Invalid 'arbitral award' muddied South China Sea

It's been 10 years since the arbitral tribunal constituted under the United Nations Convention on the Law of the Sea (UNCLOS) issued the so-called South China Sea "arbitral award" on July 12, 2016, but some scholars — particularly those from claimant states — continue to celebrate it as a decisive clarification that reshaped the maritime claims and long-standing disputes in the region.

Recent commentary by some regional scholars reflects this narrative. They assert that the award forced adjustments in claims, marginalized China's "nine-dash line", and emerged as an influential legal framework that smaller states are codifying into domestic law.

These portrayals not only overstate the award's legal weight but fundamentally misrepresent the very nature of the South China Sea disputes.

The South China Sea disputes essentially relate to territorial sovereignty over islands, reefs and other features.

Although UNCLOS was not designed to adjudicate such disputes, the tribunal acted ultra vires by attempting to address these issues indirectly through the back door of maritime entitlements.

The 2016 "award" did not clarify UNCLOS, but distorted it. More importantly, by pretending to deal solely with maritime questions while quietly undermining the territorial foundations of China's claims, the tribunal evaded — and in effect prejudged — the central issue of sovereignty. This evasion is the main reason why the "award" is illegitimate, non-binding on China and ultimately harms regional peace and stability.

As its name suggests, UNCLOS governs maritime zones, navigation, resource exploitation and environmental protection. It does not confer or determine title to land territory. Article 298 explicitly allows states to exclude disputes relating to "historical title" and maritime delimitation from compulsory dispute settlement procedures.

China exercised this right. The 2002 Declaration on the Conduct of Parties between China and ASEAN members further commits all parties to resolve disputes through negotiation and consultation, not unilateral arbitration.

The Philippines' submissions to the tribunal were framed as questions about the status of features and the legality of certain activities. But in reality, they clearly aimed to challenge China's sovereignty over specific islands and reefs, particularly in the Nansha Qundao and Huangyan Dao.

Despite China's explicit objections and the fact that there were sovereignty disputes involved, the tribunal decided to proceed on the matter.

This was a brazen violation of the principle of state consent, which is the cornerstone of international adjudication.

As detailed in the Chinese Society of International Law's comprehensive 2018 Critical Study, the tribunal manifestly lacked jurisdiction over the Philippines' claims because they concerned territorial sovereignty, a matter outside the scope of UNCLOS.

By extending jurisdiction on this matter, the tribunal crossed a red line. It effectively treated the sovereignty of land features as irrelevant, while issuing rulings on maritime entitlements that could only make sense if sovereignty had already been assumed or denied. This was not neutral interpretation; it was an overreach that politicized the dispute settlement mechanism and set a dangerous precedent for other regions.

Any serious analysis of the South China Sea disputes must begin with the question of territorial sovereignty. China's claims over the islands are rooted in centuries of discovery, naming, administration and effective control. Historical records from the Han Dynasty (206 BC-AD 220) onward document Chinese knowledge and use of these islands. Successive Chinese governments exercised jurisdiction through patrols, fishing regulation, and mapping.

After World War II ended, China recovered the islands from Japanese occupation in accordance with the Cairo Declaration and Potsdam Proclamation. The nine-dash line, first published in 1947-48, reflected this historical title and the geographic extent of China's sovereign rights and jurisdiction.

The disputes largely emerged after the 1960s and 1970s, when certain countries began occupying features in the Nansha Qundao that had long been under Chinese jurisdiction or were unoccupied.

Vietnam expanded its presence on features in the 1970s and 1980s, while the Philippines occupied several features in the 1970s. These developments occurred against the backdrop of China's consistent assertion of sovereignty. The core disagreement remains unchanged: who owns the islands and reefs themselves?

But the 2016 tribunal attempted to sidestep this critical issue by focusing instead on "maritime entitlements" resulting from the features. Maritime entitlements flow from sovereignty over land territory under the principle of la terre domine la mer, which means that land dominates sea.

Without resolving the sovereignty question, any ruling on whether a feature generates an exclusive economic zone or continental shelf is inherently flawed and potentially prejudicial.

The tribunal's classification of most Nansha features as "rocks" under Article 121(3), entitled only to a 12-nautical-mile territorial sea, effectively reduced the maritime entitlements of China's territory without ever adjudicating the underlying title.

This was a classic case of deciding the consequences while evading the cause.

