The Obligation to Negotiate in the Philippines v. China Case: A Critique of the Award on Jurisdiction

摘要

The two states in the Philippines v. China Case have continually reaffirmed in multiple documents and the 2002 Declaration on the Conduct of Parties in the South China Sea that they agreed to resolve their disputes in the South China Sea through consultations and negotiations. However, the Arbitral Tribunal in its Award on Jurisdiction held that no obligation of negotiation was provided for in these instruments because they were not legally binding agreements. Moreover, the Tribunal found that the Philippines had satisfied the obligation to seek a solution through pacific means, including negotiation. There are problems and deficiencies in the reasoning of the Tribunal respecting these findings.