The South China Sea Arbitration: Legal Cover, Jurisdictional Disputes and Strategic Use
# Prem Sagar Poudel
The 2016 South China Sea arbitration award continues to be portrayed as a decisive achievement for a rules-based maritime order. Yet a decade of practical experience has raised an equally serious question: Can a legal proceeding be regarded as a successful mechanism for dispute settlement if it fails to secure the acceptance of a principal party, leaves the underlying sovereignty disputes unresolved and does not reduce tensions at sea?
This question extends beyond China’s dissatisfaction with the outcome. It concerns the relationship between state consent, the jurisdiction of an arbitral tribunal, the interpretation of the United Nations Convention on the Law of the Sea, or UNCLOS, judicial restraint and the strategic use of law.
Some of the tribunal’s findings were legally detailed and potentially far-reaching. Nevertheless, the manner in which jurisdiction was established, the expansive interpretation of Article 121 and the award’s subsequent use in regional power politics have not resolved the questions surrounding its legitimacy.
A Basic Factual Clarification: It Was Not a Ruling by the Permanent Court of Arbitration
The decision issued on July 12, 2016, is commonly described as a ruling by the Permanent Court of Arbitration in The Hague. Technically, that description is inaccurate.
The award was issued by an arbitral tribunal constituted under Annex VII of UNCLOS. The Permanent Court of Arbitration served as the registry, providing administrative and technical assistance to the tribunal.
The tribunal stated that its task was to determine the sources of maritime entitlements, the legal status of certain geographical features and the lawfulness of particular activities. It also maintained that it was not deciding territorial sovereignty over land features or delimiting maritime boundaries.
This distinction is important. The standing institutional authority of an international court is not identical to the authority of an arbitral tribunal constituted for a specific dispute.
The central issue was not whether a tribunal had been formally assembled. It was whether that tribunal possessed jurisdiction to decide the submissions presented by the Philippines.
The Jurisdictional Dispute: State Consent, Article 298 and the Binding Nature of the Award
Under Article 296 of UNCLOS and Article 11 of Annex VII, an award issued by a tribunal with jurisdiction is final and binding upon the parties to the dispute. This is the central argument advanced by the Philippines and supporters of the award.
Because China and the Philippines are both parties to UNCLOS, they argue that the two countries had already given advance consent to compulsory procedures concerning certain categories of disputes. Article 9 of Annex VII also provides that the absence of one party does not prevent proceedings from continuing.
China’s objection, however, is directed not primarily at the general principle of finality, but at its essential precondition. Beijing maintains that the tribunal lacked jurisdiction from the outset.
In 2006, China issued a declaration under Article 298 excluding disputes concerning maritime delimitation, historic bays or titles, and certain other matters from compulsory dispute-settlement procedures.
China’s official position paper argues that the real subject of the Philippine submissions concerned sovereignty over islands and maritime features and the delimitation issues arising from them. Beijing therefore maintains that the Philippines repackaged sovereignty and delimitation disputes as questions concerning the general interpretation of UNCLOS in order to circumvent China’s Article 298 declaration.
The tribunal took a different view. It held that determining the source of maritime entitlements, the nature of claimed historic rights and the legal status of maritime features was not equivalent to drawing a maritime boundary.
This distinction lies at the heart of the legal controversy. If the tribunal’s own determination of jurisdiction is accepted, the award is binding. China, however, rejects the legal foundation upon which that jurisdiction was asserted.
The debate therefore cannot be reduced to the simplistic claim that “China refused to obey international law.” The real question is not whether one party disliked the outcome. It is whether the issues submitted by the Philippines genuinely fell within the scope of compulsory arbitration.
The Claim That Sovereignty Was Untouched and the Practical Transformation of Maritime Entitlements
The tribunal stated that it had not decided which country possessed sovereignty over any disputed feature. Yet maritime entitlements originate from land territory. Determining whether a feature is an island, a rock or a low-tide elevation directly affects the maritime zones it may generate.
