As the 10th anniversary of the South China Sea arbitral award approaches, renewed efforts are underway to portray the ruling as the definitive legal framework for resolving disputes in the South China Sea. Some governments, advocacy groups and foreign policy commentators are expected to use the anniversary to reinforce a particular narrative about the dispute and its implications for the region. Yet, before Malaysians accept such narratives at face value, it is worth revisiting the legal questions that continue to surround the award ten years after it was issued. Lawyer Nor Hisham Mohd Nor writes in Part 1.
On 12 July 2026, the world will mark ten years since the arbitral tribunal constituted under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS) delivered its award in the case initiated by the Philippines against China. Since then, the ruling has frequently been described as a landmark victory for international law and a decisive rejection of China’s claims in the South China Sea. Supporters of the award often portray it as a settled legal matter whose conclusions should be accepted without reservation.
However, a decade later, significant legal questions remain unresolved.
For Malaysia, these questions are not merely academic. As a claimant state with its own maritime interests, sovereign rights and security concerns in the South China Sea, Malaysia should assess the award through the lens of its own national interests rather than through narratives promoted by other claimant states or external powers.
South China Sea – Jurisdiction
One of the most debated issues concerns jurisdiction.
International arbitration is generally founded upon the principle of state consent. While UNCLOS provides compulsory dispute settlement mechanisms in certain circumstances, it also contains important limitations and exceptions. China rejected the arbitration from the outset and argued that the matters raised by the Philippines fell outside the tribunal’s jurisdiction.
Although the tribunal concluded otherwise, legal scholars continue to debate whether disputes touching upon territorial sovereignty and historic rights can be effectively separated from questions concerning maritime entitlements.
This remains a significant issue because UNCLOS was never intended to function as a mechanism for resolving disputes over territorial sovereignty.
The tribunal repeatedly emphasised that it was not adjudicating sovereignty claims. Nevertheless, critics argue that some of its findings inevitably carried implications for broader territorial disputes by determining the status and maritime entitlements of contested features.
Whether this amounted to an indirect encroachment into matters beyond the tribunal’s jurisdiction remains a legitimate legal question.
Principle of Consent
A second issue concerns the principle of consent itself.
The international legal system is built upon respect for sovereign equality among states. While compulsory dispute settlement mechanisms have their place, they must also be balanced against the principle that states cannot ordinarily be compelled to submit sovereignty-related disputes to adjudication without their agreement.
The fact that China neither accepted nor participated in the proceedings continues to raise questions among many observers regarding the extent to which the award can be regarded as politically and legally persuasive beyond those who already support it.
This debate is unlikely to disappear simply because ten years have passed.
Procedural Legitimacy
Another issue concerns procedural legitimacy.
The arbitration proceeded in the absence of one of the principal parties. While international tribunals may continue proceedings where one side declines to participate, the reality remains that many of the legal arguments that might have been advanced by China were never tested through a fully adversarial process.
For supporters of the award, this does not diminish its validity. For critics, however, it remains a factor that affects perceptions of fairness and legitimacy.
The existence of these differing interpretations demonstrates why the award continues to generate debate among international lawyers and policymakers.
Malaysia should also consider the wider implications of adopting another country’s narrative wholesale.
The Philippines has every right to advance arguments that it believes serve its national interests. However, Malaysian interests are not necessarily identical to Philippine interests.
Malaysia possesses its own maritime claims, exclusive economic zones, offshore resources and security considerations. Any legal position adopted by Malaysia should therefore be assessed according to its implications for Malaysia rather than its usefulness to another claimant state.
This is particularly important in a region where legal arguments often intersect with questions of geopolitics, strategic competition and national sovereignty.
South China Sea – Malaysia’s Balanced Approach
Malaysia has consistently pursued a balanced approach towards the South China Sea. We support international law, peaceful dispute resolution and regional stability. At the same time, we must remain vigilant against attempts by any party to frame complex disputes in ways that may not fully reflect Malaysian interests.
The approaching 10th anniversary of the arbitral award presents an opportunity for reflection rather than celebration.
International law is strongest when legal arguments can withstand scrutiny and debate. Revisiting the legal questions surrounding the South China Sea arbitration should not be seen as an attack on international law. Rather, it is an affirmation of the principle that important legal decisions deserve continued examination, especially when they carry significant implications for regional peace, sovereignty and security.
Ten years on, Malaysians should not feel compelled to accept a single narrative about the South China Sea. We should instead approach the issue with the independence, caution and critical thinking that any sovereign nation owes to its own national interests. – NMH
In Part 2, we ask a fundamental question: who should define Malaysia’s position on the South China Sea—foreign capitals or Malaysians themselves? In seeking the answer, we revisit the historical legacy of the “Malayan Sea” and its relevance to contemporary debates over sovereignty, security and national interest.
Datin Hasnah is the co-founder and CEO of New Malaysia Herald based in Kuala Lumpur, Malaysia.
With an extensive background in mass communication and journalism, she works on building up New Malaysia Herald and it’s partner sites. A tireless and passionate evangalist, she champions autism studies and support groups.
Datin Hasnah is also the Editor in Chief of New Malaysia Herald.
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