The tribunal was established pursuant to Annex VII of the United Nations Convention on the Law of the Sea 1982 (UNCLOS), to which the Philippines and China are parties.
Contrary to public expectations, the tribunal was not intended to solve the core dispute, namely overlapping claims of sovereignty over maritime features in the South China Sea (SCS). Furthermore, as any other international judicial proceeding, the award of the tribunal will only bind the parties in dispute, in this case the Philippines and China. Worse, China has refused to participate in the proceeding or comply with its decision. But why does the case matter for the international community? Why are so many states closely watching the case, including Malaysia and Vietnam, which both claim parts of the SCS, as well as other countries in the region, such as Indonesia, Japan, Singapore and Thailand? Even Australia and the UK, which are geographically far from the SCS, are paying attention to the outcome of the hearing.
The matter submitted to the arbitration itself, which was filed by the Philippines, was carefully drafted in the expectation that it would fall under the jurisdiction of the tribunal.
It was not concerned with sovereignty, which is outside the scope of UNCLOS dispute settlement mechanism, delimitation problems or military activities, which are excluded by China’s refusal to participate or abide by any decisions reached.
However, the tribunal’s decision on the three main issues in the case will have a significant impact on countries in the region, including Indonesia. The first concerns the validity of China’s nine-dash lines claim.
The second issue concerns the maritime status of the claimed areas, namely whether or not they are entitled to Exclusive Economic Zone (EEZ)/Continental Shelf status, territorial waters status or no entitlement at all. The third is the construction activities of China, which are claimed to be damaging the environment.
First and foremost, the tribunal will promote the rule of law in the ocean and UNCLOS compliance by its parties.
States have long negotiated the rule that governs their rights and obligations in the ocean as codified in the UNCLOS, which has been widely accepted as the constitution of the Ocean. Indeed, one of the main purposes of UNCLOS was to create rules to avoid excessive claims by states that would undermine the general interests of the international community.
UNCLOS provides a mechanism for settlement of disputes arising from its interpretation and application and encourages its parties to use that mechanism. The tribunal and its decision will serve as encouragement for states to settle their differences amicably.
For the region and the claimant states, the award will enhance regional stability. It will stipulate the rights and obligations of the littoral states of the SCS.
Furthermore, the decision will clarify some, if not all, the ambiguities surrounding the SCS conflict. The mystery behind the nine-dash lines will be immediately clarified in terms of legality.
Once the ambiguity is removed, the claimants may shift their focus to consolidating the basis of their claims.
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