The dispute settlement of the South China Sea: the legal interpretation and political significance of the South China Sea Arbitration

HONG Nong1,2

(1.The Sino-US Research Center)
(2.The Research Center for Oceans Law and Policy, National Institute of South China Sea Studies)

【Abstract】The territorial sovereignty and maritime jurisdiction disputes over the South China Sea have not been settled. Finding the best path to a peaceful solution has always been the focus of attention of academia, and the existing ideas include diplomatic negotiations, common development, and trust building measures. In 2013, the Philippines unilaterally initiated an arbitration proceeding, which set off an upsurge of debates in the international community on the applicability of the compulsory dispute settlement mechanism of the United Nations Convention on the Law of the Sea (UNCLOS) in the South China Sea. The procedural and substantive issues, legal connotation, and political significance of the South China Sea arbitration case, and the development trend of the South China Sea issue and its impact on regional security situation in the post arbitration era, are all worthy of further studies. This paper interprets the UNCLOS’ connotation and characteristics of its dispute settlement mechanism, and analyzes different attitudes of the parties in the South China Sea dispute towards the third-party compulsory settlement mechanism and the country practice in the field of maritime dispute resolution. It also compares the Philippines’ and China's political positions and legal perspectives on the dispute settlement, as well as the strategic and policy considerations on the South China Sea issue of China and the US, and from the legal and political perspectives, it evaluates the validity and influence of the arbitration case of the South China Sea dispute settlement. The compulsory settlement mechanism of the UNCLOS has certain values in the international law and dispute settlement, but for the South China Sea dispute, the complicated political background and the difficulty of the multi-level legal problems are intertwined, so the Philippines's unilaterally instituted compulsory arbitration procedure cannot contribute to the settlement of disputes between the two countries. On the contrary, there have been a growing number of and more serious uncertainties in the South China Sea situation since the beginning of the arbitration. How to choose a dispute management or settlement mechanism which can not only conform to the interests of the countries in disputes over the South China Sea and their legal culture, but also meet the legitimate concerns of the stakeholders, is the topic should return to the priorities of the policy makers of the involved countries.

【Keywords】 the South China Sea Dispute; the South China Sea Arbitration; the United Nations Convention on the Law of the Sea (UNCLOS); the dispute settlement mechanism; Sino-US Relation;

【DOI】

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(Translated by ZUO Weidong)

    Footnote

    [1]. Republic Act No. 9522 (the Philippines), March 10, 2009, An Act to Amend Certain Provisions of Republic Act No. 3046, as Amended by Republic Act No. 5446, to Define the Archipelagic Baseline of the Philippines and for other Purposes. http://www.lawphil.net/statutes/repacts/ra2009/ra_9522_2009.html [^Back]

    [2]. ② “Statement of the Spokesman of the Ministry of Foreign Affairs of Vietnam,” June 21, 2012. http://www.mofa.gov.vn/en/tt_baochi/pbnfn/ns120622034115/view [^Back]

    [3]. ③ The purpose of the Commission on the Limits of the Continental Shelf is to review the data and other material submitted by coastal States concerning the outer limits of the continental shelf in areas where those limits extend beyond 200 nautical miles, and to make recommendations in accordance with Article 76 and the Statement of Understanding adopted on 29 August 1980 by the Third United Nations Conference on the Law of the Sea. [^Back]

    [4]. ④ The nine-dash line are the dashed lines consisting of broken lines existed for the South and East China Sea regions in the map of China. The earliest appearance of these lines were in the Atlas complied by the Chinese cartographer Hu Jin in 1914. In 1947, the Interior Department of the Ministry of the Chinese government at that time plotted a 11-intermittent line along the uncertain national boundaries in its published the South China Sea Islands Map. After the establishment of the central people's government of the People's Republic of China, China inherited this drawing, and changed the 11 dash-lines into 9 dash-lines, referred as the “nine-dash line,” and continuously retains the 1-line segment near China's Taiwan in the East China Sea area. [^Back]

    [5]. ⑤ On July 23, 2010, in the meeting of the ASEAN Regional Forum Foreign Ministers held in Vietnam, Hillary Clinton, the US Secretary of State at that time raised the question of so called “freedom and safety of navigation” for the first time, and claimed that the territorial dispute over the South China Sea Islands was a concern of the national interest for the US. [^Back]

    [6]. ① The serial number of note and notification of the Ministry of Foreign Affairs of Philippines sent to Chinese Embassy is 13–0211. See: http://www.dfa.gov.ph/index.php/downloads/doc_download/523-notification-and-statement-of-claim-on-west-philippine-sea [^Back]

    [7]. ② See the United Nations Convention on the Law of the Sea (UNCLOS), Articles 279, 280, and 281. [^Back]

    [8]. ① The International Court of justice, the International Tribunal, the arbitration tribunal, the special arbitration tribunal specified by Article 287 of the UNCLOS. [^Back]

    [9]. ② See the UNCLOS, Articles 286, 297, and 298. [^Back]

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    [13]. ⑥ See the UNCLOS, Article 298. [^Back]

    [14]. According to the relevant provisions of Article 298 of the UNCLOS, China made an exclusion announcement. http://www.fmprc.gov.cn/chn//gxh/zlb/tyfg/t270754.htm [^Back]

    [15]. ① Article 287 of the UNCLOS provides: when a country signs, ratifies, or accesses to the UNCLOS, or any time afterwards, this country shall have freedom to use written statement to choose or more of the following methods, to resolve disputes relating to the interpretation or application of the UNCLOS: (a) establishment of the International Tribunal for the law of the sea in accordance with appendix six; (b) the International Court of justice; (c) an arbitral tribunal in accordance with appendix seven (d) the special arbitral tribunal of class one or above disputes in accordance with appendix eight. [^Back]

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This Article

ISSN:1003-3386

CN: 11-5370/D

Vol 33, No. 03, Pages 25-44

May 2016

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Article Outline

Abstract

  • 1 Background of the South China Sea dispute
  • 2 The dispute settlement mechanism of the UNCLOS
  • 3 State practice of the compulsory dispute settlement mechanism in the South China Sea
  • 4 The legal interpretation of the arbitration case of the South China Sea
  • 5 The development of post arbitration era
  • 6 Conclusions
  • Footnote