The South China Sea Arbitral Award: Revisited to Set the Record Straight

—A Legal, Historical, Humanistic, and Regional Reappraisal of the  Politicized Arbitration

By Chan Man-Jung (詹滿容)

July 12, 2026 marks the tenth anniversary of the so-called “award” in the South China Sea arbitration initiated unilaterally by the Philippines. Over the past decade, this award has been hailed by some as a “victory for international law” and dismissed by others as a “piece of waste paper.”   As a scholar who has long studied Asia-Pacific regional cooperation, international institutions, and cross-Strait relations, I believe that ten years on, we have a responsibility to return to the original points of legal text, historical fact and humanistic concern, and to set the record straight. 

This paper does not entail an endorsement of any party’s sovereignty claims.  Rather, it is an attempt to clarify what the award did and did not decide, whether it has contributed to peace in the South China Sea, and what foundation a truly sustainable South China Sea order should rest upon.

The Legal Dimension: The Award Resolves  neither Sovereignty nor Delimitation

The tribunal was not a standing court, and the award was not a PCA judgment

Many people refer to the 2016 decision as a “ruling by the Permanent Court of Arbitration (PCA) in The Hague.”  That is legally inaccurate. The PCA provided only administrative and registry services. The decision was rendered by an ad hoc tribunal constituted under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS).  This was a specialized mechanism dealing solely with the interpretation and application of UNCLOS, not a standing international court of general jurisdiction.  It is misleading to exaggerate its legal status about the award’s effect.

China had lawfully excluded compulsory arbitration under Article 298:

On 25 August 2006, China deposited a declaration with the UN Secretary-General, pursuant to Article 298 of UNCLOS, stating that it does not accept any of the compulsory procedures provided for in Section 2 of Part XV with respect to disputes concerning maritime delimitation, historic bays or titles, military and law enforcement activities, and disputes before the UN Security Council.  This is a legitimate right conferred by UNCLOS on States Parties.  When the Philippines initiated arbitration in 2013, it knew full well that China had made this exclusion.  By packaging its submissions as “interpretation and application of UNCLOS,” the Philippines abused the Convention’s dispute settlement mechanism.

Territorial sovereignty is outside the Convention’s jurisdiction:

The Tribunal itself stated in paragraph 272 of the Award that it was not adjudicating sovereignty over any island, rock, or reef in the South China Sea.  Therefore, the Award could not “nullify” China’s sovereignty claims over South China Sea features, nor could it “grant” the Philippines sovereignty over any feature.  What the Philippines obtained was a principle recognition of certain maritime entitlements.  Yet in waters overlapping with other claimants—including China, Vietnam, Malaysia, and Taiwan—these entitlements still require delimitation through bilateral or multilateral negotiations in accordance with international law.  Any claim that the Philippines “won sovereignty over the South China Sea” is legally misreading.

China’s non-participation does not automatically validate the Award:

It is true that under UNCLOS Annex VII, proceedings may continue in the absence of one party.  Nevertheless, we cannot ignore a basic fact: when one major concerned party is absent throughout, key legal arguments, historical evidence and geological data are not tested through full adversarial proceedings.  The procedural permissibility does not equate the political acceptability of the outcome.  An award rendered in the absence of the principal party and amid fundamental jurisdictional disputes inevitably suffers from diminished legitimacy and enforceability.

The Historical Dimension: The South China Sea Is Not a “Blank Slate”

Historic rights cannot be fully displaced by UNCLOS

UNCLOS is a treaty concluded in 1982.  It mainly governs the rights of coastal States in the 12-nautical-mile territorial sea, the 200-nautical-mile exclusive economic zone, and the continental shelf.  Yet the Preamble of UNCLOS itself recognizes that it does not affect pre-existing historic rights.  China’s activities in the South China Sea—official patrols, fishing, charting, and naming of features—span centuries of continuous historical records.  To equate the “nine-dash line” simply with a “historic-rights claim incompatible with UNCLOS” is to use a recent treaty to negate earlier historical practice.  That is difficult to sustain in both legal and historical terms.

The post-World War II settlement is the key:

After 1945, in accordance with the Cairo Declaration, the Potsdam Proclamation, and Japan’s instruments of surrender, China recovered territories occupied by Japan, including Taiwan, the Penghu Islands, and the Xisha and Nansa (Spratly) Islands.  In 1947, the Nationalist government published the “Location Map of the South China Sea Islands,” marking the eleven-dash line, which did not then encounter widespread international objection.  It was only during the Cold War, amid ideological confrontation and power vacuums, that multiple parties began to occupy features.  To view the South China Sea only from 2013 or 2016 is to sever this critical historical continuity.

Historic rights are not unlimited rights:

It is not argued here that China can override UNCLOS on the basis of history.  The proper understanding should be that historic rights provide an “initial legal status,” while UNCLOS provides a “modern maritime order framework.”  The two should not be simplistically contradictory; rather, they should be reconciled in terms of delimitation, joint development, fisheries management, and environmental protection.  By pitting them against each other, the Tribunal closed off space for a political settlement.