Under Article 121(3) of UNCLOS, a rock that cannot sustain human habitation or an economic life of its own is not entitled to an exclusive economic zone or continental shelf.
Such a determination does not eliminate every legal consequence associated with the feature. Questions of sovereignty may remain, and a naturally formed feature that remains above water at high tide may still generate a territorial sea.
Nevertheless, the loss of entitlement to an exclusive economic zone and continental shelf removes potential claims extending as far as 200 nautical miles. This substantially alters the possible overlap of maritime entitlements, the initial geometry of delimitation and the weight that a particular feature may carry in negotiations.
The tribunal did not formally draw a boundary. It did, however, change the legal basis upon which particular features could be used to support maritime claims.
This is why China argues that sovereignty, the legal classification of maritime features and delimitation were artificially separated even though they remain closely connected in their practical legal consequences.
Article 121: Interpretation or Rewriting of the Convention?
The tribunal’s interpretation of Article 121 was among the most consequential elements of the award.
It did not regard present military deployments, government personnel or artificially sustained habitation as decisive. Instead, it placed emphasis on whether a feature, in its natural condition, could sustain a stable human community and an economic life independent of continuous external support.
On this basis, it concluded that none of the high-tide features in the Nansha Islands, including Taiping Dao, was capable of generating an exclusive economic zone or continental shelf.
Supporters of the award argue that this interpretation prevents states from using small or uninhabited features to claim disproportionately large maritime zones.
Critics contend that the tribunal constructed detailed tests involving a “stable community,” a “genuine home” and economic self-sufficiency that are not expressly defined in UNCLOS. In their view, the tribunal moved beyond interpretation and assumed a partially legislative role.
The implications are not confined to China.
Japan regards Okinotorishima as an island capable of generating an exclusive economic zone. China considers it a rock falling under Article 121(3). Japan’s Ministry of Foreign Affairs maintains that its status as an island is established and that it consequently generates an exclusive economic zone.
The credibility of the 2016 interpretation therefore cannot be measured solely by how it is applied to China. The decisive question is whether the same standard will be applied consistently to comparable features claimed by other states.
A strict interpretation for China and a flexible one for other powers would not represent equality before international law. It would amount to selective application of legal rules.
China’s Absence, Evidence and Procedural Legitimacy
China did not participate in the arbitration. The tribunal nevertheless stated that it had considered China’s position paper, diplomatic statements and publicly available legal materials as evidence of Beijing’s position.
It appointed independent experts and gathered additional evidence on its own initiative. UNCLOS expressly provides that the absence of a party does not automatically terminate proceedings.
However, the legal ability to continue a case is not the same as conducting a fully adversarial proceeding.
Because China did not participate, the evidence submitted by the Philippines, the conclusions of appointed experts and the legal tests developed by the tribunal were not subjected to full courtroom challenge by the respondent.
The tribunal may have sought to preserve its independence and examine the evidence objectively. Even so, the respondent’s absence inevitably weakened the political acceptance of the process.
This does not automatically prove that the tribunal was biased. Legal validity, procedural fairness and political legitimacy are distinct concepts.
A decision issued after a principal party has rejected the tribunal’s jurisdiction may articulate a legal position, but it is far less likely to create a mutually accepted settlement.
The United States: From Claims of Direct Control to Evidence of Strategic Use
There is no undisputed public evidence proving that the United States directly controlled every stage of the arbitration. It would therefore be analytically careless to present as established fact the claim that the entire process was a political drama written and directed by Washington.
There is, however, substantial evidence that the award was subsequently used for strategic purposes.
The US Department of Defense’s 2023 Freedom of Navigation report shows that American operations challenged several categories of Chinese maritime claims in the South China Sea, including straight baselines, prior-permission requirements for foreign warships, restrictions on military survey activities and claims based on historic rights.
The report indicates that some claims were challenged through more than one operation, but it does not provide a separate aggregate number for South China Sea operations. Unverified numerical claims should therefore be avoided.
