On the ninth anniversary of the Philippines’ historic legal victory over China regarding their maritime dispute in the West Philippine Sea (South China Sea) it is disheartening after so many years that think tank analysts, academics and journalists continue to get their facts wrong about who decided the claims brought by the Republic of the Philippines against the People’s Republic of China in 2013.
For example (emphasis added):
On September 17, 2024, the Lowy Institute published an article from Peter Leavy, which included this passage:
On 15 June, China implemented the “Provisions on Administrative Enforcement Procedures for Coast Guard Agencies 2024”, also known as CCG Order #3. This law allows China Coast Guard (CCG) commanders to detain foreign vessels and personnel for up to 30 days (or 60, for “complicated” issues) if they are in ‘waters under Chinese jurisdiction’. Such jurisdiction is not defined, although it is likely based on the flawed Nine-Dash Line concept that the Permanent Court of Arbitration ruled illegal in 2016.
On January 10, 2025, a commentary from Gregory B. Poling for CSIS read:
Next year will mark the tenth anniversary of the Philippines’ legal victory in the South China Sea. On July 12, 2016, five judges in the Permanent Court of Arbitration in The Hague tossed out much of Beijing’s claim to the disputed waterway.”
On June 14, 2025, the Kyodo News reported:
The Philippines has reported repeated incursions by Chinese vessels in its exclusive economic zone, some sailing to within some 50 nautical miles of Luzon’s shore earlier this year. China rejects a 2016 ruling by the Permanent Court of Arbitration in The Hague that invalidated the country’s claims over almost the entire South China Sea.
On June 15, Reuters’ Beijing newsroom reported:
China’s military conducts patrols in South China Sea, warns Philippines. In 2016 the Permanent Court of Arbitration in the Hague ruled that China’s claims were not supported by international law, a decision that Beijing rejects.
How did think tank analysts, academics and journalists get it wrong?
The Permanent Court of Arbitration is one of the oldest in the world, but it is not part of the United Nations system of courts and tribunals. The PCA is a misnomer because it is not a court with a permanent panel of judges. It is, in fact, a facility that contains a chamber suitable for arbitral hearings. It also has a law library, legal archive, and administrative and support staff.
The PCA is used by parties to a dispute – states and/or multinational institutions – which mutually agree to arbitration and which also agree to accept the result of arbitration. They select the judges and agree on the rules to be followed.
This palpably was not the case in the dispute between the Philippines and China.
It is timely to correct the record.
The United Nations Convention on the Law of the Sea (UNCLOS) was the product of the Third United Nations Conference on the Law of the Sea that met from 1973 to 1982. UNCLOS reflected a consensus among the international community that there were too many international conventions that lacked a dispute settlement mechanism and therefore, they included a binding (or compulsory) dispute settlement mechanism to make UNCLOS effective.
UNCLOS provides a comprehensive legal framework for ocean governance that includes customary international law as well as new legal concepts. UNCLOS is referred to as the “Constitution for the Oceans.” UNCLOS provides a framework for interpreting and applying the Convention to resolve disputes among its signatories. However, UNCLOS does not address disputes among states over sovereignty, disputes over maritime delimitation or military matters. These issues are left in the hands of the states concerned.
On December 10, 1982, when the UNCLOS was opened for signature, an unprecedented 119 states signed up. It came into force in November 1994. Currently, 170 states are parties to the convention, of which 166 are U.N. members plus Palestine as an observer and three non-U.N. members — Cook Islands, Niue and the European Union.
UNCLOS was also a “package deal.” Signatories were not permitted to pick and choose which provisions they accepted and which provisions they rejected.
The Annex VII of UNCLOS makes provision for four and only four binding dispute settlement mechanisms: the International Tribunal on the Law of the Sea (ITLOS), the International Court of Justice (ICJ), the arbitral tribunal and the special arbitral tribunal
There is no mention of the PCA in Annex VII or anywhere else in UNCLOS.
State signatories to UNCLOS are free to nominate any of the four dispute settlement mechanisms they prefer. If a state fails to nominate its preference, the default position is the arbitral tribunal. Neither China nor the Philippines indicated a preference, so both were bound by the default position – the arbitral tribunal.
Each party to a dispute under UNCLOS Annex VII is entitled to nominate a judge to represent its interests. The chairman of ITLOS nominates the other judges, including the chairman from a panel of international judges nominated by state parties to UNCLOS.
The Philippines nominated a judge to represent its interests. Because China refused to participate in the proceedings, it did not nominate a judge. UNCLOS makes provision for circumstances when one of the parties declines to participate. In this case, the responsibility devolves to the chairman of ITLOS, who nominated four judges, including one to represent China, for a total of five.
Under UNCLOS Annex VII, Article 11, “The award shall be final and without appeal, unless the parties to the dispute have agreed in advance to an appellate procedure. It shall be complied with by the parties to the dispute.”
The arbitral tribunal is an ad hoc body. It is formed to deal with a specific case and disbands when the case is settled. Because the arbitral tribunal is ad hoc, it owns no premises, library, legal archive, or administration and support staff. It must contract out these services.
In the case of the Philippines vs. China, the arbitral tribunal contracted the Permanent Court of Arbitration to act as its registry, that is, its administrative office. The PCA provided courtroom facilities, a law library, administrative support and served as the official records office for all communications. All communications by the arbitral tribunal were sent out by the PCA on its stationery. Each item was numbered and later became part of the permanent archive at the PCA.
The source of confusion over the PCA’s role arose from the arbitral tribunal’s award. It was numbered and issued on PCA stationery, yes, but the cover of the award clearly indicated that it was issued by the arbitral tribunal. In other words, if you post registered mail at your local post office, you are the author of that mail, not the post office.
On the ninth anniversary of the arbitral tribunal award, July 12, 2025, it is time to correct the public record and give UNCLOS its due. The Permanent Court of Arbitration did not decide the case brought by the Philippines against China. The case brought by the Philippines against China was handled by an arbitral tribunal established under Annex VII of UNCLOS.
