The intensification of the South China Sea (โSCSโ) conflict throughout early 2024 between China and the Philippines[i] includes a long history of disputes. It reached its pinnacle in 2013 when the Philippines brought the disputed maritime features to the Permanent Court of Arbitration (PCA) under Annex VII to the United Nations Convention on the Law of the Sea (โUNCLOSโ)[ii]. In 2016 the PCAโs tribunal found in favour of the Philippines, with China subsequently rejecting the Courtโs ruling[iii]. This raises a critical question on the effectiveness of international law, specifically when it involves major global powers.
History of UNCLOS
UNCLOS, an international agreement that governs the rights and responsibilities of nations for the worldโs oceans, is a multilateral treaty which binds the parties internationally[iv]. Historically, the concept of the sea as a common heritage traces back to the seventeenth-century principle that the sea is owned by no one and belongs to everyone[v]. However, by the mid-twentieth century, this ideal began to unravel since countries increasingly extended their offshore territorial claims and adopted their own policy[vi]. In the absence of an international Law, claims often clash and conflict with the national maritime policies of other countries.
The United Nations (โUNโ) established UNCLOS to preserve and conserve the marine environment within each maritime jurisdiction. The first conference on the Law of the Sea was held in 1958 resulting in four treaties to outline the legal framework for maritime activities[vii]. Another two conferences were held between 1973-1982, culminating in the UNCLOS adoption in 1982 which came into force in November 1994 following its ratification by 60 states[viii]. To date, UNCLOS has been ratified by all but 15 UN members, including the USA[ix]. UNCLOS governs every aspect of sea resources and uses[x], covering rights to navigation, territorial sea limits, business-related authority, marine resource conservation, research, and dispute settlement[xi]. Part XI included a new adjustment of the deep seabed mining regime[xii] to meet industrialised statesโ objectives[xiii][xiv]. A key provision is the establishment of Exclusive Economic Zones (โEEZโ) which should not exceed 200 nautical miles from the baseline of the coast[xv].
UNCLOS and South China Sea (SCS) conflict: ratification and arbitration (the case of the Philippines vs. China)
The SCS conflict is a sovereignty dispute of long-standing, mainly between China, Vietnam, and the Philippines, but also including Taiwan and other ASEAN nations of Indonesia, Thailand, and Malaysia[xvi]. SCSโs natural resources and strategic location make it valuable for every country surrounding it, and an area of interest for the Worldโs greatest power[xvii]. As claimed by the Philippines, China, Taiwan, and Vietnam, the SCS consists of four groups of islands and the Spratly Islands[xviii].
China signed UNCLOS in 1982[xix] although only ratified it in 1996[xx]. Ratification of international law is a voluntary act by which a country consents to becoming legally bound by the provisions of a treaty or convention[xxi][xxii]. From a realist perspective a country ratifies international law primarily if it perceives tangible benefits and if such ratification serves its national interests[xxiii]. Late ratification by China resulted from the overlapping SCS maritime claims, territorial disputes, and uncertainty on financial obligations under UNCLOS[xxiv]. Chinaโs extensive territorial claims, declaration of โhistorical rightsโ, and entitlement of island ownership under the โ9-dash linesโ, overlap with other countriesโ EEZ, including Vietnam, Malaysia, Brunei, Indonesia, and the Philippines[xxv], creating dispute over rights and sovereignty.
For example, in 1995 China launched a military attack against Philippines troops which led to ASEANโs unified opposition to Chinaโs aggressive behaviour[xxvi]. The dispute between China and the Philippines involves overlapping territorial and maritime claims over resource-rich areas. In 2013 the Philippines initiated arbitral proceedings against China under UNCLOS Annex VII[xxvii] by focusing on the legal status of disputed maritime features[xxviii]. The PCAโs tribunal ruled that China’s claims had no legal basis under UNCLOS affirming the Philippines’ rights within its EEZ[xxix], and that Chinaโs claims to the SCSโ resources should be limited to its โ200 nautical milesโ EEZ[xxx].
China rejected the ruling and continued its activities in the disputed areas including fishing and artificial island construction[xxxi]. The tribunal did not deal with territorial sovereignty nor did it determine any maritime boundaries between the Philippines and China in the SCS[xxxii]. President Xi Jinping’s firm declaration that China’s territorial sovereignty and maritime rights would remain unaffected by the ruling, and its refusal to accept the PCA’s decision, underscores China’s commitment to defending its historical claims and strategic interests in the region[xxxiii].
Challenges in implementing international law: UNCLOS and โvoluntary complianceโ
Within international law, compliance refers to a State’s adherence to the obligations outlined in international agreements and treaties[xxxiv][xxxv]. However, international law relies heavily on voluntary compliance[xxxvi]. Although methods to ensure such voluntary compliance exist, including concern for a Stateโs reputation, sanctions, and withholding certain benefits from a State, international law has continuously been criticised for its lack of effective enforcement[xxxvii].
