Post‐SCS Arbitration Developments and Issues on Freedom of Navigation, Rights of Coastal States, and Environmental Protection in the “Area”

Abstract

On July 12, 2016, the Arbitral Tribunal constituted under Annex VII of the 1982 United Nations Convention on the Law of the Sea issued its Award on the case concerning the Philippines and China. The award places China, the South China Sea claimants, ASEAN, and external parties at a crossroads that opens up various possibilities and challenges. It has generated considerable uncertainty, anchoring the region's future on how the various stakeholders react to the ruling. While parties to the disputes, together with ASEAN and external players, may not be able to resolve what is essentially a very complex problem, there have been numerous efforts to find new approaches and innovative solutions to untangling them. This article discusses pertinent issues on the legal basis of maritime rights and entitlements in the South China Sea following the award. The first part of the article discusses the award as an effort in dispute resolution procedures, the second addresses how it is perceived as contributing to destabilization in the Asia Pacific region, and the third part explores new developments postarbitration including the legal effects on freedom of navigation and coastal states’ perceptions of navigational rights, rights of overflight in their exclusive economic zones, and environmental protection in the “Area.”