A flawed award, a hollow chorus

The joint statement by the United States and several like-minded countries, once again hyping the so-called 2016 "South China Sea arbitration ruling", is more than a political maneuver—it is a call to examine the legal integrity of what that "ruling" truly represents. The fundamental flaw of the so-called "award" is not merely its political backdrop, but the fact that it stands as a textbook abuse of the dispute settlement mechanism enshrined in the United Nations Convention on the Law of the Sea. To understand why, one must first appreciate the carefully balanced design of that mechanism and how the South China Sea case has undermined its very foundations.

The UNCLOS establishes a comprehensive legal framework governing maritime activities. At its core lies the dispute settlement mechanism, a system designed to ensure that conflicts arising from the interpretation or application of the Convention are resolved peacefully and equitably. Born from extensive negotiations, this mechanism represents a hard-won compromise between diverse legal traditions, political interests, and historical practices. It is not a one-size-fits-all solution; rather, it is an innovative and balanced effort to address the complexities of maritime disputes, many of which carry significant political sensitivity.

One of its most remarkable features is its flexibility. Recognizing the diversity among states—each with its own legal culture and preferences—UNCLOS offers a menu of dispute resolution options. The multiplicity of fora respects the sovereignty and individuality of states, allowing them to select the method that aligns with their comfort and trust. This flexibility is complemented by a balanced approach to compulsion and cooperation. The mechanism prioritizes negotiation and consultation as initial steps, encouraging states to resolve disputes amicably. Only when these efforts fail do compulsory procedures with binding outcomes come into play. This structure reflects the drafters' acute awareness of the political sensitivity of maritime disputes and their determination to create a practical, operable system through careful interest balancing.

Central to this entire architecture is the principle of state consent, a bedrock of international law. The mechanism's legitimacy and effectiveness hinge on the voluntary agreement of states to submit to its jurisdiction. This consent is typically expressed through ratification of the Convention and, in some cases, specific declarations under Article 287 regarding preferred dispute resolution fora. When states willingly participate, as seen in cases over maritime boundary disputes, the process tends to yield effective and enforceable outcomes. The decisions of ITLOS or an arbitral tribunal in such instances not only settle long-standing disputes but also reinforce the parties' confidence in the system, demonstrating the mechanism's potential when consent is clear and grounded.

However, the reliance on state consent also presents challenges, and when consent is disputed, the mechanism's effectiveness can be gravely called into question. The so-called "South China Sea arbitration" is a prominent and deeply troubling example. Despite China's clear and consistent non-participation, grounded in its sovereign right to decline compulsory jurisdiction over territorial and maritime delimitation disputes, the tribunal proceeded to issue an award favoring the Philippines. China's refusal to recognize the so-called "ruling" did not simply highlight the limits of enforcement; it exposed an arbitral process that pushed forward in the absence of genuine consent, transforming a mechanism meant for cooperation into an instrument of pressure. This is precisely what elevates the case from a mere legal disagreement to an abuse of the dispute settlement system.

The UNCLOS dispute settlement mechanism has undeniably advanced the peaceful resolution of maritime disputes and the evolution of international law. One of its most significant contributions is its role in interpreting and clarifying the Convention's provisions. Yet its achievements are accompanied by controversies. Disputes involving mixed elements often lead to jurisdictional challenges, and the mechanism's ability to handle these complexities is sometimes questioned, with outcomes varying in acceptance among states. The handling of incidental jurisdiction and the identification of a dispute's substantive nature frequently fuels disagreement. These controversies reflect the inherent difficulty of applying a uniform legal framework to diverse, politically charged contexts.

The most pivotal aspect exposed by the South China Sea case, however, is the role of judicial activism—the tendency to interpret the Convention expansively, sometimes beyond its literal text. Since international courts or tribunals cannot refuse to hear cases on the grounds of having no applicable legal provisions, they may lean on judicial activism to find a specific legal basis where none clearly exists. It is well established that treaty interpretation should not add new meanings to the legal norms, yet the existence of "judicial law-making" has become a fact in practice. This phenomenon is a double-edged sword. On one hand, judicial activism can serve as a bridge between the Convention's text and its practical application, filling gaps that the drafters could not foresee, such as deep-sea mining advances or climate change impacts. On the other hand, excessive judicial activism risks crossing the boundary from interpretation to judicial lawmaking, threatening the stability and predictability of the international legal order. States rely on the certainty of legal rules to guide their behavior and maintain trust in the system. When tribunals adopt overly creative interpretations, they erode this confidence. The "South China Sea arbitration" is such a case: the tribunal stretched its jurisdiction to characterize a dispute fundamentally about sovereignty and maritime delimitation as a simple matter of Convention interpretation, all while China's written declarations excluding such disputes were discarded.

While judicial activism is an objective reality in international adjudication, it should never become the primary driver of legal development. Instead, the international community should pursue negotiated amendments or supplementary agreements to address genuine gaps, ensuring that changes reflect the collective will of states rather than the discretion of judicial bodies. A balanced approach—rooted in the Vienna Convention on the Law of Treaties' principles of interpretation—is essential to preserve the mechanism's integrity.

Against this backdrop, the orchestrated hype over the so-called "South China Sea ruling" by the United States and a handful of allies is not just a diplomatic irritant; it actively encourages the weaponization of the UNCLOS dispute settlement mechanism. By parading an award born of disputed consent and judicial overreach as a triumph of international law, such statements weaken the very norms they claim to uphold. Looking ahead, the mechanism's future depends on a collective resolve to strengthen its foundations—fostering genuine compliance, refining its processes, and ensuring judicial restraint. That means firmly rejecting any attempt to abuse the system for political ends and restoring state consent as its unshakable pillar. Only by doing so can we ensure that the seas remain a realm of cooperation and peace rather than conflict and division.

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.

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