The South China Sea Award: How Should We Read the UN Convention on the Law of the Sea?

Abstract

The conventional wisdom has been that the United Nations Convention on the Law of the Sea (“UNCLOS”) Part XV dispute settlement system is narrowly restricted and this reflects the drafters’ intent. Thus, tribunals should cautiously interpret Part XV, giving broad effect to its jurisdictional limitations. The unanimous award in South China Sea deals this approach a blow. Indeed, it assumes a fundamentally different orientation to interpreting UNCLOS: one which implicitly takes the foremost principle of Part XV as being its compulsory and comprehensive character. This approach is rooted in a very different understanding of UNCLOS as “package deal” and the consensus it reflects. Indeed, I argue that any interpretation of ambiguous provisions of UNLCOS is necessarily coloured by one’s view of the struggles involved in its negotiation. Further evidence of this difference of approach in South China Sea is found, in particular, in its treatment of the regime of islands.

Keywords: South China Sea, international law, UNCLOS, international law of the sea