Home > RESEARCH > Commentary

Tribunal Award Could Impair UNCLOS


Tian Shichen 

(The artical was originally published on Global Times by Captain(Retd) Tian Shichen, Vice President at Grandview Institution, then held the pen name of Liu Haiyang)

Accessed at: http://www.globaltimes.cn/content/993582.shtml

On the eve of the delivery of the award of the South China Sea (SCS) Arbitration initiated by the Philippines against China, Western officials, scholars and media joined in a chorus of voices calling upon China to respect the said award. An article on the website of the Chinese version of the Financial Times states that China's attitude to the ruling on the UN Convention on the Law of the Sea (UNCLOS) is being seen as a test of whether Beijing respects international law. Thomas Eder, an analyst at the Mercator Institute for China Studies in Berlin, said, "Should China reject the arbitral award as expected, this would constitute a watershed moment."

However, as China has explained with regard to non-participation, non-recognition, non-acceptance and non-implementation of the arbitration, the content of the verdict and its implementation are more of a touchstone for the compliance with rule of international law by the Arbitral Tribunal established under the 1982 UNCLOS as well as the US and the Philippines. 

The preliminary award on jurisdiction and admissibility by the Tribunal has been criticized for exercising jurisdiction ultra vires. In defiance of the bilateral agreements between China and Philippines to solve the dispute by bilateral consultation, the Tribunal claimed to have jurisdiction on Philippines' submissions, which cloaked themselves as disputes that didn't concern sovereignty and maritime delimitation, which are beyond the authority of the Tribunal under the 1982 UNCLOS.

The Tribunal also failed to respond to China's territorial sovereignty over the Nansha Islands as a whole. If the Tribunal continues its previous wrong approach to give a ruling that explicitly or implicitly affects China's SCS sovereignty claims or maritime delimitation with its neighbors, or fails to respond to China's declaration on exclusion of such disputes as military activities and historical titles from the third party dispute settlement, or makes its decision with the legal status of some maritime features not in accordance with law and fact, its verdict will be a null one and non-binding. 

Moreover, the Award will impair the integrity and authority of the 1982 UNCLOS and lead to a fragmentation of international law. In that way, the behavior of the Tribunal will manifestly constitute a breach of the rule of international law.

The fact that the US is not a party to the SCS arbitration dispute and has nothing to do with the final ruling of the arbitration does not prevent the US putting enormous attention on this case. The US has drastically increased its military presence and operations in the SCS as deterrence toward China. 

American officials and scholars have joined to press China in the media to abide by the upcoming ruling. This is a clear mockery by the US since it is the only country among the five permanent members of the UN Security Council which withdrew from the judicial process of the Nicaragua case handled by the International Court of Justice (ICJ) and which used its power to veto the implementation of the ICJ's decision by the Security Council. 

There is no enforcement mechanism for implementing the international arbitration award. The ruling of the SCS Arbitral Tribunal could not be used as a legal excuse by the US to carry out more military operations in the SCS. 

If the US followed its wrong approach in the 2003 invasion of Iraq to unilaterally use force in the SCS in defiance of the UN Charter prohibition on use of force in international relations, it will be a persistent international lawbreaker.

The Philippines is the initiator of the Arbitration. It's very important to see how its new government will deal with the negative legacy of the previous government. Facing with a multiple of choices, the best approach for the new government is to withdraw the case and return to the diplomatic approach to settle disputes with China through negotiations. This will be in the long-term interest of both countries and peoples. 


Preventing strategic misinterpretation between China and the U.S.: a critical reflection on the semantics of

Past Events