The UN Convention on the Law of the Sea after the South China Sea Arbitration: Is ‘mandatory’ dispute settlement a shore thing?

Abstract

This paper addresses the effect of the South China Sea arbitration between the Philippines and China on the dispute settlement mechanism under the United Nations Convention on the Law of the Sea (UNCLOS). The Tribunal’s decision regarding their own jurisdiction has broadened the scope for future international courts and tribunals in holding jurisdiction over disputes regarding the law of the sea. Various academics have criticised the Tribunal’s interpretation, regarding it as ill-founded in law and biased towards the Philippines. However, through an assessment of all the arguments submitted in the jurisdiction Award, relevant case law, academic commentary, and the travaux préparatoires of UNCLOS, I argue that the Tribunal’s decision on jurisdiction is consistent with the joint aims of the Convention. Although China has refused to acknowledge the Awards made and therefore they have not made as significant an impact as hoped for, this decision has triggered political negotiations by all littoral states of the South China Sea. And although the impact of the Tribunal’s interpretation of jurisdiction has not yet been tested in another UNCLOS dispute, the Award has nevertheless illustrated to nation states that delay tactics for peaceful settlement will not be tolerated and the UNCLOS mandatory dispute settlement scheme aims to fulfil this very purpose.