November 03, 2015
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Last Friday, the Permanent Court of Arbitration (PCA) ruled that it has jurisdiction over the Philippines’ submission challenging a number of China’s claims in the South China Sea. This judgment is not only procedurally significant, it is also substantively important because it arguably undercuts an important strategic pillar of China’s approach to the disputes in the South China Sea – ambiguity. In this sense, the jurisdictional judgment could have political implications far broader than the arbitration itself.
Ambiguity, as a number of commentators have observed, has long been a key feature of China’s approach to the ongoing disputes in the South China Sea. So central is ambiguity in China’s claims that one scholar described the claims as “unambiguously ambiguous.” This “strategic ambiguity,” which was effectively explained last week by Graham Webster in The Diplomat, ostensibly shelters China from both the political and legal ramifications of its territorial and maritime claims in the region. But the benefits of ambiguity appear to be shrinking rapidly. Politically, China’s current approach has not yielded regional stability, with claimant states growing increasingly frustrated with China’s approach in the South China Sea. Meanwhile, legally, last week’s PCA judgment demonstrates that China’s ambiguity will not function as an effective defense to compulsory dispute resolution.
The relevance of the judgment in this regard is tied to an important jurisdictional prerequisite for dispute resolution under the United Nations Convention on the Law of the Sea (UNCLOS), specifically that there must be a dispute concerning the interpretation and application of UNCLOS. Thus, a critical threshold consideration for the tribunal was whether an actual UNCLOS-related dispute existed. In last year’s position paper, China argued that the Philippines’ submission did not concern UNCLOS because it related to sovereignty, a matter outside the scope of UNCLOS, and maritime delimitation, a matter for which China had declared an exception from compulsory dispute resolution. This argument was noted by the PCA, but ultimately rejected.