Arbitral tribunal issues landmark decision in the South China Sea case
On 12 July 2016, an international arbitral tribunal in The Hague (the “Tribunal”) unanimously ruled in favour of the Philippines and against China in the South China Sea Arbitration. The Philippines instituted the landmark case in 2013 under Annex VII to the United Nations Convention on the Law of the Sea (the “Convention”). The Permanent Court of Arbitration (“PCA”) acted as the Registry in the proceedings. The Award is available here
In its sweeping decision, the five-member Tribunal rejected China’s claim to historic rights over almost all of the South China Sea as without any foundation in international law. It also ruled against China on: (1) the status of certain maritime features in the South China Sea and the maritime entitlements they are capable of generating; (2) the lawfulness of Chinese actions in the South China Sea, including the construction of artificial islands and interference with Philippine fishing and oil exploration; (3) the effect of China’s actions on the marine environment; (4) whether China’s actions since the arbitration began had aggravated the dispute.
According to the Tribunal, it goes without saying that China is obligated to comply with the Award. China is required to do so by the express terms of Annex VII to the Convention and in accordance with the presumption in public international law of State compliance with treaty commitments.
The Tribunal did not have jurisdiction to rule on questions of sovereignty over land territory or to delimit boundaries between the parties. The scope of the ruling on questions regarding the Law of the Sea nonetheless was of monumental significance for both legal and geopolitical reasons. It provided long-sought clarity about the parties’ legal rights and obligations under the Convention, which has widespread membership. It also intervened in one of the most tense and complex dramas playing out on the international stage today. With over 50% of the world’s commercial shipping passing through the South China Sea each year, the outcome of the case will be of significance not only for the parties but also for all of the States bordering the South China Sea like Indonesia, Malaysia and Vietnam, and for the United States and other States that insist on freedom of navigation rights in the area.
Having refused to participate in the proceedings, China has insisted that it will ignore the final and binding decision. Its statement to that effect immediately following the ruling is available here.
Case background
The South China Sea Arbitration began on 22 January 2013, when the Philippines served China with a Notification and a Statement of Claim under the Convention. China refused to accept or participate in the proceedings. However, in December 2014 it published a Position Paper in which it asserted that the Tribunal lacked jurisdiction which the Tribunal