PROBLEM OF ENFORCEMENT IN INTERNATIONAL LAW IN LIGHT OF SOUTH CHINA SEA DISPUTE

Abstract

South China Sea arbitration was a landmark ruling rendered by the International Tribunal for Law of the Sea (ITLOS) over the territorial claims within the South China Sea made by the Philippines. It was held by the tribunal that China had no legal basis for claiming historic rights within its ‘nine-dash line’.  However, China’s denial to oblige with the award rendered by the Permanent Court of Arbitration, under the United Nations Law of the Sea (UNCLOS), highlights a key issue regarding the enforceability of the awards rendered by the International Law. The main problem here is that the International law generally does not have any mechanism for enforcement of rewards rendered by the International Tribunals.  Similarity, although UNCLOS makes its decision final and binding on the judgement debtor, it has no proper enforcement mechanism, reducing the international awards to merely an ineffective piece of paper. Therefore, this article explores and analyses other enforcement mechanisms in International law, such as the International Center for Settlement of Investment Disputes (ICSID) and the World Trade Organization (WTO) and suggests that the award could be enforced on China if such mechanisms are also brought within the scope of the UNCLOS. Further, the paper critically examines the two ways in which international law is enforced i.e., through the domestic courts of the state and the international organizations. ICSID and ITLOS are the prime enforcement mechanisms in international law wherein the domestic courts of the state enforce the award whereas the award rendered through WTO dispute settlement body and the UNCLOS are enforcement mechanisms via the International Organizations.