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

• Author: Ward, Christopher
• Position: CASENOTE:

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.

Even in a traditionally dualist system of law, the existence of independent international tribunals has a tendency to increase the prominence of international law in the context of the domestic legal system. Dispute resolution acts to legitimate the process of international law, by placing it in a more familiar context. It enables domestic participants to refer to decisions as an explicit affirmation of particular propositions of international law. (3) It can assist in the construction or drafting of domestic laws by clarifying and expanding upon underlying treaty provisions. It can attract new members to a treaty regime by providing a consistent and transparent means of interpreting and administering the treaty. If decisions are reported, the administration of the treaty is likely to attract attention, thus improving the efficacy of the treaty. In the case of customary international law, the existence of a dispute resolution body can clarify state practice and declare the existence of custom.

An international tribunal will carry with it the power of legitimacy and the perception of legal truth. Declarations and interpretations of international law by an international tribunal will be relied upon by actors in the international legal system generally, but perhaps particularly by non-state actors and domestic participants who are substantially excluded from other participation in the process of law-creation. Additionally, international tribunals can and do make reasoned criticisms of existing international and domestic law, which can be called upon by domestic participants to further interests in law reform.

Certain properties of legal reasoning will lead to legitimate decisions. Franck has described those properties, which together make up the quality of 'determinacy' (4) as including a transparent process, reliance upon reasoned decisions, the provision of reasons for judgment, the impartial application of rules to found a judgment and the extent to which like cases are determined alike. (5) To that may be included the appropriate composition of the Tribunal itself.

Ill The Jurisdiction and Legitimacy of the Tribunal

The arbitration was established in January 2013 pursuant to Articles 286 and 287 of UNCLOS which permit the compulsory arbitration of disputes concerning the interpretation, or application of UNCLOS.

The composition of the Tribunal cannot be the subject of serious criticism. Judge Wolfrum was appointed by the Philippines. The remaining members (Judge Pawlak, Judge Cot, Professor Soons, and Judge Mensah), are each rightly considered a world expert in the law of the sea and UNCLOS and were appointed by the President of the International Tribunal for the Law of the Sea.

China reacted to the Award with a series of public statements which challenge the legitimacy of the Award, the Tribunal itself, and the Arbitration process. By way of example, the Chinese Ambassador to the United Kingdom stated on 23 July 2016 that the process was "a political farce under the cloak of law". (6) The Ambassador stated that the tribunal lacked jurisdiction because its subject matter related to territorial sovereignty and maritime delimitation which were either beyond the scope of UNCLOS or the subject of the reservation made by China under Article 297 of UNCLOS. Further challenges to the legitimacy of the Award were said by the Ambassador to include that the Tribunal "turned a blind eye" to China's sovereign rights which had been inherited from past generations, and the failure of the Tribunal to include an arbitrator from Asia or...