political, Legal and Regional Perspectives,Routledge
-Shaw, M (2017). .International law. 8th ed.cambridge.
-Sohn, Yuras, Noise, Franks (2014). International Law of the Sea, Habibi Majandeh (Translator). Jangal Publications
- Tanaka, Y(2019). The international law of the sea,Cambridge.
- Talaei, F (2011). International Law of the Sea. Jangal Publication
B-Articles
 -Abbaszadeh, M, Ramezani, A, (2017). Chinese politics in the South Sea. Quarterly Journal of World Politics, 6(2) , pp. 59-74 (in persian)
-Beckman , R,(2013) The UN Convention on the Law of the Sea and the Maritime Disputes in the South China Sea ,American Journal of International Law ,107,142-144
-French, D (2017), In the Matter of the South China Sea Arbitration..Environmental Law Review.19 (1): 48-56
-Guilfoyle, D(2018), The South China Sea Award: How Should We Read the UN Convention on the Law of the Sea ?, Asian Journal of International Law, 8 (1), 51–63
- Khezri, R (2012). US Strategy in the South China Sea, Foreign Policy Quarterly. 26(3), Pages 743-758 (in persian)
- Mahmoudi, H, Rastgoo, A (2018). According to the US Maritime Freedom Program with Chinese government claims in the South China Sea, Legal Studies, Shiraz University, No. 27, pp. 273-304 (in persian)
-Mirabbasi, B & Keikhosravi, M (2019) , A detailed study of the concept of historic waters in the international law of the sea, Journal of Public Law Studies,49(2), 551-533(in Persian)
- Mirzadeh, M(2018). Investigating the decision of the Permanent Court of Arbitration between China and the Philippines in the case of the South China Sea, International Research. No. 33. Pages. 85-102 (in persian)
-Rothwell, D (2015) .The Arbitration between the People’s Republic of China and the Philippines over the Dispute in the South China Sea, ANU College of Law Research Paper No. 14–48
- Salehi, J (2014) .Prevention and compensation of damages caused by marine environmental pollution and illegal fishing of its living resources,Journal of Biosafety,7(2),11-20 (in Persian)
- Salehi, J (2016). Advisory Opinion of the International Tribunal of the Law of the Sea; Manifestation of the obligations of the flag State regarding the illegal fishing of its flag-bearing vessel in the exclusive economic zone of the third state, ,Journal of Oceanography ,28 ,1-12(in Persian)
-Tanaka, Y (2016). Reflections on the Philippines / China Arbitration, The Law and Practice of International Courts and Tribunals.15 (2), 305–325
-Tanaka, Y(2017), Reflections on Historic Rights in the South China Sea Arbitration (Merits), The International Journal of Marine and Coastal Law, 32 (3), 458–483
-Tanaka, Y (2018), The South China Sea arbitration: Environmental obligations under the Law of the Sea Convention, Review of European, Comparative and International Environmental Law, 27,90–96.
-Torres, S (2016), Duterte: PH-China talks to be based on int’l law , available at: http://globalnation.inquirer.net/142080/duterte-ph-china-talks-to-be- based-on-intl-law.
 
 
 
C-Documents
-ICJ Reports (2001),: Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v. Bahrain), available at :https://www.icj-cij.org/en/case/87.
-ICJ Reports (2015), Construction of a Road (Nicaragua v Costa Rica), available at :https://www.icj-cij.org/en/case/152
-Award on Jurisdiction and Admissibility ( 2015), available at:https: //pca-cpa.org/en/cases/7/ last access :20/09/2020
-Award of 12 July 2016 , available at:https: //pca-cpa.org/en/cases/7/ last access :20/10/2020
-UNCLOS (United Nations Convention of The Law of the Sea), 1982
D-Websites
- failing or incomplete grading the south china sea arbitration (2019), available at :https://amti.csis.org, last access :02/06/2020
-The South China Sea Arbitration (2016) available at :https: //pca-cpa.org/en/cases/7/ last access :20/08/2020
-Maritime Zones (2017),available at: https://sites.tufts.edu/lawofthesea/chapter-two/, last access: 18/08/2020
-Jim Gomez (2020) Philippins warns China ,available at : https://news.yahoo.com/philippines-warns-china-severest-response-111207737.html, last access : 16/09/2020
-Mirski, S(2015), The South China Sea Dispute: A Brief History, avalable at: https://www.lawfareblog.com/south-china-sea-dispute-brief-history, lastaccess :09/10/2020