A landmark decision in the South China Sea: the scope and implications of the Arbitral Tribunal's Award.

• Author: Schofield, Clive
• Position: Report

On 12 July 2016, the Arbitral Tribunal in the case between the Philippines and China delivered its award. (1) The Tribunal's ruling represents a sweeping victory for the Philippines and fundamentally alters the international legal land, or more appropriately, seascape of the South China Sea. This article has three aims: first, to outline the character of the Tribunal and the status of its award; second to summarize the Tribunal's main findings; and third, to explore some of the potential implications of the award, both within and beyond the South China Sea.

The Tribunal and the Status of the Award

Both China and the Philippines are parties to the United Nations Convention on the Law of the Sea (UNCLOS, or the Convention). Part XV of the Convention, which deals with the settlement of disputes, sets out a variety of "compulsory procedures entailing binding decisions" including arbitration in accordance with procedures contained in Annex VII. (2) It is these provisions that the Philippines invoked to initiate the arbitration through a Statement of Claim of 22 January 2013. (3) As the Tribunal arose from UNCLOS, sovereignty questions concerning disputed islands in the South China Sea were beyond its jurisdiction.

China rejected the initiation of the arbitration, arguing that the Tribunal lacked the jurisdiction to hear the case. (4) Nonetheless, on the basis that both China and the Philippines are parties to UNCLOS, the Tribunal was duly constituted, (5) with the Permanent Court of Arbitration (PCA) in The Hague acting as the registry for the case and venue for hearings. In light of China's challenge to its jurisdiction, the Tribunal bifurcated its proceedings, considering jurisdictional issues first. On 29 October 2015, in its Award on Jurisdiction and Admissibility, (6) the Tribunal found that it had the required jurisdiction to proceed with the case with some jurisdictional issues held over to the merits phase of the proceedings. (7) China refused to participate in the case directly, (8) and although the Tribunal's award is "final and binding and without appeal", (9) Beijing has robustly rejected it. (10)

Main Findings in the Award

Historic Rights and China's Nine-Dash Line

The nature and scope of China's claims within the so-called "nine-dash line" depicted on Chinese maps of the South China Sea has been a longstanding source of ambiguity in the South China Sea dispute. Given this uncertainty, coupled with China's refusal to directly participate in the case, the Tribunal assessed China's conduct within the nine-dash line. The Tribunal determined that China's claims within the line represented "a constellation of historic rights short of title". (11) Following on from this finding, the Tribunal found that any historic rights claim to resources within the nine-dash line were extinguished and, therefore, "incompatible" with UNCLOS. (12) This ruling was founded on the view that the Convention was designed to be comprehensive in nature regarding rights within maritime zones meaning that the rights of the other South China Sea coastal states within their EEZs and continental shelf areas "leaves no space for an assertion of historic rights". (13)

Status of Insular Features

In evaluating the Regime of Islands, that is, Article 121 of UNCLOS, and providing an authoritative interpretation of its provisions, the Tribunal directly addressed one of the crucial ambiguities in the Convention. That is, the challenge of distinguishing between above high-water insular features which are able to generate extended maritime claims, and those that should be classified as "rocks", which in accordance with Article 121(3) "cannot sustain human habitation or an economic life of their own" and which therefore "shall have no exclusive economic zone [EEZ] or continental shelf". (14)

The Tribunal concluded that the assessment of a particular feature was not to be based on geological or geomorphological criteria. (15) That is, that the term "rocks" is meant to apply only to features "composed of solid rock". (16) Further, it emphasized that assessment should be on the basis of the feature's "natural capacity" to sustain human habitation or an economic life of its own, "without external additions or modifications intended to increase its capacity" to do so. (17) The Tribunal went on to determine that only features with a capacity to sustain either "a...