Why a ruling that cannot be enforced still matters


It shows the Law of the Sea treaty provides a level playing field for states, big and small, to protect their legal rights.

On Tuesday, the Arbitral Tribunal in the South China Sea disputes between the Philippines and China issued its long-awaited final award. It rejected China’s claim of historic rights within the “Nine-Dash Line”. It found that none of the features claimed by China is entitled to a maritime zone of more than 12 nautical miles. It concluded that China violated the Philippines’ sovereign rights in its exclusive economic zone (EEZ) and caused severe harm to the marine environment.

The Philippines government welcomed the award, describing the ruling as a milestone decision. It said it would respect the award.

China, on the other hand, claimed that the arbitration was a political farce and the award was illegal, null and void. It insisted that the Arbitral Tribunal did not have jurisdiction. It refused to recognize the ruling or accept any proposal for negotiation based on the ruling.

While the award addresses many important legal issues concerning disputes on the interpretation and application of the United Nations Convention on the Law of the Sea (Unclos) and clarifies several legal aspects of the South China Sea disputes, the reaction from the concerned parties raises important questions about the enforceability of the Arbitral Tribunal’s decision and the implications of a failure to comply with the award.

Article 296 of Unclos and Article 11 of Annex VII of the Convention provide that the Tribunal’s decision shall be final and binding and shall be complied with by all parties to the dispute. This is a rule inherent in every judicial dispute-settlement system, including Unclos. There is no exception.