chessWatchers of international trade cases are looking at this historic South China Seas decision and watching for what will happen next.  News agencies are speculating about what China will do next and what the United States will do next (US ships are in the vicinity at issue in the case).  However, most people are wondering what this is all about as they have never heard of the treaty or the arbitral body that made the decision.  This is international law and most people have not been following the case.  The news about the decision is very interesting and seems to have ramifications beyond China and the Philippines.  Since most people are not aware of the basic international law elements, we thought we should share a few pieces of information.

  1. There is a very long decision written by the Permanent Court of Arbitration in the Matter of the South China Sea Arbitration before An Arbitral Tribunal Constituted Under Annex VII to the 1982 United Nations Convention on the Law of the Sea between The Republic of the Philippines v. The People’s Republic of China.  If you cannot fall asleep tonight, this long decision might be just what you need.
  2. The Philippines won the case.  See the Press Release from the Permanent Court of Arbitration.
  3. The decision is binding on the parties – unless a party wants to ignore the decision as there is no enforcement powers element to the Permanent Court of Arbitration.
  4. The proceedings were initiated in January 2013.  There is a timeline of the events in the proceeding (that do not yet include the July 12, 2016 release of the award).
  5. The United Nations Convention of the Law of the Sea Dec. 10, 1982, 1833 U.N.T.S. 397 (known in trade law circles as UNCLOS) is an international treaty that defines the rights and responsibilities of nations with respect to their use of the world’s oceans, establishing guidelines for businesses, the environment, and the management of marine natural resources. UNCLOS is the “foundational document of modern international ocean law” and provides that the coastal states possess rights over a twelve nautical mile territorial sea as well as a 200 nautical mile exclusive economic zone. [See McDorman]
  6. The United States has signed UNCLOS, but has not ratified it.  Canada has signed and ratified UNCLOS.  China and the Philippines have signed an ratified UNCLOS.  For a full list of parties, please go to the UN Master List.
  7. It is generally accepted that significant provisions of UNCLOS are customary international law.  In 1985, the ICJ found in the Continental Shelf case (Libya v. Malta) 1985 I.C.J. 13. that it is “incontestable that the institution of the exclusive economic zone is shown by the practice of the states to have become part of customary international law.”
  8. The Permanent Court of Arbitration has been in existence since 1899.  It is an intergovernmental organization that is located in the Hague, Netherlands.  Despite the name, the PCA is not a court.  The PCA organizes arbitrations and mediations.

For more information, please contact Cyndee Todgham Cherniak at 416-307-4168 or at