Two leading international law scholars have accepted that international courts and tribunals have played a part in the development of international law.Footnote 1 Arguably, on the one hand, international courts and tribunals recognize and apply the law; on the other, they also help to articulate it. From this perspective, the South China Sea Arbitration has been amongst the most important cases by clarifying various concepts of the Law of the Sea, such as those of historic title and historic rights. Nonetheless, the Tribunal's clarification is not free from controversy, with some commentators claiming that “the Tribunal erred in finding that China enjoyed no historic rights in the South China Sea”.Footnote 2 To understand the controversial and multifaceted issues in the South China Sea Arbitration, a thorough analysis is needed, and this has been vigorously provided by Yoshifumi Tanaka.
The Introduction provides a thoughtful narration of the context of the arbitration, the course of litigation, and uses an innovative “triple viewpoint” framework for analysis: first, the legal implications of the awards for the development of international law; second, the protection of community interests; and third, the impact of time (pp.7–16).
Chapter 2 discusses jurisdiction and admissibility, focusing on irregular communications from a non-appearing State; communications from third parties; mixed disputes involving territorial and maritime issues; the interpretation of Article 281 of the United Nations Convention on the Law of the Sea (UNCLOS); and highlighting the interpretation of the Tribunal for securing the effectiveness of the dispute settlement system under UNCLOS.
Chapter 3 covers questions concerning the historic title and historic rights, including considering how China's claimed historic rights to the marine space surrounded by the nine-dash line. To assess China's claimed rights, Tanaka explains that the Tribunal establishes clear criteria for distinguishing the concept of historic title from the concept of historic rights. Furthermore, Tanaka evaluates China's position on historic rights from a historical standpoint, which is a clearer approach than that utilized by the Tribunal in certain ways.
Chapter 4 addresses the legal status of maritime features in the South China Sea, and whether those objects should be treated as “fully entitled” islands, rocks, or low-tide elevations under the UNCLOS. From the perspective of the development of international law, Tanaka argues that the Tribunal's interpretation of Article 121(3) of the UNCLOS aims to protect the community interests rather than the interests of an individual State.
Chapter 5 explores various issues concerning the lawfulness of Chinese activities in the South China Sea. One of the main issues relates to the Philippines’ claims that China has violated its general obligation to protect and preserve the marine environment under Article 192 of the UNCLOS. Tanaka points out that the Tribunal's interpretation of Article 192 of the UNCLOS is important in the sense that it expands both to “protection of the marine environment from future damage and preservation in the sense of maintaining or improving its present condition” (p.135).
Chapter 6 provides a rigorous analysis of the legal implications of the South China Sea Awards by using the “triple viewpoint” framework. Concerning the legal implications of the awards for the development of international law, Tanaka mentions how international law's rules have been clarified, consolidated, or created, as well as how procedural rules have been developed through the South China Sea Awards. Concerning the protection of community interests, he discusses how the Tribunal accepted the locus standi of the Philippines, even though the Philippines could not prove material damage from Chinese fishing activities. Tanaka then emphasizes that time elements played a significant role in the interpretation and application of relevant provisions of the UNCLOS and other rules of international law. Finally, Chapter 7 provides a brief conclusion.
Overall, this book has successfully demonstrated how the Tribunal under the compulsory dispute settlement mechanism of UNCLOS has played a modest part in the development of international law. The “triple viewpoint” framework in the first chapter serves as a valuable tool for the reader to understand the various aspects of the Awards in subsequent chapters. The author's careful and thorough analysis seems convincing, as supported by the substantial literature consulted, and is a valuable source of reference for international law of the sea scholars and practitioners.