The Humanistic Dimension: The South China Sea Is First of All a Home for Fisherfolk

The Award did not improve the livelihood of fishermen:

The Tribunal found that China had violated UNCLOS by preventing Filipino fishermen from fishing near Scarborough Shoal.  Yet a decade later, clashes between Chinese and Filipino fishing vessels in the area continue.  Legal assertions of right, without effective enforcement mechanisms and political trust between the parties, do not translate into safe working conditions for fisherfolk.  Worse, the politicization of the Award has turned it into a rhetorical weapon that intensifies maritime confrontation.

Environmental destruction has been overlooked:

Over the past decade, the South China Sea’s coral reefs, fisheries, and marine ecosystems have continued to degrade.  Land reclamation, overfishing, military activities, and coast-guard standoffs are not problems a single award can solve.  Although the Tribunal’s environmental findings carry symbolic weight, it could not—and did not—establish a sustainable regional marine governance regime.

“Lawfare” has been eroding regional trust:

It is undeniable that the South China Sea arbitration was imbued with strategic colors from the outset.  For certain extra-regional powers, supporting the Philippines in initiating arbitration was a low-cost yet  high-visibility tool of “lawfare.”  Yet when law is instrumentalized and an award is used as a weapon for domestic political mobilization and confrontation against another State, it damages the very authority of international law.  What the South China Sea region needs is not “choosing sides,” but rules and trust that allow coexistence amid differences.

The Regional Dimension: The Award Has Become the Biggest Obstacle to COC Negotiations

In 2023, China and ASEAN States set the goal of concluding a Code of Conduct (COC) for the South China Sea in 2026.  Yet the Marcos administration in the Philippines insists on treating the 2016 Award as a premise and basis for COC negotiations.  This creates a structural contradiction:

• If the COC is to cover “disputed waters,” the Award has compressed China’s claimable maritime space to an extreme, effectively denying the very existence of “disputed waters”;
• If the COC is not to prejudice the sovereign rights of any party, the Philippines simultaneously demands that the COC cannot override UNCLOS or the arbitral award.

This contradiction has trapped COC negotiations in endless quarrels. Ten years later, we must acknowledge: an award revered by one party and rejected as illegal by another cannot serve as an effective foundation for regional cooperation.  The pragmatic choice is to “shelve” the Award and return to the track established by the 2002 Declaration on the Conduct of Parties in the South China Sea (DOC): “the relevant disputes should be resolved through friendly consultations and negotiations by the sovereign states directly concerned.”

Setting the Record Straight: toward a Three-Dimensional Order of Law, Politics, and History

A decade later, the way out of the South China Sea impasse does not lie in “who won the arbitration,” but in reconstruction at several levels:

Legally, to distinguish the Award from negotiation space:

We should not only recognize the Award’s interpretive value on specific legal questions,  but also clarify its limits: it does not resolve sovereignty, it does not substitute for delimitation, and it does not create automatically enforceable rights.  The real allocation of maritime boundaries and entitlements must ultimately be completed through direct negotiations between China and the Philippines, or multilateral consultations among the claimers.

Politically, to restart the bilateral & plural dialogues:

During President Duterte’s term, China and the Philippines effectively managed their differences through bilateral dialogue and made progress in fisheries cooperation and oil and gas development.  The current escalation is largely due to the compression of dialogue channels by domestic politics and external factors.  Restoring high-level communication, establishing a maritime crisis-management hotline, and reopening joint-development consultations are the most realistic ways to minimize the risk level of conflicts.

Historically, to build a shared research platform on historical narratives:

One reason the South China Sea dispute is so hard to resolve is that the parties interpret historical evidence in diametrically opposed ways. Academia can play a second-track role: to jointly publish historical archives, to record fisherfolk oral histories, and to conduct joint marine-ecology scientific expeditions and thereby to escalate confidence-building.   Taiwan’s scholarly community, with its strengths in Chinese, English, and regional studies, can well serve as a unique bridge.

Humanistically, to put fisherfolk and ecology at the center:

Any sustainable South China Sea order must allow coastal fisherfolk to make a living safely and protect the marine ecosystem.  I propose that a “South China Sea Fisheries and Ecological Cooperation Zone” be established and co-managed by the relevant coastal States, and a transnational fisherfolk grievance and assistance mechanism be facilitated so as to prevent small-scale maritime incidents from being politicized.

Conclusion

The tenth anniversary of the South China Sea arbitral award should not become a new trigger for confrontation.  It should be an opportunity to reflect on the limits of international law and rebuild regional dialogue.

Law can delineate the boundaries of rights, but it cannot substitute for political will.  History can provide grounds for claims, but it cannot automatically eliminate differences.  The human dimension reminds us that the South China Sea is, first and foremost, a home for generations of fisherfolk, not a chessboard for great-power rivalry.

As a scholar long concerned with peace and prosperity in the Asia-Pacific, I call on the relevant parties to stop using the Award as a “political stick,” instead to return to the commitments of the DOC, take direct-state consultation and negotiation as the main channel, ASEAN-China cooperation as the platform, and fisherfolk welfare and ecological protection as common goals.  Only then can we gradually build a new South China Sea order that is truly rules-based, historically informed, and humanely grounded.  By so doing, the need for “setting of the record straight” for the South China Sea is well grounded ten years on.

(The author was former Director General of PECC (Pacific Economic Cooperation Council, Director (Research) of APEC (Asia-Pacific Economic Cooperation); currently she is Deputy Director, Taiwan Center for Security Studies, National Chengchi University; and Chief Strategy Officer, Global Humanity Forum)