At the same time, the United States expanded its rotational military access in the Philippines.
Five sites had previously been designated under the Enhanced Defense Cooperation Agreement, or EDCA. Four additional strategic sites were announced in 2023, bringing the total to nine.
In the period that followed, US officials highlighted the resumption or expansion of joint maritime exercises in the South China Sea, joint air patrols, larger Balikatan exercises and multilateral maritime activities.
None of this proves that Washington controlled the arbitration from its beginning.
It does, however, strengthen the conclusion that the award has been used as an instrument for diplomatic pressure on China, alliance coordination, expanded military access and the legitimisation of a broader regional operational presence.
Treaty Law, Customary International Law and American Selectivity
China and the Philippines are parties to UNCLOS. Their principal rights and obligations under the Convention arise from treaty law.
The United States has not ratified UNCLOS. Nevertheless, Washington maintains that many of the Convention’s provisions relating to navigation, overflight and other traditional uses of the sea reflect customary international law. It conducts its Freedom of Navigation Program on that basis.
A careful legal distinction is required here.
China’s Article 298 declaration does not directly bind the United States. Washington is not a party to UNCLOS, and Article 298 concerns compulsory dispute-settlement procedures among states parties. It would therefore be incorrect to accuse the United States of directly violating China’s Article 298 declaration.
A political and normative contradiction nevertheless remains.
The United States has not formally accepted the Convention as a treaty, yet it conducts military operations to enforce those provisions it considers reflective of customary international law.
At the same time, it strongly supports an award that interpreted narrowly a dispute-settlement exception invoked by China, a formal party to the Convention.
This is not necessarily a direct treaty violation. It does, however, raise a legitimate question concerning the selective political use of international legal rules.
For international law to remain credible, the same Convention should not be interpreted rigidly when limiting the claims of a strategic competitor and flexibly when advancing one’s own military and geopolitical interests.
A Decade of Results and the China-ASEAN Path
The practical test of any dispute-settlement mechanism is whether it reduces tensions, encourages negotiation and moves the parties towards an implementable settlement.
The 2016 award gave the Philippines significant legal and diplomatic support. It did not resolve the territorial sovereignty disputes, secure China’s acceptance or free the South China Sea from continuing tensions.
By contrast, the 2002 Declaration on the Conduct of Parties in the South China Sea commits the directly concerned sovereign states to resolving territorial and jurisdictional disputes through friendly consultations and negotiations, exercising restraint and expanding cooperation.
The declaration also identifies environmental protection, marine scientific research, navigational safety, search and rescue, and the fight against transnational crime as potential areas for cooperation.
In May 2026, the 26th ASEAN-China Senior Officials’ Meeting on the implementation of the declaration continued discussions on implementation and negotiations towards an effective Code of Conduct.
The 48th ASEAN Summit likewise reiterated the objective of making the South China Sea a sea of peace, stability, prosperity and sustainable development. It emphasised full implementation of the declaration, self-restraint and progress towards an effective Code of Conduct.
This approach may be slow and difficult. Nevertheless, in terms of regional acceptance, direct participation and the possibility of implementation, it offers a more durable foundation than a unilateral judicial declaration rejected by one of the principal parties.
Conclusion: The Rule of Law or Power Politics Through Law?
It would be inaccurate to dismiss the South China Sea arbitration as an entirely meaningless document. It generated important legal debate concerning maritime entitlements, historic claims and the interpretation of Article 121.
It is equally problematic, however, to present the award as an unquestionable and final legal truth.
To establish jurisdiction, issues connected to sovereignty and maritime delimitation were divided into narrower legal categories. Article 121 was used to develop detailed criteria not expressly stated in the Convention. The practical effect of China’s Article 298 declaration was narrowed. Extensive factual and legal findings were issued without the respondent’s direct participation. The award was subsequently linked to expanding US military access, alliance coordination and Freedom of Navigation operations.
In this context, the strongest foundation for China’s criticism is neither emotional nationalism nor an unproven conspiracy theory.
