The China-Philippines South China Sea Dispute: A Selective Critique of the PCA Award

Abstract

This article is a critique of selected issues of the Award handed down by the Permanent Court of Arbitration, referred to as “PCA” or “the Tribunal”, in the 2016 Philippines-China Arbitration. It points out that the Award was entirely in favour of the Philippines which had unilaterally initiated the arbitration; no regard whatsoever was paid to the position of China as expressed in various official Government documents. China refused to participate in the arbitration proceedings on the grounds that by written declaration it had withdrawn from the compulsory procedures for dispute resolution set out in the United Nations Convention on the Law of the Sea, 1982 (UNCLOS). As such, China rejects the legal validity of the Award and has declared it to be unenforceable. In this article, the doctrinal research method is employed to carry out a comparative analysis of the opinion expressed by the Tribunal and the position adopted by China in terms of the interpretation and application of Article 298(1), in relation to China’s withdrawal from the procedures provided in Section 2 of Part XV. Since the publication of the Award, a significant amount of legal literature has been produced, much of which is supportive of the Award. This article presents an alternative viewpoint from a Chinese perspective. It is submitted in unison with the Chinese position that the Tribunal lacked jurisdiction to undertake the arbitration. The article selectively discusses the Chinese position based on China’s perception of historical title over the maritime features in the South China Sea and its view that the dispute concerns sovereignty over those maritime features which is outside the scope of UNCLOS. The article concludes that its aim is to underscore the need for an objective and unbiased approach to dispute resolution by tribunals in the field of international sea law and that the better way forward for both states is to continue negotiations.