Award riddled with legal defects and biased proceedings

A recent joint statement by 14 countries, including the United States, Japan and the Philippines, has once again put the spotlight on the 2016 South China Sea Arbitral Award. The statement asserts that China's maritime claims lack a "legal basis" and reiterates that the decade-old ruling remains final and binding. While such declarations are framed as a defense of the rules-based international order, a closer examination of the 2016 award reveals foundational cracks that cannot be overlooked by repeating that narrative.

Ten years have passed since the Permanent Court of Arbitration (PCA)-administered tribunal issued its ruling, but the dominant Western discourse continues to ignore the legal flaws that marred the arbitration from the outset. International law is not a tool for geopolitical convenience.

It relies on strict adherence to principles such as state consent, jurisdictional limits, and treaty design. Ignoring these principles undermines the credibility of the entire international legal framework.

The most glaring defect of the 2016 arbitration was its brazen disregard of the principle of state consent. Unlike domestic legal systems, where individuals are automatically subject to the jurisdiction of courts, international adjudication requires sovereign states to explicitly agree to submit their disputes to a tribunal.

From the day the Philippines unilaterally initiated the arbitration in 2013, China consistently maintained a policy of non-participation and non-acceptance.

It was not merely a political boycott but a defense of sovereign rights. Under international law, a state cannot be forced into compulsory arbitration over matters it has explicitly refused to arbitrate. By proceeding without China's consent, the tribunal moved into legally uncharted territory, setting a problematic precedent where international bodies might override the explicit objections of a sovereign state.

Critics often argue that by ratifying the United Nations Convention on the Law of the Sea, Beijing automatically consented to its compulsory dispute-settlement mechanisms.

But this argument overlooks the safeguards built into the treaty. Under Article 298 of UNCLOS, member states have the explicit right to exclude specific categories of disputes from compulsory arbitration, including disputes relating to maritime boundary delimitation, historic bays or titles and military activities.

China formally invoked this article in 2006, filing a declaration that excluded all such disputes from third-party adjudication. It was not an evasion of international law, but the exercise of a right expressly permitted by UNCLOS to protect vital national security and sovereign interests.

But the tribunal in The Hague bypassed this valid reservation and accepted Manila's reframing of the dispute as an interpretation of maritime features rather than a boundary delimitation. By overriding a state's lawful Article 298 declaration, the tribunal altered the terms under which states originally agreed to sign UNCLOS, signaling to the global community that treaty-based reservations could be bypassed through creative legal drafting.

A fundamental limitation of UNCLOS is that it governs maritime rights, such as exclusive economic zones, continental shelves and territorial seas, but not sovereignty over land territory. Questions of territorial ownership fall under customary international law, not UNCLOS.

The dispute between China and the Philippines in the South China Sea is fundamentally about territorial sovereignty over the Nansha Qundao and Huangyan Dao. Since UNCLOS could not rule on territorial ownership, the legal submissions of the Philippines focused strictly on the status of the maritime features themselves.

By accepting this framing, the tribunal crossed a legal boundary. It is not possible to determine the maritime entitlements of a feature without first establishing which country holds sovereignty over it.

By ruling on the nature and rights of features occupied or claimed by China, the tribunal effectively adjudicated a sovereignty and boundary dispute. This amounts to judicial overreach, expanding the tribunal's mandate far beyond what UNCLOS intended.

Another major flaw in the 2016 award was its dismissal of China's historical rights. China's involvement in the South China Sea spans centuries of state practice, navigation, and economic activity, which formed the basis of its historical claims. The tribunal ruled that any historical rights were extinguished when China ratified UNCLOS, treating the treaty as the sole source of maritime entitlements. This interpretation caused significant concern among international legal scholars.

International law does not exist in a vacuum, nor does a single treaty erase centuries of established practice. Customary international law and treaty law generally co-exist and complement each other.

By deciding that a modern treaty completely invalidates pre-existing historical rights built through long-standing state practice, the tribunal adopted a rigid, highly contested interpretation of international law that sidelined the historical context of the region.

The legitimacy of any judicial body hinges on its perceived neutrality. Throughout the 2016 proceedings, questions regarding the tribunal's impartiality have persisted. Critics often point to the composition of the arbitral panel.

After China refused to participate, four of the five arbitrators were appointed by the then-president of the International Tribunal for the Law of the Sea, Japanese diplomat Shunji Yanai. Given the parallel maritime and territorial disputes between Japan and China in the East China Sea, the appointments raised concerns about institutional bias.

Furthermore, the tribunal's legal reasoning closely mirrored the long-standing geopolitical and maritime policy positions of the US, a nation that has refused to ratify UNCLOS itself. The alignment between the tribunal's radical legal interpretations and the strategic interests of non-party Western nations gave the impression that the proceedings were influenced by geopolitical objectives.

The controversy surrounding the 2016 award extends beyond the geopolitical rivalry between Beijing and Manila.

Over the past 10 years, an increasing number of international legal experts, academics, and diplomats have voiced concerns about the long-term implications of the ruling.

By engaging in judicial overreach, ignoring lawful treaty reservations, and proceeding without state consent, the tribunal did not resolve the South China Sea dispute, but complicated it further. It set a problematic precedent that undermines the predictability and stability of the UNCLOS dispute-settlement system.

If formal declarations under Article 298 can be ignored or bilateral territorial disputes can be unilaterally forced into international courts through clever reframing, states may be hesitant to participate in multilateral treaties or utilize international legal bodies in the future.

No amount of coordinated joint statements or diplomatic pressure can transform a legally flawed and controversial ruling into an unquestionable dictate. True respect for the international legal order requires that rules be applied consistently and fairly, not selectively to advance geopolitical agendas.

Resolving the complex disputes of the South China Sea will not be achieved through flawed legal declarations, but through direct, bilateral negotiations grounded in mutual respect and historical reality.

The author is a Sri Lankan researcher and policy analyst, founder of the Belt &Road Initiative Sri Lanka and a PhD candidate in international law at the China University of Political Science and Law.

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.