UNCLOS governs dispute settlements amongst State Parties through โ[โฆ] any peaceful means of their own choiceโ[xxxviii]. China’s refusal to accept the PCA’s ruling on the SCS is viewed as non-compliance which has been a significant challenge to the dispute settlement. This implementation challenge of international law relates to the nature of its โvoluntary complianceโ which provides freedom for State Parties to choose any โpeacefulโ means. The USA responded to China’s rejection of the PCA’s ruling by imposing economic sanctions but have not materially impacted China[xxxix]. This illustrates the limitations of using economic sanctions to enforce compliance with international legal rulings in cases involving major global powers. Moreover, UNCLOS does not include provisions for imposing sanctions on countries for violations or non-compliance[xl]. Instead, it serves primarily as a framework for establishing maritime rights and responsibilities and providing โpeacefulโ mechanisms for dispute resolution under international law[xli].
Ways to move forward
UNCLOSโ effectiveness remains heavily reliant on voluntary compliance by its States Parties. Whilst theoretically methods to ensure voluntary compliance relating to reputationโ damage, sanctions, and withholding benefits can be exerted, these proved to be ineffective when major economic powers are involved. This showed in the SCS arbitration case, between the Philippines and China, when the latter rejected the PCAโs ruling that found in favour of the former. The inability to enforce compliance through economic sanctions highlights the challenges in ensuring adherence to international maritime law, particularly when powerful states such as China assert their own interpretations of territorial and maritime rights.
This leaves a critical question on the effectiveness of international law. On 8 December 2022, during the UN General Assembly that marked the forty years of UNCLOS, the key point often raised was the urgent need for an international legally binding instrument in managing marine resources sustainably, a point central to any debate within international law. Nevertheless, if fostering stability, resolving disputes peacefully, and promoting cooperation in the global oceans are the goals, UNCLOS must be strengthened to ensure that international law remains the cornerstone of a rule-based international order.
[i] Tran, H. (2024, January 17). Chinaโs Big Gamble in the South China Sea. Thediplomat.com. https://thediplomat.com/2024/01/chinas-big-gamble-in-the-south-china-sea/
[ii] United Nations. (n.d.). PREAMBLE TO THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA. Www.un.org. Retrieved June 24, 2024, from https://www.un.org/Depts/los/convention_agreements/texts/unclos/annex7.htm
[iii] Graham, E. (2016, August 18). The Hague Tribunalโs South China Sea Ruling: Empty Provocation or Slow-Burning Influence? Council of Councils; Council on Foreign Relations. https://www.cfr.org/councilofcouncils/global-memos/hague-tribunals-south-china-sea-ruling-empty-provocation-or-slow-burning-influence
[iv] Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 U.N.T.S. 397 (entered into force Nov. 16, 1994
[v] Egede, E., & Sutch, P. (2013). The politics of international law and international justice. Edinburgh University Press.
[vi] Oceans and Human Health. (2023). In L. E. Fleming, L. B. Alacantara Creencia, W. H. Gerwick, H. C. Goh, M. O. Gribble, B. Maycock, & H. Solo-Gabriel (Eds.), ScienceDirect (2nd ed., pp. 775โ786). https://www.sciencedirect.com/book/9780323952279/oceans-and-human-health
[vii] Treves, T. (1982). United Nations Convention on the Law of the Sea – Main Page. Legal.un.org. https://legal.un.org/avl/ha/uncls/uncls.html#:~:text=The%20United%20Nations%20Convention%20on
[viii] UN. (2012). The United Nations Convention on the Law of the Sea (A historical perspective). Un.org. https://www.un.org/Depts/los/convention_agreements/convention_historical_perspective.htm
[ix] Hayton, B. (2021). UNCLOS: fit for purpose in the 21st century? https://committees.parliament.uk/writtenevidence/40814/pdf/
[x] International-Tribunal. (n.d.). International Tribunal for the Law of the Sea: UNCLOS. Www.itlos.org. Retrieved June 21, 2024, from https://www.itlos.org/en/main/the-tribunal/unclos/
[xi] United Nations. (1982). United Nations Convention on the Law of the Sea. In United Nations. United Nations. https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf
[xii] Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 U.N.T.S. 397 (entered into force Nov. 16, 1994
[xiii] Treves, T. (1982). United Nations Convention on the Law of the Sea – Main Page. Legal.un.org. https://legal.un.org/avl/ha/uncls/uncls.html#:~:text=The%20United%20Nations%20Convention%20on
[xiv] Hui, Y. (1995). REMARKS ON CHINAโS RATIFICATION OF THE 1982 UN CONVENTION ON THE LA W OF THE SEA. https://brill.com/downloadpdf/book/edcoll/9789004400641/B9789004400641_s013.pdf
[xv] Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 U.N.T.S. 397 (entered into force Nov. 16, 1994).
[xvi] Schofield, C. (2013). Whatโs at stake in the South China Sea? Geographical and geopolitical considerations. In Beyond Territorial Disputes in the South China Sea (pp. 11-46). Edward Elgar Publishing.
