by Ishani Sharma
This article aims to examine the UNCLOS’s effectiveness and relevance, with a specific emphasis on the case of the South China Sea and the UNCLOS Arbitral Tribunal’s 2016 ruling on the issue. The article contends that, while China’s disregard for the ruling and the Philippines’ subsequent undervaluation of it harms the UNCLOS’s reputation as international law, it does not undermine its effectiveness in clearly defining and resolving the legality of disputes through efficient mechanisms, as will be discussed below.
The maritime domain, it is commonly assumed, will be the next major platform for great power politics. With many big powers competing but also cooperating in the marine realm, this idea is well-founded. The South China Sea (SCS) region is an important region that has seen confrontations between several regional powers. Along with being an integral part of the maritime sphere, the SCS is significant for a variety of reasons, including, but not limited to, the vast amount of trade that passes through it (one-third of the world’s maritime shipping passes through it) and the fact that it is known to have massive reserves of oil and natural gas (an estimated 7.5 billion barrels of proven oil reserves and 900 trillion cubic feet of natural gas). More crucially, the SCS is of vital strategic importance to China, with the country viewing it as its “backyard” and aiming to deepen its footing in the region on multiple occasions.
With the SCS’s strategic and economic importance in mind, the region has become a platform for countries such as Brunei, Taiwan, Malaysia, the Philippines, Indonesia, and China to assert competing claims of sovereignty and entitlement over the maritime features, with China, undoubtedly, having the most expansive claim. Its claims are based on alleged historical rights and encompass all relevant waters, as well as the seabed and subsoil thereof, inside the unexplained “nine-dash line” to be under China’s sovereign power and jurisdiction, which translates to a whopping 90% of the South China Sea waters. China has begun many projects in the region to bolster its claims, ranging from increasing the size of islands and creating artificial islands to building ports, military sites, and airstrips in the Paracel, Spratly, and Woody Islands. As the instance of the South China Sea demonstrates, the maritime sphere is a highly disputable platform, and with its increasing importance in the coming years, it may witness violent and brutal confrontations between countries.
Thanks to the world leaders’ foresight of the same, the United Nations Convention on the Law of the Sea (UNCLOS) was adopted in 1982, which provides a legal framework to govern all activities and uses of the world’s seas and oceans. As Phan and Nguyen astutely observed, the “UNCLOS is the outcome of lengthy negotiations to accommodate the demands of different states and thus contains a large number of delicately balanced provisions”, and it is to preserve this “delicately balanced provisions” and to dissuade countries from violating the integrity and stability of the Convention through their unilateral interpretations that a binding dispute settlement system was established under the UNCLOS. While the UNCLOS is one of the most important international tools for resolving maritime disputes and determining maritime feature entitlements, it is also one of the least recognised agreements due to a lack of an enforcement mechanism. This limitation calls into question the convention’s efficacy as countries such as China continue to disregard the convention and breach its integrity. In this context, this article aims to examine the UNCLOS’s effectiveness and relevance, with a specific emphasis on the case of the South China Sea and the UNCLOS Arbitral Tribunal’s 2016 ruling on the issue. The article contends that, while China’s disregard for the ruling and the Philippines’ subsequent undervaluation of it harms the UNCLOS’s reputation as international law, it does not undermine its effectiveness in clearly defining and resolving the legality of disputes through efficient mechanisms.
China’s Objections to the UNCLOS Tribunal’s Jurisdiction
In an attempt to resolve a long-standing dispute over maritime entitlements in the South China Sea based on China’s claims, as well as to question the legality of Chinese activities in the SCS, the Philippines approached the Tribunal in 2015. Since China ratified the Convention in 1996 and was in fact, actively involved in UNCLOS negotiations, it was well aware of and consented to the jurisdiction of the Convention’s mandatory dispute settlement mechanism. Contrary to expectation, rather than engaging with the Tribunal’s proceedings, China took an unequivocal stance of “no acceptance, no participation, no recognition, and no implementation” of the Tribunal’s trials and eventual verdict.
Given that a country outrightly denied the Tribunal’s jurisdiction, it calls into question the very validity and legitimacy of the Convention, and thus it is pivotal to explore whether the reasons for China’s non-participation and non-acceptance have any legal rationale or were merely a political move to avoid the verdict. China presented three key objections to the Tribunal’s jurisdiction: the arbitration was illegally created to exclude Chinese acceptance and participation, the arbitration lacked jurisdiction, and the arbitration was not a legitimate international court.
Critical Review of China’s Objections
First, notwithstanding that China did not officially recognise, let alone participate in, the Arbitral Tribunal’s trials, a country’s lack of participation does not render the arbitration process illegal, as provided by Article 9 of Annex VII of the UNCLOS, a convention ratified by the Chinese government. Thus, the Tribunal’s legality and authority to consider China as a party to the case is not reliant on China’s acceptance or involvement in the case, but on whether China has consented to the dispute settlement body’s jurisdiction, which it has acknowledged through its ratification of the Convention in 1996.
Moving on to the second argument advanced by the Chinese government that the Arbitral Tribunal lacked jurisdiction over the matter, Article 288 of the Convention states that if there is a disagreement regarding the tribunal’s jurisdiction, it must be resolved by the tribunal itself. Thus, the Tribunal dutifully and thoroughly reviewed and addressed China’s objections to its jurisdiction. The gist of the objection is that, in ratifying the convention, China included, among other things, a declaration that it would delimit its maritime zones through consultations with states opposite or adjacent to China, and in 2006, it submitted a declaration that it excludes from the procedure of compulsory settlement of disputes all disputes that might involve questions of sovereignty and issues of delimitation of maritime boundaries. To that end, the Tribunal acknowledged that it lacked jurisdiction over sovereignty and maritime delimitation issues, but the case presented by the Philippines, as stated by the Philippines itself, does not concern sovereignty. Secondly, the Tribunal stressed that maritime delimitation and maritime entitlements are two separate matters and that determining the status of a maritime feature did not require a judgment on any delimitation issues. Thereby, China’s objection to the Tribunal’s jurisdiction on the grounds that the case involves a question of sovereignty or maritime delimitation is unfounded, as the Tribunal was well within its rights to exercise jurisdiction over determining the status of certain maritime features in the South China Sea.
Finally, China questioned the Tribunal’s legality, claiming, inter alia, that the arbitrators were paid for by the Philippines and implying that the verdict would be skewed in favour of the Philippines. Here as well, China conveniently overlooked the provisions of Article 7 of Annex VII of the convention to which it is a party, which states that because the Arbitral Tribunal is not a permanent judicial institution, the expenses of the tribunal shall be borne in equal shares by the parties to the dispute. Since China declined to participate in the proceedings, the Philippines was obliged to fulfil its responsibilities and cover the arbitrators’ expenses. Thus, who bears the tribunal’s expenses does not indicate or influence the tribunal’s decision, but rather is simply a provision of the agreement.
Having thoroughly analysed China’s reasons for non-participation in the case, it is evident that China questioned the Tribunal’s jurisdiction and legitimacy merely as an excuse to avoid the proceedings which went against China’s interests and thus, has no bearing on the Tribunal’s validity and significance. In contrast, the Tribunal’s efforts to meticulously address all of China’s objections without bias indicate its efficiency and commitment to protecting the Law of the Sea against a country’s self-interested motives.
Ishani Sharma is a second-year undergraduate at the Jindal School of International Affairs, pursuing a bachelor’s in global affairs with a specialisation in peace and conflict studies.