The Arbitration between the People’s Republic of China and the Philippines Over the Dispute in the South China Sea

Abstract

International law has a significant role to play in the multiple disputes that exist throughout the South China Sea. The first relevant area of international law is that dealing with territoriality and the basis under international law that States are able to assert, and have recognised, territorial claims. The second body of international law of relevance is that associated with the law of the sea. The law of the sea has steadily developed over 400 years, first through customary international law based upon the practice of states and then post World War II increasingly through the development of new treaties. The 1982 United Nations Convention on the Law of the Sea (LOSC), which entered into force in 1994, is the dominant international law of the sea instrument that identifies the scope and extent of various maritime zones, provides mechanisms for the delimitation of maritime boundaries, and also for the resolution of international disputes as they relate to the law of the sea. This paper reviews these issues as they particularly apply with respect to the mechanisms that are available to states under Part XV of the LOSC to resolve their disputes, in the context of the Philippines application commenced against China in January 2013. Particular attention is given to Article 298 of the LOSC and to the default mechanism of conciliation as a means of dispute resolution. It does so in the context of China’s Article 298 declaration and the implications that may have for the outcome of Annex VII Arbitration proceedings. This paper commences with a review of those proceedings, before turning to consider mechanisms generally under Part XV of the LOSC, Article 298 declarations, and Annex V Conciliation. In conclusion some consideration will be given to the implications of these mechanisms for the Philippines/China South China Sea dispute.

Keywords: International Law, Law of the Sea, South China Sea, Arbitration, Conciliation, Philippines, China