land reclamation activities following the institution of proceedings by the Philippines.
59 The urgency for the Philippines was also China’s accelerated activities,
which could be perceived as an intrusion on the Philippines’ claimed sovereignty
over the features and to the maritime zones in question. Further, there was urgency
because of the ongoing denial of fishing rights for its nationals in some of the
contested waters. Finally, the Philippines had particular urgency in the resolution
of this issue in its favour as holdings to the contrary would have prevented the
exercise of jurisdiction over other of its claims in the arbitration due to the
unresolved maritime boundary delimitation.
Determining the legitimacy of the claims asserted by the states in the dispute may
become quite circular. There was legitimacy to the claim of the Philippines because
its legal argument that the features in question were not fully-entitled islands was
upheld by the Tribunal. China’s claim was not upheld and so therefore was not
legitimate. In this situation, making a claim that aligns with that of the decisionmaker as to the correct interpretation of the law creates the legitimacy rather than the
legitimacy of the interpretation being the interest to be considered.
4.3 Stakeholders in the Decision: Other State Parties
This issue around legitimacy may be seen more clearly when we consider the
position of other states parties to UNCLOS that would also have an interest in the
interpretation of a provision of UNCLOS that has long been subject to varied
perspectives. Three states that would be relevant in this regard are Australia, France
and Japan. Each of these states has small islands that they view as fully-entitled
islands but their claims to EEZs and continental shelves have been challenged in
different settings. For Australia, the Heard and McDonald Islands and for France,
Kerguelen Island, were all questioned as to whether the criteria of Article 121
(3) were met by Judge Vukas in his separate opinion in judgments for ITLOS.
60
The observation by Judge Vukas, which was questioned by other judges in the case
for different reasons,
61 was not relevant to the determination of the cases before
ITLOS at the time yet still served to shine a spotlight on the issue. Japan’s claim for
an EEZ and continental shelf entitlement for Okinotoroshima has been protested by
China and South Korea in relation to Japan’s submissions to the Commission on the
Limits of the Continental Shelf.
62
59 An argument that the Philippines made in the context of China’s aggravation of the dispute as a
discrete violation of international law. See South China Sea Arbitration (Award), paras. 1163–1180.
60 Volga Case (Declaration of Vice-President Vukas), paras 2–6; Monte Confurco Case (Declaration
of Judge Vukas), p. 122.
61 See, e.g., Monte Confurco Case (Dissenting Opinion of Judge Anderson), p. 128.
62 For discussion, see Qui and Liu (2009).
14 Stakeholders in Dispute Settlement Under the UN Convention on the Law of the Sea
251
59 The urgency for the Philippines was also China’s accelerated activities,
which could be perceived as an intrusion on the Philippines’ claimed sovereignty
over the features and to the maritime zones in question. Further, there was urgency
because of the ongoing denial of fishing rights for its nationals in some of the
contested waters. Finally, the Philippines had particular urgency in the resolution
of this issue in its favour as holdings to the contrary would have prevented the
exercise of jurisdiction over other of its claims in the arbitration due to the
unresolved maritime boundary delimitation.
Determining the legitimacy of the claims asserted by the states in the dispute may
become quite circular. There was legitimacy to the claim of the Philippines because
its legal argument that the features in question were not fully-entitled islands was
upheld by the Tribunal. China’s claim was not upheld and so therefore was not
legitimate. In this situation, making a claim that aligns with that of the decisionmaker as to the correct interpretation of the law creates the legitimacy rather than the
legitimacy of the interpretation being the interest to be considered.
4.3 Stakeholders in the Decision: Other State Parties
This issue around legitimacy may be seen more clearly when we consider the
position of other states parties to UNCLOS that would also have an interest in the
interpretation of a provision of UNCLOS that has long been subject to varied
perspectives. Three states that would be relevant in this regard are Australia, France
and Japan. Each of these states has small islands that they view as fully-entitled
islands but their claims to EEZs and continental shelves have been challenged in
different settings. For Australia, the Heard and McDonald Islands and for France,
Kerguelen Island, were all questioned as to whether the criteria of Article 121
(3) were met by Judge Vukas in his separate opinion in judgments for ITLOS.
60
The observation by Judge Vukas, which was questioned by other judges in the case
for different reasons,
61 was not relevant to the determination of the cases before
ITLOS at the time yet still served to shine a spotlight on the issue. Japan’s claim for
an EEZ and continental shelf entitlement for Okinotoroshima has been protested by
China and South Korea in relation to Japan’s submissions to the Commission on the
Limits of the Continental Shelf.
62
59 An argument that the Philippines made in the context of China’s aggravation of the dispute as a
discrete violation of international law. See South China Sea Arbitration (Award), paras. 1163–1180.
60 Volga Case (Declaration of Vice-President Vukas), paras 2–6; Monte Confurco Case (Declaration
of Judge Vukas), p. 122.
61 See, e.g., Monte Confurco Case (Dissenting Opinion of Judge Anderson), p. 128.
62 For discussion, see Qui and Liu (2009).
14 Stakeholders in Dispute Settlement Under the UN Convention on the Law of the Sea
251