Abstract

The Award in the Matter of the South China Sea issued by an arbitral tribunal in July 2016 is a major
contribution to the jurisprudence on the law of the sea, the rules of marine environmental protection and
various other aspects of general international law and dispute settlement. It is, of course, beyond this case
note to answer whether the Award will ultimately contribute to the peaceful resolution of one of the most
intractable and contentious international situations. Nevertheless, as an Award given under a treaty – the
1982 United Nations Convention on the Law of the Sea (UNCLOS) – that is binding on both States as
parties thereto, ‘[i]t goes without saying that both Parties are obliged to resolve their dispute peacefully and
to comply with the Convention and this Award in good faith’.1
Within the scope of a case note it is not possible to detail the geo-politics of the dispute or to reflect on its
future significance. In fact, as it runs to over 475 pages, it is difficult to do little more than outline some of
the legal issues arising from the Award. Nevertheless, despite its length and complexity, the Award
represents at its heart a classical reassertion of the necessary balancing of rights and obligations that
UNCLOS has always sought to achieve. As the preamble to the Convention very famously had cause to
note: ‘the desirability of establishing through this Convention, with due regard for the sovereignty of all
States, a legal order for the seas’.
The case note is divided into three parts; Part 1 will provide an overview of the dispute and a history of
the proceedings and Part 2 will provide a summary of some of the key findings – and underlying reasoning –
to many of the most contentious issues on maritime entitlement. Part 3 will then focus on those aspects of the Award more specifically related to environmental protection and the conservation of natural resources. The
case note will conclude by suggesting that notwithstanding the low probability of China’s formal compliance
with the Award, the reasoning in this Award will be influential both as a matter of general international
law but it will also likely reframe the South China Sea dispute whether its leading protagonist wishes it to or
not.