entitlements of the features at issue in the case. In this regard, a question for the states
bordering the South China Sea would be where their maritime boundary would fall if
the small features in the case were fully-entitled islands and hence produced
overlapping EEZs and continental shelves requiring delimitation between them.
As McDorman noted, a finding that none of the features at issue were fully-entitled
islands meant that any maritime boundaries within the South China Sea would only
be based on maritime zones emanating from the mainland coasts of the states in
question.
66 Moreover, it is worth noting that if the Tribunal had concluded in the
arbitration that there were fully-entitled islands at issue, the jurisdiction of the
Tribunal would have likely been reduced. This lack of jurisdiction would have arisen
because a question of maritime boundary delimitation would emerge and could not
be resolved due to China’s exclusion of maritime boundary disputes from compulsory procedures entailing binding decisions under Article 298(1)(a)(i) of UNCLOS.
A second key consideration in the case for the other states bordering the South
China Sea would be the status of their own claimed features, for example Viet Nam’s
claims in the Paracel Island group, in light of the elucidation of the interpretation and
application of Article 121 by the South China Sea Tribunal. Ultimately, to ensure
that its subject matter jurisdiction was not limited because of China’s declaration
under Article 298(1)(a)(i), the South China Sea Tribunal considered the status of all
the features in the Spratly Island group even though not all of them were explicitly
raised for consideration by the Philippines in its claims. Such a determination was
especially relevant for Taiwan given its claim that Itu Aba/Taiping Island is a fullyentitled island, but the South China Sea Tribunal determined that it did not meet the
criteria of Article 121(3). Moreover, Malaysia and Viet Nam also make claims to
features in the Spratly Islands so potentially have rights implicated by the decision.
67
Finally, to the extent that there are other comparable land features in the South China
Sea, as may be the case for Viet Nam and China in relation to their contested rights
over the Paracel Islands,
68 the interpretation and application of Article 121(3) will
affect other maritime claims in the South China Sea.
To assess the interests of the states bordering the South China Sea in terms of
stakeholder identification theory, it would be argued that these states hold only
normative power, similarly to the Philippines, to the extent that they are seeking to
uphold the rules-based order of UNCLOS. Each of the state parties could contemplate resort to UNCLOS dispute settlement with claims similar to the Philippines.
Their legitimacy is derived from the chicken-and-egg scenario also like the Philippines whereby any claims they made supported by the Tribunal gave them legitimacy. Where legitimacy may additionally be asserted in relation to this group of
states is in relation to the need to establish a cooperative regime and create a scenario
66 McDorman (2016).
67 See Beckman (2013), p. 144.
68 See Beckman (2013), p. 144.
14 Stakeholders in Dispute Settlement Under the UN Convention on the Law of the Sea
253
bordering the South China Sea would be where their maritime boundary would fall if
the small features in the case were fully-entitled islands and hence produced
overlapping EEZs and continental shelves requiring delimitation between them.
As McDorman noted, a finding that none of the features at issue were fully-entitled
islands meant that any maritime boundaries within the South China Sea would only
be based on maritime zones emanating from the mainland coasts of the states in
question.
66 Moreover, it is worth noting that if the Tribunal had concluded in the
arbitration that there were fully-entitled islands at issue, the jurisdiction of the
Tribunal would have likely been reduced. This lack of jurisdiction would have arisen
because a question of maritime boundary delimitation would emerge and could not
be resolved due to China’s exclusion of maritime boundary disputes from compulsory procedures entailing binding decisions under Article 298(1)(a)(i) of UNCLOS.
A second key consideration in the case for the other states bordering the South
China Sea would be the status of their own claimed features, for example Viet Nam’s
claims in the Paracel Island group, in light of the elucidation of the interpretation and
application of Article 121 by the South China Sea Tribunal. Ultimately, to ensure
that its subject matter jurisdiction was not limited because of China’s declaration
under Article 298(1)(a)(i), the South China Sea Tribunal considered the status of all
the features in the Spratly Island group even though not all of them were explicitly
raised for consideration by the Philippines in its claims. Such a determination was
especially relevant for Taiwan given its claim that Itu Aba/Taiping Island is a fullyentitled island, but the South China Sea Tribunal determined that it did not meet the
criteria of Article 121(3). Moreover, Malaysia and Viet Nam also make claims to
features in the Spratly Islands so potentially have rights implicated by the decision.
67
Finally, to the extent that there are other comparable land features in the South China
Sea, as may be the case for Viet Nam and China in relation to their contested rights
over the Paracel Islands,
68 the interpretation and application of Article 121(3) will
affect other maritime claims in the South China Sea.
To assess the interests of the states bordering the South China Sea in terms of
stakeholder identification theory, it would be argued that these states hold only
normative power, similarly to the Philippines, to the extent that they are seeking to
uphold the rules-based order of UNCLOS. Each of the state parties could contemplate resort to UNCLOS dispute settlement with claims similar to the Philippines.
Their legitimacy is derived from the chicken-and-egg scenario also like the Philippines whereby any claims they made supported by the Tribunal gave them legitimacy. Where legitimacy may additionally be asserted in relation to this group of
states is in relation to the need to establish a cooperative regime and create a scenario
66 McDorman (2016).
67 See Beckman (2013), p. 144.
68 See Beckman (2013), p. 144.
14 Stakeholders in Dispute Settlement Under the UN Convention on the Law of the Sea
253