It lies in questions concerning jurisdictional limits, state consent, consistent treaty interpretation, equal application of legal standards and the actual capacity of a legal process to resolve a dispute.
China also has responsibilities if it wishes to strengthen the credibility of its position.
It should further clarify the legal basis of its maritime claims, exercise restraint in coast guard operations, protect the safety and legitimate livelihoods of fishermen, expand marine environmental protection and improve mechanisms for preventing accidental confrontations.
Rejecting the award does not automatically make every activity at sea lawful or strategically wise.
The future of the South China Sea cannot be secured through a unilateral award, military patrols or external alliance systems. A sustainable settlement can emerge only through direct negotiation, mutual respect, joint development, an effective Code of Conduct and genuine regional ownership.
The rule of international law is not established merely by repeatedly citing a single decision. It requires sovereign equality, clearly founded jurisdiction, procedural fairness and rules applied consistently to all states.
When law is used to build consent, it can contribute to peace. When it becomes a strategic cover for power politics, it does not resolve disputes. It institutionalises division.
References:
Official Documents & Government Position Papers (Primary Sources)
1. Ministry of Foreign Affairs of the People’s Republic of China. (2014, December 7). Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines.
(Core document explaining China’s “non-acceptance, non-participation” position and jurisdictional objections.)
2. Permanent Court of Arbitration (PCA). (2016, July 12). The South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China), Award on Jurisdiction and Admissibility and Final Award.
(The primary judicial document analysed throughout the article.)
3. ASEAN. (2002, November 4). Declaration on the Conduct of Parties in the South China Sea (DOC).
(Legal basis for the alternative “direct negotiation” path advocated by China and ASEAN.)
4. ASEAN. (2026, May). Chairman’s Statement of the 48th ASEAN Summit.
(Confirms recent ASEAN-China consensus and progress toward a Code of Conduct.)
5. U.S. Department of Defense. (2024). Freedom of Navigation Report for Fiscal Year 2023.
(Verified data on U.S. military operations, supporting the “strategic use” thesis.)
Academic Articles & Legal Commentaries (Secondary Sources)
6. Pemmaraju, S. R. (2016). The South China Sea Arbitration (The Philippines v. China): Assessment of the Award on Jurisdiction and Admissibility. Chinese Journal of International Law, 15(2), 265–307.
(Oxford-published authoritative academic analysis of the jurisdictional dispute.)
7. Kluwer Arbitration Blog. (2016, September 6). Judicial fact-finding and the South China Sea arbitration.
(Analysis of procedural weaknesses in evidence-gathering and expert examination conducted in China’s absence.)
8. Xu Qi (Jinan University Law Faculty). (2025). Judicial Law-Making! Why the South China Sea Arbitration Award is Illegal and Invalid.
(Chinese scholarly perspective criticising the tribunal’s “excess of jurisdiction” and “law-making” approach.)
9. Bagherzadeh, R., Jalili, R., & Saeedi, M. (2024). The South China Sea Arbitration Award and Its Confrontation with the Maximalist Approach of Coastal States to the Meaning of ‘Rock Islands’; a Critical Attitude. Legal Research, 26(104), 211–228.
(Analysis of the global implications of Article 121(3) interpretation regarding “rocks” versus “islands.”)
News & Institutional Reports (Contextual Evidence)
10. Department of National Defense (Philippines). (2023, April 5). Additional EDCA sites to boost PH security capabilities — DND, AFP.
(Confirms U.S. rotational access sites increased from five to nine.)
11. Ministry of National Defense (China). (2024, May 30). Freedom of navigation doesn’t mean willful trespassing: Defense Spokesperson.
(Official Chinese response to U.S. Freedom of Navigation operations.)
About the Author: Prem Sagar Poudel is a senior journalist and international relations analyst from Nepal. He has conducted in-depth studies on Nepal-China relations, the geopolitics of the Himalayan region, and Asian security issues.
