Final award in sea arbitration will be flawed

On July 12, the tribunal in the South China Sea arbitration between the Republic of the Philippines and the People's Republic of China will issue its final award. China has made it clear from the outset that it will neither participate in nor accept the outcome of the arbitral proceedings because the subject matter of the arbitration is, in essence, "the extent of China's territorial sovereignty in the South China Sea" and, in particular, its "sovereignty over the Nansha (Spratly) Islands as a whole". The jurisdiction of the tribunal is, however, limited to disputes concerning the interpretation or application of the United Nations Convention on the Law of the Sea, and territorial sovereignty disputes are not governed by the convention.

The final award will build on the tribunal's award on jurisdiction and admissibility of Oct 29, 2015, in which the tribunal rejected China's objection that the disputes in the South China Sea are actually about territorial sovereignty and thus outside its jurisdiction. While the tribunal affirmed its jurisdiction, either outright or conditionally, only in seven of the Philippines' 15 final submissions (deferring the question of its jurisdiction with regard to the remainder to the final award), the tribunal ruled that the Philippines' submissions Nos 1 to 14 did not reflect a dispute concerning territorial sovereignty but constituted a legal dispute concerning the interpretation or application of UNCLOS.

With regard to submission No 15, the tribunal was unable to determine whether a dispute exists because the submission was unclear. The tribunal's award on jurisdiction and admissibility contains some serious flaws and is based on procedural irregularities which call into question the correctness of any final award.