the United States wishes to resolve the competing claims within the South China Sea
and bring certainty to the exercise of legal rights within this maritime area. As any
interpretation of Article 121 relates to its own maritime claims, there is no urgency
because of the United States’ non-party status and because it would not be in its
interest to have a decision that would cut against its own expansive maritime claims.
4.5 Stakeholders in the Decision: Non-State Actors
Fishing and shipping companies could also be identified as stakeholders in relation
to this aspect of the dispute to the extent that the claimed maritime zones emanating
from these land features implicate their rights to fish and/or move freely throughout
the South China Sea. Their claims would be urgent to the extent that their economic
rights were potentially being infringed with the uncertainty for their operations as to
which state had rights in any specific area within this sea. Their rights are derived
from the different states concerned, though, and could be viewed as marginal
compared to the interests of states in this setting.
Another actor in the South China Sea arbitration on this issue was that of the
expert hydrographer appointed by the Tribunal.
72 The Tribunal described the assistance provided by this hydrographer as assisting it:
in “reviewing and analysing geographic and hydrographic information, photographs, satellite imagery and other technical data in order to enable the Arbitral Tribunal to assess
the status (as a submerged feature, low-tide elevation, or island)” of the features named in
the Philippines’ Submissions or any other such feature determined to be relevant during the
course of the reference. While the appointment of hydrographic experts is common practice
in Annex VII arbitrations, in light of China’s non-participation, Mr. Boyes was also tasked
with assisting with a “critical assessment of relevant expert advice and opinions submitted
by the Philippines.”
73
The nature of the role of the expert would typically be one that does not allow the
expert to impose their will (at least not overtly) on the decision-maker. As such, no
power could be attributed to the interests of the actor. There would be legitimacy
because of the type of role being performed. The urgency, if any, would be limited to
contributing to the definition of the immediate relationships before the tribunal and
any time sensitivity derived from the position of other stakeholders, notably the
Philippines, rather than any urgency in the expert’s own right or interest in seeing
their views upheld or vindicated in the Tribunal’s decision.
72 South China Sea Arbitration (Award), para. 58.
73 South China Sea Arbitration (Award), para. 133 (citations omitted).
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255
and bring certainty to the exercise of legal rights within this maritime area. As any
interpretation of Article 121 relates to its own maritime claims, there is no urgency
because of the United States’ non-party status and because it would not be in its
interest to have a decision that would cut against its own expansive maritime claims.
4.5 Stakeholders in the Decision: Non-State Actors
Fishing and shipping companies could also be identified as stakeholders in relation
to this aspect of the dispute to the extent that the claimed maritime zones emanating
from these land features implicate their rights to fish and/or move freely throughout
the South China Sea. Their claims would be urgent to the extent that their economic
rights were potentially being infringed with the uncertainty for their operations as to
which state had rights in any specific area within this sea. Their rights are derived
from the different states concerned, though, and could be viewed as marginal
compared to the interests of states in this setting.
Another actor in the South China Sea arbitration on this issue was that of the
expert hydrographer appointed by the Tribunal.
72 The Tribunal described the assistance provided by this hydrographer as assisting it:
in “reviewing and analysing geographic and hydrographic information, photographs, satellite imagery and other technical data in order to enable the Arbitral Tribunal to assess
the status (as a submerged feature, low-tide elevation, or island)” of the features named in
the Philippines’ Submissions or any other such feature determined to be relevant during the
course of the reference. While the appointment of hydrographic experts is common practice
in Annex VII arbitrations, in light of China’s non-participation, Mr. Boyes was also tasked
with assisting with a “critical assessment of relevant expert advice and opinions submitted
by the Philippines.”
73
The nature of the role of the expert would typically be one that does not allow the
expert to impose their will (at least not overtly) on the decision-maker. As such, no
power could be attributed to the interests of the actor. There would be legitimacy
because of the type of role being performed. The urgency, if any, would be limited to
contributing to the definition of the immediate relationships before the tribunal and
any time sensitivity derived from the position of other stakeholders, notably the
Philippines, rather than any urgency in the expert’s own right or interest in seeing
their views upheld or vindicated in the Tribunal’s decision.
72 South China Sea Arbitration (Award), para. 58.
73 South China Sea Arbitration (Award), para. 133 (citations omitted).
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255