[xvii] Bogusz, M. (2020). Nine Dashes. Beijingโs Territorial Claims in the South China Sea. In www.ceeol.com. OSW Oลrodek Studiรณw Wschodnich im. Marka Karpia. https://www.ceeol.com/search/book-detail?id=1164287
[xviii] Beckman, R. (2013, June 28). International law, UNCLOS and the South China Sea. Www.elgaronline.com; Edward Elgar Publishing. https://www.elgaronline.com/edcollchap/edcoll/9781781955932/9781781955932.00012.xml
[xix] Hui, Y. (1995). REMARKS ON CHINAโS RATIFICATION OF THE 1982 UN CONVENTION ON THE LA W OF THE SEA. https://brill.com/downloadpdf/book/edcoll/9789004400641/B9789004400641_s013.pdf
[xx] UN. (2024). United Nations Treaty Collection. Treaties.un.org. https://treaties.un.org/pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXI-6&chapter=21&Temp=mtdsg3&clang=_en#:~:text=Signatories%20%3A%20157.
[xxi] Uta Oberdorster, 2008, โWhy ratify? Lessons from treaty ratification campaignsโ Vanderbilt Law Review, Vol. 61, Issue 2, pp. 681-712.
[xxii] Alexander Orakhelashvili, 2019, Akehurstโs Modern Introduction to International Law (8th edition), Routledge.
[xxiii] Oberdorster, U. (2008). Why Ratify? Lessons from Treaty Ratification Campaigns. Vanderbilt Law Review, 61(2), 681. https://scholarship.law.vanderbilt.edu/vlr/vol61/iss2/12/
[xxiv] Hui, Y. (1995). REMARKS ON CHINAโS RATIFICATION OF THE 1982 UN CONVENTION ON THE LA W OF THE SEA. https://brill.com/downloadpdf/book/edcoll/9789004400641/B9789004400641_s013.pdf
[xxv] Ding, H., & Ullah, I. (2022). THE SOUTH CHINA SEAโS NINE DASH LINE: KEY DISPUTES AND CHINAโS HISTORICAL RIGHTS CLAIMS. Journal of Pakistan-China Studies (JPCS), 3(1), 67โ86. https://doi.org/10.55733/jpcs.v3i1.53
[xxvi] Dutton, P. (2011). Three Disputes and Three Objectives-China and the South China Sea. Naval War College Review, 64(4), 6. https://digital-commons.usnwc.edu/cgi/viewcontent.cgi?article=1553&context=nwc-review
[xxvii] Parry, I. (2021). Mouth stretching devices. Burns Open, 5(4), 100โ102. https://doi.org/10.1016/j.burnso.2021.08.026
[xxviii] Graham, E. (2016, August 18). The Hague Tribunalโs South China Sea Ruling: Empty Provocation or Slow-Burning Influence? Council of Councils; Council on Foreign Relations. https://www.cfr.org/councilofcouncils/global-memos/hague-tribunals-south-china-sea-ruling-empty-provocation-or-slow-burning-influence
[xxix] Parry, I. (2021). Mouth stretching devices. Burns Open, 5(4), 100โ102. https://doi.org/10.1016/j.burnso.2021.08.026
[xxx] Hayton, B. (2021). UNCLOS: fit for purpose in the 21st century? https://committees.parliament.uk/writtenevidence/40814/pdf/
[xxxi] Graham, E. (2016, August 18). The Hague Tribunalโs South China Sea Ruling: Empty Provocation or Slow-Burning Influence? Council of Councils; Council on Foreign Relations. https://www.cfr.org/councilofcouncils/global-memos/hague-tribunals-south-china-sea-ruling-empty-provocation-or-slow-burning-influence
[xxxii] Medina, C. P. (2017, February). Legal Victory for the Philippines against China: A Case Study. Geneva Graduate Institute. https://globalchallenges.ch/issue/1/legal-victory-for-the-philippines-against-china-a-case-study/
[xxxiii] Phillips, T., Holmes, O., & Bowcott, O. (2017, November 28). Beijing rejects tribunalโs ruling in South China Sea case. The Guardian. https://www.theguardian.com/world/2016/jul/12/philippines-wins-south-china-sea-case-against-china
[xxxiv] Jana Von Stein, โInternational Law: Understanding Compliance and Enforcementโ, The International Studies Encyclopaedia, Wiley-Blackwell, 2010.
[xxxv] Beth A. Simmons, โCompliance with International Agreementsโ, Annual Review Political Science, Vol 1, 1998, pp 75-93.
[xxxvi] Bothe, M. (2008). Complementarity: Ensuring compliance with international law though criminal prosecutionsโwhose responsibility?. Die Friedens-Warte, 59-72.
[xxxvii] Ibid
[xxxviii] United Nations. (1982). United Nations Convention on the Law of the Sea. In United Nations. United Nations. https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf
[xxxix] Diep, Q., & Kieu, P. (2023). NON-COMPLIANCE ISSUES -STATE BEHAVIOURS THROUGH THE SOUTH CHINA SEA ARBITRATION CASE Master Thesis Tilburg Law School LL.M International and European Law. https://arno.uvt.nl/show.cgi?fid=162605
[xl] Creese , A., Wisniewski , J., Cullen, T., & Sinclair, B. (2022). UNCLOS: the law of the sea in the 21st century. Authority of the House of Lords.
[xli] United Nations. (1982). United Nations Convention on the Law of the Sea. In United Nations. United Nations. https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf
