The South China Sea Arbitration Award: 5 Years and Beyond

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The South China Sea Arbitration Award: 5 Years and Beyond

China has consistently denied the ruling, but it is already shaping legal opinion in important ways.

The South China Sea Arbitration Award: 5 Years and Beyond

The Philippine team at the Peace Palace in The Hague, Netherlands, before the start of the oral arguments in connection with the arbitration case against China on the dispute in the South China Sea.

Credit: Philippines Department of Foreign Affairs

On July 12, 2016, the Arbitral Tribunal instituted under Annex VII of the 1982 Convention on the Law of the Sea (UNCLOS) issued a final award of significant importance on the South China Sea arbitration case (the Award). Since then, this landmark decision has inspired numerous discussions on legal issues and has been considered as providing a legal background for the maritime activities taken by various countries in the South China Sea.

The Award, with its findings, has contributed greatly to the development of the international law of the sea and advanced the legal debate on the South China Sea issues in many ways. It has served as a legal basis for all the relevant states to review their positions and policies in the South China Sea.

After a period of opting for caution and downplaying the victory that it won in the South China Sea arbitration, Manila gradually turned to confirm the value of the Award. In his speech to annual meeting of the United Nations General Assembly in September 2020, President Rodrigo Duterte stated that “the Award is now part of international law, beyond compromise and beyond the reach of passing governments to dilute, diminish or abandon.”

Philippines Foreign Affairs Secretary Teodoro Locsin, in his statement on the fifth anniversary of the issuance of the Award, compared the ruling rendered by the Arbitral Tribunal to “the North Star that will keep us on course in the present, and that will point us back to the right direction in the future.” He said that the Philippines “firmly reject[s] attempts to undermine [the ruling], or erase it from law, history and collective memories.” He further stated that the Award was “final,” that it constituted “a milestone in the corpus of international law,” and that it offered a valuable reference source for “countries with the same problematic maritime features” as those of the Philippines.

By stipulating that the maritime features in the Spratly Island group could not generate exclusive economic zones (EEZs) or continental shelves, the Award helped minimize the areas of disputes in the South China Sea and provided a basis for the delimitation of overlapping maritime zones there.

The Award apparently provided the impetus for Malaysia’s decision on December 12, 2019 to lodge a partial submission for a continental shelf in the northern part of the South China Sea that extended beyond 200 nautical miles from its baselines with the United Nations Commission on the Limits of the Continental Shelf. This submission is admissible only if it does not create overlaps between the extended continental shelf claimed by Malaysia and those claimed by Vietnam and the Philippines.

The Award has also provided a legal basis for regional and extra-regional countries to clarify their positions on the South China Sea issues. This was seen in the diplomatic note exchange from late December 2019 to January 2021, which prompted a flurry of 25 notes verbales, two letters, and one statement by 11 regional and extra-regional players on issues pertinent to the South China Sea region: Brunei (one statement), China (nine notes verbales and one letter), Malaysia (three notes), the Philippines (three notes), Vietnam (three notes), Indonesia (two notes), the United States (one letter), and Australia, France, Germany, the United Kingdom, and Japan (one note each).

 Except those of China, the diplomatic notes circulated during the recent note verbale debate contained many common points. They agreed that:

  • The unified and universal character of UNCLOS rendered it the most important legal instrument for tackling all matters and activities at sea.
  • The South China Sea Arbitral Award of July 12, 2016 presented an authoritative interpretation of international law concerning maritime claims in the region and was legally binding on all the concerned parties, including China and the Philippines.
  • Each high-tide feature in the Spratlys could only generate a territorial sea of 12 nautical miles.
  • The freedoms of navigation and overflight in the South China Sea should be respected.
  • The use of archipelagic baselines should be strictly limited to archipelagic states and was not permissible for the purpose of claiming maritime entitlements in the case of continental states’ outlying archipelagos.
  • Land reclamation or any artificial construction activities could change neither the legal regime nor the categorization of the maritime features in the South China Sea.
  • Historic rights claims in the South China Sea were unlawful and inconsistent with international law, particularly UNCLOS.

Additionally, the Award has significantly impacted ASEAN’s position with regard to the South China Sea disputes, given the regional grouping’s pursuit of centrality in the Indo-Pacific. Notably, the Chairman’s Statements of the 36th and the 37th ASEAN Summits, both held in 2020 under Vietnam’s chairmanship, reaffirmed the importance of upholding international law, including UNCLOS. The statements mentioned that UNCLOS provided “the basis for determining maritime entitlements, sovereign rights, jurisdiction and legitimate interests over maritime zones.” The statements also stated that UNCLOS “sets out the legal framework within which all activities in the oceans and seas must be carried out.” All this suggests that the Award has facilitated the development of a common ASEAN stance on how to resolve the South China Sea issues.

Through recent statements by the U.S. Department of State, the new Biden administration has confirmed that it would follow the policy of its predecessor with regard to the South China Sea issues. During his press briefing on February 19, 2021, State Department spokesperson Ned Price reiterated the position the United States had taken under the Trump administration in its statement of July 13, 2020 regarding maritime claims in the South China Sea. Additionally, the July 2020 U.S. statement also reiterated a pledge to “stand with the international community in defense of freedom of the seas.” To uphold that pledge, the U.S. has been working out plans to conduct freedom of navigation operations with its allies, including Australia, France, Germany, and the United Kingdom, in the South China Sea in recent months.

The active participation of many regional and extra-regional states in the recent diplomatic note exchange surely did not signify the formation of an alliance against China in the region. Instead, the 2019-2021 notes verbales demonstrated that the relevant countries are increasingly able to find a common legal ground on which to discuss the South China Sea issues. That common ground starts with the recognition that all disputes must be resolved in accordance with international law, and that a return to power politics or “might makes right” is simply unacceptable.

Unfortunately, the evidence suggests that China is still holding onto its “Four Noes” policy in the South China Sea: that is, no acceptance, no participation, no recognition, and no implementation of the South China Sea arbitration. One year after the issuance of the Award, the Chinese Society of International Law (CSIL) published a 500-page treatise entitled “The South China Sea Arbitration Awards: A Critical Study,” in which it argued that the ruling rendered by the South China Sea Arbitral Tribunal was erroneous.

China has also actively engaged in “lawfare” in the South China Sea, while seeking to augment its presence there by establishing administrative control over disputed territories, proposing names for undersea features, and passing domestic laws to enforce its jurisdiction over its claims in the region, such as the January 2021 Coast Guard Law and the April 2021 Revised Maritime Traffic Safety Law.

Additionally, while China continues to flout the ruling by the Arbitral Tribunal, it has undertaken major adjustments to its legal position on the South China Sea, most notably by remolding its “nine-dashed line” claims into some curious “Four Sha” claims. At the same time, China has also attempted to pick and choose which provisions of the UNCLOS it wants to abide by – an approach that does not conform with the spirit and concept of the “package deal” promoted during UNCLOS negotiations.

Certainly, any change will need time to sink into the consciousness of the international community. The South China Sea Arbitral Award has now become an important a part of our history and our present, an undeniable fact. It is conceivable that this Award will also continue to be a helpful guide leading the concerned parties to develop a viable rules-based order in the South China Sea, rather than allow the region to become a “might makes right” arena for interstate rivalry.