Journal article Open Access
Giang Nguyen Truong
Abstract: Regardless of tremendous efforts from the involving countries, up to the present, the South China Sea (SCS) dispute between China and Philippines is regarded as the most complex and challenging maritime regional conflict in Asia. It has been two years since the date of arbitral awards for the case between Philippines and China, but the issue still raised the question of whether the award has set a good precedent for the dispute settlement mechanism under the UNCLOS 1982. And the award’s impact on the dispute settlement and state relations in the region is also debated. After the award was made, many scholars criticized that the case exhibits various shortcomings of the UNCLOS 1982 and the consequences thereof deteriorates the main function of international law. This study discusses the dispute settlement mechanism of UNCLOS 1982 and its application in the case of the Philippines – China. The study is important for two specific reasons: (i) the use of negotiation among nations in the region has become a deadlock, the demand to use legal regime in international relations is increasingly supported by many scholars, and (ii) shortcomings of the UNCLOS 1982 will be discussed for future improvement. This study finds that the tenacious dispute in the South China Sea is due to two reasons. Firstly, it is the risk the inconsistent interpretation among state parties, especially the historical approach adopted by China despite the existence of UNCLOS 1982. Secondly, it is the lack in mechanism of the Convention to ensure the parties’ compliance to the award, when China explicitly declared that it would unilaterally reject the arbitral awards. These two reasons are inarguably critical since it may degenerate the almighty goal of an international legal regime in maintaining the “internationality” and “unity” and become a chronic problem for all countries of the region. However, the situation after one year since the award was made has proved that the rule-of-law can be used as an effective tool to improve interstate co-operation.