The South China Sea Arbitration: Significance and Developments

This report provides a comprehensive analysis of the South China Sea arbitration case between the Philippines and China. It examines the importance of the case in international law, highlighting its impact on the balancing of rights and obligations under UNCLOS, and its potential as a precedent for future disputes. The report delves into the strategic questions faced by involved parties, including China, the Philippines, ASEAN countries, and the United States, following the tribunal's decision. It further explores the developments following the court's decision, including China's non-acceptance and non-recognition of the award, the reactions from the Philippines and the U.S., and the ongoing tensions in the South China Sea. The report also discusses the legal basis of the arbitration under UNCLOS and the implications of China's stance on the award. It concludes by assessing the impact of the arbitration on the peaceful management of disputes in the South China Sea and the confidence in UNCLOS dispute resolution procedures.

1. The Importance or Significance of The Case in International Law:
The case is rooted into international law since decades. It may seem that the case includes only China
and Phillioines but actually it does affect more than that. Such as, “the Award represents at its heart a
classical reassertion of the necessary balancing of rights and obligations that UNCLOS has always sought
to achieve. As the preamble to the Convention very famously had caused to note: ‘the desirability of
establishing through this Convention, with due regard for the sovereignty of all States, a legal order for
the seas’.”1 Like the award, the whole dispute is a milestone in future similar dispute between
countries. The award can be considered as a precedent and hence, a source of the International Law as
in a broader sense.
Also, “Of key importance has been the scope of the legal dispute. The international situation in the
South China Sea is a complex interplay of land and maritime disputes, involving not only the Philippines
and China but also many of the other regional States, including Malaysia, Vietnam and Brunei, as well as
other maritime powers, including, notably, the United States. Many of the disputes revolve around
questions of sovereignty of land but, as a treaty on maritime affairs, UNCLOS does not address territorial
sovereignty, nor can its dispute resolution procedures resolve maritime disputes that implicitly require
the underlying territorial sovereignty also to be adjudged. As a general principle of international law,
‘the land dominates the sea’ and thus a State’s sovereignty over maritime areas flows from its
sovereignty of its land territory. To avoid this insurmountable jurisdictional issue, the Philippines’ claims
were narrowly constructed to avoid questions of territorial sovereignty, or in any way requiring the
Tribunal to delimit maritime boundaries (which would invariably require agreement or a judgment on
the sovereignty over particular territory).”2
“China, the Philippines, ASEAN countries, and the United States face a range of strategic questions about
the best way forward. Will Beijing demonstrate its disregard for the decision by engaging in land
reclamation at Scarborough Shoal or declaring an Air Defense Identification Zone in the South China Sea,
as some have predicted? Will it continue to insist on conditioning any future bilateral negotiations with
the administration of new Philippine President Rodrigo Duterte on his government’s rejection of the
Tribunal’s Award? Will it worry that some of these behaviors will push the Philippines and other ASEAN
nations closer to the United States? Will we see the U.S. Navy conducting ‘pure’ freedom of navigation
operations (FONOPs) within 12 nautical miles of the Spratly Island features the Tribunal says are not
entitled to a territorial sea?”3
1 Duncan French (2017), In the Matter of the South China Sea Arbitration: Republic of Philippines v
People’s Republic of China, Arbitral Tribunal Constituted under Annex VII to the 1982 United Nations Law
of the Sea Convention, Case No. 2013-19, Award of 12 July 2016, (online) Environmental Law Review,
available at: https://journals.sagepub.com/doi/full/10.1177/1461452916680866 (accessed on 9th May,
2019).
2 Ibid;
3 Robert D. Williams, (2016), Tribunal Issues Landmark Ruling in South China Sea Arbitration, (Online)
Lawfare Blog, available at: https://www.lawfareblog.com/tribunal-issues-landmark-ruling-south-china-
sea-arbitration (accessed on 9th May, 2019).

2. Any Other Developments Following the Court or Tribunal’s Decision :
“China’s position all along with respect to these proceedings can be summed up as ‘no acceptance, no
participation, no recognition, and no implementation.’ The PRC Ministry of Foreign Affairs predictably
wasted no time releasing a statement declaring that ‘the award is null and void and has no binding
force.’ The Philippine Foreign Affairs Secretary welcomed the decision, stating: ‘The Philippines strongly
affirms its respect for this milestone decision as an important contribution to ongoing efforts in
addressing disputes in the South China Sea.’ No surprises here, especially given that the Tribunal
resolved virtually all the key issues in favor of the Philippines. For its part, the U.S. State Department
issued a measured statement remarking that ‘the decision today by the Tribunal in the Philippines-China
arbitration is an important contribution to the shared goal of a peaceful resolution to disputes in the
South China Sea.’ As these statements suggest, the issuance of this Award by no means puts to rest the
disputes or the tensions in the South China Sea. The arbitration was never going to resolve issues of
sovereignty over the islands and rocks in the South China Sea, because disputes over territorial
sovereignty are beyond the jurisdiction of an UNCLOS Tribunal. And since the Tribunal has no power to
enforce its nominally binding decision, questions now turn to what any form of ‘implementation’ might
look like and the effect this ruling will have on future negotiations over territorial sovereignty.”4
“UNCLOS, the international legal basis for the arbitration, is very clear in Annex VII, Arbitration, Article
11 that ‘the award of the arbitral tribunal shall be final and binding and without appeal . . . . It shall be
complied with by the parties to the dispute.’ Hence, there is no argument to be made that
nonappearance by a state changes or effects the ‘final and binding’ nature of the Award. Moreover,
while China has asserted both after the release of the 2015 Award on Jurisdiction and the 2016 Award
that the both are ‘null and void’ and have ‘no binding force,’ there is no legal basis in UNCLOS for such
assertions. China has further stated that it ‘neither accepts nor recognizes’ the Award. There is a modest
practice of states opting not to accept or recognize, and thus not comply with, decisions of the ICJ, the
International Tribunal for the Law of the Sea (ITLOS), and a tribunal established pursuant to UNCLOS.”5
“In the immediate aftermath, the reactions indicate little hope that the South China Sea Award will
result in a period of peaceful management of the tangled disputes within the South China Sea. China has
loudly condemned the Award and a joint statement from ASEAN and China did not even mention it.
Somewhat more encouraging are the preparatory talks that have taken place between the Philippines
and China. Of final note, concerns about whether the Award and China’s rejection of it have undermined
confidence in UNCLOS dispute resolution procedures are perhaps misplaced. Subsequent to the
commencement of the South China Sea Arbitration, three parties have brought cases before ITLOS and
two have commenced UNCLOS, Annex VII arbitration cases.”6
4 Ibid;
5 Ted L. McDorman, (2016), The South China Sea Arbitration, (online) American Society of International Law,
available at: https://www.asil.org/insights/volume/20/issue/17/south-china-sea-arbitration (accessed on 10th
May, 2019).
6 Ibid;