The multilateral territorial dispute over the South China Sea has intensified in recent years. In response, some observers endorse the apparent turn to "lawfare" on display in the ongoing Philippines v. China arbitration, conducted under Annex VII of the UN Convention on the Law of the Sea (UNCLOS). Yet the limited subject matter of this arbitration means that it can contribute only modestly to any ultimate resolution between claimants. Indeed, the Chinese side has argued against tribunal jurisdiction precisely on the basis of the primacy of questions over territorial sovereignty--which are barred from UNCLOS proceedings--to the determination of all other legal issues being contested between the parties.
This Article assesses the merits of these and other major objections to the UNCLOS arbitration and proposes a supplemental legal mechanism: an international Commission of Inquiry (COI) by involved states, addressing French, Japanese, and other extra-regional states' now inactive claims regarding the sovereign status of the region's various island territories through the end of World War II hostilities in 1945. Such a COI would acknowledge, as the UNCLOS arbitration does not, the centrality of the legal issue of territorial sovereignty to the dispute. Yet by limiting its findings to the islands' contested status during the period of European and Japanese colonialism in Asia, rather than determining current ownership, a COI could nonetheless avoid exacerbating tensions or alienating claimants.
Most importantly, such an approach could serve to establish a narrowed, but still ample, range of possible legal claims and outcomes for further adjudication. Claims based on "discovery" and "conquest" could at least potentially be ruled out, leaving only "cession"-based arguments (the implications of which are considerably less divisive, as they are premised on mutual recognition between equal states). A COI would also be based upon and contribute to a regional "epistemic community" of juridical expertise, furthering transnational civil society ties between claimant states. Finally, the positivistic discourse based on the principle of legal equality pursued by a COI as here proposed could, potentially, more generally dissuade unilateral behavior by individual states, while promoting mutual recognition and cooperative arrangements among regional actors.TABLE OF CONTENTS I. INTRODUCTION II. PHILIPPINES V. CHINA: BACKGROUND AND POTENTIAL OUTCOMES A. Summary of the Dispute B. The Structure and Purpose of UNCLOS Arbitration C. Facts Underlying (and Complicating) the Dispute D. Potential Scope of a Final Ruling III. THE DISSENSUS OVER UNCLOS: THE LAW OF THE SEA VERSUS THE LAW OF SOVEREIGNTY A. Evaluating Chinese Jurisdictional Objections and Philippine Responses B. Historical Claims, Nationalism, and the Dangerous Ambiguity of "Discovery" C. Abandoning the Discovery and Occupation Paradigm IV. BENEFITS OF AN INTERNATIONAL COMMISSION OF INQUIRY A. A Modern Innovation for a Multipolar World B. "Arbitration in Disguise"? Law and Facts in Institutionalized Inquiry C. Key Potential Findings: The Unavailability of Discovery and Conquest D. Effects: Clarifying Claims and Reframing the Legal Discourse V. COLLECTIVE INQUIRY AND THE PROJECT OF REGIONAL COOPERATION A. Sovereignty, Normativity, and Realism in International Law B. Constituting Mutual Recognition in the South China Sea C....