The South China Sea Arbitration (The Republic of Philippines v. The People's Republic of China)

Abstract

I Introduction The Philippines v China Award in July 2016 of the Annex VII Arbitral Panel established under the auspices of the Permanent Court of Arbitration will stand as one of the most significant decisions of the law of the sea. The Award determined claims by the Philippines challenging China's assertion of so-called 'historic title', the characterisation of various land features, and the legitimacy of actions taken by China in the disputed areas. The claims of the Philippines were overwhelmingly accepted by the Tribunal. The central findings made by the Tribunal were that: (i) China had no entitlement to the waters, or resources of the sea or sea-bed, in the South China Sea based on any historic claim of use, and China's claims fell to be determined by the rules of the United Nations Convention on the Law of the Sea (UNCLOS); (ii) none of the land features claimed by China had the characteristics of an island for the purposes of Article 121 of UNCLOS, and hence none were capable of generating an exclusive economic zone; (iii) many of the land features claimed by China were low tide elevations (i.e. features that are submerged at high tide) and are therefore incapable of generating a 12 nautical mile territorial sea; (iv) many of the land features claimed by China were within the exclusive economic zone of the Philippines; and (v) as a result, many of the actions taken by China in the disputed areas by way of construction of artificial structures and interference with fishing rights amounted to unlawful interference with the rights of the Philippines for the purposes of UNCLOS. Many of the rulings could be described as predictable, in the sense that they are based upon a textual and contextual analysis of the relevant provisions of UNCLOS. Perhaps because the decision is legally sound and defensible, China's initial response focused upon attacks upon the perceived legitimacy of the Tribunal rather than the merits of the Award. The disputes in the South China Sea encompass a number of overlapping claims, some of which do not directly involve China (for example, each of China, Vietnam, Taiwan, the Philippines, Malaysia and Brunei lay claim to parts of the Spratly Island chain, and each claims extensive exclusive economic zones from islands in that chain, with those claimed maritime zones overlapping and intersecting). The Award therefore has significance well beyond China and the Philippines. Because of the principled and detailed manner in which the Tribunal approached its task, the Award will also stand as an authoritative statement of legal doctrine in the previously uncharted areas of UNCLOS to which it is addressed. This note will consider the jurisdiction and legitimacy of the Tribunal and the Award, and the key legal rulings contained within it. II The Background to Legitimacy Legitimacy in international law dispute settlement is an oft-studied and fragile creature which influences both the direct likelihood of enforceability of a particular award, and also the longer term influence of a particular award in the international community. (1) The legitimacy of the South China Sea Tribunal and the resulting Award was subject to continuous scrutiny and criticism by China throughout the process, and following the Award. That criticism must be placed in the context of existing scholarship on legitimacy. In the case of international treaty regimes, a dispute resolution procedure can have a direct effect either by virtue of related sanctions or as a result of the normative legitimacy pull of its decisions. (2) Adverse decisions or findings lead both to diplomatic pressure and adverse publicity for the state in question, each of which encourages compliance with the view or decision of the international tribunal. International dispute resolution procedures also serve to interpret relevant international laws or rules, increasing the efficacy and progressive development of the international legal system. …