The South China Sea Arbitration: Bindingness, Finality, and Compliance with UNCLOS Dispute Settlement Decisions
Tác giả: Phan Duy Hảo và Nguyễn Ngọc Lan
Asian Journal of International Law Vol.8, Issue 1, January 2018, pp. 36-50
On 12 July 2016, the Tribunal in the South China Sea arbitration issued its final award. China rejected the ruling as “null and void”. The Philippines dismissed it as “a piece of paper” after initially hailing the ruling a “milestone decision”. The reactions of the parties concerned raise important questions about the bindingness, finality, and state compliance with UNCLOS dispute settlement decisions. This paper addresses these questions by dissecting China’s arguments that the award “has no binding force” and by examining the options available for promoting compliance with the award. The paper also considers the broader question of how states generally comply with UNCLOS dispute settlement decisions and evaluates the significance of UNCLOS dispute settlement mechanisms, including the South China Sea arbitration, in the absence of external enforcement.
Conclusion: Significance of the award in the absence of an enforcement mechanism
Decisions by a court or tribunal having jurisdiction under UNCLOS, including the arbitral awards in the South China Sea case, are ﬁnal and binding. The binding and ﬁnal nature of these decisions is provided for under UNCLOS and is further underscored by the compulsory jurisdiction built into the dispute settlement system. As a result, parties to a dispute have an obligation to comply with these decisions. Non-compliance means UNCLOS is violated, UNCLOS dispute settlement bodies are disregarded, the delicate compromises implied in the Convention are upset, and international law is disrespected. Non-compliance also makes the legal relations between the concerned parties unstable and creates obstacles for the parties to move towards peaceful and lawful uses of the oceans.
For the South China Sea dispute, China’s failure to comply with the Arbitral Tribunal’s decisions results in a continued violation of the Philippines’ sovereign rights and jurisdiction in the latter’s EEZ. Its reputation will likely be negatively affected as China risks being seen as a rising power with little respect or patience for international law. Moreover, the South China Sea dispute is a matter of concern for many other states. If one party’s action is inconsistent with the awards and international law in general, the other party or major powers might take measures to challenge that action. Ultimately that would not be in the interest of China and the Philippines and of peace, stability, and security in the region.
In any case, the fact that China has not, and potentially will not, fully comply with the arbitral awards does not negate the signiﬁcance of the South China Sea arbitration. First, the case demonstrates the functionality of UNCLOS dispute settlement mechanisms. It reinforces the compulsory nature of the UNCLOS dispute settlement regime and highlights the role of UNCLOS in providing a level playing ﬁeld for all States Parties, big or small, to settle their disputes and protect their legal rights. Even if compliance may not be immediately observed in a limited number of cases, the generally high compliance rate in the case-law of the UNCLOS dispute settlement system strengthens the conﬁdence among states, particularly smaller ones, that UNCLOS dispute settlement mechanisms are indeed a fruitful means to resolve disputes and help protect their rights under the Convention. Second, together with other UNCLOS cases, the South China Sea arbitration indicates that unilateral submission of a dispute to an UNCLOS settlement mechanism has increasingly become a normal, accepted practice. During the last decades, nine maritime disputes in Asia alone have been unilaterally submitted to UNCLOS dispute settlement bodies, including the Southern Blueﬁn Tuna cases (New Zealand v. Japan; Australia v. Japan), the Land Reclamation case in and around the Straits of Johor (Malaysia v. Singapore), the “Hoshinmaru” case (Japan v. Russia), the “Tomimaru” case (Japan v. Russia), the dispute concerning the delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh v. Myanmar),60 the Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India), the South China Sea case (the Philippines v. China), and the Timor Sea dispute (Timor-Leste v. Australia).
Third, the South China Sea arbitration upholds the rule of law in the oceans and helps answer several legal questions regarding the interpretation and application of UNCLOS. The arbitral award protected the EEZ regime, which is essential to UNCLOS. It conﬁrmed that claims of historic rights to the natural resources in the EEZ of other coastal states are incompatible with the EEZ regime provided for in the Convention. It also offered for the ﬁrst time an authoritative interpretation of Article 121(3). As a result, the scope of the South China Sea disputes has been narrowed down. The overlapping areas in the Spratlys are now limited to only twelve nautical miles from the disputed rocks. As the awards strengthen the position of the Philippines and other ASEAN claimants, it will potentially inﬂuence their negotiation directions and strategies. The space for compromise in their EEZ will decrease, but their incentives to engage in ﬁshing co-operation, protection of the marine environment, and co-operation on maritime security and marine scientiﬁc research in the newly deﬁned overlapping areas will likely increase. Overall, the arbitration will hopefully lay out the legal framework for future negotiations and settlement of the underlying maritime boundary and sovereignty disputes and will contribute to peace, security, and development in the region.
60. Arbitral proceedings were unilaterally initiated by Bangladesh on 8 October 2009. On 4 November 2009, Myanmar made a declaration in accordance with 287 selecting the ITLOS as the forum for the dispute. Bangladesh did the same thing on 12 December 2009. On 13 December 2009, Bangladesh invited the ITLOS to settle the dispute, given that the two parties selected the same procedure for the dispute. See ITLOS Press Release No. 140: Proceedings Instituted in the Dispute Concerning Maritime Boundary of Bangladesh and Myanmar in the Bay of Bengal (16 December 2009), online: International Tribunal for the Law of the Sea
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