China's position is clear that it has consistent sovereignty over the islands and reefs of the four island groups (Nansha Qundao, Xisha Qundao, Zhongsha Qundao and Dongsha Qundao) within the ninedash line, the maritime zones generated by those features under UNCLOS, and the historical rights in the surrounding waters.

The emphasis on Nansha Qundao as an integrated archipelago is not a post-2016 adjustment but a consistent legal and geographic position.

Some regional scholars' claims that China was "forced" to abandon the nine-dash line misread both history and official positions. The nine-dash line remains a valid expression of historical rights, while the articulation of island-group claims simply reflects the need to clarify entitlements in accordance with modern legal categories while preserving the foundation of sovereignty.

The tribunal's treatment of historical rights was particularly egregious. It ruled that historical rights incompatible with UNCLOS would be superseded. This interpretation ignored the fact that historical rights in the law of the sea predate and exist alongside UNCLOS as part of general international law and are preserved unless they directly conflict with the Convention's specific regimes.

China's historical rights in the South China Sea — traditional fishing grounds, seasonal resource use, and navigational practices — fall squarely within this legal tradition. By denying them outright, the tribunal not only erred legally but also disregarded the historical reality that many coastal states, including those now criticizing China, have long invoked similar historical rights in other regions.

On Article 121(3), the tribunal introduced novel and overly restrictive criteria that departed from State practice. It discounted the capacity of features when considered as part of an archipelago and ignored evidence of historical human habitation and economic life.

The ruling effectively stripped most Nansha features of significant maritime entitlements, thereby prejudicing the very sovereignty claims that depend on those entitlements.

This approach was inconsistent with how other states treat similar features and ignored the principle that maritime delimitation must take into account all relevant circumstances, including historical title and the configuration of coasts and islands.

These were not minor technical errors, but structural mistakes. By refusing to confront the territorial sovereignty dimension head-on, the maritime "rulings" of the tribunal became detached from the geographic and historical reality on the ground.

Those biased scholars highlight domestic legislation in the Philippines and submissions by Malaysia and others as evidence that the "award" is "not a dead letter". But these moves are selective and unilateral legal interpretations that sidestep the sovereignty issues at the core of the dispute.

The Philippines' 2024 Maritime Zones Act, for instance, attempts to legislate maritime entitlements around features whose sovereignty remains contested. Such actions by no means validate the "award"; they only illustrate how certain parties have tried to use the ruling to advance maximalist claims and complicate negotiations.

China's position of non-acceptance, non-participation, non-recognition, and non-implementation of the "award" is not a breach of international law. It is the legitimate exercise of a sovereign state's right when compulsory procedures are invoked in violation of agreed mechanisms and in matters relating to territorial sovereignty. Noncompliance with an illegitimate ruling does not undermine the rule of law, whereas enforcing such a "ruling" against a non-consenting party does.

Far from bringing clarity or promoting restraint, the 2016"award" has provided external powers a convenient pretext to intervene, nudged certain claimants to pursue unilateral actions, and encouraged the framing of disputes in zero-sum legal terms rather than through pragmatic diplomacy. The viable path forward lies in addressing the territorial sovereignty issues directly through bilateral negotiations between the states directly concerned, while advancing practical cooperation on maritime issues via the Code of Conduct process under the DOC framework.

China has consistently advocated this dual-track approach: settle sovereignty and delimitation disputes through peaceful negotiation, and manage daily differences through rules and mechanisms. This respects the historical and legal reality that territorial title cannot be created or extinguished by arbitral fiat, especially one lacking jurisdiction.

Ten years on, the 2016 "arbitral award" stands not as a clarifying milestone but as a politically motivated document that evaded the essential question of territorial sovereignty while issuing sweeping and erroneous conclusions on maritime entitlements.

It has neither clarified UNCLOS nor contributed to lasting stability. Instead, it has highlighted the dangers of bypassing state consent and historical title in complex, sovereignty-laden disputes.

The South China Sea will remain peaceful and stable not because of the flawed so-called "arbitral rulings", but because the countries concerned continue to engage in dialogue, exercise restraint, and seek mutually acceptable arrangements that respect each other's legitimate rights and interests.

China remains committed to this course while firmly defending its territorial sovereignty and maritime rights in the South China Sea — rights that predate and will outlast any single, contested legal proceeding.

The author is the director of the Center for International and Regional Studies, National Institute for South China Sea Studies.

The views don't necessarily reflect those of China Daily.

If you have a specific expertise, or would like to share your thought about our stories, then send us your writings at opinion@chinadaily.com.cn, and comment@chinadaily.com.cn.