International arbitration: mischief in the fiery Pacific


International arbitration is the most widely accepted method for resolving international disputes. But what happens when one of the disputants refuses to acknowledge and respect an international arbitral tribunal’s award?

Mischief Reef, Fiery Cross Reef, Second Thomas Shoal, Subi Reef, Gaven Reef and McKennan Reef are but a few of the inconspicuous and (previously) uninhabitable natural reefs located in the South China Sea, currently at the centre of an international “tug-of-war”, the result of which may very well change the political landscape of the region.

The South China Sea is one of the world’s most strategically vital maritime regions conveying more than US$5 trillion in trade, constituting one third of all global maritime commerce. It is therefore understandable why no fewer than five governments have laid claim to portions of this sea which claims, as has recently been demonstrated, often overlap. The nations tussling for dominance are China, Malaysia, the Philippines, Vietnam and Taiwan.

China can be described as the catalyst for the current disagreement, as it is seeking to control almost the entire South China Sea. China’s claim is based upon a highly contentious U-shaped “nine–dash line” appearing on certain historical Chinese maps, dating back to 1947. The origin of and the reason for the “nine–dash line” are anything but clear.

The current dispute has arisen out of the principles of the United Nations Convention on the Law of the Sea (UNCLOS). UNCLOS is binding upon, at least, China, Malaysia and the Philippines. In accordance with the provisions of UNCLOS, only a natural formed island that can support human or economic life can justify a claim to an “exclusive economic zone” (EEZ). Such an EEZ can extend up to 200 nautical miles off the coast of such an island, making an EEZ in the South China Sea a prized asset.