The Arbitral Award in the Matter of the South China Sea between the Philippines and China

Abstract

This article considers the implications of the Award for freedom of navigation and the use of force in the South China Sea, identifying the conclusions that can be drawn from the Award and the questions that remain. The Award also indirectly raised the question of the use of force to defend navigational rights. This article therefore revisits the Corfu Channel Case for the light it may shed on the use of force and freedom of navigation in the South China Sea. This leads to questions of the danger of miscalculation and the potential importance of the 'Code for Unplanned Encounters at Sea' (CUES) in reducing the potential for miscalculation to occur. This article argues that the de-escalatory approach of CUES may be the way in which States can assert competing rights without such action leading to